Tythes being onely an imposition on the Miners of paying a Tenth to the Emperours and another to the Lord of the Soyle in whose land by priuiledge they might digge for stones not implying a denyall of a further dutie to God both personall and mixt Pag. 40. Animad 12 And that at that time part of those Oblations were Tythes whence Ammianus Marcellinus saith lib. 27. Hierom. Ad pammachium contra Errores Ioan. Hierosolomynitani that the Bishop of Rome Damasus was enriched nay enuied for as St. Hierome speakes Praetextatus who composed the Schisme betweene Damasus and Vrsicinus Solebat ludens Beato Papae Damaso dicere facite me Romanae vrbis Episcopum ero protinus Christianus He was wont merily to say to Pope Damasus Make me Bishop of Rome and foorthwith I will bee a Christian Besides the Canon made by him as Baronius relateth concerning Tythes whereof after as also Saint Hieromes Epistle to him of Tythes the many passages of Saint Hierome which sometimes was at Rome might bee sufficient testimonie Animad 13 And further that in Saint Chrysostomes time there were Tythes amongst that for which the Clergie was enuied may appeare by that before Ex opere imperfecto and other passages in the Catalogue Num. 3. For Opinion only Origen is produced whose Greeke I neither haue nor could euer learne it to haue beene published In his conclusion Origen leaues out Tythes Thus the Author Animad 14 These two seeme his arguments to slight this ful and grounded opinion of Origen in reciting which what hee hath omitted is in the Catalogue obserued But for the first since St. Hierome is the interpreter and for the second since Origen doth not onely say but euen powerfully prooue the Diuine dutie of Tythes those hidden exceptions may not blurre the trueth of the authoritie to which what other Testimonies either before or in that age I haue obserued are placed in the Catalogue P. 42. num 4. In the Constitutions of the Church The Constitutions Apostolical by Clement are iudged supposititious both in generall First for that they are branded for counterfeits in an Oecumenicall Councell Syn. 6. in Trullo Can. 2. And secondly P. 463. for that in them the fiue and twentieth day of December is affirmed there to be the Feast of Christs Natiuitie whereas the learned know not vntill St. Chrysostomes time that day was not setled but variously obserued of the Easterne Church which should haue had specially notice of the Apostolike Canons And St. Chrysostome then learned that time of the Westerne and Latine Church as Homilia de Natiuitate Animad 15 I intend no defence of the whole volume of the Constitutions Apostolicall by Clement against which many others haue produced most valide obiections yet these reasons in respect of the Canon of Tythes are too weake The Councell at Trullus reiected them because Iam olim ab ijs qui à fide aliena sentiunt adulterina quaedam à pietate aliena introducta sunt quae diuinorum nobis elegantem ac decoram speciem obscurarunt Now a long time agoe Heretikes haue foisted in many false and impious things Can. 2. which haue obscured the elegant and seemely shew of what in them is diuine as in the Canon So Gelasius 1. also for the corruptions iudgeth them Apocryphall But can the Authour prooue these of Tythes to bee corruptions what olde heresie brought in these what impietie is in the claime what improbabilitie is in the time since the succeeding fathers challenge them To whose benefit considering the exceeding liberalitie of the former dayes before the Councell of Trullo or Gelasius could the ordinance onely of a Tenth be Although therefore other parts be to be accounted Adulterate and Apocryphall yet if any be this is surely Apostolicall August de baptismo contra Donatisâ—as lib. 4. c. 23. Quod vniuersatenet Ecclesia nec concilijs institutum sed semper retentum est non nisi Apostolica authoritate traditum rectissimè credimus What the whole Church hath alwayes retained not originally ordained by Councels wee beleeue to be a Tradition by Apostolike authoritie Animad 16 The second exception is vntrue and answered by S. Chrysostome himselfe who in the very Sermon quoted De Natiuitate speaking against those it seemes of the prouince of Hierusalem Qui putant quod in Epiphanijs nascitur That Christ was borne in the Epiphanie saith for the confirmation of the Day now obserued Non sunt nostra quae loquimur maiorum sententia est vniuersus mundus contra huius prouinciae opinionem loquitur What we speake is not our owne inuention it is the opinion of the Ancient the whole world speakes against the opinion of that Prouince Here is vnitie antiquitie vniuersalitie Hee proceedeth Vobis qui dixerunt qui sunt in ista prouincia vtique Apostoli Petrus Paulus caeteri Apostoli vos eiecistis nos suscepimus Petrus qui hic fuit cum Ioanne qui hic fuit cum Iacobo nos in Occidente docuit vestri igitur nostri Apostoli Magistri sunt Alibi pax erat hic i. at Hierusalem bellum Magis itaque traditio ibi debuit seruari quam hic vbi discordia Hoc totum dicimus quia nobis dicunt Hic Apostoli fuerunt hic Traditio fuit praedicationi nostrae creatura consentit mundus ipse testis voci nostrae vsque ad hanc diem tenebrae crescunt Simulque considerate inter Dominum Ioannem Baptistam sex menses sunt Who tolde you What did Peter and Paul and the other Apostles that were in that Prouince You excluded them wee receiued them Peter that was at Hierusalem that was there with Iohn that was there with Iames hath taught vs in the West In other places was peace there was warre at Hierusalem better therefore might the Tradition be preserued there then here where was discord This wholly wee say because they obiect Here were the Apostles here was the Tradition To our words the creatures consent the world is witnesse to our sentence for vnto this day be the dayes shortened Also consider how betweene the Natiuitie of our Lord and S. Iohn Baptist were sixe moneths Out of which the falshood of his collection is euident euen made and answered by S. Chrysostome The Easterne Church should haue had specially notice of the Apostolicall Canons so Hee Hic Apostoli fuerunt hic Traditio fuit so they But for all this S. Chrysostome defends the Tradition from S. Peter and shewes the probabilitie not infringing the authoritie of Peters Tradition from this Constitution as our Author doeth but confirming this Constitution to be S. Peters though the Easterne Church did not practise it And prooueth it by the distance of sixe moneths from the birth of Iohn Baptist whom to haue beene borne according to the Churches account he supposeth the Easterne Church allowed Neither is that Argument of any weight The Easterne Churches did otherwise then is contained
Apostolicall yet the first Fiftie haue had defenders both Protestants and Papists though few are practised by either But His exception is euen petitio principij certainely no Law made vnder them for First fruits to oppose this Law made I leaue the defence of all the first fiftie Canons to Frigiuillaeus Gautius In palma Christiana lib. 4. cap. 34. And for this particular let the Authour consider whether this may not seeme Apostolicall since Iraeneus saith Offerre oportet Deo Primitias Hom. 11. in Num. we must offer First fruits to God And Origen Decet vtile est etiam Sacerdotibus Euangelij offerre primitias It is decent and profitable to offer first fruits to the Priests of the Gospel And the Councell of Gangra Anno 324. Primitias quas veterum institutio Ecclesiis tribuit In praefat First fruites which the institution of the Elders haue giuen to the Church besides the later authoritie of Gregorie Nazianzene Epist 80. Astetio Alypio where he beginnes Que madmodum areae torcularis Primitias filiorum eos qui vere filios amant Deo consecrare iustum ac pium est quoniam ab ipso nos ipsi nostra omnia sunt As it is right and religious to consecrate to God the first fruits both of the floore and winepresse so of their children if they truely loue them because from him both we our selues ours are And St. Chrysostome and St. Hierome might be added Besides the practise euen in the Greeke Church Hom. 35. in gen In 3. Malach. though after as Theodoret doth relate of Theodosius the Monke who there speaking of the labour of the old Religious saith Religios Hist. cap. 10. Est enim absurdum vt ij quidem qui aluntur in vita seculari se affligentes laborantes alaÌ„t filios vxores propterea tributuÌ„ conferant ab ijs exigantur vectigalia Deo offerant primitias mendicorum pro viribus medeantur inopiae Nos autem non quaeramus ex laboribus c. For it is absurd that Lay men should afflict themselues and labour to keepe wiues and children and besides pay Tribute and answere customes and offer First fruits to God and for their abilitie releeue the poore And wee Monkes doe not labour c. To which many more authorities might bee added Whether then this Canon may not bee thought Apostolicall since it was so immediately after the Apostles taught and no other Canon before can be produced to command it let the Reader iudge And heere though our Authour deride it pag. 464. The version of Ioannes Quintinus in Zonaras his Comment on the Canon rendreth it by Decimas aswell as Primitias and so also in the Interpretation of Zonaras and so in defending the Canon for first fruits we haue light on Tythes which yet he saith are not mentioned The Canon also of a Councel about the yeere 380. Pag. 43. vnder Pope Damasus related by Baronius ad annum 382. to be in the Legend of this Pope which was vsed to bee read in the Church is confidently affirmed to bee supposititious and pag. 134. a fained one because taken out of a Legend neuer receiued as Canonicall in the Church not the eldest Code of the Church of Rome remembreth them whereas some Decrees of this Pope are dispersed in the Compilers and c. 10. q. 1. c. Hanc consuetudinem one especially being made onely for the disposition of such things as were giuen to the Church speakes onely of oblations Neither before Binius his Edition had any volume of Councels receiued them Animad 22 Although Baronius authoritie with me haue no great credit yet with the Authour mee thinkes it should since euen against the testimonie of indeed very ancient Authours as in the Reuiew he confesseth that great and most learned Cardinal Baronius Pag. 465. Pag. 52. as he stileth him must be preferred yet his reasons are too weake against it For the name of Legend though through the shamelesse and impudent relations of lying Monkes in the late Legenda Aurea it be ill conceipted of yet this in those purer times and many others which were vsed to be read in the Church must haue better construction or else we must imagine that those holy Fathers would admit falsities to be publikely proclaimed for trueths who yet in the Councell of Laodicea as they were very carefull that nothing were read but Scripture Can. 12. so in the 3. at Carthage onely added Liccat etiam legi passiones Martyrum cum Anniuersarij dies eorum celebrentur Let the passions of Martyrs be read on their Anniuersaries yet made a Canon in the Mileuitan and African Councels Can. 70. Vt preces orationes nisi probatae fuerint in Concilio non dicantur c. ne forte aliquid contra fidem vel per ignorantiam vel perstudium sit compositum That no prayers or orisons bee vnlesse they bee allowed by a Councell lâ—st through ignorance or of purpose any thing might bee composed against the Faith Operum p. 387. as Agobardus citeth it though in the Canons themselues are also praefationes and commendationes How then shall wee mistrust this because then a Legend though after indeed they were stuft with lies And since they were in a Legend which was vsed to bee read in the Churches sure they were receiued as Canonicall that is true though not into the Code of Canons by the ancient Compilers to whose knowledge although the other Councell and some Epistles and Decrees might come yet this Councell being in a Legend no likely place for Canons and the reading thereof hauing beene disused or not in those places might well scape the most diligent enquirie of the Compilers C. 10. q. 1. Hanc consuetudinem And in that they cite one Canon of him which beeing made onely for the disposition of such things that were giuen to the Church yet speakes onely of oblations not naming Tithes or first fruits yet out of that Canon I conceiue the probability both of this Canon and Saint Hieromes Epistle to him That Canon is against a wicked custome of Lay men which then increased against the holy Catholike Church Qui oblationes quae intra sauctam Ecclesiam offeruntur sub dominio detinebant who did reteine in possession the oblations offered in the Church whom hee doeth Anathemaize Now that in these Oblations more then the voluntary offerings were meant obserue how hee saith Si quis contra hanc regulam nostram contra sanctorum 318. Patrum qui in Nicaeno Concilio hoc constituerunt temerarius praesumptor fuerit vlterius oblationes de sacris Ecclesijs auferre molitus est c. If any against this rule of ours and of the 318. Nicene Fathers who there ordeined it shall be a rash praesumer and hencefoorth offer to take oblations out of holy Churches c. But this can haue reference to no
