of Tithes therefore I wholly omit them One example of an Appropriation in Scotland may be here not vntimely added which falls about the yeer M.CC.XC and shews a kind of arbitrarie disposition euen at that time of Parochiall Tithes of lands lying there in a conueyance of a lay mans made to the Monasterie of Giseburn in Yorkeshire The Grantor was that Robert de Bruis afterward King one of the Ancestors of our Soueraign The Originall thus speaks Omnibus ad quos presens scriptum peruenerit Robertus filius Roberti de Brus Dominus Vallis Anandiae salutem in Domino sempiternam Nouerit vniuersitas vestra me concessisse praesenti scripto confirmâsse Deo Ecclesiae Sanctae Mariae de Giseburn Canonicis ibidem Deo seruientibus seruituris Ecclesiam de Anand cum terris Decimis possessionibus ad eam pertinentibus Ecclesiam de Logmaban cum terris Decimis possessionibus ad eam pertinentibus Ecclesiam de Kirkpatric cum Capella de Logan omnibus suis pertinentijs Ecclesiam de Rainpatric Ecclesiam de Cumbartres Ecclesiam de Greâ—enhowe cum omnibus pertinentijs earum Tenendum Habendum Deo praefatis Canonicis eorum successoribus liberè quietè honorifice Ita quod liceat eis perpetuis temporibus de Decimis praedictarum Villarum libere disponere ordinare pro voluntate sua cuicunque voluerint eas ad firmam dimittere dare vel vendere alio quocunque modo voluerint vbicunque voluerint commodum suum facere sine Impedimento mei haeredum meorum hominum nostrorum c. The seale in green wax annext to it hath impression of a Knight armd and mounted as for present onset in the wars is circumscribed with Esto Ferox vt Leo. How the Laws of Ireland stand for Tithes is best seen in the Statuts of that Countrie of 28. Hen. 8. cap 17. of dissolutions and 33. Hen. 8. cap. 12. of payment according to ancient custom and recouerie of Tithes after the dissolution giuen into lay hands in like manner as in England And here may be no vnfit place to remember that ancient Law ordained by Henrie the third within the Archbishoprique of Dublin whereby it was commanded that euery man non expectato mandato Regis vel assensu de gurgitibuâ— Piscarijs Ecclesijs in quarum Parochijs sunt praedicti gurgites vel piscariae Decimas soluant quia R. non vult in periculum animae suae huiusmodi Decimas detineant We purposely omit particular mention of such of the reformed Churches as in this last age haue brought their Ministerie to stipends and alterd almost all the former practice of Ecclesiastique policie For the practice of payment and other disposition of Tithes and for the Laws and Opinions touching the right of them thus much But whateuer this Kingdom of England might haue specially afforded for Laws and practice of Tithing shall by it selfe in its own singular order be next deliuered CAP. VIII The Laws of England made in the Saxon mycel synodes or Æ¿itenagemotes in Parliaments and in the Councells here held either Nationall or Prouinciall or by the Pope for the due payment or discharge of Tithes in this Kingdom Petitions or Bills in Parliament touching them are inserted all in their course of time MOst of the English Laws Constitutions and Bills in Parliament that are reserud to this place and here collected were originally writen in Saxon Latin or French and the Saxon for the most part were anciently but it seems since the Norman conquest turnd into a barbarous latin that yet better shews their meaning then a purer Such as are found in Latin only I haue faithfully deliuered according to the Copies that gaue them Neither durst I suspect that any Reader fit for the matter should need an Interpreter no otherwise haue I done in what is of the old French it can hardly be any thing but inexcusable sloth that can trouble any Reader that is fit also for the matter in the vnderstanding it But in regard the old Saxon is known at all to few and that hardly any better interpretation of the Laws writen in that language can be then the old barbarous Latin I haue ioined alwaies where it might be both the Saxon and the Translation To haue left out the originall had preuented some freedom of the Readers iudgement and tied it to the translators to haue added no translation had been as a purpose to haue troubled euen the fittest Readers with a strange tongue which also to haue otherwise interpreted had been but to enuie them the help of those Ancients that had better means to know the interpretation of those Laws and so make them looke only as through spectacles of mine new made I was willing to giue all as the course of the collection would permit that herein might help to make a ground of free iudgement yet also where I see cause of note I adde it but refer all to able censure The Laws and Constitutions thus succeed I. An ancient collection of diuers Canons writen about the time of Henrie the first with this inscription of equall age Incipiunt excerptiones Domini Eâ—gberri Archiepiscopi Eburace Ciuitatis de iure Sacerdotali hath these words Vt vnusquisque Sacerdos cunctos sibi pertinentes erudiat vt sciant qualitèr Decimas totius facultatis Ecclesijs diuinis debitè offerant and immediatly follows Vt ipsi Sacerdotes à populis suscipiant Decimas nomina eorum quicunque dederint scripta habeant secundum autoritatem Canonicam coram testibus diuidant ad ornamentum Ecclesiae primam eligant partem scundam autem ad vsum pauperum atque peregrinorum per eorum manus misericorditèr cum omni humilitate dispensent tertiam verò sibimet ipsis Sacerdotes reseruent If the credit of this be valued by the inscription then is it about DCCC.L. yeers old For that Ecbert liud Archbishop of York from the yeer DCCXLIII to DCC.LXVII But the autorite of that Title must vndergo censure Who euer made it supposed that Ecbert gathered that Law and the rest ioind with it out of some former Church Constitutions neither doth the name excerptiones denote otherwise But in that collection som whole Constitutions occur in the same syllbles as they are in the Capitularies of Charles the Great as that of vnicuique Ecclesiae vnus mansque integer c. and some others which could not be known to Ecbert that died in the last yeer of Pipin father to Charles how came be then by that and how may we beleeu that Ecbert was the autor of any part of those Excerptions vnlesse you excuse it with that vse of the midle times which often inserted into one body and vnder one name Laws of different ages but admit that yet what is secundum Canonicam autoritatem coram testibus diuidant The ancientest Canonica autoritas for
Commons so differ touching the execution of the Canons and insomuch that afterward also the Commons put in a Bill Que nul Estatute ne Ordenance soit faite ne grante au Petition du Clergie si ne soit per assent de voz Commens Ne que vous dites Commens ne soient obligez per nulles constitutions qu'ils font pur lour auantage sanz assent de voz dites Commens Car eux ne veullent estre obligez a nul de voz Estatutz ne Ordinances faâ—tz sanz lour assent But the answer was only thus Soit ceste mature declarè en speciall This by the way XXXIV Here may be rememberd thatagreement in the Parlament at Salisburie Quòd consultationes fieri debent de silua caedua eo non obstante quod non renouatur per annum But to what Parlament to refer that agreement expressed by Concordatum fuit coram Consilio Regis in Parlamento c. I sufficiently know not vnlesse to that of 7. Rich. 2. held at Salisburie the Rolls whereof hath nothing of it XXXV In 5. Hen. 4. a Bill was put in by the Commons against the exaction of Tithes of Quarries of Stone and Slatt Thus it speaks Item priont les Commens que come plusors lieges nostre Seignior le Roy sont souent foits vexiz trauaillez per Persons Vicaires de Seint Esglise per Citations Censures de Seint Esglise pur Dismes de Peres Sclattes oueres trahez hors de Quares de sicomne nul Disme de nul tiel Pierre ne Sclatte vnques ne feust demande de nulle Disme ent paie que pleise a granter que si ascun Prohibition soit fait en le cas que nul Consultation soit grant a contrarie Hereto the answer was Le Roy s'aduisera But you may see hereof more in the ancient Opinions of the Iudges deliuered in the Register and Fitzherbert XXXVI In 27. Hen 8. chap. 20. it is enacted by Parlament That through all the Kings dominions euery subiect according to the Ecclesiasticall Laws and Ordinance of this Church of England and after the laudable Vsages and Customes of the Parish or other place where he dwelleth or occupieth shall yeeld and pay his Tithes c. And some other speciall courses for recouerie of Tithes are in that Act ordained XXXVII By the Statute of Dissolution of Monasteries of 31. Hen. 8. chap. 13. it was enacted That the King and his Patentees should hold the Possessions of the dissolued Monasteries discharged and acquited of payment of Tithes as freely and in as large and ample manner as the Houses of Religion held them at their time of the dissolution XXXVIII After the dissolution of Monasteries to which diuers Tithes and Parish Churches had been appropriated and were now setled in the Crowne and thence conueyed into Lay hands an Act was made in 32. Hen. 8. cap. 7. commanding euery man fully truly and effectually to diuide set out yeeld or pay all and singular Tithes and Offerings according to the lawfull Customes and Vsages of the Parishes and Places where such Tithes or Duties shall grow arise come or be due And remedie is giuen for Ecclesiastique persons before the Ordinarie and for Lay men that claimed appropriated Tithes by grant from the Crown in the secular Courts by such actions as vsually Lay possessions had been subiect to XXXIX By the Acts of 27. Hen. 8. cap. 21. 