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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A37445	The parson's counsellor with the law of tithes or tithing in two books : the first sheweth the order every parson, vicar, &c. ought to observe in obtaining a spiritual preferment, and what duties are incumbent upon him ... : the second shews in what manner all sorts of tithes, offerings, mortuaries, and other church-duties are to be paid ... / written by Sir Simon Degge, Kt.	Degge, Simon, Sir, 1612-1704.	1676 (1676)	Wing D852; ESTC R8884	170,893	368

restriction of those Laws If a Parson Leases where there is two Patrons 1 Leon. 233. Quaere both ought to confirm as should seem If the Patron and a succeeding Bishop confirm the Lease of the Parson Cro. Car. 38. it is good enough A Prebend made a Lease Dyer 106. p. 24. Quaere reciting that it was with the consent of the Bishop who signed and sealed the Lease to the Leasee but was no party to the Deed quaere if good And having said thus much of confirmations let us see what Leases a Parson or Vicar may make at this day considering all the beforementioned Statutes And first Leases by Parsons and Vicars it is to be observed that at and by the Common Law a Parson or Vicar might have granted or charged his Glebe in Fee-simple with the confirmation of the Patron and Bishop but being excepted out of the inabling Statute of 32 H. 8. 32 H. 8. c. 28. he could never make any Lease or Grant to bind their Successors without such confirmation then by the Statute of 13 Eliz. Parsons and Vicars are restrained 13 El. cap. 10. So that they cannot grant but for 21 Years or three Lives from the making of such Lease and not from the day of the making as is before observed and these Leases and Grants must be with the confirmation of the Patron and Ordinary with all the qualifications expressed in the beginning of this Chapter And it should seem they may make concurrent Leases as Deans Prebends c. may do within three Years of the end of the former Leases It has been a question whether a Parson or Vicar at this day can make any Lease at all to bind his Successor for by the Statute of 13 Eliz. Chap. 20. 13 El. cap. 20. it is enacted that Leases of Parsons Vicars c. that have Cure of Souls shall endure no longer than they shall be ordinarily resident and serve the Cure and that if such Parson c. shall be absent from their Cure above 80 days in one Year that then such Lease shall cease and be void Now when a Parson dies and 80 days incurs and this being a Law for the advancement of Religion and Hospitality to avoid Dilapidations shall have an equitable construction for the preferring of these ends therefore some have held that the death of the Parson Vicar c. after 80 days have incurred from their deaths shall make all their Leases and Grants void though never so sufficiently confirmed and rely very much upon the preamble of the Statute which begins Parson's Leases which is confirmed and dyes That the Livings appointed for Ecclesiastical Ministers may not by corrupt and indirect dealings be transferred to others uses Be it enacied c. But by these Leases it is apparent the profits are converted to other uses c. But others have held the contrary Opinion because such absence is not voluntary but by the Act of God and regularly these cannot be said absent that are not in esse Cro. El. 123. and though Crook report Mott and Hale's Case adjudged in point that their Leases are void by death More 270. Yet More reporting the same case says As to the matter in Law the Judges were divided two against two and that the Judgment was given upon a misrecital of the Statute Bayley vers Murnes T. 24. Car. 2. B R. And this point as I am informed came lately in question in the King's Bench and was adjudged that death doth not avoid such Leases Quaere Ideo quaere inde Dyer 372. p. 2. When Parson's Leases shall be void by non-residence There is a quaere in Dyer whether such Leases shall be void upon 80 days absence ab initio or but from the time of absence by 80 days but it seems to me with some clearness that it shall only be void from 80 days absence and not ab initio For first the words of the Statute are that such Lease shall indure no longer than the Leasor shall be ordinarily resident c. So that till then it is to indure and the Statute closes that upon such absence the term shall cease which it could not do Quaere if had not a being before for a thing cannot cease to be that has not been But another quaere may be startled in this Case upon the reason in Lincolne Colledg Case Whether void against the Parson himself Co. 3.59 b⸪ 60. a⸫ whether such Lease shall be void against the present Incumbent that made it or only against his Successors but it seems to me with some clearness that the intent of the makers of this Act was to make such Lease void against the Leasor himself upon such absence for as before is said the Statute says it shall indure no longer which is a term of limitation and that immediately upon such absence the Lease shall cease and be void and it cannot cease immediately upon the absence and yet be good during the life of the Incumbent But in the Case of Revel vers Hart H. 