this here deliuered is from the holy text and the Iewish Lawiers V. Of their Cattell the first borne were the Lords paid to the Priest of clean beasts in kind of vnclean in money with a fift part added Of the increase of them one Tithe only was paid and that to the Leuits Euery Tithe of Bullock and of Sheep of all that goeth vnder the Rod the Tenth shall be holy to the Lord sayes holy Writ Thence at the Tithing they vsed to shut the Lambs for example in a sheep-cote where the straitnesse of the door might permit but one at once to come out Then opening the door either gently to hunt them out or by placing the Ewes bleating neere them without so to cause them run forth one by one while a seruant standing at the door with a rod coloured with oker solemnly told to the Tenth which with his rod he markt so they vnderstand going vnder the Rod. that so markt what euer it were male or female worst or best was the Tithe and might not be changed VI. How the payment of these Tenths was either obserued or discontinued partly appeares in holy Writ partly in their institution of more trustie Ouer-seers whom they called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for the true payment of them For after the new dedication of the Temple by Iudas Machabaeus vntill his fourth successor Ioannes Hyrcanus being neer thirtie yeers all duly paid their first fruits and Therumahs but the first or second Tithe few or none iustly and that through the corruption of those Ouer-seers Whereupon their great Sanedrim or Court of seuentie Elders that is the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is the greatest Court that determined also as a Parliament of matters of State enacted that the Ouer-seers should be chosen of honester men and withall that of such things whereof by such corruption or otherwise it was indifferently doubtfull whether Tithe were iustly paid or no of which kind almost all increase at the time of this act made was a heaue Offering or Therumah of the Tenth of all that is a hundreth part should be giuen to the Priests and then the second Tithe at the Temple should be paid but no first Tithe or poore mans Tithe was paid of any such things These kind of goods they called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Demai whereof a speciall Massecheth or treatise is in the Talmud in the Seder Zeraim From that act of the Sanedrim to the last destruction of the Temple it seems the iust payment of Tithes continued and thereof testimonie is for the time neere the destruction in holy Writ But in Tithing and offering Therumahs the Pharisees were most curious and deuout they gaue perhaps Tithe after both the Legall Tithes paid beside fiftieth parts and somtime thirtiths for their Therumahs So may be vnderstood that of them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which you may interpret they tithed what was alreadie tithed they gaue first fruits thirtith parts and fiftith parts but I dare not iustifie the translation neither doe I beleeue that Epiphanius there sufficiently vnderstood what they did in their Tithing nor is his meaning easily I doubt apprehended The like may be with modesty enough to said of S. Chrysostome speaking of the Iewish Legall liberalitie to the Leuits 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sayes hee 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Obserue but how much the Iews gaue to their Leuits and Priests as Tenths first Fruits then Tenths again then other Tenths and again other thirteenths and the Sicle and yet no man said they eat or had too much so are his words in two places of his works exactly the same sauing only that in one the varietie of reading hath 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for thirteenths I confesse I equally am ignorant of both neither is his enumeration consonant with what the Moniments of the Iews or the holy Text will warrant Coniectures vpon it I leaue to others some probable enough might here be brought but I willingly abstaine VII That tithing of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 euery herbe which is spoken of in the Gospell and obserued by the Scribes and Pharisees was neuer commanded in Scripture nor by their Canon Law requisit according to the opinion of their Doctors who restraine the payment of Tithes to that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is thy increase spoken of by Moses and comprehend not herbs vnder that name They deliuer indeed that by tradition from their fathers all things growing out of the earth and fit for mans meat are titheable which their Lawyers thus regularly expresse 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is Euery thing that is kept as mans meat and hath his growth from the earth must pay the heaue Offering and likewise Tithe Whence they make such herbes as are mans meat titheable but all such as are not mans meat they discharge of Tithes and out of that rule also they except whatsoeuer was gleaned either out of eares of Corne or Grapes or had out of the corners of the field left in haruest But it seems that for this payment of Herbs the Pharisees were of the truer side Our Sauiour likes well their payment and expresly saies they ought not omit it which admonition of his was to them while yet the Mosaicall Laws were not all expired by the consummatum est VIII After the second Temple destroied and dispersion of the Iews their Law of first fruits Therumahs and Tithes with them ceased For their Doctors determin that regularly no inhabitants but of the land of Israel were to pay any although also among them be a wise exception for the lands of Senaar Moab Ammon and Aegypt because the first is neer their land of Israel and many Israelites went thither and dwelt there and the other three are round adioyning their land of Israel But they deliuer that who so of them took the profits of land mongst the Cutheans or Samaritans their old enemies or elswhere in Aram and so it seems by consequent in any other land sauing which they except was not to pay any touching which point many speciall cases are put by Rabbi Ben Maimon At this day by their Law they pay none Those that liue in their land of Israel for want of their Priesthood and Temple those that liue dispersed in other Countries both for that reason as also for the other which restrain the payment of them to Canaan and herein they all agree But the great Ioseph Scaliger saies he askt some of them whether if they might again build their Temple as after the captiuitie they did their Laws of Sacrifices first Fruits Tithes would be then reuiud and their answer was that to build it again were to no purpose because they had no lawfull Priesthood there being not one of them that can proue himselfe a Leuit though many pretend to be so and some bear also the office of a kind of Priesthood amongst them And for example herein amongst
is pertinent hither you may see the Grants and Bulls made to the Abbey of Clugny to the Abbey of S. Germans in Auxerres and many other like recited in Pope Innocent the third his Decretals as also the Charter of Henry Earle of Brabant to his Abbey of Afflighem neere Bruxels of Thierry Earle of Holland to the Abbey of Egmond which being but a few of a multitude enough shew the vse of the time in conueying Tithes in Appropriations seuerally and as distinct from the Church and more are of this nature where we speake of the English vse And although also Confirmations and Bulls of Popes and Bishops are sometimes added to such ancient Appropriations as you see in an ancient Charter by Lewis the fourth of France in the yeere DCCCCXXXIX to the Abbey of Clugny where the Appropriations of Churches and Tithes Sicut per priuilegium Romanum per scripta Episcoporum ad quisierunt are confirmed and in other Monuments of succeeding Times yet those were gotten by the Monks to satisfie the Canons not to giue validitie in secular or common Law then practiced But also some Instruments of Appropriations are wherein from Bishops only Tithes of other mens Lands were conueyed to Monasteries as in that especially of Athelbero Bishop of Hamborough in the yeere MCXLI whereby he giues to the New Minster in Wipenthorp then newly founded by Vicelin in the Territorie of Holst eiusdem Villae Decimam cum aliarum quarundum Villarum subter positarum Decimis veluti in villa Stauera Horgan Braâ—htenuelde Tuenthorp Godeland Wlmersthorp Boienbutle Husberg Cumerueld Padenworth Withorp Padenstede Bulligstede sed alias Decimas iuxta fluuium Gestere in vtroque littore à villa Elmeshorne vsque ad lacum Wicflet c. with diuers other And by another Charter dated MCXLVI he giues to the same Monasterie other Tithes of great value and some of his successors follow his example If you question how the Bishop came to haue power to make these Grants eyther in regard of Parochiall Curats by the Canon Law or of the Lay owners interest according to the practice of the Time know that in this and most of the Bishoprique of Germanie especially which began with the Christianitie of the Dioceses about or since the beginning of the French Empire the right of Tithes through those Dioceses was challenged by the Bishops onely and that iustly enough by the Lawes of the Empire which presently are related because the Parishes being not limited nor indeed Christianitie so at first setled that they could haue beene well assigned to Parochiall Curats the Bishops were the true and immediat Parochiall and ministring Rectors in their Bishopâ—iques and although afterward Parish Churches were founded yet to them they would not resigne their ancient right in Tithes which from their first Function there they had eyther enioyed or still pretended to both in regard of the value of them as also because euery founded Church was to be otherwise endowed with Manse and Glebe Neither had it beene altogether safe among so obstinate a people which could scarce by any means be brought to pay any Tenths to haue permitted euery Parish Rector afterward to haue demanded them or taught them due to himselfe for to such as had both at once receiued the Doctrine of the Faith and the declaration of the right of Tithes due to the Ministers which were only when they receiued it the Bishops if you respect only as you must the Ministers setled among them it might haue seemd a different Doctrine to haue afterward taught them due to any inferior part of the Hierarchie especially in the weaker yeeres of that Church Hence is it that the Archbishop of Mentz claimed all the Tithes in Turingia the Bishop of Lubek of Saltzburg and others the Tithes of their Dioceses and hence only those of Hamborough so liberally dispose of them Neither could any of these reasons so well haue place in other Countries for except in Germanie and those more Northerne parts Christianitie was in most places of Europe it seems so established and the Hierarchie of Bishops and parochiall Rectors so setled before any common Doctrine or generall Law for payment of Tithes was so diuulged for a thing of necessarie obseruation in the Church that when it came after to be commaunded it could not be in any conceit better ordered then according to the diuision of limited Parishes and those wanting at the time when the Faith and the Doctrine and Laws of Tithes came first into those parts how could it on the other side fall out but that they should be taught due only to the Bishopriques Which opinion also it is no wonder that those Bishops should be willing to preserue and continue after Parishes were there diuided and after Tithes came at length to be paid them For long they preached and much stirre was about it before they could get a vsuall payment of them Neither need you mistrust that their right to Tithes so cleerely pretended in the Appropriations by the Bishops of Hamborough was onely from the Episcopall right which the Canonists allow in case where the Lands wherein the Tithes encrease are not assigned to any one Parish Church the contrarie thereof appears enough in other conueyances made to the same Monasterie in which the same Bishop Athelbero first in MCXLII appropriats to it the Parish Church of Bishorst vpon Albis cum banno fimul cum omnibus appendicijs eius acquisitis vel ac quirendis and with the largest bountie that the thing giuen might carrie with it but afterward in MCXLVI hee graunts to it also a good part of the Tithes within the Banne and precinct assigned to the same Church which plainely shewes that he graunted Tithes of Lands alreadie assigned to parishes For his Parish Churches and their profits were no other then what Foundations speciall Endowments and the Offerings of the parishioners within their Banne or Limits had made them Which is well iustified by an old Rimer that in Verse which would grieue Apollo's heart to heare sings Athelbero's liberalitie to the Monasterie and expresses the Tithes of foureteen Villages and other places giuen by him and then comes to two Churches that he afterward appropriated to it Bishorst and Ichorst and names them only as they had Bannes or Limits and parishioners as Bishorst cum Bannis Bannos cum parochianis Ichorst cum Bannis Bannos cum parochianis And then addes Et Bishorstensis Decimatio tota paludis Additur quaeque fratrum labor occupat aequè Where you see hee diligently remembers also an Exemption giuen to it by that Bishop which could hardly haue been if the generall right of Tithes had not beene supposed in him But out of these things you may probably collect that by this time that is diuers yeeres before the end of these CCCC yeeres in some of those Northern Churches Tenths were payd more iustly according to the
intra confines eorum curae Neither haue Infeodations of Tithes into Lay hands been lesse known in Italie then elswhere For example you may see the case of the Mutij a Noble Familie of Piacenza who had by immemoriall prescription and confirmation by Bulls an ancient Infeudation of all Tithes growing in the Territorie of Verano within the Diocese of Piacenza By the Ordinance of Frederique the second about M.CC.XX. in the Kingdomes of Naples and Sicily a command is That of all profits belonging to the Crowne of those Kingdomes a whole Tenth should be paid and that euery subiect should truly pay all such Tenths as had been vsed to be paid in the time of William King of Sicilie Subiectis are the words nostris indicimus vt Decimas quas de feudis bonis suis antecessores eorum praedicti Regis Guilielmi tempore prestiterunt venerabilibus locis quibus Decimae ipsae debentur cum integritate per soluant In Germanie the Canonists note a Custome that pro Decimis soluunt certas mensuras siue Coloni aliquid recolligant siue non And this by their Law they allow because it stands indifferent whether the Church lose by it or no. but also some Lay men take Tithes of new improuements by right of their Lordships Status Imperij saeculares sayes a Iudge of the Imperiall Chamber Decimas Noualium percipere iure Territorij possunt Which the Clergie complaind against in a Diet at Norimberg but in vaine And of those Tithes Infeodations are there made at the pleasure of the owners into Lay hands Which was so in practice there also anciently as is witnessed by an old Canonist that liud aboue CCC.LX. yeers since where disputing the question Vtrum Laicus possit sine peccato Decimas percipere and bringing the ordinarie Autorities for the negatiue part he tels vs both for Germanie and other Countries in these words In contrarium potest induci generalis consuetudo in Hispania Francia Burgundia Alemania in plerisque locis And in the Countie of Flanders an Edict was made by Charles the fift dated at Malines in M. CCCCC.XX which commanded that no Clergie or Lay man pretending right to Tithes should exact or sue for other Nouuelles Dismes aultres qu'ilz leur predecesseurs ont accustume prendre auoir passe quarante ans audessus but that they should rest content with what was due only according to the former vse of payment sauing in case of new improuements and such like as it was explaned by another Edict some ten yeers after both together are the same almost as our Statute of 2. Ed. 6. And in the Generall Councell of Lateran of M.CC.XV. a relation is of some Nations who although Christians yet secundum suos ritus Decimas de more non soluunt and that other men leased their Land to them because in regard of no Tithe being paid by them the greater rent might be reserued against which remedie is there prouided The words are In aliquibus regionibus quaedam permixtae sunt gentes quae secundum suos ritus Decimas de more non soluunt quamuis censeantur nomine Christiano c. Whereupon Innocent the fourth that might well know the meaning of the Councell liuing so neer it notes that the Christians who by their own customs did not pay were Greeks Armenians and the like and Antoninus expresly remembers the generall non payment of them in the Eastern Church as a thing not to be censured to be against Gods Law Neiher indeed haue I met with any Canon Law of all that Church that euer commanded any thing touching Tithes Among the Laws of Hungarie we find Decimas non soluunt Nobiles de proprijs terris and Decimas non soluunt Rasciani Rutheni Valachi and Decimas non soluunt Iudices propter laborem eorum circa decimandum although for other persons generally they haue strict Laws for payment of them In the Statutes of Poland it appears that about M.CCC.LXX vnder K. Cazimir the second the Clergie especially for the Diocese of Cracow made diuers Laws with his consent vpon great differences about the paying of Tithes One in speciall is that Tithe must be paid of all that increases through the labour of the Plough exceptis Rapis papauere caulibus cepis allio quae his sunt similia in hortis and Si quis ligonisando plantauerit Decima ab eo nullatenùs exigatur Some other particulars they haue about paying Tithe of Hemp and Flax which happens somtime to be more somtime lesse then a Tenth because the certaintie is only from the number of beasts vsd to the plough and of other things whence it appears that the vse of Tithing there is not consonant to the Canon Law And Theodor Zawake deliuers it for a Law of this Countrie that Decimae ex terris vastatis accipi non debent which I think is to be referd to a thirtie yeers libertie of non payment giuen especially by Bodantza Bishop of Cracow to such as were Tenants of Lands lately wasted by the Lituanians and Tartars which is declared in the Law remaining at large in the Collections of Herbort and Prilusius whither for more particulars I refer you In the Laws of Suethland and Gothland the Text is Decimae separentur reponantur in agro quarum tertiam partem suscipiat presbyter de reliquis duabus partibus capiat Ecclesia tertiam partem which I vnderstand so that the Parson is to haue all sauing a third part out of the two parts which were to be imploied on maintenance of the Church In Scotland by a Law of Dauid the second about M.CCC.XL it was constituted that no man should hinder the Clergie in disposing Tithes Sic quod suis Decimis possint pacificè cum integritate gaudere sub paena Excommunicationis quoad Clerum Decem librarum penes Regem And Tithes there haue been and in many places are paid Parochially yet also granted altered and disposed of by positiue Law as in other Countries in the late plantation of new Churches ordaind by the last Parliament there manse and glebe and vitaile are assigned for maintenance to the Rectors but not Tithes And after the Statut of Annexation in the eleuenth Parliament of our present Soueraign whereby Church reuenues sauing Parochiall Tithes Manse and small glebe and some other speciall possession were resumed to the Crown an Act was made in the Parliament following against a kind of infeodations which they call erections of temporalties and teindes of Kirkland into temporall Lordships sauing such as had been before erected And for the particular course of setting out payment of Tithes some speciall Lawes of late time they haue in Scotland and in the other States before spoken of but they belong not so much hither being not of the essentiall part of the practice of payment nor of the receiued right
examples and autorities before cited iustifie it For the building of Churches which considered with the arbitrarie endowments of them with new Tithes specially belongs also to this disquisition it was affirmd for a common libertie of the Baronage in letters of King Iohn to Innocent the third as you may see in the Popes answer to the King Quod enim de consuetudine regni Anglorum saies the Pope to him procedere regia serenitas per suas literas intimauit vt liceat tà m Episcopis quà m Comitibus Baronibus Ecclesias in feudo suo fundare Laicis quidem Principibus id licere nullatenùs denegamus dummodo Dioecesani Episcopi eis suffragetur assensus per nouam structuram veterum Ecclesiarum iustitia non laedatur It was challenged without licence but the Pope allows it to the Laitie so that they had licence from the Bishop of the Diocese and withall that the new foundations bereaued not ancient Churches of their assigned endowments But after the time of K. Iohn few or none of those arbitrarie consecrations are found yet in Henry the thirds time some were as you may see in those of Fines taken out of the Chartularie of Gisburn but remember also they were in the Prouince of Yorke Neither were those Grants disallowd by either Common or Canon Law here then practiced and in thoses cases of Tithes that occur among the Epistles of Iohn of Salisbury who liued in time of Henry the second no title is made meerly by Parochiall right but Prescription or Consecration are the grounds whereupon they are demanded and whereas in the case of Robert Wnegot before Adelelm Archdeacon of Dorchester the question was there super quibusdam Parochianis Decimis and the Actor produced testimonie that he had formerly recouered ius Parochiale quod petebat cum decimis it is cleer that the Tithes were not recouered iure communi as they are at this day belonging to the Parish-Rector but by speciall title of Consecration or Prescription and the ius Parochiale there was the right of hauing the Cure and Offerings of the Parishioners which had not necessarily annext to it the right of Tithes by the practice of that time whence it came that Parochiani Decimae are both there mentioned as seuerall demands in the Actors Libell and hereof see more anon in the corollarie of the ancient Iurisdiction of Tithes in England and that admonition of Theobald Archbishop of Canterbury before cited to Ala Countesse of Warren is obseruable is it not apparant that he allows not only the arbitrarie Consecrations made by the Earles but also reprehends her sharply for not performing what they had therein vowed But in the ensuing times after that the Canon Law had here gained greater strength which happend soon vpon Innocent the third his thundering out his Interdict against this Kingdom his Excommunication against the King and frighting the subiects with his Bulls stufft with commination and that against this very point of arbitrarie conueiances of Tithes it soon came to be a receiud Law that all Lands regularly were to pay Tithes to the Parish or Mother Church according to the prouision of the Canons and therefore vpon Delegation made by Pope Innocent the fourth in 49. Hen. 3. to the Priors of S. Trinitie and S. Bartholomew in London and the Archdeacon of Westminster for the deciding of a controuersie twixt the Abbesse and Nunnes of Chartris by Ely and Robert Passelew Archdeacon of Lewes about some Tithes of the possession of the Nunnerie in Barington it appears that in Passelews libell no other title is made but that the Land lies infra limites Parochiae suae de Barenton vnde petit dictam Abbatissam compelli integrè ad solutionem dictarum decimarum cum damnis interesse c. and some others like are of that time according to the Law that to this day continues as may especially be found in the books of Pipewell and Osney That example is in the Chartularie of that Nunnerie composed by the cost and pains of Agnes Aschefeld Abbesse there and Henry Bukworth Bachiler of the Canon Law about the time of Henry the sixt You may adde to the confirmation of this ending of the ancienter course of arbitrarie consecrations and the later establishing of Parochiall right in Tithes that of the English Monks before cited touching the generall Councell of Lions held in 2 Ed. 1. I doubt not but that Parochiall right was long before for the most part setled but it is not likely that they had so confidently affirmed such a continuing libertie of conueiance of Tithes at the owners will had they not known that vntill about the preceding ages at least it had been in common practice both of fact and positiue Law especially in this Kingdom where they liued Whether this petition in Parliament of 6. Ed. 1. may giue any light to that assertion of theirs I know not Nicholas of Crainford Parson of Gilingham complaind to the King Quod cum Foresta Domini Regis ibidem sita sit infra Parochiam suam quod Dominus Rex Decimam faeni venationis pannagij aliorum prouentuum ipsius forestae de gratia pro salute animae suae animarum praedecessorum suorum Ecclesiae suae cui de iure communi debentur plenè solui praecipiat secundum formam supplicationis exhortationis Apostolicae porrectam Dominio R. apud Gilingham quando fuit ibi ad Natale What was that supplicatio or exhortatio Apostolica did not some such thing comming from Rome about the time of the Councell of Lions make the Monks think it a thing agreed vpon in that Councell it seems here too that in the Kings case Parochiall right of Tithes was not yet euery where setled although the Tithes were encreasing in a Parish IV. After this establishment of Parochiall right new arbitrarie conueiances out of lands lying in any Parish were not permitted but ancient consecrations were still retained and had confirmation either from prescription or Papall priuilege which were by the Canons sufficient titles to be pleaded against the common right claimed by Parish Rectors And when this innouation grew in Parochiall right then also the iurisdiction which the common or secular Law had formerly challenged and exercised in detaining the right of Tithes between the Parish and Parishioner grew out of vse and the legall proceeding became to be regularly according to the Canons which brought the practice to be as since it hath continued But of the ancient iurisdiction more anon So was it now come to that passe that no new arbitrarie consecrations might be made of the Tithes of lands lying in any Parish But yet for such lands as were not Parochially limited the ancient libertie was retained and although by the Canon Law the Bishop is to haue all Tithes growing in lands not assigned to any Parish within his Diocese yet in the moniments of the common Laws such Tithes growing
in lands of the Crown are at the arbitrarie disposition of the King such places haue been and I think are in diuers Forests And hereof saies Thorp in 22. Assis. pl. 75. Il soleit estre ley quant il auer certane place qui fuit hors de chescun Paroche come en Englewode huiusmodi en tel case le Roy ad doit auer les dismes de cest place nient l' Euesque de lieu a granter a que luy plest and relates further that the Archbishop that yeer made suit to the Councell to haue had such Tithes But vnder fauor this was vnderstood only of the Kings granting the tithes of his Demesnes occupied by his Bailifes according as in ancient time euery man els did for whateuer the words seeme to import Thorp speaks only of such lands of the possession of the Crown in which case it must not perhaps be vnderstood so much a part of the Royall prerogatiue as a right due to the King by common Law in regard of his possession of lands not limited to any Parish Neither doth he affirm that Tithes of such places are due to be paid to the Crown but that they are in the King to grant at his pleasure if growing in his demesnes But to this purpose is a notable case in the Parliament rolls of 18. Ed. 1. where Ralph Bishop of Carleol Petit versus Ecclesiae Priorem de Karliel Decimas duarum placearum terrae of the new assarts in the Forest of Inglewood whereof the one is called Linthwait the other Kirkthwait Quae sunt infra limites Parochiae Ecclesiae suae de Aspaterike c. and laies by praescription in his predecessors the Tithes of the pannage there before the assarting or culture Henrie of Burton also Parson of Thoresby claimed in Parliament the same Tithes as belonging to his Church and infra limites Parochiae suae and the Prior comes saies that Henricê° Rex vetus Henrie the first it seems concessit Deo Ecclesiae suae Beatae Mariae Karliel omnes Decimas de omnibus terris quas in culturam redigeret infra Forestam inde eos feoffauit per quoddam cornu eburneum quod dedit Ecclesiae suae praedictae c. Whereupon the Kings Attorney Dicit quod Decimae praedictae pertinent ad Regem non ad alium quia sunt infra bundas Forestae de Inglewood quod Rex in Foresta sua praedicta potest villas aedificare Ecclesias construere terras assartare Ecclesias illas cum Decimis terrarum illarum pro voluntate sua cuicunque voluerit conferre eò quod Foresta illa non est infra Limites alicuius Parochiae c. Et petit quod Decimae illae Domino Regi remaneant prout de iure debent ratione praedicta c. Et quia Dominus Rex super praemissis vult certiorari vt vnicuique tribuatur quod suum est William of Vesci Iustice of the Forest beyond Trent and Thomas of Normanuill his Escheator for those parts for so was the diuision anciently of Escheatorships were assigned Commissioners to enquire of the truth certificent Regem ad proximum Parlamentum c. So are the words of the Record Where the Attorney challenges not the right by prerogatiue but only in regard that the place being the demesne Land of the Crowne not assigned to any Parish the Tithes are grantable by the King as owner at his pleasure And so it well agrees both with that liberty challenged by King Iohn in the name of his Baronage that they might found new Churches at their pleasure in their owne fees before the establishment of Parochiall right in Tithes as also with the more ancient practice of the Kingdom whereby Tithes might not be parochially exacted nor were so reputed due but by the owners arbitrarily conueyed in perpetuall right And whereas Herle in 7. Ed. 3. fol. 5. a. sayes generally That no man might arbitrarily giue his Tithes that are not within Parochiall Limits but that the Bishop of the Diocesse should haue them It seems he spake suddenly as out of the Canon Law and not according to the Law of England And hee addes that it is against reason Que home ne purra my granter ses almoignes a que il vouldra And but two yeeres before that of Herle it was adiudged in the Kings Bench Quod de Decimis grossis Priori de Carleol praedecessoribus suis de dominicis Domini Regis infra Forestam de Inglewood prouenientibus extra quaruncunque Parochiarum Limites existentibus per Cartam progenitorum Domini Regis nunc concessis per Cartam ipsius D. R. nunc confirmatis c. a Prohibition should be granted against the Bishop of Carleol that claymed them It was vpon a Record sent thither out of the Parlament as in the Roll appeares largely And Edward the first gaue such Tithes of the Forest of Dene as encreased not within any Parish to the Bishop of Landaff by which title the Bishop afterward claymed them and no question was of that point But for common or waste ground the Parish whereof is not known the Statute of 2. Ed. 6. hath giuen the Tithe cattell therein depasturing to the Church within whose Parish the owner dwelleth CAP. XII I. Appropriations and Collations of Tithes with Churches The Corporations to which the Appropriations were made presented for the most part Vicars Thence the most of perpetuall Vicarages II. How Churches and Tithes by Appropriation were anciently conueyed from Lay-Patrons The vse of Inuestitures practiced by Lay-Patrons III. Grants of Rents or Annuities by Patrons only out of their Churches Of the Bishops assent More of Inuestitures A Writ to the Archdeacon anciently sometime sent vpon recouerie of a Presentment IV. Of haereditarie succession in Churches V. Laps vpon default of Presentation grounded vpon the generall Councell of Lateran held in 25. Hen. 2. What Praesentare ad Ecclesiam is originally Donatio Ecclesiae I. AS by Consecrations seuerally so with Churches in Appropriations Tithes were frequently conueyed and by expresse name as Ecclesia de N. cum Decimis or the like are vsually giuen Monachis Monialibus c. ibidem Deo seruientibus c. according to what is before noted of other Countries But this Mention of Tithes with Churches in Appropriations was rare or not at all till after the Normans In the Saxon times many appropriated Churches are found and that from between D.CC. and D.CCC. yeers since till the Normans but the Charters that conueyed or confirmed them haue vsually nothing but Ecclesias and so many Carues or Yard Lands or so much rent annext to them nor speaking at all of any Tithes transferd with them For speciall examples of such ancient Appropriations you may see the recitalls of the Charters of King Bertulph King Beored and King Edred made to the Abbey of Crowland and inserted in Ingulphus But after the Normans in Appropriations
