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
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
and Quarries were made by Gratian Valentinian and Theodosius Christian Emperors about CCC.LXXX and shew withall that they thought not then of any Tenth of such things to be giuen otherwise when indeed howeuer Cyprian might before haue cause to complaine in Afrique Christian bountie in Oblations especially at Rome and with proportion like enough in other Churches so inricht the Clergie that their wealthie happinesse thence was much wonderd at and not a litle from thence enuied For the then Bishop of Rome his wealth from Oblations chiefly you may see Marcellinus For other of the Clergie a whole Sermon is in S. Chrysostom that liud at the end of this first CCCC yeers against such as enuied the wealth of the Church that grew only out of such Christian deuotion to the Priesthood III. As touching Opinion in that time Origen a great and most learned Father liuing about the yeer CC. hath a whole Homilie vpon the Text of first-Fruits in the Law wherin while he teaches that some things are literally to be obserud he well admonisheth that 't is the part of a wise Interpreter to find out which are so and which not And then first he deliuers his iudgement that this of first-Fruits is one to be obserud still according to the letter and giues this reason Decet enim as the Latin is the Greek I neither haue nor could euer learn that it hath been publisht vtile est etiam Sacerdotibus Euangelij offerri primitias Ita enim Dominus disposuit vt qui Euangelium annuntiant de Euangelio viuant qui Altari deseruiunt de Altari participent and a litle after addes also for Tithes Et adhuc vt amplius haec obseruanda etiam secundùm literam ipsius Dei vocibus doceamur addemus ad haec Dominus dicit in Euangelijs Vae vobis Scribae Pharisaei hypocritae qui decimatis mentam hoc est Decimam datis mentae cymini anethi praeteritis quae maiora sunt legis hypocritae haec oportet fieri illa non omitti Vide ergo diligentius quomodo sermo Domini vult fieri quidem omnimode quae maiora sunt legis non tamen omitti haec quae secundum literam designantur Quod si dicas quod haec ad Pharisaeos dicebat non ad Discipulos audi iterum ipsum dicentem ad Discipulos Nisi abundauerit iustitia vestra plusquam Pharisaeorum Scribarum non intrabitis in regnum Coelorum Quod ergo vult fieri à Pharisaeis multo magis maiore cum abundantia vult à Discipulis impleri And a litle after Quomodo ergo abundat iustitia nostra plusquam Scribarum Pharisaeorum si illi de fructibus terrae suae gustare non audent priusquam primitias Sacerdotibus offerant Leuitis Decimae separentur ego nihil horum faciens fructibus terrae ita abutar vt Sacerdos nesciat Leuites ignoret diuinum Altare non sentiat And in this forme and vpon these reasons he brings in that of Tenths in the Gospell to proue his purpose of first-Fruits But in his conclusion vpon it he leaues out Tenths and speaks only of first-Fruits thus Haec diximus asserentes mandatum de primitijs frugum vel pecorum debere etiam secundum literam stare What we haue transcribed shews both his opinion fully and the ground of it without which specially obserued error soon followes ofttimes in collection from autoritie For Opinion of this time thus much More I confesse might be added out of some other great Fathers as S. Ambrose and S. Augustine but because they fall so neer the end of our first age and continue into the second they are omitted here and referd to the beginning of the next foure hunderd yeers IV. For Constitutions of the Church if you could beleeue those supposed to be made by the Apostles and to be collected by Pope Clement the first you might be sure both of payment in the Apostles times as also of an expresse opinion as ancient for the right of Tenths there you read Quae secundum Dei mandatum tribuuntur Decimas dico primitias insumat Episcopus vt homo Dei and the right is there largely grounded vpon the Leuiticall commandement But no man that willingly and most grosly deceiues not himselfe can beleeue that this Constitution or diuers others there are of any time neer the age of the Apostles but many hunderd yeers after The litle worth and lesse truth of the whole Volume is enough discouerd by diuers of the learned and it was long since branded for a counterfait in an Oecumenicall Councell when doubtlesse it was not yet neither