petit nec denarios de molendinis nec aliquid de Wareto vel terra nisi tantùm garbas ideò praeceptum est eidem Eustachio quod de nullo placito de caetero sequatur in Curia Christianitatis nec de aliquo Laico feodo nec de aliquo quod sit contra Coronam Domini Regis But to leaue this and to go to the II. and III. and IV. courses of proceeding for Tithes in temporall Courts which are not so obuiously known for the II. touching the Writ of Right of Aduowson of Tithes and the Indicauit it hath bin cleer euer since the Statut of Westminster 2. cap. 5. and of Circumspectè agatis both made in 13. Ed. 1. this as well as the other long since being receiud into practice by the name of a Statut and so called in Acts of Parlament although it were anciently reputed rather as an Ordinance made by the King and Prelats that if A. Parson of Sale for examples sake libell against B. Parson of Dale in the spirituall Court for so much Tithes and Offrings possessed by B. as amount to the fourth or a greater part of the value of the Church of Dale B. may haue him prohibited by an Indicauit directed to him and the spirituall Iudge after which the Patron of A. hath no other remedie for himselfe or his Encumbent what right soeuer they haue then to bring a Writ of Right in the cōmon Pleas of the Aduowson of that fourth part against the Patron of B. in which Writ the right of those Tithes must be tried by the common Law and herewith expresly agrees the Statut of Articuli Cleri and the reason is because that if the determination of this Plea should be allowd to the spirituall Court then might the Patrons Aduowson of such a part be there lost by iudgement according to the Canons whereas the right of Aduowson and Patronage of Churches or Tithes only belongs by our ancient Laws and at this day to the secular Court Neither is the Writ so much of the Tithes as of the Aduowson of the Tithes Praecipe A. so are the words quod reddat B. aduocationem Decimarum tertiae vel quartae partis Ecclesiae de C. c. And howeuer by the Canon Law the right of Tithes be meerly spirituall and so not due to the Rector so much by reason of his presentation from the Patron as of the common right challenged by the Ministerie whereupon also Lindwood like a Canonist thinks it not preiudicall to the Patron which way soeuer the Tithes alone be determind of in regard that all the Patrons interest is hee saies originally in the foundation building or endowing of the Church with Manse Glebe or Rent and hath no relation to the Tithes which by common right are receiud without his Donation yet by reason it seems both of our ancient practiced Law of Dotation of Churches by arbitrarie conueiances of Tithes at the owners pleasure in which doubtlesse Patrons very frequently encreased the reuenues of foundations with the Tithes of their Demesnes as also of that other ancient vse of Inuestiture wherein the very interest of all the Glebe Tithes annext and other reuenues was transferd into the Encumbent by the Patron it was thought fit that the Aduowson of the Tithes alone should be equally reputed for what concerned the Patron with any other part of the Churches reuenue And the Law hath been cleer thus and so still practiced since the Statuts before cited they permit not the spirituall Court to hold Plea of Tithes of the value of the fourth part where the Patronage is questionable but will haue the Aduowson thereof tried alwaies by the common Law after the prohibition of Indicauit which being purchased aswell at the suit of the Patron as of the Parson recites that the Parson defendant in the spirituall Court Tenet medietatem or quartam partem omnium Decimarum prouenientium de c. de aduocatione of the Patron c. And then Quia manifestum est quod praedictus the Patron iacturam aduocationis Decimarum praedictarum incurreret si praedictus Rector in causa illa that is the Parson plantif obtineret vobis prohibemus ne placitum illud teneatis in Curia Christianitatis donec discussum fuerit ad quem illorum pertineat earundem Decimarum aduocatio And then according as the right shall afterward be tried in the Writ of right the spirituall Iudge is to giue sentence The same Statuts allow to the spirituall Iurisdiction conisans of the fift and of all parts lesse then a fourth of the value of the Church in tithes controuerted twixt two Parsons and no Indicauit is grantable to forbid the suit of one of them commenced for any lesse part in respect of the Patrons right only Neither vpon them by consequence hath any Writ of right of any part of Tithes that appears not to be a fourth part of the Churches value been allowable But for this point how the Law was before those Statuts of 13. Ed. 1. is a great question in our yeer books and diuers are the Opinions touching it Some think that before the Statut of West 2. cap. 5. out of which ioind with Circumspectè