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 And by the same Act there is a Proviso worth mentioning though now out of date to this effect That if any Person should procure any Dispensation from Rome or elsewhere to be non-resident the Party guilty should forfeit twenty pounds By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
a Verdict in a Jure Patronatus 14. an Action of the Case lyes against him if he admit against the verdict in a Jure patronatus 14. v. Dilapidations and non-residence Coparceners present severally 17. Tenants in Common or Joyntenants 18. C. Canons against Common Law void 41. Calves Wool Lamb Milk Pigs c. how to be paid 169. The Canon ibid. Wool and Lamb how to be paid 170 c. Milk and Cheese 173. sheep not kept thirty daies 174. when Calves c. are to be paid 175. several mens sheep deposture together 176. of Wool Locks Beltings Neckings and of sheep that die of the rot 176. Charges to what Charges Tithes and Glebe Lands are subject and to what not 195. Concubines allowed Priests and other religious Persons and in what manner 124. vid. Incontinenc Confirmation of Bishops Leases where necessary 103. where he has two Chapters where good ibid. Lease confirmed before sealing 104. after the death of the Bishop ibid. makes several concurrent Leases and last first confirmed 104. grant all confirmed before the Inrollment 104. who is to confirm Leases where requisite 105 c. Lease Parson confirmed by the Bishop being Patron alone 106. Lease before Induction confirmed it is void 106. Confirmation for part of the Lands or term and how ibid. Parsons Lease is confirmed and then deprived 107. the Bishop and Husband of the Patroness confirms quod operatur 107. Tenant in tail Patron confirms ibid. Vsurper confirms 107. Patron grants the next avoidance and then confirms 107. Parson Leases to his Patron Bishop confirms and Patron assigns 107. a Bishop Patron confirms without Dean and Chapter qd operatur 108. a Parson Leases before 13 Eliz. confirmed after 108. a Prebend leases and recites that it is done by the Consent of the Bishop who is witness 108. Lessee grants a rent-charge which is confirmed 116. a verdict and judgment will not confirm such Grant where the Bishop is prayed made 116. Composition v. Real Composition Conveyances by what Conveyances Tithes may be past 219. Corn the Tithes thereof how to be paid 154. of Rakings 155. of green Corn cut for the Beasts of the Plow 156. Custom of what force in Tithing 185.189 of not Tithing where good 186. to make things not Tithable to be Tithable 187. the difference between it and Prescription ibid. how far the Canonists allows of Custom 188. D. Deprivation and Deposition quid 83. where determinable ibid. cause of Deprivation by Waste or Dilapidation 84. for Simony ibid. for non-conformity 84. for not reading the Common Prayers within two months after Induction 85. to maintain any Doctrine against the 39 Articles is cause of Depr 85. for what Crimes Ecclesiastical or Civil ibid. for unworthiness 86. for disobedience to the Ordinary 86. for taking a second Living 86. for a Priest to marry was Cause 86. Deprivation ipso facto quid 87. Debt sur 2 E. 6. by whom and against whom it lyes 295. the Form of the Declaration 295. what Pleas lye in it 297. what Evidence is good 298. what Verdict 301. what Judge shall begiven therein 301. Dignities qd 53. Dilapidations qd 74. a Canon against them 75 what relief against them 75. cause of Deprivation in a Bishop