so stufft with Canons of later birth as since it hath been neither are there greater arguments against it as now it is then some passages of fact that obuiously occurre in it among which this may cleerly goe for one Had it been the Apostles ordinance or the vse of the Church in the Primitiue times Origen Tertullian and Cyprian hauing such occasion to mention it could not haue been so silent of it And is it likely that all the old Councels from thence till neer DC yeeres after Christ which being authentique beyond exception haue speciall Canons for the lands and goods possest by the Church the Offerings Reuenues and such more could haue omitted the name of Tenths if either such vse or Apostolicall Law had preceded They talke of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the goods of the Church 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Offerings of fruits but haue not a word any where of the Tenth part And in those counterfait Canons also which some too credulously and those also that wholly reiect the eight Books of Clementines receiued as made by the Apostles one is indeed of first Fruits although touching them by that name certainly no Law was made vnder the Apostles but no word of Tenths Of a like credit it s to be feared is that which is attributed to a fourth Councell of Rome held about the yeer CCC.LXXX by Pope Damasus indeed vpon Cardinall Baronius his credit in the Vatican the Legend of this Pope which was vs'd to be read in the Church is extant and with some miracles are mixt in it certain decrees supposed his and made in he knows not what Councell at Rome of which one is Vt Decimae at que primitiae à fidelibus darentur qui detrectarent anathemate ferirentur as he relates it But those decrees being taken out of the Legend of him neither euer were receiud as Canonicall in the Church nor hath the eldest Code of the Church of Rome or Fulgentius Cresconius Isidore Burchard Iuo or Gratian mention of any of them Not because what was taken to be truly his was altogether wanting for the Canons of one Councell of Rome vnder him his Epistles and some Decrees are and haue been from ancient time publique and dispersed in som of those Compilers
censuris ne simplices inficiant mordaciter feriantur Sic vnanimes in vera doctrina Ecclesiae permaneamus vt ad eum tendere valeamus de quo canit Propheta Quaerite Dominum confirmamini quaerite faciem eius semper sic laetetur cor quaerentium Dominum hic in via quatenus ipsum quaerentibus dignetur esse merces in patria Amen They were me thinks somwhat vehement and very confident in the point Neither haue I elswhere seen so great autoritie against Russell If Russell were therefore an Heretique doubtlesse he hath had and now hath many fellow-Heretiques for thus many nay the most of such as most curiously inquire herein and diuers Canonists also that are for the morall right of prediall and mixt Tithes denie that personall are otherwise due regularly then as custom or Law positiue which is subiect to custom directs But iudge you of it Reader I only relate it and return to their prosecution against Russell at length news came that he was at Rome whither presently the Conuocation sent agents to whom they allowd for an honorarie salarie a farthing out of euery pound of Church liuings that might there question him before the Bishop of Rome a delegation of the Conisance of the cause was made to a Cardinall who adiudged him to perpetuall imprisonment vnlesse he recanted the Frier afterward brake prison and ran home again where at Pauls Crosse when nothing els could satisfie the secular part of the Clergie he solemnly abiured his heresie as they calld it and to preuent the like in the doctrin of other Minorits Chicheley the Archbishop enioind them all that in their publique Sermons they should teach personall Tithes to be due by the Laws of God and the Church Of later time others haue writen for the diuine right and generall dutie of Tithes you may see Albertus Pius Carpensis against Erasmus Baronius his digression touching them others but especially the diuers Treatises writen to that purpose of late by our Countrie men which are read in euerie hand I purposely abstain from particular mention of their names But neither haue only single autors been lately of that side for prediall and mixt whole Synods also of this age haue in expres words been for them through whose autoritie