I.

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 [Page 2] 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, 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 [...] and first fruits, and the Arabique, Tithe [...] [...]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 [Page 3] parts only? How stands that with giuing Tithe of. al? It must therefore be interpreted of the spoiles. So S^t. Chrysostome 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 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 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 [Page 4] nothing else but [...], 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, 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 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 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 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 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 [Page 5] his father Isaac. For before Aaron, the Iews say, the Priesthood was wholly annext to the first born of fa­milies. Which 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, 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 In Epist. ad E [...]agrium. relates it. Si­mul & hoc tradunt, sayes he, quod vs (que) 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 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 [Page 6] 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 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 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 [Page 7] 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 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 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, [Page 8] 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 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 [Page 9] other like by agreement in number. They indeed went so farre in this ridiculous kind, that they de­termined 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 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 In Pr [...]sat. ad [...]. relating the victorie, saies, we should be very rich, as Abraham in his spoiles,

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 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, [Page 10] 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 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 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, 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.

I.

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 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 In Talmu [...]. in Seder Zeraim, Masse hotli Bice­rim. atque inde re [...]centiores corum iurispe [...]iu. were [Page 12] 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 Num. 18.21. paid, out of the re­mainder, to the Leuites at Ierusalem by that name it is euery where 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 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 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 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 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 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 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 [Page 14] 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 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 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 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 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. In Misnah Torah part. 3. de decima secunda, cap. 1. Ben-Maimons words are, that in the third and sixt yeers [Page 15] 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 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. [...] [Page 16] [...]: 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 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 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 [Page 17] 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 rhe same in substance. The payment of all appeares in this example.

IV.

After the first fruits paid in eares, admit

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.

V.

Of their Cattell; the first borne were 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 [Page 18] 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 Leuit. 27.26. & 32. Writ. Thence at the Tithing they vsed to shut the Lambs (for example) in a sheep­cote, 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 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 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 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 [Page 19] 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 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, 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. 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 [Page 20] (to their Leuits and Priests) as Tenths, first Fruits, then Tenths again, then other Tenths, and again other thirteenths, and the 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 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 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 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 Leuit. 19.9, & 10. either out of eares [Page 21] 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 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 [Page 22] 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 [Page 23] 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. Its true that Pres­byteratus might denote aswell some Lay eldership. but as vnlikely 'tis 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 [...]. 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, 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; [...] [Page 24] [...]; 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.

I.

THe custom of the Gentiles, vsually talkt of in offering a Tenth, is chiefly to be consi­derd in the Romans and Graecians. The Ro­mans [Page 25] 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 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 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 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 [Page 26] any man vowd Hercules a Tenth, in hope of in­crease of his wit. Neque 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.

whence the same Autor vses the name of In Tru [...]ulento. pars Her­culana. and 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 Anno ab V. C. 607. Mummius, which got Corinth and setled it to the Romans, thus inscribed, and yet remayning at Riete.

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 [Page 27] with the cost of the Tithe of the spoiles; and decuma verae rationis is there for the best of discretion and policie, as Saepius apud Symmachum in E­p [...]stolis. edecumata mongst the Ancients were the best and choisest parts, and 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 Plautus in M [...] ­stellaria act. [...]. of Tranio.

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 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 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 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 [Page 28] 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 Catalect. V [...]t [...]. lib. 1. tit. 14. to Fortune.

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 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 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 [Page 29] 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 [...]. 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, Clem. Alex. Stromat. α. hauing this Verse, ‘[Page 30] [...].’ That we may hang vp Tithes and first Fruits to the honor of Phoebus ▪ And, that famous 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 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 Herodot. lib. [...] yeer­ly the Tithe of their mines which they found in the Isle▪ And after a victorie against the Thessalians 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 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 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 Herodot. lib. [...]. Tenth of the spoiles was by consecra­tion diuided, between Iupiter Olympius, Nuptunus [Page 31] Isthmicus, and Apollo elsewhere Xenoph. [...]. Cyr. [...]. Diana of Ephesus participars with him. To other Deities without him, somtimes was this honor giuen, as to Pausan. Elias. [...]. & in [...]. Iupiter: to whom also Cypselus 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 Herodot. lib. [...]. ran­sackt by his Souldiers, [...], Because necessarily they were to be tithed to Iupiter. Somtimes Iuno hath this part; as in 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 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 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 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, [Page 32] 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 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 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 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 [Page 33] 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 In [...]. relates an example thereof, among the Ly­dians. And when the Athenians had deuided Lesbos into 3000. parts, they 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 Scholiast. in Aristoph. [...]. Athens kild for meat, was so due for a publique vse in honor of the gods, if my Autor deceiue not.