Parson c. 77. a Prohibition to forbid them 77. an Act of Parliament against fraudulent Conveyances to avoid the Remedy 78. an Action of the Case lyes at Law for them by the Custom of England 79. and the form ibid. Damages recovered how to be bestowed 80. Trees in Church-yards not to be cut 80. E. Evesque vid. Bishop Exchequer has Jurisdiction of Tithes 302. F. Farms not to be taken by Spiritual men 119. but in particular cases ibid. may not Farm anothers Parsonage ibid. nor keep a Tan-house or Brew house 119. Ferae naturae where Tithes shall be paid of birds and beasts ferae naturae 178. Fees what for Institution and Induction by the Canon Law 58. First fruits qd 195. why Vicarages are higher charged than Parsonages 198. Fishing vid. Ferae naturae Fowl domestick what Tithes shall be paid 183. Fowling vid. Hawking Fruit vid. Seeds H. Hay how to be paid 155. in Orchards 156. of Fodder in the Fens ibid. Grass cut in Meadows for beasts of the Plow 156. of Head lands Balks c. 155. Herbage the Canon 165. who shall pay it 166. not for Saddle Horses ibid. nor of beasts bred for the Plow or Pail ibid. nor for beasts ferae naturae 167. a Pasture eaten with mixt cattle ibid. with Beasts of the Plow ibid. of what cattle herbage is due 168. Hunting hawking fishing fowling 182. I. Incontinence vid. Concubines how punishable in the Clergy 121 and 126. Indicavit lay at Common Law and in what cases 288. in what cases it lyes at this day 289. not till after Libel 289. the Form of the Writ altered ibid. it lyes of offerings 290. by whom ibid. the manner of Proceeding therein 291. Induction how to be made 6. who may make it ibid. what is to be done after Induction 7. vid. Fees Institution in what manner made 6. may be made out of the Diocess ibid. what is effected thereby 7. Jure Patronatus where necessary 11. whether the Bishop be bound to sue it at his peril 12. it lyes though the Church be not litigious 13. the manner of Proceeding therein 14.15 how the Verdict is to be taken 16. the force thereof 17. the Jury refuses to give a verdict qd fieri 17. who may hold it 15. the Bishop himself may 18. if the Commissioners neglect their duty qd fieri 18. verdict in it does not bind ibid. at whose Gosts to be sued 12. Jurisdiction vide Recovery of the Spiritual Court in Simony 56. in Deprivation 83. Deposition and Resignation 87. K. King if a Simonist dyes possest if he lose the Presentation 54. may present upon a Simoniacal Contract though he cannot be guilty of it 54. L Lambs vide Calves Lapse incurs and Patron presents 8. if the Bishop may let the Church lapse where it is litigious 12. where it shall lapse by the taking of a second living 21. from what time the 6 months shall commence 7. and how accompted ibid. Leases what leases may be made by Clergy-men 89. at common Law 90. by the Stat of 32 H. 8. ib. what qualities such leases must have 92. they must be in Writing indented 92. must commence from the making ibid. the old lease must expire within a year 92. there must not be a double lease ibid. what things may be leased ibid. 96 not an Advowson 116. lands usually let 92. the usual rent must be reserved 93. must not be without Impeachment of waste 93. Parsons and Vicars excepted in 32 H. 8.94 lease for 99 years if three lives live so long good ibid. Bishops are restrained by 1 Eliz 94. where such leases shall be only voidable 95.1 Eliz. is a private Act 96. concurrent leases by Bishops 96. but not for life or on a lease for life 104.
