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
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-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-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
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
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
the prohibition or discharge the rule But if the matter suggested be a good ground for a prohibition but is in it self false or doubtful the Defendant in the prohibition may demand a declaration of the Plaintiffs Attorny which is grounded upon a supposed attachment for not obeying the prohibition to which the Defendant may plead as Councel shall advise him and Traverse and put in issue the matter of the said suggestion or such other matter as Councel shall advise which is to be tryed by a Jury of the Country if it pass with the Plaintiff then is the prohibition become peremptory but if the Verdict pass for the Defendant regularly a consultation is awarded that is a Writ directed to the Judg of the Spiritual Court authorising him to proceed notwithstanding the prohibition Now by a Statute made in the 50 E. Stat. 50 E. 3. cap. 4. Where a Prohibition was be had after Consultation 3. it is enacted That where a consultation is once duly granted upon a prohibition made to the Judg of Holy Church that the same Judg may proceed in the Cause by virtue of the same consultation notwithstanding any other prohibition thereupon to be delivered provided always that the matter in the Libel of the said Cause be not ingrossed enlarged otherwise changed But this Statute has been several times held to extend to such Causes only where consultations are judicially granted upon examination of the Cause Jones 231. Cro. Car. 208. Poph. 159 c. and not where they pass of course as for want of proof of a suggestion or upon non suit for want of prosecution or such like Sometimes the Court grants a consultation sub modo Co. 5.68 a⸫ Co. 12. Rep. 44⸫ Consultations sub modo as where the matter of the Libel is in the disjunctive and as to one part the Court has Jurisdiction and to the other not there the Court may grant a consultation as to that part that the Spiritual Court has Jurisdiction of and let the prohibition stand as to the other Or a consultation may be granted Sommers vers Sir Rich. Bulkeley T. 32 El. B.R. Poph. 58. Hob. 179. How the sin Months to prove a Suggestion is to be accounted Co 5.68 a⸫ Where no Consultation shall be granted upon a Verdict for the Defendant Hob 300⸪ so that the Spiritual Court allow such plea or such proof Note that the six Months for the proof of the suggestion is according to the Kalender and not twenty eight days to the Month. And note in the cases before put the prohibition shall be general and the consultation special quoad c. And it is taken for a rule in Sir Henry Hobarts reports that if a prohibition be faulty yet the Defendant shall never have a consultation if it appear to the Court that the suit in the Ecclesiastical Court was not well grounded And therefore where one sued for the Tithe Corn of sixty Acres of Land Dyer 171. p. 5 6. and the Defendant suggested it was barren Ground and paid no Tithe and prayd and had a prohibition and the Jury found that thirty Acres of it were so and that the other thirty were barren but had paid Tithe Wool and Lamb and a consultation denied because it appeared the Plaintiff had no cause to sue for Tithe Corn. So in a prohibition it was suggested More 911 Austen vers Pigot Cro. El. 736. that the Person had twenty Acres of Land and ten Acres of Wood in discharge of all Tithes and the proof was that he had twenty Acres of Land only and a consultation denied because it appeared he had no cause of suit Regularly a prohibition ought not to be granted after sentence Prohibition after Sentence Hob. 97. Noy 70. Winch 8. Cro. El 595. unless it appear the sentence were obtained in the vacation or by surprise so that the party had not time to pray it sooner or upon matter arising after the sentence Hob. 67⸫ and the granting or not granting rests much in the discretion of the Court. And so sometimes upon new matter arising after a consultation a prohibition may be granted After Consultation notwithstanding the aforesaid Statute of 50 E. 3. as where the Spiritual Court after consultation proceeds to try matter determinable only at Law Hob. 286⸪ or if after a consultation the Spiritual Court will make an unjust decree as to award treble damages Hughes 245. Hill 11. Jac. C.B. Baldum vers Geery and so in all cases if the Spiritual Judg will proceed illegally and against the Common Law after consultation a new prohibition may thereupon be obtained but not upon any matter alledged in the Libel Prohibitions of themselves are excellent things The virtue and vices of Prohibitions where they are used upon just legal and true grounds and have often avoided the usurpations of the Popes and Spiritual Courts but by the corruption of these later times they are grown very grievous to the Clergy being too oft granted upon feigned and untrue suggestions which it is impossible the Judges should foresee without the Spirit of Prophecy And I think I may presume to say that where one was granted before Queen Elizabeths time there have been a hundred granted in this last Age and they are a very great delay and charge to the Clergy and it were well in my poor Judgment if the Reverend Judges would think of some way to restrain them or to make them pay well for their delay by making the Plaintiff enter into recognizance to pay such costs as the Court out of which they issue should award in case they should not prove their suggestion in convenient time or some such other course as they in their great wisdom shall think just and meet And so having done with the first manner of determining the right of Tithes at the Common Law I shall proceed to the second which is by Writ of Right of Advowson to which likewise belongs the Writ of Judicavit which in it self is no other but a meer prohibition to the Ecclesiastical Judg and first of the Judicavit There have been some opinions that the Writ of Judicavit is grounded upon the Statute of Circumspecte Agatis Judicavit at Common Law and Articuli Cleri cap. 2. But it is very clear this Writ lay at Common Law and it appears in our Books that it was the opinion of some learned Judges that it lay in all cases where the right of Patronage might come in dispute 38 H 6.20 a. per mode 4 E. 3.27 b. per Markham 2 Inst 364. Lay for any Tithes Bracton l. 5. c. 4.402 b⸪ and of this opinion Sir Edward Coke seems to be And Bracton a Learned Judg who wrote in the time of H. 3. hath the very Writ in his Book which was long before the Statutes abovementioned and he fays that this Writ lies si contentio fuerit inter Rectores de aliquibus decimis quae
Lord ordained that they that preach the Gospel should live of the Gospel what effect this Doctrine wrought amongst the Primitive Christians you may read in the fourth Chapter of the Acts of the Apostles where it is said that as many as were possessors of Houses or Lands sold them and brought the prices of things that were sold and laid them down at the Apostles feet and distribution was made to every man according as he had need But the Christians of this present Age are so far from selling their Houses and Lands and laying the price at the Apostles feet that they will rather detain that from the Clergy which by Law and right is due to them But certainly had the sincerity of the Primitive Christians continued I should never have needed to have set pen to the paper upon this subject I am now about which is the Law of Tithes or Tithing a duty established by the Laws of this as of other Nations for the maintainance of the secular Clergy and for their sake it is that I have undertaken this work There was a Tithing Table published many years ago By a Batchelor of Laws wherein he has learnedly set forth the manner of Tithing by the Canon and Ecclesiastical Laws but those Laws and the Common Laws of this Realm differing in many things wherein the Common Law is to be preferred that Tithing Table has often led both Parson and Parishioners into many errors besides the several discharges from payment of Tithes either absolutely or sub modo of divers Lands in England by the Statutes or Common Laws makes great alteration here from the Canon Laws to rectifie which and as near as may be to reconcile the Canon and Common Laws I did by the perswasion of some Reverend Divines first make some Animadversions upon that Tithing Table but when I had done that considering there were many more things in relation to Tithing than I could conveniently apply to that Text concerning Prescriptions Customs Compositions and other priviledges besides the Laws concerning Offerings Mortuaries and other Church duties fit for all men to know as well Lay as Clergy I adventured upon this larger work which I the rather did because I do not find any other that hath published any compleat work in this kind or to reconcile the Common and Canon Laws that kind of learning lying dispersed in our Law Books I have therefore in favour of the Parsons and Vicars taken up a former resolution and adventured to expose my self to the publick censure And though I cannot promise any perfection in this work yet I dare presume to say it is the most perfect work of this nature yet extant though I can pretend to nothing of it but the errors and mistakes which I will be thankful to any body that will friendly correct that I may make it more exact in a second Edition if I have encouragement The hindrance of conversing with the learned by reason of my confinement to the Country and publick Libraries hath hindred me of some helps I might have had thereby Perhaps it may not be so acceptable to those in whose favour I have writ it because it comes from the pen of one who professes himself a common Lawyer But in my Judgment in this Nation wherein the common Laws and customs of the Country prevail against the Canon and Ecclesiastical Laws this subject is not altogether improper if not most proper for a common Lawyer And truly I have through this discourse dealt with as impartial an hand as the matter would admit And though the Clergy may think it to their prejudice that I have at large set forth the several discharges by which lands are freed from the payment of Tithes yet in that I have given them a clear light which lands cannot be so priviledged and what Prescriptions and modus decimandi is not good being well assured that there are more Lands at this day escape payment of Tithes upon pretence of some priviledg to which they have no Right than those that pay Tithes and might legally be discharged But when I have done my best endeavour to serve the Reverend Clergy I cannot give them Incouragement to depend upon their own Judgments grounded upon any thing here writ for though this may suffice to give them some light what shall be due to them yet I cannot hope by any thing I can write to make them complete Lawyers for many Quaere's will arise that no foresight of mine could give an Answer to but this benefit I hope they will receive by my labours that they may put their Case and make their doubts known more pertinently to the learned I had no sooner finished this little Tract concerning Tithes but I considered there were many other things almost as useful for a Clergyman to know as the Law of Tithes And though Mr. Hughes of Graves-Inn many years since published a learned Tract which he intitled the Parson's Law yet there are many more things necessary for a Clergyman to know that are there only briefly or not at all touched upon and of such force that they must either be performed and observed to make a man a compleat Parson or to make him none though never so exactly instituted and inducted if omitted I have therefore in the first place before I come to the Law of Tithes shewed what Simony is and what danger those run themselves into that are guilty of it what things every Parson Vicar c. is to do before at and after his Institution and Induction to make him a compleat Parson c. what Dilapidations are and how punishable what priviledges the Clergy have at this day by the Laws of England what charges and payments their Tithes and Church-livings are subject unto what Causes of Deprivation have been allowed of by the Laws of England what Leases they may take or set and what Statutes they may fall in danger of and of pluralities and who is qualified to have them and in what manner to be accepted Non-residence and many other things necessary for every Clergy-man to know I have divided the whole into Two Books and them again into several Chapters and Paragraphs and added a short Table for the more ready finding of any thing in either I have likewise added a List or Catalogue of all the Abbeys and Priories that were valued in the Kings Books at 200 l. per annum or upwards and which were dissolved by the Statute of 31 H. 8. the Lands of which can only pretend to any priviledg to be discharged of the payment of Tithes in which I have rather chosen to write after Mr. Dugdale being a sure Author than Mr. Speed in whom I have observed many Mistakes I must beg the Readers Patience to correct the Mistakes of the Printer which are too many by reason of my absence from the Press by the Errata annexed and for my own I shall take it kindly from any body that will in a friendly
