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
of such as are of choicest Learning ablest Iudgment and truly Decumatissimi aswell in worth as Title Nor is it at all materiall what any one shall cast on it through his secure confidence only in any of those old ensigns of dissembled Ignorance or Grauitie the Beard the Habit and Title It is for such to learn by not at all to censure And none of the Ingenuous and Learned that read it wil be backward I think to allow it for Truth as he did that first licenced it for the Presse with Ita est subscription of his Name But wee leaue this preposterous Admonition in Negatiues yet by reason of the head-long importunitie of such as haue in great number alreadie misconceiud it they were necessarie and could not elswhere haue had so fit place and shortly thus delineat what it is by the end and purpose of writing it by the Argument of it by the Course of composing it and by the summe of performance in it in behalfe of the Clergie For the first we find that in the frequent Disputations about Tithes not only Arguments out of holy Writ for proofe of a Diuine right to them but matter also of Fact that is Practice and Storie is very often vsed as the kinds of paiment of them among the Ebrews among the Gentiles the Maintenance of the Church in the Primitiue times the Arbitrarie Consecrations Appropriations and Infeodations of them in the midle times the Payment of them at this day in the seuerall States of Christendom together with the various Opinions and positiue Laws touching them For Opinions and Laws as they are related only and fall vnder the Question of what and whence they were are meerly of Fact And proofs are hence often drawn to confirm sundrie occurrences in inquirie for the truth on either side That of the Diuine right of them is so wholly a point of Diuinitie and handled so fully by diuers Schoolemen so imperiously by most of the Canonists and so confidently by some of our late Diuines that what euer could be said touching that only by inference out of the holy Text which must be the sole triall of it would but seem taken from some of them which haue so purposely disputed it Neither were that so fit to be medled with by any as by a profest Diuine But for that other part which falls vnder Historie there is not one of them all which hauing boldnes enough to aduenture on it which he disputes withall of the diuine right shews not also too much either Ignorance or Negligence in talking of it being vsually deceiud and deceiuing in it those most of Readers that giue their Historicall faith captiue to bare Names and common reputation And as in that old picture of Homer the rest of the following Poets greedily swallowd what euer he had vomited forth so among these one so rashly receiues herein error from another and so increases it that there was neuer found a better example of the old prouerb Sardi Venales or worse and worse then in most of their multiplied pamphlets of it which of them relates towards what is fit to be known touching the paiment among the Ebrews among the Gentiles among Christians of former time nay which of them seem to know or to haue heard of the chief human positiue Laws made for Tithes yet would they gladly vse them if they had them where is there among them an ingenuous discouerie of the various Opinions of past Ages that belong hither who of them once touches the right ancient course of setling Tithes at first in Monasteries Colledges or other such Corporations by Appropriations and Consecrations of them who of them tells vs other then meer fables while hee talks of the originall of Infeodations and with what patience can you read those which as great Doctors talke of Exemptions and pretend themselues to the world for such as discouer the most secret curiosities or cornicum oculos configere tell vs of four Orders exempted and make the Hospitalers and those of S. Iohns of Ierusalem to be two of them with other such most grosse and ridiculous absurdities and it is a common but most deceiuing argument among them affirmatiuely to conclude Fact or Practice of Tithing from what they see ordaind for Tithes in any old Canon of the Church as if euery thing so ordaind necessarily had also a following vse it being indeed frequent enough to find Canons directly contrarie to following Practice and that euen in the proceedings of the Canon Law which as the body of it is was neuer receiued wholly into practice in any State but hath been euer made subiect in whatsoeuer touches the temporalties or maintenance of the Church which come from Lay men to the varietie of the secular Laws of euery State or to Nationall customes that crosse it Is it enough to proue that Parish Churches in England were regularly euer to be repaird by the Parsons because the generall Canon Law is so or that a Clergie man might not haue bequeathd any chattels wherin he had right in respect of his Church because also by that Law he might not In England generall customs of the contrarie in both cases still held and in many other as you see in Lindwood who knew both the generall practice here and the Canons and often also teaches their differences in other cases very many like may be found in other States by comparing their immemoriall customs and old ordinances that are against the Canons and that both in the Eastern and Western Churches and for the Eastern Canon Law passages are found to this purpose in Zonaras and Balsamon the two chief and ancient Canonists of that part The Laitie at pleasure commonly limited the Canon Law especially where it toucht their dignities or possessions and that aswell before Luther so derogated from the autoritie of it by burning it at Witteberg in a publique assembly in despite of the Pope as after which might be manifested by a world of examples but it is most cleer to all that know Historie To argue therefore from affirmatiue Canons only to Practice is equall in not a few things and especially in this of Tithing to the prouing of the Practice of a custom from some consonant Law of Plato's common wealth of Lucians men in the Moon or of Aristophanes his Citie of Cuckoes in the clouds To supply therefore the want of a full and faithfull collection of the Historicall part was the end and purpose why this was composd which might remaine as a furnisht Armorie for such as inquire about this Ecclesiastique Reuenue and preferring Truth before what dulling custom hath too deeply rooted in them are not vnwilling to change their old akorns for better meat As touching the Argument of it the whole being XIV Chapters the first VII are thus filled the first hath what is in best autoritie of the ancients belonging to those Tithes paid before the Leuiticall