agatis they limit the Indicauit to the fourth part no Writ of right of Aduowson of any Tithes lay by the common Law Others ghesse that before that time a Prohibition or Indicauit lay vpon euery suit in the spirituall Court for Tithes and that the Patron might haue had his Writ of right vpon such prohibition against the suit of his Encumbent either of a fift or sixt part and that these Statuts restraind him to the value of the fourth part at least Others haue herein other fancies But it is plain first that long before those Statuts Tithes were demandable of the owner detaining them of their own nature and pleadable in the Spirituall Court and that affirmd in Fleta was regularly before true Decimae in quantum Decimae it suits against the Parishioners debent in foro Ecclesiastico intentari wherewith Bracton liuing in the time of Henrie the third also agrees But it is as plain that before those Statuts if the Rectors of two Churches of seuerall Auowries had controuerted the right of a fourth part or of the value of either of their Churches more in Tithes by suit commenced in the spirituall Court the Patron of the Rector-defendant might haue had an Indicauit to prohibit the prosecution and holding of the Plea Bracton teaches vs that and hath the forme of the Writ to the same purpose and giues his reason Quia posset Patronus iacturam suae aduocationis incurrere But somwhat doubtfully he limits the quantitie of the Tithes to the sixt part at the least beyond which denomination the Indicauit hee thinks lay not for any part His words are Si contentio fuerit inter Rectores de aliquibus Decimis quae
of them which is there adiudged according to that in Catesbies case is referd to Concilium Apostolicum which can be no other then that of Lateran howeuer the printed Copie of that which we commonly call Breton talks of the Councell of Lions for the Director of the Laps whereas indeed the Mss. haue for de Lions de Lautr which is doubtlesse for de Lateran yet also in the Rolls of the Common pleas of Pasch. 9. Ed. 1. Rot. 58. Suthampt. the Archbishop of Canterburie defendant in a Darrain presentment against the Abbot of Lyra pleads that the Church of Godeshull est plena ex collatione ipsius Archiepiscopi ratione Concilij Lugdunensis and being demanded by what article of the Councell would not thereto answer wherupon after long deliberation iudgement is giuen for the Abbot But in the same Plea the Law and custom of England for the six months time of Laps which they call there Consuetudo regni Angliae is referd to a Councell but none is specially named sauing that of Lions But although from Canonicall autoritie the Laps was thus receiud into our Laws yet it hath been no otherwise then the Baronage of England would permit it for the Canons otherwise as at this day they are giue but foure months to a Lay Patron and six to an Ecclesiastique which difference the Law of England would neuer permit as also neither that of the right of collation which the Chapter is to haue vpon default of the Bishop howeuer the Pope would haue put it here in execution according to the words of the Councell which you may see in the autorities before noted out of the Text of the Canon Law and therefore the Law of Laps is well referd rather to Consuetudo Regni Angliae by which title other parts of our Laws were often named that were of later beginning then to the Councell although thence doubtlesse as is shewd it had its originall But although now what through the Decretalls and other Canons against Lay mens Inuestitures what by reason of the Law of Laps the Patrons former interest or challenged right was much diminished in the Church and the disposition of the reuenues of it for it followd also that the Ordinaries assent was requisite yet the formulae or precedents vsed from ancient time in the recouerie of presentations still retaine to this day Characters in them of that Inuestiture as the quare impedit that is Praecipe A. quod iustè c. permittat B. praesentare idoneam personam ad Ecclesiam de N. quae vacat ad suam spectat donationem c. Where Donatio still sauors of the ancient right of Inuestiture agreeing whereto is that of Ecclesiam concedere vsed elswhere in our Law and attributed to the Lay Patron Neither doth praesentare ad Ecclesiam originally denote otherwise then the Patrons sending or placing an Incumbent into the Church and is made only of repraesentare which in that Councell of Lateran and elswher occurres also for praesentare repraesentare is properly to restore giue back or repay as reddo or repraesto whence praesentare taken in the barbarous times denoted as dare or donare so that idoneam personam ad Ecclesiam praesentare was all one with idoneam personam ad Ecclesiam dare or donare or in Ecclesia constituere or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as the Apostles word