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
Churches the Cure being there serued by some Monke or Vicar instituted vpon the presentation of them which had the granted portions made those portions at length also in many places be reputed for Parochiall Tithes due in regard of those Parochiall Chappell 's But what course soeuer they took it seems certain that the Titles deriud from Lay consecrations were after this third CCCC yeers carefully conceald by the Possessors in such publike records of their reuenues as were of more common and open vse in their legall proceedings at the Canon Law howeuer they remaind still in their ancienter and more secret Chartularies and with vs I haue very rarely scarce at all seen an Instrument of them in their Lieger books or otherwise writen in a hand that is later then King Iohns time the most are before him But I haue seen Catalogues of the time of Henrie the third and Edward the first of many large portions of Tithes that doubtlesse came first from arbitrarie Consecrations and that through most of the Dioceses of England wherein not the least mention is of any Grantor only possession is rememberd and that by prescription was to be iustified Some Titles also I haue seen made to Tithes in Libells of the time of Henrie the third especially in the Lieger books of Reading Osney and Pipewell but in none of them euer any deriud from Consecrations Neither indeed in that ancientest Formularie of the Canon Law I mean Durand that liued about CCC.L. yeers since is any other Libell for Tithes then such as make the Title Canonicall None that touches Lay consecrations which diuers yeers before his time became as much concealed in legall proceedings of the Canon Law as they had been in the more ancient times desired and hunted after by such as were enricht by them This of arbitarie Consecrations I presume is like strange Doctrine to most men it may well be for the truth of it I think was neuer before so much as pointed at by any that hath writen of any part of our subiect But I doubt not but euery vnderstanding Reader will think these things here now shortly noted on them to deserue his consideration which I desire him also to referre to the XI Chapter and also let him apply to them the Admonitions toucht presently in Appropriations For Appropriations which are in the 3. § they consisted as you see there in the XII Chapter for the purpose either in conueying Parish Churches appropriated with Tithes setled in them somtimes by a continuance of paiment sometimes by Consecrations or by both or of Churches that were then appropriated when according to the vse of the time none or few Tithes were paid to them yet afterward in the hands of the Monks or such like when the Canons for paiment of Tithes came into force got Parochiall paiment to be made to them or thirdly in passing of Tithes formerly created and in esse So that as by Consecrations Tithes newly created were setled in Monasteries and the like so by Appropriations Churches with Tithes in esse or with the pretended right to them and Tithes alone but formerly in esse were conueid to them The whole Appropriation of Tithes with Churches or Churches alone we shew in that ancienter time was made by the Patron The Churches with Tithes by the name of Ecclesia cum Decimis when Tithes were paid to it was in point of interest giuen by him And many more Churches haue been so appropriated then by the later and more known course Neither I think haue many new Appropriations been since made not many in regard of the number of the other But deserues not this then another kind of consideration then is commonly dreamt on among them which make Tithes due by the Diuine Morall Law to the Euangelicall Priesthood if they be so what had the Patron as Patron were he either Temporall or Spirituall to doe with them in conueying them to Monks Friers Nunnes poor people in Hospitals none of these by that name are of the Priesthood and that way they were so equally due to the ministring Priesthood before the Patrons title to the Church that what euer he could do after he were Patron although also his act were confirmd by whom you will could not at all it seems touch them or conuey them from him that should afterward exercise the spirituall function of the Church Consider Tithes so due and how could any Monasterie deriue to it selfe any Title to that selfe same Tithe that was so due to the Priesthood And if it had not the selfe same Tithe but by prescription or other ciuill Title hauing the glebe of a Church had also a profit by the name of Tithe as annext to the Church no otherwise then other Lay endowments for no man can doubt but that any kind of persons may inioy a profit vnder the name of Tithe or Tenth aswell as a Rent of the Ninth part or of the Eleuenth who then is it that now detains the Tithe due by the Diuine Morall Law in cases of Appropriations doth the Monasterie or those which haue such appropriated Tithes by conueyance from it or rather doth not the Parishioner that is bound to whatsoeuer is by that Law due although he pay neuer so many other Tenths due only by some ciuill Title or by that Opinion is not he that receiues the appropriated Tithe bound to pay a Tenth of it to the Minister and the Parishioner a Tenth of his Nine parts I affirme nothing here it is no place for me to do it But let these things be first considerable to euery one that talks of Appropriations and concludes Tithes due iure diuino morali And for Lay mens right to the appropriated Tithes that is such as did either vest in the Monasteries by Appropriations or at least haue been enioied by reason of them let him examine it rather thus may that which either Grant or Prescription or other ciuill Title once setled and so euen consecrated to God and holy vses although abusd be afterward prophaned to Lay hands But it is a grosse error to make it cleer as many do that if Tithes be not due to the Priesthood iure diuino morali then Appropriated Tithes may be still possessed with good conscience by Lay men and that if otherwise then they may not For though they be not due so yet is the consecration of them in the Appropriation nothing for if they be not due so then it will be cleer I think to all that they might passe in the Appropriation as other things subiect to the Titles of humane and positiue Law The many execrations annext to the deeds of conueyance of them and pourd forth against such as should dâ—uert them to prophan vses should be also thought on and let them remember also who saies that it is a Destruction for a man to deuoure what is consecrated To what we haue here of Episcopall right pretended to Tithes especially in Germanie of
their children also and in the gouernment of the King that was declared by Samuel it is said He will take the tenth of your Vineyards and giue it to his chiefe Seruants and to his Officers But where shall you find the least mention of Infeodations made of such kind of Tenths or any touch of them in the complaints of the Clergie against Infeodations and withall nothing hath beene of lesse practice then giuing away in perpetuall right any such reuenue due to any Crowne or State only by speciall right of Supreme Maiestie But admit these had their originall this way or any other as you will vnlesse they can be proud to haue been made of the verie selfe same Tithe which is due to the ministring Priesthood which can neuer been downe sauing only where the infeodated Tithe was at first receiud and possessest by the Church by force of the Law of Tithing not by arbitrary Consecration in which case also it is considerable whether a Lay man could be at all capable of the fructus only of them if due by an immediat expresse Law of God I see not how they shuld more preuent Parochial paiment to the ministring Priest then the paiment of rents in Terragies or quantities in Corn vnder the name of tiths to landâ—ards shuld diminish the right of the spirituall Tithe which way had either such a fift as was Pharohs or the tenth spoken of by Samuel to be taken by the King touched the Tithe due by a superior or former law to the Leuitical Priesthood both might wel haue stood together might not so nay should not so Tithes remain paiable froÌ„ the possessors of the nine parts to the Euangelical Priesthood notwithstanding infeodations or any reseruations whatsoeuer if they be due by a superior or former Laws especially if due by the Morall Law and that Law should bee vrged rather against the Tenants of the Land then against the Pernors of the feudall Tithes And that common distinction of the Canonists of ius percipiendi fructus Decimarum here is a mere shift and nothing satisfies vnlesse they could also teach vs how the fructus were the verie selfe same alwaies in Infeodations and that they were deriued from a ius percipiendi in some Clergie man Perhaps too much of these things which are litle or nothing applicable to England where we haue scarce any example of a Tithe that was in its nature feodall other then in such as were taken from Monasteries by the Statuts of Dissolution and may still be calld as originally by the name of Consecrated or Appropriated Tithes although now Infeodated But thereof see the XIII Chapter To the 5. § that speaks of Exemptions for matter of story may be added that of the Hospitalars After their exemptions giuen them with the two other Orders about the yeer MCLX. in the Eastern parts they tam Domino Patriarchae quam caeteris Ecclesiarum Praelatis multas tam super Parochiali iure quam super iure Decimationum caeperunt inferre molestas c. and receiud such as were excommunicat for non-paiment of them De praedijs autem suis vniuersis redditibus quocunque iure ad eos deuolutis omninò Decimas negabant Where by the way note that in this Eastern Church which after Hierusalem was recouered and made a Kingdome subiect to Western Princes should haue been fashiond according to the Canons of the Western Church Tithes were now appointed paiable although no authentike Law of that old Eastern Church once mentions them But both in this and other things the people of that Church were stil notwithstanding the new Kingdome of Hierusalem possessed by Europians and the Popes authority extended to them most obstinate refractarie against the policie and Institutions offerd them either in command or example from the Western After the Opinions of the age in the 6. § the Laws both Imperiall Prouinciall and Pontificiall follow in the 7. vpon which let it bee considerd whether a consecration of Tithes were so made by the power and law of the Church and Common wealth or both in seuerall Territories according to the Laws extended that no prophanation or detaining them or any part of them might afterwards be lawfull and the like should be carefully thought on in the 1. § of the VII Chapter and in the VIII Chapter which hath the Lawes of England for the same purpose The force of the words of all those Laws the Autoritie that made them and the Territories to which they were extended are especially to be obserud by euerie one that here looks after humane positiue Law For manie talke and write of that and tell vs here of ius Ecclesiasticum at least if they faile in their Arguments from Ius diuinum but whence that Ius Ecclesiasticum is and where or when made they little enough know For what hath a Prouinciall Councell of one Nation to doe with another What hath the Imperialls of the old French Empire to doe with England Nay what hath the Popes Decrees to do here But because there was a time when their autority was more largely acknowledged their Decrees that bred much of what now iustly continues in some States which also iustly now denie their autoritie remaine most obseruable and wee haue giuen them in their places Of the VII Chapter IN the last CCCC yeers beside the establishment of Parochiall right in Tithes and the various Opinions touching the immediat Law whereby they are due the Practice of most Christian Nations as it might be had out of their Laws and Lawiers is faithfully related And to what is there brought adde that of the Law of France wherby the right of the Tithe of all the Minesis claimd by the King as a droit de Souerainte according as it is declard by two Edicts published of Charles the IX and verified also by the Parlament of Paris according also the old Imperiall Law was But through all here you may see that the Customes Statutes and Common Laws especially of France Italie and Spaine and of most other if not all States permit not so fauourably for the Clergie an exaction of them or suite to be so generally brought for them as the Laws of England did before the Statutes of Dissolution of Monasteries and still do if you exempt those cases which are founded only vpon those Statutes What Statute or practice is in this Kingdome that equals the Carolines of Spaine or the Philippine of France which are generall Laws for Customes quatenus Customes de non Decimando And whereas England vntill the Dissolution had scarce a continuing Infeodation into lay hands of which see the XIII Chapter nor could a lay man by the common Law before the Dissolution make any title to Tithes as to lay inheritances in other Nations Tithes infeodated haue been from aboue D. almost DC yeers frequent in vse and still continue legally in lay hands and are subiect wholly to Secular Iurisdiction as
also other Tithes paid to the Church are whersoeuer any such suite is commenced for them in their Spirituall Courts as stand not with their libertie challenged from their Secular or Common Law For euerie Christian State hath its owne Common Laws as this Kingdome hath And the Canon Law euerie where in such things as are not meerly spirituall is alwaies gouerned and limited as with vs by those Common Laws For by that name are they to be calld as they are distinguisht from the Canon Law which hath properly Persons and Things sacred only and spirituall for its obiect in practice as the Canon Laws deale with Things and Persons as they haue reference to a Common not Sacred vse or societie established in a Common wealth Who knowes any thing in Holy-Writ knowes the vse of the word CoÌ„mon to be so distinguisht from Sacred Indeed it hath other notions there also and it is otherwise vnderstood in ius commune frequently among Canonists and Ciuilians But these nothing at all hurt the conuenience of this denomination For by them Ius commune is vsed as it is opposd to Municipale or Consuetudinarium But here and in the nomination of the English Laws as it is distinguisht from Sacred or Spirituall and so in this sense the allowance of Customes and Parlamentarie Statutes as they ought fall vnder the name of Common Law with vs. Here I doubt not but it will be an obuious obiection that I should rather call the supreme and gouerning Law of euerie other Christian State sauing England and Ireland the Ciuill Law that is the old Roman Imperiall Law of Iustinian For such a raigning but most grosse Ignorance is euery where almost to be met withal in England that you shal haue it affirmd for cleer that al other States are gouernd only by the Ciuil Law Indeed if they which say so vnderstood Ciuill for that which is the Ius Ciuile of euery singular State it were but the same to talk of Ciuill and Common Law For the Common Law of England also is the Ius Ciuile Anglorum But it is euen with one mouth pretended vsually that the Body of the Imperialls read and profest in the Vniuersities is the Ciuill Law that gouernes as they say all other States But this howsoeuer receiued through lazie Ignorance is so farre from Truth that indeed no Nation in the world is gouerned by them For whersoeuer they are supposed to gouerne let the briefe cleering of so common an error get pardon for the digression it must be taken that they either gourne by their owne originall autoritie as they are Imperialls or from their being receiued for Laws into other States which are not in that first way subiect to them According to that first way only the Empire and perhaps a good part of Italie should be ruled by them But it is plaine that for the most part the disposition of Inheritances punishing of Crimes course of Proceedings Dowers Testaments and such other which are of greatest moment vnder the Legall rule are euen in those States where by reason of their first Institution they retaine a kind of autoritie ordered by most various Customes and new Statutes of seuerall Prouinces and Cities so differing from those old Imperialls that the whole face and course of them is exceedingly changed in practice This is plaine to euery one that obserues but the diuers Customes and Ordinances of the States subiect to the Empire the Ius Camerale collected by Petrus Denaisius the Nemesis Karulina as it is set forth by Georgius Romus and the many published Decisions or Reports both of the Imperiall Chamber and the Rota's of Rome Naples Piemont Mantua Genoa Bologna and other parts of the Territorie of Italie You shall find those Decisions in matters of greatest moment most commonly grounded on Customarie Law or later Constitutions So that to affirme that in these places the old Imperialls or that Ciuill Law as they call it gouernes is as if for example an equall ignorance shuld tel vs that Spain were gouerned only by Alfonso's Parfidas and Scotland only by Malcolms Laws or the Quoniam Attachiamenta or that in the time of the old Emperors the Roman State had been alwaies gouerned only by the XII Tables or that England were legally ruled only by the Grand Charter or by the two volumes of old Statutes Like accession and alteration as any of these haue had is found in the Empire and in Italie where the Imperialls haue through the power of the Emperors and Popes any now continuing autoritie Now for other Christian States which acknowledge no superior or any subiection to the Empire except Portugall where the Roman Ciuill Law is autorized by an Ordinance of State in cases which are not literally comprehended in the Customes or Constitutions of the Kingdome as France Spaine Scotland Denmarke Poland the Citie of Venice and what also in Germanie hath made it selfe froâ— from the Empire what colour is there that the Imperiall Ciuill Law should gouerne in them Indeed in all of them I thinke the reason of it brought into method is vsed and applied commonly to arâ—â—ment when any of their Customes or Statutes which are especially in France and Spaine very voluminous come in question because the Practicers studied it in the Vniuersities had thence their Degrees giuen them which yet they had not till about some CCCC yeers since neither before about that time was a Doctor or Professor of them known on this side the Alpeâ— But as it is Law it neither binds nor rules with them no more then the old stories of Heredotus Thucydides Diodore Polybius Iosephus Liute Tacitus and the like or Cicero and Demosthenes or Plato's Lawes and other of that kind which are equally somtimes vsed for reason or example specially by the Practicers of France And so the old Imperiall Ciuill Law valet pro ratione as Bertrand d' Argentre President of the Parlament of Rennes sayes non pro inducto iure pro ratione only quantum Reges Dynastae Respublicae intra potestatis suae fines valere patiuntur And in France and Spain Laws were some CCC yeers since expressely made that the Imperials should haue no force in theÌ„ And in Scotland it is ordaind that no Laws haue force there but the Kings Laws and Statutes of the Realme and that it should be gouerned by the common Lawes of the Realme and by none other Lawes Doubtlesse Custome hath made some parts of the Imperialls to be receiued for Law in all places where they haue been studied as euen in England also in Marine causes and matter of personall Legacies But is England therefore gouerned by them It were as good a consequent to conclude so as to affirme that any of the other States were because som petie things are ordered according to some Imperiall Text receiued and establisht by Custome But this may seeme no fit place to speak more perhaps not so much to
cleere this grosse error of such as yet pretend to know more then vulgarly but can make no difference twixt the vse of Laws in studie or argument which might equally happen to the Laws of Vtopia and the gouerning autoritie of them If any desire to search further here beside the Autorities cited in the Margine let him especially see I. Baptista à Villalubos 〈◊〉 Antinomia Iuris regni Hispaniarum ac Ciuilis note especially la Conference du droit Francois auec le droict Romaine composed by Bernard Automne and obserue both the Volumes of Statutes and Ordinances of Spaine France Scotland Poland and of other Countries together with the various Prouincial Customes especially in France with the Arrests Decisions and Playdâ—â—es of that Kingdome and he shall soon be confirmed in that which a great Ciuilian of Italie is ingenuous enough to tell vs Hispania Anglia Scotia Balia Hibernia Alemania Datia Suetia Vngaria Boemia Polonia Bulgaria non vtuntur legibus seu iure ciuili sed specialibus consuetudinibus 〈◊〉 statutis that is they are all gouerned by their owne common Laws 〈◊〉 that most learned Frier Bacon of his time Omne regnum habes sua 〈◊〉 aquibus laici reguntur vt iura Angliae Franciae ita fit Iustitia in 〈◊〉 per Constitutiones quas habent sicut in Italia per suas This was then and is now true And the Interpretation of those common Laws in most places saue England and Ireland hath of late time been much directed by the reason of the Imperialls and only by the reason of them not by their autoritie and that also in case when they are not opposite at all to the common Laws but seeme to agree with the Law of Nations or common reason And this vse of them at the furthest began in its yongest infancie not C.D.LX. yeeres since For before that euen from Iustinians time they lay wholly out of vse sauing only that some pieces of them with the Interpolations of Alaricus and his Chancelor Anian together with Lumbardine Additions and Interpretations had their power in some parts of Italie and the Empire But for about D.C. yeeres together that is from Iustinian till Frederique Barbarossa no Profession was of them in any Vniuersitie no Doctorship no other Degree taken in them But after that time they grew into a common Profession in this Western world although by their own autoritie they are confined to Rome Constantinople and Berytus and euen here in England were about Henry the thirds time often applied to the common Law in discourse and argument as you may see in Bractâ—n his frequent quotations of them And heretofore some texts of them haue been in our Courts cited not only as at this day sometimes is done when the words only of some of the regulae iuris is brought into an argument but the Title and Law after the Ciuilians fashion hath been rememberd at the Barre and so afterward exprest in the Report as I haue seen in an example or two in the Mss. yeers of Edward the second Yet notwithstanding that it is cleere that England was neuer gouerned â—y the Ciuill or Imperiall Law as it was also affirmd by the vpper House of Parlament in 11 Rich. 2. where the King and Lords protested also that their meaning was it neuer should be gouerned by it Of the VIII Chapter OVt of this fullnesse of Laws that were made for Tithes in England let it be considered by such as enquire here de iure what interest was of right setled in the Clergie by them howsoeuer they were litle obeyed And by what Autorttie made we haue carefully added still what might help to a iudgement in that also and how extensiue in regard of Persons and Territorie they were and some such other and how farre the Tithes might be after such Laws detained or made subiect to Customes or possessed as things of common vse The Laws of before as well as of after the Norman Conquest as it is vulgarly called are here gathered and are perhaps equally obseruable as the rest in the consequent of a generall consecration of Tithes to the Church in England For neither were the Laws formerly made abolish by that Conquest although by Law of Warre regularly all Rights and Laws of the place conquered be wholly subiect to the Conquerors will For in this of the Norman not only the Conquerors will was not declared that the former Laws should be abrogated and vntill such declaration Laws remaine in force by the opinion of some in all Conquests of Christians against Christians but also the ancient and former Laws of the Kingdome were confirmed by him For in his fourth yeere by the aduise of his Baronage he summoned to London Omnes Nobiles sapientes lâ—ge suâ erudâ—tos vt eorum leges consuetudines audiret as the words are of the Book of Lichfield and afterward confirme them as is further also related in Roger of Houeden Those Lege suâ eruditi were common Lawiers of that time as Godric and Alswin were then also who are spoken of in the Book of Abingdon to be Legibus patriae optime instituti quibus tanta secularium facundia praeteritorum memoria euentorum inerat vt caeteri circumquaque facilè eorum sententiam ratam fuisse quam ed cerent approbarent And these two and diuers other Common Lawiers then liued in the Abbey of Abingdon Quorum collationi nemo sapiens sayes the Autor refragabatur quibus rem Ecclesiae publicam tuentibus eius oblocutores elingues fiebant You must know that in those daies euery Monk here in England that would might remaine so secular that he might get money for himselfe purchase or receiue by discent to his owne vse And therefore it was fit enough for practicing Lawiers to liue in Monasteries But what had those praeteritorum memoria euentorum that is Reports and adiudged Cases of the Saxon times auailed in their skill if the former Laws had not continued More obuious Testimonies to this pupose are had out of Geruase of Tilburne Ingulphus and others and we here omit them But also indeed it was not to be reputed a Conquest or an Acquisition by right of Warre which might haue destroyed the former Laws so much as a violent recouering of the Kingdome out of the hands of Rebels which withstood the Dukes pretence of a lawfull Title claimed by the Confessors adoption or designation of him for his Successor his neerenesse of bloud on the mothers side not a litle also aiding such a pretence to a Crowne For the Confessors mother Emme was sister to Richard the second Duke of Normandie to whom William was Grand-child and Heire But these were only specious Titles and perhaps examined curiously neither of them were at that time enough And howsoeuer his conscience so moued him at his death that he profest he had got England only by Bloud and the Sword yet
what light these haue giuen out of their studies of Philologie both to their own and other Professions and that in rectifying of Storie in explication of good Autors in vindicating from the iniurie of time both what belongs aswell to sacred as prophan studies why then may not equally a common Lawier of England vse this Philologie and by consequent be a fit Autor of this Historie of Tithes as of a proper issue of Philologie it being indeed much more proper also to Philologie in a common Lawier then in one of any other Profession For the two chief parts of it that is Practice of paiment and the Laws of Tithing that either are in force or euer were receiud touching them in any State were alwaies and are part of the proper Obiect of his Studies and what euer Diuines or Canonists conclude of them it is the Secular or Common Laws only that according to Customs and various Ordinances permit or restraine the Canons in legall exaction of them and that in other States aswell as in England for howsoeuer it be affirmd by some which enough accuratly think not of it that the Clergie euery where in the Western Church being scarce a hundreth part of the People are inricht with whole Tithes of Fruits of the Earth and of Cattell yet it is certain that in no State of that Church whole Tithes are vniuersally paid But frequently Customs not only of a Modus but de non decimando are by force of secular Law practiced witnesse for the Empire is in that Diet of Norimberg vnder Charles the fift where the lay Princes of the Empire complaine against the Church for offering to put their Canons for Tithes in practice Etsi Laici per multa annorum curricula de certis eorum praedijs neque maiores neque exiguas vt vocant praestiterint Decimas c. As much for Spain is in Gouaruuias for Italie in Vgolin Caietan others for France in Papon on the customs of Burbon Boerius on those of Berry de Grassalio beside the many Arrests of Parlament that are adiudged against the Canons But these things are more particularly shewd in the Seuenth Chapter wherein as in the rest we haue affected rather what is Autoritie enough then what is various Who now can shew colour why this was not a worke proper enough for a Common Lawier But this whole Premonition I thinke is as well more then is necessarie to the truly iudicious as it may perhaps seem lesse then what satisfies to the numerous Pretenders that neither know any way that lies out of their beaten Rode nor value books but as Stationers do nor admit willingly of any other kind of Studies then such as are more like sordid Occupations then Liberall Professions But I stay you too long here Reader Trie now how I haue performd my promise spare not to trie with your most censorious examination sed magis acri Iudicio perpende si tibi Vera videtur Dede manus aut si Falsa est accingere contra THE CONTENTS CAP. I. Of Tithes before the Law I. Melkizedek had Tithes only of the spoiles of Warre giuen him by Abraham 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 denotes spoiles of Warre and perhaps also profits taken from the ground or Ruta caesa II. Iacobs vow and payment of Tithes Both Abraham and Iacob were Priets when they paid Tithes In whom the Priest-hood was before the Law III. Whether any certaine Quantitie were obserued in the Offerings of Cain and Abel IV. A Cabalistique operation in numbers by which Tithes and the first Fruits offered by Abel might haue a mysticall identity Such operations were amongst old Christians also but meerly vaine CAP. II. How among the Iews Tithes were paid or thought due I. First fruits and Heaue offering that is sixtieth parts at least first were paid out of the fruits of the earth II. The first Tithe was paid to the Leuites who out of that paid a Tithe to the Priests and then the second Tithe III. The errour of them that make a third Tithe The second Tithe of euery third yeere spent on the poore what they take the yeer of Tithing to signifie in Deuteronomy IV. Aboue a sixt part was yeerly paid by the Husbandman but no Tithe by him to the Priests V. How their Cattell were tithed VI. A discontinuance of payment among them Honester Ouer-seers chosen for the true payment Demai that is things doubtfull whether Tithes were paid of them or no. Passages in Epiphanius and S. Chrysostome of their Tithing VII Their Tithing of euery herb what their Canonists hold Titheable VIII Their Law of Tithing after the destruction of their second Temple ceased by the doctrine of their Canonists which teaches also that they are not to pay elsewhtre then in the Land of Israel and some adiacent Countries Presbyteratus Iudaeorum totius Angliae anciently granted by the English Kings CAP. III. Tithes how paid or due among the Gentiles I. Some Romans paid to some Deities and somtimes only a Tenth of spoiles of procede of merchandize of their estates but vsually also by vow which bound the Heire or Executor II. Festus is falsly cited for a generall custom of payment of Tithes among the Ancients III. Examples of Tithes paid among the Graecians IV. How the assertions of a generall vse of giuing Tithe to the Gods among the Graecians are to be vnderstood and why 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is to Tithe signifies also to Consecrate V. A Tithe paid to Hercules of Tyre and Sabis an Arabian Deitie the same with Iupiter Sabazius CAP. IV. In the first foure hundred yeers after Christ. I. No vse of Tithes occures till about the end of this foure hundred yeeres Offerings and Monthly pay for maintenance of the Church in the primitiue times Diuisiones Mensurnae Sportulae II. Payment of Tithes of Mines and Quarries to Christian Emperors The wealth of the Church enuied III. The opinion of Origen touching Tithes IV. Constitutions of those times that mention them are of no credit CAP. V. From about the yeer CCCC till DCCC I. Tithes were now paid in diuers places to Abbots to the Poore to the Clergie II. Some Consecrations were then made in perpetuall right at the pleasure of the Owner III. That storie of Charles Martell his taking away Tithes making them feodall cannot be iustified IV. The opinions of S. Ambrose S. Augustine S. Hierom and S. Chrysostom the first two teach the Tenth due by Gods Law the other two perswade only that a lesse part should not be offerd V. Of Canons for the payment of Tithes that are attributed to this Age. CAP. VI◠Between about the yeer D.CCC. and neere M.CC. I. Payment of Tithes how performed II. Arbitrarie Consecrations of them alone like Grants of Rents-charge at the Lay-owners choice to any Church or Monasterie were frequent and sometimes Lay-men sold them to the Church Redimere Decimas III. Appropriations of them with Churches wherin they passed as by
