In Ethelwulf’s Charters we have all these points. I shall omit 1, 2, and
4, and give here 3, 5, and 6.
(3) Charter A.—“Wherefore I Ethelwulf, king of the West-Saxons, with the
consent of my bishops and princes, have resolved on a salutary council
and uniform remedy and have determined to make a gift of a certain
hereditary portion of land to all ranks _already in possession_ of it,
whether monks or nuns serving God, or laypeople, always the tenth hide,
where it may be the least yet the tenth part perpetually enfranchised
so as to be free and protected from all secular services, royal dues,
tributes, greater and lesser taxes, which we call ‘Witereden’ and that
it be free from all things for the deliverance of our souls and sins,
for serving God only, without military expedition and bridge-building and
castle fortification, so that they may more diligently without ceasing
pour forth their prayers to God for us, for which we in some degree
lighten their secular services,” etc.
(5) “Now this Charter of donation was written in the year of the
incarnation of our Lord 844, in the seventh Indiction, on the day of the
nones of November, in the city of Winchester, in the church of St. Peter,
before the high altar.”
(6) It was signed by King Ethelwulf, by bishops Elmstan and Aelstan, 6
dukes, 3 abbots, and 16 thanes.
(3) Charter A.—“Quamobrem ego Ethelwulfus, rex Occidentalium Saxonum
cum consilio episcoporum ac principum meorum, consilium salubre atque
uniforme remedium affirmavi, ut aliquam porcionem terrarum hereditarium
antea possidentibus gradibus omnibus, sive famulis et famulabus Dei
Deo servientibus, sive laicis, semper decimam mansionem ubi minimum
sit tum decimam partem in libertatem perpetuam perdonare dijudicavi
ut sit tutus atque munitus ab omnibus secularibus servitutis, fiscis,
regalibus tributis majoribus et minoribus, sive taxationibus quod nos
dicimus Witereden; sitque liber omnium rerum pro remissione animarum et
peccatorum nostrorum Deo soli ad serviendum, sine expeditione, et pontis
instructione, et arcis municione, ut eo diligencius pro nobis ad Deum
preces sine cessacione fundant, quo eorum servitutem secularem in aliqua
parte levigamus pro honore Sancti Michaelis Archangeli et Sancte Marie
Regine gloriose Dei genetricis.”
(5) “Scripta est autem hæc donacionis cartula anno Dominicæ Incarnacionis
DCCCXLIIII., Indictione vii., die quoque nonas Novembris. In civitate
Wentana in ecclesia, Sancti Petri ante altare capitale, et hoc fecerunt.”
This Charter is printed by Kemble in the “Codex Diplomaticus,” vol. v. p.
93, No. 1048, from a Malmesbury cartulary of the 14th century, Lansd.,
417, f. 6, which Haddan and Stubbs collated with a Malmesbury cartulary
in the Bodleian Library at Oxford. Wood., donat. 5, of the thirteenth
century, see “Councils,” iii. p. 630, etc. The rubric in the Bodleian
cartulary stands thus: “Quomodo Æthelwulfus Rex decimavit terram suam Deo
et sanctæ Ecclesiæ; et quota parte hujus decimæ Meldunensem Ecclesiam
ditaverit,” etc. [“In what way King Ethelwulf decimated his land to
God and Holy Church, and with what part of that tenth he enriched the
Church of Malmesbury, for the honour of St. Michael the Archangel and
St. Mary.”] I have taken the orthography of the charter from Mr. Birch’s
“Cartularium Saxonicum,” ii. No. 447, p. 26.
I have translated _decimam mansionem_ as the tenth hide.
It appears from this Malmesbury cartulary that annexed to it was
a statement of particular lands already in possession (_antea
possidentibus_) of the monastery which by this charter were enfranchised.
But in the copies of this charter the schedule of enfranchised land is
omitted except in this particular case of Malmesbury.
As regards the date of this charter, Helmstan, whose name appears in it,
was bishop of Winchester from 838 to 852. Swithun succeeded him in 852.
If, therefore, the charter be dated 854 with Helmstan’s name in it, the
date is spurious. I have taken the episcopal dates from Bishop Stubbs’s
“Registrum Sacrum Anglicanum,” ed. 1858.
Wilkins gives the general provisions of this grant with the date A.D.
844, Indiction iv., but makes a serious blot by inserting Swithun’s name
instead of Helmstan’s.[100]
Selden says, “In Malmesbury the date of the first charter is DCCCXLIV,
Indict. iv., v. Nonas Novembris; plainly it is false, neither could that
Indiction be in the charter of the year DCCCXLIV, which fell in the
seventh Indiction.”[101]
ETHELWULF’S SECOND CHARTER OF GRANTS.
Recital of the grant of Ethelwulf, king of the West-Saxons, to the Church
of England, of a tenth of lands, etc. Grant by the same to Huntsige, the
thane of land at Worthy, _county of Hants_, Easter, 22 April, 854.
Charter B.—“Wherefore I, Ethelwulf, by the grace of God, king of the
West-Saxons, in the holy and most solemn feast of Easter, for the health
of my soul and prosperity of my kingdom and of all the people by Almighty
God committed to my care, with my bishops, earls and all my nobles, have
resolved on a salutary counsel, that I have not only given the tenth part
of the lands through our kingdom to Holy Church, but also have granted
to our ministers placed in the same to enjoy them in perpetual liberty;
so that such grant shall remain firm and immutable, freed from all royal
services, and from all other secular services whatsoever.”
Here follows a statement that it had pleased Ælthstan, bishop of
Sherborne, and Swithun, bishop of Winchester, with all those serving God,
to agree that on every Saturday in each church five psalms shall be sung,
and every presbyter shall sing two masses—one for King Ethelwulf and the
other for the bishops and nobles, etc.
Then follows the date. “This charter was written in the year of the
incarnation of our Lord 854, in the second Indiction, on Easter Day, in
our Palace at Wilton.”
Charter B.—“Quapropter ego Æthelwulf gratia Dei Occidentalium Saxonum
rex, in sancta ac celeberrima Paschale sollempnitate, pro meæ remedio
animæ et regni prosperitate et populi ab omnipotente Deo michi conlati
consilium salubre cum episcopis, comitibus, et cunctis optimatibus meis
perfeci ut decimam partem terrarum per regnum nostrum non solum sanctis
æcclesiis darem verum etiam et ministris nostris in eodem constitutis
in perpetuam libertatem habere concessimus. Ita ut talis donatio fixa
incommutabilisque permaneat ab omni regali servitio et omnium sæcularium
absoluta servitute.”
“Scripta est autem hæc cartula, Anno Dominicæ incarnationis DCCCLIIII.;
Indictione ii. die vero Paschali in palatio nostro quod dicitur Wiltun.”
Then follow the names of the king, two of the king’s sons, bishops
Alhstan and Swithun, six dukes, two abbots, sixteen thanes.
This is found in Kemble’s “Codex Diplomaticus,” No. 1054, and he takes
his text from the Codex Wintoniensis, MS. Brit. Mus., Add. 15,350, fol.
89.
Mr. Kemble marks this charter as doubtful, but Haddan and Stubbs remark:
“This doubt lies on a very large portion of the charters contained in the
Codex Wintoniensis. The above is, however, the best specimen of the class
of charters which it represents.”[102]
Mr. Kemble thinks that Ethelwulf’s first grant in 844 does not refer to
tithing in the legal sense of the term. The passages found in the ancient
chronicles, as quoted above, refer, in his opinion, to two several
transactions; one which took place in 854 (844?) before the king’s
visit to Rome; the second in the year 857, after his return to England.
“Ethelwulf,” Mr. Kemble says, “being humbled and terrified by the
distress of wars and the ravages of barbarous and pagan invaders, devised
as a useful remedy thus: he determined to liberate from all those various
exactions and services, which went by the general name of ‘Witereden,’
the tenth part of the estates which, though hereditary tenure had grown
up in them, were still subject to the general obligations of folcland,
whether they were in the hands of laics or clergy; that when the
estate amounted to ten hides, one was to be free; when it was a very
small quantity, at all events a tenth was to be enfranchised; and as
the greater part of this land was either in the hands of the clergy,
or was very likely ultimately to come there, he granted this act of
enfranchisement that on these estates the holders might be the better
able to devote themselves to the services of God, all other services
being discharged except indeed the inevitable three.”[103]
Mr. Kemble further adds, “Ethelwulf did three distinct things at
different times:—
“(1) He first released from all payments, except the inevitable three,
a tenth part of the folclands or unenfranchised lands, whether in the
tenancy of the Church or of his thanes. In this tenth part of the lands,
so burdened in his favour, he annihilated the royal rights, regnum or
imperium, and as the lands receiving this privilege were secured by
charter, the chronicle can justly say that the king booked them to the
honour of God.[104]
(2) “The second thing he did was his giving a tenth part of his
own private estates of book-land to various thanes or clerical
establishments.[105]
(3) “And, lastly, upon every ten hides of his own land, he commanded that
one poor man, whether native born or stranger, that is, whether of Wessex
or some other kingdom, should be maintained in food or clothing.”[106]
This is remarkable as the beginning of secular provision for the poor,
a proof that there were poor in Anglo-Saxon times, which some deny, in
order to show there was no need of a provision for them out of the tithes!
“Mr. Kemble’s views,” say Haddan and Stubbs, “of the several cartularies,
and his interpretation of them, may be regarded as provisionally
satisfactory.”[107]
Charter C.—Here is an abridgment of the charter given by William of
Malmesbury, with altered date A.D. 855, November 5th, written at
Winchester. I give only the grant, so that it may be compared with
Charters A and B.
“Wherefore I, Ethelwulf, king of the West Saxons, with the consent of my
bishops and princes, resolved on a salutary counsel and also a uniform
remedy; viz., to give _a certain portion of my land_ to God, the blessed
Mary and all the saints, possessing it by a perpetual right; viz., the
_tenth part of my land_, so as to be safe, protected and free from all
secular services, and also from royal tributes, the greater and less, or
from the taxes which we call ‘Witereden,’”[108] etc. Attention is drawn
to the words in italics.
SELDEN’S CONCLUSION ON ETHELWULF’S CHARTER.
“If we well consider the words of the chiefest of these ancients, that
is, Ingulphus, we may conjecture that the purpose of the charter was to
make a general grant of tithes payable freely and discharged from all
kind of exactions used in that time.”[109] Selden is not correct in this
conclusion; for if we take the collateral evidence of the chronicles, we
shall find that the king’s grant referred to land and not to tithe of
increase.
Selden says, “In Matthew of Westminster no other _decima_ is mentioned
in it than _decima terræ meæ_. Out of the corrupted language [of the
charter] it is hard to collect what the exact meaning of it was.”[110]
Here Selden unquestionably expresses a doubt as to the interpretation of
the charter. And we are therefore bound to give him credit as having been
the first to doubt Ingulph’s interpretation of the charter; namely, that
“Ethelwulf first endowed the whole English Church throughout his kingdom
with the tithes of the lands.” Therefore I agree with Lord Selborne that
Haddan and Stubbs have not done justice to Selden in not having taken
this doubtful statement into consideration.[111]
CHAPTER VIII.
_TITHE LAWS MADE BY ANGLO-SAXON KINGS._
Prideaux says: “For King Alfred, the son of Ethelwulf, about thirty years
afterwards (885), having published a body of laws for the well government
of the realm, in one of them strictly enjoins the payment of these tithes
to the Church.”[112] He quotes as his authority for this statement,
Spelman’s “Concilia,” tome i. p. 360, No. 38: “Decimas, primigenia, et
adulta tua Deo dato.” This is the Vulgate translation of the Saxon.
Thorpe translates the Saxon thus: “Thy tithes and thy firstfruits of
moving and growing things, render thou to God.”[113]
It is important to note that King Alfred placed a long Scriptural preface
to his secular laws. He began with the ten commandments, translated and
transposed them in a strange manner. It is all in Anglo-Saxon, which
Alfred had translated from the Vulgate which they taught him at Rome when
there in his younger days. The passage quoted from Spelman is taken from
Exodus xxii. 29, and this is in Alfred’s Scriptural preface to his laws.
The Vulgate translation is, “Decimas tuas et primitias tuas non tardabis
reddere.” [“Thou shalt not delay to give thy tithes and firstfruits.”]
