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

CAP. XIII.

I. Infeodations here into Lay hands since the Statuts of Dissolutions. Of Infeodations be∣fore that time in England. somewhat more of the originall of Lay mens practice in arbitrarie Consecrations or Infeodations.

II. Exemptions or discharges of payment origi∣nally by Priuileges, Prescriptions, Vnitie, Grants or Compositions, and by the Statuts of Dissolutions.

I.

FRom those arbitrarie Consecrations, and frequent Appropriations of Tithes (whereof we haue hitherto made men∣tion) to Monasteries or other Religious Places, as Colleges of Regulars, Chantries and Free-Chappels, came the present and common Infeo∣dations of them into Lay hands, which began in the age of our Fathers. For, the Portions of Tithes conueied to them out of Closes, parts of Mannors, and whole Demesnes, by the owners, together with the Tithes granted and possessed with appropriated Churches, were first by the Statut of Dissolution of Monasteries in 31. Hen. 8. and by that other of 1. Ed. 6. giuen to the Crown, and from thence granted to Lay men, whose Posteritie or Assignees to this day hold them with like limitation of estate, as they do o∣ther enheritances of Lands or Rents. and, for

them, haue like remedie by the Statut of 32. Hen. 8. cap. 7. by reall action as Assise, Dower, or o∣ther originals, as for Lands, Rents, or other Lay possessions by the cōmon Law they might haue. But although in other States these Infeodations or Conueiances of the perpetuall right of Tithes to Lay men, be very ancient and frequent also; yet no such certain or obuious testimonie of their antiquitie, is in the moniments of Eng∣land as can enough assure vs that they were before the Statut of Dissolutions in any com∣mon vse here. But some were, and, for aught appears in the practice of the time, many more might equally haue been. And what scruple was there but that long before the generall dissoluti∣on of Monasteries, Henrie the fift might (by the Law of the Kingdom) haue made Infeodations into Lay hands (as Henrie the eight did) of all Tithes belonging a to the Priors aliens whose possessions were giuen to him by Parliament, he had them setled in the Crown in Fee, and after∣ward disposed of them to other Ecclesiastique Corporations b at his pleasure, no otherwise then of other Lay possessions. By the way, we vnderstand, in these Infeodations, by the name of Lay men, only such as were not either in Or∣ders or professed in Religion. for otherwise all the possessions of Tithes enioied by Nunnes and the like, that were indeed Lay (though not com∣monly called so) might be comprehended vnder

the name of Infeodations. But, that some were here; obserue that of Odo Bishop of Bayeux and Earle of Kent, which is before cited out of the liues of the Abbots of S. Augustines in Canter∣burie. The words are, Decimas aliquas quas mei fideles habebant &c. What can that be, according to the words, other then Tithes that were in the hands of some of his Tenants? You may adde that of Robert S. Iohn cited be∣fore out of the Book of Bosgraue, where he had, by the gift of his brother William, certain Tithes, which he gaue to the Priorie, for maintenance of a fourteenth Monk. And obserue the rest of the Deed there. So out of the Book of Osney it ap∣pears before, that Decimatio Nicholai de Stode∣ham quam Fromundus (Capellanus) tenebat is granted by D'Oilly. Had not D'Oilly this from Stodeham? Or was Stodeham here one of his Bailifes or Fermors, whose Tithe he graunted as Lord or according to couenant with the Lessee? Other such occurre sometimes. And perhaps, Decimae hominū meorum, & the like granted, may suppose a title possessed in the Tithes by the Lay grantor. And in the same Book of c Osney, in a Passage writen in a hand of about Hen. 5. tou∣ching the conueyances of Tithes by Lay men to Monasteries, it is related, that he that wrote it, saw Quendam Rogerum D'Oyly Dominum cu∣iusdam partis de Bampton in Episcopatu Lincol∣niensi suis Decimis ita vti, vt nunc vni nunc alteri

