ordained or made a minister or giving any order or license to preach c. but is more severe upon the Clergy-man than the Officer for the Officer only forfeits forty shillings but the Clergy forfeits ten pounds and all the Livings he shall take within seven years are made void by this Law after Induction so that for seven years an Incapacity lyes upon the Clerk how careful ought Clergy-men to be what Fees they give for their Orders And note the manner of the penning of this paragraph that the Church shall not be void till after Induction The first Paragraph makes the presentation institution and induction and all void So that the Church in that case is never full The second Paragraph makes it void not till after the corrupt admission institution installation induction investure or placing and this not till after induction by which means the Grantee of the next avoidance that presents such Clerks cannot present again and so it is where the Patrons present by turn Co. 8 102.a⸪ the presenting such a Clerk will satisfy a turn if inducted Lastly How the forf are to be recovered observe all pecuniary forfeitures and penalties within this Statute are given to the King and Informer and are to be recovered by Bill Plaint Action of Debt or Information in any of his Majestie 's Courts of Record that is the Chauncery King's Bench Commonpleas and Exchequer at Westminster but not in any inferior Court of Record and no essoin priviledg protection or wager of Law is to be allowed but I conceive the priviledg or protection of Parliament are not intended in these general words but the common protections and priviledg of Officers and Courts Quaere Ideo quaere inde It is not proper for this discourse to examine by what Authority any thing at all is taken for giving Orders See a Canon against it and what Fâ—es shall be taken by the Clerks Lindwood c. saeva miseratis Mat. 10. v. 8. Admissions Institutions c. Since our Saviour says Gratis accepistis gratis date But he that has a mind to satisfy himself therein let him read that most excellent History of the Council of Trent Pag 492 493 494 c. which is faithfully translated by Sir Nathaniel Brent where this point is excellently discussed Pro. and Con. where I will leave my Reader and conclude this Chapter and in the next place shew my Parson Vicar c. what he is to do before at and after his Admission Institution and Induction CHAP. VI. The Sixth Chapter shews what a Clerk is to do before at and after his admission institution and induction to make him a complete Parson NO Man at this day is capable to be Parson Vicar c. Every Parson and Vicar must be a Priest before he is a Priest in Orders which he cannot be before he is four and twenty years of Age as has been said and if any Person shall be admitted instituted and inducted into any Living before he is in Holy Orders his admission institution and induction are void by the late Act of Uniformity Stat. 14. Car. 2. cap. 4. Subscription and Certificate Secondly he must make his Subscription according to the said Act and have a Certificate from the Bishop or c. under his Hand and Seal that he hath so done and then within two Months after he is inducted he must upon some Sunday or Lord's-day during Divine Service that is Read Prayers after some part of the Divine Service of the Church for that day appointed is read Read the Articles and before the whole is finished read the nine and thirty Articles of Religion in the Parish Church c. Stat. Supra into which he shall be inducted and declare his unfeigned assent and consent to all that is therein contained and he must likewise within two Months after actual possession of such Benefice c. which is intended within two Months after induction or installation c. read the Book of Common Prayer that is the whole Service of the Church appointed for that day as it is there appointed and likewise declare his assent and consent to all the matters and things therein contained in these words St. t. supra I. A. B. do declare my unfeigned assent and consent to all and every thing contained and prescribed in and by the Book intituled Declaration The Book of Common Prayer and Administration of the Sacraments and other Rites and Ceremonies of the Church according to the use of the Church of England together with the Psalter or Psalms of David pointed as they are to be sung or said in Churches and the form or manner of making Ordaining and Consecrating of Bishops Priests and Deacons And if any Parson Vicar c. fail in the doing of any of these things before-mentioned or any of these things be neglected the Church becomes void and the Clerk that makes such failure in case he shall sue for his Tithes or any other Church duty or other thing belonging to his Church if the Defendant insist upon it must prove the doing of all these things But usually the Judges in favour of the Clergy after they have been in possession of their Livings ten or twenty Years or any considerable time will presume all these things regularly done and will not put the Parsons c. to the precise proof of them And it is to be observed that the Parsons Vicars c. must upon the acceptance of every new Living or Ecclesiastical preferment within this Law repeat all these things for the performance of all these things upon the taking of one Living will not satisfy for any other I shall give my reverent Clergy Men therefore this caution Advice to the Clergy that if any of them have accepted any Ecclesiastical preferments and have negligently omitted any of these things and that thereby may be lapsed to the King that they obtain presentations from the King ad Corroborandum and that thereupon they perfect all their former neglects And for the future I advise them that they first have some credible Witnesses present when they make their Subscriptions before the Bishop and that they attest the Bishop's Certificate and that they get two Books of Articles and that when they read the thirty nine Articles they give one of those Books of Articles to some credible Parishioners to read with them and then attest the Book that they were present and heard the Clerk read the said thirty nine Articles during the time of Common Prayer and declared his unfeigned assent and consent to all the matters and things therein contained by subscribing their names thereunto and that the Clergy Man keep safely the said Book of Articles with this attestation And I advise that when he reads the Book of Common Prayer which must as above is said be read Morning and Evening in all things which is prescribed therein within two Months