is to Titus where he bids him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is appoint or constitut or indeed present Priests or Encumbents in euery Citie for he that there should turn it by present might so keep the propertie of the word in both tongues though not as present is now restraind this is iustified out of an old Glossarie that turnes Repraesento by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for then cleerly 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is Praesento while praesentare so signified also in practice that is in the time of the vse of Lay Inuestitures all Churches so giuen were properly Donatiues which attribute hath been since restraind chiefly to such free-chappels as the Ordinarie had no interest in but are collated or giuen by the act only of the Patron and this interpretation of praesentare is iustified also out of the quare impedit vpon a right of collation which is but a donation by the Bishop wherin the words are also quod permittat praesentare ad Ecclesiam c. Donation which is meerly as Inuestiture in regard of the Bishop is there called Presentation So also is the Law in the Kings Case and of common persons being disturbed to collate by Letters Patents to their free Chappels or Donatiues the Writ in those Cases is only praesentare which confirms that it denotes Donation or Inuestiture But in the Counts vpon such Writs the speciall matter must be discouered The like Law is in the Case of him that hath the Nomination of the Clerk his Writ is also praesentare although another haue the right of that which is now known by the bare name of presentation Nomination indeed or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 being the true and eldest name found in the Laws belonging to the Church that denote filling or presenting to a Church in that sense as Presenting is taken for giuing or inuesting For in the primitiue times when the Patron had founded his Church he nominated whom he would haue receiued into Orders for the seruing of that Cure and then if the nominated were found worthy hee was receiued into Orders for that purpose which Ordination turnd afterward into Episcopall institution as is before declared that nomination was indeed as Inuestiture or giuing the Church so is the word vsed in the Laws and agreeing to them is the purer time of Latin wherein Nominatio is for giuing a Place or Office that is void And as these phrases of the Writs tast of the ancient right challenged by the Patron so do some assertions in our yeer books of later time as that of entring into an Aduowson by entring into the Church of passing an Aduowson by liuerie of seisin at the Church-dore of the Patrons entring into the place of foundation if the Church cease to remain hallowed and the like And to like originall may you referre those of the Kings presentations which haue Dedimus concessimus in them yet retained although the force of the words by the later Law make but only a presentation But the Law is now setled neither with vs hath the Patron alone now any prerogatiue or direct interest in the Church or the reuenues beside his right of Aduowson or Presentation to the Bishop by whose institution and the Archdeacons induction euery Church regularly is to be filled Neither for ought I haue heard hath he in our Law any of those Droicts honorifiques which the French allow him in Precedence Seats and the like These particulars of Benefices and Aduowsons had here their place both because in the ancient
as regularly the later common Law would haue it and in the other by Prohibition only I know little proof will serue most men to iustifie that the Spirituall Court had then a Iurisdiction of them but also some testimonie I haue seen of a particular recouerie of Tithes in the Bishops Court in that age The Monks of Northampton vnder King Stephen recouered two parts of the Tithes of the demesnes of Wullaueston against Anselm de Cochis before Robert Bishop of Lincoln as Ordinarie In plenaria Synodo coram Roberto Lincolniensi Episcopo disrationauerunt as the words are in a sealed Charter of Simon the second Earle of Northampton then liuing wherein hee testifies both the recouerie as also Anselme's confirmation of the same two parts according to the recouerie and addes also of his own volo praecipio vt illam Eleemosynam habeant teneant liberam quietam And to this you may adde the Appeales to Rome from the Audience of the Archbishop of Canterburie and other Ecclesiastique Conisans touching Tithes that are as the ancientest Precedents of any such Ecclesiastique proceeding in England remaining among the Epistles of Iohn of Salisburie a great fauorite of Thomas Becket Archbishop of Canterburie in the beginning of Henrie the second In one of them it is obseruable by the way that one Richard the Tenant of Land lying within the Parish of