de suis Valettis ipsas conferret annuatim qui sibi in diuersis officijs ministrabant, vntill afterward hee erected a Chaunterie with them in the Church of Bampton. These Grants to his Valets, plainly were as Infeodations. And what els was in that known case of Herne and d Pigot in Mich. 39. & 40. Elizab. but an ancient kind of Infeoda∣tion, at least an Inheritance of Tithes from im∣memoriall time in a Lay man? That, and other like to it, might begin vpon reall compositions, and so the Tithes be deriued out of the Church. But regularly, I thinke, at this day no kind of In∣feodation is here allowable in Lay mans making title to a perpetuall right of Tithes (except only by the later Statuts of Dissolutions) vnlesse it ei∣ther be deriued from some old Graunt of dis∣charge from the Parson, Patron, and Ordinarie, (in which case, hee to whom the Infeudation should be made, could haue it only as a Lay pro∣fit issuing out of the discharged land) or ioyned with a Consideration to be giuen for mainte∣nance to the Parson, by him that receiues them; and this either from time immemoriall, or by an∣cient composition. So I take the meaning of our reuerend Iudges to haue been touching this point. In summe then we may affirme, that some such ancient Infeodations haue been in England as in other States; but, that of later time none are allowable (if deriued from e other ancient originall, then from the Statuts of Dissolutions)

vnlesse they bee anciently deriued out of the Church first by discharge, or appeare to be but as a Reward giuen in pernancie, or as Considera∣tion for a Pension or other competent Mainte∣nance yeerely payable to the Parson. Which withall well stands with the common opinion of the originall of such Infeodations; whereof we haue alreadie f spoken. And whereas it hath been resolued, that without these reasons, a Lay man was not here capable, at the common Law, of Tithes by pernancie; it well agrees with a Decretall of g Alexander the third, which for∣bids one that maried a Parsons sister, to enioy a Tithe giuen him by the Parson, as for the mari∣age portion, although the Parson were still li∣uing. But also, that we may not defraud you of any testimonie of former times, that may seeme obseruable touching these Infeodations, where∣of so few examples and so ltttle mention is in the Moniments of England, take this speciall Disquisition, writen in a hand of about Henrie the fifth, in the Booke of h Osney, which would as well giue light to the course of Arbitrarie Consecrations (before largely opened) as to these Infeodations, if it were of sufficient credit. but you shall first haue it compendiously deliuered, and then iudge of it This title is put to it, Qualitèr Laici ad id priuilegium peruenerint quod locis Religiosis illas (Decimas) conferre pos∣sint. Then sayes he that writes it; he had heard

from a good Ciuill and Canon Lawier, that had been present at the Disputation of the point, in a case happening between a Religious house and a Parson, for Tithes in the Parsons Parish, who claimed them iure communi, that the Aduocat for the Religious house being put to make a spe∣ciall title against the Parsons common right, told the Court a long storie of Easterne holy Warres about Pipins time; and interposed som∣what of Charles Martell; and concluded, that the Pope and the Church euery where graunted, in reward to the Christian Princes, for their Ba∣rons, Knights, and Gentlemen, that spent their blouds, labours, and estates in those Warres, the priuiledge of arbitrarie disposition of the Tithes of their lands; by reason of which Graunt, they afterward made not only Arbitrarie Consecrati∣ons of them, but also Infeodations into Lay hands, according as the common opinion a∣mong the Canonists is too confidently receiued at this day. Then he tells vs that before remem∣berd, of the Tithes in Bampton, and cites some texts out of the Decretalls, that touch Infeoda∣tions. Next he relates, that among the Princes of the holy Warre, about Martell and Pipins time, the Duke of Normandie was a speciall one, whence hee had also that priuiledge touching Tithes, pro se ac suis, as the words are. And lastly (to bring it into England) hee thus con∣cludes, Et cum Dux Normanniae Willielmus ad