after induction that he likewise make some intelligent Parishioners to read with him and give them a Copy of the Declaration aforesaid and at the foot of it take an attestation under their hands of his reading the said Book of Common Prayer and Declaration which may be done in this form First in a fair legible hand write the Declaration aforesaid then write under to this effect _____ Memorand That upon Sunday the _____ Day of _____ in the Year of our Lord. _____ A. B. Parson of D. in the County of D. read Common Prayers in the Parish Church of D. aforesaid both in the forenoon and afternoon of the same day according to the Form and Order prescribed and directed by the Book intituled The Book of Common Prayer and Administration of the Sacraments and other Rights and Ceremonies of the Church according to the use of the Church of England together with the Psalter or Psalms of David pointed as they are to be sung or said in Churches the Form or manner of making Ordaining and Consecrating of Bishops Priests and Deacons and immediately after the reading the same made a Declaration of his unfeigned assent and consent to all the matters and things therein contained in the Form and words above written And then let the Witnesses hereunto subscribe the same Certificate which the Clerk is to keep carefully with his Institution induction and Certificate with the Book of Articles attested as is above directed And in these things I advise all Clergy Men to be very tender and careful There was an Act made in the thirteenth Year of Queen Elizabeth 13 El. cap. 12. What age a Parson ought to be That none should be admitted to any Benefice unless he were three and twenty Years of age and a Deacon at least and should subscribe the thirty nine Articles before he should be admitted and that none should be admitted to Preach or Administer the Sacraments unless such Persons were 24 Years of Age at least But this Law is in part altered by the beforementioned new Statute of Vniformity for now none can be admitted to any Living till he is a Priest in Holy Orders which he cannot be by this Statute till he is four and twenty Tears of age And by the same Statute it is enacted Who may be admitted to a Benefice of 30 l. per annum in the King's books that none should be admitted to any Benefice with cure of Souls of the value of thirty pounds or upward in the King's Books unless he be a Batchelor of Divinity at least or a Preacher licensed by some Bishop or one of the Vniversities of this Kingdom and if not so qualified his Institution to be void CHAP. VII The Seventh Chapter shews the duty of the Parson Vicar c. after Induction and the former Ceremonies performed and treats of non-residence and the penalties thereof and for what reasons the same may be excused HE that has orderly as aforesaid Parsons c. must be conformable Stat. 1. Eliz. cap. 2. obtained an Ecclesiastical preferment in the Church of England must be conformable to the Government and Orders thereof and must not use any other publick Form of Prayer than what is prescribed by the Book of Common Prayer before mentioned neither must he administer the Sacraments of Baptism and the Lord's Supper in any other manner or form than what is therein and thereby directed and prescribed And if any Incumbent be resident upon his Living as he ought to be and keep a Curate Stat. 14. Cat. 2. cap. 14. When and how oft he must read the Common Prayers he is bound by the Act of Vniformity once every month at least to read the Common Prayers of the Church according as they are directed by the book of Common Prayer in his Parish-Church in his own person or he forfeits 5 l. for every time he fails therein See the Statute how he is to be convicted and the penalty to be levied And the Common Prayer by that Statute is to be read before every Lecture Before every Lecture and it is not sufficient to read a piece here and a piece there where the Party pleases but they must read the whole appointed for the day orderly as it is appointed with all the Circumstances and Ceremonies of kneeling and standing as is prescribed otherwise it is no reading of Common Prayers within this Law quod nota And note Stat. 14. Car. 2. cap. 4. that by the late Statute of Uniformity the former Statutes for Uniformity and Penalties therein are extended to this Book of Common Prayer now lately established And by the Stat. Stat. 1. Eliz. cap 2. of 1 Eliz. It is inacted That if any Minister that ought or should sing or say Common Prayer c. refuse to use the same Common Prayers or to administer the Sacraments The penalty for using other Forms of Prayer c. c. in such order and form as they are mentioned and set forth in the Common prayer-Prayer-Book or shall wilfully or obstinately standing in the same use any other Rite Ceremony Order Form or Manner of Celebrating the Lords Supper or other open Prayers or shall preach declare or speak any thing in derogation or depraving of the same Book or any thing therein contained c. upon Conviction the Party guilty of any of these offences forfeits the profits of all his Livings and Spiritual Promotions for a year and is to suffer Imprisonment for six months without bail or mainprise and upon a second Conviction for the like offence he is to suffer imprisonment for a whole year and be deprived ipso facto of all his spiritual promotions and upon a third Conviction for the like offence shall be imprisoned during life and lose all his Spiritual promotions if he have any And if such person have no spiritual promotions then for the first offence he is to be imprisoned for a year for the second during life without bayl or mainprise I have been the briefer in these matters upon the Statutes of Uniformity because they are printed at large before the book of Common Prayer to which I refer the Reader for his fuller satisfaction and they are so plain and full that they need no Comment but to advise all Clergy-men to read and observe them cautiously I shall only give the Reader this further caution that if any Parson Vicar 13 Eliz. c. â—2 c. shall maintain any Doctrine contrary to the thirty nine Articles of Religion it is cause of Deprivation or if he administers the Sacraments in any other Form than is prescribed by the Book of Common Prayer he forfeits 100 l. by a Statute made in the 13 year of Queen El. And by the new Statute of Uniformity this penalty is extended to such as do it contrary to the present book of Common Prayer now used The next Duty Incumbent upon the Parsons Vicars c. is that they be resident upon their