43. Eliz. B. R. Dyer 372. p. 11. Quaere the Court held the contrary as my Reporter says Ideo quaere If any Parson Vicar c. Dobbins vers Gerrard P. 39. El. B. R. be suspended inhibited or disabled to serve the Cure by the space of 80 days in a Year this shall not make such Lease void for the not serving the Cure must be voluntary And it has been held that if a Parson be resident and do not serve the Cure or serve the Cure and be absent by 80 days that in both these Cases it will make such Lease void Though this Statute upon 80 days absence makes such Lease void made by Parsons and Vicars and says nothing of confirmation yet a confirmation of the Patron and Ordinary in this case seems not to amend the matter for if the Lease be void the confirmation is of no avail At the Common Law Stat. 28. H. 8. cap. 13. Parson leases and resigns if a Parson Vicar c. had made a Lease and resigned the next Incumbent might have entred immediately upon the Leasee but by a Statute made in the 28th Year of H. 8. the Leasee may hold on his term for six years if the Parson that made his Lease so long live and the term were made for so long time but upon such Lease there must be so much Rent reserved within fourty shillings as such Benefice is valued at in the King's Books And by the same Statute if a Parson make a Lease and resigns and dies the Tenant shall hold out his Lease for the Year that was commenced at the time of his death if the Term were to have had so long continuance if the Parson had not died but this seems only of such Lands as are plowed for the succeeding Parson is to have the Parsonage House and Glebe which is not sowed within a

was in the Bishop of Waterford's Case which was thus The Bishop of Waterford had long agoe the Bishoprick of Lismore and the Chapter united to that of Waterford And in all Grants made of the Lands belonging to Lismore that Chapter only confirmed and all Grants made of the Lands antiently belonging to the Bishoprick of Waterford the Chapter of Waterford only confirmed Co. 12.71 a⸪ b⸫ and because the Union was not extant all the Judges held the confirmation of the one in the manner aforesaid was good for it shall be intended that it was so provided for upon the consolidation but otherwise all the Judges held Dyer 282. p. 26. that both Chapters ought to have confirmed But if a Bishop had two Chapters Ibid. and one of them surrender is suspended or dissolved the confirmation of the other suffices There is a Case in Mr. Justice Harpur's Reports M. 14 and 15 El. where the Case is put That a Bishop made a Lease ● die Maii confirmed the third day and sealed the fourth day of May and held good Lease and well confirmed But a Confirmation by the Dean and Chapter after the death of the Bishop comes too late by Catlyne Har●ur Rep. m. 14 and 15 El. Southcoate and Windham against Wray But if a Bishop make several concurrent Leases T. 6. El. More 66. and the latter is first confirmed and after the first is confirmed in this Case the first Lease shall be preferred because nothing passes by the Confirmation in point of Interest but a mere Consent If a Bishop make a Grant to the King T. 8. Jac. S. Sir Edw. Dimock's Case Rolls 1.477 h. 7. Crok El. 141. More 253. which is confirmed by the Dean and Chapter before the Grant is inrolled this is well enough But note that a Bishop cannot make a concurrent Lease for life though upon a precedent Lease for Years nor a concurrent Lease for years where there is a Lease for life in being Deans Prebendaries Heads of Colledges Masters of Hospitals and other Ecclesiastical Persons mentioned in the Stat. of 13. Leases by Deans Prebends Colledges c. Eliz. cap. 10. may make Leases for 21 Years or any lesser number of Years or for one two or three Lives in possession according to the qualifications above-mentioned and they may make concurrent Leases as Bishops may with confirmations 18 Eliz. c. ●● but they must be within three Years of the determination of the former term by expiration surrender or otherwise so that in this point the Bishop has the advantage And though the enabling Stat. of 32 H. 8. gives power to make Leases to hold from the making or day of the making yet the Restrictive Stat. of 13 El. makes them void 13 El. c. 10. if they be not made to hold from the making and not from the day of the making quod nota But the Leases of Bishops and Arch-Bishops are not within that Act but the Act of primo of the Queens which is that all Leases should be void other than for 21 Years or three Lives from the time of the commencement Concurrent Leases and who is to confirm Lases Rolls 1.481 p. q. r. Dyer 221 p. 18.357 p 42. Plow 528. Dyer 61. p. 30. Co. 5 81. a. Note the different pennings And for as much as all concurrent Leases of any Bishop Dean Prebend and Arch-Deacon are to be confirmed it is convenient to let the Reader know who is to confirm the same therefore for the Reader 's satisfaction he is to know that the Leases of Bishops and Arch-Bishops are to be confirmed by the Dean and Chapter or Deans and Chapters if there be several Chapters Grants made by a Prebend are to be confirmed by the Bishop Dean and Chapter the Grants made by Deans are to be confirmed by the Bishop and