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
which for a while the Church tolerated as Alexander 3. in Concil Lateran pag. 1. cap. 17. But Fredericke Barbarossa Apud Goldast Constitut Imperial tom 2. pag. 5. as in Reuiew pag. 466. or Henry 6. his sonne as Arnoldus Lubecensis in supplem hist Sclauorum approoues it to bee true the words are Sed cum tempore Christianitatis ab aduersarijs infestarentur Ecclesiae easdem Decimas praepotentes Nobiles viri ab Ecclesiis in Beneficio stabili acceperunt vt ipsi defensores Ecclesiarum fierent quae per se obtinere non valerent But when in Christianitie the Churches were disturbed by the aduersaries Great men tooke Infeodations from the Churches that they might be Aduocates for the Churches in what they could not by themselues obteine To confute Stephen Pasquier his opinion that Infeodations beganne in the holy warres betweene 1090. and 1100. he truly produceth P. Damian in the place before and the Councell of Lateran held 1078. Decimas quas in vsuÌ„ pietatis concessas esse Canonica authoritas demonstrat à Laicis possideri Apostolica authoritate prohibemus Siue enim ab Episcopis vel Regibus vel quibus libet personis eas acceperint nisi Ecclesiae reddiderint sciant se sacrilegij crimen incurrere Tithes which the Canons manifest to haue bene granted for the vse of pietie by Apostolike authoritie we forbid Lay men to possesse whether they haue receiued them from Kings or Bishops or others vnlesse they restore them to the Church they vndergoe the censure of Sacriledge This is iterated in the same syllables in the generall Councell at Lateran 1139. vnder Innocent 2. But yet out of the Councel he makes inference as if onely Lay men did make these Infeodations Animad 54 Whereas the word ab Episcopis might haue remembred him of Bishops aswell as P. Damianus vpon whose complaint of the abuse of that time this Councell might take occasion it being very few yeeres after his death And the word therein Regibus from Kings might haue made him thinke of Charles Martell and the word reddiderint they restore make him acknowledge what after he will denie both that all Infeodations were from the Church and that the true reading of a Canon of the Lateran Councell vnder Alexander the 3. to the same purpose is to bee reddiderit not tradiderit Which two last errours the Canon prohibemus P. 114. in the Councell of Lateran vnder Alexander the third p. 1. cap. 14. is interpreted to maintaine though brought to prooue that then and not before the vse of such new infeodations as staied not that any annullation of the old was intended The words are prohibemus ne Laici Decimas cum animarum suarum periculo detinentes in alios Laicos possint aliquo modo transferre Si quis vero receperit Ecclesiae non reddiderit Christiana sepultura priuetur Wee forbid that Lay men detayning Tythes with perill of their soules may not by any meanes passe them to other Lay men but if any shall receiue them and shall not restore them to the Church let him want Christian buriall Animad 55 Ignorance is imposed vpon the later Canonists that oppose this Canon against the right of all feodall Tythes ancienter then the Councell And Innocentius the fourth and Hostiensis Bernardus and Bowhic are opposed to them whose authorities may bee truely cited yet not interpreted of Infeodations but De Decimis male detentis as in the page 156. hee quoteth out of Innocent the fourth and so his opinion of the prohibition of future infeodations haue no proofe from thence nor opposition therein to the elder Canonists But mee thinkes hee that considereth the aime of those times onely to get them from Lay men Nec multum refert quae Ecclesia habeat dummodo extirpentur à Laico It is no matter what Church hath them so they may bee gotten from the Laitie as Panormitan cited by him pag. 156. And considereth also how they decreed that not so much as the Patronage should bee passed by succession but to the Clergie Addit Concil Lateran par 15. cap. 6. nor so much as bee solde cap. 16. 17. Quia Spirituali annexum see Epist Paschal 2. inter Epistolas Anselmi lib. 3. Epist 45. might well imagine the intention to reduce the thing it selfe Infeodations present not future Especially conceiuing it to haue beene decreed against by Gregorie the seuenth Vrban the second and Innocent the second which are euen quoted by himselfe And may any suppose that Pope Alexander the third would haue had lesse stomacke Vide etiam in Gratian. c. 10 q. 7. in Prâ—fat and would not claime the Tythes I will not bee perswaded especially hee vsing the same word Reddiderit as a badge of their intention and his owne Nay himselfe par 4. cap. 1. decreeth an infeodation euen from an Abbot into Lay hands to be void quoniaÌ„ Sanctuarium Dei iure haereditario possideri non debet Gods Sanctuarie must not bee held by inheritance which is the same in effect Who then would not trust rather Innocentius the third who interpreteth it of Tythes formerly infeodate and was next successour to Alexander the third as in Tit. de His quae à Prelatis c. cum Apostol or the other Canonists who vnderstand it by Iudiciall application as he confesseth p. 139. then only rely on his coniecture But besides by the very sense of the wordes cum Animarum periculo detinentes detaining them in the perill of their soules who will thinke that any man might by law seeme to haue right to passe those Tythes to another wherein himselfe had no right the conueyance it selfe was irrita voyde Sure therefore they claimed a right and how but by infeodation by which Title though it was against conscience for any to detaine Tythes yet some shew of Ciuill Title might countenance that Action which is heere forbidden But bee it as it will let the Canonists decide it That which followeth is more pertinent to this businesse Hee saith surely it is an errour which is commonly supposed that all ancient feodall Tythes were at first Spirituall and transferred from Church-men at the request of Princes hee might haue added or Tyrannie into Lay hands and since wrongfully detained Neither is there any ancient warrant sufficient for it Animad 56 The Historie of Charles Martell before doeth make the contrarie plaine and the Catalogue of Authours shew both the Diuine due and payment long before But yet hee is of opinion that many of these Infeodations were doubtlesse created by lay-mens Grants as Rents-charge Estouers Turbaries and the like are Who can doubt of it saith hee that obserues but alone this Canon Prohibemus Pag. 115. Whence also may be strongly inferred that the greater number of infeodations were by Grants made by Lay men to Lay-men for what is there onely forbidden by the Councell may be thought the greatest and most preiudiciall practise of the times against the profit
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
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
suspicion of noueltie and the Authour and whosoeuer fauour the opinion of his booke may be brought to consideration how many holy Fathers whose liues and deathes God hath made glorious by miracles by whose learned and godly writings both Heresie was confounded and the Trueth conueyed vnto vs are opposite to their politike new found fancie And yet so little reuerence had their gray-headed authorities that either they are passed with censure or contempt Aimoinus Aimoinus lib. 3. de gestis Francorum cap. 41. Relates that when Chilperick would haue proclaimed Sabellianisme and perswaded Gregorius Turonensis to it and yet in his reason confessed S. Hilarie and S. Augustine to be against him that holy Bishop replied Cauendum est Domine mi Rex ne ille irascatur tibi cuius illi fuerunt famuli qui vt tu ipse fateris in ista credulitate sunt contrarij I compare not the errors together God forbid yet the aduise of that great Bishop belongeth to him That since he acknowledgeth S. Ambrose and S. Augustine and S. Gregorie and others to be aduersaries to his intention he would feare the anger of that God whose seruants they were And following Vincentius Lyrinensis his wise admonition Cap. 4. 39. Quicquid non vnus aut duo tantum sed omnes pariter vno eodemque consensu apertè frequenter perseueranter tenuisse scripsisse docuisse cognouerit id sibi quoque intelligat absque vlla dubitatione credendum Whatsoeuer the vnanimous consent of continuate antiquitie hath constantly held writ taught that without doubting is to be beleeued He would retract his new opinion and acknowledging his last errour he would returne to the gracious fauour of the King and Church whom if by disobedience he neglect would shewe more supercilious pride and youthfull folly then either would beseeme subiect or Christian Before the authorities let the Reader obserue these three Propositions which may state both the question and interprete the Ancient 1 That the Doctrine concerning Tithes was euer that they were due De Iure Diuino as appeares by the Fathers in time of persecution when they could not haue them generally paid as Irenaeus Origen Tertullian Cyprian 2 That assoone as persecution ceased they were receptae in moribus hominum before they were giuen to the Church by any Imperiall or Ecclesiasticall law as appeareth by those Fathers that liued in the flourishing time of the Church in the next 300. yeres as S. Chrysostome Hierome Augustine Ambrose and many others 3 That the lawes Imperiall Ecclesiasticall concerning Tithes doe declare the right of Tithes not giue them nor the Right and they doe adde Ciuill and Ecclesiasticall punishments on the Non-payers rather then decree the payment as in the Capitulars is manifest The Catalogue shall be disposed according to their seuerall precedence in antiquitie and onely those at large insisted on who directly or by necessary consequence maintaine the Diuine right of Tithes or more Which consequences shall be onely briefly deduced out of them not to stay the more learned reader in the English nor yet defraud any of the inferences The first shal be Irenaeus Floruit anno Domini 180. Qui proximus fuit tēporibus Apostolorum as S. Basil de S. S to cap. 25. He lib. 4. cap. 20. saith Sacerdotes sunt omnes Domini Apostoli qui neque agros neque domos haereditant hic sed semper altari Deo seruiunt De quibus Moses Non erit sacerdotibus Leuitis in tota tribu Leui pars neque substātia cum Israel fructificationes Domini substantia eorum manducabunt eas Propter hoc Paulus Non inquiro inquit datum sed inquiro fructum Discipulis inquit Dominus Leuiticam substantiam habentibus c. The Apostles are the Priests that serue at the Altar that must eate the Lords parte that must haue the substance of the Leuites not of gift but right Of them spake Moses Therefore are tithes due to them by the Law of God In the same booke cap. 27. Et propter hoc Dominus pro eo quod est Non moechaberis non concupiscere praecepit pro eo quod est Non occides neque irasci quidem pro eo quod est Decimare omnia quae sunt pauperibus diuidere Haec omnia non dissoluentis legem erant sed extendentis dilatantis in nobis and cap. 31. Quae autem naturalia liberalia communia omnium auxit dilatauit Therefore Decimare according to Irenaeus is plainly naturall And cap. 34. of the same booke Offerre igitur oportet Deo primitias eius creaturae sicut Moyses ait Non apparebis vacuus in conspectu Domini Dei tui vt in quibus gratus extitit homo in his gratus ei deputatus eum qui est ab eo percipiat honorem Et propter hoc illi quidem decimas suorum habebant consecratas Qui autem perceperunt libertatem omnia quae sunt ipsorum ad dominicos decernunt vsus hilariter ac liberè dantes ea quae non sunt minora vipote maiorem spem habentes To giue Tithes or more is a signe of our hope of heauen Therefore Anno 226. 