they may fall HAving undertaken this Work chiefly in favour of the Parsons and Vicars What Leases Clergy-men may make I designed to have medled with no other Orders of the Church but those only but having in many other things been enforced to intermingle the concerns of other Orders with those of the Parsons and Vicars I shall beg the Readers pardon that in this Chapter where I am to treat of the Leases which may be made by Parsons and Vicars I likewise take in all other Orders of the Church with the Colledges the Learning concerning Leases being of use and necessary for all people to know and which I shall in this Chapter put into as good a method as the subject matter will permit And because the Learning of these Leases will depend upon several Statutes it will not be amiss first to examine what Leases or Alienations the several persons we have to do with in this Chapter might have made at Common Law before the Statutes and then to consider where or in what manner the several Statutes have inlarged abridged or restrained their power at Common Law And first At Common Law 1 Inst 45. a⸫ at the Common Law no Bishop Abbot Prior Dean Prebend or other single Corporation could make any Alienation or Lease to bind their Successors without the confirmation of their Chapter Covent c. The first Statute that made any alteration in these cases was the Stat. The enabling Act of 32. H. 8. c. 28. of 32 H. 8. which is comonly called the enabling Statute whereby it is enacted That all Leases then after to be made of any Mannors Lands Tenements or Hereditaments by writing under Hand and Seal for term of years or for term of the life by any Person or Persons of the full age of 21 years having any estate of Inheritance either in Fee-simple or Fee-tail in their own rights or in the right of their Churches c. shall be good and effectual in the Law against the Leasors their Wives Heirs and Successors Provided that Act should not extend to any Lease of any Mannors c. Where any old Lease should be in being unless the same expire be surrendred or ended within one year after the making of such new Lease nor shall extend to any Grant to be made of any Reversion of any Mannors c. nor to any Lease of any Mannors c. which have not most commonly been letten to Farm or occupied by the Farmers thereof by the space of twenty years next before such Lease thereof made nor to any Lease to be made without impeachment of waste or to any Lease to be made above the number of three Lives or twenty years at the most from the day of the making thereof and that upon the making of every such Lease there be reserved yearly during the said Lease due and payable to the said Leasors their Heirs and Successors to whom the reversion shall appertain c. so much yearly Farm or Rent or more as hath most accustomably been yielden and paid for the said Mannors c. so to be letten within twenty years next before the Lease thereof made c. Provided this Act should not extend to give any Liberty or power to any Parson Vicar c. to make any Lease or Grant of any of their Messuages Lands Tithes c. or in any other manner than they should or might have done before the making of the said Act. So now where before the making of this Act no Arch-Bishop Bishop Arch-Deacon Dean or Prebend could have made any Lease to have bound his Successors without the confirmation and consent of their Chapters c. as aforesaid Now by this Act they are enabled to make leases for three Lives or one and twenty years without any confirmation at all with these qualifications What qualities such Leases must have Must be in writing indented 1. Such Lease must be made by writing Indented and not by parol or deed poll 2. Must begin from the making or day of making Old Lease must expire with a year Co. 5.2 b⸫ It must be made to begin from the making or day of the making of such Lease 3. If there be any old Lease in being at the time of the making of such Lease it must expire be surrendred or ended within a Year after the making of such new Lease and such surrender must be absolute and not upon condition 4. Must not be a double Lease Fourthly there must not be a double Lease in being at one and the same time the one for Years and the other for Lives 5. Of what things such Lease may be Co. 5.3 a. More 778⸪ Such Lease must be of Lands manurable or corporeal which are necessary to be letten and out of which a Rent may be reserved and not of things that lie merely in Grant as Fairs Markets Tithes Tolls Franchises Advowsons c. 6. Of Lands usually letten Such Lease must be of Lands c. which have most commonly been letten to Farm or occupied by the Farmers thereof for the more part of twenty years before the making of such Lease So if they have been so let for eleven years within the twenty years next before the making of the new Lease it suffices Co. 6.37 b⸪ and a letting to Farm by Copy of Court-Roll is a sufficient letting to Farm within this Statute to enable the making of such new Lease 7. The accustomed Rent must be reserved There must be reserved upon every such Lease and payable during the continuance thereof to the Leasor his Successors c. so much Farm or Rent as hath most accustomably been yielded and paid for the Land so demised within twenty years next before such Lease made so that it sufficieth Co. 6.37 b⸪ if the yearly Rent or Farm be reserved though Herriots and other casual services be omitted Ibid. so if a greater Rent than formerly be reserved it sufficeth But if Lands usually letten be demised with any other Lands c. though a Rent be reserved that exceeds the value of those Lands and the old Rent Co. 5.5 b⸫ yet such Lease is not good against the Successor within this Law But if the Rent were formerly reserved to be paid at four several days and by the new Lease be reserved to be paid all at one Co. 5.37 b. so the whole Rent be reserved yearly it is well enough 8. Lastly Such Lease must not be without Impeachment of Waste such Lease must not be without impeachment of waste and therefore a Lease to one for life remainder to another for life remainder to a third for life is not good against the Successor though but for three Lives because the remainders make the present Tenants dispunishable for waste for the time But Parsons and Vicars being excepted in this enabling Law are left as they were at the Common Law Farsons and Viears excepted so that they
could make no Lease to bind the Successor without the confirmation of the Bishop and Patron till the Stat. of 13. Eliz. which we shall speak of hereafter And note that it hath been held Co. 8 70. b. Lease for years determinable upon Lives that a Lease for ninety nine years if one two or three Lives so long live hath been held good within this Statute But this Act as appears by what hath been said conferred a new power upon single Corporations but did not in any thing restrain their antient power in making long Leases and Alienations of their very Scites Demesns c. with confirmations as aforesaid which was a great prejudice to the Church in general a means of Dilapidations and a great hindrance of hospitality and therefore In the first Year of Queen Eliz. 1 Eliz. c 19. More 107. Bishops restraned it was enacted that all Gifts Grants Feoffments Fines and other Conveyances and Estates from the first day of that present Parliament to be had made done or suffered by any Arch-Bishop or Bishop of any Honors Castles Mannors Lands Tenements or other Hereditaments being part of the possessions of his Arch-Bishoprick or Bishoprick or united appertaining or belonging to any the same Arch-Bishopricks or Bishopricks to any Person or Persons bodies politick or incorporate other than the Queens Majesty her Heirs and Successors whereby any Estate or Estates should or might pass from the said Arch-Bishops or Bishops or any of them other than for the term of twenty one years or three Lives from any such time as any such Lease Grant or assurance shall begin and whereupon the old accustomed yearly Rent or more shall be reserved and payable yearly during the said term of twenty one years or three Lives shall be utterly void and of no effect to all intents constructions and purposes any Law eustom or usage to the contrary thereof in any wise notwithstanding Note the exception 1 Jacobi c. 3. which gives or rather reserves the power to grant c. to the Queen c. was made void by a Statute made 1 Jac. And note also Leases in other Forms not void but voidable Small wood Sale vers le Evesq Lich. alios P◠31. El. ro 21 65. Co. 3.59 that though this Statute enacts that all Leases made in any other form shall be void and of none effect to all intents and purposes yet it has been adjudged that is only to be intended as against the Successors and that Leases made in other forms shall be good notwithstanding against the party himself that makes them Cro. Jac. 95. and may be affirmed by the Successor by the receipt of the Rent reserved thereupon And note 1 Eliz. A private Act. Co. 4.76 Co. 5.2 b⸫ Cro. El. 874. this is a private Act of Parliament that must in all cases be pleaded and cannot be given in evidence And note also that though this Statute do not restrain demising of any Lands not formerly demised yet it does it by implication for the accustomable Rent must be reserved and unless accustomable let there cannot be an accustomable Rent and Leases within this Statute must have all the restrictions in that of 32. H. 8. before-mentioned And it must be of things manurable Of what things such Leases may be made Co 5.3 a. as hath been said out of which a Rent may be reserved but some are of opinion that Tithes or things not manurable may be demised for twenty one years because an Action of debt will lye upon the Contract More 778. Sir Timothy Tourneur Serjeant le Roy. and so it was adjudged as a learned Serjeant at Law inform'd me in the case of the Precentor of Paul's about 17. Jacobi and that the Successor shall have an Action of debt upon this Contract by the Stat. of 21 H. 8. cap. 28. Upon this Statute and the former it hath been held 1 Inst 45. a⸫ Concurrent Leases that Arch-Bishops and Bishops may with confirmation of the Dean and Chapter make concurrent Leases that is notwithstanding there be a Lease in being for twenty one years they may make a new Lease of the same Lands to another for twenty one years from the making thereof and this being confirmed as aforesaid shall bind the Successor the other things being observed in it And Sir Edward Cook is of opinion 1 Inst 45. a⸫ that like concurrent Leases may be made by Deans Prebends c. with confirmation but some learned men are not satisfied herein because by these concurrent Leases the Successor loses his remedy for his Rent by distress during the former term and the Tenant may be insolvent as to an Action of debt The next restrictive Law is that of 13. 13 El. cap. 10. The Restrictive Law against Leases of Deans Prebends c. Eliz. whereby it is enacted That from thenceforth all Leases Gifts Grants Feoffments Conveyances or Estates to be made had done or suffered by the Masters and Fellows of any Colledge Dean and Chapter of any Cathedral or Collegiate Church Master or Guardian of any Hospital Parson Vicar or any other having a Spiritual or Ecclesiastical Living or any Houses Lands Tithes Tenements or other Hereditaments being any part of the possessions of any such Colledge c. or any wise appertaining or belonging to the same or any of them to any Person or Persons Bodies c. other than for the term of twenty one Years or three Lives from the time as any such Lease or Grant shall be made or granted whereupon the accustomed yearly Rent or more shall be reserved and payable during the said term shall be utterly void c. The penning of this Act Co. 5.14 b⸫ and that of 1 Eliz. beforementioned being in effect the same in substance the construction is the same in effect but in this Act there was no saving of Grants to the King and therefore this Act being for the publick good had restrained other Grants to him not warranted by this Stat. though 1 Jac. cap. 3. had never been made And here note Parsons and Vicars restrained by this Law that as the Parsons and Vicars had not their power any wise inlarged by the Stat. of 32 H. 8. So they had no restriction upon them till this act but from henceforth they are restrained from making any Lease or Grants other then for twenty one years or three Lives with the qualifications above mentioned in the Statutes and such Leases must be confirmed by the Patron and Ordinary because excepted in the inabling Statute of 32 H. 8. before And whereas after the making of this Statute Heads of Colledges Deans Prebends c. might have made concurrent Leases as well as Bishops might there is a Proviso in the Statute of 18 Eliz. 18 Eliz. c. 11. No concurrent Lease but within three years before the former ends That all Leases then after to be made by any the aforesaid Ecclesiastical Spiritual or
month after he is inducted allowing a reasonable deduction for the Rent reserved upon such Lease But in both Cases the Lessee must pay the reserved Rent to the succeeding Incumbent who is inabled to sue or distrain for the same And such Lease must be in writing under hand and seal and not by parol But it should seem the Statute of 13 El. 13. El. cap. 20. before has made this Law of no effect And having now done with these Statutes as to Leases let us next consider what Bonds Covenants Promises c. 18 El. c. 11. are void within the Statute of 18 Eliz. before-mentioned Covenants Bonds c. Hob. 269⸫ Covenants Bonds which good made for the enjoying houses within Cities Corporations c. are not void within this Law for this Law makes no Bonds Covenants c. void which are not against the intent of this Statute and the Statute of 13 El. cap. 10. but Leases of Houses and Lands in Cities c. by the Stat. of 14 El. c. 11. are exempted out of 13 El. cap. 10. and are not within the Stat. of 18 El. before A Parson made a Bond to resign upon request More 641⸪ and afterwards a Lease to his Patron of part of the Glebe for twenty one years in an Action brought upon this bond the Incumbent pleaded the Statute of 18 Eliz and averred that this Bond was made to secure this Lease and to compel the Incumbent to reside and adjudged a good Plea and an apt averment A Parson made a Lease Cro. El. 489. Noy 66. and in the Lease covenanted not to be absent by the space of 80 days in any one year and gave Bond for the performance and after became non-resident by 80 days and resolved that the Bonds and Covenants were both void A Parson made a Lease Olivers Case M 4. Jacob. B. R. and covenanted neither to do or suffer to be done any matter whereby the Lease should become void and after became non-resident by the space of 80 days in a year and this was held a good Covenant and a Covenant that the Parson should be resident was held not to be against this Law by Popham Tanfield and Clencb against Williams Quaere Leases of Coll. Hospitals Ideo quaere And having now done with Leases to be made by Ecclesiasticks of every kind and having therein exceeded my bounds beyond Parsons and Vicars to all other Ecclesiasticks since the Leases of Colledges and Hospitals come in my way I will give the Reader what satisfaction I can concerning them And as to them It is to be observed that they are not comprehended in the inabling Statute of 32 H. 8. nor in no other Statute that I find till the restrictive Statute of 13 El. 13 El. cap. 10. whereby amongst the rest the Masters and Fellows of Colledges and the Masters and Guardians are disabled to make any Grants or Conveyances of any of their possessions other than for twenty one years or three Livings from the making of such Lease and not from the day of the date or from the date as has been said and this must be of Lands usually demised and the accustomed Rent or more must be reserved with all the other qualifications mentioned in the beginning of this Chapter And by the Statute of 18 Eliz. 18 El. c. 11. they are restrained to make any concurrent Leases till within three years of the end of the former Terms that are in being I shall now shew the Reader what things are demisable within these several Statutes and what Reservations are good and in what cases the Acceptance of Rent by the Successor will make a Lease good that was voidable within these Laws and the several qualifications mentioned in the beginning of this Chapter What Leases shall be good Smalls Case M. 4. Jac. B. R. Former in being One Small being possessed of the mannor of Padington by a Lease from a Bishop for a Term of years the Bishop made a Lease to another for three Lives and before Livery the Tenant surrendred his former Term and it was held that the Surrender was made in due time and the second Lease good A Prebend had usually been leased excepting the Crab-trees and the Prebendary made a new Lease without excepting the Crab-trees Cro. Jac. 458. 