what light these haue giuen out of their studies of Philologie both to their own and other Professions and that in rectifying of Storie in explication of good Autors in vindicating from the iniurie of time both what belongs aswell to sacred as prophan studies why then may not equally a common Lawier of England vse this Philologie and by consequent be a fit Autor of this Historie of Tithes as of a proper issue of Philologie it being indeed much more proper also to Philologie in a common Lawier then in one of any other Profession For the two chief parts of it that is Practice of paiment and the Laws of Tithing that either are in force or euer were receiud touching them in any State were alwaies and are part of the proper Obiect of his Studies and what euer Diuines or Canonists conclude of them it is the Secular or Common Laws only that according to Customs and various Ordinances permit or restraine the Canons in legall exaction of them and that in other States aswell as in England for howsoeuer it be affirmd by some which enough accuratly think not of it that the Clergie euery where in the Western Church being scarce a hundreth part of the People are inricht with whole Tithes of Fruits of the Earth and of Cattell yet it is certain that in no State of that Church whole Tithes are vniuersally paid But frequently Customs not only of a Modus but de non decimando are by force of secular Law practiced witnesse for the Empire is in that Diet of Norimberg vnder Charles the fift where the lay Princes of the Empire complaine against the Church for offering to put their Canons for Tithes in practice Etsi Laici per multa annorum curricula de certis eorum praedijs neque maiores neque exiguas vt vocant praestiterint Decimas c. As much for Spain is in Gouaruuias for Italie in Vgolin Caietan others for France in Papon on the customs of Burbon Boerius on those of Berry de Grassalio beside the many Arrests of Parlament that are adiudged against the Canons But these things are more particularly shewd in the Seuenth Chapter wherein as in the rest we haue affected rather what is Autoritie enough then what is various Who now can shew colour why this was not a worke proper enough for a Common Lawier But this whole Premonition I thinke is as well more then is necessarie to the truly iudicious as it may perhaps seem lesse then what satisfies to the numerous Pretenders that neither know any way that lies out of their beaten Rode nor value books but as Stationers do nor admit willingly of any other kind of Studies then such as are more like sordid Occupations then Liberall Professions But I stay you too long here Reader Trie now how I haue performd my promise spare not to trie with your most censorious examination sed magis acri Iudicio perpende si tibi Vera videtur Dede manus aut si Falsa est accingere contra THE CONTENTS CAP. I. Of Tithes before the Law I. Melkizedek had Tithes only of the spoiles of Warre giuen him by Abraham 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 denotes spoiles of Warre and perhaps also profits taken from the ground or Ruta caesa II. Iacobs vow and payment of Tithes Both Abraham and Iacob were Priets when they paid Tithes In whom the Priest-hood was before the Law III. Whether any certaine Quantitie were obserued in the Offerings of Cain and Abel IV. A Cabalistique operation in numbers by which Tithes and the first Fruits offered by Abel might haue a mysticall identity Such operations were amongst old Christians also but meerly vaine CAP. II. How among the Iews Tithes were paid or thought due I. First fruits and Heaue offering that is sixtieth parts at least first were paid out of the fruits of the earth II. The first Tithe was paid to the Leuites who out of that paid a Tithe to the Priests and then the second Tithe III. The errour of them that make a third Tithe The second Tithe of euery third yeere spent on the poore what they take the yeer of Tithing to signifie in Deuteronomy IV. Aboue a sixt part was yeerly paid by the Husbandman but no Tithe by him to the Priests V. How their Cattell were tithed VI. A discontinuance of payment among them Honester Ouer-seers chosen for the true payment Demai that is things doubtfull whether Tithes were paid of them or no. Passages in Epiphanius and S. Chrysostome of their Tithing VII Their Tithing of euery herb what their Canonists hold Titheable VIII Their Law of Tithing after the destruction of their second Temple ceased by the doctrine of their Canonists which teaches also that they are not to pay elsewhtre then in the Land of Israel and some adiacent Countries Presbyteratus Iudaeorum totius Angliae anciently granted by the English Kings CAP. III. Tithes how paid or due among the Gentiles I. Some Romans paid to some Deities and somtimes only a Tenth of spoiles of procede of merchandize of their estates but vsually also by vow which bound the Heire or Executor II. Festus is falsly cited for a generall custom of payment of Tithes among the Ancients III. Examples of Tithes paid among the Graecians IV. How the assertions of a generall vse of giuing Tithe to the Gods among the Graecians are to be vnderstood and why 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is to Tithe signifies also to Consecrate V. A Tithe paid to Hercules of Tyre and Sabis an Arabian Deitie the same with Iupiter Sabazius CAP. IV. In the first foure hundred yeers after Christ. I. No vse of Tithes occures till about the end of this foure hundred yeeres Offerings and Monthly pay for maintenance of the Church in the primitiue times Diuisiones Mensurnae Sportulae II. Payment of Tithes of Mines and Quarries to Christian Emperors The wealth of the Church enuied III. The opinion of Origen touching Tithes IV. Constitutions of those times that mention them are of no credit CAP. V. From about the yeer CCCC till DCCC I. Tithes were now paid in diuers places to Abbots to the Poore to the Clergie II. Some Consecrations were then made in perpetuall right at the pleasure of the Owner III. That storie of Charles Martell his taking away Tithes making them feodall cannot be iustified IV. The opinions of S. Ambrose S. Augustine S. Hierom and S. Chrysostom the first two teach the Tenth due by Gods Law the other two perswade only that a lesse part should not be offerd V. Of Canons for the payment of Tithes that are attributed to this Age. CAP. VI◠Between about the yeer D.CCC. and neere M.CC. I. Payment of Tithes how performed II. Arbitrarie Consecrations of them alone like Grants of Rents-charge at the Lay-owners choice to any Church or Monasterie were frequent and sometimes Lay-men sold them to the Church Redimere Decimas III. Appropriations of them with Churches wherin they passed as by
of the Salt-pits in som part of Poictou were consecrated to it the like had the same Monasterie in some Salt-pits possessed by the Bishop of Xantoigne which although it had enioied for threescore yeers yet the Bishop began to denie any more paiment and for his owne gaine would haue maintaind this opinion That no church-church-lands were to pay Tithes to any Church But Godfrey Abbot of Vendosme about the yeer M.C.XX. sharply corrects him in an Epistle and shews that the opinion of all France and Italie then was that although lands charged to any Church with the paiment of Tithes were possessed by another Church or Monasterie yet the Tithes were still paiable Parochially from the one Church to the other That Abbots words are obseruable because also they shew a generall practice of paiment Parochially by Churches to Churches Nobis dictum est saith he quia dicitis quòd Ecclesia non debet Decimam dare Hoc verum est vbi Ecclesia nihil habet in Paroecia alterius Ecclesiae vbi verò Ecclesia in alterius Ecclesiae Paroecia possessionem aliquam habet vel quippiam quòd Decimari debeat ibi Ecclesia Ecclesiae Decimam reddere debet si illud iustè possidere desiderat Hoc tenet Italia hoc tenet Gallâ—a Ibi enim nouimus Ecclesias Ecclesijs Decimas reddere maiores minoribus minores maioribus vbi altera earum possessionem obtinet in iure alterius hoc facimus Ecclesijs hoc Ecclesiae fecerunt nobis and according to this had he a Decree for the Monasterie from Pope Calixtus the second This by the way here for paiment among the Clergie But for more arbitrarie consecrations by Lay men in the yeer M.C.XXIV Ansellus de Garlanda in his foundation of the Abbey of Saint Mary of Gornay in France among other possessions giues it Decimam de Berchorellis and Duas partes Decimae de Berâ—herijs and totam Decimam de Ponteuz and apud Terciacum medietatem Decimae Many like examples might be added but one more only shall suffice in which the frequencie of the practice may be easily ghest at that is found in a Bull of confirmation made by Pope Innocent the III. of the possessions of the Abbey of the Holy Crosse and S. Leufrid in the Diocese of Roan among which diuers appropriated Churches are with their Tithes and so expressed Ecclesia N. cum decimis but beside them also many Tithes seuerally granted by diuers Barons and Gentlemen to the Abbey out of such or such lands without any Churches are confirmed as Decimam de feudo Hugonis de Sensei apud Neufuillam Decimam Willielmi de Maudit apud Luderuillam de feudo Willielmi Pelet apud Amercort Decimam de feudo Matthaei de Gamichijs apud Maneuillam Duas partes Decimarum de feudo Pagani de S. Luciano de feudo Orselli de feudo Flooldi and Decimam de Hendicruilla de Sesseuilla in feudo Autulij Decimam de Boelio in feudo Roberti filij Williellmi Decimam de Mesuilla in feudo Hugonis de Lace Decimam de Buison in feudo Hugonis Bigot c. If one Abbey had so many arbitrary Consecrations who can doubt of the most common vse of them But if you desire more examples look in the places noted in the margin but especially wher anon we haue the practice of our own Nation by it selfe declared Out of them all being but few in regard of what questionlesse might be had in the Records of churches and Monasteries yet remayning in other States you may find a vse of that arbitrarie disposition till about the yeer M.CC. when the distribution of Tenths also to the Poore according to the owners free will which I take to be consecrations or grants to Monasteries for the Monks were vsually called Pauperes and were so indeed by their vow was expresly complained against as a great fault of the time by Pope Innocent the III. For he then preaching of Zache's charitie that consisted aswell in making restitution of what was due to others as inerogation of almes to the poor obserus that he gaue of his own and paid what was other mens Dedit proprium reddidit alienum Grauiter ergo peccant saies he qui Decimas primitias non reddunt Sacerdotibus sed eas pro voluntate sua distribuunt indigentibus But as great a fault as it was it was a common one and being committed by the Laitie was vsually allowd in fact by the Pope and the Ordinaries whateuer they thought of it in right And of such autoritie was this vse that an opinion was bred from it among very great men of the Clergie that as arbitrarie Consecration was a cause of the right of Tithes in a Church whereto they were conueid so continuall paiment of many yeers which being by diuers of the more deuout faithfully performed those Clergie men tooke as equiualent to a personall consecration of the Tenths of their increase whereuer it were receiud had so setled the perpetuall right of the Tithes of any Familie that whither soeuer it transplanted it selfe it must still send its Tenths to the place where before it paid them as if this continuall paiment had foreuer so bound it that it might not pay them otherwise This was the opinion of diuers Bishops in the Patriarchat of Grado as you may see by the same Pope Innocent his reprehension of them and of others elswhere also Neither were these grants alwaies free consecrations but oft times were made for valuable consideration giuen by the Church which is exprest in the phrase Redimere Decimas vsed in the Synodall and Imperiall Laws of this time made De Decimis quas porulus dare non vult nisi quolibet modo or munere ab eo redimâ—atâ—r For howsoeuer Hincmar Bishop of Rheims in reprehending the Monks of S. Denis because they were about to take mony of a Parson for a right of Tithe aduised them with absit vt Laici audiant quod nemo etiam peccatis publicis implicatus in mea Parochia facere audet as if it had been almost vnheard of in that age he liud about DCCC.LX that any man had euer tooke mony for a grant of his Tithes yet plainly the autoritie of those Laws shew it was no such raritie nor was it out of practice about the end of this CCCC yeers as may be collected out of a question disputed in Alexander Hales touching Tithes held by Lay men In territorio alterius Ecclesiae quae non potesteas redimere although perhaps his meaning was only of feudall Tithes But neither did the Laitie thus only dispose Tithes not alreadie consecrated but in som kind also by Appropriations such as were before established to Parochial Churches III. In declaration of the course of Appropriations it is first necessarie to know so much of the nature of Parish Churches in those times as without which
might be exacted vnder the like name The same may bee thought on in Consecrations to Monasteries For if Tithes had been held generally due and paid parochially as now then cleerly although a Lay man had granted a Tenth to another Church or Monasterie what other soeuer had been due parochially had notwithstanding the Grant still remaind payable to the Parson How could it haue been otherwise And so no small number of doubly-paid Tithes had remaind at this day VII The Laws made in this time for payment of Tithes were Imperiall Prouinciall and Pontificiall The first of the Imperiall was made by Charles the Great in a generall assembly of Estates both Spirituall and Temporall vnder him in the XI yeer of his reigne ouer France and Germanie and in the yeere of our Sauiour DCC.LXXVIII it was there ordaind Vt vnus quisque suam Decimam donet at que per iussionem Episcopi sui or Pontificis as some Copies are dispensetur Which Law indeed with diuers other for true payment of Tithes were generally made by him before his Empire which began not till the yeere DCCC yet because this was in the same termes receiued into those Capitularies collected by Benedictus Leuita as from him being Emperor it may well enough be titled Imperiall and it is the first to this purpose extant which can be at all stiled Generall and was ordained by both powers Secular and Spirituall to any whole State vnlesse you will beleeue that in Scotland a Law was established by King Congallus and his Clergie about D.LXX. after Christ for the generall payment of Tithes there according as Hector Boetius hath related Congallus indeed is by others affirmed to haue been verie carefull for the Clergies maintenance But it will I think fall out to be too bold an assertion of that faining Hector who often as it were makes Laws for the Scotish Kings that hee may relate them or else hee was deceiud by them from whom hee took it No good Authoritie can iustifie such particulars of that age there neither is it to be receiud otherwise then as fabulous and proceeding out of that common mistaking of ancient passages of Church-reuenues and confident but ignorant application of them to Tithes But from that Law of Charles the Great was that exaction of Tithes spoken of before by Alchwin and thence are Tithes in Ansegisus his collection of his Imperialls so frequently mentioned as of known right and hence also had the title of the German Bishops before spoken of its originall Those Capitularies both of Ansegisus and Leuita were collected by them about the yeer D. CCC.XL in both of which frequent constitutions are for Tithes and for the parochiall right also of them Yet with them also take the constitutions of Charles the Great about the same time collected but published by Vitus Amerpachius in the yeer M.D.XLV as also others occurring in the collection of Melchior Goldaflus These together with the Lawes of the Lumbards haue very many constitutions of about the beginning of these CCCC yeers for this purpose and one only shall suffice to be here transcribed De Decimis quas populus dare non vult nisi quolibet modo ab eo redimantur ab Episcopis prohibendum est ne fiat si quis contemtor inuentus fuerit si noster homo fuerit ad praesentiam nostram venire compellatur caeteri vero destringantur vt inuiti Ecclesiae restituant quae voluntarie dare neglexerunt This was made either by Charles or Lewes the first but it is falsely referd to the Emperor Lothar in the Laws of the Lumbards It was prouided you see against such as would not giue their Tithes vnlesse they were purchased of them for valuable consideration But the effect that these Lawes had was short the Laitie soon disobeying such commands as diminished their reuenues And it enough appears in the storie of about the yeere DCCC.XLV that little or no practice was of any of those Lawes of the Capitularies in behalfe of the Clergie nothing being more frequent then not only the denying them what they would haue had but also the taking from them what they otherwise possessed Nor could they haue sufficient remedie for it either in the Councell of Meaulx where vnder Lothar the first they humbly sought it or long afterward as is manifest in the Moniments of the succeeding ages But by the way whereas some both strangers and of our own countrey men out of the ioint mention of Nona and Decima in those Imperiall Capitularies of Charles and Lewes the first fetch an example of a Ninth paid to the Church as well as a Tenth and bring it as a character of the times deuotion as if the Tenth had not then been thought enough vnlesse a Ninth also like a second Tenth had been offered it is a ridiculous error and proceeds from grosse ignorance of the Common Lawes Storie Councels and vse of that age The Ninth and Tenth there spoken of were only the rent due from the Tenants of Church lands by the ordinarie reseruation of the Tenth as of what was held by many of it selfe due to the Clergie and of the Ninth as of the Rent or consideration to be giuen to them as to Lessors for the receiued profits so will it plainly appear in a multitude of old autorities to which I refer you Neither was the Ninth here thought due otherwise then as among the ancient Bauarians the Tenth only from occupiers of Church Lands The Tenth of the profits was all that their Laws appointed to be paid for rent to the Church by Lessees But also very many Prouinciall Constitutions were made for the true payment of Tithes about the beginning of this CCCC yeers as in the Councell of Mentz in the yeer DCCC.XIII Admonemus atque praecipimus vt Decimas Deo omnino dari non negligatur which words were receiued also into the Imperials and with them agree diuers Councels held about the same time as the Councels of Rheims the fourth of Arles the second of Chalons and many other following And in Scotland if we may beleeue the Autor for though he speak very good language yet he is of no such sound credit about the yeer DCCC.XL King Gregorie in his Laws for Church liberties ordaind that the Spirituall Court only should haue conisans of Tithes which had been perhaps all one as to haue established them to be generally due for by the opinion of that Court it is likely they would then also haue been iudged so And also among the ordinances of Cing Macbeth about the yeer M.LX. the same Autor puts one in these words Decimam partem Terrae nascentium pastoribus Ecclesiarum liberè conferto Many more of like nature are where we speak seuerally of the English Constitutions For Pontificiall decrees Publique moniments I think haue none in expresse termes of command except you look back to that faind one of
alienas inuadunt Praecipit igitur sancta Synodus omnibus cuiuscunque gradus conditionis sint ad quos Decimarum salutio spectat vt eas ad quas de Iure tenentur iu posterum Cathedrali aut quibuscunque alijs Ecclesijs vel Personis quibut legitimè debentur integrè persoluant Qui verò eas aut substrahunt aut impediunt excommunicentur nec ab hoc crimine nisi plenâ restitutione secutâ absoluantur For Popes Decretals of this time I referre you further to the Laws made or receiud in England II. In the Opinions that haue been since the beginning of these CCCC yeeres touching Tithes the chiefest to be obserued here are those which determine by what immediat Law Tithes are payable For how euer very many other questions about the dutie of them are vsually disputed yet resolue but this one way or the other and most of the rest that follow about Customes Appropritations Exemptions and such more will soone haue little doubt This point hath been controuerted both betwixt Canonists and Diuines and between Diuines and others of their own profession The Canonists except very few with one consent grounding themselues vpon the letter of some of those passages of Prouinciall Councels of Fathers and of Popes before rememberd generally deliuer that Prediall and Mixt Tithes are due to bee paid iure Diuino which is commonly taken for the Diuine Morall Law and they vsually cite also the Leuiticall Precepts to iustifie it Yet doe they allow the right of former Tithes Canonically setled by Cosecrations Appropriations and Exemptions also for the most part for to those they require Pontificiall Confirmations or a supply of them by such prescription of time as may suppose them For they take this Ecclesiastique reuenue to be no otherwise due to the Clergie by common right but that the Pope whom they to the vtmost maintaine as they haue reason for out of the Popes autoritie first came their generall profession as it now remains one may as a supreme Steward of the Clergies maintenance dispose of this or that particular part of it This is their common Opinion although some in the Point of Exemptions haue made scruple But where none of those speciall Titles precede there they cleerly agree also that by common right all Prediall and Mixt Tithes are due parochially Neither need the Rector in his Libell vpon his Actio Confessoria which is the generall name of such Actions as lie for demand of incorporall rights as with vs our Quod permittat Quare impedit Droit dâ—auowson and the like propose more then that the increase is within his Parish and the other Titles if any be must be shewd in the Exception or Answer But by the way though the Doctors commonly suppose the Action for Tithes to be Confessoria and grounded vpon common right yet that great and ancient Lawier Bishop Durand or Speculator would haue them demanded by the Condictio ex Canone that is as we call it by Action vpon the Statut. The Canons whereupon he would haue it grounded are those passages of S. Hierome and S. Augustine in C. 16. q. 1. c. 65. 66. and hee takes for his autoritie why this kind of Action should be brought that of Paulus out of the Imperials Si Obligatio lege noua introductasit nec Cautum eadem lege quo genere Actionis experiamur ex lege agendum est So that as ex Lege in the Imperials so ex Canone in the Pontificiall Law the Action should be brought He liud long since and perhaps in regard of the various practice that had preceded against the common opinion of his profession touching the common right he thought it most secure for the plaintife to ground his Libell vpon the Canon rather then vpon common right But for Personall Tithes which yet they agree not all to be due iure Diuino although Pope Innocent the fourth make it a wonder to see any man denie it and diuers of them follow him the old precedents also of Libels in Speculator being equally for these as for prediall they are held payable only to the Church where the owner for the most part receiues the Sacraments and Diuine Seruice not where the gaine is made neither in them is any regard had to the parish Whence it comes that Iews and Saracens because they haue no personall vse of the Euangelicall Ministerie are to pay none by this Law sauing in case where they hinder the continuall payment of some former personall Tithe had from Christians The best Autoritie they bring for personall Tithes is that in Deut. XII where Tithes and the offerings of your hands are spoken of By reason of that most receiued ground amongst them That the Tenth is due to the Church iure Diuino their most common opinion is also that euery man is bound to pay the whole Tenth or the value of the whole Tenth of all encrease notwithstanding any custome or prescription to the contrarie Indeed no reason is that a custome should take away what God had immediately and by his Morall Law established The consequent is good were the antecedent cleerly proued But some of them and such as are of no small name deliuer their Law to be only that custome cannot wholly discharge any Land of Tithes but it may diminish the quota or bring them to a lesse quantitie or value that is that a custome to pay a Twelfth Twentieth or lesse is good This some also allow only in customes immemoriall which they suppose to haue the force of a Papall priuiledge or exemption But their common and receiued opinion is that in Prediall and Mixt no prescription or custome to pay any lesse part or value then the Tenth or de modo Decimandi much lesse de non Decimando can be good Which well agrees with the Ciuill Law also For by a rescript of the Emperor Anastasius no prescription may be of non payment of all or a lesse part of Tributes Subsidies or other Rents of the publique Treasurie that is of such things as are due to the Emperor in signum vniuersalis Dominij as Tithes are supposed to God and his Ministris Except only where the certaintie of some equall yeerly payment without regard to euery annuall encrease may be adiudged to be equiualent to a Tenth by reason of the incertaintie of sterilitie or fruitfulnesse In this case they allow a Custome although the Tenth of euery particular yeer be not paid because Ecclesia they say potest se habere ad damnum vel Lucrum indifferently But those other common opinions of theirs are so frequently obuious that to cite Autorities for them were but to imitate Rablais his Bridoye Yet wee may specially remember that the Doctors of the Rota of Rome I think according to their profession also aboue C. yeers since determind quod quota Denaria est de iure Diuino hodierno die But some Canonists withall are and
