make Enuches themselues be made Enuches if they escape aliue their goods to be forfeited to the Exchequer and themselues be imprisoned all the dayes of their life Such as by force steale away women themselues such as are their abbetters and helpers are to dye therefore and that it shall not be lawfull for her that is carried away to marrie to him that doeth carrie her away and that if her father do giue his consent to such marriage he is to be banished but if she marry him without her fathers consent then is she not to take benefit by her fathers will or any other thing that is her fathers These and sundry matters of great importance and necessarie for the well gouerning of a Common wealth are conteyned in the Authenticks which I passe ouer with drie foote not because they are not necessarie to bée knowen but because I would not cloy the Reader euen with those things which are good All these workes are the labour of Iustinian as either gathered together by him out of auncient Lawyers bookes and such Emperors decrées as went before him or else were decréed ordeyned by himselfe as matter occasion offered it selfe the yongest of them is néere eleuen hundred yeares of age that is within 500. yeres after Christ or not much otherwise The last Tome of the Ciuill Law is the Feudes that is the bookes of Customes Seruices that the subiect or vassall doth to his Prince or Lord for such lands or fées as he holdeth of him This péece of the Law although it was not much in vse in the old Emperors dayes yet Iustinian himselfe séemeth to acknowledge them in his Nouell constitutions calling them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and those which are more carefull to séek out the beginning of them bring them some from the auncient Clientles or retinewes the ancient Romans before Christ his time had as Budeus doth some other from Alexander Seuerus time who as Lampridius in the life of Alexander saith gaue such lands as he won out of the Enemies hands to his Lords Marchers and his souldiors that they should be theirs their heires for euer so they would be Souldiers neyther should they come at any time to the hands of any priuat man saying they would more lustily serue if they fought for their owne land which opinion commeth next to the auncient border-grounds of the Romans whereof there is a Title in the 11. Booke of the Code Defundis Limitrophis that is of Border-ground Others refer it ouer to Constantine the greats time which inacted for the benefit of his souldiors that such Lordships lands as before time they had their wages out of should passe ouer vnto their heires and be appropriated to their familie or stocke so that they found and mainteyned continually a certaine number of souldiors From whence soeuer it descended this is certaine that it came verie late to be a particuler volume of the Law it selfe The compilers or gatherers together thereof were Obertus de Horto and Giraldus Compagist two Senators of Millaine who partly out of the Ciuill Law and partly out of the Customes of Millaine drew the same but without forme or order The word it selfe is a barbarous word but had his origen notwithstanding as Isidor saith from the word Foedus being a good Latin word and so is to be interpreted tanquam Feodum that is as a thing couenanted betwéene two Others deduce it from the word Fides as it were in Latin Fideum and by a more pleasant pronunciation Feudum whereupon such as are Feudataries to other are called in Latin Fideles because they owe fayth and allegeance to such whose feudataries they are who in the Lomhard tongue are called Vassals Beside Fealtie which some call Hominium by the Feudists is tearmed Homage for the nature of a Feude is this that it draweth with it fayth and homage so that such as are feudataries or fee men professe themselues to owe fayth to such to whom they are in fée and that they are his men insomuch as when a fée man dyeth his Heyre doth make fayth and doth his homage to the Lord as is well séene both in the Lord Spirituall and Temporall of this land who both in their creation and also in theyr succession one after an other sweare an oath doe their homage to their Soueraigne and doe pay other dueties which are simbols and signes of their subiection to their soueraigne And for others that are vnder the degrée of Barons and yet are fée men vnto the King and so do not manuell obedience vnto his Maiestie they pay yearely something in respect of theyr homage according to the quantitie or qualitie of the fée or tenure they hold of the Prince A Feude in English may be called a tenure which caused Littleton when he treated of Feudes so far forth as they are here in vse in England Such as are all those which are called in Latin Feuda militaria Feuda scutiferorum called by Iustinian 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which are by the Lawes of the land tearmed by the named of knights seruices and Escuage to call them by the names of Tenures A Feude is a grant of lands honors or fées made either to a man at the will of