3 Bulst 290. More in the new Leases than the old reserving the antient Rent with other due Circumstances and this Lease was held void against the Successor by reason of the adding of the Crab-trees It hath been adjudged Co. 5.15 a⸫ Next Avoidance not demisable That a Bishop Dean c. cannot grant the next avoidance of an Advowson nor any Rent-charge out of the possessions of the Church but the same is void within the restrictive Acts before-mentioned though these cannot be said any of the possessions of their Churches It was also resolved Co. 5.15 a⸫ Charges void that where an Arch-deacon made a Lease for three Lives warranted by the Statutes before mentioned and the Lessee granted a Rent-charge for a hundred years which was confirmed by the Bishop Dean and Chapter that notwithstanding the same was void against the Successor within the Stat. of 13 Eliz. cap. 10. If a Writ of Annuity should be brought against a Parson Co. 5 14.b⸪ c. pretending the same due by Prescription and although the Parson pray in aid of the Patron and Ordinary and upon a Plea pleaded by them the Plaintiff obtains a Verdict and Judgment and all this by practice and fraud to charge the Glebe it is void against the Successor for these Statutes being made for the benefit of the Church advance of Religion and Hospitality and to avoid Dilapidations 19 Ass p. 9. shall always have a favourable Construction It is regularly true Acceptance of Rent where it shall bind that where the Wife issues in tail or Successor accepts the Rent after the death of the husband Tenant in tail or Predecessor upon a void Lease made by the Husband Tenant in tail or Predecessor that such Acceptance will not affirm the Lease but this Rule must be understood of such a Lease as is void ipso facto without entry or any other Ceremony and therefore if a Parson Vicar or Prebend c. make a Lease not warrantable by the Statutes for twenty one years rendring of Rent and dyes Co. 3 65. a. 37 H. 6. 3 4. 11 E. 3. Fitz. Abbot 9. 8 H. 519. here no Acceptance of Rent by the Successor c. will affirm this Lease because the same was void without Entry or other Ceremony but if a Parson Vicar or Prebend make a lease not warrantable within the before mentioned Statutes for life or lives reserving Rent and dye and the Successor before Entry acccept the Rent this Lease shall bind him for the time for this being an Estate of Freehold could not be void before entry But if a Bishop Abbot or Prior Dyer
manner inform me of them for Humanum est errare and though I may have cause to be ashamed of them yet I will never be ashamed to amend Vale. The Contents The Contents of the several Chapters contained in the first part of this Book Intitled the Parsons Counsellor CHAP. Who may be a Parson 1. sheweth who may or may not be a compleat Parson Vicar c. Chap. How he must proceed in taking a Living 2. sheweth how one that is a Person fitly qualified to be a Parson Vicar c. ought to proceed in the obtaining and accepting of the same Chap. Jure Patronatus 3. shews in what cases 't is necessary for the Bishop to have a jure patronatus and how to proceed in the same and what is the force and effect thereof Chap. Pluralities 4. shews how the Law stood concerning pluralities before the Stat. of 21 H. 8. who are qualified within that Law to have pluralities and how they ought to behave themselves in taking the second Livings so that the first may not be made void Chap. Simony 5. shews what Simony is and who shall be said to be guilty of it and what are the dangers ensuing thereupon Chap. What he is to do at before and after institution and induction 6. shews what one is to do before and at institution and after induction to make himself a compleat Parson Chap. Non-residence 7. shews what is required further of Parsons c. after induction and what non-residence is and the dangers incurred thereby and what matters will excuse the same Chap. 8. shews Dilapidations what shall be said to be dilapidations and how the same is remedied and punished Chap. 9. shews for what cause a Parson Deprivation Vicar c. may be deprived according to the rules of the Common Laws Chap. 10. shews what Leases a Parson Leases Vicar c. may make of his Glebe Tithes and what Farms he may or may not take Farms and within the danger of what other Statutes they may fall Chap. 11. shews Priviledges of the Clergy what Priviledges are allowed to the Clergy in Holy Orders by the Statute and Common Laws of this Realm The Contents of the several Chapters contained in the second part of this Book Intituled the Law of Tithes or Tithing CHAP. 1. shews what Tithes are Quid quot◠plex quo modo debet the several sorts and kinds thereof and how the same become due Chap. 2. shews By whom and to whom due by whom and to whom Tithes ought to be paid Chap. 3. shews What things are Tithable Corn Hay c. of what things Tithes are due to be paid and in what manner the Tithes of Corn Hay c. are to be paid Chap. 4. shews Wood. where and in what cases the Tithes of wood ought to be paid Chap. 5. shews Herbage where Tithes are due for Herbage or Agistment of Cattle and who is to pay the same Chap. Calves Milk Cheese Wool Lambs Pigs c. Seeds Fruit Mast Bees Hony things ferae naturae 6. shews where and in what manner the Tithes of Calves Milk Cheese Wool Lambs Pigs c. are payable Chap. 7. shews in what manner the Tithes of Seeds Fruit Mast Bees c. are to be paid Chap. 8. shews where and in what manner the Tithes of Pigeons Conyes Fish Deer and other Birds and Beasts ferae naturae are Tithable Chap. Mills 9. shews of what nature the Tithes of Mills are and in what cases payable Chap. Personal Tithes 10. Treats of the Tithes of Hawking Hunting Fishing Fowling c. and other personal Tithes Chap. Domestick Birds 11. Treats of the Tithes of Ducks Geese Swans Turkeys and other domestick Fowls and Birds Chap. Of what things Tithes are not payable 12. shews of what things Tithes are not due by the Common Laws of this Realm Chap. Customs 13. shews what force Customs have as well in the form and manner of Tithing as in the discharging the payment thereof and the difference between Custom and Prescription Chap. Interest in the Lands 14. shews what Priviledges the Parson Vicar c. have in the Grounds where the Tithes arise for the drying making and carrying away the same Chap. To what charge subject 15. shews to what charges the Glebe and Tithes are subject and liable Chap. Modus decimandi 16. shews how far Prescription will prevail in the manner of Tithing and in what Cases a modus decimandi will bind the Parson c. Chap. 17. shews How to be destroy'd how a modus decimandi may be destroyed Chap. 18. shews by what conveyances How to be convey'd and by what names Tithes may be granted demised c. and what Demises and Leases made by Parsons Vicars and other Ecclesiasticks c. are good Of Leases Chap. 19. shews Barren Ground what barren Lands are freed from payment of Tithes within the Statute of 2 E. 6. Chap. 20. shews Real Compositions what a Real composition is and in what cases Lands shall be freed from the payment of Tithes thereby Chap. 21. shews Monastery Lands what Monastery Lands are or may be freed from the payment of Tithes Chap. 22. shews what personal Tithes are Personal Tithes and in what cases due and payable Chap. 23. shews what Oblations Offerings Oblations c. are and where due and payable Chap. 24. shews what Mortuaries are Mortuaries and in what cases they are due and payable Chap. 25. shews London how Tithes are to be paid in London and several resolutions upon the Statute made for the payment thereof Chap. 26. shews in what Courts How recovereble and in what manner Tithes may be sued for and in what Cases Prohibitions lye for the staying of Suits for Tithes in the Ecclesiastical Courts and how to proceed therein Prohibitions Note that in my references to printed Books in this Treatise Directions in the Marginal references I for the most part refer to the page and part of the page where the matter is to be found in this manner if the matter be at the upper end of the page I mark it with three pricks thus ⸫ if in the middle thus .. if at the lower part thus ⸪ and where the Book is numbred by Fol. I add the A. or B. side as it happens THE TABLE A ACceptance of Rent where it shall affirm a Lease 117. not by Parson Vicar or Prebend 118. whereby the acceptance of Fealty by a Parson shall bind 118. a Bishop accepts the rent upon a Lease for Life of Tithes 118. upon a Lease for years of Tithes ibid. Admission in what manner to be made 6. not to be done hastily ibid. Atfermathes where Tithe is due of them 155. Agistment vide Herbage Alternagium quid 145. Annates qd vide First-Fruits B. Barren Lands in what Cases free from the payment of Tithes 221. Bees what Tithe is due for them 177. Bishop what time he hath to examine a Clerk 5 and 6. admits a Clerk before the Church becomes litigious 13. not bound by
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.
Collegiate Persons or others of any of their Ecclesiastical c. Lands c. whereof any former Lease for years is in being and not expired surrendred or ended within three years next after the making of any such new Lease should be utterly void frustrate and of none effect any Law c. By this Proviso it should seem the Parliament was of opinion that concurrent Leases might be made but has by this Proviso so restrained them that they cannot be made but within three years before the Determination of the former But Bishops are conceived not to be comprehended within this Proviso Bishops not in this Act. for though the words are general enough yet the particulars mentioned before the general words being of an inferiour rank the general words cannot draw in the more worthy And there is a Provision in this Act of 18 Eliz. Which Bonds and Covenants shall be void That all Bonds and Covenants then after made for the making or renewing of any Lease contrary to the intent of that Statute or of the Statute of 13 Eliz cap. 10. should be utterly void By a Statute made in the 13th 13 Eliz. c. 20 Leases of Parsons to be void by non-Residence Year of Queen Elizabeth there is an Act of Parliament made whereby it is enacted That no Lease made after the 15th day of May following of any Benefice or Ecclesiastical Promotion with Cure or any part thereof and not being impropriated should endure any longer than while the Leasor should be ordinarily resident and serving the Cure of such Benefice without absence above fourscore days in any one year These wordt within the are repealed by 14 El. c. 11. but that every such Lease so soon as it or any part thereof should come to any possession above forbidden or immediately upon such absence shall cease and be void and the Incumbent so offending shall c. lose one years profit of his said Benefice to be distributed by the Ordinary to the poor of the Parish And by the same Statute Charging Parsonages void it is further enacted That all charging of such Benefices with Cure then after with any pension or with any profit out of the same to be yielded or taken other than Rents reserved upon Leases should be void But where any Person should be qualified to have two Livings Where a Parson may devise and be non-resident he may devise the one of them where he is not ordinarily resident to his Curate only that shall there serve the Cure And such Lease shall endure no longer than during such Curate's residence without absence above fourty days in any one year And by the 14. 14 El. cap. 11. Leases Bonds and Covenants to be void of Eliz. it is enacted That all Leases Bonds Promises and Covenants of and concerning Benefices and Ecclesiastical Livings with Cure to be made by any Curate shall be of no other or better force validity or continuance than if the same had been made by the beneficed person himself that shall demise the same to such Curate And by the same Statute it is enacted Houses Incorporations c. how to he leased That the restrictive Statute of 13 Eliz. cap. 10. before shall not extend to any Grant Assurance or Lease of any houses belonging to any the persons c. in the said Stat. of 13. nor to any grounds to any such houses appertaining c. in any City Burrough Town Corporate or Market Town or the Suburbs of any of them but that all such houses and grounds may be granted demised and assured as they might have been before the making of the said Act so always as such house being not the Capital or dwelling house used for the Habitation of the Parsons c. nor have above ten Acres to the same Provided Not to lease in reversion That no Lease be made by vertue of this Act in reversion nor without reserving the accustomed yearly Rent at least nor for a longer term than for fourty years at most charging the Leasee with repairs and no alienation in Fee unless lands of as good yearly value be settled c. in lieu thereof There is likewise another Proviso in this act that all Bonds Conrracts Bonds Contracts Covenants Promises where to be void Promises and Covenants to be made for the suffering or permitting any person to enjoy any Benefice or Ecclesiastical Promotion with Cure or to take the profits or fruits thereof other than such Bonds and Covenants as shall he made for assurance of any Lease heretofore made shall be of no other force than Leases made by the same person And by another Statute made in the 18th year of the same Queen Eliz. 18 Eliz. c. 11. It is enacted That after complaint made to the Ordinary and Sentence given upon any offence committed by the Incumbent against the Statute of 13 Eliz. cap. 20. whereby he shall or ought to lose a years profit of his Benefice c. That then the Ordinary within two months after such Sentence and request made by the Churchwardens of the Parish where c. or one of them shall grant the Sequestration of such profits to such Inhabitant or Inhabitants within the same Parish c. as to him shall seem meet c. And that upon default of the Ordinary it shall be lawful for every Parishioner Every Parishioner may take advantage c. to retain c. his Tithes and for the Church-wardens to enter upon the glebe-Glebe-land Rents and Duties of every such Benenefice to be imployed to the use of the poor c. until such time as Sequestration shall be committed by the Ordinary and then the Church-wardens and Parishioners to accompt to such to whom the Sequestration shall be committed who is to imploy the whole profits according to the act upon pain to forfeit the double value of the profits with-holden to be recovered in the Ecclesiastical Court by the poor of the Parish Having thus briefly for the Readers satisfaction given him a brief Abstract of all the Statutes concerning the Leases of Ecclesiasticks of all kinds I shall briefly sum them all up and proceed to take a view of such other Statutes as the Parsons Vicars c. are in any manner in danger of Upon the whole matter it appears What Leases may be made by Bishops and Arch-bishops that Arch-bishops and Bishops may make Leases for twenty one years or for one two or three Lives with the qualifications before mentioned without any Confirmations at all and they may make concurrent Leases for twnety one years upon Leases for tweny one years from the making with confirmation of the Dean and Chapter with such qualifications as is aforesaid though there be above three years in being of the old Lease at the time of the making the new and where the Bishop has two Chapters there the concurrent Lease must be confirmed by both Chapters unless it be as it