V.

Here may bee added to the Graecians vse, the example of the 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 Plin. hist. 12. c. 14 Tenth of it, which his Priests receiued. neither might any sale be [Page 34] 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 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 'tis 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 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.

I.

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; 'tis best declared by shewing the course of the Church-maintenance in that time. [Page 36] 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 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 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 Act. Apostol. cap. 11.29. had a speciall abilitie or estate of his owne. So in Galatia and in Corinth, where S▪ Paul ordaind 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 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, [Page 37] 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 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 quis (que) 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 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 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 [Page 38] of running banquets distributed at great mens hou­ses to such as visited for salutation, which being oft­times 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 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 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 [Page 39] that of the Leuits, as being proportionable. But hence also 'tis 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 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 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 [Page 40] by 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 Amm. Marcel­lin. lib. 27. Marcellinus. For other of the Clergie, a whole Sermon is in 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 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 'tis 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; [Page 41] 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, [Page 42] 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: 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 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 [Page 43] 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 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, its 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 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 [Page 44] 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 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 [Page 45] 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 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.

I.

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, 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 [Page 47] tribus, sed quasi Leuita & Sacerdos viuo de De­cimis, & Altari seruiens Altaris oblatione sustentor, habens [...]. ad Tim. c 1 p. 6. [...] victum & ves [...]itum; his contentus ero & nu­dam crucem nudus sequar. But 'tis 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, 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 [...]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 [Page 48] 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 Vide cum in Epist. ad Philippe [...]s. & Sermonem 103. [...]n cos. qui Cleri­corum opulen­tam inuiderunt, Tom. 6. Edit. Sa­ [...]liana. S. Chrysostom, [Page 49] 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 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; 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 [Page 50] between Ourt and Lesche two Riuers of Ardoinne, to a church consecrated to the honor of S. Monon. So I take that in 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 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 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, Decimis (que) 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 [Page 51] 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 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; 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 [Page 52] 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 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 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; [Page 53] 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 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 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. [Page 54] 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 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 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 i. e. viuend [...] g [...]nus. ingenium, [Page 55] 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 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 [Page 56] 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 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 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 [Page 57] those primitiue Ages) was held by most Doctors 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 Abrah. Ben. ka [...]. ta [...]. pracept. 501. Rabbins, that affirm it as expresly taught 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 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 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 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.

V.

Some Canons, both Pontificiall and Syno­dall, made for the right and paiment of Tithes, are attributed to the ages that fall about the midle of this time. But I haue not obserud aboue one, that is of any credit, as referd hither; neither was that euer receiud into the bodie or any old Code of the Canons. That one is Prouinciall, and made in the yeer D.LXXXVI. in the Councell of 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 [Page 58] 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 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 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, [Page 59] 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 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 C. 16. q 1. c. 45. by it selfe, out of that Leo, from whom also 'tis 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 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 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 Decret. lib. 3. cap. 202. hath a marginall reference to some Councell of Orleans. It is most certain that the first Councel of Orleans, 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 [Page 60] fidelium conferuntur, and possessions of other like kind of Church-lands. and according to that, Burchard and Gratian 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 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 Arelat. 1. cap. 11. of Orleans, and the ninth of 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 Synod Rom. sub Syluestro Papa cap. 4. Rome as if it had spoken expresly of them, & writes all in no other syllables then 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 [Page 61] 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 In Prologo [...]m. ad Tom. 1. Concil. Crab well admonishes. A like falshood is in attributing, out of the same 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 quis (que) 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 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, [Page 62] 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 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 [Page 63] a certain dutie· You may see 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 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 [Page 64] 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 [Page 65] autoritie also against those counterfeit titles of Canons before spoken of, they shall haue place here. Iam verò (saith 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 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. [Page 66] Whereto you may adde that complaint of Boniface 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 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 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 Biblioth. Pa­trum, tom. 4. Masse, where a distinct prayer is for those, Qui obtulerunt munera sanctae vnicae, quae est super omnes, Ecclesiae sacrifici­um scilicet Fortè legen­dum primitiarum & Decimarum. primarum Decimarum, gratiarum [Page 67] 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 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 Concil Aurelia­nens. 1. cap. 13. of the Clergie subiected all new­built 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.

I.