themselues from the Patron seuerally and directly in point of interest The beginning of Parish Churches Disposition of the Offrings receiued there Lay-foundations of Parish Churches The interest that Patrons claymed Right of Aduowson The ceremonie of putting a Cloth or Robe vpon the Patron at the consecration of the Church The vse of Inuestitures by which as by liuerie of Seisin Lay Patrons gaue their Churches Commendatio Ecclesiae Benefice None anciently receiued the character of Orders but when also the ordination was for the title of some Church Thence came the later vse of Episcopall Institution Whence some Patrons came to haue most part of the Tithes Canonica portio The Clergy and Councels against Inuestitures Their continuance till towards M.CC. when Institution as it is at this day vpon presentation grew common How Appropriations were in those times made The ancient Episcopall right to Tiths especially in Germanie and the Northern parts How Monks iustified their possession of Tithes and Parish-Churches The right of Tithes generally denied in Turingia to the Archbishop of Mentz IV. Of Infeodations of Tithes into Lay-hands both from the Clergie and Laitie and of their Originall V. Of Exemptions graunted by the Pope Templars and Hospitalars accounted no part of the Clergie VI. The generall opinion was that they are due iure diuino but this indifferently thought on seems to haue denoted rather Ecclesiastique or Positiue Law by the doctrine and practice of the Clergy then Diuine Morall Law VII Laws Imperiall and Canons Synodall and Pontificiall for the payment of Tenths The grosse error of some that mistake Nona and Decima in the Capitularies The first Generall Councell that mentions Tithes CAP. VII Of the time from M.CC. or neere thereabouts till this day I. The Canons of Generall Councells and Decretalls for Parochiall right in Tithes not formerly otherwise conueyed which now became more established II. The opinion of the Canonists in the question of what immediate Law Tithes are due by is that they are payable iure diuino III. How the same question is determined by the opinion of the Schoolmen IV. Of those that held them meere Almes V. The opinion in Diuinitie that concludes them due iure diuino With a Determination of the Vniuersitie of Oxford touching Personall Tithes VI. Laws Customs and Practice of France in exaction of them Of their feudall Tithes at this day VII Laws Customs and Practice in Spain touching the generall payment of Tithes Tithes there in Lay mens hands VIII Customs and Infeudations in Italie Payment in Venice in Germanie Of the Hungarians Polacks Swethians and others touching the dutie and possession of Tithes IX Of Tithes in Scotland With an Example of an Appropriation of Churches and Tithes there by Robert de Brus. And something of Tithes in Ireland CAP. VIII The Laws of England made in the Saxon mycel synodes or ƿitenagemotes in Parliaments and in the Coūcels here held either National or Prouincial or by the Pope for the due payment or discharge of Tithes in this Kingdome Petitions or Bils in Parliament touching them are inserted all in their course of time CAP. IX I. Of Parishes in the Primitiue Church of the Britons II. Parishes in the Primitiue Church of the English Saxons first limited only in regard of the Ministers function not of Parochiall profits all the profits of euery whole Diocese first made a common treasure to bee disposed of by the Bishop and his Clergie of the same Diocese Residence of the Bishop and Clergie in those times The great regard then had to euery Clergie man III. Of diuision of our Parishes whether Honorius Archbishop of Canterburie first deuided them Parochia or Paroecia diuersly taken IV. Lay-foundations of Parish Churches from whence chiefly came Parochiall limits in regard of the profits receiud to the singular vse of the Incumbents Limitation of Tithes by King Edgar to the Mother Parish Church or Monasterie Monasteries preferd before other Churches for buriall Mortuaries 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a third part of Tithes according to King Edgars Law must be giuen to a new built Church that had right of Sepulture by the Founder Sepultura and Baptisterium Capella Parochialis a Parish commanded to be made out of another that was too large by the Pope one Parish ioynd to another by the King CAP. X. I. The Practice of Tithing Of King Cedwalla's Tithing being no Christian. the custom of the German-Saxons in sacrificing their tenth captiue to Neptune Decima vsed for a lesse part also in ancient moniments II. The Practice of Tithing in the Christian times of our Ancestors the tale of Augustin and the Lord of Cometon touching non payment of them the Tithe of euery dying Bishops substance to be giuen to the poor by an old Prouinciall Synod Tithes how mentiond in Domesday Testimonies of payment of them Henrie the thirds grant of the payment of tithe of Hay and Mills out of all his demesnes The beginning of Parochiall payment of Tithes in common and established practice in England How that common assertion that euery man might haue disposed his Tithes at his pleasure before the Councell of Lateran is true and to be vnderstood CAP. XI I. Arbitrarie Consecrations of Tithes before about the time of the most known Councell of Lateran by conueiance from the owner of all or part to any Church or Monasterie at his pleasure in examples selected out of moniments of infallible credit II. A Writ in the Register intelligible only from those arbitrarie Consecrations a like example to it out of the booke of Osney III. The libertie of the Baronage anciently challenged to build Churches in their Territories Parochiall right to Tithes setled in Practice IV. Of Tithes of encrease in lands not limited to any Parish How by the common Law they are to be disposed of CAP. XII I. Appropriations and Collations of Tithes with Churches The Corporations to which the Appropriations were made presented for the most part Vicars Thence the most of perpetuall Vicarages II. How Churches and Tithes by Appropriation were anciently conueyed from Lay-Patrons The vse of Inuestitures practiced by Lay-Patrons III. Grants of Rents or Annuities by Patrons only out of their Churches Of the Bishops assent More of Inuestitures A Writ to the Archdeacon anciently sometime sent vpon recouerie of a Presentment IV. Of hereditarie succession in Churches V. Laps vpon default of Presentation grounded vpon the generall Councell of Lateran held in 25. Hen. 2. What Praesentare ad Ecclesiam is originally Donatio Ecclesiae CAP. XIII I. Infeodations here into Lay hands since the Statuts of Dissolutions Of Infeodations before that time in England somewhat more of the originall of Lay mens practice in arbitrarie Consecrations or Infeodations II. Exemptions or discharges of payment originally by Priuiledges Prescriptions Vnitie Grants or Compositions and by the Statuts of Dissolutions CAP. XIV I. The iurisdiction of Ecclesiastique causes in the Saxon times exercised by the Shrife and the Bishop in the Countie
when the Clerk had already his Orders or the patronage that was directly in point of interest conueyed but withall the Glebe and Tithe made parochiall by Grant Foundation or Custome And the title of the Church the Monasterie according to the Patrons prouision in many Appropriations and in others at their pleasure still gaue afterward by Presentation of a Clerk whom the Bishop instituted For the Clergie except Bishops and such as had Episcopall right by priuiledge gaue vsually by Presentations these Inuestitures being altogether against their Canons and but like the Bishops Collations Neither did any such thing follow vpon such Presentation as Disappropriation in regard of the Endowments or Temporalties for such was the nature of the Appropriations that the Church remaind notwithstanding presentatiue and the Incumbent that came in by presentation had the Church only vnder the name of Vicar and in anothers right and receiued the Tithes and the profit of the Glebe no otherwise then to the vse of the Monasterie in which the Appropriation had setled them as Inuestiture should haue done in an Incumbent Neither was the Title of the Church and the Endowments so entire a thing but that according to the