Animaduersions vpon M. Seldens History of tithes, and his reuievv thereof before which (in lieu of the two first chapters purposely pretermitted) is premised a catalogue of seuenty two authours, before the yeere 1215. Maintaining the ius diuinum of tythes or more, to be payd to the priesthood vnder the Gospell: by Richard Tillesley Doctor in Diuinity, and archdeacon of Rochester.

ANIMADVERSIONS on the sixt Chapter.

TO begin the Treatise of the third 400. yeeres, hee confesseth it to haue beene the generall opinion of the Church, that they are due, De Iure Diuino: but would haue this generall opinion interpreted warily, by the generall practise, cleerely allowed by the Clergie.

[Animad. 1] He might haue said wickedly, for that practise as himselfe confesseth, was disobedient both to the Canons of the Church pag. 67. and 71. and to the Lawes of the Empire pag. 70. and 136. and therefore not allowed cleerely as he boasteth.

After the granting of ordinary payment, not onely out of deuotion but dutie from the beginning of these 400. yeeres,* 1.1 Hee proceedeth to prooue Arbitrarie Consecrations, at which he saith, certaine phrases in Councells doe point: as Deci∣mationum prouentus priori Ecclesiae assignatus, The profit of Ty∣thing assigned to other Churches, as Concil Mogunt. c. 16. q. 1. cap. 24. Locus vbi Decimae fuerant antiquitus consecratae, The place where Tythes were anciently paid. Concil. Metens. Circ. Ann. 890. cap. 2. Decimae quae singulis dantur Ecclesiis. Mogunt. Circ. Ann. 846. cap. 10. Tythes which are giuen to each Church.

[Animad. 2] But, first all those Canons are against Arbitrarie Consecra∣tions, and secondly, the phrases doe not aime at them.

The first Canon is, Si quis Laicus, vel Clericus, vel vtrius∣que sexus persona, proprietatis suae bona, vel res alicubi dare dele∣gauerit, Decimationum prouentum priori Ecclesiae legitimè assig∣natum, inde abstrahere nullam habeat potestatem, If any Lay or Clergie man, or of either sexe any, intend to giue his pro∣per estate or goods to any place, let him haue no power to take away the profit of Tything anciently assigned to other Churchs: So, he might not giue his Tythes, though he might his land, by reason of Parochiall right. And for the phrase that this legitimè assignatum was by the Bishop not Patron, obserue both reason and authoritie, euen for the phrase.

1. If the Bishop might only dispose of Church reuenue as before is proued; and specially of Tythes, as in Concilio Ticinens. Ad Annum 855. In Sacris Canonibus praefixum est, vt Decimae iuxta Episcopi dispensationem distribuantur: Quidam autem Laici qui vel in proprijs vel in Beneficijs suas habent Basilicas, contempta Episcopi dispositione, non ad Ecclesias vbi Baptismum, & praedica∣tionem, & manus impositionem, & alia Christi Sacramenta percipi∣unt, decimas dant; Sed vel proprijs Basilicis, vel suis Clericis pro suo libitu tribuunt, Quod omnimodis Diuinae legi & sacris Ca∣nonibus constat esse contrarium. It is determined in the holy Canons, that Tythes should be distributed according to the dispensation of the Bishop: But some Lay men, who either in their owne lands or Benefices haue Churches of their owne, neglecting the ordination of the Bishop, pay not Tythes to the Churches, where they are baptized, taught, confirmed, and haue other Sacraments, but pay them at their owne pleasure to their owne Churches or Clerkes: which manifestly is altogether against the law of God and the Ca∣nons. Nay the Councell of Agatha An. 506. c. 22. saith, Rem Ecclesiae sicut permiserūt Episcopi teneant Ciuitatenses siue Dioece∣sani presbyteri vel Clerici, Let the citie or Diocesan Clergy haue the estate of the Church, as the Bishops haue granted or suffe∣red: No lawfull assignation then, but by the Bishop.

2. The Bishop was interessed in a third or fourth part of Tythes in speciall, as Concil. Toletan. 4. Can. 32. Iuxta priorum authoritatem conciliorum, tam de oblationibus quam Decimis — tertiam consequantur, According to the authoritie of former Councels, both of Oblations and Tythes, let the Bishops haue the Thirds: And Concil. Parisiens. ann. 829. lib. 1. cap. 31. Quanquam Canonica authoritas doceat, vt quarta pars decima∣rum — in vsus Episcoporum cedat, Although Canonicall au∣thoritie teacheth, that the fourth part of Tythes — must belong to the Bishops. Nay these had right to all Tythes not assigned, as Addit. ad Concil. Lateran. part. vltim. cap. 40. How then might any Translation be without him?

3. Since the limits of Parishes were assigned by Bishops, Ecclesiastica ordinatione Statuti, as Vrbanus the third, Tit. de Parochijs, cap. super eo. why not the assignation of Tythes? Videsis Grat. c. 13. q. 1.

But the very phrase is in Gratian. C. 16. q. 1. cap. plures bap∣tismales, Ius ergo Ecclesiarum ita interpretandum est, vt nisi E∣piscopo disponente alijs Ecclesiis fuerit assignatum, &c. The right of Churches therefore is so to be vnderstood, that vnlesse by the disposition of the Bishop it be assigned to other Chur∣ches, &c. Where the assignation in the Translation is. And Alexand. 3. Addit. ad Concil. Lateranen. par. vlt. cap. 40. To the Bishop of Brixia, Decimas retentas si infra certam alicuius Pa∣rochiam fuerint••, eidem Ecclesiae facias assignari, Cause those Tythes which are withhelde, if they be within a certaine Pa∣rish, to be assigned to that Church. And from the beginning, the Bishop, who as the common Treasurer, parted with the custodie of such Reuenue due to his Episcopall office, at the consecration of each Church, both receiued the Dowrie from the Patron, and assigned the seuerall circuit for the offering of oblations, and the hauing Church seruice.

[Animad. 3] The second Canon is out of the Councel at Meaulx: The words are, cap. 2. Ideo statuimus vt deinceps nemo Seniorum de Ecclesia sua accipiat de decimis aliquam portionem, sed solum∣modo Sacerdos qui ibi loci seruit, vbi antiquitus decimae fuerint

consecratae, Therefore wee decree, that from hencefoorth no Seigneur take any part of Tythes, but onely the Priest that serueth there where the Tythes were anciently consecrated. Here is no right of Translation by the Patron, much lesse of Consecration: But here indeed it is no more then ancient∣ly payed, Antiquitus consecratae, Ecclesiis antiquitus constitutis, as in the 4.* 1.2 Councell of Arles the Churches are called: It being therfore in the Bishops power and not in the Patrons, to allow Baptismall Churches which had the right of Tithes. No arbitrarie consecration therefore can be inferred, which is opposed by the Canon, but onely forbidding of sacriledge, to take away what did anciently belong to such Churches.

[Animad. 4] The 3. Canon is in the Councell at Mentz vnder Raba∣nus the Archbishop, where the words are, Volumus vt Decimae quae singulis dantur Ecclesiis, per consulta Episcoporum à Pres∣byteris ad vsus Ecclesiae & pauperum summa diligentia dispen∣sentur: Wee will that the Tythes which are giuen to each Church, by the aduice of the Bishop, be disposed by the Priests with great diligence, to the vse of the Church and the poore: which is also before in Concil. Turonens. 3. anno 813. Can. 16. But that this giuing was not voluntary but necessary, the precedent Lawes both Spirituall and Temporall, may in∣ferre; whereof one in this page sayth, Per iustitiam deben∣tur, They are due of right: And that the Bishop had an in∣terest in them, appeares in the next Canon of the same Coun∣cell. And as for the necessary duety, hee confesseth it in the next words out of the Canon of Leo the 4. c. 16. q. 1. De Mo∣nachis, cap. 45, &c. 56. & saepe in Capitularibus. To which may be added the Councell Meldens. c. 48. vt vici & Ecclesiae Bap∣tismales authoritatem & priuilegia debita retineant; That the Parishes and Baptismal Churches may retaine their authority and due priuiledges: Nay, Tythes in speciall were so due, as no Tythes,* 1.3 no Seruice, and that secundum antiquam con∣suetudinem. Nay the Capitul. of Charlemain in the Edition of Vitus in his eleuenth yeere, hauing the same phrase, yet in∣ioyneth a necessitie, De Decimis vt dentur & dare nolentes—

exigantur, Of Tythes that may be giuen, and they that will not giue — may be inforced.* 1.4 The words of Saluianus Massi∣liensis, are here fit; Si deuotus, da quasi tuum, si non deuotus, redde quasi non tuum — Ad opus Sanctū & hortatione inuitaris, & exa∣ctione constringeris, Da si vis, Redde si non vis; If thou be de∣uout, giue as if it were thine owne, if not deuout, restore as if not thine owne. To a holy worke thou art both exhorted and enforced; If thou art willing, then giue, if vnwilling, then restore.

But that such consecrations of Tythes,* 1.5 not established by a Ciuill Tythe made to the Church of another parish, were practi∣sed, and were in force, at the lay-owners choice, Hee prooueth plainly (as he saith) by a law (but not put in execution) for pu∣nishment of such consecrations: And the law is, leg. Longobard. lib. 3. Tit. 3. c. 7. & in Addit. 4. ad capit. cap. 173. The words are, Quicunque decimam abstrahit de Ecclesia, ad quam per Iu∣stitiam dari debet, & eam praesumptuose, vel propter munera, aut amicitiam, vel aliam quamlibet occasionem, ad aliam Ecclesiam dederit; à Comite vel à Misso nostro distringatur, vel eiusdem decimae quantitatem cum sua lege restituat; Whosoeuer taketh away Tythe from the Church to which of right it is due, and praesumptuously, either for reward, or loue, or other oc∣casion shall giue them to another Church, let him bee di∣strained by our officer, or restore the Tythe with the for∣feiture.

[Animad. 5] But that Hee is heere mistaken, himselfe will iudge if hee looke to the vnderstanding of this Decima by the Capit. lib. 5. cap. 145. cited before in the answere of the fift Reason in Charles Martels Storie: where hee shall finde this Decimae, though a true Clergie Tythe (yet of Benefices and Infeoda∣tions alone) which were per iustitiam debitae; And that such Translations of them were not in force, the word praesump∣tuosè mee thinkes doth inferre. Neither could such Benefices haue had much practise of such translations, since they were euen so lately practised in Pipins Time, the Father of this Charles, whose Capitularie this is, for it is not Lotharius

his, as the former Capitularie can testifie.

* 1.6Hee further would inferre it out of another prohibition against Parsons, who vnder paine of depriuation. capit. lib 7 cap. 141. were commanded not to perswade parishioners to come to their Churches, and to giue them their Tythes. And the like is in Sy∣nodo Ticinensi, c. 16. q. 1. c. in Sacris Canonibus, against such that vsed to giue away their Tythes, alijs Ecclesiis pro libitu.

[Animad. 6] First therefore, it appeares such practise was condemned and sentenced with depriuation; and iudged to be contra∣rie to the Canons and Gods Law, (Nay also with imprison∣ment, as Theodulphus Aurelianensis in his Epistle num. 14. doth declare, which is published with Hincmarus his Epistles by Busaeus.)

Concerning which, obserue the Law of Lambert the Em∣perour decreed in Concilio Mutinae,* 1.7 Anno 898. as Sigonius doth relate. Si quis Sanctorum Patrum regulas contempserit, & gloriosissimorum Imperatorum Caroli, & Ludouici, at{que} Lotha∣rij, & Ludouici filij eius de decimis in eorum Capitularibus statu∣ta & sancita non obseruauerit, easque alibi nisi in Baptismalibus Ecclesiis abs{que} consensu Episcopi dare temptauerit, vel retinere prae∣sumpserit, & qui dat ijs, & qui recipit eisdem cōstitutis percellatur; If any shall despise the rules of holy Fathers, and not obserue the ordinance and statutes of the glorious Emperours, Charles, and Lewis, and Lotharius, and Lewis his sonne con∣cerning Tythes in their Capitularies, and shall dare to pay them to any, but to the Baptismall Churches without con∣sent of the Bishop, or shall praesume to retaine them, both he that giues, and hee that receiueth them, shall vndergoe the same penaltie. Although therefore it might be a practise, yet sure not of many, since the reason was so bad, and not in force, because so condemned.

But yet in the First, that is the Capitular, Parochiall pay∣ment is praesupposed and prooued; so that there can be no consecration, though translation: for it seemes by this, they thought, that as Tithes in generall were due by distributiue iustice, so in speciall, to this or that place, they must be paied

by commutatatiue iustice, and therefore principally they for∣bade the sollicitation to come to their Church, because from the partaking of their seruice, the performing of their Tithing to them would follow: which was prohibited, for that it proceeded out of a couetous and iniurious minde to gaine by others losse. As also in Concil. Cabilon. sub Carolo Magno, Can. 6. & 7. Those Priests are condemned, who out of couetousnesse, would perswade Lay men, Vt abrenuncian∣tes seculo — res suas Ecclesiae conferant: That they would for∣sake the world, and giue their estate to the Church. This Ca∣non therefore, as some other constitutions, forbade the ad∣mitting of them to their Church. The Capitularie, libr. 1. cap. 143. Not to admit any but their owne Parishioners, vnlesse iourneying, or following suits of Law. And in the same booke, cap. 154. That none shal sing Masse before, or receiue Tithes of a stranger. Nay, in Concilio Nannetensi, C 1. to en∣quire if any stranger bee in the Church at Seruice, and cast him out. By which I am perswaded, their care was to preuent the stragling humour of some then Puritane conceipt, (whose persons and contributions are not at their owne Churches) that so thereby the Parochiall profit or credit might not bee diminished. Ne occasio tribuatur euagandi, & Diuina extra Parrochiam audiendi, say the Canonists: Lest occasion might bee afforded of wandering or hearing Seruice out of their owne Parish.

[Animad. 7] And in the Second, the Councell of Pauie,* 1.8 it appeareth manifestly, that the Bishops disposition of them was before, though contemned by such irregular vngodly people. And they were but Quidam whom the Councell censureth so sharpely, and desireth the secular Magistrate to correct them. Small force therefore in such giftes, which were so con∣demned.

But next, he proceedeth to examples of such consecrati∣ons out of Manuscript Chartularies in Thesauro Cottoniano; and first out of those of Vtrecht, in the time of the elder Pipin, Charles Martell, Carloman.