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
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
or of the stubble of Corn But if the Meadowing be so rich that there is two crops of Hay got in one Year or two crops of Woad c. there the Parson shall have Tithe as well of the later as of the former Crop If a Man gather green pease to spend in his House Rolls 1.647 a. 11 12. Green Pease and there spend them in his Family no Tithes shall be paid for the same but if he gather them to fell or to feed Hogs there Tithes shall be paid for them Neither shall Tith Hay be paid for the Grass growing upon head-head-Lands Headlands Roll 1.646 z. 19. which are only large enough for the turning of the plow But Tithe shall be paid of the Hay and Corn growing in Orchards 2 Inst 652⸫ Orchards though the Tith of the fruit growing in them were paid the same Year be it Apples Pears Cherries c. There hath been some question about fodder gotten in the feen Lands in Cambridgshire and elsewhere More 683. Cro Jac. 47⸪ Fodder and spent upon beasts of the Plow and Pail whether it should pay Tithes or no but it hath been resolved that Tithes shall as well be paid of this Fodder as of other Hay spent upon the Beasts of the Plow and Pail But it has been resolved Grass out in Meadows for Beasts of the Plow Wells vers Crawly T. 1. Car. 1. B.R. Tares Vetches cut green Cro. Car. 393. Jones 357⸪ that for Grass cut in Meadows to feed the Beasts of the Plow and not made into Hay that Tithes should not be paid thereof It hath been resolved that Tares Vetches c. cut green for the feeding Beasts of the Plow by Custom may be freed from the payment of Tithes but not without Custom CHAP. IV. The Fourth Chapter sets forth where and in what Cases and in what manner the Tithes of Wood are to be paid IN the time of Stratford Arch-Bishop of Canterbury How and where Tithe Wood is to be paid in or about the 17th Year of the Raign of E. 3. 1343. there was a Provincial Canon or Declaration made to this effect Declaramus provisiône concilii sylvam coeduam illam fore Canon Lindwood c. Quanquam ex solventibus c. quae cujuscunque existens generis arborum in hoc habetur ut caedatur quae etiam succisa rursus exstirpibus aut radicibus renascatur ac ex ea decimam ut pote realem praedialem parochialibus seu matricibus Ecclesiis persolvendam nec non Sylvarum possessores hujusmodi ad praestationem decimarum Liguorum ipsorum Excisorum in eis sicut faeni bladorum omni censura Ecclesiastica fore Canonicè compellendos But in or about the same Year there was a Petition in Parliament Exact Abridgment p. 40. nu 51. ibid. 80. num 37. that no Man should be impleaded in Court Christian for the Tithes of Woods or under-Woods but in places accustomed which was answered As heretofore the same shall be The like Petition was in the 25th Year of E. 3. and other Parliaments till at the length in the 45th Year of the same King an Act of Parliament was made to this effect reciting That whereas they sell their great Wood of the age of twenty years or of greater age to Merchants to their own profit St. 45. E. 3. c. 3. Statute not to be paid of great Wood. and in aid of the King in his Wars Parsons and Vicars of Holy Church do implead and draw the said Marchants in Suit in the Spiritual Court for the Tithes of the said Wood by the Name of Sylva caedua whereby they cannot sell their Woods to the very value to the great dammage of them and the Realm It is therefore by that Law ordained and established that a Prohibition in this case shall be granted and upon the same an Attachment as hath been used before this time By which it appeareth that this Act of Parliament was but a Declaration of the Common Law Prohibitions and Attachments thereupon in such case having been formerly used 9 H. 6.56 a⸫ T. 27 E. â—0 28 a. Prohibition in Point 50 E. 3 10.a⸪ and so was Paston's opinion 9 H. 6. This Act of Parliament was after questioned by the Clergy pretending it did not pass as an Act of Parliament but only as an Ordinance and so not binding And thereupon the Commons in the next Parliament petitioned Exact Abridg. 118 nu 21. that it might be enacted that for Wood above twenty Years growth no Tithes should be due and that in all such cases a Prohibition might be granted To which was answered that such Prohibition should be granted as then before had been used But Sir Edward Cook in his Commentary upon Magna Charta does sufficiently prove it was an Act of Parliament 1. Because it is entred upon the Parliament Roll amongst other Acts of Parliament 2. 2 Inst 643⸪ 644⸫ It is under the Title in that Roll of Statutes of E. 3. Anno regni sui 45. 3. It was proclaimed with the rest of the Acts of that Parliament 4. It is penned in the form of an Act of Parliament viz. it is ordained and established 5. It hath the consent of the Lords and Commons 6. There hath been infinite Prohibitions upon it To which let me add that in the Parliament of 8 R. 2. 8 R. 2. Exact Abridgment of Records nu 21. It was owned for an Act of Parliament in which Parliament 't is like many of the Persons were present that were at the making of the said Act. And in 9 H. 6. 9 H. 6.56 a⸫ Exception was taken to the Prohibition because it was not grounded upon this Statute And in the 11 H. 4. 11 H. 4.9 a. it was affirmed by Thirming to be an Act of Parliament and in force Seld. hist decim 236. 2 Inst 643⸪ 644⸫ Roll 1 637⸪ 638 639. But whosoever desires more satisfaction in this point I refer them to Mr. Selden's History of Tithes and the other places mentioned in the margent Notwithstanding this Act many questions were startled what was Sylva caedua and many Petitions in Parliament to have it declared to which I find no positive answers but sometimes referred to usage and sometimes the King took time to advise But Belknap a learned Judg Sylva caedua quid 50 E. 3.10 b⸫ 50 E. 3. declares that Sylva caedua is to be intended every manner of Wood that may be cut and will grow again which all manner of Wood will do as he there says if it be preserved from Cattel and therefore the Defendant in the Prohibition in that case was put to Traverse that he sued not in the Spiritual Court for the Tithes of gross Woods So that the question at this day chiefly is what shall be said gross Woods To which question The Judges of the Common Law have resolved 2 Inst 643⸫ What shall be said great Wood.
Contra Rolls 1.640 q Plo. 470. a.b. that all sort of Wood that is usually imployed for the building of Houses Mils c. are gross Woods and within this Statute of which sort are Oak Ash Elm Beech Horse-beech and Horn-bean against the opinion in Molyn's case Contra Rolls 640 q. 7. Hob. 288. Rolls 640. q. 6 7 8. Hob. 219⸪ Noy 30⸪ Cro. Jac 199⸪ Asp is likewise esteemed a gross Wood being sometimes used for Timber but for Willows Hasels Hollies Maples Birch Alders Thorns c. of what age or bigness soever they be they are regularly to pay Tithes But if they be cut for fencing of grounds Cro. El. 499⸪ 609⸪ 2 Inst 652⸫ Cro. Car. 113. More 683. Roll 1.644 z. 1 2 3. or for fewel to be spent in the Houses of the owner within the same Parish no Tithes shall be paid of them But if by Custom Tithes have been paid of such Wood the Custom is to be observed So if a man cut Wood for the burning of Bricks Of what Wood Tithe shall not be paid Roll 1.645 z. 8 9. Burning Bricks Roll 1.645 z. 10. which are imployed for the repair of houses and buildings of the owner within the same Parish no Tithes shall be paid for it but if he make Bricks to sell or for making of houses of pleasure or other than for necessary Habitation he shall pay Tithe for the Wood spent therein if Tithable If a man convert his Land into a Nursery for fruit-trees or other trees Nurseries Roll 1.637 E. 6. Cro. Car. 526. Jones 416. and sell them for profit to such as transplant them into other Parishes he shall pay Tithes of them If a man cut his Coppice Wood Grubbed Wood Roll 1.637 E. 7. and pay Tithe of them and soon after grub up the roots to cleanse the ground he shall not pay Tithes of them Upon the whole matter it is left a little uncertain which shall be accompted gross Wood because in some Countries almost the meanest sort of Wood are used for building and the Judgments in our books vary some allowing one thing for Timber which another contradicts but the proper and undeniable Wood for Timber are Elm Ash and Oak which are used for Timber in all Countries and Places as Timber It rests now to shew in what Cases such Wood as are accompted gross Wood shall pay Tithes If Oak Ash Elme c. which are esteemed Timber in the Countries where they grow be cut under one and twenty years growth they are accompted Sylva caedua and ought to pay Tithe But the Loppings of great Oaks Loppings of trees 2 Inst 643⸪ Cro. Jac. 100⸪ More 762⸫ Plow 470. b. Roll 1.640 q. 13.4 Co. 11.48 b⸪ Ashes c. though the Lops be under twenty years growth shall not pay Tithes for they are priviledged by the bodies neither shall Tithes be paid of the shoots and under-wood which grows from the roots and stocks of such Timber-trees and trees above the growth of twenty years which have been felled Nor shall Tithes be paid of the Bark of such Trees as are Timber-trees Bark 2 Inst 643. Co. 11 49.a⸫ and priviledged from the payment of Tithes But Tithes shall be paid of the mast acorns c. of Timber-trees because the same is of annual increase 2 Inst 643. Dotards 2 Inst 643⸫ Cro. El. 477. Roll 1.640 q. 2. Co. 11.49 a⸫ Rolls 1.640 q. 1. Neither shall Tithes be paid of Timber-trees which become dotard and are become arida sicca non portans folia in aestate nec existens maheremium If one lopp Oaks Ash c. under twenty years of age and after let them grow above twenty years of age no Tithes shall be paid of them or their Lops Wood mint with great and Vnderwoods Parsons Law 99. T. 19. Jac. B. R. Buckhurst vers Newman Parson of Staplehurst T. 36. El. B. R. per Henden It hath been held that if a Wood ground be mixt with Woods tithable and Woods not tithable and the greater part be such as are not tithable it shall priviledg the rest and pay no Tithe but if the greater part be tithable it shall pay Tithe of such part as is tithable for where the greater part is great Wood the whole shall be called grand Wood à majore It hath been a question amongst the Canonists Who shall pay the Tithe of Wood. Lindwood c. Quanquam ex silventibus verb. Sylvarum pos cap. Quia quidam maledictionis verb. asportan who shall pay the Tithes of Wood tithable the buyer or the seller Mr. Lindwood in his Gloss upon the Canon before recited seems to be of opinion that the buyer shall pay the Tithes Quia verum enim est quod decima sequitur fructus cum onere decimae transferuntur fructus in alterum and this opinion of his seems reasonable where the Owner of the wood sells the whole wood together or parcels it out and the buyers cut it but if the Owner of the Wood cut it himself and then sells it by parcels there it seems reasonable that the Owner of the Wood should pay the Tithe Roll 1.656 l. 1. but by the Common Law the Parson may sue the one or the other at his Election And it is to be observed Roll 1. 637 f. that a whole Province County or Hundred may prescribe in non decimando of Woods Prescription of not Tithing of Wood. as in the Wilds of Kent and Sussex and other places and therefore the Commons in the 18 El. upon the making of the aforesaid Canon moved in Parliament that no man should be drawn in Plea in the Court Christian for the Tithes of Wood or Underwood except in such places where such Tithes have been used to be paid Roll 1. 637. f. for by the strict Letter of this Canon Tithes were to have been paid of all manner of Wood great and small in all places to which the Answer is recorded Let it be done in this also as has been done before time The manner of the payment of Tithe wood must either be by the measure of the ground by Poles The manner of paying Tithe Wood. Pearches c. as 't is in some parts of Lincolnshire or every tenth Faggot Billet c. as 't is paid of Corn and other things but in this as in all other Cases the Custom of the place is to be observed But no Tithe shall be paid of Wood cut for Hop Poles to be used in the same Parish White vers Arch. M. 15. Jac. C. B. where the Parson hath the Tithe of the Hops CHAP. V. The Fifth Chapter shews where and in what Cases Tithe is due for the herbage or agistment and Pasturage of Cattle and who is to pay the same I Am now come to speak of the Tithe of herbage In what Cases Tithe Herbage is due agistment or depasturing of Cattle for which I find no
