this time that of S. Gregorie where he admonishes the hallowing of Lent consisting of six weeks out of which the Sundayes being taken XXXVI dayes remain for the Tenth part of the yeer fractions of dayes omitted this Tenth of time he would haue vs giue to God vt in lege iubemur as his words are Domino Decimam rerum dare V. Some Canons both Pontificiall and Synodall made for the right and paiment of Tithes are attributed to the ages that fall about the midle of this time But I haue not obserud aboue one that is of any credit as referd hither neither was that euer receiud into the bodie or any old Code of the Canons That one is Prouinciall and made in the yeer D.LXXXVI in the Councell of Mascon a Bishoprique in the Diocesse of Lions where all the Bishops of King Guntherams Kingdom being present speak of reforming Ecclesiasticall customs according to an ancient example and then begin with Leges Diuinae consulentes Sacerdotibus ac Ministris Ecclesiarum pro haereditaria portione omni populo praecaeperunt Decimas fructuum suorum locis sacris praestare vt nullo labore impediti per res illegitimas spiritualibus possint vacare Ministerijs quas leges Christianorum congeries longis temporibus custodiuit intemeratas Vnde statuimus vt Decimas Ecclesiasticas omnis populus inferat quibus Sacerdotes aut in pauperum vsum aut in captiuorum redemptionem erogatis suis orationibus pacem populo ac salutem impetrent Here is no small testimonie aswell of ancient Practice in paying of them as of great Opinion for their being due But although the whole Councell hath to this day remaind with the subscriptions of the Bishops to it yet whateuer the cause was not so much as any Canon of it is found mentioned as of receiud authoritie in any of the more ancient Compilers of Synodall decrees notwithstanding that the fullest of them I meane Isidore liud long after this Councell held and hath some other Synods of the Continent of France as of Orleans of Arles of Agatha But this he mentions not The first that published it was Frier Crab in his Edition of the Councels vnder Charles the fift Yet also in some that collected the Canons since Isidore Decrees of elder time then that is are to this purpose spoken of as you may see in Iuo at the end of a Decretall of Gelasius that was Pope in the yeer CCCC XCII where these words are annext Decimas iusto ordine non tantum nobis sed maioribus nostris visum est plebibus tantum vbi sacrosancta dantur baptismata deberi This stands continued with the rest of Gelasius in the print But in an old and very fair Copie neer as ancient as Iuo remaining in the Librarie at Pauls these words begin with a coloured capitall as a seuerall Paragraph and indeed are not Gelasius his but Pope Leo's the fourth who liued aboue CCC.L. yeers after that appears plainly out of the Epistle of Gelasius whereto they are annext which Gratian hath in all sauing this according to Iuo yet cites this passage in another place by it selfe out of that Leo from whom also 't is likewise taken by Anselm and Gregorius Presbyter who haue in their collections the rest of Gelasius his Epistle according to Iuo as it is noted to the Text publisht by command of Gregory the thirteenth And in those Decrees of Gelasius that are extant touching the Church-treasurie or reuenue no mention is of other then of redditus Ecclesiae oblationes fidelium A like falshood is committed by them that attribute a Prouinciall Constitution touching the distribution of Tithes amongst the Bishops and inferior Ministers to the first Councell of Orleans held in the yeer D.VII. and that by finding som words to this purpose added to a Canon which in the printed Iuo hath a marginall reference to some Councell of Orleans It is most certain that the first Councel of Orleans hath no word of Tithes in it but speaks of the distribution only of such things as in Altario oblatione fidelium conferuntur and possessions of other like kind of Church-lands and according to that Burchard and Gratian cite it who haue also those words that Iuo there hath excepting only that of Tithes And some other Prouincials of the same place and age to the same purpose speake afterward of oblationes facultates but not a word of Tithes All which shews plainly that no such matter was euer in the first Councell of Orleans The truth is also that Iuo himself cites it not out of any Councell of Orleans but from I know not what Councell of Toledo as his Ms. copie is and as it is truly publisht in the printed book all that directs to the Councell of Orleans there being only the marginall note of du Molin a Canonist of Louain that set it forth But neither any of Orleans or Toledo hath it all as he relates it The truth is that Canon of his is made vp out of two Councels indeed the first of Orleans and the ninth of Toledo and agrees well with both sauing for so much as is expresly spoken of Tithes That which in those two had been ordaind for Offerings and other reuenues of the Church he not vnfitly applies to Tithes being a more known part of that reuenue in his time and thither draws also an old Councell of Rome as if it had spoken expresly of them writes all in no other syllables then Burchard had before deliuered with a like title of ex Concilio Toletano But this excuses not those which make the words of such a collection out of two or three old Councels applied to a later time to go for a Canon of any one of them Many such are occuring in Burchard and Iuo epecially and some in Gratian which are noted vpon their credits and in some editions placed in the times to which they attribute them licet forsan falso tali sint Pontifici vel certè tali Concilio per scriptorum incuriam adscripti as Frier Crab well admonishes A like falshood is in attributing out of the same Iuo an expresse Canon for the payment of first Fruits and Tenths to the Prouinciall Synod of Siuill held in the yeer D.CX. in these words Omnes primitias Decimas tam de pecoribus quà m de frugibus diues simul pauper Ecclesijs suis rectè offerant and a litle after Omnis rusticus artifex quisque de negotio iustam Decimationem faciat and then Si quis autem haec omnia non Decimauerit praedo Dei est fur latro maledicta quae intulit Dominus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Cain non recte diuidenti congeruntur There is litle reason to doubt but that the reference of that Canon in him to that Councell of Siuill is false The Councell of that yeer and place is
draw it to a different sense and oppose it against the right of all feudall Tithes being ancienter then the Councell and since passed ouer into Lay hands And whereas they commonly suppose that all these ancient feudall Tithes were at first spirituall and transferred from Church-men at the request of Princes into Lay hands and since wrongfully detained surely it is an error neither is there any ancient warrant sufficient for it many of them were doubtlesse created by Lay mens Grants as Rents-charge Estouers Turbaries and the like are Who can doubt of it that obserues but alone this Canon Prohibemus Whence also may be strongly inferd that the greater number of Infeudations were through Grants made by Lay men to Lay men as Consecrations were at their pleasure made to Churches for what is there only forbidden by the Councell may be thought the greatest and most preiudiciall practice of the time against the profit of the Clergie Neither is any prouision there made against the other kind of Infeudations which passe Tithes from Church-men And although the words Ecclesiae non reddiderit in the Canon and in the bodie of the same Councell in Roger of Houeden seeme to suppose as if it had been made for such Tithes as had been taken from the Church yet indeed the truer reading is tradiderit as appears in the bodie of that Councell first fully publisht out of the Vatican in the last Tome of the Generall Councells printed at Rome by command of the present Pope Paul the fift wherewith agrees other Editions but of lesse authoritie And perhaps also some old Infeodations were made by Lay Patrons in the vacancie of their Churches by the same challenged right as they alone made Appropriations For as by our common Law the Patron and the Bishop may in the time of vacancie dispose of the Endowments as by the Canon Law also if the Chapters consent or the Popes be had so in those elder times vpon equall reason when the Patron had the only disposition and interest of the Church as is alreadie shewd he alone sometimes granted any part at his choise it seems to Lay or Clergie men Why not any part as well as all And that Patrons granted whole Churches into Lay hands appears by diuers passages in Flodoards Rhemish historie by that before cited out of Damian and by the generall Councell of Lateran vnder Innocent the second where it is ordained that they should be restored from the Lay men to the disposition of the Bishops And an example is extant among the Records of the Monasterie of Egmond in Holland wherein Charles King of France who is commonly therein taken for Charles the Bald but Douza thinks it to be rather Charles the Simple and made about D.CCCC. and is thereto perswaded by Synchronisme the best triall of such truths recites that Hagano one of his Nobles humbly requested of him for Thierry the first Earle of Holland quasdam res Ecclesiam videlicet Hecmunde cum omnibus ad eam iure pertinentibus à loco qui dicitur Zwtherdes Haghe vsque ad Fortrapa Kinnâ—m c. Which by patent hee grants him in fee vt libere haec omnia teneat atque possideat habeat que de his potestatem iuxta libitum suum ordinandi seu saciendi If the Church it selfe of Egmund the Parish Church for it was then no Abbey but afterward made one by that Thierry passed not by this patent into Lay hands I sufficiently vnderstand it not neither is it spoken of but as what might according to the vse of that time be cleerly made a Lay fee. Through these kind of Grants practiced both by Lay Clergie men Princes and priuat persons the ancient Infeodations of Tithes had their originall as well as by Leases from the Church and not by imposition of Tenths by Princes as some haue ignorantly coniectured although also it be certaine that Princes sometimes ioyned with the Bishops to bring in the payment of Tithes that thereby themselues might haue beneficiall Infeodations of them from the Church But as Princes made Infeodations out of their owne Demesnes or their owne Churches so other priuat Lay Persons And the Clergie sometimes of Tithes alreadie vested in them and sometimes it seems out of their Demesnes And perhaps especially religious persons exempted from payment by Bulls made some out of their owne Demesnes as may be coniectured out of a Decree of Pope Alexander the fourth that speaks particularly of Infeodations made à religiosis exemptis alijs And for example of Tithes alreadie possessed and thus granted by the Church you may specially see that of Engelbert Count of Goritz who had an Infeodation anciently from the Church of Trieste in the Patriarchat of Aquilegia and Henrie Count of Ratzenbourg had an Infeodation of all the Tithes which were paid to the Church in his Territorie from the Bishop of Oldenbourg so one Hildeward had one in the Diocese of Hamborough and surrenderd it to Baldwin Archbishop there about M.C.LXXIV But examples of them were very many the dissike whereof was one speciall cause pretended by those of the Deserts of Wagria in Holst about M.C.LXX. why they would pay no Tithes Praeterea sayes Krantzius hoc adiecerunt non multùm a veritate aberrantes quòd omnes paenè Decimae in luxus cesserint hominum saecularium To these testimonies of Lay mens arbitrarie detaining disposing or receiuing of Tithes in those elder ages you may adde Bernardus Morlanensis an English Monke of Clugny about King Stephen his complaint of non-payment to the Clergie thus speaks he in his affected forme of Verses Rusticus hordea mittit in horrea farra recondit Horrea grandia vasa capacia multaque condit Nec pecus aut sata dante Deo data vult Decimare Nec sacra portio nec Decimatio redditur arae V. The like libertie as Lay men had enioied in not subiecting themselues to the payment of Tithes according to the Laws of the Church but bestowing or retaining them at their own wills in most places euen from the beginning of Christianitie vntill about the yeer M.CC. was another way purchased for some time by religious houses so to discharge themselues of censure of the Canons and that by Exemptions or Papall priuilege For howeuer the Laitie iustified themselues by their secular right admitting of Canons that toucht their estates but as they saw cause in their own iudgments yet Religious persons who were alwayes of the Pontificiall side and reckond in the Catalogue of the Clergie and possessed diuers large Territories durst not so oppose what was ordaind either by decree at Rome or in Synods Generall or Prouinciall Therefore when from the beginning of this Age both Doctrine and Canons of which more presently had made the dutie of Tithes of a known right among the Clergie Clergie men became somwhat strict obseruers of the payment as you see plainly in that before