Deprivation or Deposition have been allowed and approved of by the Judges and Courts of the Common Law or by any of the Statutes of this Realm But there are many more causes of Deprivation by the Canons and Laws Ecclesiastical which being out of my profession I shall not presume to discourse of 1. Co. 11.49 b⸫ Waste and Dilapidation cause of Deprivation c. The Dilapidating and wasting the woods and houses and other buildings of the Church is held a good Cause of Deprivation or Deposition as appears in the precedent Chapter and the Books there vouched in the margent 2. Simony cause of Deprivation The Clerk that obtains any preferment in the Church by any Simoniacal Contract or agreement may be deprived by his Ordinary c. as appears at large in the fifth Chapter here before upon that Subject 3. 1 El. cap. 2. Stat. 14. Car. 2.4 To use other Forms of Prayer the second offence That if any Parson c. shall refuse to use the book of Common Prayer or administer the Sacraments in the order there prescribed or shall wilfully and obstinately standing in the same use any other Rite or Ceremony order form or manner of Celebrating the Lord's Supper or other open Prayers or shall preach declare or speak any thing in derogation thereof or depraving the same or any thing therein contained and having formerly been convicted for the like offence shall upon his second Conviction be deprived ipso facto 4. If any Parson Vicar c. Stat. 14. Car. 2. cap. 4. Neglecting to read Prayers within two months after Induction shall not within two months next after Induction upon some Lord's day openly publickly and solemnly read the Morning and Evening Prayers appointed to be read the same day according to the Book of Common Prayer and after such reading shall not openly and publickly before the Congregation there assembled declare his unfeigned assent and consent to the use of all the things therein contained in such manner as is directed before here in the seventh Chapter and if there be any lawful Impediment then if he do not do the same within one Month after the impediment removed such Parson Vicar c. shall be deprived ipso facto 13 El. cap. 12. To maintain any doctrine against the 39. Art of Religion 5 B. 2. tit Trial 54. Misereant Infidels Schismaticks and Hereticks Depriv f. 3. 5. If any person which shall have any Ecclesiastical preferment shall advisely maintain or affirm directly any Doctrine contrary or repugnant to the 39 Articles of Religion and being convented before the Bishop of the Diocess or Ordinary or before the high Commissioners shall persist therein and not revoke his Error or after such Revocation shall eftsoon affirm such untrue Doctrine he may be deprived 6. If any person shall obtain a preferment in the Church which is a * a Misboliever Miscreant †an Atheist c. 38 E. 3.2 b. Dyer 8 and 9 p. 254. Co. 558. a ⸪ Dyer 293. p. 1 and 2. Infidel Schismatick or Heretick he may be deprived 7. So if one be made a Parson Vicar c. that is not of free Condition but a Villain or that is illiterate and not able to perform his duty Slave Villain illiterate and criminous person may be deprived or that is guilty of any heinous Crime as Murder Manslaughter Perjury Forgery or that is merè Laicus and not in holy Orders he may be deprived 8. Allen vers Nash P. 13. Car. 1. B R. Disobedience to his Ordinary cause of Depriv Cro. Jac. 37. Non-Conformity Quod nota A Parson Vicar c. may be deprived for being disobedient and incorrigible to their Ordinary c. 9. And it was resolved by all the Judges of England 2 Jacob. That non-conformity was a good Cause of Deprivation and it was declared by them all that in case any Canons were made by the Clergy for the good Government of the Church and approved and confitmed by the King as they ought that the obstinate disobeying of them was a just cause of Deprivation 10. 2 H. 4.37 Tuking a second Benefice If any Parson Vicar c. have one Benefice with Cure of Souls and take another incompatible without a faculty and dispensation it is a just cause of Deprivation 11. Dyer 133. p. i. Priest to marry was cause of Deprivation In the time of Popery it was cause of Deprivation for a Priest to marry but not to have two or three Concubines as they called them but more of this hereafter 12. Co. 11.98 b ⸪ 2 H. 4.3 9 E. 4.34 20 H. 6.36 29 E. 3.16 Dilapidation Destruction of woods c. or Alienation of Land belonging to the Church by any Bishop Abbot Prior Parson Vicar c. have been held and adjudged good Causes of Deprivation and it is very fit it were practised Dilapidation Waste Alienation of the Lands cause of Deprivation Deprivation ipso facto where after monition there is not Reformation There may be a question started what shall be intended by the words deprived ipso facto whether by those words the Church immediately shall become void by the fact done or not till Conviction or Sentence declaratory The words ipso facto are of late time crept into acts of Parliament as that for striking with a weapon in a Church-yard the Party shall ipso facto be excommunicate Dyer 275. b. p. 48. and in that Case it is made a quere in Dyer and having not met with any Resolution in the point I shall not presume to give my opinion in the Case but leave it to the determination of the learned But in that Case by the Canonist requiritur Sententia declaratoria Quaere I must consess Lindwood c quia incontinentiae vitium verb. ipso facto in this Chapter I may seem to transgress upon the Canonists and Civilians as well as in some other but I have gone no further upon this Subject than what I have met with in our own Books and I must agree that the Ecclesiastical Courts have the sole Jurisdiction in all Causes of Deprivation Depositions Resignations c. And yet the Judges of the Common Law have power to correct their proceedings if they shall proceed against the Rules of the Common Law which is the reason we meet with these things in our Books and it may be some advantage to the Civilians to know how far the Common Law approves of their proceedings and having said what I have to say upon this Subject I shall proceed next to shew what Leases Parsons Vicars and other Ecclesiasticks may make at this day of the Glebes Tithes Farms c. and within the danger of what Statutes they may fall CHAP. X. The Tenth Chapter shews what Leases Parsons Vicars and other Ecclesiastical Persons may make of their Glebe Tithes Farms c. and what Farms they may take and within the danger of what Statutes
