that none of the said Arch-Bishops c. be thereof chargeable of to It seems a Canon would not justifie an Imprisonment or upon any Action of false or wrongful Imprisonment but that they be utterly thereof discharged in any of the cases aforesaid by vertue of this Act. This Law for ought I know stands still in force 31 H. 8. c. 14. made Felony to use their own Wives but there was a severe Law made in the 31 H. 8. whereby it was made Felony for a Priest carnally to use a Woman to whom he had been Married or contracted or if he kept company or familiarity with her or if any Priest kept a Concubine as by paying for her board maintaining her with Money or other gifts or means to the evil example of others he should forfeit all his Goods Cattels and Spiritual promotions and be put in Prison for the first offence and the second offence to be Felony But this seeming too severe was the next Year repealed and it was enacted 32 H. 8. c. 10. mitigated That such Offender should for the first offence lose all his Goods Chattels and Debts and lose the profits of all his Ecclesiastical promotions but one for his life for the second offence to forfeit his Goods Cattel and Debts and the profits of all his Lands and of all his Spiritual Benefices Promotions and Dignities for his life And for the third offence should make the like forfeiture and be Imprisoned during life By an Act of Parliament made in the 31 of H. 31 H. 8. c. 14. The 6 Articles makes the marriage of Priests Heresie 8. which is commonly called the Act of the six bloody Articles by the third Article it was declared that Priests after they have received Orders might not Marry and to affirm the contrary thereof was made Heresie and Treason by that Act but this bloody Act was repealed by 1 E. 6. cap. 12. By the Statute of 2 and 3 E. All Laws against marriage of Priests made void 6. cap. 21. all Laws Statutes Canons and Ordinances and Constitutions made against the Marriage of Priests are made null and void And by another Statute made the fifth and sixth of E. Children legitimate 6. cap. 12. It is adjudged and declared that the Marriage of Priests is Lawful and legitimates their Children and makes them capable to endow their Wives and to be Tenants by the Courtesy But these Laws were repealed by the Stat. of 1 Mariae cap. 1. However it came to pass I know not 1 Jacob. c. 25. but for ought I can find these Acts lay repealed all Queen Elizabeth's time till 1 Jac. then the latter Act was revived and made perpetual and their Children made ligitimate So that upon the whole matter all acts of Parliament Canons Constitutions c. that restrain the Marriage of Priests or the Illigitimation of their Children are made null and void but the Canons and Acts of Parliament that punish their Incontinency stand in force Next let us see what Priviledg the Clergy have right to at this day CHAP. XI The Eleventh Chapter shews what Priviledges belong to the Clergy at this day by the Common and Statute Laws of this Realm THE Laws of this Realm have allowed the Clergy in holy Orders many great Priviledges First The Priviledge of the Clergy 2 Inst 3⸪ 625. 4⸪ May not be Officers temporal 5 E. 3. c. 5. 1 R. 2. c. 15 Must not be arrested in Church or Church-yard in their Persons they are not compellable to serve in any Temporal Office as Sheriff Constable Overseer of the Poor c. Neither can they be prest to serve in the Wars neither may they be arrested in the Church or Church-yard when they are attendant on divine Service upon pain of Imprisonment and ransom at the Kings pleasure and likewise to make agreement with the Party And by a Statute made i. 1 Mariae Sess 2. cap. 3. Most not be distarbed praying or preaching Mariae It is enacted That if any Parson c. of their own Power and Authority at any time c. shall or do willingly or of purpose by open and overt word fact act or deed maliciously or contemptuously molest lett disturb vex or trouble or by any other unlawful way or means disquiet or misuse any Preacher or Preachers c. licensed allowed or authorized to preach by the Queen or by any Arch-bishop or Bishop of this Realm or by any other lawful Ordinary or by either of the Vniversities c. or otherwise lawfully authorized or charged by reason of his or their Cure Benefice or other Spiritual Promotion or Charge in any of his or their Sermon or Collation in any Church Chappel or Church-yard or in other place appointed to be preached in Or if any Person c. shall maliciously willingly or of purpose molest lett disturb vex disquiet or otherwise trouble any Parson Vicar Parish-Priest or Curate c. saying doing singing ministring or celebrating mass or other divine Service Sacraments c. that at any time then after shall be allowed set forth or authorized by the Queen's Majesty That the Offender upon Conviction before two Justices of the Peace shall by them be committed to the Goal without bail or mainprise for three months and after to the next Quarter Sessions where if he repent and be reconciled then to be discharged of his Imprisonment finding sureties for his good behaviour and if he fail therein to be continued till the next Quarter Sessions c. This Act though made in the time of Popery is still in force and may be executed upon such as disturb the present Ministers Parsons Vicars and Curates c. And though it refer to such Church-Service as then after should be settled by the Queen yet I conceive it extends to her Successors and a settlement by Act of Parliament is a settlement by the King in the most superlative manner and the late Act for Uniformity declares and enacts 14 Car. 2. c. 4. that all former Acts for Uniformity of Common Prayer shall be of force and extend to the Book of Common Prayer The Bodies of Clergy-men cannot be arrested upon any Capias sued forth upon any Statute-Staple or Statute-Merchant Must not be arrested for the Process are made out conditionally Si Laicus fuerit and if the Sheriff or any other Officer arrest a Clergy-man upon any such Conditional Process I conceive an Action of false Imprisonment lyes against him that does it or he may have a special Supersedeas out of the Chancery Regist 147. that is the Cursitors Office Priviledg in their goods Regist 260. a. Free from Tolls And every Parson Vicar c. is by the Common Laws of England free from the payment of any tolls in all Fairs and Markets not only for all the Goods and Merchandizes gotten upon their Church-Livings but also for all Goods and Merchandizes by them bought to be
in what cases Deans Prehends c. are restrained by 13 Eliz. 97. Parsons and Vicars restrained by it 98. where upon a concurrent lease the former must determine within three years 98 but not so for Bishops 99. where a Parsons lease shall be void by non residence 99 100 110 whether void against himself ibid. houses in Corporations how to be leased 100. not in reversion 101. what by Bishops and Archbishops 103. by Deans Prebends and Colledges where good 105. from what time leases must commence 105. a Parson leases and resigns 112 Parson leases which is confirmed and then becomes non-resident 112. Bonds and Covenants for leases where void 99. and Promises 101 113. of Colledges and Hospitals where good 114. where a lease shall be good a former in being 115. Surrender enter sealing and delivery ibid. L. Litigious where a Church shall be said to be so 11. where by a Jure patronatus 12. where after a Jure patronatus 12. The Bishop may admit either Clerk without a Jure patronatus at his peril 14. London How Tithes are to be paid 256. M. Marriage of Priests forbid by Canons presented and by whom and how 122. Jo. de Lerma who prosecuted it taken in bed with a whore 123. how forbidden by the Apost Canons 123. made Felony to use their Wives or company 127. after mitigated ibid. to affirm a Priest might Marry made Heresie and Treason 128. all Laws against their Marriage repealed and their Children legitimated 128. that Act repealed and after revived ibid. Mast vide Seed Milk vide Calves Modus vide Prescription Monastery Lands where freed of Tithes 230. how many ways they may be discharged 231. what orders were free from payment of Tithes 233. in what Cases the lesser Abbies may be free 235. not of Lands purchased after 1215.237 Mortuaries what and how and where due 251. N. Notice of Resignation Deprivation where requisite and how to be given 9. 10. O. Oblations and Offerings what and in what Cases due 247. Ordinary vide Bishops P. Parliament 22. Pardon of Simony the effect 54. Parson what he is to do at before and after Institution and Induction 159. he must be a Priest ibid. he must subscribe and have a Certificate ibid. he must read the 39. Articles and how 60. he must declare his assent and the form 60. the danger of failing in any of these 61. they must be repeated upon taking a new Living 61. good advice to the Parsons ibid. what age a Parson must be 64. of a Living of 30. pounds per annum who may be 64. he must be conformable 65. when and how oft he must use the Common Prayer 65. before every Lecture 66. the penalty for using other Forms 66. he must maintain no Doctrine Repugnant to the 39. Articles 67. who may be a Parson 1. 2. 3. Personal Tithes quid and where due 243. Piggs vide Calves Pluralities quid 19. Canons against them 19. the mischief of them 20. acceptance of a second Living makes the first void 21. as to the Patron without sentence ibid. but not as to lapse ibid. Act of Parliament against it 22. which shall be said a Living of 8 pounds per annum c. 23. a Parson not qualified may have a plurality 24. who are qualified by service to have them 24. who by birth 25. who by degree ibid. he that takes a plurality must have a Testimonial 26. how to proceed in the taking of them 27. the first void by institution into the second 27. which Chaplains where above the number is retained 28. the Master dies before preferment 28. the Mistress Marries before 29. becomes a Widow again ibid. Marries under her degree ibid. what Livings and preferments do not make a plurality 22. none has a double capacity to qualifie cap. 30. Chaplains retain per filium in vita prioris 30. Master discharges Chaplain after he is preferred 30. retains a greater number than he ought which shall be qualified 30. is instituted before a dispensation 31. the King cannot dispence with this Law 31. inducted in a second Living and does not read the 39. Articles and 31. a Clerk qualified is made a Bishop his qualification ceases 31. plurality by union 32. a Vicar is made Parson of the same Church 32. two Rectories in one Church but one Curate 32. the effect of taking the power of dispensation from the Pope and putting it in the Nobility 33. the prejudice introduced 19. how many qualifications there are in England 33. in Margin of what Livings at first ibid. Pope several Acts of Parliament to restrain his usurpations 21. and 22. a damnable Custom alledged to be in his Court of Rome to exact undue Fees 22. Priests who may be and at what age 64. Prescription and modus decimandi qd and why Ecclesiastical Courts reject customs and modus decimandi 203. how they differ from customs and justified by reason 204. confirmed by Parliament 204. who may prescribe in non decimando 206. who in modo decimandi 208. a modus to do two things and one fails 209. for Houses 209. which Prescriptions de modo decimandi are good 210. for Wool and Lamb ibid. for Corn 211. for Wood 212. for Calves and Milk ibid. Eggs ibid. for Lands in lieu of Tithes 213. for Head lands Balks c. 213. Bees 214. Herbage ibid. for fewel 215. for Parks ibid. to the Vicar for Parsons Tithes 216. how it may be lost 218. from what time 232 c. Presentation the form thereof 4. how to proceed upon it 5. what time the Patron has to present 8. and 9. where his Clerk is refused for just cause ibid. Priviledges what the Clergy have at this day in England may not be compelled to serve temporal Offices 129. 133. not to appear at the Sheriffs turn 132. not to be arrested in what cases upon a Statute 131. not to be disturbed 130. pay no toll 132. nor pontage murage c. ibid. sue in the Spiritual Court for battery 133. Collector of Tenthes may not disturb them 133. in criminal causes 133. freed from purveyance 134. amerced for their Church livings no execution on the Goods of the Church ibid. confirmed by several Acts of Parliament 135. Procurations qd where due and how 201. Prohibitions granted sur modus decimandi 279. to try the bounds 279. for Monastery Lands ibid. quia suit for Tithes of things not Tithable 28. quia matter triable at Law ibid. because they proceed against Law or reason 280 must present a Copy of the libel 281. where the suggestion must be drawn up 281. where peremtory 282. how to be prosecuted and defended 283. where grantable after Consultation 284 286. Consultation special ibid. must prove the suggestion within six months 281. how they must be accompted 285. the benefit and damage by them 287. R. Real Composition qd and the effect 226. Recovery in what Courts antiently 263. where the Spiritual Court may determine the right of Tithes 264. and where not
266. in what cases the Temporal Courts may 278. and where not 265. the Spiritual Jurisdiction confirmed by Acts of Parliament 267 268 276. the remedy where the Spiritual Court is not obeyed before Sentence 269. where after Sentence 271. 2 E. 6. extends only to predial Tithes 275. Residence jure divino 20.68 non residence of 700 years not dispensed with in the Western Church 68. an Act of Parliament against it 69. the end of that Law 70. who may be non-resident 71. a Pluralist Master dyes he may not be non resident 72. Bishop how to be compelled to residence 73. where it shall avoid the Parsons Lease 99. where he may demise and be non resident 100. the penalty for non-residence and how to be recovered 102. S. Seeds fruit mast bees how to be Tithed 177. Scire facias in what cases the right of Tithes is determinable therein how taken away 291. Simony qd 35. Canons against 36. the little effect of them and the reason 37. distinction inter Simoniace Simoniacus ibid. Act of Parliament against 38. the Penalty of the corrupt Patron 41. where he shall lose his Presentment 42. where the Clerk not privy shall be disabled 42. what Contracts shall amount to Simony 45. bonds for resignation 47. examinable in the Spiritual Court 56. c. advise against such bonds 51. what covenants and agreements amount to Simony 51. who may take advantage of it 53. in giving above the Fees for Institution 55. for resignations and exchanges 56. by corrupt giving Orders or License to preach 57. how the forfeitures are to be recovered 58. Pardon inde qd valet 54. Synodals what and where due and to whom 202. T. Tenths what where and to whom due 200. and what remedy for the Successor for arrears incurred in the time of his Predecessor 207. Tithes qd and quotuplex 141 c. Majores qd 144. Minores qd ibid. quo jure debito 145. to whom due 146. the parochial right when and how it commenced 147. who is capable of them in pernancy 149. due to the Rector prima facie 150. extra-parochial to whom due 151. Portions in another Parish 151. to whom due in particular cases 152. in the vacation 153. if Vicars and Parsons shall pay to each other 153. may belong to a Chappel 153. of what things due 154. of what things not due 184. what priviledg in the Lands where c. 191. V. Voidance when a Church shall be said void by taking or giving above the usual Fees for admittance 55. W. Wood Canon for it 157. complaints against the Canons in Parliament ibid. limited by Statute 158. declaration of the Common Law ibid. questioned if an Act and answered 159. Silva caedua qd 160. what shall be said great Wood 160. of what Tithe shall be paid 161. Nurseries ibid. Toppings ibid. 162. Bark ibid. Dotards ibid. great and small Wood mixed 163. by whom to be paid ibid. Prescription in not Tithing where good ibid. how to be paid 164. THE Parson's COUNSELLOR CHAP. I. The First Chapter shews Who may or may not be a Parson Vicar c. HAVING taken upon me to shew how to make a compleat Parson Vicar c. Who may be a Parson or Vicar It will be necessary in the first place to shew who is capable of being so And in the first place He that is to be a Parson must regularly be of free Condition competently learned skilled in the Language the People speak or understand where he is to be Parson Vicar c. Next he must be twenty four years of Age conformable to the Government and Doctrine of the Church of England and not criminous outlawed excommunicate 5 H. 7.20 a. Co. 5.58 aâ— Lindwood c. â—os qui de non c. Ibid. 14 H. 7.28 b. Jew or miscreant and must be free from Symony And a man that is a Bastard is not capable to be a Priest nor by Consequence a Parson but in this Case Dispensations are frequently granted So a man that is not of free Condition but a Villain or a Miscreant that believes not the Truth an Infidel that resists the Truth a Jew Schismatick or Heretick that do not believe aright cannot be Parsons c. So if a man be criminous Dyer 293. p 3. 38 E. 3.2 a. that is guilty of murder manslaughter perjury forgery or other foul Crime that is malum in se cap. Imprimis infra Lindwood is not capable to be a Priest Parson Vicar c. And the Bishop may refuse to accept such Parson if presented to a Living and it matters not whether the Party be convict of this Crime or not So that the Ordinary have certain knowledg of the truth thereof But for a man to be guilty of haunting of Ale-houses or Taverns Co. 5.58 a⸪ or a player at unlawful Games which are only malum prohibitum and not malum in se it is no Impediment to his being a Parson Vicar c. So if a Man be illiterate Dyer 293. b. p. 1 2 3. 254. b. p. 2. Albany vers Evesque Lich. M. 26 27 Eliz. C B. 10.20 â—3 Lucas vers Evesque Bath p. 3. El. C. B. per Bendloes Stat. 14 Car. 2. cap. 14. and cannot speak a Language his Parishioners understand he ought not to be admitted to be Parson of such Parish but may be rejected by the Bishop c. For it is all one not to be able to instruct his Parishioners in the truth by reason of Ignorance as not to be understood for when the blind leads the blind both fall into the ditch At this day no man may be a Parson before he be a Priest in Orders nor can he * Stat. 13. El. cap. 12. be a Priest before he is twenty four years of age and so by consequence no man can be a Parson regularly till he be past twenty four years of Age. And for this reason a Bishop c. 1 Leonard 130. may refuse a Clerk because he is not in orders but he cannot refuse him because he wants a Testimonial Neither can any man be Parson of that Church Vide postea cap. 5. for the obtaining whereof he hath been guilty of Symony as shall be shewed more at large in the Chapter of Symony And regularly all things that are causes of Deprivation are just causes to make a man incapable of a Living and for which the Bishop c. may refuse to admit such Clerk And note Lindwood c. cum à jure inhibitum c. the Son is made incapable to succeed his Father by several Canons CHAP. II. The Second Chapter shews how one that is fitly qualified to be a Parson ought to behave himself in obtaining a Living A Person so qualified as the Law requires must without any corrupt or Symoniacal Contract obtain a Presentation from the right and undoubted Patron of the Church whereof he designs to be Parson which may be in this Form Reverendo in