[Animad. 8] Where note, in their time were Tithes, yet such Tithes, as if I vnderstand them rightly, are not De iure, but indeed vo∣luntarily vouchsafed, namely a Tenth of the Kings Custome in Slaues, in Lands, in Tolles, in Merchandize, or any such things; Vndecunque ad partem Regiam, fiscus Teloneum exigere, aut acci∣pere videatur: From whatsoeuer the Kings Exchequer, for his part may seeme to receiue or exact tollage. If this be not the sence, I professe my ignorance; but otherwise, sure it had allowance to the Bishop, who might giue authoritie, and would, for the benefit of his Church, to translate them; or if Christianitie there then beganne, to receiue the profit of them.

The next consecration in the same Chartularie, is in the pro∣mise made to the Bishop by one Gutha, to endow a Church which he gaue to Vtrecht, with the Tithes of diuers Man∣nours; In Beuorhem tradidit Gutha Ecclesiam needum conse∣cratam in ius & Dominium S^ti. Martini, (To that Saint was the Church of Vtrecht consecrated,) eâ videlicet ratione, vt post consecrationem eiusdem Ecclesiae, Decimae darentur ad supra nominatam Ecclesiam de vill•• his nominibus vocitatis, Beuor∣hem, Gisleshem, Hegginghem, Schupildhem: In Beuorhem Gu∣tha deliuered a Church not yet consecrated, into the posses∣sion of Saint Martins, on that condition, that after the consecration thereof, such Tithes of such villages might bee giuen to the foresaid Church, &c.

[Animad. 9] These words cannot beare the sence which hee giues, but plainely crosse his intention, acknowledging the authoritie, not of him but the Bishop, to assigne seuerall Tithings to each Church. For he giues the Church, Ea videlicet ratione, vp∣on that condition, vt darentur, That there might bee giuen, not by him, but by the Bishop, such Tithing, to counte∣nance his giftes: But if any should vnderstand it otherwise, yet hence obserue, vpon consecration an endowment of Tithes doeth follow; and that it was to a Bishop in his owne Diocesse, who no doubt consented.

The Canons of this age were, that neither Patrons might

giue, nor Monasteries receiue any such Tythes, without the consent of the Bishop, So Mogunt. Conc. sub Rabano,* 1.9 Ecclesiae antiquitus constitutae nec decimis nec alijs possessionibus pro nouis Oratorijs sine consensu & Consilio Episcopali priuentur. Chur∣ches anciently endowed, let them not be depriued of Tythes and other possessions, without the consent or aduice of the Bishop. And the same Councell Can. 14. Nullus Monacho∣rum parochias Ecclesiarum recipere praesumat sine consensu Episco∣pi, Let no Monke dare to receiue Parish Churches, without consent of the Bishop:* 1.10 As after in the Councell of Lateran vnder Alexander 3. And in Gratian: and such was the condi∣tion of Iuo, concerning the Monkes their receiuing of them; And the Titles whereby they enioyed them, were vel proprij Episcopi licentia, vel Apostolicae sedis authoritate, as Paschal. 2.* 1.11 16. q. 1. c. peruenit. And so Gregorie the 7. Vt nullus Abbas De∣cimas & primitias & reliqua quae secundum Statuta Canonum ad Episcopos pertinent, detineat, sine authoritate Rom. Pontificis vel Episcopi in cuius Dioecesi habitat, Apostolica authoritate fir∣mamus, We command by Apostolike authoritie; That no Abbot detaine Tythes or first Fruits and such things, which by the Canons belong to the ordering of the Bishop, with∣out the authoritie of the Pope or Bishop of the Dio∣cesse.

[Animad. 10] By which, the next two consecrations of Tythes in Banno villae Anno 852. & 946. to Monasteries may bee knowne not to be Arbitratie, but by the consent of the Bishop (which by the vse of the times I onely coniecture, because I see not the Chartularies) and not of newly consecrated, but infeodate Tythes, because the words are Decimis quas habemus—quas ha∣beo, shewing a former enioying: and obserue it is not de Terris quas habeo, The Tythes which I haue out of my lands in such a place, but simply: as after in the yeere 1120. Lewis king of France, gaue a Church to the Church of S. Dennis, in these words, Ecclesias de Cergiaco sicut libere possidebamus cum Deci∣mis & omnibus ad Ecclesiam pertinentibus Ecclesiae restituendo ip∣sis Sanctis Martyribus contulimus, We gaue that Church which

we did freely possesse, restoring it to the Church, Quercetan in Abelard. pag. 1165. And to giue consent, that Bishops were much inclineable, nay in the third Toletan Coun∣cell, It was permitted. Can. 3. & 4. That maintenance from the Church, might bee allowed to Monasteries: Yet so, Quod vtilitatem non grauet Ecclesiae, That it may not bee burdensome, to the profit of the Church: And e∣uen, that a parish Church might bee graunted to make a Mo∣nasterie.

* 1.12But what I coniectured of the two former, is expressed in the next, which may shew the manner of such giftes. Lewis the fourth, Anno 939. granting to the Monkes of Clug∣ny Tythes, Decimas indominicatas, &c.

[Animad. 11] But within nine yeeres, there was a confirmation from Pope Agapetus the second, and after from Lucius the second, in whose time Adhemar the Bishop of Xantoigne, did by the wordes Damus and Concedimus, wee giue and graunt, confirme the same; and challenged an authoritie to command, that none should within the precinct of that Abbey conueigh their Tythes to other Churches. But that is most sufficient, that in that very Charter of Lewis the fourth, in the very next words, There is concerning Churches and Tithes, this added. Sicut per priuilegium Romanorum, & per scripta Episcoporum acquisierunt, teneant & possideant: As by the priuiledge of the Popes and writings of Bishops they haue purchased, let them hold and enioy. These shew this grant to be only a confirmation, and not a prime Donation: The original con∣ueyance being from Popes and Bishops: which also the ve∣nerable Abbot of that order,* 1.13 Peter, saith, Ecclesias & earum vniuersa bona, ab Episcopis, absque vaenalitate nobis collata li∣bere, iustè, Canonicè possidemus: (An obseruable example of iustification of the right of their enioying) Churches and all the goods thereof, wee doe freely, iustly, and Canonically holde col∣lated to vs by Bishops without Simonie.

The next is in the Abbey of Vendosme, of the Tythe of Salt∣pits; the like whereof the Abbey had out of the same lands of the

Bishop of Xantoigne, which although for 60. yeeres they had en∣ioyed, yet the Bishop vpon the opinion, that no Church lands were to pay Tythes to any Church would haue withheld; but the Ab∣bot Goffridus Vindocinensis pleads Parochiall right; and his words are confessed to shew a generall practise of such pay∣ment.

[Animad. 12] By which, in regard it was of the Bishops land, the Au∣thor is straitened in this Dilemma: Either the Bishop gaue them, and so consented, which was the Canonicall dispensa∣tion; or did not consent, and so Parochiall right expected not a Donors consecration? Both which, crosse his opinion: And yet for these, besides that of Callixtus, the priuiledge of Ʋrban is produced; as also those of the Bishops predecessours who gaue them.

Another consecration hee alledgeth, Anno 1124.* 1.14 And in stead of all others, which no doubt were most frequent,* 1.15 a confir∣mation of seuerall Tythes in Innocent the 3. with reference to many other quotations.

[Animad. 13] But all these were by consent and confirmation of Bishops or Popes, for else of themselues they could not bestow them, as the same Innocent speakes c. Dudum Extr. de Decimis, speaking of Tythes, Donatores non conferre potuerunt alijs quae ipsi de iure nō poterant possidere, The Donors could not bestow on others what they themselues could not lawfully enioy.

But Innocent the 3. in Serm. 3. de Dedicat. Templi. Tom 1.* 1.16 p. 83. saith it, where he doeth reprehend such consecrations, which were very common and allowed in fact by the Pope and Ordina∣ries, as saith the Author.

[Animad. 14] In that Sermon of Innocent the 3. he will needs interprete Indigentibus, to signifie in that place Monkes; as if Innocent had pointed at the custome of consecration to Monasteries. The words are, Grauiter peccant qui Decimas & Primitias non reddunt Sacerdotibus, sed eas pro voluntate sua distribuunt in∣digentibus: They grieuously sinne, who render not Tythes and First-fruits to the Priests, but distribute them as they list to the poore.

Now, that this word must signifie, not the Monks (though sometimes they were called pauperes) is euident, both by the circumstance of the place, which each man that reades may perceiue: And by the phrases in this sentence, both where he saith, Grauiter peccant, which because such consecrations were not yet in the Councell restrained by him, he could not well haue said: and againe, the word distribuunt doeth not sauour of consecrations, but of voluntary, though sacrilegi∣ous bestowing of it. Againe, the occasion of such reprehen∣sion surely was the same with that of his Decretall Epistle, ci∣ted pag. 144.* 1.17 of the Archbishopricke of Matera, where the lay-occupiers did vse to diuide their Tythes at their plea∣sure, and arbitrarily, one part to the Church, part to the poore, part to their kinred; where poore cannot signifie Monkes: Or with that other, where the complaint is, that some,* 1.18 De portione Fructuum — partem decimae separantes, eam Capellis suis, aut alijs Clericis, aut etiam pauperibus confe∣runt, vel in vsus alios pro sua voluntate conuertunt, Of the por∣tion of their Fruits, seuering part of the Tythes, they bestow it vpon their Chappels, or their Clerkes, or on the poore, or at their pleasure conuert them to others vse: And these poore are not Monkes, why then the other? But lastly, since Monks could not receiue Tythes at lay-mens hand at the pleasure of them without consent of the Bishop, how can they bee thought grieuously to offend in giuing that to Monks, which Monkes could not receiue; as elsewhere out of the Canons is shewed? And by the way, hee that heere would haue Indi∣gentes to signifie, not the lay-poore, but Monkes; before, pag. 46. in the Testimonie of Iohn the Abbot in Cassian, will haue pauperes onely to signifie, the lay-poore: Whereas Monkes, of whom some were in Orders, are there principally vnderstood, which besides the quotation of the Law of Moses, the very condition of his office, that hee was an Abbot, might in∣sinuate.

But Hee proceeds and inferres, that from the opinion of these arbitrarie consecrations, such conceipt was of praescription thence,

and that amongst great men of the Clergie, That Tythes of in∣crease long payed by a familie were due, whither soeuer it was transplanted, as if the continuall payment, had so for euer bound it, that it might not pay them otherwise. This was the opinion of some Bishops in the Patriarchate of Grado as wee may see by the same Pope Innocent his reprehension of them. Decretal. Ep. lib. 1. pag. 83. and of others elsewhere also Extr. De paroch. cap. 5. significauit.

[Animad. 15] Heere, First, you see how He would prooue a right from what was reprehended, and that in the opinion of the time.

And, Secondly, in the first quotation onely personall Tythes were claimed, not Tythes of praediall increase.

Thirdly, the Antiquitie of their claime euen to Proaui, no newly created Tythes then.

And Fourthly, not out of bountie but duetie, for how else would they extorquere: All which Hee would willingly denie.

But the words are plaine, Quia Patres eorum & Aui & Proaui decimas ipsis aliquando persoluerunt, Because their Fa∣thers and Grandfathers and Great-grandfathers sometimes payed them Tythes: Which phrase is after repeated; Now per∣soluere doth praesuppose debitum not datum, a necessarie pay∣ment, not arbitrarie consecration; whereupon they did ground their praescription, vpon which they so violently re∣quired and would haue extorted Tythes.

[Animad. 16] But the other quotation Extr. de Paroch. c. 5. significauit, is wholly mistooke, being for Iurisdiction, not Tythes.

Next,* 1.19 Hee prooueth the practise of Arbitrarie consecra∣tions, by the power they tooke of selling them, as by the phrase Redimere Decimas in diuers Capitulars and Synods, de Decimis quas populus dare non vult, nisi quolibet modo aut munere ab ijs redimantur, Concerning Tythes, which the people will not giue, vnlesse by some meanes or gift they may bee redeemed of them.

[Animad. 17] Where, First, is a plaine reprehension, nay in all the quo∣tations, besides the censure of the Church, and distresse of

the Magistrate, the appearing before the Emperour, was in∣ioyned vpon contumacie; whereas yet for the Parson by consent of the Bishops for to sell them was lawfull, as lib. 7. cap. 152.

And Secondly, these Tythes were Infeodations, and there∣fore being letten might be expected to be redeemed, as after he confesseth the phrase Redimere,* 1.20 to signifie in Alensis, and as in the Iustification of Charles Martels Historie I haue shewed.

And Thirdly, hey must needs be vsurpations, praesuppo∣sing still a former possession in the Clergie, for so is the sense of redimere, not onely to purchase, but to redeeme what was lost or left:* 1.21 so in Iuo the phrase is vsed Redimere — altaria, when lay-men vpon the death of the Parson who demised Tythes vnto them, were faine Redimere altaria, To pur∣chase the Church Reuenue againe: whereby the Chimera of arbitrarie consecration of Tythes, not already consecrated, which hereby, and from the former he would inferre, is an∣nihilated.

But that they were before consecrated, euery authoritie prooueth, as we haue obserued in the particulars.

* 1.22Proceeding to shew how lay-patrons did not onely arbi∣trarily consecrate Tythes, which were not before consecra∣ted, but euen, in those that were, exercised a power of dispo∣sing by appropriation: He first proposeth, the originall of parish Churches.

And first, how Metropoliticke Sees, Patriarchats, Exar∣chats (in the Easterne Church) and Bishoprickes were limited, wherein his coniectures are in my vnderstanding true; as al∣so in that he saith, that Bishoprickes were anciently called Pa∣rochiae, which terme was after confined to what our common language restraines: The Curates of which were appointed and sent by the Bishop, and receiued in their seuerall Parishes the offerings of deuout Christians, which were disposed of by the the Oeconomi Deacons, or other Officers thereto ap∣pointed vnder the Bishop (but by the Bishop) wherein at

first, they had no such particular interest, but that either a quadripartite diuision, as in the Roman Diocese, To the Clergie, Poore, Reparation of Churches and Bishop: or tripartite or other diuision, as elsewhere, was made; which Curates were protected by some appointed by the State for 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 and Defensores: So farre it seemes to mee not improbable.

But when hee talketh of Churches erected onely vpon the lands wherewith Bishopricks were endowed,* 1.23 because hee cannot denie that the Bishop did then alone ordaine Incumbents in euery of them, and that for space of fiue hundred yeeres, as if there were no Lay foundations:

[Animad. 18] This sure is not probable,* 1.24 nay by the Councell Arausica∣num Anno 441. is proued false, Quod si etiam secularium quicunque aedificauerit Ecclesiam, But if also any Lay-man shall build a Church, &c. and Concil. Chalcedon. So that no questi∣on, Parish Oratories and Churches of Lay foundations were before that time, and might be vnderstood by Pope Denis the first his Decretall: Although both in that time, and long after, the only Collation of such parish Churches, and election of the Incumbents wholly belonged to the Diocesan Bishops; at least wise their approbation:

Neither at any time the Patron might collate as the Bishop had done, which next He proposeth.