brought the cause to issue upon nil debet or non culpa we will shew in the next place what will be good and material evidence as well for the Plaintiff as Defendant First What Evidence is necessary in this Action ex parte quere If the Plaintiff be a Parson Vicar or other Ecclesiastick and have not been some considerable time in possession of his Living in which I have not observed any constant rule amongst the Judges in their practice but ten years quiet possession for the most part is allowed by the Judges for an evidence of the Plaintiffs Title unless some material objection be made against it to draw it into question but if the Plaintiff have been but for some short time in possession or the possession litigious then the Judges usually put the Plaintiff to prove his institution and induction and now he must prove that he was in Episcopal Orders at the time of his institution otherwise his institution is void by the late Act of Uniformity he must produce a Certificate under the Hand and Seal of the Bishop c. that instituted him that he subscribed the declaration mentioned in the Act of Uniformity and must prove he subscribed the same in the presence of the Bishop or c. and he must prove that within two Months after he was inducted upon some Sunday or Lords day during Divine Service he read the thirty nine Articles of Religion in the Parish Church into which he was inducted and that he did declare his unfeigned assent and consent to all things therein contained and he must likewise prove that within two Months after actual possession of his Living he read Morning and Evening Prayer in his Church upon some Lords day and openly and publickly before the congregation declared his assent and consent to the use of all things therein contained and prescribed in these words I A. B. do here declare my unfeigned assent and consent to all and every thing contaiend and prescribed in and by the Book Intitled the Book of Common Prayer and Administration of the Sacraments and other Rites and Ceremonies of the Church according to the use of the Church of England together with the Psalter or Psalms of David pointed as they are to be sung or said in Churches and the form or manner of making or Ordaining and Consecrating Bishops Priests and Deacons The Parson Vicar c. having thus made himself a Title must proceed to prove the taking and carrying away the Corn Hay c. and the value and if need be that the Land lies within the Parish c. but this the Judges put them to prove first of all commonly But if the Plaintiff be a Farmer or Patentee under the Crown he must prove his Title but if he have been any considerable time in possession and the Title not controverted the Judges seldom put the Plaintiff to shew any more Title but his bare possession and enjoyment and that others pay him Tithes And so having shewed what is necessary the Plaintiff should be prepared to prove I will proceed to shew what defence the Defendant may make The Defendant upon the general issue of not guilty Ex Parte Defendentis Brown 1. 34. c. may prove that he duly set forth his Tithes but if he afterwards carried them away it will not serve his turn so if he sell his Corn privately to another and after he has sold it privately 2 Inst 649⸪ cuts and carries it away the Action lies against the first Owner the same Law is where the Owner of the land privately sells his Corn to another who privately cuts and carries it away And the Defendant may prove that another has a better Title to whom he has paid his Tithes or compounded with him for them Or he may prove that the Parson came in by Simony or any other matter that makes his presentation institution or induction void or any other defect in not reading the Articles c. Or he may prove that he set forth his Tithes and a Stranger carried them away or may give in evidence a Lease or Grant from the Plaintiff himself or any other to whom he can make a good Title but such Leases and Grants must be in writing unless for one year only to the Owner of the Land which hath been held good by way of retainer The Jury if they find for the Plaintiff Verdict are to find how much of the debt demanded by the declaration is due to the Plaintiff which they are to do by trebling the value of the Tithe subtracted wherein they are usually assisted by the Court. The judgment is always given for the debt found by the Jury without costs Judgment because this Action is grounded upon a penal Law where no Action lay at Common Law neither shall the Defendant have any costs if the Verdict pass for him but if judgment be given for the Plaintiff in an Action brought upon this Statute by nihil dicit non sum informatus Cro. Jac. 361 362. or demurrer the Plaintiff shall have Judgment for the whole debt demanded by his declaration And if an Action upon this Statute be brought against two or more and Verdict only pass against one or part of the Defendants the Plaintiff shall have Judgment against those against whom the Verdict passes Stiles 317 318. though the others be acquitted quod nota Note that this Statute as to the treble value and double value extends only to Predial Tithes Nota. and not to Personal mixt or other Church duties The Exchequer likewise by English bill holds plea for the single value Jurisdiction of the Exchequer for subtraction of all manner of Tithes Oblations c. of which great use hath been made since the late Wars and there they decree the single value with costs and the future payment which is of great advantage to the Plaintiffs and these suits are not interrupted with prohibitions but these suits are often very costly too for if a modus decimandi or the bounds of the Parish come in question and the proof not very clear they are frequently sent to Trials at Law which gives delay and increases the charges very much this Jurisdiction I take it is much fortified since Tenths and first-fruits were annexed to the Crown but Suits of this nature were early brought in this Court before the War however there are some antient Books prove that this Court on the Law side has assumed Jurisdiction of Tithes 38 Ass p. 20. 44 E. 3.43 44. but the reporter reports it with a quod mirum Lastly 50 E. 3.20 2 H. 4.15 20 H. 6.17 1 H. 6.5 2 E. 4 5. 44 Ass p. 25. it is evident in our Books of Law that the rights of Tithes were frequently determined at Common Law in Actions of Trespass for taking away of Tithes unless both parties were Clergy-men and sometimes Assises have been brought at Common Law for Tithes