peradventure of the party that names them And though they make a false return or no return at all it shall excuse the Bishop and the party grieved is left to his accord against the Commissioners And Verdict does not bind 21 H. 6.45 a. as has been said the verdict in a jure patronatus does not bind the adverse partie 's Title though it may be some evidence for him whose Title is found to be the best 34 H. 6.38 b. CHAP. IV. Shews how the Law stood concerning pluralities before the Statute of 21 H. 8. cap. 13. Who are qualified within that Law to have pluralities and how qualified persons ought to behave themselves in taking the second livings so that the former may not be void A Plurality is where one and the same person obtains two or more spiritual preferments with cure of Souls What a Plurality is against which there have been several Canons and they have been alwayes discountenanced at the Common Law Co. 4.90 b⸫ Co mag ch 626⸪ vide the Records there cited and several Complaints have been made against them in Parliament yet the Pope held them up by his dispensations How agreeable these dispensations were to God's service nay how prejudicial they have been to the advance of the Christian-Religion and are I leave others to judge it being no part of my undertaking Hob. 149. Concil tom 4.221 cap. 29. And though I find a great Judg of this Nation defending of them yet I find a Canon in the general Council of Lateran against them in the Year 1215. in these words Canon against Pluralities Statutum est quod quicunque receperit aliquod beneficium habens curam animarum anexam si prius tale beneficium obtinebat eo sit jure ipso privatus si forte illud retinere contenderit alio etiam spolietur Is quoque ad quem prioris speciat donatio illud post receptionem alterius conferat cui merito viderit conferendum And now let me tell you the fruits of Pluralities out of another Counsel Tom. 5.368 cap. 64. which is delivered in these words Res ipsa loquitur The effect of Plural plura beneficia potissimum quibus cura animarum submissa est non sine gravi Ecclesiarum damno ab uno obtineri cum unus in pluribus Ecclesiis rite officia persolvere aut rebus earum necessariam curam impendere nequeat I might enlarge much more upon this Subject but it being collateral to what I design this last shall serve And if any body desire further satisfaction upon this Subject Confil. Trident 496. I commend him to the History of the Councel of Trent where he will find that by the greater and better opinion of that Councel Residence by him that hath a preferment in the Church with cure of Souls is of Divine right and that therefore the Pope had no power to dispense with non-Residence the consequence of which is that it is against Divine right for any to take more Benefices than one with cure of Souls because the same person cannot be resident in two places at one and the same time But as the Pope by stratagem made the endeavours of all the good men in that Councel ineffectual so by his frequent dispensations to take Pluralities without number or measure He made the Canons of the Church of no other effect than to increase his own Revenue by dispensations More 119. But it should seem the Councel of Lateran was received and approved as to that point in this Kingdom Acceptance of a second Living makes the first void and the Law was always taken that he that had one Living with cure of Souls and without dispensation accepted another with cure of Souls made the first void So that the Patron of the first Church might present a new Clerk and needed not to stay till the former Clerk should be legally deprived But in this case the Church doth not lapse till the the end of six Months to be accounted from the time the Patron had legal notice of the vacancy from the Bishop but after induction the Patron as it should seem Co. 4.95 b. 44 E 3.22 a. 9 E. 3.22 a. 10 E. 3.1 14 H. 7 28. b. 14 H. 8.17 a. F N B. 34. L. 15 E. 3.9 11 H. 4.37 Cro. Car. 357. Several acts to restrain the Pope is bound to take notice at his peril And as to all others but the Patron the Church remained full till induction into the second Living and so are all the Books that seem prima facie to differ reconciled But the Parliament of England that in all Ages made bold with his Holiness and to restrain the exorbitances of the Pope and Court of Rome as the Reader may see 27 E. 3. cap. 1. 3 R. 2. cap. 3. 7 R. 2. cap. 12. 2 H. 4 cap. 4. 38 E. 3. cap. 1. 16 R. 2. cap. 5. 6 H. 4. cap. 1. 