as it were iure posâ—liminij or as we say by way of remitter that is they are so annext that they may not be transferd againe into Lay-hands more then any other Tithes which are the ancient reuenue of the Church whence it hath been adiudged also in the Parliament of Paris in the case of the Bishop of Baieux that Tithes so conueied are not subiect to the custome of droict de Retraict lignagier that is the right of the heire apparants redeeming an inheritance sold by his ancestor within a yeer and a day or some such certaine time But this point of remitter they ground not so much vpon the nature of the Tithe as vpon an old Law of S. Lewes wherein libertie is giuen that all persons Decimas percipientes in nostra terra in feudis mouentibus mediate vel immediate de nobis quas clerici perciperent si eas laici non perciperent possint eas relinquere dare alias quocunque iusto titulo licito modo ecclesijs concedere tenendas imperpetuum nostro vel nostrorum successorum assensu minimè requisito c. whereas by the way som of their lawiers say that feudal Tithes there purchased by Clergie men are at this day subiect to the doict de nouueaux acquests i. a kind of fines for alienation which I could not yet learne how it well stands with this of S. Lewes But they commonly interpret it as an ordinance to this end that when the Church the Parish Church only to which they are supposed to haue been due had gotten them free by sale or gift or otherwise they should be perpetually annext to it and were it not for this ordinance which interpretation hath thus applied their Lawiers ought to haue enquired more carefully about the originall of euery Infeodation for where it began from a Lay-man there what cause is of remitter And these kind of feudall Tithes also of their own nature are meer Lay possessions and determinable in that kingdome only before the secular Iudge as it appears not only in an old Ordinance of Philip le Beau touching the iurisdiction of Tithes and in the Protocolle or Register of the Chancerie of France but also in a late Arrest of the Parliament of Paris where a Curat sued before an Officiall for his Canonica portio which hath been there somtime adiudged the fourth part but is arbitrarily determined against some other Churchman that enioied the Tithes of the Parish who pleaded to the iurisdiction that the Tithes were feudall and desired that he would not hold plea of what so much belonged to the Kings Court but the Officiall first gaue sentence that the Defendant should bring in his proofs of the Tithes being feudall which failing he proceeded to the point of the Action thereupon by appel comme d'abus it came into the Parliament of Paris which after solemne Argument gaue iudgement that the Officiall had vsurped ouer the Royall Iurisdiction in that he had at all proceeded after the simple allegation of Infeodation which alone binds the hands of the Ecclesiasticall Iudge that hath no more power to enquire of the infeodation or of Tithes as feudall then of any other Lay inheritance and in the same case reference is made to some other iudgments of like nature and the reason giuen in the Arrest is mainly because Tithes of their own nature and originally are not otherwise spirituall or belonging to a spirituall Court then only as they were annext to a Church or some other hallowed place La raison est are the words que suyuant le doctrine de S· Thomas nous Tenons qu'en la loy de grace les Dixmes sont deues non de droict diuin mais positif l'esglise en naissant n'a este faict Dame de ce droict ains par le don concession des Rois Princes autres a qui de droict il appertenoit whence if they were annext to any Church they were of Ecclesiasticall iurisdiction that was giuen anciently for them but being as feudall inheritance although they once were in the Church yet a new Character of being meer Lay is restored to them Those Infeodations of Tithes are there very frequent and in very many Parishes the Tithes are taken only by Lay men But for them so much Customes in payment and non payment of the Tenth haue euer held in that Church which might alone be proued out of some passages in Gerson and in Iohannes Maior who tells vs that plurimi in Italia Francia de multis rebus quotam non dant But it may more fully be manifested by Edicts of late time in one of Charles the ninth and another of Henrie the third Dixmes se leueront selon la Coustume des lieux la cotte accustumee in iceux Et ou la dit Coustume serra obscure incertaine serra suiuie celle des lieux circumuoisins The French Customes according to diuers vsages of their Prouinces are frequent for paying a lesse part then the Tenth and cleerly allowed by diuers Iudgments Neither is the Canon Law which allows not Customs suffered to be there practiced And for customes of paying none or de non decimando in some cases they hold there also and that by force of that Lex famigerata as Du Molin calls it their Philippine which is an Ordinance made by Philip le Beau in M.CCC.III but it is falsly and diuersly referd to other of their Philips commanding that no new exaction should be made of Tithes not accustomed to be paid Senescallus it saies ad requisitionem consulum locorum quoruncunque defendat ipsos consules vniuersitates singulos à noua impositione seruitutis facienda per Praelatos alias personas Ecclesiasticas a noua exactione decimarum primitiarum prestationis passatae prout de iure fuerit hactenus est consuetum fieri By this autoritie whereas in the Parish of Branthel in the Diocesse of Meaux the Prior and Couent de Nostre Dame de Vaurart purchased certain Land that had formerly paid Tithe Corne to the Rector and made fish Ponds in it the Rector afterward was bard in his Action for Tithe of the fish and one reason was vpon this Philippine because no such Tithe had beene vsed to be paid so in Auuergne in Berry and other Prouinces some customes of non payment hold good And oft-time the King there sends commands grounded vpon this Philippine that new Tithes not vsually paid should not be exacted by the Clergie Literae saith my Autor dietim conceduntur in Cancellaria Regia super nouis decimis ne a Laicis exigantur per eorum Praelatos quae fundantur in ordinatione Philippi Pulchri Francorum Regis facta die Veneris ante Cineres anno M.CCC.IV Cap. XXIX huius tenoris Item quod Senescallus c. And expresly the customs of Berry Item par la Custome disme est doibt paier
that the Nunnes should quietly enioy all Tithes of those Lands according to the intent of the Grant from the Priorie of Lewes in Sussex which also is rememberd elsewhere in the same Chartularie Maude of Mandeuill Countesse of Essex and Hereford grants Totam Decimam totius victus nostri familiae nostrae vbicunque fuerimus de panibus potibus carnibus etiam de Piscibus sicut in Carta Domini G. de Mandeuilla Comitis Essexiae antecessoris nostri continetur And a great Curse is added to all such as should disturbe or preuent the Nunnes in their enioying of that Tithe The reference made is to that which is before mentioned in the Patent of Confirmation made by Henrie the second This of Maude was about the beginning of Henrie the third and is but a confirmation of that of Geffrey of Mandeuill made Earle of Essex by Maude the Empresse Out of the liues of the Abbots of S. Augustines of Canterburie written by Thomas Sprot a Monk of the Abbey vnder Edward the first Eodem anno Domini videlicet M.LXX. in villa de Fordwico Willielmus Rex contulit Sancto Augustino fratribus eiusdem coenobij Ecclesias de Fauersham de Middeltune Decimas de omnibus redditibus prouenientibus ex illis duobus Manerijs S. de Middeltune Fauersham Decimam de omnibus appendentibus Terra Syluis Pratis Aqua excepta Decima Mellis Gabuli denariorum Et sunt istius donationis septem Cartae diuersorum Regum praeter istam That Gabulus denariorum is rent paid in money Scotland was then Abbot there In the same Abbots time Odo Bishop of Bayeux and Earle of Kent gaue to the Abbey Decimas aliquas quas mei fideles habebant id est Athelwoldus de tribus villis quae dicuntur Knolton Tiskenherst Ringelton Decimam totius terrae Turstini necnon Decimam Osberni filij Letardi de duobus locis id est Bedlesangre Decimam etiam Osberni Payfori de villula quae dicitur Bochland Haec omnia as the words of his Charter are dono concedo confirmo c. Si quis verò huic donationi contrarius fuerit vel aliquam calumniam ingesserit aeterno anathemate ipso facto sit reus Regiae Maiestatis c. Then the Autor tells vs that afterward William d' Aubigny wrongfully took the Tithe of Knolton and Ringelton from the Abbey as Roger of Memires did the Tithe of Bochland In the yeer M.LXXIX Scotland being still Abbot Herebert Fitz-Iuo gaue to the Abbey Decimas quinque Mansionum suarum vel centum solidos nummorum quod in arbitrio Abbatis fratrum S. Augustini constituit vtrum Decimas ipsas vel centum solidos pro Decimis acceptarent Those fiue Mansiones or Farmes or Mannors were Oliue Ewelle Osprenge Heregedsham and Langedone But this Tithe was afterward sayes Sprot wrongfully detaind from them by William Peuerell About the same time Abbot Scotland made a Lease of V. Solings that is Solins or Selions which are made the same with Hides or plough-Plough-lands by some good autoritie about Northbourne to one Wadard for life reseruing rent of XXX shillings and the Tithes of all profits there accruing to himselfe The same Abbot leased for life to Amfrid Mauclerc his Land of Riple and of Aluetune vpon like condition that Mauclerc should pay to the Abbey all the Tithes both of those Lands as also of his V. Mannors Hortun Legu Ernolton Seeldrisham and Oslacestone and also all other Tithes of his yeerely encrease whatsoeuer Decimam etiam tam frugum quà m omnium animalium suorum caeterarum rerum One Hugh Fitz-Fulbert had a Lease for life of the same Abbot of two Solings of Land in Sibertesweld whereupon rent of XX. shillings yeerly was reserued and this Condition also annexed Vt daret etiam Decimam omnium rerum suarum quas ipse in dominio haberet When Hugh of Trottescliue Abbot there founded his Hospitall of S. Laurence among other Endowments hee gaue it Totam Decimam totius annonae de dominio de Langeport This was vnder King Stephen And Anno Domini M.C.LXXXVIII Rogerus Abbas tradidit Priorissae de Scapeia Decimas de Westland intra Parochiam praedictae Priorissae pro quatuordecim solidis annuatìm reddendis sacristae S. Augustini What Tithes were intra Parochiam of the Prioresse of Shepey were by former Grant of the owner conueyed to the Abbey Out of Peeter of Blois his continuance of the Historie of the Abbey of Crowland in Lincolnshire At the foundation of the Church new built by Abbot Ioffrid in the time of Henrie the first a great meeting was of the deuouter sort of Yorkeshire men specially and others to the number of aboue fiue thousand in all and most of them laid stones at it and vpon the stones some offered Money some the Patronages of Churches granted by Charters others Tithes of their Lands as for example the words are Iuxta illum proximum lapidem versus Boream posuit Simon Miles vxor eius Gulana offerentes Ecclesiae Decimam de Morton de Schapwik iuxta illos proximum lapidem versus Boream posuit Reinerus de Bathe Miles vxor eius Goda offerentes operi Decimam de Houtona de Birtona Out of the Lieger-Booke of the Abbey of S. Albons in Hertfordshire The Abbot and Couent about 20. of Henrie the third gaue to the Church of the holy Trinitie de Bosco and the Nunnes there for euer Totam Decimam de dominio nostro de Caysho in omnibus rebus de quibus Decimae dari solent and two parts of the Tithe Corne of the Parish of Watford and some other moities of Tithes the rest being in the Parson of Watford But that of the demesnes of Caysho was newly now created and expressed for the prouision of apparrell for the Nunnes But this being so long after the Constitution of Lateran and being made only out of their demesnes which perhaps they had discharged doth only giue an example among many of another originall way of creation of tithes in some Monasteries but not so much adde to or confirm the arbitrarie course of disposition of them by Lay men in times before that so frequently vsed Henricus Rex Angliae R. Episcopo Dunelmensi omnibus Baronibus suis salutem sciatis me it is Henrie the first dedisse Deo S. Mariae S. Oswino Abbati de S. Albano Monachis de Tinemuth omnes Decimas suas per Northumberland quas Robertus Comes that is Robert of Mowbray Earle of Northumberland who in time of William the second founded the Priorie of Tinemuth homines eius donauerant eis scilicet Decimas de Colebrige illas de Ouinton de Wylun illas etiam de Neuburn illam de Discington de Caluerdon de Elstwic illas etiam de Bothall de Werkwrth de Anebell similiter de
conueiance of them either by Inuestiture to an Incumbent or by Appropriation the reuenue that was in Tithes passed by expresse words and that in point of interest from the Patron as also in regard that at this day the Patron of a Parson prohibited by Indicauit to sue in the Spirituall Court for the fourth part of the Tithes of a Church may haue his Droit d'auowson de Dismes it was requisit therefore to adde these not vulgar or obuious notes of the Aduowsons in this discouerie of the ancient conueiance and interest of Tithes CAP. XIII I. Infeodations here into Lay hands since the Statuts of Dissolutions Of Infeodations before that time in England somewhat more of the originall of Lay mens practice in arbitrarie Consecrations or Infeodations II. Exemptions or discharges of payment originally by Priuileges Prescriptions Vnitie Grants or Compositions and by the Statuts of Dissolutions I. FRom those arbitrarie Consecrations and frequent Appropriations of Tithes whereof we haue hitherto made mention to Monasteries or other Religious Places as Colleges of Regulars Chantries and Free-Chappels came the present and common Infeodations of them into Lay hands which began in the age of our Fathers For the Portions of Tithes conueied to them out of Closes parts of Mannors and whole Demesnes by the owners together with the Tithes granted and possessed with appropriated Churches were first by the Statut of Dissolution of Monasteries in 31. Hen. 8. and by that other of 1. Ed. 6. giuen to the Crown and from thence granted to Lay men whose Posteritie or Assignees to this day hold them with like limitation of estate as they do other enheritances of Lands or Rents and for them haue like remedie by the Statut of 32. Hen. 8. cap. 7. by reall action as Assise Dower or other originals as for Lands Rents or other Lay possessions by the cōmon Law they might haue But although in other States these Infeodations or Conueiances of the perpetuall right of Tithes to Lay men be very ancient and frequent also yet no such certain or obuious testimonie of their antiquitie is in the moniments of England as can enough assure vs that they were before the Statut of Dissolutions in any common vse here But some were and for aught appears in the practice of the time many more might equally haue been And what scruple was there but that long before the generall dissolution of Monasteries Henrie the fift might by the Law of the Kingdom haue made Infeodations into Lay hands as Henrie the eight did of all Tithes belonging to the Priors aliens whose possessions were giuen to him by Parliament he had them setled in the Crown in Fee and afterward disposed of them to other Ecclesiastique Corporations at his pleasure no otherwise then of other Lay possessions By the way we vnderstand in these Infeodations by the name of Lay men only such as were not either in Orders or professed in Religion for otherwise all the possessions of Tithes enioied by Nunnes and the like that were indeed Lay though not commonly called so might be comprehended vnder the name of Infeodations But that some were here obserue that of Odo Bishop of Bayeux and Earle of Kent which is before cited out of the liues of the Abbots of S. Augustines in Canterburie The words are Decimas aliquas quas mei fideles habebant c. What can that be according to the words other then Tithes that were in the hands of some of his Tenants You may adde that of Robert S. Iohn cited before out of the Book of Bosgraue where he had by the gift of his brother William certain Tithes which he gaue to the Priorie for maintenance of a fourteenth Monk And obserue the rest of the Deed there So out of the Book of Osney it appears before that Decimatio Nicholai de Stodeham quam Fromundus Capellanus tenebat is granted by D'Oilly Had not D'Oilly this from Stodeham Or was Stodeham here one of his Bailifes or Fermors whose Tithe he graunted as Lord or according to couenant with the Lessee Other such occurre sometimes And perhaps Decimae hominū meorum the like granted may suppose a title possessed in the Tithes by the Lay grantor And in the same Book of Osney in a Passage writen in a hand of about Hen. 5. touching the conueyances of Tithes by Lay men to Monasteries it is related that he that wrote it saw Quendam Rogerum D'Oyly Dominum cuiusdam partis de Bampton in Episcopatu Lincolniensi suis Decimis ita vti vt nunc vni nunc alteri de suis Valettis ipsas conferret annuatim qui sibi in diuersis officijs ministrabant vntill afterward hee erected a Chaunterie with them in the Church of Bampton These Grants to his Valets plainly were as Infeodations And what els was in that known case of Herne and Pigot in Mich. 39. 40. Elizab. but an ancient kind of Infeodation at least an Inheritance of Tithes from immemoriall time in a Lay man That and other like to it might begin vpon reall compositions and so the Tithes be deriued out of the Church But regularly I thinke at this day no kind of Infeodation is here allowable in Lay mans making title to a perpetuall right of Tithes except only by the later Statuts of Dissolutions vnlesse it either be deriued from some old Graunt of discharge from the Parson Patron and Ordinarie in which case hee to whom the Infeudation should be made could haue it only as a Lay profit issuing out of the discharged land or ioyned with a Consideration to be giuen for maintenance to the Parson by him that receiues them and this either from time immemoriall or by ancient composition So I take the meaning of our reuerend Iudges to haue been touching this point In summe then we may affirme that some such ancient Infeodations haue been in England as in other States but that of later time none are allowable if deriued from other ancient originall then from the Statuts of Dissolutions vnlesse they bee anciently deriued out of the Church first by discharge or appeare to be but as a Reward giuen in pernancie or as Consideration for a Pension or other competent Maintenance yeerely payable to the Parson Which withall well stands with the common opinion of the originall of such Infeodations whereof we haue alreadie spoken And whereas it hath been resolued that without these reasons a Lay man was not here capable at the common Law of Tithes by pernancie it well agrees with a Decretall of Alexander the third which forbids one that maried a Parsons sister to enioy a Tithe giuen him by the Parson as for the mariage portion although the Parson were still liuing But also that we may not defraud you of any testimonie of former times that may seeme obseruable touching these Infeodations whereof so few examples and so ltttle mention is in the Moniments of England take this speciall Disquisition writen
owne Countrie neither in his age were the particulars of practice of the time before that Lateran Councell or of the time of creation of Infeodations in other places enough known among Lawiers I adde only one note out of Bracton that may touch Tithes infeodated or turnd anciently here into Lay fee and conclude this matter He speaking of Land demised and recouered by the Legatarie tells vs some opinion was of his time that such Land after the recouerie iterum incipit esse Laicum feodum non ante quod non erit de Decimis cum semel efficiantur Laicum feodum nunquam reincipient esse Decimae haec vera sunt secundum R. alios Did not he here suppose Lay infeodations of Tithes in England let the Reader iudge By the way I note that passage is corrupted in the print The beginning is Item for Iterum and that R. alios which I think stands for Roger de Thurkelby a great Iudge of that time is Biastos but according to my Ms. Bracton I haue thus alterd it You may consider also if some Infeodations came not out of Lay mens enioying of whole Churches with their possessions about the Norman Conquest it is frequent in Domesday to find that such a Lay man tenet Ecclesiam of such a place and sold it to such a one and in the claimes of Yorkeshire there the Entrie is super Ecclesiam S. Mariae de Moselege habet Rex medietatem eleemosynae festorum S. Mariae quae iacet ad Wackefeld Omne aliud habet Ilbertus Presbyter qui Ecclesiae seruit c. Where Tithes were in that time annext by cōtinuance of payment or Consecration to Churches perhaps they might in like manner as these Offerings or whole Churches come into the Lay hands but I leaue this to the iudgement of my Reader And hereof thus much II. Now for Exemptions or discharge from payment we haue anciently had them here and still retain some of them in the practiced Law and that originally either by Priuileges Prescription or Grants and Compositions and Vnitie of possession The Priuileges haue been either such as were specially allowd and limited to the Orders of the Templars Hospitalars and Cistercians by the Generall Councell of Lateran held in 17. of King Iohn of which more particular narration is before made or by new Bulls for the discharge of this or that Monasterie or Order at the Popes pleasure By reason of the first kind of priuilege those three Orders held their Lands discharged of payment so long as they manured them in their own occupation at least all such Lands as they had purchased before the Generall Councell and by the second kind sometimes whole Orders were discharged as for example that Bull to the Praemonstratenses in general giuen by Pope Innocent the third grants them that of their own culture or other improuments they should pay none Sometimes speciall Monasteries as in that of the same Pope to the Abbey of Chertsey De noualibus verò quae proprijs manibus aut sumptibus colitis aut de vestrorum animalium nutrimentis siue de hortis virgultis aut piscationibus vestris nullus à vobis Decimas exigere vel extorquere praesumat sed eas eleemosynae aut pauperibus Monasterij vestri iuxta quod tu fili Abbas postulasti à nobis praecepimus assignari What force by the common Laws of this Kingdom such a Papall priuilege in ancient time alone had I abstain here to dispute and although other examples enough might out of originalls be brought of the like yet I touch not any of them neither lest vnawares I might giue occasion of some priuat controuersie But they had their force in the Canon Law here and being so allowd in allegations against Libels for Tithes were strengthened also at length especially those which were of the ancientest with prescription of time in so much that from them originally diuers Lands of dissolued Monasteries remain to this day discharged of payment But in 2. Hen. 4. cap. 4. an Act of Parliament is made against those of the Cistercians here which purchased Bulls of Exemption for their demised Lands and those of the Order and others putting such Bulls in execution are made thereby subiect to the punishment containd in the Statut of 13. Rich. 2. of Praemunire Discharges by immemoriall Praescription of paying no Tithes of things commonly and of their nature titheable nor any thing in lieu of them are by the later common Law since their Parochiall right established about the time of King Iohn allowd only to spirituall persons but to no Lay man The Laitie being since that time held incapable of Tithes both by pernancie sauing in such a speciall case where continuall consideration was giuen to the Church as in that Case before of Herne and Pigot in their own right as also by discharge vpon bare prescription alone sauing only in Cases within the Statuts of Dissolution of 31. Hen. 8. and 1. Ed. 6. and the Statut of 32. Hen. 8. that warrants common Infeodations of them and so is the practiced Law of this day For by those Statuts lay Patentees of lands or Tithes haue like priuilege of discharge and title as the spirituall persons whose Corporations were by them dissolued before the dissolution enioied Of the Hospitalars dissolued in 32. Hen. 8. I purposely abstain to speak To this of Prescription may be added that of Vnitie of Possession For if any Religious house dissolued in 31. Hen. 8. held the Rectorie of Dale Lands in the Parish immemorially paying no Tithes this Vnitie discharges also the Patentees at this day in such sort as the Monasteries were discharged But by Compositions and Grants euery man as well Lay as Spirituall by the common Law before the Statut of 13. of Elizabeth made against Leases and Grants of Parsons might be discharged of Tithes as if the Parson Patron and Ordinarie ioind in it to the Parishioner either for consideration continuing as in reall Composition or for other arbitrarie causes not appearing to posteritie as in Grants by all three or rather in Grants by the Parson and Confirmations by the Patron Ordinarie And it is prouided by the Statut of 2. Ed. 6. cap. 13. tha no person shall be sued or otherwise compelled to yeeld giue or pay any manner of Tithes for any Mannors Lands Tenements or Hereditaments which by the Laws and Statuts of this Realm or by any Priuilege or Prescription are not chargeable with the payment of any such Tithes or that be discharged by any Composition reall But although a Lay man may not be discharged of all payment by meer Prescription vnlesse he begin the Prescription in a Spirituall person yet for diminishing the Quota in payment only of a lesse then the Tenth he may prescribe that is De modo decimandi and to that purpose an immemoriall custome of a whole Town or Mannor holds place
of them so the Priests or Posteritie of Eleazer Ithamar were deuided by King Dauid but might be accounted a very rich or largely furnisht man and he tells vs further that the Iews were so readie in paying them that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is They preuented the Officers demanding them paid them before they were due by Law and as if they had rather taken a benefit then giuen any both sexes of their own most forward readinesse in euery first fruit season brought them in with such courtesie and thanks-giuing as is beyond all expression All which is spoken only of first Fruits and Therumahs not of Tithes as it is falsly in the Latin translation where 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 alone is ignorantly vnderstood for Tithes paid by the Laitie to the Priests the truth being that the Laitie paid only first Fruits not Tithes immediatly to the Priests but only to the Leuits that is those which were as Philo saies 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is in the second rank and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or as Wardeins Huishers Singers and other such Ministers And the Leuits paid the Tithe of their Tithe to their Priests who so through the Leuits receiud Tithes out of the possessions of the Laitie as also the holy Autor to the Ebrews is interpreted where he saies That those of the sonnes of Leui that had receiud the Priesthood had a commandement to take Tithes of the people according to the Law For the posteritie of Aaron that had the Priesthood receiud none from the people but immediatly and through the Leuits In the same holy Epistle their continuance of paiment of Tithes which as long as their Priesthood de facto and the politique form of gouernment instituted by the Almightie continued was euen ex conscientia to be performed as some teach is also manifested after Philo's time The Iews are told in it that here men that die receiue Tithes but there he of whom it is witnessed that he liueth That here being plainly referd to the vse of the Iews to whom the Epistle was sent vnder the second Temple So Primasius an old African Father interprets it Hic inquit saith he hoc est in praesenti seculo vel in Templo quod adhuc stabat Morientes homines filij videlicet Leui qui mortales ac moribundi sunt Decimas accipiunt But about this time also it appears in Storie that Tithes were still paid by the Leuits to the Priests which supposes the peoples paiment to the Leuits Remember that of Fl. Iosephus where he tells that when Foelix was Lieutenant of Iudea such a tumult and sedition happend twixt the high Priests 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and the rest of the Priests and the chiefest of the Laitie that the high Priests to satisfie their malice vpon the rest of the Priests violently took away the Tithes that were kept in Granges and Barnes for their maintenance and in so much wronged them that some of the poorest of them euen died for want This was about the beginning of Nero and Euschius and Nicephorus relating it from Iosephus refer it to him although Ruffinus in his translation of Eusebius rather place it vnder Claudius but vnder both Foelix was Lieutenant By the way you may note that in Nero's time diuers of the Priests were grown much poorer then they had been lately before if Philo be to be credited who liued also but litle before Nero's Empire It was very hard with some of them it seemes that the taking away their Tithes only should starue them Those high Priests here spoken of are such as were the chiefest of the XXIV Orders for so also were the Priests deuided There was neuer but one high Priest properly and that according to the first institution but others that had a supremacie among those orders were also called so as both heere and in holy Writ and they were to the high Priest as the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the Eastern Patriarchats which are as Suffragans to exercise the Patriarchs office in his absence or as the Bishop-Cardinals in Rome and the first and chiefest of these high Priests in the plurall number was as a designed successor to him that properly bare that name and was his Prime Vicar chief Suffragan or the second Priest as Zephaniah was to Seraiah and as Annas to Caiphas For so the most learned vnderstand that of them two being high Priests together in the Gospell but this by the way yet who knows it not may soon stumble at the Storie and if not admonisht trouble himselfe with as good a disquisition about it as that Abbot Paschasius long since fell into about what follows out of Saint Matthew in the 7. § where the strict payment of Tithes vsed among the Scribes and Pharisees is spoken of He being too ignorant of the particulars of the Iewish state doubted much how the Scribes and Pharisees should so pay their Tithes Cùm ipsi as his words are Sacerdotes erant Leuitae qui magis accipiebant Decimas à populo quam darent But I wonder what made him so much as dream so indeed he answers himselfe also But plainly the Scribes and Pharisees as known by that name only had no more reference to the Tribe of Leui then to any other of the Twelue Children in the holy Text or the Iewish storie know it That generall rule of their Lawiers in the same § taken out of Rabbi Ben-Maimon is first in their Talmud where also the Gemara that is the following opinions of their Doctors hath many speciall cases of this or that fruit or encrease of the earth but often litle to the purpose one thing their Misnah or Text addes further to that rule that is whatsoeuer fruit or herb is fit to be eaten both while it is yong or new as also when it is a full growth must pay Tithes aswell when it is yong as at full growth but if while it be yong it be not fit to be eaten 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is it is not subiect to tithe vntill it be come fit to be eaten That in § 8. of them that take the profits of Land among the Samaritans or in Aram that is Syria must be vnderstood of a Iew dwelling among them and tilling the Land there For regularly if the fruits of Lands in Syria were taken by a Iew residing still in his own Countrie he was to pay Tithe of them Touching their Tithing after the second Temple destroied although for want of a Temple and a Priesthood at this day they Tithe not legally yet among their Aphorismes both diuine and morall they tell vs that as the Masoreth is the defence of the Law so 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 maighsheroth seag laighsher that is Tithes paid are the defence of riches Whereupon one notes that at this day qui religiosiores sunt inter Iudaeos loco Decimarum eleemosynam
