particulars which either the Popes autoritie of later time or new Cōpositions or Grants or the like haue altered enioyed by the Churches that yet remaining had portions so anciently giuen them or by the King or his Grantees of impropriated Tithes very many of which had their chiefe originall from those arbitrarie Consecrations which you may well call Appropriations of Tithes and not from the appropriating only of Parish Churches as some out of grosse ignorance with too much confidence deliuer But thereof you may see more in the examples of the next Chapter where for most apparant proofe of the practice of arbitrarie Consecrations in those times Moniments enough are collected This arbitrarie disposition vsed by the Laitie as well de iure as the Positiue Law then receiued and practiced was as de facto is that which Wicclef rememberd in his complaint to the King and Parlament vnder Richard the second His words are A Lord God where this be reason to constrain the poor people to find a worldly Priest sometime vnable both of life and cunning in pompe and pride couetise and enuie glottonie drunkennesse and lecherie in simonie and heresie with fat Horse and iolly and gay Saddles and Bridles ringing by the way and himselfe in costly Clothes and Pelure and to suffer their wiues and children and their poor neighbours perish for hunger thirst and cold and other mischiefes of the world A Lord Iesu Christ sith within few yeeres men payed their Tithes and Offerings at their own will free to good men and able to great worship of God to profit and fairenesse of holy Church fighting in earth Where it were lawfull and needfull that a worldly Priest should destroy this holy and approued custome constraining men to leaue this freedome turning Tithes and Offerings into wicked vses But what hee calls a few yeers will fall out to be about CC. for hee wrote about the yeer M.CCC.XC With him well agrees some passages in our Yeere-bookes of the times before him As in 7. Ed. 3. fol. 5. a. Parning truly affirmes that in auncien temps deuant vn Constitution de nouelle fait per le Pape vn Patron d'un Esglise puit granter Dismes deins mesme le Paroche a vn altre Paroche And Herle there in his answer seemes to admit it cleere So also touching others as well as Patrons Lodlow Iudge of Assise in 44. Ed. 3. fol. 5. b. En auncien temps chescun home purroit graunter les Dismes de sa terre a quel Esglise il voudroit Quod verum est sayes Iudge Brooke in abridging the case But what new Constitution of the Pope is meant there by Parning some later Books tells vs that from the Councell of Lateran the first alteration of that course of arbitrarie disposition came But plainely no Councell of Lateran hath any Canon that alterd the Law in it except that vnder Alexander the third before spoken of in the end of the sixt Chapter may haue place here which indeed the Canonists will not endure vnlesse you restraine it only to ancient Feudall Tithes And they suppose euerie man might haue arbitrarily conueyed before that Councell his Feudall Tithes to what Church he would And so expressely sayes our Lindwood Ante illud Concilium benè potuerunt Laici Decimas in feudum retinere eas alteri Ecclesiae vel Monasterio dare non tamen post tempus dicti Concilij But if those which with vs talk here of the Councell of Lateran meane that vnder Alexvnder the third and apply it generally to arbitrarie Consecrations of new Tithes not feudall I doubt they are much neerer the true meaning of that Councell then any of the Canonists especially while they speake of this Kingdome for arbitrarie Consecrations before about the time of that Councell are found here infinite as presently shall be shewd But of ancient feudall Tithes howeuer they were common in other States scarce any mention at all or tast is with vs. but thereof more in the XIII Chapter And it may be that when from the Canonists some of our Lawiers had learned that feudall Tithes might haue been conueied before that Councell arbitrarily by the owner and saw withall that scarce any signe was of feupall Tithes in this Kingdom yet an abundance of old arbitrarie Consecrations the vse whereof ceased about the time of the Councell in the words of it no regard or mention being had of feudall but only Tithes in generall they concluded who sees enough why they might not that before that Councell euery man might haue arbitrarily disposed of his tithes that is such tithes as were not formerly setled by any ciuill Title But if this will not be allowd for the Law of change of those arbitarie conueiances why may it not first be that Parning by his Constitution de nouelle fait per le Pape meant that of Pope Innocent the third sent to the Archbishop of Canterburie in King Iohns time and perhaps it was soon after receiud into the Prouince of York either by imitation or through the power Legatin which the Archbishop of Canterburie commonly exercised through the whole Kingdome to command a Parochiall payment For also by the name of a Constitution newly made by the Pope some such thing rather then a Canon of a generall Councell is perhaps denoted And then why might it not happen that the Decretal of Innocent the third bearing date in the Church of Lateran should be thence denominated and that afterward those which truly vnderstanding it called it therefore a Lateran Constitution gaue cause of mistaking to others that took it for a Constitution of a generall Councell of Lateran especially too because it was about the time of the generall Councell of Lateran held vnder the same Pope that sent it of which more notice hath been taken in our Law then of any other of that name and indeed he that affirms that before the Councell of Lateran Lay owners might haue disposed their Tithes cuicunque Ecclesiae secundum meliorem deuotionem as Dyers words are speaks true enough if his words may receiue this easie interpretation that is that till about that Councell of Lateran they might haue done so not that the Councell vnder Pope Innocent restraind it but that either the next Councell of Lateran before that is vnder Alexand. the III. or the Pope by a Constitution receiued here from Rome and dated in the Church of Lateran about the time of that Councel of the yeer M.CC.XV. ordaind the contrarie so that in this last way the name of the Councell may be a note only of the time about which it was restraind not of the autoritie whence it was forbidden Perhaps those Canons of Pluralities of Exemptions of the three orders and some such more which we receiud from that Councell vnder Innocent were brought into England at once with this Decretall Epistle and if so then also it was no more strange to haue the
this time that of S. Gregorie where he admonishes the hallowing of Lent consisting of six weeks out of which the Sundayes being taken XXXVI dayes remain for the Tenth part of the yeer fractions of dayes omitted this Tenth of time he would haue vs giue to God vt in lege iubemur as his words are Domino Decimam rerum dare V. Some Canons both Pontificiall and Synodall made for the right and paiment of Tithes are attributed to the ages that fall about the midle of this time But I haue not obserud aboue one that is of any credit as referd hither neither was that euer receiud into the bodie or any old Code of the Canons That one is Prouinciall and made in the yeer D.LXXXVI in the Councell of Mascon a Bishoprique in the Diocesse of Lions where all the Bishops of King Guntherams Kingdom being present speak of reforming Ecclesiasticall customs according to an ancient example and then begin with Leges Diuinae consulentes Sacerdotibus ac Ministris Ecclesiarum pro haereditaria portione omni populo praecaeperunt Decimas fructuum suorum locis sacris praestare vt nullo labore impediti per res illegitimas spiritualibus possint vacare Ministerijs quas leges Christianorum congeries longis temporibus custodiuit intemeratas Vnde statuimus vt Decimas Ecclesiasticas omnis populus inferat quibus Sacerdotes aut in pauperum vsum aut in captiuorum redemptionem erogatis suis orationibus pacem populo ac salutem impetrent Here is no small testimonie aswell of ancient Practice in paying of them as of great Opinion for their being due But although the whole Councell hath to this day remaind with the subscriptions of the Bishops to it yet whateuer the cause was not so much as any Canon of it is found mentioned as of receiud authoritie in any of the more ancient Compilers of Synodall decrees notwithstanding that the fullest of them I meane Isidore liud long after this Councell held and hath some other Synods of the Continent of France as of Orleans of Arles of Agatha But this he mentions not The first that published it was Frier Crab in his Edition of the Councels vnder Charles the fift Yet also in some that collected the Canons since Isidore Decrees of elder time then that is are to this purpose spoken of as you may see in Iuo at the end of a Decretall of Gelasius that was Pope in the yeer CCCC XCII where these words are annext Decimas iusto ordine non tantum nobis sed maioribus nostris visum est plebibus tantum vbi sacrosancta dantur baptismata deberi This stands continued with the rest of Gelasius in the print But in an old and very fair Copie neer as ancient as Iuo remaining in the Librarie at Pauls these words begin with a coloured capitall as a seuerall Paragraph and indeed are not Gelasius his but Pope Leo's the fourth who liued aboue CCC.L. yeers after that appears plainly out of the Epistle of Gelasius whereto they are annext which Gratian hath in all sauing this according to Iuo yet cites this passage in another place by it selfe out of that Leo from whom also 't is likewise taken by Anselm and Gregorius Presbyter who haue in their collections the rest of Gelasius his Epistle according to Iuo as it is noted to the Text publisht by command of Gregory the thirteenth And in those Decrees of Gelasius that are extant touching the Church-treasurie or reuenue no mention is of other then of redditus Ecclesiae oblationes fidelium A like falshood is committed by them that attribute a Prouinciall Constitution touching the distribution of Tithes amongst the Bishops and inferior Ministers to the first Councell of Orleans held in the yeer D.VII. and that by finding som words to this purpose added to a Canon which in the printed Iuo hath a marginall reference to some Councell of Orleans It is most certain that the first Councel of Orleans hath no word of Tithes in it but speaks of the distribution only of such things as in Altario oblatione fidelium conferuntur and possessions of other like kind of Church-lands and according to that Burchard and Gratian cite it who haue also those words that Iuo there hath excepting only that of Tithes And some other Prouincials of the same place and age to the same purpose speake afterward of oblationes facultates but not a word of Tithes All which shews plainly that no such matter was euer in the first Councell of Orleans The truth is also that Iuo himself cites it not out of any Councell of Orleans but from I know not what Councell of Toledo as his Ms. copie is and as it is truly publisht in the printed book all that directs to the Councell of Orleans there being only the marginall note of du Molin a Canonist of Louain that set it forth But neither any of Orleans or Toledo hath it all as he relates it The truth is that Canon of his is made vp out of two Councels indeed the first of Orleans and the ninth of Toledo and agrees well with both sauing for so much as is expresly spoken of Tithes That which in those two had been ordaind for Offerings and other reuenues of the Church he not vnfitly applies to Tithes being a more known part of that reuenue in his time and thither draws also an old Councell of Rome as if it had spoken expresly of them writes all in no other syllables then Burchard had before deliuered with a like title of ex Concilio Toletano But this excuses not those which make the words of such a collection out of two or three old Councels applied to a later time to go for a Canon of any one of them Many such are occuring in Burchard and Iuo epecially and some in Gratian which are noted vpon their credits and in some editions placed in the times to which they attribute them licet forsan falso tali sint Pontifici vel certè tali Concilio per scriptorum incuriam adscripti as Frier Crab well admonishes A like falshood is in attributing out of the same Iuo an expresse Canon for the payment of first Fruits and Tenths to the Prouinciall Synod of Siuill held in the yeer D.CX. in these words Omnes primitias Decimas tam de pecoribus quà m de frugibus diues simul pauper Ecclesijs suis rectè offerant and a litle after Omnis rusticus artifex quisque de negotio iustam Decimationem faciat and then Si quis autem haec omnia non Decimauerit praedo Dei est fur latro maledicta quae intulit Dominus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Cain non recte diuidenti congeruntur There is litle reason to doubt but that the reference of that Canon in him to that Councell of Siuill is false The Councell of that yeer and place is
