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
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
seulement des choses d'ont est accoustume payer Disme c. where Boerius saies he hath seen it accordingly for other places often adiudged at Paris and in an Edict of 10. Hen. 4. of France touching the payment of Tithes by those of the reformed Religion the payment is commanded only selon l'vsage coustume des lieux and accordingly diuers Arrests of Parliament also haue been And although somtimes Customes haue beene there disallowd especially de non decimando yet that hath proceeded chiefly from the vsurpation of the Canons where the secular Law was wrongfully neglected as you may see in the example of that of the Ecclesiastical court at Rhosne wherein the Laitie were compelled adreddendas Decimas de faeno aliquibus alijs de quibus apud eos inconsuetum erat reddere decimas as Maiors words are who concludes that had the Iudge been other then a Canonist he would not so haue adiudged it VII In Spaine also some infeodated Tithes from ancient time are in Lay hands which the Clergie about M.CCC.LXXX would haue had into their reuenue vnder Iohn the first of Castile and Lions but could not and in an Ordinance of the same Iohn against all such as should vsurp the right of Tithes a prouiso is that it should not extend to such Tithes or Church Reuenue as the Crowne or any subiect had from ancient time enioied And a third part of Tithes due to the King is menciond in their Laws as graunted to him from the Pope of which at his pleasure new Infeodations are made And Petrus de Lorca remembers that the Pope Regibus Hispaniae cōcessit tertiam partem Decimarum alijs secularibus absque consensu singularum Ecclesiarum among these you may reckon those Tithes in the Crowne which by graunt from the Pope King Ferdinand and Queene Isabel had in the Kingdome of Granado in consideration of their endowment of Churches there and of them and their iurisdiction whereto they are subiect thus Couaruuias an excellent Lawier of Spaine Semel saies he ex literis regijs vidi Decimarum causam tractari inter Ecclesiasticos apud Granatense Praetorium ex eo quod Reges Catholici Ferdinandus Elisabeth Decimas huius Regni Granatensis obtinuerint à Pontifice Maximo cum onere dotandi Ecclesias that is the Iudges held plea of them by Commission from the King not by spirituall power which otherwise regularly hath conisans of Tithes although another great Lawier of that Countrie denie that the Conisance of such Tithes lawfully belongs to any other iurisdiction then spirituall Neither hath the Canon Law been so powerfull there as to make Tithes payable against Customes for paiment either of a lesse part or none And howeuer in an Ordinance of the yeer M.CC.XCIV Alfonso the ninth published his mandamos y establescemos por siempre que todos los hombres del nuestro regno den sus diezmos derechamente y cumplidamente a nuestro Sennor Dios de Pan y de Vino y ganados y de todas las otras cosas que deuen dar de rechamente segun manda sancta yglesia wherein he seems to establish that whole Tithes without any Diminution should be alwaies paid to the Church of Corne Wine and Cattell and all other things which Ordinance also is exemplified and confirmed by Iohn the second of Castile and Ferdinand and Isabel and accordingly Alphonso Diaz de Montaluo his glosse on it makes it to be consonant wholly to the Canon Law and the whole course of their ancient bodie of the Law in their Partidas be agreeable with it yet the practice in that state hath been and is that if suit be commenced in the spiritual Court for new Tithes formerly not accustomed to be wholly or not all paid and such custome or prescription be pleaded and the Officiall or Ordinarie allow it not vpon complaint to the Kings Court the defendant shall as in case of Prohibitions in England haue his remedie This is declared by their Couarruuias Erit saith he obseruandum causam Decimarum quandoque in his regnis that is France and Spain tractari apud regios Auditores nempè cum Laici contendunt Decimas ab eis exigi quae legitima Temporis praescriptione which is vsually thought should be immemoriall and so is their practice although the most common time in other things be XL. yeers minime debentur sunt remissae denique conqueruntur contra morem consuetudinem Decimas ab eis exigi nam etsi condemnentur à iudice Ecclesiastico nihilominus ex quaerela causa retinetur apud Regia Praetoria Siquidem literae Regiae passim dantur à supremo Senatu ad id vt Laici non cogantur Decimas illas soluere quae solui legitimâ temporis praescriptione non consueuerunt