The Councell of Laodicea saith it,* 1.25 Non permittendum po∣pulo eligere: The people may not be suffered to elect. The forenamed Concilium Arausicanum is very direct against all,* 1.26 be he Bishop or Lay that buildeth a Church, the Chapleine to be allowed by the Bishop of the Diocesse; And after the 500. yeeres, Concilium Aurelian. 4. Ann. 547. Vt in Oratorij,* 1.27 Domini praediorum minime contra votum Episcopi ad quem Ter∣ritorij ipsius priuilegium noscitur pertinere, peregrinos Clericos in∣tromittant, nisi forsitan quos probatos, ibidem districtio Pontificis obseruare praeceperat: That in their Oratories the Lords of the Mannours bring not in thither strange Clerkes, against the minde of the Bishop, to whom the priuiledge of that Ter∣ritorie is knowen to belong, but such as the Bishop vpon exa∣mination,

hath commanded to serue there,* 1.28 Toletanum 3. They enioyne Presbyteris in Parochiis ordinandis, vt habeant libellum officialem, & faciant professionem Episcopo: Priests to to be admitted to Parishes, that they haue a booke to direct them in discharging their office, and that they doe make profession to the Bishop. But after, in Concil. Toletan. 9. for the Bishops pride,* 1.29 or negligence, in suffering the ruines of the Parish Churches, it was then permitted to the founders, for their life time, Vt Rectore•• idoneos ijdem ipsi offerant Episco∣pis ordinandos: Quod si tales forte non inueniantur ab ijs, tunc quos Episcopus loci probauerit, Deo placitos sacris cultibus insti∣tuat, cum eorum conniuentia seruituros: That they offer fit Re∣ctors to be instituted by the Bishops: but if such be not found by them, then let the Bishop institute those who are worthy to serue there, by the consent of the Patron. Long before this was that Constitution by Iustinian;* 1.30 Si quis Oratorium exstruxerit, volueritque in eo promoueri Clericos, vel ipse, vel hae∣redes eius, si sumptus ipsi Clericis subministrent, & dignos nomi∣nauerint, nominati ordinantor; Sivero qui ab ipsis electi sunt, eos tanquam indignos ordinari sacri prohibebunt Canones, tunc loco∣rum sacratissimus Episcopus eos quos praestantiores putauerit, pro∣mouers curam agito: If any build an Oratorie, and he or hls heires would praeferre Clerkes thereto, if hee will maintaine them, and present to the Bishop those which are worthy, let them be admitted: But if they that are chosen, are Canoni∣cally vnworthy, let then the Bishop of that place take care to preferre them whom he shall iudge to be more worthy. To these more might be added, which for the after-confutation, I reserue; whereby the right of Inuestitures by Patrons in Parish Churches in those dayes, is denied, and the institution of the Bishop as vpon presentation is prooued.

* 1.31But he doeth confesse, that the Canons did ordeine, that eue∣ry Church, and the profits thereof should bee subiect to the Bishops disposition, as to the onely immediate Superiour; and doeth in∣ferre, that the Patron should be vtterly excluded from all interest, which is most true: Yet hee tells vs of diuers Lay Patrons

in those elder times, which had, or at least challenged in the obla∣tions receiued from Christian deuotion, an interest like to what the Bishops more anciently had in the offerings made at Churches, wherein hee onely placed the Ministers. And for this he citeth the second Councell at Braccara.

[Animad. 19] Where he that reades it wholly, shall finde no challenge of a Patron, but the consent and composition of a Bishop, indeed to an abominable desire: concerning which, see before, Ad pag. 67.

[Animad. 20] Besides, he citeth the Epistle of Damasus, c. 10. q. 1. c. 15. where he calleth it a custome of the ancient times. But there Damasus speakes of Sacrilegious Lay men, not in particular of Pa∣trons, not as challenging by foundations, which is his in∣tention, but by strong hand.

After, he cites to prooue this, the 9. Councell of Toledo,* 1.32 Can. 1. (where he hath dealt fraudulently, in the citing of the words which make no such sence) for saith he, And in the ninth Councell of Toledo about the yeere 660. Lay patrons are forbidden to vse Iuris proprij potestatem in Church goods or lands, as if great pretence in those times had bin of their right in the disposition of them.

[Animad. 21] Now in the first Canon of the said Councell, for restrai∣ning of the Clergie from annexing the reuenue due by the founders dotation, to their owne inheritance or Sees: it is permitted to the heires and kindred of the founder of the Church to looke to it, and if by admonition they cannot helpe it, then to proceede by accusation to the Bishop, and if he be guiltie, to the Metropolitan, & if in case he doe the like, to the King; Ipsis tamen haeredibus in eisdem rebus non liceat quasi iuris proprij potestatem praeferre, &c. Yet let it not bee law∣full for the heires to pretend as it were any right of proprie∣tie, &c.

If the Quasi had not been concealed, and the new libertie of their intermedling at all had bin considered, no great pretēce in those times to haue bin of the right of Lay patrons in dis∣position of them would haue appeared. For they are not for∣bidden

to vse, but euen to pretend as it were any right, whereas before this they could haue no pretence, so much as to intermeddle.

Then, in generall he nameth, Imperiall Capitularies, but ci∣teth none wherein he acknowledgeth, that diuers times pro∣uision was made against such Laie men, as thought it had been their right onely, to dispose of the endowments and offerings of such Churches, as they were patrons of, and that the Bishop should bee wholly excluded.

[Animad. 22] Concerning the offerings, this is false, no Capitular being against any such challenge of offerings, though for the En∣dowment, the Dos, the Glebe, some patrons indeed might seeme to haue challenged it, as the Capitulars lib. 7. cap. 213. which he citeth also, & 368. doe inferre: where such chal∣lenge, Et in praeterito displicet, & in futuro prohibetur, Both for the present discontenteth vs, and for the future we forbid. And many Canons of that time haue the like, Valentinum Gal∣liae. c. 9. Wormatiens. c. 6. Coloniens. An. 887. c. 4. Mogunt. 888. c. 4.

So that all his quotations in respect of Tythes are false. In the first, no challenge of right, but composition. In the se∣••ond, no challenge of patron, but of any other Sacrilegious. In the third, no challenge of Tythes or offerings, but of Tem∣poralties.

* 1.33But although this challenge of offerings was abstained from, as the plainest part of Sacriledge, yet the interest of patronage, and a right of disposition of the Temporall Endowments, which the Lay founders challenged in their new erected Churches, which was a right of Collation and Inuestiture, whereby the Incumbent might receiue full possession without aide of Bishop or other Church man, could not bee so easily gotten from them; although some Imperialls were prouided against it, and of them he citeth onely the Capitular. lib. 7. cap. 213.

[Animad. 23] But since vpon the consecration of the Church, such en∣dowment was consecrated by the Patron, and by his Charter deliuered vp to the Bishop, together with the Subiection of the said Church,* 1.34 as in the second Councell of Braccara it ap∣peareth,

where the words are, Placuit vt quoties ab aliquo fideli∣um ad consecrandas Ecclesias Episcopi inuitantur, vnusquisque Epis∣coporum meminerit, vt non prius dedicet Ecclesiam, nisi ante do∣tem Basilicae & obsequium ipsius per donationem Chartulae acci∣piat; It is our will, that as oft as Bishops are inuited by any to consecrate Churches, that euery Bishop remember that he doe not consecrate the Church, before that hee receiue by Charter of the Founder, the dowrie and the subiection there∣of; whereof also S. Gregorie speaketh, and Concil. Aurelian. 4.* 1.35 with others. Why then should they intermeddle in the dis∣position of them? well therefore did the Capitularies cited by him prouide against it, citing an olde Constitution: nor they onely, but the Councells before cited of that time. But as for patronage (which hee would confound with the disposition of Temporall Endowment) it being a right of nomination and presentation, not onely to the Tem∣porall Endowment heere spoken of, namely, the Dos Ecclesiae giuen by the Founder, the colonica Vestita cum tribus Man∣cipijs, as Concilium Valentinum sub Lothario Imperat. called it;* 1.36 But euen to the Tythes and Oblations also which hee would not distinguish) this was not by way of Inuestiture and Col∣lation either challenged or allowed: But they vsually presen∣ted their Clerkes to the Bishop, as in the Councell and Nouell fore cited, Ad pag. 82. they are commaunded, and the con∣trary offenders were seuerally censured. Which may also ap∣peare by the Capitularie,* 1.37 De Clericis Laicorum vnde nonnulli eorum conqueri videntur, eo quod quidam Episcopi ad eorum pre∣ces, nolint in Ecclesiis suis eos, cum vtiles sint, ordinare, visum no∣bis fuit, vt in vtrisque partibus pax & concordia seruetur, & cum charitate. & ratione vtiles, & idonei eligantur; Et si Laicus Idoneum vtilemque Clericum obtulerit, nulla qualibet occasione ab Episcopo sine certa ratione repellatur, & si reijciendus est prop∣ter scandalum vitandum, euidenti ratione manifestetur: Con∣cerning the Clerkes of Lay-Patrons, many of them seeme to complaine, that some Bishops at their entreaty, would not admit them, though worthy, into their owne Churches: It

seemes good therefore to vs, that on both parts peace may be kept, and with loue and reason the profitable and fit may be chosen: And if the Lay-patron present a worthy Clerke, hee may not be repelled without good reason; and if he be to be repelled, for auoiding scandall, let the reason be euidently ma∣nifested:* 1.38 which is related in the Councel at Paris, an. 829. Is not this ordination the now-Institution, not the Lay-Inuestiture? Which they that did not obserue, were censured in Rescript of Charlemain in Ʋitus Edition:* 1.39 Praesumptio non modica, ita vt Presbyteros, nequissima temeritate praesentari Episcopo denege∣tis, insuper & aliorum Clericos vsurpare non pertimescitis; & absque consensu Episcopi in vestras Ecclesias mittere audoatis: It is no small presumption, that ye deny through most vngod∣ly rashnesse, to present your Priests to the Bishops, and that you farther feare not to take others Clerkes, and to dare to put them into your Churches: as also, in Concil. Arelatens. sub Carolo Mag. c. 4. Turonens. 3. sub eodem, c. 15. Cabilonens. sub eodem, c. 42. Moguntin. sub eodem, cap. 29. Meldens. c. 51. & 52. Wormatiens. cap. 8. and some others before mentioned, wherein diuers censures are threatned against such vsurpati∣ons: besides, the Acte of Vlrique after sheweth the vse of these Times.

* 1.40The Patron did take vpon him the Aduocates and Defensors office of the Church-title: So hee.

[Animad. 24] But as before, Defensores Ecclesiarum ab Imperatore fuerunt postulati: The Emperours were requested to grant Aduocates for Bishoprickes; as in many Councels; so at that time it appeares, that the Bishop did not confirme onely, but com∣mend the Aduocateship of the Church to the Patron: For so in the wordes of that Anonymus writer in the life of Saint Vlrique Bishop of Auspurg,* 1.41 where (as the Author citeth) he saith, Consecratione peracta, dote{que} contradita, comprobato illic Presbytero, Altar is procurationem commendauit, & Ecclesiae ad∣uocationem firmiter legitimo haeredi panno imposito commendauit: The consecration being ended, and the Dowry deliuered vp to the Priest, whom he had there approoued, hee committed

the charge of the Altar, and conferred the Aduocation of the Church firmely on the lawfull heire, by putting on him a robe. An excellent patterne of the vse of these times, by which all the fabricke of this new Historians inuention of challenges is destroyed. If the Bishop gaue the Dowry de∣liuered to him by the Patron, as afore; then why a challenge of the Patrons disposing of that in the Church, which the Church had not by him? If he approoued the Priest, and committed the care of the Altar to him, then why a chal∣lenge of Inuestitures? And if the Bishop gaue the aduoca∣tion of the Church, why a challenge of taking it as without him? Heare Hincmarus,* 1.42 Sancta Ecclesia per sanctos Sacerdotes elegit sibi in singulis Ecclesiis, Vicedominos, Aduocatos, Defen∣sores, & caeteros adiutores, &c. Holy Church by holy Bishops hath chosen her selfe in each Church, Vidames, Aduocates, Defenders, and other helpers.

But that they vsed such Collation and Inuestiture (Inue∣stiture being onely the giuing of Seisin and Possession,* 1.43 as Iuo is ci∣ted for Epist. 41. & passim) with these words, Accipe Ec∣clesiam, Take the Church, or such like, as P. Damianus lib. 1. epist. 13. Whereby without Institution, the Incumbent, as really, as fully, and as immediatly receiued the body of his Church, his Glebe, and Tythes, in point of Interest from the Patrons hands, as a Lessee for life receiues his lands by the Lessors liuery: this next Hee intends to prooue.

[Animad. 25] Yet in that parenthesis nothing almost is true,* 1.44 for neither that quotation of Iuo is true, though elsewhere in deed, hee grant Inuestiture to be a granting. Quae concessio siue fiat manu siue nutu, siue lingua, siue virga, quid refert cum reges nihil se spi∣rituale dare intendant, sed tantū aut votis petentium annuere, vil∣las Ecclesiasticas, aut alia bona exteriora, (quae de Munificētia aut Regum obtinent Ecclesiae ipsis Electis concedere.) Which grāting, whether it be by hand, or becke, or tongue, or rod, what dif∣ference, since Kings intend not to giue that which is spiri∣tuall, but onely either consent to others petitions or graunt to those that are chosen, Church-Farmes, or other posses∣sion

which the Church hath by the bountie of Kings. Nay in another place saith,* 1.45 Leges nequaquam appellant inuestituram concessionis, sed possessionis, The Lawes doe not call it an Inue∣stiture of Concession, but of possession, which is lesse. But this Inuestiture is not such as Hee would claime; In this, the election beeing graunted to the Clergie; but hee with∣out institution, nay allowance of the Bishop, would haue this Inuestiture of parish Churches; these therefore are not alike. Neither was that great quaestion (in which, Scissum Regnum & Sacerdotium,* 1.46 quibus tanquam principalibus & for∣tioribus paxillis Tabernaculi Dei status firmiter figebatur, The Kingdome and Priesthood were rent, vpon which as two principall props, the State of the Tabernacle was fixed) o∣ther then at first about the Inuestiture of Bishoprickes and Abbeyes. Wherein, what through the challenge, Iure Ma∣iestatis & publicae defensionis, By the praerogatiue of Maiestie and publike defence: or, Iure populi repraesentati in Rege, the right of the people repraesented in the King, which people formerly had interest in the choise of their spirituall Gouer∣nour: or, ex concessione Paparum Leonis 3. & Adriani 1. by the grant of Pope Leo 3. and Adrian 1. the Emperours clay∣med a right in the promotion and concession of such places, whereunto the Deuotion of their Auncestors had annexed great Temporall endowments: which, how mainely by the Popes it was opposed, and by most Writers (since forsooth for their labour Saincted) railed vpon and contradicted, the Stories are too full. Yet, how some others wisely praefer∣ring the peace of the Church before the priuiledge, willing∣ly receiued the honours; and some euen publikely defended the right; the Historie of that time may testifie. But after, the contention grew concerning the Collation of parish Churches; especially in this kingdome, as the Epistles in the third booke, amongst those of Anselmes, of his owne and of others can witnesse, and many of Ioannes Sarisburiensis.