37. Hen. 8. cap. 12. and the Decree made vpon them the Citizens and Inhabitants of London and the Liberties were commanded to pay their Tithes to the Parsons Vicars and Curats of the Citie according to a rate of the rents of their houses that is two shillings nine pence for euerie pound and that if no rent be reserued the Tithe should be duly paid according to what their houses had been last letten for and according to that also are owners bound to pay But a Prouiso is in the Decree That where a lesse summe then after two shillings nine pence the pound hath been accustomed to bee paid for Tithes in such places the former custome should be continued And some other particulars are in it which are too long to be here transcribed you may easily see it whole But anciently in London on euery Sunday and other principall Feast day the chief maintenance of the Ministers was encreased by a farthing offered out of euery tenne shillings of rent Ex Ordinatione antiqua sayes Lindwood and that Ordinance as I haue heard was either made by Roger Niger Bishop of London in 13. Hen. 3. as a new one or as a confirmation of former vse as which of these I purposely abstain here to enquire in dicta Ciuitate tenentur singulis Dominicis diebus in principalibus Festis Sanctorum Apostolorum aliorum quorum Vigiliae ieiunantur offerre pro singulis X. solidis redditus domus quam inhabitant vnum quadrantem And the LII farthings so yeerly paid on Sundaies only came so neere to the iust Tenth of the rent that they were thought on as a Tithe paid the other being reputed rather by the name only of Offerings Which you may see in the same Lindwood where he disputes the question whether those farthings excused the Citizens from personall Tithes of their gaines and concludes that they did not But before these Acts and the Decree no Tithes as Tithes were generally paid in that Citie in some places they were as in the libertie of S. Martins le Grand which is rather in London then of it neither can I but here remember that custom of the Eastern Church thus maintaind chiefly with Offerings or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as they called them which specially appears in the answere of Theodore Balsamon Patriarch of Antiochia to Mark Patriarch of Alexandria touching the quantitie of what was to be offered He tells him that no certain quantitie is appointed by the Canons and that through inequalitie of mens estates none of them giuing any such part to the Church as that it could discouer their abilities which permits not a regular certaintie they were contented with what custom and free bountie of the giuers bestowed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 saies he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is in substance the same before in English XL. In 2. and 3. Ed. 6. chap. 15. it was enacted that all prediall Tithes should be thenceforth paid as of right they had been within fortie yeers next preceding or according to custom ought to haue been with allowance of Priuileges lawfull Prescriptions or CoÌ„positions reall and personall Tithes of gain by merchandise and artifice in such places and as within XL. yeers preceding they had been accustomably vsed to be paid are commanded to be paid yeerly at or before Easter Other particulars and the remedies giuen by the Act may be easier found in it then I can transcribe them XLI To these may not amisse be added those Laws for Tithes
not then either the purpose or conuenience of thâ—â— Historie bee valued from what distemperd Malice Ignorance or Iealousie haue cryed it down with in corners The learned Frier Bacons most noble Studies being out of the rode of the lazie Clergie of his time were vehemently at first suspected for such as might preiudice the Church Reuchlin and Budè the one for his Ebrew the other for his Greek were exceedingly hated because they learned and taught what the Friers and Monkes were meere strangers to Others about their time had like fortune Neither was any one thing in the beginning of the Reformation so vnwillingly receiud or more opposd by such as labourd that Ignorance might still continue in her triumph then that singular light to the cleering of error the Geek Text of the New Testament first publisht in print by Erasmus and it was ordaind as he saies vnder great penaltie in I know not what Colledge of Cambridge that no Fellow of the house should be so impious as bring it within the gates For the World hath neuer wanted store of such blockes laid in the way of Learning as willingly endure not any part of curious diligence that seekes or teaches whatsoeuer is beyond their commonly receiud Nihil vltrà But there are others that both can iudge and doe wish for all light to Truth such they were that euen while IgnoraÌ„ce yet held her declining Empire defended those Worthies Bacon Bude Reuchlin Erasmus and the rest that so sufferd and to doubt whether this of mine shall find such also were but to question wâ—ether euery man were yet a malicious Rebell to Truth and wholly without Ingenuity that performes euen as much in fostering her as Time doth in breeding her But neither is the Worke alone taxt by mistaking of the subiect but also in regard of the Autor what hath a Common Lawyer to do so they murmur with writing of Tithes for by that name it pleases them to stile me and I must confesse I haue long labourd to make my selfe worthy of it But I would their discretions also would designe out to whom it belongs more to write the Historie of Tithes then to a Common Lawyer I expect not such a sottishnesse as that they should so much as dream it to bee more proper to any of the other single professions of this Kingdome except to a Diuine or a Ciuilian vnder which name because those which practice the Canon Laws here according as the Common Laws permit take their Degrees in the Ciuill Law I comprehend also the Canonist and vse hath here made the name of Ciuill Law to denote both Ciuill and Canon For the Diuine what is there in the course of his Study restraind to his profession that can neer enough instruct him in the Laws and Practice especially of the Christian times Nor is the Practice or Laws of Tithes among the Iews as they are deliuerd interpreted by their Doctors more indeed restraind to the course of Diuinitie then of Law and Historie But should a Ciuilian rather haue dealt with it if hee then eyther according to what we vnderstaÌ„d by that name in England as a Ciuilian or as a Canonist if as a Ciuilian hee should theâ— haue made that proper to himselfe touching which in the whole body of his Law though hee take in also Theodosius his Code the Basilica and the Nouels of the later Easterne Emperors not the least mention is found of Tithes belonging to the Church Indeed a case is put by Vlpian of vowing of Tithes which some old ignorant and barbarous Doctors vnderstand of Tithes among Christians but they were long since laught at for it by him that first happily labourd in the restoring to that Profession the lost neatnesse and elegancie of the Text. That was cleerly spoken of the Roman vse only of vowing to Hercules or the like But should the Ciuilian as a Canonist haue done it what in all his Decrees Decretals and Extrauagants though hee ioyne many armies of his Doctors directs him to the Practice of the Iews Gentiles or Christians where shall the Canonist or the Ciuilian or the Diuine in the courses of their proper studie find the many Secular Laws made in behalfe of the Clergie for Tithes where the ancient practice of payment If it be cleer then as I hope none hath the impudence to denie it that neither the Diuine nor Ciuilian nor Canonist by the course of their owne appropried Studies can come to what is necessary in the knowledge of the History of Tithes it will bee as cleere that none of them could challenge the medling with it as a right specially belonging to any of their Professions But neither indeed is it proper to any one alone of those that are commonly made Professions The truth is both it and not a few other enquiries of subiects too much vnknowne fall only vnder a farre more generall Study that is of true Philologie the only fit Wife that could be found for the most learned of the Gods Shee being well attended in her 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or daily seruices of Inquiry by her two Hand-maids Curious Diligence and Watchfull Industrie discouers to vs often from her raised Towre of Iudgment many hidden Truths that on the deuell of any one restraind Profession can neuer be discerned and euery Profession takes from her to it selfe as was long since obserud some necessary part not elswhere to be sought for not much otherwise then as the Subaltern sciences do from their Superiors or as they all do from that Vniuersalitie or First Philosophie which is but the more reall part of true Philologie and establishes principles to euery Facultie that could not of it selfe alone know how to get them But is not the companie of this great Lady of Learning with her attendants as fit for a Student of the Common Laws of England as for any other pretending what facultie soeuer I neuer heard that shee was engaged alone to any beside Mercurie Noâ— find I any conditions in the Mariage twixt her and Mercurie that shee should fauour any one particular Profession more then another I know there haue been and are many common Lawiers of other States for euery State in Christendom is gouerned by its own Common Laws and Customs and hath truly its common Lawiers as is further shewd towards the end of the Reuiew so farre from being strangers to Her that they are all to be reputed of her chiefest Darlings and some of them are hardly equalled among any other Professors witnesse in France those euer honord names Bude Cuiacius Brisson Tiraquell Pithou Pasquier Le Thou Aerault Berterie Sauaron and others in the Empire Gruter Freher Ritterhuse in the vnited Prouinces Groot Heuter and the like elsewhere For these all were or are practicers of the various common or secular Laws of their own Nations although they studied the Imperialls and Canons in the Vniuersitie and who of the learned knows not