And with him agrees Alfonso de Azeuedo that writes vpon their Ordennanças Reales But these kind of their prohibitions are grounded vpon their Ordinances forbidding Decimas a Laicis exigi quae per consuetudinem contrariam non consueuerunt solui as Couarruuias sayes and to that purpose was an Edict of their Charles the first Emperor de fift at Toledo in M.D.XXV. and another like of his at Madrid about three yeers after and before foure yeers were thence past at Segouia and another at Villadolid And vpon these oftentimes sayes Alfonso de Azeuedo Writs of Prohibition go out to the Ecclesiasticall Iudges that proceed super nouitate to forbid that similes non permittant nouitates processum causae Regio ipsi senatui originaliter mittant Which agrees with the verie words of the Ordinances that speak of Nouedades in exaction of Tithes against custome And one speciall vse is there that the Kings giue their Personall Tithes to their own Chaplains attending on them VIII Neither hath the Canon Law wrought otherwise in Italie but that there also particular Customes as well of Non Decimando as in the Modus are frequent Multis Italiae locis sayes Caietan contingit ex consuetudine that nothing at all is paid And so is the practice there for the most part at this day the Parish Priests beeing sufficiently maintained by Manse and Glebe and the reuenues that are in some places paid as according to a Modus And of the Italians and others where like Customes were Aquinas thus Haud laudabiliter ministri Ecclesiae Decimas Ecclesiae requirunt vbi sine scandalo requiri non possint propter desuetudinem vel propter aliquam aliam causam In Venice sayes Panormitan non in vita sed in morte soluuntur Decimae personales de omnibus mercantijs iocalibus alijs mobilibus And in the whole Seigniorie of Venice as my Autor deliuers no Parish Church hath through that name Decimas seu ius Decimandi but only another Stipend or Quartesium as they call it de possessionibus seu terris consistentibus
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
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
Ecclesiasticas in soro seculari nec tales homines determinent vtrum talis Capella debeat habere Baptisterium Sepulturam an non For if it had the right of administration of Sacraments in it and Sepulture also then differd it not from a Parish Church but might be stiled Capella Parochialis by which name some Chappels are with vs known and in the Saxon times also we find Coemiterium Capellae for the buriall place of a Chappell which must be vnderstood of a Church that had the like right as that which is mentiond in the second part of Edgars Law and those other churches which in his and K. Knouts Laws are spoken of that is Churches without buriall places feldcyrican or field-Churches are only what at this day we call Chappels of ease built and consecrated for Oratories but not diminishing any thing of the Mother Churches profits But also besides those originall Lay foundations some Parishes haue had other beginnings since from alterations made in regard of the inconuenience of their former limits And this by direction or autoritie both from the Pope or Bishops according as they saw occasion exacted and from the King For the Pope we may see in the exāple remaining in the Decretals where Pope Alexander the third sends his Decree to the Archbishop of York reciting that in a complaint made to him he had heard that a certain Town in his Prouince was so distant from the Parish church that it was very difficult for the Inhabitants to repaire thither especially in winter and withall that the Church reuenue of the Parish although that Town were exempted was not insufficient for the Minister of the Mother Church wherefore he commands the Archbishop to build in that Town a Church and with assent of the Founder of the Mother Church to institut at the Presentation of the Rector an Incumbent there that might haue to his own vse all Ecclesiastique profits encreasing in the limits of the same Town and so acknowledge a superioritie to the Mother Church and that he should do it also whether the Rector of the Mother Church would assent or not For the King an old example is in 13. Hen. 3. where because the Church of S. Peeters in Chichester was very poor that only two Parishioners were in it the King at request of Ralf Neuill then Bishop there Chancelor of England grants quod eadem Ecclesia demoliatur praedicti duo Parochiani qui spectabant ad ipsam assignentur imperpetuum Hospitali S. Mariae quod eidem Ecclesiae est vicinum vt ibi deinceps percipian◠spiritualia sint Parochiani eiusdem Hospitalis And such like commands occasions and conueniences doubtlesse haue alterd and made the limits of diuers Parishes eueriewhere both in the Countrie and Cities which haue to this day many of small Territorie but of large number of Communicants For Parochiall limits thus much CAP. X. I. The Practice of Tithing Of K. 