to the Rector of the Parish Church wherein they arise yet notwithstanding the Parson of one Parish may prescribe to have a Portion of Tithes in the Parish of another 14 H. 4.17 a 44 Ass p. 25. Roll 1.657 o. and so might Abbot Priors and other religious persons prescribe to have portions of Tithes in Parishes How Prescriptiont are to be proved Seld. hist decim 364⸪ 290⸪ whereof they had not the Advowsons and by consequence the Patentees from the Crown and the Impropriators may claim the same by prescriptions in the Abbots Priors c. and the usage since the dissolution will serve to prove the prescription and usage in the Abbots c. that they held the same so time out of mind As for extra-parochial Tithes Extra-parechial Tithes 7 E. 3. there has been some differing Opinions Sir William Herle was of opinion that they belonged to the Bishop of the Diocess as general Parson of his whole Diocess grounding his opinion as it should seem Seld. hist decim 108. upon the Canon Law But there was never any such Canon received or approved in this Kingdom But it hath been resolved both in Parliament 21 Ass 75. 2 Inst 647⸫ Roll 1.657 o. p. Seld hist decim 365. and by several Judgments at Common Law that all extra-parochial Tithes belong to the King who is a mixt Person and capable of Tithes at the Common Law in pernancy Now having shewed in general who are capable of Tithes in pernancy at this day In Particular Cases to whom Tithes are due and to whom of Common right they belong I shall proceed to shew to whom they are due in some particular Cases If a Parson Lease his glebe-Glebe-Lands Cro. El. 161. Against the Parsons own Lease Portman vers Hind in 31 32 El. B. R. Co. 11.13 b⸪ Dyer 43. p. 22 est Quaere and do not also grant the Tithes thereof the Tenant shall pay the Parson Tithes nay though the Parson Lease his Lands cum omnibus proficuis commoditatibus eidem spectantibus rendering Rent pro omnibus exactionibus demandis quibuscunque Yet notwithstanding the Tenant shall pay the Parson the Tithes arising upon these Lands The like Law it is if an Impropriator Vicar c. make such Lease c. And as the Parson shall have Tithe of his own Tenant Against his Feoffment Co. 1.111 a⸪ Co. 11.13 b⸪ so he shall have of his Feoffee And if a Parson have Lands in the same Parish whereof he is Parson and demises his Tithes he shall pay Tithes to his Farmer If a Parson sow his ground Dyer 43. p. 21. Moyle ver Ewre Hill 1 Jac. B. R. Roll 655. k. 2. Lease Roll 655. k. 1. and then sell the emblements I mean the Corn growing upon the ground the buyer of the Corn shall pay the Tithe of it to the Parson that sowed and sold the Corn. So if a Parson sow his Glebe-Land and then Lease the Land the Tenant shall pay his Parson Landlord Tithe of this Corn. There has been some opinions Co. 10.88 b⸪ 21 H. 6.30 a. that if the Parishioner sow his Lands and before severance the Parson die that in this case the Parson's Executors Uphaven ver Humfries 40 El. per Poph. Gaudy vers Fenner and not his Successor should have the Tithes And there has been some Opinions that if the Parson sow his Glebe and die before severance that his Executors should not pay Tithes of this Corn. But both these Cases To whom the Tithes in the Vacation belong St. 28. H. 8. c. 11. if they had been Law are put out of doubt by the Stat. of 28 H. 8. which hath given all the Tithes and other profits belonging to the Rectory to the Successor from the death of the last Incumbent which hath taken away all pretence the Executors could have in such Cases But notwithstanding this Statute I take the Law to be clear that the Executor of the Parson shall have the Corn sown by his Testator in his life time Rolls 655. k. 3. as the Executors of other Tenants for life have by the Law It hath been held Whether the Vicar and Parson shall pay to each other Crompt Case P. 7. Car. 1. B. R. Cro. El. 578. that the Vicar upon a general indowment shall not pay Tithes of his Glebe to the Parson or the fruits that arise from the same Quia decimas Ecclesia Ecclesiae reddere non debet So if a Vicar be endowed of all the small Tithes arising within the Parish yet he shall not have the small Tithes arising upon the Glebe-Lands of the Parson Tithes may belong to a Chappel 13 Ass p. 2. Dyer 87. Tithes by prescription may be appendant to an antient Chappel CHAP. III. The third Chapter shews of what things Tithes are due and in what manner the Tithes of Hay and Corn are to be paid Tithes Regularly are to be paid of all things annually arising from the gound Of what things Tithes are to be paid Co. 11.160 F. N. B 53 E. either of themselves or by the Culture and Industry of the Parishioner without any deduction of Averg in their proper kinds as soon as the same may be separated and divided from the nine parts in Sheaves Garbs or Heaps Lind wood c. Quoniam propter verb. non deductis expensis But the manner and form of the payment of Tithes is for the most part governed by the Custom of the place and therefore if by Custom the tenth part How Tithes of Corn are to be paid of Corn or Hay hath been measured forth growing upon the Lands as 't is in some parts of Lincolnshire this manner of Tithing is to be observed for in what manner soever the Tithe hath been paid time out of mind St. 27 II 8. c. 20. 32 II. 8. cap. 7. in such manner it still ought to be paid and therefore where Tithe Corn hath used to be paid time out mind in Sheaves or Garbs bound up it is no good payment to leave it in bonds unbound as I have known some contentious Parishioners do So for the Tithe of Hay How the Tythe of Hay is to be paid if the Parishioner have used to make it into Hay-cocks before they have set forth their Tithes they must do so still Roll 1.644 y. 1256. but where there is no such Custom they may set it forth in Grass-cocks The same order ought to be observed in all other things arising from the Ground as Rape Saffron Apples c. and other fruit But no Tithes are to be paid for the Rakings of Corn Rakings 2 Inst 652⸫ Cro El. 660. More 278. Crok Jac. 42 Yelver 86. Hetley 133. Rolls 1.645 z. 11 12 13. Aftermaths unless the Parishioner fraudulently scatter his Corn to cozen the Parson of his Tithes Neither are Tithes to be paid of the aftermaths of Meadows nor of balks in Corn Fields
which are still enjoyed by the Clergy but also of the impropriations as I take it Synodals is another charge upon the Parsons Synodals Vicars c. and is likewise paid to the Arch-Deacon not by any certain rule but by some antient Taxation so that some pay more and some less I must confess I cannot find how this payment first became due but by the name it should seem to be a contribution to the Arch-Deacon's charge in the Synods they being antiently elected by the Deacons themselves as their representative But it should seem Dugdales Warw. 126 b⸫ that the Arch-Deacons claim these Synodals for their Easter visitation and the Bishops have laid some claim to them but as my Author conceives without any just reason the Arch-Deacon and his Officers performing the Labour and undergoing the Charge All these charges the secular Clergy undergo which takes away a considerable part of their Revenues CHAP. XVI The Sixteenth Chapt. shews how far prescription will prevail in the manner of Tithing and in what cases the Parson Vicar c. shall be bound by a modus decimandi THe Canonists and those that are of opinion that Tithes are due jure divino The force of a modus decimandi in Tithing Lind wood cap. Quoniam propter verbo redemptionem decry all Customs and Prescriptions that either diminish the tenth part or acquit the whole for in truth no Custom or Prescription can be good which is positively against the Law of God And that is the reason why it is frequently said in our Law Books Co. select cases 46⸪ that the Ecclesiastical Courts will not allow a modus decimandi But the Common Lawyers allow Tithes to be due Common Law and Canon differ Concerning Customs c. Jure Divino secundum quid that is quoad sustentationem cleri but not quoad decimam aut aliquam aliam certam partem and therefore they allow of a manner of Tithing which diminisheth the quantum or a Custom of not Tithing for this or that particular thing so there be a sufficient maintainance for the Clergy besides and of the same opinion are some of the most eminent School Men Tho Aq. Sum. 2. 2ae and in this Tho. Aq. Sum. 2. 2ae q. 87.1.0 as in all other things where the Common Law and Canon or Ecclesiastical Laws differ the Common Law is to be preferred The difference between Custom and Prescription I have shewed before in the thirteenth Chapter The difference between Custom and Prescription But before I proceed upon this Subject I must beg leave of the Reader to say something more in vindication of the Common Law The Common Law vindicated which in this point I conceive does not differ materially from the Ecclesiastical and civil Law for if I do not very much mistake the Canonists and Civilians Lindwood c. Quoniam propter verb. Redemptionem they do at this day allow of real compositions in discharge of Tithes that is where the Parson Patron and Ordinary do by deed agree to accept of a certain sum of Money yearly or so much Land or other profit though not to the full yearly value in discharge of the Tithes growing and arising upon such Lands as they agree for now what is this but a modus decimandi and a prescription to maintain this modus is no more than a supply to prove a real composition which was made beyond all memory and lost and it were against all Justice and reason that if a Man should be plundred of or lose his Deeds that he should thereby lose his Estate And it must necessarily be intended Seld. hist Decim 408. that every modus decimandi that has continued time out of mind must have a reasonable and legal commencement and must be intended that it began by a real composition A Rent charge cannot be created but by Deed and yet it may be claimed by prescription supposing a Deed preceded the like Law is of all Canons c. And St. German in the Doctor and Student puts this case Lib. 2. cap. 55. f. 67. a⸪ that if it were ordained for a Law that all payment of Tithes from thenceforth should cease and that every Curate should have a certain Portion of Land assigned to him or a Rent or Annuity which should be sufficient for his maintainance and those that served under him or that every Householder should give a certain sum to that use that this were a good Law and grounded his opinion upon this saying of Doctor Gerson a great Doctor in Divinity Solutio decimarum sacerdotibus est de Jure Divino quatenus inde sustententur sed quoad tam hanc vel illam assignare aut alios in alios redditus commutare positivi juris existit And this commuting Tithes into annual Salaries is frequently practised in the Protestant Churches beyond Sea as I have been informed And these prescriptions de modo decimandi Prescriptions are confirmed by Parliament are not only allowed by the antient Common Laws of this Realm but confirmed by Act of Parliament For by the Stat. Stat. 2. E. 6. cap. 13. of 2 E. 6. it is enacted that no Person shall be sued or otherwise compelled to yield give or pay any manner of Tithes for any Mannors Lands Tenements c. which by the Laws and Statutes of this Realm or by any Priviledg or Prescription are not chargeable with the payment of any such Tithes or that be discharged by any composition real and having said thus much in vindication of the Common Law I shall proceed to shew what Prescriptions and Customs de modo decimandi vel de non decimando are good and allowed at Common Law First who may not prescribe in non decimando Seld. Hist decin 409⸫ Rolls 1.653 H. no Lay-Man can prescribe in non decimando that is to be discharged absolutely of the payment of Tithes and to pay nothing in lieu thereof unless he begin his prescription in a Religious or Ecclesiastical Person and derive a Title to it by Act of Parliament But all Spiritual and Religious Persons who may prescribe in non decimando as Bishops Abbots Priors Deans Prebends Parsons Vicars c. may prescribe in non decimando and their Farmers may make use of such prescriptions to free themselves from the payment of Tithes And hence it is that the Parson or Vicar of one Parish that hath part of his Glebe lying in another Parish may prescribe in non decimando for it Rols 1.653 H. 3. that is as hath been said to be free from the payment of any manner of Tithe for it But Church Wardens who have Land belonging to their Churches cannot prescribe in non decimando because they are neither Religious nor Spiritual Persons Rolls 1.653 H. 6. Church Wardens not It hath been held that a Bishop may prescribe that he and his Tenants for Life Rolls 1.653 H. 7. A
