The historie of tithes that is, the practice of payment of them, the positiue laws made for them, the opinions touching the right of them : a review of it is also annext, which both confirmes it and directs in the vse of it / by I. Selden.

The Historie of TITHES .

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 Priests 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 identitie . Such operations were amongst old Christians also , but meerly vaine .

ABraham , in his return from redeeming his nephew Lot with his substance , and all the substance of Sodom and Gomorrah , was blessed by Melkizedek King of Salem and Priest of the most high God ; and gaue him Tithe of all . So is the holy Writ . But what that all was , is not cleerly agreed vpon . it is taken to be 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 miccol aghsher lo , that is , of all that he had , as the ordinarie Glosse of Salomon ●archi there interprets . and expresly so are the Syriaque and Arabique translations of the new * * Epist. ad Heb. 7.2 Testament , where this is spoken of . But it is hard to conceiue it of any other all that he had , than all the substance , or all the spoiles that he had by that expedition . The holy Context so points it out . So did the old Iews vnderstand it . otherwise neuer had so great and worthy an Autor , a a Arch●olog . α. cap. 1 α. Flauius Iosephus a Iew , confidently writen the Tithe there giuen to be 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , the Tithe of what was gotten by the Warre . He knew a receiued opinion in his Nation , to be so , or else had not been so forward to deliuer it . The same is confirmed by the Targum , attributed to Ionathan Ben-Vziel . there , of all , is interpreted by 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 miccal mah datheib , that is , of all that he brought back . And , to free it from doubt , the holy Aut●● of the Epistle to the Ebrews , first vsing the Text of Genesis in those words , 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , the Tithe of all , after a few words interposed , explains it by 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , the tithe of the spoiles ; as if he had said 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , the Tithe of all the spoiles . In that place , the Syriaque hath Tithe b b 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 and first fruits , and the Arabique , Tithe c c 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 ●l●●mosyn● n. 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 sapius 〈◊〉 in Alcorano , quod monuit 〈◊〉 ta● humanitate quam doctrina singulari Guil. Bedw●llus linguarum inpromis Orientali●● call●●tisi●mu● . Vid● Azoar . 22.34 . & 92. and Almes . indeed 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 signifieth also first fruits , or the chiefest parts , sacred to the gods among the Gentiles ; and 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 hath , in that sense , been turnd there , by de praecipuis , in the vulgar . But those Eastern translations suppose , it seemes , as if the Greek should be 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . But we must not take the old text to haue been so different from what we now read . And for that , de Praecipuis , in the vulgar ; can it be thought that he gaue Tithe of the best parts only ? How stands that with giuing Tithe of . al ? It must therefore be interpreted of the spoiles . So St. Chrysostome d d In Epist. ad Ebr●●s . 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . 1 ● . vnderstands the Text. 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , saies he , 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , the spoiles are called 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , whereof , as he notes also , Abraham made Melkizedek a partaker , by so giuing him the first fruits of his martiall performance . Accordingly doth Sulpitius e e Histor. 1. Seuerus , in his storie of Abraham , call his tenth decimam praedae , which is also expresly iustified by S. Hierome , often stiling it decimas spoliorum , praedae & victoriae ; who well withall confesses , that , were it not for the holy exposition in that Epistle to the Ebrews , the relation in Genesis might aswell be vnderstood , that , on the other side , Melkizedek , as a bounteous Ancestor , had giuen to Abraham the tenth part of his estate ; the Text indeed being both in the Ebrew and Septuagints so , that , no name immediatly preceding the mention of the gift , it sufficiently thence appears not , who was the giuer . Vtrunque ( saies f f In Epist. ad E●●grium , t●m . ● . S. Hierome ) intelligi potest & iuxta Ebraicum , & iuxta Septuaginta interpretes , quòd & ipse acceperit decimas spoliorum , & Abrahae dederit decimas substantiae suae ; quanquam Apostolus in Epistola sua ad Ebraeos apertissimè definiat , non Abraham suscepiste à Melchisedek decimas diuitiarum eius , sed de spolijs hostium partem accepisse Pontificem . Neither is this interpretation of 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 dissonant from ancient vse among the Greeks . Indeed it elsewhere rarely occurres in this sense ; but cleerly in that old prouerb , 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , To put an armor , taken from a Pygmie , on a Colossus his back , it denotes nothing else but 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , g g Philostrat ▪ in vit. S●phist in Nic●te . Vnde emendes opo●te● deprauatos Su●dae Copices in 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . or 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , spoiles taken from dead or liuing , according whereto both Hesychius and Suidas haue expounded it . From which sense , I ghesse , it hath also been brought to signifie those kind of profits , taken ( as spoiles ) from the Land , which the Ciuilians call Ruta caesa , that is , h h Vlpian ▪ ff. de actionib ▪ e●pt . & vendit . l. 17. §. 6. trees cut down , coles , sand , or chalk digged vp , or the like , which we stile things seuered from the free-hold , and turnd into chattels , according as the Greek Lawyers i i Vett . Glossa v●rb . Iuris in 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . named them 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , Things that were taken from the ground , or free-hold . for so it agrees with our phrase . That , which first bred me this coniecture , was a corrupted place in an old i i Glossar . vet● . Graecelat . edit . ab H. Stephan● . Glossarie , where 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 is interpreted by Ruticilia . what can Ruticilia there signifie ? I conceiud it to be depraud for Ruta caesa , which is often read as one word . and no man can denie but that Ruta caesa may easily be stiled spolia or exuuiae villae , and by an easie metaphore be expressed in a word that signifies spoiles of warre . many corruptions much further off from the true originals , are obuious in the same Glossarie .

II.

The next passage of Tithes is in Iacobs vow . This stone , saith l l Genes. 28.22 . he , which I haue set vp as a pillar , shall be Gods house . and all that thou shalt giue me , I will Tithe and giue the Tenth to thee . which ( Iosephus saies ) vpon his return , being after XX. yeers , he m m Ios. Arch●●log . ● . c. 1 θ. performed , offering the Tithe of all his substance , or 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , the Tithe of all he had gotten . Into whose hands he gaue his Tithes , appears not ▪ But the chiefest Priest of that time was his father Isaac . For before Aaron , the Iews say , the Priesthood was wholly annext to the first born of families . Which n n Exod. c. 13.1 . agrees well with the sanctifying of the first born , commanded in Aegypt . Hence it comes that Melkizedek is commonly reputed to be Sem , the eldest sonne of Noah ( for so in this declaration he may be cleerly admitted ; although no small controuersie be whether he or Iapheth were the eldest ) and Noah , Abraham , and Iob and the like are accounted , o o Origen . lib. 1. in Iob. by this right , Priests of that time . and as Abraham , being in a right line X. degrees from Sem , gaue tithes to him being the eldest Ancestor of the house , or first-born , and so a Priest in Salem ; so it may be thought , that Iacob paid his vow into the hands of Isaac the chief of the family then liuing as a first-born , and a Priest also . But remember withall , that Iacob , although the yonger Sonne , is reputed also to haue had this Priesthood by the sale made to him of his elder brother Esau's birth-right , to which a Pristhood was incident . So was the ancient opinion of the Iews , as Saint Hierome p p In Epist. ad E●agrium . relates it . Simul & hoc tradunt , sayes he , quod vsque ad sacerdotium Aaron omnes primo geniti , ex stirpe Noe , fuerint sacerdotes & Deo victimas immolârint , & hac esse primogenita quae Esau fratri suo vendiderit Iacob . And expresse mention is of his exercising this holy function in q q Gen. c. 32.54 . sacrifices , during his fathers life . For , hauing gotten the right of primogeniture , and being long seuered from his fathers house , and hauing a distinct family and posteritie in his own power , notwithstanding his father were then liuing , yet had he that kind of Priesthood in him . For if this holy right came not to any till he had been the eldest of the family as well as the first born , how could Abraham be accounted for a Priest ? as expresly Origen and others reckon him ; which the forme of his offring his sonne Isaac also iustifies . He was neuer both first-born and eldest of his family . For Sem liued after him about XL. yeers , and kept that title from him ; but a first-born he was , and deuided also from his fathers houshold at the time of his tithes giuen him . whence obserue by the way that both Abraham and Iacob , according to this right of that time , must be Priests also , when they paid these tithes . No other expresse mention is of tithes before Moses his time ; vnlesse , with th Iews , you dream , that the Leuiticall Law was writen before the Creation .

III.

Let the ancients seeme to haue obserued a respect had to the quantity of what was , as a part of the yeerly increase , consecrated in those times to the Lord ; and that euen in the first memorie of sacrifice . Cain's offring was not regarded , they a a Tertull. lib aduers . Iudaos . alij item 〈◊〉 . say , because , quod offerebat non rectè diuidebat , hee did not well deuide what he offerd : which seemes to designe out a defect in the quantity ; as if specially some quota pars were at that time required . But this reason was from no other cause then the mistranslation of the text in the Story of Cain . For , where the b b Gen 4.7 . original is thus , Why is thy Countenance cast downe ? if thou doe well , is there not remission ? if thou doe ill , sinne lyeth at the door ; they read it farre otherwise , and thus ; quoniam , nonne , si rectè quidem offeras ; non recte autem diuidas , peccasti ? ●quiesce : which is all one with the Septuagints text , that in the Primitiue times was chiefly in vse , 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , say they there , 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . If thou offer well , but deuidest not well , hast thou not sinned ? bee quiet . And this passage of well deuiding , did Iulian , that witty Apostata , take , for a speciall question to oppose a Bishop in his time . But most agreeable to that translation , and not dissonant from the originall , is , that hee gaue with a grudging minde , and c c Cyrill . aduers. Iulian. lib. 10. not of the best and first of his fruit , as hee ought to haue done , and as the Heathen euer did , or by their Pontisiciall Lawes ought to haue done in their Praemessum , that is , the first fruits of their Corne , or their Calpar or vinum inferium , which was the richest of their wine . And it is expresly said , that Abel brought of his first fruits , but Cain only of his fruit of the ground ; the one giuing the Lord a portion of the best , the other not regarding of what time , what worth it were , so it were of his fruit . So , here is not any quota pars , or certain quantitie noted , but d d Ita D. Chrysost. in Genes. 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . in . D. Ambros. lib. 1. de Cain & Abel ▪ cap. 7. & lib. 2. c. 6. vide Epist ad H●bra●s . cap. 11.4 . 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , or the mind only of him that offered , and the qualitie of the oblation .

IV.

Yet to , if some Cabalistique and doting curiosities were of value , there might be some identitie , or at lest some affinitie between the first fruits of Abel , and the tenth part . The first fruits are in the text called 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 becoroth , the tithe 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 maighsher . Now the Iews make great and hidden correspondencies twixt things denoted by any two words , whose seuerall numbers made out of their letters , are equall ; their letters , as the Greeke , being all numerall . and two kinds of this Arithmetique they haue : the one in greater numbers , which is frequent with them ; the other in lesse . their practice e e Archangel . in Dogmat. Cabalisti ● . 19. in the second kind is thus : Out of euery Centenarie and Decad of the letters of a word they take a vnitie , and adde these to the rest , that is , the lesse numbers ; by which operation , if two words agree in summe , they thinke forsooth some great mysterie , of mutuall relation , twixt the things signified , is discouered . Those two of the first fruits , and tithes , by this way , are equal . For example . Dispose the letters and their numbers thus .

in the first , out of 400.200 . and 20. take 4.2 . and 2. that is a vnitie out of euery Centenarie and Decad ; and the summe is 8. which , added to the lesse numbers , make 16. Likewise in the second , out of 200. 300.70 . and 40. take 2.3.7 . and 4. ( there being no lesse numbers ) and you haue the same summe as in the other , that is 16. But take this only as a tast of such impious libertie as these kind of vanities giue ( mongst the Iews ) to make any thing haue mysticall reference to euery thing . Yet neither were Christians without the very like in the primitiue times . Witnes the Marcosian and Colabarsian heresies in their α. and ω. made the same with 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , and diuers other like by agreement in number . They indeed went so farre in this ridiculous kind , that they determined f f Tertull. lib. de Har●s . id genus plurim● habes apud Epiphanium . Tom. 3. lib. 1. cap. 1. & Irenaeum lib. 1. cap. 10. totam plenitudinem & perfectionem veritatis in istis literis ( numeralibus ) esse dispositam . witnes the Basdidians god , Abraxas . Nay some Fathers of those times so much regarded this arithmeticall way of search , that in this very storie of Abrahams successe with his companie of 318. and of his recouering the goods , the women , and people , they deliuer that the mysterie g g Clem. Alex. Stromat. 9. of our Lord crucified , was denoted . that number 318. is in Greek thus , τιη. For they reckond out of Greek , as the Iews out of Ebrew . in the 300. figured by τ. they supposd the Crosse foretold ; as otherwise it is vsually obserud vpon that of Ezechiel , cap. IX . 4. And 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . they took for the two first letters of our Sauiours name ιη or Iesus . Wherupon Prudentius h h In Pr●sat . ad 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . relating the victorie , saies , we should be very rich , as Abraham in his spoiles , Si quid trecenti , bis nouenis additis , Possint , figurâ nouerimus mysticâ . where , for bis , some Copies , without sense , haue his . but who sees not the vanitie of such mysteries ? Although too , the vnlimited libertie of our times , in so confidently daring to tell vs the mysterie of the number of the i i Apoc. cap. 13 . 1● Beast , would make a man giue the more regard to these collections out of numbers . Euery great Clerk , that deales with it , hath , for the most part , his seuerall word to make vp 666. Some for vs ; some against vs . And no doubt is ( that one old one may be added ) but he , which , long before Luther , made Sir Iohn Old-Castles name to fulfill that prophesie , thought he had been as neer truth as the best of them . Out of IOHN OLD-CASTEL in numerals k k Thomas El●ham Prior L●nt●n in Chr●nic . H●n . 5. in Biblioth. Bodleiana . he makes 701. and thence subtracts the yeer of his age , wherin he so charitably and stoutly tooke part with Lollards , and was condemned for heresie , that is , 35. and the rest being 666. notes him out ( saies he ) with the Character of the Beast . risum teneatis ? this in most miserable verse he expresses . Nor hath this dream of his , place here otherwise than as an old patterne of trifling boldnes , vsed in the later Arithmetique of many on that passage in S. Iohn : in whom are l l Hieron . Epist ▪ ad Paulinum . tot Sacramenta , quot verba ; and of whom the answer giuen by that great Doctor , Caluin , was as iudicious as modest . he , being demanded his opinion , what he thought of the Reuelation , m m Bodin . Method . hist. cap. 7. answerd ingenuously , he knew not at all what so obscure a Writer meant . he might best haue spoken it on this particular of the number ; to which , found by arbitrarie collection , who euer giues much credit , might vnhappily perchance be induced to beleeue some mutuall respect twixt Abels Offering , and Abrahams Tithes .

How , among the Iews , Tithes were paid or thought due . CAP. II.

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 error 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 Deuteronomie .

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 elsewhere then in the Land of Israel , and some adiacent Countries . Presbyteratus Iudaeorum totius Angliae anciently granted by the English Kings .

THe yeerly increase being either fruits of the ground or Cattell ; In the Law , of fruits of the ground , first , the first of the forwardest n n Exod. 23.19 . Leuit. 23.10 . Num. 15.20 . were offered to the Priest in eares of Wheat and Barley , Figs , Grapes , Oliues , Pomegranats and Dates . And , of these seuen only , the first fruits o o In Talmu● . in Seder Zeraim , Masse hotli Bicerim . atque inde re●centiores corum iurispe●iu . were paid in what quantitie the owner would . next , the Therumah or heaue Offering , or first Fruits of Corne , Wine ▪ Oile , Fleece , and the like , were also Deut. ●8 . 4 . giuen to the Priests . But it being not determined by Moses of what quantitie this heaue Offering should be ; the Iews anciently assest it to be enough at the Salomon Iarchi ●d ●ict . locum . 〈…〉 ▪ & D. ●ieronymus ad 〈◊〉 . cap. 45. & Cas●●anus colla● . 21. 〈◊〉 . 3. fiftieth part ; but so , that no necessitie was that euery one should pay so much . he that paid a sixtieth part was discharged ; and many of the better deuotion offerd a fortieth . The fiftieth part they call 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , an indifferent or competent Therumah , or heaue offering , which they namd also 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , the great heaue Offering . the fortieth they stile 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , a Therumah of a faire eye , or liberally giuen ; & the sixtieth 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 ▪ that is , a Therumah of an Hanc loquendi ●rmulam habes ●pud D. Matthae●● , cap. 20.15 . ill eye , or an niggards gift . But you may obserue too , that this , which they called a niggards gift , was not beneath the quantitie of the Therumah appointed in Ezek. cap. 45.13.11 . Ezekiel , where the words are ; This is the Therumah that yee shall offer ; the sixt part of an Ephah of an Homer of wheat , and yee shall giue the sixt part of an Ephah of an Homer of Barly . it is the same as if he had said , yee shall offer a Therumah of the sixtieth part of euery Homer . for an Ephah ( being the same measure with a Bath ; that is , neer our common Bushell ) was the tenth part of an Homer ; therefore the sixt part of an Ephah , the sixtieth of an Homer . After the Therumahs offerd to the Priests ( euery kind being giuen in season ) out of the rest were taken the Tithes . which are best diuided into the first and second Tithe .

II.

The first Tithe was t t Num. 18.21 . paid , out of the remainder , to the Leuites at Ierusalem by that name it is euery where u u Iudaei passim , & Ioseph . Arch. lib. 4. cap 7. To ●it . cap. 1. con . m. 7. titled . and , out of this Tenth receiued by the Leuites , another Tenth they x x Num. 18.28 . paid to the Priests ; as a heaue Offering out of their Tenth , which they called also the Tithe of the Tithe . For the Priests receiued no Tithes of the Husbandmen : only the Leuites receiued Tenths from them , and paid their Tenth to the Priests ; being ( as y y Epist. ad Fabi●lam , de veste Sacerdotali . S. Hierome sayes ) tanto illis minores , quanto ipsi maiores populo . So Clergie men , by that example , haue paid Tithes to the Pope ; and so by a z z Stat. 26. H●n. 8. cap. 3. late Law they doe in this Kingdome to the Crown . Neither might the Leuits spend , to their owne vse , any part of theirs , till this Tenth of the Tenth were paid . Afterwards it might be imploied for their maintenance generally wheresoeuer . This first Tenth paid ; the nine parts remaining , were a a B●n-Maimon i● Iad . Chazeka , part . 3. massec de Decimi● . c. 8. accounted 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , prophane , or for common vse ; yet not to be spent by the Possessor , till he had taken out of those nine b b Deut. 14.23 . another Tithe , which he was , the first two yeer , to carie to Ierusalem in kind , or if the way were too farre , to turne it into money ( adding a fift c c Iarchi ad eund. lotum . part of the value : for to this Tithe do the Iews apply that of Leuit. XXVII . 30 , and 31. ) and spend it there at the Temple in Feasts , which were neer like to the old Christians Agapae or Loue-dayes . and euery third yeer the same he was to spend vpon the poore and Leuits within his owne gates . After those Tenths thus disposed of , the remnant of that yeers increase they calld 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , as if you should say , euery way prepared or fit for common vse , or absolutely Lay Chattels ; the first nine parts being so only respectiuely . This other Tithe they stiled their second Tithe , or Tithe for Feasts , that is , ●●ephus lib. 41. Arch. cap. 7. 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 .

III.

Some make a third Tithe ; as e e Tobit . 1.7 . Tobit ; expresly vsing the name of 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , a third Tithe . 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 ( sayes he ) 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , And the third Tithe I haue giuen to whom it was meet . But he means only the Tithe of the third yeer , that is , the Tithe which euery third yeer ( after the first Tithe paid ) was to be laid vp by the husbandman in his owne gates for the Leuite that is within his gates , the stranger , the fatherlesse , and the widdow . Which f f Archaol . 4. c. 7. Iosephus also names 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , a third Tithe to be bestowed euery third yeer . and this the Rabbins call 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , the poore mans Tithe . And it is also titled a third ; but falls better vnder the second of our Diuision , and need not to made a third , nor is it . Nor , by the great g g D●atrib de de●imu Iudaorum . Scaligers leaue , can it be accounted the first , nor doth it at all answer to that . For the first Tithe was paid euery yeere , sauing the Sabbaticall . otherwise , whence should the Leuits and Priests haue their liuelode of that yeer ? and so expresly affirme the great h h Mos. Miko●zi in Mitzu●th , c. 135. ●en K●ttun . pr●c. 473. alij . Doctors of the Iews ; and that according to their Talmud or Canon Law ; that the first yeer first they paid the first Tithe , then the second , so in the second yeer ; and that , in the rhird yeer , after the first Tithe paid , they paid the 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , the poor mans Tithe . and that yeer 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , the second ceased , or was not paid . i i In Misnah Torah part. 3. de decima secunda , cap. 1. Ben-Maimons words are , that in the third and sixt yeers the poore mans Tithe was 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , in stead of the second Tithe . Neither can that in Tobit , touching the payment of the second Tithe euerie yeer ( wherein both the Greek and Ebrew of him agree , although in other things they much differ ) be otherwise well vnderstood , then for euery of the two yeers , vnlesse that text be wholly contrarie to the known practice of the Iews Canons . So then euerie third yeer the Leuits at the Temple mist their second Tithe for their Feasts and Loue-dayes ; the same being charitably , and by diuine Ordinance , spent at home in the gates of the husbandman . Neither doth the second and this poore mans Tithe differ in substance , but only in circumstance . The diuision of both , is exactly the same , and the persons appointed for the eating , are vpon the matter so to . For as the Leuits , ministring in their course at the Temple , were to haue part in the Feasts made of the second , so were the Leuits and the poore in the countrey entertained with this of the third yeere . The place , where the bestowing was , makes their difference ; substantially they are the same , and fitly goe vnder one name . which is fully to me confirmed by the Septuagints translation of that place in Deuteronomy , which we k k Deut. 26.12 . read according to the Ebrew thus : When thou hast made an end of Tithing , all the Tithe of thine encrease in the third yeer ( which is the yeer of Tithing ) thou shalt giue to the Leuits , strangers , fatherlesse , and the widow , that they may eat within thy gates , and be filled . They there translate it . 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 : and that is , When thou hast ended the Tithing of all the fruits of thy ground , in the third yeer ; the second Tithe thou shalt giue to the Leuit and the stranger &c. as in the common text . Where plainly , you see , the poore mans Tithe is expresly called the second Tithe , which iustifies our Diuision . Doubtlesse , they there in stead of 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 shenath hamaigsher , that is ; the yeer of Tithing ( as the text is ) found in their Ebrew Copies , 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 shenith hamaigsher , which they took for the second Tithe , knowing that in truth that place meant no other . Diuers passages in their translations are vpon such differences ; and they oftentimes giue thence a kind of commentarie as well as a translation . Neither is it ill context , that shenith of the foeminin gender should be ioind to maigsher of the masculin . it is not without frequent example in holy Writ . That their word 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 ( not very vsuall for Tithe ) was most proper , and hath no worse originall then l l Xenoph. hist. Graec ▪ α. Athens it self , where by that name , the Tenth of Mulcts and Goods confiscat , was sacred to Minerua . But this place of the yeer of Tithing , is interpreted by the common Glosse m m Salomon Iarchi ad dict. loc. Deut. of the Iewes by the yeer of one Tithe , as if the text had been 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , the yeer of one Tithe , or of paying only one Tithe . Which in substance exactly agrees also with the meaning of the Septuagint . For in the third yeere , sayes Iarchi , there was only one Tithe paid of the two commonly spoken of , that is , of the first and second . The first was only paid to the Leuits . The second , by that name , was not : but the poore mans Tithe in stead of it : and he so expounds it , that hee takes the mention of the Leuits there to designe out the first Tithe of that third yeer paid at Ierusalem , which plainly also confirmes what is here before declared . The second then , and the Tithe of the third yeer are the same in substance . The payment of all appeares in this example .

IV.

After the first fruits paid in eares , admit The increase 6000. Ephahs ; the heaue Offering at least must be 100. The remainder 5900. The first Tithe , 590. and out of this 59. to the Priests . The remainder 5310. Out of this , the second Tithe , 531. which euery two yeeres the Leuits had at Ierusalem , and euerie third yeere was spent in the gates of the husbandmen . The rest being 4779. was kept for the husbandman .

So that of 6000. Ephahs , the Leuits and poore had in all 1063. whole to themselues , the Priests 159. and the husbandman only 4779. Hee yeerely thus paid more then a sixt part of his increase , beside first-fruits ; almost a fift . Many of no small name , grosly slip in reckoning and diuiding these kinds of their Tithes . But this here deliuered , is from the holy text and the Iewish Lawiers .

Of their Cattell ; the first borne were n n Exod. 13. ● . 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 o o Leuit. 27.26 . & 32. 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 p p Iarchi ad Leuit. cap. 27. & Rambam in Massech . deprimogenitis , c. 7. 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 q q 2. Paralip . 31. Malach. 3. & Nehem. cap ▪ 13. 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 r r Rambam de decimi● ▪ cap. 9. 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 s s Ep ad Hebr ▪ cap. 7.9 . 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 , t t Epiphan. lib. 1. har●s . 16. Vide , si placet , Casaub●● . aduers. Baron . pag. 63. & 64. 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , 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. u u In serm , 103. 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , tom. 6. pag. 897. & 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . in Epist. ad Philippenses . tom. 4. pag. 54. editione Sauiliana . 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 x x Exod. 30.12 . 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 y y Luc. ●1 . 42 . Matth 2● . 23 . 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , 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 z z Deut. 16.12 . 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , 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 a a Ramb. part. 3. tract . de Th●rum●th cap. 2 & Mikotzi in praecept. 145. 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 b b Leuit. 19.9 , & 10. 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 c c In lad Chaz●ka tract . de Therumah , c. 1. & Mik●tzi●● Pracept. 133. 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 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 , Rot. Cart 1. Reg. Io● . part. 1. minib . 28. Cart. 171. 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 r●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 d d 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . lib. α. cap. α. 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 , e e Deut. 14.23 . & cap. 16. 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 .

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 f f Inquast . Romanis . 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 g g In Lucullo , alibi & D●odor . Sicul. Bibliothec. 5. he ( as other Ancients ) notes it as a speciall deuotion of some of the sonnes of Fortune . Neither is old h h Apud Aur●l . Vi●t . in Orig. G●● . Rom. 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 i i De natura Deorum lib. 3. Hercul● 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 . k k Plautus in Sticho . Haec vaenisse iam opus est quantum potest , Vti Decumam partem Herculi polluceam . whence the same Autor vses the name of l l In Tru●ulento . pars Herculana . and m m In Apolog●tici cap. 39. 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 n n Anno ab V. C. 607. Mummius , which got Corinth and setled it to the Romans , thus inscribed , and yet remayning at Riete .

o o I. Gruter . in Inscript . p ▪ 96. & I●s . Scalig. in Catalect . v●t . lib. tit . 14. plura de hoc Epigrammate , quae adijci possent , hae●e ad●ectere intempestiuum esset . 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 cuncta roganti .

Their Sancus was Hercules ; whom they vsually titled Semo Sancus Deus Fidius , and the title of this transcribed by some , is , Sanco Fidio Semo Patri , which I rather thinke they mistake for S. F. Semoni Patri . That de decuma donum was some speciall gift made with the cost of the Tithe of the spoiles ; and decuma verae rationis is there for the best of discretion and policie , as p p Saepius apud Symmachum in Ep●stolis . edecumata mongst the Ancients were the best and choisest parts , and q q Videsis Angel . Polit. Misc●ll . cap. 86 Decumanum the greatest and fairest ; as fluctus decumanus , scuta decumana , decima vnda , and the like . the great value that Hercules was by those vows honord with , is vnderstood in that of Phaniscus r r Plautus in M●stellaria act . ● . of Tranio . — vnus isthic seruus est sacerrimus Tranio ; is vel Herculi conterere quaestum possiet . But neither did the Romans and their next Neighbours thus Tithe only to Hercules ; but these their arbitrarie vows and thanksgiuings were sometimes also to other Deities . The old Pelasgi s s Dionys. ●ali●arnass . lib. 1. & Steph. 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . in 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . that transplanted themselues into Italie , gaue their Tenth of gaine out of Sea-merchandize , to Apollo at Delphi , according to the Oracles direction , which at Dodona before had told them , that being mixt with the Aborigines , 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , they should send their Tithe to Phoebus . That example of Camillus , is to euery one known . he vowd the Tenth t t Plutarch . in Camill . L●u . lib. 5. of the spoiles to Apollo , and most carefully took order , by aduice from their most learned Priests , to performe it . and Posthumius Dictator u u Vide Dionys. Halicarnass . lib. 6. & ● . long before vpon his happie victorie against the Latins , tithed the spoiles , spent fortie talents vpon sacrifices and prayers , in honor of the gods , and erected a Temple , with what remaind , to Ceres , Bacchus , and Proserpina . At other times also , on the generall worship of the gods , such a Tithe was spent . And other Deities , besides any of these , had somtimes Tenths of gaine ; as Fortune , Mercurie , being the gods of Trauellers and Tradesmen ; and the Deities of the way , or Dij Semitales ; as Vius , and others . so Noble Scaliger vnderstands that which Taurinus speaks of his father Caesius a Merchant , in an inscription x x Catalect . V●t● . lib. 1. tit . 14. to Fortune . Omnibus hic annis , votorum more suorum , Centenas adicit , numero crescente , coronas Fortunae simulacra colens , & Apollinis aras , Arcanumque Vij — Thus in Italie the custom was arbitrarily to pay and vow Tithes to their Deities , and continued in vse til the later times of the Empire , as appears also in that Law receiud from Vlpian by y y ff. tit. de ▪ Policit . l. 2. quis . §. 2. Iustinian . Si Decimam quis bonorum vouit , decima non prius esse in bonis desinit , quam fuerit separata . & si forte , qui decimam vouit , decesserit ante sepositionem , haeres ipsius , haereditario nomine , decimae obstrictus est . voti enim obligationem ad haeredem transire constat . by this it is manifest that though the vow , or payment without vow , were arbitrarie ; yet , vpon death , after vow made , the Heir or Executor of him that vowed was bound to pay ; according as also in like vows z z C tii . de Sacra● sanct. Eccles l 15. Si quis donauerit . of Houses , Land , or Chattels , to the honor of a Martyr , Prophet , or Angell , the Law was among old Christians .

II.

The view of these examples plainly disproues that assertion vsed by many out of Festus : Decima quaeque veteres Dijs suis offerebant . no such matter . some did , and only somtimes , and of some things , and most vsually to some gods only . Festus himselfe was too learned to haue left such a moniment of ignorance . No doubt is , but that which Festus had there in some larger note obserued , according to a truth agreeing with what is before opend , was too boldly contracted into that piece of vntruth , by his Epitomator Paulus Diaconas . as in him , so in many other , most obseruable things haue perished , both by the ignorance aswell as negligence of insufficient Epitomators . and Paulus is well taxed for it by the diuine Scaliger . Vide , saies he , quantum iuris barbarus ille sibi sumpserit in hoc loco mutilando ! indeed , most of that , which we call and receiue as Sextus Pompeius Festus , is Paulus his only , abridged out of Festus . and those of the midle a a 〈…〉 . opusc . aduers. Episcop. Laud● . na●s . c. 20. Ages cited it vnder the name of Paulus his Glosse . But when Scaliger there addes ; Vni enim tantum Herculi hoc fiebat ; he mends it not enough . for if it had been Decima quaeque . Herculi veteres offerebant , it had been false , if vnderstood as of Tithes vsed to be giuen by all or of all things . they consisted painly in vows and speciall thanksgiuing , which were wholly arbitrarie , as Tenths or Fifteenths giuen by the Subiect in Parlament . and had the offering of them been vsuall of yeerly increase , Cato , that in his de Re Rustica hath so fully the ceremonies of Sacrifices to be vsed by the husbandman in his Haruest , had neuer omitted it .

III.

The Graecians ( vnder which name , comprehend the Asians that were of Greek manners ) often consecrated their Tithes to Apollo . witnesse an inscription at Delphi , sacred to him , b b Clem. Alex. Stromat . α. hauing this Verse , 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . That we may hang vp Tithes and first Fruits to the honor of Phoebus ▪ And , that famous c c Herodot . lib. 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . Rhodopi● sent to Delphi as many spits , for vse in sacrifice , as the Tithe of that gaine which she had made of her body came to . The Crotonians , before their warre against the Locrians , vowd a Tenth d d Trogus histor . 20 to him ; and the Locrians , to exceed them that way , a Ninth . the Oracle hauing giuen it out , that rather by excesse in vows then armes ▪ the victorie should be gaind . To the same Deitie the inhabi●ants of Sip●nus gaue e e Herodot . lib. 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 yeerly the Tithe of their mines which they found in the Isle ▪ And after a victorie against the Thessalians f f Idem in Vrani● . had by the Pho●ians , they made two statues of the Tithe of the spoiles for him . Of Agit and Agesilaus the like deuotionis g g Xenophon Graec. hist. 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . & in vita Ag●silat . remembred . Other like examples are . Hence was Apollo called 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , as if you should say , Crownd with Tithes . And in regard the offerings to him were either the Tenth , or giuen as in liew of so much , they were stiled 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , as if you should say ▪ first fruit in Tenths . 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 — saies an ancient h h Callimach in hymn . ad Delum . to Delos , where Apollo was born and worshiped ▪ that is yeerly first fruits in Tenths are sent thee . so I vnderstand it . But also to others somtimes ioynd with him , the like offerings were . After Pausanias his victorie against Mardonius , the mony of the i i Herodot . lib. 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . Tenth of the spoiles was by consecration diuided , between Iupiter Olympius , Nuptunus Isthmicus , and Apollo elsewhere k k Xenoph. 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . Cyr. ● . Diana of Ephesus participars with him . To other Deities without him , somtimes was this honor giuen , as to l l Pausan. Elias . ● . & in 〈◊〉 . Iupiter : to whom also Cypselus m m Aristot. in Occ●n●●ile . 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . of Corinth , when he vowd all the goods of the Citizens if he could get the Citie , had speciall ●egard to the Tenth part , as competent to a Deitie ; when to performe his vow , he gaue yeerly , for ten yeer together , the Tithe of all their estates , and left them the nine for their maintenance and merchandize . And Cr●esus admonisht by Cyrus , would not haue the goods of the Lydians n n Herodot . lib. 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . ransackt by his Souldiers , 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , Because necessarily they were to be tithed to Iupiter . Somtimes Iuno hath this part ; as in o o Idem in M●lpo● . Samos , the Tithe of certain Merchants goods was consecrated to her in a Cup. Pallas sometime hath it . Diuers of the Boeotians and Chalcidians being taken prisoners by the Athenians and ransomd , the p p Idem in Terpsich●r . Athenians , with the Tithe of the ransome , consecrated a Chariot to her . She also had among them the Tithe of all goods q q Xenoph. histor. Grac lib. 1. & videsis M●ursi●● Attic. l●ct. 5. c. 13. confiscat , and that they calld 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . And a tradition was among them of Priapus a Genius of warre , that at Iuno's request taught Mars first to dance , and then made him a perfit Souldier ; that r r Lucian . 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . Iuno gaue him for a perpetuall salarie , all the Tithe of the spoiles that Mars should gaine in his victories .

IV.

These examples among the Graecians are , for some kind of Tithes vowd , or otherwise arbitrarily , or by some locall custom paid to speciall Deities . But testimonies are not wanting among them , as generall almost as that of Festus is for the Romans . 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 ( saith Harpoctation , and , out of him , Suidas ) 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , They vsed to Thithe their spoiles of warre to the gods . and Didymus s s Apud Harpocrationem in 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . an old Grammarian , tels vs that , 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , It was a Greek custom to consecrat the Tithes of their abundance to the gods . From whence both he and Suidas fetch the reason why 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , to Tithe , signifies also to consecrat . but therein they are deceiud . Neither doth the Greek phrase to Tithe , signifie generally to consecrat ; but in this notion it denotes only a speciall consecration of yong Athenian Maids made to Diana in her feast Brauronia . None by their Law was to t t Suidas in 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . haue a husband , but such as were then initiated to her ; and none was to be initiated but between fiue and ten yeers of age ; from which vtmost yeer ( because for the most part till then , they staid from these Rites ) the Virgins to be initiated , were calld 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , as if you should say , ten yeerlings ; and thence came u u Hesych . in 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 & Harpocration in 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . the word 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 to signifie , to this purpose only , to consecrat or initiat , which otherwise was exprest by 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . But if those Grammarians meant that al men paid their Tithes in Greece , and that of euery kind of their spoiles or abundance ; they deceiue much and are deceiud . you must vnderstand them as speaking of what was sometimes , and by vow or speciall thanksgiuing , done . Their saying it was a Custome to tithe , or that they tithed , is but like that of Cassius : mos erat Herculi decimam profanari among the Romans . It was a custome somtime and of somthings to doe it , as it was a custome to consecrat statues , haire , vessels , and other more such like to Deities . yet were those customes no more generall or binding all or done by all , then the custome , in some Cities among vs , to offer at wedding-dayes . it was a custome or vse to doe so ; that is , many men did so . The examples before taken out of story make that plaine . And in that sense only are these autors to be credited , touching the consecrating of Tithes to the gods in generall . For sometimes they were generally giuen to the gods , without any particular designed . Suidas x x In 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . relates an example thereof , among the Lydians . And when the Athenians had deuided Lesbos into 3000. parts , they y y Thucydides lib. 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , hoc est , 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , inquit Scholiastes vetus . consecrated 300. that is the Tenth , generally to the gods . and Pisistratus writing to Solon touching the tribute of a Tenth , sayes , that he tooke Tithes of euery one of the people , not so much for his owne vse , as L●●rt . de vit. Philos lib ▪ 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , as for publique sacrifice or the vse of the gods in generall . and the Tenth of what the Cooks in a a Scholiast . in Aristoph . 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . Athens kild for meat , was so due for a publique vse in honor of the gods , if my Autor deceiue not .

Here may bee added to the Graecians vse , the example of the b b Iustin. lib. 1● . Carthaginians , that sent the Tithe of their Sicilian spoiles to Hercules at Tyre . and you may remember that Arabian Law , wherein euery Merchant was bound to carry his Frankincense to Sabota ( which the Learned take to bee Saubatha in Ptolemie ; the chiefe Citie of Arabia foelix ) and there offer to their god Sabis the c c Plin. hist. 12. c. 14 Tenth of it , which his Priests receiued . neither might any sale be made of it till that was paid . Sabis doubtlesse was their Bacchus , Vranus , Iupiter , or Sabazius ; which are one . For the Deities of the Arabians were alwaies accounted but d d C●lsus ap. Originem lib 2. Ar●●●n . de g●st . Alex. 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . Strabo lib. 1● . Herodot . lib. 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . two : the god Vranus ( known also by those other names ) and the goddesse Vrania or Venus . it is neerest truth therefore , that their Sabis is the same with Sabazius , which was first corrupted from Zabaoth , commonly occurring in holy Writ as an attribute to the only and true GOD . and as this name , so the paiment of the Tenth very likely came to them from the vse of it among the Iews , their Neighbours , as also to the Carthaginians from their Ancestors the Phoenicians , that spake the same language with the Iews and conuerst most with them . Neither is it vnlikely but that the ancient and most known examples of Abraham , gaue the first ground , both to them and to the Europaeans , so somtimes to dispose the Tenth of their spoiles of warre to holy vses . For 't is no newes to haue the eldest of Iewish customs vsurpt ( though according to time and place diuersly varied ) amongst the Gentiles . What of later time is found among Mahumedans for the Tenth paid , must be referd to the Mosaicall Law , which they receiue as authentique , but keep it according to Mahumeds fancie , and the doctrine of his Canonists . You may remember here e e Apud Aeliarum 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , lib. 4. cap. 53. Eudemus his relation of some kind of beasts in Africa that alwaies deuided their prey into eleuen parts , but would eate only the Ten , leauing the Eleuenth as 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , a kind of first Fruit or Tithe . So saies my Autor , and take his word alone ; I am not his Suertie .

In the first foure hundred yeers after Christ . CAP. IV.

I. No vse of Tithes occurres 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 .

SInce our Sauiour , the time being about MDC . yeers , it will fall aptly enough so to diuide that number quadripartitly , that we may discouer the known Vse , Opinion , and Constitutions of euery foure hundred yeers , touching the dutie or paiment of Tenths . the difference or latitude of XX. yeers or some such number , either of increase or want ( as accasion shall serue ) being allowd . and the English Law and Vse ( because therein we shall be most particular ) being referd to the last seuen Chapters . Till towards the end of the first foure hundred , no Paiment of them can be proued to haue been in vse . Some Opinion is of their being due . and Constitutions also ; but such , as are of no credit . For the first ; 't is best declared by shewing the course of the Church-maintenance in that time . So liberall , in the beginning gf Christianity , was the deuotion of the beleeuers , that their bountie , to the Euangelicall Priesthood , farre exceeded what the Tenth could haue been . For if you looke to the first of the Apostles times ; then the vnitie f f Act. cap 4 34 . of heart among them , about Ierusalem , was such that all was in common and none wanted , and as many as were possessors of lands or houses , sold them and brought the price of the things that were sold and laid it downe at the Apostles feet , and it was distributed vnto euery man according as he had need . And the whole Church , both Lay and Clergie , then liud in common as the Monks did afterward about the end of the first foure hundred yeeres , as g g Homil. 11. in Acta . S. Chrysostome notes . 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 ( saies he ) 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , so they liue now in Monasteries , as then the beleeuers liud . But this kind of hauing all things in common , scarce at all continued . For we see , not long after in the Church of Antiochia ( where Christianitie was first of all , by that name , profest ) euery one of the Disciples h h Act. Apostol. cap. 11.29 . had a speciall abilitie or estate of his owne . So in Galatia and in Corinth , where S ▪ Paul ordaind i i Epist. 1. ad Corinth . cap. 16.2 . vide O●kam in Oper 90 die●um , cap. 107. that weekly offerings for the Saints should bee giuen by euery man as hee had thriued in his estate . By example of these , the course of monthly Offerings succeeded in the next ages . Those monthly Offerings giuen by deuout and able Christians , the Bishops or Officers appointed k k Vide Synod . Gangr . Can. 66 in the Church , receiud ; and carefully and charitably disposed them on Christian worship , the maintenance of the Clergie , feeding , clothing , and burying their poore brethren , widowes , orphans , persons tyrannically condemnd to the Mines , to Prison , or banisht by deportation into Isles . They were called Stipes ( which is a word borrowed from the vse of the Heathens in their collections made for their Temples and Deities ) neyther were they exacted by Canon or otherwise , but arbitrarily giuen ; as by testimony of most learned l l Apolog●tic . cap. 39. & videsis c. 42. Tertullian , that liued about CC. yeers after Christ , is apparant . Neque pretio ( are his words ) vlla res Dei constat . Etiam si quod arcae genus est , non de oneraria summa quasi redemptae religionis congregatur modicam vnus quisque Stipem menstruâ die vel cum velit , & si modo velit , & si modo possit , apponit . Nam nemo compellitur , sed sponte confert . Haec quasi deposita pietatis sunt . And then he shewes the imployment of them in those charitable vses . Some authoritie m m Vrban . 1. in Epist. c. 12. q. 1 ▪ c. 16. Sed & vide Euseb ▪ Eccles. hist. lib 9. cap. 9. Edict . Maximini , & lib. 10. cap. 5. Edict . Constant. & in lib. 2. de vita Constantini , c. 39 . is , that about this time lands began also to bee giuen to the Church . If they were so ; out of the profits of them and this kind of Offerings , was made a treasure ; and out of that , which was increased so monthly , was a monthly pay giuen to the Priests and Ministers of the Gospell ( as a salarie for their seruice ) and that eyther by the hand or care of the Bishop , or of some Elders appointed as Oeconomi or Wardens . Those monthly payes they called mensurnae diuisiones , as you may see in n n Cyprian . Epist. 27. & 34. & vide Epist. 36. editione Pa●nmeliana . S. Cyprian , who wrote being Bishop of Carthage , about the yeere CCL . and , speaking familiarly of this vse , calls the Brethren that cast in their monthly offerings , fratres sportulantes , vnderstanding the offerings vnder the word sportulae , which at first in Rome denoted a kind of running banquets distributed at great mens houses to such as visited for salutation , which being oft-times also giuen in mony ( as you may remember out of Mardial ) the word came at length to signifie both those salaries , wages , or fees , which either Papinian ss. de Occu●●on ● . 6 §. 1. & C. tit de ●portu●is & vide Glos●as Graec. 〈◊〉 in 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . Iudges or Ministers of Courts of Iustice , receiud as due to their places , as also to denote the Oblations giuen to make a treasure for the salaries and maintenance of the Ministers of the Church in this primitiue Age. and to this purpose was it also vs'd in later p p Concil. Chalced. A. D. 451 ▪ in lib. ●● . Samuelis & al. ●●ntra Iban . & videsis ●om . 3. Co●cil fol. 23● . cap. 31. edit. Binij penultima . times . But because that passage of S. Cyprian , where he vses this phrase , well shews also the course of the maintenance of the Church in his time , take it here transcribed . but first know the drift of his Epistle to be a reprehension of Geminius Faustinus a Priest his being troubled with the care of a Wardship , whereas such , as take that dignitie vpon them , should ( hee saies ) be free from all secular troubles like the Leuits , who were prouided for in Tithes . Vt qui ( as he p p Epist. 266. edi● . Pammel . writes ) operationibus diuinis insistebant , in nulla re auocarentur , nec cogitare aut agere secularia cogerentur . and then hee addes , Quae nunc ratio & forma in Clero tenetur , vt qui in Ecclesia Domini ad ordinationem ▪ Clericalem promouentur nullo modo ab adminstratione diuina auocentur sed in honore Sportulantium fratrum , tanquam Decimas ex fructibus accipientes , ab Altari & Sacrificijs non recedant , & die ac nocte coelestibus rebus & spiritalibus seruiant . which plainly agrees with that course of monthly pay , made out of the Oblations brought into the Treasurie ; which kind of meanes he compares to that of the Leuits , as being proportionable . But hence also 't is manifest , that no payment of Tithes was in S. Cyprians time in vse , although some , too rashly , from this very place would inferre so much . those words tanquam Decimas accipientes ( which continues the comparing of Ministers of the Gospel with the Leuits ) plainly exclude them . And elsewhere also the same Father finding fault with a coldnes of deuotion that then possest many , in regard of what was in vse in the Apostles times , and seeing that the Oblations giuen were lesse then vsually before , expresses r r De vnitate Ecclesiae ▪ § , 2● . their neglect to the Church , with , at nunc de patrimonio nec Decimas damus . whence , as you may gather , that no vsuall paiment was of them , so withall obserue in his expression , that the liberalitie formerly vsed had been such , that , in respect thereof , Tenths were a small part . vnderstand it as if he had said , but now we giue not so much as any part worth speaking of . Neither for ought appears in old moniments of credit , till neer the end of this first four hundred yeers , was any paiment to the Church of any tenth part , as a Tenth , at all in vse .

II.

But some Laws of this time yet remaine , which shew that Tenths out of Mines and of Quarries were paid , both to the Emperor and to the Lord of the soile ; as in the ancient state of Rome the Tenants of the Lands of the Empire paid for Rent the s s Appian . lib. 1. &c. Tenth of their Corne , whence the Publicans that hired it ( as the Customers doe here the Kings custome ) were called Decumani . those Laws for the tenths of Mines and Quarries , were made by t t C. tit de Metalla●iis l. 3. Cuncti . & ●in C. Theodos. lib. 10 ●it . 19. l. 10. & 11. Gratian , Valentinian , and Theodosius , Christian Emperors , about CCC.LXXX . and shew withall that they thought not then of any Tenth of such things , to be giuen otherwise , when indeed ( howeuer Cyprian might before haue cause to complaine in Afrique ) Christian bountie in Oblations ( especially at Rome ; and with proportion like enough in other Churches ) so inricht the Clergie , that their wealthie happinesse thence was much wonderd at , and not a litle , from thence , enuied . For the then Bishop of Rome his wealth from Oblations chiefly , you may see u u Amm. Marcellin . lib. 27. Marcellinus . For other of the Clergie , a whole Sermon is in x x Tom. 6. edit. Sauiliana , pag. 897. 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 &c. S. Chrysostom that liud at the end of this first CCCC . yeers , against such as enuied the wealth of the Church , that grew only out of such Christian deuotion to the Priesthood .

III.

As touching Opinion in that time ; Origen a great and most learned Father , liuing about the yeer CC. hath a whole Homilie y y Homil. in Nu●er . cap. 18. vpon the Text of first-Fruits in the Law , wherin while he teaches that some things are literally to be obserud , he well admonisheth that 't is the part of a wise Interpreter to find out which are so , and which not . And then first he deliuers his iudgement , that this of first-Fruits is one to be obserud still according to the letter , and giues this reason ; Decet enim ( as the Latin is : the Greek I neither haue , nor could euer learn that it hath been publisht ) & vtile est etiam Sacerdotibus Euangelij offerri primitias . Ita enim & Dominus disposuit , vt qui Euangelium annuntiant de Euangelio viuant , & qui Altari deseruiunt de Altari participent ; and a litle after addes also for Tithes : Et adhuc vt amplius haec obseruanda etiam secundùm literam ipsius Dei vocibus doceamur , addemus ad haec ; Dominus dicit in Euangelijs ; Vae vobis Scribae & Pharisaei , hypocritae , qui decimatis mentam , hoc est , Decimam datis mentae & cymini & anethi & praeteritis quae maiora sunt legis . hypocritae , haec oportet fieri & illa non omitti . Vide ergo diligentius quomodo sermo Domini vult fieri quidem omnimode quae maiora sunt legis . non tamen omitti & haec quae secundum literam designantur . Quod si dicas , quod haec ad Pharisaeos dicebat non ad Discipulos ; audi iterum ipsum dicentem ad Discipulos : Nisi abundauerit iustitia vestra plusquam Pharisaeorum & Scribarum , non intrabitis in regnum Coelorum . Quod ergo vult fieri à Pharisaeis multo magis & maiore cum abundantia vult à Discipulis impleri . And a litle after . Quomodo ergo abundat iustitia nostra plusquam Scribarum & Pharisaeorum , si illi de fructibus terrae suae gustare non audent priusquam primitias Sacerdotibus offerant & Leuitis Decimae separentur ; & ego nihil horum faciens fructibus terrae ita abutar , vt Sacerdos nesciat , Leuites ignoret , diuinum Altare non sentiat . And in this forme , and vpon these reasons , he brings in that of Tenths in the Gospell , to proue his purpose of first-Fruits . But in his conclusion vpon it , he leaues out Tenths , and speaks only of first-Fruits , thus . Haec diximus asserentes mandatum de primitijs frugum vel pecorum debere etiam secundum literam stare . What we haue transcribed shews both his opinion fully , and the ground of it ; without which specially obserued , error soon followes ofttimes in collection from autoritie . For Opinion of this time , thus much . More , I confesse , might be added out of some other great Fathers , as S. Ambrose , and S. Augustine . but because they fall so neer the end of our first age and continue into the second ; they are omitted here and referd to the beginning of the next foure hunderd yeers .

IV.

For Constitutions of the Church ; if you could beleeue those supposed to be made by the Apostles , and to be collected by Pope Clement the first you might be sure both of payment in the Apostles times , as also of an expresse opinion as ancient for the right of Tenths . there you read : a a Clement . in Con●●it . Apostol. lib. 2. Cap. 25. Quae secundum Dei mandatum tribuuntur , Decimas dico & primitias , insumat Episcopus vt homo Dei . and the right is there largely grounded vpon the Leuiticall commandement . But no man that willingly and most grosly deceiues not himselfe , can beleeue that this Constitution or diuers others there , are of any time neer the age of the Apostles , but many hunderd yeers after . The litle worth , and lesse truth , of the whole Volume is enough discouerd by diuers of the learned . and it was long since branded for a counterfait in an Oecumenicall b b Synod 6. in Trullo ▪ cir●a a. d. 690. Ca● . 2. Councell , when , doubtlesse , it was not yet neither so stufft with Canons of later birth , as since it hath been . neither are there greater arguments against it as now it is , then some passages of fact that obuiously occurre in it , among which this may cleerly goe for one . Had it been the Apostles ordinance or the vse of the Church in the Primitiue times , Origen , Tertullian and Cyprian ( hauing such occasion to mention it ) could not haue been so silent of it . And is it likely that all the old Councels , from thence till neer DC . yeeres after Christ ( which , being authentique beyond exception , haue speciall Canons for the lands and goods possest by the Church , the Offerings , Reuenues , and such more ) could haue omitted the name of Tenths , if either such vse or Apostolicall Law had preceded ? They talke of 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , the goods of the Church , 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 or Offerings of fruits ; but haue not a word any where of the Tenth part . And in those counterfait c c Canon . Apost. cap. 3. & 4. Canons also which some too credulously ( and those also that wholly reiect the eight Books of Clementines ) receiued as made by the Apostles , one is indeed of first Fruits ( although , touching them by that name , certainly no Law was made vnder the Apostles ) but no word of Tenths . Of a like credit , it s to be feared , is that which is attributed to a fourth Councell of Rome , held about the yeer CCC.LXXX . by Pope Damasus . indeed ( vpon Cardinall Baronius d d Baron . Annal. tom . 4. 〈◊〉 . 382. pag. 399. & ● . 384. pag. 427. edit. Plantiniana . his credit ) in the Vatican the Legend of this Pope , which was vs'd to be read in the Church , is extant ; and , with some miracles , are mixt in it certain decrees supposed his , and made in he knows not what Councell at Rome . of which one is ; Vt Decimae at que primitiae à fidelibus darentur , & qui detrectarent anathemate ferirentur , as he relates it . But those decrees , being taken out of the Legend of him , neither euer were receiud as Canonicall in the Church , nor hath the eldest Code of the Church of Rome , or Fulgentius , Cresconius , Isidore , Burchard , Iuo , or Gratian , mention of any of them . Not because what was taken to be truly his , was altogether wanting ; for the Canons of one Councell of Rome vnder him , his Epistles , and some Decrees are and haue been from ancient time , publique and dispersed in som of those Compilers ; and one e e C. 1● . q. 1. c. 15. hanc cons●etudina● . especially they haue of his time , which being made only for the disposition of such things as were giuen to the Church , speaks only of Oblations . but this of Tithes or any of the rest ioynd with it touching Vsurers , Witches , and other more ( which Baronius only and first publisht to the world , out of the Ms. ) none of them once remember . Neither before Binius his edition had any Volume of the Councels receiud into them a memorie of any such Decrees vnder this Damasus , or any Councell of his of that number . Those kind of Acts and Legends of Popes and others , are indeed vsually stufft with such falshoods , as being bred in the midle ages among idle Monks , not only grow ancient now , but are receiud amongst vs with such reuerence , that the antiquitie which the Copies haue gaind out of later time , is mistook for a Character of truth in them for the times to which they were first , by fiction or bold interpolation , referd . In summe , no example for the Synods of succeeding ages , no antiquitie for the Compilers of the Canons , had been of equall reuerence to this of a Pope , and done at Rome . neither had they omitted euery of those Decrees , had they been truly his . Confidently conclude , they are supposititious . yet remember too that some colour is for the truth of such a Constitution , in regard that about that time the first memorie is of Tithes by that name paid in the primitiue Church ; as in the next part of this diuision shall be declared . And were that f f C. 16. q ▪ 1. ● 68. quoni●m . vt genu●●nae D. Hieronym● memini● etiam Innocent. 3. in ext● de his qu● fiunt a Prael●tis . ● 7. cum . Apostolicae . Epistle not counterfait , which is attributed to S. Hierom , as writen to this Pope vpon that question : Vtrum vs as decimarum & oblationum secularibus peruenire possit , it might be good cause to maintain the truth of this Decree of his for Tithes . But plainly that Epistle is alike fained ; neither tastes it of him or of any time neer that age ; nor hath it been euer receiud among that most learned Fathers works .

From about the yeer CCCC . ●ill DCCC . CAP. V.

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 , and 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.

VI. No Canon or other Law was yet generally receiud to compell any payment of Tithes , although among the Offerings of deuout Christians , gifts of that quantitie , were receiued as due by the Doctrine then in vse , in some places only .

ABout the beginning of the next , or rather some yeers before the end of the first part of this diuision , and afterward , Tenths were paid , or , for holy vses offerd ( as the phrase was ) in diuers places , in Offerings of that quantitie ; and some testimonie is of Churches also endowd with the perpetuall right of them in the later halfe of this four hundred yeers . Great Opinion was now of their being due . And some Canons and Prouinciall Constitutions , attributed to this time , ordain a payment of them . But not aboue one of these ( and that 's only Prouinciall ) is of any credit .

That they were offerd vnder the name of Tenths in part of Italie , may be collected out of S. Ambrose who was Bishop of Millan before , and after the yeer CCC.XC . And the like for the Diocesse of Hippo may be supposd out of S. Augustines vehement Sermon for the payment of them . The words of both these Fathers ( which in relating their opinions are anon transcribed ) may enough proue , that some did in those times offer them . And it may be , g g In Epist. ad Nepositnum ●e vita Clericorum . S. Hierome pointed at the receiuing of Tithes then so offerd , in those words of his , spoken in the person of a Clergie-man . Si ego pars Domini sum & funiculus haereditatis eius , nec accipio partem inter caeteras tribus , sed quasi Leuita & Sacerdos viuo de Decimis , & Altari seruiens Altaris oblatione sustentor , habens h h ● . ad Tim. c 1 p. 6. ● victum & ves●itum ; his contentus ero & nudam crucem nudus sequar . But 't is no necessitie to vnderstand him so . it may well be , that de Decimis there is but a continuance of the comparison made by quasi Leuita ; as if he had said , But liue like a Leuite that liud of the Tithes , and seruing at the Altar , am maintaind by the offerings at the Altar &c. what in Gratian is falsly attributed to him , is before rememberd . In Aegypt also , some holy Abbots had Tithes of all fruits offerd them about the beginning of this age . Certatim Decimas vel primitias frugum suarum memorato seni ( to Abbot Iohn ) de suis substantij offerebant , i i Collat. Abbat . Theone , 21 ▪ cap. 1. & 2. saies Cassian , the Hermit that liud about the yeer CCCC . XXX . and the Abbot receius the offering with this kind acknowledgement ; Deuotionem huius oblationis ( cuius dis●ensatio mihi credita est ) gratanter amplector , quia fideliter primitias vestras ac Decimas indigentium vsibus futuras , velut sacrificium Domino bonae suauitatis offertis . Where it appears the Abbot receiud them as a Tresurer for the poor . And about the yeere CCCC . LXX . Christians also in Pannonia , by example of S. Seuerins bountie , gaue the Tenth of their fruits to the poor . Deuotissime ( saies k k ●ugippius in v●ta S. Seuerini , cap. 17. & 18. my autor that then liud also ) frugum suarum Decimas pauperibus impendebant ; quod mandatum , licet cunctis ex lege notissimum sit , tamen quasi ex ore Angeli praesentis grata deuotione seruabant . And a little after , he relates that the Inhabitants of Lauriacum ( which some take for Lorch in Austria ) being often admonisht by S. Seuerin , to pay the Tenths of their fruits to the poor , had notwithstanding omitted it ; wherupon , their Corne being blasted , they humbly come vnto him , poenas suae contumaciae confitentes , acknowledging their losse as a reward of their fault . And the Saint answers them ; Si Decimas obtulissetis pauperibus , non solùm aeterna mercede frueremini , verùm etiam commodis possetis abundare praesentibus . whence is seen both the receiud vse of offering them in that place , as also the opinion of Seuerin . And in a Prouinciall Councell at Matiscon . Conc●l . ● cap. 51 Mascon , held in the yeer D.LXXXVI . that is , the XXIII . of King Guntheram , by all the Bishops subiect to his gouernment in France , the payment of Tithes , into the hands of the Ministers of the Church , is spoken of , as of good antiquitie at that time , and grounded vpon the Mosaicall Laws , which they call there diuinas , and adde ; quas leges Christianorum congeries longis temporibus custodiuit intemeratas . that long time they speak of , might haue had perhaps beginning from the doctrine of those two great Fathers , S. Ambrose , and S. Augustine , about the yeer CCCC . whereof , more presently . But obserue also that , 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 m m Vide cum in Epist. ad Philippe●s . & Sermonem 103. ●n cos. qui Clericorum opulentam inuiderunt , Tom. 6. Edit. Sa●●liana . 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 n n Arelat. 4 c. 9. & videsi● c. 16. q. 1. c. 42.43 . & 44 . 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 ; o o Anseg●sus C●pitular lib. 2. c. 36. & vide lib. 2. cap. 15 . 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 p p Apud Molanum in SS. Belgii in 18. Octob. S. Monon's life . Beato viro ob titulum Christianitatis mactato Pipinus Rex regaliter Decimas obtulit , quas habet inter Letiam & Vrtam . So about the yeer q q Chronicon . Came●ac . & A●reb . lib. 1. c. 15. 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 r r Bonifac. Mogunt . Epist 151. Al●ae sunt ciusmo●i Donationes Pipini Regis & aliorum in Regesto Ms. Ecclesiae Vltraiect ensis , quod seruatur in Bibliotheca C●●toniana . & vide proximum caput de●a●re . 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 s s In Epist. ad Ethelbald . R●g . M●r● . apud G. Malm●sb . lib. 1. cap. 4. quod t●● de Carolo isthoc ibi dicitur , in editis Bonifaci● Epistolis deest . 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 ; t t Legend ●uch●rii apud Surium , tom. 1.30 . Febr. & vide Gratian. c. 16. q. 1. post Canonem . 59. edit. Gregorian . 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 u u Tom 9 pag 111. & 138. ●dit . ●la●tini●na . ●ed v●roin hacre alij aliter . & qui curios●s hic esse velis ▪ prae● . 〈◊〉 qua satis o●u●a●un● ▪ ad●is . Adreualdi autoris v●tustiss l●b. 1. de miraculis S. Benedicti , c. 14. 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 x x Inter Ep●st . S. Boni●aci● post. 78. x●de , si placet , Epist. 132 & Zachariae PP. ad ●um Epist. 142. 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 , ou● of euery Casa●a whereof a shilling was to be reserud to the Church or Monasterie , whence it was granted . That Casa●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 in gender ▪ often occurres in old Charters of our Saxon times , especially in the Lieger books of Worcester , and Abingdon . And in that of Abingdon , a Charter is of King Edwi , made y y A. D. 956. to one Brithric of quinque Cassati terrae , the title or rubrique being Carta quinque hydarum ; and another there is with the same rubrique , the words of the Charter it selfe being quinque Mansae ; whereupon by a Marginall note in an ancient hand , one obserues those two to denote but the same . Nota ( saies he ) quod Hidae , Cassati , & Mansae idem sunt . But this by the way . Of no lesse falshood or vpon other ground , then this fiction of Martell , is their z z C●nt . Madg●urg . 8. &c. V●teris huiusce ae●i sermonis ignari hallucinati sunt ▪ in ipsam Synodo ita legerant funda●as pecunias Ecclesia●um Ecclesijs restituimus . Et ita Codex vetutiss ▪ Ms in Thesau●o illo Cottoniano , pecunias autem Decimas significasse opinabantur sedperperam & ridicul● . Pecunia● ibi praed a sunt . relation which attribute to that Synod vnder Caroloman , these words , Decimas occupatas à prophanis restituimus . Neither course nor any storie of the time can iustifie it .

IV.

For the Opinions of Fathers in the beginning of this Age ; first , * * Tom. 5. serm. ser. 2. post . Dom. 1. quad●ag●ssima , & vide serm in Ascens . Domini . S. Ambrose thus , in a sermon of Repentance , teaches them due by Gods Law . Non nobis sufficit ( saies he ) quod nomen Christianorum praeferamus , si opera Christiana non facimus . Decimas nostras annis singulis de cunctis frugibus , pecoribus &c. praecipit erogandas Dominus . Then he ●ltes the Text of that Precept , out of Moses , and goes on with Nouem partes vobis tributae sunt , sed qui Decimas dare noluistis ad solam Decimam reuertotis . Next , hee reprehends other offences , and addes , Quicunque recognoscit in se quod fideliter non dederit Decimas suas , modo omendet , quod minus fecit quid est , fideliter Decimas dare , nisi vt nec peius , nec minus aliquando Deo offeras , aut de grano tuo , aut de vino , aut de fructibus arborum , aut de pecoribus , aut de harto , aut de negotijs , aut de venatione sua . De omni substantia quam Deus homini donat , Decimam partem sibi reseruauit , & ideo non licet homini retinere illud quod Deus sibi reseruauit . Agreeing with him , is S. Augustine in a whole Homily a a In serm. de Temp. in tom . 10. est vero 219. edit . Antwerp . atque ipsissima huius vocabula habentur in tractatu illo supposititio B. Augustino falso tributo , & de rectitudine Catholica conuersationis ▪ inscripto . for the right of them ; About Haruest hee made it ( if it be his ; for it hath been doubted whether it be his or no ) on the XII . Sunday after Trinitie . Propitio Christo , saith he , fratres charissimi , iam propè sunt dies in quibus messes colligere debeamus , & ideo gratias agentes Deo qui dedit , de offerendis , imò reddendis Decimis cogitemus . Deus enim qui dignatus est totum dare , Decimam à nobis dignatur repetere , non sibi , sed nobis sine dubio profuturam . and grounds himself vpon that of b b Cap. 3.10 . Malachy , the text of honor the Lord thy God with all thy substance , and the like . Then exhorts them . Decimae tributa sunt egentium animarum . redde ergo tributa pauperibus ; offer libamina sacerdotibus ; and admonishes , that , if they haue no fruits of the earth , they should pay the Tithe of whatsoeuer they liue by ; Quodcunque te pascit c c i. e. viuend● g●nus . ingenium , Dei est ; & ind● Decimas expetit vnde viuis ; de militia , de negotio , & de artificio redde Decimas . aliud enim pro terra dependimus , aliud pro vsura vitae pensamus . And then vrging more Texts out of the old Testament touching Tithes and first fruits , and telling them , that the neglect of payment is the cause of sterilitie and blasting ; Haec est ( he saith ) Domini iustissima consuetudo , vt si tu illi Decimam non dederis , tu ad Decimam reuoceris . And afterward with much earnestnesse , Decimae ex debito requiruntur , & qui eas dare noluerit , res alienas inuasit . & quanti pauperes in locis vbi ipse habitat , illo ●ecimas non dante , fame mortui fuerint , tantorum homicidiorum reus ante tribunal aeterni iudicis apparebit , quia à Domino pauperibus delegatum suis vsibus reseruauit . Qmi ergo sibi aut praemium comparare , aut peccatorum desiderat indulgentiam promereri , reddat Decimam . These two great Bishops agree ; and from the Law giuen to the Israelites , take their whole doctrine . S. Hierome is by some vsed for an autor to the same purpose , and that from his d d Ad cap. 3. Malachia . Commentarie to the text of Malachy , which ( after he hath opened the words of the Prophet , being only about the neglect of payment of Tithes and first fruits ; about the neglect of payment only , not the right of them ) are these ; Quod de Decimis primitijs que diximus , quae olim dabantur à populo Sacerdotibus ac Leuitis , in Ecclesiae quoque populis intelligite , quibus praeceptum est non solum Decimas dare & primitias , sed & vendere omnia que habent , & dare pauperibus , & sequi Dominum Saluatorem ; quod si facere nol●mus , sal●em Iud●●rum imitemur exempla , vt pauperibus partem demus ex toto , & Sacerdotibus & Leuitis honorem debitum deferamus . Who hence thinks , that his opinion agrees with the other two , may as well inferre , that he meant also , that all men were still bound to sell all they had , as in the Apostles times . Hee speakes only , as admonishing Christians to giue their almes to the poore , and double e e 1. Tim. 5.17 . honor to the Labourer in the Lords seruice , not binding them at all to offer this or that part , but leauing plainly a Christian libertie ; wherein yet , true deuotion indeed , as he means , should not be more backward then the Iews were , when they duly paid . He that indifferently reads him , will thinke no otherwise . Neither is S. Chrysostom at all different from him . He perswading f f Hom 〈◊〉 epist. 1 ad Corinth . in cap. 16. euen labourers and artificers to giue bountifully their offerings to the Church for holy vses , according to the Apostolicall ordinance in the Churches of Corinth and Galatia , brings the Iewish liberalitie in their payments of Tenths for an example ( beneath which , he would not haue Christians determine their charitie ) and sayes withall , that he speaks these things not as commanding or forbidding that they should giue more , yet as thinking it fit that they should not giue lesse then the tenth part ( 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , as his words are ) of all profits gaind either from the earth , or by merchandize , or whatsoeuer iust imployment either of person or estate . but not of Vsurie and Warre , which ( at least as it was vsed in those primitiue Ages ) was held by most Doctors g g Videsis Lactantium lib. de vero cultu cap. 18. & Tertull. de Corona Militis . of the time , as vniust as Vsurie . and indeed , where it was iust , there no part of the gaine or spoiles was to be giuen to the Priests , by the doctrine of some h h Abrah. Ben. ka● . ta● . pracept . 501. Rabbins , that affirm it as expresly taught i i Deut. cap. 18.1 . within a Text of Moses . But his exception of Vsurie agrees with the Canonists of late times , that will not haue Tithe paid of vniust gain , no more then k k Ibid. cap. 23.18 . the hire of a Whore , or the price of a Dog , was to be brought into the Temple . what is there called the price of a Dog , is by Iosephus l l Origen . Iudai● . lib. 4. cap. 7. taken for monie giuen for the lone of a Dog to breed withall . You may adde to the opinions of this time that of m m Homil. 16. in Euang. & dist. 5. de Consecrat. c. 16. 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 .