25 E. 3. and Provisoes and 27 E. 3. cap. 1. if he pleases to satisfy himself by the several Acts of Parliament mentioned in the margent against Provisions suing at Rome impeaching judgments given at the Common Law Aliens being beneficed within this Realm priviledging religious orders from payment of Tithes and many other things and I cannot forbear to observe to the Reader the boldness of the Parliament in the sixth Year of H. 4. with his Holyness where they restrain the giving of exorbitant and just fees for the investures of Bishops The act begins thus Whereas thereis a damnable custom in the Court of Rome to take more for the investure of Bishops c. Certainly these brave Parliamenteers never expected his Holinesse's indulgence or Pardon this seeming a sin as high as that against the Holy Ghost to charge the Holy Father with a damnable custom in his Court The Act against Pluralities 21 H. 8. cap. 13. Co. 4.79 b. to use extortion and symony I say the Parliament to prevent the mischiefs of these dispensations made a Law in the twenty first Year of H. 8. That if any Person or Persons having that is being instituted one Benefice with cure of Souls being of the yearly value of eight pounds or above shall accept and take any other with cure of Souls and be instituted and inducted into the possession of the same that then immediately after such possession had thereof the first Benefit should be void And that it should be lawful to every Patron having the advowson thereof to present another and the Presentee to have the benefit of the same as though the Incumbent bad died or resigned and that any licence union or other dispensation contrary to that act should be void If this act had gone no further it had been an excellent Law But there is so many qualifications in this Law that wholly defeat the benefit of it since the Nobility are grown so numerous as they are at this day so that the grievance is now
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
But it seems some of the Canonists and Civilians are of opinion that all Compositions between the Lay and Clergy to be discharged wholely of payment of Tithes or to pay less in recompence than the full value are invalid but otherwise between Clergy-men but by the common Law which must govern here there is no such difference allowed but all real Compositions made as aforesaid are good and valid But note Hob. 176⸪ that no Composition made by parol or word of mouth only and not reduced into writing under hand and seal is binding at all unless it be upon Record as by Fine c. But I conceive at this day no real Composition can be made to bind the Successor of the Parson or Vicar that makes the same for they are now restrained by the Stat. of 13 El. 13 El. cap. 10. to make any Grants other than for twenty one years or for three Lives with the other qualifications mentioned in the said Act. So that it seems clear to me that Parsons and Vicars at this day notwithstanding the confirmation of the Patron and Ordinary cannot charge their Benefices or any thing belonging to them other than for twenty one years or three Lives as aforesaid and that only by Leases confirmed by Patron and Ordinary of things usually demised whereupon the accustomed yearly Rent or more is reserved So that what has been said concerning real Compositions is only to be intended of such as were made before that and other later Statutes for I take it a real Composition at this day will only bind the Parson himself whilst he is Parson Resident and serving the Cure quod nota CHAP. XXI The One and Twentieth Chapter shews what Monastery Lands are or may be free from the Payment of Tithes IT is without Dispute Jones 373⸪ 188⸫ Stat. 27 H. 8. cap. 28. What Monastery Lands shall be freed from payment of Tithes that none of the Abby Priory Lands that came to the Crown by the Statute of 27 H. 8. or before are freed or discharged of the payment of Tithes by the Statute of 31 H. 8. c. 8. or by any other Law or Act of Parliament But in the Statute of 27 H. 8. there was a Proviso that notwithstanding that Act the King might by his Letters Patents under the great Seal of England continue any of the said Monasteries and that Proviso is left out of all the modern Prints only Rastal in his abridging of that Statute makes some mention of it Now the Reader must observe once for all that all Monasteries under two hundred pounds per annum were to have been dissolved by the Statute of 27 H. 8. and are therefore usually called the smaller Abbeys and those of two hundred pounds a year and upwards were not dissolved till the 31 year of H. 8. and are commonly called the great Abbeys And upon these two Statutes this Case lately happened in the Exchequer Chamber between Walklate Farmer of the Rectory of Vttoxater in the County of Staff to the Dean of Windsor and Wilshau Owner of a Farm in that Parish that was parcel of the possessions of the Abbey of Croxden in the same County which was one of the small Abbeys and of the Cistertian Order which was freed of the payment of Tithes as shall be shewed hereafter and this Abbey was discovered by the Defendant Wilshau to be continued by Letters Patents under the great Seal of England 31 H. 8. c. 13. and so not dissolved till the Statute of 31 H. 8. whereupon the Defendant was dismissed and discharged of payment of Tithes by the Stat. of 31 H. I mention this Case at large for the singularity not for any nicety in the Learning of it By the Statute of 31 H. 31 H. 8. c. 8. 