The renderings of this passage in the Septuagint, Vulgate, and English
Bible, are _paraphrases_ and _not translations_ of the Hebrew text. For
example, “Thou shalt not delay to offer the first of thy ripe fruits
and of thy liquors.”[114] Again, “Thou shalt not delay to offer from thy
abundance and of thy liquors.”[115]
This passage in his preface was not one of his laws on tithes, as
Prideaux states. “In King Alfred’s laws,” says Lord Selborne, “there
is nothing about tithes. He made a treaty of peace with Guthrum; in
that treaty there was nothing about tithes.”[116] I quote his lordship
because recently the Rev. M. Fuller has dedicated “Our Title Deeds” to
him. Should his lordship take the trouble to read through that book, he
would be astonished at some of the statements made in it; _e.g._, Mr.
Fuller says that King Ethelbert of Kent passed laws for the payment of
tithes, and that King Alfred passed a law for their payment, quoting, of
course, for the second case, Dean Prideaux, who has misled so many on
the subject of tithes. “In a code of laws,” says Mr. Fuller, “published
during Alfred’s reign, he in one of them strictly enjoins the payment of
these tithes to the Church.”[117] And adds, “In this Digest of the laws
of his predecessors, Alfred made not a _new_ law for tithes; he merely
copied from them whose laws have long since been lost.”[118] Now, the
only reference to tithes in Alfred’s laws is the above quotation, which
he made in his preface from the Vulgate translation of Exodus xxii. 29.
“No legislative enactment,” says Mr. Kemble, “can be shown on the subject
of tithes in the codes of Alfred, Ini, or the Kentish kings.”[119]
“It is not easy to say,” says Johnson, “with what view Alfred put this
Scriptural preface to his laws, if it were not to show his great esteem
for God’s word. There is no hint given that he expected his people should
make the judicial precepts of Moses the rule of their action,”[120] etc.
Again, Mr. Fuller says, “Alfred, with the consent of his Witan, entered
into a treaty with Guthrum, by which the former ceded to the latter the
provinces of East Anglia and Northumberland upon six conditions, the
sixth being, ‘If any man withhold tithes, let him pay lah-slit (a fine of
twenty shillings) among the Danes, and wite (a fine of thirty shillings)
among the English.’”[121] Those Danes were heathen, and it seems strange
that they were compelled to pay tithes to the Christian Churches. But
this treaty was not concluded between Alfred and Guthrum I., but between
his son Edward and a Guthrum II. “Our Title Deeds” must have been very
loosely prepared. The rubric to this law states, “This is the ordinance
which King Alfred and King Guthrum, and afterwards King Edward and King
Guthrum, chose and ordained.”[122] “The rubrics to these laws,” says Mr.
Thorpe, “are very defective in the manuscripts.”[123] “The party,” adds
Mr. Thorpe, “to this treaty with Edward was apparently a second Guthrum,
who, according to Wallingford, was living in Edward’s time, and probably
succeeded Eohric, the immediate successor of Guthrum I.”[124] Edward the
Elder succeeded his father in 901, and died in 924. The treaty was made
in 907. Guthrum I. received East Anglia and Northumberland in 880, and
died in 891.
Selden says, “It may be seen by this that some other law preceded for the
payment of tithes, or else that the right of them was otherwise supposed
clear.”[125] There may have been some previous secular law which is now
lost. As I have stated before, we have lost most valuable Anglo-Saxon
charters and laws during the incursions of the Danes and the disturbed
state of the whole country. There is a dead silence as regards tithes
for 120 years between the Council of Chelsea, A.D. 787, and the treaty
between Edward and Guthrum, A.D. 909. “What we now possess,” says Thorpe,
“of Anglo-Saxon laws is but a portion of what once existed.”[126]
ATHELSTAN’S LAW ON TITHES.
Athelstan succeeded his father in A.D. 924, and in 927 published the
following Ordinance:—
“I, Athelstan the king, with the counsel of Wulfhelm, archbishop, and of
my other bishops, make known to the reeves at each burgh, and beseech you
in God’s name, and by all His saints, and also by my friendship, that
ye first of my own goods render the tithes both of live stock and of
the year’s earthly fruits, so as they may most rightly be either meted
or told or weighed out; and let the bishops then do the like from their
own goods, and my ealdormen and my reeves the same. And I will that the
bishops and the reeves command it to all those who ought to obey them,
that it be done at the right term. Let us bear in mind how Jacob the
patriarch spake, ‘Decimas et hostias pacificas offeram tibi’; and how
Moses spake in God’s law, ‘Decimas et primitias non turdabis offerre
Domino.’ It is for us to think how awfully it is declared in the books:
if we will not render the tithes to God, that He will take from us the
nine parts when we least expect; and moreover we have the sin in addition
thereto.”[127]
This is unquestionably the first general law in England for the payment
of predial and mixed tithes. I admit, and have stated, that tithes were
paid by Edward’s treaty with Guthrum, and that clause in the treaty
implied that they were paid previously, but there was no public law
recorded like Athelstan’s, which set forth the payment of predial and
mixed tithes.
Now, Lord Selborne states that Athelstan’s ordinance is not in form a
public legislative Act, but merely a royal message addressed to his
reeves, bishops, and ealdormen.[128] Against this opinion, I place the
opinions of Selden, Kemble, Bishop Stubbs, and Dean Prideaux.
(1) Selden says: “King Athelstan, about the year 930, by the advice and
consent of the bishops of the land made a general law for predial and
mixed tithes.”[129]
(2) Kemble says: “It is well known that the earliest legislative
enactment on the subject of tithes in the Anglo-Saxon laws is that of
Athelstan, bearing date in the first quarter of the tenth century.”[130]
Kemble further adds: “The tithes mentioned by Athelstan is the predial
tithe, or that of the increase of the fruits of the earth, and increase
of the young of cattle. The nature of the sanction of tithes is obvious;
it is the old, unjustifiable application of the Jewish practice, which
fraud or ignorance had made general current in Europe.”[131]
(3) Bishop Stubbs says: “The formula by which the co-operation of the
Witenagemót was expressed is definite and distinct. Alfred issues his
code with the counsel and consent of his Witan; Athelstan writes to the
reeves with the counsel of the bishops.”[132]
Here Bishop Stubbs _includes_ Athelstan’s law among the examples he
gives as regards the definite and distinct formula used to indicate the
co-operation of the Witenagemót. And the Bishop’s opinion is the most
important because Lord Selborne’s objection is founded on a technical
point, viz., the _formula_ used. But the Bishop admits that the
formula used in this case was an indication of the co-operation of the
Witenagemót.
(4) Dean Prideaux says, “This law was passed in a Parliament of all
England, assembled at Grately, about the year 928, etc.”[133]
Dr. Lingard calls the law a “Circular letter which the king sent to
his officers. From the tenour of this circular it seems probable that
numerous pleas of exemption had been set up in favour of the lands
belonging to the Crown, the bishops and the ealdormen, and also of lands
held under them by others.”[134]
Lord Selborne then agrees with Dr. Lingard; the former calls it “a royal
message to his reeves,” the latter, “a circular letter from the king to
his officers.” If so, why should the Parliamentary _formula_ have been
used?
(5) Mr. Thorpe may also be added to the four. He clearly lays down the
rule by which he was guided in classifying and separating the Laws from
the _Monumenta Ecclesiastica_. “All ordinances,” he says, “proceeding
from the king and Witenagemót, whether of a secular or ecclesiastical
character, _are considered as Laws_. Those without such sanction, and
of a nature strictly ecclesiastical, are placed among the _Monumenta
Ecclesiastica_.”[135] He placed it among the Laws.
The question here is, What constitutes a Witenagemót? The word means
a meeting of the Witan or wise men. It was a counsel of wise men. Our
information is indeed very vague as to its constitution. There is no
law extant prescribing or defining the constitution of the Witenagemót.
A synod with the king present would constitute a Witenagemót. There is
no trace whatever that it was representative or elective, or that there
was a property qualification. It is on record that the king named the
members who were to attend.[136] But the members were the leading men
of the country, viz., the archbishops, bishops, abbots, presbyters and
even deacons (the priests and deacons doubtless attended on the bishops),
princes, ealdormen and thanes.
The formula used in this law is, “The king, with the council of his
archbishops and other bishops.” This was a council of wise men presided
over by the king. And whether it was called a synod or a council, the
laws passed by such a meeting formed the general laws of the kingdom.
The objections raised by some writers to the formula used in making
Anglo-Saxon laws, and to the words Ordinance, Council and Synod, are
groundless and have no force. Mr. Fuller in “Our Title-Deeds” is
conspicuous for this sort of objections. He says, “It was _not_ an act of
the Witan, but was an Ordinance made at a council or synod only, at the
council of Greatanlea,” etc.[137]
Let us examine the formula used in other laws generally admitted to be
laws.
(1) “The Laws of King Edward.” “Edward’s Ordinances,” “King Edward
commands all his reeves,” etc.[138] There is not a word here about the
Witan, archbishop, bishop, etc., yet they are admitted as laws.
Athelstan’s secular ordinances passed at the council of Greatanlea,[139]
had been enacted by the same Witan which enacted the King’s Ordinance to
his reeves as regards tithes. If one is a “Royal message” or “Circular
letter,” so are the secular Ordinances. But the latter are admitted to be
laws, so therefore are the former.
To carp about the words “council” and “synod,” shows ignorance of the
Latin translation of Witenagemót, viz., _concilium_, _conventus_,
_synodus_, etc.
“Although synods,” says Kemble, “might more properly be confined to
ecclesiastical conventions, _the Saxons do not appear to have made any
distinction_, probably because ecclesiastical and secular regulations
were made by the same body, and at the same time.
“But it is very probable that the Frankish system of separate houses for
the clergy and laity prevailed here also, and that merely ecclesiastical
affairs were decided by the king and clergy alone. There are some Acts
in which the signatures are those of clergymen only; others in which
the clerical signatures are followed by those of the laity; and in one
remarkable case of this kind, the king signs at the head of each list,
as if he had in fact affixed his mark successively in the two houses as
president of each. This is in Codex Diplomaticus, No. 116.”[140]
THE LETTER OF THE KENTISH MEN TO KING ATHELSTAN.
Dr. Lingard makes the following remark on the thankful acknowledgment
which the Kentish men sent the King on the promulgation of his Ordinance
dated A.D. 627.
“The meaning is evident; in consequence of the King’s admonition, they
promised to pay tithes.”[141]
Mr. Freeman makes some very important observations on the above letter.
“As the other kingdoms merged in Wessex, the Witan of the other kingdoms
became entitled to seats in the Gemót of Wessex, now become the common
Gemót of the Empire. But Gemót of the other kingdoms seem to have gone on
as local bodies, dealing with local affairs, and perhaps giving a formal
assent to the resolutions of the central body. The letter of the Kentish
men to Athelstan reads like an act of acceptance on the part of a local
Gemót, of resolutions passed by the general body.”[142]
Mr. Freeman then opposes Dr. Lingard’s theory and also Lord Selborne’s,
“for the resolutions of the general body” were those of “the common Gemót
of the Empire.” He therefore sides with Selden, Kemble, Stubbs, etc.,
that the Ordinance passed at Greatanlea was a general law.
But I shall quote the most conclusive evidence to show that the
Ordinances passed at Greatanlea were legal enactments, viz., “That they
would all hold the frith (peace) as King Athelstan and his Witan had
counselled at Greatanlea.”[143]
DEFINITION OF TITHE.
Tithe was the tenth part of the increase yearly arising and renewing from
the profits of lands, the stock upon lands and the personal industry of
the inhabitants.[144]
Tithes were (1) Predial, (2) Mixed, and (3) Personal.
(1) Predial tithes were the crops and wood which grew and issued from the
ground. (2) Mixed tithes were wool, sheep, cattle, pigs and milk. They
were called _mixed_ because they were predial in respect of the ground
on which the animals were fed, and personal from the care they required.
(3) Personal tithes were the tenth part of the clear gain after charges
were deducted; in other words, on net profits of artificers, merchants,
carpenters, smiths, masons, and all other workmen. Even the servant-girls
paid a tenth of their wages. The Scriptural passage quoted in support of
personal tithes is Deuteronomy xii. 6. “And thither ye shall bring your
tithes and heave offerings of your hand.”