Et ideâ— praecipimus quod occasone illius praecepti nullam violentiam inferas vel inferri permittas Monachis S. Albani super Decimis spectantibus ad Ecclesiam suam de Redburne quas per XX. annos hactenus pacifice possiderunt T. meipso apud Westm. 1. die Septembris an r. n. XXIV And in like forme was a Writ sent to the Constable of Berkhamstede But this kind of Processe and all other such Writs of Scire facias either vpon Commissions returned Fines or Patents or otherwise for aught I could yet learne haue long since ceased by reason especially of that receiued Act of 18. Ed. 3. Neither since that one case of 22. Ed. 3 as I ghesse hath any vse been of an originall suit for Tithes in the Temporall Courts sauing only vpon Prohibitions and the Statutes of 32. Hen. 8. 2. Ed. 6. I say originall suit for otherwise the question of the right of Tithes incident in an Issue at the Kings suit hath since been triable in the Temporall Court and between common persons also especially if the right of Tithes vpon the Issue were but indirectly or inclusiuely in question And although it were directly the very Issue yet also it hath sometimes been tried in an Action of Trespas in the Kings Bench as you may see in Mich. 12. Ed. 2. Rot. 66. betweene Philip de Say Parson of Hodenet in Shropshire and Geffrey of Wolsele Parson of Chedleton for Tithes in Marchumle But of these things hitherto and enough The end of the Historie of Tithes A REVIEW AFter some few Copies thus halfe printed and halfe writen were dispersed and since the various Censure of vnequall Readers some of them cauilling at such Passages in it as the Autor at first thought and not without cause had been enough cleered this short Reuiew is now added wherein beside some other Confirming and Declaring Autorities by the way also and opportunely enough occurre some Admonitions briefely offered that may somewhat direct in the Vse of this Historicall truth The printed sheets could not be encreased or altered neither was it so fit after many hands had the whole that Additions inserted should make any variance from the writen part And plainly that of the Admonitions for direction in the Vse of its own nature rather required a seuerall place then was fit to haue been mixt in the bodie of the Historie In the name therefore of Goodnesse and Learning I earnestly beseech euery one that hereafter shall get it either Copied or Printed to ioine also if hee may this Reuiew with it Of the I. Chapter IN the I. § touching that of Abrahams Tithes being of the spoiles of Warre only I know many think otherwise And beside the generall name of Tithes of all reasons are drawn for their side out of those words of the Patriarch to the King of Sodom I will not take of all that is thine so much as a thred c. I neither professe to dispute it nor find I any such consequent out of that Text. And the answer to the obiection is not difficult But I adde here to those testimonies both of Iewes and ancient Fathers which I haue cited for I was willing to make their testimonies my warrant not to glosse the text with my owne interpretation or with the fancies of petie names that S. Ambrose and Eucherius Bishop of Lions call those Tithes also Decimas praedae victoriae And in one passage Eucherius hauing a plaine regard to the words of the Epistle to the Ebrews which in the vulgar are exprest by Decimas de praecipuis for the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sayes de praecipuis praedis Abraham Patriarcha Decimas legitur obtulâ—sse directing himselfe still in the conceit of the word All in Genesis according to that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the holy Epistle which both in Translations enough and in the Greek Prouerbe before rememberd denotes spoiles of Warre Yet also the same Father soon after calls them Decimas omnis substantiae suae generally but plainly shewing in his former words that he took omnis substantiae here for nothing but victoriae praedam Which it seems Philo the Iew also vnderstands where in his Anagogicall course of contemplation he saies that Abraham being the tenth degree from Sem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is consecrated Tenths to the Almightie as a thanks giuing for his victorie And Primâ—sius and old African Bishop interprets de praecipuis in the Latine text by de melioribus spolijs But some haue cauilled at my relating according to S. Hierome that were it not for the holy autoritie of the Epistle to the Ebrews it might stand indifferent whether Abraham gaue Tithes of the spoiles to Melchisedek as to a Priest or Melchisedek the Tenth of his estate to Abraham as a portion to one of his posteritie If there be a fault in that assertion I confesse I find none let them be so bold then as to tax those learned Fathers for it S. Hierome and Eucherius beside Freculphus Bishop of Lisieux and other ancient Writers that in the same syllables affirme it with S. Hierome from whom indeed Eucherius transcribed the best part of his more notable passages Somewhat may be here fitly remembred concerning two Adiuncts that belong to this Storie of Abrahams Tithing that is who Melchisedek was and where the place of his Kingdome or Salem was For the first such of the Fathers as out of the Ebrew text had the true notes of supputation of time take him to be Sem according as the opinion also was generally receiued among the old Samaritan Ebrews and diuers Iews also especially of later ages howeuer some Iews haue been long since of another opinion in their idle and rash fancies supposing him to be a bastard which they took to be the cause why his discent is not spoken of with his name others of them with the Hieraâ—its making him more then a man But also both the Hierosolymitan Targum and that other calld Ben-Vziels expressely tell vs he was Sem the sonne of Noah which some of late time also haue in Works purposely writen to that end laboured to make manifest And doubtlesse at the time of the victorie Sem was the chiefest of the familie there and either a First-born also or els had in him the right of a first borne or Priesthood by translation from his elder brother which I adde because the Rabbins and diuers other of the learned will haue it that Iaphet was the elder brother But how stands that so well with Melchisedeks being Sem if according to that old tradition both among Rabbins and Christians the Priesthood were an incident to the first-borne male Vnlesse the right of Primogeniture were transferd from Iaphet to Sem in Noahs blessing as it was to Iacob from Esau and from Câ—in it seems to Abel which must be thought on also in the taking their side
to the pore and to keepe hospitalitie as the writings of the gifts of such Parsonages and Lands do plainly declare in these Words in puram eleemosynam And as touching the Almesse that they delt and the Hospitalitie that they kept euery man knoweth that many thousands were well receiued of them and might haue been better if they had not had so many grete mens Horse to fede and had not bene ouercharged with such idle Gentlemen as were neuer out of the Abbaies And if they had any Vicarage in their hands they set in sometime some sufficient Vicar though it were but seldome to Preach and to Teach But now that all the Abbaies with their lands goods and impropried Parsonages be in Temporall mens hands I do not here tell that one halpenie worth of Almes or any other profit cometh vnto the people of those Parishes Your pretence of putting down Abbeys was to amend that was amisse in them It was farre amisse that a great part of the lands of the Abbeys which were giuen to bring vp learned men that might be Preachers to keepe Hospitalitie and to giue Almesse to the poore should be spent vpon a few superstitious Monks which gaue not XL. pound in Almesse when they should haue giuen CC. It was amisse that the Monks should haue Parsonages in their hands and deale but the XX. part thereof to the Poore and preached but ones in a yeer to them that paid the Tithes of the Parsonages It was amisse that they scarcely among XX. set not one sufficient Vicar to preach for the Tithes that they receiued But see now how it that was amisse is amended for all the godly pretense It is amended euen as the Deuill amended his Dames legge as it is in the Prouerbe when he should haue set it right he brake it quite in pieces The Monks gaue to little Almesse and set vnable persons many time in their Benifices But now where XX. pound was geuen yerely to the Poore in more than in C. places in Ingland is not one meales meat giuen This is a feare amendement Where they had alwaies one or other Vicar that either preached or hyred some to preach now is there no Vicar at all but the Fermer is Vicar and Parson altogether and onely an old cast-away Monke or Frere which can scarcely say his Mattins is hyred for XX. or XXX shillings meat and drinke yea in some places for meat and drinke alone without any wages I know and not I alone but XX.M. moâ— know more than D. Vicarages and Parsonages thus well and Gospelly serued after the new Gospell of Ingland And so the Autor goes on with sharp Admonitions to the Lay men that fed themselues fat with the Tithes of such Churches while the soules of the Parishioners sufferd great famine for want of a fit Pastor that is for want of fit maintenance for him for without that he is scarce to be hoped for But we conclude with that of the Canon Laws getting such force and making such alteration in matter of Tithes about the yeer M.CC. when through it Parochiall payment became first to be performd here or elsewhere generally and as of common right where other titles preuented it not and through it only not through the ancienter secular Lawes made here for Tithes For the suits for them in the Spirituall Courts either were all grounded vpon the Canons or the common right of Tithes was now supposed in the Libell as a knowne dutie to the Clergie without secular Law It may soon be apprehended that it was much lesse difficult about that time then any other for the Popes and their Canon Laws to gaine more obedience among subiects and execute more autoritie ouer Lay possessions when also they so easily vsurpt power ouer supreme Princes which yeelded to them For no time euer was wherein any of them more insolently bare themselues in the Empire neuer neere so insolently in England as in the continuing times next before and neere about this change And to all States the Church of Rome now grew most formidable Remember but the Excommunication and Correcton sufferd by Frederique Barbarossa Henry the sixt and other Princes of the Empire and by our Henry the second and King Iohn the stories of them are obuious And our Richard the first betweene those two to gratifie the Clergie here for their exceeding liberalitie in contribution to his Ransome from Captiuitie with great fauour gaue them an indulgent Charter of their Liberties which being ioind with those other prone and yeelding Admissions of the Ecclesiastique Gouernment ouer the Crowne â—o were the times doubtlesse gaue no small autoritie to the Exercise of the Canon Law in those things which before about that time were diuersly otherwise Neither was that part of the Canon Law which would haue a Generall and Parochiall payment of Tithes not only second to any in regard of the Clergie's profit but also none other doubtlesse was so great as it in gaining the Clergie a Direct and certain Reuenue Therefore it was not without reason on their side at such time as they saw the Power of Rome that is the autoritie of Decretals and of the Canons grew most dreadfull to Prince and subiect that they should vrge this on to a continuing practice and that with execution of the raigning Censures of the Church Hence haue the Canons in this point hitherto here continued and haue been and are binding Ecclesiastique Lawes sauing wherein the later expresse Laws of the Kingdome crosse them And thus out of the qualitie of the time with regard to the practiced insolencie of the Pope and his Clergie in putting their Canons and Decretals in execution that receiud generall practice of Parochiall payment neere almost according to the Canons and other such alterations that suddenly varied from former vse and from the libertie of the Lay subiect must haue its originall not from any want of the Canons of the Church of Rome as if they had not been here at all had or read before about that time For doubtlesse the Canon Laws were here vsed and practiced as farre forth as the Clergie could make the Laitie subiect to them For about D. yeers before this alteration good testimonie is of the publique and solemne receiuing of the Codex Canonum vetus Ecclesiae Romanae mentioned by old Popes for the eldest and most authentique Bodie of the Canon Law of the Western Church and that in a Nationall Synod held in D. C.LXX vnder Theodore and Wilfrid Archbishops where with one voice the Clergie answered Theodore Optime omnibus placet quaecunque definierunt Sanctorum Canones patrum nos quoque omnes alacri animo libentissimè seruare quibus statim sayes Theodore pâ—otuli eundem librum Canonum c. But at that time there was no Law for Tithes or mention of them in the known Canon Law of the Church of Rome or in any other Prouinciall Canons sauing in that of the second Synod of
Mascon Afterward also we find that Leges Episcopales which were serued by William the first from the Hundred and confined to the Bishops Consistorie that wee may omit the Nationall or Prouinciall Constitutions of this Kingdome made in those elder times according to the old Canons of the Church of Rome And X. yeers before Gratians Decree writen it is certaine that the Canons of the Church generally by the name of Canones and Canonum Decreta for diuers collections were of them an some also confirmd by Papall autoritie beside the Codex Vetus before that of Gratian were familiarly talkt of and vrged in that great Controuersie in the Synod of Winchester in the fourth yeere of King Stephen touching the Castles of Newarke Salisburie and the Vies where the King denied vtterly Censuram Canonum pati that is to haue it determined by them whether or no the two Bishops Roger of Salisburie and Alexander of Lincolne might lawfull keepe their Castles that they had fortified But while the rest of the Bishops stood so much vpon their Canons and euen in the face of Maiestie profest a rebellion the King and the Lay subiects it seems grew so exasperated against them that by publique command for preseruation of the libertie of the Crown and Laitie they were forbidden to be of any more vse in the Kingdom For so perhaps is that to be vnderstood as we haue elswhere noted in Iohn of Chartres where he sayes that Tempore Regis Stephani à regno iussae sunt Leges Romanae quas in Britanniam domus Venerabilis Patris Theobaldi Britanniarum Primatis asciuerat Ne quis etiam libros retineret edicto Regio prohibitum est What he calls Leges Romanae the most learnd Frier Bacon mentioning the same storie stiles Leges Italiae and takes them for the Roman Imperialls and not for the Canan Law I confesse I see not enough cleerly here to iudge vpon the words of Iohn of Chartres whether it were the Canons or the Imperialls on the one side If we say he meant that Theobald or his Clergie brought the Roman Canon Law it might so seem as if it had not been here before in the hands of the Clergie nor partly practiced by them Which doubtlesse is otherwise If on the other side we vnderstand the Imperialls Copies of which indeed might well be at that very time brought as a noueltie hither for they were then newly found and plainly in Henrie the seconds time they were here in the hands of the more curious Scholers as you may see by Iohn of Chartres his citing of them how then is that true which he presenly after saies of the encreasing power and force of those Leges Romanae Sed saith he Deo faciente eò magis virtus legis inualuit quo eam amplius nitebatur impietas infirmare What force or power at all had the Imperiall here afterward where is any signe of it But the obiection against that which might proue them not to haue been the Canon Laws may not difficultly perhaps be answered It is true that the Canons of Rome were here before and read and partly practiced in the Church But diuers Collections were of them about this age of King Stephen and perhaps some later and larger Collection might be brought hither by Archbishop Theobald or some of his Clergie which are vnderstood