this ancienter before rememberd they might haue fortified their Conclusions with far greater names then by citing some one or two late single men as they vsually do To omit the Councell of Mentz held in the yeer M.D.XLIX where it is deliuered that Decimae debentur iure Diuino and some other are to that purpose in the Decreta Ecclesiae Gallicanae collected by Bochell In an Edict of Henrie the second of France in M.D.XLII relation is of a remonstrance made to him by the Bishop Dean Canons Chapter and Clergie of Paris wherein they take it cleer that tithes and first fruits were introduitees instituees de droit diuin partant deussent estre payes Loyauement sans fraude The like of the Clergie of the Diocese of Troyes is mentioned in an edict of Charles the ninth in M.D.LXII in the same words and in the yeer before by a Generall Synod of all the Clergie of France at Poissy a complaint was made with that pretence in it the words of the Edict best shew it Charles c. à tous ceux qui ces presentes lettres Verront salut De la part de nos chers bien amies consiellers les Archeuesques Euesques de nostre Royaume et des deputez des Clergez qui ont este n'aguerez assembleza Poissy par nostre commandement nous à este remonstre que combien que les Diximes Primices qui sont leur principall reuenu soient introduitees instituees de droict diuin partant deussent esâ—re payees loyaument sans fraude ce neantmoins plusieurs Agricoles proprietarees c. with these may be reckond that of the Clergies petition in the parliament of 50. Ed. 3. wherein they begin with Licit Decima siluae presertim caeduae de iure diuino ecclesiastico Deo et ecclesiae sit soluenda c. VI. But Although by this Opinion and that of the Canonists Tithes be generally due by the diuine Law and so not subiect if with them you take it for the diuine morall or naturall Law to Ciuill Exceptions as Customes and Prescriptions of discharges or of paiment of lesse or such more whence also reall compositions haue been condemned quia Decimae cum temporalibus non sunt commutandae as the words of an old Pope were to the Bishop of Cusa yet the practised Common Law for by that name as common is distinguished from sacred are the Ciuill or Municipall Laws of all Nations to be stiled hath neuer giuen way herein to the Canons but hath allowd customes and made them subiect to all ciuill titles Infeodations discharges compositions and the like Of Compositions no more shall be spoken seeing they consist rather in indiuiduals then of any generall course we only remember them here as one kind of discharge among other that haue been allowd by common Laws and where Customes and Infeodations hold no man can doubt of the lawfulnesse of Compositions But of Customes in the Edicts made by those Kings of France vpon those remonstrances it appears that what euer the Clergie supposed by their Dixmes introduitees and instituees de droict diuin they complain of abuse only in due paiment of Tithes out of lands suiets redeuables aux dits dixmes c. that is subiect and liable to the paiment of Tithes neither in other words do the Edicts and their verifications giue them remedie And notwithstanding that it were once according to sundrie Canons of that Church thus commanded by an old Law of the yeer M.CC.XXXVIII made by S. Lewes Decimae quibus fuit longo tempore ecclesia per malitiam inhabitantium defraudata Statuimus ordinamus quod restituantur citius amplius laici decimas non detineant sed eas habere clericis permittant yet in that state against the whole course of the Cannon Law in this kind they haue what by reason of ancient Infeodations still continuing what through customs allowed diuers lands to be not at all subiect to any Tithes payable to the Church For their Infeodations although none can be there new created such as were made before that Canon prohibemus of the Councell of Lateran held vnder Alexander the third are to this day remaining and are conueied and discend as other lay inheritances excepting only such as being discharged of feudall seruice haue been giuen in to the Church For their Lawiers with the common opinion but erroneously suppose that all such Infeodations came from the Church and therefore they agree if any feudall Tithes be conueied into the Church freely by themselues not as annexed to other fiefs as castles or mannors nor subiect to tenures reserued that then they are in the Church
