to peruse the Annalls of the Church of Orleans Num. 21. deinceps written by Carolus Sausscyus Deane there who in his fift booke in the life of Eucherius doth fully answere Baronius and this Author out of Baronius Ad. 3. And now succeed the reasons of importance Tithes in Charles Martells time were not vniuersally annexed to Churches They were First it is confessed by himselfe pag. 65. where speaking euen of the time of the second Councell at Mascon hee saith Yet withall no doubt can bee made but that in most Churches in this time amongst the offerings of those of the deuouter sort Tenths or greater parts of the Annuall increase were giuen according to the doctrine of those Fathers before mentioned and these other testimonies whereto you may adde that complaint of Boniface Archbishop of Mentz about 750. who liued in Charles Martells time Lac Ianas ouium Christi oblationibus quotidianis ac decimis fidelium accipiunt curam gregis Domini deponunt They receiue the milke and the wooll from the sheepe of Christ in daily oblations and Tithes and neglect the Lords flocke There also hee adds a passage of a Ms Exhortation written about 900. yeeres agoe where it is shewed to be the proprietie of a good Christian to pay Tithes And himselfe doeth relate them as consecrated to the Church of Vtrecht by his father and himselfe pag. 73. c. And the phrase Ecclesiae constitutae in Decimis non priuentur Churches endowed with Tithes not to be depriued in the 4. Councell at Arles capitul libr. 2. cap. 3. c. euen expounded by himselfe of these times shews it pag. 49. And indeed that Canon of that Councel of Arles must be of an vnanswerable proofe if according to Anselmus Lucensis In his Collectanies Boniface the Archbishop of Mentz was President therein who died Anno 755. but twelue yeeres after Charles Martell and that also by the authoritie of Pope Zacharie who died almost foure yeeres before Boniface so that it must seeme very neere his time Secondly suppose they were not vniuersally annexed to Parish Churches yet to the Bishop as to the publike Treasurer of the Diocesse they were of duetie payed And were they not principally Bishoprickes which he infeodated Episcopales sedes traditae sunt Laiâ—is cupidis ad possidendum Bishops Sees were giuen in poss ssion to couetous Laymen So Bonifacius in Epistola ad Zachariam Non solum Rhemensem In Editione Veneta Concilioris Tom. 3. sed etiam alios Episcopatus regni Francorum Laicis hominibus comitibus dedit ita vt Episcopis nihil potestatis in rebus Ecclesiae permitteret He gaue not only the Archbishoprick of Rhemes but other Bishoprickes also of France to lay men and his companions so that the Bishops had no power left to doe any thing in Church affaires So out of Flodoardus Pap. In Aâ—nal in vita Dagoberti Massonius Episcopia Laicis Donata Bishopricks were giuen to Lay men So Hincmarus Ep. 6. cap. 19. And thirdly it being apparent that they then were due to be paid to the Clergie as by the Councell at Mascon appeareth Nay before that which is most remarkeable in the time of S. Remigius who baptized the first king Clodouaeus amongst other reuenue of his Church that Bishop of Rhemes by his will ordered Tythes of certaine villages to be imployed aboue what were for the reliefe of certaine poore widdowes of the same Church His will is perfit in Flodoardus Hist Rhemens lib. 1. c. 18. wherein are these wordes Viduis 40. in porticu Eâ—clesiae alimoniam praestolantibus quibus de Decimis villarum Calmisciaco Tessiaco Noua villa stipendia ministrabantur superaddo de villa Huldriciaca c. France no sooner conuerted but Tything followed And the reuenue of this Church of Rhemes was a chiefe part of Charles Martells sacriledge Vide proemium Helgaudi Floriacensis ad Epit. vitae Roberti Regis In Chron. Casin 796. in Edit paeris It is related also how Abbot Leodebodus about the yeere 620. gaue Tythes of certaine villages in some Parishes to the Abbey at Floriack It also appeareth how Pope Zacharie in the first yeere of his Papacie gaue a priuiledge to the Monasterie in Monte Casino and to all the Cells thereof vt Nullus Episcopus Decimas tollat That no Bishop might take away their Tythes Implying that else they might as belonging to the reuenew of the Church and their iurisdiction howsoeuer they might obtaine it A remarkeable authoritie As in the priuiledge of Pope Iohn the third Anno 562. Quercetan in Not. in p. Abelard p. 1168. the Tythes giuen to the Monasterie of S. Medard were priuiledged Furthermore Agobardus in his booke written in the very beginning of Lewis his raigne Contra insulsam vulgi opinionem de grandine Tonitruo pag. 155. Multi sunt qui sponte Sacerdotibus decimam nunquam donant viduis Orphanis caeterisque indigentibus Eleemosynas non tribuunt quae illis frequenter praedicantur crebro leguntur subinde ad haec exhortantur non acquiescunt Many there are who neuer willingly giue Tythes to the Priests nor almes to Widdowes and Orphans and other poore which are daily preached vnto them and read often and continually are vrged vnto them And Hincmarus who though he be something later saith Lib. 55. capitul cap. 1. Ausoldus compresbyter noster praecepit vt in ipsa Capella Missa non celebraretur antequam homines villae ipsius suam decimam Presbytero suo secundum antiquam consuetudinem darent Obserue there antiquam consuetudinem Ausoldus our fellow Bishop commanded that they should say no Masse in that Chappell before the men of that village paid their Tyth to the Priest according to the ancient custome Cap. 35. After De Ecclesiarum datione quae etiam non amplius quam dotem suam habent cum decima fidelium praemia requirebas Thou requiredst rewards for the gift of Churches which had nothing but the Glebe and Tythes of the faithfull And elsewhere Ep. 7. c. 35. Vnde necesse est vt per singulos annos ministri EpiscoporuÌ„ inquirant quid parcat in singulis Ecclesiis de parte decimae quae iuxta Sacros Canones Ecclesiae competit Whence it is necessarie that euery yeere the seruants of the Bishops shall inquire what part of the Tithes may bee spared in euery Church which according to the Canons belongeth vnto the Church It is therefore manifest that they were due which also Alcuin Walafridus Strabo Rabanus Maurus c. doe in the times ensuing testifie as appeareth in the Catalogue And most apparantly annexed in an Epistle amongst those of Boniface Mogunt Ep. 107. where a poore Curate that had agreed for to serue the Cure for a Priest for halfe the Tythes complaineth to Lewes the Emperour which also is quoted by himselfe Then how might not these Ecclesiasticall profits be as indeede they were a great subiect
ANIMADVERSIONS vpon M. Seldens HISTORY OF TITHES AND HIS REVIEW THEREOF Before which in lieu of the two first Chapters purposely pretermitted is premised a Catalogue of seuenty two Authours before the yeere 1215. Maintaining the Ius diuinum of Tythes or more to be payd to the Priesthood vnder the Gospell By RICHARD TILLESLEY Doctor in Diuinity and Archdeacon of Rochester Fratres non video qua fronte illi non offerimus Decimum à quo accepimus totum Caesar Arelat hom 14. LONDON Printed by IOHN BILL M.DC.XIX TO THE MOST HIGH AND MIGHTY PRINCE IAMES BY THE GRACE OF GOD King of Great Britaine France and Ireland Defender of the Faith c. IF the duty of a Subiect and seruant were not a most sufficient reason to consecrate all labours endeauors to the honor and protection of his Lord and Master yet to whom are Animaduersions more proper then to the Magistrate Or to whom should the defence of the doctrine of Tythes be dedicated but to the Defendour of the Faith All these rights in your sacred Maiesty are supreme and therefore haue emboldened me your poore vnworthy yet faithful subiect and seruant to implore your sacred patronage of these animaduersions on the History of Tythes that so the defence of faith may extend it selfe to the maintenance of the preachers of the faith and the temporall food of their bodies may be established by diuine and humane autority who prepare the spirituall foode of soules But more especially that pious deuotion and zealous affection wherewith your gracious Maiesty embraceth and vpholdeth the Ancient doctrine and discipline of the true primitiue Church to whom Beda in ho. Infra Octau Ascens perfectum est vitae magisterium Ecclesiae primitiuae actus imitari The imitation of Reuerend and sound antiquity is the perfect schole of faith and life by which patterne your sacred pen and sword hath suppressed all schismaticall and turbulent paritie and confounded all Jdolatrous superstition and treasonable practises This is that which hath most encouraged me Conc. Carthag 5. c. 9. passim in Concil postulare ab Imperatore defensorem to implore your Royall and religious patronage who are the aduocate and nursing father of Gods portion the Church and of the Churches portion that is Tythes due to God himselfe in acknowledgement of his supreame right and dominion and giuen by God himselfe to them that serue at his Altar And so much the rather for that Kings as they are in their power the Image of God August in qu. ex V. Test c. 106. who sayd The Tythe is mine Leu. 27.30 1. Sam. 8. v. 15.17 so in the right of their sustentation haue the proportion of God Tenths which quantity in Tribute was so vsuall amongst the Grecians Hesychius in Verb 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to tithe and pay Tribute were as properly Synonymaes as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to tythe and consecrate So that to assume the protection of Gods challenged Tenth assigned to his ministers is indeed to strengthen the reason of that right of Tribute allowed to your selfe And surely this number Tenth or Tithe is sacred and very mysticall and communicated onely to sacred and consecrated persons that are Gods Vicars vpon Earth that is Kings and Priests decima Regis decima Sacerdotis who both stand in Gods place and receiue this portion as Gods vpon earth and this number is so acceptable and familiar to God Lib. de congress quaerēd eruditionis causa as Philo speakes that it doth properly belong to him and by his assignement to those who resemble him It was the saying of an Ancient in S. Augustine Epist 20. Quibus satis persuasum esset vt nihil mallent se esse quam viros bonos his reliquam facilem esse doctrinam To those who only indeuour to be good men all other instruction is easie and among them this doctrine of Tithes need no enforcement nor defender But couetousnesse hath so blinded religion and custome so hardned conscience and might so abetted sacrilege that vnlesse Isidor sent lib. 3. c. 51. Quod non praeualet Sacerdos efficere per doctrinae sermonem potestas hoc imperet per disciplinae terrorem The magistrate command what the Minister cannot perswade Religion must giue way to sacrilege and Christ to Mammon Jt was the complaint of Goffridus Abbot of Vendosme to Goffridus Bishop of Chartres Lib. 2. ep 24 Quod seculares homines sua consuetudine sanctae Ecclesiae authoritatem conantur adnullare That secular men by custome would abrogate the Churches authority which is too true now And it is the Church of Englands petition to her foster-father to her Soueraigne vt reddantur quae sunt Dei Deo And since Res Ecclesiasticae quia diuini iuris sunt Iuo ep 112. in nullius bonis sunt Church-goods because Gods right are not to be accounted any mans possessions Non suntinter res mundi deputari credendae sed Dei Lib. de vita contemplat lib. 1. cap. 16 as saith Prosper Why should men who may not couet their neighbours goods couet that which is Gods and prescribe against diuine right making custome and humane practise and positiue law the basis or maior proposition of their syllogisme or conclusion which they call conscience that so they may lay sacrilegious hands vpon Gods portion that is tythes which surely must all be voyd and vniust as M. Selden ingeniously confesseth pag. 150. if tithes be due by diuine right vnto the Ministers of the Gospell Wherein although I hope the Authours harty submission hath cleered his iudgement concerning any derogation intended by him against the diuine right of Tythes yet because I am afrayd this History of Tythes hath affoorded premisses to some and to others great surmises of religious practise of sacrilege while they see and heare but examine not manifold quotations of Scriptures heathen writers Rabbines Fathers Councels Jmperiall Lawes priuate Chartularies and many vncouth and vnusuall marginall notes whereby they hope nay resolue their owne desires are vnanswerably defended Lib. 2. ad Monymum Yet I hope as Fulgentius saith of Heretikes and their Arguments Nouum non est vt Haeretici illis propositionibus se veritatem superaturos arbitrentur quibus facillime superantur so in this Historian his owne authorities being faithfully discouered do easily ouerthrow the credit of all his consequences Lib. 5. ep 6. Saint Gregory sayd to Childebert Esse Regem quia sunt alij non mirum sed esse Catholicum quod alij non merentur hoc satis Giue me leaue to applie it Your Maiestie is a great King and a mighty Monarch whom God hath crowned with many Kingdomes aboue your Ancestours and made you the vniter of Crownes and this is common to many others with your Maiesty Your Maiesty is a true Christian Catholike King Defender of
assignatus The profit of Tything assigned to other Churches as Concil Mogunt c. 16. q. 1. cap. 24. Locus vbi Decimae fuerant antiquitus consecratae The place where Tythes were anciently paid Concil Metens Circ Ann. 890. cap. 2. Decimae quae singulis dantur Ecclesiis Mogunt Circ Ann. 846. cap. 10. Tythes which are giuen to each Church Animad 2 But first all those Canons are against Arbitrarie Consecrations and secondly the phrases doe not aime at them The first Canon is Si quis Laicus vel Clericus vel vtriusque sexus persona proprietatis suae bona vel res alicubi dare delegauerit Decimationum prouentum priori Ecclesiae legitimè assignatum inde abstrahere nullam habeat potestatem If any Lay or Clergie man or of either sexe any intend to giue his proper estate or goods to any place let him haue no power to take away the profit of Tything anciently assigned to other Churchs So he might not giue his Tythes though he might his land by reason of Parochiall right And for the phrase that this legitimè assignatum was by the Bishop not Patron obserue both reason and authoritie euen for the phrase 1. If the Bishop might only dispose of Church reuenue as before is proued and specially of Tythes as in Concilio Ticinens Ad Annum 855. In Sacris Canonibus praefixum est vt Decimae iuxta Episcopi dispensationem distribuantur Quidam autem Laici qui vel in proprijs vel in Beneficijs suas habent Basilicas contempta Episcopi dispositione non ad Ecclesias vbi Baptismum praedicationem manus impositionem alia Christi Sacramenta percipiunt decimas dant Sed vel proprijs Basilicis vel suis Clericis pro suo libitu tribuunt Quod omnimodis Diuinae legi sacris Canonibus constat esse contrarium It is determined in the holy Canons that Tythes should be distributed according to the dispensation of the Bishop But some Lay men who either in their owne lands or Benefices haue Churches of their owne neglecting the ordination of the Bishop pay not Tythes to the Churches where they are baptized taught confirmed and haue other Sacraments but pay them at their owne pleasure to their owne Churches or Clerkes which manifestly is altogether against the law of God and the Canons Nay the Councell of Agatha An. 506. c. 22. saith Rem Ecclesiae sicut permiserūt Episcopi teneant Ciuitatenses siue Dioecesani presbyteri vel Clerici Let the citie or Diocesan Clergy haue the estate of the Church as the Bishops haue granted or suffered No lawfull assignation then but by the Bishop 2. The Bishop was interessed in a third or fourth part of Tythes in speciall as Concil Toletan 4. Can. 32. Iuxta priorum authoritatem conciliorum tam de oblationibus quam Decimis tertiam consequantur According to the authoritie of former Councels both of Oblations and Tythes let the Bishops haue the Thirds And Concil Parisiens ann 829. lib. 1. cap. 31. Quanquam Canonica authoritas doceat vt quarta pars decimarum in vsus Episcoporum cedat Although Canonicall authoritie teacheth that the fourth part of Tythes must belong to the Bishops Nay these had right to all Tythes not assigned as Addit ad Concil Lateran part vltim cap. 40. How then might any Translation be without him 3. Since the limits of Parishes were assigned by Bishops Ecclesiastica ordinatione Statuti as Vrbanus the third Tit. de Parochijs cap. super eo why not the assignation of Tythes Videsis Grat. c. 13. q. 1. But the very phrase is in Gratian. C. 16. q. 1. cap. plures baptismales Ius ergo Ecclesiarum ita interpretandum est vt nisi Episcopo disponente alijs Ecclesiis fuerit assignatum c. The right of Churches therefore is so to be vnderstood that vnlesse by the disposition of the Bishop it be assigned to other Churches c. Where the assignation in the Translation is And Alexand. 