cited out of Godfrey Abbot of Vendosme with whom Peeter Abbot of Clugny agrees And although Canons be in Burchard Iuo and Gratian referd to I know not what ancient Councell of Chalons or Mentz whereby Lands occupyed by Bishops or Abbots seem to be discharged according to which also another Decree is found in the Vatican annext to some Councels of Pope Vrban the second yet it seems by the autoritie of those Abbots and other testimonie that they were not practiced as Church Laws But what some of the Clergie durst not do for the Canons they had licence for by Exemptions from the Pope And beside those other Canons from Paschal the second about M.C. there was granted to all religious persons a speciall discharge from Tithes but it seems also that this Exemption soon took not force in execution for it was made diuers yeers before those two Abbots wrote and if I vnderstand them expresly affirmd the common practice of the contrarie And in an instrument of composition twixt the Templars and Praemonstratenses in the yeer M.C.XLII one speciall article was that Nullus in vtroque ordine alter ab altero tam de nutrimentis quam de laboribus Decimas exiget vel accipiet whence some inference might be that no cleer exemption preceded at least in force and practice for both But howeuer afterward about M.C.L. most of all the religious Orders were exempted by Pontificiall priuilege from payment out of possessions kept in their owne occupation which Pope Hadrian the fourth about that time restraind to the Cistercians Templars and Hospitalars and decreed that all other religious Orders should pay Tithe of whatsoeuer encrease they had in their own occupation sauing of new Improuements by culture of pasture for their Cattell and of Garden fruits But neither were they by these exemptions freed from payment of Tithes which were taught due only by common right to the Church They were discharged also from such as had formerly been consecrated out of their possessions by their Founders or Benefactors to other Churches ouer which also the Pope challenged supreme autoritie in disposition of their Reuenues But the Laytie would not permit such exemptions to extend to their Infeodations Milites Galliarum sayes Peeter of Blois speaking of the Cistercians sibi ius Decimationis vsurpant nec vestris priuilegijs deferentes eas à vobis potenter extorquent But that of those three Orders was afterward in the yeer M.CC.XV. in the generall Councell of Lateran limited to such Lands as they had before that Councell purchased where obserue by the way that Exemptions were then chiefly allowd to two Orders which are not properly to be reckond amongst any part of the Clergie or Ecclesiastique persons For the Templars and Hospitalars were deuout Souldiers only neither could they iustifie their enioying of tithes either through exemption from the Pope or consecrations from the Laytie by the reasons which other Cloister Monks vsed Their prayers or deuotions in priuat were not the seruices expected from them in the Church but their swords and valour only gaue the desert as at this day may be truly affirmed of the Hospitalars or Knights of St. Iohns of Hierusalem which being now as in those ancient times they were only Souldiers of the Church haue therefore been diuers times lately adiudged in the Court of Aides in Paris to be no part of the Clergie But also by the succeeding Popes other like priuileges were granted to Bishops Abbots and at their pleasure But of the Practice of these CCCC yeers thus much VI. Of the Opinions left in the moniments of the Clergy both touching the Right of tithes and those Practices next briefly Very frequent are the testimonies in the old Councels of about the beginning of these CCCC yeers in which Tithes are spoken oâ— as due generally by Gods Ordinance as Decimas Deo dari omnino non negligatur quas Deus sibi dari constituit quia timendum est vt quisquis Deo debitum suum abstrahit ne forte Deus per peccatum suum auferat ei necessaria sua which occurres in the Prouinciall Councell of Mentz held in DCCC.XIII and is iterated in some other succeeding of the same Prouince in the Capitularies And it is ordinarily grounded vpon the Leuiticall Laws which are obuiously cited for the right of Tithes in the very syllables of Moses but somtimes also on Abrahams Iacobs examples as in Walafrid Strabo that liud about DCCC.XL whose words are Decimas Deo Sacerdotibus Dâ—i dandas Abraham factis Iacob promissis insinuat deinde lex statuit omnes Doctores sancti commemorant the self same being referd also to one of the Councels of Mentz of those times And res Dominicae and Dominica substantia and Dei census and the like are the attributes giuen to Tithes by the ancients of this age which also they stile patrimonia pauperum and Tributa egentium animarum and Stipendia pauperum hospitum peregrinum whence also the Clergie was not to vse them quasi suis sed quasi commendatis as the words are of the Councell of Nantes held about the former part of these CCCC yeers And Pope Alexander the third in an Epistle to the Archbishop of Rheimes sayes non ab hominibus sed ab ipso Deo sunt institutae and in another to the Bishop of Amiens he calls them Sanctuarium and Caelestin the third Fidelis homo de omnibus quae licite potest acquirere Decimas erogare tenetur after him Innocent the third Decimas Deus in signum vniuersalis dominij sibi reddi praecepit suas esse Decimas primitias asseuerans and his generall Councell of Lateran agrees with him and it appears that S. Vlrique Bishop of Auspurg about the yeer DCCCC L in his Visitations had especially this article of inquirie Si Decimas recte darent which shews his opinion that they were generally due With these take the autoritie of the Poenitentials exercised by the Clergie in that Age by which strict examination was to be made at Shrifts whether the penitent had paid all kind of Tithes in these words Hast thou at any time neglected to pay thy Tenths to God which God himselfe hath ordained to be giuen him or if thou hast done so or consented to the defrauding of the Church therein first restore to God four-fold and then must thou suffer penance with bread and water only for twentie dayes So it is deliuerd in Burchard Bishop of Wormes that collected the Canons about the yeer M. Neither was any difference in the nature of the encrease by the common opinion of this time The tenth of all aswell of all kind of Personall as Prediall was taught due Neither find I any man in this Age that by Doctrine expresly opposed any of this sauing only that French Leutardus who about the
Pope Damasus ancienter then that attributed to Pope Nicholas the second Praecipimus saies he vt Decimae primitiae seu oblationes viuorum mortuorum Ecclesijs Dei fideliter reddantur à Laicis vt in dispositione Episcoporum sint quas qui retinuerint a Sanctae Ecclesiae communione separentur The selfe same words are also vnder the name of his next successor Alexander the second That of Pope Leo the fourth about the yeer DCCC.L. De Decimis iusto ordine non tantum nobis sed etiam maioribus nostris visum est plebibus tantùm vbi sacrosancta baptismata dantur debere dari may be reckond for a Canon for the right of Tithes if you will but it seems rather it was at first a Declaration of an opinion then a Constitution But both the other and that with diuers passages also out of S. Augustine S. Ambrose and others and those old Prouinciall Councels that make for the generall right of Tithes were confirmed for generall Canon Law in Gratians Concordia discordantium Canonum by Pope Eugenius the third in the yeer M.C.LI. or presently after for howeuer some Canonists ignorantly otherwise place the Collection of that first part of the bodie of the Canon Law it is most plain that it was in that yeer collected by him which is best iustified by a most ancient copie of it writen before the Paleae were inserted and remaining in the Vatican with this inscription Decretum Gratiani Monachi Sancti Faelicis Bononiensis Ordinis sancti Benedicti compilatum in dicto Monasterio Anno Domini millesimo centesimo quinquagesimo primo tempore Eugenij Papae Tertij enough other testimonie is of it And in the Councell of Cleremont held in M.XCV. by Pope Vrban the second it was decreed Ne laici Decimam partem de laboribus suis retineant some other passages of Popes are about that time against the selling of Tithes which they call Simonie And in C· 16. q. 7. c. 1. after the passage of Gregorie the seuenth before cited out of his Councel of Rome against feudall tithes these words follow as if he had continued them Oportet autem congruentiùs nos Decimas primitias quas iure Sacerdotum esse sancimus ab omni populo accipere c. which comprehend in them a Constitution but neither these or any of the rest that follow there are in that Councell of Gregorie neither find I whence Gratian had them But an Epistle of that Gregorie is extant wherein among other admonitions to some Princes of Spain after such time as the profession of Christianitie there was purged of some Gothique corruption by a Councell held vnder Richard Abbot of Marseilles the Popes Legat in MLXXVI so I vnderstand that reference made in the Epistle to a kind of new conuersion to the Faith he perswades them Decimas quae ad vsum tam ipsorum quam Ecclesiarum pauperum proficiant dare totique regno indicere Quod quidem nulli debet graue videri pro meliori parte videlicet semper victurâ animâ quemque decimam Deo offerre cum pro morituro corpore plurimae gentes coniugibus suis tertiam rerum legibus compellantur exsoluere He admonishes you see and perswades but commands not He thought not it seemes his own power great enough to haue had effect in disposition of a Tenth part of euery mans reuenue and therefore abstaind from command neither could he haue pretended the autoritie of any Law or Canon generally receiued into practice for neither in his time nor long after till about MCC were Tithes so generally paid as since without speciall Grant or