the Lord or Soueraigne or for the Feudataries owne life or to him or his heires for euer vnder condition that he and his heires in case where the feude is perpetuall doe acknowledge the gyuer and his heyres to be their Lord and Soueraigne and shall beare faith and alleageance vnto him and his for the said Tenure and shall doe such seruice to him and his for the same as is betwéene them couenanted or is proper to the nature of the feude Of Feudes some are Temporall some other are Perpetuall Temporall feudes are those that are gyuen eyther for terme of a mans life or for yeares or at the will of the Lord for some seruice done or to be done such as are Annuities giuen to Lawyers for counsell Pensions giuen to Phisitions for their aduise Stipends to any Teacher of artes and sciences Fées for kéeping of Towers or Castles called by Feudists Castalia and is by Littleton called Castle ward although by him it is taken for a state of inheritance Perpetuall Feudes are rights which men haue by grant from the Soueraigne or chiefe Lord of the soyle or territorie to haue hold vse occupie and inioy honors manors lands tenements or hereditaments to him and his heires for euer vpon condition that the said vassall or partie his heytes and successors doe homage and fealtie to his Lord his heires and successors for such honors landes or hereditaments and doe him eyther seruice in warre according as it is couenanted betwéene the Lord and his vassall or such other seruice as the nature of his tenure doth require or if he fayle therein shall either find some other in his roome to do the same or else pay a certaine summe of
money in liew thereof Although this Tenure by the first creation thereof be perpetuall yet that the soueraignty thereof should not still remaine vnprofitable to the first Lord the whole benefyt thereof going continually to the vassall or tenant it is prouided that the Soueraigne or chiefe Lord the first yeare the heyre or Successor of the vassall comes vnto his land shall haue the whole reuenue of his liuelihood for that yeare or a certeine summe of money in token of the retorne thereof vnto the Lord and the redemption thereof made againe by the tenant which by the Law of the Nouels is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is well nigh the same that we call liuery which euery heire that holdeth in Knights seruice sueth out before he take possession of his land as heire to his ancesters This Tenure is got eyther by Inuestiture or by Succession Inuestiture is the same that we call Creation and is the primier grant of a feude or tenure to any with al rights and solemnities thereto belonging wherein the homager or feodatarie for the most part vpon his knées promiseth faith and allegeance vnder a solemne oath vnto his Lord and his successors Succession is whereby the eldest sonne succéedeth the father in his inheritance and if he faile and haue no issue then the next brother and so in order successiuely and if there be no sonne then the next heire male and if their bée no heyre male then the land escheats vnto the Lord. For the Lumbards from whom the feudes first came or at the least were chiefly deriued from them directing all their policie as the Lacedemons did to matters of warre had no seminine feudes among them but after by processe of time there were created aswell Feminine feuds as Masculine feuds insomuch as where there was no issue male to put them from it women did succéed in the inheritance Of Feuds some are regall some not regall Regall are those which are giuen by the prince only neither doe belong to any inferior to giue Of these some are Ecclesiasticall as Archbishopricks Bishopricks and such like Others are Ciuile or Temporall as Dukedomes Earledomes Vicounts and Lords who by that are distinguished from the rest of the people that they haue the conducting of the Princes Armie at home and abroad if they be thereto appointed and haue right of Peeres in making of Lawes in matters of triall and such other like businesses Not Regall are those which hold not immediatly of the Prince but are holden of such Ecclesiasticall or Ciuile States which haue had their Honours immediatly from the Prince Besides of Feuds some are Liege others not Liege Liege Feuds are they in the which the vassall or feodatorie promiseth absolute fealtie or faith to his Lord against all men without exception of the King himselfe or any other more auncient Lord to whom besids he oweth alleagance or seruice Of this sort there is none in this Realme of England but such as are made to the King himselfe as appeareth by Littleton in the title of Homage wherein is specially excepted the faith which the Homager oweth to his Lord the King Feuds not Liege are such wherin Homage is done with speciall reseruation of his faith and alleageance to the prince and Soueraigne Of such as are Vassals or Liege men some are called Valuasores maiores others Valuasores minores Valuasores maiores are such as hold great places of the State vnder the Emperour or King as are the degrées of