Canon save a Clause of a Provincial Canon of Robert Winchelsey dated 1305. in these words De Pasturis autem pascuis tam non communibus quam communibus statuimus The Canon quòd decimae fideliter persolvantur hoc per numerum animalium dierum ut expedit Ecclesiae The Tithe of the Herbage or Agistment of Cattle is due where the Owner or Farmer of any Lands Depastures the same with barren Cattle that yield no profit at all to the Parson which is a Tenth Part of the yearly value of the ground so eaten but commonly a twentieth part is accepted but in this as in all other Tithes the Custom and Usage of the place is to be observed If the Owner of the Land agist it with Forrainers Cattle Cro. Car. 237.559 Jones 254. Who shall pay it then the Owner of the Land shall pay the Herbage Tithe but if he let the ground to a Tenant then the Tenant is to pay it But no Herbage Tithe shall be paid for the Agistment of Beasts bred for the Plow and Payle Cro El. 365. 2 Inst 651⸪ Cro. Car. 237. 559. Roll 1.647 a. 9 10. Roll 1.643 R. 4. Bulst 1.171 Poph. 126.142 Wild vers Lampton T. 15. Jac. B. R. per 3 Inst in Houghton Saddle horses Roll 1.646 a. 4 5. Beasts bred for the Plow and Pail and so imployed in the same Parish nor for Beasts fed and spent in the Owners house in the same Parish So if a man eat a ground with his own Saddle Horses he shall pay no Tithes for the same but if an Inn-keeper eat up a ground with Guest horses he shall pay Tithes for the herbage of them If a Forrainer that lives in another Parish depastures a ground with Cattle bred for the Plow and Pail to be imployed in a Forrain Parish he shall pay Tithe for the agistment of such Cattle And there is no difference between the Case of a Parishioner and a Forrainer where the ground is eaten with unprofitable Cattle and not bred for the plow and pail Saddle horses and fatting Cattle as aforesaid to be spent in the Parishioners house but that the Parishioner as well as the stranger shall pay Tithe but for the breeding of Cattle for the plow and pail c. conduces to the profit of the Parson in his other Tithes No Tithe is due to the Parson for the herbage of beasts ferae naturae as Deer 2 Inst 651⸪ Herbage of Beast ferae naturae F.N.B. 53. g. Conys c. without a special Custom Fitzherbert in his natura brevium seems to be of opinion that there is no Tithe due for the herbage or agistment of Cattle and adds this reason because they pay Tithe of the Cattle there depastured which proves his meaning to be that there is no Tithe herbage due where the ground is depastured with profitable Cattle If a ground be eaten with profitable Cattle as milch Cows Yews Pasture eaten with mixt Cattle Lambs and Cattle bred for plow and pail c. and also with barren and unprofitable Cattle and the profitable Cattle exceed in number it should seem the greater part being profitable should free the rest Roll 1641. q. 20. Quaere tamen inde quaere No Tithe Herbage is to be paid of the Agistment of Oxen Roll 1.646 a. 6 7. Beasts of the Flow. Horses or Beasts of the plow imployed and used in the same Parish for they are profitable Cattle to the Parson If a ground be eaten with barren and unprofitable Cattel Ground eaten with mixt Cattle and profitable Cattel together and the profitable Cattel are the less in number I conceive there 's no doubt but the Land holder must pay Tithe in kind for the profitable Cattel and Tithe of the herbage for the rest and not herbage for the whole If there be a Custom in a Country to sow Tares Yares and Vetches eaten green Roll 1.646 a. 6 7 Vetches c. and to eat them green upon the ground before they are ripe with Horses and Beasts of the Plow no Tithes shall be paid for the same If a Stranger or a Parishioner buy barren Cattel Roll 1.647 a. 8. and 16. Of what Cattel herbage is due and depasture and feed them for sale he shall pay Tithe for the herbage of them If a Man buy Oxen Roll 1.647 a. 13. Steers or Horses and depastures and after sells them and doth not without fraud imploy them in the Plow he shall pay Tithes for their agistment and if he work them fraudulently to defeat the Parson of his Tithes it will not serve his turn So if a man buys or rears young Cattel Roll 1.647 a. 15. and depastures them in a Parish and do not imploy them there for the Plow or Pail without fraud as hath been said he shall pay Tithe for the herbage of them But for the Grass of Fallows no Herbage shall be paid P. 7. Jac. C.B. Parsons Law because it is for the bettering of the Parson's Tithes in the Year following CHAP. VI. The Sixth Chapter shews where and in what manner the Tithes of Calves Milk Cheese Wool Lambs Piggs c. are payable IN the payment of these sort of Tithes I do not observe that the Common Law crosses the Canon in any thing material How the Tithes of Calves milk wool Lambs c. are to be paid and therefore I shall recite you the Provincial Canon made by Robert Winchelsey And his Clergy Anno Dom. 1305. which is to this effect De nutrimentis autem animalium The Canon Lindwood c. Quoniam propter scilicet de agnis statuimus quòd pro sex agnis infra sex oboli dentur pro decima si septem sint agni in numero septimus Agnus detur pro decima Rectori ita tamen quòd Rector Ecclesiae qui septimum Agnum recipit tres obolos in recompensationem solvat parochiano a quo decimam recipit Qui octavum recepit det denarium Qui vero nonum det obolum parochiano vel expectet Rector usque ad alium annum donec plenariè decimum agnum possit recipere si maluerit qui ita expeciat semper exigat secundum Agnum meliorem vel tertium ad minus de agnis secundi Anni Et hoc pro expectatione primi anni Et ita intelligendum est de decima lanae Sed si oves alibi in Hyeme alibi in Aestate nutriuntur dividenda est decima similiter si quis medio tempore emerit vel vendiderit oves certum sit à qua parochia illae oves venerint earundem dividenda est decima sicut de re quae sequitur duo domicilia si autem incertum fuerit habeat illa Ecclesia totam decimam infra cujus limites tempore tonsionis inveniuntur De lacte vero volumus quod decima solvatur dum durat videlicet de caseo tempore suo de lacte autumno
for of profits that come only by the labour and industry of man no Tithe is to be paid Cro. Car. 523⸪ 524⸫ and the same reason holds for Corn-Mills The next question is admitting that Tithes are due for mills whether the same be predial or personal Sir Edward Coke is of opinion that in Case any Tithe be due it is only a personal Tithe being acquired by the labour and industry of the miller and takes no Increase from the ground to make it predial And the Statute of 2 E. 6. is that every person shall justly set forth yield and pay all predial Tithes in their proper kinds as they arise and happen which cannot be applyed to the Millers taking of the Toll dish nor to Fulling Mills Iron Mills Paper Mills c. which are all comprehended under the word mill and no Tithe can be paid in specie for if the Parson should have every tenth Toll dish then it would often happen that he should have twice Tithe of the same Corn which is against the Law and such Tithe as the Tenth Toll dish has never been paid in any place that I have known or heard of And if it be a personal Tithe as there is great reason that it can be no other then it must be paid with the deduction of the expences and charges and is not payable but in such places where personal Tithes are payable by Custom See more thereof in the twenty second Chapter But the Canonists hold That the tenth Toll dish shall be paid as a predial Tithe without deduction of expences CHAP. X. The Tenth Chapter shews whether Tithes ought to be paid of Hawking Hunting Fishing Fowling c. THese are all comprehended under personal Tithes Tithe of Hawking Hunting Fishing Fowling if due for that these things being obtained by the labour and industry of the Party and the things obtained are ferae naturae and not of their own nature tithable in their proper kind unless the particular Custom of the place require it and therefore I shall refer these to the twenty second Chapter where I shall speak of Personal Tithes CHAP. XI The Eleventh Chapter is concerning the Tithes of Ducks Geese Hens Swans and other domestick Fowls and Birds THE Tithe of all tame and domestick Fowl is to be paid in their Eggs or Young in their proper kind Of the Tithe of domestick Birds and Fowl according to the Custom of the place Geese Ducks and Swans are usually paid in their kind but of Hens and Turkeys commonly in Eggs but therein the Custom of the place is to be observed but note that where they pay Tithe of the Eggs there is no Tithe of the Young nor è converso Tithe Eggs paid where they have the Tithe of the Young CHAP. XII The Twelfth Chapter shews of what things Tithe shall not be paid TIthes regularly are not due of dwelling houses Of what things Tithes shall not be paid Co. 11.16 a. Hob. 11⸫ and yet a modus may be due for a house as well as for land and it shall be intended that it was a modus for the land before the house was built No Tithes shall be paid for Hounds Things of pleasure 12 H. 8 4.b⸪ 2 Inst 651. Things that increase not Roll 1. 636. d. 1. Doct. Stud. 174. Apes Popinjayes similia because they are things only of pleasure Neither shall any Tithes be paid of those things which do not increase from year to year and therefore no Tithes shall be paid for stone got out of Quarries Pit-coals Turfs Slates Bricks Quarrels Tyles earthen Pots nor of any thing made of the earth nor of marle or lime got for the Improvement of the ground Cro. El. 277. More 908. 2 Inst 651⸪ Roll 1. 637. Et Doct. and Stud. 174. Baxter vers Hope H. 8. Jac. C.B. 10.1109 St. 2. E. 6. c. 13. nor of Tynn Lead Copper or other Mettal gotten out of the ground but by Custom Tithes of such things may be due and payable Servants in Husbandry shall not pay personal Tithes neither shall any Tithes be paid of marriage goods No Tithes shall be paid of aftermaths Stubbles or Rakings of Corn without fraud Rolls 1.640 q. 12 13 16 17. No Tithes shall be paid of birds or beasts that are ferae naturae c. CHAP. XIII The Thirteenth Chapter shews what Force Custom has as well in the form and manner of Tithing as in the discharge of the payment thereof and wherein Custom and Prescription differ BY the Statute of 2 E. 6. it is enacted Stat. 2 E 6. c. 13. What force Custom has in the manner of Tithing that every of the King's Subjects should from thenceforth truly and justly without fraud or guile divide set out yield and pay all manner of their predial Tithes in their proper kinds as they should arise and happen in such manner and form as had been of right yielded and paid within forty Years next before the making of the said Act or which of right or of custom ought to have been paid In this Act there are three qualifications 1. It enjoyns the payment of such Tithes as had for forty Years then past been of right yielded and paid 2. such as of right ought to have been paid 3. such as by Custom ought to have been paid Tithes due by Custom are of two kinds 1. where there is a modus decimandi and by Custom Money or some other thing is paid in lieu of the Tithes 2. where Tithe hath by Custom been paid of things not Tithable as of Lead in Derbyshire Tynn in Devonshire and Cornwall fishing in the Sea And this is confirmed by the Stat. of E. 6. cap. 13 as in Southwales where the Custom is that if the Parishioner of one Parish land his fish in another the Tithes are divided between the Parson of the Parish where the fisher lives and the other where he landed his fish but if the Parishioner land his fish in the Parish where he himself dwells then the Rector of that Parish has the whole Tithes And I have heard that in some Countries they pay Tithe Ale Tithe-Ale Roll 1. 642. and Tithe of Limekilns c. which in their own natures are not Tithable And as by custom things may be made Tithable which in their own natures are not so or one thing may by custom be paid in satisfaction or discharge of another so custom hath a great influence upon the form and manner of Tithing for the direction of the time place and order of payment of Tithes And as custom may make things Tithable Custom of not Tything where good which of their own nature are not Tithable so a Custom of a Province County or Hundred may discharge the payment of Tithe of a thing in its own nature Tithable so there be a competency for the maintainance of the Ministry beside And therefore in the wilds of Kent and Sussex they do pretend