conquisitionem Angliae venisset, quidam Miles eius Robertus d'Oylleye nomine malens suas Decimas Deo commendare quam contra naturalem Ecclesiae consuetudinem ipsis vti, eas Ecclesiae S. Georgij quam in Castria Oxenford construxit contulit, Et posteà ad Monasterium Osney per Diocesanum & Capitulum Lincoln. ac etiam per Aduocatum Ca∣nonicè deuenerunt. But it all tasts of nothing but ignorance. For what touches Martell and his time generally, enough alreadie is said. And see but what a bold ignorance here was, to tell vs, that the Duke of Normandie was one of the grea∣test (personis Regum exceptis, as his Language is) that went in the holy Warre in succursum Eccle∣siae Romanae, in those times of Pipin and Martell? I would he durst haue told vs also who had then been Duke of Normandie. Neither that title of Dignitie, nor that name of the Countrey, were, till about CL. yeers after Martell, at all known. The Territorie being then vnder the French Kings, who long after gaue it to the Normans, and erected it into a Dukedome. Indeed the Duke of Normandie had good place in the later holy Warres, about M.XCV. but did not that make this Aduocat say, that the Duke of Nor∣mandie was a speciall Prince in the other also of Martell's time? Such of the later midle times stand not much vpon the mingling of Stories, that differ in themselues euen many whole ages. Besides, he tells vs of strange Princes names of

the East, that made the Warre against the Church. Plainly, the most pretended cause of the rest that erre herein as much as hee doth, is the Saracenicall Warre in Martell's time, and that out of Spain, not from the East. And had it been so vnder Martell's time, as it is vsually af∣firmd; what had that been to England? But you see his prouidence for that matter, where he de∣riues it from the Duke of Normandie. But what though there had been some such Duke of Nor∣mandie, whose Successor had afterward either conquered or enherited England? had there∣fore the old supposed priuiledge of retaining or disposing of Tithes, been thence communicated to his subiects of England? and that to the losse of the Church here, that neuer could haue got∣ten good by the supposed cause of the priui∣ledge? All the Canon and Ciuill Law that the Aduocat had, could neuer haue proued such a consequent. It will still remaine most probable, if not cleere, that what Infeodations were in England, had their originall as well out of the right of arbitrarie disposition of Tithes challen∣ged by the Laitie, without the grant of the Pope or Church, as out of Compositions or Conuey∣ances from the Clergie; according as in other States. For no sufficient Storie, no credible Mo∣niment, no Passage, or Testimonie of worth, can iustifie that generall right of retainer or disposi∣tion to haue been giuen by the Clergie, or Pope,

vpon any cause whatsoeuer; though the Cano∣nists and others that follow them, cry against it, vsque ad rauim. The vse of Infeodations, before those later holy Warres, we haue alreadie shewd. And that no vse of them could be about Mar∣tell's time, is not lesse apparant, by what is also before deliuered. But beside this blind testimo∣nie of the ground of Consecrations or Infeoda∣tions; for England especially, you may take that (as it is) also of i Lindwood, who thus speaks tou∣ching the Portions which Religious houses had. Hae Portiones (saith he) potuerunt peruenisse ad locum Religiosum de concessione etiam Laici cum solîus Diocesani consensu de Decimis vel prouen∣tibus quas Laicus talis ab Ecclesia alia habuit in feudum ab antiquo, according to that in tit. de his quae fiunt à Praelatis sine ass. cap. c. cum Apostolica. And hee addes, that this is only true, if those Tithes were infeodated before that Councell of Lateran of MC.LXXIX. And then concludes with, Nam ante illud Concilium bene potuerunt Laici Decimas in feudum retinere & eas alteri Ecclesiae vel Monasterio dare. Non tamen post tem∣pus dicti Concilij. For his interpretation of the Councell, enough before, towards the ends of the VI. and X. Chapters. But doth not Lind∣wood here suppose ancient Infeodations of Tithes (at least created by Churchmen) in England? Doth he not thence fetch the originall of Porti∣ons belonging to Religious houses in England?

commonly, though he writ as a Canonist, yet he addes the speciall custom of England if he speak of any Canon Law, which he thinks had not place here. but he excepts not England in this, but implies it. therefore doubtlesse, he supposed a common vse of ancient Infeodations among our Ancestors. but I doubt he had not better ground for it then what he found in others of his profession, that had rememberd the frequent vse of Infeodations in other States before that Councell. and he so applied it equally to his own Countrie, and with them takes the Infeo∣dations to haue had originall only from the Grants of Church-men. therefore I value his te∣stimonie here but as of a common Canonist, and not sufficient to satisfie vs touching our owne Countrie▪ neither in his age were the particulars of practice of the time before that Lateran Councell, or of the time of creation of Infeoda∣tions in other places, enough known among La∣wiers. I adde only one note out of Bracton that may touch Tithes infeodated or turnd anciently here into Lay fee, and conclude this matter. He k speaking of Land demised and recouered by the Legatarie, tells vs some opinion was of his time, that such Land after the recouerie iterum incipit esse Laicum feodum & non ante; quod non erit de Decimis, cum semel efficiantur Laicum feo∣dum; nunquam reincipient esse Decimae, & haec vera sunt secundum R. & alios. Did not he here