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 Prouincial Synod Tithes how mentiond in Domesday Testimonies of payment of them Henrie the thirds grant of the payment of tithe of Hay Mils 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 THe Laws of this Kingdom for payment of Tithes and the originall of Parochiall right to profits accruing within the limits of euery Parish Church which were after Lay foundations grew common distinguished according to the adiacent possessions and tenancies of the Founders and their Farmes Mannors Towns and the like being hitherto declared the Practice of the times remaines to be also discouered I. In that something also is obseruable among the Ancients of this Kingdom of a kind of Tithing related to haue been where Christianitie was not yet receiued Some of them tell vs of Cedwalla King of the West-Saxons that before his being made Christian about the yeere DC.LXXXVI he tithed all his spoiles of Warre to the Deitie So the Monk of Malmesburie Arduum memoratu est saith he quantum etiam ante baptismum inseruiret pietati vt omnes manubias quas iure praedatorio in suos vsu◠transcripserat Deo decimaret neither if he did so was it without some example of his Ancestors the German-Saxons whence England was chiefly filled who were wont to sacrifice to Neptune I think the Tenth of all captiues taken in their pyracies and incursions made by Sea vpon the Gaules specially so saies my Autor that liud about the time of the German-Saxons first arriuall here his words of them are Praetereà priusquà m de continenti in patriam vela laxantes hostico mordaces anchoras vado vellant mos est remeaturis Demimum quenque captorum per aquales cruciarias poenas plus ob hoc tristi quod superstitioso ritu necare super que collectam turbam periturorum mortis iniquitatem sortis aequitate dispergere Talibus se ligant votis victimis soluunt per huiusmodi non tam sacrificia purgati quam sacrilegia polluti religiosum putant caedis infaustae perpetratores de capite captiuo magis exigere tormenta quam pretia Neither I think is any other expresse mention of this their Tithing among ancient moniments and for that their sacrificing to Neptune indeed the Autor Apollinaris here mentions him not but it being done at Sea and per aquales for so is the true reading although some there read aequales poenas you may wel coniecture it was to Neptune or to their supposed Deitie of the Sea and thus the most learned and noble Monsieur Sauaron in his notes vpon Apollinaris expresly also makes it a sacrifice to Neptune and although it be true that among their gods we find none namd that is denoted to answer to Neptune yet that some Deitie of the same nature that is some great Sea god was in their superstitions may be easily collected not only from this relation of their cruell deuotions but also from their wondrous and accurat obseruation of the ebbs and flouds called by them Ledons and Malins which were the chief Directors of their account of times as the Sun and Moons motion hath euer been to other Nations which doubtlesse was no small cause that the Sea was to them reputed a Deitie as the Sunne and Moone also before other Creaturers in the ancient Theologie of the Gentiles But for that of Cedwalla let it be vpon Malmesburie credit that he tithed his
questionlesse were not without some effect being so often renewd Neither is the memorie of some vse of payment here in these more elder times omitted in the reliques of antiquitie In the Ms. life of the British Saint Cadoc among some Laws of his Church of Lhancaruan which seem to be attributed to his time which falls about our Augustine or before one is Quicunque decimauerit debet diuidere in tres partes primam dabit Confessori secundam Altari tertiam orantibus pro eo but the Autor of this whence we haue it wrote not till after the Norman Conquest And it is reported also of Eadbert Bishop of Lindisfarn or Holy Iland that he was Eleemosynarum operatione as Bedes words are insigni ita vt iuxta legem omnibus annis Decimam non solum quadrupedum verum etiam frugum omnium pomorum necnon vestimentorum partem pauperibus daret which words are almost repeated also by Turgot Prior of Durham that wrote the storie of that Bishoprique But here no custom of the place or common vse is noted but only