the honor of Bacchus their Calpar or the first and best of their Wine as it was when they first began to draw it sacred to Iupiter Dapalis their Praemessum or Praemetium before Haruest their Florifestum after Haruest both bestowed in honor of Ceres and the like more to her and to Iupiter Ianus and Bacchus that we may omit their Robigalia Solitaurilia and the rest of such kind But all these plainly were at the libertie of the Owners and so was it expresly denoted in the rituall words of sacrificing of their new Wines as Macte or Mactus Iupiter hoc vino inferio esto as if they had said Be honord Iupiter with this Wine which is as much as I can spare thee for so much is in substance denoted by inferio that is Vino quod insertur and therefore was that word added because all the rest might be free from Religion after this were so seuerally sacrificed For vntill the Sacrifice all the Wine remaind so sacred that it might not lawfully be medled with for common vse But the owner might â—y such arbitrarie giuing his Inferium discharge it of being any more sacred and thereupon saies Arnobius iesting at their Ceremonies Mactus hoc vino inserio esto quid est aliud quà m dicere tantum esto mactus quantum volo tantum amplificatus quantum iubeo tantum honoris assumito quantum te habere decerno verborum circumscriptione definio O Deorum sublimitas praepotens c. quae per vnius formidinem verbi ab immodicis vini cupiditatibus arcetur Among all these feasts not any mention is of a Tenth or any certain part But the Tenth came somtimes only at the will of him that had good fortune or post rem benè gestam as Seruius his words are So Hersennius who had been a Piper all his youth and doubting the successe of that Trade fel thence to be a Marchant and then re benè gestâ Decimam Herculi dicauit That consecrating vse to Hercules was most vsually made with solemnitie at that Ara Maxima neer the Forum Boarium or the Ox-market vpon which some say but fabulously enough as the rest of these particulars are deliuerd that Hercules himself first spent the Tenth of what he took from Cacus in a iolly Feast with Euander and the rest that honord him for it and vpon that Altar saies Halycarnasseus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is Tithes are there frequently offered by vow But the paiment of that vow was commonly in feasts made in honor of him and those feasts were it seems in ancienter time vntill the Vow was performd celebrated within euery ten daies by such as were so religious to him and in that diuision of time for the more conuenience of entertainment his Tithe was merrily spent and the guests alwaies sent home crownd with Baies in honor of him So I vnderstand that of Varro when he tells vs Maiores solitos Decimam Herculi vouere nec decem dies intermittere quin pollucerent ac populum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 cum corona laurea dimitterent cubitum and of this kind of Feasts were those Dinners of Orestes spoken of in Cicero Oresti nuper prandia in semitis Decumae nomine magno honori fuerunt It seems their vow both of Gain and of Spoiles of Warre was made to him chiefly as he was their God of Warre or of Defence For it is cleer not only in the old Roman Diuinitie or Mythologie that Hercules specially was accounted Mars as is plain by their Moniments which shew that the institution of Sacra Saliaria were indifferent to Hercules or Mars and made to one Deitie vnder those two names but also by the old Astronomie wherein the Planet Mars was likewise called Hercules and that not only by the Chaldaeans as Macrobius too rashly affirms but also by the Aegyptians from whom the knowledge of the Heauens came into Europe For howsoeuer it be noted out of an old Glossarie at the end of that most learned work of the noble Scaliger vpon Manilius that Mars was called among the Aegyptians 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 suppose the Northern Aegyptians about Alexandria where they spake Greek before the Roman Empire and afterward and although some other old testimonie say they stiled him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 yet Achilles Statius that was an Aegyptian saies expresly that Pyróis is the Greek name of Mars and that in Aegypt he was calld the starre of Hercules So the Autor of that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 attributed to Aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is Pyróis being calld both Hercules and Mars which Apulleius because Hercules was not so common a name for it thus turns Quem multi Herculis plures Martis stellam vocant and his common titles in old Inscriptions iustifie the same Inuicto Victori Defensori Pollenti and such more are frequently his additions being proper to Mars and vnder some such Title was he worshipt almost in euery Citie of Italie and I would Varro had rather here sought the cause of his title of Victor then in that ridiculous reason which he brings Quòd omne genus animalium deciès vicerit had he said that therefore also the Tithe was giuen him because of Decies he had spoken as probably and as wisely Indeed it is a wonder to see a man of that abstruse learning and great abilities that Togatorum Doctissimus to be so childish as he often is in vnhappily troubling himselfe about deriuations But of Hercules enough Beside that of the maritime Pelasgi in § 1. the other of them that seated themselues further into the Land in Vmbria being opprest with a sterile yeer vowd the Tenth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is The Tithe of all that should encrease to them to Iupiter Apollo and the Cabiri and this they paid also but they were admonisht by Apollos Oracle that their vow was not performd vntill they had sacrificed also the Tithe of their children which was done also But now see when you truly know the ancient Tithing among the Gentiles how well they conclude here that draw arguments from the generall Law of Nature or Nations as if by that Law any such vse of paiment of Tithes had been established among them as was continuall or compulsorie Of the IV. Chapter THat which succeeds is only of Christian Practice Laws and Opinion Which any man that sees but the course of our diuision may easily know though he were as peruerse as he was that to confute me in assertion here of no proof of paiment of Tithes till towards the end of the first CCCC yeers confidently brought that Text of the holy Autor to the Ebrews Here men that die receiue Tithes and was readie to sing decidit in casses c. as if that had proued a paiment in the Apostles time indeed it proues a paiment
them in the course of composing it The Testimonies were chosen by weight not by number taken only thence whither the margin directs neuer at second hand Neither affected I to muster vp many petie and late names for proofe of what is had wholly by all from ancient Fountains The Fountains only and what best cleered them satisfied me and I supposd euery iudicious Reader would be so best satisfied also For in meer matter of elder storie what credit can Nauclerus Cario Cuspinian or the numerous rest of later time adde to the testimonies of those Ancients yet extant from whom they borrowed what euer they haue new drest of preceding ages Petrus Comestor or Ludolphus de Saxonia may aswell increase the credit of holy Writ as those other may the truth of such Histories as instructed them in common with the rest of posteritie Neither at all wish I that this of mine should gain any strength of Truth from my Name alone but from those autorities which I haue designed and brought both for Elder Late and Present times out of such both Printed and Manuscript Annalls Histories Councels Chartularies Laws Lawiers Records only as were to be vsd in the most accurat way of search that might furnish for the subiect yet also I haue not neglected the able iudgements of such of the learned of later time as giue light to former ages but I so preferd the choisest and most able that I haue wholly abstaind from any mention or vse here of those many Ignorants that while they write rather instruct vs in their own wants of abilitie then direct to any thing that may satisfie If through ignorance I haue omitted any thing in the Historie or the Reuiew that deserued place in them who euer shall admonish me of it shall haue a most willing acknowledgment of his learning and courtesie But all the bad Titles that are euer due to abuse of the holiest obtestation be alwaies my companions if I haue purposely omitted any good autoritie of ancient or late time that I saw necessarie or could think might giue further or other light to any Position or part of it For I sought only Truth and was neuer so farre ingaged in this or aught els as to torture my brains or venture my credit to make or creat Premisses for a chosen Conclusion that I rather would then could proue My Premisses made what Conclusions or Coniectures I haue and were not bred by them And although Both of them here not a litle somtimes varie from what is vulgarly receiud yet that happend not at all from any desire to differ from common Opinion but from another course of disquisition then is commonly vsed that is by Examination of the truth of those Suppositions which patient Idlenesse too easily takes for cleer granted For the old Sceptiques that neuer would professe that they had found a Truth shewd yet the best way to search for any when they doubted aswell of what those of the Dogmaticall sects too credulously receiud for infallible Principles as they did of the newst Conclusions they were indeed questionlesse too nice and deceiud themselues with the nimblenesse of their own Sophismes that permitted no kind of established Truth But plainly he that auoids their disputing Leuitie yet being able takes to himselfe their Libertie of Inquirie is in the only way that in all kinds of studies leads and lies open euen to the Sanctuarie of Truth while others that are seruile to common Opinion and vulgar suppositions can rarely hope to be admitted neerer then into the base court of her Temple which too speciously often counterfaits her inmost Sanctuarie and to this purpose also is that of Quintilian most worthy of memory Optimê° est in discendo patronê° incredulê° For the Summe of the Performance in behalfe of the Clergie I dare confidently affirme that neuer before was there towards so much Humane Law positiue for the paiment of whole Tithes obserued to publique view as is here discouered and that especially in the VIII chapter for the Clergie of England And plainly he that talks of Tithes without reference to such positiue Law makes the obiect of his discourse rather what he would haue should be then any thing that indeed is at all For what State is in all Christendom wherein Tithes are paid de facto otherwise then according to Human Law positiue that is as subiect to some Customes to Statuts to all ciuill disposition If they bee in truth due Iure Diuino which Diuines must determine of they remain equally so aswel after as before Human Laws made touching them But that is a question daily controuerted and among the Clergie Now who euer disputes it and relyes only on Ius Diuinum or the holy Scripture for the right of Tithes doth but make way for him whom hee cannot perswade that they are due by the Law of God to thinke that they are no way due Which questionlesse was the originall cause of the Opinions of such as falsly taught them not at all payable but arbitrarily as Almes euen since Parochial right in them established I meane the Dominican and Franciscan Fryers and those other of a farre different stampe Wicliffe Erasmus and the like Had they sufficiently thought of the Constitutions and Practice of Christian States whereby Tithes had been variously dedicated for the maintenance of the Euangelicall Priesthood and setled for other holy vses either by continuance of time by the owneâ—s conueyance or by any such other ciuill Title the strength whereof is immediatly founded in human Law what colour could they haue had to thinke that they had been only Almes for what euer is lawfully established by a ciuill Title is cleerly debitum Iustitiae not Charitatis what brain then except one bewitcht can think that Human positiue Law and common Pracâ—â—ce which vsually either declares or makes also a positiue Law are not most carefully to be sought after in inquiries touching this sacred Reuenue which is no otherwise enioyed in any State then as that Law hath ordaind and permits And let Human Laws Practice and Opinions bee as their Autors will yet whatsoeuer argument may be found in the law of God for the right of Tithes remains still as vntoucht and equally of his former power as the heat and light of heauen euer did notwithstanding the vse of Fire had vpon earth And the truth is that diuers of them that writ with more will then iudgment for Tithes fall often from their Ius Diuinum before they are aware and talke of them as supposd due also by Human positiue Law of Practice But they are farre enough from shewing what or where that Law or Practice is what doe they else when they confound Tithes and consecrated lands together and apply that to Tithes which is equally to bee spoken of lands giuen to the Church I trust they mean not that the Church had an originall Title also Iure Diuino to lands arbitrarily consecrated to it Let
themselues from the Patron seuerally and directly in point of interest The beginning of Parish Churches Disposition of the Offrings receiued there Lay-foundations of Parish Churches The interest that Patrons claymed Right of Aduowson The ceremonie of putting a Cloth or Robe vpon the Patron at the consecration of the Church The vse of Inuestitures by which as by liuerie of Seisin Lay Patrons gaue their Churches Commendatio Ecclesiae Benefice None anciently receiued the character of Orders but when also the ordination was for the title of some Church Thence came the later vse of Episcopall Institution Whence some Patrons came to haue most part of the Tithes Canonica portio The Clergy and Councels against Inuestitures Their continuance till towards M.CC. when Institution as it is at this day vpon presentation grew common How Appropriations were in those times made The ancient Episcopall right to Tiths especially in Germanie and the Northern parts How Monks iustified their possession of Tithes and Parish-Churches The right of Tithes generally denied in Turingia to the Archbishop of Mentz IV. Of Infeodations of Tithes into Lay-hands both from the Clergie and Laitie and of their Originall V. Of Exemptions graunted by the Pope Templars and Hospitalars accounted no part of the Clergie VI. The generall opinion was that they are due iure diuino but this indifferently thought on seems to haue denoted rather Ecclesiastique or Positiue Law by the doctrine and practice of the Clergy then Diuine Morall Law VII Laws Imperiall and Canons Synodall and Pontificiall for the payment of Tenths The grosse error of some that mistake Nona and Decima in the Capitularies The first Generall Councell that mentions Tithes CAP. VII Of the time from M.CC. or neere thereabouts till this day I. The Canons of Generall Councells and Decretalls for Parochiall right in Tithes not formerly otherwise conueyed which now became more established II. The opinion of the Canonists in the question of what immediate Law Tithes are due by is that they are payable iure diuino III. How the same question is determined by the opinion of the Schoolmen IV. Of those that held them meere Almes V. The opinion in Diuinitie that concludes them due iure diuino With a Determination of the Vniuersitie of Oxford touching Personall Tithes VI. Laws Customs and Practice of France in exaction of them Of their feudall Tithes at this day VII Laws Customs and Practice in Spain touching the generall payment of Tithes Tithes there in Lay mens hands VIII Customs and Infeudations in Italie Payment in Venice in Germanie Of the Hungarians Polacks Swethians and others touching the dutie and possession of Tithes IX Of Tithes in Scotland With an Example of an Appropriation of Churches and Tithes there by Robert de Brus. And something of Tithes in Ireland CAP. VIII The Laws of England made in the Saxon mycel synodes or ƿitenagemotes in Parliaments and in the Coūcels here held either National or Prouincial or by the Pope for the due payment or discharge of Tithes in this Kingdome Petitions or Bils in Parliament touching them are inserted all in their course of time CAP. IX I. Of Parishes in the Primitiue Church of the Britons II. Parishes in the Primitiue Church of the English Saxons first limited only in regard of the Ministers function not of Parochiall profits all the profits of euery whole Diocese first made a common treasure to bee disposed of by the Bishop and his Clergie of the same Diocese Residence of the Bishop and Clergie in those times The great regard then had to euery Clergie man III. Of diuision of our Parishes whether Honorius Archbishop of Canterburie first deuided them Parochia or Paroecia diuersly taken IV. Lay-foundations of Parish Churches from whence chiefly came Parochiall limits in regard of the profits receiud to the singular vse of the Incumbents Limitation of Tithes by King Edgar to the Mother Parish Church or Monasterie Monasteries preferd before other Churches for buriall Mortuaries 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a third part of Tithes according to King Edgars Law must be giuen to a new built Church that had right of Sepulture by the Founder Sepultura and Baptisterium Capella Parochialis a Parish commanded to be made out of another that was too large by the Pope one Parish ioynd to another by the King CAP. X. I. The Practice of Tithing Of King Cedwalla's Tithing being no Christian. the custom of the German-Saxons in sacrificing their tenth captiue to Neptune Decima vsed for a lesse part also in ancient moniments II. The Practice of Tithing in the Christian times of our Ancestors the tale of Augustin and the Lord of Cometon touching non payment of them the Tithe of euery dying Bishops substance to be giuen to the poor by an old Prouinciall Synod Tithes how mentiond in Domesday Testimonies of payment of them Henrie the thirds grant of the payment of tithe of Hay and Mills out of all his demesnes The beginning of Parochiall payment of Tithes in common and established practice in England How that common assertion that euery man might haue disposed his Tithes at his pleasure before the Councell of Lateran is true and to be vnderstood CAP. XI I. Arbitrarie Consecrations of Tithes before about the time of the most known Councell of Lateran by conueiance from the owner of all or part to any Church or Monasterie at his pleasure in examples selected out of moniments of infallible credit II. A Writ in the Register intelligible only from those arbitrarie Consecrations a like example to it out of the booke of Osney III. The libertie of the Baronage anciently challenged to build Churches in their Territories Parochiall right to Tithes setled in Practice IV. Of Tithes of encrease in lands not limited to any Parish How by the common Law they are to be disposed of CAP. XII I. Appropriations and Collations of Tithes with Churches The Corporations to which the Appropriations were made presented for the most part Vicars Thence the most of perpetuall Vicarages II. How Churches and Tithes by Appropriation were anciently conueyed from Lay-Patrons The vse of Inuestitures practiced by Lay-Patrons III. Grants of Rents or Annuities by Patrons only out of their Churches Of the Bishops assent More of Inuestitures A Writ to the Archdeacon anciently sometime sent vpon recouerie of a Presentment IV. Of hereditarie succession in Churches V. Laps vpon default of Presentation grounded vpon the generall Councell of Lateran held in 25. Hen. 2. What Praesentare ad Ecclesiam is originally Donatio Ecclesiae CAP. XIII I. Infeodations here into Lay hands since the Statuts of Dissolutions Of Infeodations before that time in England somewhat more of the originall of Lay mens practice in arbitrarie Consecrations or Infeodations II. Exemptions or discharges of payment originally by Priuiledges Prescriptions Vnitie Grants or Compositions and by the Statuts of Dissolutions CAP. XIV I. The iurisdiction of Ecclesiastique causes in the Saxon times exercised by the Shrife and the Bishop in the Countie
our own Ancestors when the Iews liued here they had it seems one generall or high Priest ouer them vsually confirmd at least if not constituted by the King for life as appears by Record prouing that both Richard the first and King Iohn did by their Patents grant the same the Copie of it being a most rare example and not from this purpose take here transcribed Rex omnibus fidelibus suis omnibus Iudaeis Anglis salutem Sciatis nos concessisse praesenti Charta nostra confirmasse Iacobo Iudaeo de Londonijs Presbytero Iudaeorum Presbyteratum omnium Iudaeorum totius Angliae habendum tenendum quamdiu vixerit liberè quietè honorificè integrè ita quod nemo ei super hoc molestiam aliquam aut grauamen inferre praesumat Quare volumus firmiter praecipimus quod eidem Iacobo quoad vixerit Presbyteratum Iudaeorum per totam Angliam garantetis manuteneatis pacifice defendatis si quis ei super eo forisfacere praesumserit id ei sine dilatione saluâ nobis emendâ nostrâ de forisfactura nostra emendari faciatis tanquam Dominico Iudaeo nostro quem specialiter in seruitio nostro râ—tinuimus Prohibemus etiam ne de aliquo ad se pertinente ponatur in placitum nisi coram nobis aut coram Capitali Iustitia nostra sicut Carta Regis Richardi fratris nostri testatur Teste S. Bathoniensi Episcopo c. Dat. per manus H. Cantuariensis Archiepiscopi Cancellarij nostri apud Rothomagum XXXI die Iulij anno Regni nostri primo It s true that Presbyteratus might denote aswell some Lay eldership but as vnlikely 't is that in that age the Clergie men that were officers of the Chancerie and most commonly drew the Patents at least iudged of the language would transferre their name of Presbyteratus to any such signification so also I suppose that any such Lay or Ciuill Officer among them could not haue scaped often mention in the Records of Iudaisme yet remaynig Many of them I haue perused but neuer met with the name elsewhere then in this Roll. But to this Priest Iacob or other like him among them no Tithes first Fruits or Therumahs were or are by their Canons payable and agreeing to them expresly herein is Eusebius who amongst other of their Mosaicall Laws puts their paying of Tithes for one specially that was confined to the land of Israel and Ierusalem for first reciting that about eating the Tithes in the place which the Lord shall chuse to cause his name to dwell there which indeed is only spoken of the second Tithe of the first and second yeers and ioyning it with the generall commandement of Tithing and with the precepts of the Passeouer of the feast of Weeks and of Tabernacles in which a certain Place by such an indefinit designment is also mentioned he addes at length with reference to them all 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 seeing in so many things he designes out a particular place so often commanding them to meet there euery Tribe euery Houshold how can it fit them or belong to them that dwell but a little out of Iudaea much lesse to the Nations of the whole world But those feasts he speaks of the Iews at this day obserue although not accuratly according to Moses his Lawes Tithes how paid or due among the Gentiles CAP. III. I. Some Romans paid to some Deities and somtimes only a Tenth of spoiles of procede of merchandize of their estates but vsually also by vow which bound the Heire or Executor II. Festus is falsly cited for a generall custom of payment of Tithes among the Ancients III. Examples of Tithes paid among the Graecians IV. How the assertions of a generall vse of giuing Tithe to the Gods among the Graecians are to be vnderstood and why 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is to Tithe signifies also to Consecrate V. A Tithe paid to Hercules of Tyre and Sabis an Arabian Deitie the same with Iupiter Sabazius I. THe custom of the Gentiles vsually talkt of in offering a Tenth is chiefly to be considerd in the Romans and Graecians The Romans had a kind of deuotion of giuing Tithes but neither yeerly nor by compulsorie Law as some falsly but confidently through ignorance in human literature deliuer the welthier of them diuers times vsed to Tithe their estates to Hercules by spending the Tenth in sacrifices gifts to his Temples feasts in his Honor and the like it appears so and to be no otherwise by Plutarchs words in his questioning the reason of it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 saies he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Why do many of the rich men tithe their substance to Hercules and elswhere he as other Ancients notes it as a speciall deuotion of some of the sonnes of Fortune Neither is old Cassius otherwise to be vnderstood where he deriues Hercules his Tenth from an innouation made by Recaranus in Euanders time This Recaranus he saies first taught them to giue the Tenths of their fruits to Hercules to whom he consecrated an Altar vnder the name of INVENTORI PATRI after he had regaind his heards that Cacus had stolne rather then to the King as before the vse was and then he addes inde videlicet tractum vt Herculi Decimam profanari mos esset that is thence came it to be a custom that diuers did pay him a tithe But neither by their Law Ciuill or Pontificiall was this payment Often it was as a thanksgiuing after some increase of fortune and often by vow beforehand and for the most part of increase of estate by mony gotten vpon sales and of spoiles of warre For such things that made accessions to their estates they were sometime so thankfull Whereat Cicero iesting saies that neuer any man vowd Hercules a Tenth in hope of increase of his wit Neque Herculâ— quisquam Decimam vouit vnquam si sapiens factus fuisset Of mony gotten vpon sale an example is in the Parasite that after reckoning vp his good merchandize saies he must sell it as deare as he can that he may spend the Tenth vpon Hercules Haec vaenisse iam opus est quantum potest Vti Decumam partem Herculi polluceam whence the same Autor vses the name of pars Herculana and Tertullian speaking of the prodigalitie of the Gentils in their feasts Herculanarum decimarum polluctorum sumptus tabularij supputabunt For spoiles of warre witnesse is in that dedication of Lucius Mummius which got Corinth and setled it to the Romans thus inscribed and yet remayning at Riete SANCO SEMIPATRI De decuma Victor tibi Luciu ' Mummiu donum Moribus anteiqueis hoc pro vsura dare sese Visum animo so perfecit sa pace rogans te Cogendo dissoluendo vt foelicia faxis Perficias Decumam vt faciat verae rationis Propter hoc atque alieis donis des
Leo the Great he was Pope from CCCC XL to CCCC LX hath diuers Sermons yet remayning De ieiunio Decimi mensis eleemosynis wherein he is very earnest and large in stirring vp euery mans deuotion to offer to his Parish Church part of his receiud fruits but speaks not a word of any certain quantitie The like may be noted in some Homilies of S. Chrysostom touching the Churches maintenance in which you might wonder how Tithes were omitted if either deuotion or doctrine had neer the beginning of these CCCC yeers made payment of them especially in the more Eastern parts of any common vse For the later part of those yeers see towards the end of this Chapter II. But beside the offering of Tenths yeerly as was done by the deuouter sort sometimes to the Ministers of the Sacraments somtimes to Abbots and the like a perpetuall right also of them was consecrated to some Churches by grant or assignment out of such or such land at the owners pleasure and that long before the end of this four hundred yeers These speciall indowments may be collected from a Canon of a Councell of Arles held in the yeer DCCC.XIII which thus speaks Vt Ecclesiae antiquitus constitutae nec Decimis nec vlla possessione priuentur and other Prouincials of that time and Laws of Charlemain agree with it as that of his thus speaking Ecclesiae antiquitus constitutae nec Decimis nec alijs possessionibus priuentur ita vt nouis oratorijs tribuantur These cannot well be vnderstood vnlesse you interpret them to mean Churches anciently endowd with Tithes And what was then about the yeer DCCC said to be anciently endowd must be referd back into some part of the time we now speake of Neither are the moniments of that time without example of such endowments It is reported that Pipin about the yeer DCC.L granted the Tithes of all that lay between Ourt and Lesche two Riuers of Ardoinne to a church consecrated to the honor of S. Monon So I take that in S. Monon's life Beato viro ob titulum Christianitatis mactato Pipinus Rex regaliter Decimas obtulit quas habet inter Letiam Vrtam So about the yeer DC.LXXX Decimancula in Rodulfi Curte that is the right of a Tithe of small value in a place calld Rodulfs Court was consecrated to the Church of Arras And in a confirmation by King Pipin of the foundation of the Abbey of Fulda which was made in DCC.XLII consecrations of Tithes to the same Abbey either alreadie made or thereafter to be made are specially confirmed whatsoeuer it had or thereafter should haue in donis oblationibus Decimisque fidelium absque vllius personae contradictione firmitate perpetuâ fruatur are the words But these kinds of grants it seems were not yet in much vse and what was of them I ghesse might haue beginning not long before DCC yeers from our Sauiour For if they had been known much before the precedent of them could hardly haue been omitted by Marculphus who liud vnder King Clouis the second about the yeer DC.LX. and collected carefully the Formulae or precedents of al kinds of Deeds Conueyances and Grants that were practiced in his time amongst which he hath many by the name of Cessiones and Donationes wherein lands and other profits were giuen to this or that Church but neuer mentions any one for the gift of Tenths III. If the common tale of Charles Martell his taking away the Tithes that Churches were endowd with and giuing them to the Laitie about the yeer DCC.XL were true it were autoritie both for generall payment and speciall endowment in those times of great antiquitie and faire proof but although that of him be receiud as a storie by diuers of late time yet cleerly it can neuer be iustified He was indeed a robber of the Church but he is not mentioned by any old autor of credit to haue medled with Tithes He was Monasteriorum multorum Euersor and Ecclesiasticarum pecuniarum in vsus proprios commutator as Boniface Archbishop of Mentz that liud in his time complains of him that is he took Monasteries Bishopriques Church-Rents and possessions from the Clergie prophand them to lay-hands as a reward of their militarie seruice then done for Christianity against the Saracens who from Spain inuaded the Countrie wherupon also another fiction is too patiently receiud that Eucherius Bishop of Orleans in a vision saw him damned for it and that by a search according as an Angel admonished in his tomb it was also confirmd for truth there being found in it no relique of him but only a dreadfull Serpent The first autor of this Hobgoblin storie seems of like credit with him who euer he was that first publisht that the taking of Tithes was Martels chief sacriledge Tithes in his time were not so vniuersally as yet annext to churches as that they could be the main obiect of such a sacriledge nor are they euer reckond so among those ancients that largely speak of Lay mens oppression by defacing whole Monasteries and Bishopriques in the times that next succeeded Neither is it cleer that in Eucherius his life Martell was dead for it is obserued and taught by that great and most learned Cardinall Baronius that he liud at least ten yeers after Eucherius How then could Eucherius cause his Tomb to be searcht and there find a Serpent That 's enough truth too that Boniface brands him withall for his tyrannical spoiling the Church of her other possessions Longa torsione verenda morte consumtus est the rest is only out of the Legend of Eucherius his life which as other things for the most part of that kind is too full of falshoods to gain to it selfe any credit And some late Canonists that out of his tyrannie against the Church interpret their Decimae infeudatae or feudall Tithes are alike in no small error as in the next Age shall be manifested For neither was the course then vsed in taking the Church reuenues for militarie maintenance to giue them in fee to any Lay man but leases for life were made by Church-men to such as the Prince appointed of great part of their possessions wherupon certain small Rents according to a proportion ordaind by the State were reserud Those leases were somtimes vpon the Princes request renewd but vpon death of the Lessee the estate and possession reuerted to the Church all which appears plainly in a Councel held in the yeer DCC.XLII vnder Prince Carlomann sonne to Martell where that which was so leased is called according to the phrase of the Time Ecclesialis pecunia ouâ— of euery Casaâ—a whereof a shilling was to be reserud to the Church or Monasterie whence it was granted That Casaâ—a was a quantitie of land known certainly from the custom only of euery Countrie as a yard land or a hide of land with vs. the same word but varied