according to this haue some of our greatest and most learned Writers related But I doubt much how it can at all stand with truth For if Parochiae be here meant only for such as were assigned Limits for those which were sent arbitrarily from the Bishop out of the number of his Chaplains or his Clerus residing for the most part in those elder times with him at his Bishoprique then cleerely Honorius was not the first that made diuision of them Such kind of Parochiae are euen neere as ancient as Bishopriques and questionlesse in Augustines time how could otherwise Gods Seruice be orderly had in the Infancie of the Church And when euer seuerall Churches for Christian Seruice or other places for holy Assemblies began then began such Parochiae And that Churches were built here before Honorius his time is before manifested If on the other side Parochiae be taken for what it's vsually vnderstood that is for such Limits as now make Parishes bounded as well in regard of the profits receiud from the Parishioners due only to the Minister of that Church as of the Incumbents function and residence how will that stand with the communitie of Ecclesiastique profits and the Bishops and his Clergies liuing together that may be without much difficultie discouered out of Bede to haue continued after Honorius also But where euer that testimonie of his diuiding Parishes was first found I doubt it was mis-vnderstood through the various signification of Parochia For in those ancient times Parochia vsually denoted as well a Bishoprique or Diocese or bisceope scyre as the Saxons called it as a lesse Parish That signification is very obuious in the old Councells of both Tongues as it is also specially obserued by the learned Filesacus in his Paroecia and in the moniments of this Kingdome For it is related of King Cenwalch that he diuided Prouinciam in duas Parochias when he made a new Bishoprique at Winchester that was taken out of the Diocese of Dorchester And in the Councell of Hertford held vnder Theodore Archbishop of Canterburie one Canon is Vt nullus Episcoporum Parochiam alterius inuadat sed contentus sit gubernatione creditae sibi plebis So in Florence of Worcester vnder the yeere D. C.LXXX Merciorum Prouincia in quinque Parochias est diuisa that is into fiue Bishopriques And the truth is that it may be said properly enough that Honorius was the first vnder whom his Prouince was diuided into such Parochiae or Bishopriques that is No other Bishopriques except Canterburie London and Rochester were in his Prouince vntill his time those three being almost of one antiquitie But vnder him Byrinus was made first Bishop of the West-Saxons and had his See or Bisceop setle as they calld it at Dorchester and Foelix the Burgugnone was likewise ordaind first Bishop of the East-Angles at Dunwich Which two Ordinations in regard the like had not been in this Prouince of Canterburie from Augustines time till this Honorius were perhaps the cause why it might be related that Honorius primus Prouinciam suam in Parochias diuisit Which although it were to be conceiud of such Parishes as at this day wee call by that name yet could not extend to all his Prouince For not till long after his time was Christianitie receiud in the Kingdome of Sussex which was first conuerted by Wilfrid first Bishop of Selsey in the yeere D. C.LXXIX Hitherto then for aught can out of ancient Moniments be proued no Limits Parochiall in regard of the profits to be receiud from the Parishioners and spent by this or that Minister only were assigned But the ancient course of a kind of communitie of all profits of the Diocese with the Bishop and his Clergie remaind still in vse Neither was the interest of many Churches it seems as yet here in any Lay-founders But the Bishops as I thinke had both the interest and gouernance of the Churches built by the King and tooke care for building new in their owne endowments and hallowing old ones that had been either prophaned since Christian Seruice vsed in them among the Britons or formerly consecrated only to Heathenisme So may you vnderstand that of Byrinus first Bishop of Dorchester Factis dedicatisque Ecclesijs multisque ad Dominum pro eius labore populis aduocatis migrauit ad Dominum as Bedes words are in the Saxon of which it is exprest that the Ciricean Æ¿orhte gehalgode that is made Churches and hallowed them IV. But afterward when