I think in that Domus Venerabilis Patris Theobaldi He himselfe perhaps might bring Iuo's Decree when he came from Rome in 3. of King Stephen and endeuour the strict practice of it here which the King and the Lay subiect had reason enough to dislike or some of his Clergie might perhaps afterward bring in Gratians Decree that was both compild by Gratian and confirmd by Pope Eugenius the third about ten yeers before Theobalds death that is about 16. of King Stephen And this way those words of Legis virtus inualuit may haue their truth For howeuer that opposition against the Canon Law were it is most certain that this first part of the body of it the Decree was presently vpon the first publication of it in vse in England and familiarly cited by such Diuines as talk◠of what had reference to it witnesse especially Giraldus Cambrensis in his Epistles and the practice of the Canon Law here for the time of Henrie the second is seen in the Epistles of that Iohn of Chartres which yet remain and are I think the ancientest examples of proceedings in our spirituall Courts But notwithstanding that first part of the body of the Canon Law which expresly commanded Tithes to be generally paid were here soon receiud among the Clergie yet about L. yeers after that the former course of Arbitrarie Consecrations of them continued and both that and the rest of those courses in disposition of Church-reuenues which so differ from the Canons and from the practice of this day was not fully alterd till some Decretalls came hither with more powerfull and dreadfull autoritie as the times were of some of the following Popes especially of Alexander the third and Innocent the third which two alone I think sent as many commanding Decretalls into euery Prouince as all their Predecessors had before done and especially into England as is alreadie shewd they sent diuers only for the matter of Tithes which were all first of Papall autoritie for the particular ends for which they were sent and so were obeid as Canon Law although none of them became parts of the generall Canon Law vntill Gregorie the ninth put some of them into his Decretalls autorised by him in the yeer M.CC.XXX about which time perhaps and diuers yeers before the Canon Law of Rome was not only read here priuatly among the Clergie but professed also in Schooles appropried to it so I ghesse is that close Writ of 19. Hen. 3. to be vnderstood which prohibited the holding of Scholae Legum in London it was directed to the Maior Shrifes commanding them Quod per totam Ciùitatem London Clamari faciant firmiter prohiberi ne aliquis Scolas regens de Legibus in eadem Ciuitate de caetero ibidem Leges doceat Et si aliquis ibidem fuerit huiusmodi Scolas regens ipsum fine dilatione cessare faciat T. Rege apud Basing XI die Decembris This was fiue yeers after the Decretalls published and it seems most probable that these Leges were Canon Laws perhaps mixt as vsually they were in the profession also with the Imperials for both of them were it seems studied here vnder Henrie the third by the Clergie more then any other part of learning and therefore were forbidden as being both in regard of their own autoritie against the supreme Maiestie and independencie of the Crown of England The end of the Reuiew The ancient Records and other Manuscripts Vsed in this Historie of Tithes with references to the places where they are cited and to the Offices and Libraries wherein they
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
desire of the Clergie then in other places where you shal find arbitrarie consecrations by Lay men continuing till about MCC.. For if the Bishop had not had these Tithes payd but had pretended only right in them his bountie to the Monasterie had been to litle purpose So in the Diocese of Oldenburg about MCLX. payment was duely it seems made to the Bishop by all sauing those which had improued the deserts of Wagria which could by no means be brought to it Decimas ex more soluere recusauerunt sayes Krantzius being yet readie to giue a competent part of their encrease And although Gerold the Bishop and Count Adolph ioyned together the one with perswasion wherein he pretended to them Exempla as the same Author writes Ecclesiarum omnium praesertìm proximarum and told them of Diuinum de Decimis praeceptum the other with power to make them tithe their profits yet they vtterly refused and with tumult and clamors made open profession Seruili conditioni nunquam se colla submissuros per quam omne Christicolarum genus Pontificum pressurâ laboret Neither were the Danes in those Ages easier to be brought to the payment of Tithes to the Church Indeed they so much abhorred it that no greater cause was why they barbarously betrayed and murdered their King Knout the fourth then that hee would haue imposed it And about the yeere MCLXXX vnder King Waldemur the first Absalon Bishop of Lunden would haue had them all paid their Tithes and that vnder paine of an Interdict to continue against them but they stoutly refused and answered by publique message to the Clergie That notwithstanding the Interdict they should carefully minister Diuine Seruice and Sacraments or els depart the Countrey if they did neither Non solùm rerum amissionem sed membrorum etiam truncationem demorarentur And it is well noted by Krantzius that the Northern Nations generally were very hardly brought to pay but after continuall and earnest Doctrine of the Church and command of Princes at length many of them yeelded that is as may be coniectured in the first halfe of the yeer MCC Through the frequent vse of those arbitrarie Consecrations and those Appropriations Churches with their Tithes and Tithes of seuerall possessions were in exceeding number established in Monasteries as well of Nunnes as Monkes The Tithes of LX. of LXXX or more Parishes were by those courses annext sometime to one Monasterie which the Head and Couent possessed not as any part or as pretending themselues to be any part of that Clergie which made vp the Euangelicall Priesthood or deserued them by ministring Diuine Seruice and Sacraments to the owners For indeed diuers of these appropriated Tithes were out of such lands as lay so distant from the Monasteries not in other Dioceses only but also in other Kingdomes that the owners neuer saw or knew the Monks or their Cloister nor otherwise heard of them but by their Cellarars or Prouosts that exacted payment Whereupon it was in time of our Edward the third affirmed in a petition in Parliament That Aliens which by reason of appropriations made to their Houses beyond the Seas or to their Priories or Cells in this Kingdome or the like did so deuoure the Salaries due to Parish Curats and so neglect the Diuine Seruice which they should haue taken care for in euery Parish that they did more hurt to holy Church then all the Iewes and Saracens of the world Which might haue been well applicable to some kind of Non-residence of Denizens also But the religious persons iustified their consuming this Ecclesiastique reuenue by reason only of their Prayers their Tears their Psalmes their Almes and the like exercises of Deuotion beside their maintenance of Curats with arbitrarie Salaries in the Parish-Churches appropriated to them Which is at large seene in an Epistle of Peter Abbot of Clugny to S. Bernard Abbot of the Cistercian Order at Clareuaulx about the Monks of Clugny their possessing of a large number of Parochiall Tithes The Cistercians had made diuers complaints against them and one was vpon this verie point in these words Ecclesiarum Parochialium primitiarum Decimarum possessiones quae ratio vobis contulit Cum haec omnia non ad Monachos sed ad Clericos Canonica Sanctione pertineant illis quippe quorum officij est baptizare praedicare reliqua quae ad animarum pertinent salutem gerere haec concessa sunt vt non sit eis necesse implicari saecularibus negotijs sed quia in Ecclesia laborant in Ecclesia viuant Hereto among diuers other imputations the Abbot of Clugny answers and giues his reason for their enioying of Tithes thus Quia Monachi ex maxima parte fidelium saluti inuigilant licet Sacramenta minime ministrant estimamus ipsorum primitias Decimas Oblationes quaeque beneficia eos dignè posse suscipere quoniam reliqua populo Christiano à Presbyteris that is by the Curats which they maintaind faciunt exhiberi And another of great note before this Abbots time pretends speciall charitie towards the poor for sufficient reason why Monasteries and Hermitages had Tithes giuen them Vt copiosiora saith he alimenta proficiant dantur in Monasterijs Eremis Decimae quorunque prouentuum non modo pecorum sed ornicum pariter ouorum The same reasons hold in iustifying of Appropriations to Nunneries where the persons are not capable of the Ministerie And among Examples of the Age take this one for some confirmation in these elder times of the right which Monks pretended to them In the yeere MLIX a great controuersie fell between Meginher Abbot of Herfeildi and Burchard Bishop of Halberstadt about Tithes of large Territories in Saxonie appropriated to the Abbey The Abbot stood vpon the Appropriation the Bishop vpon his Episcopall right which by the Canon Law is and anciently was the same with parochiall in places not limited to any certain Parishes The Bishops greatnesse with the Iudges of both Lawes made the Abbot so despaire of successe in the Suit that he prosecuted no further but withall summoned the Bishop to appeare before the Almightie in his Iudgement-seat within some few daies there to answer in the same Action and verie soon after departed this life Not many daies interceded but the Bishop riding towards the Court where this Suit had depended to dispatch some proceedings touching it suddainly fell from his Horse very sick and being carried into his Inne gaue most strict charge as one diuinely moued that the Abbey should haue restitution and quiet possession of those Tithes for euer and admonisht them all that were by That who euer had been parties with him in that oppression against the Abbey should by the like Iudgement from Heauen suffer as he did confessing to the two Bishops of Magdeburg and Hildenesheim then visiting him that he was now called according to the Abbots summons to answere his exaction of
yeer M. held the payment of them necessarie Decimas dare dicebat omnimodis esse superfluum inane But also other opinions he had that being against the vsuall Doctrine of the Church gaue him the name of Heretique which he kept till his miserable death This may suffice for the expresse testimonies of Opinion of this CCCC yeers touching the generall right of Tithes But although this opinion be so frequently deliuered in such termes as may denote the Tenth due by Gods Law that is as it should at first sight seem by the Diuine morall Law or the Diuine naturall Law which should bind all men and euer and are to this purpose both one ye it is plain by so much of the practice of the Laitie as the Clergie commonly allowd of and by the generall opinion of the Time that the persons held capable of them were not only the labouring Priesthood or Ministering Clergie The disposition of them in perpetual right to Monks Nunnes the poor in Hospitalls to religious orders of Knights and that out of one Prouince or Kingdome whatsoeuer into any other in this time was allowd cleerly in practice and according to that practice they were enioied And the Clergie also generally agreed that by their Canonicall forme of conueyance Tithes might be giuen although some ancient Canons were for Parochiall right to any Church to Monasteries Hospitalls reliefe of Poor or Sick that is as Iuo Bishop of Chartres being a great Canonist about M.C.XXX. in his iustifying the right of Tithes expresses it Decimas fidelium oblationes Ecclesiae so you must read and so is his Ms. copie lex caritatis communicare potest non tantum Monasterijs sed etiam Xenodochijs infirmis peregrinis For saith he licet Decimae oblationes principaliter clericali debeantur militiae potest tamen Ecclesia omne quod habet cum omnibus pauperibus habere commune But this might not be done as they would haue it by the Lay owner only For he well addes that neuerthelesse no Monasterie might by the Canons lawfully receiue a conueyance of Tithes ab illis ad quos non pertinet id est à Laicis yet you see cleerly that Monasteries and other Churches did receiue them from Lay men and continually enioyd them So that the chiefest difference twixt the Laitie and Clergie herein came to be who should dispose or conuey the Tenths according as they varied also about Inuestitures not what persons sauing in the vse of Infeodations might haue a perpetuall right in them and in that difference the Clergie yeelded so frequently in receiuing allowing and confirming arbitrarie conueyances as is before shewd of Tithes no otherwise then as of Houses or Glebe to Monks Nunnes or Churches farre distant that if they held them due to the labouring and Parochiall Minister were he Bishop or other by the Diuine morall Law they did in this no lesse then commit against their own consciences and exercise a kind of continuall and fearfull sacrilege And indeed it appears that it was expresly held against the Diuine Law to conuey Tithes to any other Church then where the owner vsed most commonly to receiue his soules food For the Clergie in a Petition to the Emperor Lewes the second in the Councell of Pauia in DCCC.LV confidently affirmed that it was generally taken that such a conueyance to another Church pro libitu was aswell diuinae Legi as sacris Canonibus contrarium But then cleerly also the chiefest practice of these CCCC yeers was herein contrarie to the Diuine Law a strange imputation to lay on the time if at lest Diuine Law there Deus praecepit and Deus constituit the like in their other pasages for Tithes denoted the Diuine Moral Law But if you so vnderstand it how could that Lex Charitatis that Iuo speaks of so dispense with it And with what colour could the Church so frequently practice against it or pretend arbitrarie Consecrations to be so meritorious But for an Interpretation of their meaning by shewing how others conceiue that Lex diuina here look in the next CCCC yeeres As for Exemptions some complaints were made against them by such as lost by them as you may see by the Monks of Clugny complaining against the Cistercians and by Peeter of Blois But out of them also may be collected that the generall Opinion of the age was not that they were due by the Diuine Morall Law Was Rome in those ancient times so bold to grant so many Dispensations expressely against the Diuine Morall Law Yet also Iohn Bishop of Chartres in those times found much fault with the Exemptions giuen to religious persons Miror saith he vt fidelium pace loquar quodnam sit quod Decimas iura aliena vsurpare non erubescunt Inquient fortè Religiosi sumus Planè Decimas soluere Religionis pars est And more to this purpose you may find in him where he tells you that these Exemptions did derogare constitutioni Diuinae But the Clergie generally was much against the vse of Infeodations of Tithes and Churches into Lay hands although it were practiced by some Bishops and Religious Houses who committed strangely if they were also of opinion that the right of Tithes was due to the Priesthood immediatly from the Morall Law Quid est enim saith Peeter Damian Decimas in vsum saecularium vertere nisi mortiferum eis virus quo pereant exhibere Hinc accidit quod plebesanis iusta detur occasio vt Matricibus suis Ecclesijs obedientiam subtrahant vt non eis legitima Decimarum persoluant And Alexander the third directed the Bishop of Amiens to decree that a gift of a Tithe by an Abbot into a Lay hand was void quoniam sanctuarium de iure haereditario possideri non debet But these are only against Conueyances of Tithes alreadie consecrated to Churches and so hallowed But such as were by their first creation infeodated to Lay men can no more be accounted in their own nature differing from other Temporall and Lay possessions then Rents-charge Estouers the tenth sheaf or the like at this day granted in fee by one Lay man to another Neither indeed was the Churches right what euer it were to her Tithes properly diminished by such Grants for if at this day the owner grant the tenth sheaf of lands titheable to a Lay man may not the Grant be good as a Charge out of the land and yet the Church there hath her right as before But the truth it seems was that in those elder times Lay men that had created a Tenth into Lay hands rarely or not at all paid any to the Church and those Infeodations once made gaue them greater pretence of with-holding what the Church demanded as if it had been enough to say they must not could not pay two Tenths out of their land and that if a Tenth were once created to any man nothing els