a speciall deuotion of Eadbert and for that of iuxta legem you must vnderstand it of Moses Law and so is it exprest in the Saxon Copie of Bede where I read that he did it aefter Moyses ae and that is according to the Law of Moses Neither is the regard in those times had to a tenth although not yeerly to to be paid as for a soules ransom to the poor after the death of euery Bishop out of his estate to be here wholly neglected Out of this regard may be inferd that therein also the Tenth was reputed as a sanctified part And wee learne it out of a Councell held in DCCC.XVI In loco famoso as the words of it are qui dicitur Celichyth Praesidente verò Wlfredo Archiepiscopo caeterisque adsedentibus australibus Anglorum Episcopis which hath this Canon Iubemus hoc firmitèr statuimus ad seruandum tam in nostris diebus quamque etiam futuris temporibus omnibus successoribus nostris qui post nos illis sedibus ordinentur quibus nos ordinati sumus vt quandocunque aliquis ex numero Episcoporum migrauerit de seculo tunc pro anima illius praecipimus ex substantia vniuscuiusque rei Decimam partem diuidere ac distribuere pauperibus in eleëmosynam siue in pecoribus armentis seu de Ouibus Porcis vel etiam in Cellarijs necnon omnem hominem Anglicum liberare qui in diebus suis sit seruituti subiectus vt per illud sui proprij laboris fructum retributionis percipere mereatur indulgentiam peccatorum And for the succeeding times of the Saxons we may well coniecture a practice of payment out of King Knonts Epistle sent in M.XXXI as he departed homeward from Rome by Liuing Abbot of Tanystok to Athelnoth and Alfrique the two Archbishops by name and to the rest of the Bishops Baronage of England he therein straitly charges them all that according to the ancient Law they should take care that Tithes were duly paid among other Church reuenues wherin if he found default at his coÌ„ming they should expect seuere punishment the words were Nunc igitur obtestor omnes Episcopos meos regni mei praepositos per fidem quam mihi debetis Deo quatenùs faciatis vt antequam in Angliam veniam omnium debita quae secundum legem antiquam debemus sint persoluta scilicet eleemosyna pro aratris Decimae animalium ipso anno procreatorum Denarij quos Romam ad sanctum Petrum debetis siue ex vrbibus siue ex villis mediante Augusto Decimae frugum in festiuitate S. Martini primitiae seminum ad Ecclesiam sub cuius Parochia quisque degit quae Anglice Curâ—scet nominatur Haec alia si cum venero non erunt persoluta regia exactione secundum leges in quem culpa cadit districtè absque venia comparabit and the Monk that relates it addes nec dicto deterius fuit factum But what euer may be out of these testimonies concluded it is noted among the Laws attributed to Edward the Confessor that what through the coldnesse of deuotion what through the neglect of demanding Tithes by the Clergie that were otherwise grown very rich in reall endowments the practice of paiment of them was much diminished Sed postea instinctu diaboli are the words which follow immediatly what is before in the Chapter of Laws § XIII multi Decimam detinuerunt Sacerdotes locupletes negligentes non curabant inire laborem ad per quirendas eas eo quod sufficienter habebant suae necessaria vitae Multis enim in locis modo sunt tres vel quatuor Ecclesiae vbi tunc temporis vna tantùm erat sic ceperunt minui· but we are not sure that this addition to the Law is as ancient as the Confessor I think it indeed rather of somewhat later time yet doubtlesse the generall practice of paiment according to those ancient Laws howeuer it might be in elder times was about the Norman Conquest much discontinued which may be specially obserued out of that book of Domesday the originall Copie whereof yet remains in the Receipt of the Exchequer in which the Possessions and Reuenues both of the Clergie and Laitie were accounted and valued by the othes of Enquests taken in euery Countie vpon commission and so returned thither about the end of the Conquerors raign There frequently enough Churches are mentioned by the words of Ibi Ecclesia Presbyter or such like and how many Carues or Hides of land how many villans and other endowments and reuenues belongs to them are reckond with their values But very rarely any Tithes among those Church reuenues are there found if none at all had been namd it might haue been thought that they had been omitted as a more sacred profit then was fit to be taxed in such a Description But some although very few occurre in it as vnder Terra Osberni Episcopi in Boseham in Sussex you may there find that Decimam Ecclesiae Clerici tenent valet XLs. where the lest value of the Mannor is made at XLli. per annum in Hampshire vnder Terra Osberni Episcopi you read Ecclesia S. Michaelis de Monte tenet de Rege in Basingestoches Hundred vnam Ecclesiam cum 1. hida Decimam de Manerio Basingestoches Ibi est Presbyter So in the same Shire vnder Terra Regis Ipse Rex tenet Wallope c. ibi Ecclesia cui pertinent vna hida medietas Decimae Manerij totum Curset de Decima villanorum XLVI denarij medietas agrorum Ibi est adhuc Ecclesiola ad quam pertinent VIII acrae de Decima for these VIII acres of Tithes see before in the Chapter of Laws § IX.X. and XI And in the same Shire also among the Abbot of Lire's possessions the