what light these haue giuen out of their studies of Philologie both to their own and other Professions and that in rectifying of Storie in explication of good Autors in vindicating from the iniurie of time both what belongs aswell to sacred as prophan studies why then may not equally a common Lawier of England vse this Philologie and by consequent be a fit Autor of this Historie of Tithes as of a proper issue of Philologie it being indeed much more proper also to Philologie in a common Lawier then in one of any other Profession For the two chief parts of it that is Practice of paiment and the Laws of Tithing that either are in force or euer were receiud touching them in any State were alwaies and are part of the proper Obiect of his Studies and what euer Diuines or Canonists conclude of them it is the Secular or Common Laws only that according to Customs and various Ordinances permit or restraine the Canons in legall exaction of them and that in other States aswell as in England for howsoeuer it be affirmd by some which enough accuratly think not of it that the Clergie euery where in the Western Church being scarce a hundreth part of the People are inricht with whole Tithes of Fruits of the Earth and of Cattell yet it is certain that in no State of that Church whole Tithes are vniuersally paid But frequently Customs not only of a Modus but de non decimando are by force of secular Law practiced witnesse for the Empire is in that Diet of Norimberg vnder Charles the fift where the lay Princes of the Empire complaine against the Church for offering to put their Canons for Tithes in practice Etsi Laici per multa annorum curricula de certis eorum praedijs neque maiores neque exiguas vt vocant praestiterint Decimas c. As much for Spain is in Gouaruuias for Italie in Vgolin Caietan others for France in Papon on the customs of Burbon Boerius on those of Berry de Grassalio beside the many Arrests of Parlament that are adiudged against the Canons But these things are more particularly shewd in the Seuenth Chapter wherein as in the rest we haue affected rather what is Autoritie enough then what is various Who now can shew colour why this was not a worke proper enough for a Common Lawier But this whole Premonition I thinke is as well more then is necessarie to the truly iudicious as it may perhaps seem lesse then what satisfies to the numerous Pretenders that neither know any way that lies out of their beaten Rode nor value books but as Stationers do nor admit willingly of any other kind of Studies then such as are more like sordid Occupations then Liberall Professions But I stay you too long here Reader Trie now how I haue performd my promise spare not to trie with your most censorious examination sed magis acri Iudicio perpende si tibi Vera videtur Dede manus aut si Falsa est accingere contra THE CONTENTS CAP. I. Of Tithes before the Law I. Melkizedek had Tithes only of the spoiles of Warre giuen him by Abraham 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 denotes spoiles of Warre and perhaps also profits taken from the ground or Ruta caesa II. Iacobs vow and payment of Tithes Both Abraham and Iacob were Priets when they paid Tithes In whom the Priest-hood was before the Law III. Whether any certaine Quantitie were obserued in the Offerings of Cain and Abel IV. A Cabalistique operation in numbers by which Tithes and the first Fruits offered by Abel might haue a mysticall identity Such operations were amongst old Christians also but meerly vaine CAP. II. How among the Iews Tithes were paid or thought due I. First fruits and Heaue offering that is sixtieth parts at least first were paid out of the fruits of the earth II. The first Tithe was paid to the Leuites who out of that paid a Tithe to the Priests and then the second Tithe III. The errour of them that make a third Tithe The second Tithe of euery third yeere spent on the poore what they take the yeer of Tithing to signifie in Deuteronomy IV. Aboue a sixt part was yeerly paid by the Husbandman but no Tithe by him to the Priests V. How their Cattell were tithed VI. A discontinuance of payment among them Honester Ouer-seers chosen for the true payment Demai that is things doubtfull whether Tithes were paid of them or no. Passages in Epiphanius and S. Chrysostome of their Tithing VII Their Tithing of euery herb what their Canonists hold Titheable VIII Their Law of Tithing after the destruction of their second Temple ceased by the doctrine of their Canonists which teaches also that they are not to pay elsewhtre then in the Land of Israel and some adiacent Countries Presbyteratus Iudaeorum totius Angliae anciently granted by the English Kings CAP. III. Tithes how paid or due among the Gentiles I. Some Romans paid to some Deities and somtimes only a Tenth of spoiles of procede of merchandize of their estates but vsually also by vow which bound the Heire or Executor II. Festus is falsly cited for a generall custom of payment of Tithes among the Ancients III. Examples of Tithes paid among the Graecians IV. How the assertions of a generall vse of giuing Tithe to the Gods among the Graecians are to be vnderstood and why 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is to Tithe signifies also to Consecrate V. A Tithe paid to Hercules of Tyre and Sabis an Arabian Deitie the same with Iupiter Sabazius CAP. IV. In the first foure hundred yeers after Christ. I. No vse of Tithes occures till about the end of this foure hundred yeeres Offerings and Monthly pay for maintenance of the Church in the primitiue times Diuisiones Mensurnae Sportulae II. Payment of Tithes of Mines and Quarries to Christian Emperors The wealth of the Church enuied III. The opinion of Origen touching Tithes IV. Constitutions of those times that mention them are of no credit CAP. V. From about the yeer CCCC till DCCC I. Tithes were now paid in diuers places to Abbots to the Poore to the Clergie II. Some Consecrations were then made in perpetuall right at the pleasure of the Owner III. That storie of Charles Martell his taking away Tithes making them feodall cannot be iustified IV. The opinions of S. Ambrose S. Augustine S. Hierom and S. Chrysostom the first two teach the Tenth due by Gods Law the other two perswade only that a lesse part should not be offerd V. Of Canons for the payment of Tithes that are attributed to this Age. CAP. VI◠Between about the yeer D.CCC. and neere M.CC. I. Payment of Tithes how performed II. Arbitrarie Consecrations of them alone like Grants of Rents-charge at the Lay-owners choice to any Church or Monasterie were frequent and sometimes Lay-men sold them to the Church Redimere Decimas III. Appropriations of them with Churches wherin they passed as by
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
Archdeacon of Leicester while the Bishoprique of Lincolne was void which shewes that those times were the infancie of the exact course of Episcopall Institutions as they are at this day vsed Neither had these any priuiledge of Institution as the Archdeacon of Richmond had anciently giuen him or the like At this day and from long time before the Archdeacon only Inducts as the Books common practice shew But thereof thus much by the way IV. For that other of Succession in the Benefices of the Ancestors doubtlesse that was often when the father or other ancestor was Incumbent and Patron and by that challenged right of the time of Inuestiture and sole disposition of the Church would either in his life time conuey the Benefice to his sonne or heire by grant which by the practice of the time supplyed it seemes as well a Resignation as Presentation Institution and Induction or would so leaue the Aduowson to discend to his heire that he being in Orders might retaine the Church in his owne hands according as the Law then it seems permitted Against this was a Canon made in the Nationall Synod at Westminster in 3. Hen. 1. Vt filij Presbyterorum non sint haeredes Ecclesiarum Patrum suorum And another in 25. Hen. 1. held vnder the Popes Legat. Sancimus as the words are ne quis Ecclesiam sibi siue Praebendam paterna vendicet haereditate aut successorem sibi in aliquo Ecclesiastico constituat Beneficio Without that challenged right of Inuestiture supposed in the Incumbent hauing also the Patronage which supplyed all that the Patron Bishop and Archdeacon at this day do in filling a Church how could any Parson make to himselfe a successor or an heire to haue colour to claim the Incūbencie from his ancestor To this purpose may be well rememberd a passage in a verdict found in Rot. Placit 6. Rich. 1. Rot. 1. of such a kind of conueyance of S. Peeters Church in Cambridge the words are Iuratores benè sciunt quod quidam Langlinus qui tenuit Ecclesiam illam qui fuit persona illius Ecclesiae dedit Ecclesiam illam secundum quod tunc fuit mos Ciuitatis Cantebrigiae cuidam parenti suo Segario nomine qui illam tenuit per LX. annos plus fuit persona illius Ecclesiae ipse posteà dedit Ecclesiam illam Henrico filio suo qui illam tenuit per LX. annos ipse in ligea potestate sua dedit illam Hospitali Cantebrigiae per Cartam suam idem Hospitali habet Ecclesiam illam They discreetly find the custome of the Citie to maintaine the Conueyance supposing it seems that the custome would help the last Grantors title although the Common Law which had by that time receiued some change herein by force of the Papall Decrees should not haue allowd it I know in the Canons another thing is also vnderstood in this matter of Succession that is the irregularitie of the sonne of a Clerk but that can extend only to the matter of Illegitimation vpon Mariage forbidden to the Clergie For which point alone the Bishops refusall had been the best helpe but that indeed the other kind of disposition of Churches by Inuestiture preuented his refusall when Presentation was not made to him V. But after such time as the Decretals and the encreasing authoritie of the Canons about the yeer M.CC. had setled the vniuersall course here of filling of Churches by Presentation to the Bishop or as it seems sometimes it was to the Archdeacon or to the Vicar of the Bishop or Gardian of the Spiritualties that vse of Inuestitures of Churches and Tithes seuerally or together practiced by Lay men was left off and a diuision of Ecclesiasticall Secular right from thence hath continued in practice Neither did the King afterward much lesse common persons fill their common Parochiall Churches without such presentments from Bishops Parochiall Churches for of speciall donatiue Chappels we here speak not neither were Appropriations of Churches Tithes afterward allowd that had not confirmation from the Ordinarie immediat or supreme And in the same age also came in the Law of the Laps whereby the Bishop is to collate after six moneths vpon the Patrons default it being before at his libertie to fill his Church at his pleasure neither was he confined to any time That time of Laps was according as the vse of Presentation grew by degrees setled receiued into the Laws of England out of the generall Councell of Lateran held in 25. Hen. 2. vnder Alexander the third to which foure Bishops according to the ancient vse of this Kingdom that is Hugh Bishop of Durham Iohn Bishop of Norwich Robert Bishop of Hereford and Reinold Bishop of Bath were sent as Agents for the Church of England By that Councell after vacancie of six moneths the Chapter is to bestow those Churches which the Bishop being Patron had left so long void and vpon their default the Metropolitan but no word is of Lay Patrons in it Yet by reason of the Autoritie of that Councell and of a Decretall of the same Pope which speaks of like time vpon default of Lay Patrons it hath beene since taken here generally that after vacancie of six moneths the next Ordinarie is regularly to collate by Laps Which perhaps was receiued for a Law to continue as it hath done in the Councell or Conuocation at Pipewell held in the first of Richard the first and some ten yeers after that Generall Councell of Lateran For in that of Pipewell the principall thing in hand was the prouiding for Churches vpon death of their Pastors Habitus est saith Ralf de Diceto Dean of Pauls vnder King Iohn generalis conuentus iuxta dispositionem Regis Archiepiscopi XVI Kal. Octobris apud Pipewell vt de consilio vacantium per Angliam Ecclesiarum haberetur tractatus I know it was for many Churches then void but it is like enough that according to the generall Councell this Law was then here receiued but that 's only a rouing coniecture and so I leaue it and as in the Canon Law the Councell of Lateran which must be vnderstood that of Alexander the third is commonly affirmed for the autoritie of the originall of the right of this Laps in the case of Bishops specially and Chapters so is it in ancient moniments of our Laws also in the case of Lay Patrons Ante Concilium Lateranense saies Bracton nullum currebat tempus contra praesentantes And in Placit de Banco Mich. 3. Ed. 1. Rot. 105. Staff The Bishop of Couentrie and Lichfield pleads a collation by laps autoritate concilij against the Prior of Landa to the Church of Patingham and in the same Plea Rolls of Pasch. 5. Ed. 1 Rot. 100. Linc. in a quare non admisit by Alienor the Queen Mother against the Bishop of Lincoln for the Church of Orkestow the six Months and the computation