Patrons interest and will they might by the Law then in practice be so seuerd The ordinarie instruments of such Appropriations plainly shew it And all the maintenance of the Incumbent was at the bountie of the Monasteries allowance And it is exprest vsually in old Instruments of Appropriations that such a Clerk should answer to the Bishop de spiritualibus vobis autem to the Monasterie de temporalibus Which is complaind against in that of Iohn of Salisburie Personatus quosdam introduxerunt quorum iure ad alium onera ad alium referuntur emolumenta Herewith agrees the generall Councell of Lateran held in the yeer M.C.LXXX. where the ancient course of filling Churches thus appropriated to Religious Houses is commanded to be thenceforth better obserued In Ecclesijs suis quae ad eos pleno iure non pertinent that is those which they held both exempt from Episcopall Iurisdiction and in them had the right of Institution and Destitution by Priuiledge instituendos Presbyteros Episcopis praesentent vt eis quidem de plebis cura respondeant ipsis verò de rebus temporalibus rationem exhibeant competentem For how euer by the Canonists of later time this in the Councell and in our Appropriations be vnderstood variously and for the most part of Churches whereof Religious Corporations had only the Patronage and according to their Law no propertie whence also they interprete that rationem competentem for an account only which the Patrons might exact but not for a denoting of the propertie or right that the Religious Houses had in the profits yet doubtlesse in those times that suis Ecclesijs in this and the like Canons had reference to Churches appropriated only or to such as were possessed by equall right to expresse Appropriation And although Innocent the fourth being of the ancientest Writers on the Decretals rather iustifies that more common opinion whereof you may haue most speciall declaration in our Lindwood yet others and as great Lawyers of that time expressely suppose that the Temporalties are by that passage vnderstood due and payable to the Monasterie and that not an account only was to be made of the dispensing of them Expressely Hostiensis vpon the difference of their Churches held pleno iure and not pleno iure Vbi pleno iure non pertinet tunc habet ibi Monasterium temporalia representationem Praesbyteri Vicarij tantum c. Whereas if it were theirs pleno iure they had also Institution and Destitution to themselues And elsewhere likewise he makes the enioying the Temporalties to be denoted by Pro rebus Temporalibus debita subiectio And so Durand whom they call Speculator in his precedent for the Libell whereby a Monasterie hauing founded a Church was to demand the Temporalties thus proposes the suit Cum Ecclesiam illam Monasterium à fundatione habuit for in those ancienter times the right of Foundation of a Church and Appropriation were as one to Religious Houses sic per consequentiam in temporalibus sibi debeat respondere petit temporalia in ipsa Ecclesia sibi adiudicari c. Is it not then plaine that respondere in temporalibus denotes the taking of the Temporalties to the Monasteries vse Hostiensis and Durand are better authoritie to proue how the Law was anciently taken then a cart-load of the later and more barbarous Other reasons might be brought to proue this but I presume no man will doubt it that knowes how to examine it I only adde this obseruation to help cleere it out of a Bull of Pope Lucius the second to the Prior and Canons of Kenelworth wherein licence is giuen them to hold their Churches in proprios vsus that is in manu vestra as the words are retinere earum Beneficia ad proprios vsus reseruare constitutis ibidem Vicarijs Diocesano Episcopo praesentatis qui eis de spiritualibus vobis verò de Temporalibus omnibus videlicet Decimis Obuentionibus debeant respondere dum modo Vicarijs caeteris Ministris earundem Ecclesiarum in necessarijs prouideatis c. What can be plainer then that the phrase of respondere in the Canons is here as it were purposely declared as we haue conceiud it according to Antiquitie And sometimes also Appropriations were made by Lay men reseruing to themselues a ius patronatus and ius praesentandi But all the profits of receiud Tithes and Glebe were theirs who so had the Appropriations and were dispensed at their pleasure and to the Curats in both kinds as they thought fit were some Salaries giuen which turnd afterwards oft time into Vicarages that belong to such Appropriations whence also it came that their Presentations haue been since and are now taken to be only to those Vicarages being made perpetuall whereas indeed their Vicars were originally presented to the whole Rectorie but had the benefit no otherwise then is before declared The words of conueyance in Appropriating commonly were Dedi confirmaui Ecclesiam de N. cum decimis or cum Decimatione c. Whereby the Church Glebe and Tithes passed equally by way of interest to the Monasterie So anciently and at this day manie Couents but especially the Praemonstratenses haue diuers Churches continually in their owne hands And some of the Monks receiud into Orders discharged the Cure And in such Instruments of the elder Times as more commonly ordayned that they should keep the Church presentatiue the Church it selfe passed also it seems as well in right of propertie as of patronage which sometimes also as is before noted was excepted to the grantor Examples enough are extant wherein all this is apparant For that more generall way of appropriating Tithes the Church still remaining presentable which specially
in lands of the Crown are at the arbitrarie disposition of the King such places haue been and I think are in diuers Forests And hereof saies Thorp in 22. Assis. pl. 75. Il soleit estre ley quant il auer certane place qui fuit hors de chescun Paroche come en Englewode huiusmodi en tel case le Roy ad doit auer les dismes de cest place nient l' Euesque de lieu a granter a que luy plest and relates further that the Archbishop that yeer made suit to the Councell to haue had such Tithes But vnder fauor this was vnderstood only of the Kings granting the tithes of his Demesnes occupied by his Bailifes according as in ancient time euery man els did for whateuer the words seeme to import Thorp speaks only of such lands of the possession of the Crown in which case it must not perhaps be vnderstood so much a part of the Royall prerogatiue as a right due to the King by common Law in regard of his possession of lands not limited to any Parish Neither doth he affirm that Tithes of such places are due to be paid to the Crown but that they are in the King to grant at his pleasure if growing in his demesnes But to this purpose is a notable case in the Parliament rolls of 18. Ed. 1. where Ralph Bishop of Carleol Petit versus Ecclesiae Priorem de Karliel Decimas duarum placearum terrae of the new assarts in the Forest of Inglewood whereof the one is called Linthwait the other Kirkthwait Quae sunt infra limites Parochiae Ecclesiae suae de Aspaterike c. and laies by praescription in his predecessors the Tithes of the pannage there before the assarting or culture Henrie of Burton also Parson of Thoresby claimed in Parliament the same Tithes as belonging to his Church and infra limites Parochiae suae and the Prior comes saies that Henricê° Rex vetus Henrie the first it seems concessit Deo Ecclesiae suae Beatae Mariae Karliel omnes Decimas de omnibus terris quas in culturam redigeret infra Forestam inde