3. Addit ad Concil Lateranen par vlt. cap. 40. To the Bishop of Brixia Decimas retentas si infra certam alicuius Parochiam fuerint◠eidem Ecclesiae facias assignari Cause those Tythes which are withhelde if they be within a certaine Parish to be assigned to that Church And from the beginning the Bishop who as the common Treasurer parted with the custodie of such Reuenue due to his Episcopall office at the consecration of each Church both receiued the Dowrie from the Patron and assigned the seuerall circuit for the offering of oblations and the hauing Church seruice Animad 3 The second Canon is out of the Councel at Meaulx The words are cap. 2. Ideo statuimus vt deinceps nemo Seniorum de Ecclesia sua accipiat de decimis aliquam portionem sed solummodo Sacerdos qui ibi loci seruit vbi antiquitus decimae fuerint consecratae Therefore wee decree that from hencefoorth no Seigneur take any part of Tythes but onely the Priest that serueth there where the Tythes were anciently consecrated Here is no right of Translation by the Patron much lesse of Consecration But here indeed it is no more then anciently payed Antiquitus consecratae Ecclesiis antiquitus constitutis as in the 4. In Concil in Palatio Vern sub Pipin ann 755. and Capit. lib. 5. cap. 230. lib. 6. c. 105. Councell of Arles the Churches are called It being therfore in the Bishops power and not in the Patrons to allow Baptismall Churches which had the right of Tithes No arbitrarie consecration therefore can be inferred which is opposed by the Canon but onely forbidding of sacriledge to take away what did anciently belong to such Churches Animad 4 The 3. Canon is in the Councell at Mentz vnder Rabanus the Archbishop where the words are Volumus vt Decimae quae singulis dantur Ecclesiis per consulta Episcoporum à Presbyteris ad vsus Ecclesiae pauperum summa diligentia dispensentur Wee will that the Tythes which are giuen to each Church by the aduice of the Bishop be disposed by the Priests with great diligence to the vse of the Church and the poore which is also before in Concil Turonens 3. anno 813. Can. 16. But that this giuing was not voluntary but necessary the precedent Lawes both Spirituall and Temporall may inferre whereof one in this page sayth Per iustitiam debentur They are due of right And that the Bishop had an interest in them appeares in the next Canon of the same Councell And as for the necessary duety hee confesseth it in the next words out of the Canon of Leo the 4. c. 16. q. 1. De Monachis cap. 45 c. 56. saepe in Capitularibus To which may be added the Councell Meldens c. 48. vt vici Ecclesiae Baptismales authoritatem priuilegia debita retineant That the Parishes and Baptismal Churches may retaine their authority and due priuiledges Nay Tythes in speciall were so due as no Tythes Hinemarus in
profitably be ouer the people of God But let the Bishops haue that authoritie that in no Churches neither Priests be admitted or from them be expelled without the aduice and consent of the Bishop c. Out of which appeareth the case to be tumultuarie wherein the prouidence and admonition of the Bishop was to be vsed to bring in one Priest Canonically and that was by his approbation as before or his authority to vnhallow the Church and seale vp the doores whereby all the Patrons right might be euacuate for the present Animad 33 The other two quotations plainely may declare the vse of the former and that to be euen quite contrary to his opinion For both c. 17. Lateran sub Alex. 3. doeth expresse the seuerall presentations to the Bishop Cum vna Ecclesia vnius debeat esse Rectoris pro sua defensione plurimos repraesentent Whereas one Church should haue but one Incumbent by reason of their Patronage they present many Whereby his argument of Inuestiture is fallified against which the whole Councell is most opposite Animad 34 And the other in the Addition part 15. cap. 7. saith Episcopus inuestiuit The Bishop did inuest them at the presentment of an Earle of Hereford and that is not a case of Coparceuerie but such as for case A. marrying B. hath by B. the Patronage of the Church C. which Church by the Bishops consent is giuen to a Monasterie B. being diuorced from A. is married to D. D. and B. would deuest the Monasterie and interest the Parson without consent nay D. dying B. married to E. and would maintaine the Parsons right and so vpon change of the Patrons change the possessour This case is not like yet neither the Monasterie nor Parson were interessed by Lay inuestiture Animad 35 From the Patronage though no such challenge of Inuestiture it may be those Droicts Honorisiques des Seigneurs es Esglises as precedences seats c. did proceede as hee seemes to expresse them pag. 394. or from the olde infeodations Pag. 90. But he saith from Inuestiture came the custome remaining in diuers places especially in France whereby the Incumbent hath not for himselfe aboue a small part of the Tythes à Canonica portio at the arbitrarie disposition of some spirituall Patron who take the rest to his owne vse and for this citeth Extr. Tit. de praebendis c. 30. de Iure patronatus cap. 25. Sext. Tit. de Praebendis c. 1. suscepti Animad 36 But obserue the falshood of the Author neither quotation of the Decretals mention or intend the claime of any spirituall Patron But in the first Extr. de Praebendis c. 30. Extirpandae from the reason of the Apostle hee disprooues the custome saying Consuetudine qualibet Episcopi vel Patroni vel cuiuslibet alterius non obstante Any custome of Bishop or Patron or of any other notwithstanding Where Episcopus and Patronus are distinguished And in the 2. Extr. de Iure patronatus cap. 23. praeterea That is absolutely of Lay-patrons or Aduocates or Vidames or Gardians who are commanded vt nihil in ipsis Ecclesiis praeter antiquos moderatos redditus à locorum Episcopis institutos exigerent That they should not exact from the Church any thing but the ancient moderate reuenue instituted by the Ordinaries Where obserue that not by the patronage but by allowance and ordination of the Ordinarie they had any right with what confidence therefore are falsities produced But in deed in sexto Tit. de Praeb c. suscepti There some exempt Religious in their Approbations which they had not pleno iure but were presentable by them what by the negligence of the Bishop not requiring the assignation of a competencie at the Institution of the Clerke as also through the couetousnesse of themselues did assigne too insufficient meanes to their Curates Wherefore Clement the 3. conceiuing how by this meanes no worthy persons would accept such Cures to the damage of soules hee doeth strictly decree and command that neither their Exemption nor any custome of any other religious Patrons notwithstanding the Bishop should interpose his authoritie to inforce the assignation of a competencie This custome therefore as condemned vpon such reason did likely cease But obserue this to be in Appropriations for as such the Religious had them so that they were more then Patrons But this he made his transition to denie the Bishops authoritie to dispose of all Tythes in these middle times as some falsly say although many Canons did but the practise of the time was contrarie saith hee Animad 73 In Tythes where Parochiall right was not setled as also in Tythes de Noualibus of new Improuements by culture not assigned may appeare P. vlt. c. 40. Addition ad Concil Later and himselfe confesseth for the practise that they did belong to the Bishop and no more did any Canons require for the absolute interest of the Bishop but for the iurisdiction and necessarie consent in any voluntarie conueyance of them by any the Canons were in generall as the practise and the particular of the Arch-bishop of Saltzburg was of Tythes which were not Parochially setled Pag. 102. as himselfe afterward prooueth out of Greg. 7. Regist. lib. 2. epist 77. So that therein he had authoritie to allot what part he would as Ordinarie not as Patron Concerning Inuestiture hee addeth that it was Pag. 91. not onely in bestowing parish Churches but in Monasteries and Bishopricks the like was but the increasing power of the Clergie tooke it away wholly in lesser Churches sauing that in Collation of free Chappels Prebends or other Benefices without parochiall Cure according to the Droict de Regale of the Kings of England and France especially and altered it in Bishopricks Animad 38 That the Challenge of Inuestiture was in Bishoprickes and Monasteries as well as parish Churches is true nay first and chiefly for in those times wherein was no Inuestitures of parish Churches the Popedome and Patriarchates by the consent of the Emperour were disposed Nay in St. Gregories time vntill Constantinus Pogonatus remitted it to Pope Agatho there was money paide for the ordination of the Pope to the Emperours Papyrius Masson in Agathone Pag 312. Pag. 417. Ep. ◠4. 8. 21. 91. And as for Bishoprickes in France in the time of Agobardus who pointeth at it and Florus added to his workes where they both reprehend the vse But Fulbertus he acknowledgeth it St. Wulstans Inuestiture by Edward the Confessor in England is miraculous in Matth. Paris And this custome without alteration that may impaire the praerogatiue of the King euen still continueth There praeceded a Congè de Estire Ep. 282. whereof St. Bernard speaketh before Election Ep. 52. and Thomas Becket amongst Ioan. Sarisburiensis his Epistles commands the Chapter Honesta Legatione de Collegio vestro transmissa praeces ei deuotione debita porrigentes vt Canonicè eligendi vobis pastorem
libertatem concedat By some worthy messengers of your companie to send and in all due reuerence to entreat that the King would grant you Canonically a libertie to Elect your Pastor And in the Election potissimas potentissimas habet partes he hath the chiefe stroke Ep. 66. as P. Blesensis And after the Election his Royall assent Ep. 292.295.297 Lib. 1. ep 29. as Sarisburiensis is required and after that the restoring of the Temporalties which P. Cluniacensis doth thus expresse Rex Franciae Electum Lingonensem quem quantum in ipso erat confirmari Canonici rogaueruÌ„t de Regalibus sicut fieri solet manu propria solemniter inuestiuit The King of France did solemnely as the maner is with his owne hand restore the Temporalties to the Elect of Lions whom the Canons of that Church did desire to be confirmed what lay in them And St. Bernard I thinke concerning the same action Electus Lugdunensis petijt Ep. 164. obtinuit à Rege Regalium Inuestituram The Elect of Lions desired and obteyned of the King the Inuestiture of the Royalties And all these remaine yet vnaltered no more being euer anciently required in a regular course The Inuestiture principally being accounted the last action by seuerall ceremonies Serm. 1. de coena Domini as St. Bernard distinguisheth them Inuestitur Canonicus per librum Ablas per Annulum Episcopus per Baculum Annulum simul A Canon is Inuested by a booke An Abbot by a Ring a Bishop by a Staffe and Ring together As for Free Chappels Praehends and Benefices without cure I haue read nothing onely P. Blesensis saith concerning the Deanrie of Vulrehanitin Now Woluerhampton Ep. 152. Quem Decanatum semper de consuetudine Reges Angliae donauere Which Deanrie alwayes of custome the Kings of England haue giuen But to leaue this digression The Authour saith The substance of these Inuestitures was forbidden in the 8. Generall Councell Animad 39 But Iuo well vnderstanding the nature of Inuestiture saith Octaua Synodus solum prohibet eos interesse electioni Ep. 65. non concessioni The 8. Councell onely forbids their interest in the election not in the concession which concession was the substance of Inuestiture as he there saith and so also doth he expound the meaning of the Councell Ep. 102. But Gregory 7. and his successours denied this also as the historie doeth manifest And besides the Inuestiture of Parochiall Churches which vpon the pretence of being Aduocates many Patrons did then challenge after the yeere 1000. for before I reade of none was denied by him and his successours as in the Councels cited vnder Gregor 7. Callixtus 2. and Innocent 3. Yet this challenge may seeme but rarely made P. 92. for lacke of Priests without titles and the want of opportunitie of Resignations into their hand Animad 40 Both which for that by the Canons they were so strictly forbidden as hee confesseth it is not likely that the Bishops in ordering such or the Priests in resigning to Lay men were so frequent since the Canonicall censures were so immediately ouer them But yet suppose both it was not lawfull that they might inuest one though in Orders to any Benefice without the consent much more Ad. p. 87. the notice of the Bishop as before I haue shewed c. And the Councell Nannetens proposeth the case c. 1.6 Vt si quilibet Presbyterorum defunctus fuerit vicinus Presbyter apud secularem Seniorem nulla precatione vel aliquo xenio Ecclesiam illam obtineat Forte cui quia titulus per se antea constans extitit sed neque Capellam sine consultu Episcopi Quod si fecerit definitam sententiam sibi prolatam suscipiat sicuti de Episcopo Canonica decreuit authoritas vt si per ambitionem maiorem ciuitatem appetierit illam perdat quam tenuit illam nequâ—quam obtineat quam vsurpare tentauit That if any Priest dying his neighbour Priest doe by any gift or entreatie obteine that Church of a secular Lord who before had a setled Cure but not so much as a Chappell without consent of the Bishop which if he doe let him vndergoe the same censure which the Canons haue decreed for a Bishop that through ambition desireth a greater See that he lose what he had neither obteine that Diocesse which hee assaied to vsurpe It is likely therefore that not much practise of such Inuestiture was vntill the end of these 400. yeeres wherein that controuersie grew very pernicious to the Empire and France and this our kingdome while the quaestion An inuestitura sit haeresis whether Inuestiture were an heresie troubled some of the learned as in Iuo his Epistles and others of Goffridus Vindocinensis is euident And others whether Inuestitures were lawfull as Walthram the Clergie of Leige Sigebertus c. and their aduersaries P. 93. But to follow him hee saith Not vntill about the end of these 400. yeeres Institutions vpon Praesentations were not before commonly practised especially in the case of Lay Patrons for which he citeth Concil Lat. sub Alex. 3. c. 9. 14. Extr. De iure Patronatus c. 4.10.21 Tit. de Institut c. 3. Tit. de praebend cap. 3. In Lateranensi which hee saith makes that appeare Animad 41 But he that remembreth the Canons and Capitul before cited Ad p. 83. cannot thinke that Institutions by the Bishop for the substance to wit the notice and approbation of the party vpon praesentation to be so new neither do those Canons make it otherwise appeare but rather iudge the contrarie practise of any to be indeede vsurpatious vpon the regular and lawfull course which was by institution and they are censured in his owne quotations to bee Tantae audaciae of such boldnesse Tit. De Iure patr c. praeterea and the action De quibus paenitentia ducti ipsi patroni which the Patrons repented of Ibidem c. cum Laici and they are stiled praesumentes presumptuous c. Relatum the Action Nulla void the custome iniqua consuetudo an vniust peruerse custome Tit. de Institut cap. Ex fide And the rest of the quotations shew them but irregularities and therefore not commonly practised Hee proceedeth to say that in Appropriations P. 94. there did passe not onely the Title but all Endowments the Glebe and Tythe but were made parochiall by grant foundation or custome Animad 42 Especially that Title of grant if he suppose it taken immediately from the Patron is false as before for it is prooued to be granted by the Bishop And againe in that he saith In some Appropriations by prouision of the Patron or at their owne pleasure they might present or not This cannot be shewed without that exemption by the Bishop to whom alone it belonged to giue a Church to bee enioyed Pleno Iure as afterwards In this passage Hee presupposeth in Appropriations the onely authoritie of the Patron But that hee