seulement des choses d'ont est accoustume payer Disme c. where Boerius saies he hath seen it accordingly for other places often adiudged at Paris and in an Edict of 10. Hen. 4. of France touching the payment of Tithes by those of the reformed Religion the payment is commanded only selon l'vsage coustume des lieux and accordingly diuers Arrests of Parliament also haue been And although somtimes Customes haue beene there disallowd especially de non decimando yet that hath proceeded chiefly from the vsurpation of the Canons where the secular Law was wrongfully neglected as you may see in the example of that of the Ecclesiastical court at Rhosne wherein the Laitie were compelled adreddendas Decimas de faeno aliquibus alijs de quibus apud eos inconsuetum erat reddere decimas as Maiors words are who concludes that had the Iudge been other then a Canonist he would not so haue adiudged it VII In Spaine also some infeodated Tithes from ancient time are in Lay hands which the Clergie about M.CCC.LXXX would haue had into their reuenue vnder Iohn the first of Castile and Lions but could not and in an Ordinance of the same Iohn against all such as should vsurp the right of Tithes a prouiso is that it should not extend to such Tithes or Church Reuenue as the Crowne or any subiect had from ancient time enioied And a third part of Tithes due to the King is menciond in their Laws as graunted to him from the Pope of which at his pleasure new Infeodations are made And Petrus de Lorca remembers that the Pope Regibus Hispaniae cōcessit tertiam partem Decimarum alijs secularibus absque consensu singularum Ecclesiarum among these you may reckon those Tithes in the Crowne which by graunt from the Pope King Ferdinand and Queene Isabel had in the Kingdome of Granado in consideration of their endowment of Churches there and of them and their iurisdiction whereto they are subiect thus Couaruuias an excellent Lawier of Spaine Semel saies he ex literis regijs vidi Decimarum causam tractari inter Ecclesiasticos apud Granatense Praetorium ex eo quod Reges Catholici Ferdinandus Elisabeth Decimas huius Regni Granatensis obtinuerint à Pontifice Maximo cum onere dotandi Ecclesias that is the Iudges held plea of them by Commission from the King not by spirituall power which otherwise regularly hath conisans of Tithes although another great Lawier of that Countrie denie that the Conisance of such Tithes lawfully belongs to any other iurisdiction then spirituall Neither hath the Canon Law been so powerfull there as to make Tithes payable against Customes for paiment either of a lesse part or none And howeuer in an Ordinance of the yeer M.CC.XCIV Alfonso the ninth published his mandamos y establescemos por siempre que todos los hombres del nuestro regno den sus diezmos derechamente y cumplidamente a nuestro Sennor Dios de Pan y de Vino y ganados y de todas las otras cosas que deuen dar de rechamente segun manda sancta yglesia wherein he seems to establish that whole Tithes without any Diminution should be alwaies paid to the Church of Corne Wine and Cattell and all other things which Ordinance also is exemplified and confirmed by Iohn the second of Castile and Ferdinand and Isabel and accordingly Alphonso Diaz de Montaluo his glosse on it makes it to be consonant wholly to the Canon Law and the whole course of their ancient bodie of the Law in their Partidas be agreeable with it yet the practice in that state hath been and is that if suit be commenced in the spiritual Court for new Tithes formerly not accustomed to be wholly or not all paid and such custome or prescription be pleaded and the Officiall or Ordinarie allow it not vpon complaint to the Kings Court the defendant shall as in case of Prohibitions in England haue his remedie This is declared by their Couarruuias Erit saith he obseruandum causam Decimarum quandoque in his regnis that is France and Spain tractari apud regios Auditores nempè cum Laici contendunt Decimas ab eis exigi quae legitima Temporis praescriptione which is vsually thought should be immemoriall and so is their practice although the most common time in other things be XL. yeers minime debentur sunt remissae denique conqueruntur contra morem consuetudinem Decimas ab eis exigi nam etsi condemnentur à iudice Ecclesiastico nihilominus ex quaerela causa retinetur apud Regia Praetoria Siquidem literae Regiae passim dantur à supremo Senatu ad id vt Laici non cogantur Decimas illas soluere quae solui legitimâ temporis praescriptione non consueuerunt And with him agrees Alfonso de Azeuedo that writes vpon their Ordennanças Reales But these kind of their prohibitions are grounded vpon their Ordinances forbidding Decimas a Laicis exigi quae per consuetudinem contrariam non consueuerunt solui as Couarruuias sayes and to that purpose was an Edict of their Charles the first Emperor de fift at Toledo in M.D.XXV. and another like of his at Madrid about three yeers after and before foure yeers were thence past at Segouia and another at Villadolid And vpon these oftentimes sayes Alfonso de Azeuedo Writs of Prohibition go out to the Ecclesiasticall Iudges that proceed super nouitate to forbid that similes non permittant nouitates processum causae Regio ipsi senatui originaliter mittant Which agrees with the verie words of the Ordinances that speak of Nouedades in exaction of Tithes against custome And one speciall vse is there that the Kings giue their Personall Tithes to their own Chaplains attending on them VIII Neither hath the Canon Law wrought otherwise in Italie but that there also particular Customes as well of Non Decimando as in the Modus are frequent Multis Italiae locis sayes Caietan contingit ex consuetudine that nothing at all is paid And so is the practice there for the most part at this day the Parish Priests beeing sufficiently maintained by Manse and Glebe and the reuenues that are in some places paid as according to a Modus And of the Italians and others where like Customes were Aquinas thus Haud laudabiliter ministri Ecclesiae Decimas Ecclesiae requirunt vbi sine scandalo requiri non possint propter desuetudinem vel propter aliquam aliam causam In Venice sayes Panormitan non in vita sed in morte soluuntur Decimae personales de omnibus mercantijs iocalibus alijs mobilibus And in the whole Seigniorie of Venice as my Autor deliuers no Parish Church hath through that name Decimas seu ius Decimandi but only another Stipend or Quartesium as they call it de possessionibus seu terris consistentibus
intra confines eorum curae Neither haue Infeodations of Tithes into Lay hands been lesse known in Italie then elswhere For example you may see the case of the Mutij a Noble Familie of Piacenza who had by immemoriall prescription and confirmation by Bulls an ancient Infeudation of all Tithes growing in the Territorie of Verano within the Diocese of Piacenza By the Ordinance of Frederique the second about M.CC.XX. in the Kingdomes of Naples and Sicily a command is That of all profits belonging to the Crowne of those Kingdomes a whole Tenth should be paid and that euery subiect should truly pay all such Tenths as had been vsed to be paid in the time of William King of Sicilie Subiectis are the words nostris indicimus vt Decimas quas de feudis bonis suis antecessores eorum praedicti Regis Guilielmi tempore prestiterunt venerabilibus locis quibus Decimae ipsae debentur cum integritate per soluant In Germanie the Canonists note a Custome that pro Decimis soluunt certas mensuras siue Coloni aliquid recolligant siue non And this by their Law they allow because it stands indifferent whether the Church lose by it or no. but also some Lay men take Tithes of new improuements by right of their Lordships Status Imperij saeculares sayes a Iudge of the Imperiall Chamber Decimas Noualium percipere iure Territorij possunt Which the Clergie complaind against in a Diet at Norimberg but in vaine And of those Tithes Infeodations are there made at the pleasure of the owners into Lay hands Which was so in practice there also anciently as is witnessed by an old Canonist that liud aboue CCC.LX. yeers since where disputing the question Vtrum Laicus possit sine peccato Decimas percipere and bringing the ordinarie Autorities for the negatiue part he tels vs both for Germanie and other Countries in these words In contrarium potest induci generalis consuetudo in Hispania Francia Burgundia Alemania in plerisque locis And in the Countie of Flanders an Edict was made by Charles the fift dated at Malines in M. CCCCC.XX which commanded that no Clergie or Lay man pretending right to Tithes should exact or sue for other Nouuelles Dismes aultres qu'ilz leur predecesseurs ont accustume prendre auoir passe quarante ans audessus but that they should rest content with what was due only according to the former vse of payment sauing in case of new improuements and such like as it was explaned by another Edict some ten yeers after both together are the same almost as our Statute of 2. Ed. 6. And in the Generall Councell of Lateran of M.CC.XV. a relation is of some Nations who although Christians yet secundum suos ritus Decimas de more non soluunt and that other men leased their Land to them because in regard of no Tithe being paid by them the greater rent might be reserued against which remedie is there prouided The words are In aliquibus regionibus quaedam permixtae sunt gentes quae secundum suos ritus Decimas de more non soluunt quamuis censeantur nomine Christiano c. Whereupon Innocent the fourth that might well know the meaning of the Councell liuing so neer it notes that the Christians who by their own customs did not pay were Greeks Armenians and the like and Antoninus expresly remembers the generall non payment of them in the Eastern Church as a thing not to be censured to be against Gods Law Neiher indeed haue I met with any Canon Law of all that Church that euer commanded any thing touching Tithes Among the Laws of Hungarie we find Decimas non soluunt Nobiles de proprijs terris and Decimas non soluunt Rasciani Rutheni Valachi and Decimas non soluunt Iudices propter laborem eorum circa decimandum although for other persons generally they haue strict Laws for payment of them In the Statutes of Poland it appears that about M.CCC.LXX vnder K. Cazimir the second the Clergie especially for the Diocese of Cracow made diuers Laws with his consent vpon great differences about the paying of Tithes One in speciall is that Tithe must be paid of all that increases through the labour of the Plough exceptis Rapis papauere caulibus cepis allio quae his sunt similia in hortis and Si quis ligonisando plantauerit Decima ab eo nullatenùs exigatur Some other particulars they haue about paying Tithe of Hemp and Flax which happens somtime to be more somtime lesse then a Tenth because the certaintie is only from the number of beasts vsd to the plough and of other things whence it appears that the vse of Tithing there is not consonant to the Canon Law And Theodor Zawake deliuers it for a Law of this Countrie that Decimae ex terris vastatis accipi non debent which I think is to be referd to a thirtie yeers libertie of non payment giuen especially by Bodantza Bishop of Cracow to such as were Tenants of Lands lately wasted by the Lituanians and Tartars which is declared in the Law remaining at large in the Collections of Herbort and Prilusius whither for more particulars I refer you In the Laws of Suethland and Gothland the Text is Decimae separentur reponantur in agro quarum tertiam partem suscipiat presbyter de reliquis duabus partibus capiat Ecclesia tertiam partem which I vnderstand so that the Parson is to haue all sauing a third part out of the two parts which were to be imploied on maintenance of the Church In Scotland by a Law of Dauid the second about M.CCC.XL it was constituted that no man should hinder the Clergie in disposing Tithes Sic quod suis Decimis possint pacificè cum integritate gaudere sub paena Excommunicationis quoad Clerum Decem librarum penes Regem And Tithes there haue been and in many places are paid Parochially yet also granted altered and disposed of by positiue Law as in other Countries in the late plantation of new Churches ordaind by the last Parliament there manse and glebe and vitaile are assigned for maintenance to the Rectors but not Tithes And after the Statut of Annexation in the eleuenth Parliament of our present Soueraign whereby Church reuenues sauing Parochiall Tithes Manse and small glebe and some other speciall possession were resumed to the Crown an Act was made in the Parliament following against a kind of infeodations which they call erections of temporalties and teindes of Kirkland into temporall Lordships sauing such as had been before erected And for the particular course of setting out payment of Tithes some speciall Lawes of late time they haue in Scotland and in the other States before spoken of but they belong not so much hither being not of the essentiall part of the practice of payment nor of the receiued right