at this day So was the Law anciently also Beside these discharges some may here expect that part of our Laws which with vs as the Philippine in France and the Carolines in Spain discharge some things from payment of Tithes and seem to permit some customs de non Decimando But for that matter so much as vpon consideration was thought fit to be sparingly said of it is referd to the passages in the next Chapter that touches ancient prohibitions de non Decimando Neither indeed doth that part of our English customs belong to the title of Exemption or Discharge for Exemption and Discharge are properly singular rights to this or that person or Land and against the currant of the practiced Law but those things touching which any such prohibitions de non c. by our Law should be granted are supposed generally according to the reasons and practice of the Laws of England of their own nature not titheable So that not so much a discharge is found in that course as a preuention of an vnlawfull charge which the Canons would lay vpon that which the Laws of the Kingdom account not at all in its own nature chargeable But thereof somewhat more anon CAP. XIV I. The iurisdiction of Ecclesiastique causes in the Saxon times exercised by the Shrife and the Bishop in the Countie Court and among them that of Tithes also was then to haue been there determind The Bishops Consistorie seuered from the Countie Court by William the first II. After the Normans Originall suits for Tithes were aswell in the Temporall Courts as in the Spirituall and that continued till Henrie the second or about King Iohn III. Of the time since about King Iohn or Henrie the second Of the Indicauit and the Writ of right of Aduowson of Tithes What the Law was in an Indicauit before that Statut of Westm. 2. A touch of ancient Prohibitions De non Decimando IV. Writs of Scire facias for Tithes Enquests taken vpon Commission to enquire of the right of Tithes V. Fines leuied of Tithes in the time of Richard the first of King Iohn and Henrie the third vpon Writs of right of Aduowson VI. Scire facias by the Patentees against the pernor of Tithes granted by the King VII Command of paiment by the Kings Writ And of Tithes in Forests Triall of the right of Tithes incident in some issues AS a corollarie to the former parts that directly concerne the payment or consecration of Tithes we thought fit to adde here in the Conclusion of the Treatise the Historie also but only the Historie of the iurisdiction of Tithes in this Kingdom It is cleer by the practiced cōmon Law both of this day as also of the ancientest times that we haue in our yeer books that regularly the iurisdiction of spiritual Tithes that is of the direct and originall question of their right belongs I thinke as in all other States of Christendom properly to the Ecclesiasticall Court and the later Statuts that haue giuen remedie for Tithes infeodated from the Crown after the Dissolution leaue also the ancient right of Iurisdiction of Tithes to the Ecclesiastique Courts But how the difference of Ages hath herein bin amongst vs is litle enough known euen to them which see more then vulgarly In declaration thereof we shall aptly deuide the time tripartitly into that of the Saxons that from the Normans till about Henrie the second and what intercedes from thence till this day I. In the Saxon times a iurisdiction of Ecclesiastique causes among which you may reckon that of Tithes although not much signe of it in exacting payment of them appears in the moniments of that age was exercised iointly by the Bishop of the Diocese and by the Shrife or Alderman of the sciregemot or Hundred or Countie Court where they both sate the one to giue Godes right the other for ƿuruldes right that is the one to iudge according to the Laws of the Kingdom the other to direct according to Diuinitie and in the Laws made for Tithes by K. Edgar and K. Knout you see vpon default of paiment it is ordaind that the Bishop and the Kings Bailife or Shirife with the Bailife of the Lord of the Land should see that iust restitution should be made particulars of the exercise of this kind of iurisdiction I haue not seen But at the Norman Conquest this kind of holding Ecclesiastique pleas in the Hundred or Countie Court was taken away Remember that as at this day most of the Pleas Ecclesiastique are in the Ordinaries Court within the Diocese so most suits in the secular or common Law were Viscontiel and held in the Countie or Hundred Court of the Shrife in those ancienter times which may best be obserued out of one of the books of Ely the most especiall moniment that is extant for the holding of Pleas in the Saxon times That alteration at the Norman Conquest was by a Law made by the Conqueror and directed to all Tenants in the Diocese of Remy that was first Bishop of Lincoln whither his See was then translated from Dorchester and although it be sent in the direction by name to them only yet it seems it grew afterward to be a generall Law no otherwise then the Statut of Circumspectè agatis that hath speciall reference only to the Bishop of Norwich The words of it as they are recorded are Sciatis vos omnes caeteri mei fideles qui in Anglia manent quod Episcopales leges quae non benè secundum sanctorum Canonum praecepta vsque ad mea tempora in regno Anglorum fuerunt communi Consilio Archiepiscoporum meorum caeterorum Episcoporum Abbatum omnium Principum Regni mei emendandas iudicaui Proptereà mando Regiâ autoritate praecipio vt nullus Episcopus vel Archidiaconus de legibus Episcopalibus amplius in Hundret placita teneant nec causam quae ad regimen animarum pertinet ad iudicium secularium hominum adducant sed quicunque secundum Episcopales leges de quacunque causa vel culpa interpellatus fuerit ad locum quem ad hoc Episcopus elegerit nominauerit veniat ibique de causa sua respondeat non secundum Hundret sed secundum Canones Episcopales leges rectum Deo Episcopo suo faciat Which I rather transcribe here because also it seems to giue the originall of the Bishops Cosistorie as it sits with vs diuided from the Hundred or Countie-Court wherewith in the Saxon time it was ioyned And in the same Law of his is further added Hoc etiam defendo vt nullus Laicus homo de legibus quae ad Episcopum pertinent se intromittat c. II. Afterward vnder the succeeding Princes till about Henrie the second it seemes that the Iurisdiction of Tithes was exercised in both Courts as well Secular as Spirituall and that by originall suit not only in the one by the first instance
their children also and in the gouernment of the King that was declared by Samuel it is said He will take the tenth of your Vineyards and giue it to his chiefe Seruants and to his Officers But where shall you find the least mention of Infeodations made of such kind of Tenths or any touch of them in the complaints of the Clergie against Infeodations and withall nothing hath beene of lesse practice then giuing away in perpetuall right any such reuenue due to any Crowne or State only by speciall right of Supreme Maiestie But admit these had their originall this way or any other as you will vnlesse they can be proud to haue been made of the verie selfe same Tithe which is due to the ministring Priesthood which can neuer been downe sauing only where the infeodated Tithe was at first receiud and possessest by the Church by force of the Law of Tithing not by arbitrary Consecration in which case also it is considerable whether a Lay man could be at all capable of the fructus only of them if due by an immediat expresse Law of God I see not how they shuld more preuent Parochial paiment to the ministring Priest then the paiment of rents in Terragies or quantities in Corn vnder the name of tiths to landâ—ards shuld diminish the right of the spirituall Tithe which way had either such a fift as was Pharohs or the tenth spoken of by Samuel to be taken by the King touched the Tithe due by a superior or former law to the Leuitical Priesthood both might wel haue stood together might not so nay should not so Tithes remain paiable froÌ„ the possessors of the nine parts to the Euangelical Priesthood notwithstanding infeodations or any reseruations whatsoeuer if they be due by a superior or former Laws especially if due by the Morall Law and that Law should bee vrged rather against the Tenants of the Land then against the Pernors of the feudall Tithes And that common distinction of the Canonists of ius percipiendi fructus Decimarum here is a mere shift and nothing satisfies vnlesse they could also teach vs how the fructus were the verie selfe same alwaies in Infeodations and that they were deriued from a ius percipiendi in some Clergie man Perhaps too much of these things which are litle or nothing applicable to England where we haue scarce any example of a Tithe that was in its nature feodall other then in such as were taken from Monasteries by the Statuts of Dissolution and may still be calld as originally by the name of Consecrated or Appropriated Tithes although now Infeodated But thereof see the XIII Chapter To the 5. § that speaks of Exemptions for matter of story may be added that of the Hospitalars After their exemptions giuen them with the two other Orders about the yeer MCLX. in the Eastern parts they tam Domino Patriarchae quam caeteris Ecclesiarum Praelatis multas tam super Parochiali iure quam super iure Decimationum caeperunt inferre molestas c. and receiud such as were excommunicat for non-paiment of them De praedijs autem suis vniuersis redditibus quocunque iure ad eos deuolutis