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 eleuenth Chapter.

THe former part of this Chapter, is a col∣lection out of select Chartularies of di∣uers Monasteries, concerning the con∣ueyances by Lay Patrons, of portions of Tythes to seuerall religious houses.

Whereby his intention is to prooue, In some, how they did passe Tythes newly created: In other, how they did consecrate without consent of the Bishop: In all, how Lay Patrons did inter∣meddle in the disposition of Tythes as of other inheritance: for ob∣serue the Title or summarie of this Chapter. Arbitrarie con∣secrations of Tythes by conueyance from the owner, of all, or part to any Church or Monasterie, at his pleasure: In examples selected out of monuments of infallible credit.

[Animad. 1] In particular to examine all were needlesse, and for me in∣conuenient, who must gesse at what I haue not seene. Yet for generall answeres, let the Reader obserue these.

1. That the right of the Patron, to giue consent by Charter to the passing away of Tythes, both his owne and Tenants, in part and all, and to diuide them from the Church of his foundation, is not denied; and is prooued by all those Chartularies. The question therefore is not, whether the Patron did it, but whether hee alone did fully and lawfully, without farther consent and confirmation, giue interest suffi∣cient to the possession.

2. Secular and Ecclesiasticall Lawes had commanded the payment of Tythes: The custome of payment was gene∣rall: How then was there any newly created Tythes not due, not paid before, though it might bee through disusance or vsurpation detained, or by composition, nomine decimae altered?

3. No Religious house nor Churchman, durst receiue any Tythes of a Lay-man, without consent of the Bishop, for the Donationes were Irritae, and themselues censured. Reade his owne quotations of the Nationall Councell at Westminster vn∣der Anselme, ann. 3. Henrici 1. and of another vnder Cardinall Iohn de Crema, ann. 25. Henrici 1. To which adde another, vnder William the Archbishop, anno 1129. Vt nulla persona, Ec∣clesias vel Decimas, seu quaelibet alia Ecclesiastica Beneficia, det vel accipiat sine consensu & authoritate Episcopali Canonica au∣thoritate vetamus, We forbid by Canonicall authoritie, that no per∣son without consent and authoritie of the Bishop, receiue or giue Churches or Tythes, or other Church Benefices: To omit the many Epistles of Paschalis 2. So then, no receiuing without consent therefore no giuing.

4. The phrases of many of the Charters proposed are, De omnibus vnde Decimae dantur, Of all whereof Tythes are giuen. Quae Parochiani debent reddere suae matri Ecclesiae, Which Parishioners ought to pay to their mother Church. De qui∣bus Decimae dari solent, Of what Tythes are wont to be paid. De quibus Decima danda est & datur, Of what Tythes are and ought to be paide. Rectam Decimam de quibus Decimae dari so∣lent, A true Tythe whereof Tythes are wont to be paide. Vndecunque Decimae Sanctae Ecclesiae spectant vel prouenire de∣bent tam maiores quam minores, Whence soeuer Tythes may belong or accrue to holy Church, both small and great. Ter∣ram cum Decimis, Land with the Tythes thereof. All these plainely shewe these Tythes which were consecrated, not to be newly created Tythes; and by these the rest may be con∣ceiued.

5. Some of their confirmations by Bishops and Popes are produced, wherein their Damus and Concedimus, shewe their consent and authoritie; and the phrase in the later confirmati∣ons of Iusté & Canonicè possidetis, sheweth the former conuei∣ance to haue beene so; for so Iustè & Canonicè is interpreted by Petrus Cluniacensis, as his authoritie is applied ad pag. 75. and so Canonicè after doeth signifie, in the confirmation of

portions to Rochester by the Church of Canterbury.

Yet in particular, to examine two Chartularies, whereout onely, he maketh inferences of new created Tythes.

The first out of the Chartularie of Abingdon. In the gift of the Tythes of Offington to that Monasterie: the Parishioners intreating the Abbot of Abbingdon to receiue their Tythes: Hee asked, whether anciently the Tythe of that towne were not giuen to the Church? And they answered, Hoc esse moris Villae, vt à sin∣gula virgata Ecclesiae illi 24. garbae pro Decima numeratae dona∣rentur, This is the maner of that Village, that 24 sheaues of euery yard-land are paide for the Tythe to that Church. Hence he inferres, Here plainely no Tythe was Parochially paid before this Grant, but onely 24. sheaues of euery Yard land.

[Animad. 2] But yet these were pro Decima, at first, by way of compo∣sition; though therefore, not paide, yet compounded for; which is all one. And to the question of the Abbot, supposing Parochiall right, they answere not, Hoc esse Iuris, but Moris: and to the question of Antiquitus they answere onely, Hoc esse, though before this prescribed composition, it might be otherwise.

[Animad. 3] And this composition was not diminished though our Au∣thor, contrary euen to the sense of his owne quotation, doth vntruely affirme it: for the words are, that the Bayliffe of the Abbot at the time of gathering Tythes, De singula virgata il∣lius villae tot manipulos Pre••bytero illius Ecclesiae tribueret, quot superius diximus debere: But surely it was that hee might in∣ferre the Patrons authoritie to doe it, euen against the will of the Incumbent.