eos feoffauit per quoddam cornu eburneum quod dedit Ecclesiae suae praedictae c. Whereupon the Kings Attorney Dicit quod Decimae praedictae pertinent ad Regem non ad alium quia sunt infra bundas Forestae de Inglewood quod Rex in Foresta sua praedicta potest villas aedificare Ecclesias construere terras assartare Ecclesias illas cum Decimis terrarum illarum pro voluntate sua cuicunque voluerit conferre eò quod Foresta illa non est infra Limites alicuius Parochiae c. Et petit quod Decimae illae Domino Regi remaneant prout de iure debent ratione praedicta c. Et quia Dominus Rex super praemissis vult certiorari vt vnicuique tribuatur quod suum est William of Vesci Iustice of the Forest beyond Trent and Thomas of Normanuill his Escheator for those parts for so was the diuision anciently of Escheatorships were assigned Commissioners to enquire of the truth certificent Regem ad proximum Parlamentum c. So are the words of the Record Where the Attorney challenges not the right by prerogatiue but only in regard that the place being the demesne Land of the Crowne not assigned to any Parish the Tithes are grantable by the King as owner at his pleasure And so it well agrees both with that liberty challenged by King Iohn in the name of his Baronage that they might found new Churches at their pleasure in their owne fees before the establishment of Parochiall right in Tithes as also with the more ancient practice of the Kingdom whereby Tithes might not be parochially exacted nor were so reputed due but by the owners arbitrarily conueyed in perpetuall right And whereas Herle in 7. Ed. 3. fol. 5. a. sayes generally That no man might arbitrarily giue his Tithes that are not within Parochiall Limits but that the Bishop of the Diocesse should haue them It seems he spake suddenly as out of the Canon Law and not according to the Law of England And hee addes that it is against reason Que home ne purra my granter ses almoignes a que il vouldra And but two yeeres before that of Herle it was adiudged in the Kings Bench Quod de Decimis grossis Priori de Carleol praedecessoribus suis de dominicis Domini Regis infra Forestam de Inglewood prouenientibus extra quaruncunque Parochiarum Limites existentibus per Cartam progenitorum Domini Regis nunc concessis per Cartam ipsius D. R. nunc confirmatis c. a Prohibition should be granted against the Bishop of Carleol that claymed them It was vpon a Record sent thither out of the Parlament as in the Roll appeares largely And Edward the first gaue such Tithes of the Forest of Dene as encreased not within any Parish to the Bishop of Landaff by which title the Bishop afterward claymed them and no question was of that point But for common or waste ground the Parish whereof is not known the Statute of 2. Ed. 6. hath giuen the Tithe cattell therein depasturing to the Church within whose Parish the owner dwelleth CAP. XII I. Appropriations and Collations of Tithes with Churches The Corporations to which the Appropriations were made presented for the most part Vicars Thence the most of perpetuall Vicarages II. How Churches and Tithes by Appropriation were anciently conueyed from Lay-Patrons The vse of Inuestitures practiced by Lay-Patrons III. Grants of Rents or Annuities by Patrons only out of their Churches Of the Bishops assent More of Inuestitures A Writ to the Archdeacon anciently sometime sent vpon recouerie of a Presentment IV. Of haereditarie succession in Churches V. Laps vpon default of Presentation grounded vpon the generall Councell of Lateran held in 25. Hen. 2. What Praesentare ad Ecclesiam is originally Donatio Ecclesiae I. AS by Consecrations seuerally so with Churches in Appropriations Tithes were frequently conueyed and by expresse name as Ecclesia de N. cum Decimis or the like are vsually giuen Monachis Monialibus c. ibidem Deo seruientibus c. according to what is before noted of other Countries But this Mention of Tithes with Churches in Appropriations was rare or not at all till after the Normans In the Saxon times many appropriated Churches are found and that from between D.CC. and D.CCC. yeers since till the Normans but the Charters that conueyed or confirmed them haue vsually nothing but Ecclesias and so many Carues or Yard Lands or so much rent annext to them nor speaking at all of any Tithes transferd with them For speciall examples of such ancient Appropriations you may see the recitalls of the Charters of King Bertulph King Beored and King Edred made to the Abbey of Crowland and inserted in Ingulphus But after the Normans in Appropriations
it was constituted that Nullus Abbas nullus Prior nullus omnino Monachus vel Clericus Ecclesiam siue Decimam seu quaelibet beneficia Ecclesiastica de dono Laici sine proprij Episcopi autoritate assensu suscipiat quod si praesumptum fuerit irrita erit donatio huiusmodi c. and some allowance was giuen to these Canons by the King yet it is most certain thât the practice was for diuers yeers afterward otherwise and that Churches with Tithes were most commonly giuen by lay Patrons without the Bishops assent or institution and that as well by filling them with Incumbents as appropriating them to Monasteries Chapters or otherwise Beside the examples that might enough proue it and are obuious in old Chartularies the preamble of a Decretall of Alexander the third sent vnder Henrie the second to all the Bishops of the Prouince of Canterburie is herein full testimonie Ex frequentibus querelis saies he didicimus in partibus vestris consuetudinem prauam à multis retro actis temporibus invaluisse quod Clerici Ecclesiastica beneficia sine consensu Episcopi Dioecesis vel Officialium suorū qui hoc de iure possunt recipiunt minùs quà m deceat sollimitè cogitantes quomodo id à Patrum sanctorū est institutionibus alienum Ecclesiasticae contrarium honestati Vnde cum tu frater c. where you see plainly that course of inuestiture or donation by the Patron without presentation was consuetudo quae a multis retro actis temporibus inualuerat which shews it to haue been then a part of the secular Law though the iudgment of the Bishops and the Pope titles it Praua agreeing to this are other testimonies in Gregories Decretalls and that in Epistles to all the Bishops of England to forbid it and it is specially obserueable how ill the Baronage of England tooke it when Anselm vnder Henrie the first would haue through Papall Canons inhibited the practice of inuestitures vsed by the King and other lay Patrons which is recorded in an Epistle of that Anselm directed to Pope Paschal the second thus speaking Domino Reuerendo Patri diligendo Paschali summo Pontifici Anselmus seruus Ecclesiae Cantuariensis debitam subiectionem orationum assiduitatem Postquam reuocatus ad Episcopatum redij in Angliam ostendi decreta Apostolica quae in Romano Concilio praesens audiui ne scilicet aliquis de manu Regis aut alicuius Laici Ecclesiarum Inuestituras acciperet vt pro hoc eius homo fieret nec aliquis haec transgredientem consecrare praesumeret Quod audientes Rex Principes eius ipsi etiam Episcopi alij minoris ordinis tam grauitèr aceperunt vt assererent se nullo modo huic rei assensum praebituros me de regno potiùs quam hoc seruarent expulsuros à Romana Ecclesia se discessuros vnde reuerende Pater vestrum petij per Epistolam nostram consilium c. This is in the Ms. Volume of Epistles of Anselm fairly writen by Iohn de Grandisono Bishop of Excester in the yeer M.CCC.LXIV in which are aboue C. more then are published in his printed Works they