By 2nd and 3rd Edward VI., c. xiii. s. 7, “Every person exercising
merchandizes, bargaining and selling clothing, handicraft, or other art
or faculty, by such kind of persons and in such places as heretofore
within these forty years have accustomably used to pay such personal
tithes, or of right ought to pay, other than such as be common day
labourers, shall yearly, before the feast of Easter, pay for his
personal tithe the tenth part of his clear gains, his charges and his
expenses, according to his estate, condition or degree, to be therein
abated, allowed and deducted.” Sec. 9. “And if any person refuse to pay
his personal tithes in form aforesaid, that then it shall be lawful to
the ordinary of the diocese, where the party that ought to pay the
said tithes is dwelling, to call the same party before him, and by his
discretion to examine him by all lawful and reasonable means otherwise
than by the party’s own corporal oath, concerning the true payment of
the said personal tithes.” Sec. 12. “Except the inhabitants of the city
of London, Canterbury, and the suburbs of the same, and also those of
any other town or place that used to pay their tithes by their houses,
otherwise than they ought or should have done before the making of this
Act.”
THE LAWS OF KING EDMUND.
He succeeded his brother Athelstan A.D. 940.
The Laws Ecclesiastical. “King Edmund assembled a great synod at London,
during the Holy Easter-tide (about A.D. 994), as well of ecclesiastical
as of secular degree,” etc.
“Of Tithes and Church-Scots.”
Act 2. “A tithe we enjoin to every Christian man by his Christendom, and
Church-scot and Rome-feoh, and plough-alms. And if any one will not so
do, let him be excommunicated.”
Act 5. “We have also ordained that every bishop repair the houses of God
in his own [district], and also remind the king that all God’s churches
be well conditioned as is very needful for us.”[145]
Church-Scot = _Cyriesceat_ = Firstfruits, _primitiæ seminum_. The Jews
had been commanded to give firstfruits[146] as well as tithes. Here again
the Levitical legislation was taken to be applicable to the Christian
ministry, and hence we find firstfruits as well as tithes given to them.
This impost remained a fixed charge upon the land till the time of the
Conquest, when it ceased to be generally paid.[147] The first instance of
this payment in Anglo-Saxon law is found in the laws of King Ina [A.D.
690]: “Let church-scots be rendered at Martinmas. If any one do not
perform that, let him forfeit 60 shillings and render the Church-scot
twelve-fold.”[148] This Act was passed more than 200 years before the
legal enactment of tithes. It is strange that we should find firstfruits
but not tithes enacted by King Ina. The omission proves that tithes
were not then paid in Wessex. In Athelstan’s law passed at Greatanlea,
it is stated, “I will also that my reeves so do that there be given the
church-scots.”[149] Between the laws of Ina and that of Athelstan, there
is no mention of church-scots in Anglo-Saxon laws.
There must have been a large number of landowners’ churches erected
in the country at the time the above law was passed, for the priests
received only one-third of the tithes, the remaining two-thirds was paid
to the baptismal churches of the diocese and placed at the bishop’s
disposal; one-third of the two-thirds was for the repairs of churches.
The bishop who had the control of these funds must have neglected their
repairs, and this law commanded the bishops not only to repair the
churches but also “to remind the king that all God’s churches be well
conditioned.”
If there had been no customary appropriation of tithes, as some assert,
why should this law place the expenses of repairing the churches upon the
bishops?
We are gravely told by Mr. Fuller that this law passed in A.D. 940 is no
law, although presided over by the king, because the meeting was called a
“_Synod_” and not a “_Witan_”![150]
Prideaux calls it a law.[151] Selden says: “About 940, Edmund, king of
England, in a great synod or council, a kind of Parliament both of lay
and spiritual men held in London, made this Act.”[152] Kemble, Freeman,
Bishop Stubbs, and every writer of distinction admit this to be a proper
legislative enactment.
KING EDGAR’S LAWS.
Edgar succeeded his brother Edwig, or Edwy, in 959; died 975.
In the following law, Mr. Thorpe takes his text from a collection of two
important manuscripts; (1) Corpus Christi MS. 265 (K. 2); (2) Cott. Nero,
A. 1, both apparently written in the middle of the 11th century.
“This is the Ordinance[153] that King Edgar, with the counsel of his
Witan, ordained, in praise of God and in honour to himself and for the
behoof of all his people.”
Act 1. “These then are first, that God’s churches be entitled to every
right; and that every tithe be rendered to the old minster to which
the district belongs, and that be then so paid, both from a thane’s
inland[154] and from geneat-land[155] so as the plough traverses it.”
Act 2. “But if there be any thane who on his bocland has a church at
which there is a burial place, let him give the third part of his own
tithe to his church. If any one have a church at which there is not a
burial-place, then of the nine parts, let him give to his priest what he
will; and let every church-scot go to the old minster according to every
free hearth; and let plough-alms be paid when it shall be fifteen days
over Easter.”
Act 3. “And let a tithe of every young be paid by Pentecost; and of the
fruits of the earth by the equinox; and every church-scot by Martinmas
on peril of the full wite which the doom-book specifies; and if any one
will not then pay the tithe, as we have ordained, let the King’s reeve go
thereto, and the bishop’s, and the mass-priest of the minster, and take
by force a tenth part for the minster to which it is due; and assign to
him the ninth part; and let the eight parts be divided into two; and let
the landlord take possession of half, half the bishop; be it a king’s
man, be it a thane’s.”[156]
In these laws there is a threefold division of churches. (1) The “old
minster,” that is the senior church, which name was anciently given to
the monastic or cathedral church. (2) A church with a burial place. (3)
A church without a burial place. “The old minster,” says Selden, “was
the ancientest church or monastery where he hears God’s service, which
I understand not otherwise than of any church or monastery, that is his
parish church or monastery. They were in many places the only oratories
and auditories that the near inhabitants did their devotions in.”[157]
This is the first English law which expressly appropriates tithes. They
were previously appropriated according to custom. In the first mention of
tithes which is found in Theodore’s “Penitential,” it is a customary and
not a legal appropriation.
CHAPTER IX.
_ORIGIN OF OUR MODERN PARISH CHURCHES AND BOUNDARIES._
The church with burial-place, as stated in Art. 2 of King Edgar’s laws,
clearly indicates the transition which had been going on from the old
minster to the landowner’s church, from which originated our modern
parish churches.
There is the old minster or parish church, then the landowner’s church,
with burial-place, erected on his private estate for the convenience of
his family, tenants, and labourers. This becomes a new parish church
within the district of the old minster. Edgar’s laws are the first to
mention these churches. But since A.D. 675 chapels of ease had been
built, but no district, no parish boundary, was assigned to any of
them. The slow and gradual manner in which parochial churches became
independent, appears of itself an efficient answer to those who ascribe a
great antiquity to the universal payment of tithes.[158]
It is impossible to state precisely when parishes in England were formed.
There is no record or evidence to show it. They gradually commenced in
the latter quarter of the seventh century and increased very much in the
eighth century. It is too late to assign the origin of our modern parish
churches to the reign of King Edgar. It would be nearer the truth to say
that the modern parish churches gradually grew up from Bede’s account
in A.D. 686, but were not then called parishes. It is evident that the
two churches recorded by Bede were built for the accommodation of those
residing on each of the earls’ estates. So when churches increased,
the jurisdiction of the incumbent of each manorial church was limited
by the extent of the landowner’s estate. Hence the estate on which the
church was built, with burial ground, became the parochial boundary.
Some estates were larger than others; hence the parochial areas are very
unequal.
The church had a boundary conterminous with the landowner’s estate. And
by Edgar’s law the incumbent received one-third of the tithes of the
estate on which the church was built, free from all incidental expenses.
The old minster received the remaining two-thirds for the purpose of
repairing the churches and relieving the poor and strangers.[159] Edgar’s
law points out a division of the tithes. But the most important question
in reference to Edgar’s appropriation is “Why was one-third specially
assigned to the priest of the manorial church?” Because that part was the
well-recognised priest’s share of the tithes.
In Domesday we find several churches in possession of only this one-third
of the tithes from the manor or township. Let us take the properties of
St. Paul’s, London. The Vicar of Cadendon, in Herts, received a third
part of the tithe of the demesne; the Vicar of Tillingham, in Essex,
assessed at 20 hides in Domesday, had a third part of the great and
small tithes of the demesne. The Vicar of Nastock, in Essex, had a third
sheaf of the tithe of the demesne; the Vicar of Drayton, in Middlesex,
had one-third of the tithe of the demesne; the Vicar of Sutton, which is
not in Domesday, had one-third of the tithe. On the other hand, we find
vicars on the Chapter estates receiving ALL the tithes. But the fact
existed of Edgar’s one-third appearing in the Domesday Survey, which
did not record one-third of the churches which were then on the lands
surveyed; and if we had in that survey a complete record of the number of
churches, we should find a large number of vicars in receipt of Edgar’s
one-third part of the tithes.
We sometimes find the tithes of a portion of land in one parish, paid
to the parish priest of the church of another parish, for this detached
piece of land may have belonged to the manorial owner, who built the
church on his estate and endowed it not only with the tithes of the lands
of the manor but also with the tithes of the land which he possessed in
other parishes.
The modern parish system has been erroneously traced back by some[160] to
Archbishop Honorius in A.D. 630. Mr. Selden refutes this opinion.[161]
“Honorius primus provinciam in parochias divisit,” meant that Honorius
was the first to divide his province into bishoprics and not into
parishes. The error originated out of a confusion of the original and
subsequent meanings of the word “parochia.” Originally, “parochia” meant
a diocese and also a parish. But in Edgar’s reign the words “diocese” and
“parish” had two distinct and separate meanings. The distinction had not
originated in his reign, but previously and gradually. The _germ_ of the
modern parish appeared in A.D. 686.[162]
It is important to observe that in speaking of a clergyman’s sphere of
duty the word “provincia” and not “parochia” was used; _e.g._, “Quicunque
enim presbiter in _propria provincia_ aut in aliena,” etc.[163]
Selden makes some weighty remarks on Edgar’s law. “But as the first
part,” he says, “of his law that gives all tithes to the mother Church of
every parish, meant in them a parochial right to incumbent; so also the
second part, that permits a third portion of the founder’s tithes to be
settled in a church new built, whereto the right of sepulture is annexed,
makes a dispensation for a parishioner that would build such a church in
his bocland.... _I doubt not that such new erections within old parishes
bred also new divisions, which afterwards became whole parishes_, and
by connivance of the time took (for so much as was in the territory
of that bocland) the former parochial right that the elder and mother
Church was possessed of. For that right of sepulture was, and regularly
is, a character of a parish church, and as commonly distinguished from a
capella.”[164]
Edgar’s law was of great importance. If it were carried out at the
present day, the several daughter Churches which have burial grounds
would receive a share of the parochial tithes. These district or daughter
Churches relieve the mother or parish Church of a large part of the
spiritual duties without receiving any part of the spiritual endowments.
At no time was this neglected condition so keenly felt as before the
creation of the Ecclesiastical Commission. Some private patrons were, and
are still reluctant to divide a portion of the parochial tithes among
the incumbents of the daughter Churches. But public patrons do so. At
the present time, when some well-endowed parishes become vacant, public
patrons and some private patrons also, redistribute the tithe endowments
among the poorer incumbents of the same parish. But these commendable
changes have been brought about by Acts of Parliament and Orders in
Council.
In reference to the one-third to the priest of the manorial church,
Bishop Kennett says: “Another fair pretext of the religious to regain
appropriations, was to desire no more than two parts of the tithe and
profits, leaving a third to the free and quiet enjoyment of the parish
priest, whom at the same time _they eased from the burthen of repairing
the church and relieving the poor, and took that charge upon themselves_.
This again was a colour that looked well, for it was but a _returning
to the old institution of dividing the profits of a parish into three
parts_: one to the priest, one to the church, and a third to the poor.
The one-third was called the church’s part, and was expressly excepted
as belonging to the priest, and was frequently described as a portion
separate from the share of the monks and pertaining to the parish church.