The other is, out of the Leiger booke of the Abbey of S. Al∣bans. The Abbot and Couent about the 20. of Henry the third, gaue to the Church of the holy Trinitie de Bosco, and ••he Nunnes there, for euer, Totam Decimam de Dominio nostro de Caysho in omnibus rebus de quibus Decimae dari solent: All the Tythes of our Demesnes of Caysho, in all things whereof Tythes are vsually paide.

[Animad. 4] Obserue, This Donation is long after the Councell of La∣teran

1225. and therefore vndoubtedly was not of Tythes not paide before, as the phrase, De quibus Decimae dari solent, prooues, they were then customably paide. And also note, how he sayth there, Perhaps they had discharged them, that is, the Prior and Couent; necessarily then they were before char∣ged, and therefore could not be newly created, though in re∣spect of the Monasterie, newly bestowed.

Out of other Chartularies he hath made no particular in∣ference, which is not answered in the generall.

BVt because the Chartularies of the Church of Rochester, are both more largely insisted vpon by the Author, and for seuerall respects seeme to be of best credite with him, as quoting them pag. 282. Ante alia vetera Monumenta consulas si placet Chartul. Roffensis Ecclesiae, and in pag. 370. Since by the Grant of my gracious M^r. His Maiestie, I am a Prebenda∣rie of the same Church, where, for the knowledge of the Temporall poore estate thereof, I haue had libertie to per∣use the Muniments; I will more largely make answere to his seuerall instances out of them, as farre as these Charters and Registers that remaine will permit: for many, either through iniurie of time, or sacrilegious suppilation of stran∣gers, or neglect, because the portions are conueyed away, haue miscaried.

And moreouer, I will first shew, how this Monasterie came to portions of Tythes; Then by whom they were confirmed; and lastly, I will explaine particular Graunts wherein Exception may seeme to be taken.

For the first, because the meanes of lawfull Iustification of a Title are the same with those of lawfull obtaining, I will out of an ancient Register of this Church set downe a forme of Iustification of two seuerall portions of Tythes, which al∣though they are not named by him in his Extracts, yet are of the same reason with the rest, and being of the ancientest, (for before the foundation of the Monkes heere by Gundulphus there were no portions giuen) are for better proofe; I will exscribe the whole Euidence.

P. 23. Memorandum quod Decimae de Chelesfelde & Fern∣burgh, ex dono Ernulfi tunc Domini de Chelesfelde, & Geroldi Domini de Fernburgh, sunt confirmatae Monachis Roff. per Wal∣terum Roffensem Episcopum, qui fuit in Episcopum consecratus Anno Domini 1148. & secuta est confirmatio earundem Deci∣marum per Dominum Adrianum Papam, 1159. Item per eun∣dem Dominum suum confirmatae i•• Decimae de Modingham, & per eundem Papam, & subsequenter per alios Episcopos Roff. sicut in eorum apparet scriptis, & per alios Apostolicos succedentes Adriano: Et declaratum est in litera dicti Walteri, quod istae Decimae possessae fuerunt ab ijs tempore Gundulphi, qui eis illas Decimas ex dono Patronorum, accedente consensu Recto∣rum Ecclesiarum de Chelesfelde & Chiselherst contulit & cōcessit, & fuit Gundulphus in Episco∣pum Roffensem consecratus Anno Domini 1077. & ab illo tempore praedictas Decimas perceperunt. Item habe••t in Parochia Ecclesiae de Chiselherst, ex conces∣sione Episcoporum Roffensium ex antiquo Dimidiam Marcam annuae pensionis. This sheweth plainely the manner of conueying portions, The Patron giues them to the Bishop by consent of the Incum∣bent, and the Bishop doth inuest the Monasterie.

But for the Second and the confirmation also of this, The Charter of Gundulphus himselfe shal be next produced, which still remaineth with his seale appendant. The words are Gundulphus Roffensis Episcopus &c. Noscat ve∣stra vniuersitas quod cognita & intellecta charitate, Christi fidelium, Domini videlicet Henrici Regis & quorundam procerum Nobilium ad Monachos Eccle∣siae B. Andreae Apostoli, cui Deo authore etsi indignus deseruio. Ego in eorum bona intentione laudans Do∣minum & gratiam agens Domino Iesu Christo, de∣uotiones eorum ad ipsos Religiosos approbo & ratas habeo, & ijs Episcopalem authoritatem attribuo & consensum, conferens ipsis & concedens Decimas intra