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 n n M●tis●o● . 2. Cap. 5. 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 o o Tom. 2. Conc●lior . fol. 90. 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 p p Decret. part. 3. cap. 11● . 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 q q C. 12. ● . 2. & 25 &c. of Gelasius ( whereto they are annext ) which Gratian hath in all , sauing this , according to Iuo , yet cites this passage in another place r r C. 16. q 1. c. 45. 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 s s Decret. G●las● , cap. 20. 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 t t Ex Binio in tom . 2. Concil. alij , qui de hac re agunt . 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 u u Decret. lib. 3. cap. 202. hath a marginall reference to some Councell of Orleans . It is most certain that the first Councel of Orleans , x x Concil. ●urel 1. cap 9.10 . & 11. 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-lands . and according to that , Burchard and Gratian y y C. ●0 q. 1 c. 7. de his . cite it ; who haue also those words that Iuo there hath , excepting only that of Tithes . And some other Prouincials of the z z Concil. Aurel. 3. cap. 5. & Aurel. 5. cap. 15. 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 a a Arelat. 1. cap. 11. of Orleans , and the ninth of b b T●l●ta● . 9. cap. 6. 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 c c Synod Rom. sub Syluestro Papa cap. 4. Rome as if it had spoken expresly of them , & writes all in no other syllables then d d De●ret . lib. 3. cap. 136. 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 e e In Prologo●m . ad Tom. 1. Concil. Crab well admonishes . A like falshood is in attributing , out of the same f f Part. 3. c. 174. Gar●●as apud Binium in Tom 2. Concil. ex eo alij . 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 quàm 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 extant , whole in diuers editions , as it was certified by eight Bishops which were at it ; and in that no taste is of any such matter . The old Ms. copie of Iuo , of or very neer his time , in the Librarie of Pauls , hath it ex Concilio Spanensi , the printed book being ex Concilio Hispalensi ; what Spanensi is , I know not . if it were Spalensi , it were the same with Hispalensi , for which Spalensi is alwaies in Isidores Councels , as Spania is somtimes g g Palladiu● hist. Lausiaca in M●lan● & in Concilio Sardi●ensi subscribit Osius ab Spania & Coltus ab Spa●ii● . anciently for Hispania . what euer he meant by it , cleerly the whole Canon is of much later time ; the first words of it also being nothing but the syllables of one of Charlemains Laws h h Ans●gisu● Capitular lib. 1● cap. 91 quod ipsum etiam habet Iuo part. 16. cap. 262. that was not made till DCC.LXXX . yeers from Christ . that is , Vnicuique Ecclesiae mansus integer absque vllo seruitio attribuatur . where Mansus is for a Farme or dwelling place , in the same sense as at this day Manse is vsed in the Laws of Scotland . Some others like these occurring are mistaken . and you may obserue that Gratian more warily abstaind from vsing such Canons mistitled ; among which also , from these . But the lesse falshood is to be imputed to Iuo , in regard that Burchard before him had almost all his syllables ; from whom hee transcribed . yet that excuses not his negligence committed in not carefully examining his autor ; which often causes grosse impostures , sometimes proceeding from malice , somtimes from ignorance , to be receiued as perfit truth ; especially by those that cite , without more regard , Prouinciall Synods absolutly there mentioned for the first of that name , when indeed they are often of farre later time . Slothful Readers are soon so deceiued . But among the known and cerain moniments of truth , till about the end of this CCCC . yeers , no Law Pontificall , or Synodall ( saning that of Mascon ) determins , or commands any thing concerning Tents ; although very many are which speaking purposely and larely of Church Reuenues , Oblations , and such like , could not haue been silent of them , if that quantitie had been then establisht for a certain dutie· You may see i i Synod . Agath . c. 4. & 7. & ●8 . Synod . Rom. 4. sub Symmacho PP. c. 4. & 6. edict . Leones . & Anthemii C. de Sacros . Eccles. L. 14 iubemus , &c. c. 10. q. 2. c. 2. Nouell . 120 & 131. Co●c . Paris . 1. cap. 1. Turonens . 2. cap. 26. Bracarens . 2. cap. 2. Leg. Wis●gothorum lib. 5. &c. enough in those to which the margin refers you ; all made in this part of our diuision ; none vsing other words ( to this purpose ) then facultates , praedia , 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , oblationes , vota fidelium , res Ecclesiae delegatae , or collatae , and the like , as the phrases are in the other first CCCC . yeers . some of which kind yet the Canonists and others , in Prouinciall Synods , haue in the later ages , compiling their Decrees , made to serue as if they had expresly named Tithes . as you may see in that example rememberd before out of Iuo , and Burchard ; in that of the Councell of Gangra in C. 16. q. 1. c. 57. in Canonibus ; in that of the 29 Chapter of Gelasius his Decree in the Councell of Tribur held DCCC.XC . cap. 13 ; in that of the first Oecumenicall Councell of Chalcedon cap. 17. in c. 14. of the same Synod of Tribur ; and in that of the ninth Councell of Toledo k k Burchard lib. 3. cap 135. & Iuo part. 3. cap. 201. in an old Councell of Cologne . hee that reads those old Canons only , as they are so applied , in late autoritie , to Tithes , might perhaps soone think that at first they were made specially and by name for them . The matter is plainly otherwise . what was ordaind in them about Oblations , is out of them in later times ( Tithes and Oblations being then supposed of equall right ) expresly extended also to Tithes . the word Oblations , as you see in those times , being vsuall for Tithes also when they were giuen ; and offerre Decimas was the common phrase , for to giue Tithes . About the end of these yeers in a Prouincial Synod held at Friuli in D. CC.XCI . vnder Paulinus Patriarch of Aquilegia , the words are , De Decimis verò vel primitijs ( saluis scilicet allegoricarum rerum mysticis Sacramentis ) nihil meliùs puto dicere quàm quod scriptum est in Malachia Propheta , dicente Domino ; inferte omnem Decimam in horreum meum &c. and vpon that place , the supposition of the dutie being grounded , a Commination is added ; Quis non timeat vel contremiscat illam maledictionem quam minatur nolentibus offerre ? The opinion of the Synod is here plainly seen . and it is rather a declaration by Doctrine , then a constitution by Precept .

VI.

But howeuer either this of Friuli , or that before cited of Mascon , had their Prouinciall authoritie , no Canon as yet was receiued in the Church generally , as a binding Law , for payment of any certain quantitie ; which not only appears in that we find none such now remaining , but also is confirmd by the testimonie of a great and learned French Bishop ( in whose Prouince also Mascon was ) that could not be ignorant of the receiud Law of his time . Hee liud and wrote very neere the end of this first foure hundred yeers ( I thinke , in the very beginning of the next . ) And , in a Treatise about the dispensation of Church reuenues , expresly denies , that before his time any Synod or generall doctrine of the Church had determind or ordaind any thing touching the quantitie that should be giuen , either for maintenance or building of Churches . Because his words are speciall autoritie also against those counterfeit titles of Canons before spoken of , they shall haue place here . Iam verò ( saith l l Agobardu● Lugdunensis de dispensatione &c. contra sacrileg●s , pag. 276. edit. Massoniana , Parisijs . he ) de Donandis rebus & ordinandis Ecclesijs nihil vnquam in Synodis constitutum est , nihil à sanctis patribus publicè praedicatum . Nulla enim compulit necessitas feruente vbique religiosa deuotione & amore illustrandi Ecclesias vltrò aestuante &c. This Autor is Agobard Bishop of Lions ( very learned , and of great iudgement ) and had not so confidently denied what you see hee doth , if any Decree , Canon , or Councell generally receiud , had before his time commanded the payment or offering of any certain part . How the autoritie of that Councell of Mascon stands with his meaning , I well conceiue not . But cleerly , hee speaks truth , in regard of what was generally receiud . For neither in the Codex Ecclesiae vniuersalis , or the Codex Ecclesiae Romanae , or Africanae , Fulgentius Ferrandus , Cresconius , or Isidores collection ( all which , in those elder ages , were as parts of the body of the Canon Law ) is once any mention of the name of Tenths . And indeed , that Councell of Mascon , with all other Church-Laws in m m Bonifac. Arch. Mogunt . epist. 132. Zacharia● PP. ibid. epist. 143. & Will●baldus in vita Bonifac. cap. 9. & 10. France , lay a long while neglected before Agobards time , as in the age of our fathers that of Mascon likewise did . Yet withall , no doubt can be made , but that in most Churches in this time , amongst the offerings of those of the deuouter sort , Tenths or greater parts of their annuall increase were giuen , according to the doctrine of those Fathers before mentioned , and those other testimonies . Whereto you may adde that complaint of Boniface n n Epist. 105. ad Cutbertum Arch. Cantuariensem . 〈◊〉 item Epistola 〈◊〉 videsis num. 107. Archbishop of Mentz , about D.CCL. against the Clergie . Lac & lanas ( sayes he ) ouium Christi oblationibus quotidianis ac Decimis fidelium suscipiunt , & curam gregis Domini deponunt . And in an Exhortation o o M● . in Biblioth. Cotton . writen neer D.CCCC. yeers since : Ille bonus Christianus est qui ad Ecclesiam frequentiùs venit , & de fructibus suis non gustat nisi prius ex ipsis Domino aliquid offerat ; qui Decimas annis singulis Pauperibus reddit ; qui Sacerdotibus honorem &c. These also shew a vse of payment among the firmer and deuouter Christians in those times . But they were then disposed of diuersly ; now you see to the Priests , now to Abbots , now to the Poor . and when they were offered to Baptismall or Episcopall Churches , they were receiud as indefinit Offerings , the quantitie whereof was wholly arbitrarie , in respect of any constitution or generall Law in vse . The quantitie of the Offerings was arbitrarie , but some kind of Offering was necessarie . He that offered not at all , of his fruits , was compellable , it seems , by Excommunication ( as in the p p Ph●t . Nomocan . tit . 5. & C. de Episcopis & Cleric . l. 39 Easterne Church ; where that compulsion also was taken from the Churches autoritie in the Patriarchat of Constantinople ) but not as yet , he that offerd a lesse quantitie . And that it was a speciall bountie to offer the Tenth , you may see in the old Aethiopian q q Biblioth. Patrum , tom. 4. Masse , where a distinct prayer is for those , Qui obtulerunt munera sanctae vnicae , quae est super omnes , Ecclesiae sacrificium scilicet r r Fortè legendum primitiarum & Decimarum . primarum Decimarum , gratiarum actionis signum & monimentum . And it seems the disposition of the Offerings were so in the Patrons power ( by the practice of some places ) that hee might assigne a s s Concil. 2. Bracarens . cap. 6. & vide Toletanum 9. cap. 1 certaintie of them to the Minister of his Church , and employ the rest at his pleasure ( which agrees enough with the right challenged , in the succeeding ages , touching Inuestiture and arbitrarie Consecrations ; whereof , more in the next CCCC . yeers ) although in this age also some Canons t t Concil Aurelianens. 1. cap. 13. of the Clergie subiected all new-built Churches to the Bishops gouernment ; but were little obeyed . For meere Church-Laws , hitherto . Some secular Constitutions are , that about the yeer D. CC.LXXX . were made for the payment of Tithes , by Charles King of France , Italy , and Lumbardy , and afterward Emperour . But because they fall so neere the end of this part of our Diuision , and are rather to be accounted amongst the Laws of his Empire ( which began not till neer XX. yeers after ; that is , about D.CCC. ) then only of his Kingdome , and were afterward receiud into the Imperiall Capitularies , whence we haue chiefest notice of them ; they are purposely referd into the next CCCC . yeeres , as the first Latitude , required in our Diuision , permits . Neither before them , did any generall Law , that yet remains in publique , and is of credit , ordain any payment of Tenths in the Westerne Church . For in the Eastern , neuer any Law , that I haue obserud , mentions them .

Between about the yeer D.CCC. and neere M.CC. CAP. VI.

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 ; wherein they passed as by themselues , from the Patron seuerally and directly in point of interest . The beginning of Parish Churches . Disposition of the Offerings 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 Tithes , 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 granted 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 .

THe practice found in the time twixt about D.CCC. and M.CC. from Christ , consists in some ordinarie payments of Tithes , as in the former ages ; in more frequent Consecrations of a perpetuall right of them alone to any Church , or Monasterie , at the owners choice ; in Appropriations of them with the churches in which they were by custom or consecration established ; in Infeodations of them into Lay-hands ; and in Exemptions for discharge of paiment . By the more generall Opinion of the Church , they are exprest to be due Iure diuino ; but that is warily to be interpreted out of the generall practice cleerly allowd by the Clergie . From the beginning of this time Canons are very frequent for the right of them . But the first Law that may at all be stiled generall for it , was ordaind by Charles the Great , and receiud , but litle practiced , through the Empire . Of all these in their order .

Not only from deuotion , but through Ecclesiastique censure also , aided with secular power , about the very beginning of this CCCC . yeers , many Churches in the Western Empire , had the Tenth paid as a dutie . This may be collected out of an Epistle writen by Alchwin to Charles the Great , touching the exaction of Tithes ( which hee calls iugum Decimarum and plena per singulas domus exactio ) of the Hunnes and Saxons ; who being then lately , by Charles , conquerd , had newly receiued the Christian faith , Alchwin there aduises , that it were better for the Christian cause , to omit it amongst them , till they were grown firmer , and speaks of it as a thing of known vse among other setled Christans . His words are : Vestra sanctissima pietas sapienti consilio praeuideat , si melius sit rudibus populis in principio fidei iugum imponere Decimarum , vt plena fiat per singulas domus exactio illarum . an Apostoli quoque ab ipso Deo Christo edocti & ad predicandum mundo missi , exactiones Decimarum exegissent , vel alicui demandassent dari , considerandum est . Scimus quia Decimatio substantiae nostrae valde bona est . Sed melius est illam amittere quàm fidem perdere . Nos vero in fide Catholica nati , nutriti , & edocti , vix consentimus substantiam nostram plenitèr Decimari ? Quanto magis tenera fides , & infantilis animus , & 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 * * Aliter Ecclesiastici . quod vid● prox . §. 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 a a Concil. M●g. 16. q. 1. c. 42. Metens . circae ann. 890. cap. 2. M●g ▪ circa a d ▪ 846 Benedictus L●uita lib. 5. c. 46. Laws ordaind in the first of these CCCC . yeers , that speak of Decimationum prouentu● 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 b b Leo 4. in c. 16. q. 1 de Monachis c. 45 &c. 56. & saepe in Capitularibus . 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 c c Leg. Lo●gobard . lib. 3. tit. 3. cap ▪ 7. Hlothari● Imp & in Addit . q. ad Capitular . cap 73. 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 d d Benedict Leuitae , lib. 7. c. 141. 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 e e Synod . T●cin●ns· c 16 q. 1. ● . in s●cri● Canonibus 56. 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 , f f Videsis , ante alia , diplomae ibid. dat ▪ 2. I●do●i●i 1. Imperatoris . in quo , quae superiores concesserant , recensentur . Omnem Decimam de Mancipijs , terris , & telonijs , vel de negotio , vel de omni re ; vndecunque ad partem regiam fis●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 g g Diplomat . ●7 . & 35 in Stemmat . ●otharingiae apud Francisc. de Rosicres 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 h h In placi● . de iurat . & assis . apud Cicestr . 47. Hen. 3. R●t . 44. 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 i i Biblioth. Cl●●iacens . pag. 265. 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 k k A. D. 948. Agapetus the second , l l A. D. 1144. Lucius the second , and afterward by Vrban m m Biblioth. Clu●ia● . pag. 1447. 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 n n Ex Tabular Monasterij a●ud Iaecob . irmondum in G. Vindoc●●ens . pag. 66. 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-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 o o Goffrid . Vindoci●ens lib. 3. Ep●st. 41. 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 p p Ita etiam Petrus Cluniac . lib. 1. Epist. 33. & 36. Decimam reddere debet , si illud iustè possidere desiderat . Hoc tenet Italia , hoc tenet Gall●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 q q In Diplomat . Ludouici Crass● apud Andream Quercetan n Noti● ad Petrum Abelardum , pag. 1174. Decimam de Berchorellis , and Duas partes Decimae de Ber●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 r r Innocent . 3. Epist. Decretal . lib. 2. pag. 435. edit. Coloniensi . 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 s s Vide , si placet , Chartam Galfr●d● Viceconitis Monasterio S. Dionisij datam apud Andr. Qu●r●etan . in notis ad Bibl. Cluniac . pag. 14. Chartam W. Comitis Niuern . apud eundem pag. 174. Adelardi Cast●igunterij Dom. apud la● . Sirmondum in notis ad Goffr . Vindoc . pag. 95. Gottefredi Bullo●●i . apud Aubert . Miraum in lib. de Canonicis Collegijs c 91 Innoc. 3. Epist. Decret. l. lib. 1. pag ▪ 160. noted in the margin , but especially wher anon we haue the practice of our own t t Cap. 11. 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 u u In serm. ● . de Dedication● Templi pag. 83. Tom. 1. nec vigo●em eiusmodi donationes obt●nere san●●uit ille , extr. tit. de De● c 7 cum . Apostolica . 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 x x Decr●ral . Epist. lib. 1 pag. 83. reprehension of them , and y y Extr. de Paroch . cap. 5 si●nificauit . 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 z z B●nedict . Leui●a Capitular . lib. 5. cap ▪ 46. Conc. Megunt . c. 16 q. 7. c. 7. Leg●s Longobard . lib. 3. tit. 3 cap. 8. 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 redim●at●r . For , howsoeuer Hincmar Bishop of Rheims , in reprehending a a Apud Fl●d●ard●m in hist. Ecclesia Rhemensis , lib. 3. cap ▪ 25. 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 b b Summa part. 3. qu●st. 51. memb. 6. art. 4. 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 c c Vide etiam quae in proxima sectione de Danis . Turingis , alijs item adferuntur . 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 the Appropriations then vsed cannot be vnderstood . Briefly therefore , for Parish Churches ; it is plain that as Metropolitique Sees , Patriarchats ( Exarchats also in the Eastern Church ) and Bishopriques : those greater dignities , were most vsually at first ordaind and limited d d Videsis Anacl●● . & Steph. PP. in Epist. Decre● . Hin●mar . Rh●mens . in Opusc. 55. ca. 15 & Consulas inprimis Iosephum Scaelig●rum in Not●tia Gallia , & in Epistolu pag. 247. editione Francosurtana . & Ph. Berterij , Diatribas in Pithanon . according to the distinction of seats of gouernment , and inferior Cities , tha had been assigned to the Substituts or Vicarij of the Prefecti-praetorio or Vice-Royes of the East and West Empire , so were Parishes appointed and deuided to seuerall Ministers within the Ecclesiastique rule of those dignities , according to the conueniences of Country Towns and Villages ; one or more or lesse ( of such as being but e e Concil. Sardic . cap. 6. small Territories might not by the Canons , be Bishopriques ) to a Parish ; the word Paroecia or Parish at first denoting a whole Bishoprique ( which is but as a great Parish ) and signifying no otherwise then Diocese , but afterward being confined to what our common language restrains it . The Curats of those Parishes were such as the Bishop appointed vnder him to haue care of soules in them , and those are they which the old Greek f f Neocasar . cap. 58. & vide Anti●chen . cap. 87. & 89. Councels call 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 or 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 or 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , Prebyteri a a Leg. Aleman . cap. 13. Parochiani , within the Bishoprique . neyther were the Chorepiscopi much different from them . These had their Parishes assigned them , and in the Churches where they kept their Cure , the offerings of deuout Christians were receiued , and disposed of in maintenance of the Clergie and reliefe of distressed Christians , by b b Vide Concil. Gangr . Can. 67 & Chalced. Can. 204. the Oeconomi , Deacons , or other Officers thereto appointed vnder the Bishop . Neither had those Parochiall Priests at first such a particular interest in the profits receiued in Oblations as of later time . All that was receiued wheresoeuer in the Bishoprique , was as a common Treasury to bee so c c Vide Concil. Antioch . c. 103. & 104. & Vrban . c. 12 q. 2. c. 26. dispensed . One part was allowd to the maintenance of the Ministerie ( out of which euery Parochiall Minister had his salary , according to the monthly pay spoken of in the first CCCC . yeers ) another to the reliefe of the poor , sicke and strangers , a third to the reparation of Churches , and a fourth to the Bishop . so it appears by the ancient d d Synod . Rom. sub PP. cap. 5. & Gelasis Decret. cap 27. atque hic diuisionis modus in vsu erat vetustioribus istiusce aeui Christianis ; quod innuit Wala●ridus Strabo ( qui floruit a.d. 840. lib de r●b . Ecclesiast. cap. 17. vide Grat. c. 12 q. 2. c. 26 & seqq . Canons , if we may at least herein , coniecture of the vse of the time , by what they haue ordained . And it is like enough to haue been no otherwise , so long as these Parochiall functions were so personall that they were not as now , so annext to foundations and endowments , but rather exercised as by messengers , sent from the Bishops , who had no such reference to Lay-Patrons , as they that afterward came in vpon Inuestiture or Presentment haue had , but only were protected by some appointed by the State for e e Vide , si placet , Theodor. Balsamon . in 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 pag. 454. post Con. Carth. Can. 7. Iusti●ian . Nouell . 15. & Capitular . Karol . & Iudonic . lib. 5. cap. 31. & lib. 7. cap. 508. 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , or Defensores of the Church , as they called them . the name of Defensores being in the primitiue time , for this and other purposes , giuen to such Protectors , 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , in regard of their assistance and helpe to such as sufferd iniury , as Iustinians words are . And in the first ordination of this Hierarchie of Bishops and Parochiall Priests , it seemes , in some Lands wherewith the Bishoprique was endowed , the Churches were erected , in which the Bishop had a kind of right of aduowson ; who , taking on him the generall care of his Diocese , ordained Incumbents in euery of them . and the oblations there receiud were of the Churches common treasure , and so to be diuided and disposed of quadripartitly . But that quadripartit diuision was chiefly in the Diocese of Rome . For by some f f Concil. Aurel. 1. cap. 13. Toletan . 9. cap 6 Bratar . 2 ca. ● . & vide Anse is Capitul●r lib. 1. c. 87. & Addit ad Capitu●ar 4 ▪ cap. 37 &c. 9. q. 3. c. 2. & seqq . Canons of the French , Spanish , and some other Churches , it was tripartit , and had other differences . But , all this in the primitiue times . and from the first establishing of Christianitie by a disposition of the Hierarchie , till about D. yeers from Christ , it seemes , it continued . and such kind of Parishes only were those spoken of in that Epistle of Pope g g In Epist. Decr●tal . & in c. 13 q. 1. c. Ecclesia● . Denis the I. about CCLX . if at least that Epistle be not a fiction . if it be , then our Canonists doe ill to vse it at all . if not , then plainly they abuse it , where they pretend in it an originall of such kind of Parishes as since for the most part haue had their beginning from lay-foundations . But not long after such time as lay men began to build and endow Parish-Oratories or Churches in their Lordships , and in them place or inuest Chaplaines ( ordaind , that is , made Priests by the Bishop , but not instituted by Presentation as at this day ) that might receiue the offerings of such as repayred thither for holy seruice ; that former kind , of making a common treasurie in euery Diocese , was discontinued , and the Chaplaine or Incumbent , acknowledging the Lord , of his Churches Territory , for Patron , ( not much otherwise then , as in the ancienter course , euery Parochiall Priest did the Bishop that collated to him ) receiued now the profits that rose out of Christian deuotion , to a particular vse of his owne Church ; the Canons neuerthelesse sauing the fourth part to the Bishop . For , that Episcopall right grew afterward to bee so established by the receiud h h Extr. de Offic. iud. cap 16. conquer●ute , & de praescript . c. 4. de quarta Canon Law , that till this day , where prescription of XL. yeers excludes not , the fourth part of all Oblations and Tithes are , by it , due to the Bishop . and some i i Panormit ad tit. de Decim . c. 1. ● . 3. Canonists make it as a duty succeeding in lieu or proportion to the Tenth of the Tenth that was payd by the Leuits to their Priests . But howeuer the Canons were ( in which also it had beene often constituted , that euery Church k k Dist. 96. &c. 16 q. 7. passim . and the profits thereof should be subiect to the Bishops disposition , as to the only immediat superior ; and in some l l Dist. cap. 26. pia m●●tis . that the founder should be vtterly excluded from all interest ) yet diuers lay-Patrons in those elder times had , or at least challenged , in the Oblations receiud from Christian deuotion in their Churches , an interest somewhat like to what more anciently the Bishop had in the offerings made at the Churches wherein hee only placed the Ministers . Whence the erecting of Churches became , amongst some , to bee rather gainfull then deuout . for the Patron would arbitrarily diuide to the Incumbent , and take the rest to his own vse . This is manifested in the II. Councell of Bracara , held about D.LXX. where a Canon forbids the consecration of Churches built not pro sanctorum patrocinio , but sub tributaria conditione , as the vse was of some places ; that is , to the end that the lay-founder might haue halfe or other part of the Oblations . Si quis , are the words , Basilicam non pro deuotione fidei sed pro quaestu cupiditatis aedificat , vt quicquid ibi de oblatione populi colligitur , medium cum Clericis diuidat , eo quod Basilicam in terra sua quaestus causa condiderit , quod in aliquibus locis vsque modo dicitur fieri , Hoc ergo de caetero , &c. And such a practice is titled a custom of the ancient times in an Epistle m m 1. C. 10. q. 1. c. 15 attributed to to Pope Damasus . And in the IX . Councell of Toledo about the yeer DC.LX. Lay-Patrons are forbidden to vse iuris proprij potestatem in Church goods or lands , as if great pretence in those times had been of their right in disposition of them . and , in the Imperiall Capitularies of about the yeer DCCC . diuers times prouision is made against such lay men as thought it had been their right only to dispose of the endowments and offerings of such Churches as they were Patrons of , and that the Bishop should bee wholly excluded . But it fell at length that , without much difficulty , the Church , what through Constitutions , what through Constitutions , what by their Doctrine , had remedy for this vsurpation vpon the Offrings solemnly consecrated to the Priests at the Altar . And in the following times it had been abstaind from as the playnest part of sacriledge . Yet neuerthelesse , another interest , that is , the interest of Patronage , and a right of disposition of the Temporall endowments , which the Lay founders first challenged in their new erected Churches , which was a right of Collation or Inuestiture , whereby the Incumbent might receiue full possession without ayd of Bishop or other Church-man , could not so easily be gotten from them , although some n n Capitular . Kar●li & Ludouici lib. 7. c. 213. Imperials were prouided against it . For although no lay man could , of himselfe , make any building to bee a Church , without the Bishops consecration of it ( as euen among the Gentils , it was carefully foreseen , that in all new Temples o o Cicero in Orat. pre domo sua . one of the Priests solemnly holding a Pillar of it in his hand , should make the dedication ) yet it being consecrated and endowed , the lay Patron , in these ancient times , tooke vpon him not only the Aduocationem , or aduowson ( that is , the defence or patrocinie of the Incumbents title ; as officium aduocationis is vsed in the d d Vlpian . ff de rei vindicatione L. 540. Imperials ) but also the Collation by Inuestiture without presentation at euery vacancy . And the right of aduowson ( wherto the other of Inuestiture in those times was annext ) in some places the Bishop confirmed to him by putting a Robe or such like on him at the dedication . as the example q q Anonym . in vita S. Vdal●ici cap. 7. is of Vlrique Bishop of Auspourg , in one of his dedications , about DCCCC . L . where Consecratione peracta as the Autor sayes ) dotèque contradita comprobato illic presbytero , altaris procurationem commendauit , & Ecclesiae Aduocationem firmit●r legitimo haeredi , Panno imposito , commendauit . From this right of Collation and Inuestiture reserued by Lay-Patrons , the practcie came to be that Parish-Churches and all the temporalties annext to them , as the glebe and tithes ( and what else in succeeding times became to be endowments ) were at euery vacancy , conferd by the Patrons to their new Incumbents , by some ceremony , not differing from our liuerie of Seisin ( which is nothing but Inuestiture ; for Inuestiture r r Iuo Carnotens . Epist. 41. & passim 〈◊〉 . is only the immediat giuing of seisin or possession ) with these words , s s Petru● Dam●an . lib. 1 Epist. 13. ad A●exandr. 2. Accipe Ecclesiam , or the like . Neither vpon presentation did the Bishop institute , as of later time the vse had bin . and wheras , at this day , nothing passes out of the Patron , or vests in the Incumbent , in point of interest ( the presentation being only as a nomination , and the interest and possession being immediatly had from the acts of the Bishop and Archdeacon ) it was far otherwise in these elder times . For the Incumbent as really , as fully , and as immediatly receiued the body of his Church , his glebe & what tithes were ioynd with it , in point of interest from the Patrons hand , as a lessee for life receiues his Lands by the Lessors liuery . whence by the phrase of the time that kind of giuing a Church was stiled t t Benedict . Le●●t . lib. 5. cap. 83. & Addit . 4 c. 37. & Synod . Rom. c. 16. ● . 7. c. 33. Monast●rium . Commendat●o Ecclesiae , that is , the Lay Patrons committing or liuery of the Church and the endowments to the Incumbent to take care of and dispose as a Vsufructuary of what the Patron was Proprietarie , or as a Tenant of that whereof hee was in the reuersion . and in such sense is Commendo vsed , ioynd often with trado , in Tully as , Commendo , ac trado . and hence came the Commenda , wherein not the Title , but possession , profits , and custody of the Church is committed . and the difference is obuious between Ecclesia titulata & commendata commendata hauing chiefe reference to the possessions . And hence was the name of Benefice , for a Church and endowments so giuen . For as such lands or annuities , as in the Empire , were giuen for perpetuall salaries to military persons , had the name of Beneficia , so , what was thus conferd vpon spirituall souldiers in the Church , had afterward the like title . But , at this Commendation of the temporalties so made only by the Patron , the Bishop indeed had the vsuall consecration of the Incumbent , but nothing at all to do with the disposition of the church or endowments . For , the Law then being that Orders could not be giuen 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , u u Concil. Chalc●d . ● Can. 114 & dist. 70. vide si place● ▪ extr. de prebend . cap 16 ▪ cum secundum . sine titulo , or absolutely , but only when a Title of a Church , or some speciall Ministery was at the same time assigned to the ordaind Clerk ; all orders otherwise giuen being void , so that at euery new inuestiture a lay Patron could not haue ( as at this day ) a Clerk alwaies ready made for his Church ; it was a necessity that for euery new inuestiture ( vnlesse a resignation of some other Church had preceded ) the Bishops Ordination or Consecration was to bee vsed , which afterward grew to be what now is Institution . And although the character of Orders were generall , in so much that , as now also , he that receiud them was a vniuersall Priest , yet , in euery Ordination , speciall expression was made of the Title of the Church ( that is , the Saint , Angell , or Martyr , to whose memory the Church was dedicated ; in words x x Ordo Romanus de Diuinis Off●c●is . to this purpose : Eligimus in Ordinem Presbyterij &c. ad titulum S. Mariae , ad Ecclesiam quae est in pago illo &c. ) to denote that the end of it was that the Ordained should there exercise his spirituall function , and not leaue it during life . for which a Law was made also that such as were to be consecrated or ordaind by the Bishop , should before they were ordaind by the Patron in the Church ( for the Inuestiture or Commendation was also an Ordination ; and by the name of y y Videsis Duaerinum de sacris Eccl. Ministerii● lib. 1. cap. 16. Ordinatus also , was hee denoted that was so inuested should either by oath or caution secure their continuance vpon that Church only . so you must z z Leuita lib. 5. cap. 108. vnderstand that in the Capitularies , Vt Presbyteri qui in Titulis consecrantur , secundum Canones , antequam Ordinentur promissionem , stalitatis loci illius faciant ; the vse then , it seemes , being , that Clerks ordaind would at their pleasure resigne into the Patrons hand ( for it is probable , that resignation a a Vide ●undem , lib. 6. cap. 197. & lib. 7. cap. 173. in those times , into the Patrons hand , without assent of the Bishop , like surrender of particular tenants to them in the reuersion , was in practice , and deuested the title of the Church ; although at this day , by the Canon Law , it be grown cleerly otherwise ) and being then capable , without new ordination of the Bishop , of any Spirituall Function , would take Inuestiture of other Churches without consent or knowledge of the Bishop ; against which also , some Laws b b Vide ●undem , lib. 5. cap. 26.43 . & 82. were made in the beginning of this CCCC . yeers , but , with the rest , litle obeyed . From this vse of Commendation , or Inuestiture , it came also , that if an Aduowson had descended in coparcenerie , the Church had as many encumbents as the parceners had parts . Singulae partes c c Addita ad Capitul . cap. 25. & Concil. Lateran . sub . Alex. 3. Can. 17. & vide ▪ Append . addict . Concil. part . 15. cap. 7. singulos habebant Presbyteros : Euery of them giuing an interest in a part , according as they might haue done of any other inheritance descended vnto them . Nor ( as it seemes ) from other originall then this challenged and practiced interest , came those droicts honorifiques des Seigneurs es Esglises ( whereof you may see the Treatise lately written by Matthias Mareschal ) and the custome yet remaining in diuers places , especially in France , whereby the Incumbent d d Vide extr. tit. de Prabend . c. 30. ex●irpand● . & de iur● patron . c. 23. pr●ter●a . & lib. 6. tit . de Pr●bi●di● , cap. 1 ▪ suscepti & le Code des Decis . Fortens . Decis . 15. lib , 1. tit. 10. hath not for himselfe aboue a small part of the Tithes , at the arbitrarie disposition of some spirituall Patron , who takes the rest ( according to this anciently practiced interest of Patrons ) to his own vse . What is so allowd to the Incumbent , is stiled his Canonica portio ; which was , I think , e e Chro●i● . Richersperg . pag. 176. & 204. reserued to him in some Grants of the Archbishops of Saltzburg as Patrons , of their Tithes , to the Abbey of Richersperg in the yeer M.C.XLIV . Neither let any man out of this , or from other autoritie in f f Vide Synod . v●●ust . sub Ioann . 9. An. D. 904. vt omnis decimatio &c. & Synod . Augusta●am , an. 952. &c. Canons , gather , that all Tithes were arbitrarily disposed of by the Bishop in these midle times ; which yet is falsely affirmed by some that rashly thinke , what euer a Canon mentions ( because some of the Clergie would haue had it so ) was a practice of the time . but the contrarie plainly and frequently appears . only as in the primitiue times , when Parishes were not distinguished by limitation of Ecclesiastique profits , but only by the Ministers Function , the Bishop alone challenged , and frequently had , all Offerings , or 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , as appears in those old Canons before mentioned , and especially in those of the Councell g g Vide Concil. Gangr . cap. 7. & 8. & ad ea Z●nara● . of Gangra , made against the Eustathians ; so also after payment of Tithes grew into more vse in these midle times , he pretended by the Canons ( as in the examples which wee anon haue of the Turingians , and those of Holtz ) a right to Tithes through the whole Diocese , as his parish , where no Parochiall right was setled in seuerall Rectors of Parishes . But cleerly , in such as were once , according to secular Law , made proper to this or that Church , he had not , euen by the Canon Law that was in vse , more then his fourth , or other part , varied by seuerall customes ; and by customes or h h ●xtr . de Pr●script . ● . 4. de quarta . prescription he lost it . Neither was this practice of Inuestitures , only in bestowing of Parish Churches . In Monasteries and Bishopriques the like was . but the increasing power of the Clergie took it away wholly in the lesse Churches ( sauing that in collations of free Chappels , Prebends , or other Benefices , without parochiall Cure , according to the Droict de Regale of the Kings of i i Vide 19. Ed. 3. tit . Quare impedit , 60. England and k k Vide I. F●rhault de priuil●g . Regni Fran●●a , prin. 8. & R●buff . praz . B●n●fici●rum , cap. ●● Reseruationibu● , & Seru●● en ● . Vol. des playdoiez en l'arrest touchant la Chappelle S. Nicholas en l'Esglise S. Brice de Colchi , Diocese de Noyon , p. 209. & Vol. 1. p●g. 298. & Petr. Gregor. in Synteg●● . iuris v●i●ersi , lib. 17. c. 7. & 8. & Pasquier . Re●●rch liu ▪ 3. c. 31. & 32. France especially , in some kind it hath remained ) and much altered it in Bishopriques and Monasteries . It was in substance forbidden in the eighth Generall l l Actio 10 Ca● ▪ 22. A D. 871. Councell of Constantinople ; then by Decree in the Councell of Rome vnder Gregorie the seuenth , about M.LXXVIII . in words , which as well shew how the vse of Inuestitures at that time remaind in many places ( for some few yeers before , it appears , they were very common among the Laitie , and scarce taxed by the Clergie ) as also what opinion the Church had of them : Quoniam Inuestituras Ecclesiarum contra Statuta sanctorum Patrum ( that is , against the many Canons made against Lay mens disposition of Church-reuenues ) à Laicis personis in multis partibus cognouimus fieri , & ex eo plurimas perturbationes in Ecclesia imo ruinam sanctae religionis oriri , ex quibus Christiana religio conculcatur ; Decernimus vt nullus Clericorum Inuestituram Episcopatus , vel Abbatiae , vel Ecclesiae de manu Imperatoris vel Regis vel alicuius Laicae personae , viri vel feminae , suscipiat . And in the generall m m Ext●t in Roma●ae e●li●●oni● ▪ tom . 4. 〈◊〉 & Ilud sub Jnno●●n● 2. celeb●atum ▪ & in Vaticana s●ruantur Mss. iam veró etiam in nupera B●●ti editione reperiuntur . Councell of Lateran , held in M.C.XIX. vnder Calixtus the second , chiefly against Inuestitures , one Canon is ; In parochialibus Ecclesijs Presbyteri per Episcopos constituantur , qui eis respondeant de animarum cura , & de ijs quae ad Episcopum pertinent . Decimas & Ecclesias à Laicis non suscipiant absque consensu & voluntate Episcoporum , Et si ali●er presumptum fuerit Canonicae vltioni subiaceant . The like was in the next generall Councell vnder Innocent the second . and very many other Pontificiall Decrees n n Habentur apud Gratianum dist. 63. & · c. 16. q. 7. were to the same purpose . For by this time , through the vse of giuing of Orders without Titles of Churches ( against the old o o Dist. 70 ● . 1. & 2. Canons ) and Resignations into lay hands ; euery lay Patron easily could haue a Clerk capable of his Benefice , and so inuest him , without so much as notice of the Bishop . And , notwithstanding those Decrees , both Oecumenicall and Pontificiall , that practice of Inuestitures could not presently be taken from the Laitie , although soon after that generall Councell held vnder Innocent the second , in M.C.XXXIX . it began to be lesse frequent , and Institution vpon Presentation here and there succeeded it . But not long before that Councell , it was much complaind against by the Clergie , and stiled by o o Vide Goffrid . Vindoc●nens . lib. 3. epist. 11. & Iuonem Carnot . Epist. 235.238 , & 239. some of them , Haeresis inuestiturae . others of them by no means admitting it to be an Haeresie , but only a vsurpation of the rights of the Church , which should not be disposed of by lay hands . Besides other occurrences of Inuestitures in Epistles , Councels , and Storie of about M.C. you may see especially the Epistle twixt Iuo Bishop of Chartres , and Iohn Archbishop of Lions , with others of Godfrey Abbot of Vendosme ( all written about M.C.XXX. ) in which it is largely disputed of ; and in them it appears plainly , that although the Church would neuer haue permitted it to the Laitie , and did also sometimes extort renuntiations of it , yet the Pope often regranted the right of it in France and Germanie to such as had renounced it . Whence also Iuo concluded , that it was but a ciuill right belonging ( by their Canons ) to the Church , and no such thing , as of its owne nature , could not be enioyd by the Laitie . But the Canons gaining force , as the Papall power encreased , at length , about the end of this CCCC . yeers , it became wholly out of vse . for not till then was it left off ; and that the course of Institutions vpon Presentations was not before commonly practiced ( especially in the case of lay Patrons ) appears by diuers p p Concil General . sub Al●x. 3. cap. 9. & 〈…〉 c 4 10 , 1● . & tit . de 〈…〉 . & t●t . de Praeb●nd● . c. 31. in Lat●ran●n . Canons relating as much , to which I referre you . and more hereof in the English vse . By reason of these Inuestitures ( wherein the Glebe , Tithes , and all Endowments of the Church , as well as the Church it selfe , in point of interest or estate , passed from the Patron , and at euery vacancie were in him as in the only proprietarie of them ) when Appropriations in these ancient times were made , it was not only the Church it selfe , or the Titulus Ecclesiae ( for that also , once by consecration created , was giuen by lay Patrons , when the Clerk had already his Orders ) or the patronage , that was directly in point of interest conueyed , but withall the Glebe and Tithe made parochiall by Grant , Foundation , or Custome . And the title of the Church , the Monasterie ( according to the Patrons prouision in many Appropriations ; and in others , at their pleasure ) still gaue afterward by Presentation of a Clerk , whom the Bishop instituted . For the Clergie , except Bishops and such as had Episcopall right by priuiledge , gaue p p Ad hanc rem , vide c. 16. q. 2.1 . & 6. vsually by Presentations ; these Inuestitures being altogether against their Canons , and but like the Bishops Collations . Neither did any such thing follow vpon such Presentation as Disappropriation , in regard of the Endowments or Temporalties . for such was the nature of the Appropriations , that the Church remaind notwithstanding presentatiue . and the Incumbent , that came in by presentation , had the Church only vnder the name of Vicar , and in anothers right , and receiued the Tithes and the profit of the Glebe , no otherwise then to the vse of the Monasterie , in which the Appropriation had setled them , as Inuestiture should haue done in an Incumbent . Neither was the Title of the Church , and the Endowments , so entire a thing , but that , according to the Patrons interest and will , they might by the Law then in practice be so seuerd . The ordinarie instruments of such Appropriations plainly shew it . And all the maintenance of the Incumbent was at the bountie of the Monasteries allowance . And it is exprest vsually in old Instruments of Appropriations , that such a Clerk should answer to the Bishop de spiritualibus , vobis autem ( to the Monasterie ) de temporalibus . Which is complaind against in that of Iohn of r r De N●g●● Curialium , lib. 7. c. 17. Salisburie : Personatus quosdam introduxerunt , quorum iure ad alium onera , ad alium referuntur emolumenta . Herewith agrees the generall s s Ita etiam extr. tit. de Priuileg . c. 2. §. in Ecclesijs . Concil. General . A.D. 1215. cap. 61. extr. de Pro● . & dig● . c. 31. & Luc. 3 in App. ad Concil. Lateran de 〈◊〉 D. 1180. tit . de iur● Patronat . cap. 24. & Roger. Houed●n . in annal. ●ol . 460. ●· Councell of Lateran , held in the yeer M.C.LXXX. where the ancient course of filling Churches , thus appropriated to Religious Houses , is commanded to be thenceforth better obserued . In Ecclesijs suis quae ad eos pleno iure non pertinent ( that is , those which they held both exempt from Episcopall Iurisdiction , and in them had the right of Institution and Destitution by Priuiledge ) instituendos Presbyteros Episcopis praesentent , vt eis quidem de plebis cura respondeant ; ipsis verò de rebus temporalibus rationem exhibeant competentem . For how euer by the Canonists of later time , this in the Councell , and in our Appropriations , be vnderstood variously , and , for the most part , of Churches whereof Religious Corporations had only the Patronage , and according to their Law , no propertie ; whence also they interprete that rationem competentem for an account only which the Patrons might exact , but not for a denoting of the propertie or right that the Religious Houses had in the profits ; yet doubtlesse in those times , that suis Ecclesijs in this and the like Canons had reference to Churches appropriated only , or to such as were possessed by equall right to expresse Appropriation . And although Innocent t t Vide ●um ad ●i● . de Praeb . c. in Lat●rane●si 31. & tit. de Priuileg . c. 2 § in Ecclesijs editione Venet. the fourth , being of the ancientest Writers on the Decretals , rather iustifies that more common opinion ( whereof you may haue most speciall declaration in our u u Constit. pro● tit. de locato & conduct● ▪ cap. licet bona v●r● asserunt ●on ligari . Lindwood ) yet others , and as great Lawyers of that time , expressely suppose , that the Temporalties are by that passage vnderstood due and payable to the Monasterie , and that not an account only was to be made of the dispensing of them . Expressely x x In summ . tit. de Offic. Ordinarij , ● . sunt autem . Hostiensis vpon the difference of their Churches held pleno iure , and not pleno iure : Vbi pleno iure non pertinet , tunc habet ibi Monasterium temporalia & representationem Praesbyteri Vicarij tantum &c. Whereas if it were theirs pleno iure , they had also Institution and Destitution to themselues . And Ho●●iens . summ . tit. de ●●pell●● M●nach § qu●a 〈◊〉 , & 〈…〉 Priuil●g § qu●d oper●t●r ▪ elsewhere likewise he makes the enioying the Temporalties to be denoted by , Pro rebus Temporalibus debita subiectio . And so Durand ( whom they call z z Spec u● . tit. a●capell● Monach. §. 2. Speculator ) in his precedent for the Libell , whereby a Monasterie hauing founded a Church , was to demand the Temporalties , thus proposes the suit , Cum Ecclesiam illam Monasterium à fundatione habuit ( for in those ancienter times the right of Foundation of a Church and Appropriation were as a a Vide Hosti●ns . summ . 〈◊〉 . tit. §. quid ●it . one to Religious Houses ) & sic per consequentiam in temporalibus sibi debeat respondere , petit temporalia in ipsa Ecclesia sibi adiudicari , &c. Is it not then plaine , that respondere in temporalibus denotes the taking of the Temporalties to the Monasteries vse ? Hostiensis and Durand are better authoritie to proue how the Law was anciently taken , then a cart-load of the later and more barbarous . Other reasons might be brought to proue this . but I presume no man will doubt it , that knowes how to examine it . I only adde this obseruation , to help cleere it , out of a Bull of Pope Lucius the second , to the Prior and Canons of Kenelworth , wherein licence b b Ms. Reperitur in Vol. quo compingitur Fride godus po●●a in Biblioth. Cottonian . is giuen them , to hold their Churches in proprios vsus , that is , in manu vestra ( as the words are ) retinere & earum Beneficia ad proprios vsus reseruare , constitutis ibidem Vicarijs & Diocesano Episcopo praesentatis , qui eis de spiritualibus , vobis verò de Temporalibus omnibus , videlicet Decimis & Obuentionibus debeant respondere , dum modo Vicarijs & caeteris Ministris earundem Ecclesiarum in necessarijs prouideatis , &c. What can be plainer , then that the phrase of respondere in the Canons is here as it were purposely declared , as we haue conceiud it , according to Antiquitie ? And sometimes also Appropriations were made by Lay men c c Amodaeus Corne ▪ ●●baudiae in 〈◊〉 . Mo●ast . 〈◊〉 An. D. 1015. dat . extat in Biblioth. Cluni●c . pag 413. , reseruing to themselues a ius patronatus , and ius praesentandi . But all the profits of receiud Tithes and Glebe were theirs , who so had the Appropriations , and were dispensed at their pleasure ; and to the Curats , in both kinds , as they thought fit , were some Salaries giuen . which turnd afterwards oft time into Vicarages that belong to such Appropriations ; whence also it came , that their Presentations haue been since and are now taken to be only to those Vicarages , being made perpetuall ; whereas indeed , their Vicars were originally presented to the whole Rectorie , but had the benefit no otherwise then is before declared . The words of conueyance in Appropriating commonly were , Dedi & confirmaui Ecclesiam de N. cum decimis , or cum Decimatione , &c. Whereby the Church Glebe and Tithes passed equally , by way of interest , to the Monasterie . So anciently , and at this day , manie Couents , but especially the Praemonstratenses , haue diuers Churches continually in their owne hands . And some of the Monks receiud into Orders , discharged the Cure . And in such Instruments ( of the elder Times ) as more commonly ordayned , that they should keep the Church presentatiue , the Church it selfe passed also it seems as well in right of propertie , as of patronage ; which sometimes also ( as is before noted ) was excepted to the grantor . Examples enough are extant , wherein all this is apparant . For that more generall way of appropriating Tithes ( the Church still remaining presentable , which specially is pertinent hither ) you may see the Grants and Bulls made to the Abbey d d Biblioth. Cluniac . p. 1430 . 1454· of Clugny , to the Abbey of e e Innocent. 3. in Epist ▪ tom. 2. p. 435. alibi s●p● . & vide si placet , Chartam Abbati Verz●lia● . apud Andr●am Quercetan . in Notis ad Biblioth. Cluniac . pag. 133. S. Germans in Auxerres , and many other like recited in Pope Innocent the third his Decretals , as also the Charter of Henry Earle of f f Apud A●bertum Miraum in Orig. Canob . cap. ●3 . vbi & B. Jd● diploma consulas . Brabant to his Abbey of Afflighem , neere Bruxels ; of Thierry Earle of Holland g g Apud I. Douzam . Annal. Holl. lib. 10. 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 h h Biblioth. Cluniac . pag. 265. 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 . i i In App. ad Hist. Brom. pag. 114. & ●19 . 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 , Bra●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 k k Ba●dwin . Arch. Hamburg . An. D. 1174. 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 Bishop●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 l l L●m●ert . Schass●●burg . pag. ●7 . Mentz claimed all the Tithes in Turingia , the Bishop of m m K●antz . Wandal . lib. ● . c. 38. & 39. Lubek , of n n Vide Greg. 7. R●g●st . l●b. 2. ●pist. 77. 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 , o o Extr. de De● . c. 13. quoniam . 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 desire of the Clergie , then in other places ; where you shal find arbitrarie consecrations by Lay men , continuing till about MCC.. For if the Bishop had not had these Tithes payd , but had pretended only right in them , his bountie to the Monasterie had been to litle purpose . So in the Diocese of Oldenburg , about MCLX. payment was duely , it seems , made to the Bishop by all , sauing those which had improued the deserts of Wagria , which could by no means be brought to it . Decimas ex more q q Wandalio lib. 4. cap. 38. & 39. soluere recusauerunt , sayes Krantzius ; being yet readie to giue a competent part of their encrease . And although Gerold the Bishop and Count Adolph ioyned together ; the one with perswasion ( wherein he pretended to them Exempla , as the same Author writes , Ecclesiarum omnium & praesertìm proximarum , and told them of Diuinum de Decimis praeceptum : ) the other with power , to make them tithe their profits ; yet they vtterly refused , and with tumult and clamors made open profession , Seruili conditioni nunquam se colla submissuros , per quam omne Christicolarum genus Pontificum pressurâ laboret . Neither were the Danes in those Ages easier to be brought to the payment of Tithes to the Church . Indeed they so much abhorred it , that no greater cause was , why they barbarously betrayed and murdered their King Knout r r An. D. 1078. Krantz . Dani● 4. cap 37. & in prae● . ad Hist. Regni Norwag & Dan. lib. 6. cap. 50. the fourth , then that hee would haue imposed it . And about the yeere MCLXXX . vnder King Waldemur the first , Absalon Bishop of Lunden would haue had them all paid their Tithes , and that vnder paine of an Interdict to continue against them : but they stoutly refused , and answered by publique message to the Clergie , That notwithstanding the Interdict , they should carefully minister Diuine Seruice and Sacraments , or els depart the Countrey : if they did neither , Non solùm rerum amissionem sed membrorum etiam truncationem demorarentur . And it is well noted by Krantzius , that the Northern Nations generally , were very hardly brought to pay ▪ but after continuall and earnest Doctrine of the Church , and command of Princes , at length many of them yeelded ; that is , as may be coniectured , in the first halfe of the yeer MCC . Through the frequent vse of those arbitrarie Consecrations , and those Appropriations , Churches with their Tithes , and Tithes of seuerall possessions , were in exceeding number established in Monasteries , as well of Nunnes as Monkes . The Tithes of LX. of LXXX . or more Parishes , were by those courses , annext sometime to one Monasterie ; which the Head and Couent possessed , not as any part , or as pretending themselues to be any part of that Clergie which made vp the Euangelicall Priesthood , or deserued them by ministring Diuine Seruice and Sacraments to the owners . For indeed , diuers of these appropriated Tithes were out of such lands as lay so distant from the Monasteries , not in other Dioceses only , but also in other Kingdomes , that the owners neuer saw or knew the Monks , or their Cloister , nor otherwise heard of them , but by their Cellarars or Prouosts that exacted payment . Whereupon it was in time of our Edward the third affirmed in a petition in Parliament , R●t . Parl. 50. Ed. 3. a●● . 94. That Aliens ( which by reason of appropriations made to their Houses beyond the Seas , or to their Priories or Cells in this Kingdome , or the like ) did so deuoure the Salaries due to Parish Curats , and so neglect the Diuine Seruice which they should haue taken care for in euery Parish , that they did more hurt to holy Church , then all the Iewes and Saracens of the world . Which might haue been well applicable to some kind of Non-residence of Denizens also . But the religious persons iustified their consuming this Ecclesiastique reuenue by reason only of their Prayers , their Tears , their Psalmes , their Almes , and the like exercises of Deuotion ; beside their maintenance of Curats with arbitrarie Salaries , in the Parish-Churches appropriated to them . Which is at large seene in an Epistle of Peter Abbot of Clugny to S. Bernard Abbot of the Cistercian Order at Clareuaulx , about the Monks of Clugny their possessing of a large number of Parochiall Tithes . The Cistercians had made diuers complaints against them , and one was vpon this verie point , in these words : Ecclesiarum s s Petr. Cluni●● . lib. 1. epist. 28. circ. An. D. 1150. Vide , si placet , Ioa●● . Sarisbur . de Nugi● Curialium ▪ lib. 7. cap. 21. Parochialium , primitiarum & Decimarum possessiones quae ratio vobis contulit ? Cum haec omnia non ad Monachos , sed ad Clericos , Canonica Sanctione , pertineant ; illis quippe quorum officij est baptizare & praedicare & reliqua quae ad animarum pertinent salutem gerere , haec concessa sunt , vt non sit eis necesse implicari saecularibus negotijs ; sed quia in Ecclesia laborant in Ecclesia viuant . Hereto , among diuers other imputations , the Abbot of Clugny answers , and giues his reason for their enioying of Tithes , thus : Quia Monachi ex maxima parte fidelium saluti inuigilant , licet Sacramenta minime ministrant , estimamus ipsorum primitias , Decimas & Oblationes , & quaeque beneficia eos dignè posse suscipere , quoniam & reliqua populo Christiano à Presbyteris ( that is , by the Curats which they maintaind ) faciunt exhiberi . And another of great note before this Abbots time , pretends speciall charitie towards the poor , for sufficient reason why Monasteries and Hermitages had Tithes giuen them : Vt copiosiora ( saith t t Petr. Damian . lib. 2 ▪ epist. 14. he ) alimenta proficiant , dantur in Monasterijs & Eremis Decimae quorunque prouentuum , & non modo pecorum sed & u u 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , i. aui●m 〈◊〉 Gallinarum . ornicum pariter & ouorum . The same reasons hold in iustifying of Appropriations to Nunneries , where the persons are not capable of the Ministerie . And among Examples of the Age , take this one for some confirmation , in these elder times , of the right which Monks pretended to them . In the yeere MLIX . a great x x 〈◊〉 . Schaffnaburg ▪ in Annal. pag. 466. edit. Arg●nt●rat . Videsis etiam Francisci Monaldi consilium de iur● ▪ Abb●tiae S. Mari●● Carcer●bus in Dioec●si Pataui●a apud Ioh. Baptist . C●sar part 1. consil. 46. controuersie fell between Meginher Abbot of Herfeildi , and Burchard Bishop of Halberstadt , about Tithes of large Territories in Saxonie , appropriated to the Abbey . The Abbot stood vpon the Appropriation ; the Bishop vpon his Episcopall right , which by the Canon Law is , and anciently was , the same with parochiall , in places not limited to any certain Parishes . The Bishops greatnesse with the Iudges of both Lawes , made the Abbot so despaire of successe in the Suit , that he prosecuted no further ; but withall , summoned the Bishop to appeare before the Almightie in his Iudgement-seat , within some few daies there to answer in the same Action ; and verie soon after departed this life . Not many daies interceded , but the Bishop riding towards the Court where this Suit had depended , to dispatch some proceedings touching it , suddainly fell from his Horse very sick ; and being carried into his Inne , gaue most strict charge ( as one diuinely moued ) that the Abbey should haue restitution and quiet possession of those Tithes for euer ; and admonisht them all , that were by , That who euer had been parties with him in that oppression against the Abbey , should by the like Iudgement from Heauen , suffer as he did ; confessing to the two Bishops of Magdeburg and Hildenesheim ( then visiting him ) that he was now called , according to the Abbots summons , to answere his exaction of 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 , quàm 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 y y Vide Schaffnaburg pag. 487. 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 z z Petr. Damian . lib. 1. epist. 10. & lib. 4. epist. 12. 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 a a Vide Kr●ntz . Metropol . l●b. 4. c. 2 Vbi ●d morem Mandrabu●● , coniectura● de hac rein●●eliciter ad●●it . 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 b b Vide , cum his quae supra adnota●imus , Flodoard . hist. ●h●mens . Eccles. lib. 2. cap. 12. etiam in Ecclesia O●ientali Monasterijs sacris Laici saepe vsi 〈◊〉 sunt . constat in 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . 〈◊〉 Patriarchae Constantinop . edit . in comm●nt . Zonara , & in Cano● . 13. Synod , O●cum●nica 7. 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 c c En les r●cerches de la Franc● , liu. 3. chap. 35. 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 d d C. 1. q. 3. c. 4. quasitum . 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 e e Lib. 4. Epist. 12. complaint against them for it . Likewise it seems , Religious Orders made Fiefs or Tenements of Tithes f f 6. Decretal . tit. de Dec. c. 2. §. san● . 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 thenc●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 g g Extr. tit . de De● . c. 19 ▪ 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 h h Neque aliter sa●● intelligunt vetustiores illi iuris interpretes Innocent . 4. Host●e●sis . Bernardus . & vide H●nricum Bow●i● ad tit. de Dec. c. quamuis . otherwise to be vnderstood ; how euer diuers of the later Canonists , with ignorance enough , draw it to a different sense , and oppose it against the right of all feudall Tithes , being ancienter then the Councell , and since passed ouer into Lay hands . And whereas they commonly suppose , that all these ancient feudall Tithes were at first spirituall , and transferred from Church-men ( at the request of Princes ) into Lay hands , and since wrongfully detained ; surely it is an error . neither is there any ancient warrant sufficient for it : many of them were doubtlesse created by Lay mens Grants , as Rents-charge , Estouers , Turbaries , and the like are . Who can doubt of it , that obserues but alone this Canon Prohibemus ? Whence also may be strongly inferd , that the greater number of Infeudations were through Grants made by Lay men to Lay men , as Consecrations were , at their pleasure , made to Churches . for what is there only forbidden by the Councell , may be thought the greatest and most preiudiciall practice of the time against the profit of the Clergie . Neither is any prouision there made against the other kind of Infeudations , which passe Tithes from Church-men . And although the words & Ecclesiae non reddiderit , in the Canon ( and in the bodie of the same Councell , in Roger of Houeden ) seeme to suppose , as if it had been made for such Tithes as had been taken from the Church ; yet indeed , the truer reading is tradiderit , as appears in the bodie of that Councell first fully publisht out of the Vatican , in the last Tome of the Generall Councells printed at Rome by command of the present Pope Paul the fift ; wherewith agrees other Editions , but of lesse authoritie . And perhaps also some old Infeodations were made by Lay Patrons in the vacancie of their Churches , by the same challenged right as they alone made Appropriations . For , as by our common Law , the Patron and the Bishop may in the time of vacancie dispose of the Endowments ( as by the Canon Law also , if the Chapters consent , or the Popes , be had ; ) so in those elder times , vpon equall reason , when the Patron had the only disposition and interest of the Church ( as is alreadie shewd ) he alone sometimes granted any part , at his choise , it seems , to Lay or Clergie men . Why not any part as well as all ? And that Patrons granted whole Churches into Lay hands , appears by diuers passages in Flodoards Rhemish historie , by that before cited out of Damian , and by the generall Councell of Lateran , vnder Innocent the second ; where it is ordained , that they should be restored from the Lay men to the disposition of the Bishops . And an example is extant among the Records of the i i Apud 〈◊〉 . D●uzam . in Annal. Holland . lib. 5. Monasterie of Egmond in Holland ; wherein Charles King of France ( who is commonly therein taken for Charles the Bald ; but Douza thinks it to be rather Charles the Simple , and made about D.CCCC. and is thereto perswaded by Synchronisme , the best triall of such truths ) recites , that Hagano , one of his Nobles , humbly requested of him for Thierry ( the first Earle of Holland ) quasdam res ; Ecclesiam videlicet Hecmunde , cum omnibus ad eam iure pertinentibus à loco qui dicitur Zwtherdes Haghe vsque ad Fortrapa & Kinn●m , &c. Which by patent hee grants him in fee , & vt libere haec omnia teneat atque possideat , habeat que de his potestatem iuxta libitum suum ordinandi seu saciendi . If the Church it selfe of Egmund ( the Parish Church ; for it was then no Abbey , but afterward made one by that Thierry ) passed not by this patent into Lay hands , I sufficiently vnderstand it not . neither is it spoken of , but as what might , according to the vse of that time , be cleerly made a Lay fee. Through these kind of Grants , practiced both by Lay & Clergie men , Princes , and priuat persons , the ancient Infeodations of Tithes had their originall , as well as by Leases from the Church ; and not by imposition of Tenths by Princes , as some k k Videsis Krantz . Metropol . lib , 1 c. 2 haue ignorantly coniectured ; although also it be certaine , that Princes sometimes ioyned l l S●bassnaburg . An D ▪ 10●3 . & Krantz l●b . 4. Wandaliae . cap 37. with the Bishops to bring in the payment of Tithes , that thereby themselues might haue beneficiall Infeodations of them from the Church . But as Princes made Infeodations out of their owne Demesnes , or their owne Churches ; so other priuat Lay Persons . And the Clergie , sometimes of Tithes alreadie vested in them ; and sometimes , it seems , out of their Demesnes . And perhaps especially religious persons , exempted from payment by Bulls , made some out of their owne Demesnes , as may be coniectured out of a Decree m m 6. lib tit de Dec. c. 2 ▪ § san● . of Pope Alexander the fourth , that speaks particularly of Infeodations made à religiosis exemptis & alijs . And for example of Tithes alreadie possessed , and thus granted by the Church , you may specially see that of Engelbert Count of Goritz , who had an Infeodation n n Innoc●●t 3. epist. lib ▪ 2 p. ●47 . & vi●e ib. p 48● . Edit. Colon●ensi . anciently from the Church of Trieste , in the Patriarchat of Aquilegia . and Henrie Count of Ratzenbourg o o Krantz . Wandali● , lib. 4. cap. 38. & 39. had an Infeodation of all the Tithes which were paid to the Church in his Territorie , from the Bishop of Oldenbourg . so one Hildeward had one in the p p App●nd . ad hist. ●ramens . p. 134. Diocese of Hamborough , and surrenderd it to Baldwin Archbishop there , about M.C.LXXIV . But examples of them were q q Vide extr. de Dec. c. 17. very many , the dissike whereof was one speciall cause , pretended by those of the Deserts of Wagria in Holst , about M.C.LXX. why they would pay no Tithes . Praeterea ( sayes r r Wandali● lib. 4. cap. 38. Krantzius ) & hoc adiecerunt , non multùm a veritate aberrantes , quòd omnes paenè Decimae in luxus cesserint hominum saecularium . To these testimonies , of Lay mens arbitrarie detaining , disposing , or receiuing of Tithes in those elder ages , you may adde s s Ms. lib 2. de 〈◊〉 temptu mundi . in Bibl●oth . Cotton . Bernardus Morlanensis ( an English Monke of Clugny , about King Stephen ) his complaint of non-payment to the Clergie . thus speaks he in his affected forme of Verses .