or of the stubble of Corn But if the Meadowing be so rich that there is two crops of Hay got in one Year or two crops of Woad c. there the Parson shall have Tithe as well of the later as of the former Crop If a Man gather green pease to spend in his House Rolls 1.647 a. 11 12. Green Pease and there spend them in his Family no Tithes shall be paid for the same but if he gather them to fell or to feed Hogs there Tithes shall be paid for them Neither shall Tith Hay be paid for the Grass growing upon head-Lands Headlands Roll 1.646 z. 19. which are only large enough for the turning of the plow But Tithe shall be paid of the Hay and Corn growing in Orchards 2 Inst 652⸫ Orchards though the Tith of the fruit growing in them were paid the same Year be it Apples Pears Cherries c. There hath been some question about fodder gotten in the feen Lands in Cambridgshire and elsewhere More 683. Cro Jac. 47⸪ Fodder and spent upon beasts of the Plow and Pail whether it should pay Tithes or no but it hath been resolved that Tithes shall as well be paid of this Fodder as of other Hay spent upon the Beasts of the Plow and Pail But it has been resolved Grass out in Meadows for Beasts of the Plow Wells vers Crawly T. 1. Car. 1. B.R. Tares Vetches cut green Cro. Car. 393. Jones 357⸪ that for Grass cut in Meadows to feed the Beasts of the Plow and not made into Hay that Tithes should not be paid thereof It hath been resolved that Tares Vetches c. cut green for the feeding Beasts of the Plow by Custom may be freed from the payment of Tithes but not without Custom CHAP. IV. The Fourth Chapter sets forth where and in what Cases and in what manner the Tithes of Wood are to be paid IN the time of Stratford Arch-Bishop of Canterbury How and where Tithe Wood is to be paid in or about the 17th Year of the Raign of E. 3. 1343. there was a Provincial Canon or Declaration made to this effect Declaramus provisiône concilii sylvam coeduam illam fore Canon Lindwood c. Quanquam ex solventibus c. quae cujuscunque existens generis arborum in hoc habetur ut caedatur quae etiam succisa rursus exstirpibus aut radicibus renascatur ac ex ea decimam ut pote realem praedialem parochialibus seu matricibus Ecclesiis persolvendam nec non Sylvarum possessores hujusmodi ad praestationem decimarum Liguorum ipsorum Excisorum in eis sicut faeni bladorum omni censura Ecclesiastica fore Canonicè compellendos But in or about the same Year there was a Petition in Parliament Exact Abridgment p. 40. nu 51. ibid. 80. num 37. that no Man should be impleaded in Court Christian for the Tithes of Woods or under-Woods but in places accustomed which was answered As heretofore the same shall be The like Petition was in the 25th Year of E. 3. and other Parliaments till at the length in the 45th Year of the same King an Act of Parliament was made to this effect reciting That whereas they sell their great Wood of the age of twenty years or of greater age to Merchants to their own profit St. 45. E. 3. c. 3. Statute not to be paid of great Wood. and in aid of the King in his Wars Parsons and Vicars of Holy Church do implead and draw the said Marchants in Suit in the Spiritual Court for the Tithes of the said Wood by the Name of Sylva caedua whereby they cannot sell their Woods to the very value to the great dammage of them and the Realm It is therefore by that Law ordained and established that a Prohibition in this case shall be granted and upon the same an Attachment as hath been used before this time By which it appeareth that this Act of Parliament was but a Declaration of the Common Law Prohibitions and Attachments thereupon in such case having been formerly used 9 H. 6.56 a⸫ T. 27 E. â—0 28 a. Prohibition in Point 50 E. 3 10.a⸪ and so was Paston's opinion 9 H. 6. This Act of Parliament was after questioned by the Clergy pretending it did not pass as an Act of Parliament but only as an Ordinance and so not binding And thereupon the Commons in the next Parliament petitioned Exact Abridg. 118 nu 21. that it might be enacted that for Wood above twenty Years growth no Tithes should be due and that in all such cases a Prohibition might be granted To which was answered that such Prohibition should be granted as then before had been used But Sir Edward Cook in his Commentary upon Magna Charta does sufficiently prove it was an Act of Parliament 1. Because it is entred upon the Parliament Roll amongst other Acts of Parliament 2. 2 Inst 643⸪ 644⸫ It is under the Title in that Roll of Statutes of E. 3. Anno regni sui 45. 3. It was proclaimed with the rest of the Acts of that Parliament 4. It is penned in the form of an Act of Parliament viz. it is ordained and established 5. It hath the consent of the Lords and Commons 6. There hath been infinite Prohibitions upon it To which let me add that in the Parliament of 8 R. 2. 8 R. 2. Exact Abridgment of Records nu 21. It was owned for an Act of Parliament in which Parliament 't is like many of the Persons were present that were at the making of the said Act. And in 9 H. 6. 9 H. 6.56 a⸫ Exception was taken to the Prohibition because it was not grounded upon this Statute And in the 11 H. 4. 11 H. 4.9 a. it was affirmed by Thirming to be an Act of Parliament and in force Seld. hist decim 236. 2 Inst 643⸪ 644⸫ Roll 1 637⸪ 638 639. But whosoever desires more satisfaction in this point I refer them to Mr. Selden's History of Tithes and the other places mentioned in the margent Notwithstanding this Act many questions were startled what was Sylva caedua and many Petitions in Parliament to have it declared to which I find no positive answers but sometimes referred to usage and sometimes the King took time to advise But Belknap a learned Judg Sylva caedua quid 50 E. 3.10 b⸫ 50 E. 3. declares that Sylva caedua is to be intended every manner of Wood that may be cut and will grow again which all manner of Wood will do as he there says if it be preserved from Cattel and therefore the Defendant in the Prohibition in that case was put to Traverse that he sued not in the Spiritual Court for the Tithes of gross Woods So that the question at this day chiefly is what shall be said gross Woods To which question The Judges of the Common Law have resolved 2 Inst 643⸫ What shall be said great Wood.
which are still enjoyed by the Clergy but also of the impropriations as I take it Synodals is another charge upon the Parsons Synodals Vicars c. and is likewise paid to the Arch-Deacon not by any certain rule but by some antient Taxation so that some pay more and some less I must confess I cannot find how this payment first became due but by the name it should seem to be a contribution to the Arch-Deacon's charge in the Synods they being antiently elected by the Deacons themselves as their representative But it should seem Dugdales Warw. 126 b⸫ that the Arch-Deacons claim these Synodals for their Easter visitation and the Bishops have laid some claim to them but as my Author conceives without any just reason the Arch-Deacon and his Officers performing the Labour and undergoing the Charge All these charges the secular Clergy undergo which takes away a considerable part of their Revenues CHAP. XVI The Sixteenth Chapt. shews how far prescription will prevail in the manner of Tithing and in what cases the Parson Vicar c. shall be bound by a modus decimandi THe Canonists and those that are of opinion that Tithes are due jure divino The force of a modus decimandi in Tithing Lind wood cap. Quoniam propter verbo redemptionem decry all Customs and Prescriptions that either diminish the tenth part or acquit the whole for in truth no Custom or Prescription can be good which is positively against the Law of God And that is the reason why it is frequently said in our Law Books Co. select cases 46⸪ that the Ecclesiastical Courts will not allow a modus decimandi But the Common Lawyers allow Tithes to be due Common Law and Canon differ Concerning Customs c. Jure Divino secundum quid that is quoad sustentationem cleri but not quoad decimam aut aliquam aliam certam partem and therefore they allow of a manner of Tithing which diminisheth the quantum or a Custom of not Tithing for this or that particular thing so there be a sufficient maintainance for the Clergy besides and of the same opinion are some of the most eminent School Men Tho Aq. Sum. 2. 2ae and in this Tho. Aq. Sum. 2. 2ae q. 87.1.0 as in all other things where the Common Law and Canon or Ecclesiastical Laws differ the Common Law is to be preferred The difference between Custom and Prescription I have shewed before in the thirteenth Chapter The difference between Custom and Prescription But before I proceed upon this Subject I must beg leave of the Reader to say something more in vindication of the Common Law The Common Law vindicated which in this point I conceive does not differ materially from the Ecclesiastical and civil Law for if I do not very much mistake the Canonists and Civilians Lindwood c. Quoniam propter verb. Redemptionem they do at this day allow of real compositions in discharge of Tithes that is where the Parson Patron and Ordinary do by deed agree to accept of a certain sum of Money yearly or so much Land or other profit though not to the full yearly value in discharge of the Tithes growing and arising upon such Lands as they agree for now what is this but a modus decimandi and a prescription to maintain this modus is no more than a supply to prove a real composition which was made beyond all memory and lost and it were against all Justice and reason that if a Man should be plundred of or lose his Deeds that he should thereby lose his Estate And it must necessarily be intended Seld. hist Decim 408. that every modus decimandi that has continued time out of mind must have a reasonable and legal commencement and must be intended that it began by a real composition A Rent charge cannot be created but by Deed and yet it may be claimed by prescription supposing a Deed preceded the like Law is of all Canons c. And St. German in the Doctor and Student puts this case Lib. 2. cap. 55. f. 67. a⸪ that if it were ordained for a Law that all payment of Tithes from thenceforth should cease and that every Curate should have a certain Portion of Land assigned to him or a Rent or Annuity which should be sufficient for his maintainance and those that served under him or that every Householder should give a certain sum to that use that this were a good Law and grounded his opinion upon this saying of Doctor Gerson a great Doctor in Divinity Solutio decimarum sacerdotibus est de Jure Divino quatenus inde sustententur sed quoad tam hanc vel illam assignare aut alios in alios redditus commutare positivi juris existit And this commuting Tithes into annual Salaries is frequently practised in the Protestant Churches beyond Sea as I have been informed And these prescriptions de modo decimandi Prescriptions are confirmed by Parliament are not only allowed by the antient Common Laws of this Realm but confirmed by Act of Parliament For by the Stat. Stat. 2. E. 6. cap. 13. of 2 E. 6. it is enacted that no Person shall be sued or otherwise compelled to yield give or pay any manner of Tithes for any Mannors Lands Tenements c. which by the Laws and Statutes of this Realm or by any Priviledg or Prescription are not chargeable with the payment of any such Tithes or that be discharged by any composition real and having said thus much in vindication of the Common Law I shall proceed to shew what Prescriptions and Customs de modo decimandi vel de non decimando are good and allowed at Common Law First who may not prescribe in non decimando Seld. Hist decin 409⸫ Rolls 1.653 H. no Lay-Man can prescribe in non decimando that is to be discharged absolutely of the payment of Tithes and to pay nothing in lieu thereof unless he begin his prescription in a Religious or Ecclesiastical Person and derive a Title to it by Act of Parliament But all Spiritual and Religious Persons who may prescribe in non decimando as Bishops Abbots Priors Deans Prebends Parsons Vicars c. may prescribe in non decimando and their Farmers may make use of such prescriptions to free themselves from the payment of Tithes And hence it is that the Parson or Vicar of one Parish that hath part of his Glebe lying in another Parish may prescribe in non decimando for it Rols 1.653 H. 3. that is as hath been said to be free from the payment of any manner of Tithe for it But Church Wardens who have Land belonging to their Churches cannot prescribe in non decimando because they are neither Religious nor Spiritual Persons Rolls 1.653 H. 6. Church Wardens not It hath been held that a Bishop may prescribe that he and his Tenants for Life Rolls 1.653 H. 7. A
But it seems some of the Canonists and Civilians are of opinion that all Compositions between the Lay and Clergy to be discharged wholely of payment of Tithes or to pay less in recompence than the full value are invalid but otherwise between Clergy-men but by the common Law which must govern here there is no such difference allowed but all real Compositions made as aforesaid are good and valid But note Hob. 176⸪ that no Composition made by parol or word of mouth only and not reduced into writing under hand and seal is binding at all unless it be upon Record as by Fine c. But I conceive at this day no real Composition can be made to bind the Successor of the Parson or Vicar that makes the same for they are now restrained by the Stat. of 13 El. 13 El. cap. 10. to make any Grants other than for twenty one years or for three Lives with the other qualifications mentioned in the said Act. So that it seems clear to me that Parsons and Vicars at this day notwithstanding the confirmation of the Patron and Ordinary cannot charge their Benefices or any thing belonging to them other than for twenty one years or three Lives as aforesaid and that only by Leases confirmed by Patron and Ordinary of things usually demised whereupon the accustomed yearly Rent or more is reserved So that what has been said concerning real Compositions is only to be intended of such as were made before that and other later Statutes for I take it a real Composition at this day will only bind the Parson himself whilst he is Parson Resident and serving the Cure quod nota CHAP. XXI The One and Twentieth Chapter shews what Monastery Lands are or may be free from the Payment of Tithes IT is without Dispute Jones 373⸪ 188⸫ Stat. 27 H. 8. cap. 28. What Monastery Lands shall be freed from payment of Tithes that none of the Abby Priory Lands that came to the Crown by the Statute of 27 H. 8. or before are freed or discharged of the payment of Tithes by the Statute of 31 H. 8. c. 8. or by any other Law or Act of Parliament But in the Statute of 27 H. 8. there was a Proviso that notwithstanding that Act the King might by his Letters Patents under the great Seal of England continue any of the said Monasteries and that Proviso is left out of all the modern Prints only Rastal in his abridging of that Statute makes some mention of it Now the Reader must observe once for all that all Monasteries under two hundred pounds per annum were to have been dissolved by the Statute of 27 H. 8. and are therefore usually called the smaller Abbeys and those of two hundred pounds a year and upwards were not dissolved till the 31 year of H. 8. and are commonly called the great Abbeys And upon these two Statutes this Case lately happened in the Exchequer Chamber between Walklate Farmer of the Rectory of Vttoxater in the County of Staff to the Dean of Windsor and Wilshau Owner of a Farm in that Parish that was parcel of the possessions of the Abbey of Croxden in the same County which was one of the small Abbeys and of the Cistertian Order which was freed of the payment of Tithes as shall be shewed hereafter and this Abbey was discovered by the Defendant Wilshau to be continued by Letters Patents under the great Seal of England 31 H. 8. c. 13. and so not dissolved till the Statute of 31 H. 8. whereupon the Defendant was dismissed and discharged of payment of Tithes by the Stat. of 31 H. I mention this Case at large for the singularity not for any nicety in the Learning of it By the Statute of 31 H. 31 H. 8. c. 8. 8. before mentioned there is a Clause to this effect That the King and his Patentees The Clause of 31 H. 8. that frees Abbey Lands which then had or then after should have any Monasteries Abbathies Priories Nunneries Colledges Hospitals Houses of Fryars c. or any Mannors Lands c. which did belong to them should have hold retain keep and enjoy the said Mannors c. according to their Estates and Titles discharged and acquitted of the payment of Tithes as freely and in as large and ample manner as the said Abbots c. or any of them had held occupied possessed used retained or enjoyed the same or any part thereof at the days of their dissolution And the Reader is to observe that the Abbots c. at the time of their dissolution held their Lands discharged four manner of legal and regular ways which were allowed by the Laws of this Realm to wit 1. By the Bulls of Popes 2. By real Compositions with the Parson c. Patron and Ordinary 3. By Prescription And 4. By Order But there is another sort of discharge though not a Legal one has been allowed in this Case to make a 5. sort of discharge and that is perpetual unity where the Abbot has had the Rectory of any Church and Lands in the same Parish time out of mind which have been held free from the payment of Tithes by all the time of memory and of these several discharges I will speak in order And first of discharges by the Popes Bulls it is to be understood Bulls that when the Pope usurped a power over the Clergy here in England he did at his pleasure grant Exemptions to this or that Abbey or to whom else he pleased to be freed from the payment of Tithes which was allowed as a good discharge against the Parsons and Vicars who in many places suffer by these Bulls to this day these Bulls being turned into Prescriptions c. The second sort of discharges was by real Compositions between the Parson or Vicar Real Compositions and the Abbots Priors c. confirmed by the Patron and Ordinary of these we have spoken at large before in the twentieth Chapter and therefore shall not repeat it but pass to the third sort of discharges The third sort of Discharges is by Prescription of which we have likewise spoken at large before in the sixteenth Chapter to which I shall refer the Reader I shall only observe to the Reader again in this place That the Abbots Priors and other religious persons might prescribe generally to be free from the payment or to be discharged of the payment of Tithes without any recompence to the Parson c. but a Layman could not prescribe absolutely to be free from payment of Tithes but sub modo that is paying or doing something to or for the Parson Vicar c. in recompence and satisfaction of the Tithes as you may at large see in the Chapter here before And it is to be observed that no Abbot Prior c. could make any such Prescription by the Common Law that was not founded before the time of memory that is before the first year of R. 1.