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
might be exacted vnder the like name The same may bee thought on in Consecrations to Monasteries For if Tithes had been held generally due and paid parochially as now then cleerly although a Lay man had granted a Tenth to another Church or Monasterie what other soeuer had been due parochially had notwithstanding the Grant still remaind payable to the Parson How could it haue been otherwise And so no small number of doubly-paid Tithes had remaind at this day VII The Laws made in this time for payment of Tithes were Imperiall Prouinciall and Pontificiall The first of the Imperiall was made by Charles the Great in a generall assembly of Estates both Spirituall and Temporall vnder him in the XI yeer of his reigne ouer France and Germanie and in the yeere of our Sauiour DCC.LXXVIII it was there ordaind Vt vnus quisque suam Decimam donet at que per iussionem Episcopi sui or Pontificis as some Copies are dispensetur Which Law indeed with diuers other for true payment of Tithes were generally made by him before his Empire which began not till the yeere DCCC yet because this was in the same termes receiued into those Capitularies collected by Benedictus Leuita as from him being Emperor it may well enough be titled Imperiall and it is the first to this purpose extant which can be at all stiled Generall and was ordained by both powers Secular and Spirituall to any whole State vnlesse you will beleeue that in Scotland a Law was established by King Congallus and his Clergie about D.LXX. after Christ for the generall payment of Tithes there according as Hector Boetius hath related Congallus indeed is by others affirmed to haue been verie carefull for the Clergies maintenance But it will I think fall out to be too bold an assertion of that faining Hector who often as it were makes Laws for the Scotish Kings that hee may relate them or else hee was deceiud by them from whom hee took it No good Authoritie can iustifie such particulars of that age there neither is it to be receiud otherwise then as fabulous and proceeding out of that common mistaking of ancient passages of Church-reuenues and confident but ignorant application of them to Tithes But from that Law of Charles the Great was that exaction of Tithes spoken of before by Alchwin and thence are Tithes in Ansegisus his collection of his Imperialls so frequently mentioned as of known right and hence also had the title of the German Bishops before spoken of its originall Those Capitularies both of Ansegisus and Leuita were collected by them about the yeer D. CCC.XL in both of which frequent constitutions are for Tithes and for the parochiall right also of them Yet with them also take the constitutions of Charles the Great about the same time collected but published by Vitus Amerpachius in the yeer M.D.XLV as also others occurring in the collection of Melchior Goldaflus These together with the Lawes of the Lumbards haue very many constitutions of about the beginning of these CCCC yeers for this purpose and one only shall suffice to be here transcribed De Decimis quas populus dare non vult nisi quolibet modo ab eo redimantur ab Episcopis prohibendum est ne fiat si quis contemtor inuentus fuerit si noster homo fuerit ad praesentiam nostram venire compellatur caeteri vero destringantur vt inuiti Ecclesiae restituant quae voluntarie dare neglexerunt This was made either by Charles or Lewes the first but it is falsely referd to the Emperor Lothar in the Laws of the Lumbards It was prouided you see against such as would not giue their Tithes vnlesse they were purchased of them for valuable consideration But the effect that these Lawes had was short the Laitie soon disobeying such commands as diminished their reuenues And it enough appears in the storie of about the yeere DCCC.XLV that little or no practice was of any of those Lawes of the Capitularies in behalfe of the Clergie nothing being more frequent then not only the denying them what they would haue had but also the taking from them what they otherwise possessed Nor could they haue sufficient remedie for it either in the Councell of Meaulx where vnder Lothar the first they humbly sought it or long afterward as is manifest in the Moniments of the succeeding ages But by the way whereas some both strangers and of our own countrey men out of the ioint mention of Nona and Decima in those Imperiall Capitularies of Charles and Lewes the first fetch an example of a Ninth paid to the Church as well as a Tenth and bring it as a character of the times deuotion as if the Tenth had not then been thought enough vnlesse a Ninth also like a second Tenth had been offered it is a ridiculous error and proceeds from grosse ignorance of the Common Lawes Storie Councels and vse of that age The Ninth and Tenth there spoken of were only the rent due from the Tenants of Church lands by the ordinarie reseruation of the Tenth as of what was held by many of it selfe due to the Clergie and of the Ninth as of the Rent or consideration to be giuen to them as to Lessors for the receiued profits so will it plainly appear in a multitude of old autorities to which I refer you Neither was the Ninth here thought due otherwise then as among the ancient Bauarians the Tenth only from occupiers of Church Lands The Tenth of the profits was all that their Laws appointed to be paid for rent to the Church by Lessees But also very many Prouinciall Constitutions were made for the true payment of Tithes about the beginning of this CCCC yeers as in the Councell of Mentz in the yeer DCCC.XIII Admonemus atque praecipimus vt Decimas Deo omnino dari non negligatur which words were receiued also into the Imperials and with them agree diuers Councels held about the same time as the Councels of Rheims the fourth of Arles the second of Chalons and many other following And in Scotland if we may beleeue the Autor for though he speak very good language yet he is of no such sound credit about the yeer DCCC.XL King Gregorie in his Laws for Church liberties ordaind that the Spirituall Court only should haue conisans of Tithes which had been perhaps all one as to haue established them to be generally due for by the opinion of that Court it is likely they would then also haue been iudged so And also among the ordinances of Cing Macbeth about the yeer M.LX. the same Autor puts one in these words Decimam partem Terrae nascentium pastoribus Ecclesiarum liberè conferto Many more of like nature are where we speak seuerally of the English Constitutions For Pontificiall decrees Publique moniments I think haue none in expresse termes of command except you look back to that faind one of
censuris ne simplices inficiant mordaciter feriantur Sic vnanimes in vera doctrina Ecclesiae permaneamus vt ad eum tendere valeamus de quo canit Propheta Quaerite Dominum confirmamini quaerite faciem eius semper sic laetetur cor quaerentium Dominum hic in via quatenus ipsum quaerentibus dignetur esse merces in patria Amen They were me thinks somwhat vehement and very confident in the point Neither haue I elswhere seen so great autoritie against Russell If Russell were therefore an Heretique doubtlesse he hath had and now hath many fellow-Heretiques for thus many nay the most of such as most curiously inquire herein and diuers Canonists also that are for the morall right of prediall and mixt Tithes denie that personall are otherwise due regularly then as custom or Law positiue which is subiect to custom directs But iudge you of it Reader I only relate it and return to their prosecution against Russell at length news came that he was at Rome whither presently the Conuocation sent agents to whom they allowd for an honorarie salarie a farthing out of euery pound of Church liuings that might there question him before the Bishop of Rome a delegation of the Conisance of the cause was made to a Cardinall who adiudged him to perpetuall imprisonment vnlesse he recanted the Frier afterward brake prison and ran home again where at Pauls Crosse when nothing els could satisfie the secular part of the Clergie he solemnly abiured his heresie as they calld it and to preuent the like in the doctrin of other Minorits Chicheley the Archbishop enioind them all that in their publique Sermons they should teach personall Tithes to be due by the Laws of God and the Church Of later time others haue writen for the diuine right and generall dutie of Tithes you may see Albertus Pius Carpensis against Erasmus Baronius his digression touching them others but especially the diuers Treatises writen to that purpose of late by our Countrie men which are read in euerie hand I purposely abstain from particular mention of their names But neither haue only single autors been lately of that side for prediall and mixt whole Synods also of this age haue in expres words been for them through whose autoritie this ancienter before rememberd they might haue fortified their Conclusions with far greater names then by citing some one or two late single men as they vsually do To omit the Councell of Mentz held in the yeer M.D.XLIX where it is deliuered that Decimae debentur iure Diuino and some other are to that purpose in the Decreta Ecclesiae Gallicanae collected by Bochell In an Edict of Henrie the second of France in M.D.XLII relation is of a remonstrance made to him by the Bishop Dean Canons Chapter and Clergie of Paris wherein they take it cleer that tithes and first fruits were introduitees instituees de droit diuin partant deussent estre payes Loyauement sans fraude The like of the Clergie of the Diocese of Troyes is mentioned in an edict of Charles the ninth in M.D.LXII in the same words and in the yeer before by a Generall Synod of all the Clergie of France at Poissy a complaint was made with that pretence in it the words of the Edict best shew it Charles c. à tous ceux qui ces presentes lettres Verront salut De la part de nos chers bien amies consiellers les Archeuesques Euesques de nostre Royaume et des deputez des Clergez qui ont este n'aguerez assembleza Poissy par nostre commandement nous à este remonstre que combien que les Diximes Primices qui sont leur principall reuenu soient introduitees instituees de droict diuin partant deussent esâ—re payees loyaument sans fraude ce neantmoins plusieurs Agricoles proprietarees c. with these may be reckond that of the Clergies petition in the parliament of 50. Ed. 3. wherein they begin with Licit Decima siluae presertim caeduae de iure diuino ecclesiastico Deo et ecclesiae sit soluenda c. VI. But Although by this Opinion and that of the Canonists Tithes be generally due by the diuine Law and so not subiect if with them you take it for the diuine morall or naturall Law to Ciuill Exceptions as Customes and Prescriptions of discharges or of paiment of lesse or such more whence also reall compositions haue been condemned quia Decimae cum temporalibus non sunt commutandae as the words of an old Pope were to the Bishop of Cusa yet the practised Common Law for by that name as common is distinguished from sacred are the Ciuill or Municipall Laws of all Nations to be stiled hath neuer giuen way herein to the Canons but hath allowd customes and made them subiect to all ciuill titles Infeodations discharges compositions and the like Of Compositions no more shall be spoken seeing they consist rather in indiuiduals then of any generall course we only remember them here as one kind of discharge among other that haue been allowd by common Laws and where Customes and Infeodations hold no man can doubt of the lawfulnesse of Compositions But of Customes in the Edicts made by those Kings of France vpon those remonstrances it appears that what euer the Clergie supposed by their Dixmes introduitees and instituees de droict diuin they complain of abuse only in due paiment of Tithes out of lands suiets redeuables aux dits dixmes c. that is subiect and liable to the paiment of Tithes neither in other words do the Edicts and their verifications giue them remedie And notwithstanding that it were once according to sundrie Canons of that Church thus commanded by an old Law of the yeer M.CC.XXXVIII made by S. Lewes Decimae quibus fuit longo tempore ecclesia per malitiam inhabitantium defraudata Statuimus ordinamus quod restituantur citius amplius laici decimas non detineant sed eas habere clericis permittant yet in that state against the whole course of the Cannon Law in this kind they haue what by reason of ancient Infeodations still continuing what through customs allowed diuers lands to be not at all subiect to any Tithes payable to the Church For their Infeodations although none can be there new created such as were made before that Canon prohibemus of the Councell of Lateran held vnder Alexander the third are to this day remaining and are conueied and discend as other lay inheritances excepting only such as being discharged of feudall seruice haue been giuen in to the Church For their Lawiers with the common opinion but erroneously suppose that all such Infeodations came from the Church and therefore they agree if any feudall Tithes be conueied into the Church freely by themselues not as annexed to other fiefs as castles or mannors nor subiect to tenures reserued that then they are in the Church
diuiding Tithes before witnesses is an old Imperiall attributed in some Editions to the XI yeere of the reigne of Charles the great being King of France in others to the Emperor Lothar the first But referre it to either of them and it will be diuers yeers later then Ecbert's death And other mixt passages there plainly shew that whose soeuer the Collection was much of it was taken out of the Imperiall Capitularies none of which were made in Ecbert's time Perhaps the greatnesse of his name was the cause why some later Compiler of those Excerptions might so inscribe it to gain it autoritie for he was both brother to Edbert King of Northumberland and the first also that after Paulinus restored the name of Archbishoprique and the Pall to Yorke And the heads of a Synod held in Ecbert's time vnder King Ethelbald and Cuthbert Archbishop of Canterburie are yet extant but not any expresse mention is found in them of Tithes although most of the particulars of Church-gouernment are toucht there II. The Autors of the Centuries haue a Synod held in the yeer D. CC.LXXXVI vnder two Legats sent from Pope Hadrian the first with letters for reformation and establishing of Church Laws to Offa King of Mercland and Aelfwold King of Northumberland and to the two Archbishops the particulars of the Synod are related in an Epistle to the Pope from those Legats which were the first that had so come from Rome hither after Augustine wherein it is related that Gregorie Bishop of Ostia one of the Legats went into Northumberland and Theophilact Bishop of Todi the other to Offa who with Kenulph King of West-Saxonie called a Councell for the Southern patt as Aelfwold for the Northern Gregorie sayes That in the Northern parts ad diem Concilij conuenerunt omnes Principes Regionis tam Ecclesiastici quam seculares and after many Institutions of Canon Laws there the XVII Chapter is de Decimis dandis sicut in Lege scriptum est Decimam partem ex omnibus frugibus tuis seu primitijs deferas in Domum Domini Dei tui Rursum per Prophetam Adferte inquit omnem Decimam in horreum meum vt sit cibus in domo mea probate me super hoc si non aperuero vobis cataractas coeli effudero benedictionem vsque ad abundantiam increpabo pro vobis deuorantem qui comedit corrumpit fructum terrae vestrae non erit vltra vinea sterilis in agro dicit Dominus sicut sapiens ait Nemo iustam Eleemosynam de his quae possidet facere valet nisi prius separauerit Domino quod à primordio ipse sibi reddere delegauit Ac per hoc plerumque contigit vt qui Decimam non tribuit ad Decimam reuertitur Vnde etiam cum obtestatione praecipimus vt omnes studeant de omnibus quae possident Decimas dare quia speciale Domini Dei est de nouem partibus sibi viuat Eleemosynas tribuat Et magis eas in abscondito facere suasimus quia scriptum est cum facis Eleemosynam noli tuba canere ante te The autoritie of this Canon may be known out of what is there further added Haec Decreta beatissime Papa Hadriane in Concilio publico coram Rege Aeelfwaldo Archiepiscopo Eanbaldo omnibus Episcopis Abbatibus Regionis seu Senatoribus Ducibus populo terrae proposuimus illi vt superiùs fati sumus cum omni deuotione mentis iuxta possibilitatem virium suarm adiuuante supernâ clementia se in omnibus custodire denouerunt signo Sanctae Crucis in vice vestra in manu nostra confirmauerunt posteà stylo diligenti in Charta huius paginae exarauerunt signum Sanctae Crucis infigentes Then follow some subscriptions of Bishops Et His quoque saluberrimis admonitionibus Presbyteri Diaconi Ecclesiarum Abbates Monasteriorum Iudices Optimates Nobiles vno opere vno ore consensimus subscripsimus After this so concluded in the Northern state the same Legat together with Maluin and Pyttell Embassadors from Aelfwold take with them all those Decrees and Canons and goe to the Councell held vnder Offa for the Western parts Vbi as the words are gloriosus Rex Offa cum Senatoribus terrae vna cum Archiepiscopo Iaenberchto some call him Lambert Sanctae Ecclesiae Dorouernensis that is of Canterburie caeteris Episcopis Regionum conuenerat in conspectu Concilij clarâ voce singula capita perlecta sunt tam Latinè quam Teutonicè that is in English-Saxon which then was the selfe-same with Dutch or Teutonique quo omnes intelligere possent dilucidè reserata sint qui omnes consona voce alacri animo gratias referentes Apostolatus vestri admonitionibus the Legats so write to the Pope promiserunt se diuino adminiculante fauore iuxta qualitatem viriū promitissimâ volūtate in omnibus haec statuta custodire And Offa and his Bishops Abbots and some Princes subscribe with the Crosse to it What Copie of this Synod the Centuriators had or whence they tooke it I find not But if it be of good autoritie it is a most obseruable Law to this purpose being made with such solemnitie by both Powers of both States of Mercland and Northumberland which tooke vp a verie great part of England and it is likely that it was made generall to all England In the relation of the Legats to the Pope mention is of Kenulph King of West-Saxonie his ioyning with Offa in calling the Councell but the confirmations of the Decrees haue no reference to him But by the way if you examine it by storie and Synchronisme Kenulph perhaps could not haue at all to do with it For some of our old Monks expressely affirme That in the second yeer of Brithric next successor after Kenulphs death Pope Adrian sent his Legats in Britanniam ad renouandam fidem quam praedicauerat Augustinus And that they then held their Synod at a place called Cealchithe how could Kenulph be there then as the Legats relate Beleeue the Monks as you will but indeed an exactnesse here is not easie extracted out of the disturbed times of our Chronicles They talk also of a Synod held in Wicanhale for the North parts a yeere or two after Doubtlesse they intend this same that is extant in the Centuries if at least it be of sufficient credit Neither can it be suspected by any circumstance in the subscriptions which being so many might haue by chance soon got among them a character of falsehood had it not been genuine In the printed Houeden Gregorie one of the Legats is called Georgeus perhaps for Gregorius but my Ms. hath also Georgius But if Henry of Huntingdon and Roger of Houeden giue vs the time right of the Legats comming hither then is that mention of Kenulph in their supposed Epistle to the Pope a plaine character of falsehood or ignorance in some
Ecclesiasticas in soro seculari nec tales homines determinent vtrum talis Capella debeat habere Baptisterium Sepulturam an non For if it had the right of administration of Sacraments in it and Sepulture also then differd it not from a Parish Church but might be stiled Capella Parochialis by which name some Chappels are with vs known and in the Saxon times also we find Coemiterium Capellae for the buriall place of a Chappell which must be vnderstood of a Church that had the like right as that which is mentiond in the second part of Edgars Law and those other churches which in his and K. Knouts Laws are spoken of that is Churches without buriall places feldcyrican or field-Churches are only what at this day we call Chappels of ease built and consecrated for Oratories but not diminishing any thing of the Mother Churches profits But also besides those originall Lay foundations some Parishes haue had other beginnings since from alterations made in regard of the inconuenience of their former limits And this by direction or autoritie both from the Pope or Bishops according as they saw occasion exacted and from the King For the Pope we may see in the exāple remaining in the Decretals where Pope Alexander the third sends his Decree to the Archbishop of York reciting that in a complaint made to him he had heard that a certain Town in his Prouince was so distant from the Parish church that it was very difficult for the Inhabitants to repaire thither especially in winter and withall that the Church reuenue of the Parish although that Town were exempted was not insufficient for the Minister of the Mother Church wherefore he commands the Archbishop to build in that Town a Church and with assent of the Founder of the Mother Church to institut at the Presentation of the Rector an Incumbent there that might haue to his own vse all Ecclesiastique profits encreasing in the limits of the same Town and so acknowledge a superioritie to the Mother Church and that he should do it also whether the Rector of the Mother Church would assent or not For the King an old example is in 13. Hen. 3. where because the Church of S. Peeters in Chichester was very poor that only two Parishioners were in it the King at request of Ralf Neuill then Bishop there Chancelor of England grants quod eadem Ecclesia demoliatur praedicti duo Parochiani qui spectabant ad ipsam assignentur imperpetuum Hospitali S. Mariae quod eidem Ecclesiae est vicinum vt ibi deinceps percipian◠spiritualia sint Parochiani eiusdem Hospitalis And such like commands occasions and conueniences doubtlesse haue alterd and made the limits of diuers Parishes eueriewhere both in the Countrie and Cities which haue to this day many of small Territorie but of large number of Communicants For Parochiall limits thus much CAP. X. I. The Practice of Tithing Of K. Cedwalla's Tithing being no Christian. the custom of the German-Saxons in sacrificing their tenth captiue to Neptune Decima vsed for a lesse part also in ancient moniments II. The Practice of Tithing in the Christian times of our Ancestors the tale of Augustin and the Lord of Cometon touching non payment of them the Tithe of euery dying Bishops substance to be giuen to the poor by an old Prouincial Synod Tithes how mentiond in Domesday Testimonies of payment of them Henrie the thirds grant of the payment of tithe of Hay Mils out of all his demesnes The beginning of Parochiall payment of Tithes in common and established practice in England How that common assertion that euery man might haue disposed his tithes at his pleasure before the Councell of Lateran is true and to be vnderstood THe Laws of this Kingdom for payment of Tithes and the originall of Parochiall right to profits accruing within the limits of euery Parish Church which were after Lay foundations grew common distinguished according to the adiacent possessions and tenancies of the Founders and their Farmes Mannors Towns and the like being hitherto declared the Practice of the times remaines to be also discouered I. In that something also is obseruable among the Ancients of this Kingdom of a kind of Tithing related to haue been where Christianitie was not yet receiued Some of them tell vs of Cedwalla King of the West-Saxons that before his being made Christian about the yeere DC.LXXXVI he tithed all his spoiles of Warre to the Deitie So the Monk of Malmesburie Arduum memoratu est saith he quantum etiam ante baptismum inseruiret pietati vt omnes manubias quas iure praedatorio in suos vsu◠transcripserat Deo decimaret neither if he did so was it without some example of his Ancestors the German-Saxons whence England was chiefly filled who were wont to sacrifice to Neptune I think the Tenth of all captiues taken in their pyracies and incursions made by Sea vpon the Gaules specially so saies my Autor that liud about the time of the German-Saxons first arriuall here his words of them are Praetereà priusquà m de continenti in patriam vela laxantes hostico mordaces anchoras vado vellant mos est remeaturis Demimum quenque captorum per aquales cruciarias poenas plus ob hoc tristi quod superstitioso ritu necare super que collectam turbam periturorum mortis iniquitatem sortis aequitate dispergere Talibus se ligant votis victimis soluunt per huiusmodi non tam sacrificia purgati quam sacrilegia polluti religiosum putant caedis infaustae perpetratores de capite captiuo magis exigere tormenta quam pretia Neither I think is any other expresse mention of this their Tithing among ancient moniments and for that their sacrificing to Neptune indeed the Autor Apollinaris here mentions him not but it being done at Sea and per aquales for so is the true reading although some there read aequales poenas you may wel coniecture it was to Neptune or to their supposed Deitie of the Sea and thus the most learned and noble Monsieur Sauaron in his notes vpon Apollinaris expresly also makes it a sacrifice to Neptune and although it be true that among their gods we find none namd that is denoted to answer to Neptune yet that some Deitie of the same nature that is some great Sea god was in their superstitions may be easily collected not only from this relation of their cruell deuotions but also from their wondrous and accurat obseruation of the ebbs and flouds called by them Ledons and Malins which were the chief Directors of their account of times as the Sun and Moons motion hath euer been to other Nations which doubtlesse was no small cause that the Sea was to them reputed a Deitie as the Sunne and Moone also before other Creaturers in the ancient Theologie of the Gentiles But for that of Cedwalla let it be vpon Malmesburie credit that he tithed his