ad lucrandum vel perdendum de aduocatione Ecclesiae de Budeketun vnde placitum erat inter eos in Curia Regis scilicet quod Prior Monachi remiserunt quietum clamauerunt eidem Richardo haeredibus suis aduocationem praedictae Ecclesiae per ita quod persona quae per ipsum Richardum vel haeredes eius in eadem Ecclesia instituetur reddet singulis annis Ecclesiae de Lewes IIII. solidos scilicet ad festum Sancti Michaelis ille qui in eadem Ecclesia per ipsum Richardum vel haeredes suos instituetur persona post institutionem suam coram Episcopo fidelitatem praestabit quod praedictam pensionem praedicto termino Ecclesiae de Lewes persoluet posteà in Capitulo de Lewes eandem fidelitatem innouabit Here it appears it seems by the iudgement of the Kings Iustices that the Patron had such interest in those times that he might alone without grant of the Encumbent who came in by his Institution and Inuestiture or confirmation of the Bishop charge the church with a pension and this being in a Fine is of autoritie beyond exception for that age But the like is in Rot. Fin. 7. Rich. 1. Lancast. in a Fine leuied between Theobald Fitz-water demandant in a Writ of Right of Aduowson against the Abbot of Shrewsburie of the Church of Kirkham where XII marke Rent is reserued to the Abbot with a like clause for the Encumbents fealtie for true payment the like in Fin. 4. Rich. 1. diuers Comit. touching the Church of Dacheworth yet also in that age the assent of the Parson and Bishop was somtime had as in Rot. Fin. 7. Rich. 1. Staff where vpon Right of Aduowson by the Prior and Canons of Stanes against Alice Hopton for the Church of Cheklegh Alice Robertus filius haeres suus per assensum voluntatem H. Couentrensis Episcopi in cuius Diocoesi Ecclesia illa sita est Osberti personae eiusdem Ecclesiae tunc ibidem praesentium concesserunt praefatis Priori Canonicis XXs. de eadem Ecclesia de Cheklegh annuatim percipiendos sine omni contradictione imperpetuum de Clerico eandem Ecclesiam possidente quicunque ille fuerit ad duos terminos videlicet ad Pascha Xs. ad festum S. Michaelis X ◠c Here the assent of the Parson and Bishop being both present in Court is inserted in the Fine yet inough examples shew that it was not as may be strongly coniecturd thought altogether necessarie But indeed howeuer the right of Inuestitures had been then much exercised by Lay Patrons yet in case of Clergie Patrons if the Church were not of exempted iurisdiction the Bishops more vsually instituted and therefore was their assent the sooner admitted somtimes into the Fine and doubtlesse also some lay Patrons willing enough herein to obey the Canons after Anselm and perhaps before arbitrarily filld their Churches by presentation to the Bishop this may be collected especially out of that of the grant of the priuilege of Institution in Churches made by Turstan Archbishop of York vnder Henrie the first to the Archdeacon of Richemond as also out of two Decretalls from Rome sent by Pope Lucius the third vnder Henrie the second to the Bishop of Norwich and in some other autoritie both in our yeer books and in the fine Rolls also of the beginning of King Iohn the Bishops assent in such grants of that time is sometimes found and in that commonly but without sufficient ground attributed to Randol of Glanvill chief Iustice of England to Henrie the second the Bishops institution is spoken of as a thing of not vnknown right vpon a recouerie in Darrain presentment according as the Canons require And in an Epistle of Giraldus Cambrensis writen in those times to Hugh Bishop of Lincoln about his Parsonage of Cestreton which he challenged vpon presentation of himself made by Gerard of Camvill a Gentleman of great worth in Lincolnshire the Bishops Institution is spoken of as cleerely necessarie according to the Canons and noted with Episcopus solus honores dare potest which you must remember was writen by one that was feruent for the Canons and had