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.

The Laws made in this time for pay∣ment of Tithes, were Imperiall, Prouinciall, and Pontificiall. The first of the Imperiall, was made by Charles the Great, in a generall assembly of Estates, both Spirituall and Temporall, vnder him, in the XI. yeer of his reigne ouer France

and Germanie, and in the yeere of our Sauiour, DCC.LXXVIII. it was there ordaind, Vt vnus quisque m 1.1 suam Decimam donet; at que per iussionem Episcopi sui▪ (or Pontificis, as some Co∣pies 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 pur∣pose extant, which can be at all stiled Generall, and was ordained by both powers, Secular and Spirituall, to any whole State: vnlesse you will beleeue, that in Scotland a Law was established by King Congallus and his Clergie, about D.LXX. after Christ, for the generall payment of Tithes there, according as n 1.2 Hector Boetius hath related. Congallus, indeed, is by others affirmed to haue been verie carefull for the Cler∣gies 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 other∣wise then as fabulous, and proceeding out of that common mistaking of ancient passages of

Church-reuenues, and confident (but ignorant) application of them to Tithes. But from that Law of Charles the Great was that exaction of Tithes, spoken of before by Alchwin; and thence are Tithes, in Ansegisus his collection of his Imperialls, so frequently mentioned, as of known right; and hence also had the title of the German Bishops, before spoken of, its originall. Those Capitularies, both of Ansegisus and Le∣uita, were collected by them about the yeer D.CCC.XL. in both of which, frequent con∣stitutions are for Tithes, and for the o 1.3 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 A∣merpachius in the yeer M.D.XLV. as also others occurring in the collection of Melchior Golda∣flus. These, together with the Lawes of the Lum∣bards, haue very many constitutions of about the beginning of these CCCC. yeers for this purpose; and one only shall suffice to be here transcribed. De Decimis p 1.4 quas populus dare non vult, nisi quolibet modo ab eo redimantur; ab Epis∣copis prohibendum est ne fiat: & si quis contemtor inuentus fuerit; si noster homo fuerit ad praesentiam nostram venire compellatur, caeteri vero destringan∣tur vt inuiti Ecclesiae restituant quae voluntarie dare neglexerunt. This was made either by Charles, or Lewes the first. but it is falsely re∣ferd to the Emperor Lothar, in the Laws of the

Lumbards. It was prouided you see against such as would not giue their Tithes, vnlesse they were purchased of them for valuable consideration. But the effect that these Lawes had, was short; the Laitie soon disobeying such commands as diminished their reuenues. And it enough ap∣pears in the storie of about the yeere q 1.5 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 mani∣fest 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 Imperi∣all 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 ri∣diculous error, and proceeds from grosse igno∣rance 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 Te∣nants

of Church lands by the ordinarie reser∣uation of the Tenth, as of what was held, by many, of it selfe due to the Clergie, and of the Ninth, as of the Rent or consideration to be giuen to them as to Lessors for the receiued profits. so will it plainly appear in a multitude of old r 1.6 autorities, to which I refer you. Neither was the Ninth here thought due otherwise, then as among the ancient Bauarians, the Tenth on∣ly from occupiers of Church Lands. The Tenth of the profits was all that their Laws s 1.7 appoin∣ted to be paid for rent to the Church by Lessees. But also very many Prouinciall Constitutions were made for the true payment of Tithes about the beginning of this CCCC. yeers. as in the Councell of Mentz in the yeer DCCC.XIII. Admonemus atque praecipimus vt Decimas Deo omnino dari non negligatur. which words were receiued also into the Imperials. and with them agree diuers Councels, held about the same time; as the Councels of Rheims; the fourth of Arles; the second of Chalons, and many other following. And in Scotland (if we may beleeue the t 1.8 Autor, for though he speak very good language, yet he is of no such sound credit) a∣bout the yeer DCCC.XL. King Gregorie in his Laws for Church liberties, ordaind that the Spirituall Court only should haue conisans of Tithes; which had been perhaps all one as to haue established them to be generally due. for

by the opinion of that Court it is likely they would then also haue been iudged so. And also among the ordinances u 1.9 of Cing Macbeth about the yeer M.LX. the same Autor puts one in these words, Decimam partem Terrae nascentium pa∣storibus 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 ex∣presse termes of command (except you look back to that x 1.10 faind one of Pope Damasus) an∣cienter then that attributed to y 1.11 Pope Nicholas the second. Praecipimus (saies he) vt Decimae & primitiae seu oblationes viuorum & mortuorum Ecclesijs Dei fideliter reddantur à Laicis, & vt in dispositione Episcoporum sint; quas qui retinuerint a Sanctae Ecclesiae communione separentur. The selfe same words z 1.12 are also vnder the name of his next successor Alexander the second. That of Pope a 1.13 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 Consti∣tution. But both the other and that, with di∣uers passages also out of S. Augustine, S. Ambrose, and others, and those old Prouinciall Councels, that make for the generall right of Tithes, were

confirmed for generall Canon Law in Gratians b 1.14 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 inser∣ted, and remaining in the Vatican, with this c 1.15 in∣scription: Decretum Gratiani Monachi Sancti Faelicis Bononiensis Ordinis sancti Benedicti com∣pilatum in dicto Monasterio Anno Domini millesi∣mo centesimo quinquagesimo primo, tempore Euge∣nij 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 de∣creed, Ne laici Decimam partem de laboribus suis retineant. some other passages of Popes are a∣bout 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 continu∣ed them; Oportet autem congruentiùs nos Deci∣mas & primitias, quas iure Sacerdotum esse sanci∣mus, ab omni populo accipere, &c. which compre∣hend in them a Constitution. but neither these or any of the rest that follow there, are in that Councell of Gregorie, neither find I whence