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 [Page 71] 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 [Page 72] 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 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 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 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 [Page 73] 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 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 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 S^r 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, 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; vndecun (que) 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 [Page 74] 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 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 [Page 75] 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 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 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 A. D. 948. Agapetus the second, A. D. 1144. Lucius the second, and afterward by Vrban 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 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 [Page 76] 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 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 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 [Page 77] Garlanda, in his foundation of the Abbey of Saint Mary of Gornay in France, among other possessi­ons giues it 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 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 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 [Page 78] practice of our own 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 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 [Page 79] 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 Decr [...]ral. Epist. lib. 1 pag. 83. reprehen­sion of them, and 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 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 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 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 [Page 80] only of feudall Tithes. But neither did the Laitie thus only 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 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 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 Neocasar. cap. 58. & vide Anti [...] ­chen. cap. 87. & 89. Councels call [...] or [...] [Page 81] [...] or [...], that is, Prebyteri 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 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 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 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 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 [Page 82] 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 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 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 [Page 83] 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 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 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 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 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 [Page 84] 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 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 [Page 85] 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 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 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 Vlpian. ff de rei vindicatione L. 540. Imperials) but also the Collation by Inuestiture without presentation at [Page 86] 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 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, Pā ­no 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 Iuo Carnotens. Epist. 41. & passim [...]. is only the immediat giuing of seisin or possession) with these words, 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 [Page 87] 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 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 cōmitted. 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 dispositiō of the church or endowments. For, the Law then being that Or­ders could not be giuen [...], 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 [Page 88] 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 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 cōsecrated 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 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 Leuita lib. 5. cap. 108. vnderstand that in the Capitularies, Vt Presbyteri qui in Titulis consecrantur, secundum Canones, antequam Ordinentur promissionem, sta­litatis [Page 89] 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 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 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 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 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 [Page 90] 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, 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 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 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 [Page 91] 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 [...]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 Vide 19. Ed. 3. tit. Quare impedit, 60. England and 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 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 [Page 92] 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 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 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 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 [Page 93] here and there succeeded it. But not long be­fore that Councell, it was much complaind a­gainst by the Clergie, and stiled by 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 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 [Page 94] 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 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 [Page 95] 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 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 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; [Page 96] 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 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 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 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 [Page 97] 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 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 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 Ms. Reperitur in Vol. quo com­pingitur Fride godꝰ 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 [Page 98] 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 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 [Page 99] 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 Biblioth. Clu­niac. p. 1430.1454· of Clugny, to the Abbey of 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 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 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 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 [Page 100] 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. 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 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, [Page 101] 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 [Page 102] Hierarchie; especially in the weaker yeeres of that Church. Hence is it, that the Archbishop of L [...]m [...]ert. Schass­ [...]burg. pag. [...]7. Mentz claimed all the Tithes in Turingia, the Bishop of K [...]antz. Wan­dal. lib. [...]. c. 38. & 39. Lubek, of 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 [Page 103] pretended in the Appropriations by the Bi­shops of Hamborough, was onely from the Epis­copall right which the Canonists allow, 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

And then addes,

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 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 [Page 105] 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 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 [Page 106] 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 [Page 107] 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 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 [Page 108] 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 Petr. Damian. lib. 2▪ epist. 14. he) alimenta proficiant, dantur in Monasterijs & Eremis Decimae quorunque prouentuum, & non modo pecorum sed & [...], 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 [...]. 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 [Page 109] 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) [Page 110] 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 [Page 111] Erpesfurt, where not only the Tithes of Lay men were called 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 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 [Page 112] 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 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 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 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 [Page 113] 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 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 Lib. 4. Epist. 12. complaint against them for it. Likewise it seems, Religious Orders made Fiefs or Tene­ments of Tithes 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. [Page 114] 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 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 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, [Page 115] 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 [Page 116] 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 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 [Page 117] 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 Videsis Krantz. Metropol. lib, 1 c. 2 haue ignorantly coniectured; although also it be certaine, that Princes some­times ioyned 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 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 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. [Page 118] and Henrie Count of Ratzenbourg 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 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 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 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 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.

V.