menaced the Archbishop with banishment and the Pope with reuolt from his See only for their withstanding that practice of Inuestiture whereof for so much as concernes Abbeies Priories or Bishopriques in giuing them by the ring and baston much testimonie is in the storie of about that age and the Kings remission of the Inuestitures of those great dignities is frequent but for Parish Churches of which we here chiefly speake the common occurrences of Inuestitures mention them but litle But for the vse of them known also by the name of Institution see the Fine anon transcribed of 33. Hen. 2. as also specially a commission sent by Pope Alexander the third to the Dean of Chichester touching a Parson that was legitimè institutus à Willielmo Nobili viro and had resigned Personatum Capellano Domini But this course of Inuestiture by Lay men after Anselmes time began to bee of lesse vse and some obeying the Canons presented others still collated by Inuestiture till about Richard the first and King Iohns time whereof more in the next Paragraph To the Lay Patrons challenged right of such Inuestiture of Churches and Tithes belongs specially the Granting of Rents and such like out of Rectories by the Patrons only and the Sonnes or others Succession in Parish Churches after the death of their ancestors of both which litle known vulgarly ancient warrant is yet remayning III. For the first in the Chartularie of the Priorie of S. Needs in Huntingdonshire one Robert Fitz-water about King Iohns time giues to the Priorie six marks of siluer nomine certi beneficij in Ecclesia de Wimbisse annuatim percipiendas per manum personae eiusdem Ecclesiae Quare volo saies he vt quicunque in praefata Ecclesia de Wimbis ad praesentationem meam vel haeredum meorum persona instituta fuerit praenominatis Monachis S. Neoti de supradicto beneficio VI. marcarum fidelitatem faciat saluo mihi haeredibus meis iure aduocationis praesentationis c. and diuers other such like are Neither haue I met with a precedent of those times wherein the Encumbent was Grantor as at this day by the Cōmon Law the Church being full I think he must but most vsually a prouision by the Patron was inserted to this purpose that the seuerall Encumbents should by Oth bind themselues to the true payment nor was it so necessarie to haue the ordinaries assent when that which the Ordinarie by the practice of the later Law is to do in his Institution was in frequent practice supplied by the Patrons Inuestiture Out of which may be the better vnderstood that part of the new Canon in the Synod of Westminster held vnder Richard Archbishop of Canterburie in 21 Hen. 2. Nulli liceat Ecclesiam nomine Dotalitij ad aliquem transferre that is That no Patron should giue his Church as it were in Frankmariage or make of it a Donatio propter nuptias as the Ciuilians call it to remain with the husband of his Daughter or Kinswoman during his life How could such a gift haue at all been made by presentation as of later time it is vnderstood Institution or Induction and a most obseruable example of this matter is in a Fine of 33. Hen. 2. in these words Haec est finalis concordia facta in Curia Domini Regis apud Cantuariam anno Regni Regis Henrici secundi XXXIII die Venetis proxima post festum sancti Iohannis Baptistae Coram Radulpho Archidiacono Colecestriae Rogero filio Reinfri Roberto de Witefeld Michaele Belet Iusticiarijs Domini Regis alijs fidelibus Domini Regis ibidem tunc praesentibus inter Priorem de Lewes Monachis eiusdem loci Willielmum filium Arthuri quem Richardus de Budegintun pofuit loco suo
in a hand of about Henrie the fifth in the Booke of Osney which would as well giue light to the course of Arbitrarie Consecrations before largely opened as to these Infeodations if it were of sufficient credit but you shall first haue it compendiously deliuered and then iudge of it This title is put to it Qualitèr Laici ad id priuilegium peruenerint quod locis Religiosis illas Decimas conferre possint Then sayes he that writes it he had heard from a good Ciuill and Canon Lawier that had been present at the Disputation of the point in a case happening between a Religious house and a Parson for Tithes in the Parsons Parish who claimed them iure communi that the Aduocat for the Religious house being put to make a speciall title against the Parsons common right told the Court a long storie of Easterne holy Warres about Pipins time and interposed somwhat of Charles Martell and concluded that the Pope and the Church euery where graunted in reward to the Christian Princes for their Barons Knights and Gentlemen that spent their blouds labours and estates in those Warres the priuiledge of arbitrarie disposition of the Tithes of their lands by reason of which Graunt they afterward made not only Arbitrarie Consecrations of them but also Infeodations into Lay hands according as the common opinion among the Canonists is too confidently receiued at this day Then he tells vs that before rememberd of the Tithes in Bampton and cites some texts out of the Decretalls that touch Infeodations Next he relates that among the Princes of the holy Warre about Martell and Pipins time the Duke of Normandie was a speciall one whence hee had also that priuiledge touching Tithes pro se ac suis as the words are And lastly to bring it into England hee thus concludes Et cum Dux Normanniae Willielmus ad conquisitionem Angliae venisset quidam Miles eius Robertus d'Oylleye nomine malens suas Decimas Deo commendare quam contra naturalem Ecclesiae consuetudinem ipsis vti eas Ecclesiae S. Georgij quam in Castria Oxenford construxit contulit Et posteà ad Monasterium Osney per Diocesanum Capitulum Lincoln ac etiam per Aduocatum Canonicè deuenerunt But it all tasts of nothing but ignorance For what touches Martell and his time generally enough alreadie is said And see but what a bold ignorance here was to tell vs that the Duke of Normandie was one of the greatest personis Regum exceptis as his Language is that went in the holy Warre in succursum Ecclesiae Romanae in those times of Pipin and Martell I would he durst haue told vs also who had then been Duke of Normandie Neither that title of Dignitie nor that name of the Countrey were till about CL. yeers after Martell at all known The Territorie being then vnder the French Kings who long after gaue it to the Normans and erected it into a Dukedome Indeed the Duke of Normandie had good place in the later holy Warres about M.XCV. but did not that make this Aduocat say that the Duke of Normandie was a speciall Prince in the other also of Martell's time Such of the later midle times stand not much vpon the mingling of Stories that differ in themselues euen many whole ages Besides he tells vs of strange Princes names of the East that made the Warre against the Church Plainly the most pretended cause of the rest that erre herein as much as hee doth is the Saracenicall Warre in Martell's time and that out of Spain not from the East And had it been so vnder Martell's time as it is vsually affirmd what had that been to England But you see his prouidence for that matter where he deriues it from the Duke of Normandie But what though there had been some such Duke of Normandie whose Successor had afterward either conquered or enherited England had therefore the old supposed priuiledge of retaining or disposing of Tithes been thence communicated to his subiects of England and that to the losse of the Church here that neuer could haue gotten good by the