It was on this account that the patron’s charter of consenting to an
appropriation, did sometimes expressly reserve a third part to the
bishop, and for the same reason the bishops of Man had their _Tertiana_,
or third part of all churches, in that island. The bishops provided
perpetual vicars, who enjoyed a full third of the tithes, and in addition
he had oblations and perquisites, which all made his portion often equal
to, if not exceeding that of the convent.”[165] These are the words of a
bishop of the Church of England. He fully admits the existence of “the
old institution of dividing the profits of a parish into three parts,”
etc. This old division was not questioned until fifty-eight years ago
by Archdeacon Hale, of London, and recently revived by Lord Selborne. I
shall presently deal with the opinions of these two writers.
Bishop Kennett further adds, that although there was a threefold division
of tithes and oblations in England, yet the whole product of tithes and
offerings was the _bank of each parish church_, and the minister was
the _sole trustee_ and _dispenser_ of them according to the stated rules
of piety and charity. This is a most remarkable and vital observation,
because in course of time this sole trustee kept all the tithes and
oblations to his own personal use, in the same manner as the monks acted
in respect to all the profits of the churches appropriated to them after
the Norman Conquest.
It may be observed that at one time lay patrons had kept to themselves
the two parts for the poor and repairs of the churches, and gave the
priest the remaining one-third. This arrangement led to great disorders,
because they kept the two parts to their own use and had them infeoffed
in them and their heirs, leaving the altarage or small tithes to the
parish priest. By conscientious scruples, however, they restored in
course of time the two parts to the parochial priests, or religious
houses, for distribution to the poor and for repairing the churches.
CANONS ENACTED UNDER KING EDGAR.[166]
Canon 55. “And we enjoin that the priest so distribute the people’s alms,
that they do both give pleasure to God and accustom the people to alms.”
The following is a gloss on this canon:—“And it is right that one part be
delivered to the priest, a second part for the need of the church, and a
third part for the poor.”
The text is taken from MS. 201 in Corpus Christi College, Cambridge. The
gloss is taken, by Mr. Thorpe, from a Bodleian MS., Junius 121, fol.
25_b_, which he calls “X” in a page between his Preface and Table of
Contents. He says the Bodleian MS. is of the tenth century. Mr. Thorpe’s
commanding position as an Anglo-Saxon scholar is generally admitted;
yet Lord Selborne questions his opinion as to the date of the Bodleian
MS. He says it must have been written in the eleventh century, and was
copied from the Church Grith; thus dating the MS. a century later than
Mr. Thorpe.[167] That could not have been, for the Church Grith law deals
only with the tithe, but Edgar’s canon deals with all alms, including
tithe. And as to the date of the MS., I should prefer the opinion of a
disinterested Anglo-Saxon scholar and expert like Mr. Thorpe.
It is probable that the Cambridge MS. is a late copy made in Cnute’s
reign, and that the Bodleian MS. was a gloss made in the tenth century
on the original copy of the canons. The force of the gloss is that the
priest was entitled only to one-third part of the people’s alms, which
included the tithe. The Church Grith law deals only with the tithe, of
which a third part was the priest’s. The gloss gives the general custom
of all the churches of giving the priest only one-third part of all alms,
oblations, tithes, etc., and not ALL the alms and oblations in addition
to one-third part of the tithes. In principle, the words of the gloss do
not differ from the wording of Ethelred’s law.
Canon 56. “And we enjoin that priests sing psalms when they distribute
the alms, and that they earnestly desire the poor to pray for the
people.” Why pray for the people? Because they gave alms to them.
ODO, ARCHBISHOP OF CANTERBURY.
He was of Danish birth. His father was one of the Danish chiefs who were
engaged in the invasions of England in A.D. 870. Odo was first a soldier
in the wars of Edward the Elder. In 926 he was appointed bishop of
Ramsbury. He was three times engaged on the battle-field after he became
a bishop. In 942 he was appointed Archbishop of Canterbury.
Odo’s canons were compiled from Egbert’s Excerptions and Legatine
Injunctions; the former I have shown not to be Egbert’s production. Odo’s
tenth canon on tithes is the seventeenth Injunction passed at the Council
at Calchyth, _i.e._, Chelsea, in 787.
THE MONKS.
It gives great pleasure to a certain class of writers to blacken the
characters of the monks, and to extol Henry VIII. and the favourites and
courtiers who surrounded him. But the present age is too critical and
well-informed to be misled by the prejudiced and bigoted statements which
have no foundation in fact. The monks were no doubt superstitious, and
so were the parochial clergy; but the former were not ignorant men, as
Judge Blackstone states in his Commentaries. He was much indebted to them
for the preservation of ancient charters, laws, and historical annals,
which form so important a part of his Commentaries. The various charters
of English liberty, wrung from English sovereigns from time to time, were
deposited in the monasteries by the barons for safe keeping, where they
were carefully and faithfully preserved by the so-called “ignorant and
superstitious monks.”
In every great abbey there was a large room called the “Scriptorium,”
where several writers made it their sole business to transcribe books for
the use of the library. They were generally engaged upon the Fathers,
Classics, Histories, etc., etc. There was then no printing press. So
zealous were the monks in general for this work, that they often had
lands given to them and churches appropriated to them for carrying on
the work. In all the great abbeys persons were appointed to take notice
of the principal occurrences of the kingdom, and at the end of every
year to digest them into annals. The constitutions of the clergy in
their national and provincial synods, and even Acts of Parliament, were
sent to the abbeys, in order to be duly recorded. The choicest records
and treasures of the kingdom were preserved in the monasteries. A copy
of the charter of liberties granted by Henry I. was sent to some abbey
in every county to be preserved. The abbeys were schools of learning
and education, for every convent had one person or more appointed for
this purpose, and all the neighbours that desired it, might have their
children taught certain branches of education free of charge. In the
nunneries, also, young women were taught to work, and to read English and
Latin also. Most of the daughters of noblemen and gentlemen were educated
in those places.
Again, the monasteries were great hospitals, and most of them were
obliged to relieve poor people every day. They served the same purposes
of relieving the poor and strangers as the workhouses which originated in
the reign of Queen Elizabeth did. When the monasteries were dissolved,
and all their properties handed over as a free gift by Parliament to
Henry VIII., to do with them as he pleased, there were no longer any
places where the poor and strangers could be relieved. If all the
monastic properties had then been placed under a Board of Commissioners
to be utilized towards the relief of the poor, an annual income would
now be at the command of such Commissioners as would be sufficient to
cover the eight and a half millions per annum, the present cost of the
relief of the poor of England and Wales, and thus the ratepayers of the
kingdom would be relieved of the payment of poor rates. The annual value
of all the property was £250,000, including the tithes possessed by the
monastic bodies. If we take into account the valuable landed estates
which the bishops and chapters were forced to exchange for the monastic
appropriated tithes, firstfruits, and tenths, we shall get a revenue of
at least £300,000 per annum, which, at the present time, would realize
eight and a half millions per annum. To place such vast properties at the
_free disposal_ of Henry VIII. and his successors on the throne, is the
most convincing proof of the subservient and even slavish Parliaments of
the Tudor sovereigns.[168]
It is important to observe that we have no trustworthy record of any
single event of English history previous to the arrival of Augustine. We
have tradition, but nothing more. No great power of writing existed up
to that period. But Augustine and his companions did more than introduce
Christianity among the Saxons. They also introduced writing, annals,
and other forms of Roman civilization. The first Anglo-Saxon charter
is dated April 28, A.D. 604, by which Ethelbert, king of Kent, granted
to the Cathedral church of Rochester, lands at Southgate. This charter
was granted by the advice of Bishop Laurence and of all the king’s
princes.[169] There are no signatures, but ends with “Amen.” The second
charter, dated A.D. 605, granting land in Canterbury to found an abbey,
is signed by King Ethelbert, Archbishop Augustine, Edbald the King’s son,
Duke Hamigisil, Angemund referendarius, Hocca comes, Grafio comes (count
or comites of the King), Tangilisil regis optimas, Pinca, and Geddi.
The first charter is remarkable, in which Laurence is styled “bishop.”
Augustine had not died until the 26th May, 605,[170] so he must have
consecrated Laurence as Archbishop more than thirteen months before his
death. Augustine signed the Charter dated 9th January, 605, as a member
of the Witenagemót.
POPULATION.
Mr. Walter de Gray Birch, of the MSS. Department of the British Museum,
had discovered in 1883, in the British Museum, a MS. in Anglo-Saxon
of the late tenth or early eleventh century. It is the only extant
Anglo-Saxon copy. It is the oldest and best text. There is internal
evidence that the MS. is a copy of an older one now lost. It is in the
Harley Collection of MSS. 3271 f. 6B. It is the earliest census return
of the Anglo-Saxon population.[171] There are thirty-four divisions
or territorial names which are very ancient. The total is 243,600
hides, which mean families, throughout England. Allowing five to each
family, the population of England in A.D. 1066 was 1,218,000. As the
sanitary arrangements and medical science were little known among the
Anglo-Saxons, I take 10 per 1,000 as the excess of births over deaths.
From these data I conclude that in A.D. 597, when Augustine landed
in England, the population was 80,000; in A.D. 700, the population
was 160,000; in A.D. 800, population 300,000; in A.D. 900, population
600,000; in A.D. 1,000, population 900,000. The population of Kent in
A.D. 597 was about 5,500. There is a statement in Bede’s Ecclesiastical
History that the population of Kent was 10,000 when Augustine landed,
but this was an exaggeration. There were then 21 monasteries in England.
Between A.D. 600 and 700, 100 monasteries were built and endowed.
Therefore in A.D. 700 there were 121 monasteries for a population of
160,000. Only 29 monasteries were built between 700 and 800, 22 between
800 and 900, 38 between 900 and 1000, and 43 between 1000 and 1066, or
253, but one-half of them were in ruins through Danish invasions, at the
time of the Conquest.
I shall now give the population of the country at the periods when tithes
were ordered to be paid by civil or ecclesiastical law.
In 787, when the Pope’s two legates came to England, the population was
about 260,000. The Injunctions read to the Northern Synod were attested
by the King of Northumberland, Archbishop of York, Bishops of Hexham,
Lindisfarne, Whitherne, Mayo in Ireland, Ethelwin of Bangor, two dukes,
two abbots, some presbyters, deacons and thanes.
In the Southern Synod they were attested by the King of Mercia,
Archbishop of Canterbury, Bishops of Lichfield, Lindsey, Leicester,
Elmham, London, Winchester, Dunwich, Hereford, Selsey, Rochester,
Sherborne, Worcester (13 bishops); 3 abbots, 3 dukes, and 1 comes, _i.e._
16 ecclesiastics and 5 laymen.
It will be seen from these facts that not only was the population small,
but ecclesiastics formed the majority in the synods or councils who
framed laws and canons for the payment of tithes to the Church. King
Athelstan’s law made in 927 for the payment of tithes runs thus:—
“Athelstan, king, with the council of Wulfhelm Archbishop, and of my
other bishops, make known to the reeves, etc.” Here is the King with a
council of bishops making a law for the payment of tithes to bishops
themselves and to their clergy. And this is considered the first general
law in England for setting forth the payment of predial and mixed tithes.
The population then was about 700,000.
In 960, King Edgar passed his tithe laws with and by the advice of his
Witan, who included the Archbishop of Canterbury, and bishops. The
population then was about 800,000.
Let us now take a glance at the number of bishops in England and Wales up
to the time of the Norman Conquest.
Kent had Canterbury and Rochester.
East Saxons: London. East Angles: Dunwich and Elmham.
West Saxons: Dorchester (transferred to Winchester), Sherborne, Mercia
(including eight counties), Lichfield, Leicester, Sidnacester (or
Lindsey), Worcester, Hereford.
South Saxons: Selsey.
Northumberland: York, Lindisfarne, Hexham.
Sixteen bishops in England and 4 in Wales in A.D. 705, when the
population was only 160,000, _i.e._ a bishop for every 8,000. By
absorption only 14 bishops in England, 4 in Wales, and 1 in the Isle of
Man in 1066, or one bishop for every 66,000 of the population.
Lord Selborne, Bishop Stubbs, and Mr. Haddan[172] say the
manorial churches, to which Edgar’s laws granted one-third of
the tithes, were the type of our own modern parish churches.