Consecration as is sufficiently shewed neither had any Generall Councell as yet once remembred the Dutie or the name of Tenths The first of the Generall Councels that mentions them is the Ninth that is that of Lateran held vnder Calixtus the second about M.C.XIX. extant in the Vatican and first publisht in the late Edition of the Greek Generall Councels printed at Rome by autoritie of the present Pope Paul the fift and now newly inserted into Binius his last Edition But they are there spoken of only as they were receiud by speciall Consecrations and in the Generall Councell of Lateran held in M.C.XXX. vnder Innocent the second feudall Tithes are in the same syllables mentioned as in the Decree of Gregorie the seuenth before cited out of the Councell of Rome And this also taken out of the Vatican is to be found only in those two late and fullest Editions But of the Generall Councels before that Edition at Rome ordinarily known and read the first that names Tithes is the Eleuenth that was held vnder Alexander the third in M.C.LXXX. But there Infeodations of them into Lay hands and Consecrations or arbitrarie Conueyances of them to Religious Houses without assent of the Bishop are only forbidden Neither was any Canon of a Generall Councell as yet found that purposely commanded payment of them nor any that expressely supposed them a dutie of common right before that of Lateran in the yeere M.CC.XV. held vnder Pope Innocent the third about which time Ecclesiasticall Autoritie became more powerfull the Canons were more receiud into practice that before were litle especially herein obeyed and Parochiall right to Tithes grew to be more established whereof more in the next and last part of our generall Diuision and in the English practice But if that Canon in the Lateran Councell held vnder Alexander the third against arbitrarie Consecrations of Tithes without assent of the Bishop might be vnderstood literally and of new Tithes so created neither is any thing in the Councell that denies that to be the meaning of it then needed wee not perhaps seek further for the cause of that Assertion amongst our common Lawiers That before the Councell of Lateran euery man might haue giuen his Tithes to what Church hee would Who euer obserues the practice of the preceding time only and the words both of that Councell and to the same purpose of the other held vnder Calixtus the second may well enough be perswaded that the intent of those Canons were no otherwise But in regard wee find that Canon of Lateran vnder Alexander the third to bee differently interpreted by Innocent the third within twentie or thirtie yeeres after the making of it and vnderstood only of Feudall Tithes formerly granted out from the Church into Lay hands according as the Canonists after him also take it we cannot be altogether so secure of that other interpretation In Lateranensi Concilio saith Innocent meaning that vnder Alexander the third est inhibitum ne quaelibet Religiosa persona Ecclesias Decimas de manibus Laicorum sine consensu Episcoporum recipiat per quod indirectè datur intelligi quòd sufficit consensus Episcopi vt licitum Ecclesiae sit Decimas de manibus recipere Laicorum Hoc autem de illis Decimis intelligimus quae
their children also and in the gouernment of the King that was declared by Samuel it is said He will take the tenth of your Vineyards and giue it to his chiefe Seruants and to his Officers But where shall you find the least mention of Infeodations made of such kind of Tenths or any touch of them in the complaints of the Clergie against Infeodations and withall nothing hath beene of lesse practice then giuing away in perpetuall right any such reuenue due to any Crowne or State only by speciall right of Supreme Maiestie But admit these had their originall this way or any other as you will vnlesse they can be proud to haue been made of the verie selfe same Tithe which is due to the ministring Priesthood which can neuer been downe sauing only where the infeodated Tithe was at first receiud and possessest by the Church by force of the Law of Tithing not by arbitrary Consecration in which case also it is considerable whether a Lay man could be at all capable of the fructus only of them if due by an immediat expresse Law of God I see not how they shuld more preuent Parochial paiment to the ministring Priest then the paiment of rents in Terragies or quantities in Corn vnder the name of tiths to landâ—ards shuld diminish the right of the spirituall Tithe which way had either such a fift as was Pharohs or the tenth spoken of by Samuel to be taken by the King touched the Tithe due by a superior or former law to the Leuitical Priesthood both might wel haue stood together might not so nay should not so Tithes remain paiable froÌ„ the possessors of the nine parts to the Euangelical Priesthood notwithstanding infeodations or any reseruations whatsoeuer if they be due by a superior or former Laws especially if due by the Morall Law and that Law should bee vrged rather against the Tenants of the Land then against the Pernors of the feudall Tithes And that common distinction of the Canonists of ius percipiendi fructus Decimarum here is a mere shift and nothing satisfies vnlesse they could also teach vs how the fructus were the verie selfe same alwaies in Infeodations and that they were deriued from a ius percipiendi in some Clergie man Perhaps too much of these things which are litle or nothing applicable to England where we haue scarce any example of a Tithe that was in its nature feodall other then in such as were taken from Monasteries by the Statuts of Dissolution and may still be calld as originally by the name of Consecrated or Appropriated Tithes although now Infeodated But thereof see the XIII Chapter To the 5. § that speaks of Exemptions for matter of story may be added that of the Hospitalars After their exemptions giuen them with the two other Orders about the yeer MCLX. in the Eastern parts they tam Domino Patriarchae quam caeteris Ecclesiarum Praelatis multas tam super Parochiali iure quam super iure Decimationum caeperunt inferre molestas c. and receiud such as were excommunicat for non-paiment of them De praedijs autem suis vniuersis redditibus quocunque iure ad eos deuolutis omninò Decimas negabant Where by the way note that in this Eastern Church which after Hierusalem was recouered and made a Kingdome subiect to Western Princes should haue been fashiond according to the Canons of the Western Church Tithes were now appointed paiable although no authentike Law of that old Eastern Church once mentions them But both in this and other things the people of that Church were stil notwithstanding the new Kingdome of Hierusalem possessed by Europians and the Popes authority extended to them most obstinate refractarie against the policie and Institutions offerd them either in command or example from the Western After the Opinions of the age in the 6. § the Laws both Imperiall Prouinciall and Pontificiall follow in the 7. vpon which let it bee considerd whether a consecration of Tithes were so made by the power and law of the Church and Common wealth or both in seuerall Territories according to the Laws extended that no prophanation or detaining them or any part of them might afterwards be lawfull and the like should be carefully thought on in the 1. § of the VII Chapter and in the VIII Chapter which hath the Lawes of England for the same purpose The force of the words of all those Laws the Autoritie that made them and the Territories to which they were extended are especially to be obserud by euerie one that here looks after humane positiue Law For manie talke and write of that and tell vs here of ius Ecclesiasticum at least if they faile in their Arguments from Ius diuinum but whence that Ius Ecclesiasticum is and where or when made they little enough know For what hath a Prouinciall Councell of one Nation to doe with another What hath the Imperialls of the old French Empire to doe with England Nay what hath the Popes Decrees to do here But because there was a time when their autority was more largely acknowledged their Decrees that bred much of what now iustly continues in some States which also iustly now denie their autoritie remaine most obseruable and wee haue giuen them in their places Of the VII Chapter IN the last CCCC yeers beside the establishment of Parochiall right in Tithes and the various Opinions touching the immediat Law whereby they are due the Practice of most Christian Nations as it might be had out of their Laws and Lawiers is faithfully related And to what is there brought adde that of the Law of France wherby the right of the Tithe of all the Minesis claimd by the King as a droit de Souerainte according as it is declard by two Edicts published of Charles the IX and verified also by the Parlament of Paris according also the old Imperiall Law was But through all here you may see that the Customes Statutes and Common Laws especially of France Italie and Spaine and of most other if not all States permit not so fauourably for the Clergie an exaction of them or suite to be so generally brought for them as the Laws of England did before the Statutes of Dissolution of Monasteries and still do if you exempt those cases which are founded only vpon those Statutes What Statute or practice is in this Kingdome that equals the Carolines of Spaine or the Philippine of France which are generall Laws for Customes quatenus Customes de non Decimando And whereas England vntill the Dissolution had scarce a continuing Infeodation into lay hands of which see the XIII Chapter nor could a lay man by the common Law before the Dissolution make any title to Tithes as to lay inheritances in other Nations Tithes infeodated haue been from aboue D. almost DC yeers frequent in vse and still continue legally in lay hands and are subiect wholly to Secular Iurisdiction as