of the Clergie neither is any prouision there made against the other kindes of Infeodations which passe Tythes from Church men I haue more largely repeated this because though hee made no doubt of it the ground is false Animad 57 For that they were created at first by Lay-men hee can neuer prooue yet because it is said In alios Laicos possint transferre hee would needes inferre the originall of Infeodations whereas it can be onely the after-deriuation for else then he must presuppose in this Canon that euen vntill that Councell for it denies not Infeodations before saith he some Tythes had not beene consecrated to the Church whereas the very word detinentes implies a right in the Church and the word reddiderit doeth plainely shew the ancient possession But hee hath found a new Edition Pag. 115. which because it makes against the Church is the truer reading Tradiderit not Reddiderit Animad 58 Although it be Reddiderit in the Canon and in the body of the Counsell in Roger Houeden and he might haue added in Neubrigensis and Lib. 3. cap. 3. Q. â—1 Memb. 6. Art 1. in all the Commentaries vpon the Decretalls both olde and new in Alensis Besides the Councels to the same purpose before cited which reade Reddiderit And yet the new Romane Edition of the Councels with some other of lesse authoritie shall sway the reading to what he will Animad 59 But his next coniecture though but a coniecture is more reasonable That Patrons in the Vacancies might infeodate as by the Common Law the Patron and the Bishop may sure the Common Law nor common lawfull practise neuer left out the Bishop in such disposition because the Patron had the onely disposition as hee saith hee hath prooued but I know not where yet saith he Patrons granted whole Churches and therefore citeth Flodoard in many passages and Damian before and the Councell vnder Innocent 2. Animad 60 But whether these Churches were not first Spirituall possession before Lay-infeodation is the question for else Lay-men did passe their Fees to others but the sense of the command of the Councell vnder Innocent the 2. of restoring it to the Bishops disposition shewes from whence it came and P. Damianus his authoritie is plaine that the Bishops made them and as for Flodoard hee hath nothing to the contrarie Animad 61 And the next example though produced to oppugne it of Charles the Balde or Charles the Simple though the very like acte done by him in Concil Meldensi cap. 75. make me thinke it Charles the Balde plainely shewes it where it is Ecclesiam cum omnibus ad eam iure pertinentibus The Church with all the lawfull appurtenances But in that it had both consecration or else not Ecclesia and Dotation or no pertinentia and Tythes or else not omnia therefore it came from the Church How then can hee conclude out of these no premisses the originall of infeodations from such Grants whereas the Churches right at first either by consent or Tyrannie of Princes parted with is alwayes precedent Nay himselfe next sayth that Princes sometimes ioyned with the Bishop to bring in the paiment of Tythes that they might haue beneficiall infeodations from the Church not make them themselues And yet in the next words hee sayth But as Princes made infeodations out of their owne demesnes or their owne Churches so other priuate Lay persons did Animad 62 O incoherent confirmation or consequence since hee hath neuer prooued that Princes did though if prooued it followeth not He sheweth next how the Clergie did infeodate Animad 63 But those were annullate Pag. 117. of those quoted out of Innocentius the 3. pag. 447. the first was resigned the second pag. 482. by sentence was repealed and the rest proposed are by his owne Authour discommended In the next Section he speaketh of Exemptions Pag. 118. but beginneth as if he had prooued that Lay-men had enioyed a libertie in not subiecting themselues to the payment of Tythes according to the Lawes of the Church but bestowing or retaining them at their wils in most places euen from the beginning of Christianitie vntill about the yeere 1200. Animad 64 This Hee neither hath nor can prooue though it bee the conclusion which he wholly intendeth and the libertie of Exemption praesupposeth euen that which he would denie parochiall payment The Canon pointed at by Burchard Iuo and Gratian Pag. 119. in the Councels at Chalons or Mentz is in Cabilonense sub Carolo M. Cap. 19. Animad 65 The constitution of Pascalis the second Pag. 120. to discharge all Religious persons from Tything to others was not contradicted by Goffridus of Vendosme and Petrus Cluniacensis because Goffridus doth interprete it to bee of Tythes in their owne parishes where they dwelt as also Hugo de Sancto Victore Tom. 2. de Claustro animae lib. 2. c. 5. who liued then doth also vnderstand where instructing his Monkes what they might possesse saith Decimas non recipiant nisi de illis quos incolunt agris Let them not receiue Tyths but out of those lands they dwell vpon And as for P. Cluniacensis he doth onely say Patrum temporibus Decimas non tantum Laici sed Ecclesiae Ecclesus Monasteria Monasterijs de Rusticorum operibus de proprijs laboribus persoluunt Which custome for the benefit of his Church hee wished might haue beene continued And so without contradiction to Paschal 2. In the daies of our Fathers saith he not onely Laymen payed Tythes to Churches but Churches to Churches and Monasteries to Monasteries both of their owne labours and of their seruants Animad 66 The generall exemptions of all Clergie the restraint to the foure Orders by Adrian 4. the particular of euery seuerall Order is too true And the restraint of Innocent 3. was too late the prodigalitie of consecrations exemptions had exhausted the liuelyhood and learning of the parish Churches and the miserie that St. Bernard spake of Ep. 240. was Basilicae sine plebibus plebes sine Sacerdotibus Sacerdotes sine debita reuerentia sunt sine Christo denique Christiani Churches without people people without Priests Priests without due reuerence and lastly euen Christians without Christ The complaint of Richard Archbishop of Canterbury against these exemptions of the Cistercians P. Blesensis ep 82. for which and for another Epistle against the exemption of Abbeyes from Episcopall Iurisdiction though both by Papall dispensation I am perswaded he is wronged by the writing Monkes is most earnest and materiall Hae dispensationes dissipationes And therefore which is strange The Monkes of Clugny renounced such priuiledge P. Cluniacens lib. 1. ep 33. to auoid scandall Animad 67 The Title of the Templars was partely as of the other Monkes before and more they had Tythes of the Church nomine stipendij for Nemo militat suis sumptibus No man warreth at his owne charges Since therefore the Churches
each man might pay his Tithes whither he would P. 292. And therefore after Pag. 289. he would interprete those manifold testimonies of generall Customes to be concerning Lawes not practise But all is to make way for his Arbitrary consecrations all which in their true sence shall be granted him and the Parochiall right not at the alone will of the Patron or Parishioners shall appeare to haue bene disturbed P. 290. Epist Decret lib. 2. p. 452. Innocent the third his Decretall Epistle is cited to shew the vse of many qui Decimas pro sua voluntate distribuunt who dispose of Tithes as they list And this he would pretend to haue bene generall and not to haue beene done by the wayward opposition of some onely against the receiued and allowed Lawes of this Kingdome Animad 7 But this was the fact of wayward and peruerse men who crossed the Ecclesiasticall and Common law which did not then allow such voluntary distribution which he saith was clearely good but such were thought clearely Irritae Voyd if from the Lay Patron alone without consent both of Ordinary and Incumbent if the Church were full And that they were so froward may appeare by the Notice the Pope tooke of them Peruenit ad audientiam nostram by the Reason he made against them Inconueniens à ratione dissimile est It is vnfit and vnreasonable that hee that soweth Spirituall things should not reape carnall things by the Order hee tooke for them vpon contumacie that censure should bee inflicted and that the Archbishop should ordinare quod Canonicum ordeine what was agreeable to the Canons which were the Lawes of Tithes notwithstanding any Custome against that which was Canonicum As for his dreame rather then opinion of Rentz-charge in Tithes conueyed to Monasteries about that time hee can neuer prooue Animad 8 But for satisfaction to our Authour who in all the remainder of this Chapter would make the saying of the Lawyers to haue reference onely to the Councell of Lateran vnder Innocent the third Anno 1215. or to that Decretall Epistle before about that time Vntill when say they men might giue their Tithes to what Parish or Monastery they would Let him consider that if Tithes so giuen to Monasteries were reclaimed by demaund by authoritie of a Councell at Lateran before that Councell then that Councell cannot bee meant by the Lawyers if they speake true But that so it was is manifest for amongst the Muniments of the Church of Rochester there is an agreement vnder seale both on the Monkes and Bishops part betweene Gilâ—ert Glanuill Bishop of Rochester and the Priour and Couent there after a long suit in the Court of Rome vpon certaine demaunds on each part whereof one for the Bishop is thus Tertio mouâ—muâ— ijs quaestionem Chart. Roffens Ecclesiae de Decimis quam suis quam alijs pensionibus quas de Ecclesiis in Episcopatu Roffensi constitutis contra Concilium Lateranense citra authoritatem Episcopalem percipere non verentur Thirdly wee questioned them for Tythes both their owne and others and for pensions which they presume to receiue of the Churches in the Diocesse of Rochester contrarie to the Councell of Lateran and without the Bishops authoritie This Record is without Date yet this Bishop euen dyed before that Councell 1215. And yet after this Agreement confirmed all the Tythes in particular collated by Gundulphus and his successours to that Monasterie and did many Acts of fauour Tythes therefore before that Councell reclaimed and by the authoritie of a former Councell at Lateran both which doe crosse his surmise of the Lawyers sense which better may be referred to that vnder Alexander the third and so bee vnderstood of Feodall Tythes and agree with the speach of Lindwood cited pag. 293. Tit. de locat conduct c. liceâ— V. portiones Ante illud Concilium bene potuerunt Laici Decimas in feudum retinere eas alteri Ecclesiae vel Monasterio dare non tamen post tempus dicti Concilij Before that Councell vnder Alexander the third Lay men might well retaine Feodall Tythes and giue them to another Church or Monasterie but not after the time of that Councell And with this my Obseruation I passe to his next Chapter ANIMADVERSIONS on the eleuenth Chapter THe former part of this Chapter is a collection out of select Chartularies of diuers Monasteries concerning the conueyances by Lay Patrons of portions of Tythes to seuerall religious houses Whereby his intention is to prooue In some how they did passe Tythes newly created In other how they did consecrate without consent of the Bishop In all how Lay Patrons did intermeddle in the disposition of Tythes as of other inheritance for obserue the Title or summarie of this Chapter Arbitrarie consecrations of Tythes by conueyance from the owner of all or part to any Church or Monasterie at his pleasure In examples selected out of monuments of infallible credit Animad 1 In particular to examine all were needlesse and for me inconuenient who must gesse at what I haue not seene Yet for generall answeres let the Reader obserue these 1. That the right of the Patron to giue consent by Charter to the passing away of Tythes both his owne and Tenants in part and all and to diuide them from the Church of his foundation is not denied and is prooued by all those Chartularies The question therefore is not whether the Patron did it but whether hee alone did fully and lawfully without farther consent and confirmation giue interest sufficient to the possession 2. Secular and Ecclesiasticall Lawes had commanded the payment of Tythes The custome of payment was generall How then was there any newly created Tythes not due not paid before though it might bee through disusance or vsurpation detained or by composition nomine decimae altered 3. No Religious house nor Churchman durst receiue any Tythes of a Lay-man without consent of the Bishop for the Donationes were Irritae and themselues censured Pag. 375. Reade his owne quotations of the Nationall Councell at Westminster vnder Anselme ann 3. Henrici 1. and of another vnder Cardinall Iohn de Crema ann 25. Henrici 1. To which adde another Ex continuat Florentij Wigor ad ann 1129. vnder William the Archbishop anno 1129. Vt nulla persona Ecclesias vel Decimas seu quaelibet alia Ecclesiastica Beneficia det vel accipiat sine consensu authoritate Episcopali Canonica authoritate vetamus We forbid by Canonicall authoritie that no person without consent and authoritie of the Bishop receiue or giue Churches or Tythes or other Church Benefices To omit the many Epistles of Paschalis 2. So then Apud Anselm lib. 3. Epist no receiuing without consent therefore no giuing 4. The phrases of many of the Charters proposed are De omnibus vnde Decimae dantur Of all whereof Tythes are giuen Quae Parochiani debent reddere suae matri
the sigle H. may signifie Hugh then Bishop of Lincolne then the phrase Decimas de Dominicis suis liberè conferre consueuerunt which the Bishop of Lincolne and the King and Nobles claime may haue good sense against Parochiall right claimed by the Prior for the Church of N. and yet admit no Arbitrarie consecrations for there liberè is not free from Episcopal authority but Parochial constraint they hauing before beene made canonically Decimae separatae that is a portion vpon which a prescription being added and the Bishop insists vpon the custome of himselfe and predecessors there can be no revnion And in such case the King and Bishops and other Grandes might interpose themselues to make good their predecessours and their owne Grants But suppose his interpretation of Decimae separatae for a Benefice of Tythes not annext to Churches what is this separation or collation without consent of the Bishop that is not expressed in Liberè which as before hath onely reference to parochiall right Though in respect of the Aduowson or Patronage if they were so separate who denieth it to King or Patron yet in that it s said in the Kings claime Quia consimiles Decimas conferimus in quibusdam Dominicis nostris not in all and Quamplures Magnates not omnes doe the like it may seeme some priuiledge rather then common Right of Patrons for then all Patrons and in all Demesnes should haue equall right Though the Kings soueraigne authoritie in these and all other causes Ecclesiasticall I doe heartily acknowledge The like prohibition Pag. 357. Anno 7. Edwardi 1. in the Chartularie of Osney betweene the Abbot and Couent there and the Parson of Harewell for two parts of the Tythes of certaine Lands there the King prohibits the prosecution in the Ecclesiasticall Courts because Tangit nos coronam c. maxime cum consimiles Decimas in pluribus Dominicis nostris conferamus etiam plures Magnates Regni nostri c. Animad 6 This may haue a good sense namely of Tythes anciently collated to the Free Chappell of S. George in the Castle of Oxford from whence Osney claimed them as appeareth by the words Ex collatione Progenitorum nostrorum Regum Angliae By the gift of our Progenitors Kings of England Now Parochiall Right could not reclaime these being once separated by Canonicall authoritie And therefore for the Parson to claime interest in such might occasion a Prohibition and the reason might be for the King and Nobles did giue the like so anciently collated and seuered Besides this prohibition and the former may haue the same answere as before Pag. 358. Yet the Councell vnder Hubert Archbishop of Canturbury in the 2. of King Iohn though repeating and respecting the Lateran Councell vnder Alexander the third Houeden p. 2. fol. 460. must haue an interpretation contrarie to that which is the meaning of that Lateran Councell which is examined before ad pag. 114. 