This I grant. It is _the first Act_ of Parliament by which they
received tithes. By _custom_ the _mother churches_ originally
received tithes. But it was not by custom, but by an Act of
Parliament passed at Andover in A.D. 960, that the type of
our modern parishes received one-third of the tithes of the
parochial limits.
Up to A.D. 1180, the owners of lands from which tithes arose
might give them, as they please, to bishops, chapters,
monasteries, or _to the parish churches on their own estates_.
Hence, churches erected by landowners after 960 received in
_many_ cases, up to 1180, _all the tithes_ of the new parochial
boundaries, and not one-third.
But I disagree with them in limiting the origin of the type of
our modern parishes to A.D. 960. I trace the GERM of our modern
parishes back to the two earls’ churches, consecrated in A.D.
686.[173] Soames, Lappenberg, and Dean Hook refer the origin of
our modern parishes to Archbishop Theodore (668 to 693). That
Bede’s churches were in the north of England does not militate
against my view. _It was but the germ_, which gradually
expanded.[174]
CHAPTER X.
_THE LAWS OF ETHELRED II._
The following nine laws appear in Thorpe’s “Ancient Laws,” etc.[175]
I. _Council of Woodstock._ Thorpe takes his text from Cott. Titus, A. 27.
The MS. is of the thirteenth century, and contains perhaps the best text
extant of the old Latin version of the Saxon laws. Wilkins has it among
his “Saxon Laws,” but omits it in his “Concilia.” Bromton also has it.
II. _The Treaty with the Norwegian Kings_, viz., Anlaf, Justin, and
Guthmund. Thorpe prints his text from the above MS. Bromton has it
Wilkins has it in his “Laws,” but not in his “Concilia.”
III. _The Council at Wantage_ (A.D. 997). Thorpe prints it from the
above. Bromton has it. Wilkins has it in his “Laws.”
IV. _De Institutis Londoniæ_ (prob. A.D. 997). Thorpe prints it from
the above, and remarks that it was a most important law as regards the
commercial and monetary history of England.
V. _Liber Constitutionum_ (A.D. 1008). Thorpe prints it from Cott. Nero,
A. 1. Wilkins has it in his “Laws,” but not in his “Concilia.” Lord
Selborne confounds this with the Ordinances passed at Habam.
VI. _Council of Enham_ (probably “Ensham in Oxfordshire”). Thorpe prints
it from a MS. in Corpus Christi College, Cambridge, 201, which was
written apparently in the middle of the eleventh century, and which he
collated with Cott. Claud., A. 3. Wilkins has it in his “Laws” and also
in his “Concilia.” Spelman dates the council A.D. 1009.
VII. _Grith and Mund._ Thorpe prints it from Cott. Nero, A. 1, collated
with MS. C.C. 201 (Nasmith). “These manuscripts,” says Mr. Thorpe,
“closely agree together.” Wilkins has it in his “Laws,” but not in his
“Concilia.”
VIII. _The Ordinances of Habam_ (A.D. 1012). Bromton alone gives the
text, from which Thorpe copied his text and collated it with the Macro
and Holkham manuscripts. Wilkins has printed it in his “Concilia” (i.
295), but not in his “Laws”; Spelman has it (“Concilia,” i. 530).
IX. _Church Grith_ (A.D. 1014). Thorpe prints it from Cott. Nero, A. 1.
collated with C.C. 201. He does not state that these manuscripts closely
agree together, as he does the two collated in VII. Wilkins has it in his
“Laws,” but not in his “Concilia.”
N.B.—VI. VIII. and IX. only are in the volume Nero, A. 1.
Bromton has only I. II. III. VIII.
IX. _Church Grith._
Mr. Thorpe takes his text from the so-called Worcester volume of the
Cottonian manuscript, Nero, A. 1, fol. 96 _b_. It begins thus:—
“This is one of the Ordinances which the king of the English composed
with the counsel of his Witan, etc.”
Art. 6. “And respecting tithe, the king and his Witan have chosen and
decreed, as is just, that one-third part of the tithe which belongs to
the Church, go to the reparation of the Church, and a second part to the
servants of God, the third to God’s poor and to needy ones in thraldom.”
Art. 7. “And be it known to every Christian man, that he pay to his Lord
his tithe justly, always as the plough traverses the tenth field, on
peril of God’s mercy, and of the full ‘wite,’ which King Edgar decreed,
that is”:—
Art. 8. “If any one will not justly pay the tithe, then let the king’s
reeve go, and the mass-priest of the minster, or of the ‘landrica’ (the
proprietor of the land, lord of the soil) and the bishop’s reeve and take
forcibly the tenth part for the minster to which it is due, and assign
to him the ninth part; and let the eight parts be divided into two, and
let the landlord take possession of half, half the bishop; be it a king’s
man, be it a thane’s.”
Art. 9. “And let every tithe of young be paid by Pentecost, on pain of
the ‘wite’; and of earth’s fruit by the equinox or at all events by
Allhallow’s Mass.”
“On comparing these articles,” says Lord Selborne, “with King Edgar’s
laws, it will be seen that, if enacted, they would have omitted the
clause in those laws which authorized the payment of one-third of the
local tithes to a manorial church having a burial ground.”[176]
Dr. Lingard says, “But its (Edgar’s) subsequent re-enactment in the reign
of Ethelred, and again in the reign of Canute, will justify a suspicion,
that in many places its provisions were set at defiance, and in many but
very imperfectly enforced.”[177]
Bishop Stubbs’s references to articles 2 and 44, and to the latter part
of the sixth of this law prove (1) that he read the whole law of Church
Grith in Thorpe’s translation by referring to three articles of this law;
(2) that he referred to the third part in this law for the poor and needy
in thraldom in support of a certain statement which he made about the
poor; (3) that if he thought the law was not genuine or authentic, he
would not have quoted from it; (4) and that the very fact of his having
quoted from it, proves that he admitted its genuineness. Here are the
Bishop’s words: “The case of the really helpless poor was regarded both
as a _legal_ and as a religious duty from the very first ages of English
Christianity. St. Gregory, in his instructions to Augustine, had reminded
him of the duty of a bishop to set apart for the poor, a fourth part of
the incomes of his church. In 1342 Archbishop Stratford ordered that in
all cases of impropriation a portion of the tithe should be set apart for
the relief of the poor. The _legislation of the Witenagemóts of Ethelred
bore the same mark; a third portion of the tithe that belonged to the
church was to go to God’s poor, and to the needy ones in thraldom_.”[178]
Dr. Stubbs cannot go behind what he states above in his published history.
Let us now compare this statement with what he has written since
he became a bishop. “The tripartite division, never was adopted in
England, and that the passages in support of it are either altogether
unauthorized, or merely statements of an ideal state of law conformable
to the uses of some foreign churches.”[179]
Lord Selborne gives the following extract from a printed letter of
Bishop Stubbs to a rural dean of the diocese of Chester, 12th December,
1885: “The claim of the poor on the tithe was a part of the claim of
the Church; and, although this claim _was never made the subject of an
apportionment, tripartite or_ quadripartite, except in unauthoritative or
tentative recommendations, it has never been ignored or disregarded by
the Church or Clergy.”[180]
How can Dr. Stubbs reconcile these statements with an actual quotation
which he had taken from Ethelred’s law, where the threefold division is
stated? It cannot be. Bishop Stubbs and Professor Freeman must be kept
strictly to what they have published in their well-known histories until
they publicly repudiate what they have written. Private letters which
contradict historical statements must be ignored.
SIR ROBERT COTTON’S LIBRARY.
It is essentially necessary, before going further into the discussion of
the manuscript of the Church Grith law, to give a sketch of the origin of
the Cottonian Library.
Sir Robert Cotton, about A.D. 1588, commenced and continued for about
40 years to collect old charters, laws, seals, coins, etc., etc., which
after the dissolution of the monasteries were dispersed through the
country from their invaluable libraries. Many of them were secured by
the nobility and gentry, but a considerable number fell into the hands
of peasants, mechanics, and other persons who were ignorant of their
important value and totally careless of their preservation. Valuable
books of parchments were sold to grocers, soap-sellers, etc., who used
them as they do old newspapers now. Others were sent out of the country
in shiploads to foreign booksellers; the servants used them for scouring
candlesticks and rubbing boots. Two noble libraries were sold for forty
shillings. Sir Robert found no difficulty in purchasing these valuable
documents wherever he could find them. Many of them were loose skins,
small tracts or thin volumes. Sir Robert had several of them bound up
in one cover. He also obtained by legacy and purchase some of the most
valuable manuscripts collected out of the scattered remains of monastic
libraries by Josseline, Noel, Allen, Lambarde, Bowyer, Camden and others.
It was a timely and excellent opportunity for Cotton, Bodley, and
Archbishop Parker. Sir Robert formed his library in one of the best
rooms of his London residence called “Cotton House,” near the House of
Parliament. He permitted persons to consult and copy the manuscripts. It
was in that library John Selden obtained his wonderful stock of ancient
lore, which made his name immortal. Sir Henry Spelman drank deeply from
the same fountain. Other antiquarians were equally indebted to Sir Robert
Cotton. As I have already stated, he had many manuscripts bound up in
separate volumes, and others he arranged in small parcels. Each volume
and parcel contained several parts which were written at different times.
He had a list on the first page of the headings of the manuscripts bound
up in each volume. It is very important to note that fact, because in
the present volume Nero, A. 1, there is the original list made in Sir
Robert’s time, in which ten headings of Anglo-Saxon manuscripts appear,
but _none of Church Mund and Church Grith laws_, because they were
not bound up in that volume, and I shall presently prove that these
manuscripts were not in the library during the lives of Sir Robert and
his son, but were put there towards the end of his grandson’s life.
Therefore Selden and Spelman, and other antiquarians who consulted Sir
Robert’s library, did not and _could not_ see the Church Mund and Church
Grith laws of King Ethelred II. in the Worcester volume, as it is called,
and where they are now bound up. Were they in any other parcel or volume
in the library? They were not. Here is the proof. In 1629 the Privy
Council ordered the library to be locked up, and a catalogue to be taken
of the whole contents of the library in order to find out whether any of
the King’s books were in it. In 1631 Sir Robert died; and in 1632 an
engrossed official catalogue was made out by order of the Privy Council.
That catalogue is now in the Cottonian Library, in the British Museum,
marked “Add. MSS. 8926.” I have carefully examined the roll; it has
three seals attached to it; the titles of the manuscripts and books are
arranged under thirty-five headings, beginning with “Libri Historici.”
But there are no press marks such as Nero, A. 1, Claudius, B. 3. Another
heading is, “Libri Saxonici,” under which every Anglo Saxon manuscript
in the library in 1632 was placed; but the Church Mund and Church Grith
manuscripts do not appear under this heading. Then when were they
placed in the library and in this volume Nero, A. 1? Sir Robert’s son
and grandson added considerably to the library. Sir John, the grandson,
had given permission to Dr. Thomas Smith to make a catalogue of the
contents of the fourteen presses. In 1696 Dr. Smith published the first
printed catalogue in which the Worcester volume, Nero, A. 1, contains
only the same ten Anglo-Saxon headings which appear in the list of 1632.
I conclude that the Church Mund and Church Grith laws were not in the
Worcester volume in 1695, when Dr. Smith penned his Preface.
An Act of Parliament was passed in 1700 vesting the Library, after the
death of Sir John, in trustees, who were Matthew Hutton, John Anstis, and
Humphrey Wanley. Sir John died in 1702. The library then passed at once
into the custody of the three trustees. The first thing done was to make
out a catalogue of the contents of the library on the death of Sir John,
when the trustees took possession. In 1705, Wanley, one of the trustees,
published his “Antiquæ Literaturæ Septentrionalis Liber, etc.” His
preface is dated 28th August, 1704. For the first time the Church Mund
and Church Grith laws appear in Wanley’s Catalogue. He was the first who
named the volume Nero A. 1 as the “Worcester” volume, and Platna copied
Wanley. From these facts I conclude that the above laws were purchased or
otherwise obtained by Sir John Cotton, and were put into the “Worcester”
volume between 1695 and 1702. I am aware that Dr. Smith’s catalogue
was very imperfect, and these laws might have been in the library when
he issued his imperfect catalogue. But this is a pure conjecture on my
part. My conclusions are based on facts, and not on conjectures. There
is not the slightest doubt about the correctness and completeness of the
official catalogue of 1632. They were not then in the library.