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 [Page 119] 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 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, [Page 120] 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 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 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 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 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 [Page 121] 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 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 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 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 [Page 122] or Knights of S^t. Iohns of Hierusalem, which being now, as in those ancient times they were, only Souldiers of the Church, haue therefore been diuers times lately 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 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 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 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 [Page 123] insinuat, deinde lex statuit & omnes Doctores sancti commemorant; the self same being C. 16 q. 7. c. 6. referd also to one of the Councels of Mentz of those times. And res Leuit. lib. 7. cap. 152. Dominicae and Dominica Concil. Ti [...]in. quod Regiaticini [...] d [...]ci [...]ur, sub L [...]o [...]. [...]. sub­stantia and Dei 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 [...]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 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 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 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; 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 [Page 124] 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 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 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 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 [Page 125] 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 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 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 In Bibliothec. 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 Vrban 2 c. 16. q. 7. c. 39. Ca­nons, [Page 126] 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. [Page 127] 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 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 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 [Page 128] 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 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 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 [Page 129] 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, 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 [Page 130] and Germanie, and in the yeere of our Sauiour, DCC.LXXVIII. it was there ordaind, Vt vnus quisque 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 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 [Page 131] 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 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 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 [Page 132] 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 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 [Page 133] 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 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 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 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 [Page 134] by the opinion of that Court it is likely they would then also haue been iudged so. And also among the ordinances 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 Sup. cap. 5. faind one of Pope Damasus) an­cienter then that attributed to 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 Dist. 32. c. 6. praeter § d [...]iude. are also vnder the name of his next successor Alexander the second. That of Pope 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 [Page 135] confirmed for generall Canon Law in Gratians 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 Vide prole­gom. ad Corpus Iuris Canonici, auspic js Greg [...]rij 13. editū. & [...]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 [Page 136] Gratian had them. But an Epistle 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 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, [Page 137] 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 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 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 [Page 138] 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 Extr. de his qua f [...]a pral. sine as­sens. capituli, c. 7. cum Apostolica. Innocent; meaning, that vn­der [Page 139] 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 [Page 140] 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.

I.

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 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 [Page 143] 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 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. 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 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, Extr. de dec. in c. 29. cum cont [...]ng [...]. Perceptio Decimarum ad Paro­chiales Ecclesias de iure communi pertinet. and the Generall Councell Ibid. c. 33. cum non sit.. of M.CC.XV. had taken it cleere, and so exprest it, that in signum [Page 144] 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 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 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 Tom 3. Epist. De­cretal. lib. 2. p. 483. of In­nocent [Page 145] 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 ofC. 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 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 asserentibus debere persolui, non est nobis facile certum tibi dicere: which are the words of that Epistle; a part whereof is in Gre­gories De Decima, c. cum sint. Decretals. So, that although by the [Page 146] Canons they would haue had a vniuersall pay­ment of Tithes, and although some much anci­enter 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 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 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 [Page 147] 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 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 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 [Page 148] 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 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 [Page 149] 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) iu poste­rum Cathedrali aut quibuscunque alijs Ecclesijs, vel Personis quibut legitimè debentur integrè per­soluant. Qui verò eas aut substrahunt, aut impedi­unt, excommunicentur; nec ab hoc crimine, nisi plenâ restitutione secutâ, absoluantur. For Popes Decretals of this time, I referre you further to the Laws made or receiud in England.

II.

In the Opinions that haue been since the beginning of these CCCC. yeeres, touching [Page 150] 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 [Page 151] 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 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 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 [Page 152] 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 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 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, [Page 153] 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 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 [Page 154] of sterilitie or fruitfulnesse. In this 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, 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 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 [Page 155] 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 [Page 156] 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 [Page 157] 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 [Page 158] 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. 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 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, [Page 159] &c. And 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 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 Quodlibet 4. q 28. exprest in these words, Adueniente Lege Euangelicâ & ces­santibus Ceremonijs, cessauit & solutio Decimae, pro quota illa: sed mansit pro illo quod in illa erat iure Legis Naturae, & ad illud reduxit Lex 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, [Page 160] 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 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 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 [Page 161] 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 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 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 [Page 162] saepius sub examine tuo litigare super Deci­mis quas vna Ecclesiarum in alterius Parochia XL. annis possedit, ac per hoc 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 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 [Page 163] English 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 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. 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 [Page 164] 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. [Page 165] You see how opposit this Opinion is to that re­ceiud among the Canonists, twixt whom and the Schoolmen 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 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 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 See Wicleues complunt to the K. and Parliament artic. 3. well performed not his function. Of this, were both, some of religious Orders in [Page 166] 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 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 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 [Page 167] Archbishop of 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 Et videsis in Fascicul▪ rer. expe­tendarum, pag. 143. in Wicleu [...] Thesi­bus. Position (for 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 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 Fox in Hen. 5. pag. 602. Gospell is denied. wherupon also they long since took all temporalties from [Page 168] their Ministers, and brought them 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 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.