138. It must be vnderstood of receiuing arbitrarie consecrations not the receiuing of Infeodations because heere in England such Infeodations were rare and therefore not likely to bee intended by this Canon vnder Hubert What then though they were rare heere yet they were irregular and therefore heere might be condemned which he must obserue because that euen supposing his interpretation hee may see that in that Canon the Actors were censured and the Act annullate But that at that time there were Tythes giuen which were not before in esse hee cannot prooue and as for Tythes conueyed by Inuestiture of Churches needs more proofe though any such Extrauagant Act were not Valide Pag. 359. In the Section following insisting vpon his purpose to prooue Arbitrarie consecrations Hee would imagine those phrases Quae Decimari debent Those things which ought to bee Tythed And Quae Decimari debent more Catholico Those which ought to bee Tythed after the Catholike manner in many Grants to expresse no Canonicall payment before But that then New Tythes were giuen which though not before yet then by the Canon Law ought to bee Tythed For that the obedience to the Canons in this point was generall through the Kingdome is most false wee know the Trueth by a cloud of Home-bred witnesses So our Authour Animad 8 But these phrases doe but shew the extent or manner of the Tything and the duety of payment not Arbitrarie but necessarie Nor inferre they any opposition to the Canon Law for that were absurd to acknowledge it before it were obiected in such Donations especially in conueying Tithes to those who could not receiue them if opposite to Canons But let him disprooue the generall lawfull practise for as for the disobedience of some few in bestowing Tythes though not newly consecrated I doubt but as for newly consecrated his home-bred witnesses can not testifie And from his strange interpretation P. 360. wherein hee straines his wit to make good his paradoxe hee makes a comparison betweene these two phrases Quae offerri solent and Quae decimari debent vel solent and would thence inferre a like Arbitrarie Custome Animad 9 Whereas some offerings both of Christians and Gentiles are Arbitrary but Tithings areas much debent as solent and so are necessarie and otherwise to call them and not prooue them is petitio principij Yet to prooue his paradoxe he relates how in the booke of Doomes-day Stori the Ancestor of Walter de Aincourt is specially thus priuiledged that hee might sine alicuius licentia facere Ecclesiam in Darby or Nottingham Shire in sua terra in sua soca suam decimam mittere quo vellet without leaue of any to make a Church in his owne land and in his owne Fee and to send his Tythes whither he list Animad 10 This of Stori sure was a Priuiledge and that from the King as may seeme for that it is noted in that Temporall Description because the granting of any land in Manum mortuam which by making a Church was done did belong to the King to giue licence To which acte of building a Church the words Sine alicuius licentia meaning no secular Superiour may bee restrained And whereas he might build a Church in his owne land where hee list hee might send his Tithes to which of the Churches he had built but this by the Bishops permission whose consent may as well be supposed though not exprest for the conueyance of Tithes as the consecration of the same by the Bishop is not expressed yet necessarily required How in the Empire it was Goldast Constitut Imper. Tom. 3. the Conuentus Optimatum at Pauy vnder the Emperour Berengarius Anno 903. may witnesse where it was decreed Vt omnis Decimatio ab Episcopis vel his qui ab eo constituti sunt praebeatur nullus eam ad suam Capellam nisi forte Episcopi concessione conferat Quod si fecisse contigerit primum legibus subiaceat humanis postea Excommunicatione populi
onely by vertue of late Statutes But saith hee out of Thorpe a Iudge that in such places out of any Parish as in the forrest of Englewood the King ought to haue the Tythes to dispose of and not the Bishop and relates that the Archbishop made suite to the Councell to haue them Animad 17 Although I know and acknowledge the Kings prerogatiue in disposing all Tythes by his Supreme power in causes Ecclesiasticall yet chiefly in Forrest◠for to him alone Forrests did belong and especially that of Englewood which well euen in reason might be granted him for that in Assarted land much grew more Tytheable then before to the more benefit of the Clergie And it is not said the King may keepe but collate to whom he will which inferres the right of Tythes And since as in the Records after the King there claimeth a priuiledge to build Townes erect Churches Assart lands and giue those Churches with the Tythes of that lands to whom he will because it is not within the bounds of a Parish well he might by his Prerogatiue and Supreme power adde the Tythes of the Townes to the Churches as euen by the Capitulars lib. 1. cap. 93. it is granted Sancitum est de Villas nouis Ecclesiis in ijs nouiter constitutis vt Decimae de ijsdem Villis ad easdem Ecclesias conferantur It is ordained concerning new villages and Churches therein newly founded that the Tythes of those villages should be conueyed to those Churches And this is repeated in the Concil Wormatiens can 52. And in Triburiens c. 14. there it is Si vero in qualibet sylua vel deserto loco vltra milliaria 4. aut 5. vel eo amplius aliquid dirutū conlaborauerit illic consentiente Episcopo Ecclesiam construxerit consecratam perpetrauerit prospiciat Presbyterum ad seruitium Dei idoneum studiosum tunc demum Nouam Decimam Nouae reddat Ecclesiae salua tamen potestate Episcopi If in any forrest or desert place aboue 4. or 5. miles off or more any shall repaire or build a new Church by consent of the Bishop and shall haue it consecrated let him prouide a fit and honest Priest for the seruice of God and then let him giue his new Tythes to his new Church reseruing the authoritie to the Bishop For as the Church was consecrated by the Bishop so the Tythes were disposed by his consent for in those times nothing concerning the Church was done without the Bishop or Popes consent and confirmation So in this case the King making of a desart an Adesart But yet Herle the Lawyer is after cited to be of another minde then Thorpe Pag. 367. But that this is not onely a Prerogatiue to the King but the same which the Baronage claimed in King Iohns time hee intimates Animad 18 Whereas yet that was in the building of Churches not in new assarts but in ancient Parishes as that of Lambeth in the Epistle of Innocent was and no forrest And the Kings grant of a prohibition in his owne name alone against the Bishop of Carleile sheweth it not to be a common priuiledge to his Magnates as to himselfe for else as before he would haue put his Magnates as himselfe in the prohibition Pag. 368. Animad 19 Now because Herle a Lawyer sayth that such Tythes out of Parishes might not arbitrarily be giuen but that the Bishop of the Diocesse should haue them he is censured to speake suddenly that is rashly and out of the Canon Law not out of the Common Law If he knew not how to speake as he ought what doeth our Author It were well that hee should Tutor him in his owne profession and shew that Tythes were giuen or assigned to any Church without the consent of Bishop or Pope and what Rule is there in the Common Law concerning Tythes but it is taken from the Ecclesiasticall Law ANIMADVERSIONS on the twelfth Chapter IN this twelfth Chapter first Pag. 370. concerning Appropriations of Churches Hee obserueth that in the Saxons times in their Appropriations they vsed not to say Ecclesia cum decimis or Ecclesia cum decimis in annona c. which in the Normans time was frequent Animad 1 The reason was not because Tythes were not then ioyned to Churches but because they were not as in the Normans time so disioyned But by the word Ecclesias all passed then Afterward by reason of the seuerall translations of them both the explication cum decimis with the parts thereof as also the place was added where the Tythe grew in such a demesnes of such a man and such like which by the Bishops approbation might be altered and translated In this Section of Appropriations he saith The common intent was that the Monasteries should put Clerkes and Vicars in the Churches Animad 2 This is true as Patrons they did praesent and the Bishops did admit and in Appropriations the Bishops did vsually reserue a power of ordaining a competencie to be assigned to the Vicar or did presently doe it at the first and the Vicar had alwaies recourse to the Bishop in any grieuance offered from the proprietaries for the increase of his portion Pag. 371. Of this inioyning the maintenance of Vicars hee produceth two examples of both Prouinces And first of Yorke before Canterburie for he will bee against the knowne authoritie of those prime Seas But in that last in the Prouince of Canterburie out of Pope Lucius wherein is the word In quibus praesentationem habetis he saith this can not be vnderstood of those which the Monasteries enioyed Pleno Iure whereof indeed before he had spoken Animad 3 Yet heere out of our Records let mee tell him that Anno 1255. the Prior and Monkes of Rochester and the Prior or Warden of their Cell at Filchstow in Walton in the Diocese of Norwich did present one Stephen Banaster to the Church of Tremlegh Officiali tunc vices Episcopi Norwicensis gerenti whom the Officiall instituted and yet Iohn the Bishop thereof before had in his cōfirmation said Ecclesiam de Tremblega pleno Iure cum omnibus pertinentibus pertinere ad Priorem Monachos de Waleton That the Church of Trembleigh did belong Pleno Iure to the Monkes of Walton But I conceiue therin pleno Iure rather to be distinguished from non per vices or non excompraesentatione alterius then otherwise though I contradict not the opinion of the Canonists who say a conueyance of Churches pleno Iure to be of the right of Institution and Destitution which in the next example of the next Section may haue place Pag. 373. In this Number to prooue his paradoxe which hee can neuer prooue That Tythes passed from the Patron by his gift no otherwise then Freehold neither was the confirmation of the Ordinarie necessarie Hee proposeth an example of one Robert of Dene who giues to the Church of Lewis a Church with Lands and Tythes and two
or lib. 4. Epist. 5. veteris Edit he could not haue so erred For there St. Cyprian writing to his Church of Carthage to entertaine Aurelius and Celerinus Confessors whom he had already made Lectores he addeth Caeterum presbyterij honorem designasse nos illis iam sciatis vt Sportulis ijsdem cum presbyteris honorentur But vnderstand that I haue an intention to make them priests that they may be honoured with the same sportulae that is stipends as priests Is not heere an euident interpretation of the phrase in honore Sportulantium fratrum to be no other then such qui in Ecclesia Domini ad ordinationem Clericalem promouentur who in the Church of God are promoted to the order of Priests as in the words before in the Epistle For whereas those that were not in orders were content onely alimentis Ecclesiae sumptibus parcioribus Lib. 1. ep 10. with foode some small allowance as the same Father Yet those in orders had besides honourable stipends which were called Sportulae So that heere Sportulae can not signifie offerings and so in both the sense was mistaken Sportula P. 38. to denote the oblations giuen to make a Treasurie for the Salaries and maintenance of the Ministers of the Church for this primitiue time And to this purpose was it also vsed in later times Conc. Chalcedon in libello Samuelis aliorum contra Iban Et Videsis Tom. 3. Concil fol. 231. c. 31. Editionis Binnij penultima Animad 8 That Sportula did not signifie any such oblations is shewed before and the quotations of the later times are much wronged and in them the Clergie whose maintenance must arise out of Bribes or bee so if his sence might stand For in both places Sportula signifieth nothing but Bribes the words of the first are Tertiodecimo quia à Paganis incidentibus in peccatum sacrificiorum accipiens Dainel Episcopus Sportulam relinquit crimen negocians hinc sibimet lucrum 13 Because Daniel the Bishop receiuing of his countrey dwellers that fall into the sinne of sacrificing to Idoles Sportulam that is a bribe leaueth the fault vnpunished euen thence raising gaine to himselfe The words of the second being in Concilio in Palatio Vernis sub Pipino Can. 25. Vt nullus Episcopus nec Abbas nec Laicus propter iustitiam faciendam Sportulas contradictas accipiat quia vbi dona intercurrunt iustitia euacuatur That no Bishop Abbot or Layman receiue Bribes which are forbidden for where gifts are there is no iustice I am sorry the Author should allot such wicked maintenance for so holy a profession By Saint Cyprians authoritie Epist 66. Edit Pam. or lib. 1. Ep. 9. It is manifest that no payment of Tithes was in his time in vse although some too rashly would hence inferre so much those wordes tanquam decimas accipientes plainely exclude them Animad 9 These cannot exclude the paiment of Tithes then if hee will consider their liuing together either at the Bishops Sees or at some Monasteries at the prouision of the Bishop by his Officers as himselfe confesseth the vse p. 81. 255. Of which Officers they did not onely receiue alimenta but also Sportulas as before For then vnlesse hee can prooue no paiment of Tithes to the Bishop who besides the Sportulae of the Clergie was also to contribute to the poore his inference is nothing And the phrase In honore sportulantium fratrum tanquam decimas ex fructibus accipientes is such by which he must needes inferre rather more then lesse because hee acknowledgeth that the meanes of the Clergie being compared to the Leuiticall was proportionable and yet besides the poore were relieued heere as out of the Leuites they were not But the Tanquam was not for the proportion which might bee equall but for the kindes they receiuing in Sportulis in money and food what the Leuites did in kinde and therefore it is not said onely Tanquam Decimas but it is added ex fructibus to expresse the relation of the comparison But for conclusion that Tithes were paied there besides the place next to bee obserued the passage of Saint Augustine before Maiores nostri Decimas dabant being in the Prouince of Carthage may well haue respect to these times Saint Cyprians Martyrdome being not an 100. yeeres before the birth of Saint Augustine But in his Reuiew about this place he contendeth not much neither more will I. P. 39. Out of the place of Cyprian in his booke De vnitate Ecclesiae § 23. in edit Pamel You may gather that no vsuall payment was of them And in his Reuiew not Tithes properly but Tenths of Patrimonies are vnderstood The words are At nunc de Patrimonio nec Decimas damus P. 460. Animad 10 The Authour acknowledgeth the oblations were lesse then vsually before and therefore that Saint Cyprian expresseth their neglect in these words no doubt of a Christian duetie of paying Tenths at least though according to Apostolicall practise they would not sell all and lay it at the Bishops feet Now that these Tenths were of Annuall increase not partes of patrimonies besides the Legall word Decimas so properly signifying and the praeposition De Pag 37. denoting emanation not partition the crossing of his doubting of the gift of lands before pointed at might well haue procured the alteration of so new an interpretation especially since by the true sense St. Cyyrians complaint may haue more latitude because they were so farre from selling houses and lands to giue as in the Apostles time vnto the Church that now not so much as the Iewes did they gaue not the Tythes out of their patrimonie For otherwise to haue giuen the Tenth part of their patrimonie might in the sentence of eloquent Saint Cyprian haue made no disproportion since he doth not say before Domus tunc fundos omnes or vniuersos venundabant which should haue shewed the difference from Tenth parts of patrimonies and a great rich man might haue giuen Domus fundos and yet but the Tenth part of his patrimonie and so haue made the Father complaine without cause But lastly if of the most St. Cyprian did not receiue Tenths then hee might seeme to preach without power to perswade practise For all the confident speach therefore of the Historian that no Annuall encrease or such Tenth is heere to bee vnderstood I hope the contrary is manifest Christian Emperours Gratian Valentinian and Theodosius Num. 2. C. Tit. de Mâ—tallarijs l. 3. cunct c. Anno 380. made lawes for Tenths of Mines and Quarries for the Emperours when no Tythes of such things was thought of then Animad 11 But he forgets St. Ambrose who claymed and had euen Tythes in those dayes as himselfe confesseth in the beginning of the next Chapter who liued and conuersed with those Emperours and by them was highly honoured And as for that law what neede it expresse any Ecclesiasticall