Parochias diuersarum Ecclesiarum nostrae Diocesis consti∣tatas. Decimas videlicet in Strodes & in Chealks de Dominico eiusdem Domini Regis ex eius liberalitate — Decimas de Hen∣herst ex liberalitate Goscelini — Decimas de Rundull & de Thu∣ang ex liberalitate Smalmanni de Schornes — Decimas in Che∣lesseld & Fernburgh ex beneuolentia Aloldi & Ernulsi ex eo∣rum Dominicis, Decimas de Modingham, ex dono Ansgoti de Chiselherst, Decimas de Bertrey, ex largitione Haimonis Maminot — Decimas de Dominico de Edintune, ex largitione Willielmi de Gurnay, Decimas de Westbrooke in Parochia de Culings ex gratia Radulfi Pincernae, Decimas etiam de Feodis Episcopatus, videlicet de Wicham, &c. Ego dictis Monachis meis do & concedo in perpetuum. Velo etiam, quod ipsi Monachi Decimas prouenientes in Manerijs eo∣rum, infra Dioecesim nostram constitutas habeant, & retineant omni pace. Has verò Decimas omnes superiùs expressas tam eas quae ex deuotione fidelium acquisitae sunt, quàm eas quae de feodis meis — ipsis assigno, authoritate Episcopali qua fungor, man∣do & constituo, quod Monachi nostri eas habeant, & teneant in vsus victualium suorum, perpetuis tem∣poribus conuertendas — Istas concessiones & or∣dinationes pro amore Sancti Andreae, in eius Ec∣clesia feci, assensu Domini Anselmi Archiepis∣copi — Acta anno ab Incarnatione Domini nostri Iesu Christi, 1091.

This I haue so largely exscribed, repeating most of those particulars, which M^r. Selden quoteth, and were then gi∣uen by him; to shew both in generall, and in those particu∣lars, the authoritie of Bishops in such conueyances, though the grant of the Patron bee praesupposed: and euen how to the Monkes, who were Landlords, the very Tithes of their owne Mannours were by Bishops granted them.

To this I might adde the confirmations of Walter, Ri∣chard, Gilbert, &c. Bishops of Rochester; the style of whom is of some, Damus, but of all, Concedimus & confirmamus, and ad securitatem, & pacem perpetuam concedimus. And as

for Popes, Adrian, Alexander, Innocent, Ʋrban, &c. they confirmed them. And of those others in other Diocesses, the Archbishops and Bishops confirmations, euen from Anselme downeward, are extant: wherein that they and their Churches had interest, the confirmation of the Church of Canterbury to Rochester, pointed at by the Authour in the end of the cited Chartularies of this Church, is sufficient te∣stimony, where they say, Decimas ad Iuris∣dictionem Cantuariensis Ecclesiae spectantes, à ve∣nerabilibus patribus nostris Cantuar. Archiepisco∣pis, Anselmo, Willielmo, Richardo, Baldwy∣no, & Huberto Canonicè collatas, & confirma∣tas, sicut in Authenticis eorum perspeximus contineri.

They might haue added Theobaldus also, for his confirmation also is extant with vs. And in the Iurisdiction of that Church, are the portions of Bug∣gley, Dudindale, Stalesfeild, Bilsintune, Elham, Ysfeild, Ham∣wold, Scraembroce, Geddings, which are instanced vpon by our Authour; so that the portions of Halegele, and of Malmain, and the Church and Tithes of Walton, may onely seeme a∣mongst those which he hath cited, to want their cōfirmation.

As for that of Halegele, ex dono Hugonis de Port, although the confirmation of Ralfe Bishop of Rochester, be not extant, yet in that it is mentioned, that the gift was pro amore Radulfi Episcopi, as at his entreatie, his consent may not be doubted of, especially by him, who conceiuing the style of Gundul∣fus Charter, yet shall consider that his successour Gilbert Glan∣uill in his confirmation addeth, speaking of Gundulfus, quo pro∣curante & disponente, const••t Decimas — fuisse adquisitas; so the Bishop Radulf. both got and bestowed them, which Radulfus being then Abbas de Sagio, did subscribe to Gundulfus Charter.

And as concerning the portion of Malmaines, That, with the other of Halegele were confirmed by Pope Adrian the fourth! Anno 1154. and that of Malmains by Walter Bishop of Rochester, and his successours, but at what time that was giuen, I know not.

And as for Walton being in the Diocesse of Norwich (not giuen in the time of Richard the first, as hee coniectureth, but in the dayes of one of the King Williams for his confirmation is in Textu Roffensi) it was not a Portion, but a whole Church endowed with Tythes, which was assigned to Felix Stow, alias Filchestow, a cell of this Monasterie by Roger Bigot An. 1086. vnder this name, Ecclesiam Sanctae Mariae de Waleton cum per∣tinentijs, which was then confirmed by William, Hugh, and Roger Bigot: but that had confirmation by the Bishops of Norwich, as Adrian in his confirmation saith, Ex dono Ro∣gerij Bigot & haeredum eius & concessione Norwycensium Episco∣porum, Herberti, Hebrardi, Willielmi, Ecclesiam Sanctae Mariae de Walton habetis, Of the gift of Roger Bigot and his heires, and the grant of the Bishops of Norwich, Herbert, Euerard, Willi∣am, you enioy the Church of Saint Mary of Walton; now Herbertus was then Bishop. All the Donations therefore of the Church of Rochester, euen Ab initio, we see confirmed.

Yet for the particulars, in the third place.