2. Origenes Quem post Apostolos Ecclesiarum magistrum nemo nisi imperitus negat as S. Hierome de nominibus Hebraicis He Hom. 11. in Numeros Decet enim vtile est etiam Sacerdotibus Euangelij offerre primitias Ita enim Dominus disposuit vt qui Euangelium annuntiant de Euangelio viuant Et sicut hoc dignum est decens sic è contrario indecens indignum existimo impium vt is qui Deum colit ingreditur Ecclesiam Dei qui scit Ministros Sacerdotes assistere altari aut verbo Dei aut ministerio Ecclesiae deseruire vt de fructibus terrae quos Deus dedit solem suum producendo pluuias suas ministrando non offerat primitias suas Sacerdotibus Non mihi videtur huiusmodi anima habere memoriam Dei nec cogitare nec credere quia Deus dederit fructus quos coepit quos ita recondit quasi alienos à Deo Si enim á Deo sibi datos crederet sciret vtique munerando Sacerdotes honorare Deum de datis muneribus suis Et adhuc vt amplius haec obseruanda etiam secundum literam ipsius Dei vocibus doceantur addemus haec Dominus dicit in Euangelijs Vae vobis Scribae Pharisaei hypocritae qui decimatis mentham hoc est decimam datis menthae cymini anethi praeteritis quae maiora sunt legis Hypocritae haec oportet fieri illa non omitti Vide ergo diligentius quomodo sermo Domini vult fieri quidem omnimodè quae maiora sunt legis non tamen omitti haec quae secundū literam designantur Quod si dicas quia haec ad Pharisaeos dicebat non ad discipulos Audi iterum
author est omnium fons initium vnus est Christus Idcirco populus decimas quâ—d m Ministris Sacerdotibus praestat But also in the New Testament the Tenth is venerable But because there is one Authour of all one fountaine one beginning euen one Christ therefore euen the people payeth Tythes to the Ministers and Priests Next to omit S. Cyprian whose places are after misinterpreted S. Augustine Hom. 48. Inter quinquaginta Hom. who was borne anno 350. saith Maiores nostri decimas dabant Our Ancestours paide Tithes Then the imperfect worke vpon S. Matthew either Chrysostomes or Coaetaneous with him before S. Augustine Quod si populus decimas non attulerit Hom 44. murmurant omnes If the people bring not Tythes euery Priest murmureth These words are cited out of him by Zacharias Chrysopolitanus Lib. 3. vnum ex quatuor c. 141. circ ann 1101. Besides the Councell of Gangra concerning First fruits which haue the same reason nay sense also Cap. 16. qu. 1. In Canonibus as Gratian saith which against Eustathius who would haue challenged them from the Church made a Canon and in the Preface sayth Primitias quas Institutio veterum Ecclesiis tribuit First fruits which the Institution or practise of the Ancient hath giuen to the Church Before the latter end therefore of these first foure hundred yeeres Tithes prooued to be payed Nay that presently vpon the leauing of the Apostolicall communitie of liuing Id tunc vniuersis Sacerdotibus placuit It was decreed by all the Priests then that Secular men velut legalium decimarum necessitate compellerentur should be inforced of necessitie to pay as it were legall Tythes If therefore compulsion then sure payment Thus saith Cassian Collat. 21. c. 30. P. 36. Entring the part of Practise He proposeth the vnitie and communitie of liuing amongst them about Ierusalem And the whole Church both Lay and Clergie liued in common But this kinde of hauing all things in common scarse at all continued for we see not long after in the Church of Antiochia euery one of the Disciples had a speciall abilitie Act. 11.29 So in Galatia and in Corinth where S. Paul ordained weekely offerings Animad 2 This Argument is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 since this liuing in common was not then embraced by any company of Christians but at Ierusalem onely for whose necessitie hauing no encreasing profite from their land because solde against the time of dearth prophecied by Agabus both this contribution Act. 11. and the weekely collections Rom. 15.1 Cor. 16.2 Cor. 10. were requested In other places each man had a seuerall abilitie from the beginning as for proofe euen see his owne Occam in loco citat in opere 90. dierum cap. 10. where out of S. Augustine lib. 3. de Doctrina Christian cap. 6. hee prooueth Quod praeter Hierosolymitanam Ecclesiam hâ—c non vllas Ecclesias gentium fecisse scriptum est That besides the Church of Hierusalem no Church is related to haue done so Yet after also amongst other Christians that coÌ„munitie of liuing was embraced vntill long after as Tertullian Apologet. cap. 39. The monethly offerings giuen by deuout and able Christians the Bishops or officers appointed in the Church receiued Vide Synod Gangrens Can. 66. it should be Can. 7. Animad 3 It should be the Bishops and their Officers Ab eo Constitutum which I rather obserue because he calleth them in the next page Elders appointed as Oeconomi or Wardens as if puritane Elders or Churchwardens then disposed the estate of the Church whereas none Cyprian lib. 2. Epist 8. Cassianus Collat 21. cap. 1. but at the appointment of the Bishop might intermeddle and he that did was called Diaconus Sanctae Administrationis or Praesidens Diaconiae The monethly offerings called Stipes as Tertullian Apolog. Pag. 37. cap. 39. videsis cap. 42. Animad 4 That these Stipes were in lieu of Tithes or proportionall in respect of the Clergie himselfe interpreting the place in St. Cyprian acknowledgeth Pag. 39. Lib. 2. pro Anathasio pag. 132. and Lucifer Calaritanus may seeme to inferre by applying the Vae vobis Scribae Pharisaei qui decimatis Woe to you Scribes and Pharisees that tithe c. to Constantius saith in comparison Homo qui cum Stipem non modo rogatus sed tribuens sis nonnunquam sponte tamen vt saepe dictum est proscribas Christianos Thou art the man who although vnasked euen willingly giuest a Stipes yet thou banishest Christians c. And they were in such quantitie that the couetous might growe rich by Cyprian lib. 2. epist 7. Some authoritie is that about this time lands began also to bee giuen to the Church If they were so Animad 5 To remooue this doubting of lands then giuen to his other authorities the 2. Dialog de statu Ecclesiae pag. 657. Epistle of Pope Pius the first cited also by Hinemarus may be added where he saith praedia Diuinis vsibus tradita possessions giuen to holy vses And his owne interpretation after of St. Cyprians place de vnitate Ecclesiae for Tenthes of patrimonies giuen to the Church Paulus Samosatenus Ecclesiae domo abstinere noluit Euseb Hist lib. 7 cap. 29. Epist 80. Asterio Alypio would not leaue the Churches house And before the ende of the first 400. yeeres Gregorie Nazianzen telleth per multos extitisse qui totas etiam domos Ecclesus addici passi sunt non defuisse etiam qui suapte sponte facultates omnes suas obtulerint That there haue beene very many who haue conueyed whole houses to Churches that there haue not wanted some who voluntarily haue offered all their substance c. And St. Ambrose hee talkes of Agri Ecclesiae soluunt tributum The lands of the Church pay tribute Epist 32. lib. 5. To omit that Constantine the Great praedia tribuere posse constituit Gaue authoritie to conuey lands as in the Treatise de Munificentia Constantini Conciliorum Tom. 1. Editio Venere pag. 472. Can. 24. 25. And the phrase fructus Agrorum in Concil Antiocheno The fruits of lands Those monethly payes they called Mensurnas diuisiones Cyprian Ep. 27. 34. vide 36. Editione Pameliana Animad 6 Onely in one of those places is that phrase in the 34. Epistle those other quotations therefore are vnnecessarie Cyprian speaking familiarly calleth the Brethren that cast in their monethly offerings fratres sportulantes lib. 1. Epist 9. or 66. Edit Pamel vnderstanding the offerings vnder the worde Sportulae Animad 7 Here the Authour is deceiued for fratres sportulantes are those qui recipiebant saith Pamelius They who receiued not they who cast in which besides that it is plaine to make a sense in St. Cyprian whose place after shall bee examined Yet if he had but considered the very next words before his phrase mensurn as diuisiones in the 34. Epistle Edit Pamel
tractant in vsus proprios expendunt homines Laici In Church-goods which against Law and Canons Lay-men vse and spend to their owne occasions After in the next pag. 259. he obiecteth Sed quoniam quod de sacris rebus in Laicales vsus illicite translatis dicimus non fecit iste Dominus Imp. Sed praedecessores eius propterea isti impossibile est omnia emendare quae antecedentes malè vsurpata dimiserunt But because what we speake of holy things vnlawfully translated to Lay-vse this now-Emperour did it not but his predecessours and therefore it is impossible for him to amend all which those that went before did wrongfully vsurping put away Now who can here be signified by praedecessores and those that went before but Charles Martell Caroloman and Pipin and Charlemain being Restorers of what by Charles Martell was taken away Now that amongst these things which the predecessours of Lewes Male vsurpata dimiserunt wrongfully vsurping did put away that Tythes were besides Agobardus his proouing of them in the same processe to be due to the Clergie by the Law of God as by the places cited in the Catalogue may appeare out of the pag. 277. In the pag. 283. hee concludes Tali itaque vt dictum est nobis cordis deuotione Primitiae vel Decimae considerandae sunt tanta veneratione intactae seruandae cum huiusmodi confessionis puritate offerendae aliunde subministrandum est Canibus Cauallis caeteraque tam hominum quam animantium ministris quae vel ad delicias vel ad pompas turpesque iocos à diuitibus possidentur with such deuotion of heart therefore ought Tithes and First fruits be considered with such Reuerence they ought to bee kept vnuiolate and with such puritie of confession to be offered from other meanes must dogs and horses and other men and beasts kept by rich men for state and pleasure haue maintenance If this be not a full proofe both for the Sacriledge of Charles Martell in Tithes for the proofe of infeodations then I leaue to the indifferent Reader Nay before the same Authour pag. 269. saith