I have considered these details as vitally essential in the important
discussion which is here to follow.
LORD SELBORNE’S “ANCIENT FACTS AND FICTIONS.”
He has published a book on “Ancient Facts and Fictions concerning
Churches and Tithes,” in which he has devoted a large portion to prove
that the Church Grith law of A.D. 1014 “was either a draft or project
of laws which the framer, evidently an ecclesiastic of Ælfric’s school,
wished to have enacted.... There is indeed now written in the margin
of that manuscript,[181] in a small modern hand, the date ‘Aᵒ. Dom.
1014.’”[182] I have often examined the manuscript, and found the reading
to be “Aⁿᵒ. dni. 1014.” Lord Selborne gives the reading as it is printed
in the Catalogue, but decidedly it is not the reading in the manuscript.
It is supposed to have been written by Josseline, secretary to Archbishop
Parker. There is internal evidence in article 43 to support this date
(1014), viz. “But let us do as is needful to us; let us take to us for
an example that which former secular Witan deliberately instituted.
Athelstan and Edmund, and _Edgar who was last_,” etc.
Ethelred had returned from exile in the spring of 1014, after which this
law was passed.
In reference to the above words in italics, Lord Selborne says that
Edward (975-979) reigned between Edgar and Ethelred, and therefore
Edgar could not have been the last;[183] but it must be remarked also
that Edred and Edwy who reigned between Edmund and Edgar, are also
omitted in this 43rd article. Then why had the framers of the whole law
particularized the names of Athelstan, Edmund, and Edgar, and leave out
Edred, Edwy, and Edward? If we look at the arrangement of the Anglo-Saxon
laws, we find the order as above, viz., the laws of Athelstan, next those
of Edmund, and next the laws of Edgar, none by Edward, then come the
laws of Ethelred. The 43rd Article referred to these laws, and therefore
Edgar’s were the last. So there is no force in Lord Selborne’s remarks.
King Ethelred’s law on the threefold division of tithes has been found so
important in the discussion on the tripartite division that Lord Selborne
has devoted all his eminent legal powers, though unsuccessfully, to
upset this Anglo-Saxon law. (1) His first witnesses are Selden, Spelman,
Lambarde, Wheelock, and John Johnson.
“Selden and Spelman,” says Lord Selborne, “_were well acquainted_ with
the Worcester (Cottonian) manuscript; and as neither of them made mention
of this Church Grith document, it may be inferred that they did not
regard it as having the character or the authority of a law.”[184]
“If Lambarde, Wheelock, and John Johnson,” continues Lord Selborne, “were
acquainted with either manuscript—Church and Mund, and Church Grith—(_the
contrary supposition is improbable_), the inference as to them also,
from their silence about it (_i.e._ the Church Grith) must be the same,”
_i.e._ that “they did not regard it as having the character or the
authority of a law.”[185]
I shall examine these five writers _seriatim_.
(1) John Selden published his “History of Tithes” in 1618. I have already
proved that the Church Grith law was not in Sir Robert Cotton’s library
in 1632. It was therefore impossible for Selden to have seen it in the
“Worcester manuscript.” The “Worcester (Cottonian) manuscript” is a very
vague and loose way to express the Worcester (Cottonian) volume Nero, A.
1. The fact is that Selden had never seen or heard of the Church Grith
law, otherwise he would unquestionably have referred to such a law in
his “History of Tithes.” In dealing with Egbert’s Excerptions, Selden
has quoted largely in his “History of Tithes” from this very volume,
which contained the Excerptions, and which volume in his time had no
particular name. In his marginal quotation he merely informs his readers
that they were taken from a “MS. in the Biblioth. Cottoniana.” We have
lost the advantage of his valuable opinion on the Church Grith law, by
its absence from the volume from which he had made large quotations on
other subjects. I agree with Lord Selborne that Mr. Selden was well
acquainted with the contents of the volume; but I totally disagree with
his lordship’s inference as regards Selden’s silence on the Grith Law,
because that law was not in the volume for him to see or read; nor was it
in the library.
(2) Sir Henry Spelman published his first volume of the “Concilia” in
1639. In this volume he gives only two of King Ethelred’s laws out of
the nine given by Thorpe. As a matter of fact, he, like Selden, had never
seen or heard of the Church Grith law. Spelman was one of Sir Robert’s
most intimate friends, and had access to every manuscript and book in his
library. Lord Selborne assumes without any authority that the so-called
Worcester volume in Cotton’s Library, open to the inspection of Selden
and Spelman, contained _all_ the manuscripts which it now contains. If
Lord Selborne had only taken the trouble of reading the original list
of manuscripts on the first page of the volume, he would see at once
that the Church Mund and Church Grith are not in the list of manuscripts
contained then in that volume. Therefore Selden and Spelman could not
have seen them. The original list, and no more, is in the catalogue of
1632.
(3) William Lambarde, the Kent antiquarian, published his collection of
Anglo-Saxon Laws in 1568, in which the Church Grith law does not appear,
from which Lord Selborne again _infers_ that Lambarde did not regard
it as having the character or the authority of a law. Let us apply his
Lordship’s canon of criticism to other omissions made by Lambarde in his
collection of Anglo-Saxon laws, and then see to what conclusions such
inferences lead.
He omitted the Laws of the Kentish Kings, the Laws of William the
Conqueror and of Henry I. Then are we to infer that Lambarde saw these
“documents,” but would not notice them in his collection because “he did
not regard them as having the character or authority of laws”?
This is really the logical sequence of Lord Selborne’s _inferential_
canon of criticism, as regards Lambarde’s omission of the Church Grith
law. The fact is that he, like Selden and Spelman, had never seen the law.
(4) Wheelock published a second edition of Lambarde’s “Laws” in 1644,
in which he added the laws of the Conqueror and of Henry I., but omitted
the laws of the Kentish kings. Why? Must the answer be according to Lord
Selborne’s canon of criticism, viz., that “he regarded them as not having
the character or the authority of laws”? No. He, like Lambarde, had not
seen the Kentish laws or the Church Grith law.
(5) John Johnson published a “Collection of the Laws and Canons of the
Church of England,” in 1720, mainly founded upon Spelman’s “Concilia.”
Mr. John Baron, in his new edition of Johnson’s collection, published
in 1850, says, “Mr. Thorpe publishes some ecclesiastical laws of King
Ethelred at pp. 129, 141, 145, which _were altogether unknown_ to
Johnson”[186] There is at p. 129 “Liber Constitutionum”; at p. 141 “Grith
and Mund”; at p. 145 “Church Grith.”
Mr. Baron’s edition is quoted probably one hundred times by Lord
Selborne in his “Facts and Fictions” and “Church Defence,” and he must
unquestionably have read Baron’s Prefatory statement that “Grith and
Mund” and “Church Grith laws” _were unknown_ to Johnson. Yet in the face
of that statement, Lord Selborne says, “If Lambarde, Wheelock, and John
Johnson were acquainted with either manuscript (_the contrary supposition
is improbable_), the inference is that they did not regard it (Grith law)
as having the character or the authority of a law.” I have taken these
five authors _seriatim_, and the general conclusion is that the Grith law
was unknown to each and all of them.
II. His sixth witness is Wilkins. Lord Selborne says:—
“David Wilkins was the first to publish the Church Grith in his ‘Leges
Anglo-Saxonica,’ where he combined it in a manner, for which the
manuscripts afforded no warrant, with the Ordinances of ‘Habam,’ etc. If
he had regarded it as an authentic ecclesiastical law when he afterwards
(in A.D. 1737) published his great collection of ‘Acts of Councils’ and
other English ecclesiastical documents, it must have found a place there,
which it does not.”[187]
Dr. Wilkins was also the first to publish the laws of the Kentish kings.
Mr. Thorpe says of Wilkins’s “Concilia,” “As a monument of industry this
edition is very creditable to Dr. Wilkins; at the same time it must,
though reluctantly, be acknowledged by every one competent to judge, that
as a translator of Anglo-Saxon he not unfrequently betrays an ignorance
even of its first principles, that though not unparalleled, is perfectly
astounding.”[188]
I shall now examine the above statement of Lord Selborne.
I have failed to find that Wilkins combined the Grith with the Ordinances
of Habam. These Ordinances do not appear at all in his “Saxon Laws.” The
four laws of Ethelred which he has are (1) Liber Constitutionum, (2)
Mund, (3) Church Grith, (4) Wantage.
Now the “Liber Constitutionum” has 35 articles, of which 19 are
ecclesiastical. But Wilkins did not insert it in his “Concilia.” And yet
Lord Selborne makes no remark on its omission, but he is careful to note
the omission of the Church Grith.
III. His seventh witness is Mr. Price,[189] who commenced to edit,
under the instructions of the Record Commissioners, an edition of the
“Anglo-Saxon Laws.” Archdeacon Hale, of London, like Lord Selborne, was a
great stickler for the non-admission of any tripartite division of tithes
in England. He was mainly guided by Wilkins’s edition of 1737, and had
not even seen his “Anglo-Saxon Laws,” which were published in 1721. But
after having written strongly against the tripartite division, a friend
referred him to Ethelred’s law of 1014, in Wilkins’s “Anglo-Saxon Laws.”
He became anxious on reading it, and stopped a new edition of his work
until he could have the point clearly settled. He consulted Mr. Price,
who, on the 26th July, 1832, addressed the following letter to him:—
“It is an unauthorized assemblage of points of canon law, gathered
indifferently from foreign and home sources, and he did not think it
genuine, because Wilkins had omitted it from his new edition.”[190]
The Archdeacon seemed not to be satisfied with this formal opinion, and
so after Price’s death, which occurred soon after he had written the
above letter, he consulted another gentleman, “Whose reputation,” says
the Archdeacon, “for extensive knowledge of Anglo-Saxon literature is
not confined to his own university, or to this country, but whose name I
do not consider myself at liberty to mention. He gave me in writing an
opinion at variance with that of Mr. Price, and _was in favour of the
genuineness of the law of Ethelred_, and his opinion was founded upon
the fact of Schmid having published it in his edition of the Anglo-Saxon
Laws, and _upon the persuasion that no weight whatever was due to what
Wilkins had said or thought upon the subject_.”[191] I have always
admired the straightforward manner in which the Archdeacon placed the
whole matter before the public. A prejudiced person would have kept back
the damaging opinion of the unnamed writer. He is therefore much fairer
on this matter than Lord Selborne, Mr. Fuller, and Mr. Chancellor Dibdin,
who, while quoting Price’s opinion, _carefully avoided any reference
whatever_ to the second or favourable opinion, although it is printed in
a footnote at the page where Price’s letter appears.[192]
Reinhold Schmid, to whom the Archdeacon’s second referee referred, was
Professor of Laws at Jena, and published at Leipzig in 1832 an edition
of the “Anglo-Saxon Laws.” “This edition,” says Mr. Thorpe, “is a very
creditable publication, decidedly superior to the preceding ones (_i.e._
Lambarde’s and Wilkins’s). The version is free from the gross errors of
Wilkins and generally correct.”[193]
This statement corroborates the independent testimony of the Archdeacon’s
unnamed writer.
IV. Lord Selborne’s eighth witness is Professor Freeman, of Oxford.
“Mr. Freeman,” says Lord Selborne, “who seems to have accepted the date
A.D. 1014 as evidence that the document represents some public act of
that year, was also led to the conclusion that these were ‘hardly laws
at all,’ but mere ‘advice,’ and an expression of pious and patriotic
feeling, a promise of national amendment rather than legislation strictly
so called.”[194]
I shall give some extracts from Mr. Freeman’s letter written in 1885,
directly referring to the Church Grith law, and then I shall contrast
such opinions with those expressed on the same subject in the last
edition of his “Norman Conquest,” published in 1877. The reader can then
form his own conclusion with regard to the letter and the historical
statement.
“The only case” he says in his letter, “of the action of the State
in the ancient laws is that to which I have referred in the laws of
Ethelred.[195] Here the sixth enactment of 1014, under the head of Church
Grith, clearly ordains the threefold division, and that with solemnity.