[Animad. 26] But to returne to the Parenthesis, as the quotation of Iuo was false, so that of P. Damianus for the quotation is true.

Yet in the same Epistle saith that authour, Licet iniustè aliquo modo Ecclesias futuris rectoribus tradunt, Although vniustly in a sort they giue the Churches to the Rectors that shall be, speaking of Lay Princes: whereby both the right in his opi∣nion, by the word Iniustè, vniustly; and the denying of his Aduerbe, that the Incumbent did fully receiue the in••erest, is contradicted by aliquo modo, in some sort; because Ordination must follow vpon such title: In which the approbation of the Bishop was so necessary, that vpon Canonical exceptions, hee might hinder the capablenesse of such Lay Inuestiture;* 1.47 for therefore it must bee, cum consensu Episcopi, ne malus ex∣istat, with consent of the Bishop, lest he be naught.

But whereas he compareth the conueiance, as from a Les∣sour, to a Lessee for life, by liuery:* 1.48

[Animad. 27] I was perswaded, the common Law had accounted the estate of an Incumbent in his Cure, to be a Fee simple, and not like an estate by Lease, which vsually (I thinke) hath coue∣nants, whereby vpon default, either the demise, or some pe∣naltie may reuert to the Lessor. But howsoeuer, the Glosse of the Canon Law hath made the comparison otherwise, euen in the C. Monasterium before cited, (and after by him) where it saith, Episcopus inuito Patrono, non potest de Ecclesia facere Mo∣nasterium —sic nec Dominus rei potest vsum rei immutare etiam in melius, inuito vsufructuario: The Bishop cannot make a Church to bee a Monasterie against the Patrons will, as a Landlord cannot change the propriety of any thing though for the better, without consent of the Lessee. Where the Pa∣tron is compared to a Lessee.

To proceed, the vse of such Collations and Liueries, he striues to prooue by the phrase Commendare, in some Capitu∣lars, and in that former, Cap. Monasterium.

[Animad. 28] In the Capitularie, the first quoted, Libr. 5. cap. 83. The words are, Vt Laici omnino muner a iniustè non exigant à Pres∣byteris, propter commendationem Ecclesiae cuique Presbytero: That Lay men doe not at all vniustly exact reward of Priests, for the commendation of the Church to any Priest. But hee

that shall conceiue the very next Capitul. before, cannot sup∣pose his sence,* 1.49 Vt Laici Presbyteros non eijciant de Ecclesiis, neque constituant sine consensu Episcoporum suorum: That Lay men eiect not Priests out of the Churches, nor appoint any there without consent of their Bishops, where approbation and consent of the Bishop is required, and that very likely vpon praesentation of the person vnto him, as before out of another Capitul. in the same booke,* 1.50 and our of the Coun∣cell of Paris is noted: for being praesented to the Bishop, In∣stitution without Canonicall exception must ensue.

[Animad. 29] The next quotation, Add. 4. ad Capit. cap. 37. is a needlesse quotation, not hauing so much as the word Commendare; and the Capitular doth fully crosse his opinion. Multi contra Ca∣nonum constituta, sic Ecclesias quas aedificarunt, postulant cons••crari, vt dotem quam ei Ecclesiae contulerint, censeant ad Episcopi ordi∣nationem non pertinere, sed ea secundùm constitutionem anti∣quam ad Episcopi ordinationem & potestatem pertineant: Many against the Decrees of Canons, doe in such sort desire the Churches they built, to be cosecrated; that the dowry which they haue bestowed on the Church, they suppose doeth not belong to the ordering of the Bishop: But according to an old Constitution, let them belong to the ordering and power of the Bishop.

[Animad. 30] The last Cap. Monaster. c. 16. q. 7. is against his opinion, Liceat illi Presbytero cui voluerit, pro sacro officio illius Dioecesis, cum consensu Episcopi, ne malus existat, commendare: Let him commend it to any Priest whom he will, with consent of the Bishop,* 1.51 lest he be naught: and as the Authour, De vitis Ponti∣ficum, attributed to Luithprandus, addeth to the Canon, Ita vt ad placitam & iustam reuerentiam illius Episcopi obedienter Sacerdos recurrat: So that he may obey his Ordinary. Where obserue, that although he bee Presbyter and Sacerdos, yet the consent of the Bishop is necessary.

[Animad. 31] By which is confuted his next passage, to prooue the Bi∣shop to haue nothing to doe,* 1.52 but onely to order the Incumbent: For, saith he; A Priest being first ordered, might after bee placed

at the Patrons pleasure, to whom as to a Tenant he resigned: For which are cited, Capit. lib. 6. c. 197. & lib. 7. c. 173.

And yet he relates the old ceremonie of Ordination, wherein speciall expression was made of the Title of the Church, to which hee was then to bee promoted, and in which that he alwayes would remaine, hee made promise before his Ordination, as appeares by the Capitularie, Libr. 5. c. 108. Presbyteri qui in Titulis conse∣crantur secundùm Canones, antequam ordinentur, promissionem stabilitatis loci illius faciant: Priests that are preferred to Titles, according to the Canons, before they be ordered, let them make promise of continuance in that place; which they that did not performe but went to other Churches, were excommunicate vntill they returned; and if another were in∣stituted there before, he that had left his Church, Sacerdotij vacabat dignitate, was degraded, vntill his Successor died, as the second quotation cap. lib. 7. c. 173. doth declare. This being so heauie a censure, it is not likely there was any vse to the contrary. It was so odious a thing then, to leaue his first Church, that as Papirius Masonius attributeth all that vn∣christian vsage towards Pope Formosus by his successour,* 1.53 only for that hee first against the Canons, did leaue the Bishop∣ricke of Portua for the Popedome, as in the life of Formo∣sus: So to any that should bee a forsaker of his first Church, diuers censures were very grieuous, whereof although the Lay men might bee carelesse, yet the Clerkes neither durst nor were; none being receiued to other Diocesses, sine li∣teris commendatitijs, without letters dimissory, and in the same Diocesse such were not suffered. And against them were the other Capitulars mentioned lib. 5. cap. 26.43.82. to which an infinite number of Canons (whereof some be∣fore are quoted) might bee added,* 1.54 which that they were little obeyed, sheweth little religious reuerence, and small au∣thoritie, to countenance so strange an opinion concerning those times.

But secondly,* 1.55 he endeuoureth to prooue the vse of Colla∣tion in lay Patrons, for that the aduouson of the Church, descen∣ding

in Coparcenerie the Church had as many Incumbents as Pa∣trons, Singulae Partes singulos habebant Presbyteros, Each part had a speciall Priest, each giuing interest in a part, as in all o∣ther inheritance descended vnto them. For this Addit. 3. ad capit. c. 25. & Concil. Lateran. sub. Alex. 3. cap. 17. & Appendix ad Idem Concil. p. 15. c. 7. are quoted.

[Animad. 32] For the interpretation of the first of these quotations, That Capit. made in the 16. yeere of Charlemaines raigne, in Vitus Edition. p. 323. inter Leges Longobard. lib. 3. tit. 1. cap. 44. may giue some light, De Ecclesiis quae inter haeredes diuisae sunt, con∣sideratum est, quatenus si secundum prouidentiam & admonitio∣nem Episcopi, ipsi cohaeredes eas voluerint tenere & honorare, fa∣ciant. Sin autem haec contradixerint, vt Episcopus potestatem te∣neat vtrum eas ita consistere permittat aut reliquias inde auferat, Concerning Churches which are diuided amongst heires, it is decreed, that if the coheires after the counsell and admo∣nition of the Bishop will hold and honour it, let them doe it: But if they denie it, let the Bishop chuse, whether hee will permit it, or by taking away the reliques, vnhallow the Church: which I vnderstand, if they will not present one, let it be at the Bishops choice, &c. But the Councell at Tribure better expresseth the case c. 32. Quaecunque Ecclesia à complu∣ribus cohaeredibus sit obsessa, concordi vnanimitate vndique procu∣retur, ne propter aliquas disceptationes seruitium Dei minuatur, & cura populi inreligiosè agatur: Si vero contingat pro ea com∣participes dissidere, & sub vno Presbytero nolle eam procurare, & propterea iurgia & contentiones tam inter ipsos quā inter Clericos incipiant frequentare; — Episcopus tollat inde reliquias — atque eiusdem Ecclesiae claudat Ostia, & sub sigillo consignet ea, vt Sa∣crum ministerium nullus celebret in ea, antequam concordi vnani∣mitate vnum omnes eligant Presbyterum, qui seruiens scit Sacro-Sanctum locum procurare, & populo Dei vtiliter praeesse. Hanc autem habeant authoritatem Episcopi, vt in nullis Ecclesiis nec con∣stituantur Presbyteri, nec expellantur illis inconsultis & non consen∣tientibus. What Church soeuer is incumbred by many co∣heires, by all meanes in peace & concord, let it be ordered, that

for any such debates the seruice of God be not diminished, and the care of the people bee not irreligiously performed. If it happen the Copartners to disagree, and that they will not put one in it, and thereout brawles and contentions both be∣tweene themselues and their Clerkes beginne to increase: Let the Bishop take away the reliques, and shut vp the doore of the Church and seale it, that none say seruice in it, before they be agreed ioyntly to choose one, who may discharge the ser∣uice, and profitably be ouer the people of God. But let the Bishops haue that authoritie, that in no Churches, neither Priests be admitted, or from them be expelled, without the aduice and consent of the Bishop, &c. Out of which ap∣peareth, the case to be tumultuarie, wherein the prouidence and admonition of the Bishop, was to be vsed to bring in one Priest Canonically, and that was by his approbation, as before: or his authority to vnhallow the Church, and seale vp the doores, whereby all the Patrons right might be euacuate for the present.

[Animad. 33] The other two quotations plainely may declare the vse of the former, and that to be euen quite contrary to his opini∣on: For both c. 17. Lateran. sub Alex. 3. doeth expresse the seuerall presentations to the Bishop, Cum vna Ecclesia vnius debeat esse Rectoris pro sua defensione plurimos repraesentent, Whereas one Church should haue but one Incumbent, by reason of their Patronage they present many: Whereby his argument of Inuestiture is fallified, against which the whole Councell is most opposite.

[Animad. 34] And the other in the Addition part. 15. cap. 7. saith, Episcopus inuestiuit, The Bishop did inuest them, at the presentment of an Earle of Hereford: and that is not a case of Coparceue∣rie, but such as for case, A. marrying B. hath by B. the Patro∣nage of the Church C. which Church by the Bishops con∣sent is giuen to a Monasterie, B. being diuorced from A. is married to D. D. and B. would deuest the Monasterie, and interest the Parson without consent; nay D. dying, B. mar∣ried to E. and would maintaine the Parsons right, and so vp∣on

change of the Patrons, change the possessour. This case is not like, yet neither the Monasterie nor Parson were inter∣essed by Lay inuestiture.

[Animad. 35] From the Patronage, though no such challenge of Inue∣stiture, it may be, those Droicts Honorisiques des Seigneurs es Esglises, as precedences, seats, &c. did proceede, as hee seemes to expresse them pag. 394. or from the olde infeodations.

* 1.56But he saith, from Inuestiture came the custome remaining in diuers places, especially in France, whereby the Incumbent hath not for himselfe aboue a small part of the Tythes, à Canonica portio, at the arbitrarie disposition of some spirituall Patron, who take the rest to his owne vse, and for this citeth Extr. Tit. de prae∣bendis, c. 30. & de Iure patronatus cap. 25. & Sext. Tit. de Prae∣bendis, c. 1. suscepti.

[Animad. 36] But obserue the falshood of the Author; neither quota∣tion of the Decretals mention or intend the claime of any spirituall Patron; But in the first, Extr. de Praebendis c. 30. Ex∣tirpandae, from the reason of the Apostle, hee disprooues the custome, saying, Consuetudine qualibet Episcopi, vel Patroni, vel cuiuslibet alterius non obstante, Any custome of Bishop or Patron, or of any other notwithstanding. Where Episcopus and Patronus are distinguished. And in the 2. Extr. de Iure patronatus cap. 23. praeterea. That is absolutely of Lay-patrons or Aduocates, or Vidames, or Gardians, who are comman∣ded, vt nihil in ipsis Ecclesiis praeter antiquos & moderatos reddi∣tus à locorum Episcopis institutos exigerent: That they should not exact from the Church any thing but the ancient mode∣rate reuenue, instituted by the Ordinaries. Where obserue, that not by the patronage, but by allowance and ordination of the Ordinarie they had any right; with what confidence therefore are falsities produced?

But in deed in sexto Tit. de Praeb. c. suscepti: There, some exempt Religious in their Approbations, which they had not pleno iure, but were presentable by them, what by the negligence of the Bishop, not requiring the assignation of a competencie at the Institution of the Clerke; as also through

the couetousnesse of themselues, did assigne too insufficient meanes to their Curates. Wherefore Clement the 3. concei∣uing, how by this meanes no worthy persons would accept such Cures to the damage of soules; hee doeth strictly decree and command, that neither their Exemption, nor any cu∣stome of any other religious Patrons notwithstanding, the Bishop should interpose his authoritie, to inforce the assig∣nation of a competencie. This custome therefore, as con∣demned vpon such reason, did likely cease. But obserue, this to be in Appropriations, for as such the Religious had them; so that they were more then Patrons.

But, this he made his transition to denie the Bishops au∣thoritie to dispose of all Tythes in these middle times, as some falsly say (although many Canons did) but the practise of the time was contrarie, saith hee.