Nunc non solum possessiones Ecclesiae sed ipsae etiam Ecclesiae cum possessionibus venundantur c. Now not onely the Church possessions but the Churches with them are sold Like to which is the Praecept of the same Lewis before spoken of and Lotharius his sonne in Flodoard Lib. 2. cap. 19. pag. 143. Quaedam praedia quae eidem Sanctae sedi quondam ablata fuerant deuota mente restituimus id est in Suburbanis ipsius Ecclesiae Titulum Sancti Sixti nec non Titulum Sancti Martini cum appenditijs in Castro Vonzensi Titulum Baptismalem Titulum in eadem parochia iterum Baptismalem cum suis appenditijs c. Certaine possessions which heeretofore were taken from that Sea wee deuoutly haue restored that is the Suburbs of the Church the Title of St. Sixtus also the Title of St. Martins with the appurtenances In Castro Vonzensi the parish Church and another parish Church there with the appurtenances c. Who cannot see what praedia Charles Martell tooke away euen parish Churches Other authorities shall occurre in the answere to the following reasons Martinus Polonus therefore not the first relator Ad. 2. The second reason is the fiction or Hobgoblin storie as hee calleth it of Eucherius of Orleans his vision about the Damnation of Charles Martell St. Cyprian hath a saying to one lib. 4. Epist 9. Quanquam sciam omnia ridicula visiones ineptas quibusdam videri sed vtique illis qui malunt contra Sacerdotes credere quam Sacerdoti It seemes true in our Authour concerning this Who acknowledging Reuiew pag. 465. that there are indeed very ancient Authours to iustifie it as Adreualdus in Ludouicus Pius his time in his first booke De Miraculis Sancti Benedicti cap. 14. And Flodoardus Remensis Historiae lib. 2. cap. 12. who liued Anno 960. Who let me adde more especially concerning this vision saith De quo patrum scripta relatione traditur c. Of whom is deliuered by the written relation of our forefathers that St. Euâ—herius returning from banishment c. And the Capitularie exhibited to Lewes 2. Anno 858. Post Canonem 59. c. 10. q. 1. To which Iuo might bee added in his Chronicle though in a wrong place for hee placeth the Narration vnder the Storie of Carolus Simplex the sonne of Ludouicus Balbus but it must bee referred to this Charles Martell for the words are Hic Tutudi quod Martellus dicitur à suis dictus est quia in Regno suo vix aut rarò pacem habuit ideo res Ecclesiarum suis militibus in Stipendium contulit maximae ex parte Qui mortuus in Ecclesia B. Dionisii Martyris sepultus à sinistra parte Altaris maioris visus est noctu in specie Draconis effracto sepulchro per vitreum Ecclesiae cum magno terrore exijsse This Tutudi who by his people was called Martellus because seldome he had peace in his kingdome therefore he gaue for the most part the Church estate for wages to his soldiers who being dead and buried in St. Denis Church on the left side of the great Altar he was seene by night in shape of a Dragon breaking the sepulchre to goe out of the glasse windows with great terrour Yet to fasten some shew of falsehood vpon the storie that by discrediting it in this part in the rest it may not haue credit Baronius forsooth shall be followed But if such Authors shall not preuaile In historia Apûm lib. 3. p. 8. c. 26. sure Thomas Cantipratensis shall little haue credit in the vision of the yong man that died and reuiued whom the deuils accused Quia decimas de bonis agris suis Sacerdoti substraxerat Because he with held the Tithes of his fields and goods from the Priest Or how shall Trithemius relation of a vision of one Adelbertus 406. In Chronico Sponhemensi ad annum 1212. yeeres agoe who dying also and reuiuing Cum aliquando in decimando fruges in agro suo debitum ordinem non seruasset haec aiebat O si scirent homines agricolae vinitores à quantâ districtione horrendissimis poenis puniatur dolosa decimatio when he had not righly tithed his corne thus he said O that husbandmen and Vineyard keepers knew with what strict and horrible punishment fraudulent Tithing is punished c. how shall this haue any regard But this reason makes nothing directly to the argument but might haue had occasion aswell from his other Sacriledge as that in Tithes neither doe I vphold visions against trueth but Antiquitie against Baronius Relatoris fide non Authoris praesumptione in Vincent Lyr. phrase not as a bold Author but as a faithfull Relator And for further credit both of the vision and for the time of Eucherius death I will referre the Reader
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
hath next before obserued how Iuo had ioyned together Canons of diuers times as of Gelasius and Leo the 4. And so in this it is likely that that Preface out of the Lawes of Charlemain might bee annexed to the true Canon of that Councell Spalense there being little dependance of the Canon on that Lawe of Charles Heere I can but coniecture to free Iuo and the Councell Iuo and Burchard out of the first Councell at Orleans Pag. 63. and the 9. at Toledo Gratian in c. 16. q. 1. cap. 5. in Canonibus out of the Councell of Gangra The Councell at Tribur cap. 13. 14. out of Gelasius Decree cap. 29. and the Councell of Chalcedon Can. 17. They apply the seuerall Canons to Tythes as if these former Councels at first were made specially and by name for them whereas the matter is plainely otherwise what was ordained in them about Oblations is out of them by these Tythes and Oblations being then supposed of equall right expressely extended to Tythes Animad 18 Surely this is a strange iniurie to conclude the particular out of the generall Tythes out of Oblations which that they were included in the intentions of those prime Councels is more to be beleeued from the assertions of those later yet ancient Writers and Councell then from the vngrounded coniectures of the Author who pag. 116. out of Zonaras seemeth to confesse Tythes to be meant in the Councel of Gangra and the 4. Toletan oan 32. and that at Paris ann 829. hauing reference to former Councels though naming Tythes must haue the like blame with them The Prouinciall Councell at Friuli anno 791. Pag. 74. is put off by a tricke It is rather a declaration by doctrine then a constitution by precept saith hee Animad 19 Why doeth he thinke it in conscience of lesse force because of lesse formalitie Is not a publike declaration of Gods precept to vs with addition of his commination vpon the breach not worthy to be accounted a Constitution which is more since a constitution is but a declaration of mans will whereas this is the declaration of the will of the Councell in the word of God But reiecting these as Prouinciall hee insulteth that there was no generall Councell Pag. 64. and therefore citeth Agobardus to prooue it in the place before insisted on whose reason for the want of generall Councels if he had as well considered as he doeth his authoritie of their want hee needed not expect them for saith Agobardus Nulla enim compulit necessitas feruente vbique religiosa deuotione amore illustrandi Ecclesias vltro aestuante there was no neede Pag. 66. Next he doeth inferre that therefore to Baptismall and Episcopall Churches they were receiued as indefinite offerings the quantitie whereof was wholly Arbitrarie in respect of any Constitution or generall Law in vse Animad 20 But if he had conceiued the Law of God grounding the generall perswasions of the Fathers which were the rule of Canons and obserued that they neuer admitted a lesse proportion but expected a greater and that euen in those Councels which were generally receiued the phrases were Oblationes fructuum vel Primitias Ecclesiae debitas The offerings and First-fruits due vnto the Church as Concil Gangrens Can. 7. which is so vnderstood in Sexta Synodo Romana sub Symmacho De fructuum oblationibus quae Ministris Ecclesiae debentur Of offerings of fruit which are due to the Ministers of the Church Greg. M. Moral l. 22. c. 23. Ministeria debita à subditis exigenda Due maintenance to be exacted of the Subiects and considered in the Capitularies which were through the Empire Ecclesiae antiquitus constitutae decimis non priuentur implying vpon Constitutae Ecclesiae soluendae decimae how should he say they were wholly Arbitrarie for the quantitie and that to a lesse proportion Photius his Nomo-Canon Tit. 5. and Cod. De Episcopis Cler. leg 39. are cited wherein saith the Authour He that offered not at all was compellable but not he that offered a lesse quantitie and compulsion was taken from the Churches authoritie in the Patriarchate of Constantinople Animad 21 In the authoritie of Photius Titulo 6. for in 5. there is nothing there such Bishops and Clergie that should excommunicate or detaine the administration of Sacraments from those that brought not their fruits aut Angarias non praestent or doe not their Seruice or pay not their Taxes although consuetudine id inualuerit should forfeit ten pounds besides depriuation So that rather he should haue said the authoritie of compulsion had beene taken from the Church then that the compulsion was taken from the Churches authoritie But why in that Canon should the quantitie be designed since other first fruits besides Tythes being due might bee comprised in the word fructus by which they well vnderstood what more specially was signified Moreouer this compulsion being so vnlawfull might bee for some other imposed or voluntarie offerings of fruit for which to suffer excommunication to bee published might prooue scandalous for so by the ioyning of Angarias praestent it may seeme For that in the time of Photius circa Annum 858. Vet. Pat. vlt. Edit tom 8. pag. 333. a Tenth was vsually paid Anastasius Abbas who liued circa Annum 840. doth testifie in his booke contra Iudaeos saying of Abraham his Tything to Melchizedech Decimas ei dedit vt dare solent Laici Sacerdotibus He gaue Tythes to him as Lay-men vse to doe to the Priests and that constitution of compulsion was onely restrained to that Patriarchate as the Canon importeth Animad 22 As for the quotation of the Codex there is no such matter a needlesse quotation The old Aethiopian Masse is also produced to shew it was a speciall bountie to offer so much as the Tenth No need of the Critike Fortè in the Margent for so it is read Bibl. SS Patrum Edit 2. tom 6. pag. 95. where a distinct prayer is for those Qui obtulerunt munera Sanctae vnicae quae est super omnes Ecclesiae sacrificium scilicet primitiarum decimarum gratiarum actionis signum monumentum Who haue offered the gift of the holy onely vniuersall Church that is the Sacrifice of First fruits and Tythes in signe and token of their thankes-giuing Animad 23 A strange interpretation to inferre hence the bountie not duetie of paying Tythes whereas in that it was a prayer of the Church nay called Canon vniuersalis it was for a common seruice and so prooues a generall dutie and payment and because it is but gratiarum actionis signum monumentum it shewes the true ende of paying Tythes which might not be neglected namely our thankes-giuing to God and therein a common practise for the common prayer For I cannot be perswaded that in any publike Liturgie any distinct prayer either was or should be for a particular sort of men for doing that whereunto they are not bound
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