by Custom to be free from payment of Tithe Wood Hob. 266⸪ Bulst 2. 285. Doct. Stud. cap. ult Roll 1. 642. b. 1. p. 5 6 8. Co. 11.16 a⸪ Custom to pay Tithes of things not Tithable or any thing in lieu of it and so in several Countries they pay no Tithe of their Milk And as Custom may prevail in not Tithing so it may as has been said make things Tithable which in their own natures are not Tithable as the Rents of Houses Pigeons eaten in the House Wood spent in the House and by Custom Tithe may be paid of Salt Brick Lime Ale Chickens and other things not Tithable Now the difference between a Custom and a prescription is this Difference between Custom and Prescription every Custom must have dimension and alledged to be within some certain Province County City Hundred c. for if it be a general Custom of England it is Common Law and such Custom must be common to all within such limits but if it be confined to one certain Person House Land or other thing there it becomes a prescription which is a younger daughter to Custom and therefore when a Man comes to plead a Custom the manner of pleading is to alledg that within such a County Hundred or Town there is and from the time whereof in the memory of Man is not to the contrary there hath been such a Custom used and approved in the same that is to say that c. alledging the Custom as it is But when you come to plead a prescription you only alledg that you and all those whose Estate you have in such Lands have time out of mind paid so much annually to the Parson of D. How to plead a Prescription in full satisfaction and exoncration of all the Tithes arising upon the said Lands c. So that Custom and prescription differ in these things Wherein Custom and Prescription differ that Custom must be limited and confined to some certain place prescription is at large Custom is common to all the Persons and Lands within the limits wherein it is alledged but Prescription is confined to certain Persons or things but in this they agree that they must be constant without interruption and perpetual from the time whereof the memory of Man is not to the contrary for if there have been frequent interruptions there can be no Custom or Prescription obtained but after a Custom or Prescription is once duly obtained a disturbance for ten or twenty Years shall not destroy it 1 Inst 114. b. 2 Inst 653⸪ 2 Inst 654⸫ for Multiplex interruptio non tollit praescriptionem semel obtentam But I must here observe to the Reader How the Ecclesiastical Laws look upon Customs and Prescriptions that though the Civil and Ecclesiastical Laws do in some cases take notice of Custom and Prescription yet in this they differ from the Common Law In what they differ from the Common Law in this matter that they allow a usage for forty Years to be a good proof of a Custom or Prescription grounding their judgments upon a decretal Epistle of Pope Alexander the third Anno Domini 1180. But this Kingdom never allowed of that Epistle or yielded any obedience thereunto so that as well in Spiritual as Temporal Prescriptions and Customs if they come to be tried at Common Law as all Prescriptions concerning Tithes must be they must be proved to have been used beyond the memory of any Man to the contrary for if any Man living or any authentick Record or other evidence prove it was otherwise at any time since the first Year of Richard the first which was Anno Domini 1189. 2 Inst 653. the Custom or Prescription fails And the Influence Custom What Influence Custom and Prescription have in the manner of Tithing 27 H. 8. c. 20. and Prescription have in the Manner of Tithing is confirmed by three several Acts of Parliament First by the Stat. of 27 H. 8. whereby it is enacted that every Subject of England c. according to the Ecclesiastical Laws and Ordinances of the Church of England and after the laudable Vsages and Customs of the Parish or other place where he dwelleth or occupieth shall yield and pay his Tithes Offerings and other duties of Holy Church c. By this Statute the Ecclesiastical Laws and Canons are affirmed for the payment of Tithes but in such cases as they are contrary to the Common-Law or Customs of the place they do not bind Next this Act confirms and allows all Usages and Customs of the place where the Tithes arise which are to be preferred before all Canons and constitutions in the manner of Tithing The next Statute is that of 32 H. 32 H. 8. c. 7. 8. whereby it is enacted That every Person c. shall fully truly and effectually set out yield or pay all and singular Tithes and offerings aforesaid according to the Lawful Customs and usages of the Parishes and places where such Tithes or duties should grow arise come or be due This Act seems only to extend to customary Tithes and so doth the Statute of 2 E. 6. which is That every of the King's Subjects should from thenceforth 2 E. 6. c. 13. truly and justly without fraud or guile divide set out yield and pay all manner of their predial Tithes in their proper kind as they arise and happen in such manner and form as hath been of right yielded and paid within forty Years next before the making of the said Act or of right or Custom ought to have been paid But more of these Statutes in their proper place I shall now proceed to shew what liberty and priviledg the Parson Vicar c. hath in the grounds where the Tithes arise for the drying ordering and carrying away their Tithes CHAP. XIV The Fourteenth Chapter shews what Priviledg and Liberty the Parson Vicar c. hath in the ground where the Tithes arise for the drying making ordering and carrying away the same BY the Stat. of 2 E. 6. It is enacted 2 E. 6. cap. 13. What Friviledg the Parson c. hath in the Lands where the Tithes grow that at the Tithing time of Predial Tithes it should be lawful for every party to whom any Tithes ought to be paid or his Deputy or Servant to see the said Tithes to be set forth and severed from the nine parts and the same quietly to take and carry away This Statute as to the taking and carrying away seems only declarative of the Common Law but as to comeing upon the Lands to see the Tithes set forth seems to me to be a new Authority given by this Law for the owners of the Land are de jure bound to set forth their Tithes duly and rightly and if they fail therein the Parson Vicar c. have their remedies and if the Parishioner do justly and truly set forth his Tithes although the Parson Vicar
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
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.
Stat. of 2 E. 6. 6. This Law extends as the former did to all manner of Tithes and Offerings 7. London is excepted out of this Act as it was in the former 8. This Law only extends to customary Tithes and not for Tithes due by Canon and Ecclesiastical Laws 9. This Act only extends to such as shall obstinately and wilfully refuse to perform the Sentence of the Ecclesiastical Judge and for no other contempt or neglect 10. Lastly this Act restrains the Suit to the Ecclesiastical Court upon this Statute otherwise an Action as should seem might have been brought at Common Law upon this statute for not setting forth c. of their Tithes But diverse defects appearing in this Law especially to the Lay Impropriators they obtained a more effectual Law for their purpose in the 2 E. 6. by which it is enacted That if any Person carry away his Corn or Hay Stat. 2. E. 6. cap. 13. or other predial Tithes before the Tithe thereof be set forth or willingly withdraw his Tithes of the same c. that then upon due proof thereof made before the Spiritual Judge or any other Judge to whom heretofore he might have made complaint the Party so carrying away withdrawing letting or stopping shall pay double the value of the Tenth or Tithe so taken lost withdrawn or carried away over and besides the costs charges and expences of the Suit in the same the same to be recovered before the Ecclesiastical Judge according to the Ecclesiastical Laws There is a Proviso in this Act that gives occasion of many Prohibitions to this effect 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 such Tithes or that be discharged by any Composition real Extends only to Predial Tithes This Paragraph of this statute as to the double value extends only to predial Tithes as Corn Hay Wood Flax Hemp Fruit c. but for mixt and personal Tithes there is a Provision after in this Act. There is also another Proviso in this Statute as in the former Sole Jurisdiction to the Spiritual Courts which restrains all Suits for Subtraction of Tithes to be sued in the Ecclesiastical Court and that it shall not be lawful to sue any with-holder of Tithes obventions c. in any other Court and that if the Ecclesiastical Judge shall give Sentence no Prohibition or Appeal depending and the Party condemned do not obey the Sentence that then such Judge may excommunicate the Party and if he wilfully stand excommunicated by the space of forty days next after publication thereof in the Parish Church or the Place or Parish Excommunicato capiendo given where the Party excommunicated is dwelling or most abiding then the Judge Ecclesiastical may certifie the King in Chancery and require Process of Excommunicato capiendo This Clause extends to all manner of Tithes Offerings c. but this gives no double damages for them as the former Clause doth for Predial Tithes There is another Clause in this Act that gives ground likewise for many Prohibitions which is to this effect That the aforesaid Clause shall not extend to give any Judge Ecclesiastical Jurisdiction to hold Plea of any matter cause or thing repugnant to or against the effect intent or meaning of the Stat. of Westm the second cap. 5. the Stat. of Articuli Cleri circumspecte Agatis sylvae coeduae the Treatise de Regia Prohibitione Stat. 1. E. 3. cap. 10. or any of them or to hold Plea in any matter wherein the Kings Court ought to have Jurisdiction any thing therein c. Note that by these three Statutes before mentioned the Jurisdiction of Tithes is confirmed and restrained to the Ecclesiastical Courts That by the Stat. of 27 H. 8. Observations upon all the Statutes Process for contempt is given before Sentence By that of 32 H. 8. Process for contempt is given after Sentence definitive but observe the different penning And by this last statute a Writ of Excommunicato capiendo is given if the Party continue obstinate by the space of forty days after an Excommunication published against him so that a man would think here were as good remedies provided for the Recovery of Tithes in the Ecclesiastical Court as could be imagined but the Interruptions that are frequently given by Prohibitions as shall be shewed hereafter in due place very much frustrate the effect of the proceedings in those Courts And note 2 Inst 490⸫ that a modus decimandi is properly to be sued for in the Ecclesiastical Courts And so having said so much concerning the Ecclesiastical Jurisdiction for the determining the right of Tithes and relief against subtraction of Tithes I shall in the next place shew in what Courts in what Cases and in what manner they are determinable in the Temporal Courts Mr. Selden 422. In what Cases the Temporal Courts have and may determine the Right of Tithes Selden in his History of Tithes reckons up five manner of ways whereby the Right of Tithes may be determined in the Temporal Courts 1. In Prohibitions whereby the Spiritual Courts are forbidden to hold Plea where matters happen which are only triable in the Kings Court or where those Courts proceed against any statute or the Common Law c. 2. By Writs of Right of Advowson whereunto may be annexed the Writ of Judicavit 3. By Scire facias 4. By Process mandatory to command the payment of Tithes 5. By Suits and Actions upon the before mentioned Statute of 27 H. 8. 32 H. 8. and of 2 E. 6. to which may be added the Trials at Common Law by Actions of Trespass Assise c. And of these in order And first of Prohibitions In what Cases Prohibitions use to be granted which are frequently obtained out of the Courts at Westminster Courts of great Sessions in Wales and the County Palatines c. upon these grounds following First upon a modus decimandi Hob. 286. 42⸫ 247⸪ 2 Inst 610⸪ Co. Entr. 459. d. 460. b. Co. 2.44 Dyer 74. p 49. Modus decimandi where the Defendant in the Spiritual Court suggests that he and all those whose Estate he hath in the Lands c. in which c. have time out of mind paid so much yearly in money or giving some other recompence in satisfaction of all the Tithes arising upon the Lands or of all the Tithe Hay or Corn c. this manner of Tithing being by Prescription which is only and properly tryable at Common Law if pleaded in the spiritual Court or not pleaded or allowed or not allowed as a good Plea there is a ground of a Prohibition and what Prescriptions and modus decimandi are in this Case approved of by the Common Law I must refer the Reader to the proper