[Animad. 73] In Tythes where Parochiall right was not setled, as also in Tythes de Noualibus, of new Improuements by culture not assigned, may appeare,* 1.57 Addition. ad Concil. Later. and himselfe confesseth, for the practise, that they did belong to the Bishop; and no more did any Canons require for the absolute interest of the Bishop: but for the iurisdiction and necessarie consent in any voluntarie conueyance of them by any, the Canons were in generall as the practise: and the particular of the Arch-bishop of Saltzburg was of Tythes, which were not Parochially setled,* 1.58 as himselfe afterward prooueth, out of Greg. 7. Regist. lib. 2. epist. 77. So that therein he had authoritie to allot what part he would as Or∣dinarie, not as Patron.

Concerning Inuestiture, hee addeth, that it was,* 1.59 not onely in bestowing parish Churches, but in Monasteries and Bishopricks the like was: but the increasing power of the Clergie tooke it away wholly in lesser Churches (sauing, that in Collation of free Chap∣pels, Prebends, or other Benefices, without parochiall Cure, accor∣ding to the Droict de Regale of the Kings of England and France especially) and altered it in Bishopricks.

[Animad. 38] That the Challenge of Inuestiture was in Bishoprickes and

Monasteries, as well as parish Churches, is true, nay first and chiefly; for in those times wherein was no Inuestitures of parish Churches, the Popedome and Patriarchates by the consent of the Emperour were disposed; Nay in S^t. Grego∣ries time (vntill Constantinus Pogonatus remitted it to Pope Agatho) there was money paide for the ordination of the Pope to the Emperours.* 1.60 And as for Bishoprickes; in France, in the time of Agobardus, who pointeth at it, and Florus ad∣ded to his workes, where they both reprehend the vse.

But Fulbertus he acknowledgeth it, St. Wulstans Inuesti∣ture by Edward the Confessor in England, is miraculous in Matth. Paris: And this custome, without alteration that may impaire the praerogatiue of the King, euen still continueth: There praeceded a Congè de Estire,* 1.61 whereof S^t. Bernard spea∣keth before Election:* 1.62 and Thomas Becket amongst Ioan. Sa∣risburiensis his Epistles, commands the Chapter, Honesta Le∣gatione de Collegio vestro transmissa, & praeces ei deuotione de∣bita porrigentes, vt Canonicè eligendi vobis pastorem, libertatem concedat. By some worthy messengers of your companie to send, and in all due reuerence to entreat, that the King would grant you Canonically a libertie to Elect your Pastor. And, in the Election, potissimas & potentissimas habet partes, he hath the chiefe stroke,* 1.63 as P. Blesensis: And after the Election, his Royall assent,* 1.64 as Sarisburiensis, is required; and after that, the restoring of the Temporalties, which P. Cluniacensis doth thus expresse, Rex Franciae Electum Lingonensem, (quem quan∣tum in ipso erat confirmari Canonici rogauerūt) de Regalibus sicut fieri solet manu propria solemniter inuestiuit, The King of France did solemnely, as the maner is, with his owne hand restore the Temporalties to the Elect of Lions, whom the Canons of that Church did desire to be confirmed, what lay in them. And S^t. Bernard (I thinke concerning the same action) E∣lectus Lugdunensis petijt,* 1.65 & obtinuit à Rege Regalium Inuestitu∣ram, The Elect of Lions desired, and obteyned of the King the Inuestiture of the Royalties. And all these remaine yet vnaltered; no more being euer anciently required in a regu∣lar

course. The Inuestiture principally being accounted the last action by seuerall ceremonies,* 1.66 as S^t. Bernard distin∣guisheth them, Inuestitur Canonicus per librum, Ablas per An∣nulum, Episcopus per Baculum & Annulum simul. A Canon is Inuested by a booke, An Abbot by a Ring, a Bishop, by a Staffe and Ring together. As for Free Chappels, Praehends, and Benefices without cure, I haue read nothing, onely P. Blesensis saith, concerning the Deanrie of Vulrehanitin,* 1.67 Quem Deca∣natum semper de consuetudine Reges Angliae donauere: Which Deanrie alwayes of custome the Kings of England haue gi∣uen. But to leaue this digression,

The Authour saith, The substance of these Inuestitures was forbidden in the 8. Generall Councell.

[Animad. 39] But Iuo well vnderstanding the nature of Inuestiture, saith, Octaua Synodus solum prohibet eos interesse electioni,* 1.68 non conces∣sioni: The 8. Councell onely forbids their interest in the ele∣ction, not in the concession; which concession was the sub∣stance of Inuestiture, as he there saith: and so also doth he ex∣pound the meaning of the Councell, Ep. 102. But Gregory 7. and his successours denied this also, as the historie doeth ma∣nifest. And besides the Inuestiture of Parochiall Churches, (which vpon the pretence of being Aduocates, many Patrons did then challenge after the yeere 1000. for before I reade of none) was denied by him and his successours, as in the Councels cited vnder Gregor. 7. Callixtus 2. and Innocent 3.

Yet this challenge may seeme but rarely made,* 1.69 for lacke of Priests without titles, and the want of opportunitie of Resignati∣ons into their hand.

[Animad. 40] Both which, for that by the Canons they were so strictly forbidden, as hee confesseth, it is not likely that the Bishops in ordering such, or the Priests in resigning to Lay men, were so frequent, since the Canonicall censures were so immedi∣ately ouer them. But yet suppose both, it was not lawfull, that they might inuest one though in Orders, to any Bene∣fice, without the consent, much more,* 1.70 the notice of the Bi∣shop, as before I haue shewed, &c. And the Councell Nan∣netens.

proposeth the case,* 1.71 Vt si quilibet Presbyterorum — de∣functus fuerit, vicinus Presbyter apud secularem Seniorem nulla precatione vel aliquo xenio Ecclesiam illam obtineat,* 1.72 quia titu∣lus per se antea constans extitit, sed neque Capellam sine consultu Episcopi: Quod si fecerit, definitam sententiam sibi prolatam susci∣piat, sicuti de Episcopo Canonica decreuit authoritas, vt si per am∣bitionem maiorem ciuitatem appetierit, & illam perdat quam te∣nuit, & illam nequ••quam obtineat, quam vsurpare tentauit: That if any Priest dying, his neighbour Priest doe by any gift or entreatie obteine that Church of a secular Lord, who before had a setled Cure; but not so much as a Chappell without consent of the Bishop: which if he doe, let him vn∣dergoe the same censure, which the Canons haue decreed for a Bishop, that through ambition desireth a greater See, that he lose what he had, neither obteine that Diocesse, which hee assaied to vsurpe. It is likely therefore, that not much practise of such Inuestiture was vntill the end of these 400. yeeres; wherein that controuersie grew very pernicious to the Empire, and France, and this our kingdome, while the quaestion, An inuestitura sit haeresis, whether Inuestiture were an heresie? troubled some of the learned, as in Iuo his Epistles, and others of Goffridus Vindocinensis, is euident: And others, whether Inuestitures were lawfull? as Walthram, the Clergie of Leige, Sigebertus, &c. and their aduersaries.

* 1.73But to follow him, hee saith, Not vntill about the end of these 400. yeeres, Institutions vpon Praesentations were not be∣fore commonly practised, especially in the case of Lay Patrons, for which he citeth, Concil. Lat. sub. Alex. 3. c. 9. &. 14. Extr. De iure Patronatus, c. 4.10.21. & Tit. de Institut. c. 3. & Tit. de praebend. cap. 3. In Lateranensi: which hee saith, makes that appeare.

[Animad 41] But he that remembreth the Canons, and Capitul. before ci∣ted,* 1.74 cannot thinke, that Institutions by the Bishop for the sub∣stance, to wit, the notice and approbation of the party vpon praesen∣tation to be so new, neither do those Canons make it otherwise appeare, but rather iudge the contrarie practise of any to be

indeede vsurpatious vpon the regular and lawfull course, which was by institution; and they are censured in his owne quotations to bee, Tantae audaciae, of such boldnesse, Tit. De Iure patr. c. praeterea; and the action, De quibus paenitentia ducti ipsi patroni, which the Patrons repented of Ibidem c. cum Lai∣ci; and they are stiled, praesumentes, presumptuous. c. Relatum. the Action Nulla, void: the custome iniqua consuetudo, an vn∣iust peruerse custome. Tit. de Institut. cap. Ex fide: And the rest of the quotations, shew them but irregularities, and there∣fore not commonly practised.

Hee proceedeth to say, that in Appropriations,* 1.75 there did passe not onely the Title, but all Endowments, the Glebe and Tythe, but were made parochiall, by grant, foundation, or custome.

[Animad. 42] Especially that Title of grant, if he suppose it taken imme∣diately from the Patron, is false as before, for it is prooued to be granted by the Bishop.

And againe in that he saith, In some Appropriations by proui∣sion of the Patron, or at their owne pleasure they might present or not. This cannot be shewed without that exemption by the Bishop, to whom alone it belonged to giue a Church to bee enioyed Pleno Iure, as afterwards.

In this passage, Hee presupposeth in Appropriations, the onely authoritie of the Patron; But that hee cannot prooue.

The maintenance of the Ʋicar,* 1.76 was at the bountie of the Mo∣nasteries allowance.

[Animad. 43] It was not: in all Appropriations almost, the Bishop reserued this authoritie of allotting a competent maintenance to the Vicar, which vpon the complaint of the Vicar, by ordinations and compositions hee did vsually put in pra∣ctise, and as further neede was, did increase: examples are infinite.

In those that were conueyed Pleno Iure, the Monasterie had institution and destitution, and the profit.

[Animad. 44] The interpretation of pleno iure, and non pleno iure, I leaue to the Canonists, it being nothing belonging to my professi∣on;

which yet in regard it cannot bee prooued, but that all Appropriations were by consent and authoritie of the Pope or Bishop, doth nothing make for his intention, But of that heereafter; Onely adde this out of Lindwood, Religiosi non possunt habere potestatem inst••tuendi & suspendendi authorizabili∣••er, sed vt vicem gerentes Episcopi, Monkes cannot haue power of institution and suspension with authoritie, but as the Bi∣shops Vicegerents. Tit. de locat. & conduct. cap. licet Bonae. V. Asse∣runt non ligare. And so this priuiledge to haue it pleno iure can be onely from the Bishop.

* 1.77That some Patrons gaue the profits and reserued the pa∣tronage, may be true.

That the Church Glebe, and Tythe passed equally by way of interest to the Monasteries, is true, so that they might offi∣ciate them themselues by some Monkes receiued into orders, as some did.

* 1.78That Tythes were giuen, the Church still remaining pre∣sentable, is most true and most frequent.

[Animad. 45] Yet not by Patrons prouision, but by ordinarie and Ca∣nonicall right, for so doeth Innocent confirme that Charter cited to Saint Germans in Auxerres, salua Diocesani Cano∣nica iustitia, The Canonicall right being reserued to the Diocesan.

But now hee commeth to that which must answere all hee can say, to prooue that the confirmations of Popes and Bi∣shops did adde no validitie in secular or common Law then practi∣sed, but were gotten by Monkes to satisfie the Canons.

[Animad. 46] Heere he shifts, and when he cannot denie the validitie of such confirmations in the Ecclesiasticall Court, which hath the proper cognisance of such conueyance, witnesse many Titles of the Decretalls, and himselfe afterwards; Yet now he would demand validitie of such in secular and common Law, where as yet hee hath shewed, euen no practise of common Law to denie it.

* 1.79That the Bishops of Germanie, and some more Northerne, had from the beginning of Christianitie, the right of all Tything

through their Diocesses, and therefore might appropriate what they list, is true.

[Animad. 47] Whereby, both the euen age, and right, and practise of Christianitie with Tything, is manifest, and the authoritie of Bishops in disposing them doeth appeare: Whereas hee would make Tything voluntarie in the Originall, and at the dispose namely of the Patrons, onely vpon the foundation of a Church; whereas now hee confesseth, they were all due to the Bishop from whom, without his consent, how could any thing be restrained to a particular place? And further, since these first were in the Bishops, who were the true and immediate Parochiall ministring Rectors (as hee phraseth it) all Donations by them to Monasteries, cannot be adiudged in those Monasteries to be newly created Tythes; which yet he doeth often intimate.

For conclusion of Inuestitures and Appropriations (wher∣in his errour is in the authoritie of conueying Tythes) now hee would by the practise of the time deuest the Clergie of the sole right of claime to them; for,* 1.80 saith he) The Tythes of LX. or LXXX. or more Parishes, were by those courses annexed sometime to one Monasterie, which the Head and Couent possessed, not as any part, or 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. These, to be giuen to aliens, was complained of in Edward the 3. time: And other particulur Orders were blamed therefore as in that of the Cluniacenses, as P. Cluniac. lib. 1. epist. 28. and Iohan. Sarisburiensis, de Nugis Curial. lib. 7. cap. 21.

[Animad. 48] Such appropriations to Monasteries, although they be not excusable, and by many others are complained of, as by Hu∣go Pontiniacensis, and S. Bernard in an Epistle after those of Iuo, and by Stephanus Tornacensis, P. Blesensis,* 1.81 and in the person of the Abbot of Redding: besides those scrupulous Monkes in Iuo; by Petrus de Alliaco, though a Cardinall and a Schooleman, in his booke De Reformatione Ecclesiae, cap. De Reformatione Religionum & Religiosorum.

[unspec 1] Yet they might pretend excuse, partly because they ac∣knowledged it no due, but charitie: for so in Iuo in the Epistle last quoted, Lege charitatis, By the law of charitie; and, Vt charitatiuè sustententur, that they may be charitably relieued, as P. Cluniacensis in the Epist. quoted,* 1.82 and indulgentia, non de∣bitum, fauour, no due, as Hugo de Sanct. Victor. may import.

[unspec 2] And because they were accounted a part of the Clergie, for so saith Pope Alexander,* 1.83 and Gregorie, and Paschal the 2. and pretended that right, for so doeth Alensis euen in the Re∣solution, Cum Religiosi in Leuitarum ordine & munere compu∣tentur, Decimas recipere possunt, sed quae sibi concessae sunt; Whereas Monkes are reputed in the order and number of Leuites, they may receiue Tythes, but such as are granted them by authoritie of the Church. Nay doeth not P. Cluni∣acensis in the Epistle cited by him say, Nam sitribui Leui— rectè eadem Monachis conceduntur, &c. For if to the Tribe of Leui they were granted, then rightly to the Monkes.