Rusticus hordea , mittit in horrea , farra recondit . Horrea grandia , vasa capacia multaque condit . Nec pecus aut sata dante Deo data vult Decimare . Nec sacra portio , nec Decimatio redditur arae .

The like libertie as Lay men had enioied ( in not subiecting themselues to the payment of Tithes , according to the Laws of the Church , but bestowing or retaining them at their own wills in most places , euen from the beginning of Christianitie , vntill about the yeer M.CC. ) was another way purchased , for some time , by religious houses , so to discharge themselues of censure of the Canons , and that by Exemptions or Papall priuilege . For howeuer the Laitie iustified themselues by their secular right , admitting of Canons that toucht their estates , but as they saw cause in their own iudgments ; yet Religious persons , who were alwayes of the Pontificiall side , and reckond in the Catalogue of the Clergie , and possessed diuers large Territories , durst not so oppose what was ordaind either by decree at Rome , or in Synods Generall or Prouinciall . Therefore when from the beginning of this Age , both Doctrine and Canons ( of which more presently ) had made the dutie of Tithes of a known right among the Clergie ; Clergie men became somwhat strict obseruers of the payment , as you see plainly in that before cited out of Godfrey Abbot of Vendosme , with whom Peeter Abbot of Clugny agrees . And , although a a Videsis ● . 16 ▪ ● . 1. c. 46. & notas ed●tioni Greg●riana adiectas . Canons be in Burchard , Iuo , and Gratian , referd to , I know not what ancient Councell of Chalons or Mentz , whereby Lands , occupyed by Bishops or Abbots , seem to be discharged ; according to which also , another Decree is found in the Vatican , annext to some Councels of Pope Vrban the second , yet it seems by the autoritie of those Abbots and other testimonie , that they were not practiced as Church Laws . But what some of the Clergie durst not do for the Canons , they had licence for by Exemptions from the Pope . And , beside those other Canons ; from b b Extr. tit . de dec . ● ▪ no●u● g●nu● , & App. Concil. Lateran . part . 13. cap. 16 Paschal the second , about M.C. there was granted to all religious persons , a speciall discharge from Tithes . but it seems also that this Exemption soon took not force in execution . for it was made diuers yeers before those two Abbots wrote , and ( if I vnderstand them ) expresly affirmd the common practice of the contrarie . And in an instrument of composition twixt the Templars c c Chronic. O●d . Praemonstrat . and Praemonstratenses in the yeer M.C.XLII . one speciall article was , that , Nullus in vtroque ordine , alter ab altero , tam de nutrimentis , quam de laboribus Decimas exiget vel accipiet . whence some inference might be that no cleer exemption preceded ( at least in force and practice ) for both . But howeuer , afterward about M.C.L. most of all the religious Orders were d d Extr. de dec . c. 10 ex parte vide 〈◊〉 ▪ Sar●●●●riens . de N●g . Curialium lib. 7. cap 21. & Append. ad Concil. Lateran part . 13. cap. 3. & 10. & part. 41. cap. 4. exempted , by Pontificiall priuilege , from payment out of possessions kept in their owne occupation , which Pope Hadrian the fourth ( about that time ) restraind to the Cistercians , Templars , and Hospitalars , and decreed that all other religious Orders should pay Tithe of whatsoeuer encrease they had in their own occupation , sauing of e e Videsis Alex. 4. in 6 de dec c. 2. statuto . & Inno●ent . ● . tom 2. p 410. 〈◊〉 . Coloniensi . new Improuements by culture , of pasture for their Cattell and of Garden fruits . But neither were they by these exemptions , freed from payment of Tithes , which were taught due only by common right to the Church . They were discharged also from such as had formerly been f f Petr. 〈◊〉 . Epist. 8● . apud ●ochell . in Decre● . Eccles. Gallicaen . lib. 6. cap. 19. consecrated out of their possessions , by their Founders or Benefactors , to other Churches , ouer which also the Pope challenged supreme autoritie in disposition of their Reuenues . But the Laytie would not permit such exemptions to extend to their Infeodations . Milites Galliarum , sayes Peeter of Blois , speaking of the Cistercians , sibi ius Decimationis vsurpant , nec vestris priuilegijs deferentes , eas à vobis potenter extorquent . But , that of those three Orders . was afterward in the yeer M.CC.XV. in the generall Councell of Lateran , limited to such Lands as they g g Extr. de dec . ● . 34. Nuper Abbate● . had before that Councell purchased . where obserue by the way , that Exemptions were then chiefly allowd to two Orders , which are not properly to be reckond amongst any part of the Clergie , or Ecclesiastique persons . For the Templars and Hospitalars were deuout Souldiers only , neither could h h Videsis Ioan● . Sari●●ur . de Nug● Curialiu● , lib. 7. cap. 21. they iustifie their enioying of tithes , either through exemption from the Pope or consecrations from the Laytie , by the reasons which other Cloister Monks vsed . Their prayers , or deuotions in priuat , were not the seruices expected from them in the Church ; but their swords and valour only gaue the desert , as at this day may be truly affirmed of the Hospitalars or Knights of St. Iohns of Hierusalem , which being now , as in those ancient times they were , only Souldiers of the Church , haue therefore been diuers times lately i i Le 〈◊〉 Aduoca●●n la dicte ceur . 〈◊〉 ▪ 7. adiudged in the Court of Aides in Paris to be no part of the Clergie . But also , by the succeeding Popes , other like priuileges were granted to k k Vide Innocent . 〈…〉 2. pag. 139. 〈…〉 ad 〈◊〉 Later . 〈…〉 . 13. cap. 2. & seqq . Bishops , Abbots , and at their pleasure . But of the Practice of these CCCC . yeers , thus much .

VI.

Of the Opinions left in the moniments of the Clergy , both touching the Right of tithes , and those Practices , next briefly . Very frequent are the testimonies in the old Councels of about the beginning of these CCCC . yeers , in which Tithes are spoken o● as due generally by Gods Ordinance . as , Decimas Deo dari omnino non negligatur , quas Deus sibi dari constituit , quia timendum est , vt quisquis Deo debitum suum abstrahit , ne forte Deus per peccatum suum auferat ei necessaria sua , which occurres in the Prouinciall Councell of Mentz held in DCCC.XIII . and is iterated in some Vt in Concil. M●gunt . a. d. 846. & a d ▪ 887. other succeeding of the same Prouince , & in the m m Benedict . Leuit. lib. 5. cap 9. Capitularies . And it is ordinarily grounded vpon the Leuiticall Laws ( which are obuiously cited for the right of Tithes in the very n n Vide Co●cil . 〈…〉 . lib. 1. cap. 11 & seqq ●om. 3. edit penult ▪ ●in ▪ pag. 586. syllables of Moses ) but somtimes also on Abrahams & Iacobs examples , as in Walafrid Strabo , that liud about DCCC.XL . whose words are , Decimas Deo & Sacerdotibus D●i dandas Abraham factis , Iacob promissis insinuat , deinde lex statuit & omnes Doctores sancti commemorant ; the self same being n n C. 16 q. 7. c. 6. referd also to one of the Councels of Mentz of those times . And res o o Leuit. lib. 7. cap. 152. Dominicae and Dominica p p Concil. Ti●in . quod Regiaticini● d●ci●ur , sub L●o● . ● . substantia and Dei q q Agrippin ▪ ●pud Burchard . lib 3. cap. 135. census , and the like are the attributes giuen to Tithes , by the ancients of this age , which also they stile r r ●quisgran . sub Steph. 5. c. 116. extr. de dec. c 26. Na●n●tens . syn . c. 10. patrimonia pauperum , and Tributa egentium animarum , and Stipendia pauperum , hospitum , peregrinum ; whence also the Clergie was not to vse them quasi suis sed quasi commendatis , as the words are of the Councell of Nantes , held about the former part of these CCCC . yeers . And Pope Alexander the third in an Epistle s s Extr. de d●● . c. 14. & 15. to the Archbishop of Rheimes , sayes , non ab hominibus sed ab ipso Deo sunt institutae . and in another to the Bishop of Amiens , he calls them Sanctuarium . and Caelestin t t Eod. c. 23 ex transmissa & c 26. tua nobi● . the third ; Fidelis homo de omnibus quae licite potest acquirere , Decimas erogare tenetur after him , Innocent the third ; Decimas Deus in signum vniuersalis dominij sibi reddi praecepit suas esse Decimas & primitias asseuerans . and his generall Councell of u u Cap. 54. & extr. de dec . c. 33. ●um non sit . Lateran agrees with him . and it appears that S. Vlrique Bishop of Auspurg about the yeer DCCCC . L . in his Visitations had especially this article of inquirie ; x x Berno ●bbat in vita ● . 〈◊〉 cap. 10. Si Decimas recte darent ; which shews his opinion that they were generally due . With these take the autoritie of the Poenitentials exercised by the Clergie in that Age , by which , strict examination was to be made at Shrifts , whether the penitent had paid all kind of Tithes , in these words . Hast thou at any time neglected to pay thy Tenths to God , which God himselfe hath ordained to be giuen him ? or if thou hast done so or consented to the defrauding of the Church therein , first restore to God four-fold : and then must thou suffer penance with bread and water only , for twentie dayes . So it is deliuerd in y y Lib. 19. de Poenitenti● . & in Paenitential . Roman . tit. 8. cap. 17. idem habetur . Burchard Bishop of Wormes , that collected the Canons about the yeer M. Neither was any difference in the nature of the encrease by the common opinion of this time . The tenth of z z Calestin . 3 ▪ extr. de dec . c. 22. non est . & 23. ex transmissa all , aswell of all kind of Personall as Prediall , was taught due . Neither find I any man in this Age that by Doctrine expresly opposed any of this , sauing only that French Leutardus , who about the yeer M. held the payment of them necessarie . Decimas a a Rodulphus Gla●●r hist. ● . c. 11. 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 b b Leo 4 in c. 16. q. 1. c. 45. &c. Canons were for Parochiall right ) to any Church , to Monasteries , Hospitalls , reliefe of Poor or Sick : that is , as c c Epist. 207. astipulatur , c. 16 ▪ q. 1. c. 68. qui canon falso ad D. Hieronymum refertur & Concil. Clarim●nt , An ▪ Do. 1095. c. 1. q. 3. c. 4. &c. 16 q. 7 c. 2. 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 d d Cottoni●n●●● ●● vbi Codex editus habet Ecclesiastica . 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 e e Vrban 2 c. 16. q. 7. c. 39. 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 C. 16. q. 1. c. 56. 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 g g Pet Cl●niac . lib. 1 epist. 33 ▪ ad Innocent . 2. & Petrus Bl●s epist. 82. apud Bochel Eccles. Gall Decret. lib. 6. cap. 19. 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 h h De nugis Curialium , lib. 7. cap. 21. 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 i i Lib. 4. epist. 12. Vide etiam Bullam Vrbani 3. in Biblioth. Ci●●iac . An. D. 1185. 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 k k Extr. de dec . c. 15. ad ba● . & vide App. ad Concil. Lateran . part . 4. cap. 1. 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 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 , l l Vide , si placet , 44. Ed. 3. sol . 5. & 44. Assis. pl. 25. 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 m m Constit Karcli edit. a Vito Am●rb●chio , cap 7. Leg Longohard . lib 3 tit 3. cap. 1. Capitular , lib. 5. cap. 123. 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 n n Hist. Sc●torum . lib. 9. cautē de Congallo Buchananus , lib. 5. Sacerdotes , inquit ▪ praedijs alijsque prouentibus ditauit . Tò Decimis adijcer● vir doctissimus non ausus est . 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 o o A●segis . Capitular . lib. 1. c. 155. &c. 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 p p Benedict . Leuit. lib. 5. cap. 46. 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 q q Vide Baronium 〈◊〉 9.10 . An. D● . 8●5 & 〈…〉 lib 3. Io●an . PP . 8. 〈◊〉 . ●1 . 2●● . 45. 262.293 . 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 r r Ansegis . lib 1. cap. 163. lib 2. cap. 2. Leuit. lib. 5. cap. 145. Concil. Turon. 3 cap. 46. Meldens An. D● . 845. cap 62. Flodoard . hist. Rhemens. Eccles. lib 3 cap. 4. Vide & Goldast : constit . Imp ▪ tom ▪ 3. pag. 648. & quae a●iecta sunt C. 16. q. 1. c. 59. edit. Greg. 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 s s Leg. Bai●ariorum tit. 1. cap. 14. de Colonis & s●rius Ecclesia . 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 t t Hector . Bo●t . hist. Scot. lib. 10. 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 u u Idem lib. 12. 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 x x Sup. cap. 5. faind one of Pope Damasus ) ancienter then that attributed to y y A. D. 1059. in Synod . Rom &c. 16. q 2. c. 3. Pope Nicholas the second . Praecipimus ( saies he ) vt Decimae & primitiae seu oblationes viuorum & mortuorum Ecclesijs Dei fideliter reddantur à Laicis , & vt in dispositione Episcoporum sint ; quas qui retinuerint a Sanctae Ecclesiae communione separentur . The selfe same words z z Dist. 32. c. 6. praeter § d●iude . are also vnder the name of his next successor Alexander the second . That of Pope a a C. 16. q. 1. c. 45. Leo the fourth , about the yeer DCCC.L. De Decimis , iusto ordine non tantum nobis sed etiam maioribus nostris visum est , plebibus tantùm , vbi sacrosancta baptismata dantur , debere dari , may be reckond for a Canon for the right of Tithes , if you will . but it seems rather it was at first a Declaration of an opinion then a Constitution . But both the other and that , with diuers passages also out of S. Augustine , S. Ambrose , and others , and those old Prouinciall Councels , that make for the generall right of Tithes , were confirmed for generall Canon Law in Gratians b b C. 13. q. 1. & c. 16. q. 1. c. 41. & seqq. &c. 16. q. 7. passim Concordia discordantium Canonum , by Pope Eugenius the third in the yeer M.C.LI. or presently after . for howeuer some Canonists ignorantly otherwise place the Collection of that first part of the bodie of the Canon Law ; it is most plain that it was in that yeer collected by him ; which is best iustified by a most ancient copie of it writen before the Paleae were inserted , and remaining in the Vatican , with this c c Vide prolegom . ad Corpus Iuris Canonici , auspicijs Greg●rij 13. editum . & ●bb●tem Vsporgensem . inscription : Decretum Gratiani Monachi Sancti Faelicis Bononiensis Ordinis sancti Benedicti compilatum in dicto Monasterio Anno Domini millesimo centesimo quinquagesimo primo , tempore Eugenij Papae Tertij . enough other testimonie is of it . And in the Councell of Cleremont held in M.XCV. by Pope Vrban the second it was decreed , Ne laici Decimam partem de laboribus suis retineant . some other passages of Popes are about that time against the selling of Tithes , which they call Simonie . And in C· 16. q. 7. c. 1. after the passage of Gregorie the seuenth , before cited out of his Councel of Rome against feudall tithes , these words follow as if he had continued them ; Oportet autem congruentiùs nos Decimas & primitias , quas iure Sacerdotum esse sancimus , ab omni populo accipere , &c. which comprehend in them a Constitution . but neither these or any of the rest that follow there , are in that Councell of Gregorie , neither find I whence Gratian had them . But an Epistle d d Regest l●b. 9. epist. 14. of that Gregorie is extant , wherein among other admonitions to some Princes of Spain ( after such time as the profession of Christianitie there , was purged of some Gothique corruption , by a e e Vide Marianam de reb. Hisp. lib. 9. ● cap. 11. Councell held vnder Richard Abbot of Marseilles , the Popes Legat in MLXXVI . so I vnderstand that reference made , in the Epistle , to a kind of new conuersion to the Faith ) he perswades them , Decimas , quae ad vsum tam ipsorum quam Ecclesiarum & pauperum proficiant , dare , totique regno indicere . Quod quidem nulli debet graue videri , pro meliori parte , videlicet semper victurâ animâ , quemque decimam Deo offerre , cum pro morituro corpore plurimae gentes coniugibus suis tertiam rerum legibus compellantur exsoluere . He admonishes , you see , and perswades , but commands not . He thought not , it seemes , his own power great enough to haue had effect in disposition of a Tenth part of euery mans reuenue , and therefore abstaind from command . neither could he haue pretended the autoritie of any Law or Canon , generally receiued into practice . for neither in his time , nor long after , till about MCC . were Tithes so generally paid ( as since ) without speciall Grant or Consecration ( as is sufficiently shewed : ) neither had any Generall Councell as yet once remembred the Dutie , or the name of Tenths . The first of the Generall Councels that mentions them , is the Ninth , that is , that of Lateran , held vnder Calixtus the second , about M.C.XIX. extant in the Vatican , and first publisht in the late Edition of the Greek Generall Councels printed at Rome by autoritie of the present Pope Paul the fift , and now newly inserted into Binius his last f f A. D. 1618. Edition . But they are there spoken of only , as they were receiud by speciall Consecrations . and in the Generall Councell of Lateran , held in M.C.XXX. vnder Innocent the second , feudall Tithes are in the same syllables mentioned , as in the Decree of Gregorie the seuenth , before cited out of the Councell of Rome . And this also , taken out of the Vatican , is to be found only in those two late and fullest Editions . But of the Generall Councels ( before that Edition at Rome ) ordinarily known and read , the first that names Tithes , is the Eleuenth , that was held vnder Alexander the third , in M.C.LXXX. But there , Infeodations of them into Lay hands , and Consecrations or arbitrarie Conueyances of them to * * Vide infr. c ▪ 7. §. 1. Religious Houses , without assent of the Bishop , are only forbidden . Neither was any Canon of a Generall Councell as yet found , that purposely commanded payment of them ; nor any that expressely supposed them a dutie of common right , before g g Cap. 53. & in extr. tit. de Dec. ● 33. cum non sit . & vid● caput prox . §. 1. that of Lateran in the yeere M.CC.XV. held vnder Pope Innocent the third , about which time , Ecclesiasticall Autoritie became more powerfull , the Canons were more receiud into practice ( that before were litle , especially herein , obeyed ) and Parochiall right to Tithes grew to be more established ; whereof , more in the next and last part of our generall Diuision , and in the English practice . But if that Canon in the Lateran Councell , held vnder Alexander the third , against arbitrarie Consecrations of Tithes without assent of the Bishop , might be vnderstood literally , and of new Tithes so created ( neither is any thing in the Councell that denies that to be the meaning of it ) then needed wee not perhaps seek further for the cause of that Assertion amongst our common Lawiers , That , before the Councell of Lateran , euery man might haue giuen his Tithes to what Church hee would . Who euer obserues the practice of the preceding time only , and the words both of that Councell , and , to the same purpose , of the other held vnder Calixtus the second , may well enough be perswaded , that the intent of those Canons were no otherwise . But in regard wee find that Canon of Lateran , vnder Alexander the third , to bee differently interpreted by Innocent the third , within twentie or thirtie yeeres after the making of it , and vnderstood only of Feudall Tithes formerly granted out from the Church into Lay hands ( according as the Canonists after him also take it ) we cannot be altogether so secure of that other interpretation . In Lateranensi Concilio ( saith h h Extr. de his qua f●a pral . sine assens . capituli , c. 7. cum Apostolica . Innocent ; meaning , that vnder Alexander the third ) est inhibitum ne quaelibet Religiosa persona Ecclesias & Decimas de manibus Laicorum , sine consensu Episcoporum recipiat ; per quod indirectè datur intelligi quòd sufficit consensus Episcopi , vt licitum Ecclesiae sit Decimas de manibus recipere Laicorum . Hoc autem de illis Decimis intelligimus quae Laicis in feudum perpetuò sunt concessae . But we must take it vpon his word only , and the credit of the following Canonists , that the Canon was so to be vnderstood . They may , as they will , vnderstand it by iudiciall application . but you may , at least , doubt still , that the Historicall vnderstanding of it , is to be had out of arbitrarie Consecrations before practiced . And it was euen equall to ordaine , that Lay men should not arbitrarily consecrate , and that they should not consecrate without assent of the Bishop ; euery Bishop ( I think ) being supposed a carefull obseruer of the former Canons , which would haue induced parochiall right to Tithes , and generall payment . So that what in this kind might not be done without his assent , was conceiud as likely to be neuer done to the Churches preiudice . Let euerie able reader iudge here . but let him not be much swayed with the rable of late Canonists , that goe away cleer with this of Pope Innocent . When the Pope had said so , they made no scruple of the truth of it ; and one takes it ( as their fashion is ) from another with too much easie credulitie . But although this be not sufficient ground for that assertion of our common Lawiers ( which cleerly , being rightly apprehended , is true ; though lazie ignorance crie against it , euen to hoarsenesse ) yet enough other will be found , whereof more toward the end of the tenth Chapter .

Of the time from M.CC. or neere thereabouts , till this day . CAP. VII .

I. The Canons of Generall Councels , and Decretals , 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 immediat 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 meer 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 .

IN these following times , the Canon Law grew to be of more force , and Parochiall right ( through the Decrees made against that former course of arbitrarie Conueyances , and from the passages of Canon Law , that supposd the generall right of Tithes ) became to be more established . But the Opinions of Canonists and Diuines haue been and are much different in the question , vpon what Law the generall right of them is immediatly grounded . But by the Practice of the Common Laws ( for so much as I haue read ) of all Christian States , they are subiect to Customes , and that somtimes as well in non payment as in payment of a lesse part . And Infeodations of them into Lay hands , yet continue in France , Spaine , Germanie , and elsewhere . And of Customes only and Infeodations wee shall principally speake in the practice of this time . For , what euer might here otherwise be rememberd touching Compositions , Exemptions , or such like , is but a meer consequent of those Customes , and of the Opinion that makes them due only by Positiue , Human , or Ecclesiasticall Law .

It is sufficiently manifested in the practice of the former CCCC . yeers , that the Laitie did vsually conuey their Tithes by Consecrations and Appropriations to what Church they would , and by Infeodations to Lay men . Their Infeodations were forbidden by the a a Videsis , cap. 14. & 9. edit. Romana & extr. de Dec. c. 19. & de Preb. & d●g . cap. 31. in Latera●ens . tit. de ●ure patron . c. 17. nullus ▪ & de his qua fiunt a pr●● . c. 7. cum Apostolica . Generall Councell of Lateran , in M.C.LXXX. whence that most known Canon Prohibemus , before cited , was taken into the bodie of Gregories Decretalls , and hath euer since been , and still is , in autoritie , and that also in the secular Lawes of France especially . It was in the same Councell ordained , That no religious Orders should receiue any Appropriations or Consecrations of Churches or Tithes , without assent of the Bishop . Ecclesias & Decimas ( are the words ) de manu Laicorum , sine consensu Episcoporum tam illos ( that is , Templars and Hospitalars , against whom the prouision was chiefely made ) quam quoscunque alios Religiosos reciperc prohibemus . This was confirmed in the Generall Councell of Lateran , held vnder Innocent the third , in the yeer M.CC.XV. And a Canon of the Generall Councell of Lateran , vnder Calixtus the second , in the yeer M.C.XIX. ( wherein parochiall Ministers were also forbidden to receiue Tithes , or Churches , from the hands of Lay men , by Inuestiture especially , Absque consensu & voluntate Episcopi ) was afterward , in diuers Epistles of Pope Alexander the third , receiued b b Extr. de iure patr. c. 10.11.21 . & de Instit. c. 3. ex frequantibus & Append. Concil. Lateran . part . 15. cap. 18. and confirmed . And although manie Decrees were before against those Conueyances , yet till these Generall Councels ( vnder Alexander and Innocent ) neither was the Autoritie of the Church so powerfull , neither were Epistles sent from Rome so frequent , to put that in execution , which had so been there established against that challenged right of the Laitie . But by this time , when the arbitrarie disposition of the owner was thus prouided against ( reference being made to the Bishops assent , that was bound to square all things by the c c C. 16. q. 1. c. 45. & 56. Canons , which would haue Tithes paid parochially , and became to be much more obeyed then before ) it grew frequent , to haue Decretall Epistles sent from Rome into euery Prouince , both to ratifie the former Consecrations and Appropriations , ( which the Popes d d Vide Innocent. 3 in extr. de his qua s●a pral c. 7. began also , at pleasure , to declare sometimes void , if made by Lay men alone ) and also to exact parochiall payments of other Tithes , not canonically conueyed out of the Parish : and the reason sometime was added ; that is , e e Extr. de dec . in c. 29. cum cont●ng●● . Perceptio Decimarum ad Parochiales Ecclesias de iure communi pertinet . and the Generall Councell f f Ibid. c. 33. cum non sit .. of M.CC.XV. had taken it cleere , and so exprest it , that in signum vniuersalis Dominij quasi quodam titulo speciali sibi Dominus Decimas reseruauerat : And after a few words , the Canon is concluded with Decimare cogantur Ecclesijs , quibus de iure debentur . And the action for parochiall Tithes in those times , as now , is called g g Ibid c. 31. dudum aduersus . iure communi fundata intentio ; that is , by common right , Tithes praediall and mixt were due to the Rector of the Parish ( were he Bishop or Priest ) if they were not otherwise , by speciall title , enioyed by some other Church , or discharged by Canonicall Exemption . But how little this common right had before been practiced , appears not only in what is alreadie declared , of the vse of the former time , and in the doubts made by Gratian in the Decree , and Pope Lucius the third , Alexander the third , and others in their Epistles touching it , but also in other occurrences of somewhat before the beginning of these CCCC . yeers , amongst which you shall find , that both the religious and secular of the Clergie would vsually take Couenants from their Tenants , to pay them the Tithes , and so preuent the Parson of the Parish where the land lay . If parochiall right had then been common , how could such a Couenant haue preuented the Parson ? That practice is both related and remedied in the h h C. 56. & extr. de ●actis c. 17. plerique & videsis Append. ad Concil Later . part . 13 cap. 6. Generall Councell of Lateran , of M.CC.XV. and an example of it in the Archbishoprique of Matera is remaining among the Decretals i i Tom 3. Epist. Decretal . lib. 2. p. 483. of Innocent the third , where also it appeares , that the Archbishop had complaind to the Pope , That the Land-occupiers in his Diocese vsed to diuide their Tithes at their pleasure , and arbitrarily giue part to the Church , part to the poor , part to their kinred . for which hee had remedie by Pontificiall Decree . Hereto you may adde that of an old Councell of k k C. 13. quast. 2. ● 6. vbicunque , in Concilio ipso , c. 15 Tribur , in DCCC.XCV . Vbi quis Decimas persoluebat viuus ibi sepeliatur & mortuus . As if euery man , by the choice of the place of his deuotion , in paying his Tithes , might make it his Parish . And when Alexander the third , about the yeer M.C.LXXX. was to answer the doubt touching Parochiall right of Prediall Tithes ( that is , whether they were due intuitu territorij , in regard of the limits within which they grew , or obtentu Personarum , by reason of the person , and so to be paid to the Church wheresoeuer the owner for the most part receiued the Sacrament and heard Diuine Seruice ) he knew not how to determine it ; and withall acknowledged , that although it had been often moued , it was neuer resolued . Sane ( saith l l Epist. Decretal . lib. 3. Ms in Biblioth. Cottoniana . he ) cum huiusmodi quaestio temporibus praedecessorum nostrorum mota fuerit , non determinata , alijs intuitu Territorij , alijs Personarum obtentu Decimas afferentibus debere persolui , non est nobis facile certum tibi dicere : which are the words of that Epistle ; a part whereof is in Gregories m m De Decima , c. cum sint . Decretals . So , that although by the Canons they would haue had a vniuersall payment of Tithes , and although some much ancienter n n Vide C. 16 qu ▪ 1. cap 45. & 56. autoritie be in that Law for Parochiall payment , yet they had long before , and about the beginning of this last CCCC . yeeres , so much controuersie touching Parochiall right , that euen thence alone you may see , it was not so much as , in Opinion , established . Enough more like Examples are of that time . And you may obserue , that where Pope Alexander doth by Decretall command a Parochiall payment in the case of the Monks of o o Extr. tit . de dec . c. 4. commissum . & Append ▪ ad Concil. Lateran . part . 13. cap. 12. Boxley ( for so you must read in Gregorie ; not Bosse , as it is in the most polite Edition ) yet his ground is from a vse of Parochiall payment in that particular ; without which , he had been as vncertaine there , as he and others are in Epistles of that time . But so farre also was the former course of arbitrarie Consecrations now withstood , that not only the Lay owner might not of himselfe consecrate the right of his Tithes at will , but also , although the Bishops assent had ioind with his in conueying any Tithes ( except only such as were infeodated to him before the Councell of Lateran of M.C.LXXX. ) the Conueyance had been declared void ; and to that purpose only , of passing Feodall Tithes out of Lay hands to the Church , was the Bishops assent p p D●h● qua f ▪ ap●al . sine cons. c. 7. cum Apostolica decreed to bee sufficient . But howeuer , through those Oecumenicall and Pontificiall Decrees , a more certaintie of Parochiall right was now begun ; and though those old Canonists also , Pope Innocent the fourth , Cardinall Hostiensis , and some others , about the yeere M.CC.LX. writing on the Decretals , took Parochiall right as a thing cleerly established in Law , yet it is reported by some Ancients of good credit , that sufficient remedie was not fully prouided against that practice of the former course of Arbitrarie dispositions of Tithes , till the Generall Councell of Lions , held vnder Pope Gregorie the tenth , in the yeer M.CC.LXXIV . in which , they say , it was constituted , Vt nulli hominum deinceps liceat Decimas suas ad libitum , vt anteà , vbi vellet assignare , sed Matrici Ecclesiae omnes Decimas persoluerent . So Randall Higden the Monk of Chester , Henrie q q M● . in Biblioth. Cottoniana . Knighton Abbot of Leycester , and Thomas of Walsingham a Monk of S. Albons , tell vs ; and all three of them liud but about C. yeers from the time of that Councell , and might so perhaps , haue had for it some ancienter Autoritie from some now lost moniments . And vpon this , doubtlesse , was that assertion corruptly related in the printed Examination of W. Thorp before Arundell Archbishop vnder Henrie the fourth ; where he answers , That one Pope r r Apud Fox . in H●n. 4. pag. 494. Gregorie the tenth ordained new Tithes first to be giuen to Priests now in the new Law . But the bodie of that Councell ( which was first publisht only in the late Edition of the Generall Councels at Rome , and is now also in the last Edition of Binius ) hath no such matter in it . One Canon is there , specially against Extat i● lib. 6. tit . de feb. Eccles. non ali●n . c. 2. hoc consultissimo . Allenation of Reuenues of the Church by Clergie men , and another , against vsurpation t t In 6. t●t . de El●ctione , c. 13. in generali . of them by Lay Patrons in time of Vacancie ; but neither out of them , or the rest , can you extract what those Monks haue related . But although they might erre in the relation of the Canon , yet , doubtlesse , they had some speciall memorie , that Parochiall right to Tithes had been but of late yeers , and sometime after M.CC. receiud into the more known and practiced Law ; although the Doctors so confidently before talke of it . For we must not doubt , but that those elder Canons , notwithstanding their great autoritie , were by most different degrees of time receiud into vse , and in some places , not till long after M.CC. as wee see particularly in that of the practice in the Diocese of Palentia , till M.CCC.XXII . which was , that euery man , wheresoeuer hee dwelt , yet might declare himselfe to bee of what Parish hee would , and to that Parish only giue his Tithes : Which was remedied by a Councell then held at Villadolid , vnder William Bishop of Sabina , the Popes Legat ; where he begins with , Parochiarum diuisio à sanctis patribus instituta certitudinem Parochianorum & Decimarum debitam solutionem inducit . For indeed , Parochiall payment regularly was now grown , by the Canons gaining force , to be the only debita solutio . The next authoritie of a Generall Councell for Parochiall right ( after that of Lateran ; wherein yet nothing directly constitutes it , but rather it is supposed , as of former time ) is the Condemnation , in the Councell of Constance , of Wicklefes assertion , That Tithes were meer Almes , and that parishioners might , ad libitum suum ( as his position was ) eas auferre propter peccata suorum Praelatorum . And since that , in the Generall Councell of * * Sess. 25. de reformatione . cap. 1● . Trent vnder Pius the fourth , about M.D.LX. this Canon was published . Non sunt ferendi qui varijs artibus Decimas , Ecclesijs obuenientes , subtrahere moliuntur , aut qui ab alijs soluendas temerè occupant & in rem suam vertunt , cùm Decimarum solutio debita sit Deo . Et qui eas dare noluerint aut dantes impediunt res alienas inuadunt . Praecipit igitur sancta Synodus omnibus cuiuscunque gradus & conditionis sint , ad quos Decimarum salutio spectat , vt eas ( ad quas de Iure tenentur ) in 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 u u Speculator lib. 4. part. 3. tit . de Decimi● . Prosper Farnia● . Criminal . decis . Rota Rom. 291. ● . 13. alij passim . 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 d●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 x x ff. de condict . ex l●g . L. Vnic . 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 y y Ad tit . de Paroch . & al ▪ Paroch . 〈◊〉 figu●ficauit . 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 z z Panor●●it . & gl. ad● tua nos , tit. de Decimis . 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 a a C. tit de Prascript. 30. vel 40. ann. l 6. comperit sed & vide ibid. Bald. Cyn. & Salic●tum . , 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 b b Gl. & Panormitan . ad c. in aliquibus extr. de Decimis , alij . 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 , c c Petr. Rauenn . apud Maiorem in sent. 3. dist. 37. quast. 36. quod quota Denaria est de iure Diuino hodierno die . But some Canonists withall are , and those of no small note , that agree , the determination of the Tenth to be only de iure Ecclesiastico , and that no more Ius Naturale , or Diuinum Morale , is in it , then what commands a competence of meanes to be giuen to the Priesthood . So d d Variar. resolut . lib. 1. cap. 17. Couuaruuias ; so , some others . But few enough are of this opinion . All that are of it , make no doubt of the right of Customes ( prouided alwayes , that a sufficient reuenue be possessed by the Minister ) but allow the payment of them to be diminished or taken away by Custome or Prescription . But they are generally against the possession of Feudall Tithes held by Lay men ( which they suppose , but falsely , to haue all had beginning from the Church ) although Infeodated before the Councell of Lateran . Yet indeed some of them expresse an allowance of them ; but that is rather in mingling common Laws with their Canons , then writing as Canonists . The common Laws of all Nations ( where feudall Tithes are ; and I thinke certainly , in all Christian Nations feudall Tithes at this day are found ) allow them now , and suffer the Canons to haue no power ouer them . And thence is it ( lest they should grossely determine against such possessions as the Church anciently , as well as the Laitie , had by Infeodations setled , and Posteritie still maintaind ) that some receiue into their Conclusions an admittance of what their own profession abhorres . Which may not be amisse said also of such of them as maintaine a Custome in the quota , or the like . For that is done rather by striuing to conforme the Canons to the common Laws , or secular Constitutions of the State where they liue ( as our Ciuilians , in the practice of the ancient Canon Law , do here also ) then by iudging according to the bodie of the Canons , that regularly allow no sufficient exception against parochiall payment of the whole prediall Tenth , but only Papall autoritie , or a Title canonically setled in some other Church . And the better to make these Infeodations stand with their opinions , they haue also a vsuall distinction of Ius percipiendi , and fructus Decimarum . The Ius percipiendi , they say , cannot be transferd , nor euer was , by the old Infeodations , because euery lay man is incapable of it . but the fructus Decimarum only , as they teach , is what passed , and is still possessed , in consideration that the possessors should defend the Church from Heretiques and Tyrannie . The summe of what the old Canons haue , both against ancient and new Infeodations , is in the former Chapter noted ; and according to them , how that distinction will hold , I see not . But , among them , great opinion is also , that all Feudall Tithes are to be restored to the Church , and that he which holds them , may not lawfully passe them ouer to another Lay man ; but may only , with assent of the Bishop , giue them to some Church . Nec multum refert quae Ecclesia habeat dummodo extirpentur à Laico , as Panormitan sayes . And to this , they abuse that Canon Prohibemus , of the Councell of Lateran , that was not indeed made against Tithes then infeodated , but only against new Infeodations , as Pope Innocent the fourth there well teaches . For , saith he , Non loquitur de Decimis infeodatis , sed de alijs male detentis . Which iustifies what is in the former CCCC . yeers , against the receiued Interpretation , deliuered .

III.

The Diuines , of since the beginning of this time , haue had their seuerall Determinations and Doctrines vpon this point , and those may be , for method , put chiefly in a Three-fold difference ; although rather the second Doctrine ( as presently will appeare ) were but an issue of the first . and the chiefe question among them comes to this , Whether , by Gods immediat Morall Law , the Euangelicall Priesthood haue a right to Tithes , as to their Inheritance , in equall degree , as the Lay man hath to his Nine ; or if they haue them only as by human Positiue Law , and so giuen them for their spiritual labor ? that is , in brief , Whether by originall distributiue Iustice , or by commutatiue , they are payable ? although , in the Opinion which wee shall here make the third , all Positiue or human Law be , for the most part , neglected ; whereof , more presently . But in that ( which we here make the first of those three Opinions ) it hath been held , that the Tenth considered quoad quotam partem , or , as it is , a determined part , and denoted from that number , is due only by Law Positiue and Ecclesiasticall ; but , quoad substantiam suam , or Cleri sustentationem , or in regard to it , as it denotes a necessary or competent part of the maintenance of the Clergie , that is due by the Diuine Morall Law . And to the purpose of this distinction , they interpret the Leuiticall commandments of Tithes ; and deliuer that quoad substantiam suam , or as it was generally for the maintenance of the Minsterie in the Iewish Church , it is Morall or Naturall , there being ( according to consideration of it so farre ) the very Character of it writen in the Tables of mens hearts ; that is , that Spirituall Laborers are to be rewarded with temporall bountie , as euery laborer is worthie of his hire . But quoad quotam partem , it is , they say , a Iudiciall ( or Ceremoniall , as some will ) and that it hath been brought into the Law of the Gospell by Ecclesiastique Doctrine & Constitutions ( both which we haue before related ) proceeding from it only per vim eius exemplarem , or by imitation of the Iewish state , ordered by the Almightie ; and not in that regard per vim obligatiuam , or any continuing force of it vnder the Gospell . And that the Church was not bound to this part , but freely might as well haue ordained the payment of a Ninth , or Eleuenth , according to various oportunitie . This is commonly taught by the old Schoolemen , Hales , Aquinas , Henricus de Gandauo , R. de Media Villa , Cardinall Caietan , and diuers others ; ( but fullest , in my iudgment , by Ioh. e e Ad 3. Sent. dist. 37 quast. 36. Maior ) and maintaind by great men , that in our times follow their wayes of disquisition . The first that expressely made this distinction , was that Alexander Hales , that liued about M.CC.XXX . and thus f f Part. 3. q. 51. memb. 3. determind , Praeceptum de Decimis est praeceptum Iudiciale , vnde non est dicendum Morale , quia secundum suam determinationem ( that is , secundum quotam partem ) non est scriptum in corde hominis , nec Ceremoniale , quia non est datum principalitèr in figuram significationis , sed Iudiciale quia datum simpliciter in rationem aequitatis mutuae distributionis , vt sit aequalitas dati & accepti inter seminantem spiritualia & dantem temporalia , secundum quod possibile est , &c. And g g 2 ▪ 2. q. 87. art 1. Aquinas ; Determinatio Decimae partis soluendae est autoritate Ecclesiae ; and adds , that the ground of it , which he calls radix , is the text h h Epist. 1. ad Carinth . cap. 9.11 . , If wee sow vnto you spirituall things , is it a great thing , if wee reap your carnall things ? The same is by Hen. de Gaudano i i Quodlibet 4. q 28. exprest in these words , Euangelica· And deliuers accordingly the right of them to be partim de iure Naturae & Euangelij , that is , quatenus vacantibus Diuino Ministerio communiter ab omnibus debet prouideri ; and , partim de iure humano Ecclesiastico , or Positiuo , that is , quoad quotam partem . And to the same purpose , the rest . But whereas some make that learned Hales the first Autor of this doctrine ; doubtlesse they erre . For howeuer Lex Diuina , Deus Praecepit , and the like , frequently denote the right of Tithes in the former CCCC . yeers ; yet first consider , what is there admonished touching the practice of the time , and from thence you may , perhaps , interpret their meanings to be otherwise , then as they are commonly ( and especially by the Canonists ) taken . Could the Church haue , before his time , held cleerly , that the Tenth was due by the Morall Law , and yet , against their owne consciences , generally , giue way to , and practice also , those Conueyances , which can haue no power ouer that which the Morall Law , euer binding vniformely , hath ordained ? And indeed some great Doctors teach , that the Ius Diuinum , denoted in those passages of the bodie of the Canons , was no otherwise vnderstood , then only that we are bound to it by the Law Positiue of the Church , imitating the Diuine Iudicials ( which retaine still , as Cardinall Caietan teaches , their vim exemplarem , though not obligatiuam ) and is well enough thence stiled Ius Diuinum . Cum ergo dicitur ( sayes the Cardinall k k Ad 2. ● . q. 87. art. 1. ) Lege Diuina , aut Deo iubente ad Decimas tenemur ; intellige exemplariter . Neither doth he otherwise interpret other passages of the Fathers , which are to that purpose . Neque aliud , are his words , sancti patres intellexerunt . and remember also , that those Fathers affirme it not in disputation , but only in exhortation to the people ; which is specially obseruable to any that knows the course of their writing . With Caietan also ( in that the Law for Tithes is not Morall ) Bellarmin , Suarez , Malder Bishop of Antuerp , and late professor at Louain , and others accord , and make it the communis opinio Theologorum ; and some will haue it Ceremoniall , rather then Iudiciall . but wee dispute not thereof . But also an example is brought out of S. Ambrose his vse of l l Videsis I Maior . ad 4. se●t . dist. 15. quaest. 3. Quadragesima diuinitus constituta , denoting the Ecclesiastique commandement of Lent , that was but in a kind of imitation of our Sauiors abstinence . Which shews , that what is from the holy Word exemplarily taken , is denoted sometimes with such attributes , as might signifie a Morall Constitution . And the truth is also , that Ius Diuinum is very often , and was , about the time of the bodie of the Canon Law published , taken for Ius Ecclesiasticum , or Ius Ciuile quod ad Ecclesiae administrationem spectat . as you may plainly see in an Epistle of Alexander the third , that liud till M.C.LXXX. where he directs , that a Church hauing been in possession XL. yeeres of Tithes growing in another Parish , should haue them still by that prescription , because in such case , de iure diuino & humano melior est conditio possidentis . Who sees not , that he there vses Ius Diuinum for Positiue & human Law of the Church ? What hath the prescription of XL. yeeres , or primer possession to do with the direction of Diuine Morall Law ? Or indeed , if he had meant , that Tithes , quoad quotam , had been due for the Ministers Salarie by the Diuine Morall Law , how could prescription haue had place against it ? Part of that Epistle is m m Extr. de Pr●script . c. 6. ad au●es . in the bodie of the Canon Law . But because it is fuller , and indeed more authentique , in a verie n n In Ms. lib. 5. in Bibliotheca Cottoniana . ancient Copie of Decretall Epistles ( the most of them being of Alexander the third ) it shall thence be hither faithfully transcribed . Alexander Mauricio Episcopo . Ad aures nostras , te significante , peruenit , duas Ecclesias saepius sub examine tuo litigare super Decimis quas vna Ecclesiarum in alterius Parochia XL. annis possedit , ac per hoc o o L. putat eius actionem extinctam petit eius actionem extentam . Altera vero volens eas iure Parochiali euincere , praescriptionem non debere sibi obesse proponit . Ideo quid iuris sit in hoc casu , tua nos duxit fraternitas consulendos . Tuae itaque fraternitati literis praesentibus innotescat , quod iure diuino & humano melior est conditio possidentis , quoniam quadragenalis praescriptio omnem prorsus actionem secludit . And , that Ius diuinum was in that sense taken in these Ages , appeares also by Hales ; where , although p p Part. 3 q. 51. membr. 5. he before held cleerly , that the commandement of the quota pars was iudiciall , yet he sayes , that Decima sicut Domini generalis cenfus is payable iure diuino , that is plainly ( in his meaning ) by the Ecclesiastique Constitution of the Church , imitating the Diuine Iudicials . Neither was the phrase otherwise vsed in that of the Generall Councell of Lateran , held before the time of Hales , in the yeer M.CC.XV. Illae quippe Decimae necessariò sunt soluendae , quae debentur ex lege diuina vel loci consuetudine approbatâ . I know the Canonists miserably wrest themselues about the interpretation of that place . but , when they haue done all in mistaking it , could the Councell think , that loci consuetudine , some were due , yet that all lege diuina ; taking it for the Morall Law . for , if any , then all , by the Morall Law . Cleerly then the English q q Bellarm. etiam optim● interpretatur , lib. 1. de Cler. ▪ cap. 26. of that was , Those are necessarily to be paid , which are due either by the Positiue Law of the Church ( which extends not alwaies vniuersally ) or Custome of the Place . Some refer that ex consuetudine to personall Tithes , supposing r r Vide Henric. Bowhic in tit . de dec . c. peruenit . them due only by Custome or Positiue Law . And that also might be a tolerable interpretation , if at the time of the Councell such a distinction had been receiud twixt personall and prediall . But can it then stand for truth , that Hales was the first that brought this opinion of the quota being due by human determination in the Church , and not by the Diuine Morall Law ? Indeed he was the first that accurately disputed the question as a Schooleman , and expressely made the distinction , but cleerly not the first that so held the point . To the former Testimonies hereof , adde that of Hugo de S. s s Eurdi● . Theolog. lib. 1. part. 11. cap. 4. Victore , who liud neere C. yeeres before Hales . He speaking of payment of Tithes before the Law , vnder the Law , and since , concludes with , Primùm igitur ante legem , paruulós Consilio nutriuit ( Deus ) posteà sub lege exercitatos praecepto tentauit . Nouissimè sub gratia perfectos in libertate spiritus ambulare permisit . By this first Opinion of the Schoolemen , to which the ancient Fathers are ( you see ) by some of them squared , no difference is to be made of Prediall , Mixt , and Personall Tithes , how euer some scruples about that difference , haue been needlessely handled by them . For quoad substantiam Decimae , or Decimam sustentationis , as they call it , or , as the laborer is worthie of his hire , both are equally due . The Morall Law , according to them , designes not out reall possessions to be more subiect here to the naturall part of commutatiue iustice , then personall 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 t t Ockam . lib. 1. dialog. 3. 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 u u Raynutius apud Hosti●●sem in summ . tit de decimis ▪ num. 10. 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 x x Ad Sent. 3. dist. 37. quast. 36. 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 y y See Wicleues complunt to the K. and Parliament artic. 3. 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 Vide Zonar . in Concil. Gangr . Can 7. 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 z z Clementin . tit. de Decim . c. 1. Religiosi . Councell of Vienna , held in M.CCC.XL . and their Doctrine was taxed by Pope Innocent the fourth about M.CC.L. writing a a Ad extr. tit. de Paroch c. vlt. significauit . vpon the Decretals , where he calls them isti noui Magistri , & Praedicatores qui docent , & praedicant contra nouum & vetus Testamentum . and Richard Archbishop of b b In desensor . C●ratorum . & vide , si placet Alex. lib. 4. consil. 60. 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 c c Et videsis in Fascicul ▪ rer. expetendarum , pag. 143. in Wicleu● Thesibus . Position ( for d d 20. Hen. 7. fol. 17. 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 e e Doctrinal . fidei tom. 1. lib. 2. Artic. 3. cap. 64. & 65. 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 f f Fox in Hen. 5. pag. 602. Gospell is denied . wherupon also they long since took all temporalties from their Ministers , and brought them g g Ioh. Maior in Sent. 3. Dist. 37. q. 3● . to stipends . Others haue been possest with this conceit , and among them you may remember Gerardus h h Paul Grysaldus apud Camill. Borell . in Consiliorum part . 1. consil. 45. edit. à I. Baptist. Casare . 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 .

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 many autors in the Church of England , in the blinder time of our ancestors ; I thence collect , for that in a Penitential made for direction of Priests in auricular Confession , and writen ( as my Copie is ) about Henrie the sixth , the Priests examination and aduise vpon the point of Tithing , is thus expressed . Hast thou truly doo thy Tithings and Offrings to God and to holichirch ? thou shalt vndirstande that at the beginning of the worlde , whan ther was but oon man , that is to sey , Adam , God chargyd him that he sholde truly of al maner thyng giue God the Xth . parte , and bad hym that he sholde teche his children to doo the same maner , and so forthe al men into the worldis ende . And forasmuch as ther was that tyme no man to receiue it of hem in the name of holichirche , and God wolde not that thei sholde haue but IX parties . Therefor he commandid hem that of euery thyng , the Tithe parte should be brent . I fynd that afterward Adam had two sonnes Caime and Abell , Abell tithed truly and of the best . Caym tythed falsely and of the werst : at last the fals Tyther Cayme slough Abell his brother . for he blamyd hym and seyd that he tythed euel , wherefore our Lord God accursid Caym and al the erth in his werk . So ye mow se that fals tything was the cause of the first manslaughter that euer was . and it was cause that God cursid the erthe it is literally transcribed as I find it . that writing of Cayme for Cain is ordinarie in the moniments of that age , as you may find in Wickleues works , Waldensis his Doctrinal ▪ and others of like nature . But see here the effect of peruerse opposition on both sides . Some Friers , prouiding only for their own wealth , would haue had them reckond meer Almes , and so haue gotten them from the Secular Priests . and others would haue had them retaind by Lay men . The Secular Priests on the other side would rather instruct the Laitie with ridiculous falshoods ( in the termes whereof they would not spare to abuse the holiest Name ) then not seem to say enough for their own gain . In those times they did so . they saw the Friers dangerous doctrine to their reuenues , and therefore omitted no argument , no course in opposing it . a notable testimonie whereof is had also in that of Frier i i Ex. Arthium Arch. Cant. ha●sit V. C. Arth. Duck LL. D. in vita Th. Chicheley Cant. Archepisc . pag. 73. William Russell a Franciscan that in the Conuocation of 5. Hen. 6. was vehemently accused because he had preached , that Personall tithes were not necessarily payable by Gods Commandement , but that euery man might dispose them at his pleasure in charitable vses . the summe of which was , that euery man might or should rather giue them to the begging Friers . a doctrin of no small preiudice to the Secular Priests , if once publiquely receiued . This Russell was by the Conuocation enioyned to recant at Pauls Crosse on a prefixt day , before which he fled the Kingdom ; and after publique citations against him , was solemnly pronounced an Heretique for it . his opinion also being condemned by both the Vniuersities . the letters then sent to the Conuocation , from Oxford , both shew the determination of that Vniuersitie on the point and the particular Tenet also of Russell . therefore we insert them . the direction is to the Clergie of Canterburie-Prouince from the Vniuersitas studij Generalis Oxoniae , after which follows a preface in generall termes against such as forsook the ancient waies and fell into new heresies . then they go on with sed quia in multis nouitas ( so are the words of it , as I haue it faithfully transcribed k k Ex Archiui● Oxon. in● Biblioth. Bedleiana . to me through the courtesie of my most honord friend Mr. Thomas Allen of Glocester Hall ; whose name it were not without offence in me , at all to mention without speciall reuerence , aswell to his singular humanitie as to his fulnesse of learning & worth in good Arts ) Sed quia in multis nouitas parit pericula , in quibus antiquitas non peccabit , illud esse censemus inconcusse tenendum quod ab antiquis patribus constat clarissime praefinitum . Verùm quia nuper nobis innotuit cuiusdam nouelli ( that is of Russell ) insana doctrina contra Decimas personales ( cuius miramur audaciam & dolemus insipientiam ) sed eius pertinaciam & Ecclesiae contemptum sustinere veremur , & ne nostra L. Saciturnitas . taciturnitate seu negligentia tacito consensui adscribatur , in ipsa materia scribere curauimus quod concordes sentimus , & in euidens testimonium nostro ●igillo communire decreuimus , ad veritatis dilucidationem & obsequium Ecclesiae , vt tenemur . then they deliuer their determination thus . Dicimus & firmiter concipimus quod Decimae personales tam ex praecepto iuris diuini quam sanctorum Patrum traditionibus sub autoritate Ecclesiae in concordi iuris iudicio debentur Ecclesijs & earum Ministris Curam animarum habentibus & Sacramenta ministrantibus ex autoritate Ecclesiae . Magna namque est sacro Sanctae Ecclesiae autoritas extra quam fides plane perpendit nullam posse peruenire salutem fidelibus . Ne illic ergo resideat spiritus pestilens aut opinio corrumpens vbi locus quaeritur fidei Orthodoxae , verba per aduersarium praemissae nostrae sententiae praedicata , quae etiam sub Auaritiae subtili suco deprehendimus palliata , reprobamus & tanquam erronea & haeretica declaramus . Quorum demens tenor cum reprobo sensu sic sequitur , Catholica damnatione fulminandus . Decimae personales ( this was the doctrin of Frier Russell ) non cadunt sub praecepto diuino , saltem vt soluantur Parochiali Curato ; quare licet vestrûm vnleuique , nisi consuetudo in contrarium fuerit , in pios vsus pauperum eas dispensare . Et iterum . Personales Decimae sub diuino non cadunt praecepto neque iure debentur , vbi solutionis non est consuetudo . But they thus damne it . Quiscunque hanc sententiam tenuerit , & pertinaciter defenderit apud reputationem nostram Haereticus est censendus , & quia à sana doctrina Ecclesiae est diuisus , à corpore eiusdem Ecclesiae , velut membrum putridum , est praescindendus . O honorabil● fratres & Domini , O vniuersitates Catholicae , & quicunque fideles scrutamini Scripturas , Canones inspicite ac eorum naturales concipite rationes . quam proditorium est tributum negare altissimo ? quam inhumanum à laborantibus abstrahere debitum ? quam graue schismatis exemplum autoritati Ecclesiae publice & pertinaciter resistere ? ac etiam iustitiae obuiam contra praecepta Canonum res alienas invadere : nimis cruenta ac sacrilegia est haec auaritia quae antiquissimi iuris Decimale debitum solum Consuetudini adscribit , & in dubium revocat vt laborantium victum iuste exhauriat . quod Ministris Ecclesiae ad eorum honestam sustentationem firmum persisteret si Decimae possunt ad libitum conferri & ius Decimandae ex Debito non esset ? O vtinam aut resipiscant & ad Ecclesiae gremium redeant , qui tanto facinori fauere conantur ; aut asperrimis 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 m m Ad annum Christi 75. 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 n n Edictes & O●donuane●● de France tom. 4. tit. 22. 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 es●re payees loyaument & sans fraude : ce neantmoins plusieurs Agricoles , proprietarees , &c. with these may be reckond , that of the Clergies petition in the b b Rot. Parl 50. Ed. 3. art. 199. 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 c c Append. ad Co●●il . Lateran . part . 4. cap 1. 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 d d Edict & Ordinances tom. 4. pag 493. 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 e e Videsis Guido●om ●P . Decis. 2●8 . & Cons●●t . Bitur●●● ▪ ●it 10. de Custumes predial●● , §. 11. 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 f f Vide Carol Molin . in Consu●● Paris . de● Fiefs §. 68. pag. 1296. & seqq . & Bertrand . d' Argentr● in Consu●t . Britan. ●rtic . 266. pag 1114. 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 , as it were iure pos●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 g g I. Lucius Paris . Placit . Curia lib. 2. tit. 5 §. 2. 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 h h Bacquit des droicts de Domaine tract . 4. part. 3. chap. 30. 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 i i Voyez Pasquier en 〈◊〉 Recherche● liu . 3. chap. 35. 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 y y Code des D●cis . lib. 1 tit 10. decis . 15. 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 z z Co●bin enles Loix de. a France Arrest 66. Et Code des decis . liu 1 tit. 10. decis . 17. & voyez Papou en Notaire vol. 2. liu. 8. fol. 551. 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 a a Bertrand . d'Argentre in Cons. Brit. art. 266. des Appropriances , pag. 1111. 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 b b Ad sent. 3. dist. 37. quast. 36. 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 c c Videsis Guidonem Papam Decis. 284. Code des decis . l. 1. tit. 10. decis . 7. 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 d d Ad Edict . Henr. 2. contra datas paris & abus . Curia Roma●a . 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 e e Code des Decis . li● 1. tit . 17. Decis . 9. 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 f f Et testatur e● ij● Conuarunias lib. 1 Var. Resolut . cap. 17. 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 g g Carol. de Gr●ssallo Regal . Franc. lib. 2. iur● 7. 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 h h Tit. 10. des Coustomes prediales , §. 12. Berry . Item par la Custome , disme est doibt paier seulement des choses d'ont est accoustume payer Disme , &c. where Boerius saies , he hath seen it accordingly for other places often adiudged at Paris . and in an Edict of 10. Hen. 4. of France touching the payment of Tithes by those of the reformed Religion , the payment is commanded only , i i P. Matth. hist. tom. 1. liu. 2. pag. ●25 . in 8. selon l'vsage & coustume des lieux . and accordingly diuers Arrests of Parliament also haue been . And although somtimes Customes haue beene there disallowd , especially de non decimando ; yet that hath proceeded chiefly from the vsurpation of the Canons , where the secular Law was wrongfully neglected ; as you may see in the example of that of the Ecclesiastical court at k k In 3. Sent. dist. 37. quast. 36. Rhosne , wherein the Laitie were compelled adreddendas Decimas de faeno & aliquibus alijs de quibus apud eos inconsuetum erat reddere decimas , as Maiors words are , who concludes , that had the Iudge been other then a Canonist , he would not so haue adiudged it .

VII .

In Spaine also some infeodated Tithes from ancient time are in Lay hands , which the t t P. Matth. ad Guid. Pop. decis . 2 8 ex Chronico Io● . 1. R. Castella , & vide Petr Bellugam in Spec. tit . de Decimas . Clergie about M.CCC.LXXX . would haue had into their reuenue , vnder Iohn the first of Castile and Lions ; but could not . and in an Ordinance of the same Iohn , against all such as should vsurp the u u Ordennantas Reales de Castella lib. 1. tit. 5. leg . 1. & 3. right of Tithes , a prouiso is that it should not extend to such Tithes or Church Reuenue , as the Crowne or any subiect had from ancient time enioied .. And a third part of Tithes due to the King , is menciond in their x x Recopilacion por Philip. 2. lib. 1. tit. 5 & Gregorio Lopez du Partina 1. tit. 20 leg. 22. Laws , as graunted to him from the Pope , of which , at his pleasure new Infeodations are made . And Petrus y y In 2.2 . D. Thom. di●put. 40. memb. 1. 〈◊〉 ●6 . de Lorca remembers , that the Pope Regibus Hispaniae concessit tertiam partem Decimarum & alijs secularibus absque consensu singularum Ecclesiarum . among these you may reckon those Tithes in the Crowne , which by graunt from the Pope , King Ferdinand and Queene Isabel had in the Kingdome of Granado , in consideration of their endowment of Churches there . and of them and their iurisdiction , whereto they are subiect , thus z z Practic . quast cap. 35. Couaruuias an excellent Lawier of Spaine . Semel , saies he , ex literis regijs vidi Decimarum causam tractari inter Ecclesiasticos apud Granatense Praetorium , ex eo quod Reges Catholici Ferdinandus & Elisabeth Decimas huius Regni Granatensis obtinuerint à Pontifice Maximo cum onere dotandi Ecclesias . that is , the Iudges held plea of them by Commission from the King , not by spirituall power , which otherwise regularly hath conisans of Tithes ; although another great Lawier a a Gregorio Lopez ad Partula 3. tit. 4. leg. 17. of that Countrie denie that the Conisance of such Tithes lawfully belongs to any other iurisdiction then spirituall . Neither hath the Canon Law been so powerfull there , as to make Tithes payable against Customes , for paiment either of a lesse part , or none . And howeuer in an Ordinance of the yeer M.CC.XCIV . Alfonso b b Fa●ro Real a Espanna lib. 1. tit. 5 y en Pragmaticas y leyes recopilados por mandado de los &c. Ferdinando & Isabel . the ninth , published his mandamos y establescemos por siempre , que todos los hombres del nuestro regno den sus diezmos derechamente y cumplidamente a nuestro Sennor Dios de Pan y de Vino y ganados y de todas las otras cosas que deuen dar de rechamente segun manda sancta yglesia , wherein he seems to establish , that whole Tithes without any Diminution should be alwaies paid to the Church , of Corne , Wine and Cattell and all other things ( which Ordinance also is exemplified and confirmed by Iohn the second of Castile , and Ferdinand and Isabel ; and accordingly , Alphonso Diaz de Montaluo his glosse on it , makes it to be consonant wholly to the Canon Law ) and the whole course of their ancient bodie of the Law , in their Partidas be agreeable with it . yet the practice in that state hath been and is , that if suit be commenced in the spiritual Court for new Tithes , formerly not accustomed to be wholly or not all paid , and such custome or prescription be pleaded , and the Officiall or Ordinarie allow it not , vpon complaint to the Kings Court , the defendant shall ( as in case of Prohibitions in England ) haue his remedie . This is declared by c c Practic . quast. 35. their Couarruuias . Erit , saith he , obseruandum , causam Decimarum quandoque in his regnis ( that is , France and Spain ) tractari apud regios Auditores ; nempè cum Laici contendunt Decimas ab eis exigi , quae legitima Temporis praescriptione ( which is vsually thought should be immemoriall , and so is their d d Alfonso de Azeuedo in Reg. Constit . lib. 1. tit. 5. l. 5. practice ; although the most common time in other things be XL. yeers ) minime debentur , & sunt remissae ; denique conqueruntur contra morem & consuetudinem Decimas ab eis exigi . nam etsi condemnentur à iudice Ecclesiastico nihilominus , ex quaerela , causa , retinetur apud Regia Praetoria . Siquidem & literae Regiae passim dantur à supremo Senatu ad id vt Laici non cogantur Decimas illas soluere quae solui legitimâ temporis praescriptione non consueuerunt . And with him agrees Alfonso de Azeuedo , that writes vpon their Ordennanças Reales . But these kind of their prohibitions are grounded vpon their Ordinances , forbidding Decimas a Laicis exigi , quae per consuetudinem contrariam non consueuerunt solui , as Couarruuias sayes ; and to that purpose was an Edict e e Couarru . Var. Resolut . lib. 1. c 17. of their Charles the first ( Emperor de fift ) at Toledo in M.D.XXV. and another like of his at Madrid about three yeers after , and before foure yeers were thence past , at Segouia , and another at Villadolid . And vpon these oftentimes ( sayes Alfonso de Azeuedo ) Writs of Prohibition go out to the Ecclesiasticall Iudges , that proceed super nouitate , to forbid that similes non permittant nouitates , & processum causae Regio ipsi senatui originaliter mittant . Which agrees with the verie words of the Ordinances f f Recopilacion de las leyes por mandado de Phil. 2. lib. 1. tit. 5. l. 6. , that speak of Nouedades in exaction of Tithes against custome . And one speciall vse is there , that the Kings giue their g g Partida 1. tit. 20. leg . 11. & 〈◊〉 Lopez . Personall Tithes to their own Chaplains attending on them .

VIII .

Neither hath the Canon Law wrought otherwise in Italie , but that there also particular Customes , as well of Non Decimando , as in the Modus , are frequent . Multis Italiae locis ( sayes Caietan h h Ad 2.2 . q. 87. art. 1. sic & Ioh. Maior ad 3. sent. 37. dist. 36 quast. ) contingit ex consuetudine , that nothing at all is paid . And so is the practice there , for the most i i Relation of the Religion vsed in the West parts , §. 39. part , at this day . the Parish Priests beeing sufficiently maintained by Manse and Glebe , and the reuenues that are in some places paid , as according to a Modus . And of the Italians and others , where like Customes were , Aquinas thus ; k k Vide si placet Henric. Bowhic ad· extr. de dec c. peruonit . Et Antoniu . summ . part. 4. tit. 11. cap. de Decimis . Haud laudabiliter ministri Ecclesiae Decimas Ecclesiae requirunt , vbi sine scandalo requiri non possint propter desuetudinem vel propter aliquam aliam causam . In Venice , sayes l l Ad c●n aliquibus tit . de Decimis . Panormitan , non in vita sed in morte soluuntur Decimae personales de omnibus mercantijs iocalibus & alijs mobilibus . And in the whole Seigniorie of Venice , as my Autor m m Francisc. Monabi●● in part . 1. Consil. 46. num. 51. edit. ● . Baptistae Caesaris . deliuers , no Parish Church hath through that name Decimas seu ius Decimandi , but only another Stipend or Quartesium ( as they call it ) de possessionibus seu terris consistentibus 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 n n Maria Anguis . sola edit . dict. part . 1 Consil. 49.50 . &c. 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 o o Constit. Sicul. lib. 1. tit. 7. 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 p p Gl. & Pano●mitan . alij item ad c. in aliquibus tit . de Decimis . 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 q q Thomas Michael in lib. de Iuris . Conclus . 49. 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 r r Zasius de s●nd . p. 4. & Vnlteius de Feud● , lib. 1. cap. 5. §. 13. 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 s s Hostiens . in summ . tit. de Dec. num. 13. 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 t t Ord●nancion in Vlaenderen Bouck . 2. Rubric . 12. 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 * * Summa part. 4. tit . ●1 . 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 a a In Euchirid . Artic. Decret. Regni . Hungar. à Sambuco edito . 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 b b I. Herbort in Stat. Polonia lit . D. & Iacob . Prilusius leg . Pola● . lib. 1. ●ap. 4. 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 c c Ragwald . Ingemundi de Iure Ecclesiastico , lib. 1. cap. 7. 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 d d Statut. Dauid 2 cap. ●2 . n. 3. 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 e e Vide Parl. 22. Iac. 6. act. 9. places are paid ) Parochially , yet also granted , altered , and disposed of by f f Vide Parl. 9. Iacob . 6. & 11. eiusd . cap. 29. positiue Law as in other Countries . in the late plantation of new Churches ordaind by the last Parliament g g Parl. 22. Iac. 6. act 3. 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 h h Parl. 12. Iacob . 6. cap. 1●9 . 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 of Tithes . therefore I wholly omit them . One example of an Appropriation in Scotland may be here not vntimely added , which falls about the yeer M.CC.XC . and shews a kind of arbitrarie disposition ( euen at that time ) of Parochiall Tithes of lands lying there , in a conueyance of a lay mans made to the Monasterie of Giseburn in Yorkeshire . The Grantor was that Robert de Bruis , afterward King , & one of the Ancestors of our Soueraign . The Originall thus speaks . i i Seruatur autographum in Thesauro Cottoniano Omnibus ad quos presens scriptum peruenerit Robertus filius Roberti de Brus Dominus Vallis Anandiae salutem in Domino sempiternam Nouerit vniuersitas vestra me concessisse & praesenti scripto confirmâsse Deo & Ecclesiae Sanctae Mariae de Giseburn & Canonicis ibidem Deo seruientibus & seruituris , Ecclesiam de Anand cum terris , Decimis , & possessionibus ad eam pertinentibus & Ecclesiam de Logmaban cum terris Decimis & possessionibus ad eam pertinentibus , & Ecclesiam de Kirkpatric cum Capella de Logan & omnibus suis pertinentijs & Ecclesiam de Rainpatric & Ecclesiam de Cumbartres & Ecclesiam de Gre●enhowe cum omnibus pertinentijs earum ; Tenendum & Habendum Deo & praefatis Canonicis & eorum successoribus liberè quietè & honorifice , Ita quod liceat eis perpetuis temporibus de Decimis praedictarum Villarum , libere disponere & ordinare pro voluntate sua , & cuicunque voluerint eas ad firmam dimittere dare vel vendere , & alio quocunque modo voluerint & vbicunque voluerint commodum suum facere sine Impedimento mei & haeredum meorum & hominum nostrorum , &c. The seale , in green wax , annext to it , hath impression of a Knight armd and mounted , as for present onset in the wars , & is circumscribed with Esto Ferox vt Leo.