“Here then at last we come to the threefold division of the tithe
enjoined by secular as well as by ecclesiastical authority. _But
something is wanting to make legislation perfect._ If we look on a little
further to the next clause but one, we shall find a strict enactment
about the payment of tithes, and not only an enactment, but _a means
prescribed for carrying the enactment into force_. But this is simply
copied from an earlier law of Edgar.[196] And in the law of 1014 it
stands almost alone as a real piece of legislation with a sanction. In
truth these laws, of which I have found something to say elsewhere,[197]
_are hardly laws at all_. As was not wonderful, under the peculiar
circumstances of the time, _they are rather an expression of pious and
patriotic feeling_ (see the last clause), a kind of promise of national
amendment than legislation, strictly so called. They go along with the
discourses of Archbishop Elfric, _good advice rather than legislation_,
rather than with those codes which not only make decrees, but provide
means for executing them. In such a collection of recommendations rather
than of real statutes we are not at all surprised to find the threefold
division of tithe. But it is nowhere found in any of those codes which
are real acts of legislation, providing the means for carrying out what
is ordained, etc.”
Mr. Freeman, in his long private letter, has produced no proof whatever
to upset the Church Grith as a proper legal enactment. He has not stated
what the _something_ was to make the legislation perfect. If he means
that no provision was made to carry out what was ordained, he contradicts
himself, because he distinctly states above what is true, that as regards
the sixth law for the payment of tithes, “means were prescribed, copied
from Edgar’s laws, for carrying the enactment into force.”
It was quite common for an Anglo-Saxon king and his Witenagemót to
re-enact some of the laws of his predecessors. So Ethelred re-enacted
Edgar’s law as to the punishment which would follow the non-payment of
tithes. And Cnute re-enacted wholesale the laws of his predecessors.
The most remarkable, inconsistent, and contradictory part of this letter
is the abrupt jump which the writer takes from statements he was making
_in support_ of the Grith laws, to the statement, “In truth these laws
are hardly laws at all.”
I now turn to Mr. Freeman’s “Norman Conquest” to find what he has written
in it about this law. In it we get the mature thoughts of the historian,
before Lord Selborne’s books appeared.
“It was most likely,” says Mr. Freeman, “in a Gemót held on his return,
that the King and his Witan passed the laws which bear the date of
this year.[198] They relate mainly to ecclesiastical matters, but they
contain the same pious and patriotic resolutions as the codes of former
years, and they also contain some clauses of a special and remarkable
kind. He expressly approves the conduct of certain earlier assemblies
held under Athelstan, Edmund, and Edgar, which dealt with ecclesiastical
and temporal affairs conjointly, and they seem to deplore a separation
between the two branches of legislation which had taken place in some
later assemblies.” He then refers to sections 36, 37, and 38 of the
Church Grith, and adds, “cf. sec. 43, where the three kings are named.”
“The laws of this year (1014) again proclaim that one God and one King is
to be loved and obeyed.”
“_Such is the general summary of the last recorded legislation of
Ethelred, conceived in exactly the same tone as the laws of earlier
assemblies._”[199]
Here there is no reference whatever that in this last recorded
legislation of Ethelred, “they were hardly laws at all, but rather an
expression of pious and patriotic feeling, a kind of promise of national
amendment, than legislation strictly so called.”
The two statements—one in the History, and the other in a private
letter—are contradictory. Contradictory statements coupled with an
immense display of pedantry and egotism, characterize the recent writings
of this author.[200]
Historians must be kept to the opinions expressed in their published
histories until they publicly repudiate them. This Mr. Freeman has not
yet done. Private letters which contradict them, are not only worthless,
but are injurious. Historians who adopt this plan place themselves in a
false position before the public. They cannot run with the hare and hunt
with the hounds. They cannot _consistently_ address private letters to
clerical tithe-owners expressing opinions against the threefold division
of tithes, and Church Grith law, which contradict their historical
opinions and statements.
V. The next witnesses produced by Lord Selborne are the Old Latin
Translators of the Anglo-Saxon laws. “An earlier collection,” he says,
“of the Anglo-Saxon laws, translated into Latin in the twelfth century,
of which Bromton may be presumed to have made use (though by giving the
Habam Ordinances he has shown that he had also access to other materials)
contains, with that exception, the same laws which are in Bromton.”
“The Latin translators, therefore, if they were acquainted, as is
possible, with the documents omitted in both collections (_i.e._ in their
Anglo-Saxon laws, and in Bromton’s), but classed by more modern compilers
among the public acts of King Ethelred’s reign, did not regard them as
possessing that character in any such sense as to make it fit that they
should find a place in a code of Anglo-Saxon laws; and it may be inferred
that they found no such place in any records of a public nature to which
those translators had access.”[201]
Here, again, his lordship resorts to his stereotyped formula, when laws
are omitted by writers that “They did not regard them as possessing the
character of laws.” I have already shown the several omissions made by
various writers in their collections of Anglo-Saxon laws, _because they
were unknown to them_. If we adopt Lord Selborne’s canon of criticism,
we must not only sweep away the Church Grith law, but actually _five_ of
King Ethelred’s laws, because they do not appear in the old Latin version!
I have carefully compared Thorpe’s collection with the old Latin version,
and the following is the result. There are fifteen Anglo-Saxon laws in
Thorpe’s collection which are omitted in the old Latin version; viz.,
the Laws of the Kentish kings—Ethelbert, Lothere, Edric, and Withred.
King Alfred’s Scriptural Laws, King Athelstan’s Decretum Cantianum and
Decretum Sapientum Angliæ, King Edmund’s Concilium Culintonense, King
Edgar’s Supplemental Laws, King Ethelred’s Liber Constitutionum, Council
of Enham, Church and Mund, Church Grith, and Council at Habam; King
Cnute’s Forest Laws.
Applying Lord Selborne’s canon of criticism, we are bound to repudiate
every one of these fifteen laws, because they are not in the old Latin
version. He cannot draw the line at the Church Grith law, and not include
the others.
In the face of these facts, Lord Selborne adds: “The Ancient Latin
Version of the Anglo-Saxon laws _was evidently meant to be complete_, and
which does contain all the legislature properly so called of Ethelred’s
predecessors from Alfred downwards (why not also before Alfred?), and
also of Canute.”[202] Lord Selborne does not tell us who the Latin
translators were, and what opportunities they had, or what materials
were at their command to make their code complete. What official
position did they occupy? But we know, as an unquestionable fact, that
the Latin version was _not complete_, and that up to 1840 we have not
had a complete code of Anglo-Saxon laws from extant manuscripts until
Mr. Thorpe’s was published under the direction and authority of the
Commission of Public Records.
“The undoubted legislation Acts,” he further adds, “of King Ethelred’s
reign (viz., the Ordinances of Woodstock and Wantage), and also that to
which the Latin date A.D. 1008 is prefixed, have general titles in the
Anglo-Saxon text, signifying that they were passed by the king in the
national Witenagemót. But the title of the document numbered IX.[203] by
Mr. Thorpe, is very different.”[204] This is not correct, for the law
numbered IX. in Thorpe’s, has this title, “This is one of the Ordinances
which the King of the English composed with the counsel of his
Witan.”[205] Now, let us compare this title with those of (1) Woodstock,
(2) Wantage, and (3) the Law of A.D. 1008, which Lord Selborne admits to
be genuine. (1) “This is the Ordinance which King Ethelred and his Witan
ordained.”[206] (2) “These are the laws which King Ethelred and his Witan
have decreed at Wantage.”[207] (3) “This is the Ordinance that the King
of the English and both the ecclesiastical and lay Witan have chosen and
advised.”[208] These facts completely refute Lord Selborne’s statements.
The general title to the Church Grith law, with the name of the King and
Witan, is as strong as that of any of the admitted legal Acts stated by
Lord Selborne. Again, if we compare the title of the Church Grith with
that of Athelstan’s law, it is even stronger and in much better legal
form. Here it is: “I, Athelstan, King, with the counsel of Wulfhelm,
archbishop, and of my other bishops, make known to the reeves,” etc.[209]
Selden, Kemble, and Bishop Stubbs admit, but Lord Selborne denies, the
above to be a genuine law of King Athelstan. Lord Selborne criticises
the titles of Anglo-Saxon laws made nearly 1,000 years ago in the same
critical and technical manner as he would one passed at the present time.
Here is an example. The Church Grith law begins thus: “This is _one_ of
the ordinances which the King of the English composed with the counsel
of his Witan.” Here is Lord Selborne’s note: “This form of expression is
singular. I do not think that anything exactly like it is to be found
elsewhere.”[210] The usual style is, “This is the ordinance,” etc.,
or, “These are the ordinances,” etc. But there is really no practical
difference.
VI. The next witness is John Bromton, abbot of Jervaulx in Yorkshire,
who lived towards the end of the fourteenth century. His history
comprises the period from A.D. 588 to A.D. 1198. Brompton copied his
collection of Anglo-Saxon laws[211] from the Latin version. But he alone
has the text of the Ordinances passed at Habam. He has four of the nine
laws of Ethelred.
Lord Selborne says: “Bromton knew no laws of the reign of King Ethelred,
except those of Woodstock and Wantage, the Treaty with the Norwegian
kings—Anlaf, Justin, and Guthmund (all purely secular), and the
Ordinances of Habam, which he only preserved.”[212]
The Ordinances of Habam are found only in Bromton’s history, and they
contain one important provision as to tithes and other Church dues. Art.
4: “And we charge that every man, for the love of God and all His saints,
give church-scot, and his rightful tithe as it stood in the days of our
ancestors, when it stood best; that is, as the plough shall pass through
the tenth acre, and let every customary due be paid for the love of God
to our mother-church to which it is near. And let no one take away from
God what belongs to God, and our ancestors have granted.”[213]
This Ordinance would indicate a spirit of revolt against the payment
of tithes, and that the provisions made by previous kings for their
payment were set at defiance. I do not agree with Lord Selborne that
this Ordinance grants _all the tithes_ and _dues_ to the _nearest
mother-church_, and thereby cancels or disregards Edgar’s law as to the
payment of one-third of the tithes to the manorial church with burial
ground.[214] The revolt about paying the customary dues or tithes was
against payment to the mother-churches and not to the manorial churches.
This is a vital distinction as indicating an early revolt against the
spiritual parochial endowments having been given to churches which did no
spiritual duties in the manorial parishes for them.
Owing to the same spirit of setting the tithe-law at defiance, we find a
re-enactment of Edgar’s stern law to enforce the payment of tithes in the
6th article of the Church Grith, and a second re-enactment by Cnute. It
would be most unreasonable, and indeed absurd, to assume that the Habam
Ordinances ignored the claims of the manorial churches to a third of the
parochial tithes. The manorial churches in the beginning of the 11th
century were too numerous to be deprived of their portions of the tithes,
especially in 1014, when Ethelred, after returning from exile, tried to
conciliate the clergy.
Dr. Lingard’s opinion is valuable upon this point. “It was probably
thought,” he says, “that a law so precise (as Edgar’s), and so severe—a
forfeiture of eight-tenths of the crop—would insure for the future the
exact payment of the tithe; but its subsequent re-enactment in the reign
of Ethelred,[215] and again in the reign of Canute, will justify a
suspicion that in many places its provisions were set at defiance, and in
many but imperfectly enforced.”[216]
Mr. Fuller, in “Our Title-Deeds,” regards Dr. Lingard’s silence about the
Church Grith law as “inexplicable in every way.” The above quotation, as
regards this law, clearly proves the charge to be groundless.
As Bromton had copied his Anglo-Saxon laws from the old Latin version,
he has not fourteen of the fifteen laws which were omitted in that
version.[217]
“It may be asserted,” says Lord Selborne, “without risk of error, that
_no part_ of the Worcester volume, Nero, A. 1 of the Cottonian collection
was written before the end of Cnute’s reign, who died in 1035, for the
volume begins with Cnute’s laws, which are followed by those of Edgar,
Alfred, Athelstan, Edmund, Ethelred; and after them Grith and Mund,
and Church Grith:—all in Anglo-Saxon, _without break_, and in that
order.”[218]
Every reader of “Facts and Fictions” cannot consult the Worcester
volume to judge for himself whether this statement is correct or not.