Lenham being sued in the Audience by Andrew the Rector for his Tithes alledges in Court Sibi a nobili viro Willielmo fratre Regis Domino suo esse prohibitum ne eo absente super Decimis de quibus agebatur causam ingrederetur Yet the Court ceased not therefore to proceed but Sentence being readie to be giuen for the Rector the Cause was sent to Rome vpon the defendants Appeale And although the title were only vpon the Grant of him that arbitrarily consecrated yet was it somtime determined in the Spirituall Court But also that in this elder age before about the time of Henrie the second the Kings secular Courts of Iustice originally held plea of the right of Tithes is as plain by infallible proofe of ancient Moniments To begin with the eldest times of this part of our Diuision there remaines yet recorded a Plea held apud Fulcardi montem vnder William the second betweene the Monks of Salmur and Philip de Braiosa wherein the Monks claiming against him and the Abbey of Fischamp in Normandie Parochiam quae ad Sanctum Cuthmannum pertinet de Castello de Staninges these are in England I thinke in Sussex de Bedingas de Bedelingtona by the testimonie of Robert Earle of Mellent a Iudgement of the Conquerors time is cited by which the Abbey of Fischamp had the Parish of S. Cuthmann adiudged to it in the Kings Court And thereupon it being denied by none it was now again adiudged that the Monks of Salmur should restore whatsoeuer they had taken post mortem Regis in Decimis Sepulturis Offrendis c. to the Church of Fischamp And while some delay was in the execution the King sent his Writ ad Iusticiarios suos de Anglia that is to Ralf Bishop of Chichester Randoll his Chaplaine Hamon his Sewer and Vrso de Abetot whereby hee commanded Vt facerent Ecclesiam S. Trinitatis that is of Fischamp habere totam Parochiam S. Cuthmanni Decimas Corpora omnes Custumas tam de viuis quam de mortuis sicut pertinebant ad praedictam Ecclesiam S. Cuthmanni antequam Willielmus de Braiosa haberet Castellum de Bembra Bramber Castle in Sussex giuen by William the first to William de Braiosa quicquid de supradictis custumis Monachi de Salmur ceperint reddi The right of Tithes and Offerings appeares here plainely to haue been determined in the Temporall Court by two Iudgements the one vnder the Conqueror the other vnder his sonne William And it is found vpon record that about 10. Hen. 1. a Writ was sent to Manasses Arsic out of whose Lands diuers Tithes were conueyed into the Monasterie of Fischamp commanding him Quatenus Decimas a parentibus suis inuiolabili iure concessas datas Fiscamensi Ecclesiae Monachos suos apud Coges degentes omnes in paâ—e quiete habere faciat sinon Iustitiae Regis facerent Whereupon he sends his Precept to all his Tenants of such Lands commanding them to make payment Si quis autem aliter saith he facere praesumpserit Regis irae nostrae poenam sine dubio patietur So among the Liberties of Saint Iohn of Beuerley this Writ is found of Henrie the first Henricus Rex Anglorum Osberto Vicecomiti de Eboraco Geraldo de Bridesala salutem Praecipio vobis vt faciatis habere Ecclesiae Sancti Iohannis de Beuerlaco Decimas suas sicur vnquam melius habuit in tempore Regis Edwardi patris mei de illis videlicet terris omnibus de quibus homines Comitatus Eboraci testimonium portabunt quod eas habere debent Et quicunque detinuerit sciatis quod ego volo vt rectum faciat Deo S. Iohanni mihi T. Ran. Cancellario Comite de Mellet apud Londonias c. What is this else then a kind of Iusticies to the Shirife of Yorkeshire for the right of Tithes determinable by the Countrie Doth not homines Comitatus Eboraci denote as much Of the same time also in a Volume of Constitutions other things belonging to the Church of York Henricus Rex Anglorum Osberto Vicecomiti de Eboraco salutem Mando tibi praecipio vt Archiepiscopum Girardum permittas facias honorificè tenere Ecclesias meorum propriorum Maneriorum quas S. Petro eidem dedi cum omnibus Capellis suis cum omnibus Decimis suis cum omnibus terris suis videlicet Ecclesiam de Bokelinton de Driffeild de Killum de Pickering de Burgo Waltero Euremaro Ministris de Driffeild praecipio vt Decimas de hoc praeterito Augusto quas non reddiderunt plenariè reddant sicut Ecclesia eas iustè habere debet sicut vnquam eas melius habuit tempore patris mei siue meo antequam eas dedissem S. Petro videant ne ampliùs inde clamorem audiam si quis inde iniuriam fecerit Archiepiscopo tibi Osberte Vicecomes praecipio vt plenariam rectitudinem inde facias Teste Rogero Episcopo Sarisburiense apud Westmonasterium in Natali Domini And another is there in these words Henricus Rex Anglorum Ansch. Vicecomiti omnibus Praepositis Ministris suis de Driffeild de Pokelinton de Killum de Pikering de Burt salutem Volo praecipio quod faciatis habere Hugoni Decano Clericis suis benè plenariè omnes rectas Decimas de Dominijs meis in omnibus rebus per haec praedicta Maneria mea de omnibus Parochianis qui ad