V.

The third Opinion is of those who agree with the Canonists, that the right, of the quota of Tithes, immediatly is from the Morall or Di­uine Naturall Law; some impudently vrging with a commandement giuen to Adam; others of them prouidently restrayning all their argu­ments to such grounds for the Conclusion, as may be had out of Abrahams example, referd to the application of it in the Epistle to the E­brews; but others also not so circumspectly, ta­king [Page 169] 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 oo man, that is to sey, Adam, God chargyd him that he sholde truly of al maner thyng giue God the X^th. 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 [Page 170] 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 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 [Page 171] 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 Ex Archiui [...] Oxon. in [...] Biblioth. Bedleiana. to me through the courtesie of my most honord friend M^r. 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 [Page 172] 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 nam (que) est sacro Sanctae Ec­clesiae autoritas extra quam fides plane perpendit nullam posse peruenire salutem fidelibus. Ne illie 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. [Page 173] 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 [Page 174] 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 [Page 175] 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 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 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 [Page 176] 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 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 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 [Page 177] 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 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 [Page 178] 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 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 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 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 [Page 179] 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 quocun (que) iusto titulo, & licito modo ecclesijs concedere tenendas imperpetuum, nostro vel nostrorum successorum as­sensu minimè requisito, &c. whereas (by the way) som of their lawiers 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 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 [Page 180] 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 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 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, [Page 181] 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 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 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 [Page 182] frequent for paying a lesse part then the Tenth, and cleerly allowed 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 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 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 Et testatur e [...] ij [...] Conuarunias lib. 1 Var. Resolut. cap. 17. non payment hold good. And oft­time the King there sends commands grounded [Page 183] vpon this Philippine, that new Tithes not vsual­ly paid should not be exacted by the Clergie. Li­terae (saith 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 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, 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 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 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 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 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 In 2.2. D. Thom. di [...]put. 40. memb. 1. [...] [...]6. de Lorca remem­bers, that the Pope Regibus Hispaniae cōcessit ter­tiam partem Decimarum & alijs secularibus abs (que) 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 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 [Page 185] by Commission from the King, not by spirituall power, which otherwise regularly hath conisans of Tithes; although another great Lawier 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 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 [Page 186] 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 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 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 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 [Page 187] 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 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 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 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 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; 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 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 [Page 188] of Venice, as my Autor 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 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 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 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 [Page 189] by right of their Lordships. Status Im­perij saeculares (sayes a 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 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 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 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 [Page 190] 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 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 I. Herbort in Stat. Polonia lit. D. & Iacob. Prilusius leg. Pola [...]. lib. 1. [...]ap. 4. a­bout M.CCC.LXX. vnder K. Cazimir the [Page 191] 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 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 [Page 192] 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 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 Vide Parl. 22. Iac. 6. act. 9. places are paid) Parochially, yet also granted, altered, and disposed of by 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 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 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 [Page 193] 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. 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 [Page 194] 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 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 [Page 195] 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.

I.

An ancient 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 vnusquis (que) Sacerdos cunctos sibi pertinentes erudiat vt sciant qualitèr De­cimas totius facultatis Ecclesijs diuinis debitè offerant.’ and immediatly follows, ‘Vt ipsi Sacer­dotes [Page 197] à populis suscipiant Decimas; & nomi­na eorum, quicunque dederint, scripta habe­ant, & secundum autoritatem Canonicam co­ram testibus diuidant, & ad ornamentum Ec­clesiae 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 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 [Page 198] coram testibus diuidant? The ancientest Canonica autoritas, for diuiding Tithes before witnesses, is an old Imperiall, attributed in some Editions Edit. Viti A­merba [...]hij. cap. 7. to the XI. yeere of the reigne of Charles the great, being King of France, in o­thers 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 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 [Page 199] 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. [Page 200] 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 [Page 201] 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 viriū promitissi­mâ volūtate 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 [Page 202] 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 Henric. Hunting­don, lib. 4. pag. 197. & Reg. de Houed. p. 235. edit. Lo [...]din. sed vide etiā 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 [Page 203] 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 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, 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 [Page 204] 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 at (que) 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 [...]. 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 Ms. in Biblioth. Cottoniana. of Glo­cester, [Page 205] 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 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 [Page 206] sui. And in the rythmes of In Bibl. Cotton. & apud V. C. Tho. Alien. Oxon. Robert of Glocester.