deuotion grew firmer and most Lay men of faire estate desired the Countrey-residence of some Chaplains that might be alwaies readie for Christian instruction among them their Families and adioyning Tenants Oratories and Churches began to be built by them also and being hallowed by the Bishops were endowed with peculiar maintenance from the Founders for the Incumbents that should there only reside Which maintenance with all other Ecclesiastique profits that came to the hands of euery such seuerall Incumbent in regard that now the Lay-founder had according to the Territorie of his Demesnes Tenancies or neighbouring Possessions made and assigned both the Limits within which the holy Function was to be exercised and appointed the persons that should repaire to the Church and offer there as also prouided a speciall Salarie for the performance was afterward also restraind from that common Treasurie of the Diocese and made the only reuenue which became perpetually annext to the Church of that Clerk who receiued it Neither was it wonder that the Bishops should giue way to such restraint for had they denied that to Lay founders they had giuen no small cause also of restraining their deuotion Euery man questionlesse would haue been the vnwillinger to haue specially endowd the Church founded for the holy vse chiefely of him his Familie and Tenants if withall he might not haue had the libertie to haue giuen his Incumbent there resident a speciall and seuerall maintenance which could not haue been had the former communitie of the Clergies reuenue still remained Out of these Lay foundations chiefely doubtlesse came those kind of Parishes which at this day are in euery Diocese their differences in quantitie being originally out of the difference of the seuerall Circuits of the Demesnes or Territories possessed by the Founders And after such time as vpon Lay foundations Churches had their profits so limited to their Incumbents no doubt can be but that the Bishops in their Prebends or Aduowsons of Parishes both in Cities and in the Countrey formerly limited only in regard of the Ministers Function restraind also the profits of euery of their seuerall Churches to the Incumbents that so a vniformitie might be receiued in that innouation of Parochiall right At what time these Lay foundations began to be frequent plainly enough appears not But some mention is of them about the yeer D.CC. as you may see in Bede where he speaks of one Puch a Saxon Noble man that had built
as regularly the later common Law would haue it and in the other by Prohibition only I know little proof will serue most men to iustifie that the Spirituall Court had then a Iurisdiction of them but also some testimonie I haue seen of a particular recouerie of Tithes in the Bishops Court in that age The Monks of Northampton vnder King Stephen recouered two parts of the Tithes of the demesnes of Wullaueston against Anselm de Cochis before Robert Bishop of Lincoln as Ordinarie In plenaria Synodo coram Roberto Lincolniensi Episcopo disrationauerunt as the words are in a sealed Charter of Simon the second Earle of Northampton then liuing wherein hee testifies both the recouerie as also Anselme's confirmation of the same two parts according to the recouerie and addes also of his own volo praecipio vt illam Eleemosynam habeant teneant liberam quietam And to this you may adde the Appeales to Rome from the Audience of the Archbishop of Canterburie and other Ecclesiastique Conisans touching Tithes that are as the ancientest Precedents of any such Ecclesiastique proceeding in England remaining among the Epistles of Iohn of Salisburie a great fauorite of Thomas Becket Archbishop of Canterburie in the beginning of Henrie the second In one of them it is obseruable by the way that one Richard the Tenant of Land lying within the Parish of Lenham being sued in the Audience by Andrew the Rector for his Tithes alledges in Court Sibi a nobili viro Willielmo fratre Regis Domino suo esse prohibitum ne eo absente super Decimis de quibus agebatur causam ingrederetur Yet the Court ceased not therefore to proceed but Sentence being readie to be giuen for the Rector the Cause was sent to Rome vpon the defendants Appeale And although the title were only vpon the Grant of him that arbitrarily consecrated yet was it somtime determined in the Spirituall Court But also that in this elder age before