Title of Christianitie King Pipin gaue royally the Tythes he had betweene Lesche and Ourt Animad 7 This Donatiō by King Pipin sure was of infeodate Tythes taken away by his Father which the phrase quas habet doth insinuate but if other Tythes especially since they were bestowed vpon a Cathedrall Church why should any misdoubt the consent of the Bishop for the benefit of his said Church The next Donation produced being many yeeres before expresseth the consent of Vindicianus a Bishop to the gift of Theodorick and for the time of Charlemain the sonne of this Pipin Obserue what Luithprandus Ticinensis or some Author rather before his time in the life of Adrian the first saith Carolus in loco Osbrugge vocato Episcopatum constituere decimis nouiter ad fidē conuersorum Papa ita dictante priuilegijs suis confirmante dotare deuouit Charles did vow to erect a Bishopricke and endow it with the Tythes of the new Conuerts the Pope allowing and confirming it with priuiledges But in the life of Adrian the second It is said that he gaue to the Church of Hersfeilt Anno 860. certaine Tythes in Frissoneuelt and Hassega adioyning to the Diocesse of Halberstadt Quas Stephanus Papa in Basilica B. Petri die Sancto paschae sua authoritate Imperatoris subscriptione Hildegrino Halberstadensi Episcopo praesente confirmauit Carolus quippe omnes decimas in Saxonia constituerat ad Regale seruitium eas Rex dare potuit quo voluit Those Pope Stephen by his authoritie in the presence of the Diocesan confirmed Though Charles had taken all the Tythes of Saxonie then by him conquered and conuerted to his owne vse to giue whither he would since therfore before and after it was so he must prooue the Negatiue that now it was not or else not inforce Arbitrarie consecration from this Donation The next Donation is of a Decimancula in Curte Rodulfi to the Church of Arras out of the Chronicon Cameracense Attrebatens lib. 1. cap. 15. Animad 8 Where first obserue that this is confirmed and giuen by the Bishop in the place quoted and confirmed by Theodorick the King Secondly That it is called Decimancula a small Tythe which must needes bee in comparison of greater vsually offered though now translated by Vindicianus the Bishop his authoritie and confirmed then by Pope Iohn the fift euen in a Synode All this is in the same Chapter wherein are many other circumstances to perswade the Trueth of this Another is of Pipins confirmations to the Abbey of Fulda of whatsoeuer it had or should haue among other things in decimis fidelium Animad 9 How may this inferre other then Translations and that as before by consent of the Diocesan Bishops this being a confirmation of consent to what Archbishop Boniface the founder thereof had procured and ordered The Ms Register I see not to extract other answere but in that it is a confirmation at the foundation of the Abbey of Fulda Anno 742. and there Decimae are contra-diuided to Donis oblationibus decimisque fidelium I obserue the Tythes were not Dona aut oblationes gifts or oblations therefore not of bountie and because they are called Tythes were due before such Translation to the Abbey And that this was but two yeeres after the time of Charles Martell Next is a negatiue argument out of Marculphus his exact formulae and precedents of all such Donations and Cessions to Churches where Tythes amongst other things specified are not named and therefore as he supposeth were not Animad 10 But that was not because they were not payed but because they were not in the dispose of Lay conueyers and arbitrarie vnlesse wee will imagine that any would giue their lands and all other commodities there specially named and would reserue onely the Tythe But indeede that that was paide by the second Councel of Mascon the fourth Councel of Arles and the Capitularie both cited p. 49. doth appeare namely that the old Churches were endowed with Tythes of which more in the following Animaduersion NExt is the History of Charles Martells sacriledge wherein because it is of so great consequence I will examine all his Reasons Num. 3. both in this Chapter and the Reuiew by him produced which while I doe gentle Reader affoord thy patience Since this Story if true were great authoritie both for generall payment and speciall endowment at those times of great antiquitie and faire proofe as himselfe confesseth pag. 51. And would greatly oppose the originall of Inseodations by him defended pag. 112. And in generall his whole discourse of Arbitrarie consecrations which saue some few are all since his time He sayth it can neuer be iustified pag. 51. and that they that referre Infeodations vnto his time or any age neere him are in grosse errour neither is there mention of them for aboue 300. yeeres after him pag. 112. 403. that it is a common errour obstinate ignorance to defend it in the Reuiew pag. 465. And for proofe addeth many reasons M. Seldens Arguments First That by no olde Author of credit he is mentioned to haue medled with Tythes Secondly The vision of Eucherius B shop of Orleans who saw him damned for it and that by search accord ng as an Angell admonished in his Tombe it was also confirmed for trueth there being found in it no relique of him but onely a dreadfull serpent This altogether false Thirdly Tythes in his time were not so vniuersally annexed to Churches as that they could be the maine obiect of such a sacriledge Fourthly nor are they reckoned so among those Ancients that largely speake of Lay-mens oppressions by defacing whole Monasteries and Bishoprickes in the times that succeeded In the Reuiew pag 465. Constieut Imp. Tom. 3 p. 177. Fifthly In the Lawes of Restitution by Caroloman and Pipin as Goldastus in a better copy relates They are called Pecuniae not Decimae neither the Nonae and Decimae restored were any thing but as Rent of land and the twelue pence onely of euery Casata Whence the Argument is thus That was restored which was taken away but Tythes were not restored therefore Tythes were not taken away Yet for all these faire shewes Animad I hope out of that small reading and fewe bookes I haue to make it most plaine and throughly to refute all his reasons That he was a notabl◠Church-robber that he died miserably is confessed that his sacriledge was in Tythes shall thus be prooued Agobardus who was very learned and of great iudgement To the first Argument as himselfe truely stileth him pag. 65. He saith it in his Excellent booke de Dispensatione Ministerio ordine totius rei Ecclesiasticae contra Sacrilegos siue Simoniacos Circa ann 821. written in the time of Lewes the sonne of Charlemaine the Grandchild of Martell For there admonishing a Counsellor to the Emperour of the disorder In rebus Ecclesiasticis quas contra vetitum contra Canone
and at once infringeth many worthy French Councels which yet are not in Isidors Code of Councels to repeat them all were needlesse they are obuious to euery one that turneth ouer the Councels But obserue my coniecture why they were not compiled by Isidore It was as I suppose for the noueltie of them this last of Mascon being euen in his time but two yeeres before he was Bishop of Siuill And therefore as yet hauing not got authority to be receiued into publique esteeme especially in other kingdomes and that other was not long before Now since they happened not before the time of that most diligent Father Isidore none after that I know euer collected the whole bodies vntil that laborious Frier Peter Crabb endeuoured it The rest as Burchard Gratian Iuo contented themselues with scattered Canons out of them which they distributed into seuerall heads No reason therefore that the negatiue exception should bee allowed which although in none but the booke of God and that in things necessary to saluation can haue a necessary consequence yet in this hath no probability And the first publishing of it by Peter Crabb needs not take away from the authority thereof Reade Binnius his notes vpon this Councell where by other authority he prooueth this to be authenticke As for Agobardus words they are vnaduisedly if not craftily mistaken That learned writer speaking there onely of Generall Councels such as that of Mascon is not and those euen in opposition to the Canones Gallicani as he calleth them in the former page of which sort that of Mascon is Which also may appeare directly by the whole passage before in that Authour where hauing prooued the vnlawfulnesse of Lay mens deteining Church Reuenues and out of the Canons hauing expressed the maner of diuision of them and to whom the right of custodie did belong He adds De quare si quis diligentius vult agnoscere quid vel in quibus Conciliis dicatur legendo reuoluendo cognoscat Verum quia sunt qui Gallicanos Canones aut aliarum regionum putent non recipiendos eo quod Legati Romani seu Imperatoris in eorum constitutione non interfuerint Concerning which he that desireth more exactly to vnderstand by reading hee may know what is written and in what Councels But because there are some who thinke the Councels of France and of other countreys are not to be receiued because the Popes or Emperours Legate was not present at the making of them Councels therefore there were that might enforme if they would take Canones Gallicanos aut aliarum regionum whose authority can bee no more be excepted against saith he then the authoritie of Cyprian Athanasius c. whose workes were written without the presence of the Legates either of Pope or Emperor Proceeding therefore in defence of Prouinciall Councels which were commanded both by Popes of Rome and by magna Concilia euery yeere to be celebrated his counsell is Rectius profecto facere videtur qui vbicunque magnarum Synodorum Statuta deficiunt propter insuetas emergentes causas Antiquorum Statuta quae merito reprehendenda non sunt sequenda deliberat quam qui ea quae ipse sentit eorum sensibus anteponit Hee seemes more to bee in the right opinion who where the Statutes of Great Councells faile vpon seuerall vnusuall cases which happen determineth to follow the Statutes of the ancient which are not worthy to be reprehended then hee who preferreth his owne sence before their iudgement And then resoluing that all the fathers in prouinciall Councells in what time or place soeuer they decreed any thing De rebus Ecclesiasticis tractandis conseruandisque did studie to agree with the authoritie of Scripture and the Statutes of their predecessours Then follow the wordes cited Iam vero de donandis rebus ordinandis Ecclesiis nihil vnquam in Synodis constitutum est nihil a Sanctis patribus publice praedicatum Nulla enim compulit necessitas feruente vbique religiosa deuotione amore illustrandi Ecclesias vltrò astuante But now concerning the giuing of goods and endowing Churches nothing euer hath beene decreed in Councells nothing publikely promulgate by the holy Fathers For no necessitie required it the religious deuotion and loue of beautifying the Churches euery where abounding of their owne accord All which being considered I appeale euen to the conscience of the Author or any other whether those wordes may be a iust exception against the truth of the Mascon Councell which was comprehended inter Gallicanos Canones and Antiquorum Statuta And heere by the way let him also looke backe vpon his protestation In his Preface whether hee hath purposely omitted nothing that belonged vnto the Title since euen in the next page 277. are such quotations omitted which in the Catalogue are comprehended for the right De Iure Diuino P. 59. Iuo is reformed by a Ms howsoeuer his wordes are acknowledged to be Leo the fourths not much out of this second 400. yeeres P. 60. Iuo is againe corrected for naming Tithes in the first Councell at Orleans Can. 13. whereas Iuo in his Manuscript citeth it not from any councell of Orleans but some out of Toledo whereof yet none expresly mentioneth Tythes Animad 16 Let him view the fourth Toletan Councell cap. 32. and there he shall find the word Decimas as both Carranza and the Venice Edition reade it besides Binnius Yet himselfe to other purpose citeth that same addition of Iuo to this Canon pag. 82. vnder the name of the first of Orleans Can. 13. But before Iuo Biblioth Vet. patrum Edit â—lt Tom. 11. Anselmus Lucensis in his Collectanies receiueth the same wordes and referreth them to a councell at Toledo and there citeth also a Canon ex Concilio Agrippiensi relating the same of Toledo which yet hath reference to former Councels iuxta Priorum authoritatem conciliorum According to the authoritie of former Councells P. 61. The Councell Spalense Anno 610. reiected The exception is because the Councell of the same yeere and place hath no such Canon and is whole in diuers Editions as it was certified by eight Bishops And the beginning of this Canon is nothing but the syllables of one of Charlemaines lawes Vnicuique Ecclesiae mansus integer absque vllo seruitio attribuatur Animad 17 The first exception though ill dated by the Printers fault for it should be DXC. not DCX. the Numerall X being misplaced yet is to peremptorie since thereby many other Canons cited by Gratian Burchard and Iuo would want both time and place to be excerpted out of this Councel at Siuil as are by Garsias in Binnius collected Garsias supposeth the former Councell of that yeere 590. which is extant to be onely an Epistle to Pegasius Bishop of Astigitanus and that the Councell wholly is not extant Then why may not this and the rest be Fragments thereof since so collected by Iuo For as for the second Exception himselfe
Vndecunque ad partem Regiam fiscus Teloneum exigere aut accipere videatur From whatsoeuer the Kings Exchequer for his part may seeme to receiue or exact tollage If this be not the sence I professe my ignorance but otherwise sure it had allowance to the Bishop who might giue authoritie and would for the benefit of his Church to translate them or if Christianitie there then beganne to receiue the profit of them The next consecration in the same Chartularie is in the promise made to the Bishop by one Gutha to endow a Church which he gaue to Vtrecht with the Tithes of diuers Mannours In Beuorhem tradidit Gutha Ecclesiam needum consecratam in ius Dominium Sti Martini To that Saint was the Church of Vtrecht consecrated eâ videlicet ratione vt post consecrationem eiusdem Ecclesiae Decimae darentur ad supra nominatam Ecclesiam de vill◠his nominibus vocitatis Beuorhem Gisleshem Hegginghem Schupildhem In Beuorhem Gutha deliuered a Church not yet consecrated into the possession of Saint Martins on that condition that after the consecration thereof such Tithes of such villages might bee giuen to the foresaid Church c. Animad 9 These words cannot beare the sence which hee giues but plainely crosse his intention acknowledging the authoritie not of him but the Bishop to assigne seuerall Tithings to each Church For he giues the Church Ea videlicet ratione vpon that condition vt darentur That there might bee giuen not by him but by the Bishop such Tithing to countenance his giftes But if any should vnderstand it otherwise yet hence obserue vpon consecration an endowment of Tithes doeth follow and that it was to a Bishop in his owne Diocesse who no doubt consented The Canons of this age were that neither Patrons might giue nor Monasteries receiue any such Tythes without the consent of the Bishop So Mogunt Conc. sub Rabano Can. 11. an 834. Ecclesiae antiquitus constitutae nec decimis nec alijs possessionibus pro nouis Oratorijs sine consensu Consilio Episcopali priuentur Churches anciently endowed let them not be depriued of Tythes and other possessions without the consent or aduice of the Bishop And the same Councell Can. 14. Nullus Monachorum parochias Ecclesiarum recipere praesumat sine consensu Episcopi Let no Monke dare to receiue Parish Churches without consent of the Bishop Cap. 9. Addit ad Conc. Later sub Ale◠3. part 13. c. 14. As after in the Councell of Lateran vnder Alexander 3. And in Gratian and such was the condition of Iuo concerning the Monkes their receiuing of them And the Titles whereby they enioyed them were vel proprij Episcopi licentia vel Apostolicae sedis authoritate as Paschal 2. C. 16 q. 1. Plures Baptismales Epist 192. 16. q. 1. c. peruenit And so Gregorie the 7. Vt nullus Abbas Decimas primitias reliqua quae secundum Statuta Canonum ad Episcopos pertinent detineat sine authoritate Rom. Pontificis vel Episcopi in cuius Dioecesi habitat Apostolica authoritate firmamus We command by Apostolike authoritie That no Abbot detaine Tythes or first Fruits and such things which by the Canons belong to the ordering of the Bishop without the authoritie of the Pope or Bishop of the Diocesse Animad 10 By which the next two consecrations of Tythes in Banno villae Anno 852. 