supposed cause of the priuiledge All the Canon and Ciuill Law that the Aduocat had could neuer haue proued such a consequent It will still remaine most probable if not cleere that what Infeodations were in England had their originall as well out of the right of arbitrarie disposition of Tithes challenged by the Laitie without the grant of the Pope or Church as out of Compositions or Conueyances from the Clergie according as in other States For no sufficient Storie no credible Moniment no Passage or Testimonie of worth can iustifie that generall right of retainer or disposition to haue been giuen by the Clergie or Pope vpon any cause whatsoeuer though the Canonists and others that follow them cry against it vsque ad rauim The vse of Infeodations before those later holy Warres we haue alreadie shewd And that no vse of them could be about Martell's time is not lesse apparant by what is also before deliuered But beside this blind testimonie of the ground of Consecrations or Infeodations for England especially you may take that as it is also of Lindwood who thus speaks touching the Portions which Religious houses had Hae Portiones saith he potuerunt peruenisse ad locum Religiosum de concessione etiam Laici cum solîus Diocesani consensu de Decimis vel prouentibus quas Laicus talis ab Ecclesia alia habuit in feudum ab antiquo according to that in tit de his quae fiunt à Praelatis sine ass cap. c. cum Apostolica And hee addes that this is only true if those Tithes were infeodated before that Councell of Lateran of MC.LXXIX And then concludes with Nam ante illud Concilium bene potuerunt Laici Decimas in feudum retinere eas alteri Ecclesiae vel Monasterio dare Non tamen post tempus dicti Concilij For his interpretation of the Councell enough before towards the ends of the VI. and X. Chapters But doth not Lindwood here suppose ancient Infeodations of Tithes at least created by Churchmen in England Doth he not thence fetch the originall of Portions belonging to Religious houses in England commonly though he writ as a Canonist yet he addes the speciall custom of England if he speak of any Canon Law which he thinks had not place here but he excepts not England in this but implies it therefore doubtlesse he supposed a common vse of ancient Infeodations among our Ancestors but I doubt he had not better ground for it then what he found in others of his profession that had rememberd the frequent vse of Infeodations in other States before that Councell and he so applied it equally to his own Countrie and with them takes the Infeodations to haue had originall only from the Grants of Church-men therefore I value his testimonie here but as of a common Canonist and not sufficient to satisfie vs touching our
aestimari possunt vsque ad quartam quintam vel sextam partem aduocationis vltra quam partem non extenditur prohibitio vt videtur tunc fiat Iudicibus Ecclesiasticis Prohibitio in hac forma Rex talibus Iudicibus salutem Indicauit mihi c. But he mentions no Writ of right of Aduowson of Tithes that should follow Hee saies indeed that vpon the Indicauit by consent only of the Patrons there may be an enquest taken the Iurie being returnd into Court by Venire facias or Distringas had by petition of them so consenting tanquam de Aduocatione to find Vtrum talis praesentatus à tali Patrono recentèr fuerit in seisina de talibus Decimis tanquam spectantibus ad Ecclesiam suam quam tenet de praesentatione talis Patroni sui vel si talis alia persona inde fuit in seisina tali tempore vt de Decimis spectantibus ad Ecclesiam suam talem quam tenet de aduocatione talis Patroni sui But how euer Bracton's owne opinion yet doubtfully be that the Indicauit might bee brought for the sixt part and for no lesse yet it seemes the practice of the age was otherwise and that no determination was in his time nor before 13. Edw. 1. of any certaintie therein which is expressely deliuered in the Grieuances comprehended in the Nationall Councell of London in 21. Hen. 3. where all the Clergie entreated Otho the Popes Legat that hee would perswade the King to alter and correct certaine proceedings quae fuerunt in regno Angliae in praeiudicium libertatis Ecclesiasticae among which one is Item ne currat prohibitio you must vnderstand the Indicauit Ne Iudices Ecclesiastici cognoscant de iure Patâ—onatus quominus Clerici possunt petere Decimas tanquam de iure Communi ad Ecclesias suas pertinentes Quia Patroni Ecclesiarum vel Capellarum quae Decimas petitas possident dicunt per talem petitionem Iuri Patronatus sui derogari nolunt Iusticiarij Domini Regis Iudicare quota pars Decimarum peti possit vel debeat coram Iudice Ecclesiastico And another Item ne currat prohibitio Domini Regis ne Rector Parochialis Ecclesiae impetat eos qui percipiunt Decimas infra limites Parochiae suae By both which compared with the ancient Bookes it appeares that the Kings Prohibition lay commonly if the Aduowson of the Tithes were between two persons questioned and that also for aught occurres to the contrarie except Bracton's coniecture if any part of the Tithes or the Aduowson which in such a suit were reputed as one had been controuerted To these testimonies may be added this in the Epistles of the most learned Robert Grossetest Bishop of Lincolne vnder Henrie the third whereby the course of Indicauit is proued and also taxed for iniustice against the libertie of the Church Thus is it spoken of among other grieuances of the Clergie Item in Ecclesiae libertatem non mediocritèr delinquitur cum Iudices Ecclesiastici ne causas quas notum est purè esse Ecclesiasticas in foro discindant Ecclesiastico à domino Rege prohibentur Vt per literas Regias inhibetur ne Iudex Ecclesiasticus iudicialitèr cognoscat vtrum Ecclesia vel Capella talis loci sit Capella Matricis Ecclesiae alicuius alterius loci vtrum Decimae talis terrae ad hanc vel ad illam pertineant Ecclesiam eò quòd si Actor in huiusmodi causâ euincat possessionem Ecclesiae Rei contingeret imminui ac per consequens vt aiunt ius Patronatus eiusdem Ecclesiae deteriorari Ecclesiâ ad quam Patronus praesentabat effectâ minus pingui Accideret namque ratione consimili omnem causam super possessionem vel quasi possessioneÌ„ Ecclesiasticam inter duos Rectores duarum Ecclesiarum diuersorum Patronatuum emergentem ne ventilaretur coram iudicibus Ecclesiasticis a domino Rege debere prohiberi eo quod Actore in huiusmodi causa euincente coÌ„tinget semper Ecclesiam Rei imminui ac per hoc secundum quod dicunt Patronatum eiusdem deteriorari Consequetur autem sic quod huiusmodi causae Ecclesiasticae nunquam discindentur A seculari enim iudice discindi non poterunt neque ab Ecclesiastico iudice obstante Regiâ prohibitione Fortè autem nec consequitur quod in huiusmodi casu euincente actore imminuetur Patronatus alterius Ecclesiae Non enim minus est Patronus qui minoris Ecclesiae est Patronus sed nec minùs est pater qui minoris hominis est pater Patronatus enim seu ius Patronatus non intenditur vel remittitur ex maioritate vel minoritate rei cuius est Patronatus Praetereà sed tubera ea quae contra naturam excrescunt in carne hominis non augent ipsum hominem medicinalis abscissio innaturalium huiusmodi excrementorum ipsum hominem non imminuit sed potius pulcrificat sanat Ita iniustè possessiones quasi possessiones Ecclesias ipsas non augent sed deturpant earum abscissio per iustum iudicium non est Ecclesiarum imminutio sed potius pulcrificatio quaedam sanatio vnde Patronatus seu ius Patronatus per huiusmodi