brought the cause to issue upon nil debet or non culpa we will shew in the next place what will be good and material evidence as well for the Plaintiff as Defendant First What Evidence is necessary in this Action ex parte quere If the Plaintiff be a Parson Vicar or other Ecclesiastick and have not been some considerable time in possession of his Living in which I have not observed any constant rule amongst the Judges in their practice but ten years quiet possession for the most part is allowed by the Judges for an evidence of the Plaintiffs Title unless some material objection be made against it to draw it into question but if the Plaintiff have been but for some short time in possession or the possession litigious then the Judges usually put the Plaintiff to prove his institution and induction and now he must prove that he was in Episcopal Orders at the time of his institution otherwise his institution is void by the late Act of Uniformity he must produce a Certificate under the Hand and Seal of the Bishop c. that instituted him that he subscribed the declaration mentioned in the Act of Uniformity and must prove he subscribed the same in the presence of the Bishop or c. and he must prove that within two Months after he was inducted upon some Sunday or Lords day during Divine Service he read the thirty nine Articles of Religion in the Parish Church into which he was inducted and that he did declare his unfeigned assent and consent to all things therein contained and he must likewise prove that within two Months after actual possession of his Living he read Morning and Evening Prayer in his Church upon some Lords day and openly and publickly before the congregation declared his assent and consent to the use of all things therein contained and prescribed in these words I A. B. do here declare my unfeigned assent and consent to all and every thing contaiend and prescribed in and by the Book Intitled the Book of Common Prayer and Administration of the Sacraments and other Rites and Ceremonies of the Church according to the use of the Church of England together with the Psalter or Psalms of David pointed as they are to be sung or said in Churches and the form or manner of making or Ordaining and Consecrating Bishops Priests and Deacons The Parson Vicar c. having thus made himself a Title must proceed to prove the taking and carrying away the Corn Hay c. and the value and if need be that the Land lies within the Parish c. but this the Judges put them to prove first of all commonly But if the Plaintiff be a Farmer or Patentee under the Crown he must prove his Title but if he have been any considerable time in possession and the Title not controverted the Judges seldom put the Plaintiff to shew any more Title but his bare possession and enjoyment and that others pay him Tithes And so having shewed what is necessary the Plaintiff should be prepared to prove I will proceed to shew what defence the Defendant may make The Defendant upon the general issue of not guilty Ex Parte Defendentis Brown 1. 34. c. may prove that he duly set forth his Tithes but if he afterwards carried them away it will not serve his turn so if he sell his Corn privately to another and after he has sold it privately 2 Inst 649⸪ cuts and carries it away the Action lies against the first Owner the same Law is where the Owner of the land privately sells his Corn to another who privately cuts and carries it away And the Defendant may prove that another has a better Title to whom he has paid his Tithes or compounded with him for them Or he may prove that the Parson came in by Simony or any other matter that makes his presentation institution or induction void or any other defect in not reading the Articles c. Or he may prove that he set forth his Tithes and a Stranger carried them away or may give in evidence a Lease or Grant from the Plaintiff himself or any other to whom he can make a good Title but such Leases and Grants must be in writing unless for one year only to the Owner of the Land which hath been held good by way of retainer The Jury if they find for the Plaintiff Verdict are to find how much of the debt demanded by the declaration is due to the Plaintiff which they are to do by trebling the value of the Tithe subtracted wherein they are usually assisted by the Court. The judgment is always given for the debt found by the Jury without costs Judgment because this Action is grounded upon a penal Law where no Action lay at Common Law neither shall the Defendant have any costs if the Verdict pass for him but if judgment be given for the Plaintiff in an Action brought upon this Statute by nihil dicit non sum informatus Cro. Jac. 361 362. or demurrer the Plaintiff shall have Judgment for the whole debt demanded by his declaration And if an Action upon this Statute be brought against two or more and Verdict only pass against one or part of the Defendants the Plaintiff shall have Judgment against those against whom the Verdict passes Stiles 317 318. though the others be acquitted quod nota Note that this Statute as to the treble value and double value extends only to Predial Tithes Nota. and not to Personal mixt or other Church duties The Exchequer likewise by English bill holds plea for the single value Jurisdiction of the Exchequer for subtraction of all manner of Tithes Oblations c. of which great use hath been made since the late Wars and there they decree the single value with costs and the future payment which is of great advantage to the Plaintiffs and these suits are not interrupted with prohibitions but these suits are often very costly too for if a modus decimandi or the bounds of the Parish come in question and the proof not very clear they are frequently sent to Trials at Law which gives delay and increases the charges very much this Jurisdiction I take it is much fortified since Tenths and first-fruits were annexed to the Crown but Suits of this nature were early brought in this Court before the War however there are some antient Books prove that this Court on the Law side has assumed Jurisdiction of Tithes 38 Ass p. 20. 44 E. 3.43 44. but the reporter reports it with a quod mirum Lastly 50 E. 3.20 2 H. 4.15 20 H. 6.17 1 H. 6.5 2 E. 4 5. 44 Ass p. 25. it is evident in our Books of Law that the rights of Tithes were frequently determined at Common Law in Actions of Trespass for taking away of Tithes unless both parties were Clergy-men and sometimes Assises have been brought at Common Law for Tithes
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 and useful to others to publish something in order to the reconciling of them To which end I had gathered together some materials but the War coming immediately on and after that the Ecclesiastical Courts being laid aside and other Courses found out for the Recovery of Tithes I desisted the further Prosecution of that design until it was revived at your Request seconded by some other Reverend Divines whereupon looking up my old Notes and adding such Judgments and Resolutions that I have since come to the knowledg of the whole is reduced to the form I here present it to you you have most Right to it and I heartily wish it may be of as great Service and advantage to you and all the Reverend Clergy as is desired by him that is Your affectionate loving Father S. D. THE LAW OF TITHES or TITHING CHAP. I. The First Chapter shews what Tithes are the several sorts and kinds thereof and in what manner due HAving in the former part of this discourse shewed the worthy and Reverend Clergy-Men in what manner they may lawfully and justifiably attain to such preferments in the Church as they are capable of and in what manner they may avoid all the perils and dangers that attend the Beneficed Clergy-Men it rests now that I shew him what profits they may justly challenge to belong to their Church-preferments and in what manner to be paid and how to be recovered if need require And first of Tithes which the Canonists define to be Definition A tenth part or portion of increase commanded to be paid to the Sons of Levi for their Ministry wherein they served in the Tabernacle Or as some others define them they are Omnium bonorum licitè quaesitorum quotae pars Deo Divina institutione debita But the Common Lawyers define them to be An Ecclesiastical Inheritance Collateral to the Estate of the Land Co. 11.13 b. and of their own proper Nature due only to an Ecclesiastical Person by the Ecclesiastical Laws And for that reason no unity of possession can extinct or suspend them but they notwithstanding any such unity remain in esse and may be demised or granted notwithstanding any such unity but may more properly in my judgment be defined to be A tenth part or some other thing in lieu thereof of all the Increase yearly arising forth of the profits of the Lands and Stock or raised by the Industry of the Parishioner and properly due to the Clergy that have the Cure of the Souls in the Parish where they arise And by some Canonists Tithes have been divided only into two kinds that is Division Predial and Personal and in this manner of division they comprehend all manner of Tithes that arise either immediately or mediately from the Land under the name of Predial Tithes Doct. Stud. l. c. 55. p. 168. b. Lindwood c. Quoniam prepter verbis divid end est decima which they again distinguish in Predial mediate and immediate under which they comprehend the Tithes of Corn Hay Wood Herbs and all other things that either come from the ground by manurance or of its own Nature and under the name of Tythes Predial mediate is comprehended the Tithes of all manner of Cattel and other things that receive their nourishment from the ground But Tithes by the Common Lawyers 2 Inst 649. Roll 1.635 a. and which division I shall observe in my discourse are divided into Predial Mixt and Personal and according to this division all Tithes that arise from the ground as before is said immediately Lindwood c. Quoniam propter verbis talibus decimis are only accounted to be Predial and those that arise from Cattel and other things that receive their nourishment immediately from the ground they call Mixt and those that arise from the Labour and Industry of Man alone Personal Tithes again both by the Common Lawyers and Canonists are divided again into great Tithes in Latine majores seu grossae decimae and into small Tithes in Latine minores or minutae decimae And in this division Corn Hay and Wood are all accounted gross or great Tithes But there has been some question whether Tithe Wood should be accounted a great or minute Tithe and resolved that if a Vicar be only endowed with the small Tithes Rolls 1. 643. v. 2. 2 Bulst 27. and have by reason thereof always had Tithe Wood that in such Case it shall be accounted a small Tithe otherwise it is to be accounted amongst the great Tithes But all manner of Tithes of Gardens Herbs Roots Fruit Saffron Woad Cro. El. 467. Hutton 77. Cro. Car. 28. Rolls 1. 643. v. 3. whether sowed in Fields or Gardens Flax Hemp Hops Rape and all other Predial Personal and Mixt Tithes are accounted inter minutas decimas but in Vdal's and Tyndal's Case Hutton 77. in some Cases Hops Woad c. may be great Tithes in places where they are much sowed And herein the Custom of England is kind to the poor Vicars Lindwood c. Quoniam propter verb. talibus decimis making many things to be allowed for Minute Tithes that are not so in others I have been the longer in this division of Tithes between great Tithes and small Tithes because many Vicarages are indowed with the small Tithes only and in some old Indowments you will find the word Altera omnia Spelm. Gloss 28 Cro. El. 578. Hetley 135. which by Custom may as well comprehend the small Tithes as such profits as arise from the Altar Now perhaps it may be expected Quo Jure debet I should say something to satisfie the Reader by what Law Tithes became due under the Gospel But in that point I find so great a difference between the Canonist School-men and Divines that it would be a great presumption in me to take upon me to determine the point the rather because I am informed by a reverend learned and grave Divine Helyns Hist of Presbytery 391. Seld. Hist decim cap. 5. Sect. 4. cap. 7. And in the end of the Epistle to the Reader that the learned Selden retracted his opinion therein and what it was you may see in the places noted in the Margent But so far as I have observed they all agree in this That Tithes quoad sustentationem Cleri vel ministrorum Dei are jure divino So that the sole question amongst all these learned men is about the quantity The Question or quota pars But be they due jure divino jure Ecclesiastico or jure humano I conceive the difference cannot be great since as it must necessarily be confessed they have been given and consecrated Deo sanctae Ecclesiae and so being dedicated to God and his Service in my poor Judgment the taking them away from the proper use and end cannot be less sacrilegious Doct. Stud. l. 2. cap. 55. f. 164. b⸪ 65 a⸫ than if they were without dispute jure divino