How the Laws of Ireland stand for Tithes , is best seen in the Statuts of that Countrie of 28. Hen. 8. cap 17. of dissolutions , and 33. Hen. 8. cap. 12. of payment according to ancient custom and recouerie of Tithes , after the dissolution , giuen into lay hands , in like manner as in England . And here may be no vnfit place to remember that ancient Law ordained by k k Rot. Pat. 14. Hen. 3. membr. 4. Henrie the third , within the Archbishoprique of Dublin , whereby it was commanded that euery man non expectato mandato Regis vel assensu , de gurgitibu● & Piscarijs , Ecclesijs in quarum Parochijs sunt praedicti gurgites vel piscariae , Decimas soluant . quia R. non vult in periculum animae suae , huiusmodi Decimas detineant . We purposely omit particular mention of such of the reformed Churches , as in this last age haue brought their Ministerie to stipends , and alterd almost all the former practice of Ecclesiastique policie . For the practice of payment , and other disposition of Tithes , and for the Laws , and Opinions , touching the right of them , thus much . But whateuer this Kingdom of England might haue specially afforded , for Laws and practice of Tithing , shall by it selfe , in its own singular order , be next deliuered .

CAP. VIII . The Laws of England made in the Saxon mycel synodes or ƿitenagemotes , in Parliaments , and in the Councells here held either Nationall or Prouinciall , or by the Pope , for the due payment or discharge of Tithes in this Kingdom . Petitions or Bills in Parliament touching them , are inserted . all in their course of time .

MOst of the English Laws , Constitutions , and Bills in Parliament , that are reserud to this place and here collected , were originally writen in Saxon , Latin , or French . and the Saxon , for the most part , were anciently ( but it seems since the Norman conquest ) turnd into a barbarous latin that yet better shews their meaning then a purer . Such as are found in Latin only I haue faithfully deliuered according to the Copies that gaue them . Neither durst I suspect that any Reader fit for the matter should need an Interpreter . no otherwise haue I done in what is of the old French ; it can hardly be any thing but inexcusable sloth , that can trouble any Reader ( that is fit also for the matter ) in the vnderstanding it . But in regard the old Saxon is known at all to few , and that hardly any better interpretation of the Laws writen in that language can be then the old barbarous Latin , I haue ioined alwaies ( where it might be ) both the Saxon and the Translation . To haue left out the originall , had preuented some freedom of the Readers iudgement , and tied it to the translators . to haue added no translation , had been as a purpose to haue troubled euen the fittest Readers with a strange tongue ; which also to haue otherwise interpreted , had been but to enuie them the help of those Ancients ( that had better means to ▪ know the interpretation of those Laws ) and so make them looke only as through spectacles of mine new made . I was willing to giue all ( as the course of the collection would permit ) that herein might help to make a ground of free iudgement . yet also where I see cause of note I adde it , but refer all to able censure . The Laws and Constitutions thus succeed .

An ancient r r Ms. in Biblioth. Cottoniana . collection of diuers Canons writen about the time of Henrie the first , with this inscription of equall age ; Incipiunt excerptiones Domini E●gberri Archiepiscopi Eburace Ciuitatis , de iure Sacerdotali , hath these words , Vt vnusquisque Sacerdos cunctos sibi pertinentes erudiat vt sciant qualitèr Decimas totius facultatis Ecclesijs diuinis debitè offerant . and immediatly follows , Vt ipsi Sacerdotes à populis suscipiant Decimas ; & nomina eorum , quicunque dederint , scripta habeant , & secundum autoritatem Canonicam coram testibus diuidant , & ad ornamentum Ecclesiae l l Vide supr. cap. 6. §. 3. primam eligant partem , scundam autem ad vsum pauperum atque peregrinorum per eorum manus misericorditèr cum omni humilitate dispensent ; tertiam verò sibimet ipsis Sacerdotes reseruent . If the credit of this be valued by the inscription , then is it about DCCC.L. yeers old . For , that Ecbert liud Archbishop of York from the yeer DCCXLIII . to DCC.LXVII . But the autorite of that Title must vndergo censure . Who euer made it , supposed , that Ecbert gathered that Law and the rest ioind with it out of some former Church Constitutions , neither doth the name excerptiones denote otherwise . But in that collection som whole Constitutions occur in the same syllbles as they are in the Capitularies of Charles the Great , as that of vnicuique Ecclesiae m m Ansegis . lib. 1. cap. 91. vnus mansque integer , &c. and some others which could not be known to Ecbert that died in the last yeer of Pipin father to Charles . how came be then by that ? and how may we beleeu that Ecbert was the autor of any part of those Excerptions ? vnlesse you excuse it with that vse of the midle times which often inserted into one body and vnder one name Laws of different ages . but admit that . yet what is secundum Canonicam autoritatem coram testibus diuidant ? The ancientest Canonica autoritas , for diuiding Tithes before witnesses , is an old Imperiall , attributed in some Editions o o Edit. Viti Amerba●hij . cap. 7. to the XI . yeere of the reigne of Charles the great , being King of France , in others p p Leg. Longobard . lib. 3. tit. 8. , to the Emperor Lothar the first . But referre it to either of them , and it will be diuers yeers later then Ecbert's death . And other mixt passages there plainly shew , that whose soeuer the Collection was , much of it was taken out of the Imperiall Capitularies , none of which were made in Ecbert's time . Perhaps , the greatnesse of his name was the cause why some later Compiler of those Excerptions might so inscribe it , to gain it autoritie . for he was both brother to Edbert King of Northumberland , and the first also that , after Paulinus , restored the name of Archbishoprique , and the Pall , to Yorke . And the heads of a Synod held in Ecbert's time , vnder King Ethelbald , and Cuthbert Archbishop of Canterburie , are yet extant ; but not any expresse mention is found in them of Tithes , although most of the particulars of Church-gouernment are toucht there .

II.

The Autors of the Centuries q q Conaur . 8. cap 9. pag. 583. edit. Basil. 1567. haue a Synod held in the yeer D. CC.LXXXVI . vnder two Legats sent from Pope Hadrian the first with letters , for reformation and establishing of Church Laws , to Offa King of Mercland , and Aelfwold King of Northumberland , and to the two Archbishops . the particulars of the Synod are related in an Epistle to the Pope from those Legats ( which were the first that had so come from Rome hither after Augustine ) wherein it is related , that Gregorie Bishop of Ostia , one of the Legats , went into Northumberland , and Theophilact Bishop of Todi , the other , to Offa , who with Kenulph King of West-Saxonie , called a Councell for the Southern patt , as Aelfwold for the Northern . Gregorie sayes , That in the Northern parts ad diem Concilij conuenerunt omnes Principes Regionis tam Ecclesiastici quam seculares ; and after many Institutions of Canon Laws there , the XVII . Chapter is , de Decimis dandis sicut in Lege scriptum est : Decimam partem ex omnibus frugibus tuis seu primitijs deferas in Domum Domini Dei tui Rursum per Prophetam : Adferte , inquit , omnem Decimam in horreum meum vt sit cibus in domo mea , & probate me super hoc , si non aperuero vobis cataractas coeli & effudero benedictionem vsque ad abundantiam , & increpabo pro vobis deuorantem qui comedit & corrumpit fructum terrae vestrae , & non erit vltra vinea sterilis in agro dicit Dominus . sicut sapiens ait : Nemo iustam Eleemosynam de his quae possidet facere valet , nisi prius separauerit Domino quod à primordio ipse sibi reddere delegauit . Ac per hoc plerumque contigit vt qui Decimam non tribuit ad Decimam reuertitur . Vnde etiam cum obtestatione praecipimus , vt omnes studeant de omnibus quae possident Decimas dare ; quia speciale Domini Dei est ; & de nouem partibus sibi viuat & Eleemosynas tribuat . Et magis eas in abscondito facere suasimus quia scriptum est ; cum facis Eleemosynam , noli tuba canere ante te . The autoritie of this Canon , may be known out of what is there further added . Haec Decreta , beatissime Papa Hadriane , in Concilio publico coram Rege Aeelfwaldo & Archiepiscopo Eanbaldo & omnibus Episcopis & Abbatibus Regionis seu Senatoribus Ducibus & populo terrae proposuimus ; & illi vt superiùs fati sumus cum omni deuotione mentis iuxta possibilitatem virium suarm , adiuuante supernâ clementia , se in omnibus custodire denouerunt , & signo Sanctae Crucis in vice vestra , in manu nostra confirmauerunt , & posteà stylo diligenti in Charta huius paginae exarauerunt signum Sanctae Crucis infigentes . Then follow some subscriptions of Bishops , Et His quoque saluberrimis admonitionibus , Presbyteri , Diaconi Ecclesiarum , & Abbates Monasteriorum , Iudices , Optimates , & Nobiles vno opere , vno ore consensimus & subscripsimus . After this so concluded in the Northern state , the same Legat , together with Maluin and Pyttell , Embassadors from Aelfwold , take with them all those Decrees and Canons , and goe to the Councell held vnder Offa for the Western parts , Vbi ( as the words are ) gloriosus Rex Offa cum Senatoribus terrae vna cum Archiepiscopo Iaenberchto ( some call him Lambert ) Sanctae Ecclesiae Dorouernensis ( that is , of Canterburie ) & caeteris Episcopis Regionum conuenerat , & in conspectu Concilij clarâ voce singula capita perlecta sunt , & tam Latinè quam Teutonicè ( that is , in English-Saxon , which then was the selfe-same with Dutch or Teutonique ) quo omnes intelligere possent , dilucidè reserata sint : qui omnes consona voce & alacri animo gratias referentes Apostolatus vestri admonitionibus ( the Legats so write to the Pope ) promiserunt se diuino adminiculante fauore iuxta qualitatem virium promitissimâ voluntate in omnibus haec statuta custodire . And Offa and his Bishops , Abbots , and some Princes subscribe with the Crosse to it . What Copie of this Synod the Centuriators had , or whence they tooke it , I find not . But if it be of good autoritie , it is a most obseruable Law to this purpose . being made with such solemnitie by both Powers of both States , of Mercland and Northumberland , which tooke vp a verie great part of England ; and it is likely , that it was made generall to all England . In the relation of the Legats to the Pope , mention is of Kenulph King of West-Saxonie , his ioyning with Offa in calling the Councell . but the confirmations of the Decrees haue no reference to him ▪ But , by the way , if you examine it by storie and Synchronisme , Kenulph perhaps could not haue at all to do with it . For some of our old Monks expressely affirme , That in the second yeer r r Henric. Huntingdon , lib. 4. pag. 197. & Reg. de Houed . p. 235. edit. Lo●din . sed vide etiam Rog. de Hou●den , sub ann. 786. & Acthelwerd lib. 2. cap. 20. & Flor. Wigorn ▪ sub ann. 785. of Brithric , next successor after Kenulphs death , Pope Adrian sent his Legats in Britanniam ad renouandam fidem quam praedicauerat Augustinus . And that they then held their Synod at a place called Cealchithe . how could Kenulph be there then , as the Legats relate ? Beleeue the Monks as you will . but indeed , an exactnesse here is not easie extracted out of the disturbed times of our Chronicles . They talk also of a Synod held in Wicanhale for the North parts , a yeere or two after . Doubtlesse they intend this same that is extant in the Centuries ; if at least it be of sufficient credit . Neither can it be suspected by any circumstance in the subscriptions ; which being so many , might haue by chance soon got among them a character of falsehood , had it not been genuine . In the printed Houeden , Gregorie , one of the Legats , is called Georgeus , perhaps for Gregorius . but my Ms. hath also Georgius . But if Henry of Huntingdon and Roger of Houeden giue vs the time right of the Legats comming hither , then is that mention of Kenulph , in their supposed Epistle to the Pope , a plaine character of falsehood , or ignorance , in some 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 s s Vide Fad . Edouard . & Guth●uni edit Lambard . cap. 6. 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 hƿa Teoþunge forheold , gylde lashlite mid Denum , ƿite 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 , t t Vide Regist. Burton . apud Camden . in Belg. pag. 186. edit. Lat. 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 ƿitan eac ðe syþþan ƿaeron , oft & Unseldan ꝧ sealf ge●●ƿodon & 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 u u ● . hydam , s●u s●●●liam . 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 x x Ms. in Biblioth. Cottoniana . 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 y y Ms. ad calcem Nich. Glocest. in Bibl. Cotton . 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 z z In Bibl. Cotton . & apud V. C. Tho. Alien . Oxon. 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 , & a a Ms. in Biblioth. Cottoniana . 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 b b Msss. in Bibl. Cottoniana . 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 c c Vide , si placet , Tit. Honor. part. 2. pag. 301. 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 d d Sic intell●git , ni fallor , Foxus Hist. Eccles. Angl. pag. 123. 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 e e Camden . In Belgis , ●ol . 173. 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 f f Idem , pag. 308. in Irinobantibus . the Confessor his building Westminster Abbey with the tenth of one yeers reuenue , or g g Polydor. Virgil. Hist. Angl. lib. 4. 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 h h Mss. in Bibl. Cotton . 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 m●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 incommutabilisque 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 .

In a Volume Ms. in Biblioth. Cottoniana cap. 65. & variis causit . 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 k k Quod elitera fa. e●t ex Leonis Epist. in Dist. 20. cap. 1. 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 l l Eccles. Hist. lib. 5. cap. 1● . 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 m m Protuli eundem librum Canonem , ait Theodorus Cant. Arch. in Concil. circa ann. 670. apud Hertford celebrato . Bed . Hist. Eccles. lib. 4. cap. 5. 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 n n Sup. §. 1. related out of the Excerptions of Ecbert . but whence that Canon is originally , I haue not yet learned .

VI.

King Athelstan o o Leg. Aethelst . edit . à Lambardo . 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 ƿulfhelmes mines hihbisceipes . & oþra minra bisceopa bebeode eallum minum gereafum ðuph ealle mine rice ( on þaes drihtaenes nama . & ealra halgena , & for mine lufu ) ꝧ hi aerost mines agenes ðam teoþe gesyllaþ . ge ðaes libbendes ryfes . ge ðaes gearlice ƿestmes ; p p In Ms Cottoniano inseruntur illic haec verba : sƿa man rightast maege . oððe gemetan , oððe gestellan , oððe ƿaegan . i. in the iustest way that may be ; either by measure , number or weight . & ꝧ ilce gedo eac ða bisceopas heora geƿhilcra . & eac mine ealdormanna . & gereafa ; & ic ƿille ꝧ mine bisceopes & gereafa ðaes demaþ eallum ðe hio gehyrsumian gebyraþ . & ꝧ ilce to þam tide fulfremaþ ðe ƿe hio settaþ . & þaes sie to ðaem daeg ðaer beheafdunges Seint Iohannes þaes fulhteres ; which is anciently thus turnd q q In Historia Iornallensi Ms. in Bibl. Cotton . 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 r r Vet. Leg. ibid. Ms. 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 s s Ina Leg. cap. 37.40 . & 42. ceap also for chattels , and somtimes specially for liuing cattell , but the old t t In dicta historia Iornallens . Ms. 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 * * Cap. 38. Laws was to be giuen to Orphans , was called frumstole in Saxon , but primum captale in the old translations . In Brampton's u u Dict. Hist. Iornall●nsi . 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 ƿorldcundra ) held in Londan , made this x x Leg. Edmund . apud Lambard . cap. 2. Act. Teoþungum ƿe bebeodaþ aelcum Cristenum men be his Cristendome . & cyricsceat , & aelmesfeoh ; Gif hit hƿa don nylle . ry he amansumod . Which is anciently y y In Dict Hist. Iornallinsi . 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 z z Videsis Ina leg . cap. 4. & 62. & apud Malmesbur . lib 2. c 11. Cnutonis R. Epist. ad Anglos . & Lambard . in explic . verb. in Primitiae . & Canuti leg . c. 10. & Edgari leg . cap. 2. & 3. ; 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 a a Annal. Monast. Burtonens . Ms. apud V.C. Thom. Allen. Oxoniens . 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 b b ●leta Ms. lib. 2. cap. 47. certam mensuram bladi tritici significat quam quilibet olim sanctae Ecclesiae die sanctae Martini tempore tam Britonum quam Angloram c c Supple seluebant . : 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 d d ● . quo . 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 e e Apud G. Mal. mesbur . lib. 2. c. 11. extant , which Knout sent into England ( by Liuing Abbot of Tauis●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 , f f Ms. compact . In Vol. quod Codex Eccles. Landau . diettur in Bibl. Cotton . made by Odo Archbishop of Canterburie ( yet not , for aught appears by them , in a Synod ) with this Preface , Ego Oda humilis & extremus diuina largiente clementia , almi Praesulis & Pallij honore ditatus , quaedam documenta omni Christicolâ non indigna , quae à praecedentibus illustrium virorum Praeceptis certissima comperi , ad consolationem Domini mei Regis scilicet Aetmundi omnisque populi excellenti Imperio eius subiecti , in ista cartula , coadunare decreui . Vnde deuotissimè obsecro & clementissime hortor audientum mentes vt si quando haec recitanda audiant interiùs videlicet & in corde , frequenti meditatione plantent , & multiplici bonae operationis munere ex eo fructum pacatissimum in tempore messis sibi colligant . Primo capitulo praecipimus & mandamus vt Sancta Dei Ecclesia &c. And so goes on with some particulars which belong to Church-discipline ; the X. and last Chapter being only for Tithes in these words . X. Capitulo mandamus & fidelitèr obsecramus de Decimis dandis sicut in Lege scriptum est . Decimam partem ex omnibus frugibus tuis seu primitijs deferas in domum Dominij Dei tui . Rursum Propheta , Afferte , g g Malach. 3. inquit , omnem Decimam in horreum meum , vt sit cibus in domo mea & probate me super hoc si non aperuero vobis cataractas coeli & effudero benedictionem vsque ad abundantiam & increpabo pro vobis qui comedit & corrumpit fructum terrae vesirae . & non erit vltra vinea sterilis . Vnde & cum obtestatione praecipimus vt omnes studeant de omnibus quae possident dare Decimas ; quia speciale Domini Dei est ; & de nouem partibus sibi viuant & Eleemosynas tribuant . Where note , the syllables are of that which in the Centuries is referd to an English Councell of D. CC.LXXXVI . before in § . II. For this of Odo , although no expresse Occurrence denote , that it was in a Councell , yet you may much incline to beleeue it was in one , if you compare it with h h De gest . Pontis . lib. 1. fol. 114. a. what you find in the Monk of Malmesburie of him .

IX .

King Edgar about the yeer D. CCCC.LXX mid his ƿitena geþeahte , that is , with the aduise and counsell of his Wisemen , or Baronage , ordained , That the Church should enioy all her Liberties ,

& i i Leg. Edgari cap. 1.2 & 3. apud Lamb. man agyfe ylce aelc teoþunge to þaem ealdan mynstre ðe seo hyrnesse to hyrþe ; & si þonne sƿa geleast . aegþer of ðaegnes inland . ge of neatland . sƿa his sulh gega ;

2. Gif hƿa ðonne degna sy. ðe on his boclande eyrican haebbe ðe legerstoƿe on sy. gesylle he ðonne ðritdan dael his agenre teoþunge into his cyrican ;

3. Gif hƿa cyrican haebbe ðe laeerstoƿe on ne sy. ðonne doth of ðaem nygan daelum his ƿreost ꝧ ꝧ he ƿille ;

4. And sy aelcre geoguþe teoþunge gelaest be Pentecosten ; & þaera eorþ ƿaestma be Em●ihte ;

5. Gif hƿa ðonne þa teoþunge geleastan nelle sƿa ƿe ge-cƿaeden habbaþ . fare ðaes Cyningesgerefa to . & þaes Bisceopes . & þaes mynstres maessepreost . & niman unþances ðone teoþen dael to ðaem minstre ð hit to gebyrrige . & taecan him to þaem nigoþon dael ; & to daele mon þa eahta daelas on tþa. & fo se k k Land hlaford in Ms. hlaford to healfan . to healfan se bisceop . sy hit cyninges man . sy hit ðegenes ;

that is , in the old l l Apud Brampton in Hist. Iornall . fol. 54. in Biblioth. Cottoniana . Latine Copies :

1. Et Reddatur omnis Decimatio ad Matrem Ecclesiam cui Parochia adiacet , de terra m m i. Baronum seu liber● tenentium . Thainorum & Villanorum , sicut n n Vide infra §. IX . & X. aratrum peragrabit .

2. Si quis Thainorum sit qui in feodo suo Ecclesiam habeat vbi caemiterium sit , det ei tertiam partem Decimae suae .

3. Si non sit tibi atrium ( but the Saxon hath here the same word as before for caemiterium , that is , laegerstoƿe ) det , ex suis nouem partibus , Presbytero , quod vult .

4. Et omnis Decimatio Iuuentutis reddita sit ad Pentecosten ; & Terraefrugum , ad Aequinoctium .

5. Si quis Decimam dare sicut diximus noluerit , adeat Praepositus Regis & Episcopi & Sacerdos illius Ecclesiae , & reddant Ecclesiae cui pertinebit Decimam suam ; & Nonam partem dimittant ei qui Decimam suam detinuit , & octo partes in duo diuidantur dimidium Domino , dimidium Episcopo ; Sit homo Regis , sit homo Thaini .

This Latine agrees well enough with the Saxon ; although in this last § . si quis , for Episcopi o o Vide §. XII . & XVII . Sacerdos , Lambard hath & Episcopus & Sacerdos illius Ecclesiae &c. But whereas the Translator vses the word Ecclesia only for Church ; in the Saxon , that which he calls Matrem Ecclesiam , is denoted by ealdan mynstre , and that Ecclesia , in §. 2. si quis Thainorum , by Cyrican ; whence , our word Kirk , or Church , is framed . For the difference of Church and Minister here , somewhat where anon wee speak of Parishes of that time .

A Councell or a kind of Parlament held vnder King Ethelred , by the aduise of his two Archbishops , Elfpheg and Wulfstan , ( about the yeer M.X. ) is yet extant , wherein Laws are for Tithes . But because it remaines only a Manuscript of about the time of the Norman Conquest , the Preface of it shall be here first noted , that thence the autoritie of it may be the better vnderstood . It is inscribed with p p Ms. in Biblioth. Cottoniana . in 〈◊〉 quo Ordo Corona●●● is qui 〈◊〉 Saxonico in vsu erat ▪ narratur . Incipiunt Synodalia Decreta . then begins with ; Quodam tempore contigit vt Regis Aethelredi edicto concrepante , Archipraesulumque Alfeagi & Wulfstani hortatu instigante , vniuersi Anglorum Optimates die Sancto Pentecostes ad locum ab indigenis Eanham nominatum acciti sunt conuenire . Collecto itaque ibidem Christicolarum coetu venerabilium quamplurimorum de Catholicae cultu Religionis recuperando , deque etiam rei statu publicae reparando vel consulendo plura & non pauca vtpote diuinitus inspirati ratiocinando sermocinabantur . Then follows some Constitutions about Monks , Abbots , Canons , and other of the Clergie . After which , the Councell goes on with , Post haec igitur Archipontifices praedicti Conuocatâ plebis multitudine collectae , Regis Edicto suprascriptae omniumque consensu Catholicorum omnibus communitèr praedicabant vnum Deum colendum esse debere , Patrem videlicet &c. And diuers Canons succeed ; and among them occurres , Nec Ecclesiae antiquitùs constitutae Decimis vel alijs possessionibus priuentur ita vt nouis Oratorijs tribuantur ; which very words are found in an elder Councell of Mentz , and in the Imperiall Capitularies . Then immediatly follows , Decimationes Frugum & Vitulorum & Agnorum , necnon & Aratrales Eleemosynae , Ecclesiasticaque munera Domino per singulos annos temporibus rependantur congruis . Eleemosynae videlicet Aratrales quindecim diebus post Pascha peractis ; Vituli quoque & Agniculi Decimales erga Pentecosten , Frugum verò terrae Decimationes circa omnium festiuitatem Sanctorum Ecclesijs persoluantur opportunis . To it , is ioind the most part of it q q Exemplar item Saxonicum reperitur in Codice vetust●ts Legum Sax. in ●aep●us laudata Bibliotheca . in Saxon. but that Preface is wholly therein wanting . neither doth any thing in the Saxon answer to that , Nec Ecclesiae antiquitus constitutae &c. But those Tithes are there reckond among godes gerightas , that is , things due vnto God . and the Saxon text for them is ; geogoþe teoþunge be Pentecosten . & eorð ƿaestma be ealra halgenamaessan , that is , the Tithe of yong cattell is to be paid at Whitsontide , and of fruits of the earth at Alhollows . and according to this , in an old Saxon r r Ms. inter Leg. Saxonicum Bibl. Cottoniana . collection of Christian dutie , AElc man , ( saies the Autor ) teoðunga gelaeste mid rihte , that is , Let euery man pay his Tithes iustly . Those Aratrales Eleemosynae were called sulh aelmessan , that is , Plough-almes ; which was a peny to be paid of euery plough-land . and the Ecclesiastica munera were only the first fruits of Corne paid at S. Martins day ; whereof before § . VIII .

XI .

In some Laws of K. Ethelred remaining in Abbot Brampton his Historie , we read . s s Histor. Iornallens . ibid. fol. 65. Omnis Thainus Decimet quicquid habet . and Praecipimus vt omnis homo super dilectionem Dei & omnium Sanctorum det Cyricsceatum & rectam Decimam suam sicut in diebus antecessorum nostrorum fecit quando melius fecit , hoc est , sicut aratrum peragrabit , decimam acram , & omnis consuetudo reddatur super amicitiam Dei ad matrem nostram Ecclesiam cui adiacet , & nemo auferat Deo quod ad Deum pertinet , & praedecessores nostri concesserunt . The inscription of those Laws mongst which these are found , is , Haec instituerunt Ethelredus & Sapientes eius apud Habam . By this , and that of Edgar before cited , it appears that the Tithe of euery tenth acre according to the order of tithing the whole Farme , was to be paid to the Church . which also is made more plain in the next Law of King Knout .

XII .

Gelaeste man ( are the ƿords of t t Leg. Canuti , cap. 8. one of K. Knouts Laƿs made about M.XX. ) godes gerihta aeghƿilc geare rightlice georne ; þaet is sulhaelmesse fiftene niht ofer Eastran . & gegoþe teoþunge be Pentecosten . & eorþ ƿaestma be ealra halgena maessan ; & gif hƿa þonne þa teoþunge gelaestan naelle . sƿa ƿe gecƿedan habbaþ . ꝧ is se teoþa aecer . eal sƿa se sulh hit gegaþ . þonne fare to ƿaes Cyninges gerefa . & þas biscopas , & þaes land rican , & þaes minstres maessespreost . & niman unþances þonne teoþan dael to þam minstre he hit to gebyrige . & teacum him to þam nigoþum dael ; & to daele man þa eahta daelas on tƿa . & fo se landhlaford to healfum , & to healfum se bisceop ; sy hit Cyninges man . sy hit ðegener ; this is u u In historia Iornallensi fol. 71. b. M● Bibl Cotton . sed optimum harum legum exexemplar . extat in Bibliotheca . Sereniss . Principis Magnae Brit. ad D. Iacobi . anciently thus turned ; Reddantur Deo Debitae rectitudines annis singulis , hoc est Eleëmosyna carucarum , XV. diebus post Pascha , Decimae de nouellis gregibus in Pentecosten , terfenorum fructuum in festo omnium Sanctorum . Si quis hanc Decimam dare nolit sicut omnium nostrum commune est institutum , hoc est Decimam acram sicut aratrum peragrabit , eat praepositus Regis & Episcopi & Domini ipsius tetrae cum Sacerdote & ingratis auferant & Ecclesiae cui pertinebit reddant . Nonam verò partem relinquant ei qui Decimam dare noluit . Octauas partes reliquas in duo diuidant & sit vna medietas Episcopi , alia terrae Domini , siue sit homo Regis siue Thaini . with this Latin , the Saxon agrees . and it is almost but a repetition of King Edgars Law for Tithes . and those two Paragraphs in King Edgars , the one touching a conueyance of a third part of the tithes to a Church that had right of Sepulture , the other concerning a Church that wanted that right , are also repeated ( as many other Laws of the former ages ) in those of King Knouts ; which are called Lege y y In Biblioth. d. S●renissimi Principis . Anglicae generally in the ancientest Latin Copies that I haue seen .

XIII .

The Copie of the Laws of Edward the Confessor , that bears this title ; Leges boni Regis Edwardi quas Guilielmus Bastardus postea confirmauit , hath this z z Leg. Edward . Con●●ss . cap 8. & in Reg. de Honed●n . Annal. 2 pa. 343. b for Tithes : De omni annona , Decima garba Deo debita est & ideò reddenda . Et si quis gregem equarum habuerit , pullum reddat Decimum . Qui vnam vel duas habuerit , de singulis pullis singulos denarios . Similiter qui vaccas plures , habuerit , Decimum vitulum . Qui vnam vel duas , de vitulis singulis obolos singulos . Et qui caseum fecerit , det Deo Decimum . si verò non fecerit lac decima die . similiter agnum Decimum , vellus Decimum , caseum Decimum , butyrum Decimum , porcellum Decimum . De Apibus verò similitèr Decima commodi . Quin & de bosco , de prato & aquis & molendinis , parcis , viuarijs , piscarijs , virgultis & hortis , & negotiationibus & omnibus rebus quas dederit Dominus . Decima pars ei reddenda est , qui nouem partes simul cum Decima largitur . Qui eam detinuerit per Iustitiam Episcopi & Regis ( si necesse fuerit ) ad redditionem * * Forte adigatur . arguatur . Haec enim praedicauit B. Augustinus , & concessa sunt à Rege Baronibus & populo . But howeuer those Laws are attributed to the Confessor ; it is certain that as the Ordinarie Copies of them are , and as they speak in the published Volume of Saxon Laws , they are not without many mixtures of somewhat later transcribers .

XIV .

In a Synod , a a Recens Ms. apud V. C. Rob. Cotton . writen in Saxon , & held about the Conquest , diuers Laws preceding , about the punishment of crimes by fasting VI. VII.X . yeers together with bread and water , a perswasion follows for Almes &c. in it we read teoþge on godes godes est eal ꝧ he age . that is , Let Tithe be paid of all that is possest though the Lords bountie .

XV.

Out of a Ms. of Excester I haue seen b b In Excerptis M● . apud eundem . transcribed a Canon of a Councell held at Windsore , some yeers after the Norman Conquest ( I think vnder Lanfrank ) in these words : Vt Laici Decimas reddant sicut scriptum est .

XVI .

In a Conuocation at Westminster c c Apud G. Malmesb lib 2. de gest . Pontific . fol. 129. b. 〈◊〉 1102. held in 3. Hen. 1. vnder Anselm Archbishop of Canterburie , and Girard Archbishop of Yorke , for both Prouinces , it was ordaind Vt Decimae non nisi Ecclesijs dentur . It was not only a Synod of the Clergie ; but Royall autoritie with the assent of the Baronage ( at least of the greater Nobilitie ) was ioind with it . for thus speaks the Monk of Malmesburie relating it . Anno Dominicae Incarnationis 1102. quarto autem praesulatus Paschalis summi Pontificis , tertio regni Regis gloriosi Henrici Anglorum , ipso annuente , communi consensu Episcoporum & Abbatum & Principum totius regni , adunatum est Concilium in Ecclesia beati Petri in Occidentali parte iuxta Londoniam sita , in quo praesedit Anselmus &c. and then . Huic conuentui affuerunt , Anselmo Archiepiscopo petente à Rege , Primates regni , quatenus quicquid eiusdem Concilij autoritate decerneretur , vtriusque Ordinis concordi curâ & sollicitudine ratum seruaretur . Sic enim necesse erat ; quia multis retrò annis , synodali cultura cessante , vitiorum vepribus succrescentibus , Christianae religionis feruor in Anglia nimis refrixerat . and agreeing to this reason is a passage in the d d Apud Eund . lib. dict. fol. 117. b. & in Epist. Lanfranci Ms. in Bibl. Cottoniana . Synod of London , held vnder Lanfrank Archbishop of Canterbury in 9. Will . 1. Et quod ( are the words ) multis retro annis in Anglico regno vsus Conciliorum obsoluerat , renouata sunt &c. that Canon seems to haue been made against arbitrarie consecrations of Tithes then practiced , whereof anon largely .

XVII .

The Laws e e In lib. Rub. Scaccari● Ms. cap. 12. of Henrie the first haue one title , De placitis Ecclesiae pertinentibus ad Regem , and vnder that , are these words : Si quis rectam Decimam superteneat , vadat praepositus Regis & Episcopi & terrae Domini cum Presbytero & ingratis auferant & Ecclesiae cui pertinebit reddant , & nonam partem relinquant ei qui Decimam partem dare noluit . according to those of King Edgar and King Knout f f §. IX . & XII . before related .

XVIII .

Alberique Bishop of Ostia , Legat in England to Pope Innocent the second , in 3. of King Stephen , held a Synod at London ; and in that ( as I haue seen it g g In Excerpti● Ms. in Biblioth. Cotton . transcribed out of a book of Worcester ) this Canon is , De omnibus Primitijs rectas Decimas dari Apostolica autoritaee praecipimus , quas qui reddere noluerit anathematis in eum sententia proferatur . Primitiae must , it seems , be here vnderstood for euery new yeers encrease .

XIX .

Vnder Henrie the second a Pontificiall Decree was sent to all the Bishops of the Prouince of Canterburie ( about the yeer M.C.LXX. ) by Pope Alexander the third commanding h h Extr. tit . de Dec. c. 5. peruenit & in App. ad Con●il . Lat. tit . de Decim . them that they should admonish all men in their seuerall Dioceses , & si opus fuerit , as the words are , Sub excommunicationis districtione compellere , vt de prouentibus Molendinorum , Piscariarum , Faeno , & Lana , Decimas Ecclesijs , quibus debentur , cum integritate persoluant . the direction of it was , Cantuariensi Archiepiscopo & eius suffraganeis . To this you may adde that other i i Extr. d. tit . c. 6. Nunci●s . of the same Popes to the Bishop of Winchester : Mandamus , quatenùs Paraecianos tuos de Apibus , & de omni fructu Decimas persoluere Ecclesiasticâ districtione compellas . Both these were afterward made part of Gregories Decretalls , and are of force to this day in the Canon Law of the Church of Rome .

XX.

In 21. of the same King Henrie the second , Richard Archbishop of Canterburie held a Prouinciall Synod at Westminster , in which were neer all the Bishops and Abbots of his Prouince , as also the two Kings , the father and the sonne . there , diuers Constitutions out of old Councells and Popes Decrees were published to be obserued in his Prouince . among them , one is out of a Synod at Rosne , in k k Apud R●gerum de Houeden in Annal. part . 2. fol. 311. ● . these words : Omnes Decimae Terrae siue de frugibus siue de fructibus , Domini sunt & illi sanctificantur . sed quia multi modò inueniuntur Decimas dare nolentes ; statuimus , vt iuxta Domini Papae praecepta admoneantur semel , secundò , & tertiò , vt de grano , de vino , de fructibus Arborum , de foetibus animalium , de lana , de agnis , de butyro & caseo , de lino & canabe & de reliquis quae annuatim renouantur , Decimas in egrè persoluant . quòd si commoniti non emendauerint , anathemati se nouerint subiacere .

XXI .

Hubert Archbishop of Canterburie by his power Legatin , receiud from Pope Caelestin the third , in 6. Rich. 1. held a Prouinciall Councell for the Prouince of Yorke ; and therein l l Apud eundem part. 2. fol. 430. one of the Canons thus speaks for Tithes . Cum Decimae sint tributa egentium animarum & ex praecepto Domini dari debeant , non est reddentis eas diminuere . Statuimus itaque vt de his quae renouantur per annum , cum omni integritate Decimae debitae & consuetae conferantur ; ita vt inprimis Decimae absque vlla diminutione Ecclesiae dentur , postmodùm de nouem partibus mercedes messorum & aliorum seruientium pro arbitrio soluentis tribuantur .

XXII .

The same Archbishop Hubert in 2. of K. Iohn , m m Apud eundem part. 2. fol. 457 b. & 460. c. Generale celebrauit concilium Lundonijs apud Westmonasterium contra prohibitionem Galfridi filij Petri Comitis de Essexe tunc temporis summi Iustitiarij Angliae . for it appears that in those elder times there n n Consulas litt. de 10 Ed. 2. in vol in quo Turgotus Dune mensi● reperitur in Bibliothec . V.C. Tho. Allen. Oxon. & 41 Hen 3 in Annal Burton apud in eundem . was great controuersie between the King , in whose right the Chief Iustice of England here sent out his prohibition , and the Archbishop touching this point ; whether the Archbishop , either as Archbishop or as Legat , might hold a Prouinciall or Nationall Councell without autoritie from the Crown ; but that is now declared cleer o o Stat. 25. Hen. 8. cap. 19. and so practiced that he may not . In that Councell , notwithstanding the prohibition , he ordaind thus for tithes . Cum Deo & Sacerdotibus Dei Decimas dandas , Abraham factis , & Iacob promissis innuent , & autoritas veteris & noui Testamenti necnon & sanctorum Patrum statuta declarent Decimas de omnibus , quae per annum renouantur praestandas ; id inuiolabilitèr decernimus obseruandum , ita quod occasione mercedis seruientum vel messorum decima pars non minuatur , sed potius integre persoluatur . Habeant etiam Presbyteri potestatem ante autumnum excommunicandi omnes fraudatores decimarum suarum , & eosdem secundum formam Ecclesiasticam absoluendi . Huic adijcimus sanctioni , vt de terris nouitèr cultis , non aliàs dentur decimae quam Ecclesijs Parochialibus infra quarum limites terrae illae de quibus Decimis perueniunt excoluntur . Detentores verò Decimarum , iuxta Rothomagensis Concilij constitutum , si semel secundò & tertiò commoniti , excessum suum non emendauerint vsque ad satisfactionem condignam anathematis vinculo feriantur . saluo in omnibus S.S.R.E. honore & priuilegio . which Saluo is to euery of his Canons .

XXIII .

Among the Decretall Epistles of Pope Innocent the third , one p p Innoc. 3. in Epist. Decre● . lib 2. pag. 452 edit. Coloniens . is directed Cantuariensi Archiepiscopo , vt Ecclesijs Parochialibus iustè Decimae persoluantur ; and thus speaks . Peruenit ad audientiam nostram quod multi in Docesi tua Decimas suas integras , vel duas partes ipsarum non illis Ecclesijs in quarum Parochijs habitant , vel vbi praedia habent , & à quibus Ecclesiastica percipiunt Sacramenta persoluunt : sed eas alijs pro sua distribuunt voluntate . Cum igitur inconueniens esse videatur & à ratione dissimile , vt Ecclesiae quae spiritualia seminant , metere non debeant à suis Parochianis temporalia , & habere ; fraternitati tuae autoritate praesentium indulgemus vt liceat tibi super hoc non obstante contradictione vel appellatione cuiuslibet , seu consuetudine hactenus obseruata , quod Canonicum fuerit ordinare , & facere quod statueris per Censuram Ecclesiasticam firmiter obseruari . Nulli ergo &c. confirmationis &c. Datum Lateran . II. nonas Iulij .

XXIV .

In a collection of diuers Constitutions for the English Church , out of Councells and others , titled only q q In vol. in quo Annal. Burton . apud V.C. Tho. Allen. Oxon. Constitutiones cuiusdam Episcopi , and writen about Hen. the thirds time , one of Tithes occurs . Decimas de omnibus quae renouantur per annum & maximè consuetas , dandas decernimus & potissime de molendinis & piscarijs & faenis & apibus & de terris arabilibus & ad prata posteà vel ad pasturam redactis , ita vt occasione mercedis seruientum vel messorum decima parte non frustrentur quo minus eam plene percipiant . Detentores vero earundem Decimarum si semel , secundo , & tertio commoniti excessum suum non emendauerint ; concedimus quod per capellanos locorum vsque ad satisfactionem congruam excommunicationis vinculo feriantur . Cum autem hi qui decimas detinuerint vel subtraxerint ad poenitentiam accesserint , non admittantur nisi per se vel per manum sacerdotis ei , cui decimae debentur , satisfaciant competenter .

XXV .

A Constitution for due paiment of Tithes r r Consti● . Eb●ra● . Ms. was made about 30 ▪ Hen. 3. by Walter Gray Archbishop of York . I haue only a note of it which I took out of the Ms. but the words I could not now transcribe for want of the Copie . the Copie it self I once saw in the Librarie of Mr. Henrie Sauill who is now with God .

XXVI .

The chiefest of the English Canon Laws , made for Tithes ( both prediall and personall ) is that commonly attributed to a Councel of Robert Winchelsey Archbishop of Canterburie , held in 23. Ed. 1. at London ; some Copies s s Vide Lindw . in Prouin● Const tit . de De● . c. quoniam propter in praefationem . referring it to Archbishop Boniface and the time about 30. Hen. 3. or to an old Synod of Merton . But in the Synod of Merton held 42. Hen. 3. no part of it is extant . That I examined in the t t Ms. apud V.C. Th. Allen ▪ Oxon. Annalls of the Abbey of Burton where the Canons of that Synod are at large collected . yet in the Pupilla z z Part. 9. cap. 5. oculi , writen by Iohn de Burgo Chancelor of Cambridge in M.CCC.LXXXV . it is called Constitutio facta apud Merton per omnes Episcopos Angliae . These are the words of it , as it remains in the body of the Prouincial Constitutions . Quoniam propter diuersas consuetudines in petendo Decimas per diuersas Ecclesias inter rectores Ecclesiarum & Parochianos suos , rixae , contentiones , scandala & odia maxima multotiès oriuntur . Volumus & statuimus quòd in cunctis Ecclesijs per Cantuariens . Prouinciam constitutis , vniformis sit petitio Decimarum & proventuum Ecclesiarum . Imprimis volumus quod decimae de frugibus , non deductis expensis , integrè & sine aliqua diminutione soluantur : & de fructibus arborum : & de seminibus omnibus , & de herbis ortorum nisi Parochiani competentem fecerint redemptionem pro talibus decimis . Volumus & statuimus etiam quod decimae de foenis vbicunque crescant , siue in magnis pratis siue in paruis siue in cheminis exigantur , & prout expedit Ecclesiae persoluantur . De nutrimentis autem animalium scilicet de agnis ; Statuimus quod pro sex agnis & · infra , sex oboli dentur pro decima . Si septem sint agni in numero , septimus agnus detur pro decima rectori , ita tamen quod rector Ecclesiae qui septimum agnum recipit , tres obolos in recompensationem soluat parrochiano à quo decimam illam recepit . Qui octauum recipit , det denarium . Qui verò nonum , det obolum parochiano vel expectet rector vsque ad alium annum donec plenariè Decimum agnum possit recipere si maluerit : & quum ita exspectat semper exigat secundum agnum meliorem vel tertium ad minus de agnis secundi anni : & hoc pro expectatione primi anni . Et ita intelligendum est de Decima lanae . Sed si oues alibi in hyeme & alibi in aestate nutriantur diuidenda est decima . Similiter siquis medio tempore emerit vel vendiderit oues , & certum sit à qua parrochia illa oues venerint : carundem diuidenda est decima sicut de re quae sequitur duo domicilia . Si autem incertum fuerit , habeat illa Ecclesia totam decimam infra cuius limites tempore tonsionis inueniuntur . De Lacte verò volumus quod decima soluatur dum durat ; videlicet de casco tempore suo . Et de lacte in autumno & hyeme nisi parochiani velint pro talibus facere competentem redemptionem , & hoc ad valorem decimae & commodum Ecclesiae . De prouentibus autem molendinorum volumus quod decimae fideliter & integrè soluantur . De pasturis autem & pascuis tam non communibus quam communibus statuimus quod decimae fideliter persoluantur : & hoc per numerum animalium & dierum vt expedit Ecclesiae . De piscationibus & apibus sicut de omnibus alijs bonis iuste acquisitis quae renouantur per annum , statuimus quòd decimae soluantur & exigantur debito modo . Statuimus etiam quod decimae personales soluantur de artificibus & mercatoribus scilicet de lucro negociationis ▪ Similiter de carpentarijs , fabris , cementarijs textoribus , pandox atricibus , & omnibus alijs operarijs stipendarijs , vt videlicet dem Decimas de stipendijs suis nisi stipendarij ipsi aliquid certum velint dare ad opus vel ad lumen Ecclesiae si rectori ipsius Ecclesiae placuerit . then a word or two of Mortuaries ; after which , Sed quoniam inveniuntur multi Decimas sponte dare nolentes ; Statuimus quod parochiani moneantur primo secundo & tertio vt decimas Deo & Ecclesiae fideliter soluant . Quod si non emendauerint primò ab ingressu Ecclesiae suspendantur , & sic demùm ad solutionem decimarum per censuram Ecclesiasticam si necesse fuerit compellantur . Si autem dictae suspensionis relaxationem vel absolutionem petierint : ad ordinarium loci mittentur absoluendi : & debito modo puniendi . Rectores autem Ecclesiarum seu Vicarij aut Capellani annui qui predictas decimas predicto modo propter formidinem hominum seu fauorem , timore Dei postposito , vt predictum est , cum effectu non petierint : pena suspensionis innodentur donec dimidiam marcam argenti pro sua inobedientia Archidiacono loci persoluant . And then follow two other Constitutions , vnder Winchelsey's name , for some more peculiar order in payment . But that first referd to him , is in a Ms. y y In Biblioth . autoris . ( written of about the time of Henry the sixt ) of the English Episcopall Constitutions , seuerally thus titled , Constitutio Domini Stephani de Langtone Archiepiscopi edita de modo Decimandi . Stephen of Langton was Archbishop vnder King Iohn . But it is not extant in the Synod of his time .

XXVII .

In a Councell at London vnder Simon Mepham , Archbishop of Canterburie , held in 3. Ed. 3. a z z Extat . in Constit . Prouinc . lib. 3. Canon is against such as hindered Church-men from taken their Tithes , either by keeping them and their seruants from entring into the Land , or by exacting * * Conquer tur etiam de hac iniuria Io. de ●thona in Constit. Othoboni c. mandata Dei . vero . Iustitiam fauor expellit . Gloues , Stockings , or some such bribes , before they would permit them take that right , which God , as it is there inserted , in signum vniuersalis Dominij sibi reddi praecepit , & pro suo cultu Clericis assignauit . All such offendors are branded with Excommunication : and another Constitution of a Councell of Pauls , held in 17. Ed. 3. vnder Iohn Stretford Archbishop of Canterburie , is to the selfe-same purpose .

XXVIII .

For Tithe of Copis Wood , or Silua caedua , also in that of Stretford , was a * * Extat . in Bl. Canonin these words : Quanquam exsoluentibus benè Decimas Deus frugum omnium abundantiam & possessionum promiserit vbertatem : tamen dolentes referimus quod nonnulli nostrae Prouinciae contra testamenti veteris atque noui doctrinam de syluis suis caeduis & lignis arborum caeduarum excisis circa quae minus , quàm circa fructus agrorum , laboris impendunt , Decimas Deo & Ecclesijs quibus debentur notoriè , propter hoc quod ipsas in praeteritum non dederunt , soluere contradicunt . quòd estimant idcirco licere quod Legem moris de longa inualuisse consue●udine arbitrantur , in dubium etiam reuocantes quid silua caedua sit censenda . Nos igitur aduertentes quod si sua portione Ecclesia sit defraudata diutinè , crimen praeterea non minuitur sed augetur : ac fames & penuria omniumque rerum egestas opprimunt bene Decimas non soluente ; huiusmodi declaramus pouisione Concilij Siluam Caeduam , illam fore quae cuiuscunque existens generis arborum in hoc habetur vt cedatur , & quae etiam succisa rursus ex stirpibus aut radicibus renascitur ; ac ex ea Decimam vtpote realem & praedialem Parochialibus ac Matricibus Ecclesijs persoluendam ; nec non siluarum possesso res huiusmodi ad praestationem Decimarum lignorum ipsorum excisorum in eis , sicut feni & bladorum omni censura Ecclesiastica fore Canonicè compellendos . By this , Tithe of all kind of Wood was payable . But in the a a Rot. Parl. 17. Ed. 3. art. 28. Parlament with which that Conuocation was held , a Petition was exhibited by the Commons , Que nul home soit tret en plee en Court Christien pur Dismes de bois ou de south bois si nonn en lieux ou tielx Dismes soloient estre donez . And the Answer was , Soit fait de cella auxi come il ad este fait einz cez heures .

XXIX .

And the yeer following , in the next Parlament , a b b Rot. Parl. 18. Ed , 3. art. 9. complaint was against that Constitution by the Commons . Item pria le Commen que come Constitution soit fait per les Prelats a prendre Disme de chescun mannere de Bois quel chose ne fuit vnques vsee , & que niefs & femes poent faire testament que est contre reson . que plese per lui & per son bon conseil ordainer remedie , & que son people demoerge en mesme l'estate qu'ils soloient estre en temps de touts ses progenitours , & que Prohibitions soient grantes a touz ceux que sont empledes de Dismes de bois sans auoir consultation . Wich was no otherwise answerd , but with , Le Roy voet que ley & reason ent soient faits .

XXX .

Three yeeres after , in c c Rot. Parl. ●1 . Ed 3. art. 48. 21. Ed. 3. a Petition was touching the same matter put thus in by the Commons . Item monstre la Commune come nadgairs Lerceuesque de Cantirbiry & les autres Prelats ordenerent vne Constitution a doner Dismes de subbois venduz tant solement , la ou auant ces heures nulles Dismes furent donez , ore les gentz de Seint Esglise per force de la Constitution pernent & demandent les Dismes auxibien de gros bois come de subbois venduz & nient venduz econtre oe qu'ils ont vsez puit temps de memoire , a grant damage de la Commone de quoi ils prient remedie del vn point & del autre . To this is answered . L'erceuesque de Cantirbiry & les autres Euesques on t responduz que tiele Disme nest demandee per reson de la dit Constitution forsque de subbois . But I well conceiue not why they complain of the Constitution , as made only for the Tithe of Wood sold. no such thing appeares in it , that iustifies their supposition .

XXXI .

This tithing of Wood , and of such other things as were not of Custome paid , still vexed the Commons . And therefore againe in a Parlament d d Rot. Parl. Fest. Hill . 25 ▪ Ed. 3. art. 37. of 25. Ed. 3. they exhibit this Petition . Item pria la Commone , que si la Clergie en droit des Dismes de haut bois & southbois ou d'autre chose riens demandent ou attemptent de nouel forsque solement ceo & en les lieus d'ont ils ont este d'aunciens temps seisis come en le droit de lour Esglises , que pleise a nostre Seigniour le Roy ent granter Prohibition sans Consultation a touz ceux que le voillent demander en tiel cas , & que les dites gents de S. Esglise soient defenduz a demander Dismes de grosse bois . Here the Commons would haue had such a libertie of discharge of Tithes not vsually paid , as the Philippine in France , and the like Edicts of some other Nations giue the subiect . But the answer was , Le Roy & son Conseil se voillent de ceste Petition auiser .

XXXII . But vpon new Petition , by the Lords Temporall and Commons in the Parlament of 45. Ed. 3. it was enacted ( as you see in the published Statutes , agreeing with the Record ) That Tithe should not be exacted of great Trees , being of XX. yeeres growth , or aboue . and that vpon a Suit commenced in the Spirituall Court for such Tithes , a Prohibition should be granted , as it had been in former time also vsed . but that vse , it seemes , had been somewhat discontinued , through a reuerence giuen to that Synodall Canon of Archbishop Stretford . Although in 50. Ed. 3. fol. 10. b. Belknap saies , That it was neuer seen , that Tithes had been demanded of great Trees and of Timber . This Statute e e Plowd . Comm. fol. 470.9 . Nen. 6 ▪ fol. 56. &c. hath had still force in practice to this day .

XXXIII .

Yet , notwithstanding this Statute , the Clergie were not so contented ; but vnder pretence that it was not indeed , by sufficient autoritie , made a Statute , but only an Ordinance ( the contrarie whereof appears both in the Roll and in the consent of following time ) oft times afterward brought the Temporaltie in question vpon their Canons ; insomuch , that in the Parlament of f f Rot. Part. 47. 〈◊〉 . 3. art. 21. 47. Ed. 3. a Bill was put in by the Commons , reciting that of 45. Ed. 3. and then relating , that les persons de Seint Esglise entendants que cel Ordinance ne restreint my lour aunciene accrochements , surmettants que ce ne fuist my afferme pur Estatut , font occasions in Court Christien a contrarie del Ordenance suisdit a grant damage del people , per qui pleise a nostre Seignior le Roy d'afermer la dite Ordenance pur Estatut a durer pur temps auener , & que Prohibition especiall sur mesme Lestatut de ceo soit fait en la Chancellerie defendant que eux ne ●ignent plee en Court Christien des Dismes de bois del age auantdit , that is , of XX. yeeres . The answer hereto was , Soit tiele Prohibition grantee come ad este vse d'auncien temps . Thus did the Clergie and Commons so differ touching the execution of the Canons ; and insomuch , that afterward also the Commons put in a Bill , g g Rot. Parl 51. Ed. 3. art. ●6 . Que nul Estatute ne Ordenance soit faite ne grante au Petition du Clergie si ne soit per assent de voz Commens . Ne que vous dites Commens ne soient obligez per nulles constitutions qu'ils font pur lour auantage sanz assent de voz dites Commens . Car eux ne ▪ veullent estre obligez a nul de voz Estatutz ne Ordinances fa●tz sanz lour assent . But the answer was only thus , Soit ceste mature declarè en speciall . This by the way .

XXXIV .

Here may be h h Regist. Orig. fol. 4. a. rememberd thatagreement in the Parlament at Salisburie , Quòd consultationes fieri debent de silua caedua , eo non obstante quod non renouatur per annum . But to what Parlament to refer that agreement , expressed by Concordatum fuit coram Consilio Regis in Parlamento &c. I sufficiently know not , vnlesse to that of 7. Rich. 2. held at Salisburie , the Rolls whereof hath nothing of it .

XXXV

· In 5. Hen. 4. a Bill was put in by the i i Rot. Parl. 5. Hen. 4. art. 65. Commons , against the exaction of Tithes of Quarries of Stone and Slatt . Thus it speaks . Item priont les Commens que come plusors lieges nostre Seignior le Roy sont souent foits vexiz & trauaillez per Persons & Vicaires de Seint Esglise per Citations & Censures de Seint Esglise pur Dismes de Peres & Sclattes oueres & trahez hors de Quares de sicomne nul Disme de nul tiel Pierre ne Sclatte vnques ne feust demande de nulle Disme ent paie , que pleise a granter que si ascun Prohibition soit fait en le cas que nul Consultation soit grant a contrarie . Hereto the answer was , Le Roy s'aduisera . But you may see hereof more in the ancient Opinions of the Iudges , deliuered in the k k Orig fol. 59. b. Register and l l Nat. Br. fol. 53. C. G. Fitzherbert .

XXXVI .

In 27. Hen 8. chap. 20. it is enacted by Parlament , That through all the Kings dominions , euery subiect according to the Ecclesiasticall Laws and Ordinance of this Church of England , and after the laudable Vsages and Customes of the Parish or other place where he dwelleth or occupieth , shall yeeld and pay his Tithes &c. And some other speciall courses for recouerie of Tithes , are in that Act ordained .

XXXVII .

By the Statute of Dissolution of Monasteries of 31. Hen. 8. chap. 13. it was enacted , That the King and his Patentees should hold the Possessions of the dissolued Monasteries discharged and acquited of payment of Tithes , as freely , and in as large and ample manner , as the Houses of Religion held them at their time of the dissolution .

XXXVIII .

After the dissolution of Monasteries , to which , diuers Tithes and Parish Churches had been appropriated , and were now setled in the Crowne , and thence conueyed into Lay hands , an Act was made in 32. Hen. 8. cap. 7. commanding euery man , fully , truly , and effectually , to diuide , set out , yeeld or pay all and singular Tithes and Offerings , according to the lawfull Customes and Vsages of the Parishes and Places where such Tithes or Duties shall grow , arise , come , or be due . And remedie is giuen for Ecclesiastique persons before the Ordinarie ; and for Lay men , that claimed appropriated Tithes by grant from the Crown , in the secular Courts , by such actions as vsually Lay possessions had been subiect to .

XXXIX .

By the Acts of 27. Hen. 8. cap. 21. 37. Hen. 8. cap. 12. and the Decree made vpon them , the Citizens and Inhabitants of London and the Liberties were commanded to pay their Tithes to the Parsons , Vicars , and Curats of the Citie , according to a rate of the rents of their houses ; that is , two shillings nine pence for euerie pound . and that if no rent be reserued , the Tithe should be duly paid , according to what their houses had been last letten for . and according to that also , are owners bound to pay . But a Prouiso is in the Decree , That where a lesse summe then after two shillings nine pence the pound hath been accustomed to bee paid for Tithes , in such places the former custome should be continued . And some other particulars are in it , which are too long to be here transcribed . you may easily see it whole . But anciently , in London , on euery Sunday and other principall Feast day ; the chief maintenance of the Ministers was encreased , by a farthing offered out of euery tenne shillings of rent . Ex Ordinatione antiqua , sayes Lindwood m m In Constit. Prouin● . tit. de Dec. c ▪ Sancta , §. Nego●●ationum . , ( and that Ordinance , as I haue heard , was either made by Roger Niger Bishop of London , in 13. Hen. 3. as a new one , or as a confirmation of former vse . as which of these , I purposely abstain here to enquire ) in dicta Ciuitate , tenentur singulis Dominicis diebus & in principalibus Festis & Sanctorum Apostolorum & aliorum quorum Vigiliae ieiunantur offerre pro singulis X. solidis redditus domus quam inhabitant vnum quadrantem . And the LII . farthings so yeerly paid on Sundaies only , came so neere to the iust Tenth of the rent , that they were thought on as a Tithe paid ; the other being reputed rather by the name only of Offerings . Which you may see in the same Lindwood ; where he disputes the question , whether those farthings excused the Citizens from personall Tithes of their gaines ; and concludes , that they did not . But before these Acts and the Decree , no Tithes , as Tithes , were generally paid in that Citie . in some places n n Vide 16. Ed. 3. quare impedit 147.38 . Ed. 3. fol. 13. a. Grants case in Report . 11. fol. 16. a. they were , as in the libertie of S. Martins le Grand , which is rather in London then of it . neither can I but here remember that custom of the Eastern Church thus maintaind chiefly with Offerings , or 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , as they called them , which specially appears in the answere of Theodore o o In Respons . 57. inter monimenta Iuris Gra●●-Romani edit. à Leunclauio & Frahe●● . Balsamon Patriarch of Antiochia , to Mark Patriarch of Alexandria , touching the quantitie of what was to be offered . He tells him , that no certain quantitie is appointed by the Canons , and that through inequalitie of mens estates ( none of them giuing any such part to the Church as that it could discouer their abilities ) which permits not a regular certaintie , they were contented with what custom and free bountie of the giuers bestowed . 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 ( saies he ) 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . which is in substance the same before in English .

XL.

In 2. and 3. Ed. 6. chap. 15. it was enacted that all prediall Tithes should be thenceforth paid as of right they had been within fortie yeers next preceding , or according to custom ought to haue been , with allowance of Priuileges lawfull Prescriptions or Compositions reall . and personall Tithes of gain by merchandise and artifice in such places , and as within XL. yeers preceding they had been accustomably vsed to be paid , are commanded to be paid yeerly at or before Easter . Other particulars and the remedies giuen by the Act may be easier found in it , then I can transcribe them .

XLI .

To these may not amisse be added those Laws for Tithes , proposed by the VIII . persons chosen to begin a new body of Canon Law for England in 5. Ed. 6. according to the first purpose of the Statut of 25. Hen. 8. cap. 19. ( which was seconded also by the Statut of 3 and 4. Ed. 6. cap. 11. ) whereby XXXII . persons assigned by the King should haue made it . neither were those VIII . to haue giuen sufficient autoritie to it according to those Statuts , without approbation of XXXII . afterward that should haue censurd their reformation . The VIII . were Thomas Cranmer Archbishop of Canterburie , Thomas Bishop of Elie , Richard Cox the Kings Almosner and Peter Martyr Doctors of Diuinitie , William May and Rouland Tailor Doctors of Law , and Iohn Lucas and Richard Gooderik Esquires . In what they proposed , is found a constitution in the Kings name that all predial tithes should be paid in kind to the Ministerie integrè & expletè ( with an exception of timber Trees of XX. yeers growth ) as also of the profits of Milles , of Turbaries , Cole-mines , Quarries of stone and all other of like kind . Of all Agistments also Tithes are there paiable , and of the encrease of all kind of beasts , wild and tame ; of fish , of butter , cheese , milk , wool , wax . and the Statut of 2. and 3. Ed. 6. for Tithes is there receiud for so much of it as is not against a generall paiment which they would haue had ordaind . But these as the rest in the Volume with them , were only intended for Laws , but neuer had sufficient autoritie or confirmation . The intent was first that those Canon Laws only , which according to the purpose of the two Statuts of Hen. 8. and Ed. 6. should be compiled , might haue autoritie in the Vniuersities , and force in practice ; but so , that there might still be praeseruatio legum nostrarum communium in suo vigore remanentium , as the words are in the Patent of Ed. 6. that authorizes the VIII . persons to consult about them .

For our Laws of Tithing either made or desired , thus much . But before we speak of the Practice , it is requisit that we enter into some disquisition touching Parishes or Parochiall right according wherto at this day from ancient time the paiment of Tithes is regularly performed .

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 be 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 Parochial limits in regard of the profits receiud to the singular vse of the Incumbents . Limitation of Tithes by K. Edgar to the Mother Parish Church , or Monasterie . Monasteries preferd before other Churches for buriall . Mortuaries . Minstre . a third part of Tithes ( according to K. 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 ioind to another by the King .

IN consideration of our Parish Churches and Parochiall limits , the times of the Britons first , then of the English-Saxons and foreward are to be thought of . that is , the elder times of their Christianitie .

For the Britons ; litle or no Testimonie of credit is extant that discouers the Ecclesiasticall policie vsed by them , in their primitiue times , or declares the possessions of their Hierarchie . And we omit here wholy what might be collected out of that fabulous tale of Augustine preaching at Cometon in Oxfordshire , whereof more in the next Chapter . Although K. Lucius had instituted XXVIII . Bishops , and III. Archbishops ( as the British storie tells vs ) yet , how in those Dioceses any distinct Parishes were , appears not expresly . But we may very well think that such kind of Parishes only were in those Bishopriques as we haue alreadie * * Chap. 6. §. 3. shewd to haue been in the Primitiue Church elswhere . neither is it likely that in those times , the custom of this Island therein should differ from what was euen vniformly receiud through those parts of Christendom , wherof we haue best testimonie remaining . But if all ancient autoritie were of credit , Parish Churches expresly mentiond of about the time of CCCCXC . and endowd as at this day might be found among the Britons . For when Dubritius was made Archbishop of Southwales which they called Dextralis Britannia , and his See appointed at Landaff vnder Mouris Prince of that Wales , diuers Churches with their endowments of Tithes , Oblations , and other profits were appropriated to him and his successors ; by the relation of an old Autor . Propter sanctitatem suam ( are his a a Anonym . Ms. de primostatu Landauens . Ecclesiae in Bibl. Cottoniana eadem in Codice Landau . qui Tilo dicitur habentur . Recens autem exscriptus Tilo reperitur in eadem Biblioth. words ) & praedicationem praeclaram Beati Pastoris & regalem parentelam suam plures Ecclesiae cum suis dotibus , Decimis , oblationibus , sepulturis , Territorijs & libera communione eorum datae sunt sibi & successoribus suis omnibus à Regibus & Principibus totius regni Dextralis Britanniae . and then , Videns autem sanctus Dubritius Largifluam potentum manum erga sibi comissam Ecclesiam , partitus est discipulos mittens quosquam discipulorum suorum per Ecclesias sibi datas , & quasdam fundauit Ecclesias , & Episcopos per dextralem Britanniam coadiutores sibi , ordinatis Parochijs suis , consecrauit . But this Autor wrote not before about the beginning of the last CCCC . yeers from Christ , and spake of these things in the phrase of his own time . the hand and context and their relations in him iustifie it . he talks , you see , of Churches endowd and appropriated and founded , as if he meant no other then such as now are conueiable by Patrons and Ordinaries in the course of appropriations vsed in later ages , and filled with Incumbents that had in them like estates and particular interest in the profits as Parsons at this day . indeed , that in those times Churches were built here , no doubt can be made ; neither is it to be conceiud how b b 1. Ad Cor. cap. 11.22 . Sed v●desis Isidor . Pelusi●t . lib. 2. Epist. 246. Christianitie could he in any Nation much ancienter ( if generally receiud , or by any number ) then Churches or some conuenient Houses or other places in the nature of Churches , appointed for the exercise of deuotion . and expresse mention c c Beda Hist. Eccles. lib. 1. cap. 26. is of a Church built here in the time of the Romans , to the honor of S. Martin in which Augustin and his followers when they came first from Rome , made their holy assemblies , and others also they repaired . and saies Gildas , of the Clergie of his time , that is about D.LXXX . Ecclesiae domus habentes , sed turpis lucri gratia eas adeuntes . But I ghesse , that vnder Dubritius few or no parish Churches were otherwise erected then for conuenient places for such Ministers as the Bishop out of his Clergie arbitrarily sent thither , and that the offerings & other profits there receiud were to the common treasurie of the Diocese , and to be dispensed as is before declared , where we speak generally of those elder times . & in regard no more certainty of the establishing of the endowments , or places of residence in the British Hierarchie , may be found , I willingly permit to euery man his own coniecture .