The portion of Buggeley, for that the Patron by enioyning the payment of three shillings per annum, to the Monkes of Col∣chester, might seeme to haue some reall interest in Tythes: You must know that this portion was giuen to Colchester; and by them demised to the Monkes of Rochester for that summe, to which demise that Charter is but of consent, which the ve∣ry words produced by himselfe might inferre, Reddituris inde annuatim Monachis de Colocestria tres solidos quamdiu eandem te∣nent & habere poterunt, Paying yeerely to the Monkes of Colchester three shillings, as long as they hold it or may haue it. But Philip of Leyburne, who afterwards confirmed them, speaketh plaine, Ipsis Monachis Colocestriae duos solidos dabunt, sicut ipsi inter se composuerunt, They shal pay two shillings to the Monkes of Colchester as they compounded amongst them∣selues, This then is no imposition, but a consent to a com∣position.

The Portion of Geddings giuen by Alan of Geddings, which gaue occasion to the confirmation of Richard the Archbishop,

hath this worthy obseruation, that then, Iohn the Parson of Hese, in which Parish is Geddings, keeping backe ten shillings, which by couenant & promise he was to pay to the Monks for that Tyth, was impleaded before the Archbishop: And there the Parson promised to remit his Parochiall claime, if one of the Monkes sollicitors would sweare for the trueth of such Couenants; which he doing, the Archbishop confirmed them to the Monkes. Obserue here that Parochiall claime, is only answered by pretence of couenant, not donation of a Pa∣tron.

The Portion of Stalesfeild, wherein is the clause Tenendam sicut tenuerunt de Antecessoribus meis, Must bee vnderstood, ei∣ther for the condition, pro societate, or pro anniuersario, or for the Tenure, In puram & perpetuam Eleemosynam, other sense I conceiue not.

The Portion of Westbroke in Culings, wherein the Patron see∣meth to impose halfe a marke, is thus to be vnderstood: Ra∣dulphus Pincerna gaue the Tyth of that field: This Tyth was valued in Textus Roffensis per annum at fiue shillings, now A∣dam Pincerna, willing to pleasure the Monkes, in respect of the loue his Ancestors shewed them, he and his brother, who was then Parson of Culings, desiring it for peace sake, Hee gaue consent to the value of halfe a Marke, to bee paide by way of composition.

The Portion of Hamwold: In this it is to be obserued, that the Patrons of this Portion, did obtaine the confirmation of the Prior and Couent of Leeds, to whom this Parsonage was appropriate; wherein the Prior and Couent of Leeds, euen con∣firmed the confirmations of the Archbishop: Nay after Ni∣cholas Hacket the sonne, and Ralph his sonne, did sweare in the Chapter house at Leeds, for the indemnitie of the Parish Church, by their Chappell at Hamwold. Such was the inte∣rest of the Parsons through Parochiall right.

In the Portion of Edintune, the heire doth onely confirme a composition.

In the Portion of Wicham, before out of Gundulphus Char∣ter

we see that it was of his owne Fee, And this, saith Textus Roffensis, he gaue to Godfrey de Talebot, reseruing omnem De∣cimam omnium rerum ad opus Monachorum suorum, quam etiam dedit illis aeternaliter possidendam. Hamelinus d•• Columbiers, therefore made no new donation but confirmed the olde, as in the Chartularie euen quoted doth appeare, where in the controuersie betwene the Chaunter of Rochester, and the Par∣son of Frindesbury, the Tenants of Wicham swore, Cantoriam eam (that is the small Tythes) antiquitus possedisse cum bla∣do, That they enioyed them anciently, with the Tythe of corne.

By which claimes of the Parson of Frindesbury, for the Portion of Wicham, the Parson of Hese for Geddings, the Par∣son of Eltham for Modingham, for so it runnes in the Charters, Decimas de Modingham quas disrationauerunt contra Picardum Personam de Eltham, The Tythes of Modingham which they recouered against Picard Parson of Eltham (and all these be∣fore Anno 1200.) and the confirmations of Hamwold; I take it the practise of Parochiall Tything is plainely confirmed; for how else could the Parsons impleade the Monasteries for such portions issuing out of their Rectories? And because a∣gainst them Couenants and prescription, and not donation of the Patron is obiected, I may well coniecture in the opinion of the Parsons, that only their predecessors could passe them for their time; or the Patron but at their pleasure.

But hee obiects, that in the confirmation of Richard the Archbish, 23. of Henry the 2. (which he supposeth to be the first Confirmation, but he is deceiued, for both Archbishops, and Bishops of Rochester, and Adrian Pope of Rome had confir∣med them) the Archbishop seemes to ground the right of the Monkes enioying such portions, onely from the deedes of Lay-granters, Cognito Iure praedictorum Monachorum, per inspectionem instrumentorum suorum, considerata etiam diutur∣na illorum possessione, Knowing the right of the Monkes by sight of their instruments, and considering also their long possession. But these Instruments are as well (if not rather)

of Granters that are Ordinaries, as of Lay-Donors; as the confirmation of the Prior and Couent of Canterbury (whose Counsell hee tooke herein) before rehearsed, doeth testifie. Neither am I of opinion, that either the Bishop without the Donor to praeiudice the Patronage; nor Donor without the Bishop to em∣peach the Iurisdiction; nor both without the Incumbent to empaire the Maintenance, could doe any valide Acte in such conueyance. And this may also serue to satisfie the phrase of Hubert the Archbishops Confirmation.