omninò Decimas negabant Where by the way note that in this Eastern Church which after Hierusalem was recouered and made a Kingdome subiect to Western Princes should haue been fashiond according to the Canons of the Western Church Tithes were now appointed paiable although no authentike Law of that old Eastern Church once mentions them But both in this and other things the people of that Church were stil notwithstanding the new Kingdome of Hierusalem possessed by Europians and the Popes authority extended to them most obstinate refractarie against the policie and Institutions offerd them either in command or example from the Western After the Opinions of the age in the 6. § the Laws both Imperiall Prouinciall and Pontificiall follow in the 7. vpon which let it bee considerd whether a consecration of Tithes were so made by the power and law of the Church and Common wealth or both in seuerall Territories according to the Laws extended that no prophanation or detaining them or any part of them might afterwards be lawfull and the like should be carefully thought on in the 1. § of the VII Chapter and in the VIII Chapter which hath the Lawes of England for the same purpose The force of the words of all those Laws the Autoritie that made them and the Territories to which they were extended are especially to be obserud by euerie one that here looks after humane positiue Law For manie talke and write of that and tell vs here of ius Ecclesiasticum at least if they faile in their Arguments from Ius diuinum but whence that Ius Ecclesiasticum is and where or when made they little enough know For what hath a Prouinciall Councell of one Nation to doe with another What hath the Imperialls of the old French Empire to doe with England Nay what hath the Popes Decrees to do here But because there was a time when their autority was more largely acknowledged their Decrees that bred much of what now iustly continues in some States which also iustly now denie their autoritie remaine most obseruable and wee haue giuen them in their places Of the VII Chapter IN the last CCCC yeers beside the establishment of Parochiall right in Tithes and the various Opinions touching the immediat Law whereby they are due the Practice of most Christian Nations as it might be had out of their Laws and Lawiers is faithfully related And to what is there brought adde that of the Law of France wherby the right of the Tithe of all the Minesis claimd by the King as a droit de Souerainte according as it is declard by two Edicts published of Charles the IX and verified also by the Parlament of Paris according also the old Imperiall Law was But through all here you may see that the Customes Statutes and Common Laws especially of France Italie and Spaine and of most other if not all States permit not so fauourably for the Clergie an exaction of them or suite to be so generally brought for them as the Laws of England did before the Statutes of Dissolution of Monasteries and still do if you exempt those cases which are founded only vpon those Statutes What Statute or practice is in this Kingdome that equals the Carolines of Spaine or the Philippine of France which are generall Laws for Customes quatenus Customes de non Decimando And whereas England vntill the Dissolution had scarce a continuing Infeodation into lay hands of which see the XIII Chapter nor could a lay man by the common Law before the Dissolution make any title to Tithes as to lay inheritances in other Nations Tithes infeodated haue been from aboue D. almost DC yeers frequent in vse and still continue legally in lay hands and are subiect wholly to Secular Iurisdiction as
cleere this grosse error of such as yet pretend to know more then vulgarly but can make no difference twixt the vse of Laws in studie or argument which might equally happen to the Laws of Vtopia and the gouerning autoritie of them If any desire to search further here beside the Autorities cited in the Margine let him especially see I. Baptista à Villalubos 〈◊〉 Antinomia Iuris regni Hispaniarum ac Ciuilis note especially la Conference du droit Francois auec le droict Romaine composed by Bernard Automne and obserue both the Volumes of Statutes and Ordinances of Spaine France Scotland Poland and of other Countries together with the various Prouincial Customes especially in France with the Arrests Decisions and Playdâ—â—es of that Kingdome and he shall soon be confirmed in that which a great Ciuilian of Italie is ingenuous enough to tell vs Hispania Anglia Scotia Balia Hibernia Alemania Datia Suetia Vngaria Boemia Polonia Bulgaria non vtuntur legibus seu iure ciuili sed specialibus consuetudinibus 〈◊〉 statutis that is they are all gouerned by their owne common Laws 〈◊〉 that most learned Frier Bacon of his time Omne regnum habes sua 〈◊〉 aquibus laici reguntur vt iura Angliae Franciae ita fit Iustitia in 〈◊〉 per Constitutiones quas habent sicut in Italia per suas This was then and is now true And the Interpretation of those common Laws in most places saue England and Ireland hath of late time been much directed by the reason of the Imperialls and only by the reason of them not by their autoritie and that also in case when they are not opposite at all to the common Laws but seeme to agree with the Law of Nations or common reason And this vse of them at the furthest began in its yongest infancie not C.D.LX. yeeres since For before that euen from Iustinians time they lay wholly out of vse sauing only that some pieces of them with the Interpolations of Alaricus and his Chancelor Anian together with Lumbardine Additions and Interpretations had their power in some parts of Italie and the Empire But for about D.C. yeeres together that is from Iustinian till Frederique Barbarossa no Profession was of them in any Vniuersitie no Doctorship no other Degree taken in them But after that time they grew into a common Profession in this Western world although by their own autoritie they are confined to Rome Constantinople and Berytus and euen here in England were about Henry the thirds time often applied to the common Law in discourse and argument as you may see in Bractâ—n his frequent quotations of them And heretofore some texts of them haue been in our Courts cited not only as at this day sometimes is done when the words only of some of the regulae iuris is brought into an argument but the Title and Law after the Ciuilians fashion hath been rememberd at the Barre and so afterward exprest in the Report as I haue seen in an example or two in the Mss. yeers of Edward the second Yet notwithstanding that it is cleere that England was neuer gouerned â—y the Ciuill or Imperiall Law as it was also affirmd by the vpper House of Parlament in 11 Rich. 2. where the King and Lords protested also that their meaning was it neuer should be gouerned by it Of the VIII Chapter OVt of this fullnesse of Laws that were made for Tithes in England let it be considered by such as enquire here de iure what interest was of right setled in the Clergie by them howsoeuer they were litle obeyed And by what Autorttie made we haue carefully added still what might help to a iudgement in that also and how extensiue in regard of Persons and Territorie they were and some such other and how farre the Tithes might be after such Laws detained or made subiect to Customes or possessed as things of common vse The Laws of before as well as of after the Norman Conquest as it is vulgarly called are here gathered and are perhaps equally obseruable as the rest in the consequent of a generall consecration of Tithes to the Church in England For neither were the Laws formerly made abolish by that Conquest although by Law of Warre regularly all Rights and Laws of the place conquered be wholly subiect to the Conquerors will For in this of the Norman not only the Conquerors will was not declared that the former Laws should be abrogated and vntill such declaration Laws remaine in force by the opinion of some in all Conquests of Christians against Christians but also the ancient and former Laws of the Kingdome were confirmed by him For in his fourth yeere by the aduise of his Baronage he summoned to London Omnes Nobiles sapientes lâ—ge suâ erudâ—tos vt eorum leges consuetudines audiret as the words are of the Book of Lichfield and afterward confirme them as is further also related in Roger of Houeden Those Lege suâ eruditi were common Lawiers of that time as Godric and Alswin were then also who are spoken of in the Book of Abingdon to be Legibus patriae optime instituti quibus tanta secularium facundia praeteritorum memoria euentorum inerat vt caeteri circumquaque facilè eorum sententiam ratam fuisse quam ed cerent approbarent And these two and diuers other Common Lawiers then liued in the Abbey of Abingdon Quorum collationi nemo sapiens sayes the Autor refragabatur quibus rem Ecclesiae publicam tuentibus eius oblocutores elingues fiebant You must know that in those daies euery Monk here in England that would might remaine so secular that he might get money for himselfe purchase or receiue by discent to his owne vse And therefore it was fit enough for practicing Lawiers to liue in Monasteries But what had those praeteritorum memoria euentorum that is Reports and adiudged Cases of the Saxon times auailed in their skill if the former Laws had not continued More obuious Testimonies to this pupose are had out of Geruase of Tilburne Ingulphus and others and we here omit them But also indeed it was not to be reputed a Conquest or an Acquisition by right of Warre which might haue destroyed the former Laws so much as a violent recouering of the Kingdome out of the hands of Rebels which withstood the Dukes pretence of a lawfull Title claimed by the Confessors adoption or designation of him for his Successor his neerenesse of bloud on the mothers side not a litle also aiding such a pretence to a Crowne For the Confessors mother Emme was sister to Richard the second Duke of Normandie to whom William was Grand-child and Heire But these were only specious Titles and perhaps examined curiously neither of them were at that time enough And howsoeuer his conscience so moued him at his death that he profest he had got England only by Bloud and the Sword yet