shews what Personal Tithes are and in what manner they are payable THE Canonists define personal Tithes thus Lindwood cap. Quoniam propter verb. decimae personales What personal Tithes are and where payable Decimae personales sic dictae quia potius in respectu personae solvuntur quà m rei ut puta de artificio negotiatione militia And by the Canon Decimae personales solvantur de artificibus mercatoribus The Canon scilicet de lucro negotiationis similiter de carpentariis fabris caementariis Textoribus pandoxatricibus omnibus aliis operariis stipendiariis ut videlicet dent decimas de stipendiis suis nisi stipendiarii ipsi aliquid certum velint dare ad opus vel ad lumen Ecclesiae si Rectori ipsius Ecclesiae placuerit And Mr. Verbo negotiationis Linwood in his Gloss adds Et scias quod in istis decimis mere personalibus quae considerantur ex solo lucro deducuntur expensae tam in re quam circae rem extra rem factae Et nota quod de solo lucro debetur haec decima unde si emens mercem eam non vendat sed donet vel sibi retineat non tenetur decimare quia non lucratur So that it appears by the Canon Law that every one ought to pay for a personal Tithe a tenth part of all his clear gains deducting all his charges and expences for a personal Tithe but if a man buy Merchandizes and do not sell them to profit or give them or make use of them himself no Tithe is to be paid because there is no gain made of them Now let us see 2 E. 6. c. 13. what the Statute of 2 E. 6. says to us concerning personal Tithes and by that Stat. it is enacted That every Person exercising The Statute for personal Tithes merchandizing bargaining and selling cloathing handicraft or other art or faculty being such kind of persons as then before within forty years had accustomably used to pay such personal Tithes or of right ought to pay other than such as be common day Labourers shall yearly pay for his personal Tithes the tenth part of his clear gains his charges deducted And where handycraft men have used to pay their Tithes within this forty years the same Custom of Tithes is to be observed and if any Person refuse to pay his personal Tithes c. It shall be lawful to the Ordinary of the same Diocess to call the same Party before him and by his discretion to examine him by all lawful and reasonable means other than by the Parties own corporal Oath concerning the true payment of the said Tithes This Act of Parliament restrains the Canon Law in two things first where the Canon was general that all persons in all places should pay their personal Tithes the Act restrains it to such kind of persons only as have accustomably used to pay the same within forty years before the making of the Act. Secondly Whereas by the Ecclesiastical Laws they might before this Act have examined the Party upon his Oath concerning his gain this Act restrains that course so that the Party cannot be examined upon Oath and by this Act the day labourer is freed of the payment of his personal Tithes It cannot be intended upon this Act that if such Tithes have been sometimes paid within forty years that they are therefore due but they must have been accustomably that is constantly paid for forty years next before the Act. And if it be demanded how such payment must now be proved forty years before the making of the said Act I answer as in other like Cases à posteriore by what has been done all the time of memory since the Act. There has been some question amongst the School-men and Canonists whether personal Tithes ought to be paid of unlawful gain to which you shall hear what a great Schoolman and Doctor says Quod si aliqua male acquiruntur dupliciter uno modo Tho. Aqu. Sum. 2. 2ae q. 87. art 20. Whether due of ill gotten profit quia ipsa acquisitio est injusta puta quae acquiruntur per rapinam furtum seu usuram quae homo tenetur restituere non autem de eis decimam dare tamen si aliquis ager sit emptus de usura de fructu ejus tenetur usurarius decimas dare quia fructus illi non sunt de usura sed ex Dei munere quaedam vero dicuntur male acquisitae quia acquiruntur ex turpi causa sicut de meretricio histrionatu aliis hujusmodi quae non tenentur restituere unde de talibus tenentur decimas dare secundum modum aliarum personalium decimarum tamen Ecclesia non debet eas recipere quamdiu sunt in peccato ne videatur eorum peccatis communicare sed postquam poenituerint possunt ab eis de his recipi decimae So that by this great Doctors opinion it seems that of ill gotten gain of which restitution ought to be made no personal Tithe is due and yet if by ill gotten gain a field be purchased Tithe ought to be paid of the fruits thereof but of ill gotten gain where no Restitution is to be made there Tithes ought to be paid but not received by the Church till the sinner have repented him of the evil and after such repentance the Church may receive them These personal Tithes are accompted amongst the offerings of which we are to speak next and ought by the Parishioner to be offered to the Church where due but I am of the opinion of him that said Hae decimae personales magis difficultate subtilitate quà m utilitate existunt It hath been resolved Roll 1.646 a. 1. that Servants in Husbandry shall not pay any personal Tithe CHAP. XXIII The Twenty Third Chapter shews what Oblations Offerings c. are and where due OFferings are defined by the Canonists to be Oblations and Offerings what and where due Quaecunque à piis fidelibus Christianis offeruntur Deo Sanctae Ecclesiae sive res soli sive mobiles sint nec refert an legantur Testamento aut aliter donentur It should seem that in the time of Popery there was an expectation that every one present at Mass should offer something for St. Gregory tells us Greg. 78. habetur de Consecrat div 1. Quod omnis Christianus procuret ad missarum solennia aliquid Deo offerre But Becanus a learned Jesuite is more moderate Becan Sum. Theo. l. 3. q. 86. for he tells us Quod nemo tenetur ad illas Oblationes nisi vel necessariae sint ad sustentationem ministrorum vel consuetudo ad eas alicubi obliget And these Offerings belonged properly to the Priest or Minister of the Church or Place where they were made for so is the Canon of Pope Damasus Quod Oblationes quae intra sanctam Ecclesiam offeruntur Can. Damas Pap. Et habetur 10. q. 1.
become almost if not altogether as great as ever and deserves a new and stricter reformation for almost all the greatest and best Livings of the Kingdom are now held by pluralists and served by mean Curates But now let me return to the Act and let me observe That this Act has only provided a Remedy where the first Living is of the Yearly value of eight pounds or above Cro. cap. 456⸪ Pig Jac. C. B Evesque Durham vers Evesque Peterburrough which must be understood according to the valuation taken in the twenty ninth Year of King E. 1. till the twenty sixth of H. 8. And after that time according to the valuation then returned into the Exchequer Dyer 237. p. 29. Cro. Eliz. 853. Quaere and now made use of in the first fruits office But many former Opinions and Books have been that the valuation ought to be according to the true value Ideo quaere But in case the first Living be under the yearly value of eight pounds or a sine cura then the party may accept a second as he might have done before this act with a dispensation which he needs not now go to Rome for although he be not qualified within this Law But by this good Act there are several persons qualified to have and retain Pluralities Who are qualified to have Pluralities and those are of three sorts 1. by Service 2. by their Birth and the 3. by Dignities And first of those that are qualified by service 1. Qualification 1 All the King's Chaplains which are not of his Councel and of the Queen Prince Princess and Brethren and Sisters Uncles and Aunts of the King 2. Eight Chaplains of every Arch-Bishop 3. Six Chaplains of every Duke 4. Five Chaplains of every Marquess and Earl 5. Six Chaplains of every Bishop 6. Four Chaplains of every Viscount 7. Three Chaplains of the Lord Chancellor and of every Knight of the Garter and Baron 8. Two Chaplains of every Dutchess Marchioness Countess and Baroness being Widows 9. Two Chaplains of the Treasurer and Controller of the King's House the King's Secretary the King's Almner Clerk of the Closet and Master of the Rolls 10. One Chaplain of the Chief Justice of the King's Bench and Warden of the Cinque Ports for the time being All these in respect of their Services may purchase license or dispensations and take receive and keep two Parsonages or Benefices with cure of Souls notwithstanding this Act. But those of the King's Chaplains that are sworn of the King's Councel may purchase license or dispensations and take receive and keep three Parsonages or c. with Cure of Souls 2. The second qualification is by Birth Qualification by Birth that is the Brothers and Sons of all Temporal Lords and of Knights born in Wedlock may purchase license or dispensations and take receive and keep two Parsonages c. with cure of Souls in which qualification it is to be observed that no provision is made for Bastards nor for the Sons of Bishops Abbots Priors c. and note in this case the Sons and Brothers of Knights have greater priviledg than the Sons and Brothers of Baronets 3. Qualification by dignity The third qualification is of certain persons dignified in the Universities and of that sort are all Doctors and Batchelors of Divinity Doctors and Batchelors of the Common Laws which shall be admitted to any of those degrees by any of the Universities of this Realm and not by grace only all which may purchase licenses or dispensations and take receive and keep two Parsonages c. with cure of Souls And in this act there is a negative proviso to this effect Proviso that above the number shall not be advanced That no person or persons to whom any number of Chaplains or any Chaplain by the provisions aforesaid is limited shall in any wise by colour of the same provisions advance any Spiritual person or persons above the number to them appointed to receive or keep any more Benefices with cure of Souls than is above limited There is another Proviso Proviso that they must have Testimonials that the Chaplains so purchasing taking receiving and keeping Benefices with cure of Souls as aforesaid shall be bound to have and exhibit where need shall be Letters under the sign and Seal of the King or other their Lord or Master testifying whose Chaplains they be Boy vers Saveacre T. 28 El. C. B. ro 1130. Hughes p. 41. Boy vers Evesque Lincoln alios T 31 El. ro 725. C. B. or else not to enjoy any plurality of Benefice by being such Chaplains Upon this clause some question has been made whether a Chaplain can be retained within the meaning of this Law by parol and it seems he may so that they have such Testimonial when they pray their dispensation but the safest way is to have it in writing and it must be under Hand and Seal Now having shewed what persons are qualified within this Statute I will in the next place shew how the Clerk that would have the benefit of his qualification within this Law ought to proceed in the taking a second Living so that the first may not be void which is in this manner The Person that falls within any of the qualifications within this Law which makes him capable of a plurality How to proceed in the taking of a second Living and having obtained a presentation to a second Living must carry his Testimonial or retainer under the Hand and Seal of his Lord or Master to the Master of the faculties who is to make out his dispensation or Licence to accept the second Benefice which being obtained he must next have it confirmed under the great Seal of England and after he has thus obtained his dispensation and has it confirmed under the great Seal then Stat. 25 H. 8. cap. 21. and not before he is to apply himself to the Bishop of the Diocess where the Living lies for his admission and institution for though by the Letter of the Act the first Living is not void untill induction into the second Living First Living void by institution into the Second the words whereof are as follows If the party be instituted and inducted in possession of the second Living that then the first shall be void Yet to avoid the great inconvenience that otherwise would ensue it has been held that the first Living is void upon the bare institution into the second Living Co. 4.79 b. Hob. 166⸫ and so it should seem the Law was before the making of this Act where the party had no dispensation And it is to be observed upon this Law Which Chaplâ—ins shall be qualified where above the number is retained More 561. Co. 4.90 a⸪ B. vers Evesque Glouc. Saveacre Anderson that in case any Lord or other Person whose Chaplains are qualified within this Law to have two or more Livings incompatible do retain his
full number of Chaplains and after one or more above his number that in that case the Supernumerary Chaplains that were retained after such Lord or other Person had retained his full number allowed by the Statute are not qualified by this Law to have pluralities of Livings although the supernumerary Chaplains be preferred before the other that were first retained but if a Chaplain qualified within this Law be legally inducted into a second Living with a dispensation as he ought Dyer 312. p. 88. although his Master be attainted degraded or removed from his Office yet he shall retain his Plurality during his life But if one be retained Chaplain to any Lord or other Person The Master dyes c. before preserment Co. 4 17 b. whose Chaplains are qualified within this Law and his Master dies is attaint degraded or displac'd before his Chaplain be preferred to a second Living or if such Lord or other Person discharge such a Chaplain as he may in all these cases the Chaplain loses his qualification to have plurality of Livings incompatible But if a Dutchess Marchioness Co. 4.118 B. The Mrs. marries Countess or Baroness do retain a Chaplain and after marries this shall not take away the qualification of such a Chaplain but that he may have plurality of Livings incompatible within this Law as he might have done before And if such Dutchess c. Cc 4.119 a. retains Chaplains and after marries and after becomes a Widdow again yet the first retainer stands good and was not Countermanded by the Marriage or death of the Husband And note that there is a Proviso in this Act that though a Dutchess Marchioness Countess or Baroness do Marry a Husband under the degree of a Noble Man or Baron that yet nevertheless she may retain two Chaplains which shall be qualified within this Law And it is declared by this Act What preferments are not within this Law that Deanaries Arch Deaconrics Chancellorships Treasurerships Chaunterships or Praebendaries in any Cathedral or Collegiate Church or any Parsonage that hath a Vicar indowed or any Benefice perpetually impropriated are not to be esteemed Benefices with cure of Souls within this Act. And if any Duke Lord or other Person whose Chaplains are qualified within this Law shall have a double capacy to qualifie his Chaplains as if a Duke c. be made Lord Warden of the Cinque Ports Co. 4.118 a. or a Baron Master of the Rolls Knight of the Garter or c. in all these cases such Duke Baron c. can but qualifie his number of Chaplains according to his best qualification only And if the Eldest Son of a Duke Chapl. returned in the life of the Father Co. 4 902⸪ Marquess c. retain Chaplains in the Life time of his Father who after dies and the honour descends upon such Son yet this retainer will not qualifie his Chaplains to have pluralities within this Statute because at the time of the retainer he was not capable to qualifie them Et quod ab initio non valet tractu temporis non convalescit If a Duke Lord discharges Chaplains after they are prefer'd Co 4.90 a ⸪ Marquess c. retain his full number of Chaplains which are advanced and then discharge them yet he cannot during their Lives qualifie any other within this Statute But if a Duke A greater number of Chapl. retained together Co. 490 a⸪ Dyer 312. p. 88. Marquess c. that has power within this Act to qualifie Chaplains at one instance of time retain double his number of Chaplains or any supernumerary Chaplains in that case those only shall have the benefit of qualification that are first prefer'd Quia in equali jure melius est conditio possidentis If one that is qualified within this Statute take a second Living incompatible Co. 4 79. B. Dyer 312. p. 88. and be instituted or inducted into the same before he have obtained a dispensation the first is void though Dyer makes a quaere of it And note that it hath been resolved This Law is not dispensable Dyer 351. B⸪ Co. 4.90 B. ⸫ Dyer 377. B. Co. 5. 102. B⸫ Hob. 168. Apluralist neglects to read the 39. Art the first Living is not void Hob. 157 ⸫ that the King himself cannot dispence with this Law But if one that is not qualified within this Law to have two Livings incompatible shall obtain a second Living and be inducted into the same and after neglects to read the Articles of Religion within the time limited or doth any other Act that makes the latter void ab initio in such case the first Living shall not be void within this Law And if a Parson c. that is qualified within this Statute to have plurality of Livings incompatible be made a Bishop his qualification ceases so that after he cannot take two Benefices incompatible by force of such qualification but if he had two Livings before he was made Bishop by qualification and dispensation within this Statute he may retain them by Commendam and although he were the King's Chaplain it alters not the case for by the acceptance of a Bishoprick he ceases to be the King's Chaplain within this Law And if a Parson have one Living incompatible Parson's Law l. 2.14 15. Vniting a Living is a Plurality he cannot obtain another with Cure to be united unless he be qualified and have a Dispensation but that the first will be void Mr. Parson and Vic. of the same Church si c. Hughes in his Parsons Law puts two Cases which he is of opinion are out of danger of this Law The first is where there is a Parsonage and Vicarage indowed and the Parson without Dispensation or Qualification accepts the Vicarage and he conceives that notwithstanding that these are two several Advowsons and Benefices and that several Quare Impedits may be brought of them and that several actions are maintainable by the Parson and Vicar concerning their possessions that yet nevertheless the presenting of one person to both is no Plurality within this Statute or the Canon because the Parson and Vicar have both but one Cure of Souls besides there is a Proviso in the Act that no Parsonage with a Vicarage endowed shall be accounted a Benefice with cure of Souls within that Act. But his other Case seems more doubtful 2. Rectories in one Church and it is put where a Church has two Rectories and each has cure of Souls per se and are incompatible and one person obtains both these Livings without qualificaton or dispensation This Case he conceives to be both out of the danger of this Act and the Canon 1. Because it is not in pluribus Ecclesiis 2. When there is several Advowsons in one Church neither Parson hath the whole cure of Souls and the words of the Statute are having one Benefice with cure of Souls of the value of eight pounds takes and accepts another