Gratian had them. But an Epistle d 1.16 of that Gre∣gorie is extant, wherein among other admoniti∣ons to some Princes of Spain (after such time as the profession of Christianitie there, was purged of some Gothique corruption, by a e 1.17 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 Eccle∣siarum & pauperum proficiant, dare, totique reg∣no 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 re∣rum legibus compellantur exsoluere. He admoni∣shes, 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 spe∣ciall 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 La∣teran,

held vnder Calixtus the second, about M.C.XIX. extant in the Vatican, and first pub∣lisht in the late Edition of the Greek Generall Councels printed at Rome by autoritie of the present Pope Paul the fift, and now newly in∣serted into Binius his last f 1.18 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. vn∣der 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 Coun∣cels (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, Infeodati∣ons of them into Lay hands, and Consecrations or arbitrarie Conueyances of them to * 1.19 Reli∣gious 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 ex∣pressely supposed them a dutie of common right, before g 1.20 that of Lateran in the yeere M.CC.XV. held vnder Pope Innocent the third, about which time, Ecclesiasticall Autoritie became more powerfull, the Canons were more receiud

into practice (that before were litle, especially herein, obeyed) and Parochiall right to Tithes grew to be more established; whereof, more in the next and last part of our generall Diuision, and in the English practice. But if that Canon in the Lateran Councell, held vnder Alexander the third, against arbitrarie Consecrations of Tithes without assent of the Bishop, might be vnderstood literally, and of new Tithes so crea∣ted (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 af∣ter him also take it) we cannot be altogether so secure of that other interpretation. In Latera∣nensi Concilio (saith h 1.21 Innocent; meaning, that vn∣der

Alexander the third) est inhibitum ne quaelibet Religiosa persona Ecclesias & Decimas de mani∣bus Laicorum, sine consensu Episcoporum recipiat; per quod indirectè datur intelligi quòd sufficit consensus Episcopi, vt licitum Ecclesiae sit Deci∣mas 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 vnder∣stood. 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 pa∣rochiall 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 eue∣rie 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 scru∣ple of the truth of it; and one takes it (as their fashion is) from another with too much easie

credulitie. But although this be not sufficient ground for that assertion of our common Lawi∣ers (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.

Notes

• m 1.1

  Constit Karcli edit. a Vito A∣m••rb••chio, cap 7. Leg Longohard. lib 3 tit 3. cap. 1. Capitular, lib. 5. cap. 123.
• n 1.2

  Hist. Sc••torum. lib. 9. cautē de Congallo Bucha∣nanus, lib. 5. Sa∣cerdotes, inquit▪ praedijs alijsque prouentibus dita∣uit. Tò Decimis adijcer•• vir doctis∣simus non ausus est.
• o 1.3

  A••segis. Capi∣tular. lib. 1. c. 155. &c.
• p 1.4

  Benedict. Leuit. lib. 5. cap. 46.
• q 1.5

  Vide Baronium 〈◊〉〈◊〉 9.10. An. D••. 8••5 & 〈…〉〈…〉 lib 3. Io••an. PP. 8. 〈◊〉〈◊〉. ••1. 2••••. 45. 262.293.
• r 1.6

  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. Flo∣doard. 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.
• s 1.7

  Leg. Bai••ario∣rum tit. 1. cap. 14. de Colonis & s••rius Ecclesia.
• t 1.8

  Hector. Bo••t. hist. Scot. lib. 10.
• u 1.9

  Idem lib. 12.
• x 1.10

  Sup. cap. 5.
• y 1.11

  A. D. 1059. in Synod. Rom &c. 16. q 2. c. 3.
• z 1.12

  Dist. 32. c. 6. praeter § d••iude.
• a 1.13

  C. 16. q. 1. c. 45.
• b 1.14

  C. 13. q. 1. & c. 16. q. 1. c. 41. & seqq. &c. 16. q. 7. passim
• c 1.15

  Vide prole∣gom. ad Corpus Iuris Canonici, auspic js Greg••rij 13. editū. & ••bb••∣tem Vsporgensem.
• d 1.16

  Regest l••b. 9. epist. 14.
• e 1.17

  Vide Marianam de reb. Hisp. lib. 9. •• cap. 11.
• f 1.18

  A. D. 1618.
• * 1.19

  Vide infr. c▪ 7. §. 1.
• g 1.20

  Cap. 53. & in extr. tit. de Dec. •• 33. cum non sit. & vid•• caput prox. §. 1.
• h 1.21

  Extr. de his qua f••a pral. sine as∣sens. capituli, c. 7. cum Apostolica.