II.

For the age of the Saxons ; we read that Augustin and his companie , when they first came to K. Ethelbert in Kent , began there to imitat d d Beda lib. 1. cap. 26. Apostolicam primitiuae Ecclesiae vitam , ea tantum quae victui necessaria videbantur ab eis quas docebant accipiendo , and , that after they had conuerted the King , they builded and repaired Churches . maiorem praedicandi per omnia , & Ecclesias fabricandi vel restaurandi licentiam accipiebant . So Ethelbert in his Charter of foundation ( if you will beleeue the autoritie e e Cart. Antiq. l. 8. in arc● Londin . whence we haue it ) of his Abbey in Canterburie , talks of alias quas fabricaui Ecclesias . And doubtlesse those Churches which they built , or repaired , as also the Temples of the Gentiles which by aduise of Pope Gregorie to Mellitus were not to be destroied , but conuerted to Christian seruice , had some kind of limits of adioining Villages or Towns , and so were in that respect Parochiall . But those limits and Churches were variously chosen and assigned to ministring Priests , according to the conuenience of the assembling of the Neighbour-inhabitants ; but not so ordaind that euery Parishioner was bound to keep his deuotion within the limits of this or that parish church . that is , Parishes were then limited only in regard of the ministring Presbyterie ( whence they were called scriftscyrean i. circuits , within which the Priests exercised their shriuing ) but not in regard of the profits receiud from the Parishioners . For the whole Diocese ( first of Canterbury , then of the other elder Bishopriques , as they were instituted ) was indeed the only limited Parish , in regard of the Parishioners profits . & the Clergie of the Bishop , that is , his familie of Church men , were the Curats in inferior Churches , according as the Bishop appointed and altered them ; and whatsoeuer they receiued through deuotion of good Christians , made vp a common treasure for the whole Diocese ( whence it followd , that it was not materiall at what church any Parishioner offerd his Christian bountie , so he did it within the Diocese ) which was both consonant to what is found to be the vse of other Churches in the Primitiue times , and is also confirmed by that Augustin in his question to Pope Gregorie , touching Bishops . he demanded qualiter cum suis Clericis conuersentur ? vel de his quae fidelium oblationibus accedunt Altari , quantae debeant fieri portiones ? whereto the Pope answers that the custom is generally to make a quadripartit diuision for the Bishop , for his Clergie , for the Poor , and for reparation of Churches . but he admonishes him , that in the tendernesse of the English-Saxon Church , he and his Clergie should still imitate the communitie of all things vsed in the Primitiue times vnder the Apostles . The Saxon of that question f f Extat in Beda exemplatis Saxonici Ms. lib. 3. in Bibl. Cottoniana is obseruable . AErest be Bisceopum ; hu hie mid hiora geferum drohtian & lufian scylen . Oððe in þaem lacum geleaffumra þe hie to ƿeofodum , & to godes cyricum brengað , hu monige daelas þara beon scyle , , that is , first concerning Bishops . how they should bear themselues among their Clergie , or how many parts they should haue in the offerings that good Christians brought to Altars and to Gods Churches . here it is more plainly exprest , that whateuer came to any Altar or Church , within the Diocese , was one common profit to be deuided or emploied , as Pope Gregorie answers ; where he tells him also that the Bishop and his Clergie g g Videsis B●dam Hist. Eccles. lib 4 cap. ●7 . must liue together , Sed , saith he , quia fraternitas tua Monasterij regulis erudita , seorsum viuere non debet à Clericis suis in Ecclesia Anglorum &c. So that you may collect that in these Primitiue times of the English-Saxon Church the Bishop and the whole Clergie of the Diocese were as one body liuing vpon their endowments ( bestowd on the Bishoprique ) and their treasure that came from the sundrie places of deuotion whither som one or other of them at the Bishops appointment , was sent to preach the Word and minister the Sacraments . euery Clerk hauing his diuidend for his maintenance . Neither in these elder times , I think , did any of these of his Clergie or Chaplains vsually reside elsewhere then with him at his Bishoprique ( as Deanes and Chapters at this day ) or in some Monasteries whence they might as occasion required , at certain times go into those Parishes which were distinguished only for seuerall functions of those Chaplains , lest want of such distinction might the sooner haue caused also a want of speciall discharge of this or that Cure . so that there were singularum Ecclesiarum Presbyteri h h Synod . Anglic. c. 1. & ● . ann. 786. C●ntur . 8. cap. 9. qui populum erudire debent , and they were particularly ordaind for the Title of this or that Church , and euery one was bound by our canons of that time not to leaue the Church for which he was so ordained . And from their residence with the Bishop , or out of the Parish in Monasteries , came it , as it seemes , that they were but rarely seen abroad among the people . for so rarely were they seen abroad , that when euer any of them were espied in the Countrey , the people vsed presently to flock about him , and with all reuerence humbly to beseech his Benisons , either by signing them with the Crosse , or in holy prayers for them ; and , with all earnestnesse of attention , they heard what he preached . This is that * * Vide eum hist. Eccles. ●ib. 3. c. 26. & lib 4. c. 27. which Bede teaches , when he tells vs , that si quis Sacerdotum in vicum forte deueniret , mox congregati in vnum vicani , verbum vitae ab illo expetero curabant . And againe , Erat quippe moris ●o tempore populis Anglorum , vt , veniente in villam Clerico vel Presbytero , cuncti ad eius imperium verbum audituri constuerent , libenter ea quae dicerentur audirent , libentiùs ea , quae audire & intelligere poterant , operando sequerentur . How long this communitie in euery Diocese between the Bishop and his attending Clergie ( which is denoted often by the name of Episcopi Clerus ) continued , fully appears not . But , that it was not out of vse till past more then C. yeers after Augustines comming , that is , till past D.CC. yeers from Christ , may be coniectured out of those testimonies of Bede , which extend as farre .

III.

Yet it is commonly receiud , that Honorius , the first Archbishop of Canterburie after Augustine , about the yeer D. C.XXX . first diuided his Prouince into Parishes . And in the late historie of the Archbishops of Canterburie , written by Mr Ioscelin , it is thus deliuered of him . Neque solùm Episcopos tanquam superiores turrium custodes Ecclesiae superimpo suit , sed etiam , Prouinciam suam primus in Parochias diuidens , inferiores Ministros ordinauit . And according to this , haue some of our greatest and most learned Writers related . But I doubt much how it can at all stand with truth . For if Parochiae be here meant only for such as were assigned Limits for those which were sent arbitrarily from the Bishop , out of the number of his Chaplains , or his Clerus , residing for the most part , in those elder times , with him at his Bishoprique ; then cleerely , Honorius was not the first that made diuision of them . Such kind of Parochiae are euen neere as ancient as Bishopriques ; and questionlesse , in Augustines time . how could otherwise , Gods Seruice be orderly had in the Infancie of the Church ? And when euer seuerall Churches for Christian Seruice , or other places for holy Assemblies , began , then began such Parochiae . And that Churches were built here before Honorius his time , is before manifested . If , on the other side , Parochiae be taken for what it's vsually vnderstood , that is , for such Limits as now make Parishes , bounded as well in regard of the profits receiud from the Parishioners ( due only to the Minister of that Church ) as of the Incumbents function and residence ; how will that stand with the communitie of Ecclesiastique profits , and the Bishops and his Clergies liuing together , that may be without much difficultie discouered out of Bede , to haue continued after Honorius also ? But where euer that testimonie of his diuiding Parishes was first found , I doubt it was mis-vnderstood , through the various signification of Parochia . For in those ancient times , Parochia vsually denoted as well a Bishoprique , or Diocese , or bisceope scyre , as the Saxons called it , as a lesse Parish . That signification is very obuious in the old Councells of both Tongues ( as it is also specially obserued by the learned Filesacus in his Paroecia ) and in the moniments of this Kingdome . For it is related of King Cenwalch , that he diuided i i Beda Hist. Eccles. lib. 3. cap. 7. Prouinciam in duas Parochias , when he made a new Bishoprique at Winchester , that was taken out of the Diocese of Dorchester . And in the Councell of Hertford , held vnder Theodore Archbishop of Canterburie , one Canon is k k Ibidem lib. 4. c. 5. & videsis c. 16. q 2. c. 6. san● . , Vt nullus Episcoporum Parochiam alterius inuadat sed contentus sit gubernatione creditae sibi plebis . So in Florence of Worcester , vnder the yeere D. C.LXXX . Merciorum Prouincia in quinque Parochias est diuisa , that is , into fiue Bishopriques . And the truth is , that it may be said properly enough , that Honorius was the first vnder whom his Prouince was diuided into such Parochiae , or Bishopriques . that is , No other Bishopriques ( except Canterburie , London , and Rochester ) were in his Prouince vntill his time ; those three being almost of one antiquitie . But vnder him , Byrinus was made first Bishop of the West-Saxons , and had his See or Bisceop setle ( as they calld it ) at Dorchester , and Foelix the Burgugnone was likewise ordaind first Bishop of the East-Angles at Dunwich . Which two Ordinations , in regard the like had not been in this Prouince of Canterburie from Augustines time till this Honorius , were perhaps the cause why it might be related , that Honorius primus Prouinciam suam in Parochias diuisit . Which , although it were to be conceiud of such Parishes as at this day wee call by that name , yet could not extend to all his Prouince . For not till long after his time , was Christianitie receiud in the Kingdome of Sussex , which was first conuerted by Wilfrid , first Bishop of Selsey , in the yeere D. C.LXXIX . Hitherto then , for aught can out of ancient Moniments be proued , no Limits Parochiall , in regard of the profits to be receiud from the Parishioners , and spent by this or that Minister only , were assigned . But the ancient course of a kind of communitie of all profits of the Diocese , with the Bishop and his Clergie , remaind still in vse . Neither was the interest of many Churches , it seems , as yet here in any Lay-founders . But the Bishops , as I thinke , had both the interest and gouernance of the Churches built by the King , and tooke care for building new in their owne endowments , and hallowing old ones , that had been either prophaned since Christian Seruice vsed in them among the Britons , or formerly consecrated only to Heathenisme . So may you vnderstand that of Byrinus , first Bishop of Dorchester . Factis dedicatisque Ecclesijs multisque ad Dominum , pro eius labore , populis aduocatis , migrauit ad Dominum , as Bedes words are ; in the Saxon of which it is exprest , that the Ciricean ƿorhte & gehalgode , that is , made Churches , and hallowed them .

IV.

But afterward , when deuotion grew firmer , and most Lay men , of faire estate , desired the Countrey-residence of some Chaplains , that might be alwaies readie for Christian instruction among them , their Families , and adioyning Tenants ; Oratories and Churches began to be built by them also : and being hallowed by the Bishops , were endowed with peculiar maintenance from the Founders , for the Incumbents that should there only reside . Which maintenance , with all other Ecclesiastique profits that came to the hands of euery such seuerall Incumbent ( in regard ▪ that now the Lay-founder had , according to the Territorie of his Demesnes , Tenancies , or neighbouring Possessions , made and assigned both the Limits within which the holy Function was to be exercised , and appointed the persons that should repaire to the Church , and offer there , as also prouided a speciall Salarie for the performance ) was afterward also restraind from that common Treasurie of the Diocese , and made the only reuenue , which became perpetually annext to the Church of that Clerk who receiued it . Neither was it wonder , that the Bishops should giue way to such restraint . for had they denied that to Lay founders , they had giuen no small cause also of restraining their deuotion . Euery man , questionlesse , would haue been the vnwillinger to haue specially endowd the Church , founded for the holy vse chiefely of him , his Familie , and Tenants , if withall he might not haue had the libertie to haue giuen his Incumbent , there resident , a speciall and seuerall maintenance ; which could not haue been , had the former communitie of the Clergies reuenue still remained . Out of these Lay foundations chiefely , doubtlesse came those kind of Parishes , which at this day are in euery Diocese . their differences in quantitie being originally out of the difference of the seuerall Circuits of the Demesnes or Territories possessed by the Founders ▪ And after such time as vpon Lay foundations , Churches had their profits so limited to their Incumbents , no doubt can be , but that the Bishops , in their Prebends , or Aduowsons of Parishes , both in Cities and in the Countrey , formerly limited only in regard of the Ministers Function , restraind also the profits of euery of their seuerall Churches , to the Incumbents ; that so a vniformitie might be receiued in that innouation of Parochiall right . At what time these Lay foundations began to be frequent , plainly enough appears not . But some mention is of them about the yeer D.CC. as you may see in m m Hist. Eccl. lib. 5. cap. 4. & 5. Bede , where he speaks of one Puch , a Saxon Noble man , that had built a Church , and entreated Iohn , Bishop of Hangulstad , to consecrate it ; and the like also of one Addi . Alio item tempore , sayes hee , vocatus ad dedicandum Ecclesiam Comitis vocabulo Addi . Some such more , of about that time , may bee found . But about the yeere D.CCC. many Churches , founded by Lay men , are recorded to haue been appropriated to the Abbey of Crowland , as you see in the Charters of Confirmation made by Bertulph King of Mercland , and of others , to the same Abbey , reported by Ingulphus . Whence it may bee obserued , that by this time Lay foundations were grown verie common , and Parochiall Limits also of the Parishioners deuotions . And in a Councell held in D. CCC.XVI . vnder Wilfrid , Archbishop of Canterburie , wee find , Vbi Ecclesiae aedif●centur , à propriae Diocesis Episcopo sanctificentur . And a Canon of the n n M ▪ ( in Biblioth. Certoniana ) c. 10. same Synod ordains , That vpon the death of euery Bishop , Statim per singulas Parochias in singulis quibusque Ecclesijs , pulsato signo , omnis famulorum Dei caetus ad Basilicam conueniat . Ibique paritèr XXX . Psalmos pro defuncti anima decantent , & posteà vnusquisque antistes & Abbas DC . Psalterios & CXX . Missas celebrare faciat , & tres homines liberet , & eorum cuilibet tres solidos distribuat &c. with other Ceremonies of Fasting and Prayer ( according to the time ) for the soule of the Bishop . Here , it may seem , Parishes limited as at this day , are vnderstood . But the first expresse mention of limitation of profits ( other then of the endowing ) to bee giuen to this or that Church , is in those Laws of King Edgar , made about D. CCCC.LXX . where a three-fold diuision is of Churches . the first is called Ealdan Mynstre , that is , Senior Ecclesiae , which * * Leg· Franci● . apud ●i●●sacum , lib. de Pa●●●ci● . name anciently was giuen to Cathedrall Churches ; the second , a Church that hath Legerstoƿe , or place for Buriall ; the third , a Church that hath no Legerstoƿe . Where it is ordaind , that euery man , hauing not erected a Church of his own , should pay his Tithes to the Ealdan Mynstre ðe seo hyrnesse to hyrþ ; that is , to the ancientest Church or Monasterie where he hears Gods seruice . Which I vnderstand not otherwise , then of any Church or Monasterie , whither vsually in respect of his Commorancie or his Parish ( determined according to the Farmes , Houses and Lands , occupied with those Houses or Farmes ) he repaired ; that is , his Parish Church or Monasterie . For we must remember , that in those times , Monasteries ( which somewhat before Edgar o o Regular . Concordia Anglica Nationis Monach. Sanctimonialiumque Ms. in Bibl. Cotton . & Malme●bur . lib. 1 de gest . Pontific . fol. 115. were for the most part filled with secular Clerks , who also , as other Clergie men took pains abroad in the spirituall Haruest ; and vnder him by Archbishop Dunstans procurement were restored only to Cloister Monks or Benedictines ) aswell as other Churches erected either by Bishops or Lay men , were in many places the only Oratories & Auditories that the neer Inhabitants did their deuotions in , and perhaps were in regard of buriall most commonly preferd before other Churches whatsoeuer . which may be collected from a Canon of an p p In Statut. Synod ▪ Ms. in sap . dict. Biblioth. cap. 9. old Synod of Ireland held about these elder times of the English Church . neither is it likely but that the manners of these Northern Churches in that age were enough agreeable to each other . In that Synod it appears that any man might haue bequeathed his buriall to what Abbey best pleased him , and that the Abbot to whose Monasterie the bequest was made , should haue the Apparell of the dead , his Horse and his Cow for a Mortuarie , although he had before solemnly giuen all that he had to any other Abbot . whence may easily be coniectured that Monasteries were in chiefest reputation for q q Videsis c. 16. quaest. 1. c. 1● Agap●tus & 13. q. 2. c. 6. vbicunque . sed & vide Append . ad Concil. Later . part . 43. cap. 4. buriall , and had a right of it before any other kind of Parochiall Church , if the dead made choise of any of them . and by the way for that course of paiment of a motuarie ( which the Saxons , r r Vide Canuti Leg. cap. 13. I think , calld saƿlsceat ) the same Synod affirmes , that Omne corpus sepultum habet in iure suo Vaccam & Equum & Vestimentum & Ornamentum sui Lecti ; nec quicquam horum reddetur in alia debita , quia corpori eius tanquam vernacula debentur . and although the certain age of that Synod appears not , yet it was after such time as Parishes were limited in regard of the Parishioners repairing to one certain Church and giuing their deuotions there only . for in it also are these words : quicunque discesserit de sua Ecclesia & in alia Ecclesia sepultus fuerit &c. what can sua Ecclesia be but such a kind of Parish Church , as at this day is titled so ? that is , one limited in regard of the Parishioners and their profits receiued from them . But , in that of Edgars ealden Minstre , it is plain that although Minstre specially denote a Monasterie , yet all other Parish Mother Churches are vnderstood by it . and indeed dyric and Minstre are frequent , as Synonomies in the Saxon moniments . But as the first part of his Law that giues all Tithes to the Mother Church of euery Parish , meant in them a Parochiall right to Incumbents , so also the second part , that permits a third portion of the Founders Tithes to be setled in a Church new built , wherto the right of Sepulture is annexed , makes a dispensation for a Parishioner that would build such a Church in his Bocland or land possessed optimo iure , or as inheritance deriued from a Charter of feoffment . And howeuer that second part also of this Law , is iterated by King Knout , yet I doubt not but that such new erections within old Parishes bred also new diuisions which afterward became whole Parishes , and by conniuence of the time , took ( for so much as was in the Territorie of that Bocland ) the former Parochiall right that the elder and Mother church was possessed of . For , that right of Sepulture or hauing a legerstoƿ , was , and regularly is a Character of a Parish Church or Ecclesia , as it is commonly distinguished from Capella . and anciently if a quare impedit had been brought for a Church , whereas the defendant pretended it to be a Chappell only , the issue was not so much whether it were Church or Chappell , as whether it had Baptisterium or Sepulturam , or no. so it appears in a case of r r Trinit. Placit . 23. Hen. 3. rot. 15. in arce Londinensi . 23. Hen. 3. where William of Whitanston in his count against the Archbishop of Canterburie , expresses , Ecclesiam de Hey in Sussex to be of his aduowson , and the Archbishop pleads that what he calls a Church , non est Ecclesia , imo Capella pertinens ad matricem Ecclesiam de Terringes , ita quod non est ibi Baptisterium neque Sepultura imo omnes qui nascuntur ibidem baptizantur apud Terringes , & similiter omnes qui ibi moriuntur , sepeliuntur apud Terringes &c. and thence was it also that the whole Clergie of England put the inquirie of such an issue among their grieuances , when in 21. Hen 3. they desired Otho the Popes Legat , among other freedoms , to get for them of the King , Quod s s In Ann●l . Ms. Monasterij Bur●onc●sis ▪ su● anno 1237. apud V.C. Tho. A●len . Oxon. iudices seculares non decidant causas Ecclesiasticas in soro seculari , nec tales homines determinent vtrum talis Capella debeat habere Baptisterium & Sepulturam an non . For , if it had the right of administration of Sacraments in it and Sepulture also , then differd it not from a Parish Church , but might be stiled Capella Parochialis , by which t t Lind●ood in tit . de Censibus ●quamuis Lex naturae ve●b Vna Ecclesia & in tit . de cel●●r . M●sser . c essr●●at 1. & v●de B●act fol. 241. b & 〈◊〉 . lib. 5. cap. 14. & B●cton fol. ●26 . b name some Chappels are with vs known . and in the Saxon times also we find Coemiterium u u In●ulphus fol. 489. b. Capellae , for the buriall place of a Chappell , which must be vnderstood of a Church that had the like right as that which is mentiond . in the second part of Edgars Law . and those other churches which in his and K. Knouts Laws are spoken of , that is , Churches without buriall places , feldcyrican , or field-Churches , are only what at this day we call Chappels of ease , built and consecrated for Oratories , but not diminishing any thing of the Mother Churches profits . But also besides those originall Lay foundations , some Parishes haue had other beginnings since from alterations made in regard of the inconuenience of their former limits . And this by direction or autoritie both from the Pope , or Bishops , according as they saw occasion exacted ; and from the King . For the Pope ; we may see in the example remaining in the Decretals x x Extr. tit . de Eccles. adificand . c. 3. ad audient●am . , where Pope Alexander the third sends his Decree to the Archbishop of York , reciting that in a complaint made to him , he had heard that a certain Town in his Prouince was so distant from the Parish church , that it was very difficult for the Inhabitants to repaire thither , especially in winter , and withall that the Church reuenue of the Parish ( although that Town were exempted ) was not insufficient for the Minister of the Mother Church , wherefore he commands the Archbishop to build in that Town a Church , and with assent of the Founder of the Mother Church , to institut at the Presentation of the Rector an Incumbent there , that might haue to his own vse all Ecclesiastique profits encreasing in the limits of the same Town , and so acknowledge a superioritie to the Mother Church , and that he should do it also whether the Rector of the Mother Church would assent or not . For the King ; an old y y Pat. 13. Me● . 3. part. 1. membr. 7. example is in 13. Hen. 3. where because the Church of S. Peeters in Chichester was very poor , & that only two Parishioners were in it , the King at request of Ralf Neuill then Bishop there & Chancelor of England , grants , quod eadem Ecclesia demoliatur & praedicti duo Parochiani qui spectabant ad ipsam assignentur imperpetuum Hospitali S. Mariae , quod eidem Ecclesiae est vicinum , vt ibi deinceps percipian● spiritualia & sint Parochiani eiusdem Hospitalis . And such like commands , occasions , and conueniences , doubtlesse haue alterd and made the limits of diuers Parishes eueriewhere , both in the Countrie and Cities , which haue to this day many of small Territorie , but of large number of Communicants . For Parochiall limits , thus much .

CAP. X.

I. The Practice of Tithing . Of K. Cedwalla's Tithing , being no Christian. the custom of the German-Saxons , in sacrificing their tenth captiue to Neptune . Decima vsed for a lesse part also in ancient moniments .

II. The Practice of Tithing in the Christian times of our Ancestors . the tale of Augustin and the Lord of Cometon touching non payment of them . the Tithe of euery dying Bishops substance to be giuen to the poor , by an old Prouincial Synod : Tithes how mentiond in Domesday . Testimonies of payment of them . Henrie the thirds grant of the payment of tithe of Hay & Mils out of all his demesnes . The beginning of Parochiall payment of Tithes in common and established practice in England . How that common assertion ; that euery man might haue disposed his tithes at his pleasure , before the Councell of Lateran , is true and to be vnderstood .

THe Laws of this Kingdom for payment of Tithes , and the originall of Parochiall right to profits accruing within the limits of euery Parish Church ( which were , after Lay foundations grew common , distinguished according to the adiacent possessions and tenancies of the Founders , and their Farmes , Mannors , Towns , and the like ) being hitherto declared ; the Practice of the times remaines to be also discouered .

In that , something also is obseruable among the Ancients of this Kingdom of a kind of Tithing , related to haue been where Christianitie was not yet receiued . Some of them tell vs of Cedwalla King of the West-Saxons , that before his being made Christian ( about the yeere DC.LXXXVI . ) he tithed all his spoiles of Warre to the Deitie . So the Monk of Malmesburie . Arduum memoratu est , saith he , quantum etiam ante baptismum inseruiret pietati , vt omnes manubias , quas iure praedatorio in suos vsu● transcripserat , Deo decimaret . neither , if he did so , was it without some example of his Ancestors the German-Saxons ( whence England was chiefly filled ) who were wont to sacrifice to Neptune ( I think ) the Tenth of all captiues taken in their pyracies and incursions made by Sea vpon the Gaules specially ▪ so saies my Autor , that liud about the time of the German-Saxons first arriuall here . his a a Sidon . Apollinaru lib. 8. Epist. 6. words , of them are . Praetereà priusquàm de continenti in patriam vela laxantes , hostico mordaces anchoras vado vellant , mos est remeaturis Demimum quenque captorum per aquales & cruciarias poenas , plus ob hoc tristi quod superstitioso ritu , necare super que collectam turbam periturorum mortis iniquitatem sortis aequitate dispergere . Talibus se ligant votis , victimis soluunt : & per huiusmodi non tam sacrificia purgati quam sacrilegia polluti , religiosum putant caedis infaustae perpetratores , de capite captiuo magis exigere tormenta quam pretia . Neither , I think , is any other expresse mention of this their Tithing , among ancient moniments . and , for that their sacrificing to Neptune ; indeed the Autor Apollinaris here mentions him not . but , it being done at Sea and per aquales ( for so is the true reading , although some there read aequales poenas ) you may wel coniecture it was to Neptune or to their supposed Deitie of the Sea . and thus the most learned and noble Monsieur Sauaron in his notes vpon Apollinaris , expresly also makes it a sacrifice to Neptune . and although it be true that among their gods we find none namd , that is denoted to answer to Neptune , yet , that some Deitie of the same nature , that is some great Sea god was in their superstitions , may be easily collected not only from this relation of their cruell deuotions , but also from their wondrous and accurat obseruation of the ebbs and flouds ( called by them Ledons and Malins ) which were the b b Videsis Ioseph . Scalig. de Emendat . Temp. lib ▪ 2. & lib. 1. de Mirabilibus S. Scripturae D. Augustino 〈◊〉 iptum &c. chief Directors of their account of times , as the Sun and Moons motion hath euer been to other Nations . which doubtlesse was no small cause that the Sea was to them reputed a Deitie , as the Sunne and Moone also , before other Creaturers , in the ancient Theologie of the Gentiles . But for that of Cedwalla ; let it be vpon Malmesburie credit , that he tithed his spoyles . Bede , who might better haue knowne it then Malmesburie could , relates no such thing of him . He sayes only , that when he conquerd the Isle of Wight , according to a vow that hee made to the Deitie , hee gaue for the Lords vse , the fourth part of the Isle ( that is , CCC . Hides or Plough-lands of M.CC. ) and of his Martiall gaines , to Wilfrid , Archbishop of Yorke , then being in those parts in banishment , and Bishop of Seseley . And c c Ms. in Biblioth. Cotton● de quo apud Malmesbur . lib. 1. de est . Pontif. fol. 114. a. Fridegod , that in the Saxon times wrote the life of Wilfrid in Verse , sayes hereof only by Apostrophe to Cedwalla , Tu quoque Pontificem multâ tellure beâsti , and mentions no more in particular . That which in the Latin Bede , in this storie , is called Familia , is hyd in the Saxon. And perhaps only such a kind of giuing a fourth , or any part , vpon vow to the Lord , was in that passage of Malmesburie vnderstood for Tithing . Why might it not , as well as the foure Thraues of Corne of euerie Plough-land , in the East-riding of Yorke , giuen by King Athelstan to the Church of S. Iohn of Beuerley ( which came , on the other side , not neer to the Tenth ) are stiled Decimae in a Bull of one of the Pope Gregories ( I thinke the ninth ) which I haue seene transcribed . As if Decimae in one notion had signified any kind of reuenue , deuoutly offered to holy vses . as , vpon other reason , 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 denotes also 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 among the Greeks . Those foure Thraues of euery Plough-land were , before that Grant , payable into the Kings Auenarie d d Fulcardus Derobornens . de vita & mi●ac I. de Beuerlaco recens Ms. in Biblioth. Cotton . by custome of the Countrey . And in Athelstans Charter ( as I e e Ms● in eadem Biblioth . found it transcribed ) they were thus exprest , ða forne ðraue by heuen cyng Of ilc a plou of Estreding . And for that more generall notion of Decima or Decimatio , I haue seen the transcript of a Deed made f f Chartular . Ms. Monasterij de Giseburne in dict. bib. by Robert de Hesel to the Monasterie of Giseburne in Yorkeshire , wherein hee giues duas garbas de tota terra quam de nouo colui in Territorio de Hesel postquam illam tenui aut quam ego de caetero colam vel haeredes mei , ita vt Decimatio haec cedat in fabricationem Ecclesiae nouae de Giseburne . Here the gift of two Sheaues is called Decimatio .

II.

For the practice of payment among Christians , both Britons and Saxons ; might wee beleeue the common tale of that Augustine , the first Archbishop of Canterburie Prouince , his comming to Cometon in Oxfordshire , and doing a most strange miracle there , touching the establishing of the Doctrine of due payment of Tithes , wee should haue as certain and expresse autoritie for the ancient practice of such payment , as any other Church in Christendome can produce . But as the tale is , you shall haue it , and then censure it . About the yeer ( they say ) DC . Augustine comming to preach at Cometon , the Priest of the place makes complaint to him , that the Lord of the Mannor hauing been often admonished by him , would yet pay him no Tithes . Augustine questioning the Lord about that default in deuotion ; hee stoutly answered , That the tenth Sheaf doubtlesse was his that had interest in the nine , and therefore would pay none . Presently Augustine denounces him excommunicate , and turning to the Altar to say Masse , publiquely forbad , that any excommunicat person should be present at it , when suddenly , a dead Corps , that had been buried at the Church doore , arose ( pardon me for relating it ) and departed out of the limits of the Church-yard , standing still without , while the Masse continued . Which ended , Augustine comes to this liuing-dead , and charges him in the name of the Lord God to declare who hee was . Hee tells him , that in the time of the British State he was huius villae Patronus , and although he had been often vrged by the Doctrine of the Priest to pay his Tithes , yet he neuer could be brought to it ; for which he died , he sayes , excommunicat , and was carried to Hell . Augustine desired to know where the Priest that excommunicated him , was buried . this dead shewed him the place ; where hee makes an inuocation of the dead Priest , and bids him arise also , because they wanted his help . The Priest rises . Augustine askes him , if he knew that other that was risen . he tells him , yes ; but wishes he had neuer known him . for ( saith hee ) he was in all things euer aduerse to the Church , a detainer of his Tithes , and a great sinner to his death , and therefore I excommunicated him . But Augustine publiquely declares , that it was fit mercie should be vsed towards him , and that he had sufferd long in Hell for his offence ( you must suppose , I thinke , the Autor meant Purgatorie ) wherefore hee giues him absolution , and sends him to his graue , where hee fell againe into dust and ashes . Hee gone , the Priest new risen , tells , that his Corps had lien there aboue C.LXX. yeers ; and Augustine would gladly haue had him continue vpon earth againe , for instruction of Soules , but could not thereto entreat him . So he also returns to his former lodging . The Lord of the Town standing by all this while , and trembling , was now demanded if hee would pay his Tithes ; but he presently fell down at Augustines feet , weeping and confessing his offence ; and receiuing pardon , became all his life time a follower of Augustines . Had this Legend truth in it , who could doubt , but that payment of Tithes was in practice in the Infancie of the British Church ? The Priest that rose here from the dead , liud ( if he euer liud ) about CCC.XXX . after Christ , and would not surely haue so taxed the Lord of this Mannor only , if the payment had not been vsually among other good Christians here , not taught only , but performed also . Neither need I admonish much of the autoritie of it . the whole course of it directs you how to smell out the originall . Beside the common Legend of our Saints , it is in some Volumes put alone , for a most obseruable Moniment . and I found it bound vp at the end of the Ms. life of Thomas Becket , Archbishop of Canterburie , writen by Iohn de Grandisono . and it remains in the publique Librarie of Oxford . There also you haue it related in Ioannes Anglicus g g Ms. part. 1. lib. 17. cap. 72. his Historia Aurea , and , in the Margine , are noted to it these words : Hoc miraculum videbitur illis incredibile qui credunt aliquid Deo esse impossibile . sed nulli dubium est quod nunquam Anglorum durae ceruices Christi iugo se submisissent nisi per magna miracula sibi diunitus ostensa . But let the truth be as it will , I doe not beleeue , that the fable can be found , nor any steps of it , aboue CCCC . yeer old at most . But , to leaue such testimonie , no doubt can be , but that some practice of payment was here vsed very anciently , which ( beside the deuotion to be supposed in Christians , and the Doctrine of ancient Fathers , which , verie likely , wrought here as in other Western Churches ) might be collected , by good probabilitie , out of those Laws alone of the Saxon times which 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 h h Jn Bibl. Cott. 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 i i Eccles. Hist. lib. 4. cap. 29. 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 , k k Ms. in Biblioth. Cotton . & apud V.C. Th. Allen. Oxon. 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 l l Ms. ( compact . inter Monimenta Eccles. Landa● . in Biblioth. Cott. ) cap 10. 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 comming they should expect seuere punishment . the words were : Nunc m m Apud G. Malmesbur . de gest . Reg. Angl. lib. 2. cap. 11. 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 Cur●scet nominatur . Haec & alia , si cum venero , non erunt persoluta , regia exactione secundum leges in quem culpa cadit districtè absque venia n n Forsan Compensabit . 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 o o i. Church sce● . 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 Tithe of Cladford is reckond , as also of Adrintone . and also the Tithes of Stanham are possessed there by one Richerius Parson of the Church of Stanham . and vnder Terra Canonicorum de Tuinham , is found , Ad hanc Ecclesiam pertinet tota decima de Twinham , & tertia pars Decimarum de Holchest . and in the Isle of Wight there , VI. Churches , belonging to the Abbey of Lire , Decimas habent de omnibus redditibus Regis . So in Bedfordshire the Church of S. Marie de Cormelijs , hath diuers Tithes among its reuenues . But the mention of Tithes where Churches are neuerthelesse spoken of , is but very seldome through that whole Description . and indeed in certain Counties as Somerset , Deuon , Cornwall , and some few others , you shal rarely haue a Parish Church noted , but in others , very often Churches are , but very few examples of their hauing Tithes . sometimes also grants of Tithes by Lay owners are there mentiond , out of the vse of which it may be well thought that the moities or third parts of tithes belonging to this or that Church , had their beginnings . But thereof more particularly in the next Chapter , where we speak of arbitrarie Consecrations . And in most Appropriations of Parish Churches made in the Saxon times ( the ancient course being to grant , in appropriating , Ecclesiam cum Decimis ) no mention is of Decimae , but other possessions of the churches granted are most particularly inserted in the instruments ; of which some examples are published in Ingulphus Abbot of Crowland , and very many occurre in Chartularies of old Monasteries . Ms. in Bibl. Cott. But see also for this matter the autorities anon brought to another purpose in the XIV . Chap. § . 2. For the following age ( besides some examples related in the next Chapter , out of which some kind of known payment at least , to some Churches , may be without difficultie collected ) that wee may here omit also the diuers Appropriations , in the p p Ante ●lla V●u monumenta co●s●las si placet Ca●t●l . Roffensi● Ecclesia , ibid. times presently ensuing the Conquest , of Ecclesiae cum Decimis , which denotes either some payment or interest of Tithes setled by Consecrations in them ; In the life of S. Cutbert Bishop of Lindisfarn writen by some Monk vnder Hen. I. it is related , that in that Autors time a great penurie of food being in Lindisfarn ( that is , in Holy Iland ) the Sea left vpon the shore LXV . fishes , wherof euery one was a sufficient draught for a yoke of Oxen ; and that a Monk came to the Lord of the adioining soile , and desired the Tenth of that abundance so sent by the hand of God . Saltem Decimas ( as the words are ) quod Legis & Prouinciae consuetudo exigebat , Ecclesiae requisiuit , sed omnibus negatis rubore simul & dolore confusus discessit . here the practice of payment is noted by Prouinciae consuetudo . and about the same time the fashion about Abingdon was to pay the Tithes to the Abbey ( due either as it was an ealder Minstre by K. Edgars Law ; or as they had been consecrated ; whereof more in the next Chapter ) by whole Hides and Acres . His diebus , saies the Chartularie of that Abbey , raro à quoquam Decima messium vt lege praecipitur in Abbatia ipsa dabatur , sed aut de Hidagio XL. manipuli quos vulgò garbas vocant , aut Decima suae culturae Acra porrigebantur . and for the time vnder Henrie the second ; an Epistle sent from Rome by Pope Alexander the third , to the Bishops of Worcester and Winchester , recites the generall institution ( which may be vnderstood for custom ) of the Church of England to be that euery Parishioner should pay his Tithe corne to his own Parish . Cum homines ( so it q q In Append ad Concil. Lat●r . part . 4. cap ▪ 4. speaks ) de Hortuna secundum generalem Ecclesiae Anglicanae institutionem , de frugibus suis nouem partibus sibi retentis Decimas Ecclesiae cuius parochiani sunt sine diminutione soluere teneantur &c. wherewith agrees the preamble of his Decretall , remaining yet in the body of the Canon r r Extr. tit . de Decimis c. 5. peruinit . Law . there he begins with Quod cum Parochiani vestri ( that is all the Parishioners within the Diocese of Canterburie ) Decimas bonorum suorum consueuerint Ecclesijs , quibus debentur , cum integritate persoluere ; nunc tam laudabili consuetudine praetermissâ quidam ex eis de lana & de faeno , & de prouentibus molendinorum & piscariarum Decimas ipsis Ecclesijs subtrahere non verentur . hereto adde that of one of his predecessors s s Ibid. c. 4. Commissum est . Hadrian the fourth to the Archbishop of Canterburie , where a Parochiall payment of Tithes seems to be spoken of as of known right . and in a composition made by the Abbot r r In Regest . Mon. Leonmin●t . sine Rading in Bibl. Cotton . & vide App. ad Concil. Lat part . 48. cap. 1. of Euesham a Iudge Delegat from Pope Honorius in M.CC.XX. it is taken cleer that certain Tithes de iure communi pertinent ad Ecclesiam de Leonminstre eo quod sitae sunt infra limites Parochiae Ecclesiae de Leonminstre , according as the Texts of the Canon Law of about that time expresly also affirme . The composition was between some of the Diocese of Hereford , and the Abbot of Wigmore . like admissions of that Law are in other instruments , in the Leger book of Reading , for the Church of Lemster . But conclude not out of them for practice , without obseruation of the examples of the next Chapter . And it appears that in 11. Hen. 3. a speciall grant was made by the King , that Tithes of Hay and Mills should be paid from thenceforth in all his demesnes lands ( that is al occupied either by his Villains or Bailifes , or by Lessees that came in after the grant ) which before then had not bin paid . Dominus Rex , saies the u u Rot Claus. 11. Hen. 3. part. 1. membr. 9 in Dorso . & Rot. Claus. 12. Hen. 3. membr. 7. in Dorso . & Claus. ●7 . Hen. 3. Dors. 16. & Dors. Claus. 20. Hen ▪ 3. membr 24. & Claus. 21. Hen. 3 membr. 10. record , de Concilio Archiepiscoporum & Episcoporum suorum concessit vt Decimae faeni & molendinorum de singulis Dominicis suis in regno suo de caetero praestentur . Et mandatum est balliuis de Corsham quod de Dominico suo de Corsham Decimas faeni Ecclesiae de Corsham dari faciant . T. R. apud Westmonast . XVIII . die Maij. and according to this , were diuers close Writs sent out in the following yeeres . Of the times afterward , wee find more certain testimonies shewing the common right of Tithes and that Parochiall ; as the Writ of Indicauit , grounded vpon the Statut of Circumspectè agatis , made in 13. Ed. 1. discouers , that in and before that time the Parochiall Tithes were most knowne reuenue of euery Church , with which agrees the ancient and present forme of the Count , in a Writ of Right of Aduowson of a Parish Church , wherein the Esplees are chiefely laid in Tithes , because the Aduowson of the whole Tithes , is no other then the Aduowson of the Church , as Iudge Stoner x x 4. Ed. 3. fol. 27. ● . sayes in Corbets case . And by the practice of the Kingdome , it became cleer Law ( as it remains also at this day ) that regularly , if no other title or discharge , to be specially pleaded or shewed in the Allegation of the Defendant , might appeare , euery Parson had a common right to the Tithes of all annuall encrease ( prediall and mixt ) accruing within the limits of his Parish , without shewing other title to them in his Libell . That appeares frequently in our Yeer-books , where the Issues , taken vpon Parochiall Limits , are reported . But wee may here not vntimely remember an occurrence in the Petitions y y In Codic● Vet Ms. apud V.C.I. Borough . Scrinior●● in Arce Lond. prafectu●●● of the Parlament of 33. Ed. 1. touching the Tithes of Cornwall , challenged by the Parsons and Vicars there . De Personis & Vicarijs ( sayes the entrie ) petentibus Decimam in Cornubia , vbi Rex soluit annuatim Episcopo Exoniensi pro Decima praedicta ; ita responsum est . Fiat sicut consueuit tempore Comitis & Regis . The Earle and the King there meant , are that great Richard , and Henry the third . But this must not be vnderstood of the Tithes generally in the Countie , although the words might import as much , as if the Bishop had receiud them all . It was doubtlesse for the Tithe of the Stannaries only . For it is true , that the Bishop of Exceter had the Tithe of the profits or rent of the Stannaries there anciently giuen and paid him . and thereof testimonie enough z z Vide R●t Fin. 4. Hen. 3. membr . 1. & C●aus . 5. Hen. 3. membr. 6. is vpon record . and to that purpose also is that Marginall Note , in the Book of those Parlaments , Stagmen Cornubiae . cleerely , that goes for the Stannum Cornubiae , as Stagminatores for those of the Works . For the time of Edward the third and Richard the second ( beside that of the Tithes of Silua caedua , or Copis Wood , whereof enough before , in the Laws that belong to it ) you may remember those complaints of Chaucers Plowman against the Clergie of his age . Their Tithing and their Offering both They clemeth it by possession , Thereof nil they none forgo , But robben men by ransome . And then , of Parish-Rectors . For the Tithing of a Ducke , Or an Apple , or an * * Egge . Aye , They make men swere vpon a Boke , Thus they foulen Christs fay . And , He woll haue Tithing and Offering , Maugre whosoeuer it grutch . And in the Freres Tale , And small Tithers they were foule yshent before the Archdeacon . To these ( for Personall Tithes ) you may adde that of Mortuaries , payable in Beasts regularly before the Statute of 21. Hen. 8. which were reputed due vpon the generall presumption of euery Defuncts negligence in payment of his Personall Tithes . The Mortuarie was therefore ( by the Canons ) to bee presented with the body at the Buriall , as a satisfaction of omission , and negligence in paying to the Church a a Lindw● tit . de consuetudine , c. statutum , lit . f. & 21. Hen. ● . cap. 6. those Personall Duties . And thence was it stiled Corse-present ; according whereto , I haue seen a Iustification in the Eire of Derby of 4. Ed. 3. to an Action of Trespas brought by Thomas of Goustill against the Parson of Whitwell , for the taking of a Horse ; in which the defendant pleades , that it was the Horse of one I. Leyer his Parishioner that died , Et que le dit Chiual ensemblement oue autres choses fust mesnes & present al Esglise come en nosme de Mortuarie deuant le corps mesme le iour &c. & il come Parson les prist & resceut auxi come custome de la terre & de Seint Esglise est &c. These shew plainly the receiued and acknowledged Parochiall right , in the practice of those times , which hath to this day continued . neither is it at all necessarie to adde more for the vniforme continuance of it . Sauing only , that where any Statute hath made a discharge , or Prescription or Custome hath setled a Modus Decimandi or certain quantitie payable , though neuer so little , for the Tithe , there , by the Laws of the Kingdome , the owner is not bound to pay other Tithe , then the Statute or Custome or Prescription binds him to . Which yet must be so vnderstood in the case of Lay men , that Custome or Prescription founded in their possessions as Lay , cannot wholly discharge the Tithe , or be de non Decimando , but may well be de modo only ; otherwise is it in the case of spiritual persons , that may by the common Law be by Prescription wholly , discharged and prescribe de non Decimando . And this is regularly cleer Law . But at what time this Parochiall and common right became first setled with vs in practice , is not so cleerly known . and though those Decretals , before cited , suppose it a thing of custom here in Henry the II. his time , yet if credit might be giuen to the report of those English Monks , which ( as wee haue before related ) referd the ordaining of Parochiall right in Tithes to the Generall Councell of Lions , held vnder Gregorie the tenth , then wee might conclude the right of it no ancienter then about the beginning of our Edward the first . But whateuer they meant , it is certaine , that some , both Synodall and secular Lawes of this Kingdome , had , before that time , ordained this right . Yet indeed it will be found , that the Practice of it here ( as also in other Countries ) was not setled till some M.CC. yeers after Christ , or , at lest , was , for many yeers before , & some after , discontinued . Which may partly be collected out of that Decretall of Pope Innocent the third , sent into this Kingdome , and dated in the Lateran ; which is before at large in the Chapter of Laws , § . XXIII . For howeuer the recitals are in those of Alexander the third ( the one speaking of Generalis institutio for Parochiall payment , which , as it may denote common custome , so also may be vnderstood for some Law of the Kingdome , as that of Edgars , Knouts , the Confessors , or some other before related ; the other , of Consueuerint Ecclesijs quibus debentur , which doth not of necessitie include a generall practice of Parochiall payment , but may as well denote the dutie that comes from arbitrarie Consecrations ; of which , in the next Chapter ) it is most certain , that before about the yeer M.CC. after Christ , that is , about the time of King Iohn , it was most commonly practised by the Laitie , to make arbitrarie Consecrations of the Tithes of their possessions to what Monasterie or Church they would , sometimes giuing halfe , sometimes a third part , and at their pleasure all , in perpetuall right , or otherwise , according to the nature of those Consecrations in other Countries ; of which , enough is before related . Neither doth expresse testimonie hereof want in that Decretall of Innocent the third , made against these kind of arbitrarie Consecrations . Multi ( saith hee ) in Diocesi tua ( that is the Prouince of Canterburie ) Decimas suas pro sua distribuunt voluntate . Neither may you vnderstand it , as if it had bin done by the waiward opposition of some only against the receiud and allowd Laws of the Kingdome . For notwithstanding all those Ordinances , both Secular and Synodall , anciently here made for due payment , it is cleer , that in the time before about that Innocent , it was not only vsuall , in fact , for Lay men to conuey the right of their Tithes , as Rents-charge , or the like , to what Church or Monasterie they made choice of , but by the course and practice of the Law also of that time ( both Common and Canon , as it was here in vse ) such conueyances were cleerly good , and what was through them so acquired , was continually , and is to this day ( except some particulars , which either the Popes autoritie of later time , or new Compositions or Grants , or the like , haue altered ) enioyed by the Churches , that , yet remaining , had portions so anciently giuen them , or by the King or his Grantees of impropriated Tithes ; very many of which , had their chiefe originall from those arbitrarie Consecrations ( which you may well call Appropriations of Tithes ) and not from the appropriating only of Parish Churches , as some out of grosse ignorance , with too much confidence , deliuer . But thereof you may see more in the examples of the next Chapter . where , for most apparant proofe of the practice of arbitrarie Consecrations in those times , Moniments enough are collected . This arbitrarie disposition , vsed by the Laitie as well de iure ( as the Positiue Law , then receiued and practiced , was ) as de facto , is that which Wicclef rememberd in his complaint to the King and Parlament vnder Richard the second . His words are : A Lord God , b b Why is this reason , or is this reason . where this be reason , to constrain the poor people to find a worldly Priest , sometime vnable both of life and cunning , in pompe and pride , couetise and enuie , glottonie , drunkennesse and lecherie , in simonie and heresie , with fat Horse , and iolly and gay Saddles and Bridles , ringing by the way , and himselfe in costly Clothes and Pelure , and to suffer their wiues and children , and their poor neighbours , perish for hunger , thirst , and cold , and other mischiefes of the world . A Lord Iesu Christ , sith within few yeeres , men payed their Tithes and Offerings at their own will free to good men , and able to great worship of God , to profit and fairenesse of holy Church fighting in earth . c c Why is it lawfull . Where it were lawfull and needfull , that a worldly Priest should destroy this holy and approued custome , constraining men to leaue this freedome , turning Tithes and Offerings into wicked vses . But what hee calls a few yeers , will fall out to be about CC. for hee wrote about the yeer M.CCC.XC . With him well agrees some passages in our Yeere-bookes of the times before him . As in 7. Ed. 3. fol. 5. a. Parning truly affirmes , that in auncien temps deuant vn Constitution de nouelle fait per le Pape , vn Patron d'un Esglise puit granter Dismes , deins mesme le Paroche a vn altre Paroche . And Herle there in his answer seemes to admit it cleere . So also ( touching others as well as Patrons ) Lodlow , Iudge of Assise in 44. Ed. 3. fol. 5. b. En auncien temps chescun home purroit graunter les Dismes de sa terre a quel Esglise il voudroit . Quod verum est , sayes Iudge Brooke , in abridging the case . But what new Constitution of the Pope is meant there by Parning ? some later d d Vide 10. Hen. 7. fo● . 18. a. 7. Ed 6. Dyer fol 84. b. & Coke Report 2. fol. 44. b. Books tells vs , that from the Councell of Lateran the first alteration of that course of arbitrarie disposition came . But plainely , no Councell of Lateran hath any Canon that alterd the Law in it , except that vnder Alexander the third , before spoken of in the end of the sixt Chapter , may haue place here : which , indeed , the Canonists will not endure , vnlesse you restraine it only to ancient Feudall Tithes . And they suppose , euerie man might haue arbitrarily conueyed , before that Councell , his Feudall Tithes to what Church he would . And so expressely sayes our e e Tit de locat & conducto● . licet . verb. portiones . Lindwood . Ante illud Concilium benè potuerunt Laici Decimas in feudum retinere & eas alteri Ecclesiae vel Monasterio dare ; non tamen post tempus dicti Concilij . But if those which with vs talk here of the Councell of Lateran , meane that vnder Alexvnder the third , and apply it generally to arbitrarie Consecrations of new Tithes , not feudall , I doubt they are much neerer the true meaning of that Councell then any of the Canonists . especially while they speake of this Kingdome . for arbitrarie Consecrations before about the time of that Councell are found here infinite , as presently shall be shewd . But of ancient feudall Tithes ( howeuer they were common in other States ) scarce any mention at all or tast is with vs . but thereof more in the XIII . Chapter . And , it may be , that when , from the Canonists , some of our Lawiers had learned that feudall Tithes might haue been conueied before that Councell arbitrarily by the owner ; and saw withall that scarce any signe was of feupall Tithes in this Kingdom , yet an abundance of old arbitrarie Consecrations , the vse whereof ceased about the time of the Councell ; in the words of it no regard or mention being had of feudall but only Tithes in generall ; they concluded ( who sees enough why they might not ? ) that before that Councell euery man might haue arbitrarily disposed of his tithes . that is such tithes as were not formerly setled by any ciuill Title . But if this will not be allowd for the Law of change of those arbitarie conueiances ; why may it not first be that Parning by his Constitution de nouelle fait per le Pape , meant that f f Quam vide supr. cap. 8. §. 23. of Pope Innocent the third , sent to the Archbishop of Canterburie in King Iohns time ( and perhaps it was soon after receiud into the Prouince of York either by imitation or through the power Legatin , which the Archbishop of Canterburie commonly exercised through the whole Kingdome ) to command a Parochiall payment ? For also by the name of a Constitution newly made by the Pope , some such thing rather then a Canon of a generall Councell , is perhaps denoted . And then why might it not happen that the Decretal of Innocent the third , bearing date in the Church of Lateran should be thence denominated , and that afterward those which truly vnderstanding it , called it therefore a Lateran Constitution , gaue cause of mistaking to others that took it for a Constitution of a generall Councell of Lateran ? especially too because it was about the time of the generall Councell of Lateran ( held vnder the same Pope that sent it ) of which more notice hath been taken in our Law then of any other of that name . and indeed he that affirms that before the Councell of Lateran Lay owners might haue disposed their Tithes , cuicunque Ecclesiae secundum meliorem deuotionem , as Dyers words are , speaks true enough , if his words may receiue this easie interpretation . that is , that till about that Councell of Lateran they might haue done so ; not that the Councell vnder Pope Innocent restraind it , but that either the next Councell of Lateran before , that is vnder Alexand. the III. or the Pope by a Constitution , receiued here from Rome and dated in the Church of Lateran , about the time of that Councel of the yeer M.CC.XV. ordaind the contrarie . so that in this last way the name of the Councell may be a note only of the time about which it was restraind , not of the autoritie whence it was forbidden . Perhaps those Canons of Pluralities , of Exemptions , of the three orders , and some such more which we receiud from that Councell vnder Innocent , were brought into England at once with this Decretall Epistle ; and if so , then also it was no more strange to haue the Decretall afterward titled by the name of a Constitution 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 them . 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 .

The Chartularie of the Abbey of a a In bibl. Cottoniana . 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 b b L. Militis . 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 Mo●nais , & fratre eius Hugone & Roberto filio Aldulfi de Be●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 Hen●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 * * In Biblioth. Cotton . 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 , An. D● . 1250. 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 , & * * Hin●sey . 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 * * In Biblioth. Cotton . 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 that Constitution of Lateran before spoken of . and remember that this is of York Prouince , in which perhaps the Decretall sent to Canterburie had not such effect till somwhat after , as is before touched .

Out of the Chartularie * * In sapius dict. Bibliotheca . of the Monasterie of S. Andrews of Rochester .

Henrie the first giues to the Monks there diuers Churches with Tithes , Et dimidiam Decimam meam de Tarentford in annona tantum , & totam Decimam meam de Strodes , & totam decimam meam de Chealches , & hoc facio pro anima Patris mei & Matris meae & pro anima mea & vxoris meae , T. Eudone dapifero & Haymone dapifero apud Rouecestriam . Other Tithes of whole Mannors he gaue also to them , Et decimam * * Hae n. captae Regis sunt . Prarogat . Reg. cap. 11. &c. Balenarum quae captae fuerint in Episcopatu Roffensi . And about the same time Ralf Archbishop of Canterburie by Charter gaue them Totam Decimam de meo Dominico & omnes Decimas omnium villa norum qui habent terram in Dune , necnon & aliorum omnium , quorum decimae meo tempore ad quisitae sunt vel quocunque tempore ad quirentur . Many other Charters are in it to like purpose , as : Ego Willielmus de Albine●o Pincerna Regis concedo Deo & Sancto Andreae de Rouecestria & Monachis eiusdem loci totam meam Decimam de villa mea quae vocatur Elham in omnibus rebus scilicet de blado & de pasnagio , & de molendinis , & de pecudibus , & de lana , & de caseis &c. & medietatem Decimae de Bilsintune in omnibus rebus pro anima Domini mei Willielmi Regis & Henrici Regis atque pro anima mea & patris mei & matris meae & vxoris meae & fratris mei Nigelli , & nepotis mei Humfridi & aliorum parentum meorum viuorum atque mortuorum . Testibus militibus meis , Nigello de Wast &c. That d' Aubigny was Earle of Chichester or Sussex or Arundel ( for all these titles he vsed ) and diuers Confirmations were afterward by his Successors , of this Grant . and K. Henrie the first also confirmed this of the first William . and the Prior and Couent not long after made a Lease of that their Tithe in Bilsintune to one Gilebert de Perieres for IX . yeers , reseruing half a Mark rent payable at Easter . and this was confirmed by the Archbishop of Canterburie .

Roger Bigot Earle of Norfolk vnder Richard the first , and William his yonger sonne , had giuen diuers reuenues to the Priorie , and among them occur the Church of Waltune , and then by it selfe tota Decimae villae Waltune de omni re & tota Decima molendinorum ad eandem villam pertinentium . this is related in the confirmation of Hugh Bigot Earle of Norfolk and sonne to Roger . and some other Churches were granted , but no Tithes mentioned with them . and afterward the first Charter of Rogers grant is in the same Volumè at large . The Tithes of Buggeley were giuen to the Priorie by the Ancestors of Osbert de Cappaualle , and charged with three shillings yeerly rent , paiable to the Monks of Colchester . this instrument there remaining shews it . Notum sit omnibus ( as the words are ) quod ego Osbertus de Cappaualle & Adeliza vxor mea , & Humfridus priuignus meus & haeres patris sui , accepta societate Roffensium Monachorum pro amore Dei & Sancti Andreae , & salute animae nostrae , & omnium parentum nostrorum , concessimus eis omnem Decimam de Bugeleia , sicut eam antecessores nostri in eleëmosynam dederunt , firmitèr & stabilitèr , & quietè perpetuò tenendam , reddituris inde annuatim Monachis de Colecestra tres solidos quamdiù eandem tenent & habere poterunt . & hanc concessionem nostram praesenti sigillo confirmauimus &c. this was afterward confirmd by Philip of Leiburn and his wife Anne , and Robert of Leiburn Tenants of Buggeley .

The Tithe of Gedding was thus granted by the Ancestors of Payn Shrife of Surrey . Notum sit omnibus praesentibus atque futurit quod ego Pagan Vicecomes Surregiae , do & concedo Decimam de Geddinges quam antecessores mei dederunt Deo & Ecclesiae S. Andreae de Rouecestria pro anima patris mei & matris meae , & pro me & vxore mea . & mihi concessum est ab eadem Ecclesia quod post obitum nostrum singulis annis anniuersarium mei & vxoris meae in perpetuum persoluetur .

The Tithe of Stalefield is granted to the Monks by D. de Monei , and sic tenendam sicut tenuerunt de antecessoribus meis .

In 8. Hen. 1. halfe the Tithe of Halegele was giuen to them by Henrie de Port , the other halfe being before conueid to them — Decimam totam de Halegele , de qua ( so speaks the Charter ) praedictus Sanctus ( that is S. Andrew ) dimidiam partem habuerat , caeteram verò pro amore Radulphi Episcopi , vt praedictum est , supra taxato tempore donaui . these others also follow .

Walchelinus Maminot omnibus Sanctae Matris ▪ Ecclesiae filijs tam posteris quam praesentibus salutem . Notum vobis facio quod Decimam de Dominio de Bertreia quam pater meus pro salute animae suae & suorum Ecclesiae Roffensi & Monachis ibidem Deo seruientibus in perpetuam eleëmosynam dedit , me similiter pro redemptione delictorum meorum & vxoris meae , & haeredum meorum concessisse & praesenti scripto confirmasse . Quod si aliquid de praedicto Dominio in Rusticanam seruitutem translatum est vel fuerit , decima tamen secundum primam donationem integra permaneat . Teste Rodberto de Binham Presbytero &c.

Omnibus Christi fidelibus ad quos praesens scriptum peruenerit , Willielmus de Lamualai aeternam in Domino salutem . Nouerit vniuersitas vestra quod ego Willielmus de Lamualai diuinae pietatis intuitu pro salute animae meae & vxoris meae , & liberorum meorum , & antecessorum meorum & successorum , concessi & hac praesenti Carta mea confirmaui Deo & Ecclesiae S. Andreae & Monachis Roffensibus in puram & perpetuam eleëmosynam , medietatem totius Decimae de Dominio meo de Henherst quam antecessores mei eis dederunt & concesserunt ; tenendam & habendam benè & in pace liberè & quietè de me , & successoribus meis , & per manus eleëmosynarij eorum in vsus pauperum distribuendam : ideoque volo & firmiter praecipio vt praedicti Monachi habeant &c.

Omnibus sanctae Matris Ecclesiae filijs ad quos praesens scriptum peruenerit , Adam Pincerna aeternam in Domino salutem . Nouerit vniuersitas vestra , quod ego Adam Pincerna cognitâ & compertâ dilectione quam antecessores mei habuerunt erga Ecclesiam S. Andreae Roffensis & Monachos in eadem Ecclesia Deo seruientis , Decimam de Dominico Campo meo in Culinges qui vocatur Westbroc quam Radulfus Pincerna eis dedit intuitu Dei , praedicti Ecclesiae , & S. Andreae , praefatis Monachis in puram & perpetuam eleëmosynam concessi & 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 omnibus 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 me● 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 * * In iam memoraeta Bibliotheca . 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 quàm 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 * * Jbidem . 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 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 * * In Biblioth. Cotton . of the Abbots of S. Augustines of Canterburie , written by Thomas Sprot * * Balaeo Thomas Spot dictus est . , 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-lands , by some * * Regist. Monasterij S. Martini de Bello in Arthiuis 〈◊〉 quae ad Fo●●m a Regio●um prouentuum increme●to dictum spectant . 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 quàm 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 * * In sap● dict. Biblioth. 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 * * Ibidem . 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 * * Videsis Cart. Antiq. B. B. 14. & 15. &c. in 〈◊〉 Lond. & G. 21. in Dorso . 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 Roubyrie , & de Wulloure , & volo ac praecipio quatenus supradictus Abbas & Monachi de Tinemuda , benè & integrè habeant illas ac liberè teneant in mea pace , & quod nullus eis inde aliquid auferat super meam forisfacturam . T. Nigello de Alben . apud Brantonam .

By the same King . H. Rex Angliae Ranulpho Episcopo Dunelmensi , & Alfrico & Luilia Vicecomitibus salutem . Sciatis me concessisse & dedisse Deo , & Sanctae Mariae , & S. Oswino , & Abbati de S. Albano Decimas quas Hubertus de Lauall ante dederat Monachis de Tinemuda , scilicet de Setona & Caluerdona , & de Discingtona , & volo ac praecipio vt benè & integrè in mea pace teneant eas , & quod nullus super eis iniuriam faciat . T. Nigello de Alben . apud Wintoniam . This was either a confirmation of a consecration made by De Lauall , or els a gift of Tithes out of the same lands , by the King , after some escheat or other new title accrued to the Crown . The Church or Priorie of Tinemuth was giuen to the Abbey of S. Albons by William the second , after Robert de Mowbray had forfeited the Patronage , among the rest of his estate , by treason .

Henrie the second confirms to the Monks of Tinemuth all their Churches appropriated , and Decimas de Corebriga , & Newburna , & de Wertewrtha , & de Rodbiria , & de Botala & Wlonera , & de Wylum & Ditentona , & de Caluerduna , & de Alswicha , & de Anibella , & Decimas de Dominio de Herth , & de Setona , & de Tunestal , & de Daltona , & de Mideltona , & de Ouinthuna . All which were , without Churches , formerly and in perpetuall right consecrated by the owners deuotions . the like often occurres in confirmations made to them by the succeeding Kings .

In 7. Rich. 1. Hugh of Pudsey Bishop of Durham , confirms to the Monks of Tinemuth , Omnes Decimas & obuentiones tam in blado quam in alijs decimationibus tam de dominijs Regis quam Baronum , siue aliorum fidelium & propriarum villarum , & dominiorum tam in Northumbria quam in Haliwarchfolk ( that is in the Territorie of the Bishoprique of Durham ) ita plenariè & liberè possidendas , sicut eas pleniùs & meliùs habuerunt vel habere debuerunt , tempore nostro vel antecessorum nostrorum , & sicut donatorum Cartae testantur . And some other Churches of such generall ratification they haue from the Archbishop of York .

In the instrument of foundation of the Cell of Belveir , made between Abbot Paul and Robert of Belvedeir or Belveir , or de pulchro visu , that Robert grants it the Tithes of all Lands that he should hereafter purchase . Omnium terrarum quascunque per Dei adiutorium & concessum Regis in suum dominium ad quirere , quoquo modo posset , dedit & concessit Decimas eidem Ecclesiae sanctae Mariae ; that is to the Cell ; which was at first purposed for a Parish Church , but by aduice of Archbishop Lanfrank was conuerted into a Cell . Dedit etiam & concessit Decimas Vinearum suarum omnium & sedem molendini in proxima aqua , & concessit Decimas decem villarum ad praesens , ex suo videlicet dominio annonae , omnium que rerum de quibus Decima danda est & datur , semota quidem tertia parte Presbyteri villae . The names of the Mannors or Towns of which he thus gaue two parts of the Tithes , are , Horton , Fraton , Saperton , Rishendon , Stoches , Wiberteston , Segeton , Medburne , Wiwell , and Wlstanestorp .

Robert of Piriton gaue to the Abbey , the Church of Saint Marie that he had built in Piriton ; and endowd it with gift of all the Tithe , eiusdem villae sui dominij & omnium suorum hominum ibi manentium omnium illarum rerum de quibus recte Decima datur ; And in Nicenton he gaue all the Tithe of his demesnes only . In Cauendeis & Hocaton & Aperston , Decimam dominij sui , excepta cantaria .

Ralf of Limesi gaue to the Church of Saint Marie also that he built in Piriton , Decimam suam in eadem villa &c. & Decimas hominum eiusdem villae ipsis libentèr concedentibus . Apud Nicentonam dedit duas partes Decimae suae &c. apud Hulferlea dedit similiter duas partes Decimae suae & apud Eprestunam similiter & apud Cauendeis & Hocktentunam . And these endowments are there called beneficium Ecclesiae . These and other Tithes so seuerally granted are confirmed to the Abbey by Alan de Limsey , Gerard de Limsey and others of the posteritie of Ralf . The Tithe of the Agistment of Bibesworth-wood , also was granted by Ralf , and of other Agistments , with prouision also that if the woods were assarted or improued by culture , the Abbey should haue Tithe in kind of the improuements . The whole Deeds o● conueiance are there at large . and a Bull of confirmation was long afterward obtaind from Pope Alexander ( as I thinke ) the fourth .

W. Peuerell giues to the Monks of Hatfield Decimam denariorum meorum de Meldona , & rectam Decimam de Dona de omnibus rebus de quibus rectè datur Decima . And then addes Churches of other places cum Decimis . that was in Henrie the first 's time .

Out of Matthew Paris * * In Biblioth. Cotton . his liues of the Abbots of S. Albons .

In the time of Abbot Paul , vnder Henrie the first . Data est , saith he , huic Ecclesiae Decima de Cundella , & Decima de Rigentona , & Decima de Roniges , & de Brethelham , & de Herlaga , & de Thamiseford , & de Cliftona , & Decimae quatuor villarum istarum s. Hunteslege , Gertheham , & de Brunfield , & Redlàng . Et duae partes Decimae villarum istarum s. Sedintonae & Boctonae . Et tota Decima de Trumpinton , duae partes Decimae de Wacerleia . Porro in Hertfordsira duae partes Decimae de Esenden & Beiford , & de Hertfordingbirie . and other like .

