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-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
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
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
benefice with cure of Souls c. But here the Church is one and the same and the cure of Souls the same and therefore as he conceives neither within the danger of the Statute or Canon but in a private report that I have this very point came in question in the latter end of the Queen's time and the Reporter says Cooper vers Beauchampe P. 37. El. C.B. that Walmesly and Beaumont were of opinion that this Case was within the Stat. but Anderson doubted and seemed to incline to the contrary Ideo quaere inde By the Resolutions of the several Cases before mentioned it is worth Observation There is now a 1000 qualififications at least in England by Service besides the Chaplains of the King Queen Princes of the blood and Dowagers and probably as many more by birth and dignities and there is about 4300 Livings in England of 10 pound per annnm in the King's books and upwards and it is not the least Livings the Pluralists catch at though at first they crept into the Church where Livings were so small they were not able to maintain a Minister and if the 41 Canon of King James was observed many mischiefs in this Case might be prevented how the Judges of the Common Law have endeavoured to advance this Law and restrain the qualifications And yet when all is done this Law produces little more effect than the transferring the power of Dispensations in this case from the Pope and scattering it amongst the Nobility and others and how many Pluralists is there in England that hardly see either of their Livings in a year so that generally the best Livings in the Kingdom are served with poor Curates and no hospitality kept A thing worth the Consideration of a Parliament CHAP. V. The fifth Chapter shews what Symony is and who shall be said to be guilty of it and what are the dangers ensuing thereupon HAving shewed my Clerk how to obtain a Benefice and likewise those which are qualified how to take a second Living It rests that I should shew them what is to be done after Induction to confirm them in their benefices But because Symony is not only scandalous to the Clerk that is guilty of it but also very dangerous and I told my Clerk in the second Chapter that he must obtain his Presentation without any corrupt or Symoniacal Contract I thought it fit by the way to let my Clerk know not only what Symony is but likewise the danger that attends it What Symony is Papormit c. Nemo extra eo c. Tho. Aq. 2o 2ae q. 100. Art 1. Cro. El. 789. Tho. Aq. 2o 2ae q. 100 Art 4o Symony by the Canonist and School-men is defined to be Studiosa voluntas emendi vel vendendi aliquid spirituale aut spirituali annexum epere subsecuto And Thomas Aquinà s says Quod Simonia dioi videtur à Simone Mago qui donum Spiritus sancti emere voluit ut ex venditione Signorum quae per eum fierent multiplicatam pecuniam lueraretur sic illi qui spiritualia vendunt conformantur Simoni Mago in intentione in actu vero illi qui emere volunt Illi autem qui vendunt in aciu imitantur Giezi discipulum Helisaei de quo legitur 4 Reg. cap. 5. quod accepit pecuniam à leproso mundato unde venditores Spiritualium possunt dici non solum Simonaici sed etiam Giezitae And St. Gregory says In Registro hab 1. q. 10. Canon Quicunque Quicunque sacros ordines vendunt aut emunt Sacerdotes esse non possunt ut scriptum est Anathema danti Anathema accipienti haec est Simonaica haeresis Quomodo ergo si anathematicati sunt sancii non sunt sanctificare alios possunt Et cum in Christi corpore non sunt quomodo Christi corpus tradere vel accipere possunt qui maledicius benedicere quomodo potest And the same Holy Father farther says Ibid. Canon Presbyter Si Presbyter per pecuniam Ecclesiam obtinuerit non solum Ecclesiam privetur sed etiam Sacerdotii honore spolietur And it appears clearly that the very intention to buy Spiritual gifts or preferments carries with it the guilt of Simony as well as the act it self And therefore the Holy Apostle said to Simon Magus Act. Apost c. 8. v. Cor enim tuum non est rectum coram Deo poenitentiam itaque age ab hac nequitiatua roga Deum si forte remittatur tibi haec cogitatio cordis tui But this is in foro conscientiae only and not punishable by any humane Laws unless it proceed to the Act. Symony by the Canonist is distinguished into Simoniace Simoniacus Division Canons against Symony The first is where the Clerk comes in by Symony whereunto he is not party or privy Simonaicus is he which obtains a spiritual preferment by a corrupt and Symoniacal Contract to which he is party or privy and consenting Against this Corruption in the Church many Canons have been made amongst which I shall instance only two and those provincial ones of our own Nation The first