predecessours who gaue them Another consecration hee alledgeth Anno 1124. Pag. 77. And in stead of all others which no doubt were most frequent Epist lib. 2. p. 435. a confirmation of seuerall Tythes in Innocent the 3. with reference to many other quotations Animad 13 But all these were by consent and confirmation of Bishops or Popes for else of themselues they could not bestow them as the same Innocent speakes c. Dudum Extr. de Decimis speaking of Tythes Donatores non conferre potuerunt alijs quae ipsi de iure noÌ„ poterant possidere The Donors could not bestow on others what they themselues could not lawfully enioy But Innocent the 3. in Serm. 3. de Dedicat. Templi Tom 1. Pag. 78. p. 83. saith it where he doeth reprehend such consecrations which were very common and allowed in fact by the Pope and Ordinaries as saith the Author Animad 14 In that Sermon of Innocent the 3. he will needs interprete Indigentibus to signifie in that place Monkes as if Innocent had pointed at the custome of consecration to Monasteries The words are Grauiter peccant qui Decimas Primitias non reddunt Sacerdotibus sed eas pro voluntate sua distribuunt indigentibus They grieuously sinne who render not Tythes and First-fruits to the Priests but distribute them as they list to the poore Now that this word must signifie not the Monks though sometimes they were called pauperes is euident both by the circumstance of the place which each man that reades may perceiue And by the phrases in this sentence both where he saith Grauiter peccant which because such consecrations were not yet in the Councell restrained by him he could not well haue said and againe the word distribuunt doeth not sauour of consecrations but of voluntary though sacrilegious bestowing of it Againe the occasion of such reprehension surely was the same with that of his Decretall Epistle cited pag. 144. Tom. 2. Episto larum lib. 2 â—ag 483. of the Archbishopricke of Matera where the lay-occupiers did vse to diuide their Tythes at their pleasure and arbitrarily one part to the Church part to the poore part to their kinred where poore cannot signifie Monkes Or with that other where the complaint is that some Extr. de Detimis c. Tuanobis De portione Fructuum partem decimae separantes eam Capellis suis aut alijs Clericis aut etiam pauperibus conferunt vel in vsus alios pro sua voluntate conuertunt Of the portion of their Fruits seuering part of the Tythes they bestow it vpon their Chappels or their Clerkes or on the poore or at their pleasure conuert them to others vse And these poore are not Monkes why then the other But lastly since Monks could not receiue Tythes at lay-mens hand at the pleasure of them without consent of the Bishop how can they bee thought grieuously to offend in giuing that to Monks which Monkes could not receiue as elsewhere out of the Canons is shewed And by the way hee that heere would haue Indigentes to signifie not the lay-poore but Monkes before pag. 46. in the Testimonie of Iohn the Abbot in Cassian will haue pauperes onely to signifie the lay-poore Whereas Monkes of whom some were in Orders are there principally vnderstood which besides the quotation of the Law of Moses the very condition of his office that hee was an Abbot might insinuate But Hee proceeds and inferres that from the opinion of these arbitrarie consecrations such conceipt was of praescription thence and that amongst great men of the Clergie That Tythes of increase long payed by a familie were due whither soeuer it was transplanted as if the continuall payment had so for euer bound it that it might not pay them otherwise This was the opinion of some Bishops in the Patriarchate of Grado as wee may see by the same Pope Innocent his reprehension of them Decretal Ep. lib. 1. pag. 83. and of others elsewhere also Extr. De paroch cap. 5. significauit Animad 15 Heere First you see how He would prooue a right from what was reprehended and that in the opinion of the time And Secondly in the first quotation onely personall Tythes were claimed not Tythes of praediall increase Thirdly the Antiquitie of their claime euen to Proaui no newly created Tythes then And Fourthly not out of bountie but duetie for how else would they extorquere All which Hee would willingly denie But the words are plaine Quia Patres eorum Aui Proaui decimas ipsis aliquando persoluerunt Because their Fathers and Grandfathers and Great-grandfathers sometimes payed them Tythes Which phrase is after repeated Now persoluere doth praesuppose debitum not datum a necessarie payment not arbitrarie consecration whereupon they did ground their praescription vpon which they so violently required and would haue extorted Tythes Animad 16 But the other quotation Extr. de Paroch c. 5. significauit is wholly mistooke being for Iurisdiction not Tythes Next Pag. 79. Capit. lib. 5 cap. 49. Concil Mogunt c. 16. q. 7. c. 7. Leg. Longob lib. 3. Tit. 3 cap. 8. Hee prooueth the practise of Arbitrarie consecrations by the power they tooke of selling them as by the phrase Redimere Decimas in diuers Capitulars and Synods de Decimis quas populus dare non vult nisi quolibet modo aut munere ab ijs redimantur Concerning Tythes which the people will not giue vnlesse by some meanes or gift they may bee redeemed of them Animad 17 Where First is a plaine reprehension nay in all the quotations besides the censure of the Church and distresse of the Magistrate the appearing before the Emperour was inioyned vpon contumacie whereas yet for the Parson by consent of the Bishops for to sell them was lawfull as lib. 7. cap. 152. And Secondly these Tythes were Infeodations and therefore being letten might be expected to be redeemed as after he confesseth the phrase Redimere P. 3. q. 51. M. 6. Art 4. to signifie in Alensis and as in the Iustification of Charles Martels Historie I haue shewed And Thirdly hey must needs be vsurpations praesupposing still a former possession in the Clergie for so is the sense of redimere not onely to purchase but to redeeme what was lost or left Epict. 12. so in Iuo the phrase is vsed Redimere altaria when lay-men vpon the death of the Parson who demised Tythes vnto them were faine Redimere altaria To purchase the Church Reuenue againe whereby the Chimera of arbitrarie consecration of Tythes not already consecrated which hereby and from the former he would inferre is annihilated But that they were before consecrated euery authoritie prooueth as we haue obserued in the particulars Num. 3. Of Appropriations Pag. 80. Proceeding to shew how lay-patrons did not onely arbitrarily consecrate Tythes which were not before consecrated but euen in those that were exercised a power of disposing by appropriation He first proposeth the originall
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 Clergie men in the Archbishopricke of Matera after shall be spoken The Lawes are next produced but saith he soone disobeyed Pag. 132. they had little or no practise in behalfe of the Clergie The greater fault the more pittie But heere Hector Boethius relating the Lawes in Scotland of Tythes by King Congallus Anno 570. is excepted against Pag. 130. nay reuiled the exception The Author for this is called a faining Hector and his assertion bold or deceiued by them from whom hee tooke it it is to bee iudged fabulous and proceeding out of that common mistaking of ancient passages of Church Reuenues and confident but ignorant application of them to Tythes And in the Margin Buchanan sayth Sacerdotes praedijs alijsque prouentibus ditauit 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Decimis adijcere vir doctissimus non ausus est Hee inriched the Priests with possessions and other profits but that learned man durst not adde the word Tythes Animad 75 How should the Authour expect his booke might gaine any strength of truth from his name alone when Hector Boethius for all his good language and great paines shall not onely not haue credit with him as pag. 133. but be taunted by so yong a writer but hee may heare Saint Hieromes censure to as good a man as He euen S. Augustine puerilis est iactantiae accusando Illustres viros suo nomini famam quaerere Inter Aug. Ep. 13. especially since through Hectors sides others perchance truer Troians may bee wronged of whom hee receiued it who by the preiudice of him that knoweth not shall bee censured for confident and ignorant mistaking one thing for another As for the Marginall reason the omission by Buchanan of the word Tythes which Hector putteth in is but to poize their credits whether a lying and schismaticall Buchanan who was a prime Authour in the taking away of Tythes from the Clergie and therefore might well take it from his writing nay who might euen take that relation from Hector mincing it to his phrase and fancie or a fayning Hector perchaunce receiuing it from other it may bee the very Records of the Kingdome bee to bee preferred in this Relation Hector Boethius saith before of the same Congallus Mira sunt quae de huius Principis Religione memoriae sunt prodita They are strange things which are related concerning the pietie of this Prince What therefore hee writeth hee had from others But our Authour striketh the next In the next place the Pontificiall Canons are examined P. 134. Of which he citeth besides that of P. Damasus that also of Pope Nicholas the second Anno 1059. Praecipimus vt Decimae primitiae seu oblationes Viuorum Mortuorum Ecclesiis Dei fideliter reddantur a Laicis vt in dispositione Episcoporum sint quas qui retinuerint a Sanctae Ecclesiae communione separentur Wee command that Tythes or first fruits or offerings both of quicke and dead be faithfully payd to the Churches and be in the disposition of Bishops which they that retaine Vide LuithpranduÌ„ in vita Leonis 4. vbi authoritate Apâ—stolica praecipitur sub poena excommunicat let them be excommunicate which very words are his Successors Alexand. 2. And that of Leo the 4. c. 16. q. 1. c. De Decimis which forsooth must be a declaration not a constitution all which with the passages of the Fathers were for generall Canon-law in Gratians decrees confirmed by Eugenius the 3. Nay the Councell at Cleremont by Vrban the 2. and that of Gregorie 7. in Concil Rom. c. 16. q. 7. c. 1. To which hee might haue added that Canon of Gregorie cited by Alexander 3. Epist. 19. ioyned with those of Peter Cellensis Presbyter si Ecclesiam per pecuniam obtinuerit non solum Ecclesia priuetur sed honore Sacerdotij spolietur quia Altare Decimas Spiritum Sanctum emere vel vendere Simoniacam haeresim esse nullus fidelium ignorat If a Priest get a Church by money let him not onely be depriued of it but also be degraded because each Christian knowes that to buy Altar Tythes c. is a Simoniacall heresie And that at Lateran 1119. and another 1130. hauing the same words as that of Greg. 7. Quas de iure Sacerdotum esse sancimus Which we decree to be the Priests due And the 11. generall Councell vnder Alexand. 3. 1180. where onely infeodations saith hee and arbitrary consecrations without consent of the Bishop are forbidden yet the reason is the supposition of Parochiall right But let me adde in the same Councell cap. 23. In the prouision for leprous people are not Tythes supposed as a duety of common right when prouiding for the right of the Parish Church they are permitted to haue a separate Priest and Church and are priuiledged of their orchard and feeding of cattell that Tythes should not be exacted By this particular priuiledge is not the commoÌ„ right supposed Nay so often he hauing quoted the Capitulars whereof the last three bookes were confirmed by Apostolike authoritie Capit. lib. 7. c. 377. Yet hee saith There was not any Canon of a generall Councell that commanded the payment of Tythes or any that expressely supposed them a duety of common right before that of Lateran helde vnder Pope Innocent the 3. Animad 76 Let the Reader iudge of his Conclusion out of such premisses Pag. 136. In this passage he citeth an Epistle of Gregorie the 7. wherein hee admonisheth and perswades some Princes of Spaine after the expurgation of Christianitie from the Gothicke corruption to pay and command the payment of Tythes by the people where because he doeth perswade and not command hee inferreth that he had no power to command Animad 77 As though authoritie must be thought alwayes extended to what it can neuer in discretion condescending to the infirmities of weake brethren The spirit of Hildebrand challenged power S. Hilarie where he had no right but now Fides suadenda non cogenda Faith is to be perswaded not inforced and Alcuins ground was his direction But let vs see how his successor Alexander the 3. writes to those Gothes in the Epistle 19. Vide etiam Ep. 21. Archiepiscopo Vpsellensi Suffraganeis whereof part is quoted before Praeterea illud adijciendo mandamus quatenus populum regimini gubernationi vestrae commissum Decimas Ecclesiis fideliter deuote persoluere sicut ab ipso Domino noscitur institutum diligenter ac sollicitè moneatis si necesse fuerit sub districtione Anathematis c. Moreouer this we command that you diligently and carefully admonish the people committed to your charge that they pay Tythes to the Churches faithfully and deuoutly as it is knowen to be ordained by the Lord and that if need be vnder the censure of excommunication Pag. 138. But out of that strange conclusion hee would iustifie the saying amongst the Common Lawyers in his sense That before the Councell