And so much out of the Records of the Church of Roche∣ster: by which it appeares, that all their portions were at the first confirmed and granted by the Bishops: that the first, were by consent of Incumbents; that Parochiall right was claimed against them; that Patrons onely intermeddled not to make, but consent to compositions of Tythes. How then can the sense of New created Tythes, the Arbitrarie disposition of the Patron, the sole interest of him in the Tythes, the vn∣certeintie of Parochiall right, which are his new Inuentions and Fancies, be hence prooued? And if not hence, why should not the Grants in other Chartularies haue Interpretation from these, which are both as ancient, and faithfully rela∣ted? To ascerteine which, I will onely say with S. Gregory, Venite, & cuncta quae scripsi, nisi ex lectione monstrauero, cum qua vultis disputatione recedite, Come, and if I shew you not all what I haue written, depart with what doubting you will.

But to returne to our Author: who in his next Section af∣ter his Chartularies, enters a passage out of my Profession, to prooue his former intention; that is, the interest of the Patron in Tythes, and that is of a Writ de Aduocatione Decimarum, Rot. Cart. 5. Regis Iohan. Memb. 8. in a suit betweene H. Bishop of Lincolne, and the Prior of S. Katherines without Lincolne, &c.

[Animad. 5] If this be vnderstood of King Iohns time before the Late∣ran Councell, as the quotation of the Roll in the Margine would import; and the sigle H. may signifie Hugh then Bishop of Lincolne; then the phrase Decimas de Dominicis suis liberè conferre consueuerunt, which the Bishop of Lincolne, and

the King and Nobles claime, may haue good sense against Parochiall right, claimed by the Prior for the Church of N. and yet admit no Arbitrarie consecrations; for there liberè, is not free from Episcopal authority, but Parochial constraint; they hauing before beene made canonically Decimae separatae, that is, a portion vpon which a prescription being added, (and the Bishop insists vpon the custome of himselfe, and predecessors) there can be no revnion. And in such case the King and Bishops and other Grandes might interpose them∣selues to make good their predecessours, and their owne Grants.

But suppose his interpretation of Decimae separatae, for a Be∣nefice of Tythes not annext to Churches; what is this se∣paration or collation without consent of the Bishop? that is not expressed in Liberè, which as before hath onely reference to parochiall right: Though in respect of the Aduowson or Patronage if they were so separate who denieth it to King or Patron? yet, in that its said in the Kings claime, Quia consi∣miles Decimas conferimus in quibusdam Dominicis nostris, not in all; and Quamplures Magnates, not omnes doe the like, it may seeme some priuiledge, rather then common Right of Pa∣trons? for then all Patrons and in all Demesnes should haue equall right: Though the Kings soueraigne authoritie in these and all other causes Ecclesiasticall, I doe heartily ac∣knowledge.

The like prohibition, Anno 7. Edwardi 1. in the Chartula∣rie of Osney, betweene the Abbot and Couent there, and the Parson of Harewell, for two parts of the Tythes of certaine Lands: there the King prohibits the prosecution in the Ec∣clesiasticall Courts; because, Tangit nos & coronam &c. ma∣xime cum consimiles Decimas in pluribus Dominicis nostris con∣feramus, & etiam plures Magnates Regni nostri &c.

[Animad. 6] This may haue a good sense, namely of Tythes anciently collated to the Free Chappell of S. George in the Castle of Oxford (from whence Osney claimed them) as appeareth by the words, Ex collatione Progenitorum nostrorum Regum Angliae,

By the gift of our Progenitors Kings of England: Now, Pa∣rochiall Right could not reclaime these, being once separated by Canonicall authoritie: And therefore for the Parson to claime interest in such, might occasion a Prohibition; and the reason might be; for the King and Nobles did giue the like so anciently collated and seuered. Besides, this pro∣hibition and the former may haue the same answere, as be∣fore.

Yet the Councell vnder Hubert Archbishop of Cantur∣bury in the 2. of King Iohn, though repeating and respecting the Lateran Councell vnder Alexander the third, must haue an interpretation contrarie to that which is the meaning of that Lateran Councell which is examined before, ad pag. 114. & 138. It must be vnderstood of receiuing arbitrarie consecra∣tions, not the receiuing of Infeodations, because heere in England such Infeodations were rare, and therefore not likely to bee inten∣ded by this Canon vnder Hubert. What then? though they were rare heere, yet they were irregular, and therefore heere might be condemned; which he must obserue, because that euen supposing his interpretation hee may see, that in that Canon the Actors were censured and the Act annullate; But that at that time there were Tythes giuen, which were not before in esse, hee cannot prooue, and as for Tythes conueyed by Inuestiture of Churches needs more proofe, though any such Extrauagant Act were not Valide.