was made in the year of our Lord 1229 in the time of Richard Wethershead Archbishop of Canterbury and is as follows Lindwood c. Nalâ—i liceat Ecclesiam c. Nulli liceat Ecclesiam nomine dotalitatis ad aliquem transferre vel pro praesentatione alicujus personae pecuniam vel aliquid aliud emolumentum pacio interveniente recipere quod si quis fecerit in jure convictus vel confessus fuerit ipsam tam Regia quam nostra freti authoritate patronatu ejusdem Ecclesiae imperpetuum privari statuimus but it was not sufficient by a Canon to deprive a man of his Freehold or inheritance be the word imperpetuum taken for life or for ever as it imports neither was this Canon ever put in execution or attempted so to be that I find The other Canon I made mention of I find amongst the Canons of Othobonus the Popes Legate here in England which is to this effect Quia plerumque evenire didicimus quod Chap. Quia plerumque cum ad vacantem Ecclesiam fuit praesentatio facienda is qui praesentandus est prius cum patrono de certa Summa de bonis Ecclesiae sibi annuatim solvenda pasciscitur sic pactus ad Ecclesiam praesentatur § Nos huic actui tam Simoniae vitium quam Ecclesiae dispendium ingerenti occurrere intendentes universas promissiones pactiones hujusmodi penitus revocamus eas imposterum fieri districtiùs inhibemus Et si factae fuerint vires aliquas decernimus non habere But this Canon was of as little effect as the other as to the making the Contracts void which were only determinable at the Common Law where this Canon could not be pleaded in Bar. I have mentioned these two Canons not for the validity or use so much as to satisfie the Reader
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-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
Cures a Duty Incumbent upon every one that hath the cure of Souls in the Church of Christ Page 217. in the English Translation for as Padre Paulo in his most excellent History of the Council of Trent observes that in the first 700 years after Christ Non-Residence when it came into the Church there was not any such thing known in the Western Church that any man should have an Office or Title in the Church and not do the duty and many Canons and Decrees have been made against non-Residence And in the Council of Trent it was held by much the greater and better number of the Prelates and Fathers in that Council The same hist p. 217. c. 486 c. 509 c. 496⸪ Residence Jure divino that Residence was Jure divino and undoubtedly had been so decreed if the Pope had not used all his old stratagems against it but whilst the Pope had power to dispense with residence all the Canons and Decrees of that Church were of little greater effect than to fill his Coffers with money for in this Kingdom how many Bishopricks Abbies Priories c. were enjoyed I mean the profits of them by Forraigners that never saw them or took any care of their duties I should be glad it were much better now But the Parliament of England which has ever been the best Guardian of the Church made bold with his Holiness and in 21 year of King H. 8. made an Act of Parliament to this effect That as well every Spiritual Person then being promoted to any Arch-deaconry 21 H. 8. cap. 13. Act against non-Residence Deanry or Dignity in any Monastery or Cathedral or other Church conventual or Collegiate or being benefieed with any Parsonage or Vicarage as all and every spiritual Persons which then after should be promoted to any of the said Dignities or Benefices with any Parsonage or Vicarage from the Feast of St. Michael then next following should be personally resident and abiding in at or upon his said Dignity Prebend or Benefice or one of them at the least and that if any such person wilfully absented himself from his said Benefice c. by the space of a Month at one time or two Months at several times in any one year to be accounted at several times that such Person so absenting should forfeit ten pounds for every such default the one half to the King the other half to the Informer to be recovered as is expressed in the Act. And by the same Act there is a Proviso worth mentioning though now out of date to this effect That if any Person should procure any Dispensation from Rome or elsewhere to be non-resident the Party guilty should forfeit twenty pounds By this and other Statutes mentioned in this book it is evident that the Parliaments of England even when the Pope was in full power often made bold with his Holiness to correct his and his Court's corruption Certainly this was an excellent Law if there had been no more in it but the dispensing with such persons as by the same Law are qualified to have two Livings and the persons capable to qualifie Chaplains to have pluralities had not been grown so numerous that there is but few of the best Livings but they are held by Pluralists and they either by colour of attending their Lords