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
Lord ordained that they that preach the Gospel should live of the Gospel what effect this Doctrine wrought amongst the Primitive Christians you may read in the fourth Chapter of the Acts of the Apostles where it is said that as many as were possessors of Houses or Lands sold them and brought the prices of things that were sold and laid them down at the Apostles feet and distribution was made to every man according as he had need But the Christians of this present Age are so far from selling their Houses and Lands and laying the price at the Apostles feet that they will rather detain that from the Clergy which by Law and right is due to them But certainly had the sincerity of the Primitive Christians continued I should never have needed to have set pen to the paper upon this subject I am now about which is the Law of Tithes or Tithing a duty established by the Laws of this as of other Nations for the maintainance of the secular Clergy and for their sake it is that I have undertaken this work There was a Tithing Table published many years ago By a Batchelor of Laws wherein he has learnedly set forth the manner of Tithing by the Canon and Ecclesiastical Laws but those Laws and the Common Laws of this Realm differing in many things wherein the Common Law is to be preferred that Tithing Table has often led both Parson and Parishioners into many errors besides the several discharges from payment of Tithes either absolutely or sub modo of divers Lands in England by the Statutes or Common Laws makes great alteration here from the Canon Laws to rectifie which and as near as may be to reconcile the Canon and Common Laws I did by the perswasion of some Reverend Divines first make some Animadversions upon that Tithing Table but when I had done that considering there were many more things in relation to Tithing than I could conveniently apply to that Text concerning Prescriptions Customs Compositions and other priviledges besides the Laws concerning Offerings Mortuaries and other Church duties fit for all men to know as well Lay as Clergy I adventured upon this larger work which I the rather did because I do not find any other that hath published any compleat work in this kind or to reconcile the Common and Canon Laws that kind of learning lying dispersed in our Law Books I have therefore in favour of the Parsons and Vicars taken up a former resolution and adventured to expose my self to the publick censure And though I cannot promise any perfection in this work yet I dare presume to say it is the most perfect work of this nature yet extant though I can pretend to nothing of it but the errors and mistakes which I will be thankful to any body that will friendly correct that I may make it more exact in a second Edition if I have encouragement The hindrance of conversing with the learned by reason of my confinement to the Country and publick Libraries hath hindred me of some helps I might have had thereby Perhaps it may not be so acceptable to those in whose favour I have writ it because it comes from the pen of one who professes himself a common Lawyer But in my Judgment in this Nation wherein the common Laws and customs of the Country prevail against the Canon and Ecclesiastical Laws this subject is not altogether improper if not most proper for a common Lawyer And truly I have through this discourse dealt with as impartial an hand as the matter would admit And though the Clergy may think it to their prejudice that I have at large set forth the several discharges by which lands are freed from the payment of Tithes yet in that I have given them a clear light which lands cannot be so priviledged and what Prescriptions and modus decimandi is not good being well assured that there are more Lands at this day escape payment of Tithes upon pretence of some priviledg to which they have no Right than those that pay Tithes and might legally be discharged But when I have done my best endeavour to serve the Reverend Clergy I cannot give them Incouragement to depend upon their own Judgments grounded upon any thing here writ for though this may suffice to give them some light what shall be due to them yet I cannot hope by any thing I can write to make them complete Lawyers for many Quaere's will arise that no foresight of mine could give an Answer to but this benefit I hope they will receive by my labours that they may put their Case and make their doubts known more pertinently to the learned I had no sooner finished this little Tract concerning Tithes but I considered there were many other things almost as useful for a Clergyman to know as the Law of Tithes And though Mr. Hughes of Graves-Inn many years since published a learned Tract which he intitled the Parson's Law yet there are many more things necessary for a Clergyman to know that are there only briefly or not at all touched upon and of such force that they must either be performed and observed to make a man a compleat Parson or to make him none though never so exactly instituted and inducted if omitted I have therefore in the first place before I come to the Law of Tithes shewed what Simony is and what danger those run themselves into that are guilty of it what things every Parson Vicar c. is to do before at and after his Institution and Induction to make him a compleat Parson c. what Dilapidations are and how punishable what priviledges the Clergy have at this day by the Laws of England what charges and payments their Tithes and Church-livings are subject unto what Causes of Deprivation have been allowed of by the Laws of England what Leases they may take or set and what Statutes they may fall in danger of and of pluralities and who is qualified to have them and in what manner to be accepted Non-residence and many other things necessary for every Clergy-man to know I have divided the whole into Two Books and them again into several Chapters and Paragraphs and added a short Table for the more ready finding of any thing in either I have likewise added a List or Catalogue of all the Abbeys and Priories that were valued in the Kings Books at 200 l. per annum or upwards and which were dissolved by the Statute of 31 H. 8. the Lands of which can only pretend to any priviledg to be discharged of the payment of Tithes in which I have rather chosen to write after Mr. Dugdale being a sure Author than Mr. Speed in whom I have observed many Mistakes I must beg the Readers Patience to correct the Mistakes of the Printer which are too many by reason of my absence from the Press by the Errata annexed and for my own I shall take it kindly from any body that will in a friendly