Bellarmine quoteth the phrase Quadragesima diuinitus constituta denoting onely the Ecclesiasticke commandement of Lent Animad 15 But that Maior or Bellarmine should thinke out of this phrase Lent to be but an Ecclesiastick commandement vpon example sure is very strange since Bellarmine out of the same phrase of the same Father doth hold it Apostolical or instituted by Christ De verbo Dei scripto lib. 4. cap. 9. § tertia reg but contâ—adiction is not strange with Bellarmine if it may auaile him Vide etiam Tom 3. de bonis oper in partic lib. 2. cap. 14. § Adde quod non Thirdly that Ius Diuinum in the quaestion of Tythes Pag. 161. is to bee interpreted Ius Ecclesiasticum and so hee would interprete the Fathers Animad 16 But what if Ius Diuinum when it is opposed Humano were so what can Deus praecepit God commanded bee so vnderstood or Deus ordinauit God hath ordained c. But yet let vs obserue his quotations In a Iudgement Tit. de praescrip Cap. 6. ad Aures There in a case betweene two Parsons the one claiming by parochiall Right the other by praescription Tythes in another Parish the Pope approouing the Title of prescription saith de Iure diuino humano melior est conditio possidentis both by the Law diuine and humane hee that is in possession is in better case Now there Iure diuino can signifie no other but humane Church Law Animad 17 What humane and yet distinguished from humane But else saith he what hath the praescription of 40. yeeres of primer possession to doe with the direction of Diuine Morall Law Yet why may not that haue to doe heerewith ratione scandali for offence sake which by the direction of the Morall Law we must auoyd And although he admitted praescription in Parochiall possession must it therefore not bee true that his opinion was of a Diuine right for the Clergie in generall if he had admitted praescription against the Clergie then it might haue beene doubted but this case is otherwise The next quotation is of Alexander Alensis P. 162. Part. 3. q. 51. m. 5. The words are Decima sicut Domini generalis census is payable iure Diuino Animad 18 That indeed is the sence but the words are authoritate Diuina which alters his phrase But hee there speaking of Decimae quo ad indeterminatam quantitatem as euery man that hath vnderstanding may obserue cannot helpe the Authour His words are these Dicendum quod Ecclesia non percipit Decimas sicut communem prouentum immo sicut censum Domini generalis authoritate Diuina ideo ab omni conditione debito est liberum stipendium Decimarum I conclude that the Church doeth not receiue Tithes as a common profit but as the reuenue of the vniuersall Lord by Diuine authoritie and therefore the stipend of Tithes is free from all condition of debt Now whether out of this his intention may bee inferred I appeale to his better thoughts adding this that M. 6. Art 9. hee saith De iure Canonico Diuino est quod Decimae soluuntur Tithes are paied both by the Canonicall and Diuine right or Law where Canonicall is distinguished from Diuine P. 162. The third quotation is out of Innocent the third And this is the olde Schoole obiection and the late Iesuites argument Animad 19 For the better vnderstanding whereof to his obiection haue patience to consider the Canon which is in Concil Lateran sub Innocent 3. c. 5â— In aliquibus regâ—onibus quaedam permixtae sunt gentes quae secundùm suos ritus Decimas de more non soluunt quamuis censeantur nomine Christiano His nonnulli Domini praediorum ea tribuunt excolenda vt Decimis defraudantes Ecclesias maiores inde redditus assequantur Volentes igitur super his Ecclesiarum indemnitatibus prouidere Statuimus vt ipsi Domini talibus personis taliter sua praedia excolenda committant quod absque contradictione Decimas Ecclesiis cum integritate persoluant ad id si necesse fuerit per censuram Ecclesiasticam compellantur Illae quippe Decimae necessariò sunt soluendae quae debentur ex lege Diuina vel consuetudine loci approbata In some countreys there are certaine people mingled who according to their customes pay not Tithes fashionably although they are named Christians To such some Landlords demise their lands that deceiuing the Church of Tithes they may receiue the greater rents Willing therefore to prouide for the Churches that they bee not damnified We ordeine that such Landlords doe demise their lands to such Tenants that without contradiction will fully pay Tithes to the Church and to that if need be they may be compelled by excommunication For those Tithes are necessarily to be payed which are due by the Law of God or the approoued custome of the place The last sentence is the Quaestion The Canonists they indeed are mistaken in referring the word Lege Diuina to Praediall Tithes due by the Law of God and vel loci consuetudine approbata to personall Tithes since it would crosse their owne opinion and yet not agree with the case which is onely of praediall as the wordes manifest And the Authour also is not in the right let others iudge when hee saith cleerely the English of that was Those are necessarily to bee paide which are due Lege diuina that is by the positiue law of the Church which extendeth not alwayes vniuersally or custome of the place Heerein I agree as hee in his interpretation not to suppose in those wordes a distinction of Tythes but Lawes which I gather from the word necessario soluendae implying force of lawes And if it had beene a distinctinon of Tythes it should haue beene Approbatae not agreeing with consuetudine but Decimae And therefore I so English it Those Tythes are to bee paide which are due Ex lege Diuina by the law of God which must binde Christians vel loci consuetudine approbata or the allowable custome of the place which must constraine all people liuing in that place euen contra Ritus suos against their forraine customes which they pretended to pay Tythes And by this interpretation lege diuina cannot signifie Ecclesiastick constitution but diuine right nor Innocentius bee an Authour of the duenesse of Tythes De iure positiuo before Alexander de Ales. Which also might bee gathered by his slighting euen their Christianitie for such rites and customes Although they bee named Christians as if scarse worthy they were of the Name but his inferring personall Tythes to bee due by the Law of God Decret Epist lib. 2. pag. 544. which is related De Decimis c. Tua Nobis putteth it out of all doubt vide Catalogum P. 163. Erudit Theol. de Sacram. l. 1. par 11. cap. 4. Neither Hugo de Sancto Victore whom next hee would make an Authour doeth defend the positiue right and not a Diuine The wordes cited
his opinion are no further free from censure to do against Gods Law in not paying but onely quia non petat Ecclesia because the Church to auoide scandall doeth not demand them which if it did all the olde Schoolemen and Antonine is of opinion that then it were sinne not to pay Now concerning the duety of demanding let me onely remember the saying of a moderate Papist In prior Epist ad Tim. Digres lib. 2. cap. 8. Claudius Espencaeus Simili casu Ecclesia Decimas modo differt exigere modo simpliciter non petit si quibus in locis solui non consueuerunt ne fideles inassueti infirmi incidant in scandalum aut auertantur à fide Verum iuri ita suo cedere non semper expedit vt enim scandalum pusillorum ex infirmitate vel ignorantia ortum totali temporalium dimissione sedandum sit non tamen ex malitia natum quod Pharisaeorum vocant nec propter homines malitiosè scandala concitantes temporalia quorum sumus Domini tribuenda aut non repetenda quanto minus quorum sumus depositarij atque conseruatores siue Reip. Rectores si communia ea fuerint sive Ecclesiae pastores si sacra And so I returne to vindicate two English Councels in this Chapter before from his Exceptions Pag. 197. The first of Egbert Archbishop of Yorke who died anno 766. out of his Ms Excerptions in Thesauro Cottoniano This Title must vndergoe censure quoth he 1. Because in that Collection some whole constitutions occurre in the same syllables as they are in the Capitularies of Charles the Great which could not be knowen to Egbert who died in the last yeeres of Pipin the father to Charles 2. Because the words Secundum Canonicam authoritatem decimas coram testibus diuidant which are quoted in this Canon for Tythes my shew these Excerptions not to be so ancient for the ancientest Canonica authoritas Viti Edit c. 7. Leg. Longobard lib. 3 tit 8. it should be 3. for diuiding Tythes before witnesse is an olde Imperiall attributed in some Editions to the 11. of Charles the great being King of France In others to Emperour Lotharius the first but both these are after Egbert therefore the Canon not his 3. The heads of a Synode vnder him are extant but not any expresse mention is found in them of Tythes although most of the particulars of Church gouernment are touched Animad 4 Before I make answere to his Exceptions the Author and the Reader may take notice out of Bale De script Brit. that these Excerptions were not collected by Egbert but out of him by Hucarius Lenita about the yeere 1040 qui redegit in compendium constitutiones Egberti who epitomised the Constitutions of Egbert Wherefore the first exception well may haue answere and admitteth excuse from the vse of the middle times which often inserted into one bodie and vnder one name Lawes of different Ages which in this being written as he coniectureth in the daies of Henry the first might happen But accepting his answere let vs consider whether this Canon be inserted and of a later brood This he would inferre by his second exception in that the ancientest Canonica authoritas vt diuidant coram testibus is later then Egbert as by the Canon in two places quoted being in both the same doth appeare But if in neither of the quotations there is such authoritie for such diuision to the ornament of the Church the poore the Clergie nor no such word of diuisio coram testibus but onely an enquirie betweene the Parson and Parishioners coram testibus before witnesse whether they were paide vbi datae vel non datae and no word de diuidendo is this then a fit censure Nay secondly if an ancienter Canonica authoritas may be shewed of diuiding coram testibus as in the Councell of Antioch