extant whole in diuers editions as it was certified by eight Bishops which were at it and in that no taste is of any such matter The old Ms. copie of Iuo of or very neer his time in the Librarie of Pauls hath it ex Concilio Spanensi the printed book being ex Concilio Hispalensi what Spanensi is I know not if it were Spalensi it were the same with Hispalensi for which Spalensi is alwaies in Isidores Councels as Spania is somtimes anciently for Hispania what euer he meant by it cleerly the whole Canon is of much later time the first words of it also being nothing but the syllables of one of Charlemains Laws that was not made till DCC.LXXX yeers from Christ. that is Vnicuique Ecclesiae mansus integer absque vllo seruitio attribuatur where Mansus is for a Farme or dwelling place in the same sense as at this day Manse is vsed in the Laws of Scotland Some others like these occurring are mistaken and you may obserue that Gratian more warily abstaind from vsing such Canons mistitled among which also from these But the lesse falshood is to be imputed to Iuo in regard that Burchard before him had almost all his syllables from whom hee transcribed yet that excuses not his negligence committed in not carefully examining his autor which often causes grosse impostures sometimes proceeding from malice somtimes from ignorance to be receiued as perfit truth especially by those that cite without more regard Prouinciall Synods absolutly there mentioned for the first of that name when indeed they are often of farre later time Slothful Readers are soon so deceiued But among the known and cerain moniments of truth till about the end of this CCCC yeers no Law Pontificall or Synodall saning that of Mascon determins or commands any thing concerning Tents although very many are which speaking purposely and larely of Church Reuenues Oblations and such like could not haue been silent of them if that quantitie had been then establisht for a certain dutie· You may see enough in those to which the margin refers you all made in this part of our diuision none vsing other words to this purpose then facultates praedia 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 oblationes vota fidelium res Ecclesiae delegatae or collatae and the like as the phrases are in the other first CCCC yeers some of which kind yet the Canonists and others in Prouinciall Synods haue in the later ages compiling their Decrees made to serue as if they had expresly named Tithes as you may see in that example rememberd before out of Iuo and Burchard in that of the Councell of Gangra in C. 16. q. 1. c. 57. in Canonibus in that of the 29 Chapter of Gelasius his Decree in the Councell of Tribur held DCCC.XC cap. 13 in that of the first Oecumenicall Councell of Chalcedon cap. 17. in c. 14. of the same Synod of Tribur and in that of the ninth Councell of Toledo in an old Councell of Cologne hee that reads those old Canons only as they are so applied in late autoritie to Tithes might perhaps soone think that at first they were made specially and by name for them The matter is plainly otherwise what was ordaind in them about Oblations is out of them in later times Tithes and Oblations being then supposed of equall right expresly extended also to Tithes the word Oblations as you see in those times being vsuall for Tithes also when they were giuen and offerre Decimas was the common phrase for to giue Tithes About the end of these yeers in a Prouincial Synod held at Friuli in D. CC.XCI vnder Paulinus Patriarch of Aquilegia the words are De Decimis verò vel primitijs saluis scilicet allegoricarum rerum mysticis Sacramentis nihil meliùs puto dicere quà m quod scriptum est in Malachia Propheta dicente Domino inferte omnem Decimam in horreum meum c. and vpon that place the supposition of the dutie being grounded a Commination is added Quis non timeat vel contremiscat illam maledictionem quam minatur nolentibus offerre The opinion of the Synod is here plainly seen and it is rather a declaration by Doctrine then a constitution by Precept VI. But howeuer either this of Friuli or that before cited of Mascon had their Prouinciall authoritie no Canon as yet was receiued in the Church generally as a binding Law for payment of any certain quantitie which not only appears in that we find none such now remaining but also is confirmd by the testimonie of a great and learned French Bishop in whose Prouince also Mascon was that could not be ignorant of the receiud Law of his time Hee liud and wrote very neere the end of this first foure hundred yeers I thinke in the very beginning of the next And in a Treatise about the dispensation of Church reuenues expresly denies that before his time any Synod or generall doctrine of the Church had determind or ordaind any thing touching the quantitie that should be giuen either for maintenance or building of Churches Because his words are speciall autoritie also against those counterfeit titles of Canons before spoken of they shall haue place here Iam verò saith he de Donandis rebus ordinandis Ecclesijs nihil vnquam in Synodis constitutum est nihil à sanctis patribus publicè praedicatum Nulla enim compulit necessitas feruente vbique religiosa deuotione amore illustrandi Ecclesias vltrò aestuante c. This Autor is Agobard Bishop of Lions very learned and of great iudgement and had not so confidently denied what you see hee doth if any Decree Canon or Councell generally receiud had before his time commanded the payment or offering of any certain part How the autoritie of that Councell of Mascon stands with his meaning I well conceiue not But cleerly hee speaks truth in regard of what was generally receiud For neither in the Codex Ecclesiae vniuersalis or the Codex Ecclesiae Romanae or Africanae Fulgentius Ferrandus Cresconius or Isidores collection all which in those elder ages were as parts of the body of the Canon Law is once any mention of the name of Tenths And indeed that Councell of Mascon with all other Church-Laws in France lay a long while neglected before Agobards time as in the age of our fathers that of Mascon likewise did Yet withall no doubt can be made but that in most Churches in this time amongst the offerings of those of the deuouter sort Tenths or greater parts of their annuall increase were giuen according to the doctrine of those Fathers before mentioned and those other testimonies Whereto you may adde that complaint of Boniface Archbishop of Mentz about D.CCL. against the Clergie Lac lanas sayes he ouium Christi oblationibus quotidianis ac Decimis fidelium suscipiunt curam gregis Domini deponunt And in an Exhortation writen neer D.CCCC. yeers since
Laicis in feudum perpetuò sunt concessae But we must take it vpon his word only and the credit of the following Canonists that the Canon was so to be vnderstood They may as they will vnderstand it by iudiciall application but you may at least doubt still that the Historicall vnderstanding of it is to be had out of arbitrarie Consecrations before practiced And it was euen equall to ordaine that Lay men should not arbitrarily consecrate and that they should not consecrate without assent of the Bishop euery Bishop I think being supposed a carefull obseruer of the former Canons which would haue induced parochiall right to Tithes and generall payment So that what in this kind might not be done without his assent was conceiud as likely to be neuer done to the Churches preiudice Let euerie able reader iudge here but let him not be much swayed with the rable of late Canonists that goe away cleer with this of Pope Innocent When the Pope had said so they made no scruple of the truth of it and one takes it as their fashion is from another with too much easie credulitie But although this be not sufficient ground for that assertion of our common Lawiers which cleerly being rightly apprehended is true though lazie ignorance crie against it euen to hoarsenesse yet enough other will be found whereof more toward the end of the tenth Chapter Of the time from M.CC. or neere thereabouts till this day CAP. VII I. The Canons of Generall Councels and Decretals for parochiall right in Tithes not formerly otherwise conueyed which now became more established II. The opinion of the Canonists in the question of what immediat Law Tithes are due by is that they are payable iure diuino III. How the same question is determined by the opinion of the Schoolmen IV. Of those that held them meer Almes V. The opinion in Diuinitie that concludes them due iure diuino With a Determination of the Vniuersitie of Oxford touching Personall Tithes VI. Laws Customs and Practice of France in exaction of them Of their feudall Tithes at this day VII Laws Customs and Practice in Spain touching the generall payment of Tithes Tithes there in Lay mens hands VIII Customs and Infeudations in Italie Payment in Venice in Germanie Of the Hungarians Polacks Swethians and others touching the dutie and possession of Tithes IX Of Tithes in Scotland With an Example of an Appropriation of Churches and Tithes there by Robert de Brus. And something of Tithes in Ireland IN these following times the Canon Law grew to be of more force and Parochiall right through the Decrees made against that former course of arbitrarie Conueyances and from the passages of Canon Law that supposd the generall right of Tithes became to be more established But the Opinions of Canonists and Diuines haue been and are much different in the question vpon what Law the generall right of them is immediatly grounded But by the Practice of the Common Laws for so much as I haue read of all Christian States they are subiect to Customes and that somtimes as well in non payment as in payment of a lesse part And Infeodations of them into Lay hands yet continue in France Spaine Germanie and elsewhere And of Customes only and Infeodations wee shall principally speake in the practice of this time For what euer might here otherwise be rememberd touching Compositions Exemptions or such like is but a meer consequent of those Customes and of the Opinion that makes them due only by Positiue Human or Ecclesiasticall Law I. It is sufficiently manifested in the practice of the former CCCC yeers that the Laitie did vsually conuey their Tithes by Consecrations and Appropriations to what Church they would and by Infeodations to Lay men Their Infeodations were forbidden by the Generall Councell of Lateran in M.C.LXXX. whence that most known Canon Prohibemus before cited was taken into the bodie of Gregories Decretalls and hath euer since been and still is in autoritie and that also in the secular Lawes of France especially It was in the same Councell ordained That no religious Orders should receiue any Appropriations or Consecrations of Churches or Tithes without assent of the Bishop Ecclesias Decimas are the words de manu Laicorum sine consensu Episcoporum tam illos that is Templars and Hospitalars against whom the prouision was chiefely made quam quoscunque alios Religiosos reciperc prohibemus This was confirmed in the Generall Councell of Lateran held vnder Innocent the third in the yeer M.CC.XV. And a Canon of the Generall Councell of Lateran vnder Calixtus the second in the yeer M.C.XIX. wherein parochiall Ministers were also forbidden to receiue Tithes or Churches from the hands of Lay men by Inuestiture especially Absque consensu voluntate Episcopi was afterward in diuers Epistles of Pope Alexander the third receiued and confirmed And although manie Decrees were before against those Conueyances yet till these Generall Councels vnder Alexander and Innocent neither was the Autoritie of the Church so powerfull neither were Epistles sent from Rome so frequent to put that in execution which had so been there established against that challenged right of the Laitie But by this time when the arbitrarie disposition of the owner was thus prouided against reference being made to the Bishops assent that was bound to square all things by the Canons which would haue Tithes paid parochially and became to be much more obeyed then before it grew frequent to haue Decretall Epistles sent from Rome into euery Prouince both to ratifie the former Consecrations and Appropriations which the Popes began also at pleasure to declare sometimes void if made by Lay men alone and also to exact parochiall payments of other Tithes not canonically conueyed out of the Parish and the reason sometime was added that is Perceptio Decimarum ad Parochiales Ecclesias de iure communi pertinet and the Generall Councell of M.CC.XV. had taken it cleere and so exprest it that in signum vniuersalis Dominij quasi quodam titulo speciali sibi Dominus Decimas reseruauerat And after a few words the Canon is concluded with Decimare cogantur Ecclesijs quibus de iure debentur And the action for parochiall Tithes in those times as now is called iure communi fundata intentio that is by common right Tithes praediall and mixt were due to the Rector of the Parish were he Bishop or Priest if they were not otherwise by speciall title enioyed by some other Church or discharged by Canonicall Exemption But how little this common right had before been practiced appears not only in what is alreadie declared of the vse of the former time and in the doubts made by Gratian in the Decree and Pope Lucius the third Alexander the third and others in their Epistles touching it but also in other occurrences of somewhat before the beginning of these CCCC yeers amongst which you shall find