also by expresse declaration in some of his Patents he before pretended his right from the Confessors gift In ore gladij saith he Regnum adeptus sum Anglorum deuicto Haraldo Rege cum suis complicibus qui mihi regnum cum prouidentia Dei destinatum beneficio concessionis Domini cognati mei gloriosi Regu Edwardi concessum conati sunt auferre c. And the stories commonly tell vs that the Confessor successionem Angliae ei dedit And although Harold also pretended a Deuise of the Kingdom to himselfe made by the Confessor in extremis and vrged also that the custom of England had been from the time of Augustines comming hether Donationem quam in vltimo fine quis fecerit eam ratam haberi and that the former gift to the Norman and his own Oth for establishment of it were not of force because they were made absque generali Senatus Populi conuentu edicto yet for his own part he was driuen to put all vpon the fortune of the field and so lost it and the Norman with his sword pretence of the sufficiencie precedence of the gift made to himself got the Crown as if he had bin a lawfull Successor to the Confessor and not a vniuersall Conqueror All this is plain out of the stories and iustified infallibly by that of the Titles of many coÌ„mon persons made to their possessions in England after his Kingdom setled vpon the possession of themselues or their Ancestors in time of the Saxon Kings especially of the Confessor but this was alwaies in case where they by whose possession the title was made had not incurrd forfeiture by Rebellion many such Titles are cleerly allowd in the book of Domesday writen in the Conquerors time one specially is noted by the most learned Camden in his Norfolk that as I remember is toucht in Domesday also but enough others are dispersed there which agree with it How could such Titles haue held if he had made an absolute conquest of England wherein a vniuersall acquisition of all had been to the Conqueror and no title could haue been deriud but only from or vnder him More might be brought to cleer this but we adde here only the iudicious assertion of a great Lawier of Edward the thirds time Le Conquerour saith he ne vient pas pur ouster eux que anoient droiturell possession mes de ouster eux que de lour tort auoient occupie ascun terre en desheritance del Roy son Corone It was spoken vpon an Obiection made in a Quo warranto against the Abbot of Peeterborough touching a Charter of King Edgar which the Kings Counsell would haue had void because by the CoÌ„quest all FraÌ„chises they said were deuolud to the Crown But by the way for that of his neernesse of bloud which could not but aide his other pretended Title let it not seem meerly vain in regard of his being a Bastard There was good pretence for the helpe of that Defect also For although the Laws of this Kingdom and I think of all other ciuill States at this day exclude Bastards without a subsequent legitimation from enheritance yet by the old Laws vsd by his Ancestors Countrie men that is by those of Norway a Princes sonne gotten on a Concubine bond or free was equally inheritable as any other born in Wedlock which was I beleeue no small reason why he stood at first so much for the Laws of Norway to haue been generally receiud in this Kingdom and some Stories also which make mention of Duke Robert his getting William on that Arlet or Arirâ— as shee is sometimes writen say that shee was to him a good while vice vxoris So Henrie of Knighton Abbot of Leicester Transiens saith he Robertus aliquando per Phaleriam vrbem Normanniae vidit puellam Arlec nomine Pellâ—parij filam inter cateras in chorea tripudiantem nocte sequente illam sibi coniunxit quam vice vxoris aliquamdiù tenens Willielmum ex ea generauit And he tells vs also the common tale of tearing her smock If shee were so his Concubine or Viceconiux between whom and a wife euen the old Imperialls make no other difference but honor and dignitie and by them also some kind of inheritance is allowd to such Bastards as are Naturales liberi that is gotten on Concubines it was much more reasonable that her sonne should be reputed as legitimate then that the sonne of euery single woman bond or free whether Concubine or no should be so as those Laws of Norway allow and when he had inherited his Dukedome he made doubtlesse no question but that his bloud was as good in regard of all other inheritances that might by any colour be deriud through it and therefore William of Malmesburie well stiles him proximè consanguineus also to the Confessor as he was indeed on the Mothers side and those of the posteritie of Edward sonne to Ironside were then so excluded or neglected that their neernesse on the Fathers side could not preuent him you may see the common stories of them But whereas that excellent Lawier Litleton saies that William the Conqueror was called a Bastard because he was born before mariage had between his Father and Mother and that after he was born they were maried which indeed by the Imperialls and by the generall Law of France would haue made him wholly legitimat I doubt he had but litle or no ground to iustifie it Had he been so legitimat it is not likely he should haue been stiled so commonly and anciently Bastardus which name euen in his own Charters he sometimes vsed with cognomento as also the Bastards of the old Philip Duke of Burgundie were wont to do although of later time it bee reputed as a name of dishonor and the actio iniuriarum or an action vpon the case lies where euer it be falsly obiected as some will haue it But these things proue enough that this William seised the Crown of England not as conquerd but by pretence of gift or adoption aided and confirmd by neernesse of bloud and so the Saxon Laws formerly in force could not but continue and such of them as are now abrogated were not at all abrogated by his Conquest but either by the Parlaments or Ordinances of his time and of his successors or else by non-vsage or contrarie custom The Laws that are here gatherd are for the most part Latin Saxon or French The Saxon is interpreted by the old Latin But the Latin and French are left only in their own words I presume scarce any man that with the least care studies the subiect wil confesse he vnderstands not the context of such Latin And the French I translated not specially because it is but the same which is in our old yeer Bookes and Statutes and may indeed euen as soon be vnderstood by any fit Reader
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
against which also some Laws were made in the beginning of this CCCC yeers but with the rest litle obeyed From this vse of Commendation or Inuestiture it came also that if an Aduowson had descended in coparcenerie the Church had as many encumbents as the parceners had parts Singulae partes singulos habebant Presbyteros Euery of them giuing an interest in a part according as they might haue done of any other inheritance descended vnto them Nor as it seemes from other originall then this challenged and practiced interest came those droicts honorifiques des Seigneurs es Esglises whereof you may see the Treatise lately written by Matthias Mareschal and the custome yet remaining in diuers places especially in France whereby the Incumbent hath not for himselfe aboue a small part of the Tithes at the arbitrarie disposition of some spirituall Patron who takes the rest according to this anciently practiced interest of Patrons to his own vse What is so allowd to the Incumbent is stiled his Canonica portio which was I think reserued to him in some Grants of the Archbishops of Saltzburg as Patrons of their Tithes to the Abbey of Richersperg in the yeer M.C.XLIV Neither let any man out of this or from other autoritie in Canons gather that all Tithes were arbitrarily disposed of by the Bishop in these midle times which yet is falsely affirmed by some that rashly thinke what euer a Canon mentions because some of the Clergie would haue had it so was a practice of the time but the contrarie plainly and frequently appears only as in the primitiue times when Parishes were not distinguished by limitation of Ecclesiastique profits but only by the Ministers Function the Bishop alone challenged and frequently had all Offerings or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as appears in those old Canons before mentioned and especially in those of the Councell of Gangra made against the Eustathians so also after payment of Tithes grew into more vse in these midle times he pretended by the Canons as in the examples which wee anon haue of the Turingians and those of Holtz a right to Tithes through the whole Diocese as his parish where no Parochiall right was setled in seuerall Rectors of Parishes But cleerly in such as were once according to secular Law made proper to this or that Church he had not euen by the Canon Law that was in vse more then his fourth or other part varied by seuerall customes and by customes or prescription he lost it Neither was this practice of Inuestitures only in bestowing of Parish Churches In Monasteries and Bishopriques the like was but the increasing power of the Clergie took it away wholly in the lesse Churches sauing that in collations of free Chappels Prebends or other Benefices without parochiall Cure according to the Droict de Regale of the Kings of England and France especially in some kind it hath remained and much altered it in Bishopriques and Monasteries It was in substance forbidden in the eighth Generall Councell of Constantinople then by Decree in the Councell of Rome vnder Gregorie the seuenth about M.LXXVIII in words which as well shew how the vse of Inuestitures at that time remaind in many places for some few yeers before it appears they were very common among the Laitie and scarce taxed by the Clergie as also what opinion the Church had of them Quoniam Inuestituras Ecclesiarum contra Statuta sanctorum Patrum that is against the many Canons made against Lay mens disposition of Church-reuenues à Laicis personis in multis partibus cognouimus fieri ex eo plurimas perturbationes in Ecclesia imo ruinam sanctae religionis oriri ex quibus Christiana religio conculcatur Decernimus vt nullus Clericorum Inuestituram Episcopatus vel Abbatiae vel Ecclesiae de manu Imperatoris vel Regis vel alicuius Laicae personae viri vel feminae suscipiat And in the generall Councell of Lateran held in M.C.XIX. vnder Calixtus the second chiefly against Inuestitures one Canon is In parochialibus Ecclesijs Presbyteri per Episcopos constituantur qui eis respondeant de animarum cura de ijs quae ad Episcopum pertinent Decimas Ecclesias à Laicis non suscipiant absque consensu voluntate Episcoporum Et si aliâ—er presumptum fuerit Canonicae vltioni subiaceant The like was in the next generall Councell vnder Innocent the second and very many other Pontificiall Decrees were to the same purpose For by this time through the vse of giuing of Orders without Titles of Churches against the old Canons and Resignations into lay hands euery lay Patron easily could haue a Clerk capable of his Benefice and so inuest him without so