can 24. There sint manifesta quae ad Ecclesiam pertinent cum cognitione Presbyterorum Diaconorum quae sunt circa eum vt sciant non ignorent let the goods of the Church be knowen to the Priests and Deacons what they are But more plainely in the decretall Epistle of Gelasius 1. cap. 29. There in the diuision of that to the poore he saith Quamuis diuinis rationibus se dispensasse monstraturus videretur tamen iuxta quod scriptum est vt videant opera vestra oportet praesenti testificatione praedicari c. Although hee must giue an account to God yet that men may see your good workes let it bee proclaimed before witnesse Besides a Canon attributed to the Councell at Aruerne Anno 535. Licitum sit Episcopis praesentibus Presbyteris Diaconibus de thesauro Ecelesiae familiae pauperibus eiusdem Ecclesiae secundum Canonicam institutionem note the phrase iuxta quod indiguerint erogare Let the Bishops in the praesence of Priests and Deacons giue vnto the poore out or the treasure of the Church and to his familie according to the Canonicall constitution what they neede And this very Canon is repeated in Concilio Turonensi Anno 813. euen vnder Charlemaine Where yet the Canonica institutio hath not reference to the persons before whom but to the vses vpon which Is not the second therefore a strange exception wherein neither quotation nor obseruation is true And are not the Excerptions of Egbert wronged As for the third Exception before repeated it is meerely coniecturall And because in such heads in the generall word oblations Offâ—rings redditus reuenue facultates Ecclesiae Estate of the Church and such like Tythes may be and no doubt were signified the Exception is very insufficient being both on coniecture and from a negatiue especially since hee doth not cite any head of a Canon touching Church reuenue which either in generall termes or in particular with an c. might demonstrate the trueth of his relation But a good authoritie for the iustifying of Egberts Excerptions is for that in the booke Statuta Synodorum that belonged to St Augustines in Canturbury written about Anno 900. and collected before the same words are quoted as out of a former Synode as himselfe relateth pag. 212. Pâ—g 198. The second Councell or Canon to bee vindicated is the Synodus Anglicana ad Ann. 786. vnder the two Legates of Adrian the first cited by the Centurie Writers Tom. 8. cap. 9. pag. 583. edition Basil 1567. The Exception is for that in the relation of the Legates to the Pope mention is of Kenulph King of West Saxonie his ioyning with Offa in calling the Councell but the confirmations of the decrees haue no reference vnto him But by storie and synchronisme Kenulph perhaps could not haue at all to doe with it for some of our old Monkes expresly affirme that in the second yeere of Brithric next Successour after Kenulphs death Pope Adrian sent his Legates How could Kenulph be there then as the Legates relate Therefore after hee saith doubtingly if it be of
sufficient credit Animad 5 But for answere This Law if of good authoritie being a most obseruable Law beeing made with such solemnitie by both powers of both States of Mercland and Norâ—humberland which tooke vp a very great part of England and it is likeâ—y it was made generall to all England is onely discredited by perhaps and the relation of some of our Monkes amongst whom who are quoted Ethelwerd Lib. 2. cap. 20. saith nothing of whose reâ—ation and trueth heare what himselfe saith Beleeue the Monkes as you will but indâ—ed an exactnesse heere is not easily extracted oâ—t of the disturbed times of our Chronicles The Monkes of no absolute credit the time of no exact calculation and yet there must be a doubt of such a Synode whereof he giueth this testimony That it cannot be suspectedly any circumstance in the subscriptions which being mâ—ny might haue by chance soone got amongst them a character of falsehood had it not beene genuine If this dealing shew not a will of Censure and contradiction in the Authour let the Reader iudge But the Centurie writers for all their infinite paines as pag. 53. they haue ignorance and erring and ridiculous opinion layd vpon them but vniustly so here their labour is suspected After these Councels Num. 4. Pag. 204. in the fourth number is the Acte of King Ethelulph by his Charter enquired of wherein as Ingulpâ—us relateth it he saith Cum consilio not concilio as our Authour repeâ—teth it Episcoporum ac Principum meorum affirmantes consensimus vt aliquam portionem terrarum haere ditariam antea possidentibus omnibus gradibus siue famulis famulabus Dei Deo seruientibus siue Laicis miseris semper decimam Mansionem vbi minimum sit tum decimam partem omnium bonoruÌ„ in libertatem perpetuam donari sanctae Ecclesiae dijudicaui vt sit tuta munita ab omnibus secularibus seruitutibus c. This is almost in the same words related by Malmesburiensis who calleth it Scriptum libertatis Ecclesiarum Matthew Westminster relateth it Portionem terrae meae iure perpetuo possidendam concedam decimam scilicet partem terrae meae vt sit tuta c. The Chartularies of Abingdon whereof one hath this Title Quomodo Adelulfus Rex dedit decimam Regni sui Ecclesiis hath it thus Perfeci vt decimam partem terrarum per Regnum nostrum non solum Ecclesiis darem verùm etiam Ministris nostris in eadem constitutis in perpetuam libertatem habere concessimus c. Ingulphus to the Charter related by him adds That by the free consent of the Bishops and Princes that were vnder him of all the Prouinces of England Tunc primò cum Decimis omnium terrarum ac bonorum aliorum siue catallorum vniuersam dotauit Ecclesiam Anglicanam per suum Reginm chirographum Since out of the Charter it is hard to collect what the exact meaning was yet by the words of Ingulphus he doeth coniecture pag. 206. that the purpose of the Charter was to make a generall graunt of Tithes payable freely because it seemes before that the payment of all Tithes had commonly beene omitted Pag. 207. Animad 6 But that this Grant was of the tenth part of Lands not of Tithes properly besides the words of the Charters which doe naturally beare that sense Obserue these Reasons and authorities First Etheluph could not giue that first which was giuen before But Ethelbert and his Parliament gaue them vpon the preaching of Augustine the Monke aboue 200. yeeres before as I haue produced in the beginning of this Chapter King Offa of Mercland grants them in subscribing to the Councell before Pag. 201. as also Aelfwold King of Northumberland when hee and his Nobles and people to whom the Canon was proposed Se in omnibus custodire deuouerunt Pag. 200. Whence also a second reason doeth proceed since those Kings gaue Tithes properly and that not onely themselues but also in their subiects and so should giue more then Etheluph who gaue but this Decima of his owne land of inheritance which may appeare for that he passeth it onely per Regium Chirographum by his royall Charter alone and no Act of Parliament and De omni possessione sua saith Ethelwerd and by the word hereditariam in the Charter and in his Testament in Florence of Worcester and by some other coniectures But Ethelulph in this Graunt is magnified as doing some Extraordinarie thing for therefore King Edgar in his Oration to the Clergie relating the bountie of his Ancestours to the Church Alred Rhieuall in Biblioth Patr. Tom. 13. p. 154. saith Proanus meus vt scit is totam terram suam Ecclesiis Monasteriis decimauit And Malmesburiensis de gestis Pontificum lib. 2. pag. 242. saith Tum vero palam erat quod eum spiritualis Philosophia docuisset dum magis famulorum Dei quam suis vtilitatibus prospiciens omne Regnum suum Deo decimaret In this appeared the fruit of his Monastick profession in that he gaue this And in commendation heereof write many other Therefore this was more then Tythes Thirdly Ethelulph neede not haue asked the consent of his Bishops and Nobles to giue Tythes out of his owne lands though it might seeme requisite to conuey so much land therefore it was some greater matter then Tythes Fourthly Ethelulph gaue such a Decima which was liable not onely to Taxes and Exactions of State then but also to that Trimoda necessitas of Pontis Extructio Expeditio arcis munitio But lands onely I suppose and not annuall profits were liable to such seruice Therefore his Charter was of Lands Besides fifthly against our Authour if then Ethelulph gaue the Tythes of praediall and mixt profits and the Tythe of euery mans personall possessions were at that time also included in the gift then how could there bee any newly consecrated Tythes after as out of Chartularies in his eleuenth chapter hee would proue since all were now giuen Sixtly If Monasteries and Nunneries for so the Charter and Edgars speach doe expresse at that time did not inioy Tythes then it is not probable he gaue them But in all his Historie he hath proposed none nay presupposeth none to haue bin long after that time no not annexed to Parish Churches Therefore he gaue them not But to passe from reason to authoritie Asser Meneuensis liued in Alfreds time the sonne of this Ethelulph De gestis Alfredi and was his Tutor He reâ—ateth it thuâ— Ethelulphus Rex decimam totiuÌ„s regni sui partem ab omni Regali seruitio tributo liberauit c. In the same wordes wherein Florence of Worcester and Houeden follow him and hee might best know the trueth and expresse it But let Ethelulph himselfe be his owne interpreter first in a Charter of his concerning land giuen to Diuma then Bishop of Rochester where the words are In Textu Roffens in chart Epise Roffens Ego Ethelwolfus Rex Occidentalium
not to seeme partiall I proceed Num. 4 In the next Section he gesseth at the Originall of Parish Churches to be in Lay Foundations Whereto 259. for the encouragement of the deuotion of the Founder the Bishops had reason not to bee vnwilling to restraine from the publike treasurie of the Diocese the offerings which out of that territorie was thither brought to the particular benefit of the Incumbent This is probable as before in the Originall of Parishes elsewhere But where he saith That both the limites and the persons that should repaire thither and offer there were assigned by the Founder they being his Tenants and Familie And that according to his Demesnes was the circuit of the Parish Animad 3 This doubtlesse is false For since that euen according to the Capitulars each Parish was to haue his Terminum de quibus Villis Decimas recipiant Limits of what Villages they must receiue Tythes and this by Imperiall command Surely this was in no countrey an Act of priuate Founders who had nothing to doe in the Execution of such commands but the Bishop had as before is prooued But is it likely that the Founders demesnes were limits of Parishes Then hence these improbabilities in this our Kingdome would arise 1. That in those Shires of equall extent where are fewest Parishes were the greatest Lords 2. That all land in a Parish must haue belonged to one Lord. 3. That Lordships should not extend to adioyning Parishes without the Parish to whose Church they are annexed should therein acknowledge the Founders Church for the Mother 4. That then no more Lords then Founders nay fewer because some Founders might and did build more Churches then one and Kings beeing generall Lords might build many 5. And lastly the ancient Churches before these Lay foundations they being not vntill the yeere 700. and yet for Diuine Seruice multiplyed must be thought pulled downe or else these Lay Founders must not haue the generall priuiledge But he that should confesse Churches built euery where for the conueniencie of assemblies as himselfe confesseth