what Provincial Canons we have against Symony and to how little effect they were before the Statute of 31. Cro. El. 788 789⸫ Per Warburton Eliz. But there were some general Canons of the Church of greater force whereby Simoniace is punished by Deprivation and Simoniacus by Deprivation and perpetual disability * Per Bullam Sixtinam privatur ipso facto de omnibus dignitatibus beneficiis officiis efficitur inhabilis ad omnia 3 Inst 1654 Tho. Aqu. 2o 2ae q. â—00 art 1 Sect. 2 St. Aust de hâ—eresibus in principio St. Greg. in Reg. hab 1. q. 1. c. d. l. Stat. 31. Eliz. cap. 6. Stat. Against Symony not only as to the Church he was presented to upon a Symoniacal Contract but also to all others and being malum in se it is not dispensable either by the King or any other And it has been held by some of the Fathers to be a Heresie if not the Sin against the holy Ghost but neither the greatness of the sin nor the severity of the Canons were sufficient to restrain this evil in the Church till the Parliament of England took it into their Care and in the 31. Eliz. it was inacted 1. That if any person or persons for any Sum of money reward gift profit or benesit directly or indirectly or for or by reason of any promise agreement grant bond Covenant or other Assurance for any Sum of Money reward gift profit or benefit whatsoever directly or indirectly shall * Relates to Patrons present or †This to Bishops collate any person to any Benefice with Cure of Souls Dignity Prehend or Living Ecclesiastical c. or ‖ Donatives give or bestow the same for or in respect of any such corrupt couse or consideration that then every such Presentation Collation gift and bestowing and every admission investure and induction thereupon shall be utterly void c. And that the Queen her Heirs and Successors to present collate c. for that one Turn only And that every Person c. Penalty that shall give or take any such Sum of Money c. or that shall take or make any such Promise c. shall forfeit and lose the double value of one years profit of every such Benefice And the person so corruptly taking any such Benefice shall thereupon and from thenceforth be adjudged a disabled person in Law to have and enjoy the same Benefice c. 2. And further Against Precipitate admission or Institution c. that if any Person shall for any sum of money reward c. ut supra directly or indirectly other than for small and lawful fees or for or by reason of any promise c. admit institute install induct invest or place any Person in or to any Benefice with cure c. That then every Person so offending shall forfeit and lose the double value of one years profit of such Benefice c. and that the said Benefice c. shall be eft soon void c. And that the Patron or person to whom the advowson c. shall and may by virtue of this Act present or collate c. as if the person were naturally dead but no lapse hereby to incur till six Months after notice 3. Against corrupt resignations and Exchanges And if any Incumbent of any Benefice with cure of Souls do or shall corruptly resign or exchange the same or corruptly take for or in respect of the resigning or exchanging of the the same directly or indirectly any pension sum of Money or benefit whatsoever that then the giver and taker of any such sum c. corruptly shall lose double the value of the sum so given taken or had the one half to the Queen c. and the other Moiety to him that will sue for the same c. in any of her Majestie 's Courts of Record in which no essoine c. 4. Ecclesiastical Censuressaved Provided that this Act shall not restrain any censures Ecclesiastical c. 5. Symony in ordaining and giving Orders to preach And further it is provided that if any Person shall receive or take any Money Fee reward or any other profit directly or indirectly or shall take any promise agreement Covenant Bond or other assurance to receive or have any Money Fee c. direcily or indirectly to him or themselves or any other of their c. Friends all lawful and ordinary Fees excepted for or to procure the ordaining or making of any Minister c. giving any Order and License to preach shall lose forty pounds and the Minister so made ten pounds And that if such Minister within seven years next after such corrupt entring into the Ministry c. shall accept or take any Benefice Living or promotion Ecclesiastical the same Living after induction c. to be void And that the Patron may present c. as if the party so inducted were naturally dead the one half of the said forfeitures to be to the Queen c. and the other half to the Informer to be recovered ut supra And I do not observe that the corrupt Patrons were in danger to suffer by any Law or Canon before this Law was made Canons against Law for as I said before his right could not be taken away by a mere Canon not confirmed by Parliament and before this Law was made the Incumbent that came in by Symony held the Living which he obtained by Symony untill he was legally and judicially deprived by Sentence Ecclesiastical wherein he often escaped for want of such proof as the Spiritual Laws required but this Statute strikes at the root and makes as well the presentation as the admission institution and induction void So that if this Statute had not given the presentation to the Queen the true Patron might have presented a new Clerk or in his default the Church would have lapsed But by this Act the corrupt Patron does not only lose the presentation to the King pro hac vice but also two years value of the Church 3 Inst 154⸫ not according to the valuation in the King's Books in the the first-fruit Office but according to the true and utmost value of the Church But if one that has no right to present shall by means of a corrupt and Symoniacal agreement present a Clerk 3 Inst 153⸪ who is by his presentation admitted instituted and inducted into a Church yet this shall not intitle the King to present for the Act of Parliament makes all void but a Usurper cannot forfeit the right of another in whom there is no fault Note that the Patron shall lose his presentation within this Law Co. 12 74⸫ although the Clerk be not privy to the corrupt Contract And it should seem by the penning of this Act that the forfeiture of the double value of the Church is incurred by the corrupt contract only but the presentation is not forfeited to the King
then c. And in an action of debt brought upon this Bond the Defendant pleaded non requisivit which was found against him and in arrest of Judgment it was moved that this Bond was made for the performance of a Symoniacal contract and therefore void but notwithstanding the Court gave Judgment for the Plaintiff and two reasons are given for the Judgment the first was because there was no averment of the Symony second that it was not material as to the Bond because that Statute did not make the Bond or Contracts void but only the presentation c. for this I clearly infer from the conclusion of the case But I confess the sense of the Court was that in truth if a man be preparing a Son for the Clergy and have a Living in his disposal which falls void before his Son be ready he may lawfully take a bond of such person as he shall present to resign when his Son is become capable of such Living and I have nothing to say against that opinion but it is very just and reasonable nature obliging that every one should take care for his posterity but if a Patron take a Bond absolutely to resign upon request without any such cause as the preferment of a Son or to avoid pluralities or non-residence or such reasonable cause but only to a corrupt end and purpose to exact Money by this Bond from the Incumbent or attempt it though perhaps the Bond may be good against the Person that entred into it yet I am clear of opinion for my own part that the said Bond makes the Church void and gives the presentation to the King and it should seem in Jones and Laurence's case that if Symony had been averred it would have been left to a Jury to have adjudged what the intention of the corrupt Patron was The other Case upon which these subtil Simonists build Cro. Car. 180. Hur. in Jones 220. was between Babbington and Wood 5 Car. 1. B. R. where the Case was likewise in debt upon an Obligation with a Condition that whereas the Plaintiff intended to present the Defendant to such a Living that if the Defendant upon request after his admission should resign that then the Bond to be void c. Upon Oyer of this Bond and Condition the Defendant demurred and Judgment was given for the Plaintiff But all the Court conceived that if the Defendant had averred that the Obligation had been made with intent to exact money make a Lease c. which in it self had been Simony then upon such a Plea peradventure it might have appeared to have been Simony and then it might have been a question whether the Bond had been good or no but upon this Demur it did not appear there was any Simoniacal Contract and such a Bond might be made upon a good and lawful design as the preferment of a Son as in Jone's and Laurence's Case before to avoid non-Residence Pluralities c. So that it appears by both these Cases that Bonds taken upon prudent and just ends to resign are non-Simoniacal but where such Bonds are taken upon corrupt designs and it be made appear by any subsequent practice or action it is clearly Simony as if the Bond had been expresly to pay money for what difference is there between a Bond expresly to pay money and a Bond to resign which is to pay money if the Patron say either pay me so much or resign when all the world knows in such a Case the Parson must pay the money or resign and be undone And the world shall never perswade me that those reverend Judges that gave these Judgments ever intended further and I hope that those reverend Judges that now supply their places will discountenance and discourage such practices that tend so much to the ruine of the Church and Religion for I know no Law that tends more to the advancement of learned and religious men than this Law doth and therefore ought to have a benign construction to the end it was designed I find a Case reported Noy 22. T. 15 Jac. ro 2051. C. B. I cannot say that is by an Authentick hand but such as it is I will give it the Reader it was between Sir John Pascall and one Clerk in the 15 year of King James upon evidence to a Jury it was held that such a Bond was Simoniacal but the Circumstances not appearing in the book the Case can be of no great Authority But before I shake hands with these Bonds for Resignation it will be convenient I give my young Clergy-man some cautions against them for it is an old saying the Resetter is worse than the Thief for without Resetters there would be sew theeves And 1. Advice against Bonds for Resignation I hold it a great disreputation for any Clergy-man to give any such bond which may have the least tincture of Simony nor do I believe any man of worth will do it unless it be upon such reasons as aforesaid 2. If such Bond carry with it a Simonaical corrupt design it makes the Clerk no less guilty of Simony than the corrupt Patron and then the Clerk not only loses his Living by this Statute and is for ever incapacitated to have it by any suture Presentation and by the canon-Canon-Law is to be degraded and incapacitated to all other Lastly if he do not resign upon request 3 Inst 153. Margine Noy 72. he is subject to the whole penalty of the bond for Simoniacal Bonds Contracts c. are not made void by this Act but only the Presentment c. And so you may observe a difference between malum in se and malum prohibitum by the Statute or by the Canon-Law whereof the Judges at Common Law take no notice It is now to be considered What Covenants and agreements are within this Law what Covenants or Agreements shall be said to be Simoniacal within this Law If a Father-in-Law upon the marriage of his Daughter covenant with his Son-in-Law without any consideration Cro. â—ar 425. but voluntarily that when such a Church falls void which is in his gift that he will present him to it this is no Simony within this Law but it should seem that such Covenant in consideration of marriage or any other consideration had made it Simoniacal So where the Patron took a bond from the Presentee to pay 10 l. Noy 142. Baker vers Mountford yearly towards maintainance of his Predecessor's Son whilst he remained in the University unpreferred was held no Simony And in that Case it was said by Foster Justice that it was adjudged in the Earl of Sussex's case where the Patron took a Bond of the Incumbent to pay 5 l. per annum to the Widow of his Predecessor it was not Simony these were good charitable Resolutions sed quaere rationem inde and Foster said that notwithstanding great opposition in that Case the Parson enjoyed the Living at that time In the
the Lands Woods or Houses of his Church he may be deposed or deprived by his Superior so that it appears clearly 20 H. 6.46 a⸪ 2 H. 4.3 b⸫ Co. 11.94 b⸫ 29 E 3.16 a. 9 E. 4.34 a⸪ that the fault in this case lies heavy upon those that have the Visitation and Superiority that they do not take care against the wasting and destruction of the Buildings Houses Woods c. of the Church and that the Successors should not be put to seek remedy against Executors and Administrators who are too active in finding shifts to avoid their actions to avoid which there is a good Law made in the thirteenth Year of Queen Elizabeth to this effect That if any Parson Statute against fraudulent Conveyances Stat. 13 Eliz. cap. 2. Vicar c. shall make any conveyance of his goods to defraud his Successor of his remedy the like Suit is given in the Spiritual Court against the Grantee as the Successor should have had against the Executors or Administrators of the Predecessors But this Act gives no remedy at Common Law Stat. 13. El. c. 5. because by another Act made at the same Parliament all such Grants to defraud any Person or Persons of their just actions are made void So that the Plaintiff has equal remedy in both cases Suits for Dilapidations are most properly and naturally to be sued in the Spiritual Courts and if any prohibition should be granted Fitz. N.B. 51. f. the same ought to be superseded by a consultation but this is intended where the Suit is grounded upon the Canon-Law But the Successor may upon the Custom of England have a special action upon the case against the Dilapidator Action upon the Case at Law for Dilapidations T. 8. H. 7.10 69. B.R. T. 18. H. 7. ro 69. C.B. P. 12 and 13 H. 8. rot 126. C.B. H. 15 H. 8. ro 306 C. B. in 12 H. 8. ro 730. C. B. H. 15. Jac. 10.474 c. The Custom upon which the Action is grounded his Executors or Administrators whereof there are multitudes of precedents even in the time of Popery whereof the Reader has a taste in the margent By all which it appears that by the Custom of England which is the Common Law omnes singuli Praebendarii Rectores Vicarii Regni Angliae pro tempore existentes omnes singulas domos Edificia Praebendorum Rectoriorum Vicariarum suorum reparare sustentare ea Successoribus suis reparata sustentata dimittere teneantur Et si hujusmodi Praebendarii Rectores Vicarii domus Edificia hujusmodi Successoribus suis Sic ut praemittatur reparata sustentata non dimiserunt deliquerunt sed ea irreparata dilapidata permiserunt Executores sive Administratores bonorum catallorum talium Praebendariorum Rectorum Vicariorum post eorum mortem de bonis catallis decedentium Successoribus talium Praebendariorum Rectorum Vicariorum tantam pecuniae summam quantam pro necessaria reparatione edificatione hujusmodi domorum Edificiorum expendi aut solvi sufficiet satisfacere teneantur And upon this Custom actions of the case have been frequently brought both antiently and of later times and dammages recovered And note Stat. 14. El. c. 11. that by a Statute made in the fourteenth Year of Queen Elizabeth it is expresly enacted that all the Moneys and Dammages that shall be recovered for Dilapidations are to be expended and laid out in and about the repair of the Houses c. dilapidated wherein the Visitors of those Churches ought to take care It will not be altogether improper to conclude this Chapter with the Stat. 35 E. 1. of 35 Eliz. intitled Nè Rectores prosternant arbores in Coemiterio whereby it is inacted or rather the Common Law declared to be in these words We do prohibit the Persons of the Church Against cutting the trees in the Church-yard that they do not presume to fell them viz. the trees in the Church-yard down unadvisely but when the Chauncel of the Church wants necessary Reparations neither shall they be converted to any other use unless the body of the Church do want repair in which Case the Parsons of their Charity shall do well to relieve the Parishioners with bestowing upon them the same trees which we will not command to be done but we will commend it when it is done By this Law it appears that the Church-yard and the soyl thereof is in the Parson and by consequence the trees are in the Parson or Rector that grow therein But because the Trees that grow there are for the most part planted there for the shelter and ornament of the Church from Tempests and Storms therefore the Parliament has granted a Prohibition in this Case against the Rectors and Parsons of Churches that they should not cut down these trees for any other use but the necessary repairs of the Church and Chauncel which in truth was no more than what the Common Law enjoyned for if the Rector had gone about to have cut them down for any other use the Patron might have had a Prohibition but now I conceive the Rector or Impropriator that cuts down any Trees growing in the Church-yard for any other cause than for the repair of the Church or Chauncel may be indicted and fined upon this Statute at the Common Law If the Bishops and Arch-deacons in their Visitations would take care these Dilapidations might easily be avoided which is a great dishonour to the Clergy and cannot be pleasing to God Almighty or good men And the Canon enjoyns the Arch-deacons and other Officials ut in visitationibus Ecclesiarum faciendis diligentem exhibeant considerationem ad fabricam Ecclesiae maxime cancell ' Cap. Archidiaconi infra si forte indigeant reparatione si quos invenerint defectus hujusmodi certum sub poena praefigant terminum infra quem emendentur vel suppleantur c. CHAP. IX The ninth Chapter shews for what Causes a Parson Vicar c. may be deprived by any Statute-Law and what matters are allowed for good causes of Deprivation at the Common Law DEprivation or Deposition is Deprivation and Deposition quid where a man by any Statute-Law or by any judicial Sentence Ecclesiastical that hath proper Jurisdiction is made incapable to hold or enjoy his Parsonage Vicarage or other spiritual promotion or dignity and the causes of such Deprivation or Deposition are properly and naturally determinable by the Ecclesiastical Laws of this Realm Where determinable But because generally there are Estates of Freehold dependant upon these promotions and dignities and annexed to them inseparably which rest at the sole determination of the Common Law the Courts of Common Law do sometimes inspect and regulate the proceedings of the Ecclesiastical Courts and where they proceed against the Rules of common Law they frequently prohibit them I have therefore thought fit to shew what causes of