946. to Monasteries may bee knowne not to be Arbitratie but by the consent of the Bishop which by the vse of the times I onely coniecture because I see not the Chartularies and not of newly consecrated but infeodate Tythes because the words are Decimis quas habemus quas habeo shewing a former enioying and obserue it is not de Terris quas habeo The Tythes which I haue out of my lands in such a place but simply as after in the yeere 1120. Lewis king of France gaue a Church to the Church of S. Dennis in these words Ecclesias de Cergiaco sicut libere possidebamus cum Decimis omnibus ad Ecclesiam pertinentibus Ecclesiae restituendo ipsis Sanctis Martyribus contulimus We gaue that Church which we did freely possesse restoring it to the Church Quercetan in Abelard pag. 1165. And to giue consent that Bishops were much inclineable nay in the third Toletan Councell It was permitted Can. 3. 4. That maintenance from the Church might bee allowed to Monasteries Yet so Quod vtilitatem non grauet Ecclesiae That it may not bee burdensome to the profit of the Church And euen that a parish Church might bee graunted to make a Monasterie P. 75. But what I coniectured of the two former is expressed in the next which may shew the manner of such giftes Lewis the fourth Anno 939. granting to the Monkes of Clugny Tythes Decimas indominicatas c. Animad 11 But within nine yeeres there was a confirmation from Pope Agapetus the second and after from Lucius the second in whose time Adhemar the Bishop of Xantoigne did by the wordes Damus and Concedimus wee giue and graunt confirme the same and challenged an authoritie to command that none should within the precinct of that Abbey conueigh their Tythes to other Churches But that is most sufficient that in that very Charter of Lewis the fourth in the very next words There is concerning Churches and Tithes this added Sicut per priuilegium Romanorum per scripta Episcoporum acquisierunt teneant possideant As by the priuiledge of the Popes and writings of Bishops they haue purchased let them hold and enioy These shew this grant to be only a confirmation and not a prime Donation The original conueyance being from Popes and Bishops which also the venerable Abbot of that order Lib. 1. Ep. 28. circamedium Peter saith Ecclesias earum vniuersa bona ab Episcopis absque vaenalitate nobis collata libere iustè Canonicè possidemus An obseruable example of iustification of the right of their enioying Churches and all the goods thereof wee doe freely iustly and Canonically holde collated to vs by Bishops without Simonie The next is in the Abbey of Vendosme of the Tythe of Salt-pits the like whereof the Abbey had out of the same lands of the Bishop of Xantoigne which although for 60. yeeres they had enioyed yet the Bishop vpon the opinion that no Church lands were to pay Tythes to any Church would haue withheld but the Abbot Goffridus Vindocinensis pleads Parochiall right and his words are confessed to shew a generall practise of such payment Animad 12 By which in regard it was of the Bishops land the Author is straitened in this Dilemma Either the Bishop gaue them and so consented which was the Canonicall dispensation or did not consent and so Parochiall right expected not a Donors consecration Both which crosse his opinion And yet for these besides that of Callixtus the priuiledge of Vrban is produced as also those of the Bishops
praesentation of the person vnto him as before out of another Capitul in the same booke C. 178. and our of the Councell of Paris is noted for being praesented to the Bishop Institution without Canonicall exception must ensue Animad 29 The next quotation Add. 4. ad Capit. cap. 37. is a needlesse quotation not hauing so much as the word Commendare and the Capitular doth fully crosse his opinion Multi contra Canonum constituta sic Ecclesias quas aedificarunt postulant consâ—crari vt dotem quam ei Ecclesiae contulerint censeant ad Episcopi ordinationem non pertinere sed ea secundùm constitutionem antiquam ad Episcopi ordinationem potestatem pertineant Many against the Decrees of Canons doe in such sort desire the Churches they built to be cosecrated that the dowry which they haue bestowed on the Church they suppose doeth not belong to the ordering of the Bishop But according to an old Constitution let them belong to the ordering and power of the Bishop Animad 30 The last Cap. Monaster c. 16. q. 7. is against his opinion Liceat illi Presbytero cui voluerit pro sacro officio illius Dioecesis cum consensu Episcopi ne malus existat commendare Let him commend it to any Priest whom he will with consent of the Bishop In vita Leonis 4. lest he be naught and as the Authour De vitis Pontificum attributed to Luithprandus addeth to the Canon Ita vt ad placitam iustam reuerentiam illius Episcopi obedienter Sacerdos recurrat So that he may obey his Ordinary Where obserue that although he bee Presbyter and Sacerdos yet the consent of the Bishop is necessary Animad 31 By which is confuted his next passage to prooue the Bishop to haue nothing to doe Pag. 88. but onely to order the Incumbent For saith he A Priest being first ordered might after bee placed at the Patrons pleasure to whom as to a Tenant he resigned For which are cited Capit. lib. 6. c. 197. lib. 7. c. 173. And yet he relates the old ceremonie of Ordination wherein speciall expression was made of the Title of the Church to which hee was then to bee promoted and in which that he alwayes would remaine hee made promise before his Ordination as appeares by the Capitularie Libr. 5. c. 108. Presbyteri qui in Titulis consecrantur secundùm Canones antequam ordinentur promissionem stabilitatis loci illius faciant Priests that are preferred to Titles according to the Canons before they be ordered let them make promise of continuance in that place which they that did not performe but went to other Churches were excommunicate vntill they returned and if another were instituted there before he that had left his Church Sacerdotij vacabat dignitate was degraded vntill his Successor died as the second quotation cap. lib. 7. c. 173. doth declare This being so heauie a censure it is not likely there was any vse to the contrary It was so odious a thing then to leaue his first Church that as Papirius Masonius attributeth all that vnchristian vsage towards Pope Formosus by his successour Lib. De Episcop vrbis in vita only for that hee first against the Canons did leaue the Bishopricke of Portua for the Popedome as in the life of Formosus So to any that should bee a forsaker of his first Church diuers censures were very grieuous whereof although the Lay men might bee carelesse yet the Clerkes neither durst nor were none being receiued to other Diocesses sine literis commendatitijs without letters dimissory and in the same Diocesse such were not suffered And against them were the other Capitulars mentioned lib. 5. cap. 26.43.82 to which an infinite number of Canons whereof some before are quoted might bee added Pag 89. which that they were little obeyed sheweth little religious reuerence and small authoritie to countenance so strange an opinion concerning those times But secondly P. 89. he endeuoureth to prooue the vse of Collation in lay Patrons for that the aduouson of the Church descending in Coparcenerie the Church had as many Incumbents as Patrons Singulae Partes singulos habebant Presbyteros Each part had a speciall Priest each giuing interest in a part as in all other inheritance descended vnto them For this Addit 3. ad capit c. 25. Concil Lateran sub Alex. 3. cap. 17. Appendix ad Idem Concil p. 15. c. 7. are quoted Animad 32 For the interpretation of the first of these quotations That Capit. made in the 16. yeere of Charlemaines raigne in Vitus Edition p. 323. inter Leges Longobard lib. 3. tit 1. cap. 44. may giue some light De Ecclesiis quae inter haeredes diuisae sunt consideratum est quatenus si secundum prouidentiam admonitionem Episcopi ipsi cohaeredes eas voluerint tenere honorare faciant Sin autem haec contradixerint vt Episcopus potestatem teneat vtrum eas ita consistere permittat aut reliquias inde auferat Concerning Churches which are diuided amongst heires it is decreed that if the coheires after the counsell and admonition of the Bishop will hold and honour it let them doe it But if they denie it let the Bishop chuse whether hee will permit it or by taking away the reliques vnhallow the Church which I vnderstand if they will not present one let it be at the Bishops choice c. But the Councell at Tribure better expresseth the case c. 32. Quaecunque Ecclesia à compluribus cohaeredibus sit obsessa concordi vnanimitate vndique procuretur ne propter aliquas disceptationes seruitium Dei minuatur cura populi inreligiosè agatur Si vero contingat pro ea comparticipes dissidere sub vno Presbytero nolle eam procurare propterea iurgia contentiones tam inter ipsos quaÌ„ inter Clericos incipiant frequentare Episcopus tollat inde reliquias atque eiusdem Ecclesiae claudat Ostia sub sigillo consignet ea vt Sacrum ministerium nullus celebret in ea antequam concordi vnanimitate vnum omnes eligant Presbyterum qui seruiens scit Sacro-Sanctum locum procurare populo Dei vtiliter praeesse Hanc autem habeant authoritatem Episcopi vt in nullis Ecclesiis nec constituantur Presbyteri nec expellantur illis inconsultis non consentientibus What Church soeuer is incumbred by many coheires by all meanes in peace concord let it be ordered that for any such debates the seruice of God be not diminished and the care of the people bee not irreligiously performed If it happen the Copartners to disagree and that they will not put one in it and thereout brawles and contentions both betweene themselues and their Clerkes beginne to increase Let the Bishop take away the reliques and shut vp the doore of the Church and seale it that none say seruice in it before they be agreed ioyntly to choose one who may discharge the seruice and
cannot prooue The maintenance of the Vicar P. 95. was at the bountie of the Monasteries allowance Animad 43 It was not in all Appropriations almost the Bishop reserued this authoritie of allotting a competent maintenance to the Vicar which vpon the complaint of the Vicar by ordinations and compositions hee did vsually put in practise and as further neede was did increase examples are infinite In those that were conueyed Pleno Iure the Monasterie had institution and destitution and the profit Animad 44 The interpretation of pleno iure and non pleno iure I leaue to the Canonists it being nothing belonging to my profession which yet in regard it cannot bee prooued but that all Appropriations were by consent and authoritie of the Pope or Bishop doth nothing make for his intention But of that heereafter Onely adde this out of Lindwood Religiosi non possunt habere potestatem instâ—tuendi suspendendi authorizabiliâ—er sed vt vicem gerentes Episcopi Monkes cannot haue power of institution and suspension with authoritie but as the Bishops Vicegerents Tit. de locat conduct cap. licet Bonae V. Asserunt non ligare And so this priuiledge to haue it pleno iure can be onely from the Bishop P. 98. That some Patrons gaue the profits and reserued the patronage may be true That the Church Glebe and Tythe passed equally by way of interest to the Monasteries is true so that they might officiate them themselues by some Monkes receiued into orders as some did P. 99. That Tythes were giuen the Church still remaining presentable is most true and most frequent Animad 45 Yet not by Patrons prouision but by ordinarie and Canonicall right for so doeth Innocent confirme that Charter cited to Saint Germans in Auxerres salua Diocesani Canonica iustitia The Canonicall right being reserued to the Diocesan But now hee commeth to that which must answere all hee can say to prooue that the confirmations of Popes and Bishops did adde no validitie in secular or common Law then practised but were gotten by Monkes to satisfie the Canons Animad 46 Heere he shifts and when he cannot denie the validitie of such confirmations in the Ecclesiasticall Court which hath the proper cognisance of such conueyance witnesse many Titles of the Decretalls and himselfe afterwards Yet now he would demand validitie of such in secular and common Law where as yet hee hath shewed euen no practise of common Law to denie it Pag. 100. 101. 102 c. That the Bishops of Germanie and some more Northerne had from the beginning of Christianitie the right of all Tything through their Diocesses and therefore might appropriate what they list is true Animad 47 Whereby both the euen age and right and practise of Christianitie with Tything is manifest and the authoritie of Bishops in disposing them doeth appeare Whereas hee would make Tything voluntarie in the Originall and at the dispose namely of the Patrons onely vpon the foundation of a Church whereas now hee confesseth they were all due to the Bishop from whom without his consent how could any thing be restrained to a particular place And further since these first were in the Bishops who were the true and immediate Parochiall ministring Rectors as hee phraseth it all Donations by them to Monasteries cannot be adiudged in those Monasteries to be newly created Tythes which yet he doeth often intimate For conclusion of Inuestitures and Appropriations wherin his errour is in the authoritie of conueying Tythes now hee would by the practise of the time deuest the Clergie of the sole right of claime to them for Pag. 106. saith he The Tythes of LX. or LXXX or more Parishes were by those courses annexed sometime to one Monasterie which the Head and Couent possessed not as any part or pretending themselues to be any part of that Clergie which made vp the Euangelicall Priesthood or deserued them by ministring Diuine seruice and Sacraments to the owners These to be giuen to aliens was complained of in Edward the 3. time And other particulur Orders were blamed therefore as in that of the Cluniacenses as P. Cluniac lib. 1. epist 28. and Iohan. Sarisburiensis de Nugis Curial lib. 7. cap. 21. Animad 48 Such appropriations to Monasteries although they be not excusable and by many others are complained of as by Hugo Pontiniacensis and S. Bernard in an Epistle after those of Iuo and by Stephanus Tornacensis P. Blesensis Epist 74. Epist 82. Epist 102. Epist 192. and in the person of the Abbot of Redding besides those scrupulous Monkes in Iuo by Petrus de Alliaco though a Cardinall and a Schooleman in his booke De Reformatione Ecclesiae cap. De Reformatione Religionum Religiosorum Yet they might pretend excuse partly because they acknowledged it no due but charitie for so in Iuo in the Epistle last quoted Lege charitatis By the law of charitie and Vt charitatiuè sustententur that they may be charitably relieued as P. Cluniacensis in the Epist quoted De Sacramentis lib. 2. part 9. cap. 10. and indulgentia non debitum fauour no due as Hugo de Sanct. Victor may import And because they were accounted a part of the Clergie for so saith Pope Alexander In Addit ad Concil Later p. 13. c. 3. Ibid cap. 9. cap. 10. P. 3. q. 5. M. 6. Art 2. and Gregorie and Paschal the 2. and pretended that right for so doeth Alensis euen in the Resolution Cum Religiosi in Leuitarum ordine munere computentur Decimas recipere possunt sed quae sibi concessae sunt Whereas Monkes are reputed in the order and number of Leuites they may receiue Tythes but such as are granted them by authoritie of the Church Nay doeth not P. Cluniacensis in the Epistle cited by him say Nam sitribui Leui rectè eadem Monachis conceduntur c. For if to the Tribe of Leui they were granted then rightly to the Monkes And thirdly because they gaue Competens beneficium A competent maintenance to Curates for Si ista non fecerint raptores sunt Decimas retinent iniustè If they doe not so they are robbers and vniustly detaine Tythes saith Alensis in the place before if they did not officiate them themselues which yet was irregular as Stephanus Tornacensis the first Commenter of Gratian doeth say Epist 200. and so Edictum Tassilonis legum Antiquar p. 439. And fourthly because it was supposed to be Ex superabundanti of what might be spared as the same de Ales Ex portione pauperum not sustentatione Clericorum Of the portion of the poore not the sustentation of the Clergie as Hugo de Sancto Victore De Sacram. l. 2. p. 9. c. 10. with that condition Vt terminos non transgrediantur antiquos i. Si stipendia Presbyterorum antiquitus instituta non minorent ac sibi vsurpent That they passe not the ancient bounds that is that they lessen not the ancient