Honour before named and are called Péeres of the Land which only giues Nobilitie Valuasores minores are those which are no Péers of the Land and yet haue a preheminence aboue the people and are as it were in a middle Region betwéene the people and the Nobilitie such as are Knights Squires and Gentlemen The Feuds are lost by sundry waies by default of issue of him to whom it was first giuen which they call Apertura feodi by surrender therof which by them is termed Refutatio feodi by forfaiture and that was in two sorts either by not doing the seruice that his tenure did require or by committing some villenous act against his Lord as in conspiring his Soueraignes death defiling his bed or deflowring his daughter or some other like act treacherous to his Lord and vnworthy of himselfe And so much of the Ciuile Law and the Bookes thereunto pertaining Now it followeth I doe in like order speake of the Canon Law which is more hardly thought vpon among the people for that the subiect thereof in many points is of many grosse and superstitious matters vsed in the time of Papistrie as of the Masse and such other like trumperie and yet there are in it beside many things of great wisdome and euen those matters of superstition themselues being in a generalitie well applyed to the true seruice of God may haue a good vse and vnderstanding The Canon Law hath his name of the Gréeke word Canon which in English is a Rule because it leads a man straight neither drawes him to the one side or the other but rather correcteth that which is out of Leuill and Lyne The Canon Law consisteth partly of certaine Rules taken out of the holy Scripture partly of the writings of the auncient fathers of the Church partly of the ordinances of general prouincial Councels partly of the Decrees of Popes of formerages Of the Canon Law there are two principall parts the Decrées and the Decretals The Decrées are Ecclesiasticall constitutions made by the Pope and Cardinals at no mans suite and are either Rules taken out of the Scripture or Sentences out of the auncient Fathers or Decrées of Councels The Decrees were first gathered together by Ivo Bishop of Carnat about the yeare of our Lord God but afterward polished and perfected by Gratian a monke of the order of Saint Bennets in the yeare 1149. and allowed by Eugenius the Pope whose Confessor hee was to bee read in Schooles and to bee alledged for Law Of all the seuerall volumes of the Canon Law the Decrées are the auncientest as hauing their beginning from the time of Constantine the great the first Christian Emperour of Rome who first gaue leaue to the Christians fréely to assemble themselues together and to make wholsome lawes for the well gouernment of the Church The Decrées are diuided into thrée parts wherof the first teacheth of the origen and beginning of the Canon law and describeth and setteth out the rights dignities degrées of ecclesiasticall persons and the manner of their elections ordinations and offices and standeth of one hundred and ten distinctions The second part setteth out the causes questions and answeres of this Law which are in number 36. and are full of great varietie wisdom and delight The third and last part containeth matter of consecration of all sacred things as of Churches bread and wine in the Sacrament what daies and Feasts the Primitiue Church vsed for the receiuing thereof of
Kings Ecclesiasticall Courts here within the Land 111 What is a Prohibition and how many sorts are thereof 113 Of Admirall causes and in what sort they are hindered 115 Of Actions of Trouer and how far Fictions in Law are to be admitted and how far not 116. c. Wherein last Wils and Testaments are impeached 121 Of the care that Princes of this Realme haue had for the due payment of Tythes vnto the Church and the preseruing of the cognisance thereof vnto the Ecclesiasticall Courts of this Land both before the conquest and since 124 c. That the Statutes of the xxvii and xxxii of H. the viii and the 2. of Edward the vi c. 13. intended for the true paiment of Tythe and the preseruation of the triall therof vnto the Ecclesiasticall Courts are now turned to the hinderance of them both 128. c. That customes of payment of tythes are triable onely at the Ecclesiasticall courts 131. c. That the lymits and bounds of Parishes are of the Ecclesiasticall cognisance onely 135 That the clause of treble Damages in the 13. chapter 2. Edw. 6. is to be sued in the Ecclesiasticall courts only 137. That the naming of law or Statute in a statut doth not make it to be of the Temporall cognisance if the matter therof be Ecclesiasticall 139. c. How it comes to passe that when tythes were neuer clogged with custome prescription or composition vnder the Law they are clogged with the same vnder the Gospel and the causes thereof 142 Tythes anon after the dissolution of the Iewes policie were entertained by the Christians as a naturall prouision for the Ministers of the Gospell and leased out by God vnto the Iewes for the time of their policie only 142 That Charles Martell