8. before mentioned there is a Clause to this effect That the King and his Patentees The Clause of 31 H. 8. that frees Abbey Lands which then had or then after should have any Monasteries Abbathies Priories Nunneries Colledges Hospitals Houses of Fryars c. or any Mannors Lands c. which did belong to them should have hold retain keep and enjoy the said Mannors c. according to their Estates and Titles discharged and acquitted of the payment of Tithes as freely and in as large and ample manner as the said Abbots c. or any of them had held occupied possessed used retained or enjoyed the same or any part thereof at the days of their dissolution And the Reader is to observe that the Abbots c. at the time of their dissolution held their Lands discharged four manner of legal and regular ways which were allowed by the Laws of this Realm to wit 1. By the Bulls of Popes 2. By real Compositions with the Parson c. Patron and Ordinary 3. By Prescription And 4. By Order But there is another sort of discharge though not a Legal one has been allowed in this Case to make a 5. sort of discharge and that is perpetual unity where the Abbot has had the Rectory of any Church and Lands in the same Parish time out of mind which have been held free from the payment of Tithes by all the time of memory and of these several discharges I will speak in order And first of discharges by the Popes Bulls it is to be understood Bulls that when the Pope usurped a power over the Clergy here in England he did at his pleasure grant Exemptions to this or that Abbey or to whom else he pleased to be freed from the payment of Tithes which was allowed as a good discharge against the Parsons and Vicars who in many places suffer by these Bulls to this day these Bulls being turned into Prescriptions c. The second sort of discharges was by real Compositions between the Parson or Vicar Real Compositions and the Abbots Priors c. confirmed by the Patron and Ordinary of these we have spoken at large before in the twentieth Chapter and therefore shall not repeat it but pass to the third sort of discharges The third sort of Discharges is by Prescription of which we have likewise spoken at large before in the sixteenth Chapter to which I shall refer the Reader I shall only observe to the Reader again in this place That the Abbots Priors and other religious persons might prescribe generally to be free from the payment or to be discharged of the payment of Tithes without any recompence to the Parson c. but a Layman could not prescribe absolutely to be free from payment of Tithes but sub modo that is paying or doing something to or for the Parson Vicar c. in recompence and satisfaction of the Tithes as you may at large see in the Chapter here before And it is to be observed that no Abbot Prior c. could make any such Prescription by the Common Law that was not founded before the time of memory that is before the first year of R. 1.
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
eighteen months and the last quarter part thereof at the end of two years And by a Statute made 1 Eliz. all Vicarages not exceeding ten pounds 1 Eliz cap. 4. and all Parsonages not exceeding ten Marks according to the valuation in the first fruits Office are discharged from the payment of first fruits And if an Incumbent die or be legally removed out of his Living without fraud then after such death or removal the remaining half yearly payments of the first fruits which were not become due are discharged by the said Statute of 1. Eliz. And by that Statute the Dean and Canons of Windsor are discharged of the payment of first fruits And by the Statute made in the 26th St 26 H. 8. c. 3. When the first Fruits are to be paid year of H. 8. before mentioned It is enacted That every Archbishop Bishop Dean Prebendary Archdeacon Parson Vicar c. before he have any actual or real possession or medling with the profits of his Living this must be between Institution Collation and Induction must pay or compound for or give security for the payment of his first fruits in the first fruits Office And that an Obligation taken for the same should be of the force of a Statute of the Staple and that if any such presume to enter into his Living before such payment or security given or composition made he is to forfeit double the value But his Majesty and his Royal Predecessors have not been severe in this Case to take the penalty but upon faileur their Officers of the Exchequer have sent our Process to the Sheriff to put the negligent Parsons Vicars c. in mind of this duty and upon coming in and paying the charge of the Process and