of Tithes therefore I wholly omit them One example of an Appropriation in Scotland may be here not vntimely added which falls about the yeer M.CC.XC and shews a kind of arbitrarie disposition euen at that time of Parochiall Tithes of lands lying there in a conueyance of a lay mans made to the Monasterie of Giseburn in Yorkeshire The Grantor was that Robert de Bruis afterward King one of the Ancestors of our Soueraign The Originall thus speaks Omnibus ad quos presens scriptum peruenerit Robertus filius Roberti de Brus Dominus Vallis Anandiae salutem in Domino sempiternam Nouerit vniuersitas vestra me concessisse praesenti scripto confirmâsse Deo Ecclesiae Sanctae Mariae de Giseburn Canonicis ibidem Deo seruientibus seruituris Ecclesiam de Anand cum terris Decimis possessionibus ad eam pertinentibus Ecclesiam de Logmaban cum terris Decimis possessionibus ad eam pertinentibus Ecclesiam de Kirkpatric cum Capella de Logan omnibus suis pertinentijs Ecclesiam de Rainpatric Ecclesiam de Cumbartres Ecclesiam de Greâ—enhowe cum omnibus pertinentijs earum Tenendum Habendum Deo praefatis Canonicis eorum successoribus liberè quietè honorifice Ita quod liceat eis perpetuis temporibus de Decimis praedictarum Villarum libere disponere ordinare pro voluntate sua cuicunque voluerint eas ad firmam dimittere dare vel vendere alio quocunque modo voluerint vbicunque voluerint commodum suum facere sine Impedimento mei haeredum meorum hominum nostrorum c. The seale in green wax annext to it hath impression of a Knight armd and mounted as for present onset in the wars is circumscribed with Esto Ferox vt Leo. How the Laws of Ireland stand for Tithes is best seen in the Statuts of that Countrie of 28. Hen. 8. cap 17. of dissolutions and 33. Hen. 8. cap. 12. of payment according to ancient custom and recouerie of Tithes after the dissolution giuen into lay hands in like manner as in England And here may be no vnfit place to remember that ancient Law ordained by Henrie the third within the Archbishoprique of Dublin whereby it was commanded that euery man non expectato mandato Regis vel assensu de gurgitibuâ— Piscarijs Ecclesijs in quarum Parochijs sunt praedicti gurgites vel piscariae Decimas soluant quia R. non vult in periculum animae suae huiusmodi Decimas detineant We purposely omit particular mention of such of the reformed Churches as in this last age haue brought their Ministerie to stipends and alterd almost all the former practice of Ecclesiastique policie For the practice of payment and other disposition of Tithes and for the Laws and Opinions touching the right of them thus much But whateuer this Kingdom of England might haue specially afforded for Laws and practice of Tithing shall by it selfe in its own singular order be next deliuered CAP. VIII The Laws of England made in the Saxon mycel synodes or Æ¿itenagemotes in Parliaments and in the Councells here held either Nationall or Prouinciall or by the Pope for the due payment or discharge of Tithes in this Kingdom Petitions or Bills in Parliament touching them are inserted all in their course of time MOst of the English Laws Constitutions and Bills in Parliament that are reserud to this place and here collected were originally writen in Saxon Latin or French and the Saxon for the most part were anciently but it seems since the Norman conquest turnd into a barbarous latin that yet better shews their meaning then a purer Such as are found in Latin only I haue faithfully deliuered according to the Copies that gaue them Neither durst I suspect that any Reader fit for the matter should need an Interpreter no otherwise haue I done in what is of the old French it can hardly be any thing but inexcusable sloth that can trouble any Reader that is fit also for the matter in the vnderstanding it But in regard the old Saxon is known at all to few and that hardly any better interpretation of the Laws writen in that language can be then the old barbarous Latin I haue ioined alwaies where it might be both the Saxon and the Translation To haue left out the originall had preuented some freedom of the Readers iudgement and tied it to the translators to haue added no translation had been as a purpose to haue troubled euen the fittest Readers with a strange tongue which also to haue otherwise interpreted had been but to enuie them the help of those Ancients that had better means to know the interpretation of those Laws and so make them looke only as through spectacles of mine new made I was willing to giue all as the course of the collection would permit that herein might help to make a ground of free iudgement yet also where I see cause of note I adde it but refer all to able censure The Laws and Constitutions thus succeed I. An ancient collection of diuers Canons writen about the time of Henrie the first with this inscription of equall age Incipiunt excerptiones Domini Eâ—gberri Archiepiscopi Eburace Ciuitatis de iure Sacerdotali hath these words Vt vnusquisque Sacerdos cunctos sibi pertinentes erudiat vt sciant qualitèr Decimas totius facultatis Ecclesijs diuinis debitè offerant and immediatly follows Vt ipsi Sacerdotes à populis suscipiant Decimas nomina eorum quicunque dederint scripta habeant secundum autoritatem Canonicam coram testibus diuidant ad ornamentum Ecclesiae primam eligant partem scundam autem ad vsum pauperum atque peregrinorum per eorum manus misericorditèr cum omni humilitate dispensent tertiam verò sibimet ipsis Sacerdotes reseruent If the credit of this be valued by the inscription then is it about DCCC.L. yeers old For that Ecbert liud Archbishop of York from the yeer DCCXLIII to DCC.LXVII But the autorite of that Title must vndergo censure Who euer made it supposed that Ecbert gathered that Law and the rest ioind with it out of some former Church Constitutions neither doth the name excerptiones denote otherwise But in that collection som whole Constitutions occur in the same syllbles as they are in the Capitularies of Charles the Great as that of vnicuique Ecclesiae vnus mansque integer c. and some others which could not be known to Ecbert that died in the last yeer of Pipin father to Charles how came be then by that and how may we beleeu that Ecbert was the autor of any part of those Excerptions vnlesse you excuse it with that vse of the midle times which often inserted into one body and vnder one name Laws of different ages but admit that yet what is secundum Canonicam autoritatem coram testibus diuidant The ancientest Canonica autoritas for
transcriber who also in one place hath Oswaldus for Aelfwaldus King of Northumberland But those which speak of that Synod of these Legats seeme to suppose it extending through the whole Kingdome See also § VIII III. In the Laws made between K. Alfred and Guthrun the Dane to whom the Prouinces of East-Anglia and Northumberland were giuen to hold of the Crown and renewd also between the same Guthrun and K. Edward sonne to Alfred about the yeer D.CCCC. this occurres Gif hÆ¿a Teoþunge forheold gylde lashlite mid Denum Æ¿ite mid Englum that is as the old Latin Translation hath it Si quis Decimam contrateneat reddat Lashlite cum Dacis Witam cum Anglis Lashlite denotes the Danish common forfeiture which as it is thought was in most offences XII Ores that was commonly XX. shillings for XX. pence made an Ore commonly and sometime according to the variation of the Standerd XVI pence was an Ore But in Oxfordshire specially and Glocestershire in Domes-day XX. goe to an Ore as the English common forfeiture or the Wite was XXX shillings The occurrence of these two names is frequent in the Saxon Laws and it may seem by this that some other Law preceded for the payment of Tithes or els that the right of them was otherwise supposed cleer For the autoritie of this and the rest comprehended in those of Alfred and Guthrun obserue that in their title ða Æ¿itan eac ðe syþþan Æ¿aeron oft Unseldan ê§ sealf geâ—â—Æ¿odon mid gode gehyhton that is and the Wisemen or the Baronage of succeeding times very often renewed that Councell of theirs and in bonum adduxerunt as in the old Translation those last words are turned IIII. It is reported of King Aethelulph that in the yeer D. CCC.LV Decumauit as Ethelward writes de omni possessione sua in partem Domini in vniuerso regimine sui principatus sic constituit The words of his Charter whereby he did it are Cum Concilio Episcoporum ac Principum meorum Consilium salubre atque vniforme remedium hee means remedie against those miseries which the English had endured by Danish irruptions affirmantes consensimus vt aliquam portionem terrarum haereditariam antea possidentibus omnibus gradibus siue famulis famulabus Dei Deo seruientibus siue Laicis miseris semper Decimam mansionem vbi minimum sit tum Decimam partem omnium bonorum in libertatem perpetuam donari Sanctae Ecclesiae dijudicaui vt sit tuta munita ab omnibus saecularibus seruitutibus c. So is it reported in the Abbot of Crowlands Historie and varies not much in William of Malmesburie and Nicholas of Glocester who both haue it also at large But in Mathew of Westminster no other Decima is mentioned in it then Decima terrae Meae Out of the corrupted Language it is hard to collect what the exact meaning of it was How most of the Ancients vnderstand it is best known by the words wherein they summe it Ingulphus thus of it Omnium Praelatorum ac Principum suorum qui sub ipso varijs Prouincijs totius Angliae praeerant gratuito consensu tunc primò cum Decimis omnium terrarum ac bonorum aliorum siue catallorum vniuersam dotauit Ecclesiam Anglicanam per suum Regium Chirographum And hee tells vs further that Aethelulph in the presence of his Baronage at Winchester offerd the Charter vpon the Altar and the Bishops receiued it sent it to be published in euery Parish Church through their Diocesos In Florence of Worcester it is in these words abbreuiated Aethelulphus Rex Decimam totius Regni sui partem ab omni Regali seruitio tributo liberauit in sempiterno grophio in Cruce Christi pro redemptione animae suae antecessorum suorum vni trino Deo immolauit So also Roger of Houeden An old French fragment of the English Historie sayes that hee dismast la dime hide de tute Westsaxe and that it was pur pesire vestre les pouures The old Archdeacon of Huntingdon thus Totam terram suam ad opus Ecclesiarum decumauit propter amorem Dei redemptionem sui And in the rythmes of Robert of Glocester The King to holye Chirche thereafter euer the more drough And tithed well all his lond as he ought well enough If we well consider the words of the chiefest of these Ancients that is Ingulphus we may coniecture that the purpose of the Charter was to make a generall grant of Tithes payable freely and discharged from all kind of exactions vsed in that time according as the Monk of Malmesburie Iohn Pike in his supplement of the Historie of England expresse it Decimam say they omnium hydarum infra regnum suum à tributis exactionibus regijs liberam Deo donauit that is granted the Tithe of the profits of all Lands free from all exactions for the granting of the tenth part of the Hides or Plough-lands denotes the tenth of all profits growing in them as well as Decima acra sicut aratrum peragrabit which is vsed for tithing of the profits in the Laws of K. Edgar Ethelred and Knout and accordingly also is this of Ethelulph related in the Saxon Chronicles of Peterborough Canterbury and Abingdon he did tithe his landes ofer all his rice gode to lofe c. as the words are that is his Lands ouer all his Kingdom c. and doubtlesse Ingulphus no otherwise vnderstood it then of perpetuall right of Tithes giuen to the Church where he remembers it by tunc primo cum Decimis c. So that the tithe of prediall or mixt profits was giuen it seems perpetually by the King with consent of his States both Secular and Ecclesiastique and the tithe of euery mans personall possessions were at that time also expresly included in the gift because it seems before that the payment of all Tithes had commonly been omitted The ancientest of Writers that hath the Charter whole is that Ingulphus but questionlesse it is much corrupted especially in that of portionem terrarum hereditariam antea possidentibus omnibus gradibus for what may that signifie But in Matthew of Westminster it is farthest from deprauation of language where after portionem follows terrae meae Deo Beatae Mariae omnibus Sanctis iure perpetuo possidendam concedam Decimam scilicet partem terrae meae vt sit tuta c. the priuilege or libertie annext to it is that it should not be only free from all taxes and exactions vsed then in the State but also from that trinoda necessitas whereto all Lands whatsoeuer were subiect although otherwise of most free tenure by which they ment their expeditio or militarie seruice pontis extructio arcis munitio this freedom of that time you must it seems so interpret that euery man was from henceforth to be valued in all Subsidies and Taxes according only to