also writen against the auitae consuetudines or common Laws of that time But these testimonies must be warily vnderstood and compared with the former and frequent practice of the contrarie which about that time especially vnder Richard the first and King Iohn it seems much altered Neither till about that time can it be found that the more common practice of Lay mens Inuestitures ceased Nor was the Bishops Institution presently and vniformely thence vsed as of later ages The autoritie of the Clergie had by that time taken away the vse of Lay mens Inuestitures Yet was it not cleere it seemes vpon the practice that here followed what dignitie of the Clergie should then exercise the Institution for you shall find it sometimes done by the Archdeacon as it was also before K. Iohn in some cases where any Lay man omitted his Inuestiture as may be gathered out of a Decretall sent hither from Pope Alexander the third to forbid the Archdeacon of Ely Curam animarum sine mandato Episcopi committere And afterward also in Pasch. Trin. 9. 10. Reg. Ioh. a Writ is awarded to the Archdeacon as now it ought to the Bishop vpon recouerie of a Presentment The entrie is thus Recordatum est per G. filium Petri Simonem de Pateshull quod Simon filius Richardi tempore Regis Richardi recuperauit coram eis socijs eorum versus Iohannem de Kalceto seisinam Aduocationis Ecclesiae de Buckworth in Huntingdonshire per assisam de vltimâ prasentatione ita quod habuit breue quod Archidiaconus admitteret personam ad Ecclesiam illam ad praesentationem eidem ipse Iohannes impediuit eum ita quod implacitauit eum per breue Papae Dominus Rex prohibuit placitum Simon venit impetrauit à Rege quod loquela procederet quod haberet breue ab Archidiaconum de Clerico suo admittendo habuit T. domino G. filio Petri Will de Briwere Here twice was the Writ of Admission or Institution sent to the Archdeacon not to the Bishop Perhaps indeed it happened in the vacancie of the See for the time so falls that we cannot be sure of the contrarie But admit it were so Plainly the Archdeacon neither by Canon nor common Law had any more right of Institution by reason of a Vacancie of the Bishoprique And certainly during the vacancie the Writ should goe to the Gardians of the Spiritualtie which by the Canon Laws are the Deane and Chapter but by the Law of England the Archbishops in their seuerall Prouinces and the Deanes and Chapters only in case where the Archbishopriques are void And in other places somewhat afterward also I haue seen Institutions often by the
Churches the Cure being there serued by some Monke or Vicar instituted vpon the presentation of them which had the granted portions made those portions at length also in many places be reputed for Parochiall Tithes due in regard of those Parochiall Chappell 's But what course soeuer they took it seems certain that the Titles deriud from Lay consecrations were after this third CCCC yeers carefully conceald by the Possessors in such publike records of their reuenues as were of more common and open vse in their legall proceedings at the Canon Law howeuer they remaind still in their ancienter and more secret Chartularies and with vs I haue very rarely scarce at all seen an Instrument of them in their Lieger books or otherwise writen in a hand that is later then King Iohns time the most are before him But I haue seen Catalogues of the time of Henrie the third and Edward the first of many large portions of Tithes that doubtlesse came first from arbitrarie Consecrations and that through most of the Dioceses of England wherein not the least mention is of any Grantor only possession is rememberd and that by prescription was to be iustified Some Titles also I haue seen made to Tithes in Libells of the time of Henrie the third especially in the Lieger books of Reading Osney and Pipewell but in none of them euer any deriud from Consecrations Neither indeed in that ancientest Formularie of the Canon Law I mean Durand that liued about CCC.L. yeers since is any other Libell for Tithes then such as make the Title Canonicall None that touches Lay consecrations which diuers yeers before his time became as much concealed in legall proceedings of the Canon Law as they had been in the more ancient times desired and hunted after by such as were enricht by them This of arbitarie Consecrations I presume is like strange Doctrine to most men it may well be for the truth of it I think was neuer before so much as pointed at by any that hath writen of any part of our subiect But I doubt not but euery vnderstanding Reader will think these things here now shortly noted