[unspec 3] And thirdly, because they gaue, Competens beneficium, A competent maintenance to Curates, (for, Si ista non fecerint raptores sunt, & Decimas retinent iniustè, If they doe not so, they are robbers, and vniustly detaine Tythes, saith Alensis in the place before) if they did not officiate them them∣selues, which yet was irregular, as Stephanus Tornacensis (the first Commenter of Gratian) doeth say:* 1.84 and so Edictum Tas∣silonis, legum Antiquar. p. 439.

[unspec 4] And fourthly, because it was supposed to be, Ex super∣abundanti, of what might be spared, as the same de Ales; Ex portione pauperum, not sustentatione Clericorum, Of the por∣tion of the poore, not the sustentation of the Clergie, as Hu∣go de Sancto Victore,* 1.85 with that condition, Vt terminos non trans∣grediantur antiquos: i. Si stipendia Presbyterorum antiquitus in∣stituta non minorent ac sibi vsurpent. That they passe not the ancient bounds; that is, that they lessen not the ancient al∣lowances of the Priest, and vsurpe them to themselues: and, Quod Ecclesia cum omnibus pauperibus potest habere commune, as Iuo,* 1.86 Quod Ecclesiam non grauet, as Toletan. 3. what is not burthensome to the Church.

[unspec 5] And fiftly, because these Donations to them at first, see∣med to be but for the life of the Donor, for Bishops might re∣new them, Aurelian. 5. can. 15. and Titulo de Decimis c. du∣dum; And for the Parson that he might, reade Adrians Epi∣stle in Addit. ad Concil, Later. part. 13. c. 11. which I am per∣swaded was the intent of that time: For else, what need of such successiue confirmations? And if they might not infeo∣date for longer, why might they quite giue away? But that they did infeodate or make leases, but onely for their time, besides the Testimonie of Iuo, Epistola 12. the obseruations of Franciscus Iuretus vpon him make it manifest.* 1.87 And be∣fore the quotations there, the Lawes of Hlotharius may testifie, vpon which graunt the praescription of fortie yeeres incurring, did make a perpetuitie, videsis Hincmarum in Dia∣log. de statu Ecclesiae, and Gratian out of a Councell of Car∣thage.

[unspec 6] And lastly, because not the right, but the Tythe it selfe, was conferred on them, for which onely they could plead, not from the gift of the Patron, but concession of the Bishop and Patron, who must also concurre to iustifie the Title of their enioying, as after out of the Chartularies of Rochester shall appeare; These reasons besides those other pretences of prayers and other exercises of Deuotion, may seeme to reason the charitie (though wee may call it superstitious prodigalitie) of those ages in the Collation of Tythes to Monkes: though they might not misconceiue of the Di∣uine right of payment (which after is inferred) nor praeiu∣dice the Clergie in the right in the possession of them.

As for the pretence of hospitalitie, why they had Tythes,* 1.88 P. Damianus is cited, lib. 2. Ep. 14. The words are, Enimuero vt copiosiora in pauperes alimenta proficiant, dantur in Monaste∣rijs & Eremicis decimae quorumque prouentuum, & non modo pe∣corum, sed & ornicum pariter & ouorum; For that there might be better fare for the Poore, There are giuen in Monasteries and Hermitages, Tenths of all prouision, not onely of Cat∣tell, but of Foule and Egges.

[Animad. 49] The place of P. Damianus I well vnderstand not, yet I suppose by this, no gift of others to Monasteries, but the Tenth of the Reuenues of all things in Monasteries, are to encrease the prouision for the Poore. The words before and after are not vnlike to that in Concilio Aquisgranensi sub Ludouico Pio, where, the Councell commanding some place to be proui∣ded for the poore, where they may be together, it decreeth, vt de rebus Ecclesiae tantum ibidem deputent, vnde sumptus neces∣sarios habere valeant, exceptis decimis, quae de Ecclesiae villis ibi∣dem conferuntur, That of the Church estate they would ap∣point so much there, whence the poore may haue necessa∣rie expence, excepting the Tythes of those Villages which are bestowed.

[Animad. 50] The Stories in Lambertus Schaffnaburgensis &c. both shew the Episcopall and Parochiall right claimed, and the irre∣ligiousnesse of the Turingians to take all occasions to defraud God.

* 1.89Yet for that the Author citing him, Anno 1073. ends his quotation with this, Gaudentibus Thuringis, quod occasionem inuenissent, vt traditas sibi à Patribus leges manu militari tue∣rentur, The Thuringians reioycing that they had got occa∣sion to defraud by hostilitie the lands of their Fathers, as if their traditae à Patribus Leges, The Lawes of the Auncestors were against Tything. Adde therefore the next words, Et dolente Rege, quod dum decimis immoderatiùs inhiaret, pene reg∣num cum vita amisisset, The King grieuing that while he ga∣ped after Tythes, he had almost lost his life and kingdome; and euery one then may plainely see, they meant Subiection, not Tything. Besides Lambertus was aduerse to the Empe∣rour, and a Monke of Hersfeldt, for which Monasterie was the warre, it was their owne case.

Infeodation by him doth signifie the conueyance of perpetuall right of Tythes into Lay hands, Now that such were, Damianus is alleadged,* 1.90 Insuper & decimae & plebes adduntur in beneficium secularibus, Besides, Tythes and parish Churches are infeodate to Lay-men.

[Animad. 51] Where, note they are let from the Church: and if benefi∣cium may signifie an infeodation, as in Damianus he doth in∣terprete it, then that which next followes, namely,

[Animad. 52] That they that referre them to Charles Martells time,* 1.91 or a∣ny age neere him, are in great errour, is a great errour: For be∣sides the times of Charles Martell, whereof before, in the times next succeeding, besides the testimony of those there cited; in the Glossarie, Leg. antiq, verbo, Beneficium, there out of the life of Saint Gothard Episcop. Hildesemensis, it is related, how in the contention of Lewis the first with his sonnes, the possessions of the Monasterie Altahense, pro voluntate eo∣rum, qui sic debacchabantur, Beneficij, immo Maleficij no∣minie, adtribuebantur: At their pleasure, who were so outra∣geous, they were bestowed as a Benefice, nay rather as a Ma∣lefice. But Ile referre the Reader to that storie of C. Martell.

And here Krantzius, libr. 4. (it should bee libr. 1.* 1.92) Metrop. cap. 2. in the Margine, hath this scorne laid vpon him, Man∣drabuli ad morem, coniecturas de hac re infoeliciter adfert. And P. 117. he saith, He ignorantly coniectureth;

[Animad. 53] Whereas his relation of the originall of infeodations from Charles Martell, is true; and his coniecture, that the Clergie did, Cum non satis fiderent, sua iura à Laicis Principibus tueri, partem Decimarum Principibus in manum dare per speciem feudi & beneficij, malentes amittere dimidium, quàm totum, When they doubted the defence of their rights, by Lay Princes, that they infeodated part of their Tithes to Princes, willing rather to lose something then all, is not so vnprobable to him, who shall reade the Decree of Pope Eugenius 2. in Con∣cilio Rhemensi, circa annum 826. Authoritate Apostolic â pro∣hibemus, vt nullus Aduocatus, praeter ius, & Beneficium an∣tiquitùs, aliquid sibi accipere, vel vsurpare praesumat: We for∣bid by Apostolike authoritie, that no Aduocate, besides his ancient right and fee, should not presume to take or vsurpe a∣ny thing to himselfe: Where Beneficium antiquitùs, seemeth to be giuen to the Aduocatus, or Defensor, or Vicedominus,) who,* 1.93 as the Capitularies say, was to bee procured from the Empe∣rour:)

and shall further conceiue vnder pretence thereof, what interest these Aduocates vsurped, as Iohannes Sarisbu∣riensis, Epist. 125. relateth; which for a while the Church tolerated, as Alexander 3. in Concil. Lateran. pag. 1. cap. 17. But Fredericke Barbarossa,* 1.94 (or Henry 6. his sonne, as Arnoldus Lubecensis in supplem. hist. Sclauorum) approoues it to bee true: the words are; Sed cum tempore Christianitatis, ab ad∣uersarijs infestarentur Ecclesiae, easdem Decimas praepotentes, & Nobiles viri ab Ecclesiis in Beneficio stabili acceperunt, vt ipsi defensores Ecclesiarum fierent, quae per se obtinere non valerent: But when in Christianitie, the Churches were disturbed by the aduersaries, Great men tooke Infeodations from the Churches, that they might be Aduocates for the Churches, in what they could not by themselues obteine.

To confute Stephen Pasquier his opinion, that Infeoda∣tions beganne in the holy warres, betweene 1090. and 1100. he truly produceth P. Damian. in the place before, and the Coun∣cell of Lateran, held 1078. Decimas quas in vsū pietatis concessas esse Canonica authoritas demonstrat, à Laicis possideri Apostolica authoritate prohibemus: Siue enim ab Episcopis vel Regibus, vel quibus libet personis, eas acceperint, nisi Ecclesiae reddiderint, sciant se sacrilegij crimen incurrere: Tithes which the Canons ma∣nifest to haue bene granted for the vse of pietie, by Apostolike authoritie, we forbid Lay men to possesse, whether they haue receiued them from Kings, or Bishops, or others; vnlesse they restore them to the Church, they vndergoe the censure of Sacriledge. This is iterated in the same syllables, in the gene∣rall Councell at Lateran, 1139. vnder Innocent 2.

But yet out of the Councel he makes inference, as if onely Lay men did make these Infeodations;

[Animad. 54] Whereas the word, ab Episcopis, might haue remembred him of Bishops, aswell as P. Damianus, vpon whose com∣plaint of the abuse of that time, this Councell might take oc∣casion, it being very few yeeres after his death: And the word therein, Regibus, from Kings, might haue made him thinke of Charles Martell: and the word, reddiderint, they re∣store,

make him acknowledge what after he will denie, both that all Infeodations were from the Church, and that the true reading of a Canon of the Lateran Councell vnder Alexan∣der the 3. to the same purpose, is to bee reddiderit, not tra∣diderit.

Which two last errours, the Canon, prohibemus,* 1.95 in the Councell of Lateran, vnder Alexander the third, p. 1. cap. 14. is interpreted to maintaine: though brought to prooue, that then, and not before the vse of such new infeodations as staied, not that any annullation of the old was intended.

The words are, prohibemus ne Laici Decimas cum animarum suarum periculo detinentes, in alios Laicos possint aliquo modo transferre: Si quis vero receperit & Ecclesiae non reddiderit Chri∣stiana sepultura priuetur, Wee forbid that Lay men detayning Tythes with perill of their soules, may not by any meanes passe them to other Lay men, but if any shall receiue them and shall not restore them to the Church, let him want Chri∣stian buriall.

[Animad. 55] Ignorance is imposed vpon the later Canonists, that op∣pose this Canon, against the right of all feodall Tythes, an∣cienter then the Councell: And Innocentius the fourth, and Hostiensis, Bernardus, and Bowhic are opposed to them: whose authorities may bee truely cited, yet not interpreted of Infeodations, but De Decimis male detentis, as in the page 156. hee quoteth out of Innocent the fourth, and so his opinion of the prohibition of future infeodations haue no proofe from thence, nor opposition therein to the elder Canonists. But mee thinkes, hee that considereth the aime of those times, onely to get them from Lay men, Nec multum refert quae Ecclesia habeat dummodo extirpentur à Lai∣co, It is no matter what Church hath them, so they may bee gotten from the Laitie, as Panormitan cited by him, pag. 156. And considereth also, how they decreed, that not so much as the Patronage should bee passed by succession, but to the Cler∣gie Addit. Concil. Lateran par. 15. cap. 6. nor so much as bee solde, cap. 16. & 17. Quia Spirituali annexum: see Epist. Pas∣chal.

2. inter Epistolas Anselmi lib. 3. Epist. 45. might well ima∣gine the intention to reduce the thing it selfe, Infeodations present, not future: Especially conceiuing it to haue beene decreed against, by Gregorie the seuenth, Vrban the second, and Innocent the second, which are euen quoted by himselfe. And may any suppose that Pope Alexander the third would haue had lesse stomacke,* 1.96 and would not claime the Tythes? I will not bee perswaded; especially hee vsing the same word Reddiderit, as a badge of their intention, and his owne. Nay himselfe par. 4. cap. 1. decreeth an infeodation euen from an Abbot into Lay hands to be void, quoniā Sanctu∣arium Dei iure haereditario possideri non debet, Gods Sanctuarie must not bee held by inheritance, which is the same in effect. Who then would not trust, rather Innocentius the third, who interpreteth it of Tythes formerly infeodate (and was next successour to Alexander the third) as in Tit. de His quae à Pre∣latis. c. cum Apostol. or the other Canonists, who vnderstand it by Iudiciall application as he confesseth p. 139. then only re∣ly on his coniecture?

But besides, by the very sense of the wordes, cum Anima∣rum periculo detinentes, detaining them in the perill of their soules, who will thinke that any man might by law seeme to haue right to passe those Tythes to another, wherein him∣selfe had no right? the conueyance it selfe was irrita, voyde: Sure therefore they claimed a right; and how, but by infeo∣dation? by which Title (though it was against conscience for any to detaine Tythes) yet some shew of Ciuill Title might countenance that Action, which is heere forbidden. But bee it as it will, let the Canonists decide it.

That which followeth is more pertinent to this businesse. Hee saith, surely it is an errour, which is commonly supposed, that all ancient feodall Tythes were at first Spirituall and trans∣ferred from Church-men, at the request of Princes (hee might haue added or Tyrannie) into Lay hands, and since wrongfully detained, Neither is there any ancient warrant sufficient for it.

[Animad. 56] The Historie of Charles Martell before, doeth make the contrarie plaine; and the Catalogue of Authours, shew both the Diuine due, and payment long before.

But yet hee is of opinion, that many of these Infeodations were doubtlesse created by lay-mens Grants, as Rents-charge, Esto∣uers, Turbaries, and the like are: Who can doubt of it, saith hee, that obserues but alone this Canon Prohibemus?* 1.97 Whence also may be strongly inferred, that the greater number of infeodations were by Grants made by Lay men to Lay-men: for what is there, onely forbidden by the Councell may be thought the greatest and most preiudiciall practise of the times against the profit of the Clergie; neither is any prouision there made against the other kindes of Infeodations which passe Tythes from Church men. I haue more largely repeated this, because though hee made no doubt of it, the ground is false.

[Animad. 57] For that they were created at first by Lay-men, hee can ne∣uer prooue; yet because it is said, In alios Laicos possint trans∣ferre, hee would needes inferre the originall of Infeodations; whereas it can be onely the after-deriuation, for else then he must presuppose in this Canon, that euen vntill that Coun∣cell (for it denies not Infeodations before, saith he) some Tythes had not beene consecrated to the Church: whereas the very word detinentes, implies a right in the Church; and the word reddiderit, doeth plainely shew the ancient possession.