Out of the Chartularie * * In eadem Biblioth. of the Priorie of Boxgraue in Sussex .

About the yeer M.C.LXXX. a confirmation is made by William S. Iohn , of what had been formerly granted to the Priorie by his Ancestors ; and among other possessions , occurres Decima de Chienore , and Decima omnium nemorum suorum de honore Halnaci in paissone & venditione , & alijs exitibus . And this William for the maintenance of a fourteenth Monk ( there being but thirteen by the first foundation ) which he added , gaue , Decimam gabulorum suorum de Estretintona , and other places . & ex dono Petri de Hampton decima molendini sui , is related to be theirs .

The same William in another Charter grants , In subscriptis Ecclesijs scilicet Walborton , Barnaham , Hantoneta , Honestum , Mundeham , duas portiones de terris & decimis omnibus quae ad ipsas pertinent ( for the third parts were assigned by him , and the Bishop , and the Prior to Vicarages ) & in omnibus praescriptis Ecclesijs aduocationem liberam & praesentationem Presbyterorum qui in sua persona in illis Ecclesijs Deo assiduè deseruiant &c. Et reddidi Decimam Gabulorum de Stretinton , 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 * * In Biblioth. Co●ton . 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

Ego Robertus Waste concessi Deo & S. Mariae Becci & S. Neoto Confessori & Ecclesiae eius de Ernelesberia & Monachis qui inibi de seruiunt , duas partes totius Decimae meae de Wereslai in omni videlicet substantia mea , in segetibus & animalibus vnde Decima dari debet , & hoc fieri praecipuè pro anima Soeni de Essessa & pro salute domini mei Roberti filij praedicti Soeni qui mihi hanc terram dedit & pro salute Gonnor vxoris suae & pro salute mea & vxoris meae & Willielmi filij Gerei patris sui & pro anima patris mei & matris meae & fratris mei & omnium amicorum & antecessorum meorum &c.

This was afterward confirmed by the heires of Robert Waste . but in the Confirmations it appears , that Torold Waste had also granted it before Robert . Torold , I thinke , was Roberts father , and had granted it about Henrie the second his time .

In the Titles of the Deeds there , is Carta Roberti de Ferrers de Decimis de Benewell . but the Charter it selfe is wanting .

Out of the Chartularie of the * * In eadem Biblioth. Hospitall of S. Leonards in Yorkshire .

Stephanus Rex Angliae Archiepiscopo Eborum , Iusticiarijs , Vicecomiti , Baronibus , ministris & omnibus fidelibus suis Eboracshire , salutem . Sciatis quia concessi & dedi in perpetuam Eleemosynam pro anima Regi● Henrici 〈◊〉 mei , & pro salute animae meae , & Matildis Reginae vxoris meae , & Eustachij filij mei , & aliorum puerorum meorum Deo & Hospitali Sancti Petri Eborum omnem Decimationem de Theloneo villae de Thicahilla & omnem Decimationem Molendinorum eiusdem villae & praeter haec V. bouatas terrae in Wlnethuat , & vnam bouatam in campo de Bagalaia . Quare volo & firmitèr praecipio quod benè & in pace & liberè & quietè & honorificè hanc Eleemosynam teneant , quicunque honorem de Thicahilla habeat , sicut Eleemosynam Deo & pauperibus Christi in perpetuum datam . Teste Henrico de Essex & Adam de Belin & Willielmo de Clarafai apud S. Edmundum . But in the Bulls of Confirmation from diuers Popes made to the Hospitall , no mention is of these Tithes .

Out of a Ms. of Constitutions , * * In Biblioth. a●toris . Charters , and Writs , touching the Prouince and Church of York .

Ael Dei gratia Carleolensis Episcopus . Omnibus sanctae matris Ecclesiae fidelibus in Christo salutem , & orationem : Notum sit omnibus & videntibus & audientibus has literas me dedisse & concessisse Decanatui Eborum & Willielmo Decano & omnibus eius in Decanatu successoribus Decimas Molendinorum de Pokelinton & de dominio meo & de tota socha . Sic enim prouisum fuit & constitutum à Rege Henrico . Constitutum autem & confirmatum est de omni possessione debere Decimas dari tam in Molendinis quam in rebus alijs , ideoque autoritate Apostolicâ & nostrâ per excommunicationis sententiam prohibemus ne aliquis has Decimas Molendinorum auferre & diminuere praesumat . Regia tantùm dignitate excepta , in quam nullam dare praesumimus sententiam . Valete . This Ael is Aethelulph , the first Bishop of Carleol , Confessor to Henrie the first , who first made it a Bishoprique in M.C.XXXII .

Out of old Charters remaining in the hands of that Noble Knight Sir Robert Cotton .

Suss●● . R. Dei gratia Cicestrensis Episcopus G. Decano caeterisque fidelibus Sanctae Ecclesiae salutem & benedictionem . Sciatis me concessisse Brunkino de Hasting dare Decimam suam totam de dominio suo de terra quam ipse tenet in Marisco de Penensel Deo & Ecclesiae sancti Martini de Bello ( to the Abbey of Battell ) pro anima sua & omnium parentum suorum salute . Concedo etiam hanc Decimam & omnes alias Decimas quas ipsi Monachi de Bello habent in Parochia mea quatenùs eas liberè & quietè teneant & possideant imperpetuum absque omni molestia ; videlicet nominatìm Decimam Vulwini de Henam , Decimam Sewini de Glutintune , Decimam Lewini de Badeherste , Decimam quam Parochiani Ecclesiae Sanctae Mariae de Bello dant de Nedrefelde , Decimam quam Ailricus de Ora dat , Decimam de Helinfalde quam ipsi Parochiani Sanctae Mariae de Bello dant , Decimam de Boccholte , & Decimam de Bromham quam Ailwi & Aethelida dederunt cum filio suo Benedicto quando effectus est Monachus absque omni calumnia in perpetuum tenendam . Similitèr etiam & omnes Ecclesias & Decimas quae eidem Ecclesiae datae sunt , vel quas eadem Ecclesia & Monachi tenent in Parochia mea vt eas liberè & quietè teneant Episcopali autoritate confirmo . Vnde vobis & omnibus successoribus vestris & omnibus Christi fidelibus me eis inde aliquam molestiam , vi , aut venditione , vel qualibet occasione faciatis , super anathematis vinculo defendo . T. Henrico Archidiacono , Rad. Capellano , Calone Cantore . Neither the whole name of the Bishop , nor the date , are found in the Instrument . But it appears by the hand , and that R. designing the name , to be of the time of Henrie the first , and made by Ralf then Bishop of Chichester .

In a Deed of William Earle of Warren and Surry , Sussex . made in the time of King Stephen to the Priorie of Lewes in Sussex , after some immunities giuen them in all Lands which they held of his fee , this Grant follows : Dono etiam illis de omnibus dominijs meis plenariam Decimam , videlicet , de Blado , de Foeno , de Agnis , de Velleribus , de Caseis , & plenariam Decimam denariorum de omnibus redditibus meis de Anglia . Quamuis autem ex illis denarijs in procuratione mea siue aliorum quorumlibet expendatur , ex illis tamen plenaria supradictis Monachis reddatur Decima . Et si dominium meum aut redditus mei creuerint , eotenùs crescat & Decima Monachorum . Haec supradicta ego pro salute animae meae & pro animabus antecessorum meorum praedictis Monachis concessi & hac mea praesenti Carta confirmaui quando feci dedicari Ecclesiam Sancti Pancratij ( that is , the Priorie of Lewes ) & de Decima denariorum de omnibus redditibus meis de Anglia dotaui ipsam Ecclesiam , & inde seisiui eam per capillos capitis mei & fratris mei Radulphi de Warenna , quos abscidit cum cultello de capitibus nostris ante altare Henricus Episcopus Wintoniensis . Teste Teobaldo Archiepiscopo Cantuariensi , Henrico Episcopo Wintoniensi , Rodberto Episcopo Bath . Ascelino Episcopo Rouecestr . qui eandem Ecclesiam dedicauerunt , & Teste Edwardo Abbate Rading , Waltero Abbate de Bello , Waltero Priore Cantuariensi , W ... Archidiacono Cant. Richardo Decano Cicestr . Rodberto Archidiacono , Iohanne de Pagham , Willielmo Comite Cicestr . Rad. de Warrenna , Reg. de War . Hugone de Petrep . Radulpho de Pleiz , Rodberto de Wesneuall , Rodberto de Frieuill , Rodberto de Petrep . 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 a a Videsis App. ad Concil. Lateran . part . 47. cap. 5. 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 b b Jngulph . hist. fol. 512. b. 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 c c De Mirat . S. Benedicti lib. 1. cah . 14. 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 : d d In thesauro Cottoniano . 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 existimus . 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 , salu●em & benedictionem . Notum sit vobis quod Siwardu● 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 Capellanus , Richerius , Vitalis de Wicford , Gozo Clericus de Micheam , Oswardus Monetarius , Walchelinus . This was in the time of Henrie the first , William Giffard being then Bishop of Winchester . the seale remains to it .

Willielmo Dei gratia Norwicensi Episcopo , Archidiaconisque suis de Sudfolc , omnibusque sanctae Matris Ecclesiae filijs , Galfridu● filius Roberti & vxor sua Anneis in Domino salutem . sciatis nos concessisse Ecclesiae Apostolorum Petri & Pauli de Gipeswico , & Canonicis Regularibus ibidem Deo seruientibus in perpetuâ ●lcëmosynâ Decimam molendini de Hagenford , scilicet VIII . solidos annu●●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 the Priorie of Eye in Suffolk . It was in the hands of that Learned and Honorable the L. William Howard . I had the vse of it through the courtesie of that Noble Knight Sr. Robert Cotton .

Quoniam , diuinâ misericordiâ prouidente , cognouimus esse dispositum , & longe lateque praedicante Ecclesia , sonat omnium auribus divulgatum , Quod eleëmosynarum largitione possunt absolui vincula peccatorum , & adquiri coelestium praemia gaudiorum : Ego ✚ Stephanus Dei gratia Anglorum Rex , partem habere volens cum illis qui foelici commercio coelestia pro terrenis commutant , Dei amore compunctus ; & pro salute animae meae ✚ & patris mei , matrisque meae , & omnium parentum meorum ✚ & antecessorum meorum Regum ✚ Willielmi scilicet Regis Aui mei ✚ , & Willielmi Regis Avunculi mei ✚ & Henrici Regis Avunculi mei , ✚ & Rotberti Malet , & con●ilio Baronum meorum , concedo Deo & Ecclesiae Sancti Petri de Eia & Monachis ibidem in Deo seruitio congregatis , vt habeant omnes res suas quietas & liberas ab omni exactione , & teneant eas in Terris , in Decimis , in Ecclesijs , in omnibus possessionibus sicut vnquam melius & honorabilius tenuerunt tempore Rotberti Malet , & tempore meo antequam Rex essem ; cum Soca vel Saca , & Tol & Tiem & infanganathief . ✚ Praecipio etiam vt teneant de quocunque tenebant ( & non mittantur in placitum ) sicut tenebant die quam Henricus Rex fuit vivus & mortuus , & die qua ad Regni Coronam perueni . Sit etiam ipsa Ecclesia in meo Dominio cum rebus subscriptis . Concedo Ecclesiam de Holesse , de Dineuet . de Bordenis , de Suttun , de Stadebroc , de Wingefel ; Et mercatum & theloneum de Oreford ; praeter nauium quae pertinent ad firmam de Donerou * * Fortè propter . ꝓꝑ ✚ XXX . fol. Ecclesiam ipsam vbi Monachi habitant cum terris suis ; Decimam de Eia , Duodecim solidos de foro , vnam feriam per quatuor dies ad festum Sancti Petri Kalendas Augusti , nullusque in feria habeat potestatem nisi Monachi & homines eorum , & omnes illuc venientes & indè redeuntes habeant meam firmam pacem , nullusque eos in aliquo disturbet super X. libras forisfacturae . ✚ Habeat etiam Ecclesia eandem libertatem de Episcopo , de Archidiacono , de Decano , quam habuit à tempore Regis Eadwardi , & à tempore Eadrici de Lexefelda & Regis H. ✚ Sitque de Priore ponendo & remouendo sicut constitutum fuit in tempore Rotberti Malet . ✚ Habeat etiam omnes Decimas de Manerijs sicut habuit in tempore Rotberti Malet , scilicet de Eia , Stedebroc , Radingefeldia , Dineuet . Tatinget . Bedingham , Keleton , Olesleia , Leest . Donewic , Lessefeld , Bergebi , Willeburn , Seggebroc . Colum. Caue . ✚ Concedo etiam Ecclesias has , De Beweseia , Seggebroc , Bergebi , & Ecclesias de Donewico , quae factae sunt & faciendae . De Bedingeham , Lessefeld & Presbyterum eiusdem villae , & de omnibus meis siluis Decimam pasnagij . Piscariam etiam de Wells . Atque totam Bedefeldiam , Storas , Pelecoc , Frasingefeld . Hoc etiam terrae quod habebant tempore Rotberti Malet . in Bedingeham , & omnia inconcussè teneant . Concedo etiam Ecclesiam Sancti Botulfi de Ica cum appendicijs suis quam dedit Willielmus de Rouill , & Beatrix vxor eius , & terram Godem . de Iakl . & ea quae habebant in Donewico eodem Rotberto viuente . ✚ . Horum igitur supradictorum socam & sacam in omnibus concedo , & nominatim in Donewico & Decimas meorum hominum ; Walteri scilicet Arbalestarij , & Ecclesiam Sancti MARGARETAE de Halgestowe , & terram quae ei pertinet . Decimam quoque Rogeri filij Walteri de Huntingefeld , & de Benges , Ricardi Houeell de Wiuerdest , de Geslingesh , Richingehal , Reindun ; Decimam Hugonis de Aluilario in Brom , & in Selfhangers , & hoc quod Alwinus Presbyter tenet de eo in Beria . Decimam Willielmi de Rouilla in Clakestorp , & in Glemeham , & de XXX . acris quas tenet Willielmus Bole de feudo Comitis Brittanniae ; Decimam Willielmi Gulafri vnchennel ; Decimam Petri de Bedingefeld ; Decimam de Pleeford , & Ecclesiam villae & Aluricum Delfen cum sua terra ; Decimam Hernaldi filij Regeri in Witingeham & Ascheton ; Terram Osberti de Crateuill in Acolt , & hoc quod Benedictus Capellanus tenebat de Rotberto Malato in Decimis , & rebus alijs ; Decimam Will . De pesenhale ; Decimam Iordani de Wilebehe ; V. fol De pentenhahe , quos Will . de Rouilla dedit ; III. solidatas quas tenet Iohannes filius Rotberti ; Terram Alwini filij Wulstan in Bedefeld ; VII . solidatas quas tenet Wulmer Presbyter de Codenham ; Decimam Hunfridi filij Vnuei . Decimam Radulfi Grossi de Gretinges . XII . solid . de Aquitantia in Aldefen ; Terram Wulmari in Akesleia ; Et , praeter haec supradicta , concedo eis quod Decima eorum de Donewico crescat quoque anno in denar . & hareng . & in omnibus alijs rebus secundum hoc quod redditus mei ibidem crescent . Teste Nig. Eliensi Episcopo , & Roger. Cancellar. Henrico nepote Regis Stephani ; Galer . Com. de Mell. Rotberto filio Rich. Will . Mart. Adam De Beln . Iohan. Maresc . Hubert . Demunc . Iohan. filio Rotb . Vicecom. Gauffred fil . Walt . Will . fil . Rog. Heru . de Glauill . Rich. de Alenc . Roger de Hosa . Anno ab Incarnatione Domini M.C.XXXVII . apud EIA secundo Anno regni mei , in tempore Ebrardi Episcopi Norwicensis , & Gausleni Prioris Eie . Ipse Rex subscripsit . Eustachius filius eius subscripsit . Matildis Regina subscripsit . Williemus Cantuariensis Archiepiscopus subscripsit . Turstanus Eboracensis Archiepiscopus subscripsit . Alexander Lincoln . Episcop. subscripsit . Henricus Winton Episcopus subscripsit . Iohannes Roffensis Episcopus subscripsit . Eurardus Norwicensis Episcopus Simo Wigornens . Episcopo subscripserunt . Rotbert . Herefordens . Episcopus & Rotbert . Badonens . Episcopus , & Gislebertus Lundonens . Episcopus subscripserunt . Quicunque aliquid de his quae in hac Carta continentur auferre aut minuere , aut disturbare scientèr voluerint , autoritate Domini omnipotentis Patris & Filij & Spiritus Sancti & Sanctorum Apostolorum & omnium Sanctorum sit excommunicatus , Anathematizatus , & a consortio Domini & liminibus Sanctae Ecclesiae sequestratus donec resipiscat & Regiae potestati XXX . libras auri persoluat : Fiat . Fiat . Fiat : Amen . Amen . Amen . It is the fairest hand and largest Charter that euer I saw of that age , and the Seale is yet hanging to it . And in a Roll * * In Biblioth. Cotton . of the Benefactors of that Monasterie , verie manie are mentioned for their Donors of Tithes , or two parts , or third parts , of diuers Mannors .

Out of the Cartae antiquae among the Records of the Tower of London .

When King Henrie the second , and Pope Alexander the third , dissolued a a Vide E.G. 7. & E. 1. & B. 8. & part . 1. Ca●● . 1. 〈◊〉 . membr. 20. ●h●rt 117. the number of the Nunnes of Ambresburie in Wiltshire ( by reason of their vnchastitie ) and filld the Nunnerie with others out of those of Font-Euerard in Normandie , diuers Churches and Parishes were annext , by Grant and Confirmation , to the new Companie , and also Tithes seuerally , as Deeima de Fortesbiria , & de Wadhulla &c. & Manerium de Etona cum Decima de dominio & medietate Decimae rusticorum , & Manerium de Chelstamstona , cum Decima eiusdem Manerij &c. & Decimam de Ingafelot & de Godingeflot , cum omni iure Parochiali & Decima de Hamsteda , cum omni iure Parochiali . and diuers other such .

Henrie the second grants and confirmes to the Monks b b G.G. 1 , & 2. of Thetford in Norfolke , Decimam de Bradleia , Decimam de Offitona , Decimam de Florendona , Decimam de Moledona , and manie other such , without mention of Churches or Chappels with them ; yet in the same Charter , diuers Churches of other places are by themselues conueyed or confirmed .

William the first giues to the Church of c c C C. ● . Westminster , Decimam de Wic de eadem parte quae ad me pertinebat atque iterùm reddidi eandem partem eis iniustè ablatam quam R. Edwardus antea dederat . Then seuerally follows diuers Appropriations of Churches . This was in the second of his raigne .

Henrie the second giues to the Church of Sarum d d Ibid. 3. in dorse . diuers Churches with Tithes , and among them , Ecclesiam de Durneforda cum terris & Decimis quas Walterus filius Richardi & , Isabella de Toeni & reliqui aduocati eiusdem Ecclesiae ei dederunt . & omnes Decimas & de Noua Foresta , & de Panetot , & de Bucholt , & de Andeuera , & de Husburna , & omnibus Forestis meis de Wilteshire & de Dorseta , & de Berkshire , de omnibus rebus scilicet de firma , de Pasnagio , de Herbagio , de Vaccis , de Caseis , de Porcis , de equabus & omnes Decimas de omni Venatione praedictarum Forestarum excepta Decima illius Venationis quae capta fuerit cum stabilia in Foresta de Windleshora &c. What the Bishop had yeerly , by reason of this Grant , may be seen in Rot. Claus. 5. Hen. 3. Membran . 14. And for Grants from the Kings of the Tithe of Venison , other examples are obuious , as of the Forests of Essex to the Bishop of e e Rot. Chart. 6. Ioh. R. ch. 107. memb. 12. & rot. R●t . 11. Hen ▪ 3. part ▪ 1. membr. 5. London , by King Iohn , and of others anciently , of the f f Claus. 4 Hen. 3. part 1. membr . 2. & Claus. 17. Hen. 3. membran. 4. &c. Tithe of the Venison taken in the Forests in Northamptonshire , to the Abbot of Burie ; to omit that of Henrie the first , his Grant of the Tithe of all his Venison taken in Yorkeshire , to the Abbot of York , which occurres in the g g Fletwood in Commentar. de iure Forestarum . Eire of the Forest of Pickering .

In a Charter of Henrie the first , many Tithes are granted and confirmed to the Priorie of Mountague h h Cart. antiq. ff ff. 2. in Somersetshire , as Duae partes Decimarum de Atford , Decima de Crimoc , & medietas Decimorum de Ciselberg , de Clafford , de Northon iuxta Taunton , & Decimae dominij de Merston , & de Hetecumb , de Candel , de Torp , de Cernel , item de Cernel , & de tertio Cernel &c.

Henrie the first graunted i i K. indors . 36. to the Canons of Cambridge , Decimas de dominio meo de Cantebrigia & Ecclesiam S. Egidij &c.

About 3. Hen. 1. Manasses Arsio k k S. ● . renewd his Charter to the Abbey of Fischamp in Normandie , and gaue them apud Sobrinton de suo dominio duas garbas Decimae suae , and so in diuers other Mannors . Dedit & Decimas de cunctis denarijs suis & de pullis equarum suarum , de Vitulis , de Ouibus , de Caseis , de Lana & Decimas de omnibus rebus suis , & Decimas de omnibus hominibus supradictarum villarum . All which , was confirmed by the King . It seemes , that in Decimas de omnibus rebus the Corne was excepted , according to the first Limitation of his Grant .

II.

To these might he added more out of the Rolls l l Vide Rot. cart . 5. R. Ioh. membr. 8. cart . 61. & Cart. antiq. V. & E. 7. & in Fasciculo cart . antiq. num. 80. &c. especially of Exemplifications or Confirmations . But the store is large that is alreadie deliuered . And to conclude it , obserue this most notable testimonie in a Writ of the Register and in Fitzherbert , that had reference to the common vse of those arbitrarie Grants out of demesne Lands at the owners pleasure , without vnderstanding of which vse , I shall doubt no man throughly vnderstands the Writ , nor the true ground of any Writ de aduocatione Decimarum . It is a singular example , and , as I remember , not seconded or specially noted elsewhere in our Law books ; and therefore I transcribe it whole . Rex m m Resist . orig. fol. 36. b. & Fitz. N. B , 40. N. tali Iudici salutem . Monstrauit nobis venerabilis Pater H. Lincolniensis Episcopus quod cum I. praecentor Ecclesiae Beatae Mariae Lincoln . teneat de dono suo omnes Decimas Dominicarum terrarum suarum vel Dominici sui de N. quas idem Episcopus & praedecessores sui Episcopi loci praedicti liberè conferre consueuerunt : Prior Beatae Katharinae extra Lincoln . clamans Decimas illas pertinere ad Ecclesiam suam de B. trahit eum inde in placitum &c. Et quia placitum praedictum tangit Coronam & dignitatem nostram ; praesertim cum collatio earundem Decimarum ad nos possit deuolui ratione custodiae vel Escaetae , quia etiam consimiles Decimas conferimus in quibusdam Dominicis , & similiter quamplures magnates regni nostri in Dominicis suis , vobis prohibemus ne placitum illud teneatis in Curia Christianitatis , nec aliquid quod in derogationem Regiae dignitatis nostrae cedere valeat , in hac parte attentetis seu per alios attentari faciatis quouismodo . Teste &c. What can the intent of this be other , then that the Bishop , the King , and manie other Grandes of the Kingdome , did vsually grant or collate the Tithes of their Demesnes ; which , because they were so grantable at the owners will , were ( by the meaning of this Writ ) exempted from the Spirituall Iurisdiction . But thereof more anon . Perhaps the Writ is immediatly to be vnderstood of Tithes collated in like sort as a Church ; so that he which collated them , had aduocationem Decimarum ( which appeares also in the Register ) as any other conferring a Church , had Ecclesiae aduocationem . If not so ; whence could the collation of these Tithes haue originall , sauing only from the making them seuerally a kind of Benefice ( vnder the name of Decimae seperatae , that is , annext to no Church , as the Marginall note in the Register well calls them ) by arbitrarie Grant at first of the owner , no otherwise then a Church was made a Benefice to be bestowd , by the arbitrarie Ordinance of the Patron , at the foundation ? Cleerly , had not the vse of conueyance of Tithes seuerally by Grant , preceded in practice , it could not haue been , that Quamplures magnate regni ( as the Writ sayes ) might Decimas liberè conferre in dominicis suis. Tithes alone could neuer haue been collated like a Benefice , had they not been first founded or created as a Benefice . And the Writ might seeme indeed to beare euen the character of the time wherein that vse of arbitrarie Grants of Tithes was known , as of common practice ; which I vnderstand to be about King 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 n n In Codice Ms. Coenobij Osniens . in Bibl. Cotton . 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 o o Pat. 16. Hom. 3. membr. 7. 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 , p p Roger. de Houeden . part. 2. fol. 460 b. Lateranensis Concilij q q Vide extr. tit. de Prob. c. in Lateranensi 31 & tit. de priuileg . c. 3. cum & plantare . & in Concil ipso quod . plenē tantummodo extat in editione Romana & postr●ma Bi●ij . tenore perpenso decernimus 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 r r Extr. tit de ●is qua fiunt a Prael . c. 7. cum Apostolica 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 b b In Armario Cottoniano . 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 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 . s s Innocent 3 Epist. Decretal . lib. 1. pag. 228. Quod enim de consuetudine regni Anglorum ( saies the Pope to him ) procedere regia serenitas per suas literas intimauit , vt liceat tàm Episcopis quàm 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 t t Epist. 21. & ●4 . 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 u u Ms. in Biblioth. Cottoniana . 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 * * Sup. cap. 7. §. 1. 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. x x Inter fascie . Pet. Parl 6. Ed. 1 in ar●● Londin . 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 y y Extr. tit . de Decimis c. 13 ▪ quoniam 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 z z 14. Hen. 4 fol. 17. b. & Brook tit . Dismes 10. 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 * * In Recept . Scaccarij , & in Cod Vet. apud V. C. I. Borough regiorum in arce Lond. Seriniorum prasectum . 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 Henricus 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 * * Mich. 5. Ed. 3. Coram Rege Rot. 168. Cumbria . 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 * * Rot. Parl. 8. Ed. 2. rot. 17. in dors. . 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 .

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 , most commonly , the Church is exprest , Vna cum Decima ( that is , the Tithe annext or consecrated to it ) in annona , or in other kind , and the places sometimes are named where the encrease of the Tithe grew . Such examples are very obuious , especially in the Chartularies of Abingdon and Rochester . And , as is before noted , the most common intent ( allowd also by Canonicall confirmation , which sometime but rarely was added in those elder ages ) was , that the Corporation whereto the Appropriation was made , should put Clerks or Vicars in the Churches so conueyed to them , which were to answer to them for all temporall profits , as Tithes and other reuenues ( although the Churches were distant many hundred miles sometimes from the Monasteries ; for a Church in one Kingdome also was often appropriated to a Monasterie of another ) and to the Ordinarie for spirituall function . The generall Confirmations that are sometimes found of that time , make it manifest . and for the two Prouinces , it is not amisse to adde here these two examples of it . In 17. Will . 1. Thomas Archbishop of York makes a generall Confirmation a a R●g . de Hou●d●n , part . 1. fol. 26● . ● . to the Priorie of Durham of all Churches either then appropriated to them , or thereafter to be appropriated , and grants and commands , Vt omnes Ecclesias suas in manu sua teneat , & quietè eas possideant , & Vicarios suos in eis liberè ponant , qui mihi & successoribus meis de cura tantum intendant animarum , ipsis vero de omnibus caeteris Eleemosynis & Beneficijs . So , vnder Henry the second , Pope Lucius the third writes to all the Monks in the Prouince b b Append. ad Concil. 〈◊〉 . part . 16 of Canterburie , and bids them , that in all Churches , in quibus praesentationem habetis cum vacauerint Diocesanis Episcopis Clericos idoneos praesentetis qui illis de spiritualibus , vobis de temporalibus debeant respondere . Where , that in quibus praesentationem habetis , can bee vnderstood only of Churches appropriated ( which they enioied not pleno iure , that is , c c Panormitan . ad tit . de restit . in integr . cap. 〈◊〉 . in which they were bound to allow some competent reuenue to a Vicar or Curat , and had not exempt iurisdiction , nor the power of institution of Vicars , without presentation to the Bishop ) as is plainly known from what followes touching the answering for the Temporalties to the Monasteries . And in those times , as is alreadie deliuered , it was most frequent , to haue presentations made by Monasteries to their appropriated Churches ; and the Vicar-Incumbents or Presentees had no more of the profits ( notwithstanding the institution then the Monasteries would arbitrarily allow them . Neither followd any disappropriation vpon such Presentation , howeuer the later Law be taken otherwise . Nor was there any perpetuall certaintie of profits or reuenues to their Presentees , vntill such time as the Monks , by composition with the Ordinaries , or by their owne Ordinance ( which prescription after confirmed ) appointed some yeerly salarie in Tithes , or Glebe , or Rent , seuerally for the perpetuall maintenance of the Cure ; which Salaries became afterward perpetuall Vicarages . And to these testimonies touching appropriated Churches in those ancient times , and presentation to them , you may also adde that d d Roger. Houed . annal. 2. fol. 460. b. Canon of the Councell of Westminster , held in the second of King Iohn by Hubert Archbishop of Canterburie , to the same purpose . wherewith is agreeing also one of Othobons Legatine Constitutions , touching filling of Appropriations , and making of Vicarages ; as also the two Statuts of 15. Rich. 2. cap. 6. & 4. Hen. 4. cap. 12. touching the point of which Statut , a Bill in the next Parliament ▪ was again put in , but answered with e e Rot. Parl. 5. Hen. 4. art. 74. Soient les Statuts en faitez & gardez .

II.

In those elder Appropriations , it appears that the Church and the Tithes , and what else was ioind with it as part of the assigned reuenue , by the practice of the time passed in point of interest from the Patron by his gift ( which oftentimes was by liuerie of a book or a knife on the Altar ) not otherwise then freehold conueid by his deed & liuerie . Neither was confirmation or assent of the Ordinarie ( as it seems ) necessarie as of later time . Obserue this one example of the Church of Waldren appropriated to the Priorie of Lewes in Sussex by Robert of Dene , wherin he as Patron appoints also the conditions to which the Presentee or Vicar-encumbent of the Priorie should be subiect . Ego Robertus de Dena ( saies the f f In Thesauro Cottoniano . Deed ) & vxor mea Sibilia pro animabus antecessorum nostrorum & pro salute nostra , & successorum nastrorum concedimus Deo & S. Pancratio Latisaquensi Ecclesiam de Waldrena cum terris & Decimis , & omnibus ad eam pertinentibus , & cum duabus partibus Decimae bladorum de Caluindona , ita videlicet vt Sacerdos de Waldrena , de his omnibus soluat S. Pancratio singulis annis dimidiam marcam argenti . Ipse autem Sacerdos per manum Prioris S. Pancratij Ecclesiam de Waldrena tenebit quamdiù castè & religiose vixerit . Quod si crimen incurrerit , iudicio Prioris Latisaquensis corrigetur aut expelletur . This , about the time of Henrie the second , was made coram duobus Hundredis apud Hundestuph . Very many other are extant so made , as well by common persons as the King in the Saxon times of churches , and since , of Churches and Tithes without any confirmations ; sauing sometimes that those of common persons are ratified by the King g g Videsis 7. Ed. ● . fol. 4. b. & Esson . & Placit . de 10. Rich. 1. Rot. 22. Hertf. cas ▪ Reginaldi de Argentain . as supreme Lord , as also they are too by other Lords . for it was not vnvsuall for Tenants to haue their Lords confirme their alienations of all kind of possessions . I know what is said in the later Law of the Kings power as suprem Ordinarie for the part of Iurisdiction , and I acknowledge it , as all ought . but in those elder times , that was not the matter which made appropriations good , where his confirmation had place , and none was from the Bishop . at least it cannot at all be proued that his suprem Iurisdiction spirituall was so much thought of in them , although otherwise apparant testimonie be of the exercise of such iurisdiction & of the right of it in the elder ages in this Kingdome . But the reason of appropriations so practiced by lay Patrons only , was the challenged right which in those times they most commonly vsed in disposition of their Churches , as if they had been all Donatiues by collation ( without presentation ) that is by Inuestiture from their own hands only , which gaue their Incumbents reall possession of the Tithe of the Church and all the reuenues , no lesse then presentation , institution , and induction doe at this day . For howeuer , not only the Decrees both of the Pope and generall Councells , were anciently against that kind of inuestiture , but also the Prouinciall or Nationall Synods here held , had like Canons forbidding it , as in 3. Hen. 1. the h h Guil Malmes● . de Gest. Pontific . lib. 1. vide Anselm . lib. 3. Epist. 45. Councell of Westminster held vnder Anselme Archbishop of Canterburie , & Girard of Yorke , ordains , Ne Monachi Ecclesias nisi per Episcopos accipiant , and in 25. Hen. 1. at the same place in the Nationall Synod , held by Cardinall Iohn de Crema , the Popes Legat , it was constituted , that i i Continuat . F●●rent . Wigor● . anno 1125. Nullus Abbas , nullus Prior , nullus omnino Monachus , vel Clericus Ecclesiam siue Decimam seu quaelibet beneficia Ecclesiastica de dono Laici sine proprij Episcopi autoritate & assensu suscipiat quod si praesumptum fuerit , irrita erit donatio huiusmodi &c. and some allowance was giuen to these Canons by the King ; yet it is most certain thât the practice was for diuers yeers afterward otherwise , and that Churches with Tithes were most commonly giuen by lay Patrons , without the Bishops assent or institution , and that as well by filling them with Incumbents , as appropriating them to Monasteries , Chapters , or otherwise . Beside the examples that might enough proue it and are obuious in old Chartularies , the preamble of a Decretall of Alexander the third , sent , vnder Henrie the second , to all the Bishops of k k Extr. de Instit. c. 3. ex frequentibu● qui Canon plemus habetur in Appendice ad Concil. Lateran . part. 28. cap. 11. the Prouince of Canterburie , is herein full testimonie . Ex frequentibus querelis ( saies he ) didicimus in partibus vestris consuetudinem prauam à multis retro actis temporibus invaluisse , quod Clerici Ecclesiastica beneficia sine consensu Episcopi Dioecesis vel Officialium suorum ( qui hoc de iure possunt ) recipiunt minùs quàm deceat , sollimitè cogitantes , quomodo id à Patrum sanctorum est institutionibus alienum & Ecclesiasticae contrarium honestati . Vnde cum tu frater &c. where you see plainly that course of inuestiture or donation by the Patron without presentation , was consuetudo quae a multis retro actis temporibus inualuerat , which shews it to haue been then a part of the secular Law ; though the iudgment of the Bishops and the Pope titles it Praua . agreeing to this are other testimonies in l l Tit. de iure patr. c. 10. cum Laici . c. 11 cura Pa●torali &c. 21. relatum . vide Roger. de Houeden . Annal. fol. 208. a. l. Sarisbur . Policrat . lib. 7. cap. 21. & App. ad Concil. Lat. part . 15 cap. 2. Gregories Decretalls , and that in Epistles to all the Bishops of England to forbid it . and it is specially obserueable , how ill the Baronage of England tooke it when Anselm vnder Henrie the first would haue , through Papall Canons , inhibited the practice of inuestitures , vsed by the King and other lay Patrons , which is recorded in an Epistle m m Epist. Anselm . Ms. 195. in Bibl. Cottoniana . of that Anselm , directed to Pope Paschal the second , thus speaking . Domino Reuerendo & Patri diligendo Paschali summo Pontifici Anselmus seruus Ecclesiae Cantuariensis , debitam subiectionem & orationum assiduitatem . Postquam reuocatus ad Episcopatum redij in Angliam , ostendi decreta Apostolica quae in Romano Concilio praesens audiui ne scilicet aliquis de manu Regis aut alicuius Laici Ecclesiarum Inuestituras acciperet , vt pro hoc eius homo fieret ; nec aliquis haec transgredientem consecrare praesumeret . Quod audientes Rex & Principes eius ipsi etiam Episcopi , & alij minoris ordinis tam grauitèr aceperunt , vt assererent se nullo modo huic rei assensum praebituros , & me de regno potiùs , quam hoc seruarent , expulsuros & à Romana Ecclesia se discessuros ; vnde reuerende Pater vestrum petij , per Epistolam nostram , consilium &c. This is in the Ms. Volume of Epistles of Anselm , fairly writen by Iohn de Grandisono Bishop of Excester , in the yeer M.CCC.LXIV . in which are aboue C. more then are published in his printed Works . they menaced the Archbishop with banishment , and the Pope with reuolt from his See , only for their withstanding that practice of Inuestiture ; whereof , for so much as concernes Abbeies , Priories , or Bishopriques ( in giuing them by the ring and baston ) much testimonie is in the storie of about that age . and the Kings remission of the Inuestitures of those great dignities is frequent . but , for Parish Churches , of which we here chiefly speake ; the common occurrences of Inuestitures mention them but litle . But for the vse of them known also by the name of Institution ; see the Fine anon transcribed of 33. Hen. 2. as also specially a commission sent by Pope Alexander the third , to the i i In Append. 〈◊〉 Concil. Lat. part . 8. cap. 14. tit . de testibus cogend●● . Dean of Chichester , touching a Parson that was legitimè institutus à Willielmo Nobili viro , and had resigned Personatum Capellano Domini . But this course of Inuestiture by Lay men , after Anselmes time , began to bee of lesse vse ; and some , obeying the Canons , presented , others still collated by Inuestiture till about Richard the first and King Iohns time , whereof more in the next Paragraph . To the Lay Patrons challenged right of such Inuestiture of Churches and Tithes , belongs specially the Granting of Rents and such like out of Rectories by the Patrons only , and the Sonnes or others Succession in Parish Churches after the death of their ancestors of both which ( litle known vulgarly ) ancient warrant is yet remayning .

III.

For the first ; in the Chartularie of the Priorie of S. Needs in Huntingdonshire , one Robert Fitz-water ( about King Iohns time ) giues to the Priorie six marks of siluer nomine certi beneficij in Ecclesia de Wimbisse annuatim percipiendas per manum personae eiusdem Ecclesiae . Quare volo ( saies he ) vt quicunque in praefata Ecclesia de Wimbis . ad praesentationem meam vel haeredum meorum persona instituta fuerit praenominatis Monachis S. Neoti de supradicto beneficio VI. marcarum fidelitatem faciat , saluo mihi & haeredibus meis iure aduocationis & praesentationis &c. and diuers other such like are . Neither haue I met with a precedent of those times wherein the Encumbent was Grantor , as at this day by the Common Law ( the Church being full ) I think he must . but most vsually a prouision by the Patron was inserted to this purpose , that the seuerall Encumbents should by Oth bind themselues to the true payment . nor was it so necessarie to haue the ordinaries assent , when that , which the Ordinarie by the practice of the later Law is to do in his Institution , was in frequent practice supplied by the Patrons Inuestiture . Out of which may be the better vnderstood that part of the new Canon in the Synod of Westminster , held vnder k k Roger. 〈◊〉 . A●●al . fol. 310. Richard Archbishop of Canterburie , in 21 ▪ Hen. 2. Nulli liceat Ecclesiam nomine Dotalitij ad aliquem transferre , that is , That no Patron should giue his Church . as it were in Frankmariage , or make of it a Donatio propter nuptias ( as the Ciuilians call it ) to remain with the husband of his Daughter or Kinswoman , during his life . How could such a gift haue at all been made by presentation ( as of later time it is vnderstood ) Institution or Induction ? and a most obseruable example of this matter is in a Fine of 33. Hen. 2. in these words . Haec est finalis concordia facta in Curia Domini Regis apud Cantuariam anno Regni Regis Henrici secundi XXXIII . die Venetis proxima post festum sancti Iohannis Baptistae Coram Radulpho Archidiacono Colecestriae , & Rogero filio Reinfri , & Roberto de Witefeld , & Michaele Belet Iusticiarijs Domini Regis , & alijs fidelibus Domini Regis ibidem tunc praesentibus inter Priorem de Lewes & Monachis eiusdem loci & Willielmum filium Arthuri , quem Richardus de Budegintun pofuit loco suo ad lucrandum vel perdendum de aduocatione Ecclesiae de Budeketun , vnde placitum erat inter eos in Curia Regis , scilicet quod Prior & Monachi remiserunt & quietum clamauerunt eidem Richardo & haeredibus suis aduocationem praedictae Ecclesiae per ita quod persona quae per ipsum Richardum vel haeredes eius in eadem Ecclesia instituetur , reddet singulis annis Ecclesiae de Lewes IIII. solidos scilicet ad festum Sancti Michaelis . & ille qui in eadem Ecclesia per ipsum Richardum vel haeredes suos instituetur persona , post institutionem suam , coram Episcopo fidelitatem praestabit quod praedictam pensionem praedicto termino Ecclesiae de Lewes persoluet , & posteà in Capitulo de Lewes eandem fidelitatem innouabit . Here it appears ( it seems ) by the iudgement of the Kings Iustices , that the Patron had such interest in those times , that he might alone without grant of the Encumbent ( who came in by his Institution and Inuestiture ) or confirmation of the Bishop , charge the church with a pension . and this , being in a Fine , is of autoritie beyond exception for that age . But the like is in Rot. Fin. 7. Rich. 1. Lancast. in a Fine leuied between Theobald Fitz-water , demandant in a Writ of Right of Aduowson against the Abbot of Shrewsburie , of the Church of Kirkham , where XII . marke Rent is reserued to the Abbot , with a like clause for the Encumbents fealtie for true payment . the like in Fin. 4. Rich. 1. diuers . Comit. touching the Church of Dacheworth . yet also , in that age , the assent of the Parson and Bishop was somtime had . as in Rot. Fin. 7. Rich. 1. Staff . where , vpon Right of Aduowson by the Prior and Canons of Stanes against Alice Hopton , for the Church of Cheklegh , Alice & Robertus filius & haeres suus per assensum & voluntatem H. Couentrensis Episcopi in cuius Diocoesi Ecclesia illa sita est , & Osberti personae eiusdem Ecclesiae tunc ibidem praesentium , concesserunt praefatis Priori & Canonicis XXs. de eadem Ecclesia de Cheklegh annuatim percipiendos sine omni contradictione imperpetuum de Clerico eandem Ecclesiam possidente quicunque ille fuerit ad duos terminos videlicet ad Pascha Xs. & ad festum S. Michaelis X ● . &c , Here the assent of the Parson and Bishop being both present in Court , is inserted in the Fine ; yet inough examples shew that it was not ( as may be strongly coniecturd ) thought altogether necessarie . But indeed howeuer the right of Inuestitures had been then much exercised by Lay Patrons , yet in case of Clergie Patrons , if the Church were not of exempted iurisdiction , the Bishops more vsually instituted : and therefore was their assent the sooner admitted somtimes into the Fine ; and doubtlesse also some lay Patrons willing enough herein to obey the Canons , after Anselm and perhaps before arbitrarily filld their Churches by presentation to the Bishop . this may be collected especially out of that of the grant of the l l Extr. de Instit. ● . 6. cum ve●issent Edit. Gregoriana . priuilege of Institution in Churches , made by Turstan Archbishop of York vnder Henrie the first , to the Archdeacon of Richemond , as also out of two Decretalls from Rome , sent by Pope m m Extr. tit . de iure ●urando c. 11. tuae ●es . & de iure patr. c. 24. cus autem . Lucius the third , vnder Henrie the second to the Bishop of Norwich . and in some other n n 16. Ed. 3. tit . Annuitie 23 & Rot. Fin. 1. Ioh. Huntingdon . autoritie both in our yeer books and in the fine Rolls also of the beginning of King Iohn , the Bishops assent in such grants of that time is sometimes found . and in that commonly ( but without sufficient ground ) attributed to Randol of o o Lib. 3. cap. 20. Glanvill chief Iustice of England to Henrie the second , the Bishops institution is spoken of as a thing of not vnknown right vpon a recouerie in Darrain presentment , according as the Canons require . And in an Epistle p p In Symbol . Electorum Ms. in Bib. Cotton . of Giraldus Cambrensis ( writen in those times to Hugh Bishop of Lincoln about his Parsonage of Cestreton , which he challenged vpon presentation of himself made by Gerard of Camvill , a Gentleman of great worth in Lincolnshire ) the Bishops Institution is spoken of , as cleerely necessarie , according to the Canons , and noted with Episcopus solus honores dare potest ; which , you must remember , was writen by one that was feruent for the Canons , and had also writen against the auitae consuetudines or common Laws of that time . But these testimonies must be warily vnderstood , and compared with the former and frequent practice of the contrarie , which about that time , especially vnder Richard the first and King Iohn ( it seems ) much altered . Neither till about that time can it be found , that the more common practice of Lay mens Inuestitures ceased . Nor was the Bishops Institution presently and vniformely thence vsed , as of later ages . The autoritie of the Clergie had by that time taken away the vse of Lay mens Inuestitures . Yet was it not cleere , it seemes , vpon the practice that here followed , what dignitie of the Clergie should then exercise the Institution : for you shall find it sometimes done by the Archdeacon , as it was also before K. Iohn , in some cases where any Lay man omitted his Inuestiture ; as may be gathered out of a Decretall , sent h h Extr. de 〈◊〉 . Archidiac . c. 4. cum satis & cap. 5. Archidiac●●● . hither from Pope Alexander the third , to forbid the Archdeacon of Ely , Curam animarum sine mandato Episcopi committere . And afterward also , in Pasch. & Trin. 9. & 10. Reg. Ioh. a Writ is awarded to the Archdeacon , as now it ought to the Bishop , vpon recouerie of a Presentment . The entrie is thus . Recordatum est per G. filium Petri & Simonem de Pateshull quod Simon filius Richardi , tempore Regis Richardi , recuperauit , coram eis & socijs eorum versus Iohannem de Kalceto seisinam Aduocationis Ecclesiae de Buckworth ( in Huntingdonshire ) per assisam de vltimâ prasentatione , ita quod habuit breue quod Archidiaconus admitteret personam ad Ecclesiam illam ad praesentationem eidem ; & ipse Iohannes impediuit eum ita quod implacitauit eum per breue Papae , & Dominus Rex prohibuit placitum , & Simon venit & impetrauit à Rege quod loquela procederet , & quod haberet breue ab Archidiaconum de Clerico suo admittendo & habuit . T. domino G. filio Petri & Will . de Briwere . Here twice was the Writ of Admission or Institution sent to the Archdeacon , not to the Bishop . Perhaps indeed it happened in the vacancie of the See . for the time so falls , that we cannot be sure of the contrarie . But admit it were so . Plainly , the Archdeacon neither by Canon nor common Law had any more right of Institution , by reason of a Vacancie of the Bishoprique . And certainly , during the vacancie , the Writ should r r Arg. 15. Ed. 3 tit . Quare non admisit 5. & Fitzh . N. ● . 47. l. &c. goe to the Gardians of the Spiritualtie , which by the Canon Laws , are the Deane s s 6 tit . de Suppl●nd . Pr●lat . neglig c. 3. & 36. Hen. 8. tit . Administrators 46. and Chapter , but by the Law of England t t Vide 17. Ed. 2. tit . Brief● 812. 1● . Ed. 4.14 . ● . Regist. Orig. f. 6● a. & 141. a 17. Ed 3. fol. 23. b. &c. , the Archbishops in their seuerall Prouinces , and the Deanes and Chapters only , in case where the Archbishopriques are void . And in other places , somewhat afterward also I haue seen Institutions often u u 5. 〈…〉 Matricul . Eccles ▪ in Archidiac . L●ic . in Biblioth. Cottoniana . by the Archdeacon of Leicester , while the Bishoprique of Lincolne was void ; which shewes , that those times were the infancie of the exact course of Episcopall Institutions , as they are at this day vsed . Neither had these any priuiledge of Institution , as the Archdeacon of Richmond had anciently giuen x x Vide extr ▪ tit . de Instit. c. 6. & Rog. de Houeden p. 465. & 468. & seq . him , or the like . At this day , and from long time before , the Archdeacon only Inducts , as the Books & common practice shew . But thereof thus much by the way .

IV.

For that other , of Succession in the Benefices of the Ancestors ; doubtlesse , that was , often when the father or other ancestor was Incumbent and Patron , and by that challenged right , of the time , of Inuestiture and sole disposition of the Church , would either in his life time conuey the Benefice to his sonne or heire by grant , which by the practice of the time , supplyed , it seemes , as well a Resignation , as Presentation , Institution , and Induction ; or would so leaue the Aduowson to discend to his heire , that he ( being in Orders ) might retaine the Church in his owne hands , according as the Law then , it seems , permitted . Against this , was a Canon made in the Nationall Synod at Westminster in 3. Hen. 1. Vt filij Presbyterorum non sint haeredes Ecclesiarum Patrum suorum . And another in 25. Hen. 1. held vnder the Popes Legat. Sancimus ( as the words are ) ne quis Ecclesiam sibi siue Praebendam paterna vendicet haereditate y y Videsis extr. tit de iure Patron . c. 15 consuluit &c. & tit . de filijs Presbyt. passim . & tit . de Pactis c. 5. aecepimu● . & tit . de Tollibus c. 7. c● parte . & Append. Concil. Lat. part . 8. cap. 22. Hereford . Episcopo & Abbati de Forde . Nec omittas eiusdem appendicis , part. 15 cap. 15. & part 19. cap. 1. & part. 28. cap. 4. & 8. part 49 cap. 14. & part. 50. cap. 60. aut successorem sibi in aliquo Ecclesiastico constituat Beneficio . Without that challenged right of Inuestiture supposed in the Incumbent ( hauing also the Patronage ) which supplyed all that the Patron , Bishop , and Archdeacon at this day do in filling a Church , how could any Parson make to himselfe a successor or an heire to haue colour to claim the Incumbencie from his ancestor . To this purpose may be well rememberd a passage in a verdict found in Rot. Placit . 6. Rich. 1. Rot. 1. of such a kind of conueyance of S. Peeters Church in Cambridge : the words are ; Iuratores benè sciunt quod quidam Langlinus qui tenuit Ecclesiam illam , & qui fuit persona illius Ecclesiae dedit Ecclesiam illam , secundum quod tunc fuit mos Ciuitatis Cantebrigiae , cuidam parenti suo Segario nomine qui illam tenuit per LX. annos & plus , & fuit persona illius Ecclesiae & ipse posteà dedit Ecclesiam illam Henrico filio suo qui illam tenuit per LX. annos & ipse in ligea potestate sua dedit illam Hospitali Cantebrigiae per Cartam suam & idem Hospitali habet Ecclesiam illam . They discreetly find the custome of the Citie to maintaine the Conueyance , supposing ( it seems ) that the custome would help the last Grantors title , although the Common Law , which had by that time receiued some change herein , by force of the Papall Decrees , should not haue allowd it . I know , in the Canons another thing is also vnderstood in this matter of Succession , that is , the irregularitie of the sonne of a Clerk ; but that can extend only to the matter of Illegitimation vpon Mariage forbidden to the Clergie . For which point alone , the Bishops refusall had been the best helpe , but that indeed the other kind of disposition of Churches by Inuestiture preuented his refusall when Presentation was not made to him .

But after such time as the Decretals and the encreasing authoritie of the Canons , about the yeer M.CC. had setled the vniuersall course here of filling of Churches by Presentation to the Bishop , or ( as it seems sometimes it was ) to the Archdeacon , or to the Vicar of the Bishop , or Gardian of the Spiritualties ; that vse of Inuestitures of Churches and Tithes seuerally or together , practiced by Lay men , was left off , and a diuision of Ecclesiasticall & Secular right from thence hath continued in practice . Neither did z z Vide Rot. pat . 9. Ioh. R. membr. 1. alibi saepem in Archiuis , quae ad illius tempora spectant . the King afterward ( much lesse common persons ) fill their common Parochiall Churches without such presentments from Bishops . Parochiall Churches ; for of speciall donatiue Chappels we here speak not . neither were Appropriations of Churches & Tithes afterward allowd , that had not a a 2. Ed. 3.23 . b. 3 Ed. 3. fol. 11. b. 10. Ed. 3. fol. 50. a. & vide Casum Episcopi Lincoln . in Comment. 2. &c. confirmation from the Ordinarie immediat or supreme . And in the same age also came in the Law of the Laps , whereby the Bishop is to collate after six moneths vpon the Patrons default , it being before at his libertie to fill his Church at his pleasure . neither was he confined to any time . That time of Laps was ( according as the vse of Presentation grew by degrees setled ) receiued into the Laws of England out of the generall b b Vide Rog. de Houeáon , an. 1179. Councell of Lateran , held in 25. Hen. 2. vnder Alexander the third ; to which , foure Bishops ( according to the ancient vse of this Kingdom ) that is , Hugh Bishop of Durham , Iohn Bishop of Norwich , Robert Bishop of Hereford , and Reinold Bishop of Bath , were sent as Agents for the Church of England . By that Councell , after vacancie of six moneths , the Chapter is to bestow those Churches , which the Bishop , being Patron , had left so long void ; and vpon their default , the Metropolitan . but no word is of Lay Patrons in it . Yet by reason of the Autoritie of that Councell , and of a Decretall c c Extr. de iure Patronat . c. 22. 〈◊〉 se. of the same Pope , which speaks of like time vpon default of Lay Patrons , it hath beene since taken here generally , that after vacancie of six moneths , the next Ordinarie is regularly to collate by Laps . Which perhaps was receiued for a Law , to continue as it hath done , in the Councell or Conuocation at Pipewell , held in the first of Richard the first , and some ten yeers after that Generall Councell of Lateran . For in that of Pipewell , the principall thing in hand was the prouiding for Churches vpon death of their Pastors . Habitus est ( saith Ralf de Diceto , Dean of Pauls vnder King Iohn ) generalis conuentus iuxta dispositionem Regis & Archiepiscopi XVI . Kal. Octobris apud Pipewell , vt de consilio vacantium per Angliam Ecclesiarum haberetur tractatus . I know it was for many Churches then void . but it is like enough that according to the generall Councell this Law was then here receiued . but that s only a rouing coniecture , and so I leaue it . and as in the d d Extr. tit . de suppl . prael . negl . c. 3. & 4. ad Conc. pra● . c. 5. &c. Canon Law the Councell of Lateran ( which must be vnderstood that of Alexander the third ) is commonly affirmed for the autoritie of the originall of the right of this Laps in the case of Bishops specially and Chapters , so is it , in ancient moniments of our Laws , also in the case of Lay Patrons . Ante Concilium Lateranense ( saies e e Lib. 4. tr . de Assis. vlt. praes. cap. 6. §. 3. Vide , si placet , Roger. de Houcden part . 2. Annal. fol 430. b. & Extr. tit . de Officio I●dicis ordinarij c. 4. cum 〈◊〉 . ant● Concilium Papae Alex. 3. illud n● fallor rese●●ps●● , & lucem huc ad●●rt . Bracton ) nullum currebat tempus contra praesentantes . And in Placit . de Banco Mich. 3. Ed. 1. Rot. 105. Staff . The Bishop of Couentrie and Lichfield pleads a collation by laps autoritate concilij , against the Prior of Landa , to the Church of Patingham . and in the same Plea Rolls of Pasch. 5. Ed. 1 ▪ Rot. 100. Linc. in a quare non admisit , by Alienor , the Queen Mother , against the Bishop of Lincoln , for the Church of Orkestow , the six Months and the computation of them ( which is there adiudged according to that in f f Coke Report . part. 6. fol. 62. Catesbies case ) is referd to Concilium Apostolicum , which can be no other then that of Lateran , howeuer the printed Copie of that which we commonly call Breton g g Chap. 62. des exceptions fol. 225. a. talks of the Councell of Lions for the Director of the Laps , whereas indeed the Mss. haue for de Lions , de Lautr . which is doubtlesse for de Lateran ; yet also in the Rolls of the Common pleas of Pasch. 9. Ed. 1. Rot. 58. Suthampt. the Archbishop of Canterburie defendant in a Darrain presentment , against the Abbot of Lyra , pleads that the Church ( of Godeshull ) est plena ex collatione ipsius Archiepiscopi ratione Concilij Lugdunensis , and being demanded by what article of the Councell , would not thereto answer , wherupon , after long deliberation , iudgement is giuen for the Abbot . But in the same Plea the Law and custom of England for the six months time of Laps ( which they call there Consuetudo regni Angliae ) is referd to a Councell ; but none is specially named sauing that of Lions . But although from Canonicall autoritie the Laps was thus receiud into our Laws , yet it hath been no otherwise then the Baronage of England would permit it . for the Canons otherwise ( as at this day they are ) giue but foure h h C. Vnico §. 1. de iure pa●r . in 6. months to a Lay Patron , and six to an Ecclesiastique , which difference the Law of England would neuer permit ; as also neither that of the right of collation which the Chapter is to haue vpon default of the Bishop , howeuer the Pope would haue put it here in execution according to the words of the Councell , which you may see in the autorities before noted out of the Text of the Canon Law . and therefore the Law of Laps is well referd rather to i i Regist orig. fol. 42. b. ●nter prohibitiones . Consuetudo Regni Angliae ( by which title other parts of our * * Vide 19. Ed 2. tit . Briefe 842.18 . Ed. 3. fol. 55 b. Regist. Orig. fol. 98. a. Laws were often named that were of later beginning ) then to the Councell , although thence doubtlesse , as is shewd , it had its originall . But although now , what through the Decretalls and other Canons against Lay mens Inuestitures , what by reason of the Law of Laps , the Patrons former interest or challenged right was much diminished in the Church and the disposition of the reuenues of it ( for it followd also that the Ordinaries assent was requisite ) yet the formulae or precedents vsed from ancient time in the recouerie of presentations still retaine , to this day , Characters in them of that Inuestiture . as the quare impedit , that is , Praecipe A. quod iustè &c. permittat B. praesentare idoneam personam ad Ecclesiam de N. quae vacat & ad suam spectat donationem &c. Where Donatio still sauors of the ancient right of Inuestiture ; agreeing whereto is that of Ecclesiam k k Gla●●il . lib 6. cap. 17. alibi item scilicet in Archiuis quae vetustiora Richardi p●imi aut initij Iohannis tempora spectant , & vide Roger. de Hou●den . fol. 425. b. & P●t . 3. Hen. 3. part. 2 ▪ membr. 2. concedere , vsed elswhere in our Law , and attributed to the Lay Patron . Neither doth praesentare ad Ecclesiam originally denote otherwise then the Patrons sending or placing an Incumbent into the Church , and is made only of repraesentare , which in that Councell of Lateran and l l Extr tit . de Cens●bus c. 11. cum Clerici . & tit . de Praeb . & dig ▪ c. 31. In Lateranens . §. 2. & tit . de priuil●g ▪ ● 3. & Hostiens . Summ. tit . de Capellis Monachorum . & sapius . elswher occurres also for praesentare . repraesentare is properly to restore , giue back , or repay , as reddo or repraesto , whence praesentare taken in the barbarous times denoted as dare or donare ; so that idoneam personam ad Ecclesiam praesentare was all one with idoneam personam ad Ecclesiam dare or donare , or in Ecclesia constituere , or 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , as m m Epist. ad Tit. cap. 1 comm 5. the Apostles word is to Titus , where he bids him 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . that is , appoint or constitut , or indeed present Priests or Encumbents in euery Citie . for he that there should turn it by present , might so keep the propertie of the word in both tongues , though not as present is now restraind . this is iustified out of an old Glossarie that turnes Repraesento by 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . for then cleerly 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 is Praesento : while praesentare so signified also in practice , that is in the time of the vse of Lay Inuestitures , all Churches so giuen were properly Donatiues , which attribute hath been since restraind , chiefly to such free-chappels as the Ordinarie had no interest in , but are collated or giuen by the act only of the Patron . and this interpretation of praesentare is iustified also n n 16. Ed. ▪ 3. tit. Br●i●e 660. Fitzh . Nat. Br. fol. 33. B.C.D.E. out of the quare impedit vpon a right of collation ( which is but a donation ) by the Bishop , wherin the words are also quod permittat praesentare ad Ecclesiam &c. Donation ( which is meerly as Inuestiture in regard of the Bishop ) is there called Presentation . So also is the Law in the Kings Case and of common persons , being disturbed to collate by Letters Patents to their free Chappels or Donatiues . the Writ in those Cases is only praesentare , which confirms that it denotes Donation or Inuestiture . But in the Counts vpon such Writs , the speciall matter must be discouered . The like Law is in the Case of him that hath the Nomination of the Clerk . his Writ is also praesentare , although another haue the right of that which is now known by the bare name of presentation . Nomination indeed or 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 being the true and eldest name found in the Laws belonging to the o o 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . Church , that denote filling or presenting to a Church , in that sense as Presenting is taken for giuing or inuesting . For , in the primitiue times , when the Patron had founded his Church , he nominated whom he would haue receiued into Orders for the seruing of that Cure ; and then if the nominated were found worthy hee was receiued into Orders for that purpose , which Ordination turnd afterward into Episcopall institution , as is before declared . that nomination was indeed as Inuestiture or giuing the Church . so is the word vsed in the Laws and agreeing to them is the purer time of Latin wherein Nominatio p p 〈◊〉 Epist. ad ●rut. 7. is for giuing a Place or Office that is void . And as these phrases of the Writs tast of the ancient right challenged by the Patron , so do some assertions in our yeer books of later time ; as that of entring q q 18. Ed. 3. fol. 16 , a. into an Aduowson by entring into the Church , of passing an r r 43. Ed. 3. fol. 1. b. Aduowson by liuerie of seisin at the Church-dore , of the Patrons entring into the place s s 5 Hen. 7 fol. 37 a. of foundation if the Church cease to remain hallowed , and the like . And to like originall may you referre those of the Kings presentations , which haue Dedimus & concessimus in them yet retained , although the force of the words by the later Law , make but only a t t Vide 19. Ed. 3. tit . Quare impedit 60. presentation . But the Law is now setled ; neither with vs hath the Patron alone now any prerogatiue or direct interest in the Church or the reuenues , beside his right of Aduowson or Presentation to the Bishop , by whose institution and the Archdeacons induction euery Church regularly is to be filled . Neither ( for ought I haue heard ) hath he in our Law any of those Droicts honorifiques , which the French allow him in Precedence , Seats , and the like . These particulars of Benefices and Aduowsons had here their place , both because in the ancient 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 .

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 common 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 a a Rot. Parl. 2. Hen. 5. part. 2. art. 9. 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 b b Vide Cart. 2. Hen. 5. part. 1. num. 3. &c. 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 hominum meorum , & the like granted , may suppose a title possessed in the Tithes by the Lay grantor . And in the same Book of c c In Biblioth. Cottoniana . 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 d d Report 2. fol. 45. a. 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 e e Vide in d. Commentatio , ibid. 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 f f Cap. 6. §. 4. 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 g g Extr. tit . de Arbitris . c. 3. pern . ni● ad nos . 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 in a hand of about Henrie the fifth , in the Booke of h h In Bibblioth . Cottoniana . 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 i i Tit. de locato & conducto c. licet bona verb. p●rtiones . 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 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 k k Lib. 5. tract ▪ de Exceptionibus cap. 12. fol. 411. b. 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 continuance 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 l l Innoc. 3. in Epist. Decret. lib. 1. pag. 20● . 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 m m Ibid lib 2 pag. 410. Videsis Extr. tit . de Decimis c. 3. Ex multiplici . 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 n n Voyez Rep. part. 2. fol. 44. & Fitzh . Nat. Br. fol. 42. ● . 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 o o Regist. Orig. fol. 38. b. Fitzh . vbi supra . 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 p p Vide lib. Intrat . non . rit . Prohibition §. 6. & Rep. 2. part . fol 44. prescribe , that is , De modo decimandi . and to that purpose an immemoriall custome of a whole Town or Mannor holds place at this day . So was the Law q q 8. Ed. 4. fol. 14. anciently also . Beside these discharges , some may here expect that part of our Laws , which with vs ( as the Philippine in France , and the Carolines in Spain ) discharge some things from payment of Tithes , and seem to permit some customs de non Decimando . But for that matter ; so much as vpon consideration was thought fit to be sparingly said of it , is referd to the passages in the next Chapter , that touches ancient prohibitions de non Decimando . Neither indeed doth that part of our English customs belong to the title of Exemption or Discharge . for Exemption and Discharge are properly singular rights to this or that person or Land , and against the currant of the practiced Law . but those things touching which any such prohibitions de non &c. by our Law should be granted , are supposed generally according to the reasons and practice of the Laws of England , of their own nature , not titheable . So that not so much a discharge is found in that course as a preuention of an vnlawfull charge which the Canons would lay vpon that which the Laws of the Kingdom account not at all in its own nature chargeable . But thereof somewhat more anon .

CAP. XIV .

I. The iurisdiction of Ecclesiastique causes , in the Saxon times , exercised by the Shrife and the Bishop in the Countie Court . and among them that of Tithes also was then to haue been there determind . The Bishops Consistorie seuered from the Countie Court by William the first .

II. After the Normans , Originall suits for Tithes , were aswell in the Temporall Courts as in the Spirituall . and that continued till Henrie the second or about King Iohn .

III. Of the time since about King Iohn or Henrie the second . Of the Indicauit and the Writ of right of Aduowson of Tithes . What the Law was in an Indicauit before that Statut of Westm. 2. A touch of ancient Prohibitions , De non Decimando .

IV. Writs of Scire facias for Tithes . Enquests taken vpon Commission to enquire of the right of Tithes .

V. Fines leuied of Tithes ( in the time of Richard the first , of King Iohn , and Henrie the third ) vpon Writs of right of Aduowson .

VI. Scire facias by the Patentees against the pernor of Tithes granted by the King .

VII . Command of paiment by the Kings Writ . And of Tithes in Forests . Triall of the right of Tithes incident in some issues .

AS a corollarie to the former parts that directly concerne the payment or consecration of Tithes , we thought fit to adde here in the Conclusion of the Treatise , the Historie also ( but only the Historie ) of the iurisdiction of Tithes in this Kingdom . It is cleer by the practiced common Law , both of this day as also of the ancientest times that we haue in our yeer books , that regularly the iurisdiction of spiritual Tithes ( that is , of the direct and originall question of their right ) belongs , I thinke as in all other States of Christendom , properly to the Ecclesiasticall Court . and the later Statuts that haue giuen remedie for Tithes infeodated from the Crown after the Dissolution , leaue also the ancient right of Iurisdiction of Tithes to the Ecclesiastique Courts . But how the difference of Ages hath herein bin amongst vs , is litle enough known euen to them which see more then vulgarly . In declaration thereof , we shall aptly deuide the time tripartitly ; into that of the Saxons ; that from the Normans till about Henrie the second ; and what intercedes from thence till this day .