Westminster the 2. giues the Writ of Right only where the Indicauit is first sued And for this matter of Indicauit which concernes properly suit between Rector and Rector not between the Rector and the Parishioner take as a note by the way the aduice of the Bishops among themselues in 41. Hen. 3. against the Temporall Courts In the Annales of Burton it is extant thus speaks Concilium Archiepiscopi omnium Episcoporum super Articulis propositis apud London Petit persona Ecclesiastica Decimas coram Iudice Ecclesiastico Iudicanti petenti porrigitur Regia Prohibitio nomine Patroni Ecclesiae cuius Rector conuenitur ne super Aduocatione seu Patronatu Ecclesiae Iudex ille cognoscat si actor prosequatur Iudicantis officium assumat vterque attachiatur attachiati veniunt Consilium tale est quod si Iusticiarij causam Decimarum sub colore querelae Aduocationis Ecclesiarum ad se trahere velint de non prosequendo vlterius causam Decimarum in foro Ecclesiastico Iudice siue a Parte securitatem exigunt in nullo eis caueatur Et si propter hoc aristentur per loci Diocesanum requirantur siue per Episcopum proprium Et si libere non tradantur Ecclesiae competenti monitione praemissa excommunicentur Iudicantes detentores Et si queratur a Iudice quota pars vel quanta petatur non respondeatur But this aduice of theirs was to litle purpose nor durst they questionlesse haue put it in execution The Statuts of Westminster the 2. and Circumspectè agatis gaue them some remedie whereof enough alreadie IV. Of Writs of Scire facias graunted to call men to answer in the Chancerie for Tithes sufficient testimonie is in the Statute made for the Clergie in 18. Ed. 3. chap. 7. Item que per la ou briefs so are the words de Scire facias eient este grantez a garnir Prelates Religieuses autres Clerks a respondre des Dismes en nostre Chancellarie a monstre s'ils eient riens pur eux ou sachent riens dire pur quoy tielx Dismes a les demandants ne deuient estre restituees a responder auxibien a nou◠come a la partie de tielx Dismes c. By this it appeares that some vse was to graunt such Writs for Tithes Whence also Fitzherbert well inferres that the right of Tithes was determinable in the Kings Court But wee haue not in our Yeere-Bookes any case of further declaration of that vse before the Statute But out of good ground you may coniecture that in these Three speciall cases Writs of Scire facias were grantable anciently for Tithes and that in those times before the Statut either vpon the title of the demandant first found by Inquest to the Tithes or returnd by the Shirife or out of Fines it seemes leuied of Tithes or vpon Patents of Tithes legally graunted by the King when against the Grant any Clergie man by the Canon Law took them from the Patentee Of all these there is faire proof enough But the third it seems hath principall reference to that Statute as shall anon be shewed For the course of taking an Inquest by commission which being returnd might be sufficient ground for a Scire facias it appeares in Escaet 8. Ed. 1. numer 67. that a commission was sent to Adam of Eueringham Steward of the Forest of Shirewood to enquire by Oath of the Foresters and Verderors whether the Priors of Lenton had vsed to haue all Tithes of the Kings Venison taken in the Countie of Notingham which they claimed per Cartas quorundam praedecessorum c. And in the Inquisition returned it is found that they had vsed to haue it and that first by the Grant of King Iohn And in the same bundell num 72. a Commission is to Nicholas of Stapleton commanding him to enquire whether the Prior of Wyrkesep ought to haue the Tithes of all profits of the Mannor of Gringeley Nobis super iure Prioris in hac parte facto contrario that is the subtraction of them by Henrie de Alemannia against whom the Prior complaind certiorari volentibus c. Whereupon the Commissioner returnes that the Priorie had right by prescription and that Henry de Alemannia had subtracted them What could be more proper then to haue a Scire facias vpon the Inquisition according to the intent of that preample of 18. Ed. 3. in which Scire facias the right might be tried between the parties and so iudgement be giuen To these may be added that in Inquis ad quod damnum 8. Ed. 2. num 79. Where per Petitionem in Consilio the Abbesse of Godestow hath a Writ directed Custodi equitij sui de Woodstock c. which relates that ex parte dilectae nobis in Christo Abbatissae de Godestow per petitionem suam coram nobis in Consilio nostro exhibitam nobis est ostensum quod cum per cartas progenitorum nostrorum quorundam Regum Angliae Concessum sit ei quod ipsam Decimam omnem in Manerio nostro de Wodestoke parco nostro ibidem per annum renouantium percipiat habeat praetextu cuius the Abbesse and