But hee hath found a new Edition,* 1.98 which because it makes against the Church, is the truer reading; Tradiderit, not Red∣diderit.

[Animad. 58] Although it be Reddiderit in the Canon, and in the body of the Counsell in Roger Houeden; and he might haue added in Neubrigensis; and,* 1.99 in all the Commentaries vpon the Decre∣talls both olde and new, in Alensis: Besides the Councels to the same purpose before cited, which reade Reddiderit: And yet the new Romane Edition of the Councels, with some other of lesse authoritie, shall sway the reading to what he will.

[Animad. 59] But his next coniecture (though but a coniecture) is more reasonable, That Patrons in the Vacancies might infeodate, as by

the Common Law the Patron and the Bishop may: (sure the Com∣mon Law nor common lawfull practise, neuer left out the Bi∣shop in such disposition) because the Patron had the onely dispo∣sition, as hee saith hee hath prooued (but I know not where) yet saith he, Patrons granted whole Churches, and therefore ci∣teth Flodoard in many passages, and Damian before, and the Councell vnder Innocent. 2.

[Animad. 60] But whether these Churches were not first Spirituall pos∣session before Lay-infeodation, is the question: for else, Lay∣men did passe their Fees to others; but the sense of the com∣mand of the Councell vnder Innocent the 2. of restoring it to the Bishops disposition, shewes from whence it came; and P. Damianus his authoritie is plaine, that the Bishops made them; and as for Flodoard, hee hath nothing to the con∣trarie.

[Animad. 61] And the next example (though produced to oppugne it) of Charles the Balde, or Charles the Simple, (though the ve∣ry like acte done by him in Concil. Meldensi, cap. 75. make me thinke it Charles the Balde) plainely shewes it; where it is, Ecclesiam cum omnibus ad eam iure pertinentibus, The Church, with all the lawfull appurtenances. But in that it had both consecration, or else not Ecclesia; and Dotation, or no pertinentia; and Tythes, or else not omnia: therefore it came from the Church. How then can hee conclude out of these no premisses, the originall of infeodations from such Grants, whereas the Churches right, at first, either by consent, or Tyrannie of Princes parted with, is alwayes precedent? Nay himselfe next, sayth, that Princes sometimes ioyned with the Bishop to bring in the paiment of Tythes, that they might haue beneficiall infeodations from the Church, not make them them∣selues.

And yet in the next words hee sayth, But as Princes made infeodations out of their owne demesnes, or their owne Churches, so other priuate Lay persons did.

[Animad. 62] O incoherent confirmation or consequence, since hee hath neuer prooued, that Princes did, though if prooued, it followeth not!

He sheweth next how the Clergie did infeodate.

[Animad. 63] But those were annullate:* 1.100 of those quoted out of Innocen∣tius the 3. pag. 447. the first was resigned; the second, pag. 482. by sentence was repealed, and the rest proposed are by his owne Authour discommended.

In the next Section he speaketh of Exemptions,* 1.101 but begin∣neth, as if he had prooued, that Lay-men had enioyed a libertie in not subiecting themselues to the payment of Tythes according to the Lawes of the Church, but bestowing or retaining them at their wils, in most places, euen from the beginning of Christianitie, vntill about the yeere 1200.

[Animad. 64] This Hee neither hath, nor can prooue, though it bee the conclusion which he wholly intendeth; and the libertie of Ex∣emption praesupposeth euen that which he would denie, paro∣chiall payment.

The Canon pointed at by Burchard, Iuo, and Gratian,* 1.102 in the Councels at Chalons or Mentz, is in Cabilonense, sub Ca∣rolo M. Cap. 19.

[Animad. 65] The constitution of Pascalis the second,* 1.103 to discharge all Religious persons from Tything to others: was not con∣tradicted by Goffridus of Vendosme and Petrus Cluniacensis, because Goffridus doth interprete it to bee of Tythes in their owne parishes where they dwelt, as also Hugo de Sancto Victore,* 1.104 who liued then, doth also vnderstand; where instructing his Monkes what they might possesse, saith, Decimas non recipi∣ant nisi de illis quos incolunt agris, Let them not receiue Tyths, but out of those lands they dwell vpon. And as for P. Clu∣niacensis, he doth onely say, Patrum temporibus Decimas non tantum Laici, sed Ecclesiae Ecclesus, & Monasteria Monasterijs, & de Rusticorum operibus, & de proprijs laboribus persoluunt. Which custome for the benefit of his Church, hee wished might haue beene continued; And so without contradi∣ction to Paschal 2. In the daies of our Fathers, saith he, not onely Laymen payed Tythes to Churches, but Churches to Churches, and Monasteries to Monasteries, both of their owne labours and of their seruants.

[Animad. 66] The generall exemptions of all Clergie, the restraint to the foure Orders by Adrian 4. the particular of euery seuerall Order, is too true: And the restraint of Innocent 3. was too late: the prodigalitie of consecrations, & exemptions, had exhausted the liuelyhood and learning of the parish Churches; and the miserie that S^t. Bernard spake of,* 1.105 was, Basilicae sine plebi∣bus, plebes sine Sacerdotibus, Sacerdotes sine debita reuerentia sunt, & sine Christo denique Christiani, Churches without people, people without Priests, Priests without due reue∣rence, and lastly euen Christians without Christ. The com∣plaint of Richard Archbishop of Canterbury, against these ex∣emptions of the Cistercians.* 1.106 (for which and for another E∣pistle against the exemption of Abbeyes from Episcopall Iurisdiction, though both by Papall dispensation, I am per∣swaded he is wronged by the writing Monkes) is most earnest and materiall, Hae dispensationes dissipationes. And therefore (which is strange) The Monkes of Clugny renounced such priuiledge,* 1.107 to auoid scandall.

[Animad. 67] The Title of the Templars was partely, as of the other Monkes before: and more, they had Tythes of the Church nomine stipendij, for, Nemo militat suis sumptibus, No man warreth at his owne charges. Since therefore, the Churches proper meanes was Tythes, out of them, shee did reward her Defenders; and as the Defensores and Aduocati of their Title, had by ordination of the Bishop a certaine allotted reuenue, so these deuoted Souldiers who by vow defended Christendome, might well haue some share of maintenance in Tythes, though no immediate and originall right vnto them.

* 1.108The next Section is touching the opinion concerning Tythes: The opinion of the Councels generally was, that they were due by Diuine ordinance.

* 1.109No deniall, but by Leutardus, who principally for deny∣ing this, was adiudged an Hereticke, as Rodulphus Glaber Hist. 2. c. 11. and this in him was iudged, non magis turpe quam damnabile, not more foule then damnable: wherein because he could not preuaile to retaine ambitiously the people to follow him, he drowned himselfe.

This opinion is opposed by the practise in the disposition of them in perpetuall right to Monkes, Nunnes,* 1.110 the poore in Hospi∣talls, the Religious Orders of Knights. To this sence he.

[Animad. 68] But this is answered before: To which if we adde the o∣pinion of that time, that euen the Pope might dispense in the Law of God, as in vowes, marriage, fidelitie;* 1.111 and the incli∣nation of Popes, both to denie themselues no authoritie which their ancestours tooke, and to doe what they could for the houses of their education, and the pillars of their proud and superstitious Tenets; we may thinke by these Graunts, they did not vnderualue the Diuine right, since as in the place of Iuo next quoted and abused, they passed them but Lege charitatis, and as cum pauperibus poterant habere com∣mune: By the Law of charity, and of what might be commu∣nicate to the poore.

And heere Iuo his authoritie in Ep. 192.* 1.112 being falsely rela∣ted, altereth the sence:

[Animad. 69] For he intending to prooue from the custome, the right of Lay men to conuey Tithes, and citing Iuo in that Epistle, and adding, But this might not be done as they would haue it, by the Lay owner alone; for he well adds, that neuerthelesse no Mona∣stery might lawfully by the Canons receiue a conueyance of Tithes, illis ad quos non pertinet▪ i. à Laicis, from those to whom it doeth not belong, that is, from Lay men. As if Iuo onely denied the right of gift, not of enioying, whereas the words are, ad quos non pertinent, to whom Tithes doe not belong, &c. thereby absolutely denying both.

The answere of this obiection,* 1.113 whereby he would peruert the meaning of the writers and Councels (as before) or else lay vpon them for confirming them, euen the imputation of fearefull Sacriledge, is thus:

[Animad. 70] That without Sacriledge they might communicate; al∣wayes praesupposing a reuocable right: onely herein they of∣fended, if vpon complaint or need the Bishops did not re∣uoke them in time: For by the Canons after 40. yeeres, there was no remoouing, and that, propter generale scandalum of

that time, wherein a Schisme might haue beene feared, as in the Councell at S^t. Denis,* 1.114 as Aimoinus doeth testifie, a great outrage was committed: In generali scandalo non sequitur cor∣rectio, vel delinquentis, vel aliorum, ideo propter generale scan∣dalum suspendenda est repetitio Decimarum, quod sequeretur, si vniuersaliter àmilitibus (by the same reason à Monachis) fieret repetitio: In a generall scandall there followes no amendment either of the delinquents or others; therefore for such gene∣rall scandall, the requiring of Tithes is to bee forborne, for that would follow if they should generally be exacted of the souldiers,* 1.115 (hee might aswell haue said of the Monkes) saith Alensis. So farre was hee from accounting it Sacriledge, to tolerate Infeodations, which are more vniust then ap∣propriations, though he held Tithes to bee due by the Mo∣rall Law of God, quoad aliquotam, or indeterminatam quan∣titatem.

* 1.116But he addeth, that it appeares, it was most expresly held a∣gainst the Diuine law, to conuey Tithes to any other Church, then where the Owner vsed most commonly to receiue his soules food; and therefore the confirmers and Donors could not thinke them due de iure diuino: and for this he citeth Concilium Ticmen∣se, related C. 16. qu. 1. c. in Canonibus.

[Animad. 71] But there in that Canon, not the Conueyance, but the Conueyance pro libitu, contempta Episcopi dispositione, is iud∣ged against the Law of God, and Canons; for that consilio, and consensu Episcopi, they might, Videsis ante ad pag. 72.

* 1.117There were Exemptions, therefore no such opinion.

[Animand. 72] The course of Exemptions was vniust and substantially complained of though by the Monkes of Clugny, who lost by it:* 1.118 yet by Richard the Archbishop of Canterbury in Blesensis, and Iohannes Sarisburiensis, who lost nothing by it (which is his scoffe) but had compassion vpon the poorer Clergie, spoi∣led by the Sacrilegious dispensations of the Pope, which in this Argument are by P. Blesensis and Iohannes Sarisburiensis specified and refuted; The Epistle of P. Blesensis was more worthy to be read, then to haue bene quoted out of Bochellus at the second hand.

There were Infeodations from Churchmen,* 1.119 therefore no such opinion.

[Animad. 73] The Bishops and Religious that let Infeodations,* 1.120 are iustly to blame, although they let not Ius perceptionis, which is an∣nexum Spirituali but ips••s fructus, as Iohannes de Parisiis doeth distinguish and Aquinas, and Alensis, because the true end was diuerted, the maintenance of the Clergie, though they reserued the right, for in their right the Fiefe, might duely de∣mand them; Whereby, they might saue themselues from committing Sacriledge: Though their opinion was, the right of Tything did belong to the Clergie, De Iure Diuino; Yet euen their Acts, were annullate, as besides the Authours cited, Alex. 3. in Concil. Turonensi. Anno 1163.* 1.121 (where the action is censured, and the Authors degraded) doth testifie.

And next, by the way hee obtrudeth his new improbable errour of Tythes by their first creation infeodate to Laymen, but it seemeth now, hee would interprete himselfe, that he mea∣neth not Church Tythes, but such as Rents charge vpon land, vnder pretence whereof, hee will presuppose, that they would shift paying of Tythes to the Church, because they would not pay double Tythes.

[Animad. 74] A strange coniecture; whereby the Infeodators are supposed Sacrilegiously fraudulent; and the Church men so seely, as ha∣uing lawes both Ecclesiasticall and Secular to abett them, would admit of such simple excuses, and neuer complaine in those former times, that their redresse might haue been recor∣ded: Let him shew the vse, and then let him vrge it. Concer∣ning an example of Clergie men in the Archbishopricke of Matera after shall be spoken.

The Lawes are next produced, but saith he, soone disobeyed:* 1.122 they had little or no practise in behalfe of the Clergie. The greater fault, the more pittie.

But heere Hector Boethius relating the Lawes in Scotland of Tythes, by King Congallus Anno 570. is excepted against,* 1.123 nay reuiled: the exception; The Author for this is called a faining Hector, and his assertion bold, or deceiued by them from whom

hee tooke it, it is to bee iudged fabulous, and proceeding out of that common mistaking of ancient passages of Church Reue∣nues, and confident, but ignorant application of them to Tythes; And in the Margin; Buchanan sayth, Sacerdotes praedijs alijsque prouentibus ditauit, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Decimis, adijcere vir doctissimus non ausus est, Hee inriched the Priests with pos∣sessions and other profits, but that learned man durst not adde the word Tythes.

[Animad. 75] How should the Authour expect, his booke might gaine any strength of truth from his name alone, when Hector Boethius for all his good language and great paines, shall not onely not haue credit with him as pag. 133. but be taunted by so yong a writer: but hee may heare Saint Hieromes censure (to as good a man as He, euen S. Augustine) puerilis est iactantiae accusando Illustres viros suo nomini famam quaerere:* 1.124 especially since through Hectors sides, others perchance truer Troians may bee wronged of whom hee receiued it; who by the pre∣iudice of him that knoweth not, shall bee censured for con∣fident and ignorant mistaking one thing for another. As for the Marginall reason, the omission by Buchanan of the word Tythes, which Hector putteth in, is but to poize their credits, whether a lying and schismaticall Buchanan, who was a prime Authour in the taking away of Tythes from the Clergie, and therefore might well take it from his writing; nay who might euen take that relation from Hector, mincing it to his phrase and fancie; or a fay∣ning Hector, perchaunce receiuing it from other, it may bee the very Records of the Kingdome, bee to bee pre∣ferred in this Relation. Hector Boethius saith before of the same Congallus, Mira sunt quae de huius Principis Religione memoriae sunt prodita, They are strange things which are related concerning the pietie of this Prince. What there∣fore hee writeth hee had from others: But our Authour striketh the next.

In the next place the Pontificiall Canons are examined.