on them to deserue his consideration which I desire him also to referre to the XI Chapter and also let him apply to them the Admonitions toucht presently in Appropriations For Appropriations which are in the 3. § they consisted as you see there in the XII Chapter for the purpose either in conueying Parish Churches appropriated with Tithes setled in them somtimes by a continuance of paiment sometimes by Consecrations or by both or of Churches that were then appropriated when according to the vse of the time none or few Tithes were paid to them yet afterward in the hands of the Monks or such like when the Canons for paiment of Tithes came into force got Parochiall paiment to be made to them or thirdly in passing of Tithes formerly created and in esse So that as by Consecrations Tithes newly created were setled in Monasteries and the like so by Appropriations Churches with Tithes in esse or with the pretended right to them and Tithes alone but formerly in esse were conueid to them The whole Appropriation of Tithes with Churches or Churches alone we shew in that ancienter time was made by the Patron The Churches with Tithes by the name of Ecclesia cum Decimis when Tithes were paid to it was in point of interest giuen by him And many more Churches haue been so appropriated then by the later and more known course Neither I think haue many new Appropriations been since made not many in regard of the number of the other But deserues not this then another kind of consideration then is commonly dreamt on among them which make Tithes due by the Diuine Morall Law to the Euangelicall Priesthood if they be so what had the Patron as Patron were he either Temporall or Spirituall to doe with them in conueying them to Monks Friers Nunnes poor people in Hospitals none of these by that name are of the Priesthood and that way they were so equally due to the ministring Priesthood before the Patrons title to the Church that what euer he could do after he were Patron although also his act were confirmd by whom you will could not at all it seems touch them or conuey them from him that should afterward exercise the spirituall function of the Church Consider Tithes so due and how could any Monasterie deriue to it selfe any Title to that selfe same Tithe that was so due to the Priesthood And if it had not the selfe same Tithe but by prescription or other ciuill Title hauing the glebe of a Church had also a profit by the name of Tithe as annext to the Church no otherwise then other Lay endowments for no man can doubt but that any kind of persons may inioy a profit vnder the name of Tithe or Tenth aswell as a Rent of the Ninth part or of the Eleuenth who then is it that now detains the Tithe due by the Diuine Morall Law in cases of Appropriations doth the Monasterie or those which haue such appropriated Tithes by conueyance from it or rather doth not the Parishioner that is bound to whatsoeuer is by that Law due although he pay neuer so many other Tenths due only by some ciuill Title or by that Opinion is not he that receiues the appropriated Tithe bound to pay a Tenth of it to the Minister and the Parishioner a Tenth of his Nine parts I affirme nothing here it is no place for me to do it But let these things be first considerable to euery one that talks of Appropriations and concludes Tithes due iure diuino morali And for Lay mens right to the appropriated Tithes that is such as did either vest in the Monasteries by Appropriations or at least haue been enioied by reason of them let him examine it rather thus may that which either Grant or Prescription or other ciuill Title once setled and so euen consecrated to God and holy vses although abusd be afterward prophaned to Lay hands But it is a grosse error to make it cleer as many do that if Tithes be not due to the Priesthood iure diuino morali then Appropriated Tithes may be still possessed with good conscience by Lay men and that if otherwise then they may not For though they be not due so yet is the consecration of them in the Appropriation nothing for if they be not due so then it will be cleer I think to all that they might passe in the Appropriation as other things subiect to the Titles of humane and positiue Law The many execrations annext to the deeds of conueyance of them and pourd forth against such as should dâ—uert them to prophan vses should be also thought on and let them remember also who saies that it is a Destruction for a man to deuoure what is consecrated To what we haue here of Episcopall right pretended to Tithes especially in Germanie of
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