I shall not therefore stuff this present Discourse with the Arguments of any side but shall leave the learned to their own Conceits it serving my purpose that they be due by any Law divine humane or Ecclesiastical My next examination shall be to whom they are due CHAP. II. The second Chapter shews to whom Tithes are due and by whom to be paid HAving shewed in the former Chapter what Tithes are To whom Tithes are due to be paid and the several kinds thereof I shall in the next place shew to whom the same are due to be paid That there were Infeudations of Tithes before the parochial Rights were settled both in this and other Countries is without dispute both here in England and in other Christian Kingdoms and Common-wealths Seldens hist decim 178 c. Tho. Aq. Sum. 20. 2ae q. 88. art 3. concluisione in which particular the curious may satisfie themselves in Mr. Selden's History of Tithes and other Authors And it is more clear that before the time that the parochial Rights of Tithes were setled that the Owners of Lands might grant their Tithes to any Ecclesiastical or Religious persons a multitude of Precedents whereof the Reader for his satisfaction may find in the Monasticon Anglicanum of Mr. Dugdale so that by this means the whole Tithes of some Parishes and divers great portions out of other Parishes were granted to Abbots Priors c. and some to the Parsons and Rectors of other Parishes which is the reason that at this day there is several portions of Tithes held from the Parish Churches by Impropriators and the Rectors of other Parish Churches When the parochial Right of Tithes was first settled When the Parochial Right of Tithes first begun there hath been as should seem a vulgar Error for 't is frequently said in our Common Law Books that before the general Council of Lateran 10 H. 7.18 a. 43 E. 3 5⸫ Doct. Stud. l. c. 55. Co. 2. 44. b. Dyer 84 c. which was held 1179. That every one was at liberty to give his Tithes to what Spiritual Ecclesiastical or religious Person he pleased but that by that Council the parochial Right of them was settled Neither was this an Error of the Common Lawyers only for Mr. Lindwood a learned Doctor of the Civil and Canon Laws that lived in the time of H. 5. about two hundred and fifty years ago tells us that Bene potuerunt Laici decimas infeudum retinere Lind wood c. locat conduct verb. portion eas alteri Ecclesiae dare ante concilium Latarenense non tamen post c. But there is no Canon in that Council to be found whereby the parochial right of Tithes was settled nor was the parochial Right of Tithes settled till the year 1200 and then not by any Canon but by a decretal Epistle of Pope Innocent the third Selden hist Decun 231. 2 Inst 641. a Brief of which Epistle here follows as I find it in Mr. Seldens History of Tithes and in Sir Edward Cooks Institutes Pervenit ad audientiam nostram Innocent 3. Epist decret l. 2. p 457. Edit colen quod multi in Diocesi tua Decimas suas integras vel duas partes ipsarum non illis Ecclesus in quarum Parochiis babitant vel ubi praedia habent à quibus Ecclesiastica percipiunt Sacramenta persolvunt sed eas aliis pro sua distribuunt voluntate Cum igitur inconveniens esse videatur a ratione dissimile ut Ecclesiae quae Spiritualia seminant metere non debeant a suis Parochianis temporalia habere Fraternitati tuae being directed to the Archbishop of Canterbury authoritate praesentium indulgemus ut liceat tibi super hoc non obstante contradictione vel appellatione cujuslibet seu consuetudine hactenus observata quod canonicum fuerit ordinare facere quod statueris per Censuram Ecclesiasticam firmiter observari Nulli ergo c. Confirmationis c. Datum Lateran 2 Nonas Julii I must acknowledg I give the Reader this a little imperfect for want of the Original and it was Sir Edward Cooks Case also for I perceive the borrowed his from Mr. Selden But some have fancied and perhaps not without reason for this seems not to be a general Decree but a particular Instruction to the Arch-bishop of Canterbury that the parochial Right of Tithes was not generally settled of long after that is by a Canon made in the Council of Lyons which was in the year of our Lord 1274. in which Council there is a Canon for the settling the parochial Right of Tithes But whether that were the Original or a Confirmation of some other Decree or Council I dare not take upon me to judge but certain it is that about this Century the parochial Right of Tithes was settled in general But though this decretal Epistle of Pope Innocent the third be not general yet it was obligatory as to the Province of Canterbury so that in that Province the parochial Right of Tithes may take its date from the time of that decretal Epistle which was as above is said in the year 1200. But after the Parochial Right of Tithes was settled it is clear that no Lay-man was capable of Tithes in pernancy but in particular Cases till the Statutes Selden hist decim 398. and in his Review 478⸫ by which the Monasteries and religious Houses were dissolved enabled them but in some special Cases Lay-men were capable of Tithes in pernancy Co. 2.44 a. Lay-men capable of Tithes in Pernancy Co. 2.45 a⸪ as in the Case of Pigot and Heron cited in the Bishop of Winchester's Case where the Case is put that the Lord of a Mannor and all those whose Estate he had in the Mannor time out of mind had paid to the Parson of D. in which Parish the Mannor lay for the time being for the maintainance of Divine Service in contentation of all Tithes arising within the said Mannor and that in consideration thereof he and all those whose Estates he had in the said Mannor by the time aforesaid had and enjoyed all the Tithes arising in the said Mannor and in this Case it was adjudged that the Lord of the Mannor might have these Tithes in pernancy and sue for the same in the Spiritual Court but a man cannot claim Tithes generally as part of or belonging to a Mannor But since the several Statutes made for the dissolution of Monasteries Lay-men capable of Tithes in Pernancy by the Statutes of the dissolution of Abbeys those Tithes which were appropriated to the religious houses so dissolved are become Lay-Fee and any Lay-man by the Laws of this Realm are capable of them in pernancy and may sue for the same in the Spiritual Courts But since the parochial Right of Tithes was settled prima facie All Tithes belong to the Rector prima facie Portions by Prescription All Tithes not appropriated belong
c. be not present or had no notice given him to be present yet this had been a good setting forth before this Statute but it is a fair and just way to do it in the presence of the Parson Vicar c. And note this Act is warily penned in the singular number thaâ—â—he party himself his Agent or Servant may come to see the Tithes set forth but must not come with a greater number And note that the Parson Vicar Impropriator or Farmer cannot come himself and set forth the Tithes without the Licence and consent of the owner of the Corn Hay c. for if the Parson Vicar c. shall of his own head Tithe the Corn Hay c. of any Landholder within his Parish c. and carry it away he is a Trespassor and an Action will lye against him for it But a Parson Vicar c. may de communi jure after the Tithes are set forth come himself or his Servants and spread abroad dry and stack his Corn Hay c. in any convenient place or places upon the ground where the same grew till the same be sufficiently weathered and fit to be carried into the Barn c. but the Parson Vicar c. must not take a longer time for the doing thereof than what is convenient and necessary and what shall be said a convenient and necessary time the Law doth not nor can define for the quantity of Hay 1 z E. 4.6 a. Roll 1.643 x. 2. Corn c. and the weather in this case is to be considered and what shall in this and all other cases of like nature be said a reasonable and convenient time is to be determined by the Jury if the point come in issue triable by a Jury but if it come to be determined upon a demurrer or other matter of Law the Judges of the Court where the Cause depends are to resolve the same And if the Parson Vicar c. shall exceed a convenient and necessary time in the drying ordering and carrying away their Tithes Hughes Rep. 329. Styles 342. and the Parishioner shall receive dammage thereby an Action of the Case will lye against them for their negligence in this behalf But no Action will lye against the Parson Vicar c. in such a case Stiles 342. Lampen vers Woodnet P. 8. Car. 1. B.R. per Latch unless the Parishioner have duly set forth his Tithe and given notice thereof to the Parson Vicar c. And the Parson Vicar c. Halsey vers Halsey H. 6. Car. 1. B. R. Roll 1.643 â— 3. may carry his Tithes from the ground where they grew either by the Common way or any such way as the owner of the Land useth to carry away his nine parts But if the owner of the Soyl after he has duly set forth his Tithes will stop up the wayes and not suffer the Parson Vicar c. to carry away his Tithes or to spread dry and stack them upon the Land this is no good setting forth of his Tithes without fraud within the Statute of 2 E. 6. but that the Parson Vicar c. or other Owner or Farmer may have an action upon the said Statute and may recover the treble value or may have an Action of the Case for such disturbance Bulst 1.108 as I conceive or he may if he will break open the Gate fence c. which hinders him and carry away his Tithes but in that he must be cautious that he commit no Riot nor break any Gate Rails Lock Hedges more than necessarily he must for his passage And note that the Parson Vicar c. when he comes with his Carts Teams or other Carriages to carry away his Tithes must not suffer his Horses Oxen c. to eat and depasture the Grass growing in the grounds where the Tithes arise much less the Corn there growing or cut but if his Cattle as cannot be avoided do in their passage against the Will of the Drivers here and there snatch some of the Grass c. in their passage this is excusable CHAP. XV. The Fifteenth Chapter shews to what Charges the Glebe lands belonging to a Rectory the Tithes are Subject SIR Edward Coke tells us a Inst 641. What Charges Tithes and Churchlands are subject to Quod nullus pro decimis quae sunt Spirituales de aliqua reparatione pontis seu aliquibus oneribus temporalibus onerari debet That Tithes being Spiritual were not subject to temporal Charges at the Common Law And upon a doubt of Mr. P. 5. Car. 1. Justice Yelverton who was Justice of Assise in the Bishoprick of Durham as Sir Nicholas Hyde heretofore Chief Justice of the Kings Bench has reported it was resolved by all the Judges of England that Tithes are at this day chargeable with all charges imposed by any Act of Parliament wherein they are not excepted as upon the Statute of 43 Eliz. to the poor and to maimed Souldiers Kings Bench Marshalsey Bridges c. But they are not Subject to any Charges Temporal at or by the Common Law But Tithes at this day are Subject to pay first fruits or Annates First Fruits in Latine Primitiae which are the first years profits of every spiritual Benefice at a new Incumbents Entry into his Living they were antiently exacted by the Popes of Rome when they had small revenues to support the publick charge of his place And Polydore Virgil tells us Polid Virgil. De Inventione rerum l. 1. c. 2. p. 498. Caeterum nullum inventum majores Romano Pontifici cumulavit opes quà m annatum quas vocant usus qui omnino multo antiquior est quam recentiores quidam Scriptores suspicantur Et Annates more suo appellant primos fructus unius anni Sacerdotii vacantis aut dimidiam eorum partem And Polydore Virgil tells us that Pope Boniface the Ninth first introduced them though others ascribe them to John the 22th These were often complained of as a great oppression upon the Clergy as Henricus Hostiensis who lived in the time of Pope Alexander the Fourth witnesseth but however upon the abolishing of the Popes Usurpations here in England the poor Clergy were not acquit of this exaction but the same was by the Stat. of 26 H. St. 26 H. 8. c. 3. 8. settled upon the then King and his Successors The first fruits are not here in England rated at the full and utmost value of the Living they are to be paid for but according to valuation taken and made in the said 26 year of King H. 8. and now used in the first fruits Office And these first fruits are by a Statute made 1 Eliz. not to be paid all at once 1 El. cap. 4. but one quarter of them is to be paid at the end of six months from the time of the Induction Collation c. another fourth Part at the end of twelve months another fourth part at the end of