Readers generally accept as true what men of position and education
publish, without investigating—for they have not time—the truth of the
subject-matter. Mr. Fuller makes the following candid admission: “In
Thorpe’s ‘Anglo-Saxon Laws,’ i. 342, the tripartite division _seems
expressly sanctioned by law_; it will be therefore necessary for us
to investigate this important fact, and see _if it is not possible to
shake its authority and bearing on the case_.”[219] This is exactly the
spirit with which certain writers attack the law. Let us test the above
quotation from “Facts and Fictions.” The volume contains 184 folios
quarto. Folios 1 to 39 form the first tract in the volume; 42 to 56 the
second; 57 to 68_b_ the third; 71 to 97_b_ the fourth, etc.
There was a good deal of guess work in arranging the tracts in this
order. They were not written by the same hand; some were written early
in the eleventh century, and others in the third quarter of the same
century. The laws of Canute, Edgar, and part of Alfred’s, were written
in the Conqueror’s reign. A large portion of Alfred’s laws is written
in Josseline’s hand, in the 16th century, then a common practice to
complete imperfect manuscripts, and the manuscript of Alfred’s laws in
the Worcester volume is very imperfect. Then the laws of Athelstan
and Edmund may be seen at once to be a much earlier hand, of the first
quarter of the 11th century—the period assigned by Thorpe. There is
a fragment of Edgar’s laws at folio 89, placed between Edmund’s and
Ethelred’s, and in the same handwriting, and fully sixty years earlier
than Edgar’s laws, which are at folios 15 to 41. These facts as to dates
of handwriting can easily be verified by comparing them with charters of
certain dates. I have compared the handwriting in the several tracts with
the charters written towards the end of the 10th century, and beginning,
middle, and end, of the 11th. The Church Grith law was certainly written
before Canute’s death in 1035. There are several breaks in the volume
between the laws of the five kings, although Lord Selborne says, “All in
Anglo-Saxon, _without break_.” The first break is of six folios between
the first and second parts of Alfred’s laws. Then a second break of no
less than twenty-eight folios between the last part of Alfred’s and the
beginning of Athelstan’s. Here, then, are two breaks of thirty-four
folios, and there are seven heads of other manuscripts on different
subjects which are bound up in these breaks of thirty-four folios.
It is quite evident that in the Worcester volume, Nero, A. 1, we have
_two incomplete sets_ of Anglo-Saxon laws, picked up by Sir Robert Cotton
and thus preserved from destruction, which Lord Selborne would lead
one to think were _one complete, continuous set of laws_ of these five
kings. The other parts are lost. I have already given a brief sketch how
our antiquarians collected, as best they could, the tons of manuscripts
which belonged to the libraries of the dissolved monasteries scattered
throughout the country.
Here is one specimen out of many from “Our Title-Deeds,” p. 119, by which
Mr. Fuller attempts “to shake the authority” of the Church Grith Law.
“A document,” he says, “which Selden casts a slur upon, is surely not
one upon which to rest a fact of English history.” Then in a footnote
Mr. Fuller adds, “Selden calls it only a sort of document, and passed
in a Council in a kind of Parliament, and tells us it remains only a
manuscript of or about the time of the _Roman_ Conquest. The preface of
it shall be here first noted, that the authority of it may be better
understood, _i.e._ appraised at its real value.”
Mr. Fuller’s book is dedicated to Lord Selborne, who truly states that
Mr. Selden, in his “History of Tithes,” _made no mention of the Church
Grith document_.[220] Of course, Mr. Fuller is romancing as usual.
Miserable efforts “to shake the authority” of a law. There is not one
word of truth in the whole of the above quotations. “Roman Conquest!”
Utter nonsense.
MR. J. S. BREWER.
Mr. J. S. Brewer in “The Endowment and Establishment of the Church of
England,” supported the tripartite division of tithes. But after his
demise, Mr. L. T. Dibdin[221] has edited a new edition in which he
opposes Brewer’s views. He adopts the views of Archdeacon Hale and Lord
Selborne. He states that the supporters of the tripartite division can
bring forward only spurious canons and laws to prove their case, and then
instances (1) a _spurious passage_ in the “Penitential” of Archbishop
Theodore, for proof of which he refers to “Haddan and Stubbs, ‘Councils,’
iii. 173, note 203”; (2) An alleged law of Ethelred (1013), and adds in
reference to Ethelred’s law, “But the better opinion [he actually blends
together the opinions of Price, Stubbs and Selborne] appears to be that
the code, of which it is a part, is a private compilation or collection
of points of Canon Law gathered indifferently from foreign and home
sources, published tentatively, and not recognised as possessing any
legislative force. With this exception (if it be one), no English law
as distinguished from Ecclesiastical ordinance or opinion, directs the
division of tithe into thirds or fourths, or refers to the supposed right
of the poor to a share.”[222]
As regards the quotation from the well-known writings of Haddan and
Stubbs, they actually held the opposite opinion to that attributed to
them by Dibdin. They state that Theodore’s “Penitential” is genuine. Here
are their words, which may be contrasted with Dibdin’s: “In 1851, at
Halle, Dr. F. W. Wasserschleben, Professor of Law in the University of
Halle, published from a comparison of several continental manuscripts,
the work of the ‘Discipulus Umbrensium,’ which is to be found in our
text.” They then enumerate nine editions of works published under
Theodore’s name. They reject all as spurious except the “Discipulus
Umbrensium,” which they printed from the Corpus Christi College Cambridge
MS. 320. The three eminent scholars, Mr. Haddan, Bishop Stubbs and
Professor Wasserschleben, pronounce distinctly and emphatically in favour
of the genuineness of the treatise of the “Discipulus Umbrensium” as
being the genuine “Penitential” of Theodore. The Cambridge manuscript,
they assert, was written not later than the eighth century, although
the reference to another copy found in lib. ii. c. xii. s. 5 seems to
preclude the idea that it is the original.[223]
Bishop Stubbs, in his history, remarks that in this very “Penitential,”
viz., lib. ii. c. xiv. s. 10, commencing, “Decimas non est legitimum
dare,” _the clergy had not the sole use of the tithes_.[224]
I refer the reader to pp. 20-23 in this book for a full discussion on
this point.
In the second place, as regards Mr. Price’s opinion, I must also refer
the reader to p. 107.
CNUTE’S LAWS.
These laws are divided into three branches, (1) Ecclesiastical, (2)
Secular, (3) Constitutiones de Foresta.
The text from which Mr. Thorpe prints (1) and (2), is Cott. Nero., A. 1,
which was written in the middle of the eleventh century. The text of (3)
is from Spelman’s “Glossarium Archæologicum.” There are twenty-six laws
in (1); eighty-five in (2); thirty-four in (3).[225]
In A.D. 1018 at a Witenagemót at Oxford, Cnute confirmed the laws of
Edgar. “The laws of Edgar,” says Lappenberg,[226] “had shown particular
regard to the Danes dwelling in England, while in those of Ethelred, as
far as we are acquainted with them, similar provisions do not appear.”
This was the true reason for Edgar’s laws having been adopted as a model
by Cnute. He also made use, however, of Ethelred’s laws, especially those
on Ecclesiastical subjects. It is remarkable to find very many of the
articles of “Grith and Mund” and of “Church Grith” embodied in Cnute’s
laws, although much pains have been taken to prove that these laws were
spurious and unauthentic. And yet we find that no less than thirty-six
of the forty-four articles in the Church Grith law are incorporated in
Cnute’s laws! It is interesting to notice how Lord Selborne disposes of
the remaining eight. Five (articles 36 to 39 and 43), he says, are of
that historical, rhetorical, expostulatory and didactic character as are
not proper for laws which could in that or any similar form be enacted
by any legislature. One was omitted apparently as superfluous (_i.e._
41: “If a monk or mass-priest become altogether an apostate, let him be
for ever excommunicated, unless he the more readily submit to his duty.”)
Two remain which were evidently, on consideration, disallowed. One is
for the tripartite division of tithes, of which there is no trace in any
later collection of Anglo-Saxon laws, and one is rejected (art. 32) which
gave extraordinary aid and protection to abbots and their stewards.[227]
Now by rejecting article 32, are we to suppose that the abbots and their
stewards were not to be protected by the king’s reeves? for the article
states, “And the King commands all his reeves in every place that ye
protect the abbots on all secular occasions as ye best may; as ye desire
to have God’s or my friendship, that ye aid their stewards everywhere to
right, that they themselves may the more uninterruptedly dwell closely in
their minsters, and live according to rule.”[228]
It has escaped Lord Selborne’s notice that Cnute’s confirmation of
Edgar’s law, which grants one-third of the tithes to the manorial
priests, comes to the same thing as the threefold division of tithes in
the Church Grith law. The principle is the same in both, namely, that the
manorial priest, or the priest of the mother church, was legally entitled
to no more than one-third part of the tithes, and that the modern use of
taking _all the tithes_ was contrary to all rules, laws, and customs.
They were never originally given, and would never be given to the priests
on any such condition, namely, to convert them all to their own personal
use—in fact, to be their own private property or income, as is the case
now.
Now the great and important question is, “When and in what way did the
manorial priest acquire the other two parts?” How did the third, asks
Lord Selborne, pass into the whole? His answer is, “There is not, as
far as I know, so much even as a canon of any council, or a decree
of any Pope in the nature of a legislative act, enlarging the right,
or appropriating tithes generally, to parish churches in England or
elsewhere.”[229]
His conclusion is, that as the laity were at liberty to give their
tithes to whatever church they wished, “they might with equal right
and reason endow parish churches on their own estates with the predial
tithes of their lands within the parishes; and the probability was that
they would do so. No more likely explanation of the general prevalence
of such parochial endowments, where churches were not appropriated to
monasteries, has yet been suggested.”[230]
Lord Selborne’s statement is very plausible, but will not stand
investigation. The incumbents were only trustees, and as such received
all the tithes. They had a common law right to a usufructuary part only,
so had the poor and strangers and the church fabric. But in the various
changes which took place in the thirteenth and fourteenth centuries the
trustees gave what they liked of the tithes to the poor, and also placed
the expenses of repairing the church fabric upon the parishioners. It
is too much to assume that the poor and strangers were in a pecuniary
position to appeal, as Lord Selborne and others assert, to the superior
courts and claim their share of the tithes. A body representing the poor
with funds at their disposal might have done so, but it is really too
much to expect that the individual poor person had his or her “legal
remedy,” as they assert, against the parson for his or her part of
the tithes. The fact is, that the incumbents began in the thirteenth
century to consider themselves not as trustees but actual owners of all
the tithes of their parishes, and doled out to the poor some alms, and
therefore kept up a semblance of assisting the poor. It is remarkable
that lay and clerical rectors in receipt of the rectorial tithes are
bound, up to the present time, to keep the chancel of the church in
proper repair, and if blown down, to rebuild it. This is a remnant of
the original claim on the tithes to repair the fabric of the church.
The monastic rectors set the example of totally neglecting to repair
the churches appropriated to them, and the parishioners, for their
own comfort and convenience, collected funds among themselves to keep
the churches in repair, although it is a fact that the owner of the
rectorial tithes was bound by common and canon law to keep in repair the
whole church fabric, including not only the chancel but also the body
of the church.[231] The secular rectors were not slow in following the
example of the religious rectors, and in course of time they saddled
the parishioners with the expenses of repairing the body of the church.
The present trustees have therefore misappropriated all the tithes to
their own use. Again, it is stated by Lord Selborne and others that when
the poor laws were enacted, Parliament would have made the tithe-owners
contribute to the support of the poor, if it thought they were bound to
set apart a portion of the tithes for this purpose. But who were then
the law-makers? The majority of them were then in possession of the
extensive monastic tithes, and landed properties. It is well known that
the properties were handed over to them subject to the same burdens which
had been attached to the same properties when they were in possession of
the monastic bodies; but the new owners ignored these burdens.
CHAPTER XI.
_THE FIRST POOR LAW ACT._
The first Act for the relief of the poor was passed in 1535 (27 Henry
VIII., c. xxv.).
“All governors of shires, cities, towns, etc., shall find and keep every
aged poor and impotent person which was born or dwelt three years within
the same limit, by way of voluntary and charitable alms, etc., with such
convenient alms as shall be thought meet by their discretion,” etc.
It was in this year (1535) that the lesser monasteries were dissolved. So
the first poor law was enacted, to provide for the poor and impotent, in
the same year in which the dissolution occurred.