that both the religious and secular of the Clergie would vsually take Couenants from their Tenants to pay them the Tithes and so preuent the Parson of the Parish where the land lay If parochiall right had then been common how could such a Couenant haue preuented the Parson That practice is both related and remedied in the Generall Councell of Lateran of M.CC.XV. and an example of it in the Archbishoprique of Matera is remaining among the Decretals of Innocent the third where also it appeares that the Archbishop had complaind to the Pope That the Land-occupiers in his Diocese vsed to diuide their Tithes at their pleasure and arbitrarily giue part to the Church part to the poor part to their kinred for which hee had remedie by Pontificiall Decree Hereto you may adde that of an old Councell of Tribur in DCCC.XCV Vbi quis Decimas persoluebat viuus ibi sepeliatur mortuus As if euery man by the choice of the place of his deuotion in paying his Tithes might make it his Parish And when Alexander the third about the yeer M.C.LXXX. was to answer the doubt touching Parochiall right of Prediall Tithes that is whether they were due intuitu territorij in regard of the limits within which they grew or obtentu Personarum by reason of the person and so to be paid to the Church wheresoeuer the owner for the most part receiued the Sacrament and heard Diuine Seruice he knew not how to determine it and withall acknowledged that although it had been often moued it was neuer resolued Sane saith he cum huiusmodi quaestio temporibus praedecessorum nostrorum mota fuerit non determinata alijs intuitu Territorij alijs Personarum obtentu Decimas asserentibus debere persolui non est nobis facile certum tibi dicere which are the words of that Epistle a part whereof is in Gregories Decretals So that although by the Canons they would haue had a vniuersall payment of Tithes and although some much ancienter autoritie be in that Law for Parochiall payment yet they had long before and about the beginning of this last CCCC yeeres so much controuersie touching Parochiall right that euen thence alone you may see it was not so much as in Opinion established Enough more like Examples are of that time And you may obserue that where Pope Alexander doth by Decretall command a Parochiall payment in the case of the Monks of Boxley for so you must read in Gregorie not Bosse as it is in the most polite Edition yet his ground is from a vse of Parochiall payment in that particular without which he had been as vncertaine there as he and others are in Epistles of that time But so farre also was the former course of arbitrarie Consecrations now withstood that not only the Lay owner might not of himselfe consecrate the right of his Tithes at will but also although the Bishops assent had ioind with his in conueying any Tithes except only such as were infeodated to him before the Councell of Lateran of M.C.LXXX. the Conueyance had been declared void and to that purpose only of passing Feodall Tithes out of Lay hands to the Church was the Bishops assent decreed to bee sufficient But howeuer through those Oecumenicall and Pontificiall Decrees a more certaintie of Parochiall right was now begun and though those old Canonists also Pope Innocent the fourth Cardinall Hostiensis and some others about the yeere M.CC.LX. writing on the Decretals took Parochiall right as a thing cleerly established in Law yet it is reported by some Ancients of good credit that sufficient remedie was not fully prouided against that practice of the former course of Arbitrarie dispositions of Tithes till the Generall Councell of Lions held vnder Pope Gregorie the tenth in the yeer M.CC.LXXIV in which they say it was constituted Vt nulli hominum deinceps liceat Decimas suas ad libitum vt anteà vbi vellet assignare sed Matrici Ecclesiae omnes Decimas persoluerent So Randall Higden the Monk of Chester Henrie Knighton Abbot of Leycester and Thomas of Walsingham a Monk of S. Albons tell vs and all three of them liud but about C. yeers from the time of that Councell and might so perhaps haue had for it some ancienter Autoritie from some now lost moniments And vpon this doubtlesse was that assertion corruptly related in the printed Examination of W. Thorp before Arundell Archbishop vnder Henrie the fourth where he answers That one Pope Gregorie the tenth ordained new Tithes first to be giuen to Priests now in the new Law But the bodie of that Councell which was first publisht only in the late Edition of the Generall Councels at Rome and is now also in the last Edition of Binius hath no such matter in it One Canon is there specially against Allenation of Reuenues of the Church by Clergie men and another against vsurpation of them by Lay Patrons in time of Vacancie but neither out of them or the rest can you extract what those Monks haue related But although they might erre in the relation of the Canon yet doubtlesse they had some speciall memorie that Parochiall right to Tithes had been but of late yeers and sometime after M.CC. receiud into the more known and practiced Law although the Doctors so confidently before talke of it For we must not doubt but that those elder Canons notwithstanding their great autoritie were by most different degrees of time receiud into vse and in some places not till long after M.CC. as wee see particularly in that of the practice in the Diocese of Palentia till M.CCC.XXII which was that euery man wheresoeuer hee dwelt yet might declare himselfe to bee of what Parish hee would and to that Parish only giue his Tithes Which was remedied by a Councell then held at Villadolid vnder William Bishop of Sabina the Popes Legat where he begins with Parochiarum diuisio à sanctis patribus instituta certitudinem Parochianorum Decimarum debitam solutionem inducit For indeed Parochiall payment regularly was now grown by the Canons gaining force to be the only debita solutio The next authoritie of a Generall Councell for Parochiall right after that of Lateran wherein yet nothing directly constitutes it but rather it is supposed as of former time is the Condemnation in the Councell of Constance of Wicklefes assertion That Tithes were meer Almes and that parishioners might ad libitum suum as his position was eas auferre propter peccata suorum Praelatorum And since that in the Generall Councell of Trent vnder Pius the fourth about M.D.LX. this Canon was published Non sunt ferendi qui varijs artibus Decimas Ecclesijs obuenientes subtrahere moliuntur aut qui ab alijs soluendas temerè occupant in rem suam vertunt cùm Decimarum solutio debita sit Deo Et qui eas dare noluerint aut dantes impediunt res
diuiding Tithes before witnesses is an old Imperiall attributed in some Editions to the XI yeere of the reigne of Charles the great being King of France in others to the Emperor Lothar the first But referre it to either of them and it will be diuers yeers later then Ecbert's death And other mixt passages there plainly shew that whose soeuer the Collection was much of it was taken out of the Imperiall Capitularies none of which were made in Ecbert's time Perhaps the greatnesse of his name was the cause why some later Compiler of those Excerptions might so inscribe it to gain it autoritie for he was both brother to Edbert King of Northumberland and the first also that after Paulinus restored the name of Archbishoprique and the Pall to Yorke And the heads of a Synod held in Ecbert's time vnder King Ethelbald and Cuthbert Archbishop of Canterburie are yet extant but not any expresse mention is found in them of Tithes although most of the particulars of Church-gouernment are toucht there II. The Autors of the Centuries haue a Synod held in the yeer D. CC.LXXXVI vnder two Legats sent from Pope Hadrian the first with letters for reformation and establishing of Church Laws to Offa King of Mercland and Aelfwold King of Northumberland and to the two Archbishops the particulars of the Synod are related in an Epistle to the Pope from those Legats which were the first that had so come from Rome hither after Augustine wherein it is related that Gregorie Bishop of Ostia one of the Legats went into Northumberland and Theophilact Bishop of Todi the other to Offa who with Kenulph King of West-Saxonie called a Councell for the Southern patt as Aelfwold for the Northern Gregorie sayes That in the Northern parts ad diem Concilij conuenerunt omnes Principes Regionis tam Ecclesiastici quam seculares and after many Institutions of Canon Laws there the XVII Chapter is de Decimis dandis sicut in Lege scriptum est Decimam partem ex omnibus frugibus tuis seu primitijs deferas in Domum Domini Dei tui Rursum per Prophetam Adferte inquit omnem Decimam in horreum meum vt sit cibus in domo mea probate me super hoc si non aperuero vobis cataractas coeli effudero benedictionem vsque ad abundantiam increpabo pro vobis deuorantem qui comedit corrumpit fructum terrae vestrae non erit vltra vinea sterilis in agro dicit Dominus sicut sapiens ait Nemo iustam Eleemosynam de his quae possidet facere valet nisi prius separauerit Domino quod à primordio ipse sibi reddere delegauit Ac per hoc plerumque contigit vt qui Decimam non tribuit ad Decimam reuertitur Vnde etiam cum obtestatione praecipimus vt omnes studeant de omnibus quae possident Decimas dare quia speciale Domini Dei est de nouem partibus sibi viuat Eleemosynas tribuat Et magis eas in abscondito facere suasimus quia scriptum est cum facis Eleemosynam noli tuba canere ante te The autoritie of this Canon may be known out of what is there further added Haec Decreta beatissime Papa Hadriane in Concilio publico coram Rege Aeelfwaldo Archiepiscopo Eanbaldo omnibus Episcopis Abbatibus Regionis seu Senatoribus Ducibus populo terrae proposuimus illi vt superiùs fati sumus cum omni deuotione mentis iuxta possibilitatem virium suarm adiuuante supernâ clementia se in omnibus custodire denouerunt signo Sanctae Crucis in vice vestra in manu nostra confirmauerunt posteà stylo diligenti in Charta huius paginae exarauerunt signum Sanctae Crucis infigentes Then follow some subscriptions of Bishops Et His quoque saluberrimis admonitionibus Presbyteri Diaconi Ecclesiarum Abbates Monasteriorum Iudices Optimates Nobiles vno opere vno ore consensimus subscripsimus After this so concluded in the Northern state the same Legat together with Maluin and Pyttell Embassadors from Aelfwold take with them all those Decrees and Canons and goe to the Councell held vnder Offa for the Western parts Vbi as the words are gloriosus Rex Offa cum Senatoribus terrae vna cum Archiepiscopo Iaenberchto some call him Lambert Sanctae Ecclesiae Dorouernensis that is of Canterburie caeteris Episcopis Regionum conuenerat in conspectu Concilij clarâ voce singula capita perlecta sunt tam Latinè quam Teutonicè that is in English-Saxon which then was the selfe-same with Dutch or Teutonique quo omnes intelligere possent dilucidè reserata sint qui omnes consona voce alacri animo gratias referentes Apostolatus vestri admonitionibus the Legats so write to the Pope promiserunt se diuino adminiculante fauore iuxta qualitatem viriū promitissimâ volūtate in omnibus haec statuta custodire And Offa and his Bishops Abbots and some Princes subscribe with the Crosse to it What Copie of this Synod the Centuriators had or whence they