examples and autorities before cited iustifie it For the building of Churches which considered with the arbitrarie endowments of them with new Tithes specially belongs also to this disquisition it was affirmd for a common libertie of the Baronage in letters of King Iohn to Innocent the third as you may see in the Popes answer to the King Quod enim de consuetudine regni Anglorum saies the Pope to him procedere regia serenitas per suas literas intimauit vt liceat tà m Episcopis quà m Comitibus Baronibus Ecclesias in feudo suo fundare Laicis quidem Principibus id licere nullatenùs denegamus dummodo Dioecesani Episcopi eis suffragetur assensus per nouam structuram veterum Ecclesiarum iustitia non laedatur It was challenged without licence but the Pope allows it to the Laitie so that they had licence from the Bishop of the Diocese and withall that the new foundations bereaued not ancient Churches of their assigned endowments But after the time of K. Iohn few or none of those arbitrarie consecrations are found yet in Henry the thirds time some were as you may see in those of Fines taken out of the Chartularie of Gisburn but remember also they were in the Prouince of Yorke Neither were those Grants disallowd by either Common or Canon Law here then practiced and in thoses cases of Tithes that occur among the Epistles of Iohn of Salisbury who liued in time of Henry the second no title is made meerly by Parochiall right but Prescription or Consecration are the grounds whereupon they are demanded and whereas in the case of Robert Wnegot before Adelelm Archdeacon of Dorchester the question was there super quibusdam Parochianis Decimis and the Actor produced testimonie that he had formerly recouered ius Parochiale quod petebat cum decimis it is cleer that the Tithes were not recouered iure communi as they are at this day belonging to the Parish-Rector but by speciall title of Consecration or Prescription and the ius Parochiale there was the right of hauing the Cure and Offerings of the Parishioners which had not necessarily annext to it the right of Tithes by the practice of that time whence it came that Parochiani Decimae are both there mentioned as seuerall demands in the Actors Libell and hereof see more anon in the corollarie of the ancient Iurisdiction of Tithes in England and that admonition of Theobald Archbishop of Canterbury before cited to Ala Countesse of Warren is obseruable is it not apparant that he allows not only the arbitrarie Consecrations made by the Earles but also reprehends her sharply for not performing what they had therein vowed But in the ensuing times after that the Canon Law had here gained greater strength which happend soon vpon Innocent the third his thundering out his Interdict against this Kingdom his Excommunication against the King and frighting the subiects with his Bulls stufft with commination and that against this very point of arbitrarie conueiances of Tithes it soon came to be a receiud Law that all Lands regularly were to pay Tithes to the Parish or Mother Church according to the prouision of the Canons and therefore vpon Delegation made by Pope Innocent the fourth in 49. Hen. 3. to the Priors of S. Trinitie and S. Bartholomew in London and the Archdeacon of Westminster for the deciding of a controuersie twixt the Abbesse and Nunnes of Chartris by Ely and Robert Passelew Archdeacon of Lewes about some Tithes of the possession of the Nunnerie in Barington it appears that in Passelews libell no other title is made but that the Land lies infra limites Parochiae suae de Barenton vnde petit dictam Abbatissam compelli integrè ad solutionem dictarum decimarum cum damnis interesse c. and some others like are of that time according to the Law that to this day continues as may especially be found in the books of Pipewell and Osney That example is in the Chartularie of that Nunnerie composed by the cost and pains of Agnes Aschefeld Abbesse there and Henry Bukworth Bachiler of the Canon Law about the time of Henry the sixt You may adde to the confirmation of this ending of the ancienter course of arbitrarie consecrations and the later establishing of Parochiall right in Tithes that of the English Monks before cited touching the generall Councell of Lions held in 2 Ed. 1. I doubt not but that Parochiall right was long before for the most part setled but it is not likely that they had so confidently affirmed such a continuing libertie of conueiance of Tithes at the owners will had they not known that vntill about the preceding ages at least it had been in common practice both of fact and positiue Law especially in this Kingdom where they liued Whether this petition in Parliament of 6. Ed. 1. may giue any light to that assertion of theirs I know not Nicholas of Crainford Parson of Gilingham complaind to the King Quod cum Foresta Domini Regis ibidem sita sit infra Parochiam suam quod Dominus Rex Decimam faeni venationis pannagij aliorum prouentuum ipsius forestae de gratia pro salute animae suae animarum praedecessorum suorum Ecclesiae suae cui de iure communi debentur plenè solui praecipiat secundum formam supplicationis exhortationis Apostolicae porrectam Dominio R. apud Gilingham quando fuit ibi ad Natale What was that supplicatio or exhortatio Apostolica did not some such thing comming from Rome about the time of the Councell of Lions make the Monks think it a thing agreed vpon in that Councell it seems here too that in the Kings case Parochiall right of Tithes was not yet euery where setled although the Tithes were encreasing in a Parish IV. After this establishment of Parochiall right new arbitrarie conueiances out of lands lying in any Parish were not permitted but ancient consecrations were still retained and had confirmation either from prescription or Papall priuilege which were by the Canons sufficient titles to be pleaded against the common right claimed by Parish Rectors And when this innouation grew in Parochiall right then also the iurisdiction which the common or secular Law had formerly challenged and exercised in detaining the right of Tithes between the Parish and Parishioner grew out of vse and the legall proceeding became to be regularly according to the Canons which brought the practice to be as since it hath continued But of the ancient iurisdiction more anon So was it now come to that passe that no new arbitrarie consecrations might be made of the Tithes of lands lying in any Parish But yet for such lands as were not Parochially limited the ancient libertie was retained and although by the Canon Law the Bishop is to haue all Tithes growing in lands not assigned to any Parish within his Diocese yet in the moniments of the common Laws such Tithes growing
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
ad lucrandum vel perdendum de aduocatione Ecclesiae de Budeketun vnde placitum erat inter eos in Curia Regis scilicet quod Prior Monachi remiserunt quietum clamauerunt eidem Richardo haeredibus suis aduocationem praedictae Ecclesiae per ita quod persona quae per ipsum Richardum vel haeredes eius in eadem Ecclesia instituetur reddet singulis annis Ecclesiae de Lewes IIII. solidos scilicet ad festum Sancti Michaelis ille qui in eadem Ecclesia per ipsum Richardum vel haeredes suos instituetur persona post institutionem suam coram Episcopo fidelitatem praestabit quod praedictam pensionem praedicto termino Ecclesiae de Lewes persoluet posteà in Capitulo de Lewes eandem fidelitatem innouabit Here it appears it seems by the iudgement of the Kings Iustices that the Patron had such interest in those times that he might alone without grant of the Encumbent who came in by his Institution and Inuestiture or confirmation of the Bishop charge the church with a pension and this being in a Fine is of autoritie beyond exception for that age But the like is in Rot. Fin. 7. Rich. 1. Lancast. in a Fine leuied between Theobald Fitz-water demandant in a Writ of Right of Aduowson against the Abbot of Shrewsburie of the Church of Kirkham where XII marke Rent is reserued to the Abbot with a like clause for the Encumbents fealtie for true payment the like in Fin. 4. Rich. 1. diuers Comit. touching the Church of Dacheworth yet also in that age the assent of the Parson and Bishop was somtime had as in Rot. Fin. 7. Rich. 1. Staff where vpon Right of Aduowson by the Prior and Canons of Stanes against Alice Hopton for the Church of Cheklegh Alice Robertus filius haeres suus per assensum voluntatem H. Couentrensis Episcopi in cuius Diocoesi Ecclesia illa sita est Osberti personae eiusdem Ecclesiae tunc ibidem praesentium concesserunt praefatis Priori Canonicis XXs. de eadem Ecclesia de Cheklegh annuatim percipiendos sine omni contradictione imperpetuum de Clerico eandem Ecclesiam possidente quicunque ille fuerit ad duos terminos videlicet ad Pascha Xs. ad festum S. Michaelis X ◠c Here the assent of the Parson and Bishop being both present in Court is inserted in the Fine yet inough examples shew that it was not as may be strongly coniecturd thought altogether necessarie But indeed howeuer the right of Inuestitures had been then much exercised by Lay Patrons yet in case of Clergie Patrons if the Church were not of exempted iurisdiction the Bishops more vsually instituted and therefore was their assent the sooner admitted somtimes into the Fine and doubtlesse also some lay Patrons willing enough herein to obey the Canons after Anselm and perhaps before arbitrarily filld their Churches by presentation to the Bishop this may be collected especially out of that of the grant of the priuilege of Institution in Churches made by Turstan Archbishop of York vnder Henrie the first to the Archdeacon of Richemond as also out of two Decretalls from Rome sent by Pope Lucius the third vnder Henrie the second to the Bishop of Norwich and in some other autoritie both in our yeer books and in the fine Rolls also of the beginning of King Iohn the Bishops assent in such grants of that time is sometimes found and in that commonly but without sufficient ground attributed to Randol of Glanvill chief Iustice of England to Henrie the second the Bishops institution is spoken of as a thing of not vnknown right vpon a recouerie in Darrain presentment according as the Canons require And in an Epistle of Giraldus Cambrensis writen in those times to Hugh Bishop of Lincoln about his Parsonage of Cestreton which he challenged vpon presentation of himself made by Gerard of Camvill a Gentleman of great worth in Lincolnshire the Bishops Institution is spoken of as cleerely necessarie according to the Canons and noted with Episcopus solus honores dare potest which you must remember was writen by one that was feruent for the Canons and had also writen against the auitae consuetudines or common Laws of that time But these testimonies must be warily vnderstood and compared with the former and frequent practice of the contrarie which about that time especially vnder Richard the first and King Iohn it seems much altered Neither till about that time can it be found that the more common practice of Lay mens Inuestitures ceased Nor was the Bishops Institution presently and vniformely thence vsed as of later ages The autoritie of the Clergie had by that time taken away the vse of Lay mens Inuestitures Yet was it not cleere it seemes vpon the practice that here followed what dignitie of the Clergie should then exercise the Institution for you shall find it sometimes done by the Archdeacon as it was also before K. Iohn in some cases where any Lay man omitted his Inuestiture as may be gathered out of a Decretall sent hither from Pope Alexander the third to forbid the Archdeacon of Ely Curam animarum sine mandato Episcopi committere And afterward also in Pasch. Trin. 9. 10. Reg. Ioh. a Writ is awarded to the Archdeacon as now it ought to the Bishop vpon recouerie of a Presentment The entrie is thus Recordatum est per G. filium Petri Simonem de Pateshull quod Simon filius Richardi tempore Regis Richardi recuperauit coram eis socijs eorum versus Iohannem de Kalceto seisinam Aduocationis Ecclesiae de Buckworth in Huntingdonshire per assisam de vltimâ prasentatione ita quod habuit breue quod Archidiaconus admitteret personam ad Ecclesiam illam ad praesentationem eidem ipse Iohannes impediuit eum ita quod implacitauit eum per breue Papae Dominus Rex prohibuit placitum Simon venit impetrauit à Rege quod loquela procederet quod haberet breue ab Archidiaconum de Clerico suo admittendo habuit T. domino G. filio Petri Will de Briwere Here twice was the Writ of Admission or Institution sent to the Archdeacon not to the Bishop Perhaps indeed it happened in the vacancie of the See for the time so falls that we cannot be sure of the contrarie But admit it were so Plainly the Archdeacon neither by Canon nor common Law had any more right of Institution by reason of a Vacancie of the Bishoprique And certainly during the vacancie the Writ should goe to the Gardians of the Spiritualtie which by the Canon Laws are the Deane and Chapter but by the Law of England the Archbishops in their seuerall Prouinces and the Deanes and Chapters only in case where the Archbishopriques are void And in other places somewhat afterward also I haue seen Institutions often by the
of them which is there adiudged according to that in Catesbies case is referd to Concilium Apostolicum which can be no other then that of Lateran howeuer the printed Copie of that which we commonly call Breton talks of the Councell of Lions for the Director of the Laps whereas indeed the Mss. haue for de Lions de Lautr which is doubtlesse for de Lateran yet also in the Rolls of the Common pleas of Pasch. 9. Ed. 1. Rot. 58. Suthampt. the Archbishop of Canterburie defendant in a Darrain presentment against the Abbot of Lyra pleads that the Church of Godeshull est plena ex collatione ipsius Archiepiscopi ratione Concilij Lugdunensis and being demanded by what article of the Councell would not thereto answer wherupon after long deliberation iudgement is giuen for the Abbot But in the same Plea the Law and custom of England for the six months time of Laps which they call there Consuetudo regni Angliae is referd to a Councell but none is specially named sauing that of Lions But although from Canonicall autoritie the Laps was thus receiud into our Laws yet it hath been no otherwise then the Baronage of England would permit it for the Canons otherwise as at this day they are giue but foure months to a Lay Patron and six to an Ecclesiastique which difference the Law of England would neuer permit as also neither that of the right of collation which the Chapter is to haue vpon default of the Bishop howeuer the Pope would haue put it here in execution according to the words of the Councell which you may see in the autorities before noted out of the Text of the Canon Law and therefore the Law of Laps is well referd rather to Consuetudo Regni Angliae by which title other parts of our Laws were often named that were of later beginning then to the Councell although thence doubtlesse as is shewd it had its originall But although now what through the Decretalls and other Canons against Lay mens Inuestitures what by reason of the Law of Laps the Patrons former interest or challenged right was much diminished in the Church and the disposition of the reuenues of it for it followd also that the Ordinaries assent was requisite yet the formulae or precedents vsed from ancient time in the recouerie of presentations still retaine to this day Characters in them of that Inuestiture as the quare impedit that is Praecipe A. quod iustè c. permittat B. praesentare idoneam personam ad Ecclesiam de N. quae vacat ad suam spectat donationem c. Where Donatio still sauors of the ancient right of Inuestiture agreeing whereto is that of Ecclesiam concedere vsed elswhere in our Law and attributed to the Lay Patron Neither doth praesentare ad Ecclesiam originally denote otherwise then the Patrons sending or placing an Incumbent into the Church and is made only of repraesentare which in that Councell of Lateran and elswher occurres also for praesentare repraesentare is properly to restore giue back or repay as reddo or repraesto whence praesentare taken in the barbarous times denoted as dare or donare so that idoneam personam ad Ecclesiam praesentare was all one with idoneam personam ad Ecclesiam dare or donare or in Ecclesia constituere or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as the Apostles word is to Titus where he bids him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is appoint or constitut or indeed present Priests or Encumbents in euery Citie for he that there should turn it by present might so keep the propertie of the word in both tongues though not as present is now restraind this is iustified out of an old Glossarie that turnes Repraesento by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for then cleerly 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is Praesento while praesentare so signified also in practice that is in the time of the vse of Lay Inuestitures all Churches so giuen were properly Donatiues which attribute hath been since restraind chiefly to such free-chappels as the Ordinarie had no interest in but are collated or giuen by the act only of the Patron and this interpretation of praesentare is iustified also out of the quare impedit vpon a right of collation which is but a donation by the Bishop wherin the words are also quod permittat praesentare ad Ecclesiam c. Donation which is meerly as Inuestiture in regard of the Bishop is there called Presentation So also is the Law in the Kings Case and of common persons being disturbed to collate by Letters Patents to their free Chappels or Donatiues the Writ in those Cases is only praesentare which confirms that it denotes Donation or Inuestiture But in the Counts vpon such Writs the speciall matter must be discouered The like Law is in the Case of him that hath the Nomination of the Clerk his Writ is also praesentare although another haue the right of that which is now known by the bare name of presentation Nomination indeed or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 being the true and eldest name found in the Laws belonging to the Church that denote filling or presenting to a Church in that sense as Presenting is taken for giuing or inuesting For in the primitiue times when the Patron had founded his Church he nominated whom he would haue receiued into Orders for the seruing of that Cure and then if the nominated were found worthy hee was receiued into Orders for that purpose which Ordination turnd afterward into Episcopall institution as is before declared that nomination was indeed as Inuestiture or giuing the Church so is the word vsed in the Laws and agreeing to them is the purer time of Latin wherein Nominatio is for giuing a Place or Office that is void And as these phrases of the Writs tast of the ancient right challenged by the Patron so do some assertions in our yeer books of later time as that of entring into an Aduowson by entring into the Church of passing an Aduowson by liuerie of seisin at the Church-dore of the Patrons entring into the place of foundation if the Church cease to remain hallowed and the like And to like originall may you referre those of the Kings presentations which haue Dedimus concessimus in them yet retained although the force of the words by the later Law make but only a presentation But the Law is now setled neither with vs hath the Patron alone now any prerogatiue or direct interest in the Church or the reuenues beside his right of Aduowson or Presentation to the Bishop by whose institution and the Archdeacons induction euery Church regularly is to be filled Neither for ought I haue heard hath he in our Law any of those Droicts honorifiques which the French allow him in Precedence Seats and the like These particulars of Benefices and Aduowsons had here their place both because in the ancient
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
them in the course of composing it The Testimonies were chosen by weight not by number taken only thence whither the margin directs neuer at second hand Neither affected I to muster vp many petie and late names for proofe of what is had wholly by all from ancient Fountains The Fountains only and what best cleered them satisfied me and I supposd euery iudicious Reader would be so best satisfied also For in meer matter of elder storie what credit can Nauclerus Cario Cuspinian or the numerous rest of later time adde to the testimonies of those Ancients yet extant from whom they borrowed what euer they haue new drest of preceding ages Petrus Comestor or Ludolphus de Saxonia may aswell increase the credit of holy Writ as those other may the truth of such Histories as instructed them in common with the rest of posteritie Neither at all wish I that this of mine should gain any strength of Truth from my Name alone but from those autorities which I haue designed and brought both for Elder Late and Present times out of such both Printed and Manuscript Annalls Histories Councels Chartularies Laws Lawiers Records only as were to be vsd in the most accurat way of search that might furnish for the subiect yet also I haue not neglected the able iudgements of such of the learned of later time as giue light to former ages but I so preferd the choisest and most able that I haue wholly abstaind from any mention or vse here of those many Ignorants that while they write rather instruct vs in their own wants of abilitie then direct to any thing that may satisfie If through ignorance I haue omitted any thing in the Historie or the Reuiew that deserued place in them who euer shall admonish me of it shall haue a most willing acknowledgment of his learning and courtesie But all the bad Titles that are euer due to abuse of the holiest obtestation be alwaies my companions if I haue purposely omitted any good autoritie of ancient or late time that I saw necessarie or could think might giue further or other light to any Position or part of it For I sought only Truth and was neuer so farre ingaged in this or aught els as to torture my brains or venture my credit to make or creat Premisses for a chosen Conclusion that I rather would then could proue My Premisses made what Conclusions or Coniectures I haue and were not bred by them And although Both of them here not a litle somtimes varie from what is vulgarly receiud yet that happend not at all from any desire to differ from common Opinion but from another course of disquisition then is commonly vsed that is by Examination of the truth of those Suppositions which patient Idlenesse too easily takes for cleer granted For the old Sceptiques that neuer would professe that they had found a Truth shewd yet the best way to search for any when they doubted aswell of what those of the Dogmaticall sects too credulously receiud for infallible Principles as they did of the newst Conclusions they were indeed questionlesse too nice and deceiud themselues with the nimblenesse of their own Sophismes that permitted no kind of established Truth But plainly he that auoids their disputing Leuitie yet being able takes to himselfe their Libertie of Inquirie is in the only way that in all kinds of studies leads and lies open euen to the Sanctuarie of Truth while others that are seruile to common Opinion and vulgar suppositions can rarely hope to be admitted neerer then into the base court of her Temple which too speciously often counterfaits her inmost Sanctuarie and to this purpose also is that of Quintilian most worthy of memory Optimê° est in discendo patronê° incredulê° For the Summe of the Performance in behalfe of the Clergie I dare confidently affirme that neuer before was there towards so much Humane Law positiue for the paiment of whole Tithes obserued to publique view as is here discouered and that especially in the VIII chapter for the Clergie of England And plainly he that talks of Tithes without reference to such positiue Law makes the obiect of his discourse rather what he would haue should be then any thing that indeed is at all For what State is in all Christendom wherein Tithes are paid de facto otherwise then according to Human Law positiue that is as subiect to some Customes to Statuts to all ciuill disposition If they bee in truth due Iure Diuino which Diuines must determine of they remain equally so aswel after as before Human Laws made touching them But that is a question daily controuerted and among the Clergie Now who euer disputes it and relyes only on Ius Diuinum or the holy Scripture for the right of Tithes doth but make way for him whom hee cannot perswade that they are due by the Law of God to thinke that they are no way due Which questionlesse was the originall cause of the Opinions of such as falsly taught them not at all payable but arbitrarily as Almes euen since Parochial right in them established I meane the Dominican and Franciscan Fryers and those other of a farre different stampe Wicliffe Erasmus and the like Had they sufficiently thought of the Constitutions and Practice of Christian States whereby Tithes had been variously dedicated for the maintenance of the Euangelicall Priesthood and setled for other holy vses either by continuance of time by the owneâ—s conueyance or by any such other ciuill Title the strength whereof is immediatly founded in human Law what colour could they haue had to thinke that they had been only Almes for what euer is lawfully established by a ciuill Title is cleerly debitum Iustitiae not Charitatis what brain then except one bewitcht can think that Human positiue Law and common Pracâ—â—ce which vsually either declares or makes also a positiue Law are not most carefully to be sought after in inquiries touching this sacred Reuenue which is no otherwise enioyed in any State then as that Law hath ordaind and permits And let Human Laws Practice and Opinions bee as their Autors will yet whatsoeuer argument may be found in the law of God for the right of Tithes remains still as vntoucht and equally of his former power as the heat and light of heauen euer did notwithstanding the vse of Fire had vpon earth And the truth is that diuers of them that writ with more will then iudgment for Tithes fall often from their Ius Diuinum before they are aware and talke of them as supposd due also by Human positiue Law of Practice But they are farre enough from shewing what or where that Law or Practice is what doe they else when they confound Tithes and consecrated lands together and apply that to Tithes which is equally to bee spoken of lands giuen to the Church I trust they mean not that the Church had an originall Title also Iure Diuino to lands arbitrarily consecrated to it Let
not then either the purpose or conuenience of thâ—â— Historie bee valued from what distemperd Malice Ignorance or Iealousie haue cryed it down with in corners The learned Frier Bacons most noble Studies being out of the rode of the lazie Clergie of his time were vehemently at first suspected for such as might preiudice the Church Reuchlin and Budè the one for his Ebrew the other for his Greek were exceedingly hated because they learned and taught what the Friers and Monkes were meere strangers to Others about their time had like fortune Neither was any one thing in the beginning of the Reformation so vnwillingly receiud or more opposd by such as labourd that Ignorance might still continue in her triumph then that singular light to the cleering of error the Geek Text of the New Testament first publisht in print by Erasmus and it was ordaind as he saies vnder great penaltie in I know not what Colledge of Cambridge that no Fellow of the house should be so impious as bring it within the gates For the World hath neuer wanted store of such blockes laid in the way of Learning as willingly endure not any part of curious diligence that seekes or teaches whatsoeuer is beyond their commonly receiud Nihil vltrà But there are others that both can iudge and doe wish for all light to Truth such they were that euen while IgnoraÌ„ce yet held her declining Empire defended those Worthies Bacon Bude Reuchlin Erasmus and the rest that so sufferd and to doubt whether this of mine shall find such also were but to question wâ—ether euery man were yet a malicious Rebell to Truth and wholly without Ingenuity that performes euen as much in fostering her as Time doth in breeding her But neither is the Worke alone taxt by mistaking of the subiect but also in regard of the Autor what hath a Common Lawyer to do so they murmur with writing of Tithes for by that name it pleases them to stile me and I must confesse I haue long labourd to make my selfe worthy of it But I would their discretions also would designe out to whom it belongs more to write the Historie of Tithes then to a Common Lawyer I expect not such a sottishnesse as that they should so much as dream it to bee more proper to any of the other single professions of this Kingdome except to a Diuine or a Ciuilian vnder which name because those which practice the Canon Laws here according as the Common Laws permit take their Degrees in the Ciuill Law I comprehend also the Canonist and vse hath here made the name of Ciuill Law to denote both Ciuill and Canon For the Diuine what is there in the course of his Study restraind to his profession that can neer enough instruct him in the Laws and Practice especially of the Christian times Nor is the Practice or Laws of Tithes among the Iews as they are deliuerd interpreted by their Doctors more indeed restraind to the course of Diuinitie then of Law and Historie But should a Ciuilian rather haue dealt with it if hee then eyther according to what we vnderstaÌ„d by that name in England as a Ciuilian or as a Canonist if as a Ciuilian hee should theâ— haue made that proper to himselfe touching which in the whole body of his Law though hee take in also Theodosius his Code the Basilica and the Nouels of the later Easterne Emperors not the least mention is found of Tithes belonging to the Church Indeed a case is put by Vlpian of vowing of Tithes which some old ignorant and barbarous Doctors vnderstand of Tithes among Christians but they were long since laught at for it by him that first happily labourd in the restoring to that Profession the lost neatnesse and elegancie of the Text. That was cleerly spoken of the Roman vse only of vowing to Hercules or the like But should the Ciuilian as a Canonist haue done it what in all his Decrees Decretals and Extrauagants though hee ioyne many armies of his Doctors directs him to the Practice of the Iews Gentiles or Christians where shall the Canonist or the Ciuilian or the Diuine in the courses of their proper studie find the many Secular Laws made in behalfe of the Clergie for Tithes where the ancient practice of payment If it be cleer then as I hope none hath the impudence to denie it that neither the Diuine nor Ciuilian nor Canonist by the course of their owne appropried Studies can come to what is necessary in the knowledge of the History of Tithes it will bee as cleere that none of them could challenge the medling with it as a right specially belonging to any of their Professions But neither indeed is it proper to any one alone of those that are commonly made Professions The truth is both it and not a few other enquiries of subiects too much vnknowne fall only vnder a farre more generall Study that is of true Philologie the only fit Wife that could be found for the most learned of the Gods Shee being well attended in her 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or daily seruices of Inquiry by her two Hand-maids Curious Diligence and Watchfull Industrie discouers to vs often from her raised Towre of Iudgment many hidden Truths that on the deuell of any one restraind Profession can neuer be discerned and euery Profession takes from her to it selfe as was long since obserud some necessary part not elswhere to be sought for not much otherwise then as the Subaltern sciences do from their Superiors or as they all do from that Vniuersalitie or First Philosophie which is but the more reall part of true Philologie and establishes principles to euery Facultie that could not of it selfe alone know how to get them But is not the companie of this great Lady of Learning with her attendants as fit for a Student of the Common Laws of England as for any other pretending what facultie soeuer I neuer heard that shee was engaged alone to any beside Mercurie Noâ— find I any conditions in the Mariage twixt her and Mercurie that shee should fauour any one particular Profession more then another I know there haue been and are many common Lawiers of other States for euery State in Christendom is gouerned by its own Common Laws and Customs and hath truly its common Lawiers as is further shewd towards the end of the Reuiew so farre from being strangers to Her that they are all to be reputed of her chiefest Darlings and some of them are hardly equalled among any other Professors witnesse in France those euer honord names Bude Cuiacius Brisson Tiraquell Pithou Pasquier Le Thou Aerault Berterie Sauaron and others in the Empire Gruter Freher Ritterhuse in the vnited Prouinces Groot Heuter and the like elsewhere For these all were or are practicers of the various common or secular Laws of their own Nations although they studied the Imperialls and Canons in the Vniuersitie and who of the learned knows not