her Predecessors had enioied it and that the Bailife kept from her the Tithe of the Colts bred in the same Park wherefore it commands him to restore them if they be so due which supposes I think that he should return an inquest or some discouerie of the truth or falshood of the Plaintifes pretence although indeed this example may serue also for that part of our diuision of this kind of proceeding which touches Patents But to that Writ is annext the return that is the Bailifes acknowledgment in French of her right his name is William Beauxamys So in Escaet 7. Ed. 3. num 83. a Commission is sent out to enquire of the right of the Tithes of the Demesnes of the Kings Castle of Tikhull which the Prior of S. Oswald claimed the enquest was taken of it at Le Faure Okes in the confines of Yorkeshire and Nothingham and in it the particulars of the right are returned and what should want that vpon such returns writs of Scire facias might not haue been granted we omit that before cited out of the Parlament Rols of 18. Ed. 1. And light also to this practice in the temporall Courts of that elder time may be had from other Cōmissions or Processe in the Rolls as from that sent by Henrie the third into Ireland to the Archbishop of Cassile the Bishop of Ferne and the Bishop of Lismore commanding them that taking with them Ieffrey de Marisco then Iustice or Lord Deputie of Ireland or some other whom hee should appoint they should enquire by the Othes of both Lay and Clergie men whether Bartholmew de Camera Parson of the Chappell of Limeric or William of Caerdiff Treasurer there had seisin of the Tithes De Piscaria
referd to Mihelmas Terme following In Statu pro nunc the Writ is both in part 1. and 3. of that yeer but to that in part 3. which is of Trinitie Terme a Plea of the Abbots is annext in these words Et praedictus Abbas per atturnatum suum dicit quod praedicti Decanus Capitulum per breue suum non supponunt quod Ecclesiae de Witteham Cheresinges sunt de fundatione dictae liberae Capellae Domini Regis sed quod illas Ecclesias tenent de dono Matildae quondam Reginae Angliae post fundationem dictae liberae Capellae dicit quod tempore doni praedictae Ecclesiae fuerunt in iurisdictione ordinariâ videlicet Episcopi London continuè post donum hucusque fuerunt ad huc sunt in praesenti in iurisdictione ordinaria Et dicit quod praedictae Ecclesiae fuerunt visitabiles visitatae per Episcopos London in visitationibus suis à tempore à quo memoria non extat praedicti Decanus Capitulum per breue suum petunt decimas quas supponunt esse parcellam earum Ecclesiarum quae sunt in iurisdictione Ordinaria in forma praedicta sic Decimae illae sunt merè spiritualia non placitabilia nisi in curia Christianitatis per quod non intendit quod Curia ista in hoc casu cognitionem habere debeat Here it appeares that the Counsell of the Abbot of Colchester Defendant supposed that the conisans of the Tithes was spirituall only vnlesse they were originally part of the Kings free Chappell how the Case was determined appears not But in the next Parlament following was a Petition exhibited by the Clergie in those words before cited § IV. complayning of the granting of such Writs of Scire facias and vpon that Petition the King answered Que tielx breifs desore nauant ne soient grantes que les Proces pendant sur tielx breifs soient anentes que les parties soient dismisses deuant secular Iudges de tielx manner de Plees salue a nous nostre droit tiel come nous nostre ancestors auoient ewe soloient auer de reson I think we need not doubt but that this very Case of the Abbot of Colchester was no small cause of that Petition of the Clergie and you see mention is in the answer of some Writs hanging whereof this is most likely to haue been one But howeuer the Petition was answered and although out of this Petition and answere that Act of 18. Ed. 3. hath been receiud among our Statuts and commonly goes for one yet might it deserue further consideration then I will here seem to take of it only I admonish that within foure yeers after a Scire facias was brought by a Patentee of Tithes in the Forest of Inglewood and that against a Prior being Pernor of them and by iudgement the Writ was allowd without mention or the least regard had of that Act. why that was so or what force the Act hath let others examin I purposely abstain VII But for Processe of bare command of payment of Tithes or the like when the title was by Patent cleerly supposed true the Shrife or other Officer was sometimes commanded by Writ to take order that the demandant might enioy his Tithes As in Claus. 