paying or giving security for the first fruits they are discharged But the Parsons Vicars c. must be careful to pay in their half yearly payments as the same become due and take up their bonds or else new Process will issue to the increase of their charge Perhaps some may be so curious Why Vicarages are charged higher in the first fruits Office than Parsonages and desire to know why Vicarages not exceeding ten pound should be freed of this charge and Parsonages of ten marks should pay them now the reason of that was that the Vicarages in time of Popery and when the Valuation was taken had a great income by voluntary Offerings which falling to little or nothing upon the dissolution of Monasteries this favour was afforded them in their first fruits The next charge Parsons and Vicars are subject to are the Tenths Tenths that is a tenth part of the yearly value of all their Church Livings this payment was first exacted from the Clergy by the Pope about the twentieth year of E. 1. 2 Inst 628⸫ and a Valuation was then made by his authority of all Church Livings at which rate the Pope was answered his Tenths but he never had any Tenths of such Land as was given to the Church after that time these payments as appears by our Histories the Popes of Rome sometimes granted to Kings of England when the Kings pleased him or rather when he seared their power but upon the abolishing the Popes power which was in the 25th Stat. 25. H. 8. cap. year of H. 8. these Tenths were given to the King the year following by the aforesaid Statute of 26. H. 8. Stat. 26 H. 8. cap. 3. and to be paid at Christmas yearly and the Bishop of the Diocess is to collect them and they are to be paid according to the valuation taken the same year and now in the first fruits Office and are not paid that year the first fruits are paid but are allowed out of them because 't is intended that the King has the whole years profit But immediately upon the Reformation many Clergy men scrupled and denyed to pay these Tenths to the King being a duty properly due to the Pope and therefore the refusal or neglect to pay them to the King being certified by the Bishop that had the Collection of them is made a Cause of Deprivation not only of the Living St. 26. H. 8. c. 3. for which they refused to pay their Tenths but also of all their spiritual Preferments But by the Stat. St. 2 3 E. 6. c. 20. of 2 and 3 E. 6. that severity was moderated so that now the refusal or neglect to pay them and so certified by the Bishop makes only that Living void for which the Tenths shall be so refused But his Majesty and his Royal Predecessors have rarely put the severity of this Law in Execution but make out Process in the Exchequer to compel the payment however since the penalty is so great every Clergy man ought to be very careful to avoid the danger There is a Provision made by an Act of Parliament in the 27 Year of H. St. 27 H. 8. c. 8. The remedy where the Successor pays Tenths due by his Predecessor 8. for those Incumbents that shall be forced to pay the Tenthes due in the time of their Predecessors that they may levy the same upon any Goods they can find of their Predecessors upon the Church Living and if they be not redeemed within twelve days after they shall be distrained that then the same shall be praised by two or three indifferent Persons to be sworn and so many of them sold as will satisfy the arrear with cost and if no such Goods can be found then the Successor to take his remedy against his Predecessor his Executors or Administrators or others to whom his Goods shall come by hill in Chancery or an Action of Debt at Common Law There is another charge Procreationâ—â— to which the Parsons Vicars c. are subject for their Church Livings Sir John Davies Rep. 1 2 3. which is called Procreations or Proxies and these are duties due and payable to the Bishops and Arch-Deacons at the time of their visitations which are not paid by any certain Rule but by some antient Taxation for antiently the Religious Houses and Clergy-Men at their own charge entertained the Bishops and Arch-Deacons in their visitations See more of this matter Lind. cap. ut singula Ecclesiastica That by a Canon made by Steph. Langton about 1222 the Archdeacons were to bring but seven horses in their Trains and stay but one day and to invite no body but at length their attendants were so many and their trains so great that the Clergy and Religious Houses were horribly oppressed with entertaining of them to avoid which the Clergy and Religious Houses came to this composition every one to pay such a proportion to their visitors to be freed of that great oppession and therefore the Canonists define them to be Exhibitio sumptuum necessariorum facta praelatis qui Diocaeses peragrando Ecclesias subjectas visitant and this payment is continued to this day not only of those Livings