tooke it I find not But if it be of good autoritie it is a most obseruable Law to this purpose being made with such solemnitie by both Powers of both States of Mercland and Northumberland which tooke vp a verie great part of England and it is likely that it was made generall to all England In the relation of the Legats to the Pope mention is of Kenulph King of West-Saxonie his ioyning with Offa in calling the Councell but the confirmations of the Decrees haue no reference to him But by the way if you examine it by storie and Synchronisme Kenulph perhaps could not haue at all to do with it For some of our old Monks expressely affirme That in the second yeer of Brithric next successor after Kenulphs death Pope Adrian sent his Legats in Britanniam ad renouandam fidem quam praedicauerat Augustinus And that they then held their Synod at a place called Cealchithe how could Kenulph be there then as the Legats relate Beleeue the Monks as you will but indeed an exactnesse here is not easie extracted out of the disturbed times of our Chronicles They talk also of a Synod held in Wicanhale for the North parts a yeere or two after Doubtlesse they intend this same that is extant in the Centuries if at least it be of sufficient credit Neither can it be suspected by any circumstance in the subscriptions which being so many might haue by chance soon got among them a character of falsehood had it not been genuine In the printed Houeden Gregorie one of the Legats is called Georgeus perhaps for Gregorius but my Ms. hath also Georgius But if Henry of Huntingdon and Roger of Houeden giue vs the time right of the Legats comming hither then is that mention of Kenulph in their supposed Epistle to the Pope a plaine character of falsehood or ignorance in some
nimis refrixerat and agreeing to this reason is a passage in the Synod of London held vnder Lanfrank Archbishop of Canterbury in 9. Will. 1. Et quod are the words multis retro annis in Anglico regno vsus Conciliorum obsoluerat renouata sunt c. that Canon seems to haue been made against arbitrarie consecrations of Tithes then practiced whereof anon largely XVII The Laws of Henrie the first haue one title De placitis Ecclesiae pertinentibus ad Regem and vnder that are these words Si quis rectam Decimam superteneat vadat praepositus Regis Episcopi terrae Domini cum Presbytero ingratis auferant Ecclesiae cui pertinebit reddant nonam partem relinquant ei qui Decimam partem dare noluit according to those of King Edgar and King Knout before related XVIII Alberique Bishop of Ostia Legat in England to Pope Innocent the second in 3. of King Stephen held a Synod at London and in that as I haue seen it transcribed out of a book of Worcester this Canon is De omnibus Primitijs rectas Decimas dari Apostolica autoritaee praecipimus quas qui reddere noluerit anathematis in eum sententia proferatur Primitiae must it seems be here vnderstood for euery new yeers encrease XIX Vnder Henrie the second a Pontificiall Decree was sent to all the Bishops of the Prouince of Canterburie about the yeer M.C.LXX. by Pope Alexander the third commanding them that they should admonish all men in their seuerall Dioceses si opus fuerit as the words are Sub excommunicationis districtione compellere vt de prouentibus Molendinorum Piscariarum Faeno Lana Decimas Ecclesijs quibus debentur cum integritate persoluant the direction of it was Cantuariensi Archiepiscopo eius suffraganeis To this you may adde that other of the same Popes to the Bishop of Winchester Mandamus quatenùs Paraecianos tuos de Apibus de omni fructu Decimas persoluere Ecclesiasticâ districtione compellas Both these were afterward made part of Gregories Decretalls and are of force to this day in the Canon Law of the Church of Rome XX. In 21. of the same King Henrie the second Richard Archbishop of Canterburie held a Prouinciall Synod at Westminster in which were neer all the Bishops and Abbots of his Prouince as also the two Kings the father and the sonne there diuers Constitutions out of old Councells and Popes Decrees were published to be obserued in his Prouince among them one is out of a Synod at Rosne in these words Omnes Decimae Terrae siue de frugibus siue de fructibus Domini sunt illi sanctificantur sed quia multi modò inueniuntur Decimas dare nolentes statuimus vt iuxta Domini Papae praecepta admoneantur semel secundò tertiò vt de grano de vino de fructibus Arborum de foetibus animalium de lana de agnis de butyro caseo de lino canabe de reliquis quae annuatim renouantur Decimas in egrè persoluant quòd si commoniti non emendauerint anathemati se nouerint subiacere XXI Hubert Archbishop of Canterburie by his power Legatin receiud from Pope Caelestin the third in 6. Rich. 1. held a Prouinciall Councell for the Prouince of Yorke and therein one of the Canons thus speaks for Tithes Cum Decimae sint tributa egentium animarum ex praecepto Domini dari debeant non est reddentis eas diminuere Statuimus itaque vt de his quae renouantur per annum cum omni integritate Decimae debitae consuetae conferantur ita vt inprimis Decimae absque vlla diminutione Ecclesiae dentur postmodùm de nouem partibus mercedes messorum aliorum seruientium pro arbitrio soluentis tribuantur XXII The same Archbishop Hubert in 2. of K. Iohn Generale celebrauit concilium Lundonijs apud Westmonasterium contra prohibitionem Galfridi filij Petri Comitis de Essexe tunc temporis summi Iustitiarij Angliae for it appears that in those elder times there was great controuersie between the King in whose right the Chief Iustice of England here sent out his prohibition and the Archbishop touching this point whether the Archbishop either as Archbishop or as Legat might hold a Prouinciall or Nationall Councell without autoritie from the Crown but that is now declared cleer and so practiced that he may not In that Councell notwithstanding the prohibition he ordaind thus for tithes Cum Deo Sacerdotibus Dei Decimas dandas Abraham factis Iacob promissis innuent autoritas veteris noui Testamenti necnon sanctorum Patrum statuta declarent Decimas de omnibus quae per annum renouantur praestandas id inuiolabilitèr decernimus obseruandum ita quod occasione mercedis seruientum vel messorum decima pars non minuatur sed potius integre persoluatur Habeant etiam Presbyteri potestatem ante autumnum excommunicandi omnes fraudatores decimarum suarum eosdem secundum formam Ecclesiasticam absoluendi Huic adijcimus sanctioni vt de terris nouitèr cultis non aliàs dentur decimae quam Ecclesijs Parochialibus infra quarum limites terrae illae de quibus Decimis perueniunt excoluntur Detentores verò Decimarum iuxta Rothomagensis Concilij constitutum si semel secundò tertiò commoniti excessum suum non emendauerint vsque ad satisfactionem condignam anathematis vinculo feriantur saluo in omnibus S.S.R.E. honore priuilegio which Saluo is to euery of his Canons XXIII Among the Decretall Epistles of Pope Innocent the third one is directed Cantuariensi Archiepiscopo vt Ecclesijs Parochialibus iustè Decimae persoluantur and thus speaks Peruenit ad audientiam nostram quod multi in Docesi tua Decimas suas integras vel duas partes ipsarum non illis Ecclesijs in quarum Parochijs habitant vel vbi praedia habent à quibus Ecclesiastica percipiunt Sacramenta persoluunt sed eas alijs pro sua distribuunt voluntate Cum igitur inconueniens esse videatur à ratione dissimile vt Ecclesiae quae spiritualia seminant metere non debeant à suis Parochianis temporalia habere fraternitati tuae autoritate praesentium indulgemus vt liceat tibi super hoc non obstante contradictione vel appellatione cuiuslibet seu consuetudine hactenus obseruata quod Canonicum fuerit ordinare facere quod statueris per Censuram Ecclesiasticam firmiter obseruari Nulli ergo c. confirmationis c. Datum Lateran II. nonas Iulij XXIV In a collection of diuers Constitutions for the English Church out of Councells and others titled only Constitutiones cuiusdam Episcopi and writen about Hen. the thirds time one of Tithes occurs Decimas de omnibus quae renouantur per annum maximè consuetas dandas decernimus potissime de molendinis
particulars which either the Popes autoritie of later time or new Cōpositions or Grants or the like haue altered enioyed by the Churches that yet remaining had portions so anciently giuen them or by the King or his Grantees of impropriated Tithes very many of which had their chiefe originall from those arbitrarie Consecrations which you may well call Appropriations of Tithes and not from the appropriating only of Parish Churches as some out of grosse ignorance with too much confidence deliuer But thereof you may see more in the examples of the next Chapter where for most apparant proofe of the practice of arbitrarie Consecrations in those times Moniments enough are collected This arbitrarie disposition vsed by the Laitie as well de iure as the Positiue Law then receiued and practiced was as de facto is that which Wicclef rememberd in his complaint to the King and Parlament vnder Richard the second His words are A Lord God where this be reason to constrain the poor people to find a worldly Priest sometime vnable both of life and cunning in pompe and pride couetise and enuie glottonie drunkennesse and lecherie in simonie and heresie with fat Horse and iolly and gay Saddles and Bridles ringing by the way and himselfe in costly Clothes and Pelure and to suffer their wiues and children and their poor neighbours perish for hunger thirst and cold and other mischiefes of the world A Lord Iesu Christ sith within few yeeres men payed their Tithes and Offerings at their own will free to good men and able to great worship of God to profit and fairenesse of holy Church fighting in earth Where it were lawfull and needfull that a worldly Priest should destroy this holy and approued custome constraining men to leaue this freedome turning Tithes and Offerings into wicked vses But what hee calls a few yeers will fall out to be about CC. for hee wrote about the yeer M.CCC.XC With him well agrees some passages in our Yeere-bookes of the times before him As in 7. Ed. 3. fol. 5. a. Parning truly affirmes that in auncien temps deuant vn Constitution de nouelle fait per le Pape vn Patron d'un Esglise puit granter Dismes deins mesme le Paroche a vn altre Paroche And Herle there in his answer seemes to admit it cleere So also touching others as well as Patrons Lodlow Iudge of Assise in 44. Ed. 3. fol. 5. b. En auncien temps chescun home purroit graunter les Dismes de sa terre a quel Esglise il voudroit Quod verum est sayes Iudge Brooke in abridging the case But what new Constitution of the Pope is meant there by Parning some later Books tells vs that from the Councell of Lateran the first alteration of that course of arbitrarie disposition came But plainely no Councell of Lateran hath any Canon that alterd the Law in it except that vnder Alexander the third before spoken of in the end of the sixt Chapter may haue place here which indeed the Canonists will not endure vnlesse you restraine it only to ancient Feudall Tithes And they suppose euerie man might haue arbitrarily conueyed before that Councell his Feudall Tithes to what Church he would And so expressely sayes our Lindwood Ante illud Concilium benè potuerunt Laici Decimas in feudum retinere eas alteri Ecclesiae vel Monasterio dare non tamen post tempus dicti Concilij But if those which with vs talk here of the Councell of Lateran meane that vnder Alexvnder the third and apply it generally to arbitrarie Consecrations of new Tithes not feudall I doubt they are much