they may fall HAving undertaken this Work chiefly in favour of the Parsons and Vicars What Leases Clergy-men may make I designed to have medled with no other Orders of the Church but those only but having in many other things been enforced to intermingle the concerns of other Orders with those of the Parsons and Vicars I shall beg the Readers pardon that in this Chapter where I am to treat of the Leases which may be made by Parsons and Vicars I likewise take in all other Orders of the Church with the Colledges the Learning concerning Leases being of use and necessary for all people to know and which I shall in this Chapter put into as good a method as the subject matter will permit And because the Learning of these Leases will depend upon several Statutes it will not be amiss first to examine what Leases or Alienations the several persons we have to do with in this Chapter might have made at Common Law before the Statutes and then to consider where or in what manner the several Statutes have inlarged abridged or restrained their power at Common Law And first At Common Law 1 Inst 45. a⸫ at the Common Law no Bishop Abbot Prior Dean Prebend or other single Corporation could make any Alienation or Lease to bind their Successors without the confirmation of their Chapter Covent c. The first Statute that made any alteration in these cases was the Stat. The enabling Act of 32. H. 8. c. 28. of 32 H. 8. which is comonly called the enabling Statute whereby it is enacted That all Leases then after to be made of any Mannors Lands Tenements or Hereditaments by writing under Hand and Seal for term of years or for term of the life by any Person or Persons of the full age of 21 years having any estate of Inheritance either in Fee-simple or Fee-tail in their own rights or in the right of their Churches c. shall be good and effectual in the Law against the Leasors their Wives Heirs and Successors Provided that Act should not extend to any Lease of any Mannors c. Where any old Lease should be in being unless the same expire be surrendred or ended within one year after the making of such new Lease nor shall extend to any Grant to be made of any Reversion of any Mannors c. nor to any Lease of any Mannors c. which have not most commonly been letten to Farm or occupied by the Farmers thereof by the space of twenty years next before such Lease thereof made nor to any Lease to be made without impeachment of waste or to any Lease to be made above the number of three Lives or twenty years at the most from the day of the making thereof and that upon the making of every such Lease there be reserved yearly during the said Lease due and payable to the said Leasors their Heirs and Successors to whom the reversion shall appertain c. so much yearly Farm or Rent or more as hath most accustomably been yielden and paid for the said Mannors c. so to be letten within twenty years next before the Lease thereof made c. Provided this Act should not extend to give any Liberty or power to any Parson Vicar c. to make any Lease or Grant of any of their Messuages Lands Tithes c. or in any other manner than they should or might have done before the making of the said Act. So now where before the making of this Act no Arch-Bishop Bishop Arch-Deacon Dean or Prebend could have made any Lease to have bound his Successors without the confirmation and consent of their Chapters c. as aforesaid Now by this Act they are enabled to make leases for three Lives or one and twenty years without any confirmation at all with these qualifications What qualities such Leases must have Must be in writing indented 1. Such Lease must be made by writing Indented and not by parol or deed poll 2. Must begin from the making or day of making Old Lease must expire with a year Co. 5.2 b⸫ It must be made to begin from the making or day of the making of such Lease 3. If there be any old Lease in being at the time of the making of such Lease it must expire be surrendred or ended within a Year after the making of such new Lease and such surrender must be absolute and not upon condition 4. Must not be a double Lease Fourthly there must not be a double Lease in being at one and the same time the one for Years and the other for Lives 5. Of what things such Lease may be Co. 5.3 a. More 778⸪ Such Lease must be of Lands manurable or corporeal which are necessary to be letten and out of which a Rent may be reserved and not of things that lie merely in Grant as Fairs Markets Tithes Tolls Franchises Advowsons c. 6. Of Lands usually letten Such Lease must be of Lands c. which have most commonly been letten to Farm or occupied by the Farmers thereof for the more part of twenty years before the making of such Lease So if they have been so let for eleven years within the twenty years next before the making of the new Lease it suffices Co. 6.37 b⸪ and a letting to Farm by Copy of Court-Roll is a sufficient letting to Farm within this Statute to enable the making of such new Lease 7. The accustomed Rent must be reserved There must be reserved upon every such Lease and payable during the continuance thereof to the Leasor his Successors c. so much Farm or Rent as hath most accustomably been yielded and paid for the Land so demised within twenty years next before such Lease made so that it sufficieth Co. 6.37 b⸪ if the yearly Rent or Farm be reserved though Herriots and other casual services be omitted Ibid. so if a greater Rent than formerly be reserved it sufficeth But if Lands usually letten be demised with any other Lands c. though a Rent be reserved that exceeds the value of those Lands and the old Rent Co. 5.5 b⸫ yet such Lease is not good against the Successor within this Law But if the Rent were formerly reserved to be paid at four several days and by the new Lease be reserved to be paid all at one Co. 5.37 b. so the whole Rent be reserved yearly it is well enough 8. Lastly Such Lease must not be without Impeachment of Waste such Lease must not be without impeachment of waste and therefore a Lease to one for life remainder to another for life remainder to a third for life is not good against the Successor though but for three Lives because the remainders make the present Tenants dispunishable for waste for the time But Parsons and Vicars being excepted in this enabling Law are left as they were at the Common Law Farsons and Viears excepted so that they
could make no Lease to bind the Successor without the confirmation of the Bishop and Patron till the Stat. of 13. Eliz. which we shall speak of hereafter And note that it hath been held Co. 8 70. b. Lease for years determinable upon Lives that a Lease for ninety nine years if one two or three Lives so long live hath been held good within this Statute But this Act as appears by what hath been said conferred a new power upon single Corporations but did not in any thing restrain their antient power in making long Leases and Alienations of their very Scites Demesns c. with confirmations as aforesaid which was a great prejudice to the Church in general a means of Dilapidations and a great hindrance of hospitality and therefore In the first Year of Queen Eliz. 1 Eliz. c 19. More 107. Bishops restraned it was enacted that all Gifts Grants Feoffments Fines and other Conveyances and Estates from the first day of that present Parliament to be had made done or suffered by any Arch-Bishop or Bishop of any Honors Castles Mannors Lands Tenements or other Hereditaments being part of the possessions of his Arch-Bishoprick or Bishoprick or united appertaining or belonging to any the same Arch-Bishopricks or Bishopricks to any Person or Persons bodies politick or incorporate other than the Queens Majesty her Heirs and Successors whereby any Estate or Estates should or might pass from the said Arch-Bishops or Bishops or any of them other than for the term of twenty one years or three Lives from any such time as any such Lease Grant or assurance shall begin and whereupon the old accustomed yearly Rent or more shall be reserved and payable yearly during the said term of twenty one years or three Lives shall be utterly void and of no effect to all intents constructions and purposes any Law eustom or usage to the contrary thereof in any wise notwithstanding Note the exception 1 Jacobi c. 3. which gives or rather reserves the power to grant c. to the Queen c. was made void by a Statute made 1 Jac. And note also Leases in other Forms not void but voidable Small wood Sale vers le Evesq Lich. alios P◠31. El. ro 21 65. Co. 3.59 that though this Statute enacts that all Leases made in any other form shall be void and of none effect to all intents and purposes yet it has been adjudged that is only to be intended as against the Successors and that Leases made in other forms shall be good notwithstanding against the party himself that makes them Cro. Jac. 95. and may be affirmed by the Successor by the receipt of the Rent reserved thereupon And note 1 Eliz. A private Act. Co. 4.76 Co. 5.2 b⸫ Cro. El. 874. this is a private Act of Parliament that must in all cases be pleaded and cannot be given in evidence And note also that though this Statute do not restrain demising of any Lands not formerly demised yet it does it by implication for the accustomable Rent must be reserved and unless accustomable let there cannot be an accustomable Rent and Leases within this Statute must have all the restrictions in that of 32. H. 8. before-mentioned And it must be of things manurable Of what things such Leases may be made Co 5.3 a. as hath been said out of which a Rent may be reserved but some are of opinion that Tithes or things not manurable may be demised for twenty one years because an Action of debt will lye upon the Contract More 778. Sir Timothy Tourneur Serjeant le Roy. and so it was adjudged as a learned Serjeant at Law inform'd me in the case of the Precentor of Paul's about 17. Jacobi and that the Successor shall have an Action of debt upon this Contract by the Stat. of 21 H. 8. cap. 28. Upon this Statute and the former it hath been held 1 Inst 45. a⸫ Concurrent Leases that Arch-Bishops and Bishops may with confirmation of the Dean and Chapter make concurrent Leases that is notwithstanding there be a Lease in being for twenty one years they may make a new Lease of the same Lands to another for twenty one years from the making thereof and this being confirmed as aforesaid shall bind the Successor the other things being observed in it And Sir Edward Cook is of opinion 1 Inst 45. a⸫ that like concurrent Leases may be made by Deans Prebends c. with confirmation but some learned men are not satisfied herein because by these concurrent Leases the Successor loses his remedy for his Rent by distress during the former term and the Tenant may be insolvent as to an Action of debt The next restrictive Law is that of 13. 13 El. cap. 10. The Restrictive Law against Leases of Deans Prebends c. Eliz. whereby it is enacted That from thenceforth all Leases Gifts Grants Feoffments Conveyances or Estates to be made had done or suffered by the Masters and Fellows of any Colledge Dean and Chapter of any Cathedral or Collegiate Church Master or Guardian of any Hospital Parson Vicar or any other having a Spiritual or Ecclesiastical Living or any Houses Lands Tithes Tenements or other Hereditaments being any part of the possessions of any such Colledge c. or any wise appertaining or belonging to the same or any of them to any Person or Persons Bodies c. other than for the term of twenty one Years or three Lives from the time as any such Lease or Grant shall be made or granted whereupon the accustomed yearly Rent or more shall be reserved and payable during the said term shall be utterly void c. The penning of this Act Co. 5.14 b⸫ and that of 1 Eliz. beforementioned being in effect the same in substance the construction is the same in effect but in this Act there was no saving of Grants to the King and therefore this Act being for the publick good had restrained other Grants to him not warranted by this Stat. though 1 Jac. cap. 3. had never been made And here note Parsons and Vicars restrained by this Law that as the Parsons and Vicars had not their power any wise inlarged by the Stat. of 32 H. 8. So they had no restriction upon them till this act but from henceforth they are restrained from making any Lease or Grants other then for twenty one years or three Lives with the qualifications above mentioned in the Statutes and such Leases must be confirmed by the Patron and Ordinary because excepted in the inabling Statute of 32 H. 8. before And whereas after the making of this Statute Heads of Colledges Deans Prebends c. might have made concurrent Leases as well as Bishops might there is a Proviso in the Statute of 18 Eliz. 18 Eliz. c. 11. No concurrent Lease but within three years before the former ends That all Leases then after to be made by any the aforesaid Ecclesiastical Spiritual or
spent upon their Rectories and Church-Livings And they are quit of Pontage Murage and other like charges Pontage Murage and if they be distrained for any of these they may have a Writ out of the Chancery as aforesaid made of Course without petition or motion made under the great Seal of England directed to the party that distrains or disturbs them for any of these things commanding them to desist and if such Writ be not obayed the Cursitor of Course will make out an alias and pluries and if none of those will be obeyed an Attachment to arrest the party and detain him till he obey Regist 260. a. Fn. b. 227. f. and this Writ is called a Writ De essendi quietum de Toloneo which you may see in the Register or in the natura brevium They are not bound to appear or do suit at the Sheriff's Turn or any Leet or Law day Not bound to appear at Leets and Sheriffs Turns Regist Or. 175. a. Fn. b. 160. C. and if they shall be distrained so to do they may have a Writ of Course in the Chancery directed to the Lord of the Leet commanding him to forbear distraining them for any such Cause with like process as in the last for his contempt And by the Statute of circumspecte Agatis it is enacted Stat. 13. E. 2 Inst 491 492 493. De violenta etiam manuum injectione in clericum in causa defamationis placitum tenebitur in Curia Christianitatis dummodo ad correctionem peccati agatur non petatur pecunia And if a Clergy-Man have Lands Regist or 187. b. Fn. b. 175. b. Not to be Bayliffs Reaves c. by the tenure of which he is subject to be Bayliff Reave or Beadle and be chosen into any such Office by reason thereof he has a Cursitory writ out of the Chancery to discharge himself Beg. or 188. a⸫ F.n. b. 176. a. Must not be disturbed by Câ—llector of Tenths So if the Sheriff or Collector of the Tenths or Fifteens will disturb them in the Lands belonging to their Churches c. they may have the like Writ for their discharge and like Process for disobeying of it ut supra Antiently if a Clergy-Man had been convicted of any Murder Robery Burglary c. The Priviledg of Clergy in criminal Cases he was upon the demand of his Ordinary to be delivered over to him where he was to make his Purgation according to the Rules of the Ecclesiastical Laws and if he cleared himself he was acquit * Lindwood cap. Clerici pro suis criminibus detent gloss verb. pro convictis West 1 c. 2. Marleb c. 27. 25 E. 3. cap. 4 and 5. 4 H. 4. c. 3. without any regard to his Conviction at Common Law but if they adjudged him guilty then he was to be degraded and kept in Prison and this was confirmed to them by several Acts of Parliament But this priviledg was never allowed to them in this Kingdom in Treason petit Treason or Sacriledg And a Delinquent might have had his Clergy ad infinitum till the Stat. 4 H. 7. cap. 13. of 4 H. 7. And though this priviledg of the Clergy be taken totally away in many Cases by several Statutes and in other Cases Lay men have it in Common with the Clergy if they can read as a Clergy-Man and though the delivery of them over to the Ordinary be totally abolished yet the Clergy that are in Holy Orders at this day retain some of their antient priviledges which the Lay-Men are not capable of For if a Clerk in Holy Orders be convicted that is found guilty by the Petit Jury of a Crime for which the benefit of the Clergy is allowable at this day he shall not upon the allowance thereof be burned in the hand as a Lay-Man shall upon the producing of his Orders and if he have not them with him the Court may ex gratia give him time to produce them till any other Assise or Sessions And a Clerk in Holy Orders at this day shall have his Clergy ad infinitum from time to time which no Lay-Man can have above once The goods of Clergy-Men were by several Statutes exempted and freed from the King's purveyance St. 3 E. 3. c. 1. 14 E. 3. c. 1. 18 E. 3. c. 4. 1 B. 2. c. 3. but his Majesty having by Act of Parliament graciously released this Duty Purveyance the Laity hath the same priviledg A Clergy-Man shall not be amerced the higher in respect of his Church Living or Benefice 2 Inst 627. Not amercied for the Church-land Regist ov 289. F.N.B. 29. No Execution upon the goods of the Church Nor shall any execution be executed upon the goods of his Church nor any distress taken in the antient Fee thereof but otherwise it is of Lands of late purchase and if he fear any such thing he may have a Protection in Chancery cum clausula Quia nolumus If an Action of Trespass Debt Account 2 Inst 4. No Capias against a Clerk or other Action wherein Process of Capias lies be brought against a Clerk in Holy Orders and the Sheriff upon the Original return that the Defendant is Clerious Beneficiatus nullam habens Laicum feodum ubi summoniri potest in this Case the Plaintiff cannot have a Capias to arrest his body but a Writ to the Bishop to compel him to appear And note that all the Priviledges of the Church of England are confirmed by the Antient and good Statute of Magna Charta Priviledge of the Clergy confirmed by several Parliaments And so they were for the most part at the opening of every other Parliament after till the beginning of the Reign of H. 5. How it began then to be discontinued by the negligence of the Clergy or for what other cause I know not And so having thus briefly mentioned many of the priviledges of the Clergy Conclusion whereof the Common Law takes notice and to which they have right at this day by the Laws and Statutes of this Realm I shall not only conclude this Chapter but the first Part of this Discourse with Gloria Deo Omnipotenti Amen FINIS THE Second Part BEING THE LAW OF TITHES or TITHING Shewing in what manner all manner of Tithes Offerings Mortuaries and all other Church Duties are to be paid and in what Courts and manner they may be recovered and to what charges they are Subject With many other things fit for all People but especially all Clergy-men to know Written by Sir SYMON DEGGE Kt. LONDON Printed Anno Domini MDCLXXVI To his Worthy and Reverend Son in Law Mr. Anthony Trollop Rector of Norbury in Derbyshire Dear Son IT is now above thirty years since the Tithing Table published many years agoe came to my hand and upon perusal thereof finding that the Common Laws and Canon-Laws differed in many things I thought it would be a Work grateful to the