in what cases Deans Prehends c. are restrained by 13 Eliz. 97. Parsons and Vicars restrained by it 98. where upon a concurrent lease the former must determine within three years 98 but not so for Bishops 99. where a Parsons lease shall be void by non residence 99 100 110 whether void against himself ibid. houses in Corporations how to be leased 100. not in reversion 101. what by Bishops and Archbishops 103. by Deans Prebends and Colledges where good 105. from what time leases must commence 105. a Parson leases and resigns 112 Parson leases which is confirmed and then becomes non-resident 112. Bonds and Covenants for leases where void 99. and Promises 101 113. of Colledges and Hospitals where good 114. where a lease shall be good a former in being 115. Surrender enter sealing and delivery ibid. L. Litigious where a Church shall be said to be so 11. where by a Jure patronatus 12. where after a Jure patronatus 12. The Bishop may admit either Clerk without a Jure patronatus at his peril 14. London How Tithes are to be paid 256. M. Marriage of Priests forbid by Canons presented and by whom and how 122. Jo. de Lerma who prosecuted it taken in bed with a whore 123. how forbidden by the Apost Canons 123. made Felony to use their Wives or company 127. after mitigated ibid. to affirm a Priest might Marry made Heresie and Treason 128. all Laws against their Marriage repealed and their Children legitimated 128. that Act repealed and after revived ibid. Mast vide Seed Milk vide Calves Modus vide Prescription Monastery Lands where freed of Tithes 230. how many ways they may be discharged 231. what orders were free from payment of Tithes 233. in what Cases the lesser Abbies may be free 235. not of Lands purchased after 1215.237 Mortuaries what and how and where due 251. N. Notice of Resignation Deprivation where requisite and how to be given 9. 10. O. Oblations and Offerings what and in what Cases due 247. Ordinary vide Bishops P. Parliament 22. Pardon of Simony the effect 54. Parson what he is to do at before and after Institution and Induction 159. he must be a Priest ibid. he must subscribe and have a Certificate ibid. he must read the 39. Articles and how 60. he must declare his assent and the form 60. the danger of failing in any of these 61. they must be repeated upon taking a new Living 61. good advice to the Parsons ibid. what age a Parson must be 64. of a Living of 30. pounds per annum who may be 64. he must be conformable 65. when and how oft he must use the Common Prayer 65. before every Lecture 66. the penalty for using other Forms 66. he must maintain no Doctrine Repugnant to the 39. Articles 67. who may be a Parson 1. 2. 3. Personal Tithes quid and where due 243. Piggs vide Calves Pluralities quid 19. Canons against them 19. the mischief of them 20. acceptance of a second Living makes the first void 21. as to the Patron without sentence ibid. but not as to lapse ibid. Act of Parliament against it 22. which shall be said a Living of 8 pounds per annum c. 23. a Parson not qualified may have a plurality 24. who are qualified by service to have them 24. who by birth 25. who by degree ibid. he that takes a plurality must have a Testimonial 26. how to proceed in the taking of them 27. the first void by institution into the second 27. which Chaplains where above the number is retained 28. the Master dies before preferment 28. the Mistress Marries before 29. becomes a Widow again ibid. Marries under her degree ibid. what Livings and preferments do not make a plurality 22. none has a double capacity to qualifie cap. 30. Chaplains retain per filium in vita prioris 30. Master discharges Chaplain after he is preferred 30. retains a greater number than he ought which shall be qualified 30. is instituted before a dispensation 31. the King cannot dispence with this Law 31. inducted in a second Living and does not read the 39. Articles and 31. a Clerk qualified is made a Bishop his qualification ceases 31. plurality by union 32. a Vicar is made Parson of the same Church 32. two Rectories in one Church but one Curate 32. the effect of taking the power of dispensation from the Pope and putting it in the Nobility 33. the prejudice introduced 19. how many qualifications there are in England 33. in Margin of what Livings at first ibid. Pope several Acts of Parliament to restrain his usurpations 21. and 22. a damnable Custom alledged to be in his Court of Rome to exact undue Fees 22. Priests who may be and at what age 64. Prescription and modus decimandi qd and why Ecclesiastical Courts reject customs and modus decimandi 203. how they differ from customs and justified by reason 204. confirmed by Parliament 204. who may prescribe in non decimando 206. who in modo decimandi 208. a modus to do two things and one fails 209. for Houses 209. which Prescriptions de modo decimandi are good 210. for Wool and Lamb ibid. for Corn 211. for Wood 212. for Calves and Milk ibid. Eggs ibid. for Lands in lieu of Tithes 213. for Head lands Balks c. 213. Bees 214. Herbage ibid. for fewel 215. for Parks ibid. to the Vicar for Parsons Tithes 216. how it may be lost 218. from what time 232 c. Presentation the form thereof 4. how to proceed upon it 5. what time the Patron has to present 8. and 9. where his Clerk is refused for just cause ibid. Priviledges what the Clergy have at this day in England may not be compelled to serve temporal Offices 129. 133. not to appear at the Sheriffs turn 132. not to be arrested in what cases upon a Statute 131. not to be disturbed 130. pay no toll 132. nor pontage murage c. ibid. sue in the Spiritual Court for battery 133. Collector of Tenthes may not disturb them 133. in criminal causes 133. freed from purveyance 134. amerced for their Church livings no execution on the Goods of the Church ibid. confirmed by several Acts of Parliament 135. Procurations qd where due and how 201. Prohibitions granted sur modus decimandi 279. to try the bounds 279. for Monastery Lands ibid. quia suit for Tithes of things not Tithable 28. quia matter triable at Law ibid. because they proceed against Law or reason 280 must present a Copy of the libel 281. where the suggestion must be drawn up 281. where peremtory 282. how to be prosecuted and defended 283. where grantable after Consultation 284 286. Consultation special ibid. must prove the suggestion within six months 281. how they must be accompted 285. the benefit and damage by them 287. R. Real Composition qd and the effect 226. Recovery in what Courts antiently 263. where the Spiritual Court may determine the right of Tithes 264. and where not
266. in what cases the Temporal Courts may 278. and where not 265. the Spiritual Jurisdiction confirmed by Acts of Parliament 267 268 276. the remedy where the Spiritual Court is not obeyed before Sentence 269. where after Sentence 271. 2 E. 6. extends only to predial Tithes 275. Residence jure divino 20.68 non residence of 700 years not dispensed with in the Western Church 68. an Act of Parliament against it 69. the end of that Law 70. who may be non-resident 71. a Pluralist Master dyes he may not be non resident 72. Bishop how to be compelled to residence 73. where it shall avoid the Parsons Lease 99. where he may demise and be non resident 100. the penalty for non-residence and how to be recovered 102. S. Seeds fruit mast bees how to be Tithed 177. Scire facias in what cases the right of Tithes is determinable therein how taken away 291. Simony qd 35. Canons against 36. the little effect of them and the reason 37. distinction inter Simoniace Simoniacus ibid. Act of Parliament against 38. the Penalty of the corrupt Patron 41. where he shall lose his Presentment 42. where the Clerk not privy shall be disabled 42. what Contracts shall amount to Simony 45. bonds for resignation 47. examinable in the Spiritual Court 56. c. advise against such bonds 51. what covenants and agreements amount to Simony 51. who may take advantage of it 53. in giving above the Fees for Institution 55. for resignations and exchanges 56. by corrupt giving Orders or License to preach 57. how the forfeitures are to be recovered 58. Pardon inde qd valet 54. Synodals what and where due and to whom 202. T. Tenths what where and to whom due 200. and what remedy for the Successor for arrears incurred in the time of his Predecessor 207. Tithes qd and quotuplex 141 c. Majores qd 144. Minores qd ibid. quo jure debito 145. to whom due 146. the parochial right when and how it commenced 147. who is capable of them in pernancy 149. due to the Rector prima facie 150. extra-parochial to whom due 151. Portions in another Parish 151. to whom due in particular cases 152. in the vacation 153. if Vicars and Parsons shall pay to each other 153. may belong to a Chappel 153. of what things due 154. of what things not due 184. what priviledg in the Lands where c. 191. V. Voidance when a Church shall be said void by taking or giving above the usual Fees for admittance 55. W. Wood Canon for it 157. complaints against the Canons in Parliament ibid. limited by Statute 158. declaration of the Common Law ibid. questioned if an Act and answered 159. Silva caedua qd 160. what shall be said great Wood 160. of what Tithe shall be paid 161. Nurseries ibid. Toppings ibid. 162. Bark ibid. Dotards ibid. great and small Wood mixed 163. by whom to be paid ibid. Prescription in not Tithing where good ibid. how to be paid 164. THE Parson's COUNSELLOR CHAP. I. The First Chapter shews Who may or may not be a Parson Vicar c. HAVING taken upon me to shew how to make a compleat Parson Vicar c. Who may be a Parson or Vicar It will be necessary in the first place to shew who is capable of being so And in the first place He that is to be a Parson must regularly be of free Condition competently learned skilled in the Language the People speak or understand where he is to be Parson Vicar c. Next he must be twenty four years of Age conformable to the Government and Doctrine of the Church of England and not criminous outlawed excommunicate 5 H. 7.20 a. Co. 5.58 aâ— Lindwood c. â—os qui de non c. Ibid. 14 H. 7.28 b. Jew or miscreant and must be free from Symony And a man that is a Bastard is not capable to be a Priest nor by Consequence a Parson but in this Case Dispensations are frequently granted So a man that is not of free Condition but a Villain or a Miscreant that believes not the Truth an Infidel that resists the Truth a Jew Schismatick or Heretick that do not believe aright cannot be Parsons c. So if a man be criminous Dyer 293. p 3. 38 E. 3.2 a. that is guilty of murder manslaughter perjury forgery or other foul Crime that is malum in se cap. Imprimis infra Lindwood is not capable to be a Priest Parson Vicar c. And the Bishop may refuse to accept such Parson if presented to a Living and it matters not whether the Party be convict of this Crime or not So that the Ordinary have certain knowledg of the truth thereof But for a man to be guilty of haunting of Ale-houses or Taverns Co. 5.58 a⸪ or a player at unlawful Games which are only malum prohibitum and not malum in se it is no Impediment to his being a Parson Vicar c. So if a Man be illiterate Dyer 293. b. p. 1 2 3. 254. b. p. 2. Albany vers Evesque Lich. M. 26 27 Eliz. C B. 10.20 â—3 Lucas vers Evesque Bath p. 3. El. C. B. per Bendloes Stat. 14 Car. 2. cap. 14. and cannot speak a Language his Parishioners understand he ought not to be admitted to be Parson of such Parish but may be rejected by the Bishop c. For it is all one not to be able to instruct his Parishioners in the truth by reason of Ignorance as not to be understood for when the blind leads the blind both fall into the ditch At this day no man may be a Parson before he be a Priest in Orders nor can he * Stat. 13. El. cap. 12. be a Priest before he is twenty four years of age and so by consequence no man can be a Parson regularly till he be past twenty four years of Age. And for this reason a Bishop c. 1 Leonard 130. may refuse a Clerk because he is not in orders but he cannot refuse him because he wants a Testimonial Neither can any man be Parson of that Church Vide postea cap. 5. for the obtaining whereof he hath been guilty of Symony as shall be shewed more at large in the Chapter of Symony And regularly all things that are causes of Deprivation are just causes to make a man incapable of a Living and for which the Bishop c. may refuse to admit such Clerk And note Lindwood c. cum à jure inhibitum c. the Son is made incapable to succeed his Father by several Canons CHAP. II. The Second Chapter shews how one that is fitly qualified to be a Parson ought to behave himself in obtaining a Living A Person so qualified as the Law requires must without any corrupt or Symoniacal Contract obtain a Presentation from the right and undoubted Patron of the Church whereof he designs to be Parson which may be in this Form Reverendo in
was in the Bishop of Waterford's Case which was thus The Bishop of Waterford had long agoe the Bishoprick of Lismore and the Chapter united to that of Waterford And in all Grants made of the Lands belonging to Lismore that Chapter only confirmed and all Grants made of the Lands antiently belonging to the Bishoprick of Waterford the Chapter of Waterford only confirmed Co. 12.71 a⸪ b⸫ and because the Union was not extant all the Judges held the confirmation of the one in the manner aforesaid was good for it shall be intended that it was so provided for upon the consolidation but otherwise all the Judges held Dyer 282. p. 26. that both Chapters ought to have confirmed But if a Bishop had two Chapters Ibid. and one of them surrender is suspended or dissolved the confirmation of the other suffices There is a Case in Mr. Justice Harpur's Reports M. 14 and 15 El. where the Case is put That a Bishop made a Lease â— die Maii confirmed the third day and sealed the fourth day of May and held good Lease and well confirmed But a Confirmation by the Dean and Chapter after the death of the Bishop comes too late by Catlyne Harâ—ur Rep. m. 14 and 15 El. Southcoate and Windham against Wray But if a Bishop make several concurrent Leases T. 6. El. More 66. and the latter is first confirmed and after the first is confirmed in this Case the first Lease shall be preferred because nothing passes by the Confirmation in point of Interest but a mere Consent If a Bishop make a Grant to the King T. 8. Jac. S. Sir Edw. Dimock's Case Rolls 1.477 h. 7. Crok El. 141. More 253. which is confirmed by the Dean and Chapter before the Grant is inrolled this is well enough But note that a Bishop cannot make a concurrent Lease for life though upon a precedent Lease for Years nor a concurrent Lease for years where there is a Lease for life in being Deans Prebendaries Heads of Colledges Masters of Hospitals and other Ecclesiastical Persons mentioned in the Stat. of 13. Leases by Deans Prebends Colledges c. Eliz. cap. 10. may make Leases for 21 Years or any lesser number of Years or for one two or three Lives in possession according to the qualifications above-mentioned and they may make concurrent Leases as Bishops may with confirmations 18 Eliz. c. â—â— but they must be within three Years of the determination of the former term by expiration surrender or otherwise so that in this point the Bishop has the advantage And though the enabling Stat. of 32 H. 8. gives power to make Leases to hold from the making or day of the making yet the Restrictive Stat. of 13 El. makes them void 13 El. c. 10. if they be not made to hold from the making and not from the day of the making quod nota But the Leases of Bishops and Arch-Bishops are not within that Act but the Act of primo of the Queens which is that all Leases should be void other than for 21 Years or three Lives from the time of the commencement Concurrent Leases and who is to confirm Lases Rolls 1.481 p. q. r. Dyer 221 p. 18.357 p 42. Plow 528. Dyer 61. p. 30. Co. 5 81. a. Note the different pennings And for as much as all concurrent Leases of any Bishop Dean Prebend and Arch-Deacon are to be confirmed it is convenient to let the Reader know who is to confirm the same therefore for the Reader 's satisfaction he is to know that the Leases of Bishops and Arch-Bishops are to be confirmed by the Dean and Chapter or Deans and Chapters if there be several Chapters Grants made by a Prebend are to be confirmed by the Bishop Dean and Chapter the Grants made by Deans are to be confirmed by the Bishop and Chapter the Grants made by the Arch-Deacon by the Bishop Dean and Chapter the Grants of Parsons and Vicars with their Patrons and Ordinaries and Grants by the Incumbent of a Donative by the Patron alone But if a Parson make a Lease which is confirmed by the Bishop only who is Patron without the Dean and Chapter which ought to have joyned it shall bind the Successor during the Lives of the Bishop and Incumbent although the Bishop be translated But Grants by Parsons Vicars Prebends c. before induction or installation c. although confirmed are not binding to the Successor But if the King be Patron of a Prebend then the King and Dean and Chapter and not the Bishop ought to confirm the Grant A Lease made by a Prebendary Parson Vicar c. may be confirmed for part of the term Co. 5.81 ◠⸫ Dyer 52 a.b. Cto El. 472. if it be for Years that is confirm the Land to the Leasee for so many Years of the Term but if the Term be confirmed for part of the Term it were absurd and repugnant and should be good for the whole term as such Lease may be confirmed for part of the term so it may be for part of the Land If a Parson c. make a Grant Rolls 1. 