manner inform me of them for Humanum est errare and though I may have cause to be ashamed of them yet I will never be ashamed to amend Vale. The Contents The Contents of the several Chapters contained in the first part of this Book Intitled the Parsons Counsellor CHAP. Who may be a Parson 1. sheweth who may or may not be a compleat Parson Vicar c. Chap. How he must proceed in taking a Living 2. sheweth how one that is a Person fitly qualified to be a Parson Vicar c. ought to proceed in the obtaining and accepting of the same Chap. Jure Patronatus 3. shews in what cases 't is necessary for the Bishop to have a jure patronatus and how to proceed in the same and what is the force and effect thereof Chap. Pluralities 4. shews how the Law stood concerning pluralities before the Stat. of 21 H. 8. who are qualified within that Law to have pluralities and how they ought to behave themselves in taking the second Livings so that the first may not be made void Chap. Simony 5. shews what Simony is and who shall be said to be guilty of it and what are the dangers ensuing thereupon Chap. What he is to do at before and after institution and induction 6. shews what one is to do before and at institution and after induction to make himself a compleat Parson Chap. Non-residence 7. shews what is required further of Parsons c. after induction and what non-residence is and the dangers incurred thereby and what matters will excuse the same Chap. 8. shews Dilapidations what shall be said to be dilapidations and how the same is remedied and punished Chap. 9. shews for what cause a Parson Deprivation Vicar c. may be deprived according to the rules of the Common Laws Chap. 10. shews what Leases a Parson Leases Vicar c. may make of his Glebe Tithes and what Farms he may or may not take Farms and within the danger of what other Statutes they may fall Chap. 11. shews Priviledges of the Clergy what Priviledges are allowed to the Clergy in Holy Orders by the Statute and Common Laws of this Realm The Contents of the several Chapters contained in the second part of this Book Intituled the Law of Tithes or Tithing CHAP. 1. shews what Tithes are Quid quot◠plex quo modo debet the several sorts and kinds thereof and how the same become due Chap. 2. shews By whom and to whom due by whom and to whom Tithes ought to be paid Chap. 3. shews What things are Tithable Corn Hay c. of what things Tithes are due to be paid and in what manner the Tithes of Corn Hay c. are to be paid Chap. 4. shews Wood. where and in what cases the Tithes of wood ought to be paid Chap. 5. shews Herbage where Tithes are due for Herbage or Agistment of Cattle and who is to pay the same Chap. Calves Milk Cheese Wool Lambs Pigs c. Seeds Fruit Mast Bees Hony things ferae naturae 6. shews where and in what manner the Tithes of Calves Milk Cheese Wool Lambs Pigs c. are payable Chap. 7. shews in what manner the Tithes of Seeds Fruit Mast Bees c. are to be paid Chap. 8. shews where and in what manner the Tithes of Pigeons Conyes Fish Deer and other Birds and Beasts ferae naturae are Tithable Chap. Mills 9. shews of what nature the Tithes of Mills are and in what cases payable Chap. Personal Tithes 10. Treats of the Tithes of Hawking Hunting Fishing Fowling c. and other personal Tithes Chap. Domestick Birds 11. Treats of the Tithes of Ducks Geese Swans Turkeys and other domestick Fowls and Birds Chap. Of what things Tithes are not payable 12. shews of what things Tithes are not due by the Common Laws of this Realm Chap. Customs 13. shews what force Customs have as well in the form and manner of Tithing as in the discharging the payment thereof and the difference between Custom and Prescription Chap. Interest in the Lands 14. shews what Priviledges the Parson Vicar c. have in the Grounds where the Tithes arise for the drying making and carrying away the same Chap. To what charge subject 15. shews to what charges the Glebe and Tithes are subject and liable Chap. Modus decimandi 16. shews how far Prescription will prevail in the manner of Tithing and in what Cases a modus decimandi will bind the Parson c. Chap. 17. shews How to be destroy'd how a modus decimandi may be destroyed Chap. 18. shews by what conveyances How to be convey'd and by what names Tithes may be granted demised c. and what Demises and Leases made by Parsons Vicars and other Ecclesiasticks c. are good Of Leases Chap. 19. shews Barren Ground what barren Lands are freed from payment of Tithes within the Statute of 2 E. 6. Chap. 20. shews Real Compositions what a Real composition is and in what cases Lands shall be freed from the payment of Tithes thereby Chap. 21. shews Monastery Lands what Monastery Lands are or may be freed from the payment of Tithes Chap. 22. shews what personal Tithes are Personal Tithes and in what cases due and payable Chap. 23. shews what Oblations Offerings Oblations c. are and where due and payable Chap. 24. shews what Mortuaries are Mortuaries and in what cases they are due and payable Chap. 25. shews London how Tithes are to be paid in London and several resolutions upon the Statute made for the payment thereof Chap. 26. shews in what Courts How recovereble and in what manner Tithes may be sued for and in what Cases Prohibitions lye for the staying of Suits for Tithes in the Ecclesiastical Courts and how to proceed therein Prohibitions Note that in my references to printed Books in this Treatise Directions in the Marginal references I for the most part refer to the page and part of the page where the matter is to be found in this manner if the matter be at the upper end of the page I mark it with three pricks thus ⸫ if in the middle thus .. if at the lower part thus ⸪ and where the Book is numbred by Fol. I add the A. or B. side as it happens THE TABLE A ACceptance of Rent where it shall affirm a Lease 117. not by Parson Vicar or Prebend 118. whereby the acceptance of Fealty by a Parson shall bind 118. a Bishop accepts the rent upon a Lease for Life of Tithes 118. upon a Lease for years of Tithes ibid. Admission in what manner to be made 6. not to be done hastily ibid. Atfermathes where Tithe is due of them 155. Agistment vide Herbage Alternagium quid 145. Annates qd vide First-Fruits B. Barren Lands in what Cases free from the payment of Tithes 221. Bees what Tithe is due for them 177. Bishop what time he hath to examine a Clerk 5 and 6. admits a Clerk before the Church becomes litigious 13. not bound by
