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.

VII.

But for Processe of bare command of payment of Tithes, or the like; when the title was by Patent cleerly supposed true, the Shrife or other Officer was sometimes commanded by Writ to take order that the demandant might enioy his Tithes. As in Claus. 7. Hen. 3. part. 1. membran. 6. the King directs his Writ to Brian de Insula Keeper of the Forest of Shire∣wood, telling him, that pro salute animae Do∣mini Ioannis Regis patris nostri concessimus Mo∣nachis

de Basingwere, quod percipiant hac vi∣ce vsque ad Festum S. Michaelis Anno reg∣ni nostri VII. Decimas de bladis seminatis in defenso nostro inter Blakebroc & Glossop, & ideo vobis mandamus quod ipsos Monachos hac vice sine impedimento permittatis Decimas prae∣dictas percipere. T. &c. And such more som∣times occurre. But this, and the most of that age that are of this matter, indeed appeare to haue bin of Tithes in a Forest also, as that of 22. Ed. 3. is in the Booke of Assises (which happe∣ned after the Statute of 18. Ed. 3.) and you may remember those before cited out of 6. Ed. 1. and 18. Ed. 1. in Chapter XI. §. III. and the ex∣ample of 8. Ed. 2. before rememberd touching Woodstock Parke. So in Rot. Claus. 5. Hen. 3. part. 2. membr.. 14. the Bishop of Salisburie hath his fiftie shillings yeerely nomine Decimae, out of New-Forest (which c Henrie the second had granted to his Church by the name of omnes Decimas de Noua Foresta &c.) and other like out of other, paid him by Writ to the Sherife; and in Rot. Pat. 11. Hen. 3. membrana 5. part. 1. Eustace Bishop of London hath the Tithe of the Kings Venison, taken in the Forest of Essex, (according to King d Iohns Graunt) by Writ directed to the Foresters and Bailifes of that Countie. Neither would they (it seemes) in that age permit any suit for the Tenths of Venison or Beasts of the Forest in the Spirituall Court,

(although those Tenths were most commonly setled in one Church or another by Grant) as may be seen in e Mich. 9. & 10. Hen. 3. Rot. 15. where Iohn Fitz-Robert, in an Attachment vpon a Prohibition against Philip of Ardern Clerk, in the pleading allows, that for Tithe of Hay and Mills, the prosecution in the Spiritu∣all Court was lawfull; but hee further sayes, that de Decima Bestia Forestae eum implacitauit contra prohibitionem &c. And herewith may be considered also the Kings f command, sent to the Constable of Windsore Castle, that the Church of Saint Iohn in Windsore should haue Decimas Gardini Regis de Windleshores. But out of these all (as out of the examples before brought of Commissions to be returned) it may perhaps be collected, that only the Tithes of the Kings lands, or belonging to his Churches, were to be ordered or commanded to be paid by these kind of Processes. I confesse I haue not seene enough to perswade me otherwise, for the time after about King Iohn or his neere predecessors. Yet, that as I leaue the iudgement of all, which historically I relate to the able Reader, so I may not defraud him of what in any kind may giue light; here I offer him also this Writ of 24. Hen. 3. that seems to touch the temporall Courts determination of the right of such Tithes, as, for aught appears, belonged nei∣ther to the Kings Churches, nor were encrea∣sing

in his Demesnes or immediat Tenancies. Henricus Dei gratia Rex Angliae & Vicecomiti Hertford salutem. Licet aliàs tibi signifi•• auerimus quòd non permitteres Ecclesiam de Hamelamstede spoliari Decimis ad ipsam pertinentibus, & quod Ecclesiam ipsam manuteneres, & defenderes in eo statu in quo ••uit tempore Syluij quondam Rectoris eiusdem Ecclesiae, non tamen fuit intentionis nostrae quòd occasione illius praecepti aliqua alia Ecclesia Decimis suis spoliaretur. Et ide•• praecipimus quod occasone illius praecepti nullam violentiam inferas vel inferri permittas Monachis S. Albani super Decimis spectantibus ad Ecclesiam suam de Red∣burne quas per XX. annos hactenus pacifice pos∣siderunt. T. meipso apud Westm. 1. die Septem∣bris an. r. n. XXIV. And in like forme was a Writ sent to the Constable of Berkhamstede. But this kind of Processe, and all other such Writs of Scire facias, either vpon Commissi∣ons returned, Fines, or Patents, or otherwise, (for aught I could yet learne) haue long since ceased, by reason especially of that receiued Act of 18. Ed. 3. Neither since that one case of 22. Ed. 3 as I ghesse, hath any vse been of an origi∣nall suit for Tithes in the Temporall Courts, sauing only vpon Prohibitions and the Statutes of 32. Hen. 8. & 2. Ed. 6. I say, originall suit. for otherwise, the question of the right of Tithes, incident in an Issue at the Kings g suit, hath since been triable in the Temporall Court; and

between h common persons also; especially if the right of Tithes, vpon the Issue, were but in∣directly or inclusiuely in question. And although it were directly the very Issue, yet also it hath sometimes been tried in an Action of Trespas in the Kings Bench, as you may see in Mich. 12. Ed. 2. Rot. 66. betweene Philip de Say Parson of Hodenet in Shropshire, and Geffrey of Wol∣sele Parson of Chedleton, for Tithes in Mar∣chumle. But of these things hitherto; and enough.

Notes

• c

  Cart. Antiq. CC. in dors. 10. in Arce Lond.
• d

  Rot. Chart. 6. R. Ioh. membr. 12. ch. 107.
• e

  In Arce Londin.
• f

  Pat. ••6. Hen. 3. membr. 7.
• In Codice Ab∣ba••. S. Alba••••. Ms.
• g

  38. Assis pl. 20.
• h

  Vide 50. Ed. 3. fol. 20. & 2••. Ed. 4. fol. 24. a.