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, & 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 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 [Page 207] 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 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 [Page 208] 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 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 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 Idem, pag. 308. in Irinobantibus. the Confessor his building Westminster Abbey with the tenth of one yeers reuenue, or 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 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, [Page 209] & 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 incommut abi­lisque permaneat ab omni regali seruitio & omni­um secularium seruitute absoluta. Placuit autem Aelhstano Episcopo Scirburnensis ecclesiae & Swi­thuno Wentanae Ecclesiae Episcopo, & Ducibus communiter. Hoc autem fecimus in honorem Do­mini nostri Ihesu Christi & beatae semper Virginis Mariae & omnium Sanctorum & Paschalis festi reuerentiam, vt Deus omnipotens nobis & nostris posteris propitiari dignetur. Scripta est autem hac Cartula anno ab incarnatione Domini nostri Ihesu Christi DCCC.LIV. indictione II. die Pa­schali, in Palatio nostro qui dicitur Wiltun. Qui autem augere voluerit nostram Donationem augeat omnipotens Deus dies eius prosperos. si quis vero minuere vel mutare praesumpserit, noscat se ante tribunal Christi redditurum rationem nisi prius sa­tisfactione emendauerit ✚. Ego Aethelwlf Rex ✚. Ego Aelhstan Episcopus ✚. Ego Swithun Episco­pus ✚. Ego Wlflaf Abbas ✚. Ego Werferd Ab­bas ✚. Ego Ethered & ego Alfred filij Regis con­sensimus. the ancientest hand wherein this is writen in the Chartularies, is of about Henry the second his time. and for the credit of it, you must relie vpon those Chartularies. It differs in date both of place and time from the other. this [Page 210] is dated at Wilton, that at Winchester. this in DCCC.LIV. the second Indiction at Easter. that DCCC.LV. and in some, the fourth In­diction, and in others, the third in Nouember. such a difference of Indictions may well be, if the Autors that deliuer it, added that note for the time that they conceiud it to be made in, not for the very Characters of the Date of the Originall instrument. for, Nouember falling in the fourth Indiction Imperiall, may be of the third Indicti­on Pontificial. the one beginning in September, the other in December following. that diffe­rence is in the relations of it between Florelegus and the Abbot of Crowland. and the Abbot per­haps reckond by the Pontificiall Indictions, and the other Monk by the Imperiall. if at least their Copies be not corrupted. But whereas in Mal­mesbury the date of that first Charter is DCCC.XLIV. Indict. IV.V. Nonas Nouembris. plain­ly it is false, neither could that Indiction be in the Character of the yeer DCCC.XLIV. which fell in the seuenth Indiction.

V.

In a Volume 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 [Page 211] 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 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 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 [Page 212] eldest times of Christianitie here, as you may see in our 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 S^r 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 Sup. §. 1. related out of the Excerptions [Page 213] of Ecbert. but whence that Canon is originally, I haue not yet learned.

VI.

King Athelstan 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; 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 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 [Page 214] 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 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 Ina Leg. cap. 37.40. & 42. ceap also for chattels, and somtimes specially for liuing cattell, but the old 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 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 [Page 215] 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 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 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 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; [Page 216] 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 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 [...]leta Ms. lib. 2. cap. 47. ‘certam mensuram bladi tritici significat quam quilibet olim sanctae Ecclesiae die sanctae Martini tempore tam Britonum quam Anglo­ram 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 [...]. 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 [Page 217] autoritie to proue what the Baronage did after the Normans. Indeed, an Epistle is 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, 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; [Page 218] 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, 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 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,

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

This Latine agrees well enough with the Saxon; al­though in this last §. si quis, for Episcopi 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.

X.

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 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 [Page 221] 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 [Page 222] post Pascha peractis; Vituli quo (que) & Agnicu­li Decimales erga Pentecosten, Frugum verò terrae Decimationes circa omnium festiuita­tem Sanctorum Ecclesijs persoluantur oppor­tunis.’ To it, is ioind the most part of it 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 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. ‘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 [Page 223] 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 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 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 [Page 224] 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 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 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 [Page 225] 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, Recens Ms. apud V. C. Rob. Cotton. writen in Saxon, & held a­bout the Cōquest, 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 [Page 226] 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 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 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, vtrius (que) Ordinis concordi curâ & sol­licitudine ratum seruaretur. Sic enim necesse erat; quia multis retrò annis, synodali cultu­ra [Page 227] cessante, vitiorum vepribus succrescenti­bus, Christianae religionis feruor in Anglia nimis refrixerat.’ and agreeing to this reason is a passage in the 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.