I shall not therefore stuff this present Discourse with the Arguments of any side but shall leave the learned to their own Conceits it serving my purpose that they be due by any Law divine humane or Ecclesiastical My next examination shall be to whom they are due CHAP. II. The second Chapter shews to whom Tithes are due and by whom to be paid HAving shewed in the former Chapter what Tithes are To whom Tithes are due to be paid and the several kinds thereof I shall in the next place shew to whom the same are due to be paid That there were Infeudations of Tithes before the parochial Rights were settled both in this and other Countries is without dispute both here in England and in other Christian Kingdoms and Common-wealths Seldens hist decim 178 c. Tho. Aq. Sum. 20. 2ae q. 88. art 3. concluisione in which particular the curious may satisfie themselves in Mr. Selden's History of Tithes and other Authors And it is more clear that before the time that the parochial Rights of Tithes were setled that the Owners of Lands might grant their Tithes to any Ecclesiastical or Religious persons a multitude of Precedents whereof the Reader for his satisfaction may find in the Monasticon Anglicanum of Mr. Dugdale so that by this means the whole Tithes of some Parishes and divers great portions out of other Parishes were granted to Abbots Priors c. and some to the Parsons and Rectors of other Parishes which is the reason that at this day there is several portions of Tithes held from the Parish Churches by Impropriators and the Rectors of other Parish Churches When the parochial Right of Tithes was first settled When the Parochial Right of Tithes first begun there hath been as should seem a vulgar Error for 't is frequently said in our Common Law Books that before the general Council of Lateran 10 H. 7.18 a. 43 E. 3 5⸫ Doct. Stud. l. c. 55. Co. 2. 44. b. Dyer 84 c. which was held 1179. That every one was at liberty to give his Tithes to what Spiritual Ecclesiastical or religious Person he pleased but that by that Council the parochial Right of them was settled Neither was this an Error of the Common Lawyers only for Mr. Lindwood a learned Doctor of the Civil and Canon Laws that lived in the time of H. 5. about two hundred and fifty years ago tells us that Bene potuerunt Laici decimas infeudum retinere Lind wood c. locat conduct verb. portion eas alteri Ecclesiae dare ante concilium Latarenense non tamen post c. But there is no Canon in that Council to be found whereby the parochial right of Tithes was settled nor was the parochial Right of Tithes settled till the year 1200 and then not by any Canon but by a decretal Epistle of Pope Innocent the third Selden hist Decun 231. 2 Inst 641. a Brief of which Epistle here follows as I find it in Mr. Seldens History of Tithes and in Sir Edward Cooks Institutes Pervenit ad audientiam nostram Innocent 3. Epist decret l. 2. p 457. Edit colen quod multi in Diocesi tua Decimas suas integras vel duas partes ipsarum non illis Ecclesus in quarum Parochiis babitant vel ubi praedia habent à quibus Ecclesiastica percipiunt Sacramenta persolvunt sed eas aliis pro sua distribuunt voluntate Cum igitur inconveniens esse videatur a ratione dissimile ut Ecclesiae quae Spiritualia seminant metere non debeant a suis Parochianis temporalia habere Fraternitati tuae being directed to the Archbishop of Canterbury authoritate praesentium indulgemus ut liceat tibi super hoc non obstante contradictione vel appellatione cujuslibet seu consuetudine hactenus observata quod canonicum fuerit ordinare facere quod statueris per Censuram Ecclesiasticam firmiter observari Nulli ergo c. Confirmationis c. Datum Lateran 2 Nonas Julii I must acknowledg I give the Reader this a little imperfect for want of the Original and it was Sir Edward Cooks Case also for I perceive the borrowed his from Mr. Selden But some have fancied and perhaps not without reason for this seems not to be a general Decree but a particular Instruction to the Arch-bishop of Canterbury that the parochial Right of Tithes was not generally settled of long after that is by a Canon made in the Council of Lyons which was in the year of our Lord 1274. in which Council there is a Canon for the settling the parochial Right of Tithes But whether that were the Original or a Confirmation of some other Decree or Council I dare not take upon me to judge but certain it is that about this Century the parochial Right of Tithes was settled in general But though this decretal Epistle of Pope Innocent the third be not general yet it was obligatory as to the Province of Canterbury so that in that Province the parochial Right of Tithes may take its date from the time of that decretal Epistle which was as above is said in the year 1200. But after the Parochial Right of Tithes was settled it is clear that no Lay-man was capable of Tithes in pernancy but in particular Cases till the Statutes Selden hist decim 398. and in his Review 478⸫ by which the Monasteries and religious Houses were dissolved enabled them but in some special Cases Lay-men were capable of Tithes in pernancy Co. 2.44 a. Lay-men capable of Tithes in Pernancy Co. 2.45 a⸪ as in the Case of Pigot and Heron cited in the Bishop of Winchester's Case where the Case is put that the Lord of a Mannor and all those whose Estate he had in the Mannor time out of mind had paid to the Parson of D. in which Parish the Mannor lay for the time being for the maintainance of Divine Service in contentation of all Tithes arising within the said Mannor and that in consideration thereof he and all those whose Estates he had in the said Mannor by the time aforesaid had and enjoyed all the Tithes arising in the said Mannor and in this Case it was adjudged that the Lord of the Mannor might have these Tithes in pernancy and sue for the same in the Spiritual Court but a man cannot claim Tithes generally as part of or belonging to a Mannor But since the several Statutes made for the dissolution of Monasteries Lay-men capable of Tithes in Pernancy by the Statutes of the dissolution of Abbeys those Tithes which were appropriated to the religious houses so dissolved are become Lay-Fee and any Lay-man by the Laws of this Realm are capable of them in pernancy and may sue for the same in the Spiritual Courts But since the parochial Right of Tithes was settled prima facie All Tithes belong to the Rector prima facie Portions by Prescription All Tithes not appropriated belong