Chapter the Grants made by the Arch-Deacon by the Bishop Dean and Chapter the Grants of Parsons and Vicars with their Patrons and Ordinaries and Grants by the Incumbent of a Donative by the Patron alone But if a Parson make a Lease which is confirmed by the Bishop only who is Patron without the Dean and Chapter which ought to have joyned it shall bind the Successor during the Lives of the Bishop and Incumbent although the Bishop be translated But Grants by Parsons Vicars Prebends c. before induction or installation c. although confirmed are not binding to the Successor But if the King be Patron of a Prebend then the King and Dean and Chapter and not the Bishop ought to confirm the Grant A Lease made by a Prebendary Parson Vicar c. may be confirmed for part of the term Co. 5.81 ● ⸫ Dyer 52 a.b. Cto El. 472. if it be for Years that is confirm the Land to the Leasee for so many Years of the Term but if the Term be confirmed for part of the Term it were absurd and repugnant and should be good for the whole term as such Lease may be confirmed for part of the term so it may be for part of the Land If a Parson c. make a Grant Rolls 1. 476. f. 1.2 which is confirmed by the Patron and Ordinary and after be deprived yet the Grant is good Rolls 1.479 n. 1. A Husband seized in the right of his Wife of an Advowson the Parson makes a Lease warranted by the Statutes before mentioned and the Bishop and Husband confirm it this shall not bind the right of the Wife but during the Husband's life but that the Successor after his death will avoid it that comes in by the presentation of the Wife Rolls 1.480 n. 2. So if Tenant in tail being Patron confirm the Grant of the Parson with the Bishop this shall not bind the Incumbent of the issue in tail Rolls 1.480 n. 4. If a Usurper present and confirm the Lease of his Incumbent with the Bishop after is removed by quare Impedit this shall not bind the Clerk of the true Patron If the true Patron grant the next avoidance Cro. Car. 582. and then confirm the grant of the Parson who after dies the Incumbent presented by him that had the next avoidance shal avoid the Lease Rolls 1.480 n. 5. Cro. El. 430⸪ his very entry upon the Leasee avoids the Lease for ever If the Parson make a Lease to the Patron which is confirmed by the Bishop this is not good but if the Patron grants it over Co. 5.15 a⸪ it amounts to a confirmation If a Prebend Parson or Vicar make a Lease Rolls 1.481 p. 1. and the Bishop being Patron confirms it without the Dean and Chapter yet this shall bind the Bishop and all the Prebends Parsons c. which he shall Collate If a Parson had made a Lease for above 21 Years before the Statutes of 13. Cro. El. 18. and 14 Eliz. which had been confirmed after this had been good and not within the

239. pl. 42 F. N. B. c. which have the inheritance in Fee-simple in them make a Lease for lives or years not warranted by the Statutes before mentioned not being absolute void by their deaths but only voidable by the entry of the Successor if the Successor accept the Rent before Entry be it for lives or years Rollsi 476. d. he affirms the lease for his Life If a Bishop make a Lease not warranted by the Statutes rendring Rent and die and his Successor appoints his Bayliff to collect his Rents of that Mannor who amongst the rest receives the Rent reserved upon this Demise and accounts to the Bishop's Successor for it this is a good Acceptance and shall bind the Bishop for his time 11 E. 3. F. Abbot 9. Dyer 139. p. 42. So if a Parson lease for life not warranted nor confirmed reserving Rent if his Successor receive Fealty of this Tenant upon this lease he has thereby affirmed the lease for his time 2 H. 4.2 a. the like it will be if the Successor bring an Action of waste But if a Bishop make a lease of Tithes or other things not manurable for life or lives Cro. Jac. 1.73 rendring Rent and dies and his Successor accepts this Rent it will not affirm the lease But whether such acceptance upon a lease for years of Tithes c. will bind the Successor Quaere I must leave it a Quaere not finding that point any where resolved I having now held the Reader long upon this subject shall now leave them and proceed to examine what Leases or Farms they may with safety take or not take By a Statute made in the twenty first year of King H. 8. Stat. 21 H. 8. cap. 13. Parsons c. must not take Farms It is amongst other things enacted That no Spiritual Person shall in his own name or in the name of any other take to farm any Mannors Lands Tenements or Hereditaments upon the penalty of ten pounds for every Month that he holds the same nor by himself nor any other shall buy Cattle Corn Lead Tynn Hydes Leather Tallow Fish Wool Wood or any manner of Victuals or Merchandizes upon pain to forfeit the treble value of things so bought But a Spiritual Parson may buy such things for his own use Where he may and if they do not fit him he may sell the same again and so where he hath not sufficient Glebe he may take grounds for the maintainance of his Family And it is further enacted by the same Statute Shall not farm anothers Parsonage c. That no spiritual Person beneficed with Cure of Souls shall farm the Parsonage or Vicarage of another