possible conversation or acquaintance is but in some plain simple English Book perhaps broken Statute Book or perhaps but some Abridgemement or Compendium Dispendium those excellent instruments of advancing ignorance and by help of little cost or pains inabling sluggards to know upon the matter as much as comes to just nothing build certainly and confidently upon this little as if it were All enough are resolute confident as if there were no more and if any thing be obtruded or questioned farther they bestow but their attention or wonder with 1 Act. 13 41. Habak 1. 5. Jewish incredulity they will not believe nay though a man tell it them Suspecting all that is beyond the narrow compass of their very short reach and not much caring if all other superfluities they esteem them so because they are not able to judge of them were buried in the pit of utter forgetfulness As little considering that their foundations have foundations and those yet again other and other and under and yet farther under and take away either or the advantage and stay of either the readiest way is taking to stir all to unsettle the firmest to tumble down the highest to leave order happiness peace and wealth buried under a heap of rubbish and the fair piles we now behold and enjoy even All the fruits of an orderly and advised disposition of things intombed under the scattered fragments of its own ruine and very confusion For old things are not to be cast away without possible inconveniences to new the foundations unseen are still a part of the fair building yea do support it and take away the lowest the next still sinks of any thing and by degrees All Even so take away the first settling Laws the under-praestructions whereupon things had their first settling composition and stay the rest totters and may expect ere long ruine in a State Particularly for tythes their fastest and most solid strength seems below in the old unseen acts of gift and first disposition the new can be never but a fair and presently useful declaration to set out uttermost to the sight of the world and as the paint that shines for people to gaze upon the strength of the wall and house both is in the inclosed materials and rocky foundation Yet because these are of great estimation with the multitude and ought indeed to be of some with All I shall not shun to give them intire in the opinion of the many enough to create a right if nought else were as if nought else were perhaps they might But as now things stand are so far from doing it effectually and onely that they do it not in any degree Any more then if a present Act should be made about Fines and Relieves the next age might think it gave the Lord that Right we know he enjoys already Or as a new Act about Quit-rents and Herriots should be mistaken to raise or warrant the things no man but knows had right before The most in addition any new order can doe being but to rectifie dispose or settle some new course about the things so due already that 't is that injury comes near a Theft to subtract or deny the just payment of them So the following later Statutes nor do nor can any more but to revive quicken and establish the ancient right of tythes extant and of long being before awaken mens dulness inforce their payment remove obstructions that have grown in by corruption with time and make that which is shine brighter and fairer by the fourbishing over of a new and fresh authority Their dueness being that these statutes did never intend to meddle with infringe further help nor hinder but they were what they were before and it were one of the most pitiful pieces of Ignorance befitting onely the Vulgar heard of unlettered Simplicians and deserving rather commiseration then the exercise of any of our manly passions to entertain a thought to or toward the contrary What! that these later Statutes created tythes Made them due Gave them that their abrogation should have a possibility of taking them away and what the service of God has to trust to by virtue of their promulgation This is such a shallow conceit is onely worthy the weak brains of the multitude where onely it possibly could be hatched or can be tolerated or indured no more excusable then if any should say Aristotles Astronomy gave the Sun a being in the Firmament or Charta Forrestae first set up Game or a present Law if it should dispose of did erect Parks and Chases or a new order about Escheats or Mortuaries the next mistaken Age might interpret to give them being and first beginning But to the words of the Statute which both in the beginning and progress have dueness of Tythes existent and then in being supposed and they are as followeth Forâ—smuch as divers numbers of evil disposed persons inhabited in sundry Counties Tythes shall be paid according to the Custoâ—e of the Parish c. Cities Towns and places of this Realm having no respect to their duties to Almighty God 27 Hen 8. cap. 20. but against Right and good Conscience have attempted to subtract and withhold in some places the whole and in some places great parts of their Tythes and Oblations as well personal as prediâ—l Due unto Almighty God and holy Church and pursuing such their detestable enormities and injuries have attempted in late time past to disobey contenm and despise the processe laws and decrées of the Ecclesiastical Courts of this Realm in more temerons and large manner then before this time hath béen séen For reformation of which said injuries and for unitie and peac to be preâ—erved amongst the Kings Subjects of this Realm our Soveraign Lord the King being Supreme Head in Earth under God of the Church of England willing the spiritual rights and duties of that Church to be preserved continued and maintained hath ordained and enacted by Authoritie of this present Parliament That every of his Subjects of this Realm of England Wales and Calais and the Marches of the same according to the Ecclesiastical Laws and Ordinances of his Church of England and after the laudable Usages and Customes of their Parish or other place where he dwelleth or occupieth shall yéeld and pay his Tythes and Offerings and other duties of holy Church and that for such subtractions of any of the said tythes offerings or other duties the Parson Vicar or Curate or other partie in that behalf grieved may by due processe of the Ecclesiastical Laws of the Church of England convent the person or persons so offending before his Ordinarie or other competent Iudge of this Realm having authoritie to hear and determine the right of tythes and also to compel the same person or persons so offending to do and yeeld their said duties in that behalf This was the Legislative part follows order in case of contumacy that the Ordinary or other