suppose Lay infeodations of Tithes in England? let the Reader iudge. By the way, I note, that passage is corrupted in the print. The beginning is Item for Iterum, and that R. & alios (which I think stands for Roger de Thurkelby a great Iudge of that time) is Biastos. but according to my Ms. Bracton, I haue thus alterd it. You may consider also if some Infeodations came not out of Lay mens enioying of whole Churches with their possessions about the Norman Conquest. it is frequent in Domesday, to find that such a Lay man tenet Ecclesiam of such a place, and sold it to such a one. and in the claimes of Yorkeshire there, the Entrie is super Ecclesiam S. Mariae de Moselege habet Rex medietatem eleemosynae fe∣storum S. Mariae quae iacet ad Wackefeld. Omne aliud habet Ilbertus & Presbyter qui Ecclesiae seruit &c. Where Tithes were in that time an∣next by cōtinuance of payment or Consecration to Churches, perhaps they might in like manner as these Offerings or whole Churches, come into the Lay hands. but I leaue this to the iudgement of my Reader. And hereof thus much.

II.

Now for Exemptions or discharge from payment; we haue anciently had them here, and still retain some of them in the practiced Law. and that originally either by Priuileges, Pre∣scription, or Grants and Compositions and V∣nitie of possession. The Priuileges haue been ei∣ther such as were specially allowd and limited to

the Orders of the Templars, Hospitalars, and Ci∣stercians by the Generall Councell of Lateran, held in 17. of King Iohn (of which more parti∣cular narration is before made) or by new Bulls for the discharge of this or that Monasterie or Order, at the Popes pleasure. By reason of the first kind of priuilege, those three Orders held their Lands discharged of payment so long as they manured them in their own occupation. at least all such Lands as they had purchased before the Generall Councell. and by the second kind sometimes whole Orders were discharged, as for example, that Bull to the l Praemonstratenses in general giuen by Pope Innocent the third, grants them that of their own culture or other improu∣ments they should pay none. Sometimes spe∣ciall Monasteries; as in that of the same Pope to the m Abbey of Chertsey. De noualibus verò quae proprijs manibus aut sumptibus colitis, aut de ve∣strorum animalium nutrimentis, siue de hortis & virgultis, aut piscationibus vestris, nullus à vobis Decimas exigere, vel extorquere praesumat, sed eas eleemosynae aut pauperibus Monasterij vestri iuxta quod tu fili Abbas postulasti à nobis, praecepimus as∣signari. What force by the common Laws of this Kingdom, such a Papall priuilege in ancient time alone had, I abstain here to dispute. and al∣though other examples enough might out of o∣riginalls be brought of the like, yet I touch not any of them neither, lest vnawares I might giue

occasion of some priuat controuersie. But they had their force in the Canon Law here, and be∣ing so allowd in allegations against Libels for Tithes, were strengthened also at length (especi∣ally those which were of the ancientest) with pre∣scription of time, in so much that from them o∣riginally diuers Lands of dissolued Monasteries remain to this day discharged of payment. But in 2. Hen. 4. cap. 4. an Act of Parliament is made a∣gainst those of the Cistercians here, which pur∣chased Bulls of Exemption for their demised Lands. and those of the Order and others put∣ting such Bulls in execution are made thereby subiect to the punishment, containd in the Sta∣tut of 13. Rich. 2. of Praemunire. Discharges by immemoriall Praescription of paying no Tithes (of things commonly and of their nature tithe∣able) nor any thing in lieu of them, are by the la∣ter common Law (since their Parochiall right e∣stablished about the time of King Iohn) allowd only n to spirituall persons, but to no Lay man. The Laitie being since that time held incapable of Tithes both by pernancie (sauing in such a speciall case where continuall consideration was giuen to the Church, as in that Case before of Herne and Pigot) in their own right, as also by discharge vpon bare prescription alone, sa∣uing only in Cases within the Statuts of Disso∣lution of 31. Hen. 8. and 1. Ed. 6. and the Statut of 32. Hen. 8. that warrants common Infeodati∣ons