Father of King Pippin was the first that euer toke tythes from the Church and assigned them ouer to Lay men in fee and vpon what occasion 145 That to the imitation of this fact of Martell other Princes did the like euery one in his Kingdome 145 That this fact of Martel being done about the yeare 606. stood vnreuersed vntill the Lateran councell vnder Alexander Anno 1189. and that the reformation was then but in part 146 That Ecclesiasticall Iudges admit pleas in discharge of tithes and the maner of tything contrarie to the conceit that is had of them 149 Of Priuiledges and how they came in 150 That by reason of the frequence of priuiledges Statutes of Mortmaine came in 150 Of the beginning of cloistered monks in the west Church of Christendome and that the author thereof was one Benedict a Roman about the yeare 606. 153 That from Benedict and his order flowed all the rest of the orders of Religious men 153. c. That the admiration that these Religious men did breed of themselues in the head of Princes and Popes did procure appropriations of parsonages and immunities from Tiths 153 That the ouer conceit that men had of praier aboue preaching in the church was an adiuuant cause therunto 154 Whether Appropriations came first from Princes or Popes it is questionable 155 Exemptions from tythes brought in by Pope Paschall in fauour towards all sorts of Religious men 158 The same restrained by Pope Adrian and limited to the Cystertians Hospitallers Templers and the Knights of Saint Iohn of Ierusalem onely sauing to the other the Tythes of grounds laboured with their owne hands onely 159 That Innocent the third in the third Lateran Councell 1120. restrained those foure orders from immunitie of Tythes for such grounds as they should acquire after that councel which Henry the fourth imitating prouided by two Statutes of this Land against their immunitie 159 That if this reuocation of Immunitie by Innocent the third these two Acts of Henry the fourth were wel weighed they would ouerturne many of the priuiledges chalenged by the Statut of 31. H. 8. c. 13. for exemption of Monasterie Lands from Tithes 160 That Reall compositions for Tythes are the deuise of Ecclesiasticall Lawyers and are to be tried by the Ecclesiasticall Courts 160 That the curiositie of Schoolemen in their distinctions vpon Tythes haue helped forward Appropriations and Exemptions from Tythes 161 The opinion examined as concerning the quotitie of tithes whether it be Morall Ceremoniall or Iudiciall 161. c. That a Bishop being Lord of a Manor and prime founder of a Benefice could not in the first erection thereof by his owne capacitie retaine any Tythes in his hand and passe the same after in lay-lay-fee to his tenants and so giue cause to his tenants of prescription against the parson 165 That Bishops indowments in the beginning stood not in Tythes but in finable Lands 167 That the turning of Bishops indowments into tenthes or tythes for impropriat parsonages is vnsutable to the first institution and very dangerous 168 That it had bin a worthy worke in the first reformers of Religion if they had returned to euery parish their owne parsonage and the dislike that God may seeme to haue conceiued of that 169 That tythes are a Parochian right and how Parishes in the Christian world came first to be instituted 171 That tythes of Minerals are due 174 That tythes of Turues be due 178 That the cognisance of barren heath and wast grounds belongeth to the Ecclesiasticall courts and what euery of them are 180 That the boughes of great trees are tythable and so also are the bodies but in the case of the Statute only 185 In what cases diffamatorie words belong to the Ecclesiastical and in what to the common law 191 That the suit of bastardie aswell in the principall as in the incident belongs vnto the Ecclesiasticall Law 199 The meanes to relieue the Ecclesiasticall courts 209 The right interpretation of Lawes and Statuts 209 Wherein the three Statutes for tythes may be supplied 212 What things may bee ordered by the Ciuile Law yet not prouided for by the common Law and others of like nature to those that are expressed 215 Of the necessitie of retaining the practise of the Ciuile and Ecclesiasticall law within this Land 224. c. FINIS A VIEW OF THE Ciuile and Ecclesiasticall Law also wherein it is straighted and wherein it may be relieued BEFORE I shew how necessarie it is for his Maiestie and the Realme to maintaine the Ciuile and Ecclesiasticall Law as they are now practised among vs in this Realme I will set down as it were in a briefe what the Ciuile and the Ecclesiasticall Lawes are then will I shew how farre forth they are here in vse and practise among vs thirdly wherein we are abridged and put beside the vse and possession thereof by the Common Lawe euen contrarie to the old practise thereof and the true sence and meaning of the Lawes of this Realme and the Statutes in this behalfe prouided and lastly wherein we might be relieued and admitted to the practise of many things in the Ciuile Law without preiudice to the Common Lawe and