7. Hen. 3. part 1. membran 6. the King directs his Writ to Brian de Insula Keeper of the Forest of Shirewood telling him that pro salute animae Domini Ioannis Regis patris nostri concessimus Monachis de Basingwere quod percipiant hac vice vsque ad Festum S. Michaelis Anno regni nostri VII Decimas de bladis seminatis in defenso nostro inter Blakebroc Glossop ideo vobis mandamus quod ipsos Monachos hac vice sine impedimento permittatis Decimas praedictas percipere T. c. And such more somtimes occurre But this and the most of that age that are of this matter indeed appeare to haue bin of Tithes in a Forest also as that of 22. Ed. 3. is in the Booke of Assises which happened after the Statute of 18. Ed. 3. and you may remember those before cited out of 6. Ed. 1. and 18. Ed. 1. in Chapter XI § III. and the example of 8. Ed. 2. before rememberd touching Woodstock Parke So in Rot. Claus. 5. Hen. 3. part 2. membr 14. the Bishop of Salisburie hath his fiftie shillings yeerely nomine Decimae out of New-Forest which Henrie the second had granted to his Church by the name of omnes Decimas de Noua Foresta c. and other like out of other paid him by Writ to the Sherife and in Rot. Pat. 11. Hen. 3. membrana 5. part 1. Eustace Bishop of London hath the Tithe of the Kings Venison taken in the Forest of Essex according to King Iohns Graunt by Writ directed to the Foresters and Bailifes of that Countie Neither would they it seemes in that age permit any suit for the Tenths of Venison or Beasts of the Forest in the Spirituall Court although those Tenths were most commonly setled in one Church or another by Grant as may be seen in Mich. 9. 10. Hen. 3. Rot. 15. where Iohn Fitz-Robert in an Attachment vpon a Prohibition against Philip of Ardern Clerk in the pleading allows that for Tithe of Hay and Mills the prosecution in the Spirituall Court was lawfull but hee further sayes that de Decima Bestia Forestae eum implacitauit contra prohibitionem c. And herewith may be considered also the Kings command sent to the Constable of Windsore Castle that the Church of Saint Iohn in Windsore should haue Decimas Gardini Regis de Windleshores But out of these all as out of the examples before brought of Commissions to be returned it may perhaps be collected that only the Tithes of the Kings lands or belonging to his Churches were to be ordered or commanded to be paid by these kind of Processes I confesse I haue not seene enough to perswade me otherwise for the time after about King Iohn or his neere predecessors Yet that as I leaue the iudgement of all which historically I relate to the able Reader so I may not defraud him of what in any kind may giue light here I offer him also this Writ of 24. Hen. 3. that seems to touch the temporall Courts determination of the right of such Tithes as for aught appears belonged neither to the Kings Churches nor were encreasing in his Demesnes or immediat Tenancies Henricus Dei gratia Rex Angliae Vicecomiti Hertford salutem Licet alià s tibi signifiâ— auerimus quòd non permitteres Ecclesiam de Hamelamstede spoliari Decimis ad ipsam pertinentibus quod Ecclesiam ipsam manuteneres defenderes in eo statu in quo â—uit tempore Syluij quondam Rectoris eiusdem Ecclesiae non tamen fuit intentionis nostrae quòd occasione illius praecepti aliqua alia Ecclesia Decimis suis spoliaretur
are the expositions of Zonaras and Theodore Balsamon two great Canonists of the Eastern Church Of the V. Chapter THose Abbots spoken of in the 1. § were not of the ministring Clergie properly taken but only principall Gouernors of such as had chosen a separated and single life such as are in good number found in Pailadius his Lausiaca Historia Cassimus and the like more For that of giuing Tithes to the vse of the Poor it seems it must be vnderstood that they were most commonly giuen into the hands of those Abbots or some of the Clergie for their vse and that they dispensed them which may be collected out of the testimonies of that age wherein the goods and treasure of the Church is accounted but as the Poors chiefly in propertie Beside those attributes of Tithes and other things consecrated as tributa egentium animarum and patrimonia pauperum and the like an obseruable admonition is to this purpose found in Isidore Pelusiota that liud about the beginning of these CCCC yeers made to one Maro a Priest whom he often reprehends but specially for not leauing the goods of the Church and of the Poor that is what was offerd in Tithes Rents and other bounties to be kept only by the OEconomus or Dispenser or Steward who in those times receiud them for the Bishop and dispensed them by direction of him and his Clergie but carried them home to his own house 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 saies he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is Leaue off this wicked course For the Dispenser hath his name from his Dispensing to the Poor what is theirs as the goods of the Church are properly So S. Basile stiles the goods and reuenue of the Church 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and the Greek Lawiers call