of them. and so is the practiced Law of this day. For, by those Statuts, lay Patentees of lands or Tithes haue like priuilege of discharge and title as the spirituall persons, whose Corporati∣ons were by them dissolued, before the dissoluti∣on enioied. Of the Hospitalars dissolued in 32. Hen. 8. I purposely abstain to speak. To this of Prescription, may be added that of Vnitie of Possession. For if any Religious house dissolued in 31. Hen. 8. held the Rectorie of Dale & Lands in the Parish immemorially paying no Tithes, this Vnitie discharges also the Patentees at this day, in such sort as the Monasteries were dischar∣ged. But by Compositions and Grants euery man, as well Lay as Spirituall, by the common Law (before the Statut of 13. of Elizabeth, made against Leases and Grants of Parsons) might be discharged of Tithes; as if the Parson Patron and Ordinarie ioind in it to the Parishio∣ner either for consideration continuing (as in reall o Composition) or for other arbitrarie cau∣ses not appearing to posteritie as in Grants by all three, or rather in Grants by the Parson, and Confirmations by the Patron & Ordinarie. And it is prouided by the Statut of 2. Ed. 6. cap. 13. tha no person shall be sued or otherwise compelled to yeeld, giue, or pay any manner of Tithes for any Mannors, Lands, Tenements, or Hereditaments which by the Laws and Statuts of this Realm, or by any Priuilege or Prescription are not charge∣able

with the payment of any such Tithes, or that be discharged by any Composition reall. But al∣though a Lay man may not be discharged of all payment by meer Prescription (vnlesse he begin the Prescription in a Spirituall person) yet for diminishing the Quota in payment only of a lesse then the Tenth, he may p prescribe, that is, De modo decimandi. and to that purpose an imme∣moriall custome of a whole Town or Mannor holds place at this day. So was the Law q an∣ciently also. Beside these discharges, some may here expect that part of our Laws, which with vs (as the Philippine in France, and the Carolines in Spain) discharge some things from payment of Tithes, and seem to permit some customs de non Decimando. But for that matter; so much as vp∣on consideration was thought fit to be sparingly said of it, is referd to the passages in the next Chapter, that touches ancient prohibitions de non Decimando. Neither indeed doth that part of our English customs belong to the title of Exemption or Discharge. for Exemption and Discharge are properly singular rights to this or that person or Land, and against the currant of the practiced Law. but those things touching which any such prohibitions de non &c. by our Law should be granted, are supposed generally according to the reasons and practice of the Laws of England, of their own nature, not tithe∣able. So that not so much a discharge is found in

that course as a preuention of an vnlawfull charge which the Canons would lay vpon that which the Laws of the Kingdom account not at all in its own nature chargeable. But thereof somewhat more anon.

Notes

• a

  Rot. Parl. 2. Hen. 5. part. 2. art. 9.
• b

  Vide Cart. 2. Hen. 5. part. 1. num. 3. &c.
• c

  In Biblioth. Cottoniana.
• d

  Report 2. fol. 45. a.
• e

  Vide in d. Com∣mentatio, ibid.
• f

  Cap. 6. §. 4.
• g

  Extr. tit. de Ar∣bitris. c. 3. pern. ni•• ad nos.
• h

  In Bibblioth. Cottoniana.
• i

  Tit. de locato & conducto c. licet bona verb. p••rtiones.
• k

  Lib. 5. tract▪ de Exceptionibus cap. 12. fol. 411. b.
• l

  Innoc. 3. in Epist. Decret. lib. 1. pag. 20••.
• m

  Ibid lib 2 pag. 410. Videsis Extr. tit. de Decimis c. 3. Ex multiplici.
• n

  Voyez Rep. part. 2. fol. 44. & Fitzh. Nat. Br. fol. 42. ••.
• o

  Regist. Orig. fol. 38. b. Fitzh. vbi supra.
• p

  Vide lib. Intrat. non. rit. Prohibition §. 6. & Rep. 2. part. fol 44.
• q

  8. Ed. 4. fol. 14.