like former precedents but needed euery one almost a newe decision And the cause why Princes in the beginning granted to Clergy men these causes and their Consistories for from Princes were deriued in the beginning all these authorities as also the Religion it selfe is setled and protected in Kingdomes by Princes before there can be had a frée passage thereof was one that the Clergie men thereby might not be drawen from their prayer and exercise of diuine seruice to follow matters of suites abroad secondly that they were like to haue a more speedy and better dispatch and more indifferency before a Iudge of their owne learning than before a Iudge of an other profession for this is true and euer hath bin and I feare euer wil be vnto the end that is said in the glosse and is in common saw Laici opido semper infesti sunt Clericis Lastly that Clerks suits quarrels should not be diuulged and spread abroade among the lay people that many times to the great discredit of the whole profession specially in crimminall matters wherein Princes aunciently so much tendered the Clergie that if any man among them had committed any thing worthy death or open shame he was not first executed or put to his publike disgrace before he was degraded by the Bishop and his Clergie and so was executed put to shame not as a Clerk but as a lay malefactor which regard towards Ecclesiasticall men it were well it were still reteined both because the consideration thereof is reuerent worthy the dignity of the Ministerie whose office is most honorable also for that it is more auncient than any Papisticall immunitie is The third and last reason that moues me that I should beléeue that these Titles sometimes were here in exercise among vs in the Ecclesiastical Courts is that I find Glanuill Glanuill lib. 12. cap. 15. de Legibus Angliae who himselfe liued vnder Henry the second and was Lord chiefe Iustice of England in his daies sort to the Ecclesiasticall Courts the plea of Tenements where the suit is betwéene two Clerks or betwéene a Clerk and a Lay man and the plea is De libera eleemosina feodi Ecclesiastici et non petitur inde recognitio whether the frank fée be lay or Ecclesiasticall where also is further added that if it be found by the Idem lib. 13. cap. 25. verdict of legall and sufficient men that it is of Ecclesiastical fée it shall not be after drawen to lay fée no though it be held of the Church by seruices thereunto due and accustomed secondly whereas land is demaunded in marriage by the husband Idem lib. 7. cap. 18. or the wife or their heire and the demaund be against the giuer or his heire then it shal be at the choice of the demaunder whether he will sue for the same in the court Christian or in the secular Court For saieth he it pertaineth vnto the Ecclesiasticall Courts to hold plea of dowries which he calleth Maritagia if so be the plaintife so make choice of those Courts for the mutuall affiance that is there made betwéene the man the wife for marriage to be had betwéene them there is a dowry promised vnto the man by the womans friends neither shall this plea be caried vnto the temporall Courts no though the lands be of Lay fée so that it be certein the suit is for a Dowry but if the suit be against a stranger it is otherwise thirdly the Kings prohibition forbidding Anno 24. Ed. 1. the Clergie the dealing in many things which are of lay fée forbids them no one thing that is of Ecclesiasticall fée and to shew the Princes meaning precisely therein that it was not his intent by that Prohibition to restraine the Ecclesiasticall Iudges for procéeding in matters of Ecclesiasticall fée he sets downe in very tearmes these words Recognisances touching Lay fée as though he would hereby signifie to all men that he would not touch matters of Ecclesiasticall fée which did then wholy properly appertaine to the triall of the Christian Court as hath bin before vouched out of Glanuill who for the place he then held may be thought to haue knowen the Lawes of England as then they stood and the right interpretation thereof aswell as any man then or now lyuing And yet because there were some things of Lay fee which the Clergie then had cognisance of as yet they haue in some measure as causes and matters of Money chattels and debts rysing out of Testaments or Matrimonie because he would haue whatsoeuer belonged to the Clergie to be vndoubted excepteth them from those things which belong to the Crowne and dignitie and leaueth them to the ordering of the Christian Courts which is nothing else but an affirmance of that which Glanuill and the rest of the auncient English Lawyers Bracton and Britton said before Lastly the prouinciall Constitution Aeternae de poenis made in the dayes of Henry the 3. plainly shewes that in those dayes all personall suits betwéene eyther Clerke or Clerke or betwéene Lay men complaynants and Clerkes defendants for euer the Plaintife must follow the Court of the Defendant which to the Ecclesiasticall men then was the Ecclesiasticall Court were tried by the Spirituall Law and not by the Temporall Law which practize for that it doth accord with the iudgement of those auncient Lawyers that haue bin before cited and with the Prohibition it selfe which there restraineth only calling of Lay men to make recognisances of matters of Lay fée it may be a great argument that these things were of the Ecclesiasticall right in those dayes from which I sée not how the Ecclesiasticall Courts are falne for I sée neither Law nor Statute to the contrarie vnlesse perhaps they will say the Statute of the 25. H. 8. cap. 19. 