476. f. 1.2 which is confirmed by the Patron and Ordinary and after be deprived yet the Grant is good Rolls 1.479 n. 1. A Husband seized in the right of his Wife of an Advowson the Parson makes a Lease warranted by the Statutes before mentioned and the Bishop and Husband confirm it this shall not bind the right of the Wife but during the Husband's life but that the Successor after his death will avoid it that comes in by the presentation of the Wife Rolls 1.480 n. 2. So if Tenant in tail being Patron confirm the Grant of the Parson with the Bishop this shall not bind the Incumbent of the issue in tail Rolls 1.480 n. 4. If a Usurper present and confirm the Lease of his Incumbent with the Bishop after is removed by quare Impedit this shall not bind the Clerk of the true Patron If the true Patron grant the next avoidance Cro. Car. 582. and then confirm the grant of the Parson who after dies the Incumbent presented by him that had the next avoidance shal avoid the Lease Rolls 1.480 n. 5. Cro. El. 430⸪ his very entry upon the Leasee avoids the Lease for ever If the Parson make a Lease to the Patron which is confirmed by the Bishop this is not good but if the Patron grants it over Co. 5.15 a⸪ it amounts to a confirmation If a Prebend Parson or Vicar make a Lease Rolls 1.481 p. 1. and the Bishop being Patron confirms it without the Dean and Chapter yet this shall bind the Bishop and all the Prebends Parsons c. which he shall Collate If a Parson had made a Lease for above 21 Years before the Statutes of 13. Cro. El. 18. and 14 Eliz. which had been confirmed after this had been good and not within the
Clergy Man may prescribe for himself and Tenants Years and Will and his Copyholders have been free from the payment of Tithes the reason alledged is because it might commence by a real composition for the whole Mannor Rolls 1.653 H. 4. Co. 2.45 a⸫ and in all cases where a Spiritual Person prescribes in non decimando his Tenants and Farmers shall take the benefit thereof But if any of the Abbots Priors c. Stat. 27. H. 8. cap. that came to the Crown by the Statute of 27 H. 8. were discharged of the payment of Tithes by prescription de non decimando Rolls 1.654.1 1. contra Hob. 309⸪ yet the Patentees of these Lands shall not have the benefit of such prescriptions but shall pay Tithes Neither can the Kings Patentee be freed from the payment of Tithes of those Lands which the King whilst he had them in his own hands prescribed to be freed from the payment of Tithes Rolls 1.655.1.2 Patenter del Roy. because it is a Personal discharge in the King for the question arising upon Lands disafforrested there might be several reasons why he paid no Tithes first because the grounds were depastured with Beasts ferae naturae for which no Tithes were due Cro. Car. Dubitatur Ideo quaere or for that the King was not bound by the decretal Epistle of Pope Innocent the third who setled the Parochial right of Tithes or by reason the King being a mixt Person might prescribe in non decimando But the King's Patentees of those Abby Lands that came to the Crown by the Statute of 31. H. 8. may take advantage of a prescription de non decimando in the Abbot Prior or other Religious Person by the force of that Statute and the enjoyment of the Lands since the dissolution freed from the payment of Tithes during memory is a good proof à posterior A Country may prescribe in non decimando Lib. Inst tit prohibit Co. 2.44 b. Doct. St. l. 2. c. 55. f. 166 167. b. 174. b⸫ Roll 1.653 H. 10 11 12 13. Who may prescribe de modo decimandi Co. 2.44 a⸪ b ⸫ Cro. El. 599.758.784 that the Abbots Priors c. held the same discharged from the payment of Tithes The inhabitants of a County Hundred or Country as the wilds of Kent and Sussex may prescribe not to pay Tithes of Wood Milk or any other particular thing so there be a competent Livelyhood for the Clergy besides But every Lay Man may prescribe de modo decimandi That is that such a Man being Lord of such a Mannor and all those whose Estate he hath in the said Mannor have from the time whereof the memory of Man is not to the contrary have had and enjoyed to his and their own uses all the Tithes arising c. Co. 2.44 a⸪ b⸫ Cro. El. 599.758.784 within the said Mannor paying so much yearly to the Parson of D. And a Lord of a Mannor may prescribe for himself and his Copyholders Cro. El. 784. Noy 132. for they are part of the Demesns of the Mannor or the Copyholder may prescribe in the name of his Lord. If a modus decimandi be to pay two things as two shillings for a Park Hob. 43⸫ A modus to pay two things and one fails and a shoulder of every Buck kil'd in the Park and all the Deer die or are kil'd up yet notwithstanding the Prescription holds good for the two shillings But every Prescription and modus must have a Continuance Hob. 43⸫ Prescriptions must not sleep for it cannot be good at one time and asleep at another neither can a wilful denial destroy a modus decimandi And it is taken for a Rule in Dr. Leyfield and Tisdale's Case Hob. 11⸫ Modus for houses that where no Tithes are regularly and legally due as for a house c. there can be no modus decimandi alledged And yet it hath been held Co. 11.162 .. Hob. 11⸫ Quaere Roll 1.640 b. 5. Hob. 107. Roll 1.651 d. 16 17 18 19. Cro El. 446. Co. Sâ—lect Cases 45⸪ More 454. that a Tithe by prescription may be paid for a house because it might be due for the land before the house was built Ideo quaere A modus to pay Tithes without the view of the Parson is not good because it conduces to fraud and is now against an Act of Parliament So a modus that you have paid your Tithe of your Cows you have been freed of the Tithes of Oxen Steers Heyfers c. is not good That is to pay your Tithes in kind of one thing thereby to free another Tithe And it hath been held a void prescription to pay a Load of Hay yearly in discharge of all his Tithe Hay Cumberland per Roll. P. 13. Jac. B.R. What Prescriptions de modo decimandi 2 Leo 70. are good that is to pay a part in discharge of the whole So for a Parishioner to prescribe that he c. has time out of mind repaired the Church and by reason thereof hath been discharged of the payment of Tithes is no good Prescription for the Parson not being bound to repair the Church has no recompence but if it had been that he had repaired the Chauncel Roll 1.649 d. 8 9. and in consideration thereof had been freed of the payment of Tithes that had been a good modus ratio patet It hath been held a good Prescription Wool and Lamb. Roll 1.648 c. 1.649 d. 7. that the Parishioner hath time out of mind paid the Tithe Wool of all the Sheep he has shorn though never so lately bought in and in consideration thereof hath been freed of the payment of the Tithes of those he has sold before Sheer-day It hath been held a good Prescription Roll 1.648 c. 4. to have paid the Tenth Fleece or Pound of Wool so there were any allowance for the odd Fleeces or odd weight It hath been adjudged a good modus Roll 1.649 d. 5. that in consideration the Parishioner hath shorn and wound the Wool to be free of paying Tithes of the neckings and birlings without fraud It is a good prescription Roll 1.652 g. 1. that the Parishioner hath time out of mind paid a half penny for every Lamb sold before Mayday but if the Parishioner sell his Lambs fraudulently a few days before Mayday on purpose to defraud the Parson c. it is no good discharge A Prescription to pay wool in kind Marsh 79⸪ if kept till Clipping day but if sold before to pay a half penny a fleece as Mr. Marsh reports was held no good Prescription tamen quaere It hath been held a good modus For Corn. More 454. that in consideration that the Parishioner hath mowed reaped and shockt the Corn and paid his Tithe in the shock that he hath been freed of the payment of any Tithes of the Rakings but as Sir Edward Coke says there needs no modus
as to Rakings without fraud To prescribe to have paid the Tenth sheaf or shock Roll 1.648 b. 6. as it falls out is no good Prescription to free the Parishioner of any other Tithe it being no more than is due A modus that in consideration Roll 1.649 d. 4. that the Parishioner hath sowed reapt bound and set up the Corn one year to be free from the payment of herbage the next year of the same Land was held good tamen quaere inde But it is no good consideration Roll 1.650 d. 11. that in consideration the Parishioner has plowed sowed mowed cockt and set out the Tithes of part that therefore he should be freed of paying Tithes of a small parcel left standing A man may prescribe to pay the Tenth Acre or Rood of wood standing Wood. Roll 1.648 H. 7. and the Parson c. cut it himself as is used in some parts of Lincolnshire It hath been held a good modus to pay one Calf at seven Calves and milk and if under a half penny a piece and if he sell any Calf to pay the tenth part of the price and it hath been held a good modus to pay Tithe Cheese from Mayday till Michaelmas to be discharged of the whole Tithe of the Cows Roll 1.651 d. 19. Cro. El. 609.786 and no Tithe is due for Cheese but by Custom and the labour of milking and making into Cheese is added whereas nothing but the Tithe of milk is due by Law But it is no good modus to pay for every milch Cow 2 d. Roll 1.651 d. 17. and for every Calf 1 d. in discharge of the Tithes of all other Cattle but it is a good modus for the Calves and milk only so a modus to pay a Tithe-Calf in satisfaction of the Tithe of all manner of Cattle is not good Roll 1.651 d. 18. Eggs. Roll 1.648 c. 3. A modus to pay thirty Eggs in Lent in satisfaction of all the Tithe of Eggs has been hold a good modus It is a good modus that the Parson time out of mind hath had so much Land in lieu of Tithes Roll 1.649 d. 6. Cro. El. 587. 8 E. 4.14 a⸫ or such a parcel of meadow or Land in satisfaction and discharge of all the Tithes of Hay c. arising upon such Land It is no good modus to be free from the payment of Tithe Hay Headlands Balks c. and Hay Roll 650. d. 10. Noy contra 15. arising upon Hades Balks Greenslips or Doals eaten by Beasts of the Plow in regard the Parishioner hath sow'd mown reapt shockt and prepared the Corn c. but the contrary hath been held ideo quaere But in consideration Herley 147. that the Parishioner hath made the Grass growing in such a Close and then paid the Tithe of it he hath been free of the payment of the Tithes of the balks and hades has been held good It is not a good modus Roll 1.650 d. 3. that the Parishioner having spent all his Hay upon the Beasts of the plow that therefore he should be free from payment of Tithe Hay But a modus that in consideration the Parishioner hath cut Roll 650. d. 13. dryed and shockt the Corn he hath been freed from the payment of Tithe Hay has been held a good Prescription A modus That the Parishioner hath time out of mind got Rushes and strewed the Church Noy 31. and in consideration thereof hath been discharged of the payment of Tithe Hay Cro. El. 276. has been adjudged no good modus but if it had been to strew the Parsons Seat or to deliver straw to the Parson to strew the Church had been a good modus And it hath been held a good modus Roll 1.647 b. 1 2 3 4. 648. d. 1 2. 649. d. 3. Hetley 133. Hob. 250⸪ More 910. Cro. El. 660. that in consideration the Parishioner has made the Hay into Grass Cock that therefore he hath been discharged of the Tithe of the aftermath but Sir Edward Coke declares for Law that there needs no modus to be alledged but that after-math is of it self freed from the payment of Tithes 2 Inst 652. and so I take it the Law is held at this day A modus to pay the tenth part of all the honey and wax of Bees killed Bees Roll 1.651 d. 15. has been held a good modus for the Tithe of Bees But there have been some opinions that there is no Tithe due by the Law for Bees because they are ferae naturae But nevertheless by Custom they may be Tithable and so they are in most places A Custom or Prescription to pay no Tithe for the Herbage of Beasts bred up for the Plow and Payl hath been allowed to be a good Custom Herbage Bulst 2. Price vers Mascal More 909. but of this see more before in the fifth Chapter It is no good modus that the Owner of the Land has paid all his Tithe for his Cattel there depastured Guest Horses Roll 1.650 d. 14. therefore to be free of the Tithe Herbage for guest Horses It hath been held that no Tithes shall be paid for the fewel spent in the dwelling Houses in the same Parish it grew Fewel More 909. without alledging any modus at all But it should seem that in this last Case there needs no modus at all to be alledged Cro. Car. 113. Norton vers Farmer T 4. Car. 1. C. B. but that for the fewel spent in the Owners House in the same Parish there is no Tithe due of Common right Ideo quaere If a man prescribe to pay six shillings and eight pence Parks Roll 1.651 E. 1. and 4. Mascal vers Price P. 13. Jac. B. R. Hob. 39⸪ Hutton 58. for all the Tithes arising and happening in such a Park and the Park is disparkt and turned to tillage the Prescription is gone But if in this Case he had made his Prescription that in consideration of six shillings and eight pence yearly paid to the Parson c. he had been freed of all the Tithes arising upon six hundred Acres of Land called a D. Park this had been a good Prescription and should have freed the Park So if the Prescription of a Park have been to pay six shillings and eight pence Roll 1.652 E. 5. and a shoulder of every Buck kill'd in the Park in discharge of all Tithes arising within the same in this case though the Park be disparked and no Deer left Boothâ—y vers Reynells m. 20. Jac. B. R. m. 10. Jac. ro 641. B. R. Hutton 57. Noy 146. yet the modus remains and shall discharge the whole Tithes And it has been held a good modus to give a Buck and a Doe yearly to the Rector c. in discharge of all the Tithes arising within the Park although they be ferae naturae If a Parson Modus for Land Hutton 58.