In the Saxon times a iurisdiction of Ecclesiastique causes ( among which you may reckon that of Tithes , although not much signe of it , in exacting payment of them , appears in the moniments of that age ) was exercised iointly by the a a Videsis Leg. Et●el●●ni apud Fox in Eccles. Hist lib. 3 ●ag 135. col . 1. Hinc debent Episcopi &c. Bishop of the Diocese , and by the Shrife or Alderman of the sciregemot , or Hundred , or Countie Court , where they both sate , the one to giue Godes right , the other for ƿuruldes right , that is , the one to iudge according to the Laws of the Kingdom , the other to direct according to Diuinitie . and in the Laws made for Tithes by K. Edgar and K. Knout , you see vpon default of paiment it is ordaind , that the Bishop and the Kings Bailife , or Shirife , with the Bailife of the Lord of the Land , should see that iust restitution should be made . particulars of the exercise of this kind of iurisdiction , I haue not seen . But at the Norman Conquest , this kind of holding Ecclesiastique pleas in the Hundred or Countie Court , was taken away . Remember that as at this day most of the Pleas Ecclesiastique are in the Ordinaries Court within the Diocese , so most suits in the secular or common Law were Viscontiel and held in the Countie or Hundred Court of the Shrife in those ancienter times , which may best be obserued out of one of the books of Ely b b In Biblioth. Cottonianae . the most especiall moniment that is extant , for the holding of Pleas in the Saxon times . That alteration at the Norman Conquest , was by a Law made by the Conqueror , and directed to all Tenants in the Diocese of Remy , that was first Bishop of Lincoln whither his See was then translated from Dorchester . and although it be sent in the direction by name to them only , yet it seems , it grew afterward to be a generall Law , no otherwise then the Statut of Circumspectè agatis , that hath speciall reference only to the Bishop of Norwich . The words of it c c In Rot. Insp ex . Chart. 2. Rich. 2. prodec . & cap. Lincoln . membran 12. Idem est quod habetur Angl●cē apud Foxum Hist. Eccles. Anglic . lib. 4 pag. 154. col. 2. as they are recorded , are , Sciatis vos omnes & caeteri mei fideles , qui in Anglia manent , quod Episcopales leges , quae non benè secundum sanctorum Canonum praecepta , vsque ad mea tempora in regno Anglorum fuerunt , communi Consilio Archiepiscoporum meorum & caeterorum Episcoporum & Abbatum , & omnium Principum Regni mei emendandas iudicaui . Proptereà mando , & Regiâ autoritate praecipio , vt nullus Episcopus vel Archidiaconus de legibus Episcopalibus amplius in Hundret placita teneant , nec causam quae ad regimen animarum pertinet , ad iudicium secularium hominum adducant , sed quicunque secundum Episcopales leges , de quacunque causa , vel culpa interpellatus fuerit , ad locum quem ad hoc Episcopus elegerit & nominauerit , veniat , ibique de causa sua respondeat , & non secundum Hundret , sed secundum Canones & Episcopales leges rectum Deo , & Episcopo suo faciat . Which I rather transcribe here , because also it seems to giue the originall of the Bishops Cosistorie , as it sits with vs , diuided from the Hundred or Countie-Court , wherewith , in the Saxon time , it was ioyned . And in the same Law of his , is further added , Hoc etiam defendo vt nullus Laicus homo de legibus quae ad Episcopum pertinent se intromittat &c.

II.

Afterward , vnder the succeeding Princes , till about Henrie the second , it seemes , that the Iurisdiction of Tithes was exercised in both Courts , as well Secular as Spirituall , and that by originall suit ; not only in the one by the first instance ( 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 d d Ch●rta Simonis Comitis North in Thesaur . Cotton . 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 e e I. Sarisbur . epist. 21.84.92.109 . & 133. 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 f f Idem Epist. 109. , 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 g g Append ▪ ad Concil Lateran . part . 47. cap. 5. 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 h h Chart. antiq. EE . 1 in Arce Londin . 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 i i Chart. antiq ib. S. 7. vide supr. cap. 8. §. 17. 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 pa●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 k k Ms. In Biblioth. Cottoniana . , 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 l l In Bibl. autoris 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 Ecclesias horum praedictorum Maneriorum meorum pertinent . Similitèr facite ei habere benè & plenariè & Decimas & omnia iura praedictarum Ecclesiarum in terris & capellis . Quia pro salute animae meae & omnium antecessorum meorum beato Petro eas concessi in Eleemosynam . Nolo autem quod pro recti penuriâ quicquam perdant quod iustè habere debent . T. apud Eborum . And about 6. Hen. 2. when Turstin Fitz-Simon vsurpt the Tithes of Mercham , belonging to the Abbey of Abingdon , one of the Monks were sent ouer to the King into France , Vt per eius iustitiam & autoritatem ( as my m m Colici● Abindinensis Ms. Bibl. Cotton . Autor saies ) rectum suum Ecclesiae suae restitueretur . Quod & ita factum est . Rediens enim frater qui missus fuerat breue à Rege transmissum in haec verba reportauit . Then the writ followes , directed from Tours to the Shirife of Barkshire . Henricus Rex Angliae & Dux Normanniae & Aquitaniae & Comes Andegauiae , Vicecomiti suo & ministris suis de Berchesira salutem . Si Ecclesia de Abbendona habuit Decimam de Mercham ad luminare Ecclesiae tempore Henrici Regis aui mei & anno & die quo fuit mortuus & viuus & post , & inde sit disseisita iniustè & sine iudicio , tunc praecipio quod sine dilatione inde eam resaisiatis , Et ita benè & in pace & liberè & iustè tenere faciatis sicut meliùs & liberiùs tenuit tempore Henrici Regis aui mei , Et praecipio quod quando Turstinus filius Simonis redierit in Anglia , quod Abbas Abbendoniae plenum rectum habeat de terra quam praedictus Turstinus filius S. tenet de feudo Abbatiae . Et si Abbas poterit disrationare quod non defecerit de recto praedicto T. in Curia sua , Abbas inde ei in Curia sua rectum teneat . T. Magistro Iohanne de Oxenford apud Turonem . The Shirife , by vertue of this Writ , vpon enquirie of the point of it in his Countie-Court , restored the Abbey to the possession of those Tithes . The words of the Booke are , Cum verò per lectum esset Regis breue in pleno Comitatu & manifestè compertum totius Comitatus testimonio n n L. quòd . quoniam praefata Decima ad luminare Altaris S. Mariae pertineret , & quod eam Turstinus iniustè tenebat , Vicecomes ex parte Regis illum dissaisiauit , & eam Altari cui adiacebat restituit . What can be plainer , then that in those times ( if these examples haue credit , as indeed they cannot iustly be impeached ) the Temporall Courts held Iurisdiction of Tithes in point of right ; and not only the Spirituall . and to confirm it , we adde also the autoritie of Iohn of Sarisburie o o Epist. 159. that then liud . he in an Epistle to the Bishop of Excester relating some of those Positions of the common Laws ; or the Auitae consuetudines ( as they called them ) which Thomas Archbishop of Canterburie about 12. of Hen. 2. so much withstood , mentions one to be Quod Laici , siue Rex , siue alius , causas de Ecclesijs & Decimis tractent . which well agrees with the autorities before cited . But this was vtterly disallowd then by the Pontificiall Laws , as , beside the autoritie of the common Canons , may be seen in an Epistle of Alexander the third , to the p p App. ad Concil. Lateran . part . 10. cap. 26. Bishop of Exceter and the Dean of Chichester , wherein it appears , that one William a Clerk of Chichester had appealed to the Pope about Tithes , the suit being twixt him and the Parson of Curket . and the Parson had on the other side appealed Ad audientiam Domini Regis . whereupon saies the Pope , Quoniam nemini liceat super rebus spiritualibus ad secularem Iudicem appellare , they should enquire of the matter , depriue the Parson , and send him to Rome .

III.

The frequencie of such originall suits for Tithes , in the temporall Courts ( through the Canons and the power of the Pope increasing , and growing more dreadfull to Henrie the second , and King Iohn ) became about their times to be , it seems , more out of vse , and possessed rather by Ecclesiastique iurisdiction . Neuerthelesse in the sundrie ages since , the determination of the right and payment of Tithes hath been subiect to the temporall Courts , by diuers kinds of originall proceeding , which for orders sake may be all comprehended in these Fiue . I. By Prohibitions touching the modus or Customs of Tithing , or other matter concerning the Kings q q Vide Eliz● . Nat. B● . fol. 40. N. right , triable only in his own Court , or the like . II. The Writ of Right of Aduowson of Tithes , wherto you must annex the writ of Indicanit , that is but a speciall prohibition making way for the Writ of Right of Aduowson . III. By Scire facias IV. By bare processe of command of payment . V. By the actions vpon the late Statuts of 32. Hen. 8. and 2 Ed. 6. For the first and last of these ; because they are now both in common practice , and thence known enough in generall to euery man , I abstain purposely to speak more of them ; sauing only that for the first ; out of the more ancient ages , I obserue somwhat by the way which may belong to the vse of the present . In 21. Hen. 3. when all the Clergie of England , in the Nationall Synod held at London , vnder Otho the Popes Legat , made subplication to haue redresse from the King , of some grieuances , r r Annal. Burton . Monast. in Bibl. V. Cl●●h . Allen. Oxon. subanu . 1237. one was , Quod iudices seculares non decidant causas Ecclesiasticas in foro seculari &c. & vtrum dandae sint Decimae de Lapicidinis , vel Syluicedijs , vel Herbagijs , vel Pasturis , vel de alijs Decimis non consuetis . which shews that the temporall Courts also in those elder times , determined what was titheable or not , & so made prohibitions De non decimando , according to the Processes in France vpon their Philippin , and in Spain vpon the Carolin , and according to that note in the s s Fol. 54. b. Register and t t N.B. fol. 5● . Fitzherbert touching the Iustices determination of what is titheable . agreeing to this is a Case of 8. Hen. 3. u u Placit . & Inquisit . 8. Hen. 3. in Arce Londin . where in a prohibition was granted against a Parson that sued for the Tithes of Rent . But you shall haue it as it is in the Record . Warwick . Magister Eustachius de Cestreton attachiatus fuit rd respondendum Hugoni de Lege , quare contra prohibitionem &c. trahit eum in placitum in Curiam Christianitatis de Laico feodo ipsius Hugonis in Cestreton ; vnde Idem Hugo queritur quod ipse exigit ab eo in Curia Christianitatis de certa pecunia pro Decimis molendinorum , & certum pratum , scilicet tres acras prati , & praetereà de Wareto suo ; & de terris incultis si illas locauerit ipse petit Decimum denarium &c. Et Magister Eustachius venit & defendit contra eum & contra sectam suam , quod nunquam traxit eum in placitum de aliqua re certa nisi tantùm de Decimis faeni & molendinorum sicut Decimae inde dari debent , nec aliquam acram prati petit nec denarios de molendinis , nec aliquid de Wareto vel terra nisi tantùm garbas ; & ideò praeceptum est eidem Eustachio quod de nullo placito de caetero sequatur in Curia Christianitatis ▪ nec de aliquo Laico feodo nec de aliquo quod sit contra Coronam Domini Regis . But , to leaue this and to go to the II. and III. and IV. courses of proceeding for Tithes in temporall Courts , which are not so obuiously known ; for the II. touching the Writ of Right of Aduowson of Tithes , and the Indicauit . it hath bin cleer euer since the Statut of Westminster 2. cap. 5. and of Circumspectè agatis , both made in 13. Ed. 1. ( this as well as the other long since being receiud into practice by the name of a Statut , and so called in Acts of Parlament ; although it were anciently reputed rather as an Ordinance made x x 16. Ed 3. tit Jurisdiction 28. & See Cosius Apologie part. 1. pag. 57. &c. & Rot. Parlam . 25. Ed. 3. artic. 62. by the King and Prelats ) that if A. Parson of Sale ( for examples sake ) libell against B. Parson of Dale in the spirituall Court , for so much Tithes and Offrings , possessed by B. as amount to the fourth or a greater part of the value of the Church of Dale , B. may haue him prohibited by an Indicauit directed to him and the spirituall Iudge , after which the Patron of A. hath no other remedie for himselfe or his Encumbent ( what right soeuer they haue ) then to bring a Writ of Right in the common Pleas , of the Aduowson of that fourth part , against the Patron of B. in which Writ , the right of those Tithes must be tried by the common Law . and herewith expresly agrees the Statut of Articuli Cleri . and the reason is because that if the determination of this Plea should be allowd to the spirituall Court , then might the Patrons Aduowson of such a part be there lost by iudgement according to the Canons , whereas the right of Aduowson and Patronage of Churches or Tithes only belongs , by our ancient Laws and at this day , to the secular Court . Neither is the Writ so much of the Tithes as of the Aduowson of the Tithes ; Praecipe A. ( so are the words ) quod reddat B. aduocationem Decimarum tertiae vel quartae partis Ecclesiae de C. &c. And howeuer by the Canon Law the right of Tithes be meerly spirituall , and so not due to the Rector so much by reason of his presentation from the Patron , as of the common right challenged by the Ministerie ( whereupon also a a Constit. Prouin . tit. de fore competent . c. Circumspect● . verb. quarta part . Lindwood , like a Canonist , thinks it not preiudicall to the Patron , which way soeuer the Tithes alone be determind of , in regard that all the Patrons interest is , hee saies , originally in the foundation , building , or endowing of the Church with Manse , Glebe , or Rent , and hath no relation to the Tithes which by common right are receiud without his Donation ) yet by reason it seems both of our ancient practiced Law of Dotation of Churches by arbitrarie conueiances of Tithes , at the owners pleasure , in which doubtlesse Patrons very frequently b b Videsis Matth. Paris pag 716. lin. 40. encreased the reuenues of foundations with the Tithes of their Demesnes ; as also of that other ancient vse of Inuestiture , wherein the very interest of all the Glebe , Tithes annext ▪ and other reuenues , was transferd into the Encumbent by the Patron ; it was thought fit that the Aduowson of the Tithes alone should be equally reputed , for what concerned the Patron , with any other part of the Churches reuenue . And the Law hath been cleer thus , and so still practiced c c 7. Ed. 3 fol. 42. b 8. Ed. 3. fol 50. a. Regist. Orig fo 29. b 38 Ed 3. fol. 1● . a. 16. Ed. 3. tit . Qua ●e impedit 147. 38 Hen. 6. fol 20 a. Fitzh . N.B. fol 30 c Se●german . fol. 108. since the Statuts before cited . they permit not the spirituall Court to hold Plea of Tithes of the value of the fourth part , where the Patronage is questionable ; but will haue the Aduowson thereof tried alwaies by the common Law after the prohibition of Indicauit , which ( being purchased aswell at the suit of the Patron as of the Parson ) recites that the Parson defendant in the spirituall Court Tenet d d 31. Hen. 6. fol. 14. b. & Bract. lib 5. tract de Exceptionibus cap. 4. fol. 403. a. & vide Fitzh . Nat. Br. fol. 45. D. medietatem or quartam partem omnium Decimarum prouenientium de &c. de aduocatione of the Patron &c. And then , Quia manifestum est quod praedictus the Patron iacturam aduocationis Decimarum praedictarum incurreret si praedictus Rector in causa illa ( that is the Parson plantif ) obtineret , vobis prohibemus ne placitum illud teneatis in Curia Christianitatis donec discussum fuerit ad quem illorum pertineat earundem Decimarum aduocatio . And then according as the right shall afterward be tried in the Writ of right , the spirituall Iudge is to giue e e Westm. 2. cap. 5. sentence . The same Statuts allow , to the spirituall Iurisdiction , conisans of the fift , and of all parts lesse then a fourth of the value of the Church in tithes controuerted twixt two Parsons . and no Indicauit f f Artic. Cleri . cap. 2. is grantable to forbid the suit of one of them , commenced for any lesse part , in respect of the Patrons right only . Neither vpon them , by consequence , hath any Writ of right of any part of Tithes that g g 18. Ed. 2. tit . Brief 825. & Regist. Orig. fol 29. b. Vide Fitzh . Nat. Br. 45. D. appears not to be a fourth part of the Churches value , been allowable . But , for this point ; how the Law was before those Statuts of 13. Ed. 1. is a great question in our yeer books , and diuers are the Opinions touching it . Some h h Moile 38. Hen. 6.20 . a. For●es● . 31. Hen. 6.14 . a. ●eingerm . fol. 108. & voye● 38. Ed 3.19 a. 16. Ed. 3. tit . Qua●e impedit 147. think that before the Statut of West . 2. cap. 5. ( out of which , ioind with Circumspectè agatis , they limit the Indicauit to the fourth part ) no Writ of right of Aduowson of any Tithes lay by the common Law . Others ghesse that before that time a Prohibition or Indicauit lay vpon euery suit in the spirituall Court i i Markham 38. Hen 6. fol 20. a. & Parn. 4 Ed 3. fol. 27. b. for Tithes , and that the Patron might haue had his Writ of k k Regist Orig. fol. 29. b Fitzh . B. 30. ● Fortesc . 38. Hen. 6. fol. 20. a. right vpon such prohibition against the suit of his Encumbent , either of a fift or sixt part , and that these Statuts restraind him to the value of the fourth part at least Others haue herein other fancies . But , it is plain first , that long before those Statuts , Tithes were demandable , of the owner detaining them , of their own nature , and pleadable , in the Spirituall Court . and that affirmd in Fleta , was regularly before true . Decimae l l Fleta . lib. 6. cap. 37. in quantum Decimae ( it suits against the Parishioners ) debent in foro Ecclesiastico intentari , wherewith Bracton , * * Lib. 5. de Exceptionibus cap. 4. fol. 403. & cap. 10. fol. 407. liuing in the time of Henrie the third , also agrees . But it is as plain that before those Statuts , if the Rectors of two Churches of seuerall Auowries , had controuerted the right of a fourth part ( or of the value of either of their Churches more ) in Tithes , by suit commenced in the spirituall Court , the Patron of the Rector-defendant might haue had an Indicauit , to prohibit the prosecution and holding of the Plea . Bracton teaches vs that ; and hath the forme of the Writ to the same purpose , and giues his reason , Quia posset Patronus , iacturam suae aduocationis incurrere . But somwhat doubtfully he limits the quantitie of the Tithes to the sixt part at the least , beyond which denomination the Indicauit , hee thinks , lay not for any part . His words are : Si contentio fuerit inter Rectores de aliquibus Decimis quae aestimari possunt vsque ad quartam , quintam , vel sextam partem aduocationis , vltra quam partem non extenditur prohibitio vt videtur , tunc fiat Iudicibus ( Ecclesiasticis ) Prohibitio in hac forma . Rex talibus Iudicibus salutem . Indicauit mihi &c. But he mentions no Writ of right of Aduowson of Tithes that should follow . Hee saies indeed that vpon the Indicauit , by consent only of the Patrons , there may be an enquest taken ( the Iurie being returnd into Court by Venire facias or Distringas had by petition of them so consenting ) tanquam de Aduocatione , to find Vtrum talis praesentatus à tali Patrono recentèr fuerit in seisina de talibus Decimis tanquam spectantibus ad Ecclesiam suam quam tenet de praesentatione talis Patroni sui , vel si talis alia persona inde fuit in seisina tali tempore vt de Decimis spectantibus ad Ecclesiam suam talem quam tenet de aduocatione talis Patroni sui . But how euer Bracton's owne opinion ( yet doubtfully ) be , that the Indicauit might bee brought for the sixt part , and for no lesse , yet , it seemes , the practice of the age was otherwise . and that no determination was in his time , nor before 13. Edw. 1. of any certaintie therein ; which is expressely deliuered in the Grieuances comprehended in the Nationall m m Annal. Burton· in Biblioth. V.C. Thoma Allen. Oxon. Councell of London in 21. Hen. 3. where all the Clergie entreated Otho the Popes Legat , that hee would perswade the King to alter and correct certaine proceedings , quae fuerunt in regno Angliae in praeiudicium libertatis Ecclesiasticae ; among which , one is , Item ne currat prohibitio ( you must vnderstand the Indicauit ) Ne Iudices Ecclesiastici cognoscant de iure Pat●onatus quominus Clerici possunt petere Decimas tanquam de iure Communi ad Ecclesias suas pertinentes . Quia Patroni Ecclesiarum vel Capellarum quae Decimas petitas possident , dicunt per talem petitionem Iuri Patronatus sui derogari , & nolunt Iusticiarij Domini Regis Iudicare quota pars Decimarum peti possit vel debeat coram Iudice Ecclesiastico . And another , Item ne currat prohibitio Domini Regis , ne Rector Parochialis Ecclesiae impetat eos qui percipiunt Decimas infra limites Parochiae suae . By both which , compared with the ancient Bookes , it appeares , that the Kings Prohibition lay commonly , if the Aduowson of the Tithes were between two persons questioned , and that also ( for aught occurres to the contrarie , except Bracton's coniecture ) if any part of the Tithes or the Aduowson ( which in such a suit were reputed as one ) had been controuerted . To these testimonies may be added this , in the Epistles of the most learned n n In Epist. Rob. Li●● Mss. in Biblioth. Cotton . Robert Grossetest Bishop of Lincolne vnder Henrie the third , whereby the course of Indicauit is proued , and also taxed for iniustice against the libertie of the Church . Thus is it spoken of among other grieuances of the Clergie . Item in Ecclesiae libertatem non mediocritèr delinquitur , cum Iudices Ecclesiastici , ne causas quas notum est purè esse Ecclesiasticas in foro discindant Ecclesiastico , à domino Rege prohibentur . Vt per literas Regias inhibetur ne Iudex Ecclesiasticus iudicialitèr cognoscat vtrum Ecclesia vel Capella talis loci sit Capella Matricis Ecclesiae alicuius alterius loci , & vtrum Decimae talis terrae ad hanc vel ad illam pertineant Ecclesiam , eò quòd si Actor in huiusmodi causâ euincat possessionem , Ecclesiae Rei contingeret imminui ac per consequens , vt aiunt , ius Patronatus eiusdem Ecclesiae deteriorari , Ecclesiâ ad quam Patronus praesentabat effectâ minus pingui . Accideret namque ratione consimili , omnem causam super possessionem vel quasi possessionem Ecclesiasticam inter duos Rectores duarum Ecclesiarum diuersorum Patronatuum emergentem , ne ventilaretur coram iudicibus Ecclesiasticis a domino Rege debere prohiberi ; eo quod Actore in huiusmodi causa euincente , continget semper Ecclesiam Rei imminui ac per hoc , secundum quod dicunt , Patronatum eiusdem deteriorari . Consequetur autem & sic quod huiusmodi causae Ecclesiasticae nunquam discindentur . A seculari enim iudice discindi non poterunt , neque ab Ecclesiastico iudice , obstante Regiâ prohibitione . Fortè autem nec consequitur quod in huiusmodi casu , euincente actore , imminuetur Patronatus alterius Ecclesiae . Non enim minus est Patronus qui minoris Ecclesiae est Patronus , sed nec minùs est pater qui minoris hominis est pater . Patronatus enim seu ius Patronatus non intenditur vel remittitur ex maioritate vel minoritate rei cuius est Patronatus . Praetereà sed tubera & ea quae contra naturam excrescunt in carne hominis non augent ipsum hominem , & medicinalis abscissio innaturalium huiusmodi excrementorum ipsum hominem non imminuit sed potius pulcrificat & sanat . Ita iniustè possessiones & quasi possessiones Ecclesias ipsas non augent sed deturpant , & earum abscissio per iustum iudicium non est Ecclesiarum imminutio , sed potius pulcrificatio quaedam & sanatio ; vnde & Patronatus seu ius Patronatus per huiusmodi abscissionem nullo modo potest imminui vel deteriorari , sed multò ampliùs emendari . I faithfully relate it , and censure not the Arguments . You may doe that , Reader , while you smile at the Magis and Minus in it . But also , although the Indicauit prohibited the Spirituall Court , yet it seemes the Temporall , before the Statute of Westminster 2. and after the time of Henry the second , or thereabouts , held no Plea of right of Aduowson of Tithes , except only vpon Inquest taken by consent of both Patrons . something , as you see , might be tried in it . May we not conclude then , that the same Statut , in those words , Habeat Patronus Rectoris sic impediti breue ad petendum Aduocationem Decimarum petitarum , was the first Autor ( at least after the change about the time of Henrie the second ) of the Writ of Right of Aduowson of Tithes ? Which also is well iustified by the pleading of the Abbot of Selbies case , within six yeeres after the Statute , wherein the parties ( according to the fashion of argument in pleading of that time ) agree , o o Platit . de Banco Pasch. 19. Ed. 1. rot. 45. Quod breue de quarta parte Decimarum primo locum habere caepit à tempore Statuti Regis nunc apud Westmonasterium inde editi &c. Neither rests any scruple , touching the fourth part , why the Prohibition in the Indicauit and the Writ of Right , should bee of the fourth part only , or of a greater , although the Statute of Westminster 2. speak of no certaine part . For , that of Circumspectè agatis ordaines , That no Prohibition or Indicauit should lye , where the part controuerted is lesse then a fourth ( it being before grantable vpon such suit for a sixt part , by Bracton's opinion ; and it seems indeed , vpon suit for any part ) and the Statute of Westminster the 2. giues the Writ of Right only where the Indicauit is first sued . And for this matter of Indicauit ( which concernes properly suit between Rector and Rector , not between the Rector and the Parishioner ) take as a note by the way the aduice of the Bishops among themselues in 41. Hen. 3. against the Temporall Courts . In the Annales of Burton it is extant , & thus speaks . Concilium Archiepiscopi & omnium Episcoporum super Articulis propositis apud London . Petit persona Ecclesiastica Decimas coram Iudice Ecclesiastico . Iudicanti & petenti porrigitur Regia Prohibitio nomine Patroni Ecclesiae cuius Rector conuenitur , ne super Aduocatione seu Patronatu Ecclesiae Iudex ille cognoscat ; si actor prosequatur & Iudicantis officium * * f. index . assumat , vterque attachiatur & attachiati veniunt Consilium tale est , quod si Iusticiarij causam Decimarum sub colore querelae Aduocationis Ecclesiarum ad se trahere velint & de non prosequendo vlterius causam Decimarum in foro Ecclesiastico & Iudice siue a Parte securitatem exigunt , in nullo eis caueatur . Et si propter hoc aristentur , per loci Diocesanum requirantur siue per Episcopum proprium . Et si libere non tradantur Ecclesiae , competenti monitione praemissa excommunicentur Iudicantes & detentores . Et si queratur a Iudice quota pars vel quanta petatur , non respondeatur . But this aduice of theirs was to litle purpose , nor durst they , questionlesse , haue put it in execution . The Statuts of Westminster the 2. and Circumspectè agatis gaue them some remedie ; whereof enough alreadie .

IV.

Of Writs of Scire facias , graunted to call men to answer in the Chancerie for Tithes , sufficient testimonie is in the Statute made for the Clergie in 18. Ed. 3. chap. 7. Item que per la ou briefs ( so are the words ) de Scire facias eient este grantez a garnir Prelates , Religieuses , & autres Clerks a respondre des Dismes en nostre Chancellarie & a monstre s'ils eient riens pur eux ou sachent riens dire pur quoy tielx Dismes a les demandants ne deuient estre restituees & a responder auxibien a nou● come a la partie de tielx Dismes &c. By this it appeares , that some vse was to graunt such Writs for Tithes . Whence also Fitzherbert well inferres , that the right of Tithes was determinable in the Kings Court . But wee haue not in our Yeere-Bookes any case of further declaration of that vse before the Statute . But out of good ground you may coniecture , that in these Three speciall cases , Writs of Scire facias were grantable anciently for Tithes , and that in those times , before the Statut ; either vpon the title of the demandant , first found by Inquest , to the Tithes , or returnd by the Shirife ; or out of Fines , it seemes , leuied of Tithes ; or vpon Patents of Tithes legally graunted by the King , when , against the Grant , any Clergie man by the Canon Law took them from the Patentee . Of all these , there is faire proof enough . But the third ( it seems ) hath principall reference to that Statute , as shall anon be shewed . For the course of taking an Inquest by commission , which being returnd , might be sufficient ground for a Scire facias , it appeares in Escaet . 8. Ed. 1. numer . 67. that a commission was sent to Adam of Eueringham , Steward of the Forest of Shirewood , to enquire by Oath of the Foresters and Verderors , whether the Priors of Lenton had vsed to haue all Tithes of the Kings Venison , taken in the Countie of Notingham , which they claimed per Cartas quorundam praedecessorum &c. And in the Inquisition returned , it is found , that they had vsed to haue it , and that first by the Grant of p p Videsis Rot. Claus. 21. Hen. 3. membran. 3. King Iohn . And in the same bundell , num. 72. a Commission is to Nicholas of Stapleton , commanding him to enquire , whether the Prior of Wyrkesep ought to haue the Tithes of all profits of the Mannor of Gringeley ; Nobis super iure Prioris in hac parte & facto contrario ( that is , the subtraction of them by Henrie de Alemannia , against whom the Prior complaind ) certiorari volentibus &c. Whereupon the Commissioner returnes , that the Priorie had right by prescription , and that Henry de Alemannia had subtracted them . What could be more proper , then to haue a Scire facias vpon the Inquisition , according to the intent of that preample of 18. Ed. 3. in which Scire facias , the right might be tried between the parties , and so iudgement be giuen ? To these may be added that in Inquis . ad quod damnum 8. Ed. 2. num. 79. Where , per Petitionem q q Videsis Rot. Parl. 8 Ed. 2. rot. 23 in Consilio , the Abbesse of Godestow hath a Writ directed Custodi equitij sui de Woodstock &c. which relates that ex parte dilectae nobis in Christo Abbatissae de Godestow per petitionem suam coram nobis in Consilio nostro exhibitam , nobis est ostensum quod cum per cartas r r Vide , si placet , Rot. Claus. 21. Haw . 3. membr. 19. progenitorum nostrorum quorundam Regum Angliae Concessum sit ei , quod ipsam Decimam omnem in Manerio nostro de Wodestoke , & parco nostro ibidem per annum renouantium percipiat & habeat , praetextu cuius . the Abbesse and her Predecessors had enioied it , and that the Bailife kept from her the Tithe of the Colts , bred in the same Park ; wherefore it commands him to restore them if they be so due ; which supposes , I think , that he should return an inquest or some discouerie of the truth or falshood of the Plaintifes pretence , although indeed this example may serue also for that part of our diuision of this kind of proceeding which touches Patents . But to that Writ is annext the return , that is , the Bailifes acknowledgment in French of her right . his name is William Beauxamys . So in Escaet . 7. Ed. 3. num. 83. a Commission is sent out to enquire of the right of the Tithes of the Demesnes of the Kings Castle of Tikhull , which the Prior of S. Oswald claimed . the enquest was taken of it at Le Faure Okes , in the confines of Yorkeshire and Nothingham . and in it the particulars of the right are returned . and what should want , that vpon such returns , writs of Scire facias might not haue been granted . we omit that before cited out of the Parlament Rols of 18. Ed. 1. s s Pat· 9. Hen. 3. part. 2. membr. 3. And light also to this practice in the temporall Courts of that elder time , may be had from other Commissions or Processe in the Rolls ; as from that sent by Henrie the third into Ireland , to the Archbishop of Cassile , the Bishop of Ferne , and the Bishop of Lismore , commanding them , that , taking with them Ieffrey de Marisco then Iustice ( or Lord Deputie ) of Ireland , or some other whom hee should appoint , they should enquire by the Othes of both Lay and Clergie men , whether Bartholmew de Camera Parson of the Chappell of Limeric , or William of Caerdiff Treasurer there , had seisin of the Tithes , De Piscaria & 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 t t Jn fascic . Pet. 6. Ed. 1. in Arc● Londin . 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 .

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 u u 38. Ed. 7. fol. 8. & Regist. Orig. fol. 165. 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 a a In Bibl. Cotton . 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 b b Fascicul . Bren. de 17 Ed. 3. part . 1. & 3. in Arce Londin . 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 referd to Mihelmas Terme following In Statu pro nunc . the Writ is both in part 1. and 3. of that yeer , but to that in part 3. which is of Trinitie Terme , a Plea of the Abbots is annext in these words . Et praedictus Abbas per atturnatum suum dicit quod praedicti Decanus & Capitulum per breue suum non supponunt quod Ecclesiae de Witteham & Cheresinges sunt de fundatione dictae liberae Capellae Domini Regis , sed quod illas Ecclesias tenent de dono Matildae quondam Reginae Angliae post fundationem dictae liberae Capellae , & dicit quod tempore doni , praedictae Ecclesiae fuerunt in iurisdictione ordinariâ videlicet Episcopi London . & continuè post donum hucusque fuerunt & ad huc sunt in praesenti in iurisdictione ordinaria . Et dicit quod praedictae Ecclesiae fuerunt visitabiles & visitatae per Episcopos London . in visitationibus suis à tempore à quo memoria non extat . & praedicti Decanus & Capitulum per breue suum petunt decimas quas supponunt esse parcellam earum Ecclesiarum quae sunt in iurisdictione Ordinaria in forma praedicta , & sic Decimae illae sunt merè spiritualia & non placitabilia nisi in curia Christianitatis ; per quod non intendit quod Curia ista in hoc casu cognitionem habere debeat . Here it appeares , that the Counsell of the Abbot of Colchester Defendant , supposed that the conisans of the Tithes was spirituall only , vnlesse they were originally part of the Kings free Chappell . how the Case was determined , appears not . But in the next Parlament following was a Petition exhibited by the Clergie in those words before cited § . IV. complayning of the granting of such Writs of Scire facias , and vpon that Petition the King answered , Que tielx breifs desore nauant ne soient grantes , & que les Proces pendant sur tielx breifs soient anentes & que les parties soient dismisses deuant secular Iudges de tielx manner de Plees salue a nous nostre droit tiel come nous & nostre ancestors auoient ewe & soloient auer de reson . I think we need not doubt but that this very Case of the Abbot of Colchester was no small cause of that Petition of the Clergie . and you see mention is , in the answer , of some Writs hanging , whereof this is most likely to haue been one . But howeuer the Petition was answered , and although out of this Petition and answere that Act of 18. Ed. 3. hath been receiud among our Statuts , and commonly goes for one , yet might it deserue further consideration then I will here seem to take of it . only I admonish that within foure yeers after , a Scire facias was b b 22. Assis. pl. 75. brought by a Patentee of Tithes in the Forest of Inglewood , and that against a Prior being Pernor of them ; and by iudgement the Writ was allowd without mention or the least regard had of that Act. why that was so , or what force the Act hath , let others examin ; I purposely abstain .

VII .

But for Processe of bare command of payment of Tithes , or the like ; when the title was by Patent cleerly supposed true , the Shrife or other Officer was sometimes commanded by Writ to take order that the demandant might enioy his Tithes . As in Claus. 7. Hen. 3. part. 1. membran. 6. the King directs his Writ to Brian de Insula Keeper of the Forest of Shirewood , telling him , that pro salute animae Domini Ioannis Regis patris nostri concessimus Monachis de Basingwere , quod percipiant hac vice vsque ad Festum S. Michaelis Anno regni nostri VII . Decimas de bladis seminatis in defenso nostro inter Blakebroc & Glossop , & ideo vobis mandamus quod ipsos Monachos hac vice sine impedimento permittatis Decimas praedictas percipere . T. &c. And such more somtimes occurre . But this , and the most of that age that are of this matter , indeed appeare to haue bin of Tithes in a Forest also , as that of 22. Ed. 3. is in the Booke of Assises ( which happened after the Statute of 18. Ed. 3. ) and you may remember those before cited out of 6. Ed. 1. and 18. Ed. 1. in Chapter XI . § . III. and the example of 8. Ed. 2. before rememberd touching Woodstock Parke . So in Rot. Claus. 5. Hen. 3. part. 2. membr .. 14. the Bishop of Salisburie hath his fiftie shillings yeerely nomine Decimae , out of New-Forest ( which c c Cart. Antiq. CC. in dors. 10. in Arce Lond. Henrie the second had granted to his Church by the name of omnes Decimas de Noua Foresta &c. ) and other like out of other , paid him by Writ to the Sherife ; and in Rot. Pat. 11. Hen. 3. membrana 5. part . 1. Eustace Bishop of London hath the Tithe of the Kings Venison , taken in the Forest of Essex , ( according to King d d Rot. Chart. 6. R. Ioh. membr. 12. ch. 107. Iohns Graunt ) by Writ directed to the Foresters and Bailifes of that Countie . Neither would they ( it seemes ) in that age permit any suit for the Tenths of Venison or Beasts of the Forest in the Spirituall Court , ( although those Tenths were most commonly setled in one Church or another by Grant ) as may be seen in e e In Arce Londin . Mich. 9. & 10. Hen. 3. Rot. 15. where Iohn Fitz-Robert , in an Attachment vpon a Prohibition against Philip of Ardern Clerk , in the pleading allows , that for Tithe of Hay and Mills , the prosecution in the Spirituall Court was lawfull ; but hee further sayes , that de Decima Bestia Forestae eum implacitauit contra prohibitionem &c. And herewith may be considered also the Kings f f Pat. ●6 . Hen. 3. membr. 7. command , sent to the Constable of Windsore Castle , that the Church of Saint Iohn in Windsore should haue Decimas Gardini Regis de Windleshores . But out of these all ( as out of the examples before brought of Commissions to be returned ) it may perhaps be collected , that only the Tithes of the Kings lands , or belonging to his Churches , were to be ordered or commanded to be paid by these kind of Processes . I confesse I haue not seene enough to perswade me otherwise , for the time after about King Iohn or his neere predecessors . Yet , that as I leaue the iudgement of all , which historically I relate to the able Reader , so I may not defraud him of what in any kind may giue light ; here I offer him also this Writ of 24. Hen. 3. that seems to touch the temporall Courts determination of the right of such Tithes , as , for aught appears , belonged neither to the Kings Churches , nor were encreasing in his Demesnes or immediat Tenancies . Henricus Dei gratia Rex * * In Codice Abba● . S. Alba●● . Ms. Angliae & Vicecomiti Hertford salutem . Licet aliàs tibi signifi● auerimus quòd non permitteres Ecclesiam de Hamelamstede spoliari Decimis ad ipsam pertinentibus , & quod Ecclesiam ipsam manuteneres , & defenderes in eo statu in quo ●uit tempore Syluij quondam Rectoris eiusdem Ecclesiae , non tamen fuit intentionis nostrae quòd occasione illius praecepti aliqua alia Ecclesia Decimis suis spoliaretur . Et ide● praecipimus quod occasone illius praecepti nullam violentiam inferas vel inferri permittas Monachis S. Albani super Decimis spectantibus ad Ecclesiam suam de Redburne quas per XX. annos hactenus pacifice possiderunt . T. meipso apud Westm. 1. die Septembris an . r. n. XXIV . And in like forme was a Writ sent to the Constable of Berkhamstede . But this kind of Processe , and all other such Writs of Scire facias , either vpon Commissions returned , Fines , or Patents , or otherwise , ( for aught I could yet learne ) haue long since ceased , by reason especially of that receiued Act of 18. Ed. 3. Neither since that one case of 22. Ed. 3 as I ghesse , hath any vse been of an originall suit for Tithes in the Temporall Courts , sauing only vpon Prohibitions and the Statutes of 32. Hen. 8. & 2. Ed. 6. I say , originall suit . for otherwise , the question of the right of Tithes , incident in an Issue at the Kings g g 38. Assis pl. 20. suit , hath since been triable in the Temporall Court ; and between h h Vide 50. Ed. 3. fol. 20. & 2● . Ed. 4. fol. 24. a. common persons also ; especially if the right of Tithes , vpon the Issue , were but indirectly or inclusiuely in question . And although it were directly the very Issue , yet also it hath sometimes been tried in an Action of Trespas in the Kings Bench , as you may see in Mich. 12. Ed. 2. Rot. 66. betweene Philip de Say Parson of Hodenet in Shropshire , and Geffrey of Wolsele Parson of Chedleton , for Tithes in Marchumle . But of these things hitherto ; and enough .

The end of the Historie of Tithes .

A REVIEW .

AFter some few Copies , thus halfe printed and halfe writen , were dispersed , and since the various Censure of vnequall Readers , ( some of them cauilling at such Passages in it , as the Autor at first thought , and not without cause , had been enough cleered ) this short Reuiew is now added ; wherein , beside some other Confirming and Declaring Autorities , by the way also , and opportunely enough , occurre some Admonitions briefely offered , that may somewhat direct in the Vse of this Historicall truth . The printed sheets could not be encreased , or altered . neither was it so fit , after many hands had the whole , that Additions inserted , should make any variance from the writen part . And plainly , that of the Admonitions , for direction in the Vse , of its own nature rather required a seuerall place , then was fit to haue been mixt in the bodie of the Historie . In the name therefore of Goodnesse and Learning , I earnestly beseech euery one , that hereafter shall get it either Copied or Printed , to ioine also ( if hee may ) this Reuiew with it .

Of the I. Chapter .

IN the I. § . touching that of Abrahams Tithes being of the spoiles of Warre only ; I know many think otherwise . And beside the generall name of Tithes of all , reasons are drawn for their side out of those words of the Patriarch to the King of Sodom ; I will not take of all that is thine so much as a thred &c. I neither professe to dispute it , nor find I any such consequent out of that Text. And the a a Vide Fran. Iuni●m in Analys . Gen●s cap. 14. answer to the obiection is not difficult . But I adde here to those testimonies both of Iewes and ancient Fathers which I haue cited , ( for I was willing to make their testimonies my warrant , not to glosse the text with my owne interpretation , or with the fancies of petie names ) that S. Ambrose and Eucherius Bishop of Lions call those Tithes also b b Consulas Eucherium Lugd. in Genes. lib. ● . cap. 17. & 18 & D. Ambros in Epist. ad Ebraos , cap. 7. Decimas praedae & victoriae . And in one passage , Eucherius hauing a plaine regard to the words of the Epistle to the Ebrews , which in the vulgar are exprest by Decimas de praecipuis ( for the Greek 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 ) sayes de praecipuis praedis Abraham Patriarcha Decimas legitur obtul●sse , directing himselfe still in the conceit of the word All in Genesis , according to that 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 in the holy Epistle , which both in Translations enough , and in the Greek c c Ad cuius interpretationem etiam consule , si placet , Eustathium ad Odyss . T. Prouerbe before rememberd , denotes spoiles of Warre . Yet also the same Father soon after calls them Decimas omnis substantiae suae generally ; but plainly shewing in his former words , that he took omnis substantiae here for nothing but victoriae praedam . Which , it seems , Philo the Iew also vnderstands , where in his Anagogicall course of contemplation he saies that Abraham being the tenth degree from Sem ; d d In lib. 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , consecrated Tenths to the Almightie , as a thanks ▪ giuing for his victorie . And Prim●sius , and old African Bishop , interprets de praecipuis in the Latine text by de melioribus spolijs . But some haue cauilled at my relating , according to S. Hierome , that were it not for the holy autoritie of the Epistle to the Ebrews , it might stand indifferent whether Abraham gaue Tithes of the spoiles to Melchisedek as to a Priest , or Melchisedek the Tenth of his estate to Abraham , as a portion to one of his posteritie . If there be a fault in that assertion ( I confesse I find none ) let them be so bold then as to tax those learned Fathers for it , S. Hierome and e e Lib. 2. in Genes. cap. 25. & 27. Eucherius , beside Freculphus f f Tom. 1. hist. lib. 1. cap. 42. Bishop of Lisieux ▪ and other ancient Writers , that in the same syllables affirme it with S. Hierome , from whom indeed Eucherius transcribed the best part of his more notable passages . Somewhat may be here fitly remembred concerning two Adiuncts that belong to this Storie of Abrahams Tithing , that is , who Melchisedek was ; and where the place of his Kingdome , or Salem , was . For the first , such of the Fathers g g Hieronym . tom. 4. in Epist. ad Enagr . & Eucher . loco citato &c. as out of the Ebrew text had the true notes of supputation of time , take him to be Sem , according as the opinion also was generally receiued among the old h h Epiphantus in hares. 55. Samaritan Ebrews , and diuers Iews i i Autor 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 Midras hagadah apud R●b . Iarchi in Genes. 14. & alij ibid. item Midras in Psalm . 76. apud Galatin . de Arc●●is lib. 3. c. 9. quem & vide lib. 10. cap. 6. also especially of later ages : howeuer some Iews haue been long since of another opinion , in their idle and rash fancies supposing him to be a bastard , which they took to be the cause why his discent is not spoken of with his name : others of them , with the Hiera●its , making him k k D. Ambr lib. 3. de fide cap 5. Hieronym . & Epiphan . vbi supr. & haeres. 67. more then a man . But also both the Hierosolymitan Targum , and that other calld Ben-Vziels , expressely tell vs , he was Sem the sonne of Noah ; which some of late time also haue in Works purposely writen to that end , laboured to make manifest . And doubtlesse , at the time of the victorie , Sem was the chiefest of the familie there , and either a First-born also , or els had in him the right of a first borne , or Priesthood , by translation from his elder brother ; which I adde , because the l l Eam esse Rabbinorum sententiam notat D. Kimch● in rad. 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 ita & Iarchi ad Genes 10.21 . Rabbins and diuers other of the learned will haue it , that Iaphet was the elder brother . But how stands that so well with Melchisedeks being Sem , if according to that old tradition , both among Rabbins and Christians , the Priesthood were an incident to the first-borne male ? Vnlesse the right of Primogeniture were transferd from Iaphet to Sem in Noahs m m Genes. cap. 9. comm. 26. & 27. blessing , as it was to Iacob from Esau , and from C●in , it seems , to n n Vide Philonem 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . Abel , which must be thought on also in the taking their side , who suppose Abraham not to be the eldest of Terahs sonnes . For regularly the Ancients giue the Priesthood before the Law to the first-borne . And whereas Moses is said to haue o o Exod. cap. 24. comm. 5. & vide Numer . cap. 3. comm. 12. sent young men that offerd burnt offerings , the Chalde Paraphrases haue for 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 eth-nairi , i. yong men , 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 iath-bocri , i. of the first-borne ; these S. Chrysostome p p In Gen 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . videsis Eucherium in Genes lib. 2. c. 25. & 27. elegantly stiles 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , Priests of themselues , or made without other ordination or Suffrages : to which Office also ( thus had either by birth , or blessing , that equalled the birth ) a kind of q q Jsid. Pelusio●a lib. 2. epist. 47. Imperiall and Patriarchique dignitie was annexed . That precedence of birth giuen to Iaphet , is of no late inuention ; but many hundred yeeres ancienter then the Talmud , or any worke extant of any Rabbin . For the Septuagint expressely r r Genes. 10.21 . affirme it , 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , and sonnes were borne to Sem , being father of all the sonnes of Eber , and brother of Iaphet , being the elder . which in the Ebrew is not so plaine on either side ▪ for , the words being 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 achi Iaphet hagadol , by reason of the want of termination● of cases , may be alone as well turned elder brother of Iaphet , as brother of Iaphet being the elder , which in the last English translation is brought neerest to the Originall , thus : Vnto Shem &c. the brother of Iaphet the elder , euen to him were children borne . And beside such interpretation of the context , the Chronologicall part of the holy Storie affords much to proue , that Sem was not the first-borne in time . For Noah was s s Genes. 5.32 . D. yeeres old , and got Sem , Ham , and Iaphet . Sem t t Ibid. 11.10 . two yeeres after the Floud , being C. yeeres old , got Arphaxad , that is , ( as is most probable , if not plaine ) in the DC.II. yeere of u u Vide ibid. c. 7.6 . Noah , Sems age was only C. yeeres . Then at Sems birth , Noah was D.II. yeere old . Who euer therefore was borne when he was but D. yeers of age , must be C.II. yeers old , when Sem had seene only one C. yeeres . If any of them were borne in Noahs D. yeere ( as the Text seemes to teach ) it must then be one of the other two , and not Sem. This argument , vsed by the Iews and others , which follow them here , ioind with what is in the Septuagint for Iaphet , makes so much against Sem's being the first born , that howeuer the great Ioseph Scaliger be x x In Elench. Orat. Chronolog. Dan. Para● pag. 35. most confident , that he was first in birth , as his name is exprest in enumeration , and giues his answers to the Chronologie obiected against it ; yet you may with more probabilitie take the more common and ancient opinion , that makes Iaphet the elder . Some will haue Ham. But I leaue that matter ; supposing cleerly that Sem being Melchisedek ( for , that one man should be denoted by seuerall names , is no noueltie in Scripture ) was either the first born or had the right of it transferd into him by speciall blessing , and so was 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , as Philo y y In lib. 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . calls him , that is , the great high-Priest of the greatest God . For the place of his Kingdom , Salem ; it is taken by z z Epist. ad ●uagr . tom. 4. S. Hierom ( as he learned from some Iews ) and from him by a a In Epist. ad Ebr. cap. 7.2 . S. Ambrose , Eucherius , Primasius , and others that this Salem is that which seated on this side of Iordan , is some LXXX . miles distant from the plaine of Mamre where Abraham liued , and retains its name in the Storie b b Iohan. cap. 3.23 . of Iohns Baptisme . and they say that the reliques of Melchisedeks Palace were there to be then seen . But the more common opinion of Christians in S. Hieroms time , was as now also of greatest Diuines , that Salem here and Ierusalem were the same . Salem nostri omnes , saith he and others of that age that follow him , arbitrantur esse Ierusalem . but himselfe was not of that mind , hauing as hee saith , learned the contrarie . But also , with those old Christians , Iosephus and some later c c Vide Midras Tehillim , apud Gaelatin . de Arcanis lib. 3. cap. 9. Iews expresly agree . and a good character of the truth of their opinion is in the holy Text. For , there the Kings Dale , whence the King of Sodom came out to meet Abraham in his return is d d Genes. 14.17 . rememberd , as if it were close by where Melchisedek was . Now it is thought certainly that the place of Absalons Pillar , that is , the Kings Dale spoken of in e e 2. Sam. 18.18 . Samuel , is no other then a Valley , which being hard by Ierusalem , is known to our age from Absalons name , where yet , they f f Bredenbach . in Peregr . 14. Iulij . say , he hath a moniment , and such as passe by , vse to cast stones at it in detestation of his disobedience . and also the very place where Melchisedek gaue Abraham the Bread and Wine , is , they say , yet known on Mount g g Villamont des Voyagez liu 2. Chap. 13. & 19. Caluarie . But hitherto brifly of these two adiuncts of Abrahams Tithing . neither supposd I but that many which think of it for argument either way , would desire some satisfaction in them .

Of the II. Chapter .

HEtherto could I neuer see any Christian that hath fully taught what was considerable in the generall payment of Tithes among the Iews . The Noble and most learned Ios. Scaliger , did not euery way enough accuratly teach it , although in a single Treatise he purposely vndertook it . How sufficiently among vs , others do that slouthfully and ignorantly ( without his help ) while yet their end is to write of Tithes , talke of a third Tithe here , and a fourth Tithe , and indeed they know not what Tithe , let him iudge that shall hence know their error . This last spring Martin the Title page of Drusius his Obseruations vpon Iosuah , and some other parts of the old Testament , a new discourse , De Decimis Mosaciis , writen by Sixtinus ab Amama Professor of Ebrew in Franeker , was promised ; but I could neuer yet see any such thing ioind with that of Drusius or otherwise published . What we haue of them is as the great Doctors of the Iews haue deliuered in the Talmud , and their later Comments ; which are testimonies beyond exception , for the practice or historicall part . For that in §. 6. of 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , out of Epiphanius ; I rather think indeed that it denotes only a paying of Tithe , not a Tithing of what was alreadie tithed . It is well known that the language of the Greek Fathers , especially of about his time , is frequently mixt with phrases of the Septuagint . now they h h Genes. 28. vlt. Deut. 26.12 . haue 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 & 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , for nothing but to pay a Tithe , which agrees somwhat with the Ebrew fashion of expression . and as they , so Epiphanius without doubt vnderstood it . howeuer some of great Names are of another mind . But to what is there toucht for the forwardnesse of payment of first Fruits among them , I here adde out of i i Lib. 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . Philo ( who liued vnder the time of the second Temple , and spake of his own knowledge ) that they were paid in such abundance , 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , that euen from the abundance only of first Fruits , heaue Offerings , or Therumahs , which were paid by the owner immediatly to the Priests , there was not a Priest in the XXIV . courses of them ( so the Priests or Posteritie of Eleazer & Ithamar were deuided k k 1. Paralip. 24.4 . 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 l l Videsis Suarez de L●gibus lib. 9. cap. 19. § 16. 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 m m Archaelog . lib. 20. cap. 6. 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 n n Eccles. Hist. lib. 2 cap. 20. Euschius and o o Lib. 2. Eccles. cap. 26. 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 p p 1. Paralip. 24 4.5 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 q q Vide D. Matth. 20.57 . & 59. holy Writ . and they were , to the high Priest , as the 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 r r Videsis Scalig. in Prologom . ad Chronic. Eusebij . 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 s s 2. Reg. c. 25.18 . 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 t t Paschas . Ratb●rt . Abbas C●rbie●s . in Matth. lib. 10. pag. 591. 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 u u Seder Zeraim Massee . Maighsh● Perek . 1. §. 1. 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 x x Talmud . d●ct . Seder . Mass. Demas Perec . 6. & Mass●● . Maighsh . Perek . 5. § 5. 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 y y Pirki . Aboth . cap. 3. & notae adiectae . 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 pendunt de omnibus Lucris ; decem aureos de centum , centum de mille &c. But howeuer the deuouter of them may giue such almes , it is plain that their Legall Tithing hath now no place among them for want of a sufficient Priesthood and Temple or Tabernacle . yet without doubt , most of them haue long since exspected a z z Videsis Galatin . de Arcanis ▪ lib. 5. cap 9. third Temple . otherwise why were they so carefull to haue their Laws and speciall cases of first Fruits and Tithing , so copiously deliuered in fiue whole Massecheths of their Talmud , or body of their Ciuill and Canon Law , which was , many yeers after the destruction of the second Temple , made for the direction of the dispersed of their Nation ?

Now , me thinks , he that argues for Tithes from the Mosaicall Laws of Tithing had need more specially , then any I haue yet seen hath neer done , examine which of the two kinds are due in the Euangelicall Priesthood . Why not the second aswell as the first ? and further consider also how the paiment of Tithes from the Laitie to the Priests of the Gospell , succeeds to the paiment from the Leuits to the sonnes of Aaron . But these considerations can only be , where the knowledge of fact precedes , for without exact Distinction of their seuerall Tithes , any argument drawn from them , may soon be found a grosse fallacie , that may both deceiue him which makes it and those whom he teaches . Let the ingenuous Reader thinke of it .

But one thing more here by the way . So much either ignorance or neglect in the disquisition of what belongs to the Tithes of the Iews , hath possest some great names , that , touching the proportion of the Tithes and the Receiuers , they haue rested fairely satisfied in this ; that the Leuits being one of the twelue Tribes , had the Tenths as a competent maintenance to themselues , being neer the Tenth , that is , being the twelfth part of the people ; as if Arithmetically the People and the Reuenues had been so deuided . But others haue long since easily shewd the slightnesse and falshood also of this fancie . And cleerly , had such a ne●r proportion of persons and the name of Tenth held ; yet examine all that was paid to the Priests and Leuits in first Fruits and the seuerall prediall Tenths only , and it will be neer a fift . and we here omit also the Cities and Suburbs assigned to them , and their other many profits out of Sacrifices , ransoms of First-born , and the like . But for that proportion of number twixt the Tithes , wee haue sufficient testimonie in holy * * Numer . cap. 1 & 3. Writ , that it was farre otherwise The able men for armes of the eleuen Tribes were numberd to 603550. and these all of XX. yeers old at least . the Males of the Leuits from a month old were seuerally found to be but 22273. for so are the particulars of the Families of Gershon , K●ath , and Merari . Here then the Leuits reckond , with aduantage of all their Male children of aboue a month old , make not a 1/27. of the rest of the Tribes . had the rest been accounted also with all their Males of like age , it is probable enough that the Male Leuits would not haue equalled a fiftieth or sixtieth part . as in the one sex of them , the coniecture may also be in the other . and afterwards likewise * * Vide 1. Sam. 24 . 9● . Paralipom. 23.3 . & 27. in Dauids numbring , we see the Leuits of 30. yeer old were lesse then 1/32. part of the rest of Israel and Iuda , that were able to bear Armes . Where then is any thing towards proportion twixt the number of the Priests and Leuits , and the denomination of the Tithe ? Neither is it to any purpose or consequent to look after any such thing . I rest in this ; that it pleased the Almightie so to enrich that Tribe , which was reserued only for the holy Seruice in the Temple . Why he did so , or with what proportion , let them , for me , examine , who dare put their prophane fancies to play with his holy Text , and so most impudently and wickedly offer to square the one by the other .

Of the III. Chapter .

IN it , largely out of originall Autors of Greece and Rome , is shewd the vse of Tithing among the Gentiles . farre more largely then by any that hath yet toucht it . The truth also , wherein too many are either obstinatly or ignorantly blind , touching that of their supposed generall paiment , collected out of a corrupted place in Festus , or rather in Paulus Diaconus , is declared and brought to its own limits . neither will any iudicious Reader doubt of the corruption of Festus in that place . whosoeuer knows but the fashion of his writing ( which must be obserued in that of his own , after the XI . book , partly yet remaining in his very words ) cannot at all think that Decima quaeque veteres Dijs suis offerebant , should be deliuerd by him . he is in all other things more curious . he would not haue talkt of Dijs generally or quaeque . But it was no such wonder that Paulus Diaconus , who ignorantly abridged him vnder Charles the Great , should say so ; being , as the learned acknowledge him , no small enemie to posteritie , in so cutting and maiming him . he was ( saies * * In Epist. nuncupat . ad I. Monlucium . the noble Scaliger ) Homo meo iudicio confidentissimus ac , vti res ipsa decet , ineptissimus . Had he delt with Festus , as Festus did before with Verrius Flaccus , it had been tolerable . though by Festus perhaps we haue lost much of Flaccus , yet he appears iudicious enough and carefull in what he deliuers from him . But this Paul ( being , I confesse , otherwise a man of great reading and knowledge for the time he liud in ) hath not only here by coniecture , but in other places most plainly so exprest things of this nature , that is , touching the Theologie or Rites of the Gentiles , that , had we not found some pieces of Festus himselfe , posteritie might haue been perpetually blinded by him . No man will denie it that obserues but his words , Maleuoli , Nixi Dij , Praeclamitatores , Nauia , and diuers other which , compard with what is left of Festus whence he had them , appeare to bee either mistaken or falsly deliuered . But for the Gentiles ; it is true , they were very deuout in giuing of their yeerly increase to the honor of their Deities , according as the Attique Law receiud , as is thought , from Triptolemus , and seconded by a a Hermippus apud Porphyrium 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . lib. 4. Dra●o , commanded ▪ that is , 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , To honor the Gods with their fruits . witnesse enough of the Grecians is found in their Thalysia that was the feast immediatly after Haruest , wherin they spent b b T●e●●ritus Idy ● . 5. & ibid. Schol●astes . much of their fruits in honor of Ceres ; in their Haloa about the same time which was c c Eustath . ad Iliad . 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . the like deuotion to her and to Bacchus , and in their seuerall Dionysia . all which spent no small part of their yeerly fruits of Wine and Corne ; that we may omit their other feasts of lesse note that are to this purpose . And among the Romans , was a like forwardnesse to consecrat part of their Corne and Wine to the Gods ; as we see in their Sacrima d d Festus in his●● voc . ad quem vide Ios. Scalig. & in Coniect . ad Varro●● de L.L. lib. 5. that is the first of their Must , spent in 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 e e Cato de re Rustica cap. 132. 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 f f Tr●batius a●ud Arn●hium a●uersus Gentes lib. 7. 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 ●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 quàm 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 g g Ad Aene●d. 8. commate 30. 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 h h Halicarnass . 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . ● . 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 i i Apud Macrobium Saturnal . lib. 3. cap. 11. 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 k k De O●ficiis lib. 2. 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 l l Plin. Hist. lib. 2. cap. 8. 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 m m Vettius Valon ▪ Antioch lib. 6. Antholog . Ms. Sed verba eius reperuntur in Syntag●● . 1. De Dits Syrit cap. 6. some other old testimonie , say they , stiled him 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 ( not 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 ) yet Achilles Statius that was n n In Arati Phanomena . 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 o o Halicarnass . 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . Italie . and I would Varro had rather here sought the cause of his title of Victor then in that ridiculous reason which he brings , p p Apud Seruium ad Aen●id 8. comm. 30. 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 , 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 q q Myrfilus L●●bius apud Halicarnass . 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . citatur Historia etiam apud Eusebium in 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 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 , r r Ad Ebraeos cap. 7.8 . 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 among the Ebrews or Iews then , and also is seconded by other autoritie before touched . but any reference there had to Turrian Christian practice of Tithing , I suppose no man will affirm that is of a sound brain , and vses holy Writ with due reuerence . But my application of some passages in S. Cyprian in §. 1. here are found fault withall ; in that I vnderstand not hi● mention of the word Decimae to be a note of paiment of Tithes in his age . Indeed I did not think that any man which vnderstood Cyprian , with the vse of his time in making vp the Ecclesiastique Tresure , would haue therin taxed me . Neither haue I giuen his words alone & then my own Glosse ( as many haue done too often , and that in things of the nature of this subiect , and so haue deceiud their credulous Readers ) but I haue carefully and shortly exprest also the occasion of his passages ; and so , that an vnderstanding Reader may collect as much out of them as he might do if he had the whole context of Cyprian by him . If I haue errd in the interpretation , it is but my single error and theirs that dare giue autoritie here to my iudgement . whoeuer can think otherwise by Cyprians words , if he saw him , may equally do so by my relation . howeuer then , I impose not on any Reader . But for that second place of his out of his De Vnitate Ecclesiae ; obserue his words more fully . Thus they are , Domos tunc & fundos venundabant & , thesauros sibi in coelo reponentes , distribuenda in vsus indigentium pretia Apostolis offerebant . At nunc patrimonio nec Decimas damus ; & cum vendere iubeat Dominus emimus potius & augemus . So farre is this from denoting any paiment of Tenths of annuall increase ( which is the Tithe we enquire after ) that indeed no such Tenth seems here to be vnderstood in the mention of Decimae . he speaks of them which sold their whole estates in the Apostles times . but now , saith he , we giue not the Tenths of our patrimonies . that is , we giue not the Tenth part of what deuout Christians then did , but in stead of selling for deuotion , we buy and increase our estates . What other Tenth is here spoken of then the tenth part of euery mans patrimonie or estate ? and what hath that to do with the tenth of Annuall encrease only ? and , for any vse of paiment in this time : I was not so bold to make the negatiue , that no Tithes were paid , but that it could not be proued that any were . He that can shew me aught omitted that might proue it , shall deserue and haue thanks of me . In the meane time further to iustifie what I affirme , take this of Epiphanius Bishop of Constance in Cyprus , that about the yeer CCC.LXXX . wrote against the Heresies of the primitiue times . when he s s Hares● 50. tels vs of the Tessaresdecatitae , or those which thought the holy Easter must be kept on the fourteenth Moone , according to the Law giuen to the Iews for their Passeouer , and that because they apprehended that the keeping it otherwise was subiect to the curse of the Law ; he saies , that 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , they do all things or agree generally with the Church , sauing that they were too much herein addicted to the Iew●sh custome . and in his argument against them , he shewes , that the curse hath not reference only to the Passeouer , but also to Circumcision , to Tithes ( 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 ) to Offerings . Wherefore ( as he goes on ) if they escape one curse , by keeping their Easter according to the Law of the Passeouer , they thrust themselues into many other . For ( saith he ) they shall find them also cursed that are not Circumcised , and them cursed that pay not Tithes , and them cursed that offer not at Ierusalem . Let any man now consider if this Bishop that was least vnacquainted with the customes of the Christian Church , vnderstood not cleerly that no necessarie or knowne vse of paiment , was among Christians in his time , of Tithes , no more then of Circumcision , or offering at Ierusalem . Doth he not plainly reckon it as a thing not only not in Christian vse , but euen equalls it with what was certainly abrogated ? is not his Obiection shortly thus ? Why do you not obserue Circumcision and Tithing , and Offerings also at Ierusalem , which are all subiect to the like curse ? and because some kind of Offerings indeed were in vse among Christians , therefore in the Obiection he prouidently ties them to Ierusalem . But of Tithing he speakes as generally as of Circumcision . Obserue his owne context , which I here giue , that the able Readers iudgement may be free . 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , So that if they auoid one curse , they fall vnder many other . For such shall be also found accursed as are vncircumcised , such accursed as Tithe not . and they a●e also accursed ( in the old Law ) that offer not at Ierusalem . I confesse , this may perhaps seem not to extend to the African Church ( wherein S. Cyprian and S. Augustine liued ) that was farre remote from Epiphanius , being of the Greek Eastern Church ▪ and so not to sufficiently proue that in those times no paiment was in vse there . The like perhaps may be obuiously thought of in referring it to the Westerne Church of Europe . But it seemes that the African , European , & Eastern Greek Churches of those times , had litle or no difference twixt them in the setled policie for their maintenance . And for the African ; howeuer out of S. Augustines Sermons it may be collected , that a paiment soone afterward was there in vse , yet herein both the Greek Eastern , and the African Churches are specially so like each other , that neither in the Councells or Canons of the one or the other of them , any Law at all is found for paiment or ordaining any thing touching Tithes ; nor as I remember , doth the name of Tithes once occurre in them , or in Photius his Nomocanon , or in Zonaras , or Balsam●● , the chiefe Canonists that writ on the Eastern Canons . I mean here the Canons of the Greek Church of credit ; not including those called the Apostles Constitutions equally belonging to all Churches ( if vnder that name to any ) of which more presently . But it had been litle to the purpose indeed to haue had Tithes of Annuall increase paid , while that most bountifull deuotion of good Christians continued in frequent Offerings , both of lands and goods to such large value , as you see exprest in that of the Gouernor of Rome to S. Laurence ( being Archdeacon to Pope Xistus the second ) in the ninth persecution vnder Decius . He tells him t t Apud Prudentium 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , hymn. 2. that the common fame was that the Christians did often Offerre , fundis venditis , Sestertiorum millia . And that Addicta auorum praedia Foedis sub auctionibus , Success●r exhaeres gemit Sanctis egens parentibus . Et summa pietas creditur , Nudare dulces liberòs . no doubt can be but that the Gouernor is here made to speake somewhat beyond the truth . But also questionlesse the liberall deuotion of the time was very exceeding in offerings .