in this ridiculous kind that they determined totam plenitudinem perfectionem veritatis in istis literis numeralibus esse dispositam witnes the Basdidians god Abraxas Nay some Fathers of those times so much regarded this arithmeticall way of search that in this very storie of Abrahams successe with his companie of 318. and of his recouering the goods the women and people they deliuer that the mysterie of our Lord crucified was denoted that number 318. is in Greek thus τιη. For they reckond out of Greek as the Iews out of Ebrew in the 300. figured by τ. they supposd the Crosse foretold as otherwise it is vsually obserud vpon that of Ezechiel cap. IX 4. And 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 they took for the two first letters of our Sauiours name ιη or Iesus Wherupon Prudentius relating the victorie saies we should be very rich as Abraham in his spoiles Si quid trecenti bis nouenis additis Possint figurâ nouerimus mysticâ where for bis some Copies without sense haue his but who sees not the vanitie of such mysteries Although too the vnlimited libertie of our times in so confidently daring to tell vs the mysterie of the number of the Beast would make a man giue the more regard to these collections out of numbers Euery great Clerk that deales with it hath for the most part his seuerall word to make vp 666. Some for vs some against vs. And no doubt is that one old one may be added but he which long before Luther made Sir Iohn Old-Castles name to fulfill that prophesie thought he had been as neer truth as the best of them Out of IOHN OLD-CASTEL in numerals he makes 701. and thence subtracts the yeer of his age wherin he so charitably and stoutly tooke part with Lollards and was condemned for heresie that is 35. and the rest being 666. notes him out saies he with the Character of the Beast risum teneatis this in most miserable verse he expresses Nor hath this dream of his place here otherwise than as an old patterne of trifling boldnes vsed in the later Arithmetique of many on that passage in S. Iohn in whom are tot Sacramenta quot verba and of whom the answer giuen by that great Doctor Caluin was as iudicious as modest he being demanded his opinion what he thought of the Reuelation answerd ingenuously he knew not at all what so obscure a Writer meant he might best haue spoken it on this particular of the number to which found by arbitrarie collection who euer giues much credit might vnhappily perchance be induced to beleeue some mutuall respect twixt Abels Offering and Abrahams Tithes How among the Iews Tithes were paid or thought due CAP. II. I. First fruits and Heaue offering that is sixtieth parts at least first were paid out of the fruits of the earth II. The first Tithe was paid to the Leuites who out of that paid a Tithe to the Priests and then the second Tithe III. The error of them that make a third Tithe The second Tithe of euery third yeere spent on the poore what they take the yeer of Tithing to signifie in Deuteronomie IV. Aboue a sixt part was yeerly paid by the. husbandman but no Tithe by him to the Priests V. How their Cattell were tithed VI. A discontinuance of payment among them Honester Ouer-seers chosen for the true payment Demai that is things doubtfull whether Tithes were paid of them or no. Passages in Epiphanius and S. Chrysostome of their Tithing VII Their Tithing of euery herb what their Canonists hold Titheable VIII Their Law of Tithing after the destruction of their second Temple ceased by the doctrine of their Canonists which teaches also that they are not to pay elsewhere then in the Land of Israel and some adiacent Countries Presbyteratus Iudaeorum totius Angliae anciently granted by the English Kings I. THe yeerly increase being either fruits of the ground or Cattell In the Law of fruits of the ground first the first of the forwardest were offered to the Priest in eares of Wheat and Barley Figs Grapes Oliues Pomegranats and Dates And of these seuen only the first fruits were paid in what quantitie the owner would next the Therumah or heaue Offering or first Fruits of Corne Wine Oile Fleece and the like were also giuen to the Priests But it being not determined by Moses of what quantitie this heaue Offering should be the Iews anciently assest it to be enough at the fiftieth part but so that no necessitie was that euery one should pay so much he that paid a sixtieth part was discharged and many of the better deuotion offerd a fortieth The fiftieth part they call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is an indifferent or competent Therumah or heaue offering which they namd also 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is the great heaue Offering the fortieth they stile 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is a Therumah of a faire eye or liberally giuen the sixtieth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is a Therumah of an ill eye or an niggards gift But you may obserue too that this which they called a niggards gift was not beneath the quantitie of the Therumah appointed in Ezekiel where the words are This is the Therumah that yee shall offer the sixt part of an Ephah of an Homer of wheat and yee shall giue the sixt part of an Ephah of an Homer of Barly it is the same as if he had said yee shall offer a Therumah of the sixtieth part of euery Homer for an Ephah being the same measure with a Bath that is neer our common Bushell was the tenth part of an Homer therefore the sixt part of an Ephah the sixtieth of an Homer After the Therumahs offerd to the Priests euery kind being giuen in season out of the rest were taken the Tithes which are best diuided into the first and second Tithe II. The first Tithe was paid out of the remainder to the Leuites at Ierusalem by that name it is euery where titled and out of this Tenth receiued by the Leuites another Tenth they paid to the Priests as a heaue Offering out of their Tenth which they called also the Tithe of the Tithe For the Priests receiued no Tithes of the Husbandmen only the Leuites receiued Tenths from them and paid their Tenth to the Priests being as S. Hierome sayes tanto illis minores quanto ipsi maiores populo So Clergie men by that example haue paid Tithes to the Pope and so by a late Law they doe in this Kingdome to the Crown Neither might the Leuits spend to their owne vse any part of theirs till this Tenth of the Tenth were paid Afterwards it might be imploied for their maintenance generally wheresoeuer This first Tenth paid the nine parts remaining were accounted 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is prophane or for common vse yet not to be spent by the Possessor
Ille bonus Christianus est qui ad Ecclesiam frequentiùs venit de fructibus suis non gustat nisi prius ex ipsis Domino aliquid offerat qui Decimas annis singulis Pauperibus reddit qui Sacerdotibus honorem c. These also shew a vse of payment among the firmer and deuouter Christians in those times But they were then disposed of diuersly now you see to the Priests now to Abbots now to the Poor and when they were offered to Baptismall or Episcopall Churches they were receiud as indefinit Offerings the quantitie whereof was wholly arbitrarie in respect of any constitution or generall Law in vse The quantitie of the Offerings was arbitrarie but some kind of Offering was necessarie He that offered not at all of his fruits was compellable it seems by Excommunication as in the Easterne Church where that compulsion also was taken from the Churches autoritie in the Patriarchat of Constantinople but not as yet he that offerd a lesse quantitie And that it was a speciall bountie to offer the Tenth you may see in the old Aethiopian Masse where a distinct prayer is for those Qui obtulerunt munera sanctae vnicae quae est super omnes Ecclesiae sacrificium scilicet primarum Decimarum gratiarum actionis signum monimentum And it seems the disposition of the Offerings were so in the Patrons power by the practice of some places that hee might assigne a certaintie of them to the Minister of his Church and employ the rest at his pleasure which agrees enough with the right challenged in the succeeding ages touching Inuestiture and arbitrarie Consecrations whereof more in the next CCCC yeers although in this age also some Canons of the Clergie subiected all new-built Churches to the Bishops gouernment but were little obeyed For meere church-Church-Laws hitherto Some secular Constitutions are that about the yeer D. CC.LXXX were made for the payment of Tithes by Charles King of France Italy and Lumbardy and afterward Emperour But because they fall so neere the end of this part of our Diuision and are rather to be accounted amongst the Laws of his Empire which began not till neer XX. yeers after that is about D.CCC. then only of his Kingdome and were afterward receiud into the Imperiall Capitularies whence we haue chiefest notice of them they are purposely referd into the next CCCC yeeres as the first Latitude required in our Diuision permits Neither before them did any generall Law that yet remains in publique and is of credit ordain any payment of Tenths in the Westerne Church For in the Eastern neuer any Law that I haue obserud mentions them Between about the yeer D.CCC. and neere M.CC. CAP. VI. I. Payment of Tithes how performed II. Arbitrarie Consecrations of them alone like Grants of Rents-charge at the Lay-owners choice to any Church or Monasterie were frequent and sometimes Lay-men sold them to the Church Redimere Decimas III. Appropriations of them with Churches wherein they passed as by themselues from the Patron seuerally and directly in point of interest The beginning of Parish Churches Disposition of the Offerings 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 Tithes 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 granted 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 THe practice found in the time twixt about D.CCC. and M.CC. from Christ consists in some ordinarie payments of Tithes as in the former ages in more frequent Consecrations of a perpetuall right of them alone to any Church or Monasterie at the owners choice in Appropriations of them with the churches in which they were by custom or consecration established in Infeodations of them into Lay-hands and in Exemptions for discharge of paiment By the more generall Opinion of the Church they are exprest to be due Iure diuino but that is warily to be interpreted out of the generall practice cleerly allowd by the Clergie From the beginning of this time Canons are very frequent for the right of them But the first Law that may at all be stiled generall for it was ordaind by Charles the Great and receiud but litle practiced through the Empire Of all these in their order I. Not only from deuotion but through Ecclesiastique censure also aided with secular power about the very beginning of this CCCC yeers many Churches in the Western Empire had the Tenth paid as a dutie This may be collected out of an Epistle writen by Alchwin to Charles the Great touching the exaction of Tithes which hee calls iugum Decimarum and plena per singulas domus exactio of the Hunnes and Saxons who being then lately by Charles conquerd had newly receiued the Christian faith Alchwin there aduises that it were better for the Christian cause to omit it amongst them till they were grown firmer and speaks of it as a thing of known vse among other setled Christans His words are Vestra sanctissima pietas sapienti consilio praeuideat si melius sit rudibus populis in principio fidei iugum imponere Decimarum vt plena fiat per singulas domus exactio illarum an Apostoli quoque ab ipso Deo Christo edocti ad predicandum mundo missi exactiones Decimarum exegissent vel alicui demandassent dari considerandum est Scimus quia Decimatio substantiae nostrae valde bona est Sed melius est illam amittere quà m fidem perdere Nos vero in fide Catholica nati nutriti edocti vix consentimus substantiam nostram plenitèr Decimari Quanto magis tenera fides infantilis animus
is pertinent hither you may see the Grants and Bulls made to the Abbey of Clugny to the Abbey of S. Germans in Auxerres and many other like recited in Pope Innocent the third his Decretals as also the Charter of Henry Earle of Brabant to his Abbey of Afflighem neere Bruxels of Thierry Earle of Holland to the Abbey of Egmond which being but a few of a multitude enough shew the vse of the time in conueying Tithes in Appropriations seuerally and as distinct from the Church and more are of this nature where we speake of the English vse And although also Confirmations and Bulls of Popes and Bishops are sometimes added to such ancient Appropriations as you see in an ancient Charter by Lewis the fourth of France in the yeere DCCCCXXXIX to the Abbey of Clugny where the Appropriations of Churches and Tithes Sicut per priuilegium Romanum per scripta Episcoporum ad quisierunt are confirmed and in other Monuments of succeeding Times yet those were gotten by the Monks to satisfie the Canons not to giue validitie in secular or common Law then practiced But also some Instruments of Appropriations are wherein from Bishops only Tithes of other mens Lands were conueyed to Monasteries as in that especially of Athelbero Bishop of Hamborough in the yeere MCXLI whereby he giues to the New Minster in Wipenthorp then newly founded by Vicelin in the Territorie of Holst eiusdem Villae Decimam cum aliarum quarundum Villarum subter positarum Decimis veluti in villa Stauera Horgan Braâ—htenuelde Tuenthorp Godeland Wlmersthorp Boienbutle Husberg Cumerueld Padenworth Withorp Padenstede Bulligstede sed alias Decimas iuxta fluuium Gestere in vtroque littore à villa Elmeshorne vsque ad lacum Wicflet c. with diuers other And by another Charter dated MCXLVI he giues to the same Monasterie other Tithes of great value and some of his successors follow his example If you question how the Bishop came to haue power to make these Grants eyther in regard of Parochiall Curats by the Canon Law or of the Lay owners interest according to the practice of the Time know that in this and most of the Bishoprique of Germanie especially which began with the Christianitie of the Dioceses about or since the beginning of the French Empire the right of Tithes through those Dioceses was challenged by the Bishops onely and that iustly enough by the Lawes of the Empire which presently are related because the Parishes being not limited nor indeed Christianitie so at first setled that they could haue beene well assigned to Parochiall Curats the Bishops were the true and immediat Parochiall and ministring Rectors in their Bishopâ—iques and although afterward Parish Churches were founded yet to them they would not resigne their ancient right in Tithes which from their first Function there they had eyther enioyed or still pretended to both in regard of the value of them as also because euery founded Church was to be otherwise endowed with Manse and Glebe Neither had it beene altogether safe among so obstinate a people which could scarce by any means be brought to pay any Tenths to haue permitted euery Parish Rector afterward to haue demanded them or taught them due to himselfe for to such as had both at once receiued the Doctrine of the Faith and the declaration of the right of Tithes due to the Ministers which were only when they receiued it the Bishops if you respect only as you must the Ministers setled among them it might haue seemd a different Doctrine to haue afterward taught them due to any inferior part of the Hierarchie especially in the weaker yeeres of that Church Hence is it that the Archbishop of Mentz claimed all the Tithes in Turingia the Bishop of Lubek of Saltzburg and others the Tithes of their Dioceses and hence only those of Hamborough so liberally dispose of them Neither could any of these reasons so well haue place in other Countries for except in Germanie and those more Northerne parts Christianitie was in most places of Europe it seems so established and the Hierarchie of Bishops and parochiall Rectors so setled before any common Doctrine or generall Law for payment of Tithes was so diuulged for a thing of necessarie obseruation in the Church that when it came after to be commaunded it could not be in any conceit better ordered then according to the diuision of limited Parishes and those wanting at the time when the Faith and the Doctrine and Laws of Tithes came first into those parts how could it on the other side fall out but that they should be taught due only to the Bishopriques Which opinion also it is no wonder that those Bishops should be willing to preserue and continue after Parishes were there diuided and after Tithes came at length to be paid them For long they preached and much stirre was about it before they could get a vsuall payment of them Neither need you mistrust that their right to Tithes so cleerely pretended in the Appropriations by the Bishops of Hamborough was onely from the Episcopall right which the Canonists allow in case where the Lands wherein the Tithes encrease are not assigned to any one Parish Church the contrarie thereof appears enough in other conueyances made to the same Monasterie in which the same Bishop Athelbero first in MCXLII appropriats to it the Parish Church of Bishorst vpon Albis cum banno fimul cum omnibus appendicijs eius acquisitis vel ac quirendis and with the largest bountie that the thing giuen might carrie with it but afterward in MCXLVI hee graunts to it also a good part of the Tithes within the Banne and precinct assigned to the same Church which plainely shewes that he graunted Tithes of Lands alreadie assigned to parishes For his Parish Churches and their profits were no other then what Foundations speciall Endowments and the Offerings of the parishioners within their Banne or Limits had made them Which is well iustified by an old Rimer that in Verse which would grieue Apollo's heart to heare sings Athelbero's liberalitie to the Monasterie and expresses the Tithes of foureteen Villages and other places giuen by him and then comes to two Churches that he afterward appropriated to it Bishorst and Ichorst and names them only as they had Bannes or Limits and parishioners as Bishorst cum Bannis Bannos cum parochianis Ichorst cum Bannis Bannos cum parochianis And then addes Et Bishorstensis Decimatio tota paludis Additur quaeque fratrum labor occupat aequè Where you see hee diligently remembers also an Exemption giuen to it by that Bishop which could hardly haue been if the generall right of Tithes had not beene supposed in him But out of these things you may probably collect that by this time that is diuers yeeres before the end of these CCCC yeeres in some of those Northern Churches Tenths were payd more iustly according to the
draw it to a different sense and oppose it against the right of all feudall Tithes being ancienter then the Councell and since passed ouer into Lay hands And whereas they commonly suppose that all these ancient feudall Tithes were at first spirituall and transferred from Church-men at the request of Princes into Lay hands and since wrongfully detained surely it is an error neither is there any ancient warrant sufficient for it many of them were doubtlesse created by Lay mens Grants as Rents-charge Estouers Turbaries and the like are Who can doubt of it that obserues but alone this Canon Prohibemus Whence also may be strongly inferd that the greater number of Infeudations were through Grants made by Lay men to Lay men as Consecrations were at their pleasure made to Churches for what is there only forbidden by the Councell may be thought the greatest and most preiudiciall practice of the time against the profit of the Clergie Neither is any prouision there made against the other kind of Infeudations which passe Tithes from Church-men And although the words Ecclesiae non reddiderit in the Canon and in the bodie of the same Councell in Roger of Houeden seeme to suppose as if it had been made for such Tithes as had been taken from the Church yet indeed the truer reading is tradiderit as appears in the bodie of that Councell first fully publisht out of the Vatican in the last Tome of the Generall Councells printed at Rome by command of the present Pope Paul the fift wherewith agrees other Editions but of lesse authoritie And perhaps also some old Infeodations were made by Lay Patrons in the vacancie of their Churches by the same challenged right as they alone made Appropriations For as by our common Law the Patron and the Bishop may in the time of vacancie dispose of the Endowments as by the Canon Law also if the Chapters consent or the Popes be had so in those elder times vpon equall reason when the Patron had the only disposition and interest of the Church as is alreadie shewd he alone sometimes granted any part at his choise it seems to Lay or Clergie men Why not any part as well as all And that Patrons granted whole Churches into Lay hands appears by diuers passages in Flodoards Rhemish historie by that before cited out of Damian and by the generall Councell of Lateran vnder Innocent the second where it is ordained that they should be restored from the Lay men to the disposition of the Bishops And an example is extant among the Records of the Monasterie of Egmond in Holland wherein Charles King of France who is commonly therein taken for Charles the Bald but Douza thinks it to be rather Charles the Simple and made about D.CCCC. and is thereto perswaded by Synchronisme the best triall of such truths recites that Hagano one of his Nobles humbly requested of him for Thierry the first Earle of Holland quasdam res Ecclesiam videlicet Hecmunde cum omnibus ad eam iure pertinentibus à loco qui dicitur Zwtherdes Haghe vsque ad Fortrapa Kinnâ—m c. Which by patent hee grants him in fee vt libere haec omnia teneat atque possideat habeat que de his potestatem iuxta libitum suum ordinandi seu saciendi If the Church it selfe of Egmund the Parish Church for it was then no Abbey but afterward made one by that Thierry passed not by this patent into Lay hands I sufficiently vnderstand it not neither is it spoken of but as what might according to the vse of that time be cleerly made a Lay fee. Through these kind of Grants practiced both by Lay Clergie men Princes and priuat persons the ancient Infeodations of Tithes had their originall as well as by Leases from the Church and not by imposition of Tenths by Princes as some haue ignorantly coniectured although also it be certaine that Princes sometimes ioyned with the Bishops to bring in the payment of Tithes that thereby themselues might haue beneficiall Infeodations of them from the Church But as Princes made Infeodations out of their owne Demesnes or their owne Churches so other priuat Lay Persons And the Clergie sometimes of Tithes alreadie vested in them and sometimes it seems out of their Demesnes And perhaps especially religious persons exempted from payment by Bulls made some out of their owne Demesnes as may be coniectured out of a Decree of Pope Alexander the fourth that speaks particularly of Infeodations made à religiosis exemptis alijs And for example of Tithes alreadie possessed and thus granted by the Church you may specially see that of Engelbert Count of Goritz who had an Infeodation anciently from the Church of Trieste in the Patriarchat of Aquilegia and Henrie Count of Ratzenbourg had an Infeodation of all the Tithes which were paid to the Church in his Territorie from the Bishop of Oldenbourg so one Hildeward had one in the Diocese of Hamborough and surrenderd it to Baldwin Archbishop there about M.C.LXXIV But examples of them were very many the dissike whereof was one speciall cause pretended by those of the Deserts of Wagria in Holst about M.C.LXX. why they would pay no Tithes Praeterea sayes Krantzius hoc adiecerunt non multùm a veritate aberrantes quòd omnes paenè Decimae in luxus cesserint hominum saecularium To these testimonies of Lay mens arbitrarie detaining disposing or receiuing of Tithes in those elder ages you may adde Bernardus Morlanensis an English Monke of Clugny about King Stephen his complaint of non-payment to the Clergie thus speaks he in his affected forme of Verses Rusticus hordea mittit in horrea farra recondit Horrea grandia vasa capacia multaque condit Nec pecus aut sata dante Deo data vult Decimare Nec sacra portio nec Decimatio redditur arae V. The like libertie as Lay men had enioied in not subiecting themselues to the payment of Tithes according to the Laws of the Church but bestowing or retaining them at their own wills in most places euen from the beginning of Christianitie vntill about the yeer M.CC. was another way purchased for some time by religious houses so to discharge themselues of censure of the Canons and that by Exemptions or Papall priuilege For howeuer the Laitie iustified themselues by their secular right admitting of Canons that toucht their estates but as they saw cause in their own iudgments yet Religious persons who were alwayes of the Pontificiall side and reckond in the Catalogue of the Clergie and possessed diuers large Territories durst not so oppose what was ordaind either by decree at Rome or in Synods Generall or Prouinciall Therefore when from the beginning of this Age both Doctrine and Canons of which more presently had made the dutie of Tithes of a known right among the Clergie Clergie men became somwhat strict obseruers of the payment as you see plainly in that before