Ecclesiae Which Parishioners ought to pay to their mother Church De quibus Decimae dari solent Of what Tythes are wont to be paid De quibus Decima danda est datur Of what Tythes are and ought to be paide Rectam Decimam de quibus Decimae dari solent A true Tythe whereof Tythes are wont to be paide Vndecunque Decimae Sanctae Ecclesiae spectant vel prouenire debent tam maiores quam minores Whence soeuer Tythes may belong or accrue to holy Church both small and great Terram cum Decimis Land with the Tythes thereof All these plainely shewe these Tythes which were consecrated not to be newly created Tythes and by these the rest may be conceiued 5. Some of their confirmations by Bishops and Popes are produced wherein their Damus and Concedimus shewe their consent and authoritie and the phrase in the later confirmations of Iusté Canonicè possidetis sheweth the former conueiance to haue beene so for so Iustè Canonicè is interpreted by Petrus Cluniacensis as his authoritie is applied ad pag. 75. Lib. 1. Ep. 28. and so Canonicè after doeth signifie in the confirmation of portions to Rochester by the Church of Canterbury Post Chartanâ— Gundulph Yet in particular to examine two Chartularies whereout onely he maketh inferences of new created Tythes Pag. 302. The first out of the Chartularie of Abingdon In the gift of the Tythes of Offington to that Monasterie the Parishioners intreating the Abbot of Abbingdon to receiue their Tythes Hee asked whether anciently the Tythe of that towne were not giuen to the Church And they answered Hoc esse moris Villae vt à singula virgata Ecclesiae illi 24. garbae pro Decima numeratae donarentur This is the maner of that Village that 24 sheaues of euery yard-land are paide for the Tythe to that Church Hence he inferres Here plainely no Tythe was Parochially paid before this Grant but onely 24. sheaues of euery Yard land Animad 2 But yet these were pro Decima at first by way of composition though therefore not paide yet compounded for which is all one And to the question of the Abbot supposing Parochiall right they answere not Hoc esse Iuris but Moris and to the question of Antiquitus they answere onely Hoc esse though before this prescribed composition it might be otherwise Animad 3 And this composition was not diminished though our Author contrary euen to the sense of his owne quotation doth vntruely affirme it for the words are that the Bayliffe of the Abbot at the time of gathering Tythes De singula virgata illius villae tot manipulos Preâ—bytero illius Ecclesiae tribueret quot superius diximus debere But surely it was that hee might inferre the Patrons authoritie to doe it euen against the will of the Incumbent Pag. 324. The other is out of the Leiger booke of the Abbey of S. Albans The Abbot and Couent about the 20. of Henry the third gaue to the Church of the holy Trinitie de Bosco and â—he Nunnes there for euer Totam Decimam de Dominio nostro de Caysho in omnibus rebus de quibus Decimae dari solent All the Tythes of our Demesnes of Caysho in all things whereof Tythes are vsually paide Animad 4 Obserue This Donation is long after the Councell of Lateran 1225. and therefore vndoubtedly was not of Tythes not paide before as the phrase De quibus Decimae dari solent prooues they were then customably paide And also note how he sayth there Perhaps they had discharged them that is the Prior and Couent necessarily then they were before charged and therefore could not be newly created though in respect of the Monasterie newly bestowed Out of other Chartularies he hath made no particular inference which is not answered in the generall BVt because the Chartularies of the Church of Rochester Ad Pag. 310. c. are both more largely insisted vpon by the Author and for seuerall respects seeme to be of best credite with him as quoting them pag. 282. Ante alia vetera Monumenta consulas si placet Chartul Roffensis Ecclesiae and in pag. 370. Since by the Grant of my gracious Mr. His Maiestie I am a Prebendarie of the same Church where for the knowledge of the Temporall poore estate thereof I haue had libertie to peruse the Muniments I will more largely make answere to his seuerall instances out of them as farre as these Charters and Registers that remaine will permit for many either through iniurie of time or sacrilegious suppilation of strangers or neglect because the portions are conueyed away haue miscaried And moreouer I will first shew how this Monasterie came to portions of Tythes Then by whom they were confirmed and lastly I will explaine particular Graunts wherein Exception may seeme to be taken For the first because the meanes of lawfull Iustification of a Title are the same with those of lawfull obtaining I will out of an ancient Register of this Church set downe a forme of Iustification of two seuerall portions of Tythes which although they are not named by him in his Extracts yet are of the same reason with the rest and being of the ancientest for before the foundation of the Monkes heere by Gundulphus there were no portions giuen are for better proofe I will exscribe the whole Euidence P. 23. Memorandum quod Decimae de Chelesfelde Fernburgh ex dono Ernulfi tunc Domini de Chelesfelde Geroldi Domini de Fernburgh sunt confirmatae Monachis Roff. per Walterum Roffensem Episcopum qui fuit in Episcopum consecratus Anno Domini 1148. secuta est confirmatio earundem Decimarum per Dominum Adrianum Papam 1159. Item per eundem Dominum suum confirmatae iâ— Decimae de Modingham per eundem Papam subsequenter per alios Episcopos Roff. sicut in eorum apparet scriptis per alios Apostolicos succedentes Adriano * And it is declared by the Charter of the saide Walter B shop of Rochester that those Tythes of Chelesfeld aâ—d Modingham were possed by the Monkes in the time of Gundulphus who gaue and granted the saide Tythes of the gift of â—atrons with the consent of the Rectors of Chelesfield Chiselherst and Gundulpâ—us was consecrated Anno 1077. and sithence they haue enioyed them Et declaratum est in litera dicti Walteri quod istae Decimae possessae fuerunt ab ijs tempore Gundulphi qui eis illas Decimas ex dono Patronorum accedente consensu Rectorum Ecclesiarum de Chelesfelde Chiselherst contulit coÌ„cessit fuit Gundulphus in Episcopum Roffensem consecratus Anno Domini 1077. ab illo tempore praedictas Decimas perceperunt Item habeâ—t in Parochia Ecclesiae de Chiselherst ex concessione Episcoporum Roffensium ex antiquo Dimidiam Marcam annuae pensionis This sheweth plainely the manner of conueying portions The Patron giues them to the Bishop by consent
of the Incumbent and the Bishop doth inuest the Monasterie But for the Second and the confirmation also of this The Charter of Gundulphus himselfe shal be next produced which still remaineth with his seale appendant The words are * I Gundulphus approue and ratâ—fie their deuotions to the Monkes and giue vnto them Episcopall authoritie and consent giuing and granting to the said Monkes Tythes lying within the Parishes of diuers Churches of our Diocese to wit the Tythes c. Gundulphus Roffensis Episcopus c. Noscat vestra vniuersitas quod cognita intellecta charitate Christi fidelium Domini videlicet Henrici Regis quorundam procerum Nobilium ad Monachos Ecclesiae B. Andreae Apostoli cui Deo authore etsi indignus deseruio Ego in eorum bona intentione laudans Dominum gratiam agens Domino Iesu Christo deuotiones eorum ad ipsos Religiosos approbo ratas habeo ijs Episcopalem authoritatem attribuo consensum conferens ipsis concedens Decimas intra Parochias diuersarum Ecclesiarum nostrae Diocesis constitatas Decimas videlicet in Strodes in Chealks de Dominico eiusdem Domini Regis ex eius liberalitate Decimas de Henherst ex liberalitate Goscelini Decimas de Rundull de Thuang ex liberalitate Smalmanni de Schornes Decimas in Chelesseld Fernburgh ex beneuolentia Aloldi Ernulsi ex eorum Dominicis Decimas de Modingham ex dono Ansgoti de Chiselherst Decimas de Bertrey ex largitione Haimonis Maminot Decimas de Dominico de Edintune ex largitione Willielmi de Gurnay Decimas de Westbrooke in Parochia de Culings ex gratia Radulfi Pincernae Decimas etiam de Feodis Episcopatus videlicet de Wicham c. Ego dictis Monachis meis do concedo in perpetuum * I will that the Monkes haue the Tithes in their owne Mannours within the Diocesse and reteine them in peace But all those Tithes aboue expressed I assigne vnto them and by my Bishoplike authâ—ritie which I enioy I command and ordeine that the Monkes haue and enioy them alwayes to bee employed for prouision of victuals These Graunts and orders I haue made for the loue of Saint Andrew in his Church by the assent of Archbishop Anselme Anno 1091. Velo etiam quod ipsi Monachi Decimas prouenientes in Manerijs eorum infra Dioecesim nostram constitutas habeant retineant omni pace Has verò Decimas omnes superiùs expressas tam eas quae ex deuotione fidelium acquisitae sunt quà m eas quae de feodis meis ipsis assigno authoritate Episcopali qua fungor mando constituo quod Monachi nostri eas habeant teneant in vsus victualium suorum perpetuis temporibus conuertendas Istas concessiones ordinationes pro amore Sancti Andreae in eius Ecclesia feci assensu Domini Anselmi Archiepiscopi Acta anno ab Incarnatione Domini nostri Iesu Christi 1091. This I haue so largely exscribed repeating most of those particulars which Mr. Selden quoteth and were then giuen by him to shew both in generall and in those particulars the authoritie of Bishops in such conueyances though the grant of the Patron bee praesupposed and euen how to the Monkes who were Landlords the very Tithes of their owne Mannours were by Bishops granted them To this I might adde the confirmations of Walter Richard Gilbert c. Bishops of Rochester the style of whom is of some Damus but of all Concedimus confirmamus and ad securitatem pacem perpetuam concedimus And as for Popes Adrian Alexander Innocent Vrban c. they confirmed them And of those others in other Diocesses the Archbishops and Bishops confirmations euen from Anselme downeward are extant wherein that they and their Churches had interest the confirmation of the Church of Canterbury to Rochester pointed at by the Authour in the end of the cited Chartularies of this Church is sufficient testimony where they say * Tithes belonging to the Iurisdiction of the Church of Canterburie by the most reuerend fathers Archbishops of Canterbury Anselme William Richard Baldwyn and Hubert Canonically collated and confirmed as wee haue seene conteined in their Authenticke writings Decimas ad Iurisdictionem Cantuariensis Ecclesiae spectantes à venerabilibus patribus nostris Cantuar. Archiepiscopis Anselmo Willielmo Richardo Baldwyno Huberto Canonicè collatas confirmatas sicut in Authenticis eorum perspeximus contineri They might haue added Theobaldus also for his confirmation also is extant with vs. And in the Iurisdiction of that Church are the portions of Buggley Dudindale Stalesfeild Bilsintune Elham Ysfeild Hamwold Scraembroce Geddings which are instanced vpon by our Authour so that the portions of Halegele and of Malmain and the Church and Tithes of Walton may onely seeme amongst those which he hath cited to want their coÌ„firmation As for that of Halegele ex dono Hugonis de Port although the confirmation of Ralfe Bishop of Rochester be not extant yet in that it is mentioned that the gift was pro amore Radulfi Episcopi as at his entreatie his consent may not be doubted of especially by him who conceiuing the style of Gundulfus Charter yet shall consider that his successour Gilbert Glanuill in his confirmation addeth speaking of Gundulfus quo procurante disponente constâ—t Decimas fuisse adquisitas so the Bishop Radulf both got and bestowed them which Radulfus being then Abbas de Sagio did subscribe to Gundulfus Charter And as concerning the portion of Malmaines That with the other of Halegele were confirmed by Pope Adrian the fourth Anno 1154. and that of Malmains by Walter Bishop of Rochester and his successours but at what time that was giuen I know not And as for Walton being in the Diocesse of Norwich not giuen in the time of Richard the first as hee coniectureth but in the dayes of one of the King Williams for his confirmation is in Textu Roffensi it was not a Portion but a whole Church endowed with Tythes which was assigned to Felix Stow alias Filchestow a cell of this Monasterie by Roger Bigot An. 1086. vnder this name Ecclesiam Sanctae Mariae de Waleton cum pertinentijs which was then confirmed by William Hugh and Roger Bigot but that had confirmation by the Bishops of Norwich as Adrian in his confirmation saith Ex dono Rogerij Bigot haeredum eius concessione Norwycensium Episcoporum Herberti Hebrardi Willielmi Ecclesiam Sanctae Mariae de Walton habetis Of the gift of Roger Bigot and his heires and the grant of the Bishops of Norwich Herbert Euerard William you enioy the Church of Saint Mary of Walton now Herbertus was then Bishop All the Donations therefore of the Church of Rochester euen Ab initio we see confirmed Yet for the particulars in the third place The portion of Buggeley for that the Patron by enioyning the payment of three shillings per annum to the Monkes of Colchester
parts of the Tythes of Corne of another place so that the Priest of that Parish shall pay halfe a marke and shall enioy it at the hands of the Prior as long as he doth well and by him to be expelled if otherwise Animad 4 If this were pleno iure then for Institution and destitution it was lawfull if it were a Donatiue then more And whether this priuiledge were vouchsafed by the Bishop or Archbishop or Pope who knoweth The Authour is a Lawyer why doeth hee not shew the Common Law that giues power to priuate men to apropriate Churches to Monasteries without the consent of Ordinaries And as for the intermeddling in enioyning a Noble for the Tithes it was by way of composition as in the Chartularies of Rochester I haue shewed and by no immediate lawfull right If no Lease bee good at the common Law of Tithes not impropriated without the Ordinaries consent how shall any Impropriation be made or good without the consent of the Bishop or Pope And so in his charitie acknowledging the Canons of Nationall Councell then against such Arbitrary consecrations yet hee will suppose a practise contrary both to appropriate and inuest Church-men with them without the Bishop and would defend it though if it were it were praua consuetudo Animad 5 But here let mee remember him of the Appropriation of Hauchis in the last Epistle of Iuo according to which forme all the Appropriations of Churches with vs are The Patron deliuering them ouer to the Bishop and the Bishop to the Monasterie and that euen Charitatiue out of fauour In the Chartularies of the Priory of Leeds obserue how in the Appropriation by Theobald Archbishop of the Church of Eslings in the Diocesse of Canterbury it is thus Rogauit nos Alicia de Eslings quae fuit vxor Radulfi de Cicestria vt Ecclesiam de Eslings quae in fundo eius sita est Monasterio Canonicis Regularibus de Leeds in perpetuam eleemosynam concederemus nam illa quantum ad se spectabat in praesentia nostra temporalia ijs perpetualiter concessit Alice of Eslings that was the wife of Ralfe of Chichester entreated vs that I would graunt to the Monasterie and Canons Regular of Leeds in perpetuall Almes the Church of Eslings which is founded in her lands for she in what apperteined to her in our presence gaue the Temporalties for euer And then vpon Resignation of the Incumbent he doeth Canonically inuest them with it All the rest are such like Ep st 39. But Iohannes Sarisburiensis hath a patterne for all where iustifying an Appropriation to the Priory of Saint Osithe he remembreth the gift of the Founder a Bishop the Charter of the King the confirmation of the Archbishop the Bull of the Pope And in the Epistle 28. Ecclesiam de Effigcham quam Meritonensibus petente Domino fundi donauit Dominus Wintoniensis Eugenius Papa confirmauit The Church of Effigeham which at the request of the Lord of the Mannour the Bishop of Winchester granted to the Priour and Couent of Merton and Eugenius confirmed it These may shew the practise of that time contrary to his opinion P. 376. And whereas he produceth the preamble of Alexander the third Extr. de Institut cap. 3. ex Frequentibus Animad 6 That is of Inuestiture of Clerkes for the words are there Quod Clerici Ecclesiastica beneficia sine consensu Episcopi Dioecesis vel Officialium suorum recipiunt minus quam deceat That Clerkes