c. have had an Acre or piece of Meadow ground time out of mind in discharge of all the Tithe Hay arising upon such a Farm this shall only discharge the Hay upon the antient Meadowing and not the Hay of Ground converted from Pasture or Tillage to Meadowing But if one have a modus for all the demesn of his Mannor Roll 1.651 E. 1. 2 Inst 490. and erect a new Mill this shall be comprehended within the modus and shall not pay any Tithe But if a Man have a modus for all the Hay and Grass upon twenty Acres of Land Roll 1.651 E. 2. and converts the same to Tillage or into a Hop Yard he shall pay Tithes thereof Where a modus to the Vicar shall discharge against the Parson and è converso More 907. Cokes Select Cases 45.1 Cro. El. 137. Hutton 57 m. 10. Jac. r. 641. Modus to pay a rate to the Vicar for Tithes due to the Parson So it appears a great difference where the modus goes to all manner of Tithes in general and where to particular Tithes Where a modus is alledged to pay a certain Summ to the Vicar in discharge of any Tithes due the Parson this being a dispute of the right between two Clergy Men ought to be determined in the Ecclesiastical Court but it seems to be a good modus as to the Parishioner and so it was held in the case of Pool and Reynels in the Kings Bench. Mich. 10. Jac. But Mr. Ware reports a case to be adjudged H. 18. Jac. B. R. that it was no good modus and that Henden vouched one Bankes Case to be adjudged accordingly Ideo quaere But it seems to me a good modus for this being Originally a modus between the Parson and Parishioner the Vicar might be indowed with the modus but this must be intended also where the indowment is time out of mind and not to be produced or where the Vicar hath it specially in his indowment But to pay a rate to the Parish Clerk is no good discharge of Tithes against the Parson or Vicar Leonard 1.94 Croke El. 71. Bulst 1.220 Wintel vers Child m. 14. Jac. B. R. unless the Parson be bound by Custom to find the Parish Clerk nor is a modus to the Parson a good discharge against the Vicar And so having shewed what Prescriptions de modo decimandi and de non decimando are good and allowable at the Common Law in the next place I shall shew how a modus decimandi or Prescription may be destroyed or lost CHAP. XVII The Seventeenth Chapter shews how a modus decimandi or Prescription may be lost or destroyed IF a Man have a modus for a Mill which is removed of necessity to a new place because the water invito has changed its course Roll 1.652 f. 2. What matter will destroy a Modus here though the Mill be removed the modus remains But if the Owner of such a Mill shall of his own accord and without any cause of necessity remove his Mill to a new place in this case he shall lose his modus If a Man have a modus decimandi for two Messuages and two Mills to pay twenty shillings per annum Roll 1.652 f. 2. and he erects a new Mill in one of the Messuages the modus shall not extend to free the new Mill. There have been Opinions that Unity of Possession Stepney vers Warren P. 41. El. B. R. that is to have fee-simple in the Rectory and likewise in the Land to which the modus is annexed should destroy a Prescription or modus decimandi But if a Man have four Water Corn Mills for which he hath time out of mind paid a modus of four shillings per annum Sir John Hollys Case T. 9. Jac. B. R. and pulls down one of them yet the modus remains and he shall still pay the four shillings CHAP. XVIII The Eighteenth Chapter shews by what Conveyances and by what names Tithes may be granted conveyed demised c. and what Demises Parsons and Vicars may make of their Glebe and Tithes REgularly Tithes at this day cannot be granted or demised but by Deed in Writing under Hand and Seal Stiles 261. By what Conveyances Tithes will pass Hungerford vers Haml. T. 36. El. ro 506. per Owen Cro. El. 814. or by matter of a higher nature as Fines Recoveries c. But in such cases as they are become Lay-see they may be devised by will in writing as Lands may but they cannot be granted by Copy of Court Roll because they cannot be parcel of a Mannor But Tithes cannot be conveyed or demised by any paroll agreement Brettyman vers Woodward P. 31. Eliz. 10.17 B. R. B. Noy 89. Hetley 3. Hughes 373. Bellamy vers Bapthorp in 2 Car. 10.179 B. R. Co. 4.35 a⸪ unless it be to the Owner of the Land for one year by way of retainer Tithes impropriate are at this day by the several Statutes of dissolution become Lay-fee and will pass by the name of Hereditaments but by the grant of a portion of Tithes the Tithes belonging to a Rectory will not pass Tithes impropriate may be past from one to another by Deeds of Bargain and Sale St. 32 H. 8. cap. 7. inrolled according to the Statute of 27 H. 8. they may be transferred in use upon good consideration by Deeds of Covenant to stand seized or by Fines or common Recoveries and may be sued for by Writs of Assise of novel disseisine Writs of Entry Writs of Right or other real Actions or by ejectione firmae But upon a Lease for Lives of Tithes no Rent can be reserved to be recovered at or by the Common Law for no Action of debt will lie or distress can be taken ubi non est remedium ibi non est jus But upon a demise of Tithes for Years a Rent may be reserved because an Action of debt will lye upon such Lease upon the Contract CHAP. XIX The Nineteenth Chapter shews what barren Lands are free from the payment of Tithes within the Statute of 2 E. 6. cap. 13. IN the Statute of 2 E. 6. 2 E. 6. cap. 13. there is a Proviso to this effect That all such barren Heath or wast Ground other than such as be discharged from the payment of Tithes by Act of Parliament which before this time have lain barren and paid no Tithes by reason of the same barrenness and now be or hereafter shall be improved and converted into arable ground or meadow shall from henceforth after the end and term of seven years next after such Improvement fully ended and determined pay Tithe of Corn and Hay growing upon the same any thing in this Act to the contrary in any wise notwithstanding This Clause was added for the Incouragement of Tillage and Improvement of lands by water or otherwise and therefore though here be no words of discharge of the payment of Tithes
during the first seven years yet by a reasonable intendment 2 Inst 656⸪ Dyer 170. b⸪ P. 5. Plow 204. a. 396. b. the same shall be discharged from the payment of Corn and Hay for the first seven years after the Improvement and that is proved by the subsequent Clause whereby it is provided That if any such barren waste or heath ground hath before this time been charged with the payment of any Tithes and that the same be hereafter improved and converted into arable or Meadow that then the owner or owners thereof shall during the seven years next following from and after the same Improvement pay such kind of Tithe as was paid for the same before the said Improvement any thing in this Act c. So that it appears plainly by this Proviso that it was the intent of the makers of this Law only to free these improved Lands from the payment of such Tithes as were produced by the improvement which must be Hay or Corn and no other Next suppose a Man have barren Lands within this Law which are free from the payment of Tithes by prescription real composition c. It should seem by the penning of the aforesaid Proviso that he should pay Tithes for the same after the seven years this Proviso only providing for such Lands as are freed by Act of Parliament But that doubt seems cleared by the next precedent Proviso in this very Act whereby it is provided That no Person shall be sued or otherwise compelled to yield give or pay any manner of Tithes for any Mannors Lands Tenements or Hereditaments which by the Laws and Statutes of this Realm or by any Priviledg or Prescription are not chargeable with the payment of any such Tithes or that be discharged by any composition real So that this Proviso preserves all former legal discharges But the great question upon this Law is what shall be said to be barren Heath or wast Ground within this Law And Sir Edward Coke defines barren Land in these words Terra sterilis est terra infoecunda nullum ferens fructum 2 Inst 655⸪ But that definition will not hold in this Case for it does appear by the second Proviso that such barren Lands are intended that are barren quoad Agriculturam that is Dyer 170. p. 5. Co. Ent. 462.463 such barren Heath or wast Ground that of its own nature without improvement by Lime Marle Manure c. will not bring forth Corn or Hay 6 E. 6. per Bendloes 2 Inst 656⸫ Hill 9. Jac. C. B. ex motione Houghton But if Ground be not fit for Tillage yet if it be not suapte natura barren it is not within this Law As if a Wood be stubbed and grub'd up and made fit for the Plow and reduced to Tillage it shall pay Tithes presently for Wood Ground is Terra fertilis Faecunda So if Marish 2 Inst 656⸫ More 969. Meadow or other Land by neglecting to scowr the Trenches or Sewers or by sudden inundation be drowned or if by ill husbandry or negligence fertile Land be over-run with goss whynns broom fern bushes briars c. yet they shall not have the benefit of this Proviso because of their own natures they are fertile and apt for Tillage and the Parson Vicar c. shall not lose his Tithe by the ill husbandry of the Parishioner If Lands were barren Heath or wast Ground at the time of the making of this and were improved and had or might have had the benefit of this Law and after return to their barrenness Co. 10.86 b⸪ Co. 6.18 a⸪ the Owner of such Lands shall not have the benefit of this Law a second time upon a second improvement but I take the Law to be otherwise if the Lands had been improved before the time of the making of this Law and were then become barren again for there I take it upon a new improvement the Owner of such Land shall have the benefit of this Law Marsh Lands new gained from the Seas More 430. Bulft 165. 2 Inst 656⸫ and fenn Lands gained from the fresh waters by draining banking c. are not within the meaning of this Law to be freed from the payment of Tithes during the first seven years after the gaining But the Determination of this point which is or which is not barren Land within this Statute commonly falls out to be determined by common Jurors which notwithstanding the Direction of the Judge are seldom so favourable to the Church as they ought This Proviso only charges the payment of Corn and Hay after the seven years and the second Proviso provides only for the payment of such like Tithes as were formerly paid before the improvement for the first seven years after the improvement 27 H. 8. c. 20. 32 H. 8. c. 7. confirmed by the St. of 2 E. 6. Canons provincial cap. Quia quid maledictionis cap. Erroris damnabilis cap. Quoniam propter cap. Quoniam ut audivimus c. and makes no provision for the payment of other Tithes save Corn and Hay after the seven years So that it may seem to imply a discharge of all Tithes but Corn and Hay after the seven years but to this I answer that there being several Laws both Statute and Canon made formerly for the due payment of Tithes and no negative words in this act it shall not abrogate those Laws to the prejudice of the Church by implication CHAP. XX. The Twentieth Chapter shews what a real Composition is and in what Cases Lands shall be freed of the payment of Tithes by such Composition real THat which we call a real Composition is Where Tithes shall be discharged by a real Composition and what it is where the present Incumbent of any Church together with his Patron and Ordinary do agree by Deed under their hands and seals or by fine in the Kings Court that such Lands shall be freed and discharged of the payment of all manner of Tithes for ever paying some annual payment or doing some other thing to the ease profit or advantage of the Parson or Vicar c. to whom the Tithes did belong Co. 4.44 a⸪ 2 Inst 655⸪ Doct. Stud. l. 2. cap. 55. f. ult And these real Compositions have ever been held and allowed here in England to be a good Discharge of the payment of Tithes And from these real Compositions it is intended all Prescriptions de modo decimandi first took their rise and beginning though I doubt most at this day have grown up from the negligence and carelesness of the Clergy themselves And such Compositions may be made by the Parishioner alone without the Patron and Ordinary Vide Lindw cap. Quoniam propter verbo Redemptionem Upon this matter but it then binds only for the Life of the Incumbent and will be avoided by his Resignation Deprivation or being absent eighty days in a year from his Cure if he have Cure of Souls
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.