* 1.125Of which he citeth, besides that of P. Damasus, that also of

Pope Nicholas the second, Anno 1059. Praecipimus vt Decimae & primitiae seu oblationes Viuorum & Mortuorum, Ecclesiis Dei fideliter reddantur a Laicis, & vt in dispositione Episcoporum sint, quas qui retinuerint a Sanctae Ecclesiae communione separentur, Wee command that Tythes, or first fruits, or offerings both of quicke and dead, be faithfully payd to the Churches, and be in the disposition of Bishops; which they that retaine,* 1.126 let them be excommunicate: which very words are his Succes∣sors Alexand. 2. And that of Leo the 4. c. 16. q. 1. c. De Deci∣mis, (which forsooth must be a declaration, not a constitution) all which with the passages of the Fathers, were for generall Canon-law in Gratians decrees confirmed by Eugenius the 3. Nay the Councell at Cleremont by Vrban the 2. and that of Gregorie. 7. in Concil. Rom. c. 16. q. 7. c. 1. To which hee might haue added that Canon of Gregorie cited by Alexander 3.* 1.127 ioyned with those of Peter Cellensis: Presbyter si Ecclesiam per pecuniam obtinuerit, non solum Ecclesia priuetur, sed honore Sacerdotij spolietur, quia Altare, Decimas, & Spiritum Sanctum emere, vel vendere, Simoniacam haeresim esse nullus fidelium igno∣rat: If a Priest get a Church by money, let him not onely be depriued of it, but also be degraded; because each Christian knowes, that to buy Altar, Tythes, &c. is a Simoniacall he∣resie: And that at Lateran. 1119. and another 1130. hauing the same words as that of Greg. 7. Quas de iure Sacerdotum esse sancimus, Which we decree to be the Priests due: And the 11. generall Councell vnder Alexand. 3. 1180. (where onely infeodations, saith hee, and arbitrary consecrations with∣out consent of the Bishop, are forbidden; yet the reason is, the supposition of Parochiall right:) But let me adde in the same Councell, cap. 23. In the prouision for leprous people, are not Tythes supposed as a duety of common right, when (prouiding for the right of the Parish Church) they are per∣mitted to haue a separate Priest and Church, and are priuiled∣ged of their orchard and feeding of cattell, that Tythes should not be exacted: By this particular priuiledge, is not the com∣mō right supposed? Nay so often he hauing quoted the Ca∣pitulars,

whereof the last three bookes were confirmed by Apostolike authoritie, Capit. lib. 7. c. 377. Yet hee saith, There was not any Canon of a generall Councell, that commanded the pay∣ment of Tythes; or any that expressely supposed them a duety of common right, before that of Lateran, helde vnder Pope Inno∣cent the 3.

[Animad. 76] Let the Reader iudge of his Conclusion, out of such pre∣misses.

* 1.128In this passage he citeth an Epistle of Gregorie the 7. where∣in hee admonisheth and perswades some Princes of Spaine, after the expurgation of Christianitie from the Gothicke corruption, to pay and command the payment of Tythes by the people: where, because he doeth perswade, and not command, hee inferreth, that he had no power to command.

[Animad 77] As though authoritie must be thought alwayes extended to what it can, neuer in discretion condescending to the infirmities of weake brethren. The spirit of Hildebrand chal∣lenged power,* 1.129 where he had no right: but now, Fides sua∣denda, non cogenda, Faith is to be perswaded, not inforced; and Alcuins ground was his direction. But let vs see how his successor Alexander the 3. writes to those Gothes in the Epistle 19.* 1.130 whereof part is quoted before, Praeterea illud adijciendo mandamus, quatenus populum regimini & gubernationi vestrae commissum, Decimas Ecclesiis fideliter & deuote persoluere, sicut ab ipso Domino noscitur institutum, diligenter ac sollicitè monea∣tis, & si necesse fuerit, sub districtione Anathematis, &c. More∣ouer, this we command, that you diligently and carefully ad∣monish the people committed to your charge, that they pay Tythes to the Churches, faithfully and deuoutly, as it is knowen to be ordained by the Lord, and that if need be, vn∣der the censure of excommunication.

* 1.131But out of that strange conclusion, hee would iustifie the saying amongst the Common Lawyers, in his sense, That before the Councell of Lateran, euery man might haue giuen his Tythes to what Church he would.

[Animad. 78] Wherein, if hee would vnderstand by giuing, the transla∣tion

from his owne Parish Church to a Monasterie, because the easie consenting of the Bishops vsually hindred not, then it is most true; but vnderstanding by giuing, a new creation, that each man might giue to what Church he would; that is newly create, a Tythe, which before he might detaine, and did neuer pay; this is absurd, and praesupposeth that no Tythe before that time, by any man was certainely paide; whereas Parsons did before that time implead their parishioners for not paying; as heere in England himselfe doth produce, in King Stephens, and Henry the seconds time, p. 414. &c. To which more shall be added.

But this cannot stand, vnlesse hee may haue his will vpon the Canon prohibemus, in the Councell of Lateran, vnder Alexander the third, and make it to signifie, new created Tythes.

[Animad. 79] But either let his owne Authors be Iudge that vnderstand it, de Decimis male detentis, of Tythes wrongfully detained: or Innocent 3. and those that follow him, of former Infeoda∣tions; they cannot vnderstand new created Tythes, euen by the very words, as before. And in that Councell is somthing to denie it. For if Alexander 3. supposed new created Tythes, why then part. 4. doth he command the excommunication of the changers, lessenors, detractors of the wages out of Tythes, Nay, in the body of that Councell why doth he priuiledge the leprous people from paying some Tythes, if they were not due to be paid if he supposed them not due, and payed? But howsoeuer, I leaue him to what before was saide, against which he hath nothing but coniecture.

But yet, good Reader, thou must still doubt,* 1.132 that the Histo∣ricall vnderstanding of that Canon, is to be had out of Arbitrarie consecrations before practised.

[Animad. 80] Reader, now thou mayest see, how hee meanes to pinne thee on his sleeue, the iudiciall application of the Canonists must be neglected who agree in a trueth, and yet at his bid∣ding, thou must doubt. And as hee reprehends the rable of Canonists (such is his terme) going away cleere with this of

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Innocent, because he saide so, so must thou follow him, and doubt because he bids thee.

Yet for confirmation of his assertion, Hee saith, it was equall to ordaine that Lay men should not arbi••rarily consecrate; and that they should not without the asse••t of the Bishop, Euery Bishop beeing praesupposed to induce parochiall right, and generall payment, which was the intention of the Canons.

[Animad. 81] This is a strange conceipt; the disposition by the Bishops consent being granted by Canons, as in many quotations before is euident, and in this Councell, p. 15. cap. 2. but this without consent, being forbidden. And the reason is equall, That so the Bishop might prouide for the parish, and yet in charitie, de superabundanti, of what might be spared, giue way to such Donations, which as then were not to the Churches preiudice, and to the abridging of the ancient maintenance of the secular Clerkes, as part. 13. c. 1. of that Councell.

Notes

• * 1.1

  Pag. 72.
• * 1.2

  In Concil. in Palatio Vern sub Pipin. ann. 755. and Capit. lib. 5. cap. 230. & lib. 6. c. 105.
• * 1.3

  Hinemarus in oper. 55. capit. cap. 1. Lib. 1. cap. 7.
• * 1.4

  Ad Cathol. Ec∣clesiam lib. 1.
• * 1.5

  Pag. 72.
• * 1.6

  Pag. 73.
• * 1.7

  De Regno Ita∣liae lib. 6.
• * 1.8

  The Canon is repeated ad pag. 72.
• * 1.9

  Can. 11. an. 834.
• * 1.10

  Cap. 9. Addit. ad Conc. Later. sub Ale••. 3. part. 13. c. 14.
• * 1.11

  C. 16 q. 1. Plures Baptismales, Epist. 192.
• * 1.12

  P. 75.
• * 1.13

  Lib. 1. Ep. 28. circamedium.
• * 1.14

  Pag. 77.
• * 1.15

  Epist. lib. 2. p. 435.
• * 1.16

  Pag. 78.
• * 1.17

  Tom. 2. Episto. larum. lib. 2. ••ag. 483.
• * 1.18

  Extr. de Deti∣mis. c. Tuanobis.
• * 1.19

  Pag. 79. Capit. lib. 5 cap. 49. Concil. Mo∣gunt. c. 16. q. 7. c. 7. Leg. Lon∣gob. lib. 3. Tit. 3 cap. 8.
• * 1.20

  P. 3. q. 51. M. 6. Art. 4.
• * 1.21

  Epict. 12.
• * 1.22

  Num. 3. Of Appropri∣ations. Pag. 80.
• * 1.23

  P. 81.
• * 1.24

  Cap. 10. Can. 4. Videsis Sidon. Apollin. de Sim∣plicio, lib. 7. ep. 9.
• * 1.25

  Can. 15.
• * 1.26

  Can. 10.
• * 1.27

  Can. 7.
• * 1.28

  Can. 25. & 26.
• * 1.29

  Can. 2.
• * 1.30

  Nouel. 123.
• * 1.31

  Pag. 83.
• * 1.32

  P. 84.
• * 1.33

  P. 85.
• * 1.34

  Can. 5.
• * 1.35

  Epist. lib. 12. cap. 10. Can. 33.
• * 1.36

  Cap. 9.
• * 1.37

  Lib. 5. cap. 178.
• * 1.38

  Lib. 1. cap. 22.
• * 1.39

  Pag. 311.
• * 1.40

  Pag. 85.
• * 1.41

  Cap. 7. Pag. 86.
• * 1.42

  In Dialog. de Statu Ecclesiae p. 651.
• * 1.43

  Pag. 86.
• * 1.44

  Ep. 60. & alibi.
• * 1.45

  Ep. 95.
• * 1.46

  Iuo Ep. 214.
• * 1.47

  C. Monast. 16. q. 7.
• * 1.48

  P. 87.
• * 1.49

  Lib. 5. c. 84.
• * 1.50

  C. 178.
• * 1.51

  In vita Leo∣nis. 4.
• * 1.52

  Pag. 88.
• * 1.53

  Lib. De Episcop. vrbis in vita.
• * 1.54

  Pag 89.
• * 1.55

  P. 89.
• * 1.56

  Pag. 90.
• * 1.57

  P. vlt. c. 40.
• * 1.58

  Pag. 102.
• * 1.59

  Pag. 91.
• * 1.60

  Papyrius Mas∣son. in Agatho∣ne. Pag 312. Pag. 417. Ep. ••. & 4. & 8. & 21. & 91.
• * 1.61

  Ep. 282.
• * 1.62

  Ep. 52.
• * 1.63

  Ep. 66.
• * 1.64

  Ep. 292.295.297. Lib. 1. ep. 29.
• * 1.65

  Ep. 164.
• * 1.66

  Serm. 1. de coena Domini.
• * 1.67

  Now Woluer∣hampton. Ep. 152.
• * 1.68

  Ep. 65.
• * 1.69

  P. 92.
• * 1.70

  Ad. p. 87.
• * 1.71

  c. 1.6.
• * 1.72

  Forte cui.
• * 1.73

  P. 93.
• * 1.74

  Ad p. 83.
• * 1.75

  P. 94.
• * 1.76

  P. 95.
• * 1.77

  P. 98.
• * 1.78

  P. 99.
• * 1.79

  Pag. 100. 101. 102, &c.
• * 1.80

  Pag. 106.
• * 1.81

  Epist. 74. Epist 82. Epist. 102. Epist. 192.
• * 1.82

  De Sacramen∣tis, lib. 2. part. 9. cap. 10.
• * 1.83

  In Addit. ad Concil. Later. p. 13. c. 3. Ibid, cap. 9. cap. 10. P. 3. q. 5. M. 6. Art. 2.
• * 1.84

  Epist. 200.
• * 1.85

  De Sacram. l. 2. p. 9. c. 10.
• * 1.86

  Epist. 192. Cap. 3.
• * 1.87

  Leg. Longob. lib. 3. tit. 10. cap. 2. & 4. Pag. 656. & 663. 10. q. 2. de prae∣cariis quae a.
• * 1.88

  Pag. 108.
• * 1.89

  Pag. 111.
• * 1.90

  Lib. 1. ep. 10. & lib. 4. ep. 12.
• * 1.91

  112.
• * 1.92

  Pag. 112.
• * 1.93

  Lib. 5. cap. 3. & lib. 7. c. 338.
• * 1.94

  Apud Goldast. Constitut. Im∣perial. tom. 2. pag. 5. as in Reuiew, pag. 466.
• * 1.95

  P. 114.
• * 1.96

  Vide etiam in Gratian. c. 10 q. 7. in Pr••fat.
• * 1.97

  Pag. 115.
• * 1.98

  Pag. 115.
• * 1.99

  Lib. 3. cap. 3. Q. ••1. Memb. 6. Art. 1.
• * 1.100

  Pag. 117.
• * 1.101

  Pag. 118.
• * 1.102

  Pag. 119.
• * 1.103

  Pag. 120.
• * 1.104

  Tom. 2. de Claustro animae lib. 2. c. 5.
• * 1.105

  Ep. 240.
• * 1.106

  P. Blesensis. ep. 82.
• * 1.107

  P. Cluniacens. lib. 1. ep. 33.
• * 1.108

  Pag 122. NB.
• * 1.109

  Pag. 124.
• * 1.110

  Pag. 125.
• * 1.111

  Vid. gloss ad c. 25. q. 1. Sunt quidam.
• * 1.112

  P. 124.
• * 1.113

  P. 126.
• * 1.114

  In vita Ab∣nis, c. 9.
• * 1.115

  P. 3. q. 51. M. 6. Art. 1.
• * 1.116

  P. 126.
• * 1.117

  P. 127.
• * 1.118

  Epist. 82.
• * 1.119

  P. 128.
• * 1.120

  De potest Reg. & Pap. c. 2. ad Arg. 38. 22. q. 57. Art. 3. in Corp. In quest. citat. M. 8. Art. 1.
• * 1.121

  In Neubrig. l. 2. c. 5. §. Quamuis Nimis.
• * 1.122

  Pag. 132.
• * 1.123

  Pag. 130.
• * 1.124

  Inter Aug. Ep. 13.
• * 1.125

  P. 134.
• * 1.126

  Vide Luith∣prandū in vita Leonis 4. vbi authoritate A∣p••stolica praeci∣pitur, sub poena excommunicat.
• * 1.127

  Epist. 19.
• * 1.128

  Pag. 136.
• * 1.129

  S. Hilarie.
• * 1.130

  Vide etiam Ep. 21. Archiepis∣copo Vpsellensi & Suffraga∣neis.
• * 1.131

  Pag. 138.
• * 1.132

  Pag. 139.