this time that of S. Gregorie where he admonishes the hallowing of Lent consisting of six weeks out of which the Sundayes being taken XXXVI dayes remain for the Tenth part of the yeer fractions of dayes omitted this Tenth of time he would haue vs giue to God vt in lege iubemur as his words are Domino Decimam rerum dare V. Some Canons both Pontificiall and Synodall made for the right and paiment of Tithes are attributed to the ages that fall about the midle of this time But I haue not obserud aboue one that is of any credit as referd hither neither was that euer receiud into the bodie or any old Code of the Canons That one is Prouinciall and made in the yeer D.LXXXVI in the Councell of Mascon a Bishoprique in the Diocesse of Lions where all the Bishops of King Guntherams Kingdom being present speak of reforming Ecclesiasticall customs according to an ancient example and then begin with Leges Diuinae consulentes Sacerdotibus ac Ministris Ecclesiarum pro haereditaria portione omni populo praecaeperunt Decimas fructuum suorum locis sacris praestare vt nullo labore impediti per res illegitimas spiritualibus possint vacare Ministerijs quas leges Christianorum congeries longis temporibus custodiuit intemeratas Vnde statuimus vt Decimas Ecclesiasticas omnis populus inferat quibus Sacerdotes aut in pauperum vsum aut in captiuorum redemptionem erogatis suis orationibus pacem populo ac salutem impetrent Here is no small testimonie aswell of ancient Practice in paying of them as of great Opinion for their being due But although the whole Councell hath to this day remaind with the subscriptions of the Bishops to it yet whateuer the cause was not so much as any Canon of it is found mentioned as of receiud authoritie in any of the more ancient Compilers of Synodall decrees notwithstanding that the fullest of them I meane Isidore liud long after this Councell held and hath some other Synods of the Continent of France as of Orleans of Arles of Agatha But this he mentions not The first that published it was Frier Crab in his Edition of the Councels vnder Charles the fift Yet also in some that collected the Canons since Isidore Decrees of elder time then that is are to this purpose spoken of as you may see in Iuo at the end of a Decretall of Gelasius that was Pope in the yeer CCCC XCII where these words are annext Decimas iusto ordine non tantum nobis sed maioribus nostris visum est plebibus tantum vbi sacrosancta dantur baptismata deberi This stands continued with the rest of Gelasius in the print But in an old and very fair Copie neer as ancient as Iuo remaining in the Librarie at Pauls these words begin with a coloured capitall as a seuerall Paragraph and indeed are not Gelasius his but Pope Leo's the fourth who liued aboue CCC.L. yeers after that appears plainly out of the Epistle of Gelasius whereto they are annext which Gratian hath in all sauing this according to Iuo yet cites this passage in another place by it selfe out of that Leo from whom also 't is likewise taken by Anselm and Gregorius Presbyter who haue in their collections the rest of Gelasius his Epistle according to Iuo as it is noted to the Text publisht by command of Gregory the thirteenth And in those Decrees of Gelasius that are extant touching the Church-treasurie or reuenue no mention is of other then of redditus Ecclesiae oblationes fidelium A like falshood is committed by them that attribute a Prouinciall Constitution touching the distribution of Tithes amongst the Bishops and inferior Ministers to the first Councell of Orleans held in the yeer D.VII. and that by finding som words to this purpose added to a Canon which in the printed Iuo hath a marginall reference to some Councell of Orleans It is most certain that the first Councel of Orleans hath no word of Tithes in it but speaks of the distribution only of such things as in Altario oblatione fidelium conferuntur and possessions of other like kind of church-Church-lands and according to that Burchard and Gratian cite it who haue also those words that Iuo there hath excepting only that of Tithes And some other Prouincials of the same place and age to the same purpose speake afterward of oblationes facultates but not a word of Tithes All which shews plainly that no such matter was euer in the first Councell of Orleans The truth is also that Iuo himself cites it not out of any Councell of Orleans but from I know not what Councell of Toledo as his Ms. copie is and as it is truly publisht in the printed book all that directs to the Councell of Orleans there being only the marginall note of du Molin a Canonist of Louain that set it forth But neither any of Orleans or Toledo hath it all as he relates it The truth is that Canon of his is made vp out of two Councels indeed the first of Orleans and the ninth of Toledo and agrees well with both sauing for so much as is expresly spoken of Tithes That which in those two had been ordaind for Offerings and other reuenues of the Church he not vnfitly applies to Tithes being a more known part of that reuenue in his time and thither draws also an old Councell of Rome as if it had spoken expresly of them writes all in no other syllables then Burchard had before deliuered with a like title of ex Concilio Toletano But this excuses not those which make the words of such a collection out of two or three old Councels applied to a later time to go for a Canon of any one of them Many such are occuring in Burchard and Iuo epecially and some in Gratian which are noted vpon their credits and in some editions placed in the times to which they attribute them licet forsan falso tali sint Pontifici vel certè tali Concilio per scriptorum incuriam adscripti as Frier Crab well admonishes A like falshood is in attributing out of the same Iuo an expresse Canon for the payment of first Fruits and Tenths to the Prouinciall Synod of Siuill held in the yeer D.CX. in these words Omnes primitias Decimas tam de pecoribus quà m de frugibus diues simul pauper Ecclesijs suis rectè offerant and a litle after Omnis rusticus artifex quisque de negotio iustam Decimationem faciat and then Si quis autem haec omnia non Decimauerit praedo Dei est fur latro maledicta quae intulit Dominus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Cain non recte diuidenti congeruntur There is litle reason to doubt but that the reference of that Canon in him to that Councell of Siuill is false The Councell of that yeer and place is
auara mens illarum largitati non consentit This Epistle was writen about DCC.XCVII as the historicall part of it perswades and the generall Laws by which that exaction might haue been made are among those which about DCC.LXXX the tame Charles had ordaind in an assembly of Estates of which more in the last Paragraph of this Chapter But the execution of those Laws soone afterward as anon shall be declared failing this practice of paiment also became to be of rare vse and although diuers Synods soon followd which commanded a Tenth as what was due of it selfe to the Church whence also in some places a Parochial paiment doubtlesse continued and by prescription and custom established a ciuill right in some Churches yet the Laitie not much subiecting themselues to any Church-Laws of the time that toucht their possessions frequently exercised their arbitrarie dispositions especially of such of them as were not alreadie consecrated or by custom or prescription setled and therein pretended them due only but as their own choice either by Consecration to any Church or Monasterie whatsoeuer or by Infeodation into Lay-hands should determin And those also which were established by former Consecration Custom or Prescription were very often arbitrarily disposed of also by Lay-Patrons in their Appropriations II. For arbitrarie Consecrations the Laws ordaind in the first of these CCCC yeers that speak of Decimationum prouentuâ— priori Ecclesiae legitime assignatus and locus vbi decimae fuerant antiquitus consecratae and Decimae quae singulis dantur Ecclesijs and such more point at the vse of them And although out of any continuance alone of voluntarie paiment a kind of Parochiall right which also by the Laws of the time euery Rector should haue enioyed in the Territorie where he dispensed the Sacraments were created yet Consecrations of Tithes not yet established by a ciuill title made to the Church of another Parish at the Lay-owners choice were practiced and continued in force as may plainly be collected out of an old Law about the beginning of these yeeres made but not put in execution for punishment of such consecrations by compulsion of the partie to restore to the Church the quantitie of the Tithe so aliened Quicunque are the words of it Decimam abstrahit de Ecclesia ad quam per iustitiam dari debet eam presumptiose vel propter munera aut amicitiam vel aliam quamlibet occasionem ad aliam Ecclesiam dederit à Comite vel a misso nostro distringatur vel eiusdem Decimae quantitatem cum sua lege restituat So another was made against parsons vnder paine of depriuation that they should not perswade Parishioners to come to their Churches suas decimas sibi dare With it agrees the complaint made about the same time in the Councell of Pauia against such as vsed to giue away their Tithes alijs Ecclesijs pro libitu And many expresse examples are of such grants made not otherwise then as of Rents charge arbitrarily created some shall be here added But because since the last chapter printed the Chartulary of the Church of Vtrecht among many other select moniments to the purpose of this discourse through the fauor of that right worthy and learned Sr Robert Cotton my most honord friend came to my hands wherin an obseruable consecration of tithes in the former CCCC yeers is preserued it shall here not much out of its place be first rememberd There in confirmations to that Bishoprique made by Pipin Charles the great and other of the succeeding Emperors is expressed that some neer ancestors of that Charles as the elder Pipin Charles Martell Carloman had giuen great endowments to it and among them Omnem Decimam de Mancipijs terris telonijs vel de negotio vel de omni re vndecunque ad partem regiam fisâ—us teloneum exigere aut accipere videbatur it seems it must be restraind to what the grantors possessed in the Territorie about Vtrecht although no such thing appears in the diuers Charters there remaining of it For the following times in the same Chartularie is a commemoration of the possessions of the Bishoprique wherein diuers particular Tenths possessed by speciall grant are reckond as Tenths of wreck of treasure troue of fishing and a relation is of promise made to the Bishop by one Gutha to endow a Church which he gaue to Vtrecht with the Tithes of diuers Mannors In Beuorhem the words are tradidit Gutha Ecclesiam necdum consecratam in ius dominium Sancti Martini to that Saint was the church of Vtrecht consecrated ea videlicet ratione vt post consecrationem eiusdem Ecclesiae Decimae darentur ad supranominatam Ecclesiam de villis hijs nominibus vocitatis Beuorhem Gisleshem Hegginghem Schupildhem And in the yeer DCCC.LII Raginer Duke of Lorrain for the health of his own soule and the soules of his wife children and parents giues to the Abbey of Vito in Verdun a whole Town called Longuion with the appurtenances and all the Tithes of the Land that he had within the bounds and precinct of the same Town Villam nostram as the Charter speaks quae dicitur Longuion cum omnibus appendicijs suis ac Decimis quas in Banno dictae villae habebamus and one of his successors Rigimir by Charter dated DCCCC XLVI for like consideration gaue to another Monasterie seated vpon Moselle all the Tithes within the libertie of the Town where it stood in these words Imperpetuum omnes Decimas quas habeo in Banno praefati oppidi tam in blado quam in vino ac alijs rebus where Bannus or Bannum is vsed for the continent within the vtmost precinct of the Town in which sense Banleuca as also leuga circumiacens occurs in the moniments of this Kingdom as Banleuca de Arundell for all comprehended within the limits or land adioyning and so belonging to the Castle or Town which are both as one to this purpose So the Monks of Clugny in Burgundie founded by William Count of Auuergne in the yeer DCCCCX had Tithes of diuers possessions giuen them which the phrase of the time stiled Decimas indominicatas in a Charter to them made by Lewes the fourth of France in the yeer DCCCC XXXIX and those Tithes were often confirmed to them by Pontificiall autoritie as by Agapetus the second Lucius the second and afterward by Vrban the third in the yeer M.C.LXXXV in whose Bull a recitall and confirmation also is of an instrument of Adhemar Bishop of Xantoigne made to this Monasterie that hath these words in it Damus concedimus vobis Decimas quas à Laicis acquisistis vel acquirere poteritis with a command that Laimen in the precinct of their Abbey should not conuey their Tithes to any other Churches And when the Abbey of Vendosme was founded about the yeer M.L. by Godfrey Martell Earle of Aniou the Tithes
the appropriated Tithes before the Iudgement Seat of the Almightie and soon after hee most miserably died Vto his Arch-priest who had been his great Instrument in the Suit the same yeere suddainly following him But how euer either the vsuall practice or this example wrought a yeer or two after this questioning of Tithes vpon Episcopall right that is vpon pretence that all Tithes of euery Diocese were due to the Bishop as to the Rector of a great Parish for such a right was most specially pretended by Bishops in Germanie as is alreadie declared and that both against Appropriations arbitrarie Consecrations bred most perillous disturbances of State and of no small consequent in those parts For in the yeere MLXII when Otho succeeded his brother William in the Marquisat of Turingia Sigifrid Archbishop of Mentz denied him the relieuing of his Fiefs held of the Archbishoprique vnlesse hee would giue him all the Tenths of his Demesnes and compell all the Tenants of his Marqusat to doe the like This was exceedingly distasted by the Turingians insomuch that they openly profest they would sooner lose their liues quà m patrum suorum legitima amittere that is then part with their ancestrell right of detaining or disposition of Tithes according to their vse either of Infeodations or Appropriations so you must of necessitie vnderstand it and other passages in the Author Lambert of Schaffnaburg then liuing who relates it make that sense of it plaine Neither was this Otho for as much as in him lay wanting to the Archbishops request But in the yeere MLXVII vpon his death hee left ioy enough to his countrey men in regard of that his yeelding about the Tenths which none of his ancestors had giuen example of but in him it was the chiefe Seminarie as the Monke sayes of the many calamities suffered in the Saxon Warre of that time Great disputation of Canonists followed some six yeeres after in a Councell held about this Episcopall right in Erpesfurt where not only the Tithes of Lay men were called in question but Tithes appropriated to the Abbeyes of Fulda and Herfeldt and of all their possessions were challenged by the Archbishop his Canonists vehemently disputing for him and the Emperor Henry the fourth who much inuaded the rights of the Church vrging him forward that indeed hee might haue had a moitie with him At length the Abbots diuided with the Bishop by a speciall transaction and when they yeelded the Lay men seruing the time agreed to giue him theirs also But presently the exaction of them ceased Hoc anno MLXXIII post exortum bellum Saxonicum sayes the Monke nulla deinceps exactio facta est Decimarum in Turingia gaudentibus Turingis quod occasionem inuenissent vt traditas sibi à patribus leges manu militari tuerentur And although the Archbishop againe questiond it no successe followed Of Appropriations of Tithes hitherto IV. The vse of Infeodations or Conueyances of the perpetuall right of Tithes into Lay hands is rememberd by Peeter Damian that complaind of it to Pope Alexander the second about the yeer MLX. Insuper etiam Decimae saith he ac plebes adduntur in Beneficium saecularibus Where plebes is taken for Parish Churches as it is often vsed in the old Canons and they are the same to this purpose with parochial Tithes and Temporalties although literally they interpret only 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is the Lay people of the Parish or those of whom the Cure is which word is often for plebes in the Greek Canons of the African Church The Originall of the practice of these Infeodations of Tithes appears not in old moniments Those which referre them to the time of Charles Martell or any age neer him are in grosse error neither is any mention of them for the space of about CCC yeeres after him Lands and Monasteries consecrated were about those times of Martell often possest by the Laitie and often wrongfully as the storie of him Carloman and their successors plentifully discouer and thereof enough in the former Chapter But no Tithes in those times were Infeodated as also is iudiciously obserued and taught by the learned Stephen Pasquier Aduocat Generall en la chambre des Comptes whose diligence yet failes when he confidently deliuers that these Infeodations began about the time of the holy Warres that were between MXC. and MC The contrarie appeares plainely not only in that of Peeter Damian who liued long before but also in the Counell of Lateran held in MLXXVIII where this Canon is Decimas quas in vsum pietatis concessas esse Canonica authoritas demonstrat à Laicis possideri Apostolicâ authoritate prohibemus siue enim ab Episcopis vel Regibus vel quibuslibet personis eas acceperint nisi Ecclesiae reddiderint sciant se sacrilegij crimen incurrere Which in the same syllables is iterated in the generall Councell of Lateran held in M.C.XXXIX vnder Innocent the second But in the first you see cleerly that Infeodations of Tithes were ancienter then the Holy Warres Which is plainely confirmed also by the Councell of Cleremont held in MXCV by Vrban the second where it was forbidden That Lay men should thenceforth Altaria vel Ecclesias sibi retinere that is keep Churches and consecrated Tithes in their owne hands for so was the common signification of Altaria at that time in France And obserue there withall that they had beene practiced not alone by Lay men but by Bishops also as is declared in Peeter Damians complaint against them for it Likewise it seems Religious Orders made Fiefs or Tenements of Tithes for Lay men Testimonie of these Infeodations are very frequent in the Canon Law which commonly-stiles the Tithes so conueyed into Lay hands Decimae Laicis in feudum concessae and Feudales and Infeudatae that is Feudall Tithes or as the French Lawyers call them Dixmes infeodees And to this day these Infeudations remaine especially in France and Spaine and also elsewhere Neither are the Tithes so possest other then meere Lay possessions and determinable before the secular Iudge But thereof more in the practice of the next CCCC yeeres in which the ancient Infeodations haue continued But since the yeere M.C.LXXX. none could in France especially be newly created that is no Lay man might thencâ—forth begin Infeodations of Tithes parochially due by the Canons So was it ordained in the generall Councell of Lateran then held in these words Prohibemus ne Laici Decimas cum animarum suarum periculo detinentes in alios Laicos possint aliquo modo transferre Si quis verò receperit Ecclesiae non reddiderit Christianâ sepulturâ priuetur So hath the continuall practice which in such a case is the best interpreter since been in that Countrey which hath receiued this Canon for a binding Law Neither is it otherwise to be vnderstood how euer diuers of the later Canonists with ignorance enough
profit And therefore also Alexander Hales aptly determines that Decimae tam personales quam praediales sunt in praecepto that is both quoad substantiam but neither quoad quotam And that in Venice and other such Cities where no Prediall Tithes are a Personall Tenth is due by the Positiue Laws of the Church as in them also a sufficient maintenance is to be had for the Clergie by the Morall or Naturall Law In summe by this opinion Customes of payment of lesse of nothing and other Ciuill Titles that haue force against Ecclesiastique Law Positiue are allowd so long as the maintenance of the Minister be otherwise competent Both failing then is that defect to be supplied notwithstanding any Ciuill exception due by the Diuine Naturall or Morall Law which inscribd in all hearts admonishes that reward is due to euery laborer much more to him of the Spirituall Haruest Other questions about Tithes are disputed in the Schoolmen but it is not hard to coniecture how the most are to be determined according to them by their resolution of this alone therefore I omit them You see how opposit this Opinion is to that receiud among the Canonists twixt whom and the Schoolmen was vsually great dissention It is not to be doubted but that the Schoolemen lookt much further into all that they medled with then the Canonists could do And had the Canonists agreed herein with them they might with fewer absurdities haue maintained diuers of their scrupulous Positions And some of them were so moued at the Schoolemens Disputations about Hales his time especially that they knew not which way at all to determin it This difference of the Canonists and Schoolmen is rememberd by I. Maior Theologos hic saith he Canonistae Haereticos vocant quia dicunt Decimas non esse de iure diuino But which are here the more competent Iudges of the two he tells you further in his answers to Peeter of Rauenna a Canonist of his time He liued about C. yeers since IV. The second Opinion in Diuinitie is of those that hauing their first ground out of the determination of the Schoolemen held Tithes to be meere Almes and not to be paid to the Ministers of the Gospel by any Parochiall right as a necessarie dutie to the Euangelicall Priesthood but that they might be retained and disposed of at the owners will especially if the Pastor well performed not his function Of this were both some of religious Orders in their Preaching and also others opposit enough to them in Doctrine The Dominicans and Franciscans especially who began both about the yeer M.CC.X. and had in their Monasteries store enough of Schoolmen made it a gainfull Doctrine to teach Lay men that they were not bound to pay their Tithes to their Ministers as to whom by any Law of God that portion necessarily belonged For when the determinations had preceded by which the quota was concluded not to be due Iure diuino they of this side neglecting for the most part the positiue and human Laws made for them and regarding only the expresse Law of God taught them due only as Almes or as what debito charitatis not debito iustitiae was to be dispensed By this Doctrine the Mendicants especially often got them to themselues like the old Eustathians as Almes to be arbitrarily disposed of to such as took any spirituall labour as also made their own detaining of them in Lands out of which they were Parochially due to seem the lesse wrongfull but against their detaining of Parochiall Tithes a Canon was made in the Generall Councell of Vienna held in M.CCC.XL and their Doctrine was taxed by Pope Innocent the fourth about M.CC.L. writing vpon the Decretals where he calls them isti noui Magistri Praedicatores qui docent praedicant contra nouum vetus Testamentum and Richard Archbishop of Armagh complains against them for possessing the people with an opinion that the command of Tithes was not Morall but only Ceremoniall and not to be performed by constraint of conscience to the Minister and that out of whatsoeuer at least was giuen to any of the foure Orders of Mendicants no Tithe was in conscience to be deduced for the Ministers with these in substance did others also at the same time agree that otherwise were opposit to the whole Nation of Friers as with vs Iohn Wiclefe Walter Brute William Thorp and some such more whose Arguments for their opinions are at large in Foxes Acts and Moniments of the Church of England whither I had rather send the Reader then stuff this place with them Wiclefes Position for which as for an Heresie some haue been since questiond with vs is before related as it was condemned in the Councell of Constance and Thomas Walden the Prouinciall Gouernour of the Carmelits in England about the end of the time of Henrie the fourth wrote against him in it vindicating the dutie to the Church but not so much secundum quotam sed magis secundum substantiam as his own words are Hereto may be added one of the articles of the Bohemians published about CC. yeers since wherin a Diuine right to Tithes since the Gospell is denied wherupon also they long since took all temporalties from their Ministers and brought them to stipends Others haue been possest with this conceit and among them you may remember Gerardus Sagarellus before Wiclefe burnt also for an Heretique And the great Erasmus gaue the common exacting of Tithes by the Clergie of his time no better name then Tyrannie But that of his diuers haue sufficiently both reprehended and confuted and especially Albertus Pius Carpensis in his labour against him With this may be reckond that of William Russell a Franciscan who vnder Henry the fift had publiquely preacht that the payment of personall Tithes to the Pastor were not in Gods Commandement but that it was lawfull for euery Christian to dispose of them arbitrarily to charitable vses but of him see more in the next and third Opinion where the words of his Doctrin are exprest in a letter from the Vniuersitie of Oxford to the Conuocation of the Clergie V. The third Opinion is of those who agree with the Canonists that the right of the quota of Tithes immediatly is from the Morall or Diuine Naturall Law some impudently vrging with a commandement giuen to Adam others of them prouidently restrayning all their arguments to such grounds for the Conclusion as may be had out of Abrahams example referd to the application of it in the Epistle to the Ebrews but others also not so circumspectly taking in the Leuitical commandements of Tithes for their most sufficient autoritie For the first kind that talk of Adam I think indeed that in the time of this light of learning none haue durst venture their credits vpon such fancies yet that it was some opinion that had at least in pretence
censuris ne simplices inficiant mordaciter feriantur Sic vnanimes in vera doctrina Ecclesiae permaneamus vt ad eum tendere valeamus de quo canit Propheta Quaerite Dominum confirmamini quaerite faciem eius semper sic laetetur cor quaerentium Dominum hic in via quatenus ipsum quaerentibus dignetur esse merces in patria Amen They were me thinks somwhat vehement and very confident in the point Neither haue I elswhere seen so great autoritie against Russell If Russell were therefore an Heretique doubtlesse he hath had and now hath many fellow-Heretiques for thus many nay the most of such as most curiously inquire herein and diuers Canonists also that are for the morall right of prediall and mixt Tithes denie that personall are otherwise due regularly then as custom or Law positiue which is subiect to custom directs But iudge you of it Reader I only relate it and return to their prosecution against Russell at length news came that he was at Rome whither presently the Conuocation sent agents to whom they allowd for an honorarie salarie a farthing out of euery pound of Church liuings that might there question him before the Bishop of Rome a delegation of the Conisance of the cause was made to a Cardinall who adiudged him to perpetuall imprisonment vnlesse he recanted the Frier afterward brake prison and ran home again where at Pauls Crosse when nothing els could satisfie the secular part of the Clergie he solemnly abiured his heresie as they calld it and to preuent the like in the doctrin of other Minorits Chicheley the Archbishop enioind them all that in their publique Sermons they should teach personall Tithes to be due by the Laws of God and the Church Of later time others haue writen for the diuine right and generall dutie of Tithes you may see Albertus Pius Carpensis against Erasmus Baronius his digression touching them others but especially the diuers Treatises writen to that purpose of late by our Countrie men which are read in euerie hand I purposely abstain from particular mention of their names But neither haue only single autors been lately of that side for prediall and mixt whole Synods also of this age haue in expres words been for them through whose autoritie this ancienter before rememberd they might haue fortified their Conclusions with far greater names then by citing some one or two late single men as they vsually do To omit the Councell of Mentz held in the yeer M.D.XLIX where it is deliuered that Decimae debentur iure Diuino and some other are to that purpose in the Decreta Ecclesiae Gallicanae collected by Bochell In an Edict of Henrie the second of France in M.D.XLII relation is of a remonstrance made to him by the Bishop Dean Canons Chapter and Clergie of Paris wherein they take it cleer that tithes and first fruits were introduitees instituees de droit diuin partant deussent estre payes Loyauement sans fraude The like of the Clergie of the Diocese of Troyes is mentioned in an edict of Charles the ninth in M.D.LXII in the same words and in the yeer before by a Generall Synod of all the Clergie of France at Poissy a complaint was made with that pretence in it the words of the Edict best shew it Charles c. à tous ceux qui ces presentes lettres Verront salut De la part de nos chers bien amies consiellers les Archeuesques Euesques de nostre Royaume et des deputez des Clergez qui ont este n'aguerez assembleza Poissy par nostre commandement nous à este remonstre que combien que les Diximes Primices qui sont leur principall reuenu soient introduitees instituees de droict diuin partant deussent esâ—re payees loyaument sans fraude ce neantmoins plusieurs Agricoles proprietarees c. with these may be reckond that of the Clergies petition in the parliament of 50. Ed. 3. wherein they begin with Licit Decima siluae presertim caeduae de iure diuino ecclesiastico Deo et ecclesiae sit soluenda c. VI. But Although by this Opinion and that of the Canonists Tithes be generally due by the diuine Law and so not subiect if with them you take it for the diuine morall or naturall Law to Ciuill Exceptions as Customes and Prescriptions of discharges or of paiment of lesse or such more whence also reall compositions haue been condemned quia Decimae cum temporalibus non sunt commutandae as the words of an old Pope were to the Bishop of Cusa yet the practised Common Law for by that name as common is distinguished from sacred are the Ciuill or Municipall Laws of all Nations to be stiled hath neuer giuen way herein to the Canons but hath allowd customes and made them subiect to all ciuill titles Infeodations discharges compositions and the like Of Compositions no more shall be spoken seeing they consist rather in indiuiduals then of any generall course we only remember them here as one kind of discharge among other that haue been allowd by common Laws and where Customes and Infeodations hold no man can doubt of the lawfulnesse of Compositions But of Customes in the Edicts made by those Kings of France vpon those remonstrances it appears that what euer the Clergie supposed by their Dixmes introduitees and instituees de droict diuin they complain of abuse only in due paiment of Tithes out of lands suiets redeuables aux dits dixmes c. that is subiect and liable to the paiment of Tithes neither in other words do the Edicts and their verifications giue them remedie And notwithstanding that it were once according to sundrie Canons of that Church thus commanded by an old Law of the yeer M.CC.XXXVIII made by S. Lewes Decimae quibus fuit longo tempore ecclesia per malitiam inhabitantium defraudata Statuimus ordinamus quod restituantur citius amplius laici decimas non detineant sed eas habere clericis permittant yet in that state against the whole course of the Cannon Law in this kind they haue what by reason of ancient Infeodations still continuing what through customs allowed diuers lands to be not at all subiect to any Tithes payable to the Church For their Infeodations although none can be there new created such as were made before that Canon prohibemus of the Councell of Lateran held vnder Alexander the third are to this day remaining and are conueied and discend as other lay inheritances excepting only such as being discharged of feudall seruice haue been giuen in to the Church For their Lawiers with the common opinion but erroneously suppose that all such Infeodations came from the Church and therefore they agree if any feudall Tithes be conueied into the Church freely by themselues not as annexed to other fiefs as castles or mannors nor subiect to tenures reserued that then they are in the Church