abscissionem nullo modo potest imminui vel deteriorari sed multò ampliùs emendari I faithfully relate it and censure not the Arguments You may doe that Reader while you smile at the Magis and Minus in it But also although the Indicauit prohibited the Spirituall Court yet it seemes the Temporall before the Statute of Westminster 2. and after the time of Henry the second or thereabouts held no Plea of right of Aduowson of Tithes except only vpon Inquest taken by consent of both Patrons something as you see might be tried in it May we not conclude then that the same Statut in those words Habeat Patronus Rectoris sic impediti breue ad petendum Aduocationem Decimarum petitarum was the first Autor at least after the change about the time of Henrie the second of the Writ of Right of Aduowson of Tithes Which also is well iustified by the pleading of the Abbot of Selbies case within six yeeres after the Statute wherein the parties according to the fashion of argument in pleading of that time agree Quod breue de quarta parte Decimarum primo locum habere caepit à tempore Statuti Regis nunc apud Westmonasterium inde editi c. Neither rests any scruple touching the fourth part why the Prohibition in the Indicauit and the Writ of Right should bee of the fourth part only or of a greater although the Statute of Westminster 2. speak of no certaine part For that of Circumspectè agatis ordaines That no Prohibition or Indicauit should lye where the part controuerted is lesse then a fourth it being before grantable vpon such suit for a sixt part by Bracton's opinion and it seems indeed vpon suit for any part and the Statute of
among the Ebrews or Iews then and also is seconded by other autoritie before touched but any reference there had to aÌ„ Christian practice of Tithing I suppose no man will affirm that is of a sound brain and vses holy Writ with due reuerence But my application of some passages in S. Cyprian in § 1. here are found fault withall in that I vnderstand not hiâ— mention of the word Decimae to be a note of paiment of Tithes in his age Indeed I did not think that any man which vnderstood Cyprian with the vse of his time in making vp the Ecclesiastique Tresure would haue therin taxed me Neither haue I giuen his words alone then my own Glosse as many haue done too often and that in things of the nature of this subiect and so haue deceiud their credulous Readers but I haue carefully and shortly exprest also the occasion of his passages and so that an vnderstanding Reader may collect as much out of them as he might do if he had the whole context of Cyprian by him If I haue errd in the interpretation it is but my single error and theirs that dare giue autoritie here to my iudgement whoeuer can think otherwise by Cyprians words if he saw him may equally do so by my relation howeuer then I impose not on any Reader But for that second place of his out of his De Vnitate Ecclesiae obserue his words more fully Thus they are Domos tunc fundos venundabant thesauros sibi in coelo reponentes distribuenda in vsus indigentium pretia Apostolis offerebant At nunc patrimonio nec Decimas damus cum vendere iubeat Dominus emimus potius augemus So farre is this from denoting any paiment of Tenths of annuall increase which is the Tithe we enquire after that indeed no such Tenth seems here to be vnderstood in the mention of Decimae he speaks of them which sold their whole estates in the Apostles times but now saith he we giue not the Tenths of our patrimonies that is we giue not the Tenth part of what deuout Christians then did but in stead of selling for deuotion we buy and increase our estates What other Tenth is here spoken of then the tenth part of euery mans patrimonie or estate and what hath that to do with the tenth of Annuall encrease only and for any vse of paiment in this time I was not so bold to make the negatiue that no Tithes were paid but that it could not be proued that any were He that can shew me aught omitted that might proue it shall deserue and haue thanks of me In the meane time further to iustifie what I affirme take this of Epiphanius Bishop of Constance in Cyprus that about the yeer CCC.LXXX wrote against the Heresies of the primitiue times when he tels vs of the Tessaresdecatitae or those which thought the holy Easter must be kept on the fourteenth Moone according to the Law giuen to the Iews for their Passeouer and that because they apprehended that the keeping it otherwise was subiect to the curse of the Law he saies that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is they do all things or agree generally with the Church sauing that they were too much herein addicted to the Iewâ—sh custome and in his argument against them he shewes that the curse hath not reference only to the Passeouer but also to Circumcision to Tithes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to Offerings Wherefore as he goes on if they escape one curse by keeping their Easter according to the Law of the Passeouer they thrust themselues into many other For saith he they shall find them also cursed that are not Circumcised and them cursed that pay not Tithes and them cursed that offer not at Ierusalem Let any man now consider if this Bishop that was least vnacquainted with the customes of the Christian Church vnderstood not cleerly that no necessarie or knowne vse of paiment was among Christians in his time of Tithes no more then of Circumcision or offering at Ierusalem Doth he not plainly reckon it as a thing not only not in Christian vse but euen equalls it with what was certainly abrogated is not his Obiection shortly thus Why do you not obserue Circumcision and Tithing and Offerings also at Ierusalem which are all subiect to the like curse and because some kind of Offerings indeed were in vse among Christians therefore in the Obiection he prouidently ties them to Ierusalem But of Tithing he speakes as generally as of Circumcision Obserue his owne context which I here giue that the able Readers iudgement may be free 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is So that if they auoid one curse they fall vnder many other For such shall be also found accursed as are vncircumcised such accursed as Tithe not and they aâ—e also accursed in the old Law that offer not at Ierusalem I confesse this may perhaps seem not to extend to the African Church wherein S. Cyprian and S. Augustine liued that was farre remote from Epiphanius being of the Greek Eastern Church and so not to sufficiently proue that in those times no paiment was in vse there The like perhaps may be obuiously thought of in referring it to the Westerne Church of Europe But it seemes that the African European Eastern Greek Churches of those times had litle or no difference twixt them in the setled policie for their maintenance And for the African howeuer out of S. Augustines Sermons it may be collected that a paiment soone afterward was there in vse yet herein both the Greek Eastern and the African Churches are specially so like each other that neither in the Councells or Canons of the one or the other of them any Law at all is found for paiment or ordaining any thing touching Tithes nor as I remember doth the name of Tithes once occurre in them or in Photius his Nomocanon or in Zonaras or Balsamâ—â— the chiefe Canonists that writ on the Eastern Canons I mean here the Canons of the Greek Church of credit not including those called the Apostles Constitutions equally belonging to all Churches if vnder that name to any of which more presently But it had been litle to the purpose indeed to haue had Tithes of Annuall increase paid while that most bountifull deuotion of good Christians continued in frequent Offerings both of lands and goods to such large value as you see exprest in that of the Gouernor of Rome to S. Laurence being Archdeacon to Pope Xistus the second in the ninth persecution vnder Decius He tells him that the common fame was that the Christians did often Offerre fundis venditis Sestertiorum millia And that Addicta auorum praedia Foedis sub auctionibus Successâ—r exhaeres gemit Sanctis egens parentibus Et summa pietas creditur Nudare dulces liberòs no doubt can be but that the Gouernor is here made to speake somewhat beyond the truth But also questionlesse the liberall deuotion