them generally 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or prouision for the Poor And hence is it that diuers Schoolmen to and fro dispute that question whether the dominion or propertie of the reuenue of the Church be in the Clergie and whether what they giue to the Poor be due debilo Iustitiae or debito Claritatis I supposed enough had been said in § 3. to conuince the common error of them which deriue Feudall Tithes from the Clergie of the time of Charles Martell or affirm any common paiment of them then in practice But it is a hard taske to teach obstinat ignorance Let that of Eucherius his vision be as it will which yet cannot stand with the time of his death calculated according to the storie that remains of him howeuer indeed very ancient Autors help to iustifie it it still rests certain that the Constitutions of his time which haue reference to the many sacrileges committed by him and others vpon Monasteries Bishopriques and the rest of the Demesnes of the Clergie neuer spake word of Tithes and with that which is there noted in the margin obserue the seuerall transcripts of that Law of Restitution made in the Synod or Diet at Ratisbon held vnder Caroloman in DCC.XLII as it is in Melchior Goldastus in his first Volume he giues it thus Decimas bonae Ecclesiastica occupata à prophanis restituâ—mus as indeed both Auentin and the Centuries haue it also literally before him both out of corrupted Copies But afterward the diligent Goldastus finding a better Copie entirely again publishes the Laws of that Synod neerer the originall and this one thus Fraudatas pecunias Ecclesiarum Ecclesijs restituimus Some other Copies hauing fundatas but none of any autoritie Decimas pecunia being only their wealth or estate in Lands as in more ancient time pecunia denoted chiefly estate in cattell and then mony as now it doth I know also it had a signification that included offerings of fruits and corn and so might be drawn to denote Tithes offered but that signification was of rare vse and only among the Gentiles Neither as I thinke with some confidence can any man shew me such vse of the word in any Christian Autor of the ancients And the very decree of Thierry King of France and that Charles Martell the Maire du Maison of the yeere DCC.XXX touching the taking from the Clergie their possessions Vt subueniatur necessitatibus publicis solatijs militum pro Dei Ecclesia bono statu Reipub. vniuscuiusque propria pace pugnantium as the words of it are and that of Caroloman in DCC.XLIII speake not a word of Tithes but only of terrae Casatae which were the Ecclesialis pecunia and the small Rents to be reserud to the Church vpon leases made of them which is it seems vnderstood in the more common giuing of them into Lay hands so much spoken of by Flodoard that is Lay men had the benefit of them by hauing Leases of them at small Rents without Fines Neither is any other thing spoken of in the Capitularie exhibited by the Bishops of the Prouinces of Rhemes and Rhosne to the Emperor Lewes the second When I see any testimonie neer Martells time that so may iustifie the receiud tale of his prophaning of Tithes as I may change my mind But seeing so much of his sacrileges left in the storie of neer his age and that not a syllable touching such Tithes as we here enquire after nor any thing els that hath reference to the common paiment of them is found in the Laws made vnder him I still remain confident in what I haue admonished and I think so will euery man els that hath an impartiall eie of iudgment But for that which I haue here noted touching Casata perhaps Casata should rather haue been interpreted a Mesuage or dwelling house For it appears in that Capitularie exhibited to the Emperor Lewes and in some other testimonie of that time that the reseruations ad restaurationem terrarum which may be satisfaction giuen by the Lessees of the Clergie in Rents of land were Nonae Decimae where Decimae haue not to do with paiment of Tithes out of meer lay Fees but only were receiud by reseruation and out of euery Casata xijd. So it may be that Casata is no quantitie of Land there as I haue coniecturd but a house only if it be you see whence I was deceiud pardon me perhaps it was an error I willingly acknowledge so much vpon this Reuiew I acknowledge it if that Capitularie of the Bishops and the other testimonie be therein authentique I somwhat doubt them because the most known and certain Laws of Martells time speak only of xijd. to be serud out of euery Casata and the Nonae and Decimae grow not elswhere into vse till after the beginning of the French Empire and if nothing but Casatae were spoken of there were reason enough why they should be taken for Land But the Nonae and Decimae in those autorities are referd to Land and the xijd. only to Casatae That in the 4. § of the Tithe of time in