Laicis in feudum perpetuò sunt concessae But we must take it vpon his word only and the credit of the following Canonists that the Canon was so to be vnderstood They may as they will vnderstand it by iudiciall application but you may at least doubt still that the Historicall vnderstanding of it is to be had out of arbitrarie Consecrations before practiced And it was euen equall to ordaine that Lay men should not arbitrarily consecrate and that they should not consecrate without assent of the Bishop euery Bishop I think being supposed a carefull obseruer of the former Canons which would haue induced parochiall right to Tithes and generall payment So that what in this kind might not be done without his assent was conceiud as likely to be neuer done to the Churches preiudice Let euerie able reader iudge here but let him not be much swayed with the rable of late Canonists that goe away cleer with this of Pope Innocent When the Pope had said so they made no scruple of the truth of it and one takes it as their fashion is from another with too much easie credulitie But although this be not sufficient ground for that assertion of our common Lawiers which cleerly being rightly apprehended is true though lazie ignorance crie against it euen to hoarsenesse yet enough other will be found whereof more toward the end of the tenth Chapter Of the time from M.CC. or neere thereabouts till this day CAP. VII I. The Canons of Generall Councels and Decretals 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 immediat 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 meer 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 IN these following times the Canon Law grew to be of more force and Parochiall right through the Decrees made against that former course of arbitrarie Conueyances and from the passages of Canon Law that supposd the generall right of Tithes became to be more established But the Opinions of Canonists and Diuines haue been and are much different in the question vpon what Law the generall right of them is immediatly grounded But by the Practice of the Common Laws for so much as I haue read of all Christian States they are subiect to Customes and that somtimes as well in non payment as in payment of a lesse part And Infeodations of them into Lay hands yet continue in France Spaine Germanie and elsewhere And of Customes only and Infeodations wee shall principally speake in the practice of this time For what euer might here otherwise be rememberd touching Compositions Exemptions or such like is but a meer consequent of those Customes and of the Opinion that makes them due only by Positiue Human or Ecclesiasticall Law I. It is sufficiently manifested in the practice of the former CCCC yeers that the Laitie did vsually conuey their Tithes by Consecrations and Appropriations to what Church they would and by Infeodations to Lay men Their Infeodations were forbidden by the Generall Councell of Lateran in M.C.LXXX. whence that most known Canon Prohibemus before cited was taken into the bodie of Gregories Decretalls and hath euer since been and still is in autoritie and that also in the secular Lawes of France especially It was in the same Councell ordained That no religious Orders should receiue any Appropriations or Consecrations of Churches or Tithes without assent of the Bishop Ecclesias Decimas are the words de manu Laicorum sine consensu Episcoporum tam illos that is Templars and Hospitalars against whom the prouision was chiefely made quam quoscunque alios Religiosos reciperc prohibemus This was confirmed in the Generall Councell of Lateran held vnder Innocent the third in the yeer M.CC.XV. And a Canon of the Generall Councell of Lateran vnder Calixtus the second in the yeer M.C.XIX. wherein parochiall Ministers were also forbidden to receiue Tithes or Churches from the hands of Lay men by Inuestiture especially Absque consensu voluntate Episcopi was afterward in diuers Epistles of Pope Alexander the third receiued and confirmed And although manie Decrees were before against those Conueyances yet till these Generall Councels vnder Alexander and Innocent neither was the Autoritie of the Church so powerfull neither were Epistles sent from Rome so frequent to put that in execution which had so been there established against that challenged right of the Laitie But by this time when the arbitrarie disposition of the owner was thus prouided against reference being made to the Bishops assent that was bound to square all things by the Canons which would haue Tithes paid parochially and became to be much more obeyed then before it grew frequent to haue Decretall Epistles sent from Rome into euery Prouince both to ratifie the former Consecrations and Appropriations which the Popes began also at pleasure to declare sometimes void if made by Lay men alone and also to exact parochiall payments of other Tithes not canonically conueyed out of the Parish and the reason sometime was added that is Perceptio Decimarum ad Parochiales Ecclesias de iure communi pertinet and the Generall Councell of M.CC.XV. had taken it cleere and so exprest it that in signum vniuersalis Dominij quasi quodam titulo speciali sibi Dominus Decimas reseruauerat And after a few words the Canon is concluded with Decimare cogantur Ecclesijs quibus de iure debentur And the action for parochiall Tithes in those times as now is called iure communi fundata intentio that is by common right Tithes praediall and mixt were due to the Rector of the Parish were he Bishop or Priest if they were not otherwise by speciall title enioyed by some other Church or discharged by Canonicall Exemption But how little this common right had before been practiced appears not only in what is alreadie declared of the vse of the former time and in the doubts made by Gratian in the Decree and Pope Lucius the third Alexander the third and others in their Epistles touching it but also in other occurrences of somewhat before the beginning of these CCCC yeers amongst which you shall find
alienas inuadunt Praecipit igitur sancta Synodus omnibus cuiuscunque gradus conditionis sint ad quos Decimarum salutio spectat vt eas ad quas de Iure tenentur iu posterum Cathedrali aut quibuscunque alijs Ecclesijs vel Personis quibut legitimè debentur integrè persoluant Qui verò eas aut substrahunt aut impediunt excommunicentur nec ab hoc crimine nisi plenâ restitutione secutâ absoluantur For Popes Decretals of this time I referre you further to the Laws made or receiud in England II. In the Opinions that haue been since the beginning of these CCCC yeeres touching Tithes the chiefest to be obserued here are those which determine by what immediat Law Tithes are payable For how euer very many other questions about the dutie of them are vsually disputed yet resolue but this one way or the other and most of the rest that follow about Customes Appropritations Exemptions and such more will soone haue little doubt This point hath been controuerted both betwixt Canonists and Diuines and between Diuines and others of their own profession The Canonists except very few with one consent grounding themselues vpon the letter of some of those passages of Prouinciall Councels of Fathers and of Popes before rememberd generally deliuer that Prediall and Mixt Tithes are due to bee paid iure Diuino which is commonly taken for the Diuine Morall Law and they vsually cite also the Leuiticall Precepts to iustifie it Yet doe they allow the right of former Tithes Canonically setled by Cosecrations Appropriations and Exemptions also for the most part for to those they require Pontificiall Confirmations or a supply of them by such prescription of time as may suppose them For they take this Ecclesiastique reuenue to be no otherwise due to the Clergie by common right but that the Pope whom they to the vtmost maintaine as they haue reason for out of the Popes autoritie first came their generall profession as it now remains one may as a supreme Steward of the Clergies maintenance dispose of this or that particular part of it This is their common Opinion although some in the Point of Exemptions haue made scruple But where none of those speciall Titles precede there they cleerly agree also that by common right all Prediall and Mixt Tithes are due parochially Neither need the Rector in his Libell vpon his Actio Confessoria which is the generall name of such Actions as lie for demand of incorporall rights as with vs our Quod permittat Quare impedit Droit dâ—auowson and the like propose more then that the increase is within his Parish and the other Titles if any be must be shewd in the Exception or Answer But by the way though the Doctors commonly suppose the Action for Tithes to be Confessoria and grounded vpon common right yet that great and ancient Lawier Bishop Durand or Speculator would haue them demanded by the Condictio ex Canone that is as we call it by Action vpon the Statut. The Canons whereupon he would haue it grounded are those passages of S. Hierome and S. Augustine in C. 16. q. 1. c. 65. 66. and hee takes for his autoritie why this kind of Action should be brought that of Paulus out of the Imperials Si Obligatio lege noua introductasit nec Cautum eadem lege quo genere Actionis experiamur ex lege agendum est So that as ex Lege in the Imperials so ex Canone in the Pontificiall Law the Action should be brought He liud long since and perhaps in regard of the various practice that had preceded against the common opinion of his profession touching the common right he thought it most secure for the plaintife to ground his Libell vpon the Canon rather then vpon common right But for Personall Tithes which yet they agree not all to be due iure Diuino although Pope Innocent the fourth make it a wonder to see any man denie it and diuers of them follow him the old precedents also of Libels in Speculator being equally for these as for prediall they are held payable only to the Church where the owner for the most part receiues the Sacraments and Diuine Seruice not where the gaine is made neither in them is any regard had to the parish Whence it comes that Iews and Saracens because they haue no personall vse of the Euangelicall Ministerie are to pay none by this Law sauing in case where they hinder the continuall payment of some former personall Tithe had from Christians The best Autoritie they bring for personall Tithes is that in Deut. XII where Tithes and the offerings of your hands are spoken of By reason of that most receiued ground amongst them That the Tenth is due to the Church iure Diuino their most common opinion is also that euery man is bound to pay the whole Tenth or the value of the whole Tenth of all encrease notwithstanding any custome or prescription to the contrarie Indeed no reason is that a custome should take away what God had immediately and by his Morall Law established The consequent is good were the antecedent cleerly proued But some of them and such as are of no small name deliuer their Law to be only that custome cannot wholly discharge any Land of Tithes but it may diminish the quota or bring them to a lesse quantitie or value that is that a custome to pay a Twelfth Twentieth or lesse is good This some also allow only in customes immemoriall which they suppose to haue the force of a Papall priuiledge or exemption But their common and receiued opinion is that in Prediall and Mixt no prescription or custome to pay any lesse part or value then the Tenth or de modo Decimandi much lesse de non Decimando can be good Which well agrees with the Ciuill Law also For by a rescript of the Emperor Anastasius no prescription may be of non payment of all or a lesse part of Tributes Subsidies or other Rents of the publique Treasurie that is of such things as are due to the Emperor in signum vniuersalis Dominij as Tithes are supposed to God and his Ministris Except only where the certaintie of some equall yeerly payment without regard to euery annuall encrease may be adiudged to be equiualent to a Tenth by reason of the incertaintie of sterilitie or fruitfulnesse In this case they allow a Custome although the Tenth of euery particular yeer be not paid because Ecclesia they say potest se habere ad damnum vel Lucrum indifferently But those other common opinions of theirs are so frequently obuious that to cite Autorities for them were but to imitate Rablais his Bridoye Yet wee may specially remember that the Doctors of the Rota of Rome I think according to their profession also aboue C. yeers since determind quod quota Denaria est de iure Diuino hodierno die But some Canonists withall are and
those of no small note that agree the determination of the Tenth to be only de iure Ecclesiastico and that no more Ius Naturale or Diuinum Morale is in it then what commands a competence of meanes to be giuen to the Priesthood So Couuaruuias so some others But few enough are of this opinion All that are of it make no doubt of the right of Customes prouided alwayes that a sufficient reuenue be possessed by the Minister but allow the payment of them to be diminished or taken away by Custome or Prescription But they are generally against the possession of Feudall Tithes held by Lay men which they suppose but falsely to haue all had beginning from the Church although Infeodated before the Councell of Lateran Yet indeed some of them expresse an allowance of them but that is rather in mingling common Laws with their Canons then writing as Canonists The common Laws of all Nations where feudall Tithes are and I thinke certainly in all Christian Nations feudall Tithes at this day are found allow them now and suffer the Canons to haue no power ouer them And thence is it lest they should grossely determine against such possessions as the Church anciently as well as the Laitie had by Infeodations setled and Posteritie still maintaind that some receiue into their Conclusions an admittance of what their own profession abhorres Which may not be amisse said also of such of them as maintaine a Custome in the quota or the like For that is done rather by striuing to conforme the Canons to the common Laws or secular Constitutions of the State where they liue as our Ciuilians in the practice of the ancient Canon Law do here also then by iudging according to the bodie of the Canons that regularly allow no sufficient exception against parochiall payment of the whole prediall Tenth but only Papall autoritie or a Title canonically setled in some other Church And the better to make these Infeodations stand with their opinions they haue also a vsuall distinction of Ius percipiendi and fructus Decimarum The Ius percipiendi they say cannot be transferd nor euer was by the old Infeodations because euery lay man is incapable of it but the fructus Decimarum only as they teach is what passed and is still possessed in consideration that the possessors should defend the Church from Heretiques and Tyrannie The summe of what the old Canons haue both against ancient and new Infeodations is in the former Chapter noted and according to them how that distinction will hold I see not But among them great opinion is also that all Feudall Tithes are to be restored to the Church and that he which holds them may not lawfully passe them ouer to another Lay man but may only with assent of the Bishop giue them to some Church Nec multum refert quae Ecclesia habeat dummodo extirpentur à Laico as Panormitan sayes And to this they abuse that Canon Prohibemus of the Councell of Lateran that was not indeed made against Tithes then infeodated but only against new Infeodations as Pope Innocent the fourth there well teaches For saith he Non loquitur de Decimis infeodatis sed de alijs male detentis Which iustifies what is in the former CCCC yeers against the receiued Interpretation deliuered III. The Diuines of since the beginning of this time haue had their seuerall Determinations and Doctrines vpon this point and those may be for method put chiefly in a Three-fold difference although rather the second Doctrine as presently will appeare were but an issue of the first and the chiefe question among them comes to this Whether by Gods immediat Morall Law the Euangelicall Priesthood haue a right to Tithes as to their Inheritance in equall degree as the Lay man hath to his Nine or if they haue them only as by human Positiue Law and so giuen them for their spiritual labor that is in brief Whether by originall distributiue Iustice or by commutatiue they are payable although in the Opinion which wee shall here make the third all Positiue or human Law be for the most part neglected whereof more presently But in that which we here make the first of those three Opinions it hath been held that the Tenth considered quoad quotam partem or as it is a determined part and denoted from that number is due only by Law Positiue and Ecclesiasticall but quoad substantiam suam or Cleri sustentationem or in regard to it as it denotes a necessary or competent part of the maintenance of the Clergie that is due by the Diuine Morall Law And to the purpose of this distinction they interpret the Leuiticall commandments of Tithes and deliuer that quoad substantiam suam or as it was generally for the maintenance of the Minsterie in the Iewish Church it is Morall or Naturall there being according to consideration of it so farre the very Character of it writen in the Tables of mens hearts that is that Spirituall Laborers are to be rewarded with temporall bountie as euery laborer is worthie of his hire But quoad quotam partem it is they say a Iudiciall or Ceremoniall as some will and that it hath been brought into the Law of the Gospell by Ecclesiastique Doctrine Constitutions both which we haue before related proceeding from it only per vim eius exemplarem or by imitation of the Iewish state ordered by the Almightie and not in that regard per vim obligatiuam or any continuing force of it vnder the Gospell And that the Church was not bound to this part but freely might as well haue ordained the payment of a Ninth or Eleuenth according to various oportunitie This is commonly taught by the old Schoolemen Hales Aquinas Henricus de Gandauo R. de Media Villa Cardinall Caietan and diuers others but fullest in my iudgment by Ioh. Maior and maintaind by great men that in our times follow their wayes of disquisition The first that expressely made this distinction was that Alexander Hales that liued about M.CC.XXX and thus determind Praeceptum de Decimis est praeceptum Iudiciale vnde non est dicendum Morale quia secundum suam determinationem that is secundum quotam partem non est scriptum in corde hominis nec Ceremoniale quia non est datum principalitèr in figuram significationis sed Iudiciale quia datum simpliciter in rationem aequitatis mutuae distributionis vt sit aequalitas dati accepti inter seminantem spiritualia dantem temporalia secundum quod possibile est c. And Aquinas Determinatio Decimae partis soluendae est autoritate Ecclesiae and adds that the ground of it which he calls radix is the text If wee sow vnto you spirituall things is it a great thing if wee reap your carnall things The same is by Hen. de Gaudano exprest in these words Euangelica· And deliuers accordingly the right of them to be partim de iure Naturae
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
Text of the holy Euangelists which King Athelstan caused to be fairly writen and consecrated to S. Cutbert That text with those Statuta are both yet preserued from the iniurie of time among those inestimable moniments of that noble Knight Sr Robert Cotton For those Pauca iudicia that follow they are of a later hand then the Statuta but of what time it sufficiently appears not That Lex dicit in them may be referd to the Canon related out of the Excerptions of Ecbert but whence that Canon is originally I haue not yet learned VI. King Athelstan about the yeer DCCCCXXX by aduise and consent of the Bishops of the Land made a generall Law for prediall and mixt Tithes in these words Ic AEþelstane cyning mid geþeahte Æ¿ulfhelmes mines hihbisceipes oþra minra bisceopa bebeode eallum minum gereafum ðuph ealle mine rice on þaes drihtaenes nama ealra halgena for mine lufu ê§ hi aerost mines agenes ðam teoþe gesyllaþ ge ðaes libbendes ryfes ge ðaes gearlice Æ¿estmes ê§ ilce gedo eac ða bisceopas heora geÆ¿hilcra eac mine ealdormanna gereafa ic Æ¿ille ê§ mine bisceopes gereafa ðaes demaþ eallum ðe hio gehyrsumian gebyraþ ê§ ilce to þam tide fulfremaþ ðe Æ¿e hio settaþ þaes sie to ðaem daeg ðaer beheafdunges Seint Iohannes þaes fulhteres which is anciently thus turnd into Latine Ego Athelstanus Rex Consilio Wulfhelmes Archiepiscopi mei aliorum Episcoporum meorum mando praepositis meis omnibus in toto regno meo praecipio in nomine Domini Sanctorum omnium super amicitiam meam vt inprimis de meo proprio reddant Deo Decimas tam in viuente captali quam mortuis frugibus terrae Episcopi mei similitèr faciant de suo proprio Aldermanni mei Praepositi mei Et volo vt Episcopi Praepositi mei hoc iudicent omnibus qui eis parere debent hoc ad terminum expleant quem eis ponimus i. decollatio S. Iohannis Baptistae and the example of Iacob with a Text or two out of holy Writ and S. Augustin is added to moue deuotion That translation agrees wholly enough with the Saxon sauing in those words mortuis frugibus the Saxon being yeerly fruits which also another Copie of this translation expresses by ornotinis frugibus corrupted plainly from hornotinis frugibus i. the fruits of one and the last yeer or the yeerly increase and perhaps some ignorant Monk finding ornotinis and not vnderstanding it because he would be sure to square it to his own abilitie of learning made it mortuis which kind of changing hath examples enough in bold but ignorant Criticisme that which the old Translator calls viuens captale is libbendes yrfes i. liuing cattell in the Saxon which hath often ceap also for chattels and somtimes specially for liuing cattell but the old Latine of the Saxon Laws turns ceap also into captale whence cattalla is like enough to haue discended and the first stock of Cattell which by King Ina's Laws was to be giuen to Orphans was called frumstole in Saxon but primum captale in the old translations In Brampton's Historie which is full of the Laws of the Saxon times after those constitutions of Grateley part of which are in Lambard's 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 follows a thankfull acknowledgment to K. Athelstan for this Law of Tithes in these words Karissime Episcopi tui de Kent omnis Kentsirae Thayni Comites villani tibi Domino dulcissimo suo gratias agunt quod nobis de pace nostra praecipere volusti de commodo Nostro perquirere consulere quia magnum opus est inde nobis diuitibus egenis Et hoc incepimus quantâ diligentiâ potuimus consilio horum sapientum quos ad nos misisti Vnde Karissime Domine primum est de nostra Decima ad quam valdè cupidi sumus voluntarij tibi supplices gratias agimus admonitionis tuae VII About D. CCCC.XL Edmund King of England in a Micelne Synod that is a great Synod or Councell a kind of Parlament both of Lay and Spirituall men which are exprest by godcundra and Æ¿orldcundra held in Londan made this Act. Teoþungum Æ¿e bebeodaþ aelcum Cristenum men be his Cristendome cyricsceat aelmesfeoh Gif hit hÆ¿a don nylle ry he amansumod Which is anciently turned Decimam praecipimus omni Christiano super Christianitatem suam dare emendent Cyrycsceatum i. Ecclesiae censum aelmesfeoh i. Eleemosynae pecuniam si quis hoc dare noluerit excommunicatus sit And all agrees with the Saxon sauing only that nothing answers to the word emendent That Cyrycsceat is a Church-rent of Corn or the first fruits of Corn yeerly in those times and regularly payable at S. Martins day to the Church and is sometimes writen Curcscet sometimes otherwise And in an old Ms. Exposition of Law-terms occurres Cherchesonde vne mesure de Ble que checun homme soleit enuoier a Seint Esglise en temps de Bretons Plainely Church-Corn is vnderstood and Cyrksceat that is Church-rent is the originall whence Cherche sonde is there corrupted And among Articles inquirable by euery Escheator in 44. Hen. 3. about the Profits Estate Tenue and Issues of the Kings Tenants one is of Cherchescot tam in blado quam in Gallinis in alijs exitibus It is Circset often in the book of Domesday Where it is found belonging sometimes to Abbeys somtime to Parish Churches somtimes to others It was still as first fruits And this old testimonie is for the antiquitie and continuance also of payment of it here Churchesset certam mensuram bladi tritici significat quam quilibet olim sanctae Ecclesiae die sanctae Martini tempore tam Britonum quam Angloram Plures tamen Magnates post Normannorum aduentum in Angliam illam contributionem secundum veterem Legem Moysi nomine primitiarum dabant prout in breui Regis Knuti ad summum Pontificem transmisso continetur in quibus illam contributionem appellat Chirchsed quia semen Ecclesiae But what the Autor meanes by that Letter or Brief of King Knout sent to the Pope I as little know as why hee cites that for autoritie to proue what the Baronage did after the Normans Indeed an Epistle is extant which Knout sent into England by Liuing Abbot of Tauisâ—ok as hee was taking his iourney home-wards from the Pope and therein mention is of this Curc scet of any other I am yet ignorant That Aelmesfeoh or Almes-money was the Peeter-pence due yeerly at the first of August by institution as some will of King Ina as others of King Aethelulph And they were called also Romefeoh Romescot Heorþpening VIII Of the same time some Constitutions are extant made by Odo Archbishop of Canterburie yet not for aught appears by
constitutae c. But those Tithes are there reckond among godes gerightas that is things due vnto God and the Saxon text for them is geogoþe teoþunge be Pentecosten eorð Æ¿aestma be ealra halgenamaessan that is the Tithe of yong cattell is to be paid at Whitsontide and of fruits of the earth at Alhollows and according to this in an old Saxon collection of Christian dutie AElc man saies the Autor teoðunga gelaeste mid rihte that is Let euery man pay his Tithes iustly Those Aratrales Eleemosynae were called sulh aelmessan that is Plough-almes which was a peny to be paid of euery plough-land and the Ecclesiastica munera were only the first fruits of Corne paid at S. Martins day whereof before § VIII XI In some Laws of K. Ethelred remaining in Abbot Brampton his Historie we read Omnis Thainus Decimet quicquid habet and Praecipimus vt omnis homo super dilectionem Dei omnium Sanctorum det Cyricsceatum rectam Decimam suam sicut in diebus antecessorum nostrorum fecit quando melius fecit hoc est sicut aratrum peragrabit decimam acram omnis consuetudo reddatur super amicitiam Dei ad matrem nostram Ecclesiam cui adiacet nemo auferat Deo quod ad Deum pertinet praedecessores nostri concesserunt The inscription of those Laws mongst which these are found is Haec instituerunt Ethelredus Sapientes eius apud Habam By this and that of Edgar before cited it appears that the Tithe of euery tenth acre according to the order of tithing the whole Farme was to be paid to the Church which also is made more plain in the next Law of King Knout XII Gelaeste man are the Æ¿ords of one of K. Knouts LaÆ¿s made about M.XX. godes gerihta aeghÆ¿ilc geare rightlice georne þaet is sulhaelmesse fiftene niht ofer Eastran gegoþe teoþunge be Pentecosten eorþ Æ¿aestma be ealra halgena maessan gif hÆ¿a þonne þa teoþunge gelaestan naelle sÆ¿a Æ¿e gecÆ¿edan habbaþ ê§ is se teoþa aecer eal sÆ¿a se sulh hit gegaþ þonne fare to Æ¿aes Cyninges gerefa þas biscopas þaes land rican þaes minstres maessespreost niman unþances þonne teoþan dael to þam minstre he hit to gebyrige teacum him to þam nigoþum dael to daele man þa eahta daelas on tÆ¿a fo se landhlaford to healfum to healfum se bisceop sy hit Cyninges man sy hit ðegener this is anciently thus turned Reddantur Deo Debitae rectitudines annis singulis hoc est Eleëmosyna carucarum XV. diebus post Pascha Decimae de nouellis gregibus in Pentecosten terfenorum fructuum in festo omnium Sanctorum Si quis hanc Decimam dare nolit sicut omnium nostrum commune est institutum hoc est Decimam acram sicut aratrum peragrabit eat praepositus Regis Episcopi Domini ipsius tetrae cum Sacerdote ingratis auferant Ecclesiae cui pertinebit reddant Nonam verò partem relinquant ei qui Decimam dare noluit Octauas partes reliquas in duo diuidant sit vna medietas Episcopi alia terrae Domini siue sit homo Regis siue Thaini with this Latin the Saxon agrees and it is almost but a repetition of King Edgars Law for Tithes and those two Paragraphs in King Edgars the one touching a conueyance of a third part of the tithes to a Church that had right of Sepulture the other concerning a Church that wanted that right are also repeated as many other Laws of the former ages in those of King Knouts which are called Lege Anglicae generally in the ancientest Latin Copies that I haue seen XIII The Copie of the Laws of Edward the Confessor that bears this title Leges boni Regis Edwardi quas Guilielmus Bastardus postea confirmauit hath this for Tithes De omni annona Decima garba Deo debita est ideò reddenda Et si quis gregem equarum habuerit pullum reddat Decimum Qui vnam vel duas habuerit de singulis pullis singulos denarios Similiter qui vaccas plures habuerit Decimum vitulum Qui vnam vel duas de vitulis singulis obolos singulos Et qui caseum fecerit det Deo Decimum si verò non fecerit lac decima die similiter agnum Decimum vellus Decimum caseum Decimum butyrum Decimum porcellum Decimum De Apibus verò similitèr Decima commodi Quin de bosco de prato aquis molendinis parcis viuarijs piscarijs virgultis hortis negotiationibus omnibus rebus quas dederit Dominus Decima pars ei reddenda est qui nouem partes simul cum Decima largitur Qui eam detinuerit per Iustitiam Episcopi Regis si necesse fuerit ad redditionem arguatur Haec enim praedicauit B. Augustinus concessa sunt à Rege Baronibus populo But howeuer those Laws are attributed to the Confessor it is certain that as the Ordinarie Copies of them are and as they speak in the published Volume of Saxon Laws they are not without many mixtures of somewhat later transcribers XIV In a Synod writen in Saxon held about the CoÌ„quest diuers Laws preceding about the punishment of crimes by fasting VI. VII.X yeers together with bread and water a perswasion follows for Almes c. in it we read teoþge on godes godes est eal ê§ he age that is Let Tithe be paid of all that is possest though the Lords bountie XV. Out of a Ms. of Excester I haue seen transcribed a Canon of a Councell held at Windsore some yeers after the Norman Conquest I think vnder Lanfrank in these words Vt Laici Decimas reddant sicut scriptum est XVI In a Conuocation at Westminster held in 3. Hen. 1. vnder Anselm Archbishop of Canterburie and Girard Archbishop of Yorke for both Prouinces it was ordaind Vt Decimae non nisi Ecclesijs dentur It was not only a Synod of the Clergie but Royall autoritie with the assent of the Baronage at least of the greater Nobilitie was ioind with it for thus speaks the Monk of Malmesburie relating it Anno Dominicae Incarnationis 1102. quarto autem praesulatus Paschalis summi Pontificis tertio regni Regis gloriosi Henrici Anglorum ipso annuente communi consensu Episcoporum Abbatum Principum totius regni adunatum est Concilium in Ecclesia beati Petri in Occidentali parte iuxta Londoniam sita in quo praesedit Anselmus c. and then Huic conuentui affuerunt Anselmo Archiepiscopo petente à Rege Primates regni quatenus quicquid eiusdem Concilij autoritate decerneretur vtriusque Ordinis concordi curâ sollicitudine ratum seruaretur Sic enim necesse erat quia multis retrò annis synodali cultura cessante vitiorum vepribus succrescentibus Christianae religionis feruor in Anglia