sealed and proclaimed deeds and Laws that our State has or the Lawyers themselves know where to seek for The beginning thereof is this Edward by the Grace of God King of England c. We have seen the Charter of the Lord Henry sometime K. of England our Father of the Liberties of England in these words Henry c. which we confirm Chap. 1. First we have granted to God and by our present Charter have confirmed for us and our heires for ever that the Church of England shall be frée and shall have all her whole Rights and Liberties inviolable We have granted also and given to all the Frée-men of our Realme for us and our heirs for ever these Liberties c. This is a little more emphaticall in the Latine which for the better countenancing both of the testimony and the thing I choose to represent from a fair Manuscript in the publick 1 S 1. 8. Iur. Library of Oxford where thus Imprimis concessimus Deo hac praesenti Carta confirmavimus pro nobis haeredibus nostris imperpetuum quòd Ecclesiae Anglicana liberae sit habeat 2 That is That all Ecclesiasticall persons shall enjoy all their lawfull Iurisdictions and other their rights wholly without any diminution or subtraction whatsoever Cook Instit 2 pa 3. Jura sua integra libâ—rtates suas illaesas Concessimus etiam omnibus liberis hominibus c. This is that Charter in the ninth Chapter whereof is confirmed the Charter of the City of London in the fourteenth That none shall be amerced unreasonably but salvo contenemento as he may be able to bear in the twenty ninth That no man shall be outed of his Frée-hold but by course of Law so much stood upon formerly lately and justly and ever to be stood upon Every line whereof might have been written with some of the subjects bloud it cost and in answerable price of worth containeth some piece or other of a firm wall to keep out Invasion and hindering will and power gotten strong from entring upon and trampling downe the peoples Libertie Wherein note two things granted to the Church sc That she should have all her 1. Rights 2. Liberties Those Rights Intire Those Liberties Inviolable What were first her Rights 3 The Councel of Aenham had flyled them before Deo debita Iura cap. 1. in Spelm. Concil pag. 517. and K Knout likewise in his Laws cap. 8. in Lambard Archai pa. 101. And before either K. Alfreds League with the Danes Dei Rectitudines Spelm. pa. 377. The whole face and condition of things represents it self such that if any thing were These were now Rights Tythes no question Even then generally due and universally paid and so for a long time had been There needed no more then or the Ages before but to prove the land in the Parish of Dale and the Tythes were cast upon the Church of Dale without any Evasion And this so true and known that there is none from the information before or other acquaintance with the state of things as they were truly informed but must grant as much as I say without haesitation And these rights were also granted Intire Next what were her Liberties A volumne were here little enough and I had once thought of laying together Many But to our present purpose let a few Acts of Parliament expound what one priviledge at least was In 18 Edw. 3. there is a statute for 4 Pulton p. 143 the Clergy and it was granted in regard of a Triennial disme given that Martiall Prince to further him in his Wars for France In the sixth Chapter whereof is mention of some Justicers appointed to the impeachment of Ecclesiasticall Jurisdiction of 1 The knowledge of all causes testamentary causes of matrimony and divorces rights of Tythes Oblations and obventions by the goodness of Princes of this Realm and by the Laws and Customes of the same appertaineth to the Spiritual Iurisdiction of this Realm c. Statut 24 Hen. 8. â—2 Tythes among other things why may we not well understand and is against the Franchise this Statute says of the Charter Let the words speak their own sense Item Whereas Commissions be newly made to divers Justices that they shall make inquiries upon Judges of holy Church whether they have made just processe or excessive in causes testamentarie and other causes decimall as notoriouslie doe belong hither as testamentarie a hundred proofs are for it which yet notoriouslie pertaineth to the cognizance of holy Church the said Justices have inquired and caused to bee indicted Judges of holy Church in blemishing of the Franchise of holy Church that such Commission be repealed c. See here what Franchise is in part sc to have Ecclesiastical Jurisdiction free proved by that to disturb it is a breach or blemish of the Franchise Next take another gloss in the plain text of 1 Rich. 13. where 2 Id. pa. 200. The Prelates and Clergy of this Realm do greatly complain them for that the people of holy Church pursuing 3 That this apprehension may not seem a mistake this very Chapter I finde alledged heretofore to prove that the proper scene of trial of tythes is the Ecclesiastical Court by M. Fulbeâ—k in his parallel par 2. Dial. 1. sol 6. in the Spirituall Court for their Tythes there is the Jurisdiction and this particular asserted and their other things which of right ought there 's more then possession Due and of old times were wont to pertain to the same Spiritual Court there 's continuance of time or prescription and that the Judges of holy Church having cognizance in such causes other persons thereof medling according to the Law be maliciouslie and unduly for this cause indicted imprisoned and by secular power horriblie oppressed c. against the Liberties and Franchises of holie Church Wherefore it is assented that all such Obligations shall be of no value c. Here another statute interprets what Liberty and Franchise is by that the clogging of Ecclesiasticall Jurisdiction in this matter of Tythes was a breach of that Franchise and so after when the Cistertians endeavoured to exempt their Formours Lands as well as their own from paying Tythes that due power could not fetch them in this was again against the Franchise as 4 Alledged hereafter complained in Parliament 2 Hen. 4. 4. And lastly a 5 The Annals of Burton cited by M Selden of Tythes cha 14. pa. 419. National Councel represented as one of their grievances at London 21 Hen. 3. The over-lavish use of the Indicavit whereby the Kings Judges would first determine what tythes were due to what Church and this was in Regno Angliae in praejudicium libertatis Ecclesiasticae Which things may together shew fully enough what the breach of Franchise was and by consequent what the Franchise it self by the best which is publick interpretation Whence also likeliest this was the meaning of the Grant That