to take any Rent or Profit out of such Farm upon the penalty of fourty shillings a week and ten times the value of the Rent or Profit he shall take out of such Farm And it is further enacted by the same Statute Must not keep a Tan-house or Brew-house That no spiritual Person shall have or keep by himself or any other any Tan-house or Brew-house other than for his own Family upon pain to forfeit ten pounds per mensem All which Penalties are given to the King and Informer to be recovered in any of his Majesties Courts of Record at Westminster by Action of debt Penalties how to be recovered Bill Plaint or Information wherein no essoine protection or wager of Law is to be admitted 5 Eliz. cap. 5. Where he may license the cating of flesh c. By the Stat. of 5 Eliz. there is authority given to the Bishop of the Diocess Parson Vicar or Curate of the Parish to license any sick person to eat flesh during his sickness and if his Sickness continue above eight days after the granting of such license than the same is to be registred in the Church-book c. and that license to endure during the sickness and no longer And if any Parson Penalty if needless Vicar or Curate grant any License to any person or persons other than such as evidently appears to have need thereof by reason of sickness the Parson Vicar or Curate that granted such license shall forfeit five Marks for every such License 25 H. 8. cap. and the License to be void In the 25 year of H. Sheep 8. There was a Statute made against the excessive number of sheep wherein there is a Proviso that it might be lawful to all spiritual Persons and every of them to keep such and so many sheep upon their own Lands and after such form and manner and not otherwise as they might have done before the making of the said Act. There is several Acts of Parliament for punishing incontinent Priests Incontinence which though since the blessed Reformation I do not mean the last pretended reformation but that in the time of E. 6. and Queen Elizabeth are become absolute and useless yet since I have promised them all the Statutes they may fall in the danger of these are not to be omitted but before I come to those particular Laws I will beg the Reader 's pardon for giving him a short Historical account of the Restriction of the Marriage of Priests which gave the occasion of these Laws Bellarmine in his disputations endeavours to make the single life of Priests to be Jure Divino but if not so De Clerici● cap. yet he goes about to prove that it has been enjoyned by Canons as high as the Apostles time and to that purpose vouches the Canons of the Apostles which though they may be antient yet no rational Man that peruses them will believe they were made by the Apostles or very near their time in which I must confess I find a Canon that by implication forbids Priests to Marry but not Married Men to be Priests and 't is to this effect Canon 25. Ex his qui coelibes in clerum pervenerunt jubemus ut Lectores tantum cantores si velint nuptias contrahant Canon 5. Canons against the marriage of Priests But if he had lookt a little back in those Canons he would have found another manner of Prohibition in these words Episcopus aut Presbyter aut Diaconus uxorem suam praetextu Religionis non abjicito si abjicit se gregator à Communione si perseverat deponitor But however it cannot be denied but there were Antient Canons against the Marriage of Priests but never received or put in practice in England though practised in Italy France c. but the Priests here Married till Anselme Arch-Bishop of Canterbury a Burgundian a powerful and busie Praelate in a Synod or National Councel held at Westminster made a severe Canon against it Hollingshed 30. b. 10. but he meeting with an obstinate Clergy that were unwilling to change their Wives for Concubines to speak in the softest word were not obedient whereupon as my Author tells me he called a second Council in the ninth

tantummodo Sacerdotibus qui quotidiè servire videntur licet comedere habere c. But it should seem that private Chappels carried away many of the offerings belonging to the Mother Churches to avoid which Othobon the Popes Legate here made a Canon to remedy that mischief to this purpose Quod Capellani ministrantes in Capellis hujusmodi Cap. De Oblationibus quae salvo jure matricis Ecclesiae sunt concessae universas Oblationes caetera quae ipsis non recipientibus ad Ecclesiam matricem provenire deberent ipsius Ecclesiae Rectori sine difficultate restituant cum illud tanquam alienum juste nequeant retinere Si quis autem restituere contempserit suspensionis vinculo quousque restituerit se noverit innodatum So that it seems by this Canon that Chappels that had parochial Rights the Chaplains of them might retain the offerings but where the parochial Rights were saved to the Mother Church the Chaplains of such Chappels were to accompt to the Rector of the mother Church for the offerings made at such Chappels There was another Canon made by Simon Mepham Archbishop of Canterbury and his Clergy in the year of our Lord 1328. reciting Quia quidam maledictionis filii in nubentium solenniis Cap. Quia quidam maledictionis c. purificationibus mulierum mortuorum