nimis refrixerat and agreeing to this reason is a passage in the Synod of London held vnder Lanfrank Archbishop of Canterbury in 9. Will. 1. Et quod are the words multis retro annis in Anglico regno vsus Conciliorum obsoluerat renouata sunt c. that Canon seems to haue been made against arbitrarie consecrations of Tithes then practiced whereof anon largely XVII The Laws of Henrie the first haue one title De placitis Ecclesiae pertinentibus ad Regem and vnder that are these words Si quis rectam Decimam superteneat vadat praepositus Regis Episcopi terrae Domini cum Presbytero ingratis auferant Ecclesiae cui pertinebit reddant nonam partem relinquant ei qui Decimam partem dare noluit according to those of King Edgar and King Knout before related XVIII Alberique Bishop of Ostia Legat in England to Pope Innocent the second in 3. of King Stephen held a Synod at London and in that as I haue seen it transcribed out of a book of Worcester this Canon is De omnibus Primitijs rectas Decimas dari Apostolica autoritaee praecipimus quas qui reddere noluerit anathematis in eum sententia proferatur Primitiae must it seems be here vnderstood for euery new yeers encrease XIX Vnder Henrie the second a Pontificiall Decree was sent to all the Bishops of the Prouince of Canterburie about the yeer M.C.LXX. by Pope Alexander the third commanding them that they should admonish all men in their seuerall Dioceses si opus fuerit as the words are Sub excommunicationis districtione compellere vt de prouentibus Molendinorum Piscariarum Faeno Lana Decimas Ecclesijs quibus debentur cum integritate persoluant the direction of it was Cantuariensi Archiepiscopo eius suffraganeis To this you may adde that other of the same Popes to the Bishop of Winchester Mandamus quatenùs Paraecianos tuos de Apibus de omni fructu Decimas persoluere Ecclesiasticâ districtione compellas Both these were afterward made part of Gregories Decretalls and are of force to this day in the Canon Law of the Church of Rome XX. In 21. of the same King Henrie the second Richard Archbishop of Canterburie held a Prouinciall Synod at Westminster in which were neer all the Bishops and Abbots of his Prouince as also the two Kings the father and the sonne there diuers Constitutions out of old Councells and Popes Decrees were published to be obserued in his Prouince among them one is out of a Synod at Rosne in these words Omnes Decimae Terrae siue de frugibus siue de fructibus Domini sunt illi sanctificantur sed quia multi modò inueniuntur Decimas dare nolentes statuimus vt iuxta Domini Papae praecepta admoneantur semel secundò tertiò vt de grano de vino de fructibus Arborum de foetibus animalium de lana de agnis de butyro caseo de lino canabe de reliquis quae annuatim renouantur Decimas in egrè persoluant quòd si commoniti non emendauerint anathemati se nouerint subiacere XXI Hubert Archbishop of Canterburie by his power Legatin receiud from Pope Caelestin the third in 6. Rich. 1. held a Prouinciall Councell for the Prouince of Yorke and therein one of the Canons thus speaks for Tithes Cum Decimae sint tributa egentium animarum ex praecepto Domini dari debeant non est reddentis eas diminuere Statuimus itaque vt de his quae renouantur per annum cum omni integritate Decimae debitae consuetae conferantur ita vt inprimis Decimae absque vlla diminutione Ecclesiae dentur postmodùm de nouem partibus mercedes messorum aliorum seruientium pro arbitrio soluentis tribuantur XXII The same Archbishop Hubert in 2. of K. Iohn Generale celebrauit concilium Lundonijs apud Westmonasterium contra prohibitionem Galfridi filij Petri Comitis de Essexe tunc temporis summi Iustitiarij Angliae for it appears that in those elder times there was great controuersie between the King in whose right the Chief Iustice of England here sent out his prohibition and the Archbishop touching this point whether the Archbishop either as Archbishop or as Legat might hold a Prouinciall or Nationall Councell without autoritie from the Crown but that is now declared cleer and so practiced that he may not In that Councell notwithstanding the prohibition he ordaind thus for tithes Cum Deo Sacerdotibus Dei Decimas dandas Abraham factis Iacob promissis innuent autoritas veteris noui Testamenti necnon sanctorum Patrum statuta declarent Decimas de omnibus quae per annum renouantur praestandas id inuiolabilitèr decernimus obseruandum ita quod occasione mercedis seruientum vel messorum decima pars non minuatur sed potius integre persoluatur Habeant etiam Presbyteri potestatem ante autumnum excommunicandi omnes fraudatores decimarum suarum eosdem secundum formam Ecclesiasticam absoluendi Huic adijcimus sanctioni vt de terris nouitèr cultis non aliàs dentur decimae quam Ecclesijs Parochialibus infra quarum limites terrae illae de quibus Decimis perueniunt excoluntur Detentores verò Decimarum iuxta Rothomagensis Concilij constitutum si semel secundò tertiò commoniti excessum suum non emendauerint vsque ad satisfactionem condignam anathematis vinculo feriantur saluo in omnibus S.S.R.E. honore priuilegio which Saluo is to euery of his Canons XXIII Among the Decretall Epistles of Pope Innocent the third one is directed Cantuariensi Archiepiscopo vt Ecclesijs Parochialibus iustè Decimae persoluantur and thus speaks Peruenit ad audientiam nostram quod multi in Docesi tua Decimas suas integras vel duas partes ipsarum non illis Ecclesijs in quarum Parochijs habitant vel vbi praedia habent à quibus Ecclesiastica percipiunt Sacramenta persoluunt sed eas alijs pro sua distribuunt voluntate Cum igitur inconueniens esse videatur à ratione dissimile vt Ecclesiae quae spiritualia seminant metere non debeant à suis Parochianis temporalia habere fraternitati tuae autoritate praesentium indulgemus vt liceat tibi super hoc non obstante contradictione vel appellatione cuiuslibet seu consuetudine hactenus obseruata quod Canonicum fuerit ordinare facere quod statueris per Censuram Ecclesiasticam firmiter obseruari Nulli ergo c. confirmationis c. Datum Lateran II. nonas Iulij XXIV In a collection of diuers Constitutions for the English Church out of Councells and others titled only Constitutiones cuiusdam Episcopi and writen about Hen. the thirds time one of Tithes occurs Decimas de omnibus quae renouantur per annum maximè consuetas dandas decernimus potissime de molendinis
proposed by the VIII persons chosen to begin a new body of Canon Law for England in 5. Ed. 6. according to the first purpose of the Statut of 25. Hen. 8. cap. 19. which was seconded also by the Statut of 3 and 4. Ed. 6. cap. 11. whereby XXXII persons assigned by the King should haue made it neither were those VIII to haue giuen sufficient autoritie to it according to those Statuts without approbation of XXXII afterward that should haue censurd their reformation The VIII were Thomas Cranmer Archbishop of Canterburie Thomas Bishop of Elie Richard Cox the Kings Almosner and Peter Martyr Doctors of Diuinitie William May and Rouland Tailor Doctors of Law and Iohn Lucas and Richard Gooderik Esquires In what they proposed is found a constitution in the Kings name that all predial tithes should be paid in kind to the Ministerie integrè expletè with an exception of timber Trees of XX. yeers growth as also of the profits of Milles of Turbaries Cole-mines Quarries of stone and all other of like kind Of all Agistments also Tithes are there paiable and of the encrease of all kind of beasts wild and tame of fish of butter cheese milk wool wax and the Statut of 2. and 3. Ed. 6. for Tithes is there receiud for so much of it as is not against a generall paiment which they would haue had ordaind But these as the rest in the Volume with them were only intended for Laws but neuer had sufficient autoritie or confirmation The intent was first that those Canon Laws only which according to the purpose of the two Statuts of Hen. 8. and Ed. 6. should be compiled might haue autoritie in the Vniuersities and force in practice but so that there might still be praeseruatio legum nostrarum communium in suo vigore remanentium as the words are in the Patent of Ed. 6. that authorizes the VIII persons to consult about them For our Laws of Tithing either made or desired thus much But before we speak of the Practice it is requisit that we enter into some disquisition touching Parishes or Parochiall right according wherto at this day from ancient time the paiment of Tithes is regularly performed 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 be 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 Parochial limits in regard of the profits receiud to the singular vse of the Incumbents Limitation of Tithes by K. Edgar to the Mother Parish Church or Monasterie Monasteries preferd before other Churches for buriall Mortuaries Minstre a third part of Tithes according to K. 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 ioind to another by the King IN consideration of our Parish Churches and Parochiall limits the times of the Britons first then of the English-Saxons and foreward are to be thought of that is the elder times of their Christianitie I. For the Britons litle or no Testimonie of credit is extant that discouers the Ecclesiasticall policie vsed by them in their primitiue times or declares the possessions of their Hierarchie And we omit here wholy what might be collected out of that fabulous tale of Augustine preaching at Cometon in Oxfordshire whereof more in the next Chapter Although K. Lucius had instituted XXVIII Bishops and III. Archbishops as the British storie tells vs yet how in those Dioceses any distinct Parishes were appears not expresly But we may very well think that such kind of Parishes only were in those Bishopriques as we haue alreadie shewd to haue been in the Primitiue Church elswhere neither is it likely that in those times the custom of this Island therein should differ from what was euen vniformly receiud through those parts of Christendom wherof we haue best testimonie remaining But if all ancient autoritie were of credit Parish Churches expresly mentiond of about the time of CCCCXC and endowd as at this day might be found among the Britons For when Dubritius was made Archbishop of Southwales which they called Dextralis Britannia and his See appointed at Landaff vnder Mouris Prince of that Wales diuers Churches with their endowments of Tithes Oblations and other profits were appropriated to him and his successors by the relation of an old Autor Propter sanctitatem suam are his words praedicationem praeclaram Beati Pastoris regalem parentelam suam plures Ecclesiae cum suis dotibus Decimis oblationibus sepulturis Territorijs libera communione eorum datae sunt sibi successoribus suis omnibus à Regibus Principibus totius regni Dextralis Britanniae and then Videns autem sanctus Dubritius Largifluam potentum manum erga sibi comissam Ecclesiam partitus est discipulos mittens quosquam discipulorum suorum per Ecclesias sibi datas quasdam fundauit Ecclesias Episcopos per dextralem Britanniam coadiutores sibi ordinatis Parochijs suis consecrauit But this Autor wrote not before about the beginning of the last CCCC yeers from Christ and spake of these things in the phrase of his own time the hand and context and their relations in him iustifie it he talks you see of Churches endowd and appropriated and founded as if he meant no other then such as now are conueiable by Patrons and Ordinaries in the course of appropriations vsed in later ages and filled with Incumbents that had in them like estates and particular interest in the profits as Parsons at this day indeed that in those times Churches were built here no doubt can be made neither is it to be conceiud how Christianitie could he in any Nation much ancienter if generally receiud or by any number then Churches or some conuenient Houses or other places in the nature of Churches appointed for the exercise of deuotion and expresse mention is of a Church built here in the time of the Romans to the honor of S. Martin in which Augustin and his followers when they came first from Rome made their holy assemblies and others also they repaired and saies Gildas of the Clergie of his time that is about D.LXXX Ecclesiae domê° habentes sed turpis lucri gratia eas adeuntes But I ghesse that vnder Dubritiê° few or no parish Churches were otherwise erected then for conuenient places for such Ministers as the
a Church and entreated Iohn Bishop of Hangulstad to consecrate it and the like also of one Addi Alio item tempore sayes hee vocatus ad dedicandum Ecclesiam Comitis vocabulo Addi Some such more of about that time may bee found But about the yeere D.CCC. many Churches founded by Lay men are recorded to haue been appropriated to the Abbey of Crowland as you see in the Charters of Confirmation made by Bertulph King of Mercland and of others to the same Abbey reported by Ingulphus Whence it may bee obserued that by this time Lay foundations were grown verie common and Parochiall Limits also of the Parishioners deuotions And in a Councell held in D. CCC.XVI vnder Wilfrid Archbishop of Canterburie wee find Vbi Ecclesiae aedifâ—centur à propriae Diocesis Episcopo sanctificentur And a Canon of the same Synod ordains That vpon the death of euery Bishop Statim per singulas Parochias in singulis quibusque Ecclesijs pulsato signo omnis famulorum Dei caetus ad Basilicam conueniat Ibique paritèr XXX Psalmos pro defuncti anima decantent posteà vnusquisque antistes Abbas DC Psalterios CXX Missas celebrare faciat tres homines liberet eorum cuilibet tres solidos distribuat c. with other Ceremonies of Fasting and Prayer according to the time for the soule of the Bishop Here it may seem Parishes limited as at this day are vnderstood But the first expresse mention of limitation of profits other then of the endowing to bee giuen to this or that Church is in those Laws of King Edgar made about D. CCCC.LXX where a three-fold diuision is of Churches the first is called Ealdan Mynstre that is Senior Ecclesiae which name anciently was giuen to Cathedrall Churches the second a Church that hath LegerstoÆ¿e or place for Buriall the third a Church that hath no LegerstoÆ¿e Where it is ordaind that euery man hauing not erected a Church of his own should pay his Tithes to the Ealdan Mynstre ðe seo hyrnesse to hyrþ that is to the ancientest Church or Monasterie where he hears Gods seruice Which I vnderstand not otherwise then of any Church or Monasterie whither vsually in respect of his Commorancie or his Parish determined according to the Farmes Houses and Lands occupied with those Houses or Farmes he repaired that is his Parish Church or Monasterie For we must remember that in those times Monasteries which somewhat before Edgar were for the most part filled with secular Clerks who also as other Clergie men took pains abroad in the spirituall Haruest and vnder him by Archbishop Dunstans procurement were restored only to Cloister Monks or Benedictines aswell as other Churches erected either by Bishops or Lay men were in many places the only Oratories Auditories that the neer Inhabitants did their deuotions in and perhaps were in regard of buriall most commonly preferd before other Churches whatsoeuer which may be collected from a Canon of an old Synod of Ireland held about these elder times of the English Church neither is it likely but that the manners of these Northern Churches in that age were enough agreeable to each other In that Synod it appears that any man might haue bequeathed his buriall to what Abbey best pleased him and that the Abbot to whose Monasterie the bequest was made should haue the Apparell of the dead his Horse and his Cow for a Mortuarie although he had before solemnly giuen all that he had to any other Abbot whence may easily be coniectured that Monasteries were in chiefest reputation for buriall and had a right of it before any other kind of Parochiall Church if the dead made choise of any of them and by the way for that course of paiment of a motuarie which the Saxons I think calld saÆ¿lsceat the same Synod affirmes that Omne corpus sepultum habet in iure suo Vaccam Equum Vestimentum Ornamentum sui Lecti nec quicquam horum reddetur in alia debita quia corpori eius tanquam vernacula debentur and although the certain age of that Synod appears not yet it was after such time as Parishes were limited in regard of the Parishioners repairing to one certain Church and giuing their deuotions there only for in it also are these words quicunque discesserit de sua Ecclesia in alia Ecclesia sepultus fuerit c. what can sua Ecclesia be but such a kind of Parish Church as at this day is titled so that is one limited in regard of the Parishioners and their profits receiued from them But in that of Edgars ealden Minstre it is plain that although Minstre specially denote a Monasterie yet all other Parish Mother Churches are vnderstood by it and indeed dyric and Minstre are frequent as Synonomies in the Saxon moniments But as the first part of his Law that giues all Tithes to the Mother Church of euery Parish meant in them a Parochiall right to Incumbents so also the second part that permits a third portion of the Founders Tithes to be setled in a Church new built wherto the right of Sepulture is annexed makes a dispensation for a Parishioner that would build such a Church in his Bocland or land possessed optimo iure or as inheritance deriued from a Charter of feoffment And howeuer that second part also of this Law is iterated by King Knout yet I doubt not but that such new erections within old Parishes bred also new diuisions which afterward became whole Parishes and by conniuence of the time took for so much as was in the Territorie of that Bocland the former Parochiall right that the elder and Mother church was possessed of For that right of Sepulture or hauing a legerstoÆ¿ was and regularly is a Character of a Parish Church or Ecclesia as it is commonly distinguished from Capella and anciently if a quare impedit had been brought for a Church whereas the defendant pretended it to be a Chappell only the issue was not so much whether it were Church or Chappell as whether it had Baptisterium or Sepulturam or no. so it appears in a case of 23. Hen. 3. where William of Whitanston in his count against the Archbishop of Canterburie expresses Ecclesiam de Hey in Sussex to be of his aduowson and the Archbishop pleads that what he calls a Church non est Ecclesia imo Capella pertinens ad matricem Ecclesiam de Terringes ita quod non est ibi Baptisterium neque Sepultura imo omnes qui nascuntur ibidem baptizantur apud Terringes similiter omnes qui ibi moriuntur sepeliuntur apud Terringes c. and thence was it also that the whole Clergie of England put the inquirie of such an issue among their grieuances when in 21. Hen 3. they desired Otho the Popes Legat among other freedoms to get for them of the King Quod iudices seculares non decidant causas
questionlesse were not without some effect being so often renewd Neither is the memorie of some vse of payment here in these more elder times omitted in the reliques of antiquitie In the Ms. life of the British Saint Cadoc among some Laws of his Church of Lhancaruan which seem to be attributed to his time which falls about our Augustine or before one is Quicunque decimauerit debet diuidere in tres partes primam dabit Confessori secundam Altari tertiam orantibus pro eo but the Autor of this whence we haue it wrote not till after the Norman Conquest And it is reported also of Eadbert Bishop of Lindisfarn or Holy Iland that he was Eleemosynarum operatione as Bedes words are insigni ita vt iuxta legem omnibus annis Decimam non solum quadrupedum verum etiam frugum omnium pomorum necnon vestimentorum partem pauperibus daret which words are almost repeated also by Turgot Prior of Durham that wrote the storie of that Bishoprique But here no custom of the place or common vse is noted but only a speciall deuotion of Eadbert and for that of iuxta legem you must vnderstand it of Moses Law and so is it exprest in the Saxon Copie of Bede where I read that he did it aefter Moyses ae and that is according to the Law of Moses Neither is the regard in those times had to a tenth although not yeerly to to be paid as for a soules ransom to the poor after the death of euery Bishop out of his estate to be here wholly neglected Out of this regard may be inferd that therein also the Tenth was reputed as a sanctified part And wee learne it out of a Councell held in DCCC.XVI In loco famoso as the words of it are qui dicitur Celichyth Praesidente verò Wlfredo Archiepiscopo caeterisque adsedentibus australibus Anglorum Episcopis which hath this Canon Iubemus hoc firmitèr statuimus ad seruandum tam in nostris diebus quamque etiam futuris temporibus omnibus successoribus nostris qui post nos illis sedibus ordinentur quibus nos ordinati sumus vt quandocunque aliquis ex numero Episcoporum migrauerit de seculo tunc pro anima illius praecipimus ex substantia vniuscuiusque rei Decimam partem diuidere ac distribuere pauperibus in eleëmosynam siue in pecoribus armentis seu de Ouibus Porcis vel etiam in Cellarijs necnon omnem hominem Anglicum liberare qui in diebus suis sit seruituti subiectus vt per illud sui proprij laboris fructum retributionis percipere mereatur indulgentiam peccatorum And for the succeeding times of the Saxons we may well coniecture a practice of payment out of King Knonts Epistle sent in M.XXXI as he departed homeward from Rome by Liuing Abbot of Tanystok to Athelnoth and Alfrique the two Archbishops by name and to the rest of the Bishops Baronage of England he therein straitly charges them all that according to the ancient Law they should take care that Tithes were duly paid among other Church reuenues wherin if he found default at his coÌ„ming they should expect seuere punishment the words were Nunc igitur obtestor omnes Episcopos meos regni mei praepositos per fidem quam mihi debetis Deo quatenùs faciatis vt antequam in Angliam veniam omnium debita quae secundum legem antiquam debemus sint persoluta scilicet eleemosyna pro aratris Decimae animalium ipso anno procreatorum Denarij quos Romam ad sanctum Petrum debetis siue ex vrbibus siue ex villis mediante Augusto Decimae frugum in festiuitate S. Martini primitiae seminum ad Ecclesiam sub cuius Parochia quisque degit quae Anglice Curâ—scet nominatur Haec alia si cum venero non erunt persoluta regia exactione secundum leges in quem culpa cadit districtè absque venia comparabit and the Monk that relates it addes nec dicto deterius fuit factum But what euer may be out of these testimonies concluded it is noted among the Laws attributed to Edward the Confessor that what through the coldnesse of deuotion what through the neglect of demanding Tithes by the Clergie that were otherwise grown very rich in reall endowments the practice of paiment of them was much diminished Sed postea instinctu diaboli are the words which follow immediatly what is before in the Chapter of Laws § XIII multi Decimam detinuerunt Sacerdotes locupletes negligentes non curabant inire laborem ad per quirendas eas eo quod sufficienter habebant suae necessaria vitae Multis enim in locis modo sunt tres vel quatuor Ecclesiae vbi tunc temporis vna tantùm erat sic ceperunt minui· but we are not sure that this addition to the Law is as ancient as the Confessor I think it indeed rather of somewhat later time yet doubtlesse the generall practice of paiment according to those ancient Laws howeuer it might be in elder times was about the Norman Conquest much discontinued which may be specially obserued out of that book of Domesday the originall Copie whereof yet remains in the Receipt of the Exchequer in which the Possessions and Reuenues both of the Clergie and Laitie were accounted and valued by the othes of Enquests taken in euery Countie vpon commission and so returned thither about the end of the Conquerors raign There frequently enough Churches are mentioned by the words of Ibi Ecclesia Presbyter or such like and how many Carues or Hides of land how many villans and other endowments and reuenues belongs to them are reckond with their values But very rarely any Tithes among those Church reuenues are there found if none at all had been namd it might haue been thought that they had been omitted as a more sacred profit then was fit to be taxed in such a Description But some although very few occurre in it as vnder Terra Osberni Episcopi in Boseham in Sussex you may there find that Decimam Ecclesiae Clerici tenent valet XLs. where the lest value of the Mannor is made at XLli. per annum in Hampshire vnder Terra Osberni Episcopi you read Ecclesia S. Michaelis de Monte tenet de Rege in Basingestoches Hundred vnam Ecclesiam cum 1. hida Decimam de Manerio Basingestoches Ibi est Presbyter So in the same Shire vnder Terra Regis Ipse Rex tenet Wallope c. ibi Ecclesia cui pertinent vna hida medietas Decimae Manerij totum Curset de Decima villanorum XLVI denarij medietas agrorum Ibi est adhuc Ecclesiola ad quam pertinent VIII acrae de Decima for these VIII acres of Tithes see before in the Chapter of Laws § IX.X. and XI And in the same Shire also among the Abbot of Lire's possessions the
Tithe of Cladford is reckond as also of Adrintone and also the Tithes of Stanham are possessed there by one Richerius Parson of the Church of Stanham and vnder Terra Canonicorum de Tuinham is found Ad hanc Ecclesiam pertinet tota decima de Twinham tertia pars Decimarum de Holchest and in the Isle of Wight there VI. Churches belonging to the Abbey of Lire Decimas habent de omnibus redditibus Regis So in Bedfordshire the Church of S. Marie de Cormelijs hath diuers Tithes among its reuenues But the mention of Tithes where Churches are neuerthelesse spoken of is but very seldome through that whole Description and indeed in certain Counties as Somerset Deuon Cornwall and some few others you shal rarely haue a Parish Church noted but in others very often Churches are but very few examples of their hauing Tithes sometimes also grants of Tithes by Lay owners are there mentiond out of the vse of which it may be well thought that the moities or third parts of tithes belonging to this or that Church had their beginnings But thereof more particularly in the next Chapter where we speak of arbitrarie Consecrations And in most Appropriations of Parish Churches made in the Saxon times the ancieÌ„t course being to grant in appropriating Ecclesiam cum Decimis no mention is of Decimae but other possessions of the churches granted are most particularly inserted in the instruments of which some examples are published in Ingulphus Abbot of Crowland and very many occurre in Chartularies of old Monasteries But see also for this matter the autorities anon brought to another purpose in the XIV Chap. § 2. For the following age besides some examples related in the next Chapter out of which some kind of known payment at least to some Churches may be without difficultie collected that wee may here omit also the diuers Appropriations in the times presently ensuing the Conquest of Ecclesiae cum Decimis which denotes either some payment or interest of Tithes setled by Consecrations in them In the life of S. Cutbert Bishop of Lindisfarn writen by some Monk vnder Hen. I. it is related that in that Autors time a great penurie of food being in Lindisfarn that is in Holy Iland the Sea left vpon the shore LXV fishes wherof euery one was a sufficient draught for a yoke of Oxen and that a Monk came to the Lord of the adioining soile and desired the Tenth of that abundance so sent by the hand of God Saltem Decimas as the words are quod Legis Prouinciae consuetudo exigebat Ecclesiae requisiuit sed omnibus negatis rubore simul dolore confusus discessit here the practice of payment is noted by Prouinciae consuetudo and about the same time the fashion about Abingdon was to pay the Tithes to the Abbey due either as it was an ealder Minstre by K. Edgars Law or as they had been consecrated whereof more in the next Chapter by whole Hides and Acres His diebus saies the Chartularie of that Abbey raro à quoquam Decima messium vt lege praecipitur in Abbatia ipsa dabatur sed aut de Hidagio XL. manipuli quos vulgò garbas vocant aut Decima suae culturae Acra porrigebantur and for the time vnder Henrie the second an Epistle sent from Rome by Pope Alexander the third to the Bishops of Worcester and Winchester recites the generall institution which may be vnderstood for custom of the Church of England to be that euery Parishioner should pay his Tithe corne to his own Parish Cum homines so it speaks de Hortuna secundum generalem Ecclesiae Anglicanae institutionem de frugibus suis nouem partibus sibi retentis Decimas Ecclesiae cuius parochiani sunt sine diminutione soluere teneantur c. wherewith agrees the preamble of his Decretall remaining yet in the body of the Canon Law there he begins with Quod cum Parochiani vestri that is all the Parishioners within the Diocese of Canterburie Decimas bonorum suorum consueuerint Ecclesijs quibus debentur cum integritate persoluere nunc tam laudabili consuetudine praetermissâ quidam ex eis de lana de faeno de prouentibus molendinorum piscariarum Decimas ipsis Ecclesijs subtrahere non verentur hereto adde that of one of his predecessors Hadrian the fourth to the Archbishop of Canterburie where a Parochiall payment of Tithes seems to be spoken of as of known right and in a composition made by the Abbot of Euesham a Iudge Delegat from Pope Honorius in M.CC.XX. it is taken cleer that certain Tithes de iure communi pertinent ad Ecclesiam de Leonminstre eo quod sitae sunt infra limites Parochiae Ecclesiae de Leonminstre according as the Texts of the Canon Law of about that time expresly also affirme The composition was between some of the Diocese of Hereford and the Abbot of Wigmore like admissions of that Law are in other instruments in the Leger book of Reading for the Church of Lemster But conclude not out of them for practice without obseruation of the examples of the next Chapter And it appears that in 11. Hen. 3. a speciall grant was made by the King that Tithes of Hay and Mills should be paid from thenceforth in all his demesnes lands that is al occupied either by his Villains or Bailifes or by Lessees that came in after the grant which before then had not bin paid Dominê° Rex saies the record de Concilio Archiepiscoporum Episcoporum suorum concessit vt Decimae faeni molendinorum de singulis Dominicis suis in regno suo de caetero praestentur Et mandatum est balliuis de Corsham quod de Dominico suo de Corsham Decimas faeni Ecclesiae de Corsham dari faciant T. R. apud Westmonast XVIII die Maij. and according to this were diuers close Writs sent out in the following yeeres Of the times afterward wee find more certain testimonies shewing the common right of Tithes and that Parochiall as the Writ of Indicauit grounded vpon the Statut of Circumspectè agatis made in 13. Ed. 1. discouers that in and before that time the Parochiall Tithes were most knowne reuenue of euery Church with which agrees the ancient and present forme of the Count in a Writ of Right of Aduowson of a Parish Church wherein the Esplees are chiefely laid in Tithes because the Aduowson of the whole Tithes is no other then the Aduowson of the Church as Iudge Stoner sayes in Corbets case And by the practice of the Kingdome it became cleer Law as it remains also at this day that regularly if no other title or discharge to be specially pleaded or shewed in the Allegation of the Defendant might appeare euery Parson had a common right to the Tithes of all annuall encrease prediall and mixt accruing within the limits of his Parish without shewing other title to them in his