which is the time of the limitation of all Prescriptions at the Common Law 2 Inst 653. which rejects the practice of the Civil Law which as should seem allows the limitation of a prescription or custom to forty years It may reasonably be demanded how this manner of discharge can be made out at this day since there is now no Person living that can prove how the Abbots held and enjoyed their Lands to which I answer that what was done before the dissolution of Abbeys must now be proved by what has been done since for if Monastery Lands have been held all the time of memory since the dissolution freed from the payment of Tithes it shall be intended that they were so held before and therefore they have not paid or been questioned since The fourth sort of discharge is by order Discharge by Order and this discharge also for the most part depends upon Popes Bulls or grants who at pleasure granted exemption to what orders they pleased About the Year of our Lord 1150. 2 Inst 652⸪ Seld. Hist decim 120. the most Religious orders then in being were discharged of the payment of Tithes but about that time Pope Adrian the fourth reduced them to Cistertians Hospitaliers and Templers and about the Year 1215. Seld. de decim 406. Pope Innocent the third added the Praemonstratenses But the Priviledges granted to these orders extended only to the Lands Dyer 277 278. these orders held in their own manurance and not to any which was held by their Tenants or Farmers But about the beginning of the Raign of H. 4. the Cistertians attempted to have enlarged their priviledg to their Tenants and Farmers which tending to the ruine of many poor Parsons and Vicars that had cure of Souls was complained of in a Parliament held in the second Year of H. 4. whereupon it was enacted that not only the Cistertians but all other orders that put any Bulls in execution for the discharging any of their Lands from the payment of Tithes in the Lands of their Tenants and Farmers shall incur a Premunire that is forfeit all their Goods and the profits of their Lands during life and be likewise imprisoned during the offenders life which gave such a check to that proceeding that I do not find any thing of that nature after attempted The Templers after in the Councel of Vienna The Templers 2 Inst 432⸫ which was held in the Year of our Lord 1311. and in the fourth Year of E. 2. were condemned for Heresy And all their possessions by Act of Parliament made in the seventeenth Year of the same King were transferred to the Hospitaliers or Knights of St. Stat. 17. E. 2. c. John of Jerusalem who enjoyed them till the thirty second Year of the Reign of King H. 8. at which time by Act of Parliament they were setled upon the Crown 32 H. 8. c. 24. But where it is said in Kelway that the Templers were condemned of heresie in the eight Year E. 2. and their Lands given the same year to the Hospitaliers it is a great error for it is clear that the Council of Vienna was held in the fourth year of that King and chiefly called against the Templers and it is as clear that their Lands were not here in England setled upon the Hospitaliers till the seventeenth of the same King And though the Lands of the lesser Monasteries be not within the benefit of the Statute of 31 H. 8. Where the lesser Abbeys may be freed of Tithes to be freed of the payment of Tithes yet they ought to enjoy all such priviledges as are annext to the Land and therefore such Lands in whose hands soever they come shall be freed of the payment of Tithes yet they ought to enjoy all such priviledges as are annext to the Land and therefore such Lands in whose hands soever they come shall be freed of the payment of Tithes by real compositions and prescriptions de modo decimandi Jones 3. but not by prescriptions de non decimando unity of possession order or Bulls of Popes but in all the cases the Parsons and Vicars have the advantage by the dissolution of all those Abbies that were dissolved by the Statute of twenty seven H. 8. and the Parsons and Vicars shall in such case be restored to their Tithes again which in all Justice they ought in all other cases if the Parliament had not seen reason to the contrary The lesser Monasteries that is which were under 200 l. per annum of the orders of Cistertians and Praemonstratenses were as has been said dissolved by the Statute of 27 H. 8. have lost the priviledg of being discharged of the payment of Tithes unless they were continued as the Abbey of Crouden was but those Monasteries of those orders that came to the Crown by the Statute of 31. H. 8. retain the priviledg of those orders in not paying Tithes but this is to be understood only for such time as the Owners hold them in their own manurance for if they let them out to Tenants they shall have no more priviledg than the Tenants of those orders of the Cistertians and Praemonstratenses had which was none at all But note Jones 2 3 c. Cro. Jac 6â—7 Hob. 6â—8 Lands of the lesser Abbeys granted to the bieger not freed that if the King after the dissolution of the lesser Monasteries which had been of any of the orders that were discharged of the payment of Tithes had granted any of their Lands to any of the greater Monasteries which were not dissolved till the Statute of 31 H. 8. yet those shall not retain the priviledges the Abbots had at the time of the former dissolution the right immediately reverting by the dissolution to the Parsons and Vicars to whom the Tithes of right did belong the greater Abbyes could not hold them legally discharged at the time of the second dissolution So that there is a manifest difference between this and the case of Walkelate and Wilshaw before remembred for in that case the Monastery was continued and not dissolved till the Statute of 31 H. 8. And it is to be observed that no Lands acquired by any of the Monasteries of those orders which were so freed from payment of Tithes after the Councel of Lateran Lands purchased after the Friviledges granted not freed which was in the Year of our Lord 1215. and by consequence none that were founded after that Councel are discharged of the payment of Tithes either in their own Seldens hist of Tithes 121. or their Tenants hands for by that Councel the Priviledg was limited to such Lands as these orders had at the time of that Councel And although any Abbey Lands of the great Abbeys which were of the Cistertian and Praemonstratensian orders were in the hands of Tenants for years at the time of the dissolution Dyer 277 b⸪ p. 60. Cro. Jac. 559. yet the King and
his Patentees after the Leases determined shall hold them discharged whilst the Patentees and Owners hold them in their own hands but the Kings Tenants shall hold them discharged because of the Royal Prerogative of his Person not being intended fit for Husbandry Having now said thus much of the four legal manner of discharges beforementioned 5 Perpetual unity Co. 1.47 b⸪ c. Co. 11.14 b. Dyer 349. p. 16. More 528. Hob. 311⸪ 306 298⸫ 300⸫ 2 Inst 655⸫ More 46 47. Cro. Jac. 608. I shall proceed to that of perpetual unity which cannot be said to be a legal discharge of the payment of Tithes Yet because the Abbots Priors c. at the time of the dissolution held the Lands discharged of the payment of Tithes though not legally discharged of Tithes it hath been resolved by many Judgments and setled that this is a good discharge within the meaning of the aforesaid clause of 31 H. 8. Now that which we call a perpetual unity is as hath been said where an Abbot Definition Prior c. time out of mind have been seized of the Lands out of which the Tithes arise and the Rectory within which Parish the Lands lye And it is to be observed that every perpetual unity that shall discharge the Lands from the payment of Tithes must have these four qualities First Co. 11.44 b⸪ Hob. 300⸪ it must be justa that is by good and lawful Titles Secondly It must be perpetual that is the Abbey must be founded and indowed with the Land and Rectory before the time of memory which by the rules of the Common Law as has been said must be before the first Year of R. 1. for if by any Records Deeds or other legal and good evidence it can be made appear that either the Land or Rectory came to the Abbey since the said first Year of R. 1. the union is not perpetual and yet if the appropriation be antient as in the time of E. 4. or before though the Lands cannot be discharged upon the score of perpetual unity yet they may by prescription if in truth the Lands were held discharged of the payment of Tithes Thirdly such unity as shall discharge Lands of the payment of Tithes within this Law must be aequalis That is the Abbots Priors c. must be seized in fee-simple as well of the Lands upon which c. as of the Rectory Lastly such unity must be libera that is free from the payment of any manner of Tithes for if their Farmers at will years c. have paid any manner of Tithes to the Abbots Priors c. Cro. Jac. 454 482. or their Farmers of the Rectories the perpetual unity will not serve And therefore where such perpetual unity is pleaded in discharge of Tithes the adverse party may reply that the Tenants or Farmers before the dissolution paid some sort of Tithes and so avoid the perpetual unity Having first given the Reader satisfaction that all the Lands that came to the Crown by the Statute of 27 H. 8. and before can have no benefit of the discharge given by the Statute of 31 H. 8. and having also shewed how many ways Lands may be discharged from payment of Tithes that came to the Crown by the said Statute of 31 H. 8. It rests now that I should say something of those Lands that have since come to the Crown by the Statutes of 32 H. 8. cap. 24. 37 H. 8. cap. 4. and 1 E. Co. 2.47 a. How other Lands stand that came not to the Crown by 31 H 8. 6. cap. 14. It is a Rule taken in the Arch-Bishop of Canterburies Case that neither the Letter nor the meaning of the Statute of 31 H. 8. extended to free or discharge any Lands from the payment of Tithes save those that came to the Crown by that Act for as that Book says it is absurd that the branch of the Statute of 31 H. 8. concerning Tithes should be extended to a future Act that the makers of the Statute of 31 H. 8. without the Spirit of Prophesy could not have the prescience of And as to those that came to the Crown by the Statute of 32 H. More 913. Cro. Jac 57. Hill 2 Jac. 8. cap. 24. It was adjudged in the case of Spurling and Quarles that they are not discharged of the payment of Tithes Jones 182 c. Latch 89. Hughes 392. Bridgm. 32. But there is a later Judgment that seems to oppose these former resolutions it was between one Witton and Sir Richard Weston that was after Lord Treasurer Trin. 4. Car. 1. B. R. and the question was whether those Lands of the Hospitaliers that came to the Crown by the Statute of 3 H. cap. 24. were discharged of the payment of Tithes by that Statute of 32 H. 8. or by the former Statute of 31. and in that case Dodridg and Jones Justices held that they were discharged within the Statute of 31 H. 8. and they did in effect deny the Books before cited to be Law the chief Justice Hide was of opinion that they were not discharged by the Statute of 31 H. 8. but by that of 32. So that by their three opinions the defendant Sir Richard Weston had judgment but Whitlock was of opinion that those Lands were not discharged of the payment of Tithes by the one Statute or the other now upon the whole matter I shall submit to the Judicious Readers Judgment whether this later resolution be of any weight to shake the former resolutions since in this case though there were three for giving Judgment for the Defendant yet to the point controverted upon the Statute of 31 H. 8. they were two against two and that they were not discharged by the Statute of 32. there were three against the chief Justice Hide So that I conceive the Law remains according to the former resolutions that there are no Lands freed from the payment of Tithes by any Statute but those that came to the Crown by the Statute of 31 H. 8. I must confess I have met with no Judgments upon those Lands which came to the Crown by the Statute of 37 H. 8. but those being the same with those that came to the Crown by the Statute of 1 E. 6. cap. 14. I conceive neither those that came to the Crown by either of those later Statutes have any priviledg at all and it is agreed in that very case of Witton and Weston that those Lands that came to the Crown by 1 E. Jones 185. Cro. 2.470 .. Co. 2.47 a. 6. could not have any benefit by the clause of discharge in the Statute of 31 H. 8. So that I shall conclude that there is no Land can have any priviledg at this day to be discharged of Tithes that belonged to the Abbots Priors c. but such only as came to the Crown by the Statute of 31 H. 8. cap. 13. CHAP. XXII The Two and Twentieth Chapter
and Arch-Bishops are not within this Law but not exempt from this duty there being several Canons that require it Bishops residence requirable and Bishops may be compelled hereunto by Ecclesiastical censures by their Superiors and the King may compel them by seizing their temporalites a notable precedent whereof we have in the the time of H. 3. 1 Inst 25⸪ When Popery was at highest and the King not lookt upon as head of the Church yet that King sent his Writ Mandatory to the Bishop of Hereford to be attendant upon his Bishoprick otherwise he would seize of all his Temporalties And now I have done with non-residence one of the Pests of the Church I will in the next place shew what Dilapidations are and the several ways the same are punishable this being often the effect and fruit of Non-residence CHAP. VIII Shews what Dilapidation is and in what manner punishable and what remedies the Successor hath A Dilapidation is the pulling down or destroying in any manner any of the Houses or Buildings belonging to a Spiritual Living Dilapidations what or the Chauncel or suffering them to run into ruin or decay or wasting and destroying the Woods of the Church or committing or suffering any wilful waste in or upon the inheritance of the Church And certainly there can be nothing worse becoming the dignity of a Clergy-Man than non-residence and dilapidations which for the most part go hand in hand I wish our Church had not too much reason to complain of both There hath been divers Canons of the Church made against this crime as I may justly call it but as in others so in this I shall confine my self to our own Provincials and I find in a Provintial Council or Synod held under Edmund Arch-Bishop of Canterbury in the Year of our Lord 1234. which was as I take it about the 18th Year of H. 3. a Canon to this effect Si Rector alicujus Ecclesiae decedens domus Ecclesiae deliquerit dirutas Canon against Dilapidation Lindwood Chap. Si Rector alieujus Ecclesiae de bonis suis Ecclesiasticis tanta portio deducatur quae sufficiat ad reparandum haec alios defectus Ecclesiae supplendos Idem statuimus circa illos Vicarios qui solvendo modicam pensionem omnes Ecclesiae habent proventus nam cum ad praemissa teneatur talis portio deducta satis poterit debet inter debita computari Semper tamen rationabilis consideratio sit habenda ad facultates Ecclesiae cum haec portio fuerit habenda Now if it be demanded what Houses are meant within this Canon the Gloss tells you ut puta mansum Rectoriae vicariae alia Edificia quaecunque quorum Edificatio sive reparatio spectat ad ipsum Rectorem By the Letter of this Canon the Rector is to repair the whole Church Co. 5 6 7. Cro. Eliz. 659. Not to repair the Church but Chauncel but by the Custom of England the Owners of the Houses and Lands in every Parish are bound to repair the Body of the Church and the Rector only the Chauncel unless by particular custom it hath been otherwise And in this point the Common Law is kinder to the Parsons Vicars c. than the Canon-Law and the Common Law being here to be preferred annuls that part of the Canon 2 Inst 653⸪ and the Gloss upon the words defec◠' Ecclesiae add A Canon for relief against Dilapidatient Haec