transcriber who also in one place hath Oswaldus for Aelfwaldus King of Northumberland But those which speak of that Synod of these Legats seeme to suppose it extending through the whole Kingdome See also § VIII III. In the Laws made between K. Alfred and Guthrun the Dane to whom the Prouinces of East-Anglia and Northumberland were giuen to hold of the Crown and renewd also between the same Guthrun and K. Edward sonne to Alfred about the yeer D.CCCC. this occurres Gif hÆ¿a Teoþunge forheold gylde lashlite mid Denum Æ¿ite mid Englum that is as the old Latin Translation hath it Si quis Decimam contrateneat reddat Lashlite cum Dacis Witam cum Anglis Lashlite denotes the Danish common forfeiture which as it is thought was in most offences XII Ores that was commonly XX. shillings for XX. pence made an Ore commonly and sometime according to the variation of the Standerd XVI pence was an Ore But in Oxfordshire specially and Glocestershire in Domes-day XX. goe to an Ore as the English common forfeiture or the Wite was XXX shillings The occurrence of these two names is frequent in the Saxon Laws and it may seem by this that some other Law preceded for the payment of Tithes or els that the right of them was otherwise supposed cleer For the autoritie of this and the rest comprehended in those of Alfred and Guthrun obserue that in their title ða Æ¿itan eac ðe syþþan Æ¿aeron oft Unseldan ê§ sealf geâ—â—Æ¿odon mid gode gehyhton that is and the Wisemen or the Baronage of succeeding times very often renewed that Councell of theirs and in bonum adduxerunt as in the old Translation those last words are turned IIII. It is reported of King Aethelulph that in the yeer D. CCC.LV Decumauit as Ethelward writes de omni possessione sua in partem Domini in vniuerso regimine sui principatus sic constituit The words of his Charter whereby he did it are Cum Concilio Episcoporum ac Principum meorum Consilium salubre atque vniforme remedium hee means remedie against those miseries which the English had endured by Danish irruptions affirmantes consensimus vt aliquam portionem terrarum haereditariam antea possidentibus omnibus gradibus siue famulis famulabus Dei Deo seruientibus siue Laicis miseris semper Decimam mansionem vbi minimum sit tum Decimam partem omnium bonorum in libertatem perpetuam donari Sanctae Ecclesiae dijudicaui vt sit tuta munita ab omnibus saecularibus seruitutibus c. So is it reported in the Abbot of Crowlands Historie and varies not much in William of Malmesburie and Nicholas of Glocester who both haue it also at large But in Mathew of Westminster no other Decima is mentioned in it then Decima terrae Meae Out of the corrupted Language it is hard to collect what the exact meaning of it was How most of the Ancients vnderstand it is best known by the words wherein they summe it Ingulphus thus of it Omnium Praelatorum ac Principum suorum qui sub ipso varijs Prouincijs totius Angliae praeerant gratuito consensu tunc primò cum Decimis omnium terrarum ac bonorum aliorum siue catallorum vniuersam dotauit Ecclesiam Anglicanam per suum Regium Chirographum And hee tells vs further that Aethelulph in the presence of his Baronage at Winchester offerd the Charter vpon the Altar and the Bishops receiued it sent it to be published in euery Parish Church through their Diocesos In Florence of Worcester it is in these words abbreuiated Aethelulphus Rex Decimam totius Regni sui partem ab omni Regali seruitio tributo liberauit in sempiterno grophio in Cruce Christi pro redemptione animae suae antecessorum suorum vni trino Deo immolauit So also Roger of Houeden An old French fragment of the English Historie sayes that hee dismast la dime hide de tute Westsaxe and that it was pur pesire vestre les pouures The old Archdeacon of Huntingdon thus Totam terram suam ad opus Ecclesiarum decumauit propter amorem Dei redemptionem sui And in the rythmes of Robert of Glocester The King to holye Chirche thereafter euer the more drough And tithed well all his lond as he ought well enough If we well consider the words of the chiefest of these Ancients that is Ingulphus we may coniecture that the purpose of the Charter was to make a generall grant of Tithes payable freely and discharged from all kind of exactions vsed in that time according as the Monk of Malmesburie Iohn Pike in his supplement of the Historie of England expresse it Decimam say they omnium hydarum infra regnum suum à tributis exactionibus regijs liberam Deo donauit that is granted the Tithe of the profits of all Lands free from all exactions for the granting of the tenth part of the Hides or Plough-lands denotes the tenth of all profits growing in them as well as Decima acra sicut aratrum peragrabit which is vsed for tithing of the profits in the Laws of K. Edgar Ethelred and Knout and accordingly also is this of Ethelulph related in the Saxon Chronicles of Peterborough Canterbury and Abingdon he did tithe his landes ofer all his rice gode to lofe c. as the words are that is his Lands ouer all his Kingdom c. and doubtlesse Ingulphus no otherwise vnderstood it then of perpetuall right of Tithes giuen to the Church where he remembers it by tunc primo cum Decimis c. So that the tithe of prediall or mixt profits was giuen it seems perpetually by the King with consent of his States both Secular and Ecclesiastique and the tithe of euery mans personall possessions were at that time also expresly included in the gift because it seems before that the payment of all Tithes had commonly been omitted The ancientest of Writers that hath the Charter whole is that Ingulphus but questionlesse it is much corrupted especially in that of portionem terrarum hereditariam antea possidentibus omnibus gradibus for what may that signifie But in Matthew of Westminster it is farthest from deprauation of language where after portionem follows terrae meae Deo Beatae Mariae omnibus Sanctis iure perpetuo possidendam concedam Decimam scilicet partem terrae meae vt sit tuta c. the priuilege or libertie annext to it is that it should not be only free from all taxes and exactions vsed then in the State but also from that trinoda necessitas whereto all Lands whatsoeuer were subiect although otherwise of most free tenure by which they ment their expeditio or militarie seruice pontis extructio arcis munitio this freedom of that time you must it seems so interpret that euery man was from henceforth to be valued in all Subsidies and Taxes according only to
his nine parts of his Lands and profits and the profits of the tenth being due to the Church were both in his and their hands hereby discharged from all paiments and taxes whatsoeuer But should it be vnderstood only for a particular consecration to the Church of one time and of the Land it self to be possessed by the Clergie or emploied to other good vses of charitie then had it no more due place here among the Laws of Tithes then the storie of Robert Earle of Glocester his giuing euery tenth stone of his prouision for the building of a Towr neer to Bristow to the erecting of a Chappell or Edward the Confessor his building Westminster Abbey with the tenth of one yeers reuenue or Offa's giuing the Tithe of his estate to the Clergie and the Poor or the like But I conceiue it as is before declared It is fit to adde here also another of Ethelulphs grants or Constitutions by the Parlamentarie consent of that time made to like purpose and that at large because it is not in any published autor In the Chartularies of the Abbey of Abingdon it occurres in the one with the title of Priuilegium Aethelwlfi Regis in the other with Quomodo Adelwlfus Rex dedit Decimam partem regni sui Ecclesijs then follows the Charter or Constitution Ego Aethelulf gratia Dei Occidentalium Saxonum Rex in sancta ac celeberrima Paschali solennitate pro meae remedio animae regni posteritate populi ab omnipotenti Deo mihi collati consilium salubre cum Episcopis Comitibus cunctis Optimatibus mâ—is perfeci vt Decimam partem terrarum per regnum nostrum non solum Ecclesijs darem verùm etiam Ministris nostris in eadem constitutis in perpetuam libertatem habere concessimus ita vt talis donatio fixa incommut abilisque permaneat ab omni regali seruitio omnium secularium seruitute absoluta Placuit autem Aelhstano Episcopo Scirburnensis ecclesiae Swithuno Wentanae Ecclesiae Episcopo Ducibus communiter Hoc autem fecimus in honorem Domini nostri Ihesu Christi beatae semper Virginis Mariae omnium Sanctorum Paschalis festi reuerentiam vt Deus omnipotens nobis nostris posteris propitiari dignetur Scripta est autem hac Cartula anno ab incarnatione Domini nostri Ihesu Christi DCCC.LIV indictione II. die Paschali in Palatio nostro qui dicitur Wiltun Qui autem augere voluerit nostram Donationem augeat omnipotens Deus dies eius prosperos si quis vero minuere vel mutare praesumpserit noscat se ante tribunal Christi redditurum rationem nisi prius satisfactione emendauerit ✚ Ego Aethelwlf Rex ✚ Ego Aelhstan Episcopus ✚ Ego Swithun Episcopus ✚ Ego Wlflaf Abbas ✚ Ego Werferd Abbas ✚ Ego Ethered ego Alfred filij Regis consensimus the ancientest hand wherein this is writen in the Chartularies is of about Henry the second his time and for the credit of it you must relie vpon those Chartularies It differs in date both of place and time from the other this is dated at Wilton that at Winchester this in DCCC.LIV the second Indiction at Easter that DCCC.LV and in some the fourth Indiction and in others the third in Nouember such a difference of Indictions may well be if the Autors that deliuer it added that note for the time that they conceiud it to be made in not for the very Characters of the Date of the Originall instrument for Nouember falling in the fourth Indiction Imperiall may be of the third Indiction Pontificial the one beginning in September the other in December following that difference is in the relations of it between Florelegus and the Abbot of Crowland and the Abbot perhaps reckond by the Pontificiall Indictions and the other Monk by the Imperiall if at least their Copies be not corrupted But whereas in Malmesbury the date of that first Charter is DCCC.XLIV Indict IV.V. Nonas Nouembris plainly it is false neither could that Indiction be in the Character of the yeer DCCC.XLIV which fell in the seuenth Indiction V. In a Volume that belonged to the Abbey of S. Augustines in Canterbury titled Statuta Synodorum writen in a hand of about DCCCC yeers after Christ or somwhat more one Paragraph is de Decimis But the Mosaicall commandement for few of the Iudicials of Moses are wanting in it a passage in S. Augustine are the only autorities brought for them No Councell or positiue Canon is mentioned in it to that purpose although for other things Synodus Romana Synodus Auraicensis Narbonensis and very often Synodus Hybernensis oecur in it The Autors vsed by him that compiled it are S. Augustin S. Hierom S. Gregorie and Isidore which were in those midle times the chiefe almost the only Fathers of the Church that were read and sometimes Gildas and S. Patrike whence it may seem that it was collected by som Briton or Irishman and certain Canons of that Abbot Adomann spoken of by Bede are annext to it Neither did the Autor of it doubt but that he had all the Councells of credit that preceded him as his own testimonie in his Preface iustifies there after a short relation of the IV. most known and generally receiued of Nice of Constantinople of Ephesus of Chalcedon he addes Hae sunt quatuor Synodi principales fidei Doctrinam plenissimè praedicantes sed si qua sunt Concilia quae sancti Patres spiritu diuino pleni sanxerunt post istarum quatuor autoritatem omni manent stabilia vigore quorum gesta in hoc opere condita tenentur But to the same Volume is ioind another Collection with this inscription Incipiunt Pauca Iudicia quae desunt de supradictis in which the old Canons of Rome that is the Codex Romanae Ecclesiae or some other in the nature of it which was receiud into these Northern parts as a Director of the Church in the eldest times of Christianitie here as you may see in our ancientest Church-storie is cited and diuers autorities out of those Fathers and a few of the elder Councells But no denominated Pontificiall or Synodall is rememberd there for Tithes Only the Texts of Moses for Tithes first Fruits the first Born and such more are numberd together and then follows a Chapter de Diuisione Decimarum with this declaration Lex dicit ipsi Sacerdotes populi suscipiant decimas nomina eorum quicquid dederint scripta habeant secundum autoritatem Canonicam c. in the self same words as are before attributed to the Excerptions of Ecbert The exact age of those Statuta Synodorum appears not But they were collected about K. Athelstans time at least then was the Copie that remains of them writen as may be coniecturd alone if other reasons failed from the similitude twixt the Character found in them and that of the
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
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
Decretall afterward titled by the name of a CoÌ„stitution of the Lateran Councell then it happend in the denomination of the Statuts of Aide de Roy and Voucher made in 4. Ed. 1. euery of which are stiled by the name of Statutum de Bigamis yet only one Law de Bigamis receiud out of the generall Councell of Lions is among those Statuts and that is euen as much a stranger to the rest of the Constitutions bearing the same name with it as Pope Innocents Decretall was to the whole Councell of Lateran Howeuer it is most cleer let froward ignorance as it can continue to oppose the assertion that for CC. yeers at lest before about the time of the Councell of Lateran held vnder the same Pope arbitrarie Consecrations of Tithes with vs were frequent and practiced aswell of positiue right if wee may take that for right in things subiect to human disposition which generall consent of the state allowd as no man that knows what makes a positiue right can denie as of fact which because they are best conceiud of by the particular testimonies and precedents of them in the following Chapter manie shall be transcribed that are all except one or two in the Prouince of Yorke neither is it likely that in euery place here and by euery man the intent of that Constitution was suddenly obserued and perhaps also it was not so soon alterd in York Prouince as in this of Canterbury in regard that the Decretall was sent only to Canterburie Prouince of the time before that Decretall and taken out of the most choice and authentique moniments that may afford help to the disquisition of this point so little so not at all vulgarly or indeed any where publiquely discouered CAP. XI I. Arbitrarie Consecrations of Tithes before about the time of the most known Councell of Lateran by conueiance from the owner of all or part to any Church or Monasterie at his pleasure in examples selected out of moniments of infallible credit II. A Writ in the Register intelligible only from those arbitrarie Consecrations a like example to it out of the book of Osney III. The libertie of the Baronage anciently challenged to build Churches in their Territories Parochiall right to Tithes setled in Practice IV. Of Tithes of encrease in lands not limited to any Parish How by the common Law they are to be disposed of BEsides the many testimonies that may be had out of the Portions especially possessed by som Churches or Monasteries manie of which had no other beginning then from arbitrarie Consecrations made by owners of Tithes in two parts or third parts or otherwise at their pleasure to any Church or Monasterie the frequent memorie of Instruments of such Consecrations made according to the practiced Law of the time chiefly interceding from the yeer M. till some yeers after M.CC. of our Sauiour is to be principally obserued in this disquisition The originall moniments of those elder ages afford vs plentie of theÌ„ And in regard of the easier connexion and more compendious way of deliuerie we shall rather seuerally follow the singular courses of euery of the Chartularies or other moniments which tell vs of those kind of consecrated Tithes then dispose together euery arbitrarie Consecration according to the order of time The seuerall Titles of books whence we haue them shall chiefly direct in the generall order but neither shall the particular time of euery of these selected examples of Consecration be omitted I. The Chartularie of the Abbey of Abingdon shall obuiously haue first place In it in the time of K. William the second and Rainald Abbot occurres that Viuente praedicto Rainaldo Abbate trium Decimationum Ecclesiae huic facta est vna ab Herberto de villa sua Lakine appellata Henrici de Ferrarijs Milite scilicet frugum agnorum caseorum vitulorum porcellorum Quod Robertus filius eiusdem post patris mortem confirmans concedente Domino suo praedicto Henrico Abbendoniam venit pro patris sui suorumque salute praefatam hîc Decimationem perpetualitèr tradidit sibi fratribus suis germanis Huberto Stephano in his fauentibus etiam istis amicis suis videntibus Quirio de Moâ—nais fratre eius Hugone Roberto filio Aldulfi de Beâ—retuna Altera à Seswaldo de villa sua Hildeslea caseorum scilicet vellerum suarum ouium Quod haeres filius eius Frogerus post eum denotè confirmauit Quae vtraeque Decimationes luminaribus ministerijs Altaris Sanctae Mariae ab eo die specialitèr delegatae hucusque in hoc expenduntur Tertia à Rotberto cuius erat cognomen Marmiun à filio ipsius Helto de villa sua Henreda frugum omnium suae propriae lucrationis Sed post illos à Radulfo cognomento Rosel idem concessum And then follows Rosel's Charter to that purpose Ego Radulphus agnomento Rosellus concedo volo atque praecipio seruientibus meis vt segetes meas de Henâ—eth deciment ad ostium Granciae meae quae ibidem habetur ipsam Decimam rectè fidelitèr seruienti S. Mariae deliberent And this Tithe was in the sole disposition of the Almosner of the Abbey Out of IV. Hides also lying in the same Henred a consecration of the Tithe had been made before in the time of the Danish gouernment by a Dane and is thus there reported Tempore Danorum fuit quidam eorum qui possidens VII hidas in Henreda propter vicinitatem Abbendoniae amorem S. Mariae Virginis aliorum Sanctorum qui mihi digniter coluntur dedit Decimam de Dominio eiusdem terrae Ecclesiae S. Mariae Abbendonensi in eleëmosynam pauperum hoc est de IIII. hydis quam terram Helto Marmiun Deo Sancto Stephano Cadomi dedit Ecclesiae verò Abbendonensi Decima de Dominio praedicto in aeuum permansit Then follows a Charter of Henrie the first wherein all the grants of Lands Churches and Tithes made or thence after to be made by Alberique de Ver and Beatrix his wife their sonne Alberique and his brothers or by their Tenants to the Monasterie of Colme in Essex which was a member or as a Cell of Abbingdon and erected by Alberique their father are confirmed and in them two parts of the Tithe de omnibus rebus in the Mannors of Hethingham Belcheam Laureham Aldeham Duurecurt Bonecleide and Rodinges and half of the Tithe of Walde and Wadane are recited to haue been conueied to the same Monasterie Et dimidia Decima Deimiblanc de Cola Tertia pars Decimae Ranulfi magni this is dated XI Hen. 1. at Reding that is M.C.XI. And Faritius Abbot of Abingdon as it is further rememberd at Colme solemnly receiued inuestiture or seisin of euery of those and other possessions so granted by the hand of Picot Sewer to Alberique de Ver with the testimonie of his wife children and many of his Tenants And the Patent of Henrie
the first is there extant wherein tota Decima de venatione quae capta fuerit in Fo◠esta de Windesore is granted to the Abbey which was after confirmed by Henrie the second Richard the first and others In the same Chartularie about the beginning of the same Henry the Tithes of Bulhey of Cildestun are giuen to the Abbey by William of Sulaham in Hanney by Osbern and Turold of Offington by the Tenants there of Wekenfield by William of Wecenfield of Eton by Roger Fitz-Alured and diuers such are related and the words of the most obseruable passages touching them shall be here infered Anno V. regni Henrici Regis intrante saies the book Willielmus de Sulaham dedit Deo Sanctae Mariae Abbati Faritio Monachis in Abbendona Decimam villae suae quae Bulhea vocatur die videlicet Assumptionis eiusdem S. Mariae Eodem etiam die confirmauit donum de alia decima quam anteà dederat de villa Cildestuna quae ad haereditatem Leodselinae priuignae suae pertinebat ipsâ puellâ coram Monachis concedente donum cum ipso Willielmo cum matre suâ super Altare idem imposuit coram his testibus Abbate praedicto omni conuentu Iohanne fratre coniugis eiusdem Willielmi Humfrido eiusdem Milite Hugone Conred But that of Turold is thus exprest Similitèr Turoldus de eadem Villa that is Hanney dedit Deo Sanctae Mariae de Abbendona coram Faritio Abbate omni conuentu in Capitulo Decimam omnium suarum possessionum porcellorum scilicet agnorum vellerum sed Decimam Carucae suae tantummodò ita discreuit vt duas istius decimationis partes huic loco tertiam verò partem Presbytero sibi seruienti concederet hoc idem concedente confirmante vxore sua Hugulinâ filio suo Willielmo hanc donationem donauit anno V. Henrici Regis Here specially you see as well arbitrarie diuision as consecration of the Tithe by the owners grant And for the example of the Tithes of Offington the words of it are most obseruable also Eodem anno sayes the Monke that wrote it cum venisset Abbas Faritius in villam suam Offentunam vt opus Ecclesiae quod ibi lapideum à fundamento inchoauerat ad perfectum determinaret congregauerunt se homines sui ex eadem villa obtulerunt communi deuotione concessione Decimam suam totius villae eiusdem S. Mariae ipsi Abbati loco Abbendoniae ab illo in reliquum tempus Vt videlicet Abbas de suo proprio Ecclesiam eiusdem alacriùs construendo perficeret ipsi mererentur in fraternitate loci annumerari Hanc expetitionem cum Abbas audisset inquisiuit vtrum Ecclesiae eiusdem villae antiquitùs Decima ab illis hominibus daretur nolens scilicet eam sua rectitudine minuere pro alicuius donatione sibi suoque loco oblata dictumque est hoc esse moris villae vt a singula virgata Ecclesiae illi XXIIII Garbae pro Decima numeratae donarentur Quod sciens Abbas statuit ante ipsos homines vt sicuti ipsimet voluerant optulerant reciperet eorum Decimam ea determinatione assignatâ inter ipsum Abbatem Ecclesiam eiusdem villae scilicet vt tempore colligendarum Decimationum Abbas ipse mitteret Offentonam quem vellet de suis ipse reciperet à fingulis secundum singulorum possessionem rectam Decimationem post illam totam collectam de singula virgata illius villae tot manipulos Presbytero illius Ecclesiae tribueret quot superiùs diximus ei deberi reliqua verò Decimationis Abbati seruaret Here plainly no Tithe was parochially paid before this Graunt but only XXIV Sheaues of euery Yard Land which was now diminished also by the consecration of the true Tithe to the Abbey Then Willielmus de Wecenfeld Dedit suam Decimam ex omni sua pecunia S. Mariae Monachis in Abbendon de tribus videlicet Hidis in Wecenfeild duabus de Boxore excepta vna acra quae Ecclesiae de Boxore adiacet This was in 7. Hen. 2. And in the relation of the Tithes of Eaton granted to the Abbey by Roger Fitz-Alured it is added Et promisit quod cum Osmundo alijs suis hominibus de illa villa faceret vt ipsi de suo tenore similitèr Decimam Ecclesiae huic concederent So in 9. Hen. 1. Aldred Luured homines Ecclesia de Waliford dederunt Monachis huius Ecclesiae Decimas de omnibus videlicet suis pecoribus de agrorum suorum cultura in capitulo coram toto contentu And in the same yeer one Ralfe gaue them the Tithe of his Farme or Manor of Bradendene and assured them he would entreat Robert de Insula his Lord of whom hee held Bradendene Quatenus illius permissione concessu suo hoc confirmaret vt haec Ecclesia ipsius Decima donatione firmiùs in posterum potiretur The like gift occurres there made by Hugh Fitz-Wichtgar in 10. Hen. 1. of the Tithes of Bennaham And about the same time Gilbert Basset gaue for euer to the Abbey with his sonne Robert entring there into Religion the Tithe of his Land in Waneting to be employed ad vsum pauperum Not long after Hugo Dispensator Regis it seems Treasurer of the Household granted to the Abbey Suam Decimationem de omni pecunia tam de mobilibus rebus quam immobilibus de Manerio Spesholt quod de Ecclesia tenebat sua coniuge Helewisa fauente coram his testibus Poidras suo homine Anschitillo suo praeposito de praedicta villa multis alijs The like did Ralfe the Abbots Chamberlain grant out of two Hides in Steringford So one Iocelin and his sonne Randoll granted to the Abbey two parts of all kind of Tithes in possessione quadam quae Graua dicitur And one Norman when his sonne Eudo there took habit of Religion consecrated with him Decimam Dominij sui de Winterburne quam cui placeret Ecclesiae liberè donare poterat quae sic concessa sub manus sacristae redacta est And among other possessions of the Abbot and Couent confirmd by the Bull of Pope Eugenius the third in the yeere M.C.LII that is in XVII of King Stephen these Tithes granted are particularly reckoned in it as part of what they did in praesentiarum iustè canonice possidere so are the words of the Bull. Neither to other purpose are the words of the Bishops of Salisburie Ordinaries of the Diocese in their generall confirmations of Churches and Tithes to the Abbey These confirmations of theirs came diuers yeers after the Grants made by the owners and are at large extant in the Chartularies of the Monasterie The first that made any was Hubert who was consecrated Bishop in 1. Rich. 1. that is M.C.LXXXIX In the time of Henry the second through the procurement of Richard Sacristein of the Abbey one Giralin de