neerer the true meaning of that Councell then any of the Canonists especially while they speake of this Kingdome for arbitrarie Consecrations before about the time of that Councell are found here infinite as presently shall be shewd But of ancient feudall Tithes howeuer they were common in other States scarce any mention at all or tast is with vs. but thereof more in the XIII Chapter And it may be that when from the Canonists some of our Lawiers had learned that feudall Tithes might haue been conueied before that Councell arbitrarily by the owner and saw withall that scarce any signe was of feupall Tithes in this Kingdom yet an abundance of old arbitrarie Consecrations the vse whereof ceased about the time of the Councell in the words of it no regard or mention being had of feudall but only Tithes in generall they concluded who sees enough why they might not that before that Councell euery man might haue arbitrarily disposed of his tithes that is such tithes as were not formerly setled by any ciuill Title But if this will not be allowd for the Law of change of those arbitarie conueiances why may it not first be that Parning by his Constitution de nouelle fait per le Pape meant that of Pope Innocent the third sent to the Archbishop of Canterburie in King Iohns time and perhaps it was soon after receiud into the Prouince of York either by imitation or through the power Legatin which the Archbishop of Canterburie commonly exercised through the whole Kingdome to command a Parochiall payment For also by the name of a Constitution newly made by the Pope some such thing rather then a Canon of a generall Councell is perhaps denoted And then why might it not happen that the Decretal of Innocent the third bearing date in the Church of Lateran should be thence denominated and that afterward those which truly vnderstanding it called it therefore a Lateran Constitution gaue cause of mistaking to others that took it for a Constitution of a generall Councell of Lateran especially too because it was about the time of the generall Councell of Lateran held vnder the same Pope that sent it of which more notice hath been taken in our Law then of any other of that name and indeed he that affirms that before the Councell of Lateran Lay owners might haue disposed their Tithes cuicunque Ecclesiae secundum meliorem deuotionem as Dyers words are speaks true enough if his words may receiue this easie interpretation that is that till about that Councell of Lateran they might haue done so not that the Councell vnder Pope Innocent restraind it but that either the next Councell of Lateran before that is vnder Alexand. the III. or the Pope by a Constitution receiued here from Rome and dated in the Church of Lateran about the time of that Councel of the yeer M.CC.XV. ordaind the contrarie so that in this last way the name of the Councell may be a note only of the time about which it was restraind not of the autoritie whence it was forbidden Perhaps those Canons of Pluralities of Exemptions of the three orders and some such more which we receiud from that Councell vnder Innocent were brought into England at once with this Decretall Epistle and if so then also it was no more strange to haue the
Archdeacon of Leicester while the Bishoprique of Lincolne was void which shewes that those times were the infancie of the exact course of Episcopall Institutions as they are at this day vsed Neither had these any priuiledge of Institution as the Archdeacon of Richmond had anciently giuen him or the like At this day and from long time before the Archdeacon only Inducts as the Books common practice shew But thereof thus much by the way IV. For that other of Succession in the Benefices of the Ancestors doubtlesse that was often when the father or other ancestor was Incumbent and Patron and by that challenged right of the time of Inuestiture and sole disposition of the Church would either in his life time conuey the Benefice to his sonne or heire by grant which by the practice of the time supplyed it seemes as well a Resignation as Presentation Institution and Induction or would so leaue the Aduowson to discend to his heire that he being in Orders might retaine the Church in his owne hands according as the Law then it seems permitted Against this was a Canon made in the Nationall Synod at Westminster in 3. Hen. 1. Vt filij Presbyterorum non sint haeredes Ecclesiarum Patrum suorum And another in 25. Hen. 1. held vnder the Popes Legat. Sancimus as the words are ne quis Ecclesiam sibi siue Praebendam paterna vendicet haereditate aut successorem sibi in aliquo Ecclesiastico constituat Beneficio Without that challenged right of Inuestiture supposed in the Incumbent hauing also the Patronage which supplyed all that the Patron Bishop and Archdeacon at this day do in filling a Church how could any Parson make to himselfe a successor or an heire to haue colour to claim the Incūbencie from his ancestor To this purpose may be well rememberd a passage in a verdict found in Rot. Placit 6. Rich. 1. Rot. 1. of such a kind of conueyance of S. Peeters Church in Cambridge the words are Iuratores benè sciunt quod quidam Langlinus qui tenuit Ecclesiam illam qui fuit persona illius Ecclesiae dedit Ecclesiam illam secundum quod tunc fuit mos Ciuitatis Cantebrigiae cuidam parenti suo Segario nomine qui illam tenuit per LX. annos plus fuit persona illius Ecclesiae ipse posteà dedit Ecclesiam illam Henrico filio suo qui illam tenuit per LX. annos ipse in ligea potestate sua dedit illam Hospitali Cantebrigiae per Cartam suam idem Hospitali habet Ecclesiam illam They discreetly find the custome of the Citie to maintaine the Conueyance supposing it seems that the custome would help the last Grantors title although the Common Law which had by that time receiued some change herein by force of the Papall Decrees should not haue allowd it I know in the Canons another thing is also vnderstood in this matter of Succession that is the irregularitie of the sonne of a Clerk but that can extend only to the matter of Illegitimation vpon Mariage forbidden to the Clergie For which point alone the Bishops refusall had been the best helpe but that indeed the other kind of disposition of Churches by Inuestiture preuented his refusall when Presentation was not made to him V. But after such time as the Decretals and the encreasing authoritie of the Canons about the yeer M.CC. had setled the vniuersall course here of filling of Churches by Presentation to the Bishop or as it seems sometimes it was to the Archdeacon or to the Vicar of the Bishop or Gardian of the Spiritualties that vse of Inuestitures of Churches and Tithes seuerally or together practiced by Lay men was left off and a diuision of Ecclesiasticall Secular right from thence hath continued in practice Neither did the King afterward much lesse common persons fill their common Parochiall Churches without such presentments from Bishops Parochiall Churches for of speciall donatiue Chappels we here speak not neither were Appropriations of Churches Tithes afterward allowd that had not confirmation from the Ordinarie immediat or supreme And in the same age also came in the Law of the Laps whereby the Bishop is to collate after six moneths vpon the Patrons default it being before at his libertie to fill his Church at his pleasure neither was he confined to any time That time of Laps was according as the vse of Presentation grew by degrees setled receiued into the Laws of England out of the generall Councell of Lateran held in 25. Hen. 2. vnder Alexander the third to which foure Bishops according to the ancient vse of this Kingdom that is Hugh Bishop of Durham Iohn Bishop of Norwich Robert Bishop of Hereford and Reinold Bishop of Bath were sent as Agents for the Church of England By that Councell after vacancie of six moneths the Chapter is to bestow those Churches which the Bishop being Patron had left so long void and vpon their default the Metropolitan but no word is of Lay Patrons in it Yet by reason of the Autoritie of that Councell and of a Decretall of the same Pope which speaks of like time vpon default of Lay Patrons it hath beene since taken here generally that after vacancie of six moneths the next Ordinarie is regularly to collate by Laps Which perhaps was receiued for a Law to continue as it hath done in the Councell or Conuocation at Pipewell held in the first of Richard the first and some ten yeers after that Generall Councell of Lateran For in that of Pipewell the principall thing in hand was the prouiding for Churches vpon death of their Pastors Habitus est saith Ralf de Diceto Dean of Pauls vnder King Iohn generalis conuentus iuxta dispositionem Regis Archiepiscopi XVI Kal. Octobris apud Pipewell vt de consilio vacantium per Angliam Ecclesiarum haberetur tractatus I know it was for many Churches then void but it is like enough that according to the generall Councell this Law was then here receiued but that 's only a rouing coniecture and so I leaue it and as in the Canon Law the Councell of Lateran which must be vnderstood that of Alexander the third is commonly affirmed for the autoritie of the originall of the right of this Laps in the case of Bishops specially and Chapters so is it in ancient moniments of our Laws also in the case of Lay Patrons Ante Concilium Lateranense saies Bracton nullum currebat tempus contra praesentantes And in Placit de Banco Mich. 3. Ed. 1. Rot. 105. Staff The Bishop of Couentrie and Lichfield pleads a collation by laps autoritate concilij against the Prior of Landa to the Church of Patingham and in the same Plea Rolls of Pasch. 5. Ed. 1 Rot. 100. Linc. in a quare non admisit by Alienor the Queen Mother against the Bishop of Lincoln for the Church of Orkestow the six Months and the computation
of them which is there adiudged according to that in Catesbies case is referd to Concilium Apostolicum which can be no other then that of Lateran howeuer the printed Copie of that which we commonly call Breton talks of the Councell of Lions for the Director of the Laps whereas indeed the Mss. haue for de Lions de Lautr which is doubtlesse for de Lateran yet also in the Rolls of the Common pleas of Pasch. 