much as notice of the Bishop And notwithstanding those Decrees both Oecumenicall and Pontificiall that practice of Inuestitures could not presently be taken from the Laitie although soon after that generall Councell held vnder Innocent the second in M.C.XXXIX it began to be lesse frequent and Institution vpon Presentation here and there succeeded it But not long before that Councell it was much complaind against by the Clergie and stiled by some of them Haeresis inuestiturae others of them by no means admitting it to be an Haeresie but only a vsurpation of the rights of the Church which should not be disposed of by lay hands Besides other occurrences of Inuestitures in Epistles Councels and Storie of about M.C. you may see especially the Epistle twixt Iuo Bishop of Chartres and Iohn Archbishop of Lions with others of Godfrey Abbot of Vendosme all written about M.C.XXX. in which it is largely disputed of and in them it appears plainly that although the Church would neuer haue permitted it to the Laitie and did also sometimes extort renuntiations of it yet the Pope often regranted the right of it in France and Germanie to such as had renounced it Whence also Iuo concluded that it was but a ciuill right belonging by their Canons to the Church and no such thing as of its owne nature could not be enioyd by the Laitie But the Canons gaining force as the Papall power encreased at length about the end of this CCCC yeers it became wholly out of vse for not till then was it left off and that the course of Institutions vpon Presentations was not before commonly practiced especially in the case of lay Patrons appears by diuers Canons relating as much to which I referre you and more hereof in the English vse By reason of these Inuestitures wherein the Glebe Tithes and all Endowments of the Church as well as the Church it selfe in point of interest or estate passed from the Patron and at euery vacancie were in him as in the only proprietarie of them when Appropriations in these ancient times were made it was not only the Church it selfe or the Titulus Ecclesiae for that also once by consecration created was giuen by lay Patrons
transcriber who also in one place hath Oswaldus for Aelfwaldus King of Northumberland But those which speak of that Synod of these Legats seeme to suppose it extending through the whole Kingdome See also § VIII III. In the Laws made between K. Alfred and Guthrun the Dane to whom the Prouinces of East-Anglia and Northumberland were giuen to hold of the Crown and renewd also between the same Guthrun and K. Edward sonne to Alfred about the yeer D.CCCC. this occurres Gif hÆ¿a Teoþunge forheold gylde lashlite mid Denum Æ¿ite mid Englum that is as the old Latin Translation hath it Si quis Decimam contrateneat reddat Lashlite cum Dacis Witam cum Anglis Lashlite denotes the Danish common forfeiture which as it is thought was in most offences XII Ores that was commonly XX. shillings for XX. pence made an Ore commonly and sometime according to the variation of the Standerd XVI pence was an Ore But in Oxfordshire specially and Glocestershire in Domes-day XX. goe to an Ore as the English common forfeiture or the Wite was XXX shillings The occurrence of these two names is frequent in the Saxon Laws and it may seem by this that some other Law preceded for the payment of Tithes or els that the right of them was otherwise supposed cleer For the autoritie of this and the rest comprehended in those of Alfred and Guthrun obserue that in their title ða Æ¿itan eac ðe syþþan Æ¿aeron oft Unseldan ê§ sealf geâ—â—Æ¿odon mid gode gehyhton that is and the Wisemen or the Baronage of succeeding times very often renewed that Councell of theirs and in bonum adduxerunt as in the old Translation those last words are turned IIII. It is reported of King Aethelulph that in the yeer D. CCC.LV Decumauit as Ethelward writes de omni possessione sua in partem Domini in vniuerso regimine sui principatus sic constituit The words of his Charter whereby he did it are Cum Concilio Episcoporum ac Principum meorum Consilium salubre atque vniforme remedium hee means remedie against those miseries which the English had endured by Danish irruptions affirmantes consensimus vt aliquam portionem terrarum haereditariam antea possidentibus omnibus gradibus siue famulis famulabus Dei Deo seruientibus siue Laicis miseris semper Decimam mansionem vbi minimum sit tum Decimam partem omnium bonorum in libertatem perpetuam donari Sanctae Ecclesiae dijudicaui vt sit tuta munita ab omnibus saecularibus seruitutibus c. So is it reported in the Abbot of Crowlands Historie and varies not much in William of Malmesburie and Nicholas of Glocester who both haue it also at large But in Mathew of Westminster no other Decima is mentioned in it then Decima terrae Meae Out of the corrupted Language it is hard to collect what the exact meaning of it was How most of the Ancients vnderstand it is best known by the words wherein they summe it Ingulphus thus of it Omnium Praelatorum ac Principum suorum qui sub ipso varijs Prouincijs totius Angliae praeerant gratuito consensu tunc primò cum Decimis omnium terrarum ac bonorum aliorum siue catallorum vniuersam dotauit Ecclesiam Anglicanam per suum Regium Chirographum And hee tells vs further that Aethelulph in the presence of his Baronage at Winchester offerd the Charter vpon the Altar and the Bishops receiued it sent it to be published in euery Parish Church through their Diocesos In Florence of Worcester it is in these words abbreuiated Aethelulphus Rex Decimam totius Regni sui partem ab omni Regali seruitio tributo liberauit in sempiterno grophio in Cruce Christi pro redemptione animae suae antecessorum suorum vni trino Deo immolauit So also Roger of Houeden An old French fragment of the English Historie sayes that hee dismast la dime hide de tute Westsaxe and that it was pur pesire vestre les pouures The old Archdeacon of Huntingdon thus Totam terram suam ad opus Ecclesiarum decumauit propter amorem Dei redemptionem sui And in the rythmes of Robert of Glocester The King to holye Chirche thereafter euer the more drough And tithed well all his lond as he ought well enough If we well consider the words of the chiefest of these Ancients that is Ingulphus we may coniecture that the purpose of the Charter was to make a generall grant of Tithes payable freely and discharged from all kind of exactions vsed in that time according as the Monk of Malmesburie Iohn Pike in his supplement of the Historie of England expresse it Decimam say they omnium hydarum infra regnum suum à tributis exactionibus regijs liberam Deo donauit that is granted the Tithe of the profits of all Lands free from all exactions for the granting of the tenth part of the Hides or Plough-lands denotes the tenth of all profits growing in them as well as Decima acra sicut aratrum peragrabit which is vsed for tithing of the profits in the Laws of K. Edgar Ethelred and Knout and accordingly also is this of Ethelulph related in the Saxon Chronicles of Peterborough Canterbury and Abingdon he did tithe his landes ofer all his rice gode to lofe c. as the words are that is his Lands ouer all his Kingdom c. and doubtlesse Ingulphus no otherwise vnderstood it then of perpetuall right of Tithes giuen to the Church where he remembers it by tunc primo cum Decimis c. So that the tithe of prediall or mixt profits was giuen it seems perpetually by the King with consent of his States both Secular and Ecclesiastique and the tithe of euery mans personall possessions were at that time also expresly included in the gift because it seems before that the payment of all Tithes had commonly been omitted The ancientest of Writers that hath the Charter whole is that Ingulphus but questionlesse it is much corrupted especially in that of portionem terrarum hereditariam antea possidentibus omnibus gradibus for what may that signifie But in Matthew of Westminster it is farthest from deprauation of language where after portionem follows terrae meae Deo Beatae Mariae omnibus Sanctis iure perpetuo possidendam concedam Decimam scilicet partem terrae meae vt sit tuta c. the priuilege or libertie annext to it is that it should not be only free from all taxes and exactions vsed then in the State but also from that trinoda necessitas whereto all Lands whatsoeuer were subiect although otherwise of most free tenure by which they ment their expeditio or militarie seruice pontis extructio arcis munitio this freedom of that time you must it seems so interpret that euery man was from henceforth to be valued in all Subsidies and Taxes according only to
Text of the holy Euangelists which King Athelstan caused to be fairly writen and consecrated to S. Cutbert That text with those Statuta are both yet preserued from the iniurie of time among those inestimable moniments of that noble Knight Sr Robert Cotton For those Pauca iudicia that follow they are of a later hand then the Statuta but of what time it sufficiently appears not That Lex dicit in them may be referd to the Canon related out of the Excerptions of Ecbert but whence that Canon is originally I haue not yet learned VI. King Athelstan about the yeer DCCCCXXX by aduise and consent of the Bishops of the Land made a generall Law for prediall and mixt Tithes in these words Ic AEþelstane cyning mid geþeahte Æ¿ulfhelmes mines hihbisceipes oþra minra bisceopa bebeode eallum minum gereafum ðuph ealle mine rice on þaes drihtaenes nama ealra halgena for mine lufu ê§ hi aerost mines agenes ðam teoþe gesyllaþ ge ðaes libbendes ryfes ge ðaes gearlice Æ¿estmes ê§ ilce gedo eac ða bisceopas heora geÆ¿hilcra eac mine ealdormanna gereafa ic Æ¿ille ê§ mine bisceopes gereafa ðaes demaþ eallum ðe hio gehyrsumian gebyraþ ê§ ilce to þam tide fulfremaþ ðe Æ¿e hio settaþ þaes sie to ðaem daeg ðaer beheafdunges Seint Iohannes þaes fulhteres which is anciently thus turnd into Latine Ego Athelstanus Rex Consilio Wulfhelmes Archiepiscopi mei aliorum Episcoporum meorum mando praepositis meis omnibus in toto regno meo praecipio in nomine Domini Sanctorum omnium super amicitiam meam vt inprimis de meo proprio reddant Deo Decimas tam in viuente captali quam mortuis frugibus terrae Episcopi mei similitèr faciant de suo proprio Aldermanni mei Praepositi mei Et volo vt Episcopi Praepositi mei hoc iudicent omnibus qui eis parere debent hoc ad terminum expleant quem eis ponimus i. decollatio S. Iohannis Baptistae and the example of Iacob with a Text or two out of holy Writ and S. Augustin is added to moue deuotion That translation agrees wholly enough with the Saxon sauing in those words mortuis frugibus the Saxon being yeerly fruits which also another