25. of H. 8. cap. 19. toke the same away as being hurtfull to the kings Prerogatiue royall repugnant to the Lawes Statutes and Customes of this Realme which whether they be or be not taken away by the stroak of that Statute I leaue it to men of better experience in these matters than my selfe to iudge But yet this I find by experience to be true That where there are two diuers Iurisdictions in one Common wealth vnlesse they be carefully bounded by the Prince an equall respect carried to both of them so far as their places and the necessarie vse of them in the Common wealth requires as the aduancement of the one increaseth so the practize of the other decreaseth specially if one haue got the countenance of the State more than the other which is the only cause at this day of the ouerflowing of the one and the ebbing of the other but it is in his Sacred Maiestie to redresse it not by taking away any thing from that profession that is theirs but by restoring to this profession that which is their owne but hereof 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 For
of the Primitiue Church receyued them would néedes séek out how and in what right and in what quantitie this prouision belongs vnto the Church wherein they did by their ouermuch subtiltie rather confound the trueth than make that appeare they intended to doe By the first of these was brought in that great prescription which is called the Prescription beyond the Lateran Councell whereby Lay men held Tythes in sée wythout paying any thing therefore vnto the Church and out of that issued the rest of those pettie Prescriptions which we now haue which are nothing else but imitations of the first By the second came in Priuiledges Customes and Compositions or if they came not in wholly by them yet surely were they much strengthned by them but of eyther of these after in their places But for that of all these forenamed greeuances in the Church as far as my trading serues mée Prescription is the eldest and first rusht into the Church and violated the Liberties thereof I will first begyn thereby and shew vpon what occasion it first seysed vpon the Church and preuailed against her and then will I speak of the rest in order It is out of question that from the time of Origen who lyued within fower score yeares after the death of Saint Iohn the Euangelist as also did Cyprian who was his coequall in tyme and so along by the ages of Chrysostome Ambrose and Augustine and some of the purer Popes as Vrban the second Dyoâ—isius and Gregoue the great there was good vse of Tythe in the Churches where Christian Religion was imbraced as may appeare by euery of their testimonies that God had not appointed it to be a prouision onely for such as serued at the Altar vnder the Law but also was purposed by him from the beginning to be a maintenance for the Ministerie vnder the Gospell and therefore Origen in his xi Hemily vpon Numbers speaking of Tythes sayth thus I hold it necessarie that this Law or precept be obserued according to the letter and vpon the 22. of Mathew he thinketh Christs words vttered there as concerning Tythe to be a precept no lesse necessarie for the vse of Christians than they had bin for the Iewes and therefore he accounteth Tythe neyther ceremoniall nor Iudiciall but morall and perpetuall Cyprian in his lxvj Epistle aduiseth the Clergie of his time since they had Tythes allotted vnto them for their maintenance they should not absent themselues from Gods seruice Chrysostome vpon the viij of the Actes vseth this argument to persuade husbandmen to pay theyr Tythes truely vnto the Church that it is good for them so to doe for that there are continuall prayers and intercessions made for them by the Ministerie Ierome vpon Tymothy sayeth The precept of payment of Tythes is aswell to be vnderstood in the Christian people as in the Iewes Reade Ambrose vpon his Lent Sermon and Augustine vpon his xliiij Homily and Gregory vpon his xvj Homily and you shall finde no lesse plaine places for the continuance of the payment of Tythes among the Christians than the former were Adde to these the practise of Dionisius himselfe who by Ieromes account flourished in the yeare 266. who not only diuided out Parishes drawing the example thereof from Saint Paul who first appointed Bishops in Cityes but also assigned orderly to euerie Parish his Tythes All which held in the Christian common wealth in a decent and comely sort vntill the irruption of the