9. Ed. 1. Rot. 58. Suthampt. the Archbishop of Canterburie defendant in a Darrain presentment against the Abbot of Lyra pleads that the Church of Godeshull est plena ex collatione ipsius Archiepiscopi ratione Concilij Lugdunensis and being demanded by what article of the Councell would not thereto answer wherupon after long deliberation iudgement is giuen for the Abbot But in the same Plea the Law and custom of England for the six months time of Laps which they call there Consuetudo regni Angliae is referd to a Councell but none is specially named sauing that of Lions But although from Canonicall autoritie the Laps was thus receiud into our Laws yet it hath been no otherwise then the Baronage of England would permit it for the Canons otherwise as at this day they are giue but foure months to a Lay Patron and six to an Ecclesiastique which difference the Law of England would neuer permit as also neither that of the right of collation which the Chapter is to haue vpon default of the Bishop howeuer the Pope would haue put it here in execution according to the words of the Councell which you may see in the autorities before noted out of the Text of the Canon Law and therefore the Law of Laps is well referd rather to Consuetudo Regni Angliae by which title other parts of our Laws were often named that were of later beginning then to the Councell although thence doubtlesse as is shewd it had its originall But although now what through the Decretalls and other Canons against Lay mens Inuestitures what by reason of the Law of Laps the Patrons former interest or challenged right was much diminished in the Church and the disposition of the reuenues of it for it followd also that the Ordinaries assent was requisite yet the formulae or precedents vsed from ancient time in the recouerie of presentations still retaine to this day Characters in them of that Inuestiture as the quare impedit that is Praecipe A. quod iustè c. permittat B. praesentare idoneam personam ad Ecclesiam de N. quae vacat ad suam spectat donationem c. Where Donatio still sauors of the ancient right of Inuestiture agreeing whereto is that of Ecclesiam concedere vsed elswhere in our Law and attributed to the Lay Patron Neither doth praesentare ad Ecclesiam originally denote otherwise then the Patrons sending or placing an Incumbent into the Church and is made only of repraesentare which in that Councell of Lateran and elswher occurres also for praesentare repraesentare is properly to restore giue back or repay as reddo or repraesto whence praesentare taken in the barbarous times denoted as dare or donare so that idoneam personam ad Ecclesiam praesentare was all one with idoneam personam ad Ecclesiam dare or donare or in Ecclesia constituere or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as the Apostles word is to Titus where he bids him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is appoint or constitut or indeed present Priests or Encumbents in euery Citie for he that there should turn it by present might so keep the propertie of the word in both tongues though not as present is now restraind this is iustified out of an old Glossarie that turnes Repraesento by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for then cleerly 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is Praesento while praesentare so signified also in practice that is in the time of the vse of Lay Inuestitures all Churches so giuen were properly Donatiues which attribute hath been since restraind chiefly to such free-chappels as the Ordinarie had no interest in but are collated or giuen by the act only of the Patron and this interpretation of praesentare is iustified also out of the quare impedit vpon a right of collation which is but a donation by the Bishop wherin the words are also quod permittat praesentare ad Ecclesiam c. Donation which is meerly as Inuestiture in regard of the Bishop is there called Presentation So also is the Law in the Kings Case and of common persons being disturbed to collate by Letters Patents to their free Chappels or Donatiues the Writ in those Cases is only praesentare which confirms that it denotes Donation or Inuestiture But in the Counts vpon such Writs the speciall matter must be discouered The like Law is in the Case of him that hath the Nomination of the Clerk his Writ is also praesentare although another haue the right of that which is now known by the bare name of presentation Nomination indeed or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 being the true and eldest name found in the Laws belonging to the Church that denote filling or presenting to a Church in that sense as Presenting is taken for giuing or inuesting For in the primitiue times when the Patron had founded his Church he nominated whom he would haue receiued into Orders for the seruing of that Cure and then if the nominated were found worthy hee was receiued into Orders for that purpose which Ordination turnd afterward into Episcopall institution as is before declared that nomination was indeed as Inuestiture or giuing the Church so is the word vsed in the Laws and agreeing to them is the purer time of Latin wherein Nominatio is for giuing a Place or Office that is void And as these phrases of the Writs tast of the ancient right challenged by the Patron so do some assertions in our yeer books of later time as that of entring into an Aduowson by entring into the Church of passing an Aduowson by liuerie of seisin at the Church-dore of the Patrons entring into the place of foundation if the Church cease to remain hallowed and the like And to like originall may you referre those of the Kings presentations which haue Dedimus concessimus in them yet retained although the force of the words by the later Law make but only a presentation But the Law is now setled neither with vs hath the Patron alone now any prerogatiue or direct interest in the Church or the reuenues beside his right of Aduowson or Presentation to the Bishop by whose institution and the Archdeacons induction euery Church regularly is to be filled Neither for ought I haue heard hath he in our Law any of those Droicts honorifiques which the French allow him in Precedence Seats and the like These particulars of Benefices and Aduowsons had here their place both because in the ancient
Mascon Afterward also we find that Leges Episcopales which were serued by William the first from the Hundred and confined to the Bishops Consistorie that wee may omit the Nationall or Prouinciall Constitutions of this Kingdome made in those elder times according to the old Canons of the Church of Rome And X. yeers before Gratians Decree writen it is certaine that the Canons of the Church generally by the name of Canones and Canonum Decreta for diuers collections were of them an some also confirmd by Papall autoritie beside the Codex Vetus before that of Gratian were familiarly talkt of and vrged in that great Controuersie in the Synod of Winchester in the fourth yeere of King Stephen touching the Castles of Newarke Salisburie and the Vies where the King denied vtterly Censuram Canonum pati that is to haue it determined by them whether or no the two Bishops Roger of Salisburie and Alexander of Lincolne might lawfull keepe their Castles that they had fortified But while the rest of the Bishops stood so much vpon their Canons and euen in the face of Maiestie profest a rebellion the King and the Lay subiects it seems grew so exasperated against them that by publique command for preseruation of the libertie of the Crown and Laitie they were forbidden to be of any more vse in the Kingdom For so perhaps is that to be vnderstood as we haue elswhere noted in Iohn of Chartres where he sayes that Tempore Regis Stephani à regno iussae sunt Leges Romanae quas in Britanniam domus Venerabilis Patris Theobaldi Britanniarum Primatis asciuerat Ne quis etiam libros retineret edicto Regio prohibitum est What he calls Leges Romanae the most learnd Frier Bacon mentioning the same storie stiles Leges Italiae and takes them for the Roman Imperialls and not for the Canan Law I confesse I see not enough cleerly here to iudge vpon the words of Iohn of Chartres whether it were the Canons or the Imperialls on the one side If we say he meant that Theobald or his Clergie brought the Roman Canon Law it might so seem as if it had not been here before in the hands of the Clergie nor partly practiced by them Which doubtlesse is otherwise If on the other side we vnderstand the Imperialls Copies of which indeed might well be at that very time brought as a noueltie hither for they were then newly found and plainly in Henrie the seconds time they were here in the hands of the more curious Scholers as you may see by Iohn of Chartres his citing of them how then is that true which he presenly after saies of the encreasing power and force of those Leges Romanae Sed saith he Deo faciente eò magis virtus legis inualuit quo eam amplius nitebatur impietas infirmare What force or power at all had the Imperiall here afterward where is any signe of it But the obiection against that which might proue them not to haue been the Canon Laws may not difficultly perhaps be answered It is true that the Canons of Rome were here before and read and partly practiced in the Church But diuers Collections were of them about this age of King Stephen and perhaps some later and larger Collection might be brought hither by Archbishop Theobald or some of his Clergie which are vnderstood I think in that Domus Venerabilis Patris Theobaldi He himselfe perhaps might bring Iuo's Decree when he came from Rome in 3. of King Stephen and endeuour the strict practice of it here which the King and the Lay subiect had reason enough to dislike or some of his Clergie might perhaps afterward bring in Gratians Decree that was both compild by Gratian and confirmd by Pope Eugenius the third about ten yeers before Theobalds death that is about 16. of King Stephen And this way those words of Legis virtus inualuit may haue their truth For howeuer that opposition against the Canon Law were it is most certain that this first part of the body of it the Decree was presently vpon the first publication of it in vse in England and familiarly cited by such Diuines as talk◠of what had reference to it witnesse especially Giraldus Cambrensis in his Epistles and the practice of the Canon Law here for the time of Henrie the second is seen in the Epistles of that Iohn of Chartres which yet remain and are I think the ancientest examples of proceedings in our spirituall Courts But notwithstanding that first part of the body of the Canon Law which expresly commanded Tithes to be generally paid were here soon receiud among the Clergie yet about L. yeers after that the former course of Arbitrarie Consecrations of them continued and both that and the rest of those courses in disposition of Church-reuenues which so differ from the Canons and from the practice of this day was not fully alterd till some Decretalls came hither with more powerfull and dreadfull autoritie as the times were of some of the following Popes especially of Alexander the third and Innocent the third which two alone I think sent as many commanding Decretalls into euery Prouince as all their Predecessors had before done and especially into England as is alreadie shewd they sent diuers only for the matter of Tithes which were all first of Papall autoritie for the particular ends for which they were sent and so were obeid as Canon Law although none of them became parts of the generall Canon Law vntill Gregorie the ninth put some of them into his Decretalls autorised by him in the yeer M.CC.XXX about which time perhaps and diuers yeers before the Canon Law of Rome was not only read here priuatly among the Clergie but professed also in Schooles appropried to it so I ghesse is that close Writ of 19. Hen. 3. to be vnderstood which prohibited the holding of Scholae Legum in London it was directed to the Maior Shrifes commanding them Quod per totam Ciùitatem London Clamari faciant firmiter prohiberi ne aliquis Scolas regens de Legibus in eadem Ciuitate de caetero ibidem Leges doceat Et si aliquis ibidem fuerit huiusmodi Scolas regens ipsum fine dilatione cessare faciat T. Rege apud Basing XI die Decembris This was fiue yeers after the Decretalls published and it seems most probable that these Leges were Canon Laws perhaps mixt as vsually they were in the profession also with the Imperials for both of them were it seems studied here vnder Henrie the third by the Clergie more then any other part of learning and therefore were forbidden as being both in regard of their own autoritie against the supreme Maiestie and independencie of the Crown of England The end of the Reuiew The ancient Records and other Manuscripts Vsed in this Historie of Tithes with references to the places where they are cited and to the Offices and Libraries wherein they