disturbed Ecclesiasticall Jurisdiction 1 1 R. 2. c. 15. The Prelates and Clergie of the Realme do greatly complain them of that Disturbance in matter of Tithes against the Franchise c. But the words hereof were given 2 Pag. 151. before there needs onely now to remember thence 1. That Triall of the Rights of Tithes is there said to belong to the Church Court 2. It was then so 3. It 3 How long Sir Edward Cook looks back to some then late â—cts of State as 18 Ed. 3. cap 7. Articuli Cleri 9 Ed. 2. circumspectè agatis in 13 of Ed. 1. c. But the farthest of these was but within the compass of a Century toward the end of this yoâ—ng Kings great Grandfathers dayes and so far unlikeâ—y and â—nfit then to take the stile date upon them fâ—oâ— the gravity of a Parliament to have it said Of old were wont to be It was then scarce out of many mens memories and if it had been within ken of any such apprehension the plain intention of those sages would no doâ—bt have measâ—red out their words by things and set it upon its right bottom of something within view which some of them had seen to omit what shall be after said is fuller answer and plainer proof that in Hen 3. time and then likely by â—sâ— and câ—stoâ—e too this discussion of Dues was made and acted here upon this Scene had been so 4. Of Right it Ought to be so 5. To disturb was against the Franchise allowed and ratified by the Charter All which things are there plainly in a Parliament law acknowledged It was no new Incroachment but an allowed usage It was no new Custome then sprung up but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 delivered from hand to hand through many Generations It was not a senslesse Custome getting head tantùm non against reason andequity at first but the sage and advised Law had thus at beginning stated and till now declared and appointed And maliciously and Unduly 't is said to note the Fountain whence that grave Assemblie thought those bitter Streams proceeding Malice and Wrong men were indited for doing their then duty as of Right they ought to do and of old were wont to do but to proceed in the next Chapter is more Item It is accorded that at what time that any Person of holy Church be drawn in Plea in the Secular Court for his own Tithes taken by the name of Goods taken away and he which is so drawn in Plea maketh an Exception or alleadgeth that the substance and sute of the Businesse is onely upon Tithes due of Right and of Possession to his Church or to another his Benefice that in such case the general Averment shall not be taken without shewing specially how the same was his Lay Cattall Here was 1. Somewhat distinct from Lay Cattal and to oppose thereto 2. Tithes due of Right and that by Statute-testimony 3. Something to be done before the Secular Court can take notice when the subject is Tythes 4. The scope of all to hinder that Court. For if the Land-owner might suppose them Lay then as it was an offence for the Church-man to take them so that offence must be examined in the proper Lay Consistory but if they were Tythes taken away the Church-mans due Own then elsewhere where it was known what would be said and That seems forbidden This furthered The Goods must not be supposed Lay Cattall They might be proved the Takers own Tythes which must be done onely 't is known where And so the whole doubt of the Lists where the Controversie was to be tried which was the thing in question vanisheth This I take to be the meaning the words being dark and observe all along that Lindwoods Collection seems referred to as Text and even the Secular Law relates still to those Rules as approving to try by them whether this or That shall be taken for Tythes or not So that interpretatively the very Canon by approbation and allowance from abroad is the Rule of some Civil Right immediate with us and the Giver of some Title of Dominion the Church by intimation and supposition of the Parliaments Civil Law Immediatly the next was Henry 4. of Lancaster whose fatherly care continued to keep together these Dues to the maintenance of Religion and whereas some of the Order of Cisteaux had procured Bulls for the discharge not onely of the Land they used which was 1 Decr. Greg. tâ—t de decimis cap 10. ex parte tua allowed and a singular Exemption but of what they 2 Licet de benignitaâ—e sedis Apostolicae sit vobis indultum ut de laboribus quos propriis manibus vel â—umptibus colitis neminâ— decimas solvere teneamini propter hoc tamen non est licitum vobis decimas de terris vestri subtrahere quas aliis traâ—itis excolendas id cap. sequ farmed out which would not be allowed in manifest dis-agreement from the rest against this it was ordered 3 2 Hâ—n 4. cap 4. For as much as our Lord the King upon grievous Complaint made to him this Parliament hath perceived that the Religious men of the Order of Cisteaux in the Realm of England have purchased certain Bulls to be quit and discharged to pay the Tithes of their Lands Tenements and Possessions let to ferm or manured or occupied by other persons then by themselves for such discharge must be or else all paid In great prejudice and derogation of the Libertie of holy Church and of many Liege people of the Realm our Lord the King willing thereunto to ordain Remedie by the advice and assent of the Lords Spiritual and Temporal and at the instance and request of the said Commons hath ordained and stablished that the Religious Persons of the Order of Cisteaux shall stand in the state that they were before the time of such Buls purchased And that as well they of the said Order as all other Religious and Seculars of what estate and condition that they be which do put the said Bulls in execution or from henceforth do purchase other such Bulls of new or by colour of the same Bulls purchased or to be purchased do take advantage in any manner That Processe shall be made against them and every of them by garnishment of two moneths by Writ of Praemunire facias And if they make default or be attainted then they shall incur the pains and forfeitures conteined in the Statute of Provisors made in the 13 Richard 2. Done in the Parliament at Westminster in the Vtas of S. Hillary and we have by it a notable evidence of the King and Kingdoms good will and allowance of the continuance of these Rights that they would not suffer them to be curtolled or kept back unpaid not by virtue of an Order from Rome whose power how great it then was all know but willed rather a Praemunire against the Detainers Perverters and their Adherents and