their Deanries or Prebends find an excuse to be non-Resident which has made this Law of little effect The ends of this Law To do their duties This good Law principally aimed at three ends or effects 1. That every Clergy-man might attend his duty in reading the publick prayers of the Church administring the Sacraments preaching inspecting the behaviour of his flock and performing all sacred and divine Offices like a good and faithful Shepherd and I do wonder with what Conscience any Clergy-man can expect his dues from his Parishioner that does not perform his duty in the first place 2. The second end of this good Law to avoid Dilapidations is to avoid Dilapidations in the Buildings belonging to their Livings for you shall seldom see a Non-resident but he is also a Dilapidator and 't is no wonder that he that neglects the Flock le ts the Sheepfold go to ruine 3. To maintain hospitality Stat. 15. B. 2. cap. 6. and 4 H. 4 cap. 12. The third end of this good Law was to maintain hospitality and I would wish every Clergy-Man to remember that the poor have a share in the Tithes with him And to this end the Statute enjoyns the Clergy-man to be resident in and upon his Living that is his Parsonage or Vicarage House if he have any and not at any other House in the Parish Co. 6 21.b⸪ but Imprisonment without fraud or removing for health without fraud or not having a House upon his glebe excuses his residence for the time for the words of the Statute are That he that wilfully absents himself So if any Parson Vicar c. shall be in the King's service beyond Sea or in any Pilgrimage or shall without fraud abide in any University within this Realm to study Who may be non-Residents or is a Chaplain qualified within this Stat. to have Plurality of Benefices 25 H. 8. cap. 16. or the Chaplains of any of the Judges of the King's Bench or Common Pleas Chancellor or chief Baron of the Exchequer of the King's Attorney and Solicitor and the Chaplains of the Chancellor of the Dutchy of Lancaster 33 H. 8. cap. 28. of the Augmentations First-fruit and Tenths of the Master of the Wards the Surveyer general of the Treasurer of the Chamber and Augmentations and Groome of the Stool whilst such Chaplains abide and are attendant in the Households of their Masters and the Master of the Rolls 21 H. 8. cap. 13. the Dean of the Archer and the Chancellor and Commissaries of Arch-Bishops and Bishops and the twelve Masters of the Chancery so long as they shall continue in their places may be non-resident but the Chaplains of the Chancellor of the Dutchy Augmentations 33 H. 8. cap. 28. First-fruits Master of the Wards Surveyer General Treasurer of the Chamber and Augmentations and Groom of the Stool 9 E. 2. cap. 8. are to be resident twice in a year at least eight days at each time And the King may give License to any of his own Chaplains to be non-resident 21 H. 8. cap. 13. And any Ecclesiastical Person to attend any Suit in the Chancery or Star-Chamber without fraud may be non-resident for so long time c. Masters die c. Co. 4.119 a⸫ But if a Chaplain be qualified in respect of his Service to have a plurality and his Lord or Master die be attaint of Treason Felony or removed from his place it will not serve the Chaplain's turn to be resident upon one of his Livings without the King 's special License with a non obstante But Bishops
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
c. be not present or had no notice given him to be present yet this had been a good setting forth before this Statute but it is a fair and just way to do it in the presence of the Parson Vicar c. And note this Act is warily penned in the singular number thaâ—â—he party himself his Agent or Servant may come to see the Tithes set forth but must not come with a greater number And note that the Parson Vicar Impropriator or Farmer cannot come himself and set forth the Tithes without the Licence and consent of the owner of the Corn Hay c. for if the Parson Vicar c. shall of his own head Tithe the Corn Hay c. of any Landholder within his Parish c. and carry it away he is a Trespassor and an Action will lye against him for it But a Parson Vicar c. may de communi jure after the Tithes are set forth come himself or his Servants and spread abroad dry and stack his Corn Hay c. in any convenient place or places upon the ground where the same grew till the same be sufficiently weathered and fit to be carried into the Barn c. but the Parson Vicar c. must not take a longer time for the doing thereof than what is convenient and necessary and what shall be said a convenient and necessary time the Law doth not nor can define for the quantity of Hay 1 z E. 4.6 a. Roll 1.643 x. 2. Corn c. and the weather in this case is to be considered and what shall in this and all other cases of like nature be said a reasonable and convenient time is to be determined by the Jury if the point