Curzun graunted to the Abbey Decimam XXX acrarum de Westlakinge quam parentes sui priùs concesserant ipse Altari sanctae Mariae concessit addens de Porcellis siue Agnellis aut Caseis aut rebus alijs quae Decimari solent Decimam quam priores sui minimè dederant Hanc verò donationem super Altare S. Mariae deuotus obtulit trium tantum acrarum Decimâ de XXX Ecclesiae de Waneting reseruatâ Then for Tithes in Chiltune it is there reported that in 2. Hen. 2. Nicholas Fitz-Turold gaue them to that Monasterie his whole Charter is recorded and so take it here for that part transcribed Notum sit praesentibus futuris testimonio huius scripti sigillo meo signati quod ego Nicholaus filius Turoldi de Estuna pro salute animae meae parentumque meorum pro eo quod licitum mihi esset ab Ecclesia de Abbendona coemiterium habere capellae meae de Winterburna concessi firmiter finaliter dedi praedictae Ecclesiae Abbendonensi singulis annis imperpetuum habendas Decimas terrae meae quam in Dominio meo teneo in villa Chiltune In blado scilicet ad ostium Grangiae meae suscipiendo in Caseis in Velleribus Agnis Porcellis in omnibus quae Decimari solent And at the time of the Grant it was by the Abbot Ingulph assigned to the vse of the poor and strangers that is to the Almosnerie as indeed most other of their consecrated Tithes were Which is yet to bee seen in the accompts of the reuenues of euery Office of the house Out of the Chartularie of the Abbey of Osney The Abbey being founded in 29. Hen. 1. that is in M.C.XXIX by Robert d'Oily High Constable of England in the Charter of the Foundation are giuen to it the Tithes of the Founders Mills that were neere the Castle of Oxford Decimatio Nicholai de Stodeham quam Fromundus a Chaplain mentiond in the Charter tenebat and that is iterated often in other Charters to the same Monasterie And after in the same Chartularie is a Catalogue of diuers Portions of Tithes belonging to the Abbey and as issuing out of the Demesnes of such as had encreased the reuenues of it with endowments of Tithes newly granted nor are they expressed with any reference to this or that Parish but only to the Demesnes and names of the Donors And then comes a confirmation of Richard Bishop of Lincolne within that Diocese Oxfordshire was till the later institution of a Bishoprique in Oxford wherein among the ancient possessions of the Abbey enioyed through their hauing Saint Georges Church in the Castle by d'Oile's gift two parts of the Tithes of all things quae Decimari solent in dominico horum Maneriorum videlicet Bercencestre Erdinton c. are confirmed to it Neither is the number of those Mannors there named vnder fortie Which way is it likely that the Church of S. George came to two parts of the Tithes of so many Mannors if not by consecration of the owners And indeed afterward is a transcript of a Charter of Robert d'Oily's that was aboue C.XX. yeeres before the Bishops confirmation to the Abbey wherein he giues three Hides in Walton and Terram de Twenti acre Decimam earundem terrarum pratum quod vocatur Brunmannes Mead cum Decima eiusdem prati where note the Land and the Tithe of the same Land is giuen which could be but a discharge of Tithes in the Abbey cum Decima de Northam Wiueleya Lincha omnium terrarum pratorum aliarum rerum Decimabilium quae sunt inter Castellum Oxoniae Heunteseyam aut Botleiam scilicet in Comitatu Oxoniae And then Duas partes Decimae de omni re quae Decimari solet de omnibus dominicis vtriusque honoris qui adiacent Castello Oxenefordiae videlicet de Hokenorton Swerefordia Bereford Wiginton c. with a recital of aboue fortie Townes and Mannors which are also in that confirmation long after made by the Bishop In the same Book Richard of Dodeford giues them in perpetuall right the Tithes de assarto bosci mei de Hecholthe cum assartatur excultus fuerit siue ego siue alius per me illum assartauerit excoluerit This seemes to be of about King Iohns time And one Hugh de Croftes grants them Decimas dominij mei de Wauretun de omnibus rebus quae Decimari possunt debent tenendas de Priore Monachis de Tedford imperpetuum sicut cartae vtriusque Monasterij inter eos factae testantur And this was in 3. Rich. 1. And a pension was yeerely payable for them to the Prior of Thetford by that clause of tenendas as appears in the confirmation made of the same Charter by William Bishop of Hereford You must know that the ancestors of Croftes had formerly giuen those Tithes to the Priorie of Thetford as is remembred there also Out of the Chartularie or Lieger-Booke of the Priorie of Gisburne or Gisburgh in the North-riding of Yorkshire In a Fine there of 23. Hen. 3. between Peter of Brus demandant and Iohn Prior of Gisburne tenant it appears that when Robert de Brus ancestor of Peter vnder King Stephen founded the Monasterie he by grant endowd it among other possessions with the Tithe of his demesnes of Lithun And in another of 26. Hen. 3. the Concord hath these words in it Et similiter idem Petrus concessit pro se haeredibus suis quod idem Prior successores sui habeant in Parochijs suis Decimam venationis suae haeredum suorum foenorum suorum vbicunque foenum falcabitur praeterquam in locis subscriptis scilicet in Parco sub Castro de Daneby in IV. Laundis in Foresta de Daneby scilicet in Launda de Souresby Eskebriggethwoyt Karlethwoyt in Launda sub Threlkeld in Haya de Skelton clausa ex aquilonali parte de Routheline in paruo Parco circa Castrum de Skelton in quibus locis nullas Decimas foeni habebunt That of the Tithe of Venison taken within the Parishes of the Priorie was confirmed in another Fine of 30. Hen. 3. leuied before the Iustices of Eire in Yorkeshire and therein also was further added Concesst etiam idem Petrus pro se haeredibus suis quod ipsi de caetero reddent singulis annis praedicto Priori successoribus suis Ecclesiae suae praedictae Decimas Molendinorum suorum in Parochijs suis existentium imperpetuum So that if the Mills were in Lease the Tenth of the rent was payable if in the hands of the grantor or his heires the Tenth of the multure and for true payment the Millers were by the concord of this Fine bound to doe fealtie to the Prior and his successors But I haue not seen an example of such disposition of Tithes of so late time few or none else I thinke exceed the yeer of
praesenti Carta mea confirmaui ita videlicet quod Richardus frater meus qui successit Geruatio Decano in personatu Ecclesiae de Culinges ad praesentationem meam successores sui reddent annuatim nomine Decimae illius praefatis Monachis dimidiam marcam argenti in crastino festiuitatis Sancti Andreae omni occasione remota dilatione c. it seems that the Parson of Culinges by the Patrons will herein declared was to haue the Tithe of Westbroke in kind and pay half a mark for it yeerly to the Priorie Sciant tam praesentes quam futuri quod ego Henricus de Malemeins concedo confirmo Monachis Ecclesiae sancti Andreae Apostoli Rouecestriae Decimam meam totam de Dominico meo eam vehendam quocunque voluerint transferendam cum ante hanc concessionem solum modo granum habuerint Praetereà dono eis concedo Decimam meam de vitulis porcellis Has concessiones confirmo illis pro amore Dei salute animae meae vxoris antecessorum meorum liberè quietè possidendas assensu haeredis mei voluntate vxoris amicorum meorum Teste c. And William Hachet confirms the moitie of the Tithes of his demesnes in Hainwold which his ancestors had granted to the Priorie to hold free sine omni molestia exactione and warrants them contra omnes homines sicut liberam eleemosynam nostram A like confirmation is from William of Srambroche of the Tithe of Srambroche granted formerly from his Ancestors to the Priorie William of Gurnay had giuen to the Priorie certain Tithes in Edintune which lying dispersed were not so commodious for the receipt of the Monks as of the Parson of the Parish thereupon Galiena grand-child to William declares that for that cause prouisum est statutum vt quaelibet illius Ecclesiae persona nomine Decimarum illarum liberaliter soluent annuatim praedictis Monachis Rouecestriae quinque solidos ad festum beati Andreae and so confirms both the gift of her Ancestor and this composition between the Parson of Edintune and the Prior and Couent Haimo filius Guidonis de Dudindale confirms in puram perpetuam eleemosynam the gift made by his ancestors Gerold his grand-father and Guy his father of all the Tithes of his land in Dudindale which was afterward confirmed also by his sonne and heire Iohn Hamelinus de Columbeirs establishes the perpetuall right of all the small Tithes of his Demesnes in the Chantor of the Priorie to whom by ancient possession of his Predecessors hee found they belonged when controuersie was about them twixt the Chantor and Ralf Parson of Frendesburie William the sonne of Thomas of Ysfield and all his coparceners confirme the Tithes of Ysfield formerly giuen by their Ancestors in puram perpetuam eleemosynam and further grant all small Tithes of Ysfield as of Lamb Calf Piggs Fleece and the like Et vt haec nostra donatio saies the Deed confirmatio inconcussa permaneat ego Willielmus omnium fratrum meorum voluntate pro omnibê° sigilli mei appositione corroboro which I note for the speciall kind of sealing with the eldest brothers seale only Henrie of Tuang confirms to them Decimam de Tuange quam praefati Monachi habent de dono Smalemanni aui meâ— tam in Tuange quam in Rundel These Grants or arbitrarie Consecrations were all diuers yeers before the end of M.CC. after Christ and for the most part in the times of Henrie the first King Stephen Henrie the second and Richard the first neither need you make doubt of the allowance of them by the Clergie of that time The Tithes so arbitrarily giuen by Lay men were not only possessed by the Priorie but were also afterward with others which are not mentiond in the Chartularie solemnly confirmed to them by the Archbishops of Canterburie with their Prior and Couent who supplied that which now is the Deane and Chapter for in 23. Hen. 2. vpon a controuersie arising about some Tithes challenged by the Priorie a confirmation was giuen by Richard Archbishop of Canterbury in which he grounds their right vpon the Deeds of the Grantors Cognito are his words iure praedictorum Monachorum per inspectionem instrumentorum suorum consideratâ etiam diutura illorum possessione c. and then he confirms to them all the Tithes granted to them within his Diocese and reckons by name seuerall Tithes in VIII Parishes most of which occur in those examples After which he confirms also their appropriated Churches with Tithes belonging to them For Tithes giuen with the Churches appropriated they had as belonging to those Churches but others seuerally consecrated were no otherwise in them then as if Rents or other profits had been granted out of lands to them A like confirmation was made by Baldwin in 1. Rich. 1. of all Tithes in particular that were formerly setled in them by Lay mens grants And another such was by Hubert Archbishop in 1. of King Iohn wherein he confirms to them omnes Decimas à quibuscunque Dei fidelibus vsque in praesens in Archiepiscopatu nostro illis collatas Out of the Chartularie of the Monasterie of Reding for Leonminster or Lemster in Herefordshire that was annext by Henry the first to Reding in the foundation Walter Clifford for the health of his fathers soule and for his wife and children giues Ecclesiae de Leonminstre Decimam de tota Hamenesca tam de dominio quà m de villanis s. de omnibus vnde Decimae dantur tam de viuis quam de mortuis But the Church of Lemster is called there the Mother-Church of the place This was about King Iohns time And Robert Malherbe giues to the same Church Decimam de toto dominio meo de Riseburie de omnibus vnde Decimae dantur tam de viuis quam de mortuis Out of the Chartularie of the Nunnerie of Clerkenwell Among many possessions confirmed to it by Henrie the second we find Ex dono Gaufridi Comitis de Essex Eustaciae vxoris eius totam Decimam totius victus procurationis illorum domus suae familiae suae and Ex concessioue Alexandri Prioris Monachorum Ecclesiae Sanctae Mariae Magdalenae de Stanesgate assensu conuentus Ecclesiae Sancti Pancratij de Lewes omnes Decimationes illarum de feodo de Clerkenwell cum pertinentijs suis. And Maurice of Totham and Muriel his wife grant to the Nunnerie Ius parochiale in perpetuo habendum in terris nostris quas habemus tenemus de Episcopo Londinensi iuxta Londoniam in hominibus in eisdem terris existentibus in certis terris nostris quae ad Parochiam pertinent And further that those Lands and his Tenants should be ioind Iure Parochiali to the Church of the Nunnerie Et quod homines illi reddant faciant quae Parochiani debent reddere facere suae Matri Ecclesiae And
videlicet VIII solidos per annum and the Tithe of other Rents Robert S. Iohn brother of this William giues Decimam omnium gabulorum de Walborton Decimam omnium gabulorum totius villae de Bernham quam frater meus Willielmus de S. Iohanne dedit mihi ad tenendum in seruitio Dei quartumdecimum Monachum in Conuentu Boxgraue quia priùs solùm tredecim fuerant Quod si quartusdecimus ibi defuerit Tustinus nepos Dunelinae vel haeres suus colliget tenebit eas vsque ad annum integrum si verò vltra dabuntur pauperibus viduis Orphanis duarum villarum Teste Willielmo de S. Iohanne Waltero Willielmo Capellanis Rogero Hai Thoma filio suo Rogero de Kaisnei And a confirmation is there also by William S. Iohn of the gift that is of the profits receiud by the Lord in mony or rent which lay indeed properly in the Lessors grant and therefore also William the Lessor had by another Charter granted those Decimas Gabuli to Robert to the same purpose which he expresses in his Deed of consecration to the Priorie the Lessor's grant to him the confirmation and his consecration were enough to setle this Tithe-rent in the Monasterie but cleerly this could not haue discharged any former right of Tithes in kind payable out of the Land The Churches of Warberton and Bernham and the rest before named with others were with the belonging Tithes appropriated to the Priorie but the Tithes alone of Thadeham and Kienor which they call Chienor were by grant from the Ancestors of the S. Iohns setled in the Priorie and neuer named with any Church as appears in sundrie Confirmations of them So also is Decima de Liperinges in the ratification of such Grants to them made about that time by Iohn and Seffrid Bishops of Chichester and Richard Bishop of Canterburie Of that Tithe of Liperinges see more within a few lines Sciant praesentes futuri quod ego Richardus de Tresgoz filius Philippi Tresgoz dedi concessi hac praesenti Carta mea confirmaui Deo Ecclesiae B. Mariae de Boxgraue Monachis ibidem Deo seruientibus pro salute animae meae vxoris meae antecessorum meorum vt missa pro anima mea vxoris meae pro animabus patris matris meae antecessorum meorum in praedicta Ecclesia de Boxgraue ter in vnaquaque septimana celebretur omnes donationes quas habent de donationibus Philippi patris mei antecessorum meorum tam in terris quam in Decimis magnis minutis in Manerio meo de Hamptunete Et insuper dedi concessi hoc scripto autentico confirmaui praedictis Monachis de Boxgraue omnes minutas decimas de praedicto Manerio meo de Hantunete scilicet in agnis in vitulis in pullis in porcis in aucis in lanis in caseis in pomis in fructibus in omnibus alijs rebus vndecunque Decimae Sanctae Ecclesiae spectant aut prouenire debent tam maiotes videlicet quam minores Et vt haec mea donatio concessio perpetuae firmitatis robur obtineat eam praesentis scripti testimonio sigilli mei munimine roboraui His testibus Roberto persona de Storhetune Stephano Capellano Philippo Bernhuse Willielmo Picoth Willielmo Purcaz Philippo de Perham multis alijs This was in the same time vnder Henrie the second Geffrey of Coleuill giues to the Priorie Decimam de Kienore de toto dominio meo in terris cultis incultis in Pomerijs in Piscarijs Molendinis in perpetuam liberam Eleemosynam saluâ tertia portione totius Decimae praefatae de Dominio meo quae ad Ecclesiam de Hidlesham pertinet cum tota Decima de vilanagio meo Et vt hoc firmiter teneatur sigillo meo confirmaui hoc scriptum his testibus Humfrido de Sartill c. Robert of Coleuill grants them Duas portiones Decimae Garbarum de toto dominio meo de Kienore in perpetuam liberam Eleemosynam ex donatione antecessorum meorum ijs priùs collatam Sciant praesentes futuri quod ego Radulphus de S. Georgio Agatha vxor eius Alanus haeres eorum dederunt concesserum Deo S. Mariae Monachis de Boxgraue Decimam de Liparinges in perpetuam Eleemosynam quam priùs dederat eis Basilia mater ipsius Radulphi Et ipsi Monachi debent facere habere Ecclesiasticum seruitium in Ecclesia sua de Ichenora vel in Capella sua de Briddeham hominibus praedicti Radulphi morantibus apud Liparinges in singulis Hebdomadis vnum seruitium pro anima Basiliae pro cunctis fidelibus defunctis donec praedictus Radulphus vel haeredes sui ibi fecerint quoddam Oratorium in quo vnus de Capellanis Monachorum faciet praedictum seruitium in Hebdomada Testibus Ranulpho Capellano Ricardo Capellano de Boxgraue Roberto Legato alijs multis This was about King Iohns time Out of the Chartularie of S. Neots or Needs in Huntingdonshire Omnibus Sanctae Matris Ecclesiae filijs Seherus de Quincy salutem Sciatis me concessisse confirmâsse Monachis S. Neoti Decimationes quas antiquitus habuerunt de terra mea in Grantesete s. totam Decimationem dominiorum quae fuerunt Roberti Fafiton in eadem villa tam terrarum quam virgultorum His testibus c. A like Instrument of Confirmation from him is of two parts of the Tithes of Suho and of a third part of the Tithes of Einseburie which had been likewise formerly setled by arbitrarie consecration in the Monasterie This was about the fourth yeer of King Iohn and was confirmd by the Bishop of Ely Sciant praesentes futuri quod ego Albinus Fafiton concedo per hanc Cartam confirmo Deo Ecclesiae S. Neoti fratribusque meis eiusdem Ecclesiae Monachis Decimam illam quam Robertus Fafiton auus meus Eustachius pater meus eis dederunt concesserunt s. de terris pecunijs totius dominij mei in Grantesete in Suho in Weston duas partes Decimae iuxta Ecclesiam de Grantesete vnam mansuram quam pater meus cum eadem Decima eis concessit c. Hoc donum factum est anno quo Rex Angliae Henricus secundus duxit exercitum apud Tolosam Sciant praesentes futuri quod ego Galfridus filius Suani Hathewis vxor mea Adam filius noster concessimus Deo Ecclesiae sancti Neoti Monachis Becci this Priorie was a Cell of the Abbey of Bec in Normandie ibidem Deo seruientibus pro salute nostra duas partes Decimae bladi omnium rerum quae Decimati debent illius Hydae terrae in Croxton quam tenuit Adelwoldus Flammangus auus praedictae Hathewis quas ipse dedit Ecclesiae S. Neoti in perpetuam liberam Eleemosynam T. c
Willielmo de Petrep Adam de Puninges Guidone de Mercecurt Willielmo filio suo Willielmo de Droseio The intent of this was to setle the Tithes of all his reuenues wheresoeuer through England in the Priorie in kind of his demesnes in mony of his Rents neither did he grant only the Tithe of what he then was seised of but of all future purchase also and improuements that liuerie of seisin as it were made vpon the Altar by the Haire of the head both of the Grantor and of his brother is not without other example of those ancient times wherin both Tithes and other possessions were solemnly consecrated either by haire or a horn or a cup or a knife or a candlestick or whateuer that might really be deliuered on the Altar For the forme of conueiance in perpetuall right both to the Church and Laitie was to giue into the hands of the Grantee or Feoffee some such thing as at this day a Twig or a Turff is in feoffments or as in Institutions according to the Formularie of the Court of Rome a Ring is to be giuen and the Altar was vsually made the place of such a liuerie But in the examples of cutting the haire especially in this where Henrie Bishop of Winchester doth it perhaps more was vnderstood then only a liuerie vpon the grant had it not also some reference to the ancient ceremonie of cutting the haire at a Confirmation which was vsually done by the Godfathers as may be collected out of that of Adreuald where he speaking of Charles Martell saies that Pepigit hic foedus cum Luitprando eique filium suum Pipinum misit vt more Christianorum fidelium eius capillum primus attonderet ac pater illi spiritualis existeret I dare affirm nothing with confidence herein But it is specially obseruable that this Charter of the Earle of Surrey was not it seems made without great aduice as well as testimonie both of Clergie and Laymen wherto you may adde the iudgement of Theobald Archbishop of Canterburie in his reprehension of Ala Countesse dowager of Warren and Surrey for not payment of the Tithes of her dowrie according to the Grants of the Ancestors of her husband The original of the admonition to her speaks thus T. Dei gratia Cantuariensis Archiepiscopus Anglorum primas Apostolicae sedis Legatus Dilectae filiae suae Alae Comitissae Warennae salutem peruenit ad aures nostras religiosorum fratrum Lewensis Ecclesiae Monachorum stupenda querimonia quam cum ipsi ex antiqua donatione Comitum Warrennae videlicet Aui patris Willielmi viri tui sui ipsius etiam antequam Dotem tuam consecuta fuisses de omnibus Dominijs Comitis Decimationem Denariorum semper inconcusse tanquam Ecclesiae suae dotem possederint tu post perceptam dotis tuae inuestituram eiusdem fratribus ipsam Decimationem quae ad Dotem tuam spectabat subtraxeris Quod si ita est vehementèr admiramur cum eorum quae Deo Ecclesiae suae in eleëmosynam collata esse noscuntur nihil doti tuae vendicare debeas nec possis Crudelen est sacrilegio proximum quod super diuinum Altare semel deuote oblatum est iterùm repetere ad secularia transferre proindè tibi salubritèr consulimus in Domino admonemus quatenus sicut vis ius tuum tibi à Deo liberè conseruari ita ius suum cum integritate Monachis relinquas nullatenus datam eis denariorum decimationem dotis tuae retineas alioquin eis in iustitia deesse non poterimus cuius debitores omnibus existimê° Although he speaks only of the Decimatio denariorum yet in regard that he mentions it with de omnibus Dominijs Comitis it cannot be well vnderstood otherwise then of all the Tithes of the Earles possessions according to the former grant Richard de Muchegros about King Iohns time confirms to the Abbey of Persore two parts of the Tithes which was wont to be paid to it out of his land of Wlhaueshulle tam bladi quam lini faeni exceptis linis Curtilagij mei de Dominico meo de Wlhaueshulle as also the third part of the Tithes of his Tenants there and further grants them Duas partes decimarum bladi de omnibus assartis meis ibidem de nouo factis de omnibus assartis per me vel per haeredes meos in posterum faciendis c. this is sealed the seale is circumscribed with ✚ S. Richardi de Wlhaueshule W. Prior of Lewes in Sussex giues in 44. Hen. 3. foreuer to the Priorie of Southwark Decimas quas habuimus de Dominico Henrici de Holeghe apud Reygate reseruing yeerly two shillings and six pence to be paid for them to the Sacristein of the Priorie of Lewes How could this Tithe haue been in the Prior of Lewes to haue granted without a precedent consecration from Holeghe or some other from whom he had deriud his estate Willielmus Dei gratia Wintoniensis Episcopus Stephano Archidiacono omni Clero Surreiae Baronibus saluâ—em benedictionem Notum sit vobis quod Siwarduâ— de Ealdestede venit me praesente ad Sudwerchiam ibique super Altare diuina praeuentus gratia obtulit Decimam de Hludebrake Deo eiiusdem genitrici Virgini Mariae Canonicis ibidem Deo seruientibus perpetualitèr hoc meo consensu Quare iubeo ex parte Dei mea ne quis eam retineat vel ab eadem loco auferat vel possidentes illam perturbet Si quis vero citra hoc praeceptum quicquam inde facere praesumpserit perpetuo anathemate feriatur Cuius rei testes isti sunt Henricus de Twin Stephanus Archidiaconus Liuingus de Coleces Canonicus Rogerus Canonicus Helias Dapifer Iohannes Capellanê° Richerius Vitalis de Wicford Gozo Clericus de Micheam Oswardus Monetarius Walchelinus This was in the time of Henrie the first VVilliam Giffard being then Bishop of Winchester the seale remains to it VVillielmo Dei gratia Norwicensi Episcopo Archidiaconisque suis de Sudfolc omnibusque sanctae Matris Ecclesiae filijs Galfriduâ— filius Roberti vxor sua Anneis in Domino salutem sciatis nos concessisse Ecclesiae Apostolorum Petri Pauli de Gipeswico Canonicis Regularibus ibidem Deo seruientibus in perpetuâ â—lcëmosynâ Decimam molendini de Hagenford scilicet VIII solidos annuâ—â—im duos ad Natiuitatem Domini duos ad Pascha duos ad festiuitatem S. Iohannis duos ad festiuitatem Sancti Michaelis dimidiam marcam argenti de Fachendune Decimam foeni omnia quae habent infra villam de Broches extra ad eam pertinentia tam in terris quam in Decimis redditibus in omnibus libertatibus datis praedictis Ecclesiae à praedecessoribus parentibus nostris c. Vnder King Stephen it was made and hath a seale annext Out of an Originall Charter of K. Stephens made to
Iohns time and that before the Popes Decretalls or other autoritie had taken away the Lay-mens challenged libertie of granting Tithes seuerally according to the former example And the rather might that coniecture hold because also the Sigle expressing the Bishops name is H. which by all likelyhood denotes Hugh Archdeacon of Wells being L. Chancellor to King Iohn and Bishop of Lincolne But it may be also that it was had of later time and at the suit of Henrie of Lexinton made Bishop of Lincolne in 38. Hen. 3. and that after Parochiall right was more setled For notwithstanding the setling of it and making Tithes then payable de iure communi to the Parish-Rector yet it is certaine that the former Grants what through generall Confirmations from Rome what through the Lay mens standing vpon their Patronages of Tithes and vpon the Grantees acknowledgement of their first deuotions in such Consecrations still continued and were subiect in case the Aduocatio Decimarum might come in question to such a Prohibition vntill some alteration was therein made as anon shall be shewed where wee speake of the ancient vse of the Writ of Indicauit But of what time soeuer the Writ was it is plain that the ground of it must come from that vse of arbitrarie Consecrations of Tithes which seuerally also as in it is supposed made sometimes a kind of Benefices that might be collated at the will of those who were owners of the Land whence the Tithes were payable How could Tithes seuerally be collated by any Grandes but from such originall examples as are alreadie copiously deliuered A like precedent of a prohibition I haue seen 7. Ed. 1. which because it so confirms the ancient purpose of that in the Register shall be here at large deliuered Edwardus c. Archidiacono Wilteshyr eius Commissarijs salutem Cum dilecti nobis in Christo Abbas Conuentus de Osney ex collatione progenitorum nostrorum Regum Angliae percipiant percipi debeant ipsi praedecessores à tempore collationis illius semper hucusque percipere consueuerint duas partes Decimae garbarum prouenientium de dominicis terris Edmundi Comitis Cornubiae in Harewell quorundam tenentium suorum eiusdem villae in subuentionem sustentationis Capellanorum Clericorum in libera Capella nostra S. Georgij in Castro nostro Oxoniae ministrantium Rogerus de Draytona Persona Ecclesiae praedictae villae de Harewell clamans praedictas duas partes ad eandem Ecclesiam suam pertinere trahit ipsos Abbatem Conuentum inde in placitum coram vobis in Curia Christianitatis sicut ex relatu plurium accepimus Quia verò praedictum placitum tangit nos Coronam nostram dignitatem maximè cum consimiles decimas in pluribus Dominicis nostris conferamus etiam plures Magnates regni nostri consimiles decimas quarum collatio ad nos ratione custodiae deuolui solet similiter conferant in Dominicis suis etiam quia cognitio super iure patronatus huiusmodi Decimarum ad Curiam nostram pertinet tibi vel vobis prohibemus ne placitum illud teneatis in Curia Christianitatis T. meipso apud Wodestoke Octauo die Febr. anno regni nostri septimo Here is plainly vnderstood whole Benefices of only Tithes to be collated by the King and diuers of his Baronage as the Tithes of the Kings Garden in Windesore are in record collated by Henrie the third and other like sometimes occur Neither is that Canon of the Councell of Westminster held vnder Hubert Archbishop of Canterburie in 2. Iohan. R. from any other originall to be interpreted then from those common conueiances and grants of Tithes and Church liuings generally by Lay men to Monasteries The words are Lateranensis Concilij tenore perpenso decernimê° ne fratres Templi vel Hospitalis siue quicunque alij religiosi Ecclesias vel decimas vel alia beneficia Ecclesiastica sine Episcopali autoritate de manu Laica recipiant dimissis etiam quas contra tenorem istam moderno tempore receperant c. For howeuer that in the Councell of Lateran be interpreted I enquire not how well of Tithes only infeodated into Lay hands yet in this Kingdom where those infeodations were not or were very rare whereof anon more how can it be well vnderstood but of new Grants or arbitrarie Consecrations of Tithes as well not before in esse as of others conueid by Inuestiture of Churches But touching those conueiances of Tithes by Lay men see more in the XIII Chapter where we speake of Infeodations III. Out of those examples of Conueiances and arbitrarie Consecrations of Tithes being but a few and as an essay only of the multitude of them which might be found in the Lieger books of other Monasteries may easily be collected the truth of those assertions in the old yeer books which haue without desert been taken for falshoods grounded only vpon ignorance By the practiced Law cleerly euery man gaue the perpetuall right of his Tithes to what Church he would although the Canon Law were against it whereof also notice it seems is sometimes taken in those conueiances which haue the words of Quae decimari debent as if they had said Tithes of all things which by the Canon Law ought to be tithed or Quae decimari debent more Catholico as the words are in a Charter of about Henrie the seconds time of Gilbert one of the Earles of Hertford to the Priorie of S. Marie Oueries in Southwark of the Tithes of Capefeld And it is like enough that according to the recitalls of those Decretalls noted in the former Chapter in some places deuotion had bred an obedience to the Canons in this point but that it was generall through the Kingdome is most false and whateuer the Pope wrote from Rome we know the truth by a cloud of home-bred witnesses But also those words Decimari debent or solent so often occurring may be vnderstood of such things as vsed to be tithed when Tithes were arbitrarily paid as among the Gentiles or Christians he that offers de ijs quae offerri solent intimates not so much any necessarie dutie acknowledged by him as a custome of offering such things when offrings were arbitrarily made And although in the book of Domesday it be specially found of one Stori an ancestor of Walter of Aincurt that he might sine alicuius licentia facere Ecclesiam in Darby and Notinghamshire in sua terra in sua soca suam decimam mittere quo vellet as if it had been his singular prerogatiue in his possessions of Graneby Mortune Pinnesleg and other Mannors yet was that libertie or prerogatiue aswell of building Churches as arbitrarie conueiance of Tithes not alreadie consecrated either by deed or prescription common it seems to all Lords of Mannors or large Territories vntill about the time of K. Iohn For that of Tithes the