without consent of the Bishop of the Diocesse and their Officialls receiue Church liuings which sometime though irregularly to haue beene vsed I neuer denied And more frequently in these times whereof our Author speakes wherein as I coniecture the viciousnesse of the former Popes those Faces Pontificum which after Adrian the third succeeded as Pap. Massonius saith when Sanctitas reliquit Pontifices Holinesse left the Popes as Platina gaue occasion to neglect and neglect easily bredd contempt and that vpon euery occasion brake foorth to opposition of their censures and Canons each man in as much as concerned his honour or profit willing enough to take vpon him the praerogatiue of Kings and to defend it with strong hand P. 378. In the next Section to prooue the interest of Patrons in the profits of Churches hee produceth a Chartularie of the Priorie of St. Needs where a Patron Nomine certi beneficij giues to that Priorie sixe Markes of siluer to bee payed yeerely by the Parson of the Church of Wimbisse Animad 7 This is vpon demise or composition not an originall right that the Patron had in Tythes it is likely for some portion of Tythes there so that now by this they may haue Certum beneficium marke that word which before was vncertaine in Tythes of such kind I haue spoken out of the Chartularies of Rochester Whereas he saith he hath not in those times read of a Precedent wherein the Incumbent was granter Now that they were hee may reade before in the iustification of a Portion of Tythes out of the Chartularies of Rochester and in Addit Ad Concil Lateran p. 13. c. 11. Out of interest supposed he saith P. 379. the vnderstanding of the new Canon in the Synode of Westminster held vnder Richard the Archbishop in 21. Henry 2. may be had Nulli liceat Ecclesiam nomine dotalitij ad aliquem transferre No man may passe ouer the Church for a Dowrie that is to remaine with the husband of his daughter or kinswoman during his life Animad 8 But heere hee is deceiued for by Ecclesia the patronage only is vnderstood which neither the Canons would suffer to passe by inheritance nor sale nor heere as a Dowrie but would haue had all bestowed vpon Bishoprickes and Abbeys as vide Append. ad Concil Later p. 15. c. 6. Religioso loco ius patronatus conferendi liberam habeat facultatem Yet he may haue free libertie to bestow the patronage on a religious house and cap. 16. Vnde cum ius patronatus annexum sit spirituali nemini licitum est vendere illud Patronage may not bee sold because annexed to a spirituall thing and cap. 17. It is dishonest to sell patronages And indeed how can this bee otherwise interpreted vnlesse you could imagine a Lay man then might all his life time enioy a Church for being married then he could be no Clerke and not suppose it Infeodatâ— which here he doth not But hee that obserueth the distinctnesse of the Canons then in saying Ecclesiam vel Decimam by the one passing the patronage and by the other the profit will allow my interpretation P. 380. But yet that Patrons might inioyne a Pension vpon a Church without either Ordinarie or Incumbent is prooued by a Fine where vpon condition that the Parson which should be placed in a Church by the Patron should pay such a summe yeerely to the Monasterie and thereof make faith to the Bishop vpon institution and
after in their Chapter a Monasterie doeth remit the patronage to the Patron Whence he inferreth by the authoritie of the Kings Iustices in a Fine his purpose is prooued Animad 9 But he is deceiued if this pension which is most likely was paide to them before for the making faith both to Bishop and Couent for such performance was vsuall many are extant in our Registers And in the confirmation of Bishop Gilbert Glanuill to his Monasterie obserue these words when hauing expressed many pensions he addeth Et ne in praetaxatis pensionibus percipiendis possit aliquod praeiudicium dictis Monachis imminere vel difficultas soluendi Volumus firmiter constituimus vt omnes Rectores à nobis in eisdem constituti vel a nobis Successoribus nostris in perpetuum instituendi de pensionibus praedictis fideliter sine difficultate persoluendis ipsis Monachis in Capitulo suo fidelitatem faciant praestito Sacramento c. And least in the receiuing the foresaid pensions any preiudice may arise to the Monkes or difficultie of payment wee will and firmely ordaine that all Parsons placed therein by vs or our successours for euer shall take an oath of fidelitie in the Chapter house to pay the said pensions faithfully and readily And if this pension were not an old but new one vpon this composition me thinkes the wisedome of the Monasterie would be much questioned to leaue a patronage for 4. s. per annum which is the pension And vndoubtedly this pension was confirmed by the Bishop And such is the meaning of those two Fines that follow next saue one P. 381. For the next that seemeth an erection of a pension by the Patrons Bishops and Incumbents Grants which is exprest plainely P. 382. After this confessing the practise of Institutions yet hee sheweth the sole authoritie not onely in the Bishop but vsually in Arch-deacons of which hee produceth some proofes Animad 10 But in that the Arch-deacon was the Bishops officer And as Leuthericus and Fulbertus Epist 34. was Oculus Episcopi dispensator pauperum Catechisator insipientium The eye of the Bishop the Amner to the poore the Catechiser of the innocent heere was no preiudice to the Clergie though Alexander the third wrote a Decretall to rectifie euen that disorder it is in Addit ad Concil Later p. 24. c. 2. 3. But that the Archdeacons did in the vacancie suspend Ioan. Saris Ep. 3. Did Vt mos est in possessionem liberam Canonice introducere induct Idem Epist. 1. Did receiue resignations Ep. 5. and Iuo Epist. 131. and excommunicated intruders per Laicorum violentiam Iuo ibidem doe testifie In the next Section hee prooues the alone interest Pag. 385. by the succession in the Benefices of the Ancestors whereby there needed neither Resignation nor Presentation nor Institution nor Induction this supplying all For which he citeth the Canon at Westminster 3. Henry 1. Vt filij Presbyterorum non sint haeredes Ecclesiarum Patrum suorum And another in the 25. of the said King vnder the Cardinall Iohn de Crema Ne quis Ecclesiam siue Prebendam paterna vendicet haereditate aut successorem sibi in aliquo constituat beneficio and a multitude of quotations by the side to this purpose Animad 11 The first Canon supposeth not a succession in right but euen in place and that by institution from the Bishop for that they thought basely of the sonnes of Priests and would by no meanes suffer the similitude of a Iudaicall succession haereditario possidere Sanctuarium as Tit. de Iure Patron c. consuluit which cannot be euen done at this day without a dispensation Vt patri succedat filius that the sonne succeed his father The whole Title De filijs Presbyterorum manifesteth this trueth and most of his quotations so that by the succession not patronage is supposed of the father but whatsoeuer it were it was by institution executed The next Canon is of Patronages and Infeodations belonging to Lay-men which this Canon would not permit Lay-men to conuey to any but to the Church as before I haue shewed which also may appeare for that in this very Canon it is added Vide Hildebert Coenom Ep. 55. Adijcientes quoque statuimus vt Clerici qui Ecclesias seu Beneficia habent Ecclesiarum Wee ordaine also that Clerkes the first part being of Laymen who haue Patronages or Infeodations of Churches and that they may liue more licentiously being inuited by the Bishop will not be promoted to orders let them bee depriued both of Patronage and Infeodations for so Ecclesia and Beneficium Ecclesiarum and Praebenda must be interpreted Pag. 386. Animad 12 As for that in the Roll of Pleas 6. Rich. 1. It doeth not imply a deniall of Institution in the Bishop but shewes that a time was before then when the father being Patron and Incumbent might present his sonne to the Bishop to succeed him whereas then euen by presentation hee could not be admitted to the next succession Pag. 387. Concerning the Law of Lapse whereof hee next treateth I am ignorant onely in the Nouell before cited by me and pag. 393. by him I finde that if the Patron present not worthy men the Bishop may choose others as also Toletan 9. c. 2. and that if the Patrons agree not hee may seale vp the Church as before is shewed which shewes the power of the Bishop vpon their default but other thing I know not Pag. 391. But after that he searcheth phrases which may import the sole interest of the Patron the first is that it is called Donation in their Writs of Quare impedit Animad 13 Which we in our phrase indeed expresse when wee say In whose gift is such a Benefice And hee may be said to giue the Benefice for that that indiuiduall person elected and presented by him hauing no Canonicall exception taken by the Bishop a part of whose flocke hee must gouerne is vpon th◠Patrons Title and the Bishops Institution by the ministerie o the Archdeacon possessed of it the Title being in the Patron the approbation in the Bishop and the execution in the Arch deacon the Patrons ende being the discharge of his trust to present and nominate the Bishops the cure of soules and the Archdeacons the Church to which both belong The next word is Praesentare to signifie the placing of an Incumbent in a Church by Inuestiture being made onely of repraesentare which in that Councell of Lateran and elsewhere Sub Alexan. 3. occurres also for praesentare Animad 14 But in that Councell of Lateran and the rest of the places it signifieth to present to be allowed and instituted by the Bishop which is quite opposite to Inuestiture Praesentare being commanded and Inuestiture being forbidden to Lay-men And therefore this interpretation is not true The phrase of Repraesentare ad Ecclesiam is in the first Councell at Arles sub Syluestro Papa cap. 23. De
may in time be remitted For with what conscience may a man retaine his Tythe and pay for it but a penie or halfe-penie which is now xij pence or ij shillings And why should the Tenth be lesse worth then any other of the Nine parts are that so God may haue his right and all may haue Gods blessing ANIMADVERSIONS vpon such Passages in the Reuiew which either that worthy Knight Sr. IAMES SEMPILL hath not confuted or are in the Booke before remembred HAuing read the Booke and then seeing the Title of a Reuiew I hoped some religious retractation or recognition what by the conscience of the weaknesse of his proofes and what by the censures of his booke should haue beene published vt secundas partes habeat modestiae qui primas non poterat habere Sapientiae But that partiall conceipt which each man hath to the child of his owne braine especially younger men hath engaged him herein to defend with strange resolution what against all trueth he had affirmed Whereof since in many places of my former refutation I haue made mention and in some others am happily preuented I will onely insist against those passages which are pretermitted And to beginne Pag. 461. I must passe to the 4. Chapter wherein a new Quotation of that Great Father Epiphanius is proposed and insisted vpon to prooue that neither then Tythes were paid nor to be paid because meerely ceremoniall as Circumcision and the like The place quoted is in Haeresi 50. of the Tessares-decatitae of whom Epiphanius saith that except this Haeresie of celebrating Easter on the fourteenth Moone 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 They haue all things as the Church But for the defence of this Haeresie they proposed the curse of the Law against those that did otherwise To which Epiphanius answereth That so the Law curseth the vncircumcised and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 those that did not offer at Hierusalem Ranking Tythes amongst abrogated Ceremonies which they also yet agreeing in all things with the Church did not as may seeme obserue Animad 1 Damascen de Imaginibus Orat. 1. in another case saide of Epiphanius Vna hirundo non facit ver neque vnius oratio tanti ponderis est vt totius Ecclesiae abortu ad occasum Solis propagatae mores instituta possit euertere one Swallow makes no summer neither is the speach of one so weightie that it may ouerthrow the manners and ordinances of the whole Church scattered from East to West I will not say so of Epiphanius Neither will I say as our Authour He did not sufficiently vnderstand and neither will I reprehend him for this as he is reiected by all for his opinion of the feast of Christs Natiuitie but make answere from his owne sense by repetition of his former words At hi quidem omnia habent velut Ecclesia aberrant autem ab omnibus eo quod non consequentiae doctrinae rituum attendunt Iudaicis adhuc fabulis addicti neque aequalia ipsis docent But these haue all things like the Church yet they erre from all because they obserue not the consequence and doctrine of the Rites of the Church but still being addicted to Iewish fables yet doe not holde all as they doe Whence appeares though as after it is said they agreed in the principles of Religion of the Trinitie of the Bookes of Scripture the Resurrection of the Dead yet that in these Rites of the Church by consequence deriued from the Doctrine of which sort are Tythes they did erre and being addicted to the Iewish ceremoniall Law they would obserue the day of Easter in the same time as theirs was obserued for feare of a curse and yet would not Tythe as they did and to whom and where they did nor bee circumcised since alike they should obserue the one as the other if they regarded the curse of the Law So that here Epiphanius may seeme to ranke no Tything with Circumcision but such as was in the circumstance Iudaicall not to condemne Tything as he doth Circumcision but onely Tything to such persons as Legall Priests were and in such places as the Law praescribed This place makes not against the substance of Tythes but the manner and place of Tything and herein directly followeth Eusebius Demonstrat Euangelicarum lib. 1. cap. 10. Whereas to omit his opinion as vncertaine elsewhere For the practise of these times Saint Chrysostome his opposite and Saint Hierome his defender against Iohn of Hierusalem in the condemnation of Origene may testifie whose authorities both for the practise and right appeare in the Catalogue and in other places In the sixt Chapter P. 467. reuiewing his opinion of Arbitrarie consecrations in the third 400. yeeres he puts this Demurre to the consideration of the Reader How otherwise could the Founders and Benefactors of Monasteries haue made Tithes part of their Endowment The answere is ready Animad 1 By translating anciently consecrated Tithes by the consent and authoritie of the Bishop for so Founders and Benefactours did assure them to Monasteries But thence he inferres the validitie of the Donors act P. 478. Ad Tit de Decimis Cap. Dudum num 11. for that Confirmatio ex proprio significatu denotat firmitatem actus confirmati as Panormitan And Nihil iuris noui tribuit sed tantum vetus confirmat as Innocent 4. ad dictum locum c. Animad 2 But first in these conueiances of Tithes the acte of the Bishop was not onely a confirmant but a concedent and conferring acte as by the forme of Gundulphus in his Charter and of all such which at the time of the Donation gaue their authoritie And secondly some confirmation may bee ad solemnitatem actus and so giue no right others ad necessitatem actus without which is no valide acte And thirdly the distinction of Angelus de Clauasio in summa Verbo Confirmatio summi Pontificis may limit those rules Confirmatio summi Pontificis ex certa scientia facit validum quod erat nullum respectu iuris positiui facit firmum quod aliâs est infirmum solemne quod non est solemne supplendo defectus solemnitatis omissae Si vero fiat in forma communi non ex certa scientia nihil iuris tribuit sed solum vetus confirmat The confirmation of the Pope out of certaine knowledge maketh that to bee valide which was voyd in Law maketh that strong which was otherwise weake that solemne which was not solemne supplying the defects of solemnity omitted But if it be made in common forme not out of certaine knowledge it giues no right but onely confirmes the old But he proceedeth and alloweth that since about the yeere 1200. such grants euen with confirmations after were disallowed as appeares out of the Canon of Innocent 3. Tit. de his q. f. à prael cap. 7 cum Apostolica and Tit. de Decimis c. dudum Animad 3 But the first place is very falsely alledged such graunts