litera potestintelligi de defectibus Ecclesiae quae pertinent ad curatum ipsius Ecclesiae in solidum sic quod non pertineant ad alios ut puta in Cancella aliis ad onus Rectoris de jure vel consuetudine spectantibus But this Canon seems only to affect the Ecclesiastical goods Verbo Ecclesiasticis and what those might be deserves the judgment of the Gloss which tells you they are such as jure nomine Ecclesiae obvenientibus talia enim bona sunt per viam tacitae hypothecae ad reparationem hujusmodi faciendam obligata And if the goods of the Church shall not suffice then the Gloss tells us Si Rector bona Ecclesiastica expenderit in meliorationem patrimonii sui vel si propter nimiam diligentiam propriorum negotiorum neglexerit negotia Ecclesiae procurare Et sic Ecclesia sit dampnum passa tenetur satisfacerc de bonis suis patronalibus si quae habuerit But there has been made a further question whether satisfaction for dilapidations should be preferred in payment before Debts and Legacies And as the Common Law prefers the payment of Debts before dammage for Dilapidations So the Ecclesiastical Law prefers the dammage for Dilapidations before the payment of Legacies to which hear what the Gloss says Si Legatarii tanquam Creditores petant legata sibi relicta Praelatus petat sumptus reparationis Edificiorum Ecclesiae talis Praelatus debet praeferre caeteris Legatariis and gives this reason Nam Legata solvi non debent nisi prius deducto aere alieno So that the Ecclesiastical Law agrees with the Common Law in this that Debts are to be preferred before Legacies The next thing considerable is Verbo reparand haec what repairs are requirable in this case which is answered by the Gloss Et intellige hanc reparationem fieri debere secundum exigentiam qualitatem rei reparandae c. Thus far I have followed the Canon and Gloss thereupon Now in the next place we will shew you what we have relating to this matter amongst the Laws and Statutes of this Realm And first Waste by Bishops I find that at a Parliament at Carlisle in the 35th Year of Edward the first a great complaint was made against Anthony then Bishop of Durham Co 11 49.2⸪ for waste and destruction of the woods belonging to his Bishoprick by gift sale and otherwise Cause of deprivation and for erecting forges of Iron and Lead and making Charcoals of the Wood to be spent in their Iron and Lead works to the disinheritance and impoverishing of his Church and in prejudice of the King and his Crown and of the Chapter of Durham To which the answer is Inhibetur per Breve de Cancellaria Episcopo ministris suis ne faciant vastum de contentis in petitione By which it appears M. 23. Ei inter adjudicat coram Rege Huntsf 83. that if a Bishop or any other Clergy-Man do waste upon the Woods or Lands of his Church that a prohibition may be sued in Chancery to prohibit him for Ecclesia est infra aetatem in custodia Domini Regis qui tenetur jura haereditates ejusdem manu tenere defendere And the Arch-Bishop of Dublyn was fined 300. Rot. Patrum 14 H. 3. m. 8. Marks for the disaforresting a Forrest belonging to his Arch-Bishoprick And it seems by several Books of the Common Law that in case a Bishop Abbot Prior c. waste
the Lands Woods or Houses of his Church he may be deposed or deprived by his Superior so that it appears clearly 20 H. 6.46 a⸪ 2 H. 4.3 b⸫ Co. 11.94 b⸫ 29 E 3.16 a. 9 E. 4.34 a⸪ that the fault in this case lies heavy upon those that have the Visitation and Superiority that they do not take care against the wasting and destruction of the Buildings Houses Woods c. of the Church and that the Successors should not be put to seek remedy against Executors and Administrators who are too active in finding shifts to avoid their actions to avoid which there is a good Law made in the thirteenth Year of Queen Elizabeth to this effect That if any Parson Statute against fraudulent Conveyances Stat. 13 Eliz. cap. 2. Vicar c. shall make any conveyance of his goods to defraud his Successor of his remedy the like Suit is given in the Spiritual Court against the Grantee as the Successor should have had against the Executors or Administrators of the Predecessors But this Act gives no remedy at Common Law Stat. 13. El. c. 5. because by another Act made at the same Parliament all such Grants to defraud any Person or Persons of their just actions are made void So that the Plaintiff has equal remedy in both cases Suits for Dilapidations are most properly and naturally to be sued in the Spiritual Courts and if any prohibition should be granted Fitz. N.B. 51. f. the same ought to be superseded by a consultation but this is intended where the Suit is grounded upon the Canon-Law But the Successor may upon the Custom of England have a special action upon the case against the Dilapidator Action upon the Case at Law for Dilapidations T. 8. H. 7.10 69. B.R. T. 18. H. 7. ro 69. C.B. P. 12 and 13 H. 8. rot 126. C.B. H. 15 H. 8. ro 306 C. B. in 12 H. 8. ro 730. C. B. H. 15. Jac. 10.474 c. The Custom upon which the Action is grounded his Executors or Administrators whereof there are multitudes of precedents even in the time of Popery whereof the Reader has a taste in the margent By all which it appears that by the Custom of England which is the Common Law omnes singuli Praebendarii Rectores Vicarii Regni Angliae pro tempore existentes omnes singulas domos Edificia Praebendorum Rectoriorum Vicariarum suorum reparare sustentare ea Successoribus suis reparata sustentata dimittere teneantur Et si hujusmodi Praebendarii Rectores Vicarii domus Edificia hujusmodi Successoribus suis Sic ut praemittatur reparata sustentata non dimiserunt deliquerunt sed ea irreparata dilapidata permiserunt Executores sive Administratores bonorum catallorum talium Praebendariorum Rectorum Vicariorum post eorum mortem de bonis catallis decedentium Successoribus talium Praebendariorum Rectorum Vicariorum tantam pecuniae summam quantam pro necessaria reparatione edificatione hujusmodi domorum Edificiorum expendi aut solvi sufficiet satisfacere teneantur And upon this Custom actions of the case have been frequently brought both antiently and of later times and dammages recovered And note Stat. 14. El. c. 11. that by a Statute made in the fourteenth Year of Queen Elizabeth it is expresly enacted that all the Moneys and Dammages that shall be recovered for Dilapidations are to be expended and laid out in and about the repair of the Houses c. dilapidated wherein the Visitors of those Churches ought to take care It will not be altogether improper to conclude this Chapter with the Stat. 35 E. 1. of 35 Eliz. intitled Nè Rectores prosternant arbores in Coemiterio whereby it is inacted or rather the Common Law declared to be in these words We do prohibit the Persons of the Church Against cutting the trees in the Church-yard that they do not presume to fell them viz. the trees in the Church-yard down unadvisely but when the Chauncel of the Church wants necessary Reparations neither shall they be converted to any other use unless the body of the Church do want repair in which Case the Parsons of their Charity shall do well to relieve the Parishioners with bestowing upon them the same trees which we will not command to be done but we will commend it when it is done By this Law it appears that the Church-yard and the soyl thereof is in the Parson and by consequence the trees are in the Parson or Rector that grow therein But because the Trees that grow there are for the most part planted there for the shelter and ornament of the Church from Tempests and Storms therefore the Parliament has granted a Prohibition in this Case against the Rectors and Parsons of Churches that they should not cut down these trees for any other use but the necessary repairs of the Church and Chauncel which in truth was no more than what the Common Law enjoyned for if the Rector had gone about to have cut them down for any other use the Patron might have had a Prohibition but now I conceive the Rector or Impropriator that cuts down any Trees growing in the Church-yard for any other cause than for the repair of the Church or Chauncel may be indicted and fined upon this Statute at the Common Law If the Bishops and Arch-deacons in their Visitations would take care these Dilapidations might easily be avoided which is a great dishonour to the Clergy and cannot be pleasing to God Almighty or good men And the Canon enjoyns the Arch-deacons and other Officials ut in visitationibus Ecclesiarum faciendis diligentem exhibeant considerationem ad fabricam Ecclesiae maxime cancell ' Cap. Archidiaconi infra si forte indigeant reparatione si quos invenerint defectus hujusmodi certum sub poena praefigant terminum infra quem emendentur vel suppleantur c. CHAP. IX The ninth Chapter shews for what Causes a Parson Vicar c. may be deprived by any Statute-Law and what matters are allowed for good causes of Deprivation at the Common Law DEprivation or Deposition is Deprivation and Deposition quid where a man by any Statute-Law or by any judicial Sentence Ecclesiastical that hath proper Jurisdiction is made incapable to hold or enjoy his Parsonage Vicarage or other spiritual promotion or dignity and the causes of such Deprivation or Deposition are properly and naturally determinable by the Ecclesiastical Laws of this Realm Where determinable But because generally there are Estates of Freehold dependant upon these promotions and dignities and annexed to them inseparably which rest at the sole determination of the Common Law the Courts of Common Law do sometimes inspect and regulate the proceedings of the Ecclesiastical Courts and where they proceed against the Rules of common Law they frequently prohibit them I have therefore thought fit to shew what causes of
restriction of those Laws If a Parson Leases where there is two Patrons 1 Leon. 233. Quaere both ought to confirm as should seem If the Patron and a succeeding Bishop confirm the Lease of the Parson Cro. Car. 38. it is good enough A Prebend made a Lease Dyer 106. p. 24. Quaere reciting that it was with the consent of the Bishop who signed and sealed the Lease to the Leasee but was no party to the Deed quaere if good And having said thus much of confirmations let us see what Leases a Parson or Vicar may make at this day considering all the beforementioned Statutes And first Leases by Parsons and Vicars it is to be observed that at and by the Common Law a Parson or Vicar might have granted or charged his Glebe in Fee-simple with the confirmation of the Patron and Bishop but being excepted out of the inabling Statute of 32 H. 8. 32 H. 8. c. 28. he could never make any Lease or Grant to bind their Successors without such confirmation then by the Statute of 13 Eliz. Parsons and Vicars are restrained 13 El. cap. 10. So that they cannot grant but for 21 Years or three Lives from the making of such Lease and not from the day of the making as is before observed and these Leases and Grants must be with the confirmation of the Patron and Ordinary with all the qualifications expressed in the beginning of this Chapter And it should seem they may make concurrent Leases as Deans Prebends c. may do within three Years of the end of the former Leases It has been a question whether a Parson or Vicar at this day can make any Lease at all to bind his Successor for by the Statute of 13 Eliz. Chap. 20. 13 El. cap. 20. it is enacted that Leases of Parsons Vicars c. that have Cure of Souls shall endure no longer than they shall be ordinarily resident and serve the Cure and that if such Parson c. shall be absent from their Cure above 80 days in one Year that then such Lease shall cease and be void Now when a Parson dies and 80 days incurs and this being a Law for the advancement of Religion and Hospitality to avoid Dilapidations shall have an equitable construction for the preferring of these ends therefore some have held that the death of the Parson Vicar c. after 80 days have incurred from their deaths shall make all their Leases and Grants void though never so sufficiently confirmed and rely very much upon the preamble of the Statute which begins Parson's Leases which is confirmed and dyes That the Livings appointed for Ecclesiastical Ministers may not by corrupt and indirect dealings be transferred to others uses Be it enacied c. But by these Leases it is apparent the profits are converted to other uses c. But others have held the contrary Opinion because such absence is not voluntary but by the Act of God and regularly these cannot be said absent that are not in esse Cro. El. 123. and though Crook report Mott and Hale's Case adjudged in point that their Leases are void by death More 270. Yet More reporting the same case says As to the matter in Law the Judges were divided two against two and that the Judgment was given upon a misrecital of the Statute Bayley vers Murnes T. 24. Car. 2. B R. And this point as I am informed came lately in question in the King's Bench and was adjudged that death doth not avoid such Leases Quaere Ideo quaere inde Dyer 372. p. 2. When Parson's Leases shall be void by non-residence There is a quaere in Dyer whether such Leases shall be void upon 80 days absence ab initio or but from the time of absence by 80 days but it seems to me with some clearness that it shall only be void from 80 days absence and not ab initio For first the words of the Statute are that such Lease shall indure no longer than the Leasor shall be ordinarily resident c. So that till then it is to indure and the Statute closes that upon such absence the term shall cease which it could not do Quaere if had not a being before for a thing cannot cease to be that has not been But another quaere may be startled in this Case upon the reason in Lincolne Colledg Case Whether void against the Parson himself Co. 3.59 b⸪ 60. a⸫ whether such Lease shall be void against the present Incumbent that made it or only against his Successors but it seems to me with some clearness that the intent of the makers of this Act was to make such Lease void against the Leasor himself upon such absence for as before is said the Statute says it shall indure no longer which is a term of limitation and that immediately upon such absence the Lease shall cease and be void and it cannot cease immediately upon the absence and yet be good during the life of the Incumbent But in the Case of Revel vers Hart H. 43. Eliz. B. R. Dyer 372. p. 11. Quaere the Court held the contrary as my Reporter says Ideo quaere If any Parson Vicar c. Dobbins vers Gerrard P. 39. El. B. R. be suspended inhibited or disabled to serve the Cure by the space of 80 days in a Year this shall not make such Lease void for the not serving the Cure must be voluntary And it has been held that if a Parson be resident and do not serve the Cure or serve the Cure and be absent by 80 days that in both these Cases it will make such Lease void Though this Statute upon 80 days absence makes such Lease void made by Parsons and Vicars and says nothing of confirmation yet a confirmation of the Patron and Ordinary in this case seems not to amend the matter for if the Lease be void the confirmation is of no avail At the Common Law Stat. 28. H. 8. cap. 13. Parson leases and resigns if a Parson Vicar c. had made a Lease and resigned the next Incumbent might have entred immediately upon the Leasee but by a Statute made in the 28th Year of H. 8. the Leasee may hold on his term for six years if the Parson that made his Lease so long live and the term were made for so long time but upon such Lease there must be so much Rent reserved within fourty shillings as such Benefice is valued at in the King's Books And by the same Statute if a Parson make a Lease and resigns and dies the Tenant shall hold out his Lease for the Year that was commenced at the time of his death if the Term were to have had so long continuance if the Parson had not died but this seems only of such Lands as are plowed for the succeeding Parson is to have the Parsonage House and Glebe which is not sowed within a