particularity At the darkness of this remote distance we may not look to see every Mote but as things draw nearer so shall we see clearer This of Augustines time may have been only in Kent for there he setled and Chiefly lived the next will look to the cold Climate and in the next Missive which was about 200 years after see what took effect more Northernly sc The account of these meetings in these and more circumstances is returned in an Epistle to Rome about the year 786. when the things were done by one of the Commissioners and published by Illyricus in his Centuries Vid. Cent. 8. cap 9. col 316. edit 1624. In an Embassage directed to Offa King of Mercenland and Aelfwald K. of Northumberland with their Archbishops where the Commissioners were Gregory bishop of Ostia Theophylact of Todi in Italy both and they came first to Offa it seems because nearest and he because the business might concern him sent and called to councel Kenwolfe or Kynewlfe King of the West Saxons There the work was distributed Theophylact stays about Mercenland and Wales Gregory and his assistants go to Aelfwald or Osward King of Northumberland and Eanbal his Arch-bishop where a Parliament was summoned or that which had the nature thereof a meeting of both States Convenerunt omnes principes regionis tà m Ecclesiastici quà m seculares and the 17 of their decisions this Decimum Septimum caput 1 Ib. col 320. de decimis dandis sicut in lege scriptum est of setling tythes according to the Law 2 Decimam partem ex omnibus frugibus tuis seu primitiis deferas in domum Domini Dei tui Rursum per prophetam Adserte inquit omnem decimam c. ib. The tenth part of all thy fruit or thy first fruits thou shalt bring into the house of the Lord. And again by the prophet Bring all the tythes into my barn that there may be meat in my house and prove me in this if I will not open the windows of Heaven and pour out blessing abundantly and I will rebuke the Devourer for your sakes that destroys the fruit of your land and there shall not be a vine barren in your field the Lord saith it As the wise man speakes no man can give his own alms of his own unless he first separate to the Lord what from the beginning he hath required to be his And hence often it cometh that he that will not give the tenth is reduced to the tenth Whence with all earnestness we command that All study to give the tenth of all they possess because it is the Lords peculiar or reserve and live of the nine and be bountiful as they can This was proposed in the Assembly and besides the King and Clergy confirmed with the assent and subcription of all the Elders Captains and people of the land 1 His quoque saluberrimis admonitionibus Presbyteri Diaconi Ecclesiarum Abbates Monasteriorum Iudices Optimates Nobiles uno opere uno ore consentimus subscripsimus Ib. consenting the Judges Peers and Nobles And so to King Offa and his Elders or Senators or Councellors Senatores is the word who did the like his Princes and Clergy setting their markes Brorda Dux signo sanctae crucis subscripsi Faxwald us Dux subscripsi Beroaldus Dux subscripsi Othbaldus Dux subscripsi with a cross as the manner then was in their serious and religious confirmations A most observable Law says Mr. Selden if it be genuine as why should it not being made by both States and of two Kingdoms It is not like Illyricus forged it or would venture it to light without some Authentick authority considering who he was and what he is there a doing the phrase stile and forme speake much the tone of that age Our 2 Vid. Concil Brit. pa 291. pag. 298. Sir Henry Spelman followes him in the substance though not in the circumstance giving it due place in our Councels since published and unless we will question every thing why should we this He hath added the name of the place Concilium Calchuthense that is either Chalchuth or Calchuth or Celchyth or Cealtide for these several variations I find which Camden places in Northumberland though he had rather finde it in the higher Climate of some part of Mercia I should seek for it between York and Durham CHAP. X. ONe thing more is observable that although Kenulph King of West-Saxon-rie were present at the first delivery of the Letters we hear no more of him afterwards the approbations and subscriptions having onely the countenance of the more Northern parts for Tythes may not yet have been generally setled save in Kent by Ethelbert and Mercia and Northwards as but now which yet was after done ere long and namely by that Celebris donatio Ethelwlphi so much spoken of This clapped the severe and absolute injunction upon all the Kingdom having power so to do as the other had not infolding every part that was under his power and all was under the same constraint so that now to Tythe was as generall as to reap and by a Catholick command from sea to sea and from the flood to this worlds end Gods Ministers had now an appointed and setled livelihood wheresoever man had For the better understanding whereof this of story would be taken in by the way That 1 Cognoscendum igiturest quòd eodem hic titulo utitur Ethelwulphus Rex quo Egbertus pater suus bellicosissimmus acquievit cum universam HeptarchiaÌ„ suae subjugasset ditioni and how Vid. Spelm. Concil pag. 351 352. Speed Cbron. lib. 7. chap. 31. Polyd Virgil. li 5. pag 89 90. Egbert this King Ethelwlphs father had gathered together no longer before the dispersed pieces of petty-Royalties here into one greater Monarchy and bruising and battering the Coronets of seven at the remainder of seven lesser Kings had cast them all into one greater Crown moulded for his own head and left the power to this his son under the Title of Monarch of the Nation or King of England A fit time to do any great work and make or perfect such a change as should be Catholick and uniform not now This and That but one and the same throughout the Nation Before him it was King or Kings of Britain till the Caesars came Then Aulus Plancius Ostorius or others Lieutenants of Britain after the fell Saxons gave denomination to their severall shares of a conquered Heptarchy and we had South East and West-Saxons besides Kent East-Angles Mercia and Northumberland But this Egbert mastered All brake 2 Stow. Chron. in the life of this Egbricht pag 99. Speed ubi sâ—pr sect 6. the image of Cadwaline last King but one of the Britains triumphantly placed over Ludgate crushed the power and obliterated the partiall names of his own Countrymen and made all stoop to his sole Command under the new name of The Kingdom of England whereof he was