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
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
Decretall afterward titled by the name of a CoÌ„stitution of the Lateran Councell then it happend in the denomination of the Statuts of Aide de Roy and Voucher made in 4. Ed. 1. euery of which are stiled by the name of Statutum de Bigamis yet only one Law de Bigamis receiud out of the generall Councell of Lions is among those Statuts and that is euen as much a stranger to the rest of the Constitutions bearing the same name with it as Pope Innocents Decretall was to the whole Councell of Lateran Howeuer it is most cleer let froward ignorance as it can continue to oppose the assertion that for CC. yeers at lest before about the time of the Councell of Lateran held vnder the same Pope arbitrarie Consecrations of Tithes with vs were frequent and practiced aswell of positiue right if wee may take that for right in things subiect to human disposition which generall consent of the state allowd as no man that knows what makes a positiue right can denie as of fact which because they are best conceiud of by the particular testimonies and precedents of them in the following Chapter manie shall be transcribed that are all except one or two in the Prouince of Yorke neither is it likely that in euery place here and by euery man the intent of that Constitution was suddenly obserued and perhaps also it was not so soon alterd in York Prouince as in this of Canterbury in regard that the Decretall was sent only to Canterburie Prouince of the time before that Decretall and taken out of the most choice and authentique moniments that may afford help to the disquisition of this point so little so not at all vulgarly or indeed any where publiquely discouered 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 book 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 BEsides the many testimonies that may be had out of the Portions especially possessed by som Churches or Monasteries manie of which had no other beginning then from arbitrarie Consecrations made by owners of Tithes in two parts or third parts or otherwise at their pleasure to any Church or Monasterie the frequent memorie of Instruments of such Consecrations made according to the practiced Law of the time chiefly interceding from the yeer M. till some yeers after M.CC. of our Sauiour is to be principally obserued in this disquisition The originall moniments of those elder ages afford vs plentie of theÌ„ And in regard of the easier connexion and more compendious way of deliuerie we shall rather seuerally follow the singular courses of euery of the Chartularies or other moniments which tell vs of those kind of consecrated Tithes then dispose together euery arbitrarie Consecration according to the order of time The seuerall Titles of books whence we haue them shall chiefly direct in the generall order but neither shall the particular time of euery of these selected examples of Consecration be omitted I. The Chartularie of the Abbey of Abingdon shall obuiously haue first place In it in the time of K. William the second and Rainald Abbot occurres that Viuente praedicto Rainaldo Abbate trium Decimationum Ecclesiae huic facta est vna ab Herberto de villa sua Lakine appellata Henrici de Ferrarijs Milite scilicet frugum agnorum caseorum vitulorum porcellorum Quod Robertus filius eiusdem post patris mortem confirmans concedente Domino suo praedicto Henrico Abbendoniam venit pro patris sui suorumque salute praefatam hîc Decimationem perpetualitèr tradidit sibi fratribus suis germanis Huberto Stephano in his fauentibus etiam istis amicis suis videntibus Quirio de Moâ—nais fratre eius Hugone Roberto filio Aldulfi de Beâ—retuna Altera à Seswaldo de villa sua Hildeslea caseorum scilicet vellerum suarum ouium Quod haeres filius eius Frogerus post eum denotè confirmauit Quae vtraeque Decimationes luminaribus ministerijs Altaris Sanctae Mariae ab eo die specialitèr delegatae hucusque in hoc expenduntur Tertia à Rotberto cuius erat cognomen Marmiun à filio ipsius Helto de villa sua Henreda frugum omnium suae propriae lucrationis Sed post illos à Radulfo cognomento Rosel idem concessum And then follows Rosel's Charter to that purpose Ego Radulphus agnomento Rosellus concedo volo atque praecipio seruientibus meis vt segetes meas de Henâ—eth deciment ad ostium Granciae meae quae ibidem habetur ipsam Decimam rectè fidelitèr seruienti S. Mariae deliberent And this Tithe was in the sole disposition of the Almosner of the Abbey Out of IV. Hides also lying in the same Henred a consecration of the Tithe had been made before in the time of the Danish gouernment by a Dane and is thus there reported Tempore Danorum fuit quidam eorum qui possidens VII hidas in Henreda propter vicinitatem Abbendoniae amorem S. Mariae Virginis aliorum Sanctorum qui mihi digniter coluntur dedit Decimam de Dominio eiusdem terrae Ecclesiae S. Mariae Abbendonensi in eleëmosynam pauperum hoc est de IIII. hydis quam terram Helto Marmiun Deo Sancto Stephano Cadomi dedit Ecclesiae verò Abbendonensi Decima de Dominio praedicto in aeuum permansit Then follows a Charter of Henrie the first wherein all the grants of Lands Churches and Tithes made or thence after to be made by Alberique de Ver and Beatrix his wife their sonne Alberique and his brothers or by their Tenants to the Monasterie of Colme in Essex which was a member or as a Cell of Abbingdon and erected by Alberique their father are confirmed and in them two parts of the Tithe de omnibus rebus in the Mannors of Hethingham Belcheam Laureham Aldeham Duurecurt Bonecleide and Rodinges and half of the Tithe of Walde and Wadane are recited to haue been conueied to the same Monasterie Et dimidia Decima Deimiblanc de Cola Tertia pars Decimae Ranulfi magni this is dated XI Hen. 1. at Reding that is M.C.XI. And Faritius Abbot of Abingdon as it is further rememberd at Colme solemnly receiued inuestiture or seisin of euery of those and other possessions so granted by the hand of Picot Sewer to Alberique de Ver with the testimonie of his wife children and many of his Tenants And the Patent of Henrie
it was constituted that Nullus Abbas nullus Prior nullus omnino Monachus vel Clericus Ecclesiam siue Decimam seu quaelibet beneficia Ecclesiastica de dono Laici sine proprij Episcopi autoritate assensu suscipiat quod si praesumptum fuerit irrita erit donatio huiusmodi c. and some allowance was giuen to these Canons by the King yet it is most certain thât the practice was for diuers yeers afterward otherwise and that Churches with Tithes were most commonly giuen by lay Patrons without the Bishops assent or institution and that as well by filling them with Incumbents as appropriating them to Monasteries Chapters or otherwise Beside the examples that might enough proue it and are obuious in old Chartularies the preamble of a Decretall of Alexander the third sent vnder Henrie the second to all the Bishops of the Prouince of Canterburie is herein full testimonie Ex frequentibus querelis saies he didicimus in partibus vestris consuetudinem prauam à multis retro actis temporibus invaluisse quod Clerici Ecclesiastica beneficia sine consensu Episcopi Dioecesis vel Officialium suorū qui hoc de iure possunt recipiunt minùs quà m deceat sollimitè cogitantes quomodo id à Patrum sanctorū est institutionibus alienum Ecclesiasticae contrarium honestati Vnde cum tu frater c. where you see plainly that course of inuestiture or donation by the Patron without presentation was consuetudo quae a multis retro actis temporibus inualuerat which shews it to haue been then a part of the secular Law though the iudgment of the Bishops and the Pope titles it Praua agreeing to this are other testimonies in Gregories Decretalls and that in Epistles to all the Bishops of England to forbid it and it is specially obserueable how ill the Baronage of England tooke it when Anselm vnder Henrie the first would haue through Papall Canons inhibited the practice of inuestitures vsed by the King and other lay Patrons which is recorded in an Epistle of that Anselm directed to Pope Paschal the second thus speaking Domino Reuerendo Patri diligendo Paschali summo Pontifici Anselmus seruus Ecclesiae Cantuariensis debitam subiectionem orationum assiduitatem Postquam reuocatus ad Episcopatum redij in Angliam ostendi decreta Apostolica quae in Romano Concilio praesens audiui ne scilicet aliquis de manu Regis aut alicuius Laici Ecclesiarum Inuestituras acciperet vt pro hoc eius homo fieret nec aliquis haec transgredientem consecrare praesumeret Quod audientes Rex Principes eius ipsi etiam Episcopi alij minoris ordinis tam grauitèr aceperunt vt assererent se nullo modo huic rei assensum praebituros me de regno potiùs quam hoc seruarent expulsuros à Romana Ecclesia se discessuros vnde reuerende Pater vestrum petij per Epistolam nostram consilium c. This is in the Ms. Volume of Epistles of Anselm fairly writen by Iohn de Grandisono Bishop of Excester in the yeer M.CCC.LXIV in which are aboue C. more then are published in his printed Works they menaced the Archbishop with banishment and the Pope with reuolt from his See only for their withstanding that practice of Inuestiture whereof for so much as concernes Abbeies Priories or Bishopriques in giuing them by the ring and baston much testimonie is in the storie of about that age and the Kings remission of the Inuestitures of those great dignities is frequent but for Parish Churches of which we here chiefly speake the common occurrences of Inuestitures mention them but litle But for the vse of them known also by the name of Institution see the Fine anon transcribed of 33. Hen. 2. as also specially a commission sent by Pope Alexander the third to the Dean of Chichester touching a Parson that was legitimè institutus à Willielmo Nobili viro and had resigned Personatum Capellano Domini But this course of Inuestiture by Lay men after Anselmes time began to bee of lesse vse and some obeying the Canons presented others still collated by Inuestiture till about Richard the first and King Iohns time whereof more in the next Paragraph To the Lay Patrons challenged right of such Inuestiture of Churches and Tithes belongs specially the Granting of Rents and such like out of Rectories by the Patrons only and the Sonnes or others Succession in Parish Churches after the death of their ancestors of both which litle known vulgarly ancient warrant is yet remayning III. For the first in the Chartularie of the Priorie of S. Needs in Huntingdonshire one Robert Fitz-water about King Iohns time giues to the Priorie six marks of siluer nomine certi beneficij in Ecclesia de Wimbisse annuatim percipiendas per manum personae eiusdem Ecclesiae Quare volo saies he vt quicunque in praefata Ecclesia de Wimbis ad praesentationem meam vel haeredum meorum persona instituta fuerit praenominatis Monachis S. Neoti de supradicto beneficio VI. marcarum fidelitatem faciat saluo mihi haeredibus meis iure aduocationis praesentationis c. and diuers other such like are Neither haue I met with a precedent of those times wherein the Encumbent was Grantor as at this day by the Cōmon Law the Church being full I think he must but most vsually a prouision by the Patron was inserted to this purpose that the seuerall Encumbents should by Oth bind themselues to the true payment nor was it so necessarie to haue the ordinaries assent when that which the Ordinarie by the practice of the later Law is to do in his Institution was in frequent practice supplied by the Patrons Inuestiture Out of which may be the better vnderstood that part of the new Canon in the Synod of Westminster held vnder Richard Archbishop of Canterburie in 21 Hen. 2. Nulli liceat Ecclesiam nomine Dotalitij ad aliquem transferre that is That no Patron should giue his Church as it were in Frankmariage or make of it a Donatio propter nuptias as the Ciuilians call it to remain with the husband of his Daughter or Kinswoman during his life How could such a gift haue at all been made by presentation as of later time it is vnderstood Institution or Induction and a most obseruable example of this matter is in a Fine of 33. Hen. 2. in these words Haec est finalis concordia facta in Curia Domini Regis apud Cantuariam anno Regni Regis Henrici secundi XXXIII die Venetis proxima post festum sancti Iohannis Baptistae Coram Radulpho Archidiacono Colecestriae Rogero filio Reinfri Roberto de Witefeld Michaele Belet Iusticiarijs Domini Regis alijs fidelibus Domini Regis ibidem tunc praesentibus inter Priorem de Lewes Monachis eiusdem loci Willielmum filium Arthuri quem Richardus de Budegintun pofuit loco suo
Archdeacon of Leicester while the Bishoprique of Lincolne was void which shewes that those times were the infancie of the exact course of Episcopall Institutions as they are at this day vsed Neither had these any priuiledge of Institution as the Archdeacon of Richmond had anciently giuen him or the like At this day and from long time before the Archdeacon only Inducts as the Books common practice shew But thereof thus much by the way IV. For that other of Succession in the Benefices of the Ancestors doubtlesse that was often when the father or other ancestor was Incumbent and Patron and by that challenged right of the time of Inuestiture and sole disposition of the Church would either in his life time conuey the Benefice to his sonne or heire by grant which by the practice of the time supplyed it seemes as well a Resignation as Presentation Institution and Induction or would so leaue the Aduowson to discend to his heire that he being in Orders might retaine the Church in his owne hands according as the Law then it seems permitted Against this was a Canon made in the Nationall Synod at Westminster in 3. Hen. 1. Vt filij Presbyterorum non sint haeredes Ecclesiarum Patrum suorum And another in 25. Hen. 1. held vnder the Popes Legat. Sancimus as the words are ne quis Ecclesiam sibi siue Praebendam paterna vendicet haereditate aut successorem sibi in aliquo Ecclesiastico constituat Beneficio Without that challenged right of Inuestiture supposed in the Incumbent hauing also the Patronage which supplyed all that the Patron Bishop and Archdeacon at this day do in filling a Church how could any Parson make to himselfe a successor or an heire to haue colour to claim the Incūbencie from his ancestor To this purpose may be well rememberd a passage in a verdict found in Rot. Placit 6. Rich. 1. Rot. 1. of such a kind of conueyance of S. Peeters Church in Cambridge the words are Iuratores benè sciunt quod quidam Langlinus qui tenuit Ecclesiam illam qui fuit persona illius Ecclesiae dedit Ecclesiam illam secundum quod tunc fuit mos Ciuitatis Cantebrigiae cuidam parenti suo Segario nomine qui illam tenuit per LX. annos plus fuit persona illius Ecclesiae ipse posteà dedit Ecclesiam illam Henrico filio suo qui illam tenuit per LX. annos ipse in ligea potestate sua dedit illam Hospitali Cantebrigiae per Cartam suam idem Hospitali habet Ecclesiam illam They discreetly find the custome of the Citie to maintaine the Conueyance supposing it seems that the custome would help the last Grantors title although the Common Law which had by that time receiued some change herein by force of the Papall Decrees should not haue allowd it I know in the Canons another thing is also vnderstood in this matter of Succession that is the irregularitie of the sonne of a Clerk but that can extend only to the matter of Illegitimation vpon Mariage forbidden to the Clergie For which point alone the Bishops refusall had been the best helpe but that indeed the other kind of disposition of Churches by Inuestiture preuented his refusall when Presentation was not made to him V. But after such time as the Decretals and the encreasing authoritie of the Canons about the yeer M.CC. had setled the vniuersall course here of filling of Churches by Presentation to the Bishop or as it seems sometimes it was to the Archdeacon or to the Vicar of the Bishop or Gardian of the Spiritualties that vse of Inuestitures of Churches and Tithes seuerally or together practiced by Lay men was left off and a diuision of Ecclesiasticall Secular right from thence hath continued in practice Neither did the King afterward much lesse common persons fill their common Parochiall Churches without such presentments from Bishops Parochiall Churches for of speciall donatiue Chappels we here speak not neither were Appropriations of Churches Tithes afterward allowd that had not confirmation from the Ordinarie immediat or supreme And in the same age also came in the Law of the Laps whereby the Bishop is to collate after six moneths vpon the Patrons default it being before at his libertie to fill his Church at his pleasure neither was he confined to any time That time of Laps was according as the vse of Presentation grew by degrees setled receiued into the Laws of England out of the generall Councell of Lateran held in 25. Hen. 2. vnder Alexander the third to which foure Bishops according to the ancient vse of this Kingdom that is Hugh Bishop of Durham Iohn Bishop of Norwich Robert Bishop of Hereford and Reinold Bishop of Bath were sent as Agents for the Church of England By that Councell after vacancie of six moneths the Chapter is to bestow those Churches which the Bishop being Patron had left so long void and vpon their default the Metropolitan but no word is of Lay Patrons in it Yet by reason of the Autoritie of that Councell and of a Decretall of the same Pope which speaks of like time vpon default of Lay Patrons it hath beene since taken here generally that after vacancie of six moneths the next Ordinarie is regularly to collate by Laps Which perhaps was receiued for a Law to continue as it hath done in the Councell or Conuocation at Pipewell held in the first of Richard the first and some ten yeers after that Generall Councell of Lateran For in that of Pipewell the principall thing in hand was the prouiding for Churches vpon death of their Pastors Habitus est saith Ralf de Diceto Dean of Pauls vnder King Iohn generalis conuentus iuxta dispositionem Regis Archiepiscopi XVI Kal. Octobris apud Pipewell vt de consilio vacantium per Angliam Ecclesiarum haberetur tractatus I know it was for many Churches then void but it is like enough that according to the generall Councell this Law was then here receiued but that 's only a rouing coniecture and so I leaue it and as in the Canon Law the Councell of Lateran which must be vnderstood that of Alexander the third is commonly affirmed for the autoritie of the originall of the right of this Laps in the case of Bishops specially and Chapters so is it in ancient moniments of our Laws also in the case of Lay Patrons Ante Concilium Lateranense saies Bracton nullum currebat tempus contra praesentantes And in Placit de Banco Mich. 3. Ed. 1. Rot. 105. Staff The Bishop of Couentrie and Lichfield pleads a collation by laps autoritate concilij against the Prior of Landa to the Church of Patingham and in the same Plea Rolls of Pasch. 5. Ed. 1 Rot. 100. Linc. in a quare non admisit by Alienor the Queen Mother against the Bishop of Lincoln for the Church of Orkestow the six Months and the computation
conueiance of them either by Inuestiture to an Incumbent or by Appropriation the reuenue that was in Tithes passed by expresse words and that in point of interest from the Patron as also in regard that at this day the Patron of a Parson prohibited by Indicauit to sue in the Spirituall Court for the fourth part of the Tithes of a Church may haue his Droit d'auowson de Dismes it was requisit therefore to adde these not vulgar or obuious notes of the Aduowsons in this discouerie of the ancient conueiance and interest of Tithes CAP. XIII I. Infeodations here into Lay hands since the Statuts of Dissolutions Of Infeodations before that time in England somewhat more of the originall of Lay mens practice in arbitrarie Consecrations or Infeodations II. Exemptions or discharges of payment originally by Priuileges Prescriptions Vnitie Grants or Compositions and by the Statuts of Dissolutions I. FRom those arbitrarie Consecrations and frequent Appropriations of Tithes whereof we haue hitherto made mention to Monasteries or other Religious Places as Colleges of Regulars Chantries and Free-Chappels came the present and common Infeodations of them into Lay hands which began in the age of our Fathers For the Portions of Tithes conueied to them out of Closes parts of Mannors and whole Demesnes by the owners together with the Tithes granted and possessed with appropriated Churches were first by the Statut of Dissolution of Monasteries in 31. Hen. 8. and by that other of 1. Ed. 6. giuen to the Crown and from thence granted to Lay men whose Posteritie or Assignees to this day hold them with like limitation of estate as they do other enheritances of Lands or Rents and for them haue like remedie by the Statut of 32. Hen. 8. cap. 7. by reall action as Assise Dower or other originals as for Lands Rents or other Lay possessions by the cōmon Law they might haue But although in other States these Infeodations or Conueiances of the perpetuall right of Tithes to Lay men be very ancient and frequent also yet no such certain or obuious testimonie of their antiquitie is in the moniments of England as can enough assure vs that they were before the Statut of Dissolutions in any common vse here But some were and for aught appears in the practice of the time many more might equally haue been And what scruple was there but that long before the generall dissolution of Monasteries Henrie the fift might by the Law of the Kingdom haue made Infeodations into Lay hands as Henrie the eight did of all Tithes belonging to the Priors aliens whose possessions were giuen to him by Parliament he had them setled in the Crown in Fee and afterward disposed of them to other Ecclesiastique Corporations at his pleasure no otherwise then of other Lay possessions By the way we vnderstand in these Infeodations by the name of Lay men only such as were not either in Orders or professed in Religion for otherwise all the possessions of Tithes enioied by Nunnes and the like that were indeed Lay though not commonly called so might be comprehended vnder the name of Infeodations But that some were here obserue that of Odo Bishop of Bayeux and Earle of Kent which is before cited out of the liues of the Abbots of S. Augustines in Canterburie The words are Decimas aliquas quas mei fideles habebant c. What can that be according to the words other then Tithes that were in the hands of some of his Tenants You may adde that of Robert S. Iohn cited before out of the Book of Bosgraue where he had by the gift of his brother William certain Tithes which he gaue to the Priorie for maintenance of a fourteenth Monk And obserue the rest of the Deed there So out of the Book of Osney it appears before that Decimatio Nicholai de Stodeham quam Fromundus Capellanus tenebat is granted by D'Oilly Had not D'Oilly this from Stodeham Or was Stodeham here one of his Bailifes or Fermors whose Tithe he graunted as Lord or according to couenant with the Lessee Other such occurre sometimes And perhaps Decimae hominū meorum the like granted may suppose a title possessed in the Tithes by the Lay grantor And in the same Book of Osney in a Passage writen in a hand of about Hen. 5. touching the conueyances of Tithes by Lay men to Monasteries it is related that he that wrote it saw Quendam Rogerum D'Oyly Dominum cuiusdam partis de Bampton in Episcopatu Lincolniensi suis Decimis ita vti vt nunc vni nunc alteri de suis Valettis ipsas conferret annuatim qui sibi in diuersis officijs ministrabant vntill afterward hee erected a Chaunterie with them in the Church of Bampton These Grants to his Valets plainly were as Infeodations And what els was in that known case of Herne and Pigot in Mich. 39. 40. Elizab. but an ancient kind of Infeodation at least an Inheritance of Tithes from immemoriall time in a Lay man That and other like to it might begin vpon reall compositions and so the Tithes be deriued out of the Church But regularly I thinke at this day no kind of Infeodation is here allowable in Lay mans making title to a perpetuall right of Tithes except only by the later Statuts of Dissolutions vnlesse it either be deriued from some old Graunt of discharge from the Parson Patron and Ordinarie in which case hee to whom the Infeudation should be made could haue it only as a Lay profit issuing out of the discharged land or ioyned with a Consideration to be giuen for maintenance to the Parson by him that receiues them and this either from time immemoriall or by ancient composition So I take the meaning of our reuerend Iudges to haue been touching this point In summe then we may affirme that some such ancient Infeodations haue been in England as in other States but that of later time none are allowable if deriued from other ancient originall then from the Statuts of Dissolutions vnlesse they bee anciently deriued out of the Church first by discharge or appeare to be but as a Reward giuen in pernancie or as Consideration for a Pension or other competent Maintenance yeerely payable to the Parson Which withall well stands with the common opinion of the originall of such Infeodations whereof we haue alreadie spoken And whereas it hath been resolued that without these reasons a Lay man was not here capable at the common Law of Tithes by pernancie it well agrees with a Decretall of Alexander the third which forbids one that maried a Parsons sister to enioy a Tithe giuen him by the Parson as for the mariage portion although the Parson were still liuing But also that we may not defraud you of any testimonie of former times that may seeme obseruable touching these Infeodations whereof so few examples and so ltttle mention is in the Moniments of England take this speciall Disquisition writen