come in issue triable by a Jury but if it come to be determined upon a demurrer or other matter of Law the Judges of the Court where the Cause depends are to resolve the same And if the Parson Vicar c. shall exceed a convenient and necessary time in the drying ordering and carrying away their Tithes Hughes Rep. 329. Styles 342. and the Parishioner shall receive dammage thereby an Action of the Case will lye against them for their negligence in this behalf But no Action will lye against the Parson Vicar c. in such a case Stiles 342. Lampen vers Woodnet P. 8. Car. 1. B.R. per Latch unless the Parishioner have duly set forth his Tithe and given notice thereof to the Parson Vicar c. And the Parson Vicar c. Halsey vers Halsey H. 6. Car. 1. B. R. Roll 1.643 â— 3. may carry his Tithes from the ground where they grew either by the Common way or any such way as the owner of the Land useth to carry away his nine parts But if the owner of the Soyl after he has duly set forth his Tithes will stop up the wayes and not suffer the Parson Vicar c. to carry away his Tithes or to spread dry and stack them upon the Land this is no good setting forth of his Tithes without fraud within the Statute of 2 E. 6. but that the Parson Vicar c. or other Owner or Farmer may have an action upon the said Statute and may recover the treble value or may have an Action of the Case for such disturbance Bulst 1.108 as I conceive or he may if he will break open the Gate fence c. which hinders him and carry away his Tithes but in that he must be cautious that he commit no Riot nor break any Gate Rails Lock Hedges more than necessarily he must for his passage And note that the Parson Vicar c. when he comes with his Carts Teams or other Carriages to carry away his Tithes must not suffer his Horses Oxen c. to eat and depasture the Grass growing in the grounds where the Tithes arise much less the Corn there growing or cut but if his Cattle as cannot be avoided do in their passage against the Will of the Drivers here and there snatch some of the Grass c. in their passage this is excusable CHAP. XV. The Fifteenth Chapter shews to what Charges the Glebe lands belonging to a Rectory the Tithes are Subject SIR Edward Coke tells us a Inst 641. What Charges Tithes and Churchlands are subject to Quod nullus pro decimis quae sunt Spirituales de aliqua reparatione pontis seu aliquibus oneribus temporalibus onerari debet That Tithes being Spiritual were not subject to temporal Charges at the Common Law And upon a doubt of Mr. P. 5. Car. 1. Justice Yelverton who was Justice of Assise in the Bishoprick of Durham as Sir Nicholas Hyde heretofore Chief Justice of the Kings Bench has reported it was resolved by all the Judges of England that Tithes are at this day chargeable with all charges imposed by any Act of Parliament wherein they are not excepted as upon the Statute of 43 Eliz. to the poor and to maimed Souldiers Kings Bench Marshalsey Bridges c. But they are not Subject to any Charges Temporal at or by the Common Law But Tithes at this day are Subject to pay first fruits or Annates First Fruits in Latine Primitiae which are the first years profits of every spiritual Benefice at a new Incumbents Entry into his Living they were antiently exacted by the Popes of Rome when they had small revenues to support the publick charge of his place And Polydore Virgil tells us Polid Virgil. De Inventione rerum l. 1. c. 2. p. 498. Caeterum nullum inventum majores Romano Pontifici cumulavit opes quà m annatum quas vocant usus qui omnino multo antiquior est quam recentiores quidam Scriptores suspicantur Et Annates more suo appellant primos fructus unius anni Sacerdotii vacantis aut dimidiam eorum partem And Polydore Virgil tells us that Pope Boniface the Ninth first introduced them though others ascribe them to John the 22th These were often complained of as a great oppression upon the Clergy as Henricus Hostiensis who lived in the time of Pope Alexander the Fourth witnesseth but however upon the abolishing of the Popes Usurpations here in England the poor Clergy were not acquit of this exaction but the same was by the Stat. of 26 H. St. 26 H. 8. c. 3. 8. settled upon the then King and his Successors The first fruits are not here in England rated at the full and utmost value of the Living they are to be paid for but according to valuation taken and made in the said 26 year of King H. 8. and now used in the first fruits Office And these first fruits are by a Statute made 1 Eliz. not to be paid all at once 1 El. cap. 4. but one quarter of them is to be paid at the end of six months from the time of the Induction Collation c. another fourth Part at the end of twelve months another fourth part at the end of
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.
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
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