Hunnes Goathes and Vandals vpon the Christian world who first inuading Italy vnder the Emperour Iustinian did for many yeares so harrow the whole Countrie and specially Lumbardie as that they left not almost a man of excellent Religion any where vnpersecuted ouerturned Churches burnt Libraries ouerthrew Schooles of learning and to be short what wickednesse did they not insomuch as Gregorie the great being otherwise a verie good man and one that did relye himselfe vpon the prouidence of almightie God verily thought and taught that the end of all things was then come but after those fierce and barbarous Hospinlandâ—â—r g. nâ—m 〈◊〉 people once set theyr face to goe against France which had beene hitherto free from that mundation which happenned in the daies of King Theodorick who liued about the 650. yeare of the Incarnation of our Sauiour Iesus Christ Charles Martel the father of Pippin after king of France being then great master of the kings house would not although otherwise he were a very victorious man and valiant Captaine oppose himselfe against them vnlesse the vnder-clergie of France would be content to resigne euery Gagniâ—â—â— lib. 4 Histor Fraâ—â— man his Tythes into his hands that thereby he might reward the Souldiour and support the charges of the war then present which the poore Clergie in respect of the eminent danger and for that Charles Martell himselfe did solemnly vow and promise that they should bee forborne no longer than for the time of the war and that they should be restored vnto them againe at the end of the war with a further gratuitie for their good wil yeelded most willingly thereunto specially the Bishops not contradicting it leauing to themselues a small portion of their liuing only during the time of the daunger Whereupon Charles Martell vndertaking the enterprize get a mightie great victorie against the enemies insomuch that hee slew in one battaile 34500. of the Infidels which battaile being happily atchiued and the danger of the war being past the poore Clergie men hoping to receiue againe their Tythes according as it was promised them by Charles Martell they were put from the possession thereof and say or doe what they could their benefices were diuided before their face in recompence of their seruice to such of the Nobilitie as had done valiantly in that action and the same assured to them and theirs for euer in fée And this is the first violence that euer Tythes suffered in the Christian world after they left the Land of Iurie and came to inhabite among the Christians which albeit was a nefarious act and nothing answerable to the late mercie that God had vouchsafed them in conquering of their enemies yet there wanted not like sacrilegious mindes in all Christian Lands which did imitate this wicked fact of Martellus insomuch as the example hereof passed ouer the Alps into Italy and mounted aboue the Pyrenie Hils into Spaine and within short time after sailed here into England in such sort as that euen to this day sundry Monuments thereof appeare euerywhere in the Land where any tytle of immunitie is challenged from payment of Tythes reaching beyond the Lateran Councell whith can descend from no other head than from this fact of Charles Martell neither was there any redresse thereof vntill the said Lateran Councell before mencioned which notwithstanding came néere fiue hundred yeares after for this fact of Martellus was done about the six hundreth and threescore yeare after the Natiuitie of our Sauiour Iesus Christ but
where the taking of one stone away is the ieopardie of the whole buylding But yet let those to whom this doth appertain consider whither in this it were better to please God than man But now to returne thither where I left as euery good Bishop or any of his Clergie did wyn any countrie village which the Latins call Pagus to the Faith so they erected vp a Church there and appointed a Pastor or Minister ouer them to informe them in the Law of God and to minister Hespinian de origine Monochatus the Sacraments vnto them and set out for his maintenance the Tythe of that Page or Village to which he was assigned Pastor which they did in Tythes rather than in any other prouision both because it was the Lords inheritance in all ages and appointed by him for the maintenance of such as serued in his Tabernacle during the dispensation of the mysteries of the Law now was returned again into Gods hand by the expyration of the demise of them made vnto the Leuites during the said time of dispensation and also because the people would be the more easilie induced to part with one part out of euery ten of all the fruites of their grounds and labours of their hands vnto the Minister than if there had bin any other reguler imposition laied vpon them for certein it is Villages Pages came more hardly and more lately vnto the Faith than great Townes Cities did and therupon grew that name of opposition which was betwéene Christians that dwelt in Cities the Infidels that dwelt in Pages that the one were called Pagans the other were