of several houses and le ts out part and holds any part himself 8. That if any Farmer or his Assigns shall farm all the houses c. so farmed to one or divers Tenants the Tenants shall pay Tithes according to the Rent reserved 9. That if dwelling houses shall be converted into Ware-houses or è converso yet they shall pay Tithe according to the Rate aforesaid 10. That if a Dye-house or Brew-house be let with the Implements then a third penny of the Tithes after the rate abovesaid to be abated 11. That where a mansion house with shops stables wharfs with Cranes Timber-yard or Gardens belonging to the same and occupied together shall afterwards be severed or were severed within 8 years before the Decree that then the Farmers of the shops stables c. shall pay Tithes according to the rate abovesaid 12. That these Tithes shall be paid quarterly at Easter Midsummer Michaelmas and Christmas 13. That any Housholder that holds a house of 10 s. Rent or above shall be acquit of his Offerings but his Wife Children and Servants shall pay 2 d. yearly for their four Offering days receiving at Easter 14. That if any house of 10 s. Rent or above shall be let by parcels under 10 s. Rent then the Owner if he live in any part of the house or the chief Tenant shall pay the Tithe after the rate as the same house was accustomably letten before such Division and the Sub-Tenants that hold less than 10 s. per annum without fraud or covin shall pay 2 d. yearly for their Offerings 15. That no Tithes shall be paid for any Gardens belonging to any Mansion house and which are held for pleasure but if such Garden contain half an Acre of ground or more and shall make any yearly profit by Sale then the same to be paid for according to the rate abovesaid 16. This Act is not to extend to the houses of Noblemen or Noblewomen whilst they are kept in their own hands and not lett for Rent and which formerly paid no Tithe so long as the same continue unletten nor to the Halls of any Craft or Companies so long as the same are unletten and in times past paid no Tithes 17. That Shedds Stables Cellars Timber-yards and Tenter-yards which were never parcell of or belonging to any dwelling House and which has not been used to pay Tithes shall be acquit of the payment of Tithes as hath been accustomed 18. But if by Custom any lesser rate have been paid than after the rate of two shillings and nine pence in the pound then the accustomed rate only to be paid 19. The Lord Major of the City of London by the advice of Councel is Authorized by the said Act to hear and determine all differences arising upon this Decree and give costs according to the intent thereof 20. That if the Major do not make an end of such differences within two Months after complaint or if any Person find himself agrieved by his Decree then the Lord Chancellor within three Months after complaint to him made shall make on end of the differences with costs c. 21. That if Rents fall by reason of decay or burning to less than they were accustomably letten that then the Tithes during such Term shall be paid according to the Rent reserved This is a short abstract of that great Decree which I have inserted here for the use of the Clergy of that City I shall only add some other resolutions upon this Decree and conclude this Chapter In a Case between Dr. Noy 130. Where Suits for Tithes in London shall be determined Meadhouse and Dr. Tayler it was resolved that Suits for Tithes upon this Decree should be before the Maior in writing and not by Parol 2. That a Reservation by a Leasor for life upon a Lease by him made for years shall not bind him in reversion to pay Tithes according to that rate 3. That a Rent for half a year and after for another half year is a yearly Rent within this Decree It hath been resolved Cro. El. 276. that Abbey Lands within the City of London and the liberties thereof are not freed from the payment of Tithes within the Statute of 31 H. 8. because the Statute and Decree for the payment of Tithes within the City and Liberties of London was made after the Statute of 31 H. 8. and their Priviledges are not reserved And it hath been resolved 2 Inst 660. that if any Suit be brought in the Ecclesiastical Court or any other Court than is directed by the Act a Prohibition lyes Lastly 2 Inst 690⸫ where the Decree says where no Rent is reserved by reason of any fine or income paid before hand that is put only for Example for if no Rent be reserved for this or any other cause or consideration it is within the meaning of this Clause CHAP. XXVI The Twenty Sixth Chapter shews in what Courts the Right of Tithes is determinable and how and in what manner to be recovered and in what Cases Prohibitions are usually granted and how prosecuted and defended THat Tithes were antiently determinable in the County and Hundred Courts 2 Inst 661⸫ Seld. hist decim 412⸫ Lamb. Saxon Laws 45. is asserted both by Sir Edward Coke and Mr. Selden And the same appears by the Laws of King Ethelstan long before the conquest and Mr. Selden is of opinion that the Bishops consistory here in England was not setled till the time of William the Conqueror who by his Charter commands Seld. 414. ut nullus Episcopus vel Archidiaconus de legibus Episcopalibus amplius in Hundredo placita teneant nec causam quae ad regimen animarum pertinet ad judicium secularium hominum adducant sed quicunque secundum leges Episcopales de quacunque causa vel culpa interpellatus fuerit ad locum quem ad hoc Episcopus elegerit nominaverit veniat ibique de causa sua respondeat non secundum Hundret sed secundum Canones Leges Episcopales rectum Deo Episcopo suo faciat And closes thus Hoc etiam defendo ut nullus Laicus homo de legibus quae ad Episcopum pertinent se intromittat yet notwithstanding as Mr. Selden observes Seld. 414. c. the Jurisdiction of Tithes was not so settled in the Bishop and Ecclesiastical Courts but there were Suits for Tithes as well in the Temporal as Ecclesiastical Courts whereof he gives some Instances And amongst the Laws of King H. Leg. H. 1. c. 11. Lamb. 182. 1. I find this Clause Si quis rectam decimam superteneat vadat praepositus Regis Episcopi terrae domini cum presbytero ingratis auferant Ecclesiae eui pertinebit reddant novam paertem relinquant ei qui decimam dari noluerit But the Law hath been now long setled that the Ecclesiastical Courts have in some cases the power to determine the right of Tithes
indicted those that sued in the Spiritual Courts for substraction of Tithes or compelled them to desist by Bonds or otherwise but that Law being now become obsolete and besides my purpose I shall proceed to the Statute of 27 H. 8. by which it is enacted That every Subject of England 27 H. 8. c. 20. Ireland Wales Callais and the Marches of the same should according to the Ecclesiastical Laws and Ordinances of the Church of England and after the laudable Vsages and Customs of the Parishes or other places where he dwells or occupies shall yield and pay his Tithes and offerings and other duties of holy Church And that for subtraction of such Tithes c. may by due process of the King 's Ecclesiastical Laws consent the Person c. so offending before his Ordinary or other competent Judg c. having Authority to hear and determine the right Tithes c. And to compel the paâ—â—â— offending to do and yield their duties in that behalf And in case the Ordinary c. for any contempt contumacy disobedience or other misdemeanour of the Party Defendant shall make information to any of the Kings most Honourable Councel or to the Justices of the Peace of the Shire where the Offender dwellâ— to assist and aid the Ordinary c. and to order and reform any such Person in any Cause before rehearsed that then be of the Kings Councel or such two Justices of the Peace whereof one to be of the Quorum to whom such information or request shall be made shall have power to attach or cause to be attached the Person or c. against whom such information shall he made and to commit the same Persons to Ward there to remain without Bail or Mainprise untill he c. shall have found sufficient Surety to be bound by Recognisance or otherwise before the Kings Counsellor or c. or any other like Counsellors or Justices c. to the use of the King to give due obedience to the Process and Proceedings Decrees and Sentences of the Ecclesiastical Court wherein such Suit c. shall depend or be And further gives power to the said Counsellor or to two Justices of the Peace whereof one to be of the Quorum to take receive and Record such Recognizance and Bonds There is a Proviso in this Act that it shall not extend to London And another Proviso that the Party sued may have all legal Defences Appeals and Prohibitions And it is to be observed that this Law extends to all sort of Tithes Observations upon this Law mixt and Personal as well as Predial Next he that will have the benefit of this Law must sue for the single value and not for the double value upon the Statute of 2 E. 6. Thirdly the Plaintiff in the Ecclesiastical Court may proceed upon this Act for contempt contumacy or misdemeanour as well before as after Sentence Fourthly The security upon this Act may as well be by Bond as Recognizance Lastly observe the wary penning of this Act they must pay their Tithes and other Church Duties according to the Ecclesiastical Laws and laudable Customs and usages of the place next if it be demanded before whom Suit upon this Statute shall be made it is answered by the Statute it self it must be before such Judg as hath Jurisdiction of the Cause so that it creates or enlarges no Jurisdiction The next Act of Parliament concerning this matter is the Statute of 32 H. 8. 32 H. 8 c. 7. by which it is enacted that all and singular persons c. shall fully truly and effectually divide set out yield or pay all and singular Tithes and Offerings according to the lawful Customs and Vsages of the Parishes and Places where c. and in case any person c. to detain or with-hold any of the said Tithes or Offerings or any part or parcel thereof that then the person lay or c. shall and may convent the person or c. before the Ordinary c. according to the Ecclesiastical Laws c. and so proceed to Sentence according to the Process and course of the Ecclesiastical Laws And that if any Party appeal against the Judges Sentence he shall then assess the Costs of his Suit therein before expended and shall compel the Appellant to pay the said costs by the compulsory Process and Censures of the said Laws taking security of the said Party to whom the said costs shall be paid to repay the same if the Appeal be adjudged against him And if any Person after sentence definitive given against him shall obstinately and wilfully refuse to pay their Tithes or the sum adjudged that then two Justices of the Peace whereof one shall be of the Quorum shall c. upon Information Certificate or complaint to them made by writing by the said Ecclesiastical Judg c. cause the party refusing to be attached and committed to the next Goal there to remain till he c. have found sufficient sureties to be bound by Recognizance or otherwise before the same Justices to the use of the King to perform the said definitive sentence Provided that no Person or c. to be sued or otherwise compelled to yield give or pay any manner of Tithes for any Mannor Lands c. which by the Laws or Statutes of this Realm are discharged or not chargeable with c. Tithes Provided that this Act shall not extend or be expounded to give any remedy cause of Action or Suit in the Courts Temperal against any Person c. which shall refuse or deny to set out his or their Tithes or which shall detain with-hold or refuse to pay his Tithes or Offerings or any parcel thereof but that in all such Cases the person or persons being Ecclesiastical or Lay Persons having cause to demand or have the said tihes or Offerings or thereby wronged or grieved shall take and have their remedy for their said Tithes and Offerings in every such Case in the Spiritual Courts according to the Ordinance in the former Part of the said Act mentioned and not otherwise any thing c. 1. Observations upon this Statute It appears by the Preamble of this Law that this Act was particularly designed for the relief of Impropriators who before this Act were not capacitated to sue in the Spiritual Courts for the subtraction of Tithes and were hard put to it to find any other relief 2. Where by the former Act the Party for Contumacy c. might be compelled to give security before Sentence in this Case of the Lay Impropriators the Party cannot be compelled to give security till after definitive Sentence 3. Upon this Law there must be two Sureties at least upon the former one sufficed 4. The security in this as the former may be by Bond or Recognizance 5. Whosoever will have the benefit of this Act must sue particularly upon this Law for the single value and not for the double value upon the