sole Monarch which ever since through ages hath to this present remained These things prepared as was said for the uniformity of any work to have its extent and operation upon All and being remembred makes way for that Donation which heed is Hire given under that name Other before may have had the substance but they had not the proper term this both name and thing under the title of Celebris illa Donatio Ethelwlphi Which what it was take information first from him that had a great hand in preserving the Common-law from the spoiles at the Conquest and lived neer those times Ingulphus The most noble King of the West-Saxons saith he Ethelwalph Inclytus Rex Westsaxonum Ethelwulphus cum de Roma ut limina Apostolorum Petri Pauli ac sanctissimum ipsum Leonem multa devotione una cum juniore filio suo Alfredo peregrè visitaverat noviter revertisset omnium praelatorum ac principium suorum qui sub ipso variis provinciis totius Angliae praeerant gratuito consensu tunc primo cum decimis omnium terrarum ac bonorum aliorum sive catallorum universam dotaverat Ecclesiam Anglicanam per suum Regium Chirographum confectum inde in hunc modum when he had returned from Rome visiting with his son Alfred the habitations of Peter and Paul c. by the willing assent of all his Prelates and chiefes that under him were over all the Provinces of England had then first indowed All the English-Church for some peices had been before but there wanted a Soveraing power or the union of the parts to extend this good work over All with the Tythes of All lands mark the extent again and other goods or cattles Regnante domino nostro in perpetuum dum in nostris temporibus per bellorum incendia direptiones opum nostrarum nee non vastantium crudelissimas hostium depraedationes barbararum paganarumque nationum multiplices tribulationes ad affligendum nos pro peccatis nostris usque ad internecionem tempora cernimus incumbere periculosa which he did by his Royal Patent thus Our Lord Christ raigning but we tossed up and down c. wherefore I Ethelwlph King of the West-Saxons with the advice of my Bishops and Princes Quamobrem ego Ethelvulphus Rex Westsaxonum cum consilio Episcoporum ac principum meorum consilium salubre ac uniforme remedium affirmantes consensimus ut aliquam portionem terrarum haereditariam antea possidentibus omnibus gradibus sive famulis famulabus Dei Deo servientibus sive laicis miseris semper decimam mansionem ubi minimum sit tum decimam partem omnium bonorum in libertatem perpetuam donari sanctae Ecclesiae dijudicavi ut sit tuta munita ab omnibus secularibus servitutibus imo regalibus tributis majoribus minoribus sive taxationibus quae nos dicimus Winterden sitque libera omnium rerum pro remissione animarum peccatorum nostrorum ad serviendum Deo soli sine expeditione pontis extructione arcis munitione ut eo diligentius pro nobis ad Deum sine cessatione preces fundant quo eorum servitutem in aliqua parte levigamus Ingulph resolving on some wholsome remedy have agreed that some portion of my lands formerly inheritable by whosoever should now as to the tenth of the whole be set aside for thâ—s I conceive to be the sence the words scarce affoording any but by comparing other accounts this seems the thing meant for the servants of God and a like tenth part of my goods for the Church so free that it yeeld no secular service nor tribute more nor less nor Winterdene or Witterdene a kind of imposition but that it be devoted to Gods service alone that the possessors may pray so much the more diligently for us as they have fewer occasions to disturb them This was done at Winchester in S. Peter's-Church Anno Dom. 855. present and subscribing all the Arch-Bishops and Bishops of England and Beorred King of Mercland Edmund King of the East-Angles and a numberless number of Abbats Abbesses Dukes Earls and Chiefs of the Land and other approving beleevers And the 1 Rex verò Ethelvulphus pro firmitate ampliore obtulit hanc chartulam scriptam super Altare sancti Petri Apostoli Episcopi pro fide Dei illam acceperunt per omnes Ecclesias posteà transmiserunt in suis parochiis publicandaÌ„ Ingulph ubi sup sect 6. Charter was offred upon the Altar and there received for more religious confirmation This I take to be the sence of what was there done 2 Ad anno 855. Matthew Westminster 3 Gest Reg. Ang. lib. 2. cap. 2. William Malmesbury Ethelward and others give several accounts but tending this way and so great consent is in substance though variation in expression that no one can doubt some such thing was done men so much varying yet agreeing to report No one undertakes to make good all of every thing he makes use of and here was interspersion of Abbots and Abesses offering at the altar with Saints and Angels interessed and the Virgine Mary but such commixtures do we know no more invalid the strength is adjoyning good and sound then the like in Magna Charta or the most of all ancient Parliaments or some dispersed spots in the Common Law He that shall once give his busie humor leave to work and question things sufficiently done by some infirming circumstances will soon leave little enough of approved firmness by the same strict rule of estimation anywhere no not of those foundations whereon are raised and stands the stability of the chief worldly things we here injoy This is sure the grant was made and let the injoyed benefit speake the fruit to our time the providing for a helpless Church and it should seem so firm it needed not be again nor was after for 't is observeable the stile henceforth changed and men do now no more Grant but Confirm nor had they need Part with so much as Assure nor voluntarily Give but yeeld to Pay Which we shall observe as we go along In the mean while as to the doubtful words various hath been the construction and learned revisors have not all found the same thing in them 1 Chronic. in the life of K. Ethelwolph pa. 99. Jo. Stow takes it to be a parcel of land 2 Animadversions on M. Seldens History of Tythes cap 8. pag. 173. Doctor Tildesley contends for it by six reasons Sir Henry 3 Concil Britan. tom 1. pag 352. Spelman inclining thitherward knows not where to finde the benefit save in the parsonage house and glebe though it may be well enough thought how they came in afterward and otherwayes 4 In his History of England in the life of this King R. Hollingshead slubbers it over with a right or liberty from burdens to tythes so 5 He ordained that Tythes and Lands due to holy Church should