as regularly the later common Law would haue it and in the other by Prohibition only I know little proof will serue most men to iustifie that the Spirituall Court had then a Iurisdiction of them but also some testimonie I haue seen of a particular recouerie of Tithes in the Bishops Court in that age The Monks of Northampton vnder King Stephen recouered two parts of the Tithes of the demesnes of Wullaueston against Anselm de Cochis before Robert Bishop of Lincoln as Ordinarie In plenaria Synodo coram Roberto Lincolniensi Episcopo disrationauerunt as the words are in a sealed Charter of Simon the second Earle of Northampton then liuing wherein hee testifies both the recouerie as also Anselme's confirmation of the same two parts according to the recouerie and addes also of his own volo praecipio vt illam Eleemosynam habeant teneant liberam quietam And to this you may adde the Appeales to Rome from the Audience of the Archbishop of Canterburie and other Ecclesiastique Conisans touching Tithes that are as the ancientest Precedents of any such Ecclesiastique proceeding in England remaining among the Epistles of Iohn of Salisburie a great fauorite of Thomas Becket Archbishop of Canterburie in the beginning of Henrie the second In one of them it is obseruable by the way that one Richard the Tenant of Land lying within the Parish of Lenham being sued in the Audience by Andrew the Rector for his Tithes alledges in Court Sibi a nobili viro Willielmo fratre Regis Domino suo esse prohibitum ne eo absente super Decimis de quibus agebatur causam ingrederetur Yet the Court ceased not therefore to proceed but Sentence being readie to be giuen for the Rector the Cause was sent to Rome vpon the defendants Appeale And although the title were only vpon the Grant of him that arbitrarily consecrated yet was it somtime determined in the Spirituall Court But also that in this elder age before about the time of Henrie the second the Kings secular Courts of Iustice originally held plea of the right of Tithes is as plain by infallible proofe of ancient Moniments To begin with the eldest times of this part of our Diuision there remaines yet recorded a Plea held apud Fulcardi montem vnder William the second betweene the Monks of Salmur and Philip de Braiosa wherein the Monks claiming against him and the Abbey of Fischamp in Normandie Parochiam quae ad Sanctum Cuthmannum pertinet de Castello de Staninges these are in England I thinke in Sussex de Bedingas de Bedelingtona by the testimonie of Robert Earle of Mellent a Iudgement of the Conquerors time is cited by which the Abbey of Fischamp had the Parish of S. Cuthmann adiudged to it in the Kings Court And thereupon it being denied by none it was now again adiudged that the Monks of Salmur should restore whatsoeuer they had taken post mortem Regis in Decimis Sepulturis Offrendis c. to the Church of Fischamp And while some delay was in the execution the King sent his Writ ad Iusticiarios suos de Anglia that is to Ralf Bishop of Chichester Randoll his Chaplaine Hamon his Sewer and Vrso de Abetot whereby hee commanded Vt facerent Ecclesiam S. Trinitatis that is of Fischamp habere totam Parochiam S. Cuthmanni Decimas Corpora omnes Custumas tam de viuis quam de mortuis sicut pertinebant ad praedictam Ecclesiam S. Cuthmanni antequam Willielmus de Braiosa haberet Castellum de Bembra Bramber Castle in Sussex giuen by William the first to William de Braiosa quicquid de supradictis custumis Monachi de Salmur ceperint reddi The right of Tithes and Offerings appeares here plainely to haue been determined in the Temporall Court by two Iudgements the one vnder the Conqueror the other vnder his sonne William And it is found vpon record that about 10. Hen. 1. a Writ was sent to Manasses Arsic out of whose Lands diuers Tithes were conueyed into the Monasterie of Fischamp commanding him Quatenus Decimas a parentibus suis inuiolabili iure concessas datas Fiscamensi Ecclesiae Monachos suos apud Coges degentes omnes in paâ—e quiete habere faciat sinon Iustitiae Regis facerent Whereupon he sends his Precept to all his Tenants of such Lands commanding them to make payment Si quis autem aliter saith he facere praesumpserit Regis irae nostrae poenam sine dubio patietur So among the Liberties of Saint Iohn of Beuerley this Writ is found of Henrie the first Henricus Rex Anglorum Osberto Vicecomiti de Eboraco Geraldo de Bridesala salutem Praecipio vobis vt faciatis habere Ecclesiae Sancti Iohannis de Beuerlaco Decimas suas sicur vnquam melius habuit in tempore Regis Edwardi patris mei de illis videlicet terris omnibus de quibus homines Comitatus Eboraci testimonium portabunt quod eas habere debent Et quicunque detinuerit sciatis quod ego volo vt rectum faciat Deo S. Iohanni mihi T. Ran. Cancellario Comite de Mellet apud Londonias c. What is this else then a kind of Iusticies to the Shirife of Yorkeshire for the right of Tithes determinable by the Countrie Doth not homines Comitatus Eboraci denote as much Of the same time also in a Volume of Constitutions other things belonging to the Church of York Henricus Rex Anglorum Osberto Vicecomiti de Eboraco salutem Mando tibi praecipio vt Archiepiscopum Girardum permittas facias honorificè tenere Ecclesias meorum propriorum Maneriorum quas S. Petro eidem dedi cum omnibus Capellis suis cum omnibus Decimis suis cum omnibus terris suis videlicet Ecclesiam de Bokelinton de Driffeild de Killum de Pickering de Burgo Waltero Euremaro Ministris de Driffeild praecipio vt Decimas de hoc praeterito Augusto quas non reddiderunt plenariè reddant sicut Ecclesia eas iustè habere debet sicut vnquam eas melius habuit tempore patris mei siue meo antequam eas dedissem S. Petro videant ne ampliùs inde clamorem audiam si quis inde iniuriam fecerit Archiepiscopo tibi Osberte Vicecomes praecipio vt plenariam rectitudinem inde facias Teste Rogero Episcopo Sarisburiense apud Westmonasterium in Natali Domini And another is there in these words Henricus Rex Anglorum Ansch. Vicecomiti omnibus Praepositis Ministris suis de Driffeild de Pokelinton de Killum de Pikering de Burt salutem Volo praecipio quod faciatis habere Hugoni Decano Clericis suis benè plenariè omnes rectas Decimas de Dominijs meis in omnibus rebus per haec praedicta Maneria mea de omnibus Parochianis qui ad
Ecclesias horum praedictorum Maneriorum meorum pertinent Similitèr facite ei habere benè plenariè Decimas omnia iura praedictarum Ecclesiarum in terris capellis Quia pro salute animae meae omnium antecessorum meorum beato Petro eas concessi in Eleemosynam Nolo autem quod pro recti penuriâ quicquam perdant quod iustè habere debent T. apud Eborum And about 6. Hen. 2. when Turstin Fitz-Simon vsurpt the Tithes of Mercham belonging to the Abbey of Abingdon one of the Monks were sent ouer to the King into France Vt per eius iustitiam autoritatem as my Autor saies rectum suum Ecclesiae suae restitueretur Quod ita factum est Rediens enim frater qui missus fuerat breue à Rege transmissum in haec verba reportauit Then the writ followes directed from Tours to the Shirife of Barkshire Henricus Rex Angliae Dux Normanniae Aquitaniae Comes Andegauiae Vicecomiti suo ministris suis de Berchesira salutem Si Ecclesia de Abbendona habuit Decimam de Mercham ad luminare Ecclesiae tempore Henrici Regis aui mei anno die quo fuit mortuus viuus post inde sit disseisita iniustè sine iudicio tunc praecipio quod sine dilatione inde eam resaisiatis Et ita benè in pace liberè iustè tenere faciatis sicut meliùs liberiùs tenuit tempore Henrici Regis aui mei Et praecipio quod quando Turstinus filius Simonis redierit in Anglia quod Abbas Abbendoniae plenum rectum habeat de terra quam praedictus Turstinus filius S. tenet de feudo Abbatiae Et si Abbas poterit disrationare quod non defecerit de recto praedicto T. in Curia sua Abbas inde ei in Curia sua rectum teneat T. Magistro Iohanne de Oxenford apud Turonem The Shirife by vertue of this Writ vpon enquirie of the point of it in his Countie-Court restored the Abbey to the possession of those Tithes The words of the Booke are Cum verò per lectum esset Regis breue in pleno Comitatu manifestè compertum totius Comitatus testimonio quoniam praefata Decima ad luminare Altaris S. Mariae pertineret quod eam Turstinus iniustè tenebat Vicecomes ex parte Regis illum dissaisiauit eam Altari cui adiacebat restituit What can be plainer then that in those times if these examples haue credit as indeed they cannot iustly be impeached the Temporall Courts held Iurisdiction of Tithes in point of right and not only the Spirituall and to confirm it we adde also the autoritie of Iohn of Sarisburie that then liud he in an Epistle to the Bishop of Excester relating some of those Positions of the common Laws or the Auitae consuetudines as they called them which Thomas Archbishop of Canterburie about 12. of Hen. 2. so much withstood mentions one to be Quod Laici siue Rex siue alius causas de Ecclesijs Decimis tractent which well agrees with the autorities before cited But this was vtterly disallowd then by the Pontificiall Laws as beside the autoritie of the common Canons may be seen in an Epistle of Alexander the third to the Bishop of Exceter and the Dean of Chichester wherein it appears that one William a Clerk of Chichester had appealed to the Pope about Tithes the suit being twixt him and the Parson of Curket and the Parson had on the other side appealed Ad audientiam Domini Regis whereupon saies the Pope Quoniam nemini liceat super rebus spiritualibus ad secularem Iudicem appellare they should enquire of the matter depriue the Parson and send him to Rome III. The frequencie of such originall suits for Tithes in the temporall Courts through the Canons and the power of the Pope increasing and growing more dreadfull to Henrie the second and King Iohn became about their times to be it seems more out of vse and possessed rather by Ecclesiastique iurisdiction Neuerthelesse in the sundrie ages since the determination of the right and payment of Tithes hath been subiect to the temporall Courts by diuers kinds of originall proceeding which for orders sake may be all comprehended in these Fiue I. By Prohibitions touching the modus or Customs of Tithing or other matter concerning the Kings right triable only in his own Court or the like II. The Writ of Right of Aduowson of Tithes wherto you must annex the writ of Indicanit that is but a speciall prohibition making way for the Writ of Right of Aduowson III. By Scire facias IV. By bare processe of command of payment V. By the actions vpon the late Statuts of 32. Hen. 8. and 2 Ed. 6. For the first and last of these because they are now both in common practice and thence known enough in generall to euery man I abstain purposely to speak more of them sauing only that for the first out of the more ancient ages I obserue somwhat by the way which may belong to the vse of the present In 21. Hen. 3. when all the Clergie of England in the Nationall Synod held at London vnder Otho the Popes Legat made subplication to haue redresse from the King of some grieuances one was Quod iudices seculares non decidant causas Ecclesiasticas in foro seculari c. vtrum dandae sint Decimae de Lapicidinis vel Syluicedijs vel Herbagijs vel Pasturis vel de alijs Decimis non consuetis which shews that the temporall Courts also in those elder times determined what was titheable or not so made prohibitions De non decimando according to the Processes in France vpon their Philippin and in Spain vpon the Carolin and according to that note in the Register and Fitzherbert touching the Iustices determination of what is titheable agreeing to this is a Case of 8. Hen. 3. where in a prohibition was granted against a Parson that sued for the Tithes of Rent But you shall haue it as it is in the Record Warwick Magister Eustachius de Cestreton attachiatus fuit rd respondendum Hugoni de Lege quare contra prohibitionem c. trahit eum in placitum in Curiam Christianitatis de Laico feodo ipsius Hugonis in Cestreton vnde Idem Hugo queritur quod ipse exigit ab eo in Curia Christianitatis de certa pecunia pro Decimis molendinorum certum pratum scilicet tres acras prati praetereà de Wareto suo de terris incultis si illas locauerit ipse petit Decimum denarium c. Et Magister Eustachius venit defendit contra eum contra sectam suam quod nunquam traxit eum in placitum de aliqua re certa nisi tantùm de Decimis faeni molendinorum sicut Decimae inde dari debent nec aliquam acram prati
petit nec denarios de molendinis nec aliquid de Wareto vel terra nisi tantùm garbas ideò praeceptum est eidem Eustachio quod de nullo placito de caetero sequatur in Curia Christianitatis nec de aliquo Laico feodo nec de aliquo quod sit contra Coronam Domini Regis But to leaue this and to go to the II. and III. and IV. courses of proceeding for Tithes in temporall Courts which are not so obuiously known for the II. touching the Writ of Right of Aduowson of Tithes and the Indicauit it hath bin cleer euer since the Statut of Westminster 2. cap. 5. and of Circumspectè agatis both made in 13. Ed. 1. this as well as the other long since being receiud into practice by the name of a Statut and so called in Acts of Parlament although it were anciently reputed rather as an Ordinance made by the King and Prelats that if A. Parson of Sale for examples sake libell against B. Parson of Dale in the spirituall Court for so much Tithes and Offrings possessed by B. as amount to the fourth or a greater part of the value of the Church of Dale B. may haue him prohibited by an Indicauit directed to him and the spirituall Iudge after which the Patron of A. hath no other remedie for himselfe or his Encumbent what right soeuer they haue then to bring a Writ of Right in the cōmon Pleas of the Aduowson of that fourth part against the Patron of B. in which Writ the right of those Tithes must be tried by the common Law and herewith expresly agrees the Statut of Articuli Cleri and the reason is because that if the determination of this Plea should be allowd to the spirituall Court then might the Patrons Aduowson of such a part be there lost by iudgement according to the Canons whereas the right of Aduowson and Patronage of Churches or Tithes only belongs by our ancient Laws and at this day to the secular Court Neither is the Writ so much of the Tithes as of the Aduowson of the Tithes Praecipe A. so are the words quod reddat B. aduocationem Decimarum tertiae vel quartae partis Ecclesiae de C. c. And howeuer by the Canon Law the right of Tithes be meerly spirituall and so not due to the Rector so much by reason of his presentation from the Patron as of the common right challenged by the Ministerie whereupon also Lindwood like a Canonist thinks it not preiudicall to the Patron which way soeuer the Tithes alone be determind of in regard that all the Patrons interest is hee saies originally in the foundation building or endowing of the Church with Manse Glebe or Rent and hath no relation to the Tithes which by common right are receiud without his Donation yet by reason it seems both of our ancient practiced Law of Dotation of Churches by arbitrarie conueiances of Tithes at the owners pleasure in which doubtlesse Patrons very frequently encreased the reuenues of foundations with the Tithes of their Demesnes as also of that other ancient vse of Inuestiture wherein the very interest of all the Glebe Tithes annext and other reuenues was transferd into the Encumbent by the Patron it was thought fit that the Aduowson of the Tithes alone should be equally reputed for what concerned the Patron with any other part of the Churches reuenue And the Law hath been cleer thus and so still practiced since the Statuts before cited they permit not the spirituall Court to hold Plea of Tithes of the value of the fourth part where the Patronage is questionable but will haue the Aduowson thereof tried alwaies by the common Law after the prohibition of Indicauit which being purchased aswell at the suit of the Patron as of the Parson recites that the Parson defendant in the spirituall Court Tenet medietatem or quartam partem omnium Decimarum prouenientium de c. de aduocatione of the Patron c. And then Quia manifestum est quod praedictus the Patron iacturam aduocationis Decimarum praedictarum incurreret si praedictus Rector in causa illa that is the Parson plantif obtineret vobis prohibemus ne placitum illud teneatis in Curia Christianitatis donec discussum fuerit ad quem illorum pertineat earundem Decimarum aduocatio And then according as the right shall afterward be tried in the Writ of right the spirituall Iudge is to giue sentence The same Statuts allow to the spirituall Iurisdiction conisans of the fift and of all parts lesse then a fourth of the value of the Church in tithes controuerted twixt two Parsons and no Indicauit is grantable to forbid the suit of one of them commenced for any lesse part in respect of the Patrons right only Neither vpon them by consequence hath any Writ of right of any part of Tithes that appears not to be a fourth part of the Churches value been allowable But for this point how the Law was before those Statuts of 13. Ed. 1. is a great question in our yeer books and diuers are the Opinions touching it Some think that before the Statut of West 2. cap. 5. out of which ioind with Circumspectè agatis they limit the Indicauit to the fourth part no Writ of right of Aduowson of any Tithes lay by the common Law Others ghesse that before that time a Prohibition or Indicauit lay vpon euery suit in the spirituall Court for Tithes and that the Patron might haue had his Writ of right vpon such prohibition against the suit of his Encumbent either of a fift or sixt part and that these Statuts restraind him to the value of the fourth part at least Others haue herein other fancies But it is plain first that long before those Statuts Tithes were demandable of the owner detaining them of their own nature and pleadable in the Spirituall Court and that affirmd in Fleta was regularly before true Decimae in quantum Decimae it suits against the Parishioners debent in foro Ecclesiastico intentari wherewith Bracton liuing in the time of Henrie the third also agrees But it is as plain that before those Statuts if the Rectors of two Churches of seuerall Auowries had controuerted the right of a fourth part or of the value of either of their Churches more in Tithes by suit commenced in the spirituall Court the Patron of the Rector-defendant might haue had an Indicauit to prohibit the prosecution and holding of the Plea Bracton teaches vs that and hath the forme of the Writ to the same purpose and giues his reason Quia posset Patronus iacturam suae aduocationis incurrere But somwhat doubtfully he limits the quantitie of the Tithes to the sixt part at the least beyond which denomination the Indicauit hee thinks lay not for any part His words are Si contentio fuerit inter Rectores de aliquibus Decimis quae
are the expositions of Zonaras and Theodore Balsamon two great Canonists of the Eastern Church Of the V. Chapter THose Abbots spoken of in the 1. § were not of the ministring Clergie properly taken but only principall Gouernors of such as had chosen a separated and single life such as are in good number found in Pailadius his Lausiaca Historia Cassimus and the like more For that of giuing Tithes to the vse of the Poor it seems it must be vnderstood that they were most commonly giuen into the hands of those Abbots or some of the Clergie for their vse and that they dispensed them which may be collected out of the testimonies of that age wherein the goods and treasure of the Church is accounted but as the Poors chiefly in propertie Beside those attributes of Tithes and other things consecrated as tributa egentium animarum and patrimonia pauperum and the like an obseruable admonition is to this purpose found in Isidore Pelusiota that liud about the beginning of these CCCC yeers made to one Maro a Priest whom he often reprehends but specially for not leauing the goods of the Church and of the Poor that is what was offerd in Tithes Rents and other bounties to be kept only by the OEconomus or Dispenser or Steward who in those times receiud them for the Bishop and dispensed them by direction of him and his Clergie but carried them home to his own house 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 saies he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is Leaue off this wicked course For the Dispenser hath his name from his Dispensing to the Poor what is theirs as the goods of the Church are properly So S. Basile stiles the goods and reuenue of the Church 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and the Greek Lawiers call them generally 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or prouision for the Poor And hence is it that diuers Schoolmen to and fro dispute that question whether the dominion or propertie of the reuenue of the Church be in the Clergie and whether what they giue to the Poor be due debilo Iustitiae or debito Claritatis I supposed enough had been said in § 3. to conuince the common error of them which deriue Feudall Tithes from the Clergie of the time of Charles Martell or affirm any common paiment of them then in practice But it is a hard taske to teach obstinat ignorance Let that of Eucherius his vision be as it will which yet cannot stand with the time of his death calculated according to the storie that remains of him howeuer indeed very ancient Autors help to iustifie it it still rests certain that the Constitutions of his time which haue reference to the many sacrileges committed by him and others vpon Monasteries Bishopriques and the rest of the Demesnes of the Clergie neuer spake word of Tithes and with that which is there noted in the margin obserue the seuerall transcripts of that Law of Restitution made in the Synod or Diet at Ratisbon held vnder Caroloman in DCC.XLII as it is in Melchior Goldastus in his first Volume he giues it thus Decimas bonae Ecclesiastica occupata à prophanis restituâ—mus as indeed both Auentin and the Centuries haue it also literally before him both out of corrupted Copies But afterward the diligent Goldastus finding a better Copie entirely again publishes the Laws of that Synod neerer the originall and this one thus Fraudatas pecunias Ecclesiarum Ecclesijs restituimus Some other Copies hauing fundatas but none of any autoritie Decimas pecunia being only their wealth or estate in Lands as in more ancient time pecunia denoted chiefly estate in cattell and then mony as now it doth I know also it had a signification that included offerings of fruits and corn and so might be drawn to denote Tithes offered but that signification was of rare vse and only among the Gentiles Neither as I thinke with some confidence can any man shew me such vse of the word in any Christian Autor of the ancients And the very decree of Thierry King of France and that Charles Martell the Maire du Maison of the yeere DCC.XXX touching the taking from the Clergie their possessions Vt subueniatur necessitatibus publicis solatijs militum pro Dei Ecclesia bono statu Reipub. vniuscuiusque propria pace pugnantium as the words of it are and that of Caroloman in DCC.XLIII speake not a word of Tithes but only of terrae Casatae which were the Ecclesialis pecunia and the small Rents to be reserud to the Church vpon leases made of them which is it seems vnderstood in the more common giuing of them into Lay hands so much spoken of by Flodoard that is Lay men had the benefit of them by hauing Leases of them at small Rents without Fines Neither is any other thing spoken of in the Capitularie exhibited by the Bishops of the Prouinces of Rhemes and Rhosne to the Emperor Lewes the second When I see any testimonie neer Martells time that so may iustifie the receiud tale of his prophaning of Tithes as I may change my mind But seeing so much of his sacrileges left in the storie of neer his age and that not a syllable touching such Tithes as we here enquire after nor any thing els that hath reference to the common paiment of them is found in the Laws made vnder him I still remain confident in what I haue admonished and I think so will euery man els that hath an impartiall eie of iudgment But for that which I haue here noted touching Casata perhaps Casata should rather haue been interpreted a Mesuage or dwelling house For it appears in that Capitularie exhibited to the Emperor Lewes and in some other testimonie of that time that the reseruations ad restaurationem terrarum which may be satisfaction giuen by the Lessees of the Clergie in Rents of land were Nonae Decimae where Decimae haue not to do with paiment of Tithes out of meer lay Fees but only were receiud by reseruation and out of euery Casata xijd. So it may be that Casata is no quantitie of Land there as I haue coniecturd but a house only if it be you see whence I was deceiud pardon me perhaps it was an error I willingly acknowledge so much vpon this Reuiew I acknowledge it if that Capitularie of the Bishops and the other testimonie be therein authentique I somwhat doubt them because the most known and certain Laws of Martells time speak only of xijd. to be serud out of euery Casata and the Nonae and Decimae grow not elswhere into vse till after the beginning of the French Empire and if nothing but Casatae were spoken of there were reason enough why they should be taken for Land But the Nonae and Decimae in those autorities are referd to Land and the xijd. only to Casatae That in the 4. § of the Tithe of time in
Lent out of S. Gregorie is not easily perhaps apprehended by euery Reader without a litle more explication The Sundaies as they were exempt out of the number of daies so were they from the fasting of Lent thence comes his conceit of the Tithe of Time in XXXVI daies which is 1 10. of CCC.LXV so Fractions be omitted and to make vp fortie which is exprest in Quadragesima the known name for Lent the four daies preceding Quadragesima Sunday are to be added this was the intent of that fancie But how sleight and nothing to the purpose that obseruation of the Tenth of Time is howeuer the Canonists as sworn to their Text make of it is easily seen not only in the abusd libertie of calculation of it but also by the customs and Laws of both Churches the West and East in their various limits of this time of fasting Popes Telesphorus they say made it VII Weeks and other diuersities hath it had in the Western Church and the Eastern church exempted both Saterdaies and Sundaies from fasting through all Lent except only the Saterday that next preceded Easter Sunday as also they fasted not on the day of the Annunciation What regard had they then think you to the Tithe of Time Of the VI. Chapter THe practice of paiment in the third CCCC yeers was Parochially obserued in some places but especially by Clergie men to Clergie men who with such as were reputed among them subiected themselues more to their Canons then the Laitie could be brought to do But it seems somewhat plain by the many examples of Arbitrarie Consecrations to Monasteries and other Churches related in § 2. whereto ioine also the English practice in the XI Chapter and the Charter of Henrie the eighth Duke of Bauiere of the Tithes of Ranneshâ—fen giuen to the Church of S. Pancrace that the paiment of them Parochially performd by Lay men was yet frequently omitted or continued to their own wills Whence otherwise could the Founders and Benefactors of Monasteries haue made Tithes part of their endowments it was not in these elder times so much by giuing them Churches as the most that speak of this ignorantly think telling vs that all Tithes came into Monasteries by appropriating of Parish Churches as by conueying to hem diuers Tithes alone and newly created and after those gifts Consecrations or new creations nâ— other Tithes were paid vpon any other right out of that Land which was so charged with them But most of those Consecrations were at one time or another at length confirmd by Popes and Bishops and so cleerly after enioyd which plainly also supposed a former strength in them For regularly Confirmatio ex proprio significatu denotat firmitatem actus confirmati as Panormitan and other Canonists say and nihil iuris noui tribuit sed tantum vetus confirmat But it is plain that after Parochiall right established that is since about M.CC. when the Canons grew more powerfull and obedience to them became more readie such confirmations by bishops and Popes and such consecrations creations or new grants by Lay men of Tithes haue bin taken and declared cleerly void as you may see in a decree of Pope Innocent the III touching Tithes so granted by a Knight of Berry in France and confirmd by the Archbishop and in another of his about Tithes so giuen or created to a Church by the King and Queen of Hungarie and after confirmd by a Pope or two and who can doubt now but that all such grants in regard of preuention of the Parsons right be not only void by the practiced Canon Law of this day but also by the Secular or common Laws of most States if not of all where Tithes are paid in Christendom For admit at this day that Titius grant Decimas suas of such an Acre to the Parson Abbot or Bishop of such a Church and this be confirmed by whom you will The Tithe due from him Parochially is not toucht by it why because they are setled iure communi as the Law is practiced in the Parish Rector but in those elder times such an arbitrarie grant vested the Tithe in the Church to which it was giuen and no other afterward was paid Why because then notwithstanding the Canons no ius commune no Parochiall right of Tithes was setled or admitted in the practice of the Laitie And for those ancienter grants be not deceiud by such as tell you they were alwaies of Tithes formerly infeodated from the Church that hath no ground to iustifie it neither can any man at al proue any common course of such Infeodation of Tithes from the Church into Lay hands to haue been in any State till the later times of Reformation of Religion in some places and dissolution of Monasteries and those two examples which are in Pope Innocents decrees are expresly of new creations at least not of infeodated Tithes as euery Canonist will acknowledge But cleerly they both were in themselus according to the many other but they had not the fortune to be confirmd in such time as the Pope or Clergie vsually gaue way to the former practice of arbitrarie Consecration And doubtlesse also after such time as the Clergie saw that the Canons made for Parochiall right of Tithes had gotten force and that the former creations or grants of Tithes by Lay men which were indeed practiced agianst many Canons both Papall and Synodall were by that name of Lay-mens grants creations or consecrations declared vtterly void by the Pope and his Canon Law although confirmed by whomsoeuer such of them as had originally no other true titles to Tithes so commonly consecrated by Lay men subtilly enough in the next foure hundred yeers left off the pretence of their Lay grantors bountie especially if the Grantor had been a common person and betook themselues only to prescription of XL. yeers and to what other times might be allowd to setle a right to them vpon a possession of Tithes and by what way retaind safely what otherwise if they had held themselues to the deeds of their Lay grantors and to Confirmations had been in danger enough of being recouered from them by Parish Rectors So that when the prescription was good in regard of time and possession although the originall Title it selfe were naught yet because any other iust Title might be pretended to ground the prescription on which also was not of necessitie to be proued incorporeall things it was not difficult to haue a faire course to maintaine their possessions and right of such consecrated Tithes as had been possest so fortie yeers before they were questioned by Parsons which claimed them iure communi For against them such a prescription by any other Church Abbey or Bishoprique or such like is a good Title Remember also their erecting of Parochiall Chappell 's within the larger Territories out of which they had portions plainly the erecting of such Chappell 's for Parish
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
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