the prohibition or discharge the rule But if the matter suggested be a good ground for a prohibition but is in it self false or doubtful the Defendant in the prohibition may demand a declaration of the Plaintiffs Attorny which is grounded upon a supposed attachment for not obeying the prohibition to which the Defendant may plead as Councel shall advise him and Traverse and put in issue the matter of the said suggestion or such other matter as Councel shall advise which is to be tryed by a Jury of the Country if it pass with the Plaintiff then is the prohibition become peremptory but if the Verdict pass for the Defendant regularly a consultation is awarded that is a Writ directed to the Judg of the Spiritual Court authorising him to proceed notwithstanding the prohibition Now by a Statute made in the 50 E. Stat. 50 E. 3. cap. 4. Where a Prohibition was be had after Consultation 3. it is enacted That where a consultation is once duly granted upon a prohibition made to the Judg of Holy Church that the same Judg may proceed in the Cause by virtue of the same consultation notwithstanding any other prohibition thereupon to be delivered provided always that the matter in the Libel of the said Cause be not ingrossed enlarged otherwise changed But this Statute has been several times held to extend to such Causes only where consultations are judicially granted upon examination of the Cause Jones 231. Cro. Car. 208. Poph. 159 c. and not where they pass of course as for want of proof of a suggestion or upon non suit for want of prosecution or such like Sometimes the Court grants a consultation sub modo Co. 5.68 a⸫ Co. 12. Rep. 44⸫ Consultations sub modo as where the matter of the Libel is in the disjunctive and as to one part the Court has Jurisdiction and to the other not there the Court may grant a consultation as to that part that the Spiritual Court has Jurisdiction of and let the prohibition stand as to the other Or a consultation may be granted Sommers vers Sir Rich. Bulkeley T. 32 El. B.R. Poph. 58. Hob. 179. How the sin Months to prove a Suggestion is to be accounted Co 5.68 a⸫ Where no Consultation shall be granted upon a Verdict for the Defendant Hob 300⸪ so that the Spiritual Court allow such plea or such proof Note that the six Months for the proof of the suggestion is according to the Kalender and not twenty eight days to the Month. And note in the cases before put the prohibition shall be general and the consultation special quoad c. And it is taken for a rule in Sir Henry Hobarts reports that if a prohibition be faulty yet the Defendant shall never have a consultation if it appear to the Court that the suit in the Ecclesiastical Court was not well grounded And therefore where one sued for the Tithe Corn of sixty Acres of Land Dyer 171. p. 5 6. and the Defendant suggested it was barren Ground and paid no Tithe and prayd and had a prohibition and the Jury found that thirty Acres of it were so and that the other thirty were barren but had paid Tithe Wool and Lamb and a consultation denied because it appeared the Plaintiff had no cause to sue for Tithe Corn. So in a prohibition it was suggested More 911 Austen vers Pigot Cro. El. 736. that the Person had twenty Acres of Land and ten Acres of Wood in discharge of all Tithes and the proof was that he had twenty Acres of Land only and a consultation denied because it appeared he had no cause of suit Regularly a prohibition ought not to be granted after sentence Prohibition after Sentence Hob. 97. Noy 70. Winch 8. Cro. El 595. unless it appear the sentence were obtained in the vacation or by surprise so that the party had not time to pray it sooner or upon matter arising after the sentence Hob. 67⸫ and the granting or not granting rests much in the discretion of the Court. And so sometimes upon new matter arising after a consultation a prohibition may be granted After Consultation notwithstanding the aforesaid Statute of 50 E. 3. as where the Spiritual Court after consultation proceeds to try matter determinable only at Law Hob. 286⸪ or if after a consultation the Spiritual Court will make an unjust decree as to award treble damages Hughes 245. Hill 11. Jac. C.B. Baldum vers Geery and so in all cases if the Spiritual Judg will proceed illegally and against the Common Law after consultation a new prohibition may thereupon be obtained but not upon any matter alledged in the Libel Prohibitions of themselves are excellent things The virtue and vices of Prohibitions where they are used upon just legal and true grounds and have often avoided the usurpations of the Popes and Spiritual Courts but by the corruption of these later times they are grown very grievous to the Clergy being too oft granted upon feigned and untrue suggestions which it is impossible the Judges should foresee without the Spirit of Prophecy And I think I may presume to say that where one was granted before Queen Elizabeths time there have been a hundred granted in this last Age and they are a very great delay and charge to the Clergy and it were well in my poor Judgment if the Reverend Judges would think of some way to restrain them or to make them pay well for their delay by making the Plaintiff enter into recognizance to pay such costs as the Court out of which they issue should award in case they should not prove their suggestion in convenient time or some such other course as they in their great wisdom shall think just and meet And so having done with the first manner of determining the right of Tithes at the Common Law I shall proceed to the second which is by Writ of Right of Advowson to which likewise belongs the Writ of Judicavit which in it self is no other but a meer prohibition to the Ecclesiastical Judg and first of the Judicavit There have been some opinions that the Writ of Judicavit is grounded upon the Statute of Circumspecte Agatis Judicavit at Common Law and Articuli Cleri cap. 2. But it is very clear this Writ lay at Common Law and it appears in our Books that it was the opinion of some learned Judges that it lay in all cases where the right of Patronage might come in dispute 38 H 6.20 a. per mode 4 E. 3.27 b. per Markham 2 Inst 364. Lay for any Tithes Bracton l. 5. c. 4.402 b⸪ and of this opinion Sir Edward Coke seems to be And Bracton a Learned Judg who wrote in the time of H. 3. hath the very Writ in his Book which was long before the Statutes abovementioned and he fays that this Writ lies si contentio fuerit inter Rectores de aliquibus decimis quae