any memory of Regular discussion and determination of them save in this compass Or as one Neighbour-Court takes notice of another the Common Pleas of the Kings Bench or the Chancery of the Exchequer So the Secular whether Courts Acts Rules or Decisions took notice henceforward no otherwise of the duenesse or disposition of Tythes then by a neighbourly Reflexe as the Admiralty takes notice of Englands Common Law or the County-Court did of the Bishops Viâ—itation Here therefore it may not be unseasonable to give the Originall of that Court which after á thousand others would never have been so fitly called as by that proper name the Lawyers and the Law called it of 1 Glanvill de legibus Aug. li. 2 cap. 12. 7. 8 13 14. 10. 12. 12. 21 22. Bracton de Except cap 3. sect 2. cap. 4. sect 2 3. 7. cap. 10. sect 1. Radulph de Hengham sum parva cap. 8 pa. 105. Flâ—t. lib. 5 cap. 5. sect 50. cap. 26. sect 26. cap 28. 10. ca. 30. 1 2. li. 6. ca. 39. sect 5 9. ca 44. 6. Stat. de Westmin 2. cap. 5. Circumspecte Agatis 13 Ed. 1. Cooks Institut 2. pa. 487. Doct. Stud. Diaâ— 2. cap. 55. Book of Entries fol. 488. Curia Christianitatis or The Court-Christian 2 Our Ancestors having the Common-wealth before ordained and set in frame when they did agree to receive the true and Christian Religion That which was before and concerned extern policy which their Apostles Doctors and Preachers did allow they held and kept still with that which they brought in anew And those things in keeping whereof they made conscience they committed to them to be ordered and governed as such things of which they had no skill and as to men in whom for the holinesse of their life and good conscience they had a great and sure confidence So these matters be ordered in their Courts and after the fashion and manner of the Law Civill c. Sir The. Sâ—â—ythes Common Wealth Lib. 3. cap. 11. Vid Cook Instit 2. p 488. agreeable hereto because Secular things it should have been so and of humane life being referred to their Regulations elsewhere where there was blessed Law provided for them The things 3 Curia Christianâ—tatis id est Ecclesiae in qua servantur leges Christi cum tamen in â—oro Regio serventur lâ—ges mundi Lyndâ—wood tit de foro competâ—nt Gloss Curia of Christ the affairs of the Church 4 Agantur itaque primò debita verae Christianitatis jura secundò Regis placita postremô causae singulorum L. Hâ—n 1. cap. 7. in Lambard pa. 180. Christianitatis Jura as they were styled the super-inducements to the Civil state of Religion and Salvation were here set aâ—ide to a select Committee by themselves who by their rule should judge of Heresie Schisme Apostacy Scandal c. comparing spirituall things with spiritual Neither was the purpose of erection the naturall Jurisdiction the lawful bounds or intended first power as far as I could ever know or learn meant of any excesse beyond this compass Men might be irregular and their courses exorbitant Themselves wilde but this their first and intended allowed path It may not be amiss therefore I say to give the Original of that Court its rise growth strength and first power when and by whom set up and to what likely purpose All which may not be better sought then from the very Patent of Erection which here therefore and because it is some rarity at least not vulgarly known from suggestion of good credit I give and exhibite The Law of Ciroumspectè Agatis was directed to the 1 13 Edw. 1. Bishop of Norwich and the old Charter upon Record to the 2 Matth. Par. ad an 1100. pa. 53. in Hen. 1. Sheriffe of Herefordshire yet so as either the power and vertue of each was meant to reach to all or Mutatis mutandis severall like Copies were sent So here to Remy Bishop of Lincoln but it was the mould of all Ecclesiastical power The Charter speaks thus Willielmus Gratiâ Dei Rex Anglorum Cook Instit 4. Of the Iuâ—iâ— diction of Courts cha 53. p. 259. and see M. Selden of Tythes cap. 14. sect 1. and in his Not. ad Eadmer pa. 167. Comitibus Vicecomitibus omnibus Francigenis Anglis qui in Episcopatu Remigii Episcopi terras habent Salutem Sciatis vos omnes caeteri mei fideles qui in Anglia manent quod Episcopales leges quae non bene nec secundum fanctorum Canonum pracepta usque ad mea tempora in Regno Anglorum fuerunt communi Concilio Consilio Archi-Episcoporum meorum caeterorum Episcoporum Abbatum omnium Principum Regni mei emendandas judicavi Propterea mando Regia authoritate praecipiâ— ut nullus Episcopus vel Archi-Diaconus de legibus Episcopalibus ampliùs in Hundretto placita teneant nec caâ—sam quae ad regimen animarum pertinet ad judicium saecularium hominum adducant sed quicunque secundum Episcopales leges de quacunque causa vel culpa interpellatus fuerit ad locum quem ad hoc Episcopus elegerit nominaverit veniat ibique de causa sua respondeat non secundum Hundrettum sed secundum Canones Episcopales leges rectum Deo Episcopo suo faciat Si verò aliquis per superbiam elatus ad justitiam Episcopalem venire nou voluerit vocetur semel secundo tertiò quod si nec sic ad emendationem venerit Excommunicetur Et si opus fuerit ad hoc vindicandum fortitudo Justitia Regis vel Vicecomitis adhibeatur Ille autem qui vocatus ad Justitiam Episcopi venire noluit pro unaquaque vocatione legem Episcopalem emendabit Hoc etiam defendo authoritate mea interdico ne ullus Vicecom aut praepositus aut Minister Regis nec aliquis Laicus homo de legibus quae ad Episcopum pertinent se intromittat nec aliquis Laicus homo alium hominem sine Justitia Episcopi ad judicium adducat Judicium verò in nullo loco portetur nisi in Episcopali sede aut in illo loco quem ad hoc Episcopus constituerit This is by good information the erection of the Court-Christian Before which things Tythes were handled in Conjunction with other matters at one meeting under severall persons but here their Jurisdictions were parted There seems observable in this Concession 1. That the Royal power acts and derives this Authority and leave to exercise Jurisdiction and where and how far from it self Mando Regia authoritate praecipio For Quis Who is to grant here 1 Ipse Dominus Rex qui ordinariam habet Iurisdictionem dignitatem potestatem super omnes qui in regno suo sunt Habet enim omnia jura in manu sua quae ad Coronam Laicalem pertinent potestatem materialem gladium qui pertinet ad regni