in a hand of about Henrie the fifth in the Booke of Osney which would as well giue light to the course of Arbitrarie Consecrations before largely opened as to these Infeodations if it were of sufficient credit but you shall first haue it compendiously deliuered and then iudge of it This title is put to it Qualitèr Laici ad id priuilegium peruenerint quod locis Religiosis illas Decimas conferre possint Then sayes he that writes it he had heard from a good Ciuill and Canon Lawier that had been present at the Disputation of the point in a case happening between a Religious house and a Parson for Tithes in the Parsons Parish who claimed them iure communi that the Aduocat for the Religious house being put to make a speciall title against the Parsons common right told the Court a long storie of Easterne holy Warres about Pipins time and interposed somwhat of Charles Martell and concluded that the Pope and the Church euery where graunted in reward to the Christian Princes for their Barons Knights and Gentlemen that spent their blouds labours and estates in those Warres the priuiledge of arbitrarie disposition of the Tithes of their lands by reason of which Graunt they afterward made not only Arbitrarie Consecrations of them but also Infeodations into Lay hands according as the common opinion among the Canonists is too confidently receiued at this day Then he tells vs that before rememberd of the Tithes in Bampton and cites some texts out of the Decretalls that touch Infeodations Next he relates that among the Princes of the holy Warre about Martell and Pipins time the Duke of Normandie was a speciall one whence hee had also that priuiledge touching Tithes pro se ac suis as the words are And lastly to bring it into England hee thus concludes Et cum Dux Normanniae Willielmus ad conquisitionem Angliae venisset quidam Miles eius Robertus d'Oylleye nomine malens suas Decimas Deo commendare quam contra naturalem Ecclesiae consuetudinem ipsis vti eas Ecclesiae S. Georgij quam in Castria Oxenford construxit contulit Et posteà ad Monasterium Osney per Diocesanum Capitulum Lincoln ac etiam per Aduocatum Canonicè deuenerunt But it all tasts of nothing but ignorance For what touches Martell and his time generally enough alreadie is said And see but what a bold ignorance here was to tell vs that the Duke of Normandie was one of the greatest personis Regum exceptis as his Language is that went in the holy Warre in succursum Ecclesiae Romanae in those times of Pipin and Martell I would he durst haue told vs also who had then been Duke of Normandie Neither that title of Dignitie nor that name of the Countrey were till about CL. yeers after Martell at all known The Territorie being then vnder the French Kings who long after gaue it to the Normans and erected it into a Dukedome Indeed the Duke of Normandie had good place in the later holy Warres about M.XCV. but did not that make this Aduocat say that the Duke of Normandie was a speciall Prince in the other also of Martell's time Such of the later midle times stand not much vpon the mingling of Stories that differ in themselues euen many whole ages Besides he tells vs of strange Princes names of the East that made the Warre against the Church Plainly the most pretended cause of the rest that erre herein as much as hee doth is the Saracenicall Warre in Martell's time and that out of Spain not from the East And had it been so vnder Martell's time as it is vsually affirmd what had that been to England But you see his prouidence for that matter where he deriues it from the Duke of Normandie But what though there had been some such Duke of Normandie whose Successor had afterward either conquered or enherited England had therefore the old supposed priuiledge of retaining or disposing of Tithes been thence communicated to his subiects of England and that to the losse of the Church here that neuer could haue gotten good by the supposed cause of the priuiledge All the Canon and Ciuill Law that the Aduocat had could neuer haue proued such a consequent It will still remaine most probable if not cleere that what Infeodations were in England had their originall as well out of the right of arbitrarie disposition of Tithes challenged by the Laitie without the grant of the Pope or Church as out of Compositions or Conueyances from the Clergie according as in other States For no sufficient Storie no credible Moniment no Passage or Testimonie of worth can iustifie that generall right of retainer or disposition to haue been giuen by the Clergie or Pope vpon any cause whatsoeuer though the Canonists and others that follow them cry against it vsque ad rauim The vse of Infeodations before those later holy Warres we haue alreadie shewd And that no vse of them could be about Martell's time is not lesse apparant by what is also before deliuered But beside this blind testimonie of the ground of Consecrations or Infeodations for England especially you may take that as it is also of Lindwood who thus speaks touching the Portions which Religious houses had Hae Portiones saith he potuerunt peruenisse ad locum Religiosum de concessione etiam Laici cum solîus Diocesani consensu de Decimis vel prouentibus quas Laicus talis ab Ecclesia alia habuit in feudum ab antiquo according to that in tit de his quae fiunt à Praelatis sine ass cap. c. cum Apostolica And hee addes that this is only true if those Tithes were infeodated before that Councell of Lateran of MC.LXXIX And then concludes with Nam ante illud Concilium bene potuerunt Laici Decimas in feudum retinere eas alteri Ecclesiae vel Monasterio dare Non tamen post tempus dicti Concilij For his interpretation of the Councell enough before towards the ends of the VI. and X. Chapters But doth not Lindwood here suppose ancient Infeodations of Tithes at least created by Churchmen in England Doth he not thence fetch the originall of Portions belonging to Religious houses in England commonly though he writ as a Canonist yet he addes the speciall custom of England if he speak of any Canon Law which he thinks had not place here but he excepts not England in this but implies it therefore doubtlesse he supposed a common vse of ancient Infeodations among our Ancestors but I doubt he had not better ground for it then what he found in others of his profession that had rememberd the frequent vse of Infeodations in other States before that Councell and he so applied it equally to his own Countrie and with them takes the Infeodations to haue had originall only from the Grants of Church-men therefore I value his testimonie here but as of a common Canonist and not sufficient to satisfie vs touching our
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
Molendinis de Limeric tempore Ioannis Regis Patris nostri ante guerram motam inter ipsum Barones c. But it may be also that these Enquests or Returns made of the Title to Tithes by the Shrife were only in case where the Tithes increased out of the Kings Demesnes or perhaps immediat Tenancies The examples seem not to go further and in 6. Ed. 1. a Petition was exhibited in Parlament by one Piers a Chaplain of the Earle of Sauoy against the Prior and Couent of Lewes for a Tithe giuen him by the Prior and Couent in the Parish of Westun in the Diocese of Ely whereof another grant had been afterward made by them to one Richard de Meuton and Piers beseeches the King to send his writ to the Shrife of Cambridge to put him in possession but this answer is indorsed Rex non intromittit se de hijs quae talitèr spectant ad forum Ecclesiasticum sed prosequatur Ius suum versus Clericum qui tenet Ecclesiam coram Ordinario Here was an expresse exclusion of the Temporall iurisdiction in such a case where an originall Writ or Commission was commanded to setle or inquire of the right of Tithes that toucht only common persons But wheneuer through such means the title appeared vpon record I vnderstand not why a Scire facias might not aswell be issuable although I haue not met with an expresse example of that kind as in the last course that is vpon the title appearing in Patents of the King or his Ancestors V. For that second ground of Writs of Scire facias which we suppose to be Fines leuied of Tithes why was it not as likely that vpon such Fines leuied Writs of Scire facias should lie as vpon any others of Lands or Rents and that Fines of the right of Tithes were in the Kings Courts anciently leuied is manifest not as I remember vpon Writs of Couenant which yet may for aught I know at this day be brought in the temporall Court for spirituall Tithes in regard no Tithes but damages are only to be recouered but chiefly in Writs of Right of Aduowson For example In Fin. Trinit 10. R. Iohannis Wilt. apud Windlesore coram ipso Rege Simone de Pateshulle Iacobo de Poterna Henrico de Audemero Iusticiarijs alijs Domini Regis fidelibus tunc ibidem praesentibus vpon a Writ of right of Aduowson brought by Ascelina Abbesse of Wilton against Henrie of Abeny for the Patronage of the Chappell of the greater Wicheford the concord is that the Abbesse grants it to him in Fee sauing a pension of two shillings yeerly to the Church of Neweton being a Prebend of Wilton Et pro hac recognitione quieta clamatione fine concordia idem Henricus remisit quietum clamauit de se haeredibus suis praedictae Abbatissae Ecclesiae sanctae Edithae Virginis in Wilton eiusdem loci conuentui all his right in certain Lands recognouit concessit omnes Decimas de Dominico suo in maiori Wicheford esse pertinentes ad praedictam Ecclesiam de Neweton quae est Praebenda de Wilton sicut eas habere solet excepta Decima bladi proueniente ex viginti acris terrae quas persona praedictae Capellae elegerit de Dominico ipsius Henrici quam Decimam persona per Henricum praedictum vel haeredes suos ad praedictam Capellam de Wicheford praesentata admissa per visum personae quae praedictam Praebendam de Niweton habuit vel per visum balliui eius debet recipere in autumno sicut ab antiquo recipere consueuit The record is worthy of speciall obseruation And in the Leiger book of the Priorie of Merton in Surrey a Fine is of Pasch. 12. R. Ioh. before the King and the same Iustices between William de Cantelupo Defendant and Walter Prior of Merton vpon the right of Aduowson of the Church of Eyton wherein it is agreed that the Chaplain of the demandants in Eyton shal not take à parochianis eiusdem Ecclesiae nec in Decimis nec in Oblationibus nec in Confessionibus c. but leaue them all to the Parish Church of Eyton and in this some may as in the other note the pretended interest of the Patron in disposition of any of the Reuenues of the Church which anciently claimed while Inuestitures continued was not as yet omitted in these Legall proceedings or instruments that is Fines which are of greatest curiositie and according hereto is a Fine of 7. Rich. 1. leuied between the Prior of Stanes and Alice Hopton of the Aduowson of the Church of Cheklegh in Staffordshire where Alice as Patronesse grants to the Priorie among other things Omnes Decimas villae de Northmankote in perpetuum quae est de eadem Parochia that is of Cheklegh and in the Chartularie of Gisburn in a Fine of 23. Hen. 3. between Peeter de Bruis plaintif and Iohn Prior of Gisburn in the Prouince of York defendant In droit d'Aduowson Peeter grants vt ius suum omnes Decimas superscriptas quas c. The like also doth he in a Fine of 26. Hen. 3. there transcribed and in 30. Hen. 3. also of which more particular mention is before made VI. But for Writs of Scire facias brought vpon the third ground that is in Case where the title appears vpon record in Patents made of the Tithes from the King or his Predecessors take this speciall example of 17. Ed. 3. A Writ was directed to the Shrife of Essex relating that Maude Quondam Regina Angliae granted to the Deane and Canons of the Kings free-Chappell of S. Martins in London the Churches of Witteham and Chersinges Cum Capellis Decimis c. and that they were thereof and of the Tithes of Witteham and Cheresinges seised till 16. Ed. 2. and that since the Abbot of Saint Iohns of Colchester took from them two parts of the Tithes c. Et quia nos omnia singula iura liberae Capellae nostrae supradictae manutenere volumus tenemur ea quae substracta fuerint siue iniustè occupata reuocare tibi praecipimus quod scire facias nunc Abbati quod sit in Cancellaria nostra in quindenam S. Iohannis Baptistae prox futurum vbicunque tunc fuerit ad respondendum tam nobis quam praefatis Decano Capitulo de vsurpationibus occupatione detentione dictarum duarum partium decimarum praedictarum ad ostendendum si quid pro se habeat vel dicere sciat quare dictae duae partes Decimarum earundem eisdem Decano Capitulo adiudicari non debeant ad faciendum ad recipiendum vlteriùs quod curia nostra considerauerit c. teste c. apud Westmonast 17. Iunij anno regni nostri 17. Per Regem Consilium This Writ was returnd with Scire feci by H. Garnet Shrife of Essex and by consent of the parties it is
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
their children also and in the gouernment of the King that was declared by Samuel it is said He will take the tenth of your Vineyards and giue it to his chiefe Seruants and to his Officers But where shall you find the least mention of Infeodations made of such kind of Tenths or any touch of them in the complaints of the Clergie against Infeodations and withall nothing hath beene of lesse practice then giuing away in perpetuall right any such reuenue due to any Crowne or State only by speciall right of Supreme Maiestie But admit these had their originall this way or any other as you will vnlesse they can be proud to haue been made of the verie selfe same Tithe which is due to the ministring Priesthood which can neuer been downe sauing only where the infeodated Tithe was at first receiud and possessest by the Church by force of the Law of Tithing not by arbitrary Consecration in which case also it is considerable whether a Lay man could be at all capable of the fructus only of them if due by an immediat expresse Law of God I see not how they shuld more preuent Parochial paiment to the ministring Priest then the paiment of rents in Terragies or quantities in Corn vnder the name of tiths to landâ—ards shuld diminish the right of the spirituall Tithe which way had either such a fift as was Pharohs or the tenth spoken of by Samuel to be taken by the King touched the Tithe due by a superior or former law to the Leuitical Priesthood both might wel haue stood together might not so nay should not so Tithes remain paiable froÌ„ the possessors of the nine parts to the Euangelical Priesthood notwithstanding infeodations or any reseruations whatsoeuer if they be due by a superior or former Laws especially if due by the Morall Law and that Law should bee vrged rather against the Tenants of the Land then against the Pernors of the feudall Tithes And that common distinction of the Canonists of ius percipiendi fructus Decimarum here is a mere shift and nothing satisfies vnlesse they could also teach vs how the fructus were the verie selfe same alwaies in Infeodations and that they were deriued from a ius percipiendi in some Clergie man Perhaps too much of these things which are litle or nothing applicable to England where we haue scarce any example of a Tithe that was in its nature feodall other then in such as were taken from Monasteries by the Statuts of Dissolution and may still be calld as originally by the name of Consecrated or Appropriated Tithes although now Infeodated But thereof see the XIII Chapter To the 5. § that speaks of Exemptions for matter of story may be added that of the Hospitalars After their exemptions giuen them with the two other Orders about the yeer MCLX. in the Eastern parts they tam Domino Patriarchae quam caeteris Ecclesiarum Praelatis multas tam super Parochiali iure quam super iure Decimationum caeperunt inferre molestas c. and receiud such as were excommunicat for non-paiment of them De praedijs autem suis vniuersis redditibus quocunque iure ad eos deuolutis omninò Decimas negabant Where by the way note that in this Eastern Church which after Hierusalem was recouered and made a Kingdome subiect to Western Princes should haue been fashiond according to the Canons of the Western Church Tithes were now appointed paiable although no authentike Law of that old Eastern Church once mentions them But both in this and other things the people of that Church were stil notwithstanding the new Kingdome of Hierusalem possessed by Europians and the Popes authority extended to them most obstinate refractarie against the policie and Institutions offerd them either in command or example from the Western After the Opinions of the age in the 6. § the Laws both Imperiall Prouinciall and Pontificiall follow in the 7. vpon which let it bee considerd whether a consecration of Tithes were so made by the power and law of the Church and Common wealth or both in seuerall Territories according to the Laws extended that no prophanation or detaining them or any part of them might afterwards be lawfull and the like should be carefully thought on in the 1. § of the VII Chapter and in the VIII Chapter which hath the Lawes of England for the same purpose The force of the words of all those Laws the Autoritie that made them and the Territories to which they were extended are especially to be obserud by euerie one that here looks after humane positiue Law For manie talke and write of that and tell vs here of ius Ecclesiasticum at least if they faile in their Arguments from Ius diuinum but whence that Ius Ecclesiasticum is and where or when made they little enough know For what hath a Prouinciall Councell of one Nation to doe with another What hath the Imperialls of the old French Empire to doe with England Nay what hath the Popes Decrees to do here But because there was a time when their autority was more largely acknowledged their Decrees that bred much of what now iustly continues in some States which also iustly now denie their autoritie remaine most obseruable and wee haue giuen them in their places Of the VII Chapter IN the last CCCC yeers beside the establishment of Parochiall right in Tithes and the various Opinions touching the immediat Law whereby they are due the Practice of most Christian Nations as it might be had out of their Laws and Lawiers is faithfully related And to what is there brought adde that of the Law of France wherby the right of the Tithe of all the Minesis claimd by the King as a droit de Souerainte according as it is declard by two Edicts published of Charles the IX and verified also by the Parlament of Paris according also the old Imperiall Law was But through all here you may see that the Customes Statutes and Common Laws especially of France Italie and Spaine and of most other if not all States permit not so fauourably for the Clergie an exaction of them or suite to be so generally brought for them as the Laws of England did before the Statutes of Dissolution of Monasteries and still do if you exempt those cases which are founded only vpon those Statutes What Statute or practice is in this Kingdome that equals the Carolines of Spaine or the Philippine of France which are generall Laws for Customes quatenus Customes de non Decimando And whereas England vntill the Dissolution had scarce a continuing Infeodation into lay hands of which see the XIII Chapter nor could a lay man by the common Law before the Dissolution make any title to Tithes as to lay inheritances in other Nations Tithes infeodated haue been from aboue D. almost DC yeers frequent in vse and still continue legally in lay hands and are subiect wholly to Secular Iurisdiction as
of the rest as I could haue translated it and I thinke the iudicious Searcher desires rather the originall tongue whateuer it be then a translation Therefore I suppose if he haue not studied the Laws or otherwise know it he will rather take some minuts pains then blame me for not turning it and howsoeuer to diuers peeuish Ignorants out of their daintie stomachs and a pretence of nothing but the more polished literature it may here seem barbarous and distastfull the truth is it was the plain and genuine French of elder time spoken in the English Court and now lothed only by such a know not at all how to iudge of it nor vnderstand the originall whence it came to be and remain so with vs. I remember that old Father Gregorie of Neocaesarea whom they call Thaumaturgus speaking of the old Imperialls of Rome as they were in their Latin which both then was and now is a most accurat and polite phrase commends them for that they were indeed in an admirable and stately language and in such a one as fitted an Imperiall greatnesse 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 saith hee Yet to me it is crabbed and troublesome and so hee saies he was euer driuen to thinke of it yet in his youth he was put to studie them at Berytus and was taught Latin to that purpose If to so great a man that curious language could seeme no pleasanter when he studied it it is the lesse wonder that the Law French which doth as truly and fully deliuer the matter in our Lawes as the Latin in the Imperialls though indeed farre from polite expression should bee so contemptible among the many petie Ignorants which vsually despise what euer their lazie course of studies hath not furnisht them withall and most indiscreetly censure things only as they see them present without regard to the cause or originall of them which made them that they were first ineuitable and afterward remained not without exceeding difficultie if at all alterable But this by the way Of the IX X.XI.XII.XIII and XIV Chapters VPon the discouerie of the Originall of our Parishes of the ancient and late Practice of Tithing here of Arbitrarie Consecrations of Tithes made by the Laitie of the first setling of Parochiall right to Tithes in England of Appropriations of Exemptions of Infeodations and the ancient Iurisdiction of Tithes all which take vp these VI. Chapters no fit Reader can be so blind as not to see necessarie and new assertions and consequents to be made out of them in euery inquirie that tends to a full knowledge of the true and originall nature of Tithes as they are possest or detaind by either Lay or Clergie man in respect only of any humane positiue Law or ciuill Title But we should here briefly admonish somewhat of our appropriated or consecrated Tithes and conclude all with a touch of the Canon Lawes ancient autoritie which in practice made such alteration in England as is shewed about the yeer M.CC. To the matter of Consecrations and Appropriations here apply what is admonisht touching them in the Reuiew of the VI. Chapter and let euery man first carefully looke that he know the course of old Appropriations and the way how the Monasteries and Colledges came by them before hee conclude rashly of the Tithes that are possessed through them Tithes consecrated and appropriated were purposely dedicate to the Almightie and his Seruice although not without mixture of superstition that we are sure of But although a Tithe generally were due to the Euangelicall Priest iure diuino without any ciuill Title yet we are nothing sure that all or the most appropriated or consecrated Tithes are the selfe same Tithes so due which yet is supposd as cleer and neuer further thought on by such as haue troubled themselues and their Readers whiâ—h arguments for the Church in the point of Appropriations Let him that shall now write of them see here the way how to consider them And let him that detaines them and beleeus them not due iure diuino think of the ancient Dedications of them made to holy vses and howeuer they were abusd to superstition as the other large Indowments of the Church before the Reformation yet followes it not without further consideration that therefore although so dedicated they might be prophand to common vses and Lay hands Consult herein with Diuines But I doubt not but that euery good man wishes that at our dissolution of Monasteries both the Lands and Impropriated Tithes and Churches possessed by them that is things sacred to the Seruice of God although abusd by such as had them had been bestowed rather for the aduancement of the Church to a better maintenance of the labouring and deseruing Ministerie to the fostering of good Arts reliefe of the Poore and other such good vses as might retaine in them for the benefit of the Church or Common-wealth a Character of the wishes of those who first with deuotion dedicated them as in some other Countries vpon the Reformation was religiously done then conferd with such a prodigall dispensation as it happend on those who stood readie to deuoure what was sanctified and haue in no small number since found such enheritances thence deriued to them but as Seius his Horse or the Gold of Tholense But I abstain from censure and adde here by the way a complaint made to the Parlament not long after the Dissolution touching the abuse that followed in the Church through Lay mens possessing of Appropriated Churches and Tithes It deserues to be seriously thought on by euery Lay man that now enioy any of them especially where Diuine seruice is not carefully prouided for Ye that the Lords and Burgesses of Parlament house so are the words of it I require of you in the Name of my poor Brethren that are Inglish men and members of Christes bodie that yee consider well as yee will answer before the face of Almightie God in the day of iudgement this abuse and see it amended Whanas Antichrist of Rome durst openly without any viser walk vp and down thorow out England he had so great fauor ther and his children had such craftie wits fâ—r the children of this worlde are wiser in their generation than the children of light that they had not only almost gotten all the best lands of England into their hands but also the moost part of all the best Benefices both of Personages and Vicarages which were for the most part all impropred to them the Impropriations held by them were much more then one third of all the Parish Churches in England deuided into three parts And whan they had the gifts of any not impropred they gaue them vnto their friends of the which alwaies some were learnd for the Monks found of their friends children at scole And though they were not learnd yet they kept hospitalitie and helped their poor friendes And if the Parsonage were impropred the Monks were bound to deale Almesse
yeer M. held the payment of them necessarie Decimas dare dicebat omnimodis esse superfluum inane But also other opinions he had that being against the vsuall Doctrine of the Church gaue him the name of Heretique which he kept till his miserable death This may suffice for the expresse testimonies of Opinion of this CCCC yeers touching the generall right of Tithes But although this opinion be so frequently deliuered in such termes as may denote the Tenth due by Gods Law that is as it should at first sight seem by the Diuine morall Law or the Diuine naturall Law which should bind all men and euer and are to this purpose both one ye it is plain by so much of the practice of the Laitie as the Clergie commonly allowd of and by the generall opinion of the Time that the persons held capable of them were not only the labouring Priesthood or Ministering Clergie The disposition of them in perpetual right to Monks Nunnes the poor in Hospitalls to religious orders of Knights and that out of one Prouince or Kingdome whatsoeuer into any other in this time was allowd cleerly in practice and according to that practice they were enioied And the Clergie also generally agreed that by their Canonicall forme of conueyance Tithes might be giuen although some ancient Canons were for Parochiall right to any Church to Monasteries Hospitalls reliefe of Poor or Sick that is as Iuo Bishop of Chartres being a great Canonist about M.C.XXX. in his iustifying the right of Tithes expresses it Decimas fidelium oblationes Ecclesiae so you must read and so is his Ms. copie lex caritatis communicare potest non tantum Monasterijs sed etiam Xenodochijs infirmis peregrinis For saith he licet Decimae oblationes principaliter clericali debeantur militiae potest tamen Ecclesia omne quod habet cum omnibus pauperibus habere commune But this might not be done as they would haue it by the Lay owner only For he well addes that neuerthelesse no Monasterie might by the Canons lawfully receiue a conueyance of Tithes ab illis ad quos non pertinet id est à Laicis yet you see cleerly that Monasteries and other Churches did receiue them from Lay men and continually enioyd them So that the chiefest difference twixt the Laitie and Clergie herein came to be who should dispose or conuey the Tenths according as they varied also about Inuestitures not what persons sauing in the vse of Infeodations might haue a perpetuall right in them and in that difference the Clergie yeelded so frequently in receiuing allowing and confirming arbitrarie conueyances as is before shewd of Tithes no otherwise then as of Houses or Glebe to Monks Nunnes or Churches farre distant that if they held them due to the labouring and Parochiall Minister were he Bishop or other by the Diuine morall Law they did in this no lesse then commit against their own consciences and exercise a kind of continuall and fearfull sacrilege And indeed it appears that it was expresly held against the Diuine Law to conuey Tithes to any other Church then where the owner vsed most commonly to receiue his soules food For the Clergie in a Petition to the Emperor Lewes the second in the Councell of Pauia in DCCC.LV confidently affirmed that it was generally taken that such a conueyance to another Church pro libitu was aswell diuinae Legi as sacris Canonibus contrarium But then cleerly also the chiefest practice of these CCCC yeers was herein contrarie to the Diuine Law a strange imputation to lay on the time if at lest Diuine Law there Deus praecepit and Deus constituit the like in their other pasages for Tithes denoted the Diuine Moral Law But if you so vnderstand it how could that Lex Charitatis that Iuo speaks of so dispense with it And with what colour could the Church so frequently practice against it or pretend arbitrarie Consecrations to be so meritorious But for an Interpretation of their meaning by shewing how others conceiue that Lex diuina here look in the next CCCC yeeres As for Exemptions some complaints were made against them by such as lost by them as you may see by the Monks of Clugny complaining against the Cistercians and by Peeter of Blois But out of them also may be collected that the generall Opinion of the age was not that they were due by the Diuine Morall Law Was Rome in those ancient times so bold to grant so many Dispensations expressely against the Diuine Morall Law Yet also Iohn Bishop of Chartres in those times found much fault with the Exemptions giuen to religious persons Miror saith he vt fidelium pace loquar quodnam sit quod Decimas iura aliena vsurpare non erubescunt Inquient fortè Religiosi sumus Planè Decimas soluere Religionis pars est And more to this purpose you may find in him where he tells you that these Exemptions did derogare constitutioni Diuinae But the Clergie generally was much against the vse of Infeodations of Tithes and Churches into Lay hands although it were practiced by some Bishops and Religious Houses who committed strangely if they were also of opinion that the right of Tithes was due to the Priesthood immediatly from the Morall Law Quid est enim saith Peeter Damian Decimas in vsum saecularium vertere nisi mortiferum eis virus quo pereant exhibere Hinc accidit quod plebesanis iusta detur occasio vt Matricibus suis Ecclesijs obedientiam subtrahant vt non eis legitima Decimarum persoluant And Alexander the third directed the Bishop of Amiens to decree that a gift of a Tithe by an Abbot into a Lay hand was void quoniam sanctuarium de iure haereditario possideri non debet But these are only against Conueyances of Tithes alreadie consecrated to Churches and so hallowed But such as were by their first creation infeodated to Lay men can no more be accounted in their own nature differing from other Temporall and Lay possessions then Rents-charge Estouers the tenth sheaf or the like at this day granted in fee by one Lay man to another Neither indeed was the Churches right what euer it were to her Tithes properly diminished by such Grants for if at this day the owner grant the tenth sheaf of lands titheable to a Lay man may not the Grant be good as a Charge out of the land and yet the Church there hath her right as before But the truth it seems was that in those elder times Lay men that had created a Tenth into Lay hands rarely or not at all paid any to the Church and those Infeodations once made gaue them greater pretence of with-holding what the Church demanded as if it had been enough to say they must not could not pay two Tenths out of their land and that if a Tenth were once created to any man nothing els