Copie of this translation expresses by ornotinis frugibus corrupted plainly from hornotinis frugibus i. the fruits of one and the last yeer or the yeerly increase and perhaps some ignorant Monk finding ornotinis and not vnderstanding it because he would be sure to square it to his own abilitie of learning made it mortuis which kind of changing hath examples enough in bold but ignorant Criticisme that which the old Translator calls viuens captale is libbendes yrfes i. liuing cattell in the Saxon which hath often ceap also for chattels and somtimes specially for liuing cattell but the old Latine of the Saxon Laws turns ceap also into captale whence cattalla is like enough to haue discended and the first stock of Cattell which by King Ina's Laws was to be giuen to Orphans was called frumstole in Saxon but primum captale in the old translations In Brampton's Historie which is full of the Laws of the Saxon times after those constitutions of Grateley part of which are in Lambard's 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 follows a thankfull acknowledgment to K. Athelstan for this Law of Tithes in these words Karissime Episcopi tui de Kent omnis Kentsirae Thayni Comites villani tibi Domino dulcissimo suo gratias agunt quod nobis de pace nostra praecipere volusti de commodo Nostro perquirere consulere quia magnum opus est inde nobis diuitibus egenis Et hoc incepimus quantâ diligentiâ potuimus consilio horum sapientum quos ad nos misisti Vnde Karissime Domine primum est de nostra Decima ad quam valdè cupidi sumus voluntarij tibi supplices gratias agimus admonitionis tuae VII About D. CCCC.XL Edmund King of England in a Micelne Synod that is a great Synod or Councell a kind of Parlament both of Lay and Spirituall men which are exprest by godcundra and Æ¿orldcundra held in Londan made this Act. Teoþungum Æ¿e bebeodaþ aelcum Cristenum men be his Cristendome cyricsceat aelmesfeoh Gif hit hÆ¿a don nylle ry he amansumod Which is anciently turned Decimam praecipimus omni Christiano super Christianitatem suam dare emendent Cyrycsceatum i. Ecclesiae censum aelmesfeoh i. Eleemosynae pecuniam si quis hoc dare noluerit excommunicatus sit And all agrees with the Saxon sauing only that nothing answers to the word emendent That Cyrycsceat is a Church-rent of Corn or the first fruits of Corn yeerly in those times and regularly payable at S. Martins day to the Church and is sometimes writen Curcscet sometimes otherwise And in an old Ms. Exposition of Law-terms occurres Cherchesonde vne mesure de Ble que checun homme soleit enuoier a Seint Esglise en temps de Bretons Plainely Church-Corn is vnderstood and Cyrksceat that is Church-rent is the originall whence Cherche sonde is there corrupted And among Articles inquirable by euery Escheator in 44. Hen. 3. about the Profits Estate Tenue and Issues of the Kings Tenants one is of Cherchescot tam in blado quam in Gallinis in alijs exitibus It is Circset often in the book of Domesday Where it is found belonging sometimes to Abbeys somtime to Parish Churches somtimes to others It was still as first fruits And this old testimonie is for the antiquitie and continuance also of payment of it here Churchesset certam mensuram bladi tritici significat quam quilibet olim sanctae Ecclesiae die sanctae Martini tempore tam Britonum quam Angloram Plures tamen Magnates post Normannorum aduentum in Angliam illam contributionem secundum veterem Legem Moysi nomine primitiarum dabant prout in breui Regis Knuti ad summum Pontificem transmisso continetur in quibus illam contributionem appellat Chirchsed quia semen Ecclesiae But what the Autor meanes by that Letter or Brief of King Knout sent to the Pope I as little know as why hee cites that for autoritie to proue what the Baronage did after the Normans Indeed an Epistle is extant which Knout sent into England by Liuing Abbot of Tauisâ—ok as hee was taking his iourney home-wards from the Pope and therein mention is of this Curc scet of any other I am yet ignorant That Aelmesfeoh or Almes-money was the Peeter-pence due yeerly at the first of August by institution as some will of King Ina as others of King Aethelulph And they were called also Romefeoh Romescot Heorþpening VIII Of the same time some Constitutions are extant made by Odo Archbishop of Canterburie yet not for aught appears by
nimis refrixerat and agreeing to this reason is a passage in the Synod of London held vnder Lanfrank Archbishop of Canterbury in 9. Will. 1. Et quod are the words multis retro annis in Anglico regno vsus Conciliorum obsoluerat renouata sunt c. that Canon seems to haue been made against arbitrarie consecrations of Tithes then practiced whereof anon largely XVII The Laws of Henrie the first haue one title De placitis Ecclesiae pertinentibus ad Regem and vnder that are these words Si quis rectam Decimam superteneat vadat praepositus Regis Episcopi terrae Domini cum Presbytero ingratis auferant Ecclesiae cui pertinebit reddant nonam partem relinquant ei qui Decimam partem dare noluit according to those of King Edgar and King Knout before related XVIII Alberique Bishop of Ostia Legat in England to Pope Innocent the second in 3. of King Stephen held a Synod at London and in that as I haue seen it transcribed out of a book of Worcester this Canon is De omnibus Primitijs rectas Decimas dari Apostolica autoritaee praecipimus quas qui reddere noluerit anathematis in eum sententia proferatur Primitiae must it seems be here vnderstood for euery new yeers encrease XIX Vnder Henrie the second a Pontificiall Decree was sent to all the Bishops of the Prouince of Canterburie about the yeer M.C.LXX. by Pope Alexander the third commanding them that they should admonish all men in their seuerall Dioceses si opus fuerit as the words are Sub excommunicationis districtione compellere vt de prouentibus Molendinorum Piscariarum Faeno Lana Decimas Ecclesijs quibus debentur cum integritate persoluant the direction of it was Cantuariensi Archiepiscopo eius suffraganeis To this you may adde that other of the same Popes to the Bishop of Winchester Mandamus quatenùs Paraecianos tuos de Apibus de omni fructu Decimas persoluere Ecclesiasticâ districtione compellas Both these were afterward made part of Gregories Decretalls and are of force to this day in the Canon Law of the Church of Rome XX. In 21. of the same King Henrie the second Richard Archbishop of Canterburie held a Prouinciall Synod at Westminster in which were neer all the Bishops and Abbots of his Prouince as also the two Kings the father and the sonne there diuers Constitutions out of old Councells and Popes Decrees were published to be obserued in his Prouince among them one is out of a Synod at Rosne in these words Omnes Decimae Terrae siue de frugibus siue de fructibus Domini sunt illi sanctificantur sed quia multi modò inueniuntur Decimas dare nolentes statuimus vt iuxta Domini Papae praecepta admoneantur semel secundò tertiò vt de grano de vino de fructibus Arborum de foetibus animalium de lana de agnis de butyro caseo de lino canabe de reliquis quae annuatim renouantur Decimas in egrè persoluant quòd si commoniti non emendauerint anathemati se nouerint subiacere XXI Hubert Archbishop of Canterburie by his power Legatin receiud from Pope Caelestin the third in 6. Rich. 1. held a Prouinciall Councell for the Prouince of Yorke and therein one of the Canons thus speaks for Tithes Cum Decimae sint tributa egentium animarum ex praecepto Domini dari debeant non est reddentis eas diminuere Statuimus itaque vt de his quae renouantur per annum cum omni integritate Decimae debitae consuetae conferantur ita vt inprimis Decimae absque vlla diminutione Ecclesiae dentur postmodùm de nouem partibus mercedes messorum aliorum seruientium pro arbitrio soluentis tribuantur XXII The same Archbishop Hubert in 2. of K. Iohn Generale celebrauit concilium Lundonijs apud Westmonasterium contra prohibitionem Galfridi filij Petri Comitis de Essexe tunc temporis summi Iustitiarij Angliae for it appears that in those elder times there was great controuersie between the King in whose right the Chief Iustice of England here sent out his prohibition and the Archbishop touching this point whether the Archbishop either as Archbishop or as Legat might hold a Prouinciall or Nationall Councell without autoritie from the Crown but that is now declared cleer and so practiced that he may not In that Councell notwithstanding the prohibition he ordaind thus for tithes Cum Deo Sacerdotibus Dei Decimas dandas Abraham factis Iacob promissis innuent autoritas veteris noui Testamenti necnon sanctorum Patrum statuta declarent Decimas de omnibus quae per annum renouantur praestandas id inuiolabilitèr decernimus obseruandum ita quod occasione mercedis seruientum vel messorum decima pars non minuatur sed potius integre persoluatur Habeant etiam Presbyteri potestatem ante autumnum excommunicandi omnes fraudatores decimarum suarum eosdem secundum formam Ecclesiasticam absoluendi Huic adijcimus sanctioni vt de terris nouitèr cultis non aliàs dentur decimae quam Ecclesijs Parochialibus infra quarum limites terrae illae de quibus Decimis perueniunt excoluntur Detentores verò Decimarum iuxta Rothomagensis Concilij constitutum si semel secundò tertiò commoniti excessum suum non emendauerint vsque ad satisfactionem condignam anathematis vinculo feriantur saluo in omnibus S.S.R.E. honore priuilegio which Saluo is to euery of his Canons XXIII Among the Decretall Epistles of Pope Innocent the third one is directed Cantuariensi Archiepiscopo vt Ecclesijs Parochialibus iustè Decimae persoluantur and thus speaks Peruenit ad audientiam nostram quod multi in Docesi tua Decimas suas integras vel duas partes ipsarum non illis Ecclesijs in quarum Parochijs habitant vel vbi praedia habent à quibus Ecclesiastica percipiunt Sacramenta persoluunt sed eas alijs pro sua distribuunt voluntate Cum igitur inconueniens esse videatur à ratione dissimile vt Ecclesiae quae spiritualia seminant metere non debeant à suis Parochianis temporalia habere fraternitati tuae autoritate praesentium indulgemus vt liceat tibi super hoc non obstante contradictione vel appellatione cuiuslibet seu consuetudine hactenus obseruata quod Canonicum fuerit ordinare facere quod statueris per Censuram Ecclesiasticam firmiter obseruari Nulli ergo c. confirmationis c. Datum Lateran II. nonas Iulij XXIV In a collection of diuers Constitutions for the English Church out of Councells and others titled only Constitutiones cuiusdam Episcopi and writen about Hen. the thirds time one of Tithes occurs Decimas de omnibus quae renouantur per annum maximè consuetas dandas decernimus potissime de molendinis