In the Section following, insisting vpon his purpose to prooue Arbitrarie consecrations, Hee would imagine those phrases, (Quae Decimari debent, Those things which ought to bee Tythed; And, Quae Decimari debent more Catholico, Those which ought to bee Tythed after the Catholike man∣ner) in many Grants to expresse no Canonicall payment be∣fore: But, that then New Tythes were giuen, which though not before, yet then by the Canon Law ought to bee Tythed; For that the obedience to the Canons in this point was generall through the Kingdome is most false, wee know the Trueth by a cloud of Home-bred witnesses. So our Authour.

[Animad. 8] But these phrases doe but shew the extent or manner of the Tything, and the duety of payment, not Arbitrarie but ne∣cessarie: Nor inferre they any opposition to the Canon Law; for that were absurd, to acknowledge it (before it were ob∣iected) in such Donations especially, in conueying Tithes to those, who could not receiue them, if opposite to Canons: But let him disprooue the generall lawfull practise, for, as for the disobedience of some few in bestowing Tythes, though not newly consecrated, I doubt, but as for newly con∣secrated, his home-bred witnesses can not testifie.

And from his strange interpretation, wherein hee straines his wit to make good his paradoxe, hee makes a comparison betweene these two phrases, Quae offerri solent, and, Quae de∣cimari debent, vel solent, and would thence inferre a like Arbi∣trarie Custome;

[Animad. 9] Whereas some offerings both of Christians and Gentiles are Arbitrary, but Tithings areas much debent as solent, and so are necessarie, and otherwise to call them, and not prooue them is petitio principij.

Yet to prooue his paradoxe he relates how in the booke of Doomes-day, Stori the Ancestor of Walter de Aincourt is speci∣ally thus priuiledged, that hee might sine alicuius licentia facere Ecclesiam (in Darby or Nottingham Shire) in sua terra & in sua soca & suam decimam mittere quo vellet, without leaue of any to make a Church in his owne land, and in his owne Fee, and to send his Tythes whither he list.

[Animad. 10] This of Stori sure was a Priuiledge, and that from the King, as may seeme, for that it is noted in that Temporall Description, because the granting of any land in Manum mortuam, (which by making a Church was done) did be∣long to the King to giue licence: To which acte of buil∣ding a Church, the words, Sine alicuius licentia, meaning, no secular Superiour may bee restrained. And whereas he might build a Church in his owne land where hee list, hee might send his Tithes to which of the Churches he had built, but this by the Bishops permission; whose consent may as well be

supposed, though not exprest, for the conueyance of Tithes; as the consecration of the same by the Bishop, is not ex∣pressed, yet necessarily required. How in the Empire it was, the Conuentus Optimatum at Pauy, vnder the Emperour Berengarius, Anno 903. may witnesse, where it was decreed, Vt omnis Decimatio ab Episcopis, vel his qui ab eo constituti sunt, praebeatur, nullus eam ad suam Capellam, nisi forte Episcopi con∣cessione conferat. Quod si fecisse contigerit, primum legibus sub∣iaceat humanis, postea Excommunicatione populi constrictus, ad vltimum, ipsa Capella quae magis contentionem quam vtilitatem praestat, destruatur: That all Tithing should bee assigned by the Bishop or his Deputy, that without his grant none should conuey them to his owne Chappell; which if he doe, first the Secular Law shall punish him, next, the people shall bee ex∣communicated; and lastly, the Chappell shall be destroyed, as affording more cause of strife then profit.

But it may seeme, hee feared such an answere, and there∣fore sets himselfe to prooue, that it was lawfull to build Chur∣ches in their owne Fees, without consent of the Bishop, and this hee saith was challenged by the Baronage of England; and therefore citeth a Decretall Epistle of Innocent 3, Tom. 2. pag. 228.

[Animad. 11] But it is a false quotation for his purpose; for saith he, It was challenged without licence, but the Pope allowes it to the Lai∣tie, so that they had licence from the Bishop of the Diocesse, and that the new foundations should not bereaue ancient Churches of their assigned endowment.

This last Clause, and not the first, was that which the Baronage pretended in defence of the Archbishop, for building a Church at Lambeth, for otherwise be∣sides the Archbishops owne authorizing his owne Acte, euen the confirmation and approbation of Pope Lucius is there signified, and theref••re not challenged without licence: but against this, by reason of the hurt thence arising to the Church of Canterbury, was this Decretall Epistle; for the immediate words are, Sed ex hoc opere videtur Ecclesiae Can∣tuariensis dignitas, ex parte non modica deperire, &c. But by

this worke the dignitie of the Church of Canterbury would greatly bee empayred: and nothing followeth concerning licence of the Bishop. As for building of Churches without cōsent of the Bishop, obserue how far the Emperor was, who euen makes this Capitularie, Placuit nobis, ne Capella in no∣stro Palatio, vel alibi, sine permissu Episcopi, in cuius est Paro∣chia, fiat: It is our pleasure, that no Chappell in our Palace, or elsewhere, bee without permission of the Bishop of the Diocesse.

Againe, he returneth to his Paradoxe, which out of two Epistles of Iohannes Sarisburiensis, he would inferre; for that in those cases of Tithes, no title is made meerely by Paro∣chiall right, but Praescription or Consecration are the grounds whereon they are demaunded.