by Custom to be free from payment of Tithe Wood Hob. 266⸪ Bulst 2. 285. Doct. Stud. cap. ult Roll 1. 642. b. 1. p. 5 6 8. Co. 11.16 a⸪ Custom to pay Tithes of things not Tithable or any thing in lieu of it and so in several Countries they pay no Tithe of their Milk And as Custom may prevail in not Tithing so it may as has been said make things Tithable which in their own natures are not Tithable as the Rents of Houses Pigeons eaten in the House Wood spent in the House and by Custom Tithe may be paid of Salt Brick Lime Ale Chickens and other things not Tithable Now the difference between a Custom and a prescription is this Difference between Custom and Prescription every Custom must have dimension and alledged to be within some certain Province County City Hundred c. for if it be a general Custom of England it is Common Law and such Custom must be common to all within such limits but if it be confined to one certain Person House Land or other thing there it becomes a prescription which is a younger daughter to Custom and therefore when a Man comes to plead a Custom the manner of pleading is to alledg that within such a County Hundred or Town there is and from the time whereof in the memory of Man is not to the contrary there hath been such a Custom used and approved in the same that is to say that c. alledging the Custom as it is But when you come to plead a prescription you only alledg that you and all those whose Estate you have in such Lands have time out of mind paid so much annually to the Parson of D. How to plead a Prescription in full satisfaction and exoncration of all the Tithes arising upon the said Lands c. So that Custom and prescription differ in these things Wherein Custom and Prescription differ that Custom must be limited and confined to some certain place prescription is at large Custom is common to all the Persons and Lands within the limits wherein it is alledged but Prescription is confined to certain Persons or things but in this they agree that they must be constant without interruption and perpetual from the time whereof the memory of Man is not to the contrary for if there have been frequent interruptions there can be no Custom or Prescription obtained but after a Custom or Prescription is once duly obtained a disturbance for ten or twenty Years shall not destroy it 1 Inst 114. b. 2 Inst 653⸪ 2 Inst 654⸫ for Multiplex interruptio non tollit praescriptionem semel obtentam But I must here observe to the Reader How the Ecclesiastical Laws look upon Customs and Prescriptions that though the Civil and Ecclesiastical Laws do in some cases take notice of Custom and Prescription yet in this they differ from the Common Law In what they differ from the Common Law in this matter that they allow a usage for forty Years to be a good proof of a Custom or Prescription grounding their judgments upon a decretal Epistle of Pope Alexander the third Anno Domini 1180. But this Kingdom never allowed of that Epistle or yielded any obedience thereunto so that as well in Spiritual as Temporal Prescriptions and Customs if they come to be tried at Common Law as all Prescriptions concerning Tithes must be they must be proved to have been used beyond the memory of any Man to the contrary for if any Man living or any authentick Record or other evidence prove it was otherwise at any time since the first Year of Richard the first which was Anno Domini 1189. 2 Inst 653. the Custom or Prescription fails And the Influence Custom What Influence Custom and Prescription have in the manner of Tithing 27 H. 8. c. 20. and Prescription have in the Manner of Tithing is confirmed by three several Acts of Parliament First by the Stat. of 27 H. 8. whereby it is enacted that every Subject of England c. according to the Ecclesiastical Laws and Ordinances of the Church of England and after the laudable Vsages and Customs of the Parish or other place where he dwelleth or occupieth shall yield and pay his Tithes Offerings and other duties of Holy Church c. By this Statute the Ecclesiastical Laws and Canons are affirmed for the payment of Tithes but in such cases as they are contrary to the common-Common-Law or Customs of the place they do not bind Next this Act confirms and allows all Usages and Customs of the place where the Tithes arise which are to be preferred before all Canons and constitutions in the manner of Tithing The next Statute is that of 32 H. 32 H. 8. c. 7. 8. whereby it is enacted That every Person c. shall fully truly and effectually set out yield or pay all and singular Tithes and offerings aforesaid according to the Lawful Customs and usages of the Parishes and places where such Tithes or duties should grow arise come or be due This Act seems only to extend to customary Tithes and so doth the Statute of 2 E. 6. which is That every of the King's Subjects should from thenceforth 2 E. 6. c. 13. truly and justly without fraud or guile divide set out yield and pay all manner of their predial Tithes in their proper kind as they arise and happen in such manner and form as hath been of right yielded and paid within forty Years next before the making of the said Act or of right or Custom ought to have been paid But more of these Statutes in their proper place I shall now proceed to shew what liberty and priviledg the Parson Vicar c. hath in the grounds where the Tithes arise for the drying ordering and carrying away their Tithes CHAP. XIV The Fourteenth Chapter shews what Priviledg and Liberty the Parson Vicar c. hath in the ground where the Tithes arise for the drying making ordering and carrying away the same BY the Stat. of 2 E. 6. It is enacted 2 E. 6. cap. 13. What Friviledg the Parson c. hath in the Lands where the Tithes grow that at the Tithing time of Predial Tithes it should be lawful for every party to whom any Tithes ought to be paid or his Deputy or Servant to see the said Tithes to be set forth and severed from the nine parts and the same quietly to take and carry away This Statute as to the taking and carrying away seems only declarative of the Common Law but as to comeing upon the Lands to see the Tithes set forth seems to me to be a new Authority given by this Law for the owners of the Land are de jure bound to set forth their Tithes duly and rightly and if they fail therein the Parson Vicar c. have their remedies and if the Parishioner do justly and truly set forth his Tithes although the Parson Vicar
eighteen months and the last quarter part thereof at the end of two years And by a Statute made 1 Eliz. all Vicarages not exceeding ten pounds 1 Eliz cap. 4. and all Parsonages not exceeding ten Marks according to the valuation in the first fruits Office are discharged from the payment of first fruits And if an Incumbent die or be legally removed out of his Living without fraud then after such death or removal the remaining half yearly payments of the first fruits which were not become due are discharged by the said Statute of 1. Eliz. And by that Statute the Dean and Canons of Windsor are discharged of the payment of first fruits And by the Statute made in the 26th St 26 H. 8. c. 3. When the first Fruits are to be paid year of H. 8. before mentioned It is enacted That every Archbishop Bishop Dean Prebendary Archdeacon Parson Vicar c. before he have any actual or real possession or medling with the profits of his Living this must be between Institution Collation and Induction must pay or compound for or give security for the payment of his first fruits in the first fruits Office And that an Obligation taken for the same should be of the force of a Statute of the Staple and that if any such presume to enter into his Living before such payment or security given or composition made he is to forfeit double the value But his Majesty and his Royal Predecessors have not been severe in this Case to take the penalty but upon faileur their Officers of the Exchequer have sent our Process to the Sheriff to put the negligent Parsons Vicars c. in mind of this duty and upon coming in and paying the charge of the Process and paying or giving security for the first fruits they are discharged But the Parsons Vicars c. must be careful to pay in their half yearly payments as the same become due and take up their bonds or else new Process will issue to the increase of their charge Perhaps some may be so curious Why Vicarages are charged higher in the first fruits Office than Parsonages and desire to know why Vicarages not exceeding ten pound should be freed of this charge and Parsonages of ten marks should pay them now the reason of that was that the Vicarages in time of Popery and when the Valuation was taken had a great income by voluntary Offerings which falling to little or nothing upon the dissolution of Monasteries this favour was afforded them in their first fruits The next charge Parsons and Vicars are subject to are the Tenths Tenths that is a tenth part of the yearly value of all their Church Livings this payment was first exacted from the Clergy by the Pope about the twentieth year of E. 1. 2 Inst 628⸫ and a Valuation was then made by his authority of all Church Livings at which rate the Pope was answered his Tenths but he never had any Tenths of such Land as was given to the Church after that time these payments as appears by our Histories the Popes of Rome sometimes granted to Kings of England when the Kings pleased him or rather when he seared their power but upon the abolishing the Popes power which was in the 25th Stat. 25. H. 8. cap. year of H. 8. these Tenths were given to the King the year following by the aforesaid Statute of 26. H. 8. Stat. 26 H. 8. cap. 3. and to be paid at Christmas yearly and the Bishop of the Diocess is to collect them and they are to be paid according to the valuation taken the same year and now in the first fruits Office and are not paid that year the first fruits are paid but are allowed out of them because 't is intended that the King has the whole years profit But immediately upon the Reformation many Clergy men scrupled and denyed to pay these Tenths to the King being a duty properly due to the Pope and therefore the refusal or neglect to pay them to the King being certified by the Bishop that had the Collection of them is made a Cause of Deprivation not only of the Living St. 26. H. 8. c. 3. for which they refused to pay their Tenths but also of all their spiritual Preferments But by the Stat. St. 2 3 E. 6. c. 20. of 2 and 3 E. 6. that severity was moderated so that now the refusal or neglect to pay them and so certified by the Bishop makes only that Living void for which the Tenths shall be so refused But his Majesty and his Royal Predecessors have rarely put the severity of this Law in Execution but make out Process in the Exchequer to compel the payment however since the penalty is so great every Clergy man ought to be very careful to avoid the danger There is a Provision made by an Act of Parliament in the 27 Year of H. St. 27 H. 8. c. 8. The remedy where the Successor pays Tenths due by his Predecessor 8. for those Incumbents that shall be forced to pay the Tenthes due in the time of their Predecessors that they may levy the same upon any Goods they can find of their Predecessors upon the Church Living and if they be not redeemed within twelve days after they shall be distrained that then the same shall be praised by two or three indifferent Persons to be sworn and so many of them sold as will satisfy the arrear with cost and if no such Goods can be found then the Successor to take his remedy against his Predecessor his Executors or Administrators or others to whom his Goods shall come by hill in Chancery or an Action of Debt at Common Law There is another charge Procreationâ—â— to which the Parsons Vicars c. are subject for their Church Livings Sir John Davies Rep. 1 2 3. which is called Procreations or Proxies and these are duties due and payable to the Bishops and Arch-Deacons at the time of their visitations which are not paid by any certain Rule but by some antient Taxation for antiently the Religious Houses and Clergy-Men at their own charge entertained the Bishops and Arch-Deacons in their visitations See more of this matter Lind. cap. ut singula Ecclesiastica That by a Canon made by Steph. Langton about 1222 the Archdeacons were to bring but seven horses in their Trains and stay but one day and to invite no body but at length their attendants were so many and their trains so great that the Clergy and Religious Houses were horribly oppressed with entertaining of them to avoid which the Clergy and Religious Houses came to this composition every one to pay such a proportion to their visitors to be freed of that great oppession and therefore the Canonists define them to be Exhibitio sumptuum necessariorum facta praelatis qui Diocaeses peragrando Ecclesias subjectas visitant and this payment is continued to this day not only of those Livings
during the first seven years yet by a reasonable intendment 2 Inst 656⸪ Dyer 170. b⸪ P. 5. Plow 204. a. 396. b. the same shall be discharged from the payment of Corn and Hay for the first seven years after the Improvement and that is proved by the subsequent Clause whereby it is provided That if any such barren waste or heath ground hath before this time been charged with the payment of any Tithes and that the same be hereafter improved and converted into arable or Meadow that then the owner or owners thereof shall during the seven years next following from and after the same Improvement pay such kind of Tithe as was paid for the same before the said Improvement any thing in this Act c. So that it appears plainly by this Proviso that it was the intent of the makers of this Law only to free these improved Lands from the payment of such Tithes as were produced by the improvement which must be Hay or Corn and no other Next suppose a Man have barren Lands within this Law which are free from the payment of Tithes by prescription real composition c. It should seem by the penning of the aforesaid Proviso that he should pay Tithes for the same after the seven years this Proviso only providing for such Lands as are freed by Act of Parliament But that doubt seems cleared by the next precedent Proviso in this very Act whereby it is provided That no Person shall be sued or otherwise compelled to yield give or pay any manner of Tithes for any Mannors Lands Tenements or Hereditaments which by the Laws and Statutes of this Realm or by any Priviledg or Prescription are not chargeable with the payment of any such Tithes or that be discharged by any composition real So that this Proviso preserves all former legal discharges But the great question upon this Law is what shall be said to be barren Heath or wast Ground within this Law And Sir Edward Coke defines barren Land in these words Terra sterilis est terra infoecunda nullum ferens fructum 2 Inst 655⸪ But that definition will not hold in this Case for it does appear by the second Proviso that such barren Lands are intended that are barren quoad Agriculturam that is Dyer 170. p. 5. Co. Ent. 462.463 such barren Heath or wast Ground that of its own nature without improvement by Lime Marle Manure c. will not bring forth Corn or Hay 6 E. 6. per Bendloes 2 Inst 656⸫ Hill 9. Jac. C. B. ex motione Houghton But if Ground be not fit for Tillage yet if it be not suapte natura barren it is not within this Law As if a Wood be stubbed and grub'd up and made fit for the Plow and reduced to Tillage it shall pay Tithes presently for Wood Ground is Terra fertilis Faecunda So if Marish 2 Inst 656⸫ More 969. Meadow or other Land by neglecting to scowr the Trenches or Sewers or by sudden inundation be drowned or if by ill husbandry or negligence fertile Land be over-run with goss whynns broom fern bushes briars c. yet they shall not have the benefit of this Proviso because of their own natures they are fertile and apt for Tillage and the Parson Vicar c. shall not lose his Tithe by the ill husbandry of the Parishioner If Lands were barren Heath or wast Ground at the time of the making of this and were improved and had or might have had the benefit of this Law and after return to their barrenness Co. 10.86 b⸪ Co. 6.18 a⸪ the Owner of such Lands shall not have the benefit of this Law a second time upon a second improvement but I take the Law to be otherwise if the Lands had been improved before the time of the making of this Law and were then become barren again for there I take it upon a new improvement the Owner of such Land shall have the benefit of this Law Marsh Lands new gained from the Seas More 430. Bulft 165. 2 Inst 656⸫ and fenn Lands gained from the fresh waters by draining banking c. are not within the meaning of this Law to be freed from the payment of Tithes during the first seven years after the gaining But the Determination of this point which is or which is not barren Land within this Statute commonly falls out to be determined by common Jurors which notwithstanding the Direction of the Judge are seldom so favourable to the Church as they ought This Proviso only charges the payment of Corn and Hay after the seven years and the second Proviso provides only for the payment of such like Tithes as were formerly paid before the improvement for the first seven years after the improvement 27 H. 8. c. 20. 32 H. 8. c. 7. confirmed by the St. of 2 E. 6. Canons provincial cap. Quia quid maledictionis cap. Erroris damnabilis cap. Quoniam propter cap. Quoniam ut audivimus c. and makes no provision for the payment of other Tithes save Corn and Hay after the seven years So that it may seem to imply a discharge of all Tithes but Corn and Hay after the seven years but to this I answer that there being several Laws both Statute and Canon made formerly for the due payment of Tithes and no negative words in this act it shall not abrogate those Laws to the prejudice of the Church by implication CHAP. XX. The Twentieth Chapter shews what a real Composition is and in what Cases Lands shall be freed of the payment of Tithes by such Composition real THat which we call a real Composition is Where Tithes shall be discharged by a real Composition and what it is where the present Incumbent of any Church together with his Patron and Ordinary do agree by Deed under their hands and seals or by fine in the Kings Court that such Lands shall be freed and discharged of the payment of all manner of Tithes for ever paying some annual payment or doing some other thing to the ease profit or advantage of the Parson or Vicar c. to whom the Tithes did belong Co. 4.44 a⸪ 2 Inst 655⸪ Doct. Stud. l. 2. cap. 55. f. ult And these real Compositions have ever been held and allowed here in England to be a good Discharge of the payment of Tithes And from these real Compositions it is intended all Prescriptions de modo decimandi first took their rise and beginning though I doubt most at this day have grown up from the negligence and carelesness of the Clergy themselves And such Compositions may be made by the Parishioner alone without the Patron and Ordinary Vide Lindw cap. Quoniam propter verbo Redemptionem Upon this matter but it then binds only for the Life of the Incumbent and will be avoided by his Resignation Deprivation or being absent eighty days in a year from his Cure if he have Cure of Souls