Chapter before Cap. 16. antea 2. Bounds of the Parish Co. 7.44 b⸪ Roll 2 29â— l. c. Cro. El. 228⸪ If the Bounds of a Parish come in dispute whether the place where the Tithes arise be in this or that Parish this is a matter tryable by Jury and therefore upon the suggestion of this matter a Prohibition will be granted 3. Monastery Lands discharged of Tithes Co. Ent 450. C. 453. d. Porter vers Rechester m. 6. Jac. C.B. If Lands be pretended to be discharged of Tiches by the Statute of 31 H. 8. or any other Statute a Prohibition lyes because it properly belongs to the Judges of the Common Law to expound all Statutes c. so if the suggestion be grounded upon the Stat. of 2 E. 6. for barren grounds c. 4. Roll 2.307 v. 13. Suits for things not Tithable If one sues in the spiritual Courts for the Tithes of things not Tithable by the Common Law for which see cap. 12. before or for the Tithes of great Woods above twenty years growth it is a ground for a Prohibition 5. Roll 2.286 f. 4. For matters determinable at Common Law If a Suit be brought in the Spiritual Court for the taking and carrying away of Tithes after the Tithes are set forth and divided from the nine parts by the Parishioner unless the Suit be between two Ecclesiastical Persons in their proper Rights a Prohibition lyes because 't is matter triable at Common Law 6. Cro. El. 228.642 Rolls 2.302 q. 19. 23 24. v. 16. For irregular Proceeding of the Spiritual Courts If the Spiritual Court will not admit a Legal defence as a Release an accord with satisfaction an award c. or if the Spiritual Judge refuse to admit the Defendant to traverse the Plaintiffs Title that he is not Parson Vicar c. a Prohibition will be granted but if the Defendant in the Spiritual Court alledg such matter against the Plaintiff there which is properly triable in that Court as Simony c. in such Case no Prohibition will be granted 7. Cro. El. 666. Roll 2.300 q. 6 8 9.301 q. 〈◊〉 15. 〈…〉 proof 〈◊〉 witness If the Spiritual Court shall disallow the proof of the setting forth of the Tithes by one witness Prohibitions have been granted Contra Co. 12 65⸪ Ideo quaere There are many more Cases wherein Prohibitions have been granted but these are the most frequent and may serve for a taste And indeed Prohibitions are granted in all Cases where they exceed their Jurisdiction By the Statute of 2 E. 6. It is enacted 2 E. 6. cap. 13. Must produce a Copy of the Libel that no Prohibition shall be granted in matters of Tithes in any of the Kings Courts unless the Party that requires the same bring and deliver to some of the Court where he prays such Prohibition a true Copy of the Libel subscribed by the hand of the Party and the suggestion underwritten and that if he do not prove that suggestion by two honest substantial witnesses in the same Court within six Months after the Prohibition granted and awarded then the Party delayed shall have a Consultation without delay Must prove the Suggestion within six Months and double Costs to be assessed by the Court whâ—re the Consultation is so granted to be recovered in an Action of Debt c. wherein no essoine c. shall be allowed This clause of this Statute seems to give the Parson Vicar c. Observations upon this Clause Hoskins vers Stroade T. 5. Car. 10. 988 B. R. Cockeram vers Davyes Hill 22. Jac. Pop. 159. Jones 231. Cro. Car. 308. a double remedy where the suggestion is not proved within six Months that is a consultation and secondly double costs but in both these they are in some measure frustrated in their expectations for as to the first after such consultation a new prohibition may be obtained and besides there are several cases wherein the party cannot or needs not prove his succession notwithstanding this Statute 2 Inst 662. as where the suggestion is in the negative which regularly cannot be proved secondly if the suggestion be grounded upon any matter of Law as in case the Suit be for things not Tithable great Wood things ferae naturae 2 Inst 662⸪ c. this appearing in the libel a prohibition lies and there needs no proof of the suggestion To the second here is double costs to be awarded for want of proving the suggestion and no execution given but an Action of debt to recover it which is but a bad remedy in this case when the party shall only recover the costs and have no costs allowed him in the second Suit So upon the whole matter here 's a plausible clause in an Act of Parliament and little benefit by it It is to be observed that some prohibitions are in themselves peremptory In what Case Prohibitions are Peremptory in themselves as where there is a Suit in the Spiritual Court for things not Tithable and appearing so in the Libel in which cases a consultation shall never be granted and so it is if the Suit be for carrying away Tithes after they are set forth unless it be between Clergy Men in their own rights and so it is where the matter is determinable at Common Law and the same appearing in the Libel But where a modus decimandi Where ex post facto a Custom of not Tithing a priviledg within the Statute of 31 H. 8. for Abbey Lands and in such other cases where the suggestion is grounded upon matter of fact which is doubtful to the Court those prohibitions are not peren ptory till the matter of fact be tried and found true by verdict The manner of proceeding in the obtaining How to prosecute and defend Prohibitions prosecuting and defending of prohibitions is in this manner The party that is sued in the Spiritual Court and desires a prohibition moves the Court and for the most part makes his suggestion ore tenus at Bar if the suggestion be such upon which a prohibition cannot be denied the Court usually gives rule that the party shall at a certain day come to shew cause why a prohibition should not be granted and that in the interim proceedings in the Spiritual Court should be staid upon serving this rule in due time and oath made of it if the Plaintiff in the Spiritual Court do not appear at the day and shew good cause to the contrary the prohibition is awarded and the rule made peremptory but if the Court be doubtful whether the matter be sufficient to ground a prohibition or no then or at the prayer of the Defendant the Court will order the Plaintiff to draw up his suggestion into form and then the Court will consider of the matter or the Defendant may demur to it and the matter argued by learned Counsel and then the Court as they see cause will either award
between lay Persons And it is held in the 25 H. 8. 25 H. 8. Br. Jurisdiction 95. that where the Lord of a Mannor claimed Tithes in consideration of finding a Chaplain at such a Chappel and the Parishioners claimed them likewise upon the same consideration that the right of these Tithes being between Lay Persons was triable at Common Law only And by the Statute of 32 H. 8. Stat. 32. H. 8. cap. 7. it is enacted that in all cases where any Person c. which then had or then after should have any Estate of Inheritance Free-hold c. in or to any Parsonage Vicarage Portion Pension Tithes Oblations and which then were or then after should be made Temporal or admitted to be abide and go to or in temporal hands and Lay uses and profits by the Law c. should then after fortune to be disseised deforced wronged or otherwise kept or put out from their Lawful Inheritance Estate Seisine Possession Occupation Term Right or Interest of in or to the same or c. by any other Person or c. claiming or pretending to have Interest or Title to the same that then and in every such case c. the Person c. so disseised c. the Heirs Wives c. shall and may have their remedy in the Kings Temporal Courts or other Temporal Courts as the Case shall require for the recovering c. such inheritance c. by Writs Original of quod ei deferat praecipe quod reddat Assise c. as the Case shall require c. So that since this Statute the Case is put out of all doubt that for such Tithes c. which are become Lay-fee the right Title and possession is become determinable at the Common Law and all manner of real Actions Ejectments and other personal Actions are brought of them as the Case requires daily And now having shewed in how many Courts Conclusion and how many ways Tithes may be recovered it calls to my mind the Fable of the Fox and the Cat who had but one way to shift for her self when the Hunts men came but that one proved better and more secure than all the shifts the Fox had boasted of for upon the whole matter it were much better for the Reverend Clergy if they had one ready way to recover single damages with their costs of Suits at Common Law where they might not be interrupted by Prohibitions and clashing of Jurisdictions and tost from one Court to another than all these ways I have mentioned And it is a wonder to me that there being hardly a Lord in Parliament nor many of the House of Commons that have not some part of their Estates in impropriations though they had no kindness to the Church yet for their own interest and concerns have not to that purpose preferred some Law in Parliament before this time which might be done in a few lines by giving an Action of the Case at Common Law for the subtraction of Tithes with costs or if the Parliament should think fit the smaller sort of Tithes might be determined in a Summary way by the Justices of Peace with an appeal to the Judges of Assise but this I humbly submit as I do all the rest to better Judgments I have now finished this small Tract whereby I wish the Reverend Clergy may receive as much satisfaction as I desire The conclusion of the whole or they can expect And I shall now conclude all with a List of those Monasteries the Lands of which are only capable to be discharged of the payment of Tithes by Order Bull Prescription real composition or otherwise that every Clergy man may satisfy himself without further enquiry whether such Monastery Lands as shall happen to be in his Parish c. may have the benefit of the Statute of 31 H. 8. to be freed of the payment of Tithes and in the List following I have set down the times of the foundations of the several Monasteries that being material to know for if they were founded since the first year of R. 1. they cannot prescribe in non decimando I have also for the most part set down what order the Houses were of that the Reader may satisfy himself whether they were of any of those Orders that were priviledged from the payment of Tithes for the valuations I have followed Mr. Dugdale as being a sure Author having observed many Errors in that of Mr. Speed In the perusal of this Catalogue you will find how many Foundations were made of Monasteries in the first Century after the Conquest and till the Raign of King John that if they had continued at that rate the greatest part if not all the Land in England had by this day been Monastery Land but in King John's time they begun to slack and in the ninth of H. Magna Charta 3. the Statute of Mortmain was made after which you will find but few Religious Houses as they were called founded The Cistertian order came into England about the year of our Lord 1128. and in the ensuing Table you may see how well they prospered that in so short a time there should be so many of the greater Abbies of that order The black Canons regular of St. Stows Survey of London 930⸪ Augustine first came into England as Mr. Stow says in the Year 1108. and were first placed in Trinity Church within Algate London but I rather think he is mistaken in the time for I find some Monasteries of that order before that time however the ensuing Catalogue will inform you of their increase And it is without dispute that the increase of Monasteries especially those of priviledged Orders tended very much to the prejudice of the Secular Clergy that had the Cure of Souls for beside the orders that were priviledged they appropriated all the Churches they could obtain and how ill they were served a Man may in some measure observe that peruses the Statute of 15 R. 2. and 4 H. 4. for it appears by them that they endowed no Vicarage at all upon the appropriating Churches or so meanly Endowment of Vicarages that the Vicars could not live upon them and not at all Hospitality practised And therefore the Parliament of England which has always put a stop to the usurpations and exorbitances of Rome and to prevent the Religious Houses destroying the Church in the 15. Year of the Raign of King Richard the second made a Law 15 R. 2. cap. 6. that the Diocesan of the place where any Church was to be appropriated should take care the Vicarage should be well and sufficiently endowed besides a Portion to the poor But this Act not having the effect was desired and expected the Bishops of those times being overawed by his Holinesses mandates or participating too much of his qualities a second good Act was made in the 14. Year of King H. 4 H. 4. cap. 12. 4. whereby it was enacted that
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