[Animad. 12] The first case, Ep. 21. is betweene two neighbour Parishes: the quaestion is, to which Church the Tithes and Parishio∣nets belonged, and for this, the one partie pretends a former Iudgement for him. Here could be no demaund by Parochiall right, when the quaestion was of it, and nothing else de∣maunded but Parochiall right, and therefore in the Libell, both Parochiani and Decimae, wherein Parochiall right con∣sisteth, were the two demands. The like is, Ep. 87.

[Animad. 13] The second case in Epist. 84. is also betweene two neighbor Parishes, for Tithes (pertinentes ad Ecclesiam de W. & quas in die Consecrationis iam dictae Ecclesiae, Radulfus Rotundus ob∣tulerat, Episcopo Londinensi praesente & approbante: Tithes which belonged to the Church of W. and which in the day of the Consecration of the said Church, Radulphus Rotundus did offer the Bishop of London, being both present and ap∣proouing it) which were detained by another Parish, with∣out any sentence; whereas the Parish W. had euicted them from the predecessor of the Parson, and the other Church. Now in this case is not Parochiall right claimed? Decimas per∣tinentes ad Ecclesiam? And this, both by prescription, and or∣dination, and a former sentence is iustified. So that in both examples he hath dealt falsely. But in this later is a plaine

signe of the Bishops approbation, to each mans offering of Tythes: like that in the confirmation of William Giffard Bi∣shop of Winchester, cited by him pag. 344. In the same Salis. his 28. Epist. and 109. as also for Parochiall right.

But Theobald the Archbishop, reprehendeth Ala the Countesse of Warren, for that shee did not pay the Tythes which her hus∣band had vowed, therefore there is arbitrarie Consecration.

[Animad. 14] These Tythes were not the Tythes of the Demesnes, but Denariorum Gabuli, of rent mony, which he might vow, & she ought to pay: The tenth of rent, not increase, though out of her Dowry; because it was vowed vpon the Altar; it was the Dowry of the Church: it was so to bee, for so it was her Dowry; And this Tything can extend no further. See pag. 342. the words in the Authour.

Againe the three Monkes, Knighton, Higden, and Walsing∣ham, are cited, who before are answered: and for confirmation of their opinion, concerning the Councell at Lyons, Hee bringeth a petition in Parliament, made by a Parson of Gillingham against the King, for denying him out of the Forest situate in his Parish, Tythe Hay, and Venison, and Pannage, and other profits, which, Ecclesiae suae de iure communi debentur, secundum formam Supplicationis & exhortationis Apostolicae porrectam Domino Regi apud Gillingham quando fuit ibi ad Natale, What was that Exhortatio, or Supplicatio Apostolica? surely some parti∣cular letters from Rome obtained in behalfe of the Parsons, and no new decree.

[Animad. 15] Neither by this may it seeme, that in the Kings case, Paro∣chiall right of Tythes, was not yet euery where setled, al∣though increasing in a Parish: Nay by this we may well see, they were euery where due euen from the King, in that the Par∣son could claime them by Iure communi debentur Ecclesiae suae, They are due to his Church by common right, and durst pro∣cure letters from Rome, and complaine euen in a Parliament: sure his complaint was no generall complaint, against an al∣lowed custome, but a speciall wrong in this place alone. Nothing stronger then this to prooue Parochiall right, if

the Kings Forrests must pay Tythe to Gillingham, de iure communi.

In the next Section, hee speaketh of Tythes not assigned to any Parish to whom they doe belong: And entreth this digression by saying, that vntill those innouations by Ca∣nons, in denying Lay-men right, arbitrarily disposing the iurisdiction, which the common or secular law had formerly challenged and exercised in detayning, the right of Tythes betweene the Priests, and Parishioners, grew out of vse.

[Animad. 16] And yet in all his 14. Chapter of Iurisdiction of Tythes, not any secular law so directly intermedled in Tythes, but euen since that time of the Lateran Councell (which yet he would prooue to be the time of forbidding such consecrations) the Epistles of Ioannes Sarisburiensis shew the contrary, and the Decretals of Alexander the 3. written vpon suits to this coun∣trey, can testifie, besides those suites for Tythes in the Arch∣bishops Courts, which after out of the Chartularies of the Prio∣ries of Rochester and Leeds I will produce. And the Temporall Courts cannot holde plea of Tythes, vnlesse it be by way of prohibition, but onely by vertue of late Statutes.

But saith hee, out of Thorpe a Iudge, that in such places out of any Parish, as in the forrest of Englewood, the King ought to haue the Tythes to dispose of, and not the Bishop, and relates that the Archbishop made suite to the Councell to haue them.