But , for Constitutions of this age ; lest we should seeme to omit any thing that beares the name of one , although meerly supposititious , we shall here adde more to that cited in the 4. § . out of the old Clementines attributed to the Apostles . but all will be of equall credit . and were it not for the inequalitie of Readers , none of it indeed deserued a place here . In those Clementines , a further command is , to giue u u 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . & 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . all thy Tithes to the Orphan , to the Widow , to the Poore , and to the Stranger . And afterward some Constitutions attributed to S. Matthew are inserted ; wherein first is ordained the formall consecration of Oile and Water , that may haue power to heale sicke men , to cast out Deuills , and the like , with 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , I Matthew ordaine . and then 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , I further ordain , that all first fruits be brought to to the Bishop , and to the Priests , and to the Deacons for their maintenance . and that all Tithes be offered for the maintenance of the rest of the Clergie , and of Virgins , and of Widowes , and of poore People . but here is no command of Tithes to be giuen to the Priests for their vse ; but only for maintenance of the lesse Orders of the Clergie and of the Poor . and therein these Constitutions still agree with themselues . But , for the autoritie of them ; take the iudgement of our Church , and I think you shall haue a generall consent , in this , that they are not of neer the Apostles time , but counterfaits of far later age . and great men in the Church of Rome account them no otherwise , howsoeuer Turrian ( that first publisht them in Greek out of three old copies , as he saies ) would needs perswade the World that they are genuine , Apostolique , and collected by Pope Clement the first . But I would then he had also perswaded vs that the Apostles had taught that the Birth of our Sauiour or Christmas day , was to be celebrated on the XXV . day of December , as in this suspisititious x x Lib. 5. Canon . 13. Clement is affirmed . The learned know that vntill about CCCC . yeers after Christ , that is till S. Chrysostomes time , that day y y Vide Clement . Alex. Strom. 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . Epiphan. Haeres . 51. & D. Chrysost. hom . 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 . was not setled but variously obserued in the Easterne Church , which should haue had speciall notice of the Apostolique Canons . and S. Chrysostome then learned the time of the XXV . of December ( which yet , most thinke not to be the exact time ) from the Western or Latine Church . It is likely that till then , the Apostles Constitutions had slept ? Besides , we see , that Dionysius that great Patriarch of Alexandria , although those of his See and himselfe were most curious in the determinations of Ecclesiastique times , could not find whence cleerly to resolue that question to Basilides Bishop of Pentapolis , z z Apud Th. Balsamon Ms. in Bibl. Patrij Iunij . 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , At what houre after the last Saterday of Lent they should leaue of that strictnesse a a Videsis ( si hanc rem obiter vellis explicationem ) Synod. 6. in Trullo Canon . 99. & ibid ▪ & ad hanc Dio●ysii Epistolam , Theodorum Balsamonem , & Euseb. lib. 5. Eccl. hist. c. 23 ▪ &c. of Fasting . in ioy of the Resurrection or at what houre of Easter day , or the feast of the Resurrection should begin . Basilides tells him , some think at the Cocks-crowing towards the morning , some at the Sater-day euening . and Dionysius acknowledges that difference in vse . But to set a certain houre of it , he answers him , is 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , both hard and without sufficient ground . and then falls to examine it by the holy Historie of the time of the Resurrection . But had these Constitutions beene then in autoritie , cleerly Dionysius might soon haue resolud the question . for in them it b b Lib ▪ 5. Can. ▪ 18. & 19. is determined , that this strict fasting should be kept , but 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , vntill the time of Cock-crowing . This learned Patriarch ( his Greek Epistle neuer yet publisht in Greek , with Balsamon vpon him , was communicated to me by that most learned and courteous Mr. Patrik Yong , in the rest of Balsamon Ms. ) liued about CC. yeers after the supposed time of the collection of these Constitutions , and surely had vsed them if they had then at all been , and deserued credit . and who would haue made a controuersie about the holding of Easter , that had in those elder times found it so established as it is in those Constitutions . But it is not difficult to coniecture out of what kind of shop they came , if you but note the supremacie of all power c c Lib. 2. Canon . 34. so arrogated in them to the Clergie . the Autors of them command that Priests be honord as Kings and haue tribute paid them as Kings , and are so bold as to apply that in d d 1. Sam cap. 8. Samuel , touching what a King would do in taking from his Subiects , to the power of Bishops , as if they should do so . and they affirm it , as much more reasonable , that Bishops should do so ; and ordain also with 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , We constitut , the like wholly 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , touching Bishops , as there , they say , is ordaind 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , touching Kings . which well agrees also with their reckoning vp of the ten Commandements , and making the Tenth to be e e Lib. 2. Can. 36. 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , Thou shall not appear emptie before the Priest . He that made these words to fill the place of one of the ten Commandements , seems not to talk like one of the Apostles . A thousand things more might be found to disproue the autority that some attribute to these Canons . and the answer to Turrians reasons for maintenance of them , are obuious enough . For my part , I think confidently that most of them , if not all , are hardly M. yeers old ; and therefore no sufficient cause is , why they should haue place of credit in any part of our Diuision , as they bear the name of Canons or Constitutions . For if they were in truth made so long after those whose names giue them all their autoritie , they are all one , for Constitutions to be relied on , as if they had been but of yesterday . I only toucht part of them in this first CCCC . yeers , as they were in the Latin ; the Greek being neither then by me nor much materiall ; although some passages in other translations and to this purpose , if not examind by the Greek , may soon deceiue a Reader of too readie a faith . For one of those other Canons attributed also to the Apostles as Autors , and to this Clement as Collector , is translated , f f In Zonara . edito a l. Quintin● Ca● . 4. Aliorum Decimae primitiaeue fructuum omnium mittantur Episcopo ac Presbyteris , & non super Altare , the Greek that is turnd and set by the Latin in the same Volume , hauing not a syllable of Tithes , but speaks only thus . 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , Let all other fruit ( being first fruits ) be sent home to the Bishop and to the Priests , but not brought to the Altar . the meaning being that only first fruits of new grapes before Vintage-time , or of yong herbs fit to be eaten , or such like ( comprehended vnder the words 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 in the next Canon before ) should be brought to the Church and so 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 g g Lib. 1. Epist. 269 & vide ibid. 425. 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 h h In Epist. 229. edit. nuper a V. Cl. R. Montacutto . stiles the goods and reuenue of the Church , 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , and the Greek Lawiers call them generally i i Balsamon & Zonaras ▪ ad Can. Apost. 59. & vi●e de hac re ●nonymū de recuperat . Tetra Sancta cap. 14. in vol. Gesta Dei per Francos dicto . 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 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 k k Vide Adrenald . lib 1. de Mir●s . S. Benedicto cap. 14. & Flo●oard Rhem. hist lib. ● cap. 12. & Capitular . exhibit Lutour 2 Imper post Ca●onem 59. c. 10 q. 1. edit. Gregoriana . 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 l l Constit. Imperial . tom. 1. pag. 15. Melchior Goldastus . in his first Volume he giues it thus , Decimas , bonae Ecclesiastica occupata à prophanis restitu●mus . as indeed both m m Annal. Boi●rum lib. 1. pag. 179. edit. B●s . a. d. 1615. Auentin and the n n Centur. 8. cap. 7. & 9. 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 o o Tom. 3. pag. 117. 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 p p Festus Pauli in Pecunia & ib. Scalig. 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 q q Goldast . tom , 3. pag. 648. 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 r r Idem tom . eod. pag. 118. 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 s s Post. c. 59. c. 16. q 1. edit. Gregor· 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 t t Vide Goldast . tom. 3. pag. 64● . 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 Lent out of S. Gregorie , is not easily perhaps apprehended by euery Reader without a litle more explication . The Sundaies as they were exempt out of the number of daies , so were they from the fasting of Lent , thence comes his conceit of the Tithe of Time in XXXVI . daies , which is 1/10. of CCC.LXV . so Fractions be omitted . and to make vp fortie which is exprest in Quadragesima , the known name for Lent ; the four daies preceding Quadragesima Sunday , are to be added . this was the intent of that fancie . But how sleight and nothing to the purpose , that obseruation of the Tenth of Time is ( howeuer the Canonists , as sworn to their Text , make of it ) is easily seen , not only in the abusd libertie of calculation of it , but also by the customs and Laws of both Churches the West and East in their various limits of this time of fasting . Popes Telesphorus . they x x Anastasius in vita eius . & vide Baronium sub ann. 154. & Polydor. de Inuent . rer lib. 6. cap. 3. say , made it VII . Weeks . and other diuersities hath it had in the Western Church . and the Eastern church exempted y y Synod. 6. in Tull. Can. 55. & videsis etiam Constit. Apostolorum dictas lib. 5. Can. 13.15 . & 18. & Consule Euseb. Eccles. Hist. lib. 5. cap. 26. & Socratem Hist. Eccles. lib. 5. cap. 81. both Saterdaies and Sundaies from fasting through all Lent , except only the Saterday that next preceded Easter Sunday . as also they fasted not on the day of the Annunciation . What regard had they then , think you , to the Tithe of Time ?

Of the VI. Chapter .

THe practice of paiment in the third CCCC . yeers ; was Parochially obserued in some * * Praeter ea quae ad hanc rem §. 1.2 . & 3 habemus Videsis Hinc marum in opere Capitum 55. ad Laud Episcop. cap. 1. & Rabanum apud Centuriatores cent. 9. cap. 7. de iureiurando quod exigebatur nonnunquam de decimis rite solutis . places , but especially by Clergie men , to Clergie men , who ( with such as were reputed among them ) subiected themselues more to their Canons then the Laitie could be brought to do . But it seems somewhat plain by the many examples of Arbitrarie Consecrations to Monasteries and other Churches , related in §. 2. ( whereto ioine also the English practice in the XI . Chapter , and the a a Apud Auentin . Annal. Bae●rum lib. 6. pag 379. edit. Bas. 1615. Charter of Henrie the eighth , Duke of Bauiere , of the Tithes of Rannesh●fen , giuen to the Church of S. Pancrace ) that the paiment of them Parochially performd by Lay men , was yet frequently omitted or continued to their own wills . Whence otherwise could the Founders and Benefactors of Monasteries haue made Tithes part of their endowments ? it was not , in these elder times , so much by giuing them Churches ( as the most that speak of this , ignorantly think , telling vs that all Tithes came into Monasteries by appropriating of Parish Churches ) as by conueying to hem diuers Tithes alone and newly created . and after those gifts , Consecrations , or new creations , n● other Tithes were paid vpon any other right , out of that Land which was so charged with them . But most of those Consecrations were at one time or another at length confirmd by Popes and Bishops , and so cleerly after enioyd ; which plainly also supposed a former strength in them . For regularly , Confirmatio ex proprio significatu denotat firmitatem actus confirmati , as b b Ad tit . de Dec. c. duaum . num. 11. Panormitan and other Canonists say , and nihil c c Innocent . ad dict lec . & tit de confirm . vt & in●til . c. eum dilecta 4. iuris noui tribuit , sed tantum vetus confirmat . But it is plain , that after Parochiall right established , that is since about M.CC. when the Canons grew more powerfull and obedience to them became more readie , such confirmations by bishops and Popes , and such consecrations , creations , or new grants by Lay men , of Tithes , haue bin taken and declared cleerly void , as you may see in a decree d d Tit. de his qua f. apral . sine &c. c. 7. cum Apostolica . of Pope Innocent the III ▪ touching Tithes , so granted by a Knight of Berry in France , and confirmd by the Archbishop , and e e Tit. de Dec. c. dudum 31. in another of his about Tithes so giuen or created to a Church by the King and Queen of Hungarie , and after confirmd by a Pope or two . and who can doubt now but that all such grants ( in regard of preuention of the Parsons right ) be not only void by the practiced Canon Law of this day , but also by the Secular or common Laws of most States ( if not of all where Tithes are paid ) in Christendom . For admit at this day , that Titius grant Decimas suas of such an Acre to the Parson , Abbot , or Bishop of such a Church , and this be confirmed by whom you will ; The Tithe due from him Parochially is not toucht by it . why ? because they are setled iure communi ( as the Law is practiced ) in the Parish Rector but in those elder times , such an arbitrarie grant vested the Tithe in the Church to which it was giuen , and no other afterward was paid . Why ? because then notwithstanding the Canons , no ius commune , no Parochiall right of Tithes was setled or admitted in the practice of the Laitie . And for those ancienter grants ; be not deceiud by such as tell you they were alwaies of Tithes formerly infeodated from the Church . that hath no ground to iustifie it ▪ neither can any man at al proue any common course of such Infeodation of Tithes from the Church into Lay hands , to haue been in any State till the later times of Reformation of Religion in some places , and dissolution of Monasteries . and those two examples which are in Pope Innocents decrees are expresly of new creations , at least not of infeodated Tithes , as euery Canonist will acknowledge . But cleerly they both were in themselus according to the many other , but they had not the fortune to be confirmd in such time as the Pope or Clergie vsually gaue way to the former practice of arbitrarie Consecration . And doubtlesse also , after such time as the Clergie saw that the Canons , made for Parochiall right of Tithes , had gotten force , and that the former creations or grants of Tithes by Lay men ( which were indeed practiced against many Canons both Papall and Synodall ) were , by that name of Lay-mens grants , creations or consecrations , declared vtterly void by the Pope and his Canon Law , although confirmed by whomsoeuer ; such of them as had originally no other true titles to Tithes so commonly consecrated by Lay men , subtilly enough in the next foure hundred yeers , left off the pretence of their Lay grantors bountie ( especially if the Grantor had been a common person ) and betook themselues only to prescription f f Extr. tit . de pr●script . c. 6. & 8. of XL. yeers , and to what other times might be allowd to setle a right to them vpon a possession of Tithes . and , by what way , retaind safely what otherwise , if they had held themselues to the deeds of their Lay grantors and to Confirmations , had been in danger enough of being recouered from them by Parish Rectors . So that , when the prescription was good in regard of time and possession ; although the originall Title it selfe were naught ; yet because any other iust Title might be pretended to ground the prescription on ( which also was g g Vide Innocent. 4. ad tit . le pr●script . c. si diligentia & ad tit . de Decim . c. dudum &c. not of necessitie to be proued incorporeall things ) it was not difficult to haue a faire course to maintaine their possessions and right of such consecrated Tithes , as had been possest so fortie yeers before they were questioned by Parsons which claimed them iure communi . For against them , such a prescription by any other Church , Abbey , or Bishoprique or such like is a good Title . Remember also their erecting of Parochiall Chappells within the larger Territories , out of which they had portions . plainly , the erecting of such Chappells for Parish Churches ( the Cure being there serued by some Monke or Vicar , instituted vpon the presentation of them which had the granted portions ) made those portions at length also in many places be reputed for Parochiall Tithes , due in regard of those Parochiall Chappells . But what course soeuer they took ; it seems certain , that the Titles deriud from Lay consecrations were after this third CCCC . yeers carefully conceald by the Possessors in such publike records of their reuenues , as were of more common and open vse in their legall proceedings at the Canon Law , howeuer they remaind still in their ancienter and more secret Chartularies . and with vs I haue very rarely , scarce at all , seen an Instrument of them in their Lieger books or otherwise , writen in a hand that is later then King Iohns time . the most are before him . But I haue seen Catalogues of the time of Henrie the third and Edward the first , of many large portions of Tithes , that doubtlesse came first from arbitrarie Consecrations , and that through most of the Dioceses of England , wherein not the least mention is of any Grantor . only possession is rememberd . and that , by prescription . was to be iustified . Some Titles also I haue seen made to Tithes in Libells of the time of Henrie the third , especially in the Lieger books of Reading , Osney , and Pipewell . but in none of them euer any deriud from Consecrations . Neither indeed , in that ancientest Formularie of the Canon Law ( I mean Durand , that liued about CCC.L. yeers since ) is any other Libell for Tithes , then such as make the Title Canonicall . None that touches Lay consecrations ; which diuers yeers before his time became as much concealed in legall proceedings of the Canon Law , as they had been in the more ancient times desired and hunted after by such as were enricht by them . This of arbitarie Consecrations , I presume , is like strange Doctrine to most men . it may well be . for the truth of it , I think , was neuer before so much as pointed at by any that hath writen of any part of our subiect . But I doubt not but euery vnderstanding Reader will think these things here now shortly noted on them to deserue his consideration , which I desire him also to referre to the XI . Chapter . and also let him apply to them the Admonitions toucht presently in Appropriations .

For Appropriations which are in the 3. § . they consisted ( as you see there & in the XII . Chapter ) for the purpose , either in conueying Parish Churches appropriated with Tithes setled in them somtimes by a continuance of paiment , sometimes by Consecrations , or by both ; or of Churches that were then appropriated when ( according to the vse of the time ) none or few Tithes were paid to them , yet afterward in the hands of the Monks or such like , when the Canons for paiment of Tithes came into force , got Parochiall paiment to be made to them ; or thirdly in passing of Tithes formerly created and in esse . So that as by Consecrations , Tithes newly created , were setled in Monasteries and the like , so , by Appropriations , Churches with Tithes in esse , or with the pretended right to them , and Tithes alone ( but formerly in esse ) were conueid to them . The whole Appropriation of Tithes with Churches or Churches alone ( we shew ) in that ancienter time was made by the Patron . The Churches with Tithes ( by the name of Ecclesia cum Decimis , when Tithes were paid to it ) was in point of interest giuen by him . And many more Churches haue been so appropriated , then by the later and more known course . Neither , I think , haue many new Appropriations been since made . not many in regard of the number of the other . But deserues not this then another kind of consideration then is commonly dreamt on , among them which make Tithes due by the Diuine Morall Law to the Euangelicall Priesthood ? if they be so ; what had the Patron as Patron ( were he either Temporall or Spirituall ) to doe with them in conueying them to Monks , Friers , Nunnes , poor people in Hospitals ? none of these , by that name , are of the Priesthood . and that way , they were so equally due to the ministring Priesthood before the Patrons title to the Church , that what euer he could do after he were Patron ( although also his act were confirmd by whom you will ) could not at all , it seems , touch them , or conuey them from him that should afterward exercise the spirituall function of the Church . Consider Tithes so due ; and how could any Monasterie deriue to it selfe any Title to that selfe same Tithe that was so due to the Priesthood ? And if it had not the selfe same Tithe , but by prescription or other ciuill Title , hauing the glebe of a Church had also a profit by the name of Tithe as annext to the Church , no otherwise then other Lay endowments ( for no man can doubt but that any kind of persons may inioy a profit vnder the name of Tithe or Tenth , aswell as a Rent of the Ninth part or of the Eleuenth ) who then is it that now detains the Tithe due by the Diuine Morall Law , in cases of Appropriations ? doth the Monasterie , or those which haue such appropriated Tithes by conueyance from it ? or rather doth not the Parishioner , that is bound to whatsoeuer is by that Law due , although he pay neuer so many other Tenths due only by some ciuill Title ? or by that Opinion , is not he that receiues the appropriated Tithe bound to pay a Tenth of it to the Minister , and the Parishioner a Tenth of his Nine parts . I affirme nothing here . it is no place for me to do it . But let these things be first considerable to euery one that talks of Appropriations , and concludes Tithes due iure diuino morali . And , for Lay mens right to the appropriated Tithes ( that is , such as did either vest in the Monasteries by Appropriations , or at least haue been enioied by reason of them ) let him examine it rather thus : may that which either Grant or Prescription , or other ciuill Title once setled and so euen consecrated to God and holy vses , although abusd , be afterward prophaned to Lay hands ? But it is a grosse error to make it cleer as many do , that if Tithes be not due to the Priesthood iure diuino morali , then Appropriated Tithes may be still possessed with good conscience by Lay men ; and that if otherwise , then they may not . For though they be not due so ; yet is the consecration of them in the Appropriation , nothing ? for if they be not due so , then it will be cleer , I think , to all , that they might passe in the Appropriation , as other things , subiect to the Titles of humane and positiue Law . The many execrations annext to the deeds of conueyance of them , and pourd forth against such as should d●uert them to prophan vses , should be also thought on . and let them remember also , who saies , that h h Prouerb . 20.25 . it is a Destruction for a man to deuoure what is consecrated .

To what we haue here of Episcopall right pretended to Tithes especially in Germanie , & of Tithes appropriated by Bishops , you may adde the examples of Thietmar Bishop of Werden in Saxonie , that i i Krantz . Metropol lib. 6. cap. 19. & cap. 29. & lib. 7. cap. 48. about M.C.XL. Contulit Ecclesiae suae vndecem Decimas , & Contulit fratribus Decimam in Esse . As also his successor Herman , Contulit Ecclesiae suae mediam Decimam de Haselwerder , & integram in Rakestede , & Tunderling . and Luder Bishop there about M.CC.XXX . Contulit Ecclesiae Decimam in Emelendorp cum aduocatia , and ordinauit Scolaribus Decimam in Mendorp . It seems this their giuing of Tithes to their Church was an assignment of them to the encrease of their Prebends , or such like . for it cannot , I think , be vnderstood of Tithes giuen to the Bishoprique by themselues , who as Bishops possest or pretended right to Tithes generally in their Diocese . But also , with that noted here touching Gerold Bishop of Oldenburg ( or Lubek ) his vrging them of the Deserts of Wagria to pay ; obserue the words of his perswasiue Letter sent to them to get their Tithes . Deo , saith he , k k Helmoldus presb . hist. Seliuiorum cap. 92. gratias ago , quod multarum in vosiis parent vil tutum insignia , quod videlicet hospitalitati & vlijs misericordiae operibus propter Deum insistitis , quòd in verbo Dei promptissimi & in construendis Ecclesijs solliciti estis ; in legitimis quoque vt Deo placitum est , castam ducitis vitam ; quae omnia tamen obseruata nil proderunt , si caetera mandata negligitis , quia sicut scriptum est , qui in vno offendit omnium reus est . Dei enim praeceptum est , Decimas ex omnibus dabis mihi , vt benè sit tibi & longo viuas tempore , cui obedierunt Patriarchae , Abraham scilicet Isaac & Iacob , & omnes qui secundum fidem facti sunt filij Abraha , per quod laudem etiam & praemia aterna consecuti sunt . Apostoliquoque & Apostolici viri hoc ipsum ex ore Dei mandauerunt , & sub anathematis vinculo posteris seruandum tradiderunt . Cum ergo Dei omnipotentis proculdubio hoc constet esse praeceptum , & sanctorum Patrum fit autoritate firmatum , nobis id incumbit negotij vt quod vestrae saluti deest , nostro in vobis opere per Dei gratiam suppleatur . Monemus ergo & obsecramus omnes vos in Domino , vt mihi , cui paterná in vos cura commissa est , animo volenti , quasi filij obedientiae , acquiescatis , & Decimas prout Deus instituit & Apostolica Banno firmauit Autoritas , ad ampliandum Dei cultum & ad gerendum pauperum curam Ecclesiae detis , ne si Deo quae ipsi debentur subtraxeritis & substantiam simul & animam in interitum mittatis aeternum . Valete . It seems he was in some confidence , that because he was a Bishop , he might make them beleeue any thing of the Patriarchs and the Apostles . and you may see he loued the profit of the Tithes so well , that he would not stand vpon any vnlucky venturing his credit in Diuinitie , or vpon offering a plain falshood , in writing for them . For though they were due generally as he would haue them , yet how would he haue proued that all the Patriarchs and all that were by faith as the sonnes of Abraham , paid them ? or that thereby they all had gaind praemia aeterna ? and whence could he haue iustified it , that the Apostles ordaind that they should be paid ? it may be therein he meant the Constitutions of the Apostles , of which enough before . if he did , how could he haue strengthened their autoritie ? But they to whom he sent remaind still as farre from obedience as the historicall part of his Letter was from truth . And the truth was , he could by no means get any Tithes of them . But for that ( in this § . ) of Episcopall right , or the right of the Euangelicall Priesthood , so much pretended against Tithes enioied by Monks , that were indeed Lay men , howeuer reputed as a kind of part of the Clergie ; it seems that in those daies the Bishops and Priests often stood so much on it , and so much and so often labourd against Consecrated & Appropriated Tithes , possessed by the Monks ( for they knew it was to no purpose to vrge the Lay owners , who after they had giuen Tithe by consecration would giue no more to any of them ) that the most common place which in their Synods and Sermons they dealt on , was the right of Tithes , as due to the Priesthood . and in so much also and so vntimely was that common place vsed , that there talking of it was become a Prouerb to denote their frequent going from the matter . as if most vsually they fell into that , when they should haue talkt of something else . This is iustified by a passage of the Monk Aimonius in the life of Abbo Abbot of Floriacum , where he speaks of a Synod held vnder Robert King of France , about the yeer M. ( when Aimonius liud ) in the Abbey of S. Denis . Very many Bishops , saith he , were present at it , l l Vita Abbonis Floriac . cap. 9. Qui cum de fidei puritate & de corrigendis tam suis quàm subditorum prauis moribus sermocinari debuissent , iuxta vulgare prouerbium , Cunctum suum sermonem ad Decimas verterunt Ecclesiarum , quas Laicis ac Deo seruientibus Monachis auferre moliti , resistente eis in hac re hoc V. Dei Cultore Abbone , promiscuam in se vulgi concitauere manum . and such danger did the Bishops , in vrging it , draw on themselues , that they were driuen all to dissolue the Synod by running away . you see here Sermonem ad Decimas vertere , was as a prouerb to go from the matter . and for those words , Laicis ac Deo seruientibus Monachis ; I think , they are not to be interpreted Lay men , and Monks , but Monks that were lay , and spent their time in the seruice of God ▪ For there is no doubt but the Bishops and Priests obiected the name of Laici to the Monks here ; and so was it fit , in the relation , to name them . and it was no wonder that the common people ( whose bountie , in bestowing of Tithes on Monks , should thus haue turnd to nothing ) so fiercely opposed them . If you vnderstand Laicis by it selfe here , then it may denote the arbitrarie detaining or disposing of Tithes by meer Lay men , which , I must confesse , Abbo and his Monks and all other Monks whatsoeuer had some reason to withstand . for they gaind much by it . But , I doubt , it cannot haue reference to Lay Infeodations . For as yet I could neuer see the least testimonie of an Infeodation of Tithes vntill many yeers after Abbo's time . it might perhaps denote them also . but I dare not cleerly affirm or denie here .

The 4. § . is of ancient Infeodations of Tithes . What is in old testimonie of them , is there deliuerd . but for time ; wee neither fetch them from Charles Martell , nor from the holy Warre of between M.XCV. and M.C. as others do . plainly both those Opinions are false . And it is as certain that they are false , as it is difficult to find the true beginning of Infeodations . Neither , I think , did any man euer referre them to Charles Martell , before Martinus Polonus Archbishop of Cosenza and Penitentiarie to the Pope , who wrote about M.CC.LXXX . Ecclesias ( saith he of him ) spoliat , Decimas militibus conferendo ; and this being through many hands receiud , hath to this houre abusd many mens credulitie . But thereof , enough alreadie . They are as farre out , that deriue them all from gifts made by Churches , or impositions by Princes . yet that most common opinion , that they all came first out of Churches is elder then the other , and as ancient at least as Frederique Barbarossa . For in the controuersie twixt him and Pope Vrban the third about Inuestitures , Scimus ( are the m m Apud M●l●hior . Goldast . Gonstit . Imper. tom . 2. pag 50. word ) Decimas & oblationes à Deo Sacerdotibus & Leuitis Primitias deputatas . sed cum tempore Christianitatis ab Aduersarijs infestarentur Ecclesiae , easdem Decimas Praepotentes & Nobiles Viri ab Ecclesijs in beneficio stabili acceperunt , vt ipsi defensores Ecclesiarum fierent quae per se obtinere non valerent . There is no question butt his opinion had soon Autors enough among the Clergie . For , the pretence of it was like enough a great perswasion to some Lay men to giue in their infeodated Tithes to the Church . and this the Canonists , for the most part , and generally the Lawiers of most States , take for a cleer truth . which I much wonder at , seeing that while they take it so , yet they interpret that n n Et vide cap. 7. §. 3. ad sin● m. Canon Prohibemus ( which is the principall prouision against Feudall Tithes , and was made by a Councell , that best knew the practice of the neer former times , against such as were created by Lay men to Lay men ) to haue been the stay only of further Infeodations into Lay hands , that is , euery lay Infeodation that hath force they suppose to be of before the time of that Canon . as if the Infeodations from Lay to Lay , there forbidden , were those from which such ( for the most part ) as continue had their originall . and therein doubtlesse they are right . and the later Canonists that would apply it to all Infeodations then in esse are grosly deceiud , or wittingly striue to deceiue . for in that respect , the Canon is in no State in force . Neither was it anciently so interpreted by the Canonists . but in the other , that is , touching new creations of Feudall Tithes ( in preiudice of the Church ) by Lay men to Lay men , it hath been euer admitted , and is in practice both in France and Spain . and what better interpretation of it can be then the continuall practice vpon it since the making of it ? and so how can it then be supposd but that Lay men before were chiefly the originall Autors of them ? But some o o Bertrand ● Argentre in Cons. Brit. tit . des Appropriances ●rt . 266. pag. 1110. Lawiers here to iustifie their receiud opinion , bring this argument . Had they not come from the Church , they say , then had the Tithes themselues , which are now possessed by Lay men through Infeodations , paid Tithes also to the Church by reason of the many Canons made for paiment out of all yeerly increase . But this reason cleerly moues nothing . for the selfe same might haue been obiected against the known beginning of Tithes created and consecrated to Monasteries by Lay men . plainly by the Canons , notwithstanding such consecration , the Parochiall right to the Euangelicall Priesthood could not be diminished . and by them also , aswell a Tithe out of the Tithe consecrated , as out of the Nine parts of the Parishioner , might , for aught can be proued against it , be demanded by the Parish Rector . But wee see cleerly both the originall of those consecrations to haue been from Lay men ; and also that no Tithe was or is paid either out of them or out of the rest of the profits of the Nine parts . How then can the other argument touching Infeodations better conclude here ? beside it insists vpon Canons . and would conclude practice from Law . which course of proofe , vsd by most men that write of these things , is grosse and ridiculous . For who euer but indifferently obserues the storie of the elder time together with the Laws , shall soon find that in the Canon Law especially , an argument from debere fieri to factum esse , is scarce so sound as that so hist at among children , à posse ad esse . The truth seemes to be , that both in Consecrations , and Infeodations , and Appropriations of Tithes , there was not any other thing thought on then the name of Tithe , and the right of Tithes generally due to the Church ; as if euery thing being the Tenth , and by that name as it were specificated , were presently the Clergies . so that whatsoeuer was by that name giuen away to meer Lay men or to Monasteries by new creation in either Consecrations or Infeodations , was , it seemes , taken alwaies to be the selfe same indiuiduall Tithe which was supposd due to the Clergie . which also doubtlesse was a cause why many Infeodations hauing originall only from Lay men , were falsly supposed to haue first come from the Church . for how easie was it that that which out of its own name only of Decima was presently taken as to be due to the Church , should be titled an Ecclesiastique right , and then in the passages of them which would haue had it so , be reckond among such things as the Church had a title to by a former possession ? and cleerly many of the Laitie also could not but be very inclinable to that opinion . for so long as that held it is likely they resolud they needed not to pay any more to the Church . for when the Church would not keepe the feudall Tithes when it had them ( they thought it once had them al ) they conceiued doubtlesse there was no reason why they should pay it any more or other Tithes . Thus perhaps vpon diuers grounds and causes , both the Laitie & Clergie deceiud themselues in thinking of the originall of these Infeodations . But herein that which we haue toucht before to be considered in Consecrations and Appropriations is also considerable . for what could such Infeodations by Lay men to Lay men , hurt the right of tithes which was in the Priesthood ? especially if due either iure diuino morali , or by any positiue Law ancienter then the Infeodation . But we haue not affirmd , that no Infeodations came originally from the Church . Questionlesse some did . and beside the examples alreadie noted , you may see that of Racherius p p Iuo Epist. 289. editione secunda . primae deest . who Ecclesiae de Hauchis ( in France , about the yeer M.C.XX. ) Decimam laicali vsurpatione tenebat , as Iuo's words are , and he gaue the Church to an Abbey of S. Martins , and minutas in praesentiarum Monachis demittendo concessit Decimas , & Decimam de Culturis Monachorum eis concessit ha●endam post sui decessum . here it seems he had inheritance in the Tithes . For that other coniecture ; that they came first from Impositions made by Princes ; I doubt it hath no kind of probabilitie . Indeed it appears that anciently in Turingia , the people were driuen before theiri● Christianity q q Centur Magdeburg . 8. cap. 8. to pay Tithes to the Kings of Hungarie , both of them annuall increase , and of their children also ; and in the gouernment of the King that was declared by r r 1 Sam. cap. 8. 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 s s Eiusdem generis , sub Decimae etiam nomine , prouentus Dominis soluuntur in Gallijs , in Germania , alibi . videsis Bertran . d'Argentre , Cons. Brit. art. 266. pag. 1109. & Specul Saxon lib 2. a●tic . 58. § 2. &c. Terragies , or quantities in Corn , vnder the name of tiths to land●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 from 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 t t Will . Tyrius de bello sacro lib. 18. cap. 3. 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 u u Quod constat ex Marini San●ti T●●s●lli Secret . Fidelium lib. ● . part. 8 & epist. 8 & Anonym . de recuperat Terr● Sancta cap. 18. 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 x x Ordonances de France liu 2. tom. 2. de Mines & Mineries . 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 also other Tithes paid to the Church are , whersoeuer any such suite is commenced for them in their Spirituall Courts , as stand not with their libertie challenged from their Secular or Common Law . For euerie Christian State hath its owne Common Laws , as this Kingdome hath . And the Canon Law euerie where , in such things as are not meerly spirituall , is alwaies gouerned and limited ( as with vs ) by those Common Laws . For by that name are they to be calld as they are distinguisht from the Canon Law , which hath properly Persons and Things sacred only and spirituall for its obiect in practice , as the Canon Laws deale with Things and Persons , as they haue reference to a Common , not Sacred , vse or societie established in a Common wealth . Who knowes any thing in Holy-Writ knowes the vse of the word Common to be so distinguisht from Sacred . Indeed it hath other notions there also , and it is otherwise vnderstood in ius commune , frequently among Canonists and Ciuilians . But these nothing at all hurt the conuenience of this denomination . For by them , Ius commune is vsed as it is opposd to Municipale or Consuetudinarium . But here , and in the nomination of the English Laws , as it is distinguisht from Sacred or Spirituall . and so in this sense the allowance of Customes , and Parlamentarie Statutes ( as they ought ) fall vnder the name of Common Law with vs . Here I doubt not but it will be an obuious obiection , that I should rather call the supreme and gouerning Law of euerie other Christian State ( sauing England and Ireland ) the Ciuill Law ; that is the old Roman Imperiall Law of Iustinian . For such a raigning , but most grosse Ignorance , is euery where almost to be met withal in England , that you shal haue it affirmd for cleer that al other States are gouernd only by the Ciuil Law . Indeed , if they which say so , vnderstood Ciuill for that which is the Ius Ciuile of euery singular State , it were but the same to talk of Ciuill and Common Law . For the Common Law of England also is the Ius Ciuile Anglorum . But it is euen with one mouth pretended vsually , that the Body of the Imperialls , read and profest in the Vniuersities , is the Ciuill Law , that gouernes ( as they say ) all other States . But this , howsoeuer receiued through lazie Ignorance , is so farre from Truth , that indeed no Nation in the world is gouerned by them . For whersoeuer they are supposed to gouerne ( let the briefe cleering of so common an error , get pardon for the digression ) it must be taken , that they either gourne by their owne originall autoritie , as they are Imperialls , or from their being receiued for Laws into other States , which are not in that first way subiect to them . According to that first way ; only the Empire and perhaps a good part of Italie , should be ruled by them . But it is plaine , that for the most part , the disposition of Inheritances , punishing of Crimes , course of Proceedings , Dowers , Testaments , and such other , which are of greatest moment vnder the Legall rule , are euen in those States , where , by reason of their first Institution , they retaine a kind of autoritie , ordered by most various Customes and new Statutes of seuerall Prouinces and Cities , so differing from those old Imperialls ; that the whole face and course of them is exceedingly changed in practice . This is plaine to euery one , that obserues but the diuers Customes and Ordinances of the States subiect to the Empire ; the Ius Camerale collected by Petrus Denaisius ; the Nemesis Karulina , as it is set forth by Georgius Romus ; and the many published Decisions or Reports both of the Imperiall Chamber , and the Rota's of Rome , Naples , Piemont , Mantua , Genoa , Bologna , and other parts of the Territorie of Italie . You shall find those Decisions , in matters of greatest moment , most commonly grounded on Customarie Law , or later Constitutions . So , that to affirme , that in these places the old Imperialls , or that Ciuill Law ( as they call it ) gouernes , is as if ( for example ) an equall ignorance shuld tel vs , that Spain were gouerned only by Alfonso's Parfidas , and Scotland only by Malcolms Laws or the Quoniam Attachiamenta ; or that in the time of the old Emperors the Roman State had been alwaies gouerned only by the XII . Tables , or that England were legally ruled only by the Grand Charter , or by the two volumes of old Statutes . Like accession and alteration as any of these haue had , is found in the Empire and in Italie , where the Imperialls haue , through the power of the Emperors and y y Videsis dist. 10. c. 22. & 13. & extr de noui ops . is nuntiatione c. 1. Popes , any now continuing autoritie . Now , for other Christian States , which acknowledge no superior , or any subiection to the Empire ( except Portugall , where the Roman Ciuill Law is autorized , by an z z Videsis Suarez . de legibus lib. 3. cap. 8. §. 3. Ordinance of State , in cases which are not literally comprehended in the Customes or Constitutions of the Kingdome ) as France , Spaine , Scotland , Denmarke , Poland , the Citie of Venice , and what also in Germanie hath made it selfe fro● from the Empire ; what colour is there , that the Imperiall Ciuill Law should gouerne in them . Indeed in all of them , I thinke , the reason of it brought into method , is vsed and applied commonly to ar●●ment , when any of their Customes or Statutes ( which are especially in France and Spaine very voluminous ) come in question , because the Practicers studied it in the Vniuersities , & had thence their Degrees giuen them ; which yet they had not , till about some CCCC . yeers since , neither before about that time was a Doctor or Professor of them known on this side the Alpe● . But as it is Law , it neither binds nor rules with them , no more then the old stories of Heredotus , Thucydides , Diodore , Polybius , Iosephus , Liute , Tacitus , and the like , or Cicero and Demosthenes , or Plato's Lawes , and other of that kind ; which are equally somtimes vsed for reason or example , specially by the Practicers of France . And so the old Imperiall Ciuill Law valet pro ratione ( as Bertrand d' Argentre , President of the Parlament of Rennes a a Ad Consuet . Brit. tit. 22. de Succestionibus , ad rubricam . sayes ) non pro inducto iure ; & pro ratione only quantum Reges , Dynastae , & Respublicae intra potestatis suae fines valere patiuntur And in France and Spain , Laws b b Vide Chappin . du Domain● &c. liu. 2. tit . 15. §. 5. Bodin de Repub. lib 1. cap 8. Suarez vbi supra &c. Philip. 2. in pragmatica ante collect . L●gum Ro●ni . were some CCC . yeers since expressely made , that the Imperials should haue no force in them . And in Scotland it is ordaind , that no Laws haue force there , but the Kings Laws c c Parl. 3. Iacobi 1. cap. 48. and Statutes of the Realme , and that it should be gouerned by the common d d Parl. 6. Iacob . 4. cap. 79. Lawes of the Realme , and by none other Lawes . Doubtlesse , Custome hath made some parts of the Imperialls to be receiued for Law in all places where they haue been studied ; as euen in England also , in Marine causes , and matter of personall Legacies . But is England therefore gouerned by them ? It were as good a consequent to conclude so , as to affirme , that any of the other States were , because som petie things are ordered according to some Imperiall Text receiued and establisht by Custome . But this may seeme no fit place to speak more ( perhaps not so much ) to cleere this grosse error of such as yet pretend to know more then vulgarly , but can make no difference twixt the vse of Laws in studie or argument ( which might equally happen to the Laws of Vtopia ) and the gouerning autoritie of them . If any desire to search further here , beside the Autorities cited in the e e Vide extr. tit. de Priuileg . c. 28. super specula , & ibid. Hostiens . l. Andr. Anton. de Butrio . item Choppin . du Domaine , liu. 2. tit . 35. §. 5. Bodin de Repub. lib. 1. cap. 8. & ante alios Suarez de Legibus , lib. 3. cap. 8. v●de etiam pr●sat . ad Statut. Polonia , Prilusij . Margine , let him especially see I. Baptista à Villalubos 〈◊〉 Antinomia Iuris regni Hispaniarum ac Ciuilis , & note especially la Conference du droit Francois auec le droict Romaine , composed by Bernard Automne , and obserue both the Volumes of Statutes and Ordinances of Spaine , France , Scotland , Poland , and of other Countries , together with the various Prouincial Customes , especially in France , with the Arrests , Decisions and Playd●●es of that Kingdome , and he shall soon be confirmed in that which a great Ciuilian of Italie is ingenuous enough to tell vs ; Hispania , Anglia , Scotia , Balia , Hibernia , Alemania , Datia , Suetia , Vngaria , Boemia , Polonia , Bulgaria f f Hieronym . ●igas tract . de Crin . lasa Maiest . lib. 3. quast. ●3 . §. 18. & 19. non vtuntur legibus seu iure ciuili , sed specialibus consuetudinibus 〈◊〉 statutis , that is , they are all gouerned by their owne common Laws . 〈◊〉 that most learned Frier g g In Compond . Theolog. citatur in Notis , ad Furtisc . pag. 43. Bacon , of his time ; Omne regnum habes sua 〈◊〉 aquibus laici reguntur vt iura Angliae & Franciae , & ita fit Iustitia in 〈◊〉 per Constitutiones quas habent sicut in Italia per suas . This was then , and is now true . And the Interpretation of those common Laws in most places , saue England and Ireland , hath of late time been much directed by the reason of the Imperialls , and only by the reason of them ( not by their autoritie ) and that also in case when they are not opposite at all to the common Laws , but seeme to agree with the Law of Nations or common reason . And this vse of them , at the furthest , began in its yongest infancie , not C.D.LX. yeeres since . For before that , euen from Iustinians time , they lay wholly out of vse : sauing only , that some pieces of them , with the Interpolations of Alaricus and his Chancelor Anian , together with Lumbardine Additions and Interpretations , had their power in some parts of Italie and the Empire . But for about D.C. yeeres together , that is , from Iustinian till Frederique Barbarossa , no Profession was of them in any Vniuersitie , no Doctorship , no other Degree taken in them . But after that time , they grew into a common Profession in this Western world ( although by their own autoritie they are confined to Rome , Constantinople , and Berytus ) and euen here in England were , about Henry the thirds time , often applied to the common Law in discourse and argument , as you may see in Bract●n his frequent quotations of them . And heretofore some texts of them haue been in our Courts cited ; not only as at this day sometimes is done ( when the words only of some of the regulae iuris is brought into an argument ) but the Title and Law , after the Ciuilians fashion , hath been rememberd at the Barre , and so afterward exprest in the Report , as I haue seen in an example or two in the Mss. yeers of Edward the h h In Biblioth. Int. Templi . second . Yet , notwithstanding that , it is cleere , that England was neuer gouerned ●y the Ciuill ( or Imperiall ) Law , as it was also affirmd by the vpper House of Parlament in 11 Rich. 2. where the King and Lords protested also , that their meaning was , it neuer should be gouerned by it .

Of the VIII . Chapter .

OVt of this fullnesse of Laws that were made for Tithes in England , let it be considered ( by such as enquire here de iure ) what interest was of right setled in the Clergie by them ( howsoeuer they were litle obeyed ) And by what Autorttie made ( we haue carefully added still what might help to a iudgement in that also ) and how extensiue , in regard of Persons and Territorie , they were , and some such other ; and how farre the Tithes might be , after such Laws , detained or made subiect to Customes , or possessed as things of common vse , The Laws of before , as well as of after the Norman Conquest ( as it is vulgarly called ) are here gathered , and are perhaps equally obseruable , as the rest , in the consequent of a generall consecration of Tithes to the Church in England . For neither were the Laws formerly made , abolish by that Conquest , although , by Law of i i Vide Quintilien lib. 5 Institution . cap. 10. Atheric . Gontil de iure belli lib. 3. cap. 5 & Hetoman . Illust. quast 5. Warre , regularly all Rights and Laws of the place conquered , be wholly subiect to the Conquerors will . For in this of the Norman , not only the Conquerors will was not declared , that the former Laws should be abrogated ( and vntill such declaration , Laws remaine in force , by the opinion of k k Caluins ●ase , fol. 17. b. some , in all Conquests of Christians against Christians ) but also the ancient and former Laws of the Kingdome were confirmed by him . For in his fourth yeere , by the aduise of his Baronage , he summoned to London , Omnes Nobiles sapientes & l●ge suâ erud●tos , vt eorum leges & consuetudines audiret , as the words are of the Book of Lichfield , and afterward confirme them , as is further also related in l l In Hen. 2. pag. 347. Roger of Houeden . Those Lege suâ eruditi were common Lawiers of that time , as Godric and Alswin were then also , who are spoken of in the Book of m m Ms. lib. 2. pag. 33. & 36. in Bibl. Cotton . Abingdon , to be Legibus patriae optime instituti , quibus tanta secularium facundia & praeteritorum memoria euentorum inerat , vt caeteri circumquaque facilè eorum sententiam , ratam fuisse , quam ed cerent , approbarent . And these two , and diuers other Common Lawiers then liued in the Abbey of Abingdon , Quorum collationi nemo sapiens ( sayes the Autor ) refragabatur , quibus rem Ecclesiae publicam tuentibus eius oblocutores elingues fiebant . You must know , that in those daies , euery Monk here in England , that would , might remaine so secular , that he might get money for himselfe , purchase , or receiue by discent to his owne vse . And therefore it was fit enough for practicing Lawiers to liue in Monasteries . But what had those praeteritorum memoria euentorum ( that is , Reports and adiudged Cases of the Saxon times ) auailed in their skill , if the former Laws had not continued ? More obuious Testimonies to this pupose are had out of n n Videsis Cok● Praesat . ad Relat. 3. & 8. & si placet Hot. ad Fortese . pag. 7. & 8. Geruase of Tilburne , Ingulphus , and others , and we here omit them . But also , indeed , it was not to be reputed a Conquest , or an Acquisition by right of Warre ( which might haue destroyed the former Laws ) so much as a violent recouering of the Kingdome out of the hands of Rebels , which withstood the Dukes pretence of a lawfull Title , claimed by the Confessors adoption , or designation of him for his Successor ; his neerenesse of bloud on the mothers side not a litle also aiding such a pretence to a Crowne . For the Confessors mother Emme , was sister to Richard the second , Duke of Normandie , to whom , William was Grand-child and Heire . But these were only specious Titles ▪ and perhaps examined curiously , neither of them were at that time enough . And howsoeuer his conscience so moued him at his death , that he profest he had got * * Historia Cadonensis . England only by Bloud and the Sword , yet also by expresse declaration in some of his Patents , he before pretended his right from the Confessors gift . p p Chart. Eccles. Westm. in Inspex . part . 7. 1 Ed. 4. membr. 26. & vide Camden . pag. 104. In ore gladij , saith he , Regnum adeptus sum Anglorum , deuicto Haraldo Rege , cum suis complicibus , qui mihi regnum cum prouidentia Dei destinatum & beneficio concessionis Domini & cognati mei gloriosi Regu Edwardi concessum conati sunt auferre &c. And the stories commonly tell vs that the Confessor successionem Angliae ei dedit . And although Harold also pretended a Deuise of the Kingdom to himselfe made by the Confessor in extremis , and vrged also that the custom of England had been from the time of Augustines comming hether , q q Ms. siue Autor Gu●l . Pictau . siue quis alius sit . in Bibl. Cotton . Donationem quam in vltimo fine quis fecerit , eam ratam haberi ; and that the former gift to the Norman and his own Oth for establishment of it were not of force , because they were made r r Malmesb. lib. 3. de gest . Regum . pag. 56. a. alij in Will. 1. & videsis Matth. Paris in Hen. 3. pag. 1257. edit. Londin . absque generali Senatus & Populi conuentu & edicto ; yet for his own part he was driuen to put all vpon the fortune of the field , and so lost it . and the Norman with his sword & pretence of the sufficiencie & precedence of the gift made to himself , got the Crown as if he had bin a lawfull Successor to the Confessor , and not a vniuersall Conqueror . All this is plain out of the stories , and iustified infallibly by that of the Titles of many common persons made to their possessions in England after his Kingdom setled , vpon the possession of themselues or their Ancestors in time of the Saxon Kings , especially of the Confessor . but this was alwaies in case where they by whose possession the title was made , had not incurrd forfeiture by Rebellion . many such Titles are cleerly allowd in the book of Domesday , writen in the Conquerors time . one specially is noted by the most learned Camden in his Norfolk . that , as I remember , is toucht in Domesday also , but enough others are dispersed there which agree with it . How could such Titles haue held if he had made an absolute conquest of England , wherein a vniuersall acquisition of all had been to the Conqueror , and no title could haue been deriud but only from or vnder him ? More might be brought to cleer this ; but we adde here only the iudicious assertion of a great s s Sharde in Caes. in I●i● . Temp. Ed. 3. fol. 143. b. Lawier of Edward the thirds time . Le Conquerour ( saith he ) ne vient pas pur ouster eux que anoient droiturell possession mes de ouster eux que de lour tort auoient occupie ascun terre en desheritance del Roy & son Corone . It was spoken vpon an Obiection made in a Quo warranto , against the Abbot of Peeterborough , touching a Charter of King Edgar , which the Kings Counsell would haue had void , because , by the Conquest , all Franchises , they said , were deuolud to the Crown . But , by the way , for that of his neernesse of bloud , which could not but aide his other pretended Title ; let it not seem meerly vain , in regard of his being a Bastard . There was good pretence for the helpe of that Defect also . For , although the Laws of this Kingdom , and , I think , of all other ciuill States at this day , exclude Bastards ( without a subsequent legitimation ) from enheritance ; yet by the old Laws vsd by his Ancestors & Countrie men , that is , by those of Norway , a Princes sonne gotten t t Vide Roger de Honed . in Richard . 1. fol. 425. & 347. on a Concubine bond or free , was equally inheritable as any other born in Wedlock ; which was , I beleeue , no small reason why he stood at first so much for the Laws of Norway to haue been generally receiud in this Kingdom . and some Stories also which make mention of Duke Robert his getting William on that Arlet or Arir● ( as shee is sometimes writen ) say that shee was to him a good while vice vxoris So Henrie of u u In Bibl. 〈◊〉 . Knighton Abbot of Leicester : Transiens , saith he , Robertus aliquando per Phaleriam vrbem Normanniae vidit puellam Arlec nomine Pell●parij filam inter cateras in chorea tripudiantem : nocte sequente illam sibi coniunxit , quam vice vxoris aliquamdiù tenens Willielmum ex ea generauit . And he tells vs also the common tale of tearing her smock . If shee were so his Concubine or Viceconiux ( between whom and a wife euen the old x x ff de Legat. 3. L. Item Legato 49. §. 4. Imperialls make no other difference but honor and dignitie ; and by them also some kind of inheritance is allowd to y y Authent . 89. c. 12. dis●reu● igitur &c. such Bastards as are Naturales liberi , that is gotten on Concubines ; ) it was much more reasonable that her sonne should be reputed as legitimate , then that the sonne of euery single woman bond or free , whether Concubine or no , should be so , as those Laws of Norway allow . and when he had inherited his Dukedome , he made , doubtlesse , no question but that his bloud was as good in regard of all other inheritances that might by any colour be deriud through it . and therefore William of Malmesburie well stiles him proximè consanguineus also to the Confessor , as he was indeed on the Mothers side . and those z z Videsis Malmesb . de gest . Reg. lib. 2. fol 52. of the posteritie of Edward sonne to Ironside , were then so excluded or neglected that their neernesse on the Fathers side could not preuent him . you may see the common stories of them . But whereas that excellent a a 18. Ed. 4 fol. 30. a Lawier Litleton saies , that William the Conqueror was called a Bastard because he was born before mariage had between his Father and Mother , and that after he was born they were maried ( which indeed by the b b C. tit . de Nat. lib. c. cum qua 10. &c. Imperialls and by the generall Law of c c Videsis Bacquet de Domaine in Fr. ●ra●ct ▪ du Bastardise chap. 9. &c. France would haue made him wholly legitimat ) I doubt he had but litle or no ground to iustifie it . Had he been so legitimat , it is not likely he should haue been stiled so commonly and anciently Bastardus , which name euen in his d d Apud Camden in Richmondia . own Charters he sometimes vsed with cognomento , as also the Bastards of the old Philip Duke of Burgundie were wont to do ; although of later time it bee reputed as a name of dishonor ; and the actio iniuriarum , or an action vpon the case lies where euer it be falsly obiected , as some will e e Videsis Pont. Hen●erum de liberis Natural , cap. 12. haue it . But these things proue enough that this William seised the Crown of England , not as conquerd , but by pretence of gift or adoption , aided and confirmd by neernesse of bloud ; and so the Saxon Laws formerly in force could not but continue . and such of them as are now abrogated , were not at all abrogated by his Conquest but either by the Parlaments or Ordinances of his time and of his successors , or else by non-vsage or contrarie custom .

The Laws that are here gatherd are for the most part Latin , Saxon , or French . The Saxon is interpreted by the old Latin . But the Latin and French are left only in their own words . I presume , scarce any man that with the least care studies the subiect , wil confesse he vnderstands not the context of such Latin . And the French I translated not , specially because it is but the same which is in our old yeer Bookes and Statutes , and may indeed euen as soon be vnderstood by any fit Reader 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 f f In Pan●gyric . ad Originem . 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 whi●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 g g Christop Binder as bo●is Ecclesia in ducat . Witenberg . pag. 94. &c. 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 * * Ex libello dicto . The complaint of Roderik Mors sometime a Gray Frier &c. olim impress . Geneu● . 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 ( f●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 to the pore , and to keepe hospitalitie , as the writings of the gifts of such Parsonages and Lands do plainly declare in these Words , in puram eleemosynam . And as touching the Almesse that they delt , and the Hospitalitie that they kept , euery man knoweth that many thousands were well receiued of them , and might haue been better , if they had not had so many grete mens Horse to fede , and had not bene ouercharged with such idle Gentlemen , as were neuer out of the Abbaies . And if they had any Vicarage in their hands , they set in sometime some sufficient Vicar ( though it were but seldome ) to Preach and to Teach . But now that all the Abbaies with their lands , goods , and impropried Parsonages , be in Temporall mens hands ; I do not here tell that one halpenie worth of Almes or any other profit cometh vnto the people of those Parishes . Your pretence of putting down Abbeys , was to amend that was amisse in them . It was farre amisse , that a great part of the lands of the Abbeys ( which were giuen to bring vp learned men that might be Preachers , to keepe Hospitalitie , and to giue Almesse to the poore ) should be spent vpon a few superstitious Monks , which gaue not XL. pound in Almesse , when they should haue giuen CC. It was amisse , that the Monks should haue Parsonages in their hands , and deale but the XX. part thereof to the Poore , and preached but ones in a yeer to them that paid the Tithes of the Parsonages . It was amisse , that they scarcely among XX. set not one sufficient Vicar to preach , for the Tithes that they receiued . But see now how it that was amisse is amended , for all the godly pretense . It is amended euen as the Deuill amended his Dames legge ( as it is in the Prouerbe ) when he should haue set it right , he brake it quite in pieces . The Monks gaue to little Almesse , and set vnable persons many time in their Benifices . But now , where XX. pound was geuen yerely to the Poore , in more than in C. places in Ingland is not one meales meat giuen . This is a * * saire . feare amendement : Where they had alwaies one or other Vicar , that either preached , or hyred some to preach , now is there no Vicar at all ; but the Fermer is Vicar and Parson altogether ; and onely an old cast-away Monke or Frere , which can scarcely say his Mattins , is hyred for XX. or XXX . shillings , meat and drinke , yea in some places for meat and drinke alone , without any wages . I know , and not I alone , but XX.M. mo● , know more than D. Vicarages and Parsonages thus well and Gospelly serued , after the new Gospell of Ingland . And so the Autor goes on with sharp Admonitions to the Lay men , that fed themselues fat with the Tithes of such Churches , while the soules of the Parishioners sufferd great famine for want of a fit Pastor ; that is , for want of fit maintenance for him . for without that , he is scarce to be hoped for .

But we conclude with that of the Canon Laws getting such force , and making such alteration in matter of Tithes about the yeer M.CC. when through it , Parochiall payment became first to be performd here , or elsewhere , generally , and as of common right ( where other titles preuented it not ) and through it only ; not through the ancienter secular Lawes made here for Tithes . For the suits for them in the Spirituall Courts either were all grounded vpon the Canons ; or the common right of Tithes was now supposed in the Libell as a knowne dutie to the Clergie , without secular Law . It may soon be apprehended , that it was much lesse difficult about that time , then any other , for the Popes and their Canon Laws to gaine more obedience among subiects , and execute more autoritie ouer Lay possessions , when also they so easily vsurpt power ouer supreme Princes , which yeelded to them . For no time euer was , wherein any of them more insolently bare themselues in the Empire , neuer neere so insolently in England , as in the continuing times next before and neere about this change . And to all States the Church of Rome now grew most formidable . Remember but the Excommunication and Correcton sufferd by Frederique Barbarossa , Henry the sixt , and other Princes of the Empire , and by our Henry the second , and King Iohn . the stories of them are obuious . And our Richard the first , betweene those two , to gratifie the Clergie here for their exceeding liberalitie , in contribution to his Ransome from Captiuitie , with great fauour gaue them an indulgent Charter h h Apud Innocent . 3. Epist. Decretal . lib. 2. pag. 242. edit. Colon. of their Liberties ; which being ioind with those other prone and yeelding Admissions of the Ecclesiastique Gouernment ouer the Crowne ( ●o were the times ) doubtlesse gaue no small autoritie to the Exercise of the Canon Law in those things , which before about that time were diuersly otherwise . Neither was that part of the Canon Law , which would haue a Generall and Parochiall payment of Tithes , not only second to any , in regard of the Clergie's profit ; but also none other , doubtlesse , was so great as it , in gaining the Clergie a Direct and certain Reuenue . Therefore it was not without reason on their side ▪ at such time as they saw the Power of Rome , that is , the autoritie of Decretals and of the Canons grew most dreadfull to Prince and subiect , that they should vrge this on to a continuing practice , and that with execution of the raigning Censures of the Church . Hence haue the Canons , in this point , hitherto here continued , and haue been and are binding Ecclesiastique Lawes , sauing wherein the later expresse Laws of the Kingdome crosse them . And thus out of the qualitie of the time , with regard to the practiced insolencie of the Pope and his Clergie , in putting their Canons and Decretals in execution , that receiud generall practice of Parochiall payment ( neere almost according to the Canons ) and other such alterations , that suddenly varied from former vse , and from the libertie of the Lay subiect , must haue its originall ; not from any want of the Canons of the Church of Rome , as if they had not been here at all had or read , before about that time . For doubtlesse , the Canon Laws were here vsed and practiced as farre forth as the Clergie could make the Laitie subiect to them . For , about D. yeers before this alteration , good testimonie is of the publique and solemne receiuing of the Codex Canonum vetus Ecclesiae Romanae ( mentioned by old Popes i i Dist. 19. c. 1. Si Romanorum . Dist. 20. c. de Libollu . for the eldest and most authentique Bodie of the Canon Law of the Western Church ) and that in a Nationall Synod held in D. C.LXX . vnder Theodore and Wilfrid Archbishops ; where , with one voice , the Clergie answered Theodore , Optime k k Beda hist. Eccles. lib. 4. cap. 5. omnibus placet quaecunque definierunt Sanctorum Canones patrum nos quoque omnes alacri animo libentissimè seruare . quibus statim ( sayes Theodore ) p●otuli eundem librum Canonum &c. But at that time there was no Law for Tithes , or mention of them in the known Canon Law of the Church of Rome , or in any other Prouinciall Canons , sauing in that of the second Synod of Mascon . Afterward also we find that Leges Episcopales l l Vide Cap. 14. §. 1. , which were serued by William the first from the Hundred , and confined to the Bishops Consistorie ; that wee may omit the Nationall or Prouinciall Constitutions of this Kingdome , made in those elder times , according to the old Canons of the Church of Rome . And X. yeers before Gratians Decree writen , it is certaine , that the Canons of the Church , generally by the name of Canones and Canonum Decreta ( for diuers collections were of them , an some also confirmd by Papall autoritie , beside the Codex Vetus , before that of Gratian ) were familiarly talkt of and vrged in that great m m G. Malme●b . hist. Nouell . lib. 2. pag. 103. b. Controuersie in the Synod of Winchester , in the fourth yeere of King Stephen , touching the Castles of Newarke , Salisburie , and the Vies ; where the King denied vtterly , Censuram Canonum pati ; that is , to haue it determined by them , whether , or no , the two Bishops , Roger of Salisburie , and Alexander of Lincolne , might lawfull keepe their Castles that they had fortified . But while the rest of the Bishops stood so much vpon their Canons , and euen in the face of Maiestie profest a rebellion , the King and the Lay subiects , it seems , grew so exasperated against them , that by publique command , for preseruation of the libertie of the Crown and Laitie , they were forbidden to be of any more vse in the Kingdom . For so perhaps is that to be vnderstood ( as we haue elswhere n n Ian. Angl lib. 2. § 43 vide , si ●lacet , Not. ad Fortisc . pag 43. & 44. noted ) in Iohn of Chartres , o o De nug●s Curtae lium , lib. 8 cap. 21. where he sayes , that Tempore Regis Stephani à regno iussae sunt Leges Romanae quas in Britanniam domus Venerabilis Patris Theobaldi Britanniarum Primatis asciuerat . Ne quis etiam libros retineret , edicto Regio prohibitum est . What he calls Leges Romanae , the most learnd Frier Bacon mentioning the same storie , stiles Leges Italiae , and takes them for the Roman Imperialls , and not for the Canan Law . I confesse , I see not enough cleerly here to iudge ( vpon the words of Iohn of Chartres ) whether it were the Canons or the Imperialls . on the one side , If we say he meant that Theobald or his Clergie , brought the Roman Canon Law ; it might so seem as if it had not been here before in the hands of the Clergie , nor partly practiced by them . Which doubtlesse is otherwise . If on the other side we vnderstand the Imperialls ( Copies of which indeed might well be at that very time brought as a noueltie hither ; for they were then newly found ; and plainly in Henrie the seconds time , they were here in the hands of the more curious Scholers , as you may see by Iohn of Chartres his citing of them ) how then is that true which he presenly after saies of the encreasing power and force of those Leges Romanae ? Sed , saith he , Deo faciente eò magis virtus legis inualuit quo eam amplius nitebatur impietas infirmare . What force or power at all had the Imperiall here afterward ? where is any signe of it ? But the obiection against that which might proue them not to haue been the Canon Laws , may not difficultly perhaps be answered . It is true that the Canons of Rome were here before , and read , and partly practiced in the Church . But diuers Collections were of them about this age of King Stephen , and perhaps some later and larger Collection might be brought hither by Archbishop Theobald , or some of his Clergie , which are vnderstood , I think , in that Domus Venerabilis Patris Theobaldi . He himselfe perhaps might bring Iuo's Decree ( when he came from Rome in 3. of King Stephen ) and endeuour the strict practice of it here ; which the King and the Lay subiect had reason enough to dislike ) or some of his Clergie might perhaps afterward bring in Gratians Decree , that was both compild by Gratian and confirmd by Pope Eugenius the third , about ten yeers before Theobalds death , that is , about 16. of King Stephen . And this way those words of Legis virtus inualuit , may haue their truth . For howeuer that opposition against the Canon Law were , it is most certain that this first part of the body of it ( the Decree ) was presently vpon the first publication of it in vse in England , and familiarly cited by such Diuines as talk● of what had reference to it , witnesse especially p p In Symbol . elect . 〈◊〉 . in Bibl. Cot. Giraldus Cambrensis in his Epistles . and the practice of the Canon Law here for the time of Henrie the second , is seen in the Epistles of that Iohn of Chartres ; which yet remain and are , I think , the ancientest examples of proceedings in our spirituall Courts . But notwithstanding that first part of the body of the Canon Law , which expresly commanded Tithes to be generally paid , were here soon receiud among the Clergie , yet about L. yeers after that , the former course of Arbitrarie Consecrations of them continued . and both that and the rest of those courses in disposition of Church-reuenues which so differ from the Canons , and from the practice of this day , was not fully alterd till some Decretalls came hither with more powerfull and dreadfull autoritie ( as the times were ) of some of the following Popes , especially of Alexander the third , and Innocent the third , which two alone , I think , sent as many commanding Decretalls into euery Prouince as all their Predecessors had before done ; and especially into England , as is alreadie shewd , they sent diuers ( only for the matter of Tithes ) which were all first of Papall autoritie for the particular ends for which they were sent , and so were obeid as Canon Law , although none of them became parts of the generall Canon Law vntill Gregorie the ninth put some of them into his Decretalls autorised by him in the yeer M.CC.XXX . about which time perhaps and diuers yeers before , the Canon Law of Rome was not only read here priuatly among the Clergie , but professed also in Schooles appropried to it . so I ghesse is that close Writ of 19. Hen. 3. to be vnderstood , which prohibited the holding of Scholae Legum in London . it was directed to the Maior & Shrifes commanding them , q q Claus. 19. Hen. 3. membr . 22. Quod per totam Ciùitatem London Clamari faciant . & firmiter prohiberi ne aliquis Scolas regens de Legibus in eadem Ciuitate de caetero ibidem Leges doceat . Et si aliquis ibidem fuerit huiusmodi Scolas regens ipsum fine dilatione cessare faciat T. Rege apud Basing . XI . die Decembris . This was fiue yeers after the Decretalls published . and it seems most probable , that these Leges were Canon Laws , perhaps mixt ( as vsually they were ) in the profession also with the Imperials ( for both of them were , it r r videsis 39. Hen. 3. apud Matth. Paris hist. maiori a. d. 1255. seems , studied here vnder Henrie the third by the Clergie , more then any other part of learning ) and therefore were forbidden as being both , in regard of their own autoritie , against the supreme Maiestie and independencie of the Crown of England .

The end of the Reuiew .