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
be most particular being referd to the last seuen Chapters Till towards the end of the first foure hundred no Paiment of them can be proued to haue been in vse Some Opinion is of their being due and Constitutions also but such as are of no credit For the first 't is best declared by shewing the course of the Church-maintenance in that time So liberall in the beginning gf Christianity was the deuotion of the beleeuers that their bountie to the Euangelicall Priesthood farre exceeded what the Tenth could haue been For if you looke to the first of the Apostles times then the vnitie of heart among them about Ierusalem was such that all was in common and none wanted and as many as were possessors of lands or houses sold them and brought the price of the things that were sold and laid it downe at the Apostles feet and it was distributed vnto euery man according as he had need And the whole Church both Lay and Clergie then liud in common as the Monks did afterward about the end of the first foure hundred yeeres as S. Chrysostome notes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 saies he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is so they liue now in Monasteries as then the beleeuers liud But this kind of hauing all things in common scarce at all continued For we see not long after in the Church of Antiochia where Christianitie was first of all by that name profest euery one of the Disciples had a speciall abilitie or estate of his owne So in Galatia and in Corinth where S Paul ordaind that weekly offerings for the Saints should bee giuen by euery man as hee had thriued in his estate By example of these the course of monthly Offerings succeeded in the next ages Those monthly Offerings giuen by deuout and able Christians the Bishops or Officers appointed in the Church receiud and carefully and charitably disposed them on Christian worship the maintenance of the Clergie feeding clothing and burying their poore brethren widowes orphans persons tyrannically condemnd to the Mines to Prison or banisht by deportation into Isles They were called Stipes which is a word borrowed from the vse of the Heathens in their collections made for their Temples and Deities neyther were they exacted by Canon or otherwise but arbitrarily giuen as by testimony of most learned Tertullian that liued about CC. yeers after Christ is apparant Neque pretio are his words vlla res Dei constat Etiam si quod arcae genus est non de oneraria summa quasi redemptae religionis congregatur modicam vnus quisque Stipem menstruâ die vel cum velit si modo velit si modo possit apponit Nam nemo compellitur sed sponte confert Haec quasi deposita pietatis sunt And then he shewes the imployment of them in those charitable vses Some authoritie is that about this time lands began also to bee giuen to the Church If they were so out of the profits of them and this kind of Offerings was made a treasure and out of that which was increased so monthly was a monthly pay giuen to the Priests and Ministers of the Gospell as a salarie for their seruice and that eyther by the hand or care of the Bishop or of some Elders appointed as Oeconomi or Wardens Those monthly payes they called mensurnae diuisiones as you may see in S. Cyprian who wrote being Bishop of Carthage about the yeere CCL and speaking familiarly of this vse calls the Brethren that cast in their monthly offerings fratres sportulantes vnderstanding the offerings vnder the word sportulae which at first in Rome denoted a kind of running banquets distributed at great mens houses to such as visited for salutation which being oft-times also giuen in mony as you may remember out of Mardial the word came at length to signifie both those salaries wages or fees which either Iudges or Ministers of Courts of Iustice receiud as due to their places as also to denote the Oblations giuen to make a treasure for the salaries and maintenance of the Ministers of the Church in this primitiue Age. and to this purpose was it also vs'd in later times But because that passage of S. Cyprian where he vses this phrase well shews also the course of the maintenance of the Church in his time take it here transcribed but first know the drift of his Epistle to be a reprehension of Geminius Faustinus a Priest his being troubled with the care of a Wardship whereas such as take that dignitie vpon them should hee saies be free from all secular troubles like the Leuits who were prouided for in Tithes Vt qui as he writes operationibus diuinis insistebant in nulla re auocarentur nec cogitare aut agere secularia cogerentur and then hee addes Quae nunc ratio forma in Clero tenetur vt qui in Ecclesia Domini ad ordinationem Clericalem promouentur nullo modo ab adminstratione diuina auocentur sed in honore Sportulantium fratrum tanquam Decimas ex fructibus accipientes ab Altari Sacrificijs non recedant die ac nocte coelestibus rebus spiritalibus seruiant which plainly agrees with that course of monthly pay made out of the Oblations brought into the Treasurie which kind of meanes he compares to that of the Leuits as being proportionable But hence also 't is manifest that no payment of Tithes was in S. Cyprians time in vse although some too rashly from this very place would inferre so much those words tanquam Decimas accipientes which continues the comparing of Ministers of the Gospel with the Leuits plainly exclude them And elsewhere also the same Father finding fault with a coldnes of deuotion that then possest many in regard of what was in vse in the Apostles times and seeing that the Oblations giuen were lesse then vsually before expresses their neglect to the Church with at nunc de patrimonio nec Decimas damus whence as you may gather that no vsuall paiment was of them so withall obserue in his expression that the liberalitie formerly vsed had been such that in respect thereof Tenths were a small part vnderstand it as if he had said but now we giue not so much as any part worth speaking of Neither for ought appears in old moniments of credit till neer the end of this first four hundred yeers was any paiment to the Church of any tenth part as a Tenth at all in vse II. But some Laws of this time yet remaine which shew that Tenths out of Mines and of Quarries were paid both to the Emperor and to the Lord of the soile as in the ancient state of Rome the Tenants of the Lands of the Empire paid for Rent the Tenth of their Corne whence the Publicans that hired it as the Customers doe here the Kings custome were called Decumani those Laws for the tenths of Mines
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