called Christians taking their names vpon the difference of the places where they dwelt But from these Pages as I haue said came first the vse and practize of Tythes in the Christian world insomuch as after when any Law was made as concerning Tithes they held them euermore for a Parochian right onely in no sort at the disposition â—a Cum contingat de Decim verb. de sure coiÌ„â—n gâ—os of the Bishop but in such cases as before is rehearsed insomuch that if a Bishop challenged any Church in his Diocesse he challenged it not in respect of any fee simple he had in it but in regard of the Spirituall Iurisdiction he had ouer it And therefore the Authors of this opinion were far out of Ab. ca. nuper de Decim et ca. deputati de Iudicijs num 16. the way when as they thought the Bishop had like right in the Tythes of a Church of his Patronage to giue bestow them as he listeth as he hath in his demeanes and other his Temporall lands eyther to lease them out or diuide them into Tenancies as him best liketh Neyther is that case cléere or without question whereby they pretend a Bishop being seised in a Mannor may prescribe the Tithes of the demeanes therof by an immemorial prescription for him his Tenants and Farmers for yeares and Tenants at will to be exonerated acquited and priuiledged from all Tythes growing thereupon which if it be against an other person than himselfe may hap to be true although perhaps also that be questionable for that it is not long since Lay people were capable of that right neyther could themselues by Law of the Church at any time graunt such Spirituall rights as these are to a Lay man either in Feudum or Emphiteusim without danger of Excommunication Ab. ca. ad hâ—â— de Decimis nâ—mer 4. or deposition of their owne place as hath béen before shewed But if himselfe or his predecessors were Parsons there either in the right of their Bishoprick as hath bin of late before remeÌ„bred or that the Benefice was annexed vnto their Sea for the prouision of their Table as many Bishopricks had some one or more benefices appropriat vnto them to this purpose then could they not prescribe the Tithes in such sort as is pretended For albeit no prescription proceeds without possession yet no man can prescribe against himself although he be in possession for that euermore there must be two persons in a prescription the one which doth prescribe the other against whom it is prescribed and therfore in these cases it is neuer said they hold their Tythes by prescription but in the right of their Church or Parsonage In eyther of which cases if they were Lords of the Mannor Parsons of the Parsonage together it is not to be thought they would so respect the good of their Farmer as that they would either hurt their Church or preiudice their owne Table for their farmers sake which they must doe if they suffer a Prescription to run against the Church or themselues to exempt the demeanes of the Mannor from payment of Tythes which were due both to the Church themselues For they were men that both knew in their conscience how much they were bound vnto the Church in this behalf they were not ignorant what preiudice they should doe vnto themselues if by prescription they should yéeld to exempt so necessary a prouision for the maintenance of their Hospitality as the tithes of the demeanes of a whole Mannor their tenancies are for no small part of their commendation stood in those dayes in their hospitalitie therefore it is not to be presumed that they would easilie cut off any prouision that was fit for the same Beside if by either of these two wayes the Bishop were Parson in the place then did the fruites of the Benefice during euery Vacation of the Bishoprick not come to the King as they now do wherby the Parsonage Mannor are both consolidated into one for that they are now both holden to be Temporalties but the Parsonages came to the Archbishops of the prouince as a spiritualtie granted to his Sea by priuiledge during the vacancie of the Seas of such Bishops as were in his Prouince as may appeare by the Lord Archbishops Records of Canterbury so that it cannot Eâ— Registro ArchiepÌ„i Cant. be thought any prescription could run in these times being so often interrupted by vacancies as they were Which being well considered the conclusion is very doubtful whither euer any prescription ran in this case neyther would it easilie be beléeued by those that know the course of Antiquity but that there hath a Iudgement passed in this part therefore will I stay my selfe here and prosecute this point no further I intended to say nothing in this treatise of the Tithes of Minerals other subterraneous bodies because I know by Law they are holden by the like right as the Tithes of those things are which grow in the vpper face of the earth but yet because I sée there is a question made of them by some that will make euery thing controuersable that is due vnto the Church I will satisfie also their curiositie And therefore for Mettals other substances which are digged out of the bowels of the