stranger to their proceedings nor as to gain or lose did I ever do or suffer what might import favour or wrong to be thereby holpen or hindred at any time Onely this I have heard spoke out by the clear and loud fame of the world That here mens rights were tried and examined and lost and recovered Pleas were heard and sentence given and that sentence did or should or might have found obedience If all had not been right and square as we say exactly justifiable If there had been any remedy at Westminster or any where else that could have been thought of If the Goddess Themis had had any Asylum or refuge upon Earth whereunto covetous and carnal men might have had recourse in their fears with any hopes of protection in those affrighting tempests that like some kinde of lightning melted their gold and silver in their purses yea out of their purses No doubt but such desired shelter would have been made to with greatest diligence and truest endeavour Questionless in what dark or remote corner soever it had hid it self above ground men would have both sought it carefully and found it successfully Undoubtedly every one man would have told his neighbour and he another these more and by degrees all The information would so soon and luckily have propagated it self that no manner of doubt should now have remained whether such a place had been or not the path would have been more trodden to it then to any Church or Market-place in England But they knew there was none such They knew all was there of this nature while it was firm and answerable They knew those sentences were there in their kinde by the approbation of all men and Authority of the Law valid as those at Westminster Pulsa dignoscere cautus quid solidum crepet They knew Try whoso would There was that solidity Civil Laws did approve successions of Parliament had allowed the King had given leave the whole State had given allowance of those proceedings and above all the Law held them just and according to Law And so unless her self would contradict her self the head fall off from a principall member or Justice oppose Righteousness They all the Magistrates Powers Laws and Lawyers of England knew and could not but pronounce a just sentence in that Court for Tythes to be just were it for sheaf lamb fruit venison the tenth Thrave or but a Tythe-lock of wooll What a sentence did at Westminster that a decree did there What a Verdict and Judgement upon an Assise That a conclusive determination upon mature deliberation did here and What sufficient ground of Right that gave of Dominion that a man might thence claim a piece of ground or debt of money Hic codex est meus Haec domus est vestra By equall vertue of a like sentence here this due charged upon every parcel of land or herd of Cattle had declared right yea and judgement for it in order to execution Or if any would not come and submit vocetur primò secundò quòd si nec sic ad emendationem venerit Excommunicetur as tertiò leave was given in the Charter Thus as to the power intrusted with the Church I have now almost done we see what the Supream Authority gave in Commission we see what use was made of it we see what connivence or more there was of all other powers and what obedience likely but of this the less being unacquainted at Offices We cannot in short doubt but the Church made Laws about Tythes that they caused them to be done to execution that the State inabled them that the whole Civill Power more then connived or permitted appointed authorised and strengthned that power whereby was acted thus according to office and duty on one part and leave desire expectation and full trust on the other The result of all doubtless a full right a clear assured undoubted fast safe and honest title as good as Any had to Any thing and the evidence of things may discharge the superfluity of more wast words If any right were anywhere it may doubtless be reasonably thought to have been unavoidably Here Sure and Thus. There remains yet one onely thing more somewhat in intention was never quickned to full Act but was purposed to give much in little the life spirits and vertue of all before in the new intended to be purified Canon Law by Hen. 8. authority A thing often glanced at but here fit to be represented together and briefly and summarily was therefore thus The 1 25 Hen 8 19. Clergy upon casting off the yoak of forain Supremacy and submitting to that King petitioned to have the Provinciall Synods and all the Canon Law as far as of force here to be viewed and purged and this to be done by thirty two persons to be chosen by the King wherof sixteen of the Temporalty sixteen of the Clergy The King granted readily what perhaps he had willed to be asked and the persons were to be members of the present Parliament but because so great a wheel could not be brought about in so little time the Parliament sitting their desires inlarged were also granted that it might be done after and then so many Canons as should continue approved should be retained the rest as refuse cast away This was upon the matter to furnish the Spirituall Court with a new rule wherto as much of the old as would should have served the turn again but till that were done what was in being to remain and this so farre intended and minded even with an eye to this very particular that after when a 2 Provided always and be it enaed by Authority aforesaid that this Act for Recovering of Tythes ne any thing therein contained shall take force effect but only untill such time as the Kings Highnesâ—e and such other 32 persons which his Highnesse shall name and appoint for the making and establishing of such Laws as his Highnesse shall confirm and ratifie to be called the Ecclesiastical Laws of this Church of England And after the said Laws so ratified and confirmed as is aforesaid that then the Tythes to be paid to every Ecclesiâ—stical person according to such Laws and none otherwise 27 Hen. 8. chap. 20. new Law was needed for Tythes Proviso was thought as fit to be added that it should obtain but till the promised reformation In the mean while time slipping away and little or nothing done in the business under nor after Parliament there was need to have the power 1 27 Hen. 8. 15. renewed for longer date which was done once and again and so at length for the whole 2 35 Hen. 8 16. time of the Kings life K. Edw. 6. also 3 2 3 Edw. 6. 11. continued it for three years in his time All repealed by 4 1 2 Phil Mar. chap. 8. Queen Mary but revived by their 5 Elizab. 1. c. 1. Maiden Sister The fruit I find