Libell That appeares frequently in our Yeer-books where the Issues taken vpon Parochiall Limits are reported But wee may here not vntimely remember an occurrence in the Petitions of the Parlament of 33. Ed. 1. touching the Tithes of Cornwall challenged by the Parsons and Vicars there De Personis Vicarijs sayes the entrie petentibus Decimam in Cornubia vbi Rex soluit annuatim Episcopo Exoniensi pro Decima praedicta ita responsum est Fiat sicut consueuit tempore Comitis Regis The Earle and the King there meant are that great Richard and Henry the third But this must not be vnderstood of the Tithes generally in the Countie although the words might import as much as if the Bishop had receiud them all It was doubtlesse for the Tithe of the Stannaries only For it is true that the Bishop of Exceter had the Tithe of the profits or rent of the Stannaries there anciently giuen and paid him and thereof testimonie enough is vpon record and to that purpose also is that Marginall Note in the Book of those Parlaments Stagmen Cornubiae cleerely that goes for the Stannum Cornubiae as Stagminatores for those of the Works For the time of Edward the third and Richard the second beside that of the Tithes of Silua caedua or Copis Wood whereof enough before in the Laws that belong to it you may remember those complaints of Chaucers Plowman against the Clergie of his age Their Tithing and their Offering both They clemeth it by possession Thereof nil they none forgo But robben men by ransome And then of Parish-Rectors For the Tithing of a Ducke Or an Apple or an Aye They make men swere vpon a Boke Thus they foulen Christs fay And He woll haue Tithing and Offering Maugre whosoeuer it grutch And in the Freres Tale And small Tithers they were foule yshent before the Archdeacon To these for Personall Tithes you may adde that of Mortuaries payable in Beasts regularly before the Statute of 21. Hen. 8. which were reputed due vpon the generall presumption of euery Defuncts negligence in payment of his Personall Tithes The Mortuarie was therefore by the Canons to bee presented with the body at the Buriall as a satisfaction of omission and negligence in paying to the Church those Personall Duties And thence was it stiled Corse-present according whereto I haue seen a Iustification in the Eire of Derby of 4. Ed. 3. to an Action of Trespas brought by Thomas of Goustill against the Parson of Whitwell for the taking of a Horse in which the defendant pleades that it was the Horse of one I. Leyer his Parishioner that died Et que le dit Chiual ensemblement oue autres choses fust mesnes present al Esglise come en nosme de Mortuarie deuant le corps mesme le iour c. il come Parson les prist resceut auxi come custome de la terre de Seint Esglise est c. These shew plainly the receiued and acknowledged Parochiall right in the practice of those times which hath to this day continued neither is it at all necessarie to adde more for the vniforme continuance of it Sauing only that where any Statute hath made a discharge or Prescription or Custome hath setled a Modus Decimandi or certain quantitie payable though neuer so little for the Tithe there by the Laws of the Kingdome the owner is not bound to pay other Tithe then the Statute or Custome or Prescription binds him to Which yet must be so vnderstood in the case of Lay men that Custome or Prescription founded in their possessions as Lay cannot wholly discharge the Tithe or be de non Decimando but may well be de modo only otherwise is it in the case of spiritual persons that may by the common Law be by Prescription wholly discharged and prescribe de non Decimando And this is regularly cleer Law But at what time this Parochiall and common right became first setled with vs in practice is not so cleerly known and though those Decretals before cited suppose it a thing of custom here in Henry the II. his time yet if credit might be giuen to the report of those English Monks which as wee haue before related referd the ordaining of Parochiall right in Tithes to the Generall Councell of Lions held vnder Gregorie the tenth then wee might conclude the right of it no ancienter then about the beginning of our Edward the first But whateuer they meant it is certaine that some both Synodall and secular Lawes of this Kingdome had before that time ordained this right Yet indeed it will be found that the Practice of it here as also in other Countries was not setled till some M.CC. yeers after Christ or at lest was for many yeers before some after discontinued Which may partly be collected out of that Decretall of Pope Innocent the third sent into this Kingdome and dated in the Lateran which is before at large in the Chapter of Laws § XXIII For howeuer the recitals are in those of Alexander the third the one speaking of Generalis institutio for Parochiall payment which as it may denote common custome so also may be vnderstood for some Law of the Kingdome as that of Edgars Knouts the Confessors or some other before related the other of Consueuerint Ecclesijs quibus debentur which doth not of necessitie include a generall practice of Parochiall payment but may as well denote the dutie that comes from arbitrarie Consecrations of which in the next Chapter it is most certain that before about the yeer M.CC. after Christ that is about the time of King Iohn it was most commonly practised by the Laitie to make arbitrarie Consecrations of the Tithes of their possessions to what Monasterie or Church they would sometimes giuing halfe sometimes a third part and at their pleasure all in perpetuall right or otherwise according to the nature of those Consecrations in other Countries of which enough is before related Neither doth expresse testimonie hereof want in that Decretall of Innocent the third made against these kind of arbitrarie Consecrations Multi saith hee in Diocesi tua that is the Prouince of Canterburie Decimas suas pro sua distribuunt voluntate Neither may you vnderstand it as if it had bin done by the waiward opposition of some only against the receiud and allowd Laws of the Kingdome For notwithstanding all those Ordinances both Secular and Synodall anciently here made for due payment it is cleer that in the time before about that Innocent it was not only vsuall in fact for Lay men to conuey the right of their Tithes as Rents-charge or the like to what Church or Monasterie they made choice of but by the course and practice of the Law also of that time both Common and Canon as it was here in vse such conueyances were cleerly good and what was through them so acquired was continually and is to this day except some
out of those of Font-Euerard in Normandie diuers Churches and Parishes were annext by Grant and Confirmation to the new Companie and also Tithes seuerally as Deeima de Fortesbiria de Wadhulla c. Manerium de Etona cum Decima de dominio medietate Decimae rusticorum Manerium de Chelstamstona cum Decima eiusdem Manerij c. Decimam de Ingafelot de Godingeflot cum omni iure Parochiali Decima de Hamsteda cum omni iure Parochiali and diuers other such Henrie the second grants and confirmes to the Monks of Thetford in Norfolke Decimam de Bradleia Decimam de Offitona Decimam de Florendona Decimam de Moledona and manie other such without mention of Churches or Chappels with them yet in the same Charter diuers Churches of other places are by themselues conueyed or confirmed William the first giues to the Church of Westminster Decimam de Wic de eadem parte quae ad me pertinebat atque iterùm reddidi eandem partem eis iniustè ablatam quam R. Edwardus antea dederat Then seuerally follows diuers Appropriations of Churches This was in the second of his raigne Henrie the second giues to the Church of Sarum diuers Churches with Tithes and among them Ecclesiam de Durneforda cum terris Decimis quas Walterus filius Richardi Isabella de Toeni reliqui aduocati eiusdem Ecclesiae ei dederunt omnes Decimas de Noua Foresta de Panetot de Bucholt de Andeuera de Husburna omnibus Forestis meis de Wilteshire de Dorseta de Berkshire de omnibus rebus scilicet de firma de Pasnagio de Herbagio de Vaccis de Caseis de Porcis de equabus omnes Decimas de omni Venatione praedictarum Forestarum excepta Decima illius Venationis quae capta fuerit cum stabilia in Foresta de Windleshora c. What the Bishop had yeerly by reason of this Grant may be seen in Rot. Claus. 5. Hen. 3. Membran 14. And for Grants from the Kings of the Tithe of Venison other examples are obuious as of the Forests of Essex to the Bishop of London by King Iohn and of others anciently of the Tithe of the Venison taken in the Forests in Northamptonshire to the Abbot of Burie to omit that of Henrie the first his Grant of the Tithe of all his Venison taken in Yorkeshire to the Abbot of York which occurres in the Eire of the Forest of Pickering In a Charter of Henrie the first many Tithes are granted and confirmed to the Priorie of Mountague in Somersetshire as Duae partes Decimarum de Atford Decima de Crimoc medietas Decimorum de Ciselberg de Clafford de Northon iuxta Taunton Decimae dominij de Merston de Hetecumb de Candel de Torp de Cernel item de Cernel de tertio Cernel c. Henrie the first graunted to the Canons of Cambridge Decimas de dominio meo de Cantebrigia Ecclesiam S. Egidij c. About 3. Hen. 1. Manasses Arsio renewd his Charter to the Abbey of Fischamp in Normandie and gaue them apud Sobrinton de suo dominio duas garbas Decimae suae and so in diuers other Mannors Dedit Decimas de cunctis denarijs suis de pullis equarum suarum de Vitulis de Ouibus de Caseis de Lana Decimas de omnibus rebus suis Decimas de omnibus hominibus supradictarum villarum All which was confirmed by the King It seemes that in Decimas de omnibus rebus the Corne was excepted according to the first Limitation of his Grant II. To these might he added more out of the Rolls especially of Exemplifications or Confirmations But the store is large that is alreadie deliuered And to conclude it obserue this most notable testimonie in a Writ of the Register and in Fitzherbert that had reference to the common vse of those arbitrarie Grants out of demesne Lands at the owners pleasure without vnderstanding of which vse I shall doubt no man throughly vnderstands the Writ nor the true ground of any Writ de aduocatione Decimarum It is a singular example and as I remember not seconded or specially noted elsewhere in our Law books and therefore I transcribe it whole Rex tali Iudici salutem Monstrauit nobis venerabilis Pater H. Lincolniensis Episcopus quod cum I. praecentor Ecclesiae Beatae Mariae Lincoln teneat de dono suo omnes Decimas Dominicarum terrarum suarum vel Dominici sui de N. quas idem Episcopus praedecessores sui Episcopi loci praedicti liberè conferre consueuerunt Prior Beatae Katharinae extra Lincoln clamans Decimas illas pertinere ad Ecclesiam suam de B. trahit eum inde in placitum c. Et quia placitum praedictum tangit Coronam dignitatem nostram praesertim cum collatio earundem Decimarum ad nos possit deuolui ratione custodiae vel Escaetae quia etiam consimiles Decimas conferimus in quibusdam Dominicis similiter quamplures magnates regni nostri in Dominicis suis vobis prohibemus ne placitum illud teneatis in Curia Christianitatis nec aliquid quod in derogationem Regiae dignitatis nostrae cedere valeat in hac parte attentetis seu per alios attentari faciatis quouismodo Teste c. What can the intent of this be other then that the Bishop the King and manie other Grandes of the Kingdome did vsually grant or collate the Tithes of their Demesnes which because they were so grantable at the owners will were by the meaning of this Writ exempted from the Spirituall Iurisdiction But thereof more anon Perhaps the Writ is immediatly to be vnderstood of Tithes collated in like sort as a Church so that he which collated them had aduocationem Decimarum which appeares also in the Register as any other conferring a Church had Ecclesiae aduocationem If not so whence could the collation of these Tithes haue originall sauing only from the making them seuerally a kind of Benefice vnder the name of Decimae seperatae that is annext to no Church as the Marginall note in the Register well calls them by arbitrarie Grant at first of the owner no otherwise then a Church was made a Benefice to be bestowd by the arbitrarie Ordinance of the Patron at the foundation Cleerly had not the vse of conueyance of Tithes seuerally by Grant preceded in practice it could not haue been that Quamplures magnate regni as the Writ sayes might Decimas liberè conferre in dominicis suis. Tithes alone could neuer haue been collated like a Benefice had they not been first founded or created as a Benefice And the Writ might seeme indeed to beare euen the character of the time wherein that vse of arbitrarie Grants of Tithes was known as of common practice which I vnderstand to be about King
in lands of the Crown are at the arbitrarie disposition of the King such places haue been and I think are in diuers Forests And hereof saies Thorp in 22. Assis. pl. 75. Il soleit estre ley quant il auer certane place qui fuit hors de chescun Paroche come en Englewode huiusmodi en tel case le Roy ad doit auer les dismes de cest place nient l' Euesque de lieu a granter a que luy plest and relates further that the Archbishop that yeer made suit to the Councell to haue had such Tithes But vnder fauor this was vnderstood only of the Kings granting the tithes of his Demesnes occupied by his Bailifes according as in ancient time euery man els did for whateuer the words seeme to import Thorp speaks only of such lands of the possession of the Crown in which case it must not perhaps be vnderstood so much a part of the Royall prerogatiue as a right due to the King by common Law in regard of his possession of lands not limited to any Parish Neither doth he affirm that Tithes of such places are due to be paid to the Crown but that they are in the King to grant at his pleasure if growing in his demesnes But to this purpose is a notable case in the Parliament rolls of 18. Ed. 1. where Ralph Bishop of Carleol Petit versus Ecclesiae Priorem de Karliel Decimas duarum placearum terrae of the new assarts in the Forest of Inglewood whereof the one is called Linthwait the other Kirkthwait Quae sunt infra limites Parochiae Ecclesiae suae de Aspaterike c. and laies by praescription in his predecessors the Tithes of the pannage there before the assarting or culture Henrie of Burton also Parson of Thoresby claimed in Parliament the same Tithes as belonging to his Church and infra limites Parochiae suae and the Prior comes saies that Henricê° Rex vetus Henrie the first it seems concessit Deo Ecclesiae suae Beatae Mariae Karliel omnes Decimas de omnibus terris quas in culturam redigeret infra Forestam inde eos feoffauit per quoddam cornu eburneum quod dedit Ecclesiae suae praedictae c. Whereupon the Kings Attorney Dicit quod Decimae praedictae pertinent ad Regem non ad alium quia sunt infra bundas Forestae de Inglewood quod Rex in Foresta sua praedicta potest villas aedificare Ecclesias construere terras assartare Ecclesias illas cum Decimis terrarum illarum pro voluntate sua cuicunque voluerit conferre eò quod Foresta illa non est infra Limites alicuius Parochiae c. Et petit quod Decimae illae Domino Regi remaneant prout de iure debent ratione praedicta c. Et quia Dominus Rex super praemissis vult certiorari vt vnicuique tribuatur quod suum est William of Vesci Iustice of the Forest beyond Trent and Thomas of Normanuill his Escheator for those parts for so was the diuision anciently of Escheatorships were assigned Commissioners to enquire of the truth certificent Regem ad proximum Parlamentum c. So are the words of the Record Where the Attorney challenges not the right by prerogatiue but only in regard that the place being the demesne Land of the Crowne not assigned to any Parish the Tithes are grantable by the King as owner at his pleasure And so it well agrees both with that liberty challenged by King Iohn in the name of his Baronage that they might found new Churches at their pleasure in their owne fees before the establishment of Parochiall right in Tithes as also with the more ancient practice of the Kingdom whereby Tithes might not be parochially exacted nor were so reputed due but by the owners arbitrarily conueyed in perpetuall right And whereas