indicted those that sued in the Spiritual Courts for substraction of Tithes or compelled them to desist by Bonds or otherwise but that Law being now become obsolete and besides my purpose I shall proceed to the Statute of 27 H. 8. by which it is enacted That every Subject of England 27 H. 8. c. 20. Ireland Wales Callais and the Marches of the same should according to the Ecclesiastical Laws and Ordinances of the Church of England and after the laudable Vsages and Customs of the Parishes or other places where he dwells or occupies shall yield and pay his Tithes and offerings and other duties of holy Church And that for subtraction of such Tithes c. may by due process of the King 's Ecclesiastical Laws consent the Person c. so offending before his Ordinary or other competent Judg c. having Authority to hear and determine the right Tithes c. And to compel the paâ—â—â— offending to do and yield their duties in that behalf And in case the Ordinary c. for any contempt contumacy disobedience or other misdemeanour of the Party Defendant shall make information to any of the Kings most Honourable Councel or to the Justices of the Peace of the Shire where the Offender dwellâ— to assist and aid the Ordinary c. and to order and reform any such Person in any Cause before rehearsed that then be of the Kings Councel or such two Justices of the Peace whereof one to be of the Quorum to whom such information or request shall be made shall have power to attach or cause to be attached the Person or c. against whom such information shall he made and to commit the same Persons to Ward there to remain without Bail or Mainprise untill he c. shall have found sufficient Surety to be bound by Recognisance or otherwise before the Kings Counsellor or c. or any other like Counsellors or Justices c. to the use of the King to give due obedience to the Process and Proceedings Decrees and Sentences of the Ecclesiastical Court wherein such Suit c. shall depend or be And further gives power to the said Counsellor or to two Justices of the Peace whereof one to be of the Quorum to take receive and Record such Recognizance and Bonds There is a Proviso in this Act that it shall not extend to London And another Proviso that the Party sued may have all legal Defences Appeals and Prohibitions And it is to be observed that this Law extends to all sort of Tithes Observations upon this Law mixt and Personal as well as Predial Next he that will have the benefit of this Law must sue for the single value and not for the double value upon the Statute of 2 E. 6. Thirdly the Plaintiff in the Ecclesiastical Court may proceed upon this Act for contempt contumacy or misdemeanour as well before as after Sentence Fourthly The security upon this Act may as well be by Bond as Recognizance Lastly observe the wary penning of this Act they must pay their Tithes and other Church Duties according to the Ecclesiastical Laws and laudable Customs and usages of the place next if it be demanded before whom Suit upon this Statute shall be made it is answered by the Statute it self it must be before such Judg as hath Jurisdiction of the Cause so that it creates or enlarges no Jurisdiction The next Act of Parliament concerning this matter is the Statute of 32 H. 8. 32 H. 8 c. 7. by which it is enacted that all and singular persons c. shall fully truly and effectually divide set out yield or pay all and singular Tithes and Offerings according to the lawful Customs and Vsages of the Parishes and Places where c. and in case any person c. to detain or with-hold any of the said Tithes or Offerings or any part or parcel thereof that then the person lay or c. shall and may convent the person or c. before the Ordinary c. according to the Ecclesiastical Laws c. and so proceed to Sentence according to the Process and course of the Ecclesiastical Laws And that if any Party appeal against the Judges Sentence he shall then assess the Costs of his Suit therein before expended and shall compel the Appellant to pay the said costs by the compulsory Process and Censures of the said Laws taking security of the said Party to whom the said costs shall be paid to repay the same if the Appeal be adjudged against him And if any Person after sentence definitive given against him shall obstinately and wilfully refuse to pay their Tithes or the sum adjudged that then two Justices of the Peace whereof one shall be of the Quorum shall c. upon Information Certificate or complaint to them made by writing by the said Ecclesiastical Judg c. cause the party refusing to be attached and committed to the next Goal there to remain till he c. have found sufficient sureties to be bound by Recognizance or otherwise before the same Justices to the use of the King to perform the said definitive sentence Provided that no Person or c. to be sued or otherwise compelled to yield give or pay any manner of Tithes for any Mannor Lands c. which by the Laws or Statutes of this Realm are discharged or not chargeable with c. Tithes Provided that this Act shall not extend or be expounded to give any remedy cause of Action or Suit in the Courts Temperal against any Person c. which shall refuse or deny to set out his or their Tithes or which shall detain with-hold or refuse to pay his Tithes or Offerings or any parcel thereof but that in all such Cases the person or persons being Ecclesiastical or Lay Persons having cause to demand or have the said tihes or Offerings or thereby wronged or grieved shall take and have their remedy for their said Tithes and Offerings in every such Case in the Spiritual Courts according to the Ordinance in the former Part of the said Act mentioned and not otherwise any thing c. 1. Observations upon this Statute It appears by the Preamble of this Law that this Act was particularly designed for the relief of Impropriators who before this Act were not capacitated to sue in the Spiritual Courts for the subtraction of Tithes and were hard put to it to find any other relief 2. Where by the former Act the Party for Contumacy c. might be compelled to give security before Sentence in this Case of the Lay Impropriators the Party cannot be compelled to give security till after definitive Sentence 3. Upon this Law there must be two Sureties at least upon the former one sufficed 4. The security in this as the former may be by Bond or Recognizance 5. Whosoever will have the benefit of this Act must sue particularly upon this Law for the single value and not for the double value upon the
Stat. of 2 E. 6. 6. This Law extends as the former did to all manner of Tithes and Offerings 7. London is excepted out of this Act as it was in the former 8. This Law only extends to customary Tithes and not for Tithes due by Canon and Ecclesiastical Laws 9. This Act only extends to such as shall obstinately and wilfully refuse to perform the Sentence of the Ecclesiastical Judge and for no other contempt or neglect 10. Lastly this Act restrains the Suit to the Ecclesiastical Court upon this Statute otherwise an Action as should seem might have been brought at Common Law upon this statute for not setting forth c. of their Tithes But diverse defects appearing in this Law especially to the Lay Impropriators they obtained a more effectual Law for their purpose in the 2 E. 6. by which it is enacted That if any Person carry away his Corn or Hay Stat. 2. E. 6. cap. 13. or other predial Tithes before the Tithe thereof be set forth or willingly withdraw his Tithes of the same c. that then upon due proof thereof made before the Spiritual Judge or any other Judge to whom heretofore he might have made complaint the Party so carrying away withdrawing letting or stopping shall pay double the value of the Tenth or Tithe so taken lost withdrawn or carried away over and besides the costs charges and expences of the Suit in the same the same to be recovered before the Ecclesiastical Judge according to the Ecclesiastical Laws There is a Proviso in this Act that gives occasion of many Prohibitions to this effect That no person shall be sued or otherwise compelled to yield give or pay any manner of Tithes for any Mannors Lands Tenements or Hereditaments which by the Laws and Statutes of this Realm or by any Priviledg or Prescription are not chargeable with the payment of such Tithes or that be discharged by any Composition real Extends only to Predial Tithes This Paragraph of this statute as to the double value extends only to predial Tithes as Corn Hay Wood Flax Hemp Fruit c. but for mixt and personal Tithes there is a Provision after in this Act. There is also another Proviso in this Statute as in the former Sole Jurisdiction to the Spiritual Courts which restrains all Suits for Subtraction of Tithes to be sued in the Ecclesiastical Court and that it shall not be lawful to sue any with-holder of Tithes obventions c. in any other Court and that if the Ecclesiastical Judge shall give Sentence no Prohibition or Appeal depending and the Party condemned do not obey the Sentence that then such Judge may excommunicate the Party and if he wilfully stand excommunicated by the space of forty days next after publication thereof in the Parish Church or the Place or Parish Excommunicato capiendo given where the Party excommunicated is dwelling or most abiding then the Judge Ecclesiastical may certifie the King in Chancery and require Process of Excommunicato capiendo This Clause extends to all manner of Tithes Offerings c. but this gives no double damages for them as the former Clause doth for Predial Tithes There is another Clause in this Act that gives ground likewise for many Prohibitions which is to this effect That the aforesaid Clause shall not extend to give any Judge Ecclesiastical Jurisdiction to hold Plea of any matter cause or thing repugnant to or against the effect intent or meaning of the Stat. of Westm the second cap. 5. the Stat. of Articuli Cleri circumspecte Agatis sylvae coeduae the Treatise de Regia Prohibitione Stat. 1. E. 3. cap. 10. or any of them or to hold Plea in any matter wherein the Kings Court ought to have Jurisdiction any thing therein c. Note that by these three Statutes before mentioned the Jurisdiction of Tithes is confirmed and restrained to the Ecclesiastical Courts That by the Stat. of 27 H. 8. Observations upon all the Statutes Process for contempt is given before Sentence By that of 32 H. 8. Process for contempt is given after Sentence definitive but observe the different penning And by this last statute a Writ of Excommunicato capiendo is given if the Party continue obstinate by the space of forty days after an Excommunication published against him so that a man would think here were as good remedies provided for the Recovery of Tithes in the Ecclesiastical Court as could be imagined but the Interruptions that are frequently given by Prohibitions as shall be shewed hereafter in due place very much frustrate the effect of the proceedings in those Courts And note 2 Inst 490⸫ that a modus decimandi is properly to be sued for in the Ecclesiastical Courts And so having said so much concerning the Ecclesiastical Jurisdiction for the determining the right of Tithes and relief against subtraction of Tithes I shall in the next place shew in what Courts in what Cases and in what manner they are determinable in the Temporal Courts Mr. Selden 422. In what Cases the Temporal Courts have and may determine the Right of Tithes Selden in his History of Tithes reckons up five manner of ways whereby the Right of Tithes may be determined in the Temporal Courts 1. In Prohibitions whereby the Spiritual Courts are forbidden to hold Plea where matters happen which are only triable in the Kings Court or where those Courts proceed against any statute or the Common Law c. 2. By Writs of Right of Advowson whereunto may be annexed the Writ of Judicavit 3. By Scire facias 4. By Process mandatory to command the payment of Tithes 5. By Suits and Actions upon the before mentioned Statute of 27 H. 8. 32 H. 8. and of 2 E. 6. to which may be added the Trials at Common Law by Actions of Trespass Assise c. And of these in order And first of Prohibitions In what Cases Prohibitions use to be granted which are frequently obtained out of the Courts at Westminster Courts of great Sessions in Wales and the County Palatines c. upon these grounds following First upon a modus decimandi Hob. 286. 42⸫ 247⸪ 2 Inst 610⸪ Co. Entr. 459. d. 460. b. Co. 2.44 Dyer 74. p 49. Modus decimandi where the Defendant in the Spiritual Court suggests that he and all those whose Estate he hath in the Lands c. in which c. have time out of mind paid so much yearly in money or giving some other recompence in satisfaction of all the Tithes arising upon the Lands or of all the Tithe Hay or Corn c. this manner of Tithing being by Prescription which is only and properly tryable at Common Law if pleaded in the spiritual Court or not pleaded or allowed or not allowed as a good Plea there is a ground of a Prohibition and what Prescriptions and modus decimandi are in this Case approved of by the Common Law I must refer the Reader to the proper
almost penned in the same words for the double value would make a man at a stand what the meaning of the Parliament was and it was forty years when almost all that were at the making of this Act were dead before it was found out 2 Inst 650⸫ that an Action of Debt lay upon this Clause at Common Law for the treble damages To wit Pasch 29. Eliz In the Exchequer in an Information by the Queens Attorney against one Wood for the treble value as forfeited to the Queen In which Cause it was resolved that an Action of Debt lay at the Common Law for the treble damage for not setting forth of Tithes for wheresoever an Act of Parliament gives a forfeiture against him that doth dispossess c. the Owner of his property as here he doth of his Tithes there the forfeiture is given to the Party grieved or dispossessed since which resolution Actions of Debt have been frequently brought in all the Courts of Westminster by Parsons Vicars Propriators Owners and Farmers of Tithes as well Lay as Spiritual upon this Statute but being so long before it was found out that an Action lay at Common Law upon this Statute the Plaintiffs in the recital of the Statute alledged it to be made the fourth of February 2 E. 6. whereas in truth the Parliament begun the 1 of E. 6. and was held by Prorogation the fourth of February 2 E. 6. And this being discovered in an Action between Oliver and Colier P. 6. Jac. B. R. brought upon this Statute wherein the Statute was misrecited as aforesaid and exception taken to it in arrest of Judgment 1 Brownlow 100. Yelver 126. Dyer 171. p. 6. Stile 122. the Court upon good advisement overruled the exception by reason of the multitude of Presidents and affirmed the Rule that multitudo errantium parit errori Patrocinium Now considering that this is become a very frequent Action in use I conceive it will not be improper to the present occasion to communicate to the Reader what I have observed and learned in this kind of Actions not only concerning the Forms of Declarations Pleadings Verdicts and Judgments but likewise what evidence is necessary upon the general Issues of non culpa and nil debet for the Plaintiff and Defendant and in the first Case consider in what Cases and by whom and against whom this Action may be brought If two be Joynt Tenants Hutton 121⸪ 122⸫ By whom and against whom Actions lye in this Statute and they enter and occupy jointly the Action must be brought against them joyntly but if one only enter and occupie them the Action must be brought against him that only occupies alone But if there be two Tenants in Common and one of them sets out his Tithe and the other carries it all away there the Action shall be brought against him that carries it all away alone If the Husband and Wife in the right of the Wife be intitled to Tithes Noy 3.136 1 Brown 86. Yelv. 63. Cro. Jac. 68. they shall joyn in this Action because the damage is to survive but a Parson and a Vicar cannot joyn but if they joyn in a Lease to a third person their Farmer may sue for all in one Action but in the first Case I see no reason but that the Husband may bring the Action alone and so I have known it often done In an Action brought upon this Statute The Form of the Declar. Bellet vers Henworth P. 1657 B. R. the Severance was alledged before the sowing and exception taken after Verdict but the Exception was disallowed because the shewing of the sowing was superfluous and so aided by the Verdict The taking was alledged after the Plaintiffs Term was ended Cro. Car. 324. and yet held good M. More 911. 40 and 41 Eliz. A Judgment was arrested because the Suit was brought ad respondend tam Domino Regi quam Parti but this Case I very much doubt for being against a Statute Law it is a contempt finable though the Plaintiff have the forfeit as upon the Statute of Huy and Cry Hetley 121. c. And I take the Case inter Luvered and Owen M. 4. Jac. C. B. for the better Law where it was held good Upon an Action brought by two upon this Statute Cro. El. 170. who made their Title by a Lease from a Patentee of the King and exception was taken because they did not shew the Patent but disallowed 1. Because the Letters Patents did not belong to the Plaintiffs 2. Because the Plaintiffs did not demand the Tithes themselves but damages for a tort another Exception was taken to the Declaration because the Plaintiff alledged the Defendant did not agree with them and did not say or either of them but held good by Intendment And it hath been adjudged 2 Bulst 65.228.183 1 Brown 86. Noy 3. Yelv. 63. Cro. Jac. 68.361 that in this Action the Plaintiff needs not to shew his Title especially but it is enough for him to alledg that he is Propriator Farmer or Rector generally without shewing how And it hath been held good 2 Brown 70 71. though the Plaintiff in his Declaration do not express the quantities or loads of the Corn or Hay carried away 2 Inst 650. And so it is though you do not express in your Declaration the kinds of the Grain carried away Where a man alledged Coke vers Smith H. 7. Car. 1.10 587. B. R. per Lat. that he was Farmer of all the Tithe Corn arising c. upon sixty Acres of Land in D. and did not alledg which they were in certain and yet allowed for good 2. The Plaintiff alledged the Defendants Occupiers but did not say whether joyntly or in common and yet held good 3. The Plaintiff had alledged no time of the carrying away but having alledged the time of the severance and the carrying away coming in with a Conjunction Copulative it was held well enough In an Action brought upon this Statute Cto Jac. 324. 2 Bulst 114. the Plaintiff averred in his Declaration that he was subditus dictii Domini Regis having recited the Statute and it was held nought because it must necessarily be intended E. 6. and not of the present King In an Action upon this Stat. Pleas in this Action Porter vers Rochester Hill 9 Jac. B. R. the Defendant pleaded a Recovery in the Ecclesiastical Court but it was held no good Plea at Common Law but I conceive it would be a good evidence upon nil debet pleaded otherwise the Parishioner were in an ill Condition In this Action non culpa and nil debet have been both held good Issues Wortley vers Empringham P. 42. El. B. R. Hob. 218. Cro. El. 766. Cro. Jac. 361. but it is no good Plea to plead that the Plaintiff sowed the Corn and sold it to the Defendant because this matter will not excuse the payment of Tithes Now having