pag. 250. from the beginning of Christianitie might well imagine these to become Parochiall and for the particular exercise of the cure of soules that from stipendarie salaries wherein the Bishop had care imposed vpon him a restreined meanes issuing out of such territorie to be assigned by him who had assigned the people to his gouernment to be ordered and that was the Bishop The Founders dedicated such houses to God at the entreatie or by the consent of the Bishop more for deuotion then honour resigning vp all their right and renouncing all ciuill and naturall vse of the said place leauing in the hands of the Bishop Gods vicegerent in this businesse both the Fabricke and Dowrie to be disposed by him This in other Countreyes is manifest before ad pag. 83. He proceedeth to enquire the time 261. when these Lay foundations began and findeth none heere before the yeere 700. and that but one of Earle Puch in Beda Then in the yeere 800. many appropriate to Crowland and so after After 262 by occasion of the Law of Edgar he relateth of Mortuaries of the characters of a Parish Church to haue baptisterium and sepulturam Animad 4 Now because to make a Church Baptismall onely belonged to the Bishop in other countreys as in Concil in palat Vernis is before specified and the right of a buriall place did first belong to the Cathedrall Church as in Concil Tribur cap. 15. to whose assignation may you thinke the Churches and Parishes did belong For herein the custome of our kingdome and of others was not different And at last he confesseth that some Parishes haue had other beginning since from alterations made in regard of the inconueniences of the former limits and this by direction and authoritie both of the Popes and Bishops and he addeth from the King The example of this latter is how the King being requested by Ralph Neuill Bishop of Chichester 267. and Chancellour of England that the Church of Saint Peters in Chichester being poore and hauing but two Parishioners might be pulled downe and the two Parishioners be adioyned to another Parish there Animad 5 The King granteth it for that either he might be Patron and so haue a right of Pâ—tronage to the extinguishing whereof hee must needs consent or as King haue a consent to such actions wherein by Escheat or other casualtie the Patronage might haue reuerted vnto him or for that as at the foundation hee granted a leaue of Mortmaine so in the dissolution hee might giue leaue to any thing that might preiudice his former Acte and especially to the vnion of Parishes as to many Appropriations also his licence seemed necessary as appeareth by some Euidences in our Chartularies ANIMADVERSIONS on the tenth Chapter P. 269. NOw he commeth to shew the practise of Tithing And first the naturall practise of Pagans here Of Cedwalla before his conuersion in tithing the spoiles of war out of William of Malmesbury whose credit he would lessen because Beda not remembring the tithing maketh another relation The second of the Germane Saxons of tithing the tenth Slaue to be drowned Lib. 8. ep 6. out of Sidonius Apollinaris The story of Cedwalla and the difference of Beda and the Monke of Malmesbury enter him into a consideration how Decima in Tithing may signifie a greater or lesser proportion Concerning which he bringeth two examples P. 271. The first of King Athelstan who gaue to Saint Iohn of Beuerley foure Thraues of corne of euery ploughland which were payable before vnto the Kings Auenary by custome of the countrey And yet in a Bull of one of the Pope Gregories as hee supposeth the ninth this is called Decimae whereas they are too little to bee neere a Tenth Animad 1 In this and others I can onely guesse what is the meaning neither certainely knowing what quantitie of Land was a Ploughland or what number of sheaues was a Thraue nor whether they by composition receiued it nomine Decimae which is most probable in that it was according to the quantitie of Land not of increase whereas of a Ploughland but few acres might bee sowen and all were not to yeeld continually a greater Tithe due then foure Thraues Or whether by the name of a Bull so long after the Monkes intended a new occasion to enhanse the gift since by this authoritie they might pretend in the Donors mind it was in proportion to a Tithe If the words of the Bull had beene expressed other coniecture or answere might haue bene framed though from this example truely granted being but one no praeiudice may arise to the cause in hand vnlesse it had bene vsuaâ—l which he doeth not declare Yet one example more And that of one Robert de Hesel P. 272. to the Monasterie of Giseburne where hee giueth Duas garbas de Tota terra quam de Nouo colui in Territorio
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
sonnes of Abraham paid them or that thereby all had gained praemia aeterna or whence could he haue iustified it that the Apostles had ordained it Animad 8 If the Authour did not through the sides of this Bishop striue to shew his opposition against the Diuine right whereas he protesteth in the Preface of his booke that he writes not to oppose it he would neuer haue so needlesly opposed that in him which all that holde Tythes to be de Iure Diuino dare and doe defend it namely that all the Patriarchs and faithful did or ought to haue paid Tythes that obseruing this and the other Commandement they went to Heauen Let Concil Aquense ann 837. c. 18. be considered Quod Melchizedec Sacerdos Dei altissimi Typum gesserit Christi Catholica sentit Ecclesiae quod ei Abraham ex omnibus Decimas dedit ipsius Abrahae ingentia commendantur praeconia quem imitantur qui Sacerdotibus Christi ob illius honorem amorem decimas dant ab illius merito sequâ—strantur qui Deo oblatas Decimas auferunt That Melchizedek the Priest of the high God was a Type of Christ the Church knoweth Abraham for giuing Tythes of all is commended greatly whom they imitate who for the honour and loue of Christ paide Tythes to his Priests and they are separated from his merite who take them away They are the sonnes of Abraham that doe the workes of Abraham As for the Apostles their tradition and ordination how many of the ancient learned haue acknowledged vide Catalogum Pag. 473. The next passage is to disgrace the claiming of Tythes by a speech of Aimoinus in the life of Abbo where in the tumultuarie Councell of S. Denis cap. 9. the Monke in fauour of Abbo and his Couent relates how when the Bishops met secundum vulgare prouerbium cunctum suum sermonem ad Decimas verterunt Ecclesiarum Which is saith he they went from the matter Animad 9 And true indeed it was if their intention were the matter of consideration who were so farre from such consideration that the Monkes and Laytie who both enioyed the benefite of Tythes profanely assaulted and wounded the same Bishops And here in that it is said Laicis ac Deo seruientibus Monachis To Lay-men and Monkes seruing God he will not allow the distinct signification but rather conceiue them expositiué one of another and by both that Monkes who in their esteeme were accounted Lay-men were signified But then why is the disiunctiue put betweene Laicis ac Deo seruientibus Monachis Why doe they call them Lay whom they knew were of the Clergie So was Abbo himselfe cap. 6. a Priest and others of his Monasterie But the last words of the next Chapter before this doeth plainely manifest it since that Abbo himselfe in his Apologeticum doeth complaine of it Est etiam alius error grauissimus quo fertur Altare esse Episcopi Ecclesiam alterius cuiuslibet Domini cum ex domo consecrata Altari vnum quoddam fiat quod dicitur Ecclesia videte aequissimi Principes quo nos ducit cupiditas dum refrigescat charitas There is also another most grieuous errour whereby it is said that the Altar is the Bishops but the Church belongeth to another Lord whereas of a house consecrated and the Altar is one thing made which is called a Church See yee iust Princes whither couetousnesse leades vs when charitie is colde And out of these words who cannot collect Lay-Infeodations which yet to haue been our Authour is not willing to confesse and therefore admits that interpretation After this Hee reuieweth Infeodations Pag. 474. and would not admit them from the Church And therefore whereas Bertrandus de Argentrè brings this Argument If Infeodation of Tythes had not come from the Church then had the Tythes payed Tythes also to the Church by reason of the many Canons to pay Tythe of all Annuall increase Animad 10 This he answereth by supposing his owne paradoxe which neither Canonist nor Diuine will graunt him nor hee can proue though he call it the knowen beginning of Tythes created and consecrated to Monasteries by Lay-men for saith hee the same might be obiected against them so consecrated And if so consecrated and not Translated from Bishops or Churches so they might and ought But the New Creations forsooth as these Infeodations came from Churches And his answere is vaine grounding vpon that which being his owne inuention he should haue knowne to haue beene admitted before he had framed such a comparison And for that parte of the Argument that because of the Churches many Canons it is likely they should haue payed Tythes if not from the Church Hee strangely enueyeth against such Arguments as ridiculous and grosse and childish Which if the Canons were but words without penalties annext and all men must in charitie be thought disobedient and irregular then they might easily be contemned and an Argument from praeceptum ergo factum would be as weake as à posse ad esse But the Canons were otherwise and so should his censure and his answere haue bene Pag. 70. who should maintaine a lawfull practise and as hee boasteth allowed clearely by the Clergie or else ground all hee speakes vpon abuses which to make the consciences of men afraid of if they did alter is worse then deseruing such Titles Animaduersions on the last Chapter From thence I passe ouer to the last Chapter for the next is onely a defence of the Common Law which P. Blesensis calleth Consuetudinarium Seculare ius Ep. 25. and the Eight is the historie of William the Conquerour and a defence of the language of the Common Law which is so contemptible among the many pettielazie ignorants And in the last Chapter is an honest passage from the ground before of Arbitrary Consecrations against Impropriations but the danger thereof I haue before discouered and a compassionate consideration vpon the manner of the Dissolution in Henry the eight his time to which he addeth Rodericke Mors his complaint to the Parliament which is in his 14. Chapter of that Treatise P. 488. c. But his Conclusion is a passage of odious consequence That the payment of Tithes in these last 400. yeeres grew more regarded by how much the Decretalls and Canons grew most dreadfull to Princes and subiect to vrge this on to a continuall practise and that with execution of the reigning Censures of the Church And that the insolencie of the Pope and Clergie put these Canons and Decretalls more in execution Animaduersio The ill Sequele of this in the conceipt of those who in hate to the Church of Romes practise and Decretall authoritie especially growing insolent will bee glad to make conscience of their gaine who cannot consider when some froward praecise Atheist can say This exaction of Tithes proceeded from Romes insolencie Therefore let vs goe out of Babylon say they and wee le pay none But
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
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
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. 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