Herle in 7. Ed. 3. fol. 5. a. sayes generally That no man might arbitrarily giue his Tithes that are not within Parochiall Limits but that the Bishop of the Diocesse should haue them It seems he spake suddenly as out of the Canon Law and not according to the Law of England And hee addes that it is against reason Que home ne purra my granter ses almoignes a que il vouldra And but two yeeres before that of Herle it was adiudged in the Kings Bench Quod de Decimis grossis Priori de Carleol praedecessoribus suis de dominicis Domini Regis infra Forestam de Inglewood prouenientibus extra quaruncunque Parochiarum Limites existentibus per Cartam progenitorum Domini Regis nunc concessis per Cartam ipsius D. R. nunc confirmatis c. a Prohibition should be granted against the Bishop of Carleol that claymed them It was vpon a Record sent thither out of the Parlament as in the Roll appeares largely And Edward the first gaue such Tithes of the Forest of Dene as encreased not within any Parish to the Bishop of Landaff by which title the Bishop afterward claymed them and no question was of that point But for common or waste ground the Parish whereof is not known the Statute of 2. Ed. 6. hath giuen the Tithe cattell therein depasturing to the Church within whose Parish the owner dwelleth CAP. XII I. Appropriations and Collations of Tithes with Churches The Corporations to which the Appropriations were made presented for the most part Vicars Thence the most of perpetuall Vicarages II. How Churches and Tithes by Appropriation were anciently conueyed from Lay-Patrons The vse of Inuestitures practiced by Lay-Patrons III. Grants of Rents or Annuities by Patrons only out of their Churches Of the Bishops assent More of Inuestitures A Writ to the Archdeacon anciently sometime sent vpon recouerie of a Presentment IV. Of haereditarie succession in Churches V. Laps vpon default of Presentation grounded vpon the generall Councell of Lateran held in 25. Hen. 2. What Praesentare ad Ecclesiam is originally Donatio Ecclesiae I. AS by Consecrations seuerally so with Churches in Appropriations Tithes were frequently conueyed and by expresse name as Ecclesia de N. cum Decimis or the like are vsually giuen Monachis Monialibus c. ibidem Deo seruientibus c. according to what is before noted of other Countries But this Mention of Tithes with Churches in Appropriations was rare or not at all till after the Normans In the Saxon times many appropriated Churches are found and that from between D.CC. and D.CCC. yeers since till the Normans but the Charters that conueyed or confirmed them haue vsually nothing but Ecclesias and so many Carues or Yard Lands or so much rent annext to them nor speaking at all of any Tithes transferd with them For speciall examples of such ancient Appropriations you may see the recitalls of the Charters of King Bertulph King Beored and King Edred made to the Abbey of Crowland and inserted in Ingulphus But after the Normans in Appropriations
most commonly the Church is exprest Vna cum Decima that is the Tithe annext or consecrated to it in annona or in other kind and the places sometimes are named where the encrease of the Tithe grew Such examples are very obuious especially in the Chartularies of Abingdon and Rochester And as is before noted the most common intent allowd also by Canonicall confirmation which sometime but rarely was added in those elder ages was that the Corporation whereto the Appropriation was made should put Clerks or Vicars in the Churches so conueyed to them which were to answer to them for all temporall profits as Tithes and other reuenues although the Churches were distant many hundred miles sometimes from the Monasteries for a Church in one Kingdome also was often appropriated to a Monasterie of another and to the Ordinarie for spirituall function The generall Confirmations that are sometimes found of that time make it manifest and for the two Prouinces it is not amisse to adde here these two examples of it In 17. Will. 1. Thomas Archbishop of York makes a generall Confirmation to the Priorie of Durham of all Churches either then appropriated to them or thereafter to be appropriated and grants and commands Vt omnes Ecclesias suas in manu sua teneat quietè eas possideant Vicarios suos in eis liberè ponant qui mihi successoribus meis de cura tantum intendant animarum ipsis vero de omnibus caeteris Eleemosynis Beneficijs So vnder Henry the second Pope Lucius the third writes to all the Monks in the Prouince of Canterburie and bids them that in all Churches in quibus praesentationem habetis cum vacauerint Diocesanis Episcopis Clericos idoneos praesentetis qui illis de spiritualibus vobis de temporalibus debeant respondere Where that in quibus praesentationem habetis can bee vnderstood only of Churches appropriated which they enioied not pleno iure that is in which they were bound to allow some competent reuenue to a Vicar or Curat and had not exempt iurisdiction nor the power of institution of Vicars without presentation to the Bishop as is plainly known from what followes touching the answering for the Temporalties to the Monasteries And in those times as is alreadie deliuered it was most frequent to haue presentations made by Monasteries to their appropriated Churches and the Vicar-Incumbents or Presentees had no more of the profits notwithstanding the institution then the Monasteries would arbitrarily allow them Neither followd any disappropriation vpon such Presentation howeuer the later Law be taken otherwise Nor was there any perpetuall certaintie of profits or reuenues to their Presentees vntill such time as the Monks by composition with the Ordinaries or by their owne Ordinance which prescription after confirmed appointed some yeerly salarie in Tithes or Glebe or Rent seuerally for the perpetuall maintenance of the Cure which Salaries became afterward perpetuall Vicarages And to these testimonies touching appropriated Churches in those ancient times and presentation to them you may also adde that Canon of the Councell of Westminster held in the second of King Iohn by Hubert Archbishop of Canterburie to the same purpose wherewith is agreeing also one of Othobons Legatine Constitutions touching filling of Appropriations and making of Vicarages as also the two Statuts of 15. Rich. 2. cap. 6. 4. Hen. 4. cap. 12. touching the point of which Statut a Bill in the next Parliament was again put in but answered with Soient les Statuts en faitez gardez II. In those elder Appropriations it appears that the Church and the Tithes and what else was ioind with it as part of the assigned reuenue by the practice of the time passed in point of interest from the Patron by his gift which oftentimes was by liuerie of a book or a knife on the Altar not otherwise then freehold conueid by his deed liuerie Neither was confirmation or assent of the Ordinarie as it seems necessarie as of later time Obserue this one example of the Church of Waldren appropriated to the Priorie of Lewes in Sussex by Robert of Dene wherin he as Patron appoints also the conditions to which the Presentee or Vicar-encumbent of the Priorie should be subiect Ego Robertus de Dena saies the Deed vxor mea Sibilia pro animabê° antecessorum nostrorum pro salute nostra successorum nastrorum concedimus Deo S. Pancratio Latisaquensi Ecclesiam de Waldrena cum terris Decimis omnibus ad eam pertinentibus cum duabus partibus Decimae bladorum de Caluindona ita videlicet vt Sacerdos de Waldrena de his omnibus soluat S. Pancratio singulis annis dimidiam marcam argenti Ipse autem Sacerdos per manum Prioris S. Pancratij Ecclesiam de Waldrena tenebit quamdiù castè religiose vixerit Quod si crimen incurrerit iudicio Prioris Latisaquensis corrigetur aut expelletur This about the time of Henrie the second was made coram duobus Hundredis apud Hundestuph Very many other are extant so made as well by common persons as the King in the Saxon times of churches and since of Churches and Tithes without any confirmations sauing sometimes that those of common persons are ratified by the King as supreme Lord as also they are too by other Lords for it was not vnvsuall for Tenants to haue their Lords confirme their alienations of all kind of possessions I know what is said in the later Law of the Kings power as suprem Ordinarie for the part of Iurisdiction and I acknowledge it as all ought but in those elder times that was not the matter which made appropriations good where his confirmation had place and none was from the Bishop at least it cannot at all be proued that his suprem Iurisdiction spirituall was so much thought of in them although otherwise apparant testimonie be of the exercise of such iurisdiction of the right of it in the elder ages in this Kingdome But the reason of appropriations so practiced by lay Patrons only was the challenged right which in those times they most commonly vsed in disposition of their Churches as if they had been all Donatiues by collation without presentation that is by Inuestiture from their own hands only which gaue their Incumbents reall possession of the Tithe of the Church and all the reuenues no lesse then presentation institution and induction doe at this day For howeuer not only the Decrees both of the Pope and generall Councells were anciently against that kind of inuestiture but also the Prouinciall or Nationall Synods here held had like Canons forbidding it as in 3. Hen. 1. the Councell of Westminster held vnder Anselme Archbishop of Canterburie Girard of Yorke ordains Ne Monachi Ecclesias nisi per Episcopos accipiant and in 25. Hen. 1. at the same place in the Nationall Synod held by Cardinall Iohn de Crema the Popes Legat
owne Countrie neither in his age were the particulars of practice of the time before that Lateran Councell or of the time of creation of Infeodations in other places enough known among Lawiers I adde only one note out of Bracton that may touch Tithes infeodated or turnd anciently here into Lay fee and conclude this matter He speaking of Land demised and recouered by the Legatarie tells vs some opinion was of his time that such Land after the recouerie iterum incipit esse Laicum feodum non ante quod non erit de Decimis cum semel efficiantur Laicum feodum nunquam reincipient esse Decimae haec vera sunt secundum R. alios Did not he here suppose Lay infeodations of Tithes in England let the Reader iudge By the way I note that passage is corrupted in the print The beginning is Item for Iterum and that R. alios which I think stands for Roger de Thurkelby a great Iudge of that time is Biastos but according to my Ms. Bracton I haue thus alterd it You may consider also if some Infeodations came not out of Lay mens enioying of whole Churches with their possessions about the Norman Conquest it is frequent in Domesday to find that such a Lay man tenet Ecclesiam of such a place and sold it to such a one and in the claimes of Yorkeshire there the Entrie is super Ecclesiam S. Mariae de Moselege habet Rex medietatem eleemosynae festorum S. Mariae quae iacet ad Wackefeld Omne aliud habet Ilbertus Presbyter qui Ecclesiae seruit c. Where Tithes were in that time annext by cōtinuance of payment or Consecration to Churches perhaps they might in like manner as these Offerings or whole Churches come into the Lay hands but I leaue this to the iudgement of my Reader And hereof thus much II. Now for Exemptions or discharge from payment we haue anciently had them here and still retain some of them in the practiced Law and that originally either by Priuileges Prescription or Grants and Compositions and Vnitie of possession The Priuileges haue been either such as were specially allowd and limited to the Orders of the Templars Hospitalars and Cistercians by the Generall Councell of Lateran held in 17. of King Iohn of which more particular narration is before made or by new Bulls for the discharge of this or that Monasterie or Order at the Popes pleasure By reason of the first kind of priuilege those three Orders held their Lands discharged of payment so long as they manured them in their own occupation at least all such Lands as they had purchased before the Generall Councell and by the second kind sometimes whole Orders were discharged as for example that Bull to the Praemonstratenses in general giuen by Pope Innocent the third grants them that of their own culture or other improuments they should pay none Sometimes speciall Monasteries as in that of the same Pope to the Abbey of Chertsey De noualibus verò quae proprijs manibus aut sumptibus colitis aut de vestrorum animalium nutrimentis siue de hortis virgultis aut piscationibus vestris nullus à vobis Decimas exigere vel extorquere praesumat sed eas eleemosynae aut pauperibus Monasterij vestri iuxta quod tu fili Abbas postulasti à nobis praecepimus assignari What force by the common Laws of this Kingdom such a Papall priuilege in ancient time alone had I abstain here to dispute and although other examples enough might out of originalls be brought of the like yet I touch not any of them neither lest vnawares I might giue occasion of some priuat controuersie But they had their force in the Canon Law here and being so allowd in allegations against Libels for Tithes were strengthened also at length especially those which were of the ancientest with prescription of time in so much that from them originally diuers Lands of dissolued Monasteries remain to this day discharged of payment But in 2. Hen. 4. cap. 4. an Act of Parliament is made against those of the Cistercians here which purchased Bulls of Exemption for their demised Lands and those of the Order and others putting such Bulls in execution are made thereby subiect to the punishment containd in the Statut of 13. Rich. 2. of Praemunire Discharges by immemoriall Praescription of paying no Tithes of things commonly and of their nature titheable nor any thing in lieu of them are by the later common Law since their Parochiall right established about the time of King Iohn allowd only to spirituall persons but to no Lay man The Laitie being since that time held incapable of Tithes both by pernancie sauing in such a speciall case where continuall consideration was giuen to the Church as in that Case before of Herne and Pigot in their own right as also by discharge vpon bare prescription alone sauing only in Cases within the Statuts of Dissolution of 31. Hen. 8. and 1. Ed. 6. and the Statut of 32. Hen. 8. that warrants common Infeodations of them and so is the practiced Law of this day For by those Statuts lay Patentees of lands or Tithes haue like priuilege of discharge and title as the spirituall persons whose Corporations were by them dissolued before the dissolution enioied Of the Hospitalars dissolued in 32. Hen. 8. I purposely abstain to speak To this of Prescription may be added that of Vnitie of Possession For if any Religious house dissolued in 31. Hen. 8. held the Rectorie of Dale Lands in the Parish immemorially paying no Tithes this Vnitie discharges also the Patentees at this day in such sort as the Monasteries were discharged But by Compositions and Grants euery man as well Lay as Spirituall by the common Law before the Statut of 13. of Elizabeth made against Leases and Grants of Parsons might be discharged of Tithes as if the Parson Patron and Ordinarie ioind in it to the Parishioner either for consideration continuing as in reall Composition or for other arbitrarie causes not appearing to posteritie as in Grants by all three or rather in Grants by the Parson and Confirmations by the Patron Ordinarie And it is prouided by the Statut of 2. Ed. 6. cap. 13. tha no person shall be sued or otherwise compelled to yeeld giue or pay any manner of Tithes for any Mannors Lands Tenements or Hereditaments which by the Laws and Statuts of this Realm or by any Priuilege or Prescription are not chargeable with the payment of any such Tithes or that be discharged by any Composition reall But although a Lay man may not be discharged of all payment by meer Prescription vnlesse he begin the Prescription in a Spirituall person yet for diminishing the Quota in payment only of a lesse then the Tenth he may prescribe that is De modo decimandi and to that purpose an immemoriall custome of a whole Town or Mannor holds place
