An historical vindication of the divine right of tithes from scripture, reason, and the opinion and practice of Jews, Gentiles, and Christians in all ages : designed to supply the omissions, answer the objections, and rectife the mistakes of Mr. Selden's History of tithes / by Tho. Comber ...

CHAP. XIII. Of Infeodations and Exemptions.

§. I. BY all the foregoing Confutations of Arbitrary Consecrations and Appropriations, it may ap∣pear that the Conveying Tithes into Lay-hands at the Dissolution of Abbies, was not grounded upon any Ancient practice, but was an unprecedented Act; and Mr. S. himself thinks, the Tithes so conveyed can scarce be enjoyed with a safe Conscience(g). Nor was there any Law of this Kingdom in Henry the Fifths's time, to enable him to have made Infeodations to the Laity of Prior Aliens Tithes given him by Act of Parliament, wherefore that Prince justly disposed of them to other Ecclesiastics, which pattern if King Henry the Eighth had followed, his pro∣ceedings had been far more justifiable. As for Infeodations, before the dissolution Mr. S. grants there is no certain Testimony of them in England, and the Proofs he brings are, at best, but remote Conjectures. Those Tithes which Odo, Bishop of Bayeux and Earl of Kent, confirms, viz. Decimas quas fideles ejus habebant. Hist. Tithes, Chap. xi. pag. 1. seem to be no more but the Tithes of their Land, which they desired to give to the Monks of S. Augustines: and pag. 331. The Tithes given to Robert Saint-John by his elder Brother William, and by the said Robert given to Boxgrave, were no Parochial Tithes, but Decimas gabulo∣rum, the Tenth part of his Tolls, or his Rents in Mony. The Tithe of Nicholas de Stodeham was enjoyed by a Clergy Man (Curate of the place it is like) till he gave (and his Lord d'Oily confirmed) it to Osney, by the advice and con∣sent of the Bishop of the Diocess (as we proved before:) And if the story be true of Roger d'Oily's giving his Tithes yearly sometimes to one Servant, and sometimes to ano∣ther,

it is no example of an Infeodation, but an illegal, impious and wild Sacriledge; but Mr. S. gives little credit to this Author, pag. 401. As for Hern and Pigot's case, he himself tells us, pag. 407. That continual consideration was given to the Church for the Tithes enjoyed by this Lay-man; so that this was a Composition or Tenancy, rather than an Infeodation. Wherefore there were anciently no Infeo∣dations in England, nor would they be allowed (saith Mr. S.) at this day, unless they could derive them from the Grant of the Patron, Parson, and Ordinary; that is, unless they came from the Church, as we have fully proved they did in other Countries, Chap. VI. §. 4. and not only the Author of the Book of Osney, but Lindwood also is cited by Mr. S. to prove the truth of that Opinion(h); and if there were Infeodations here granted first from the Church, though the Grantors were faulty, yet still all Church Revenues were disposed by the Church. The phrase in Domus-Dei Book, that such a Lay-man tenet Ecclesiam, and sold it to such an one, is only meant of the Patronage, which also was forbid to be sold a little after(i); and the phrase of Decimas aut Ecclesiam, is to denote the Profits and the Patronage(k). The Kings having a share in the Oblations at the Church of Mosely, reaches not the matter of Tithes: so that neither his Examples nor his Arguments do shew there were any Infeodations in England.

§. II. Since all Exemptions come originally from the Church, and are granted to such as were reckoned of old among the Clergy, though the Pope did ill to grant them, yet it no way makes for Mr. S. his Opinion of Lay-mens arbitrary retaining or disposing Tithes, so that we need say nothing concerning them: Only, since these Exemptions from Tithes are grounded upon an unjust ex∣ercise of Papal power, and that also to such as were ac∣counted of the Clergy, surely they are but a slender secu∣rity to a Lay Protestants Conscience, who rejects the Popes Authority, and yet by virtue of that Authority

retains what is due to the Parish Minister by the Law of God, with which no Earthly power can dispense. Mr. S. tells us, The Parliament it self thought them so unjust, An. 1399, that by a Statute 4 Hen. 4. c. 4. whoever procu∣red any Bull for such Exemptions should be liable to a Praemunire(l). Nor do our present Laws allow any Pre∣scription (saith Mr. S.) De non Decimando, unless where the Prescription began in a Church-man; and yet if it conti∣nue not still in the hands of a Church-man, the reason for which it began is ceased, and therefore (one would think) the priviledge De non Decimando should cease also. But our Laws do allow Compositions and Prescriptions of a Modus Decimandi, though made at first by the power and policy of the Laity, and confirmed by the negligence or corruption of the Clergy, and though the quantity paid be never so disproportionable to the original and just due: yet they who can claim such a priviledge, ought to con∣sider, whether the allowance of Secular Laws be a suffi∣cient Rule for conscientious Christians to walk by in all cases; and whether Custom can make an ill thing become good, as also, whether any Incumbents ill bargains (who have but Estates for life) ought to be stood upon to the prejudice of their Successors; especially where these Com∣positions have made some Livings so small, that they have not left the Minister that competency, which all Men grant to be due by the Law of Nature as well as by the Law of Christ. If private gain did not pervert mens Judgments, they could not but discern they are obliged in Conscience to make some compensation at least for this injury, though Custom and humane Laws secure them from being compel∣lable thereunto.

Notes

• (g)

  Review, pag. 471.
• (h)

  Tit. De lo∣cato & conda∣cto, c. licet bona, verb. Portiones.
• (i)

  Append. ad Concil. Later. cap. 15, 16, 17. Bin. Tom. 3. par. 2. pag. 603.
• (k)

  Ib. c. 18.
• (l)

  Hist. Tithes, p. 407.
• See Mr. his Review, pag. 476, 477.