nor were Tythes but brought into the Store-house All in the Prophets phrase to have better use made of them than I doubt commonly was For 't is the charitable intention of man the wise provision of the Law by the blessed providence of God that sets things often in a good way to honest or holy ends but the corruption of man hinders seldom does one half come to good or are the things not to abuse enough perverted how well or piously soever levelled and intended CHAP. XXIII THus for sixe successive Princes Raigns Under Hen. 5. Hen. 6. Edw. 4. Edw. 5. Rich. 3. and the wise puissant Hen. 7. nothing being heard of murmure and discontent but all in peace and silence The Canons as in Lindewood c. governed the Consistory Westminster sent to controul as often as any noise was made of extravagancy by Prohibition Some prudent Statutes as Circumspectè Agatis Articuli Cleri c. had bound their hands too that they might not send as oft as they would but when abuse called for remedy And so things went on in Harmony for justice peace and order through this intervall Laws already made were obeyed and more were not made because those that were were both for their end sufficient and set in a way to have sure execution But now in that general Earthquake when this Earth was moved and all the Inhabitants thereof though some Men stood and some Parts were not overthrown When the turbulent passions of that mighty and boisterous Prince left nothing untouched or unshaken and that some might seem at least to stand the faster other parts were thought fit to be quite pulled down yea buried and intombed under the ruines of their own glory as 't were by the fatality of Jerichoes curse Iosh 6 26. Never more to be reedified Maledictus vir ille coram Jehova qui surget ut aedificet c. yet even Then was no prejudice offered nor diminution made of this part of Ecclesiastical Revenue or Jurisdiction to bring it in a great argument of its strength that had over-lived a storm and some necessity that it was preserved when that next was chosen to be cast away But before this great work was done by himself and his son divers new sinews of strength added to confirm all that had passed before as well by clearing the right had been by 1 27 Hen. 8. 20 32 Hen. 12. 2 Edw 6. 13. some new Statutes to evidence the justice of the claim as by creating a new power to fetch them in and inabling secular persons at least to sue for them in their own Court the new Statute way Not abrogating the Ecclesiastical but giving choice of this Pointing to a new remedy besides the old as 2 So is interpreted and used and of force that of 2 Edw 6. 13. commonly understood though some doubt 3 That the claâ—se of treble damages in 2 Edw. 6 13. is to be sâ—ed in the Ecclesiasticall Court onely See Dr. Ridleys view of the Laws par 3. chap. 2. sect 5. That Customes in payment of tythes are tâ—â—able onely in the Ecclesiastical Courts was averred to be proved before by him Sect. 3 and see hereof the Proviso transcribed below rationally But for certain not destroying That utterly For the 4 And that for subtraction of any of the said tythes offerings or other duties the Parson Vicar Curate or other party in that behalf grieved may by due processe of the Kings Ecclesiastical Laws of the Church of England convent the person or persons so offending before his Ordinary or other competent Iudge of this Realm having authority to hear and determine the right of Tythes and also to compel the same person or persons offending to doe and yeeld their said duties in this behalf 27 Hen 8 12. And in case any person or persons of his or their ungodly perverse will and mind shall detain or with old any of the said tythes or offerings or part or parâ—el thereof then the person or party bring Ecclesiastical or Lay person having cause to demand or have the said tythes or offerings being thereby wronged or griâ—ved shall and may convent the person or persons so offending before the Ordinary his Commissary or other competent Minister or lawfull Iudge of the place where such wrong shall be done according to the Ecclesiastical Laws And in every such case of matter or suit the same Ordinary Commissary or other competent Minister or lawfull Iudge shall and may by vertue of this Act proceed to the examination bearing and determination of every such cause or matter ordinarily or summarily according to the course and processe of the said Ecclesiasticall Laws and thereupon may give sentence accordingly 32 Hen. 8. 7. often mention of it upon other occasions as well as this with a clause of Proviso 5 And be it enacted by the Authority aforesaid that if any person do subtract or withdraw any manner of tythes obventions profits c. that then the party so subtracting and withdrawing the same may or shall be convented in the Kings Ecclesiasticall Court by the party from whom c. to the intent the Kings Judge Ecclesiasticall shall and may then and there bear determine the same according to the Kings Ecclesiastical Laws And that it shall not be lawfull unto the Parson Vicar c. to convent or sue such withholder of tythes obventions or other duties aforesaid before any other Iudge then Ecclesiastical 2 Edw. 123. inserted to fence all from violation shews plainly that K. Henry meant what he did and none should or could cross his purpose sc though the Pope went off to keep the Church-power up and though the Abbies went down yet Tythes for the support of Religion Must Not be medled with Such power I mean as might begin and end its motion wholly within it self like the wheels of a watch that keep themselves going by help of a Spring at home needing no power from abroad not of a clock whose moving weights are without and so liable to the inconvenience of forain disturbance or as the highest sphere of all Primus Motor that keeps it self a going by it self meerly not like the inferiour that wait on superiour influences Such power and the Jurisdiction of Tythes therewith and thereby and the right of Tythes by consequent yea in Statute words expressed not needing any derivation He kept up in vigour life strength and quickness as it was of use And as well the Records preserved as other means of information obvious enough do assure that to his time through his time in it and on this side the Law continued which settles all to settle these and leave them settled an indefeasible inheritance to us their unworthy posterity And as they were left so I hope for Gods glory and the maintenance of his service and servants the labourers that bring in His Harvest they shall not but always continue to all succeeding generations For Who hath