about the time of Henrie the second the Kings secular Courts of Iustice originally held plea of the right of Tithes is as plain by infallible proofe of ancient Moniments To begin with the eldest times of this part of our Diuision there remaines yet recorded a Plea held apud Fulcardi montem vnder William the second betweene the Monks of Salmur and Philip de Braiosa wherein the Monks claiming against him and the Abbey of Fischamp in Normandie Parochiam quae ad Sanctum Cuthmannum pertinet de Castello de Staninges these are in England I thinke in Sussex de Bedingas de Bedelingtona by the testimonie of Robert Earle of Mellent a Iudgement of the Conquerors time is cited by which the Abbey of Fischamp had the Parish of S. Cuthmann adiudged to it in the Kings Court And thereupon it being denied by none it was now again adiudged that the Monks of Salmur should restore whatsoeuer they had taken post mortem Regis in Decimis Sepulturis Offrendis c. to the Church of Fischamp And while some delay was in the execution the King sent his Writ ad Iusticiarios suos de Anglia that is to Ralf Bishop of Chichester Randoll his Chaplaine Hamon his Sewer and Vrso de Abetot whereby hee commanded Vt facerent Ecclesiam S. Trinitatis that is of Fischamp habere totam Parochiam S. Cuthmanni Decimas Corpora omnes Custumas tam de viuis quam de mortuis sicut pertinebant ad praedictam Ecclesiam S. Cuthmanni antequam Willielmus de Braiosa haberet Castellum de Bembra Bramber Castle in Sussex giuen by William the first to William de Braiosa quicquid de supradictis custumis Monachi de Salmur ceperint reddi The right of Tithes and Offerings appeares here plainely to haue been determined in the Temporall Court by two Iudgements the one vnder the Conqueror the other vnder his sonne William And it is found vpon record that about 10. Hen. 1. a Writ was sent to Manasses Arsic out of whose Lands diuers Tithes were conueyed into the Monasterie of Fischamp commanding him Quatenus Decimas a parentibus suis inuiolabili iure concessas datas Fiscamensi Ecclesiae Monachos suos apud Coges degentes omnes in paâ—e quiete habere faciat sinon Iustitiae Regis facerent Whereupon he sends his Precept to all his Tenants of such Lands commanding them to make payment Si quis autem aliter saith he facere praesumpserit Regis irae nostrae poenam sine dubio patietur So among the Liberties of Saint Iohn of Beuerley this Writ is found of Henrie the first Henricus Rex Anglorum Osberto Vicecomiti de Eboraco Geraldo de Bridesala salutem Praecipio vobis vt faciatis habere Ecclesiae Sancti Iohannis de Beuerlaco Decimas suas sicur vnquam melius habuit in tempore Regis Edwardi patris mei de illis videlicet terris omnibus de quibus homines Comitatus Eboraci testimonium portabunt quod eas habere debent Et quicunque detinuerit sciatis quod ego volo vt rectum faciat Deo S. Iohanni mihi T. Ran. Cancellario Comite de Mellet apud Londonias c. What is this else then a kind of Iusticies to the Shirife of Yorkeshire for the right of Tithes determinable by the Countrie Doth not homines Comitatus Eboraci denote as much Of the same time also in a Volume of Constitutions other things belonging to the Church of York Henricus Rex Anglorum Osberto Vicecomiti de Eboraco salutem Mando tibi praecipio vt Archiepiscopum Girardum permittas facias honorificè tenere Ecclesias meorum propriorum Maneriorum quas S. Petro eidem dedi cum omnibus Capellis suis cum omnibus Decimis suis cum omnibus terris suis videlicet Ecclesiam de Bokelinton de Driffeild de Killum de Pickering de Burgo Waltero Euremaro Ministris de Driffeild praecipio vt Decimas de hoc praeterito Augusto quas non reddiderunt plenariè reddant sicut Ecclesia eas iustè habere debet sicut vnquam eas melius habuit tempore patris mei siue meo antequam eas dedissem S. Petro videant ne ampliùs inde clamorem audiam si quis inde iniuriam fecerit Archiepiscopo tibi Osberte Vicecomes praecipio vt plenariam rectitudinem inde facias Teste Rogero Episcopo Sarisburiense apud Westmonasterium in Natali Domini And another is there in these words Henricus Rex Anglorum Ansch. Vicecomiti omnibus Praepositis Ministris suis de Driffeild de Pokelinton de Killum de Pikering de Burt salutem Volo praecipio quod faciatis habere Hugoni Decano Clericis suis benè plenariè omnes rectas Decimas de Dominijs meis in omnibus rebus per haec praedicta Maneria mea de omnibus Parochianis qui ad