[Animad. 17] Although I know and acknowledge the Kings preroga∣tiue, in disposing all Tythes by his Supreme power in causes Ecclesiasticall, yet chiefly in Forrest••; (for to him alone For∣rests did belong) and especially that of Englewood, which well euen in reason might be granted him, for that in Assarted land much grew more Tytheable then before, to the more benefit of the Clergie: And it is not said, the King may keepe, but collate to whom he will; which inferres the right of Tythes. And since, as in the Records after, the King there claimeth a priuiledge to build Townes, erect Churches, Assart lands, and giue those Churches with the Tythes of that lands, to whom he will, be∣cause it is not within the bounds of a Parish; well he might by his

Prerogatiue and Supreme power, adde the Tythes of the Townes to the Churches, as euen by the Capitulars lib. 1. cap. 93. it is granted, Sancitum est de Villas nouis, & Ecclesiis in ijs nouiter constitutis, vt Decimae de ijsdem Villis ad easdem Ecclesias conferantur; It is ordained concerning new villages and Chur∣ches therein newly founded, that the Tythes of those villa∣ges should be conueyed to those Churches. And this is re∣peated in the Concil. Wormatiens. can. 52. And in Triburiens. c. 14. there it is, Si vero in qualibet sylua vel deserto loco vltra milliaria 4. aut 5. vel eo amplius aliquid dirutū conlaborauerit, & illic consentiente Episcopo Ecclesiam construxerit, & consecratam perpetrauerit, prospiciat Presbyterum ad seruitium Dei idoneum & studiosum, & tunc demum Nouam Decimam Nouae reddat Ecclesiae, salua tamen potestate Episcopi; If in any forrest or de∣sert place aboue 4. or 5. miles off, or more, any shall repaire or build a new Church, by consent of the Bishop, and shall haue it consecrated, let him prouide a fit and honest Priest for the seruice of God, and then let him giue his new Tythes to his new Church, reseruing the authoritie to the Bishop: (For as the Church was consecrated by the Bishop, so the Tythes were disposed by his consent; for in those times no∣thing concerning the Church was done without the Bishop or Popes consent and confirmation:) So in this case, the King making of a desart, an Adesart. But yet Herle the Law∣yer is after cited to be of another minde then Thorpe.

But that this is not onely a Prerogatiue to the King, but the same which the Baronage claimed in King Iohns time, hee in∣timates.

[Animad. 18] Whereas yet that was in the building of Churches, not in new assarts, but in ancient Parishes, as that of Lambeth in the Epistle of Innocent was, and no forrest. And the Kings grant of a prohibition in his owne name alone against the Bishop of Carleile, sheweth it not to be a common priuiledge to his Magnates as to himselfe, for else as before he would haue put his Magnates as himselfe in the prohibition.

[Animad. 19] Now because Herle a Lawyer sayth, that such Tythes out of

Parishes might not arbitrarily be giuen, but that the Bishop of the Diocesse should haue them, he is censured, to speake suddenly, that is, rashly, and out of the Canon Law, not out of the Common Law. If he knew not how to speake as he ought, what doeth our Author? It were well that hee should Tutor him in his owne profession, and shew that Tythes were giuen or assig∣ned to any Church without the consent of Bishop or Pope: and what Rule is there in the Common Law concerning Tythes, but it is taken from the Ecclesiasticall Law?

Notes

• Pag. 375.
• Ex continuat. Florentij Wigor. ad ann. 1129.
• Apud Anselm. lib. 3. Epist.
• Lib. 1. Ep. 28.
• Post Chartan•• Gundulph.
• Pag. 302.
• Pag. 324.
• Ad Pag. 310. &c.
• And it is declared by the Charter of the saide Walter B shop of Rochester, that those Tythes of Chelesfeld a••d Modingham, were pos∣sed by the Monkes, in the time of Gundulphus, who gaue and granted the saide Tythes, of the gift of ••atrons, with the consent of the Re∣ctors of Chelesfield & Chi∣selherst, and Gundulp••us was consecrated Anno 1077. and sithence they haue enioyed them.
• I Gundulphus — approue and rat••fie their deuotions to the Monkes, and giue vnto them Episcopall authoritie and con∣sent, giuing and granting to the said Monkes Tythes ly∣ing within the Parishes of diuers Churches of our Dio∣cese, to wit, the Tythes &c.
• I will that the Monkes haue the Tithes in their owne Man∣nours within the Diocesse, and reteine them in peace. But all those Tithes aboue expressed — I assigne vnto them, and by my Bishoplike auth••ritie, which I enioy, I command and ordeine, that the Monkes haue and enioy them alwayes, to bee em∣ployed for prouision of vi∣ctuals. These Graunts and orders I haue made for the loue of Saint Andrew, in his Church, by y^e assent of Arch∣bishop Anselme. Anno 1091.
• Tithes belonging to the Iuris∣diction of the Church of Can∣terburie, by the most reuerend fathers Archbishops of Can∣terbury, Anselme, William, Ri∣chard, Baldwyn, and Hubert, Ca∣nonically collated and confir∣med, as wee haue seene contei∣ned in their Authenticke wri∣tings.
• Lib. 3. Indict. 12. Epist. 41.
• Pag. 353.
• Pag. 357.
• Pag. 358.
• Houeden. p. 2. fol. 460.
• Pag. 359.
• P. 360.
• Goldast. Con∣stitut. Imper. Tom. 3.
• P. 361.
• L. 5. c. 182.
• P. 362.
• P. 363. & 364.
• Pag. 365.
• Pag. 367.
• Pag. 368.