Lent out of S. Gregorie is not easily perhaps apprehended by euery Reader without a litle more explication The Sundaies as they were exempt out of the number of daies so were they from the fasting of Lent thence comes his conceit of the Tithe of Time in XXXVI daies which is 1 10. of CCC.LXV so Fractions be omitted and to make vp fortie which is exprest in Quadragesima the known name for Lent the four daies preceding Quadragesima Sunday are to be added this was the intent of that fancie But how sleight and nothing to the purpose that obseruation of the Tenth of Time is howeuer the Canonists as sworn to their Text make of it is easily seen not only in the abusd libertie of calculation of it but also by the customs and Laws of both Churches the West and East in their various limits of this time of fasting Popes Telesphorus they say made it VII Weeks and other diuersities hath it had in the Western Church and the Eastern church exempted both Saterdaies and Sundaies from fasting through all Lent except only the Saterday that next preceded Easter Sunday as also they fasted not on the day of the Annunciation What regard had they then think you to the Tithe of Time Of the VI. Chapter THe practice of paiment in the third CCCC yeers was Parochially obserued in some places but especially by Clergie men to Clergie men who with such as were reputed among them subiected themselues more to their Canons then the Laitie could be brought to do But it seems somewhat plain by the many examples of Arbitrarie Consecrations to Monasteries and other Churches related in § 2. whereto ioine also the English practice in the XI Chapter and the Charter of Henrie the eighth Duke of Bauiere of the Tithes of Ranneshâ—fen giuen to the Church of S. Pancrace that the paiment of them Parochially performd by Lay men was yet frequently omitted or continued to their own wills Whence otherwise could the Founders and Benefactors of Monasteries haue made Tithes part of their endowments it was not in these elder times so much by giuing them Churches as the most that speak of this ignorantly think telling vs that all Tithes came into Monasteries by appropriating of Parish Churches as by conueying to hem diuers Tithes alone and newly created and after those gifts Consecrations or new creations nâ— other Tithes were paid vpon any other right out of that Land which was so charged with them But most of those Consecrations were at one time or another at length confirmd by Popes and Bishops and so cleerly after enioyd which plainly also supposed a former strength in them For regularly Confirmatio ex proprio significatu denotat firmitatem actus confirmati as Panormitan and other Canonists say and nihil iuris noui tribuit sed tantum vetus confirmat But it is plain that after Parochiall right established that is since about M.CC. when the Canons grew more powerfull and obedience to them became more readie such confirmations by bishops and Popes and such consecrations creations or new grants by Lay men of Tithes haue bin taken and declared cleerly void as you may see in a decree of Pope Innocent the III touching Tithes so granted by a Knight of Berry in France and confirmd by the Archbishop and in another of his about Tithes so giuen or created to a Church by the King and Queen of Hungarie and after confirmd by a Pope or two and who can doubt now but that all such grants in regard of preuention of the Parsons right be not only void by the practiced Canon Law of this day but also by the Secular or common Laws of most States if not of all where Tithes are paid in Christendom For admit at this day that Titius grant Decimas suas of such an Acre to the Parson Abbot or Bishop of such a Church and this be confirmed by whom you will The Tithe due from him Parochially is not toucht by it why because they are setled iure communi as the Law is practiced in the Parish Rector but in those elder times such an arbitrarie grant vested the Tithe in the Church to which it was giuen and no other afterward was paid Why because then notwithstanding the Canons no ius commune no Parochiall right of Tithes was setled or admitted in the practice of the Laitie And for those ancienter grants be not deceiud by such as tell you they were alwaies of Tithes formerly infeodated from the Church that hath no ground to iustifie it neither can any man at al proue any common course of such Infeodation of Tithes from the Church into Lay hands to haue been in any State till the later times of Reformation of Religion in some places and dissolution of Monasteries and those two examples which are in Pope Innocents decrees are expresly of new creations at least not of infeodated Tithes as euery Canonist will acknowledge But cleerly they both were in themselus according to the many other but they had not the fortune to be confirmd in such time as the Pope or Clergie vsually gaue way to the former practice of arbitrarie Consecration And doubtlesse also after such time as the Clergie saw that the Canons made for Parochiall right of Tithes had gotten force and that the former creations or grants of Tithes by Lay men which were indeed practiced agianst many Canons both Papall and Synodall were by that name of Lay-mens grants creations or consecrations declared vtterly void by the Pope and his Canon Law although confirmed by whomsoeuer such of them as had originally no other true titles to Tithes so commonly consecrated by Lay men subtilly enough in the next foure hundred yeers left off the pretence of their Lay grantors bountie especially if the Grantor had been a common person and betook themselues only to prescription of XL. yeers and to what other times might be allowd to setle a right to them vpon a possession of Tithes and by what way retaind safely what otherwise if they had held themselues to the deeds of their Lay grantors and to Confirmations had been in danger enough of being recouered from them by Parish Rectors So that when the prescription was good in regard of time and possession although the originall Title it selfe were naught yet because any other iust Title might be pretended to ground the prescription on which also was not of necessitie to be proued incorporeall things it was not difficult to haue a faire course to maintaine their possessions and right of such consecrated Tithes as had been possest so fortie yeers before they were questioned by Parsons which claimed them iure communi For against them such a prescription by any other Church Abbey or Bishoprique or such like is a good Title Remember also their erecting of Parochiall Chappell 's within the larger Territories out of which they had portions plainly the erecting of such Chappell 's for Parish