exequiis aliis in quibus ipse dominus in ministrorum suorum personis solebat oblationum libamine populariter honorari ad unius Denarii vel alterius modicae quantitatis oblationem populi devotionem restringere sunt moliti residuum oblationis fidelium suis pro libito vel alienis usibus multoties applicantes Praesentis declaratione Consilii declaramus pronunciamus omnes singulos in praemissis vel eorum aliquos imposterum delinquentes vinculo majoris excommunicationit involvi So that upon the whole matter it appears there were some offerings free and voluntary which the Parishioners or others were not bound to perform but ad libitum There were others by Custom certain and obligatory as those for Marriages Christnings Churching of Women Burials c. and that these were all due and belonged to the Parish Priest or Minister that officiated at the Mother Church or Chappels that had parochial Rights the other Chappels that had not parochial Rights were to accompt to the Rector for the Parish Church now let us see what the Statute of 2 E. 6. says by which it is enacted That all and every Person or Persons which by the Laws and Custome of this Realm ought to make or pay their offerings 2 E. 6. c. 13. The Statute for Offerings shall yearly from thenceforth well and truly content and pay his or their offerings to the Parson c. of the Parish or Parish where it shall fortune or happen him or them to dwell or abide c. Those offerings which were free and voluntary are now vanished and are not comprehended within this Law but those that were customary and certain as for Communicants Marriages Christenings Churching of Women and Burials are confirmed to the Parish Priest Vicars and Curates of the Parishes where the parties live that ought to pay the same and they are only recoverable in the Spiritual Court or an Action I conceive may be formed upon this Statute at Common Law CHAP. XXIV The Twenty Fourth Chapter shews what Mortuaries are and in what Cases they are due at this day and how much is to be paid for the same BY a Provincial Canon made by Simon Laugham Arch-Bishop of Canterbury and his Clergy Where and what is due for Mortuaries in the Year of our Lord 1378. It was decreed Quod si decedens tria vel plura cujuscunque generis in bonis suis habuerit animalia Cap. Statutum infra c. The Canon optimo cui debitum de jure fuerit reservato Ecclesiae suae à qua Sacramenta recepit dum viveret sine dolo fraude seu contradictione qualibet pro recompensatione subtractionis decimarum personalium nec non oblationum secundum melius animal reservetur post obitum pro salute animae suae Ecclesiae suae bujusmodi liberandum quod si duo tantum in bonis decedentis extiterint animalia de mansuetudine Ecclesiae exactio quaelibet nomine mortuarii remittatur quodque si Mulier viro superstite obierit ad solutionem mortuarii minime coerceatur Sed si post obitum mariti in domo cum familiae regimine vidua per annum supervixerit juxta formam superius scriptam ad mortuarium obligetur Hac autem interpretatione consuetudini laudabili super mortuariis in nostra provincia aliter observare nolumus praejudicium generari quin si decedens numerum hujusmodi animalium habuerit seu non habuerit virve aut uxor prius vel post decesserit super praestatione Mortuarii consuetudo Ecclesiastica observetur ad solutionem autem debiti de jure vel consuetudine mortuarii renuentes volumus per ordinarios locorum censura Ecclesiastica coarctari How far this Canon was obeyed in England I can give no accompt but I have not found the English willing to have their Estates taken from them by Canons nor have found that any prohibitions have been granted in case of Mortuaries nor have I observed any complaints in Parliament against them save that 2 R. 2. It is pray'd that Parsons and Vicars might not require Mortuaries of the Armour of any Man but that it might remain to their Executors till the 21 H. 8. and then they were setled by Statute as follows Stat. 21 H. 8. cap. 6. The Statute for Mortuaries 1. That no Man should pay a Mortuary unless he died possessed of Goods to the value of ten Marks that is six pounds thirteen shillings and four pence 2. That no Mortuary should be paid or demanded but in such places where they have used to be paid or given 3. That they should be paid but in one place and that at the partie 's most usual dwelling and habitation and there but one Mortuary and that after the rate following that is to say 4. That if the decedent at the time of his death had in moveable Goods to the value of ten Marks clearly his debts first paid and under the sum of thirty pounds then he should pay three shillings and four pence and no more and this must be in moveables and not in Chattels as Leases for Years c. 5. That if the decedent died possessed of moveables of the value of thirty pounds and under the value of forty pounds to pay six shillings and eight pence for a Mortuary 6. If the Decedents Goods be of the value of forty pounds or upwards then to pay ten shillings for a Mortuary 7. That no married Woman Child or Person not keeping House should pay any mortuary nor a wayfaring Man or other that was not resident where he died but those to pay where they were last resident 8.