at this day So was the Law anciently also Beside these discharges some may here expect that part of our Laws which with vs as the Philippine in France and the Carolines in Spain discharge some things from payment of Tithes and seem to permit some customs de non Decimando But for that matter so much as vpon consideration was thought fit to be sparingly said of it is referd to the passages in the next Chapter that touches ancient prohibitions de non Decimando Neither indeed doth that part of our English customs belong to the title of Exemption or Discharge for Exemption and Discharge are properly singular rights to this or that person or Land and against the currant of the practiced Law but those things touching which any such prohibitions de non c. by our Law should be granted are supposed generally according to the reasons and practice of the Laws of England of their own nature not titheable So that not so much a discharge is found in that course as a preuention of an vnlawfull charge which the Canons would lay vpon that which the Laws of the Kingdom account not at all in its own nature chargeable But thereof somewhat more anon CAP. XIV I. The iurisdiction of Ecclesiastique causes in the Saxon times exercised by the Shrife and the Bishop in the Countie Court and among them that of Tithes also was then to haue been there determind The Bishops Consistorie seuered from the Countie Court by William the first II. After the Normans Originall suits for Tithes were aswell in the Temporall Courts as in the Spirituall and that continued till Henrie the second or about King Iohn III. Of the time since about King Iohn or Henrie the second Of the Indicauit and the Writ of right of Aduowson of Tithes What the Law was in an Indicauit before that Statut of Westm. 2. A touch of ancient Prohibitions De non Decimando IV. Writs of Scire facias for Tithes Enquests taken vpon Commission to enquire of the right of Tithes V. Fines leuied of Tithes in the time of Richard the first of King Iohn and Henrie the third vpon Writs of right of Aduowson VI. Scire facias by the Patentees against the pernor of Tithes granted by the King VII Command of paiment by the Kings Writ And of Tithes in Forests Triall of the right of Tithes incident in some issues AS a corollarie to the former parts that directly concerne the payment or consecration of Tithes we thought fit to adde here in the Conclusion of the Treatise the Historie also but only the Historie of the iurisdiction of Tithes in this Kingdom It is cleer by the practiced cōmon Law both of this day as also of the ancientest times that we haue in our yeer books that regularly the iurisdiction of spiritual Tithes that is of the direct and originall question of their right belongs I thinke as in all other States of Christendom properly to the Ecclesiasticall Court and the later Statuts that haue giuen remedie for Tithes infeodated from the Crown after the Dissolution leaue also the ancient right of Iurisdiction of Tithes to the Ecclesiastique Courts But how the difference of Ages hath herein bin amongst vs is litle enough known euen to them which see more then vulgarly In declaration thereof we shall aptly deuide the time tripartitly into that of the Saxons that from the Normans till about Henrie the second and what intercedes from thence till this day I. In the Saxon times a iurisdiction of Ecclesiastique causes among which you may reckon that of Tithes although not much signe of it in exacting payment of them appears in the moniments of that age was exercised iointly by the Bishop of the Diocese and by the Shrife or Alderman of the sciregemot or Hundred or Countie Court where they both sate the one to giue Godes right the other for ƿuruldes right that is the one to iudge according to the Laws of the Kingdom the other to direct according to Diuinitie and in the Laws made for Tithes by K. Edgar and K. Knout you see vpon default of paiment it is ordaind that the Bishop and the Kings Bailife or Shirife with the Bailife of the Lord of the Land should see that iust restitution should be made particulars of the exercise of this kind of iurisdiction I haue not seen But at the Norman Conquest this kind of holding Ecclesiastique pleas in the Hundred or Countie Court was taken away Remember that as at this day most of the Pleas Ecclesiastique are in the Ordinaries Court within the Diocese so most suits in the secular or common Law were Viscontiel and held in the Countie or Hundred Court of the Shrife in those ancienter times which may best be obserued out of one of the books of Ely the most especiall moniment that is extant for the holding of Pleas in the Saxon times That alteration at the Norman Conquest was by a Law made by the Conqueror and directed to all Tenants in the Diocese of Remy that was first Bishop of Lincoln whither his See was then translated from Dorchester and although it be sent in the direction by name to them only yet it seems it grew afterward to be a generall Law no otherwise then the Statut of Circumspectè agatis that hath speciall reference only to the Bishop of Norwich The words of it as they are recorded are Sciatis vos omnes caeteri mei fideles qui in Anglia manent quod Episcopales leges quae non benè secundum sanctorum Canonum praecepta vsque ad mea tempora in regno Anglorum fuerunt communi Consilio Archiepiscoporum meorum caeterorum Episcoporum Abbatum omnium Principum Regni mei emendandas iudicaui Proptereà mando Regiâ autoritate praecipio vt nullus Episcopus vel Archidiaconus de legibus Episcopalibus amplius in Hundret placita teneant nec causam quae ad regimen animarum pertinet ad iudicium secularium hominum adducant sed quicunque secundum Episcopales leges de quacunque causa vel culpa interpellatus fuerit ad locum quem ad hoc Episcopus elegerit nominauerit veniat ibique de causa sua respondeat non secundum Hundret sed secundum Canones Episcopales leges rectum Deo Episcopo suo faciat Which I rather transcribe here because also it seems to giue the originall of the Bishops Cosistorie as it sits with vs diuided from the Hundred or Countie-Court wherewith in the Saxon time it was ioyned And in the same Law of his is further added Hoc etiam defendo vt nullus Laicus homo de legibus quae ad Episcopum pertinent se intromittat c. II. Afterward vnder the succeeding Princes till about Henrie the second it seemes that the Iurisdiction of Tithes was exercised in both Courts as well Secular as Spirituall and that by originall suit not only in the one by the first instance
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
remain they are specially therefore here collected that the more learned Reader being perhaps out of his owne Studies furnished with the most or all of what we haue out of printed Testimonies may at one view without pains of reading the whole be directed to all of them I presumd he might wish for such a collection which was neither difficult for me to make nor will it be hard for any man that hereafter transcribes or Prints it to alter the numbers of the Pages according to his transcribed or printed Copie the Margine will easily help him Wâ—th these I reckon also that book of Parlaments for the most part of the time of Ed. 1. remaining in the hands of that courteous and worthy Gentleman Mr. I. Borough it is cited pag. 285.286.366.367 Records in the Tower of London Of the time of King Ethelbert p. 252. William the first pag. 351.413.483 William the 2. p. 416. Henrie the first p. 325.352.353.417 Henrie the 2. p. 350.351.445 King Iohn chap 2. § 8. p. 352 353.387.4â—5 Henrie the 3. chap. 6. § 2. pag. 194 265.267.284.286.352.358.391.4â—3.435.436.437.444.445.446.491 Edward the first p 364.435.438 Edward the 2. p. 368.436 Edward the 3. p. 106.176.237.238.239.240.241.436.441.442.443 Henrie the 4. p. 242 3â—3 Henrie the fift p. 369. Wâ—th these I reckon also that book of Parlaments for the most part of the time of Ed. 1. remaining in the hands of that courteous and worthy Gentleman Mr. I. Borough it is cited pag. 285.286.366.367 In the Office of Receipt of the Exchequer The Booke of Domesday p. 203.216.279.280.281.361.405.483 Records of the time of Richard the first p. 374.381.386 King Iohn p. 382.383.384.439 440. Edward the first p. 366 367·389.390.332 Edward the second p. 448. Edward the third p. 363. In the Office of the Kings Remembrancer The Red Booke of the Exchequer pag. 227. In the Princes Librarie King Knouts Laws pag. 223.224 It is a most ancientest and perfit Copie of them in Latin In the publique Librarie of Oxford Ioannes Anglicus his Historia Aurea pag. 275. The Legend of the Lord and Parson of Cometon at the end of Iohannes de Grandisono his life of Thomas Becket ibid. An Epistle of the Vniuersitie touching Personall Tithes to the Conuocation of the Clergie p. 171. Thomas Elmham Prior of Lenton his Chronicle of Henrie the fift Chap. 1. § 4. In the Inner Temple Librarie The yeeres of Edward the second at large pag 481. In the Librarie at Paules Iuo his Decreta Chap. 5. § 5. twice In Sir Robert Cottons Librarie Chartularies or Leiger-bookes of the Church of Vtrecht chap. 5. § 2. in marg chap. 6. § 2. Abbey of Abingdon chap. 5. § 3. p. 208.282.298.299 c. to 306.419.420.482 Church of Worcester chap. 5. § 3. Church of Landaff or Tile p. 250. in margine Priorie of Gisburn p. 272.308.441 Church of Rochester p. 282.310 c. to 318. Abbey of Reding p. 283.284 319. Abbey of Osney pag. 306.307.308.357.397.398.399.400.401.402 Nunnerie of Clerkenwell p. 319. Nunnerie of Chartris pag. 363. Abbey of S. Albons p. 324.325 to 329.447 Priorie of Bosgraue p. 330. to 334.397 Priorie of S. Needs p. 334.378 Hospitall of S. Leonards p. 336.337 Priorie of Merton p. 440. A most ancient copie of the Synod of 742. held vnder Carloman bound with a Ms. Ansegisus chap. 5. § 3. Fridegodus pag. 271. And a Bull of Lucius the second in the same Volume pag. 97 Bernardus Morlanensis pag. 118 Iuo's Epistles pag. 125 A Volume of Decretall Epistles wherein are the most of those in Appendix Concilij Lateranensis pag. 145. 161 Henry Knighton Abbot of Leicester his Historie pag. 147.484 Excerptiones Ecberti Arch. Eboracensis pag. 196.197 Nicholas of Glocester pag. 204 and a French fragment in the same Volume pag. 205 Robert of Glocester pag. 206 Iohn Pike pag. 206 Saxon Chronicles of Peterborough Abingdon Canterburie pag. 206. Statuta Synodorum pag. 210.211.212.263.264 Saxon Lawes in Saxon pag. 213.219 222. And an old Exhortation in one of the Volumer of them in 8. chap. 5. § 6. Historia Iornallensis writen by Iohn Brampton pag. 213.214.215.219.222.223 Saxon Laws in Latin p. 214 Bede in Saxon p. 253.259.271.276 Fleta p. 216.428 The storie of the Church of Landaff pag. 250. and a Councell of the yeer 816. vsed in pag. 261. 277. and some Decrees of Odo Archbishop of Cantâ—rburie are bound vp with it cited pag. 217. And in the same Volume the life of S. Cadoc pag. 276 A Councell vnder King Ethelred pag. 220.221.222 A Booke full of late collections out of some Saxon and Latine Moniments of this Kingdome in a large 4. pag. 225.226.227 Lanfranks Epistles pag. 227 Regularis Concordia Monachorum c. pag. 263 Fulcardus Dorobernensis pag. 272. and in the same Volume a Bull of Gregorie the ninth and a Charter of Athelstan cited pag. 271. 272. and a Writ to the Shiriffe of Yorke about Tithes pag. 417 Turgotus Prior Dunelmensis pag. 276. The life of Saint Cuthbert pag. 282. Thomas Sprot a Monk of Canterburie p. 321.322.323.397 Petrus Blesensis his continuance of Ingulphus p. 323 Matthew Paris his liues of the Abbots of S. Albons p. 329 Originall Instruments remaining there pag. 193.338.339 to 350.359.373.379.414.415 Anselmes Epistles pag. 376.377 the published copie wants verie manie Giralaus Cambrensis his Symbolum electorum p. 382.383.490 Matriculus Ecclesiarum in Archidiacon Leicest p. 385 Radulphus de Diceto p. 388.389 The ancientest Booke of Ely p. 412. The Epistles of Robert Grossetest p 430. 431. The historie of Lichfield p. 482 Gulielmus Pictauensis his life of William the first p. 483. It is now on the Presse at Paris with other things belonging to Normandie In the Librarie of Mr. Tho. Allen of Glocester Hall Robert of Glocester pag. 206 Annales of the Monasterie of Burton pag. 216.229 in margin 232 266.422.429.433 And in that Volume are bound Constitutiones cuiusdam Episcopi cited pag. 231. Turgotus Dunelmensis pag. 229. in marg 276. In Mr. Patrik Yongs Librarie Theodore Balsamon vpon the Councels and some Canonicall Epistles in Greeke pag. 463 In my own hands Our Prouinciall Constitutions in course of time p. 236 A Book of Constitutions and other things belonging to the Church of Yorke pag. 337. 418. And a Reference is in page 232. to one of the Constitutions of the same Prouince that I long since found in the Librarie of Mr. Henrie Sauill The Eire of Darby of 4. of Edward the third pag. â—87 Roger of Houeden pag. 202 Exposition of old Law-termes pag. 216. An English Penitentiall to direct Priests in Auricular Confession pag. 169 Two of those commonly calld Bretons much corrupted in the Print pag. 390 Bracton much corrupted also in the Print pag. 405 Faults committed in the Print PAge 93. l. 10. Epistles p. 125. l. 21. Ecclesia and l. 22. lege Sed ita se habet etiam editio secunda Iuonis autorem verò prima in eo loco vsus esse videtur atque eam recte in