between lay Persons And it is held in the 25 H. 8. 25 H. 8. Br. Jurisdiction 95. that where the Lord of a Mannor claimed Tithes in consideration of finding a Chaplain at such a Chappel and the Parishioners claimed them likewise upon the same consideration that the right of these Tithes being between Lay Persons was triable at Common Law only And by the Statute of 32 H. 8. Stat. 32. H. 8. cap. 7. it is enacted that in all cases where any Person c. which then had or then after should have any Estate of Inheritance Free-hold c. in or to any Parsonage Vicarage Portion Pension Tithes Oblations and which then were or then after should be made Temporal or admitted to be abide and go to or in temporal hands and Lay uses and profits by the Law c. should then after fortune to be disseised deforced wronged or otherwise kept or put out from their Lawful Inheritance Estate Seisine Possession Occupation Term Right or Interest of in or to the same or c. by any other Person or c. claiming or pretending to have Interest or Title to the same that then and in every such case c. the Person c. so disseised c. the Heirs Wives c. shall and may have their remedy in the Kings Temporal Courts or other Temporal Courts as the Case shall require for the recovering c. such inheritance c. by Writs Original of quod ei deferat praecipe quod reddat Assise c. as the Case shall require c. So that since this Statute the Case is put out of all doubt that for such Tithes c. which are become Lay-fee the right Title and possession is become determinable at the Common Law and all manner of real Actions Ejectments and other personal Actions are brought of them as the Case requires daily And now having shewed in how many Courts Conclusion and how many ways Tithes may be recovered it calls to my mind the Fable of the Fox and the Cat who had but one way to shift for her self when the Hunts men came but that one proved better and more secure than all the shifts the Fox had boasted of for upon the whole matter it were much better for the Reverend Clergy if they had one ready way to recover single damages with their costs of Suits at Common Law where they might not be interrupted by Prohibitions and clashing of Jurisdictions and tost from one Court to another than all these ways I have mentioned And it is a wonder to me that there being hardly a Lord in Parliament nor many of the House of Commons that have not some part of their Estates in impropriations though they had no kindness to the Church yet for their own interest and concerns have not to that purpose preferred some Law in Parliament before this time which might be done in a few lines by giving an Action of the Case at Common Law for the subtraction of Tithes with costs or if the Parliament should think fit the smaller sort of Tithes might be determined in a Summary way by the Justices of Peace with an appeal to the Judges of Assise but this I humbly submit as I do all the rest to better Judgments I have now finished this small Tract whereby I wish the Reverend Clergy may receive as much satisfaction as I desire The conclusion of the whole or they can expect And I shall now conclude all with a List of those Monasteries the Lands of which are only capable to be discharged of the payment of Tithes by Order Bull Prescription real composition or otherwise that every Clergy man may satisfy himself without further enquiry whether such Monastery Lands as shall happen to be in his Parish c. may have the benefit of the Statute of 31 H. 8. to be freed of the payment of Tithes and in the List following I have set down the times of the foundations of the several Monasteries that being material to know for if they were founded since the first year of R. 1. they cannot prescribe in non decimando I have also for the most part set down what order the Houses were of that the Reader may satisfy himself whether they were of any of those Orders that were priviledged from the payment of Tithes for the valuations I have followed Mr. Dugdale as being a sure Author having observed many Errors in that of Mr. Speed In the perusal of this Catalogue you will find how many Foundations were made of Monasteries in the first Century after the Conquest and till the Raign of King John that if they had continued at that rate the greatest part if not all the Land in England had by this day been Monastery Land but in King John's time they begun to slack and in the ninth of H. Magna Charta 3. the Statute of Mortmain was made after which you will find but few Religious Houses as they were called founded The Cistertian order came into England about the year of our Lord 1128. and in the ensuing Table you may see how well they prospered that in so short a time there should be so many of the greater Abbies of that order The black Canons regular of St. Stows Survey of London 930⸪ Augustine first came into England as Mr. Stow says in the Year 1108. and were first placed in Trinity Church within Algate London but I rather think he is mistaken in the time for I find some Monasteries of that order before that time however the ensuing Catalogue will inform you of their increase And it is without dispute that the increase of Monasteries especially those of priviledged Orders tended very much to the prejudice of the Secular Clergy that had the Cure of Souls for beside the orders that were priviledged they appropriated all the Churches they could obtain and how ill they were served a Man may in some measure observe that peruses the Statute of 15 R. 2. and 4 H. 4. for it appears by them that they endowed no Vicarage at all upon the appropriating Churches or so meanly Endowment of Vicarages that the Vicars could not live upon them and not at all Hospitality practised And therefore the Parliament of England which has always put a stop to the usurpations and exorbitances of Rome and to prevent the Religious Houses destroying the Church in the 15. Year of the Raign of King Richard the second made a Law 15 R. 2. cap. 6. that the Diocesan of the place where any Church was to be appropriated should take care the Vicarage should be well and sufficiently endowed besides a Portion to the poor But this Act not having the effect was desired and expected the Bishops of those times being overawed by his Holinesses mandates or participating too much of his qualities a second good Act was made in the 14. Year of King H. 4 H. 4. cap. 12. 4. whereby it was enacted that
of several houses and le ts out part and holds any part himself 8. That if any Farmer or his Assigns shall farm all the houses c. so farmed to one or divers Tenants the Tenants shall pay Tithes according to the Rent reserved 9. That if dwelling houses shall be converted into Ware-houses or è converso yet they shall pay Tithe according to the Rate aforesaid 10. That if a Dye-house or Brew-house be let with the Implements then a third penny of the Tithes after the rate abovesaid to be abated 11. That where a mansion house with shops stables wharfs with Cranes Timber-yard or Gardens belonging to the same and occupied together shall afterwards be severed or were severed within 8 years before the Decree that then the Farmers of the shops stables c. shall pay Tithes according to the rate abovesaid 12. That these Tithes shall be paid quarterly at Easter Midsummer Michaelmas and Christmas 13. That any Housholder that holds a house of 10 s. Rent or above shall be acquit of his Offerings but his Wife Children and Servants shall pay 2 d. yearly for their four Offering days receiving at Easter 14. That if any house of 10 s. Rent or above shall be let by parcels under 10 s. Rent then the Owner if he live in any part of the house or the chief Tenant shall pay the Tithe after the rate as the same house was accustomably letten before such Division and the Sub-Tenants that hold less than 10 s. per annum without fraud or covin shall pay 2 d. yearly for their Offerings 15. That no Tithes shall be paid for any Gardens belonging to any Mansion house and which are held for pleasure but if such Garden contain half an Acre of ground or more and shall make any yearly profit by Sale then the same to be paid for according to the rate abovesaid 16. This Act is not to extend to the houses of Noblemen or Noblewomen whilst they are kept in their own hands and not lett for Rent and which formerly paid no Tithe so long as the same continue unletten nor to the Halls of any Craft or Companies so long as the same are unletten and in times past paid no Tithes 17. That Shedds Stables Cellars Timber-yards and Tenter-yards which were never parcell of or belonging to any dwelling House and which has not been used to pay Tithes shall be acquit of the payment of Tithes as hath been accustomed 18. But if by Custom any lesser rate have been paid than after the rate of two shillings and nine pence in the pound then the accustomed rate only to be paid 19. The Lord Major of the City of London by the advice of Councel is Authorized by the said Act to hear and determine all differences arising upon this Decree and give costs according to the intent thereof 20. That if the Major do not make an end of such differences within two Months after complaint or if any Person find himself agrieved by his Decree then the Lord Chancellor within three Months after complaint to him made shall make on end of the differences with costs c. 21. That if Rents fall by reason of decay or burning to less than they were accustomably letten that then the Tithes during such Term shall be paid according to the Rent reserved This is a short abstract of that great Decree which I have inserted here for the use of the Clergy of that City I shall only add some other resolutions upon this Decree and conclude this Chapter In a Case between Dr. Noy 130. Where Suits for Tithes in London shall be determined Meadhouse and Dr. Tayler it was resolved that Suits for Tithes upon this Decree should be before the Maior in writing and not by Parol 2. That a Reservation by a Leasor for life upon a Lease by him made for years shall not bind him in reversion to pay Tithes according to that rate 3. That a Rent for half a year and after for another half year is a yearly Rent within this Decree It hath been resolved Cro. El. 276. that Abbey Lands within the City of London and the liberties thereof are not freed from the payment of Tithes within the Statute of 31 H. 8. because the Statute and Decree for the payment of Tithes within the City and Liberties of London was made after the Statute of 31 H. 8. and their Priviledges are not reserved And it hath been resolved 2 Inst 660. that if any Suit be brought in the Ecclesiastical Court or any other Court than is directed by the Act a Prohibition lyes Lastly 2 Inst 690⸫ where the Decree says where no Rent is reserved by reason of any fine or income paid before hand that is put only for Example for if no Rent be reserved for this or any other cause or consideration it is within the meaning of this Clause CHAP. XXVI The Twenty Sixth Chapter shews in what Courts the Right of Tithes is determinable and how and in what manner to be recovered and in what Cases Prohibitions are usually granted and how prosecuted and defended THat Tithes were antiently determinable in the County and Hundred Courts 2 Inst 661⸫ Seld. hist decim 412⸫ Lamb. Saxon Laws 45. is asserted both by Sir Edward Coke and Mr. Selden And the same appears by the Laws of King Ethelstan long before the conquest and Mr. Selden is of opinion that the Bishops consistory here in England was not setled till the time of William the Conqueror who by his Charter commands Seld. 414. ut nullus Episcopus vel Archidiaconus de legibus Episcopalibus amplius in Hundredo placita teneant nec causam quae ad regimen animarum pertinet ad judicium secularium hominum adducant sed quicunque secundum leges Episcopales de quacunque causa vel culpa interpellatus fuerit ad locum quem ad hoc Episcopus elegerit nominaverit veniat ibique de causa sua respondeat non secundum Hundret sed secundum Canones Leges Episcopales rectum Deo Episcopo suo faciat And closes thus Hoc etiam defendo ut nullus Laicus homo de legibus quae ad Episcopum pertinent se intromittat yet notwithstanding as Mr. Selden observes Seld. 414. c. the Jurisdiction of Tithes was not so settled in the Bishop and Ecclesiastical Courts but there were Suits for Tithes as well in the Temporal as Ecclesiastical Courts whereof he gives some Instances And amongst the Laws of King H. Leg. H. 1. c. 11. Lamb. 182. 1. I find this Clause Si quis rectam decimam superteneat vadat praepositus Regis Episcopi terrae domini cum presbytero ingratis auferant Ecclesiae eui pertinebit reddant novam paertem relinquant ei qui decimam dari noluerit But the Law hath been now long setled that the Ecclesiastical Courts have in some cases the power to determine the right of Tithes
and in all cases to hold plea for the subtraction and withholding of Tithes and confirmed by several Acts of Parliament 35 H. 6.39 38 H. 6.22 per Fortescue Where the Spiritual Court may determine the Right of Tithes To the first if a dispute happen between two Parsons to which of them the Tithes belong whether to the one by parochial right or the other as a portion belonging to his Rectory by prescription and both Parsons claim by presentation under the same Title so that the right of Patronage comes not in dispute the right of these Tithes shall be determined in the Ecclesiastical Court and no Prohibition or Judicavit shall hinder it and this suit in the Ecclesiastical Court is called a spoliation And this Jurisdiction is so peculiar and annexed to the Spiritual Courts 38 H. 6.21 5 H. 5.40 14 H. 4.17 a. b. Where the Temporal Courts have not Jurisdiction of Tithes That if the one Parson should bring an Action of Trespass at Common Law against the other Parson for the taking and carrying away Corn or other things set out for Tithe the Defendant may by way of plea shew that the Goods in question were Tithes set forth and severed from the nine parts and that he is Parson of Dale and that he and all his predecessors time out of mind have had these Tithes as a portion which belonged to his Church and that the Plaintiff being Rector of the Parish where they grew claims them as his Tithes and demand Judgment if the Kings Court will hold plea by such plea the Kings Court shall be ousted of Jurisdiction 5 H. 6.10 50 E. 3.20 38 E. 3.6 39 E. 3.23 5 H. 5.10 1 H. 6.5 44 E. 3.39 20 H. 6.17 2 H. 4.15 31 H. 6.11 2 E. 4.15 but if the dispute in such Action fall out in pleading to be about the bounds of the Parishes then the King's Court shall not be ousted of Jurisdiction And so it is if the question be between the Farmer Bayly or Servant of the one Parson and the Farmer Bayly c. of the other or the other Person himself in such cases though the dispute does appear to be concerning the right of Tithes between the Persons yet the Court shall not be ousted of the Jurisdiction because they are not both Clergy Men. But in all these cases where the right of Tithes is in dispute between one Parson and another in whose names soever the Suit is in the Spiritual Court I conceive no prohibition lies if both Parsons come in by the same Title of patronage so that the right of patronage come not in dispute And I take the Law to be the same where the question arises between the Parson who is patron 40 E. 3.28 35 H. 6.39 and the Vicar whether Tithes belong to the Parson or Vicar But where the right of Tithes is controverted between two Clergy Men which come into their Churches by several patrons West 2. c. 5. Circumspecte Agatis Articuli Cleri cap. 2. Where the Spiritual Court cannot determine the right of Tithes there in that cave the Spiritual Court hath not Jurisdiction to determine the right of the Tithes if they amount to the fourth part of the yearly value of the Church but the Title is to be determined by writ of right of Advowson of Tithes as shall be shewed more at large when I shall come to shew in what cases the right of Tithes is determinable in the Kings Court But in that case if the Tithes in question do not amount to the fourth part of the value of the Church the Ecclesiastical Court may determine the right in a spoliation F.N.B. 37. E. But the Jurisdiction of the Ecclesiastical Courts to hold plea for the subtraction and withholding of Tithes Spiritual Jurisdiction confirmed by several Acts of Parliament as the same hath been very antient so it hath been confirmed by several Acts of Parliament as I shall shew the first of which is that of circumspecte agatis made in the ninth Year of E. 1. by which it is enacted That By the Statute de circumspecte Agatis Si Rector petat versus parochianos oblationes decimas debitas consuetas vel si Rector petat versus Rectorem de decimis majoribus vel minoribus dummodo non petatur quarta pars valoris Ecclesiae Item si Rector petat mortuarium in partibus ubi mortuarium dari consuevit Item si praelatus alicujus Ecclesiae vel advocatus petat à Rectore pensionem sibi debitam omnes hujusmodi petitiones sunt faciendae in Foro Ecclesiastico c. and concludes In omnibus praedictis casibus habet Judex Ecclesiasticus cognoscere Regia prohibitione non obstante There hath been some question made whether this were an Act of Parliament or not That it is an Act of Parliament 2 Inst 487⸪ Seld. hist decim 424. but it is proved by Sir Edward Coke by many unanswerable reasons to be an Act of Parliament and so agreed by Mr. Selden and almost all others Secondly And extends to all England admitting it to be an Act of Parliament it hath been doubted whether it extended further than to the Diocess of Norwich it seeming to be appropriated by the penning to that Diocess alone 2 Inst 487⸪ but by the general opinion of the learned it extends to all other Diocesses and Norwich is only put by way of example And the prudent penning of this Law by our Ancestors deserves the Reader 's observation Observations in the penning of it how careful they were to preserve their own rights and avoid the incroachments of the Clergy who were in those days very powerful for first they would not give way to the Canons to destroy their Customs and Prescriptions allowed by the Common Law and therefore give the Spiritual Judg Jurisdiction of Tithes and Oblations debitas consuetas only 2. They would not expose their rights of Patronage to the determination of the Spiritual Judg and therefore this condition is annexed Dummodo non petatur quarta pars valoris Ecclesiae Lastly they would not subject themselves to pay Mortuaries according to the Canon Law but ubi dari consuevit so that if any Suit were sued for Tithes Offerings Mortuaries not due as well by Custom as Common Law a Prohibition lay and doth lye at this day The second Statute concerning the Jurisdiction of the Spiritual Courts in cases of Tithes is the Statute of Articuli Cleri but I shall pass it by here till I come to speak of the Writ of Judicavit The next Statute I meet with that concerns this matter 18 E. 3 c. 7. is the Statute of 18 E. 3. cap. 7. which I shall pass by also till I come to speak of the determination of the right of Tithes by scire facias There was another Statute made 1 R. 2. 1 R. 2. c. 13. it is Cap. 13. for the punishing of such as