to speak more afterwards But in the Saxon times here were other sorts of Oblations As 1 the Cyrycsceat or First-fruits of Corn payable at S. Martin's day Ina LL. 4. 62. Edmund c. 2. and is often mentioned in Doomsday-book and in Fleta l. 2. c. 47. Malmsb. l. 2. c. 11. and the Oblation of Poultrey at Christmas is mentioned in Doomsday under that Title 2. There was here another kind of Oblation called Plow-Alms which was a Peny for every Plow between Easter and Whitsontide This is mentioned in the Laws of King Ethelred and required to be paid Fifteen days after Easter although it be called Eleemosyna Aratralis In the Endowment of the Vicarage of S. Ives Plow-Alms is mentioned besides the Altarage and Obventions But all these Oblations made a very poor Subsistence for the Parochial Clergy III. And therefore I come to the main Legal Support of the Parochial Clergy which is in Tithes Concerning which I shall proceed in this Method I. To consider the Foundation in Law which they stand upon II. The Rules of Law which are to be observed about them I. As to the Foundation they stand upon in point of Law My Lord Coke not only saith That the Parochial Right of Tithes is established by divers Acts of Parliament but he mentions the Saxon Laws before the Conquest for the Payment of Tithes of Edward and Gathrun Ethelstan Edmund Edgar Canutus and King Edward ' s confirmed by William I. Hobart saith That Tithes are things of common Right and do of Right belong to the Church And since Parishes were erected they are due to the Parson except in spiritual regular Cases or Vicar of the Parish In the Register of Writs a Book of great Authority there is a Writ of Consultation for Tithes wherein they are owned to be of common Right as well as immemorial Custom due to the Rector within the Limits of his Parish Lord Chief Justice Dyer saith That Tithes can never be extinguished because they are of common Right The same is affirmed by Justice Dodderidge in the Case of Fosse and Parker In Pieddle and Napper's Case Tithes are said to be an Ecclesiastical Inheritance collateral to the Estate in Land and of their own Nature due to an Ecclesiastical Person And That all Lands of common Right are to pay Tithes Therefore it is said by Hobart in Slade's Case That no Land can be discharged of Tithes although it may be discharged of the actual Payment In Popham's Reports we read That it is a Maxim in Law that all Persons ought to pay Tithes and all Lands shall be charged with them of common Right So that if the Judgment of some of the greatest Men of the Profession may be taken nothing can be more clear and evident than the Legal Right of Tithes But it falls out unhappily among us that nothing hath been the Occasion of so much Difference and Contention between the Incumbents and their Parishioners than the Point of the Payment of Tithes So that some have wished them changed into some other way of Maintenance but I cannot see any Reason why so ancient so legal so just a Maintenance should be changed into any other which would less answer the End and be liable to as many Difficulties if not far more but every Change of this kind where we cannot be secured of the Event is very dangerous especially when it proceeds from Want of Judgment or Ill-will to the Profession both which are to be suspected in this case If the ill Humours of some People could be changed it would signifie far more to the Quiet of the Clergy than altering their legal Maintenance Therefore the best way is to enquire into the Reasons of this Dissatisfaction that we may find out the proper Methods to remove it and thereby to prevent the troublesom and vexatious Suits about them which make the parochial Clergy so uneasie and their Labour often unsuccessful with the People And there is a twofold Dissatisfaction which lies at the bottom of most of these Contentions about Tithes 1. In Point of Conscience 2. In Point of Law 1. In Point of Conscience There is a sort of People among us who are very obstinate in this Matter and will rather chuse to go to Prison and lie there than pay their Tithes I have often thought whence such a Stiffness should arise in a matter of Legal Right If they had opposed all Determinations of Property by Law they had been more consistent with themselves but to allow the Law to determine the Right as to Nine Parts and not as to the Tenth is not to be reconciled For if the Question be concerning the other parts to whom they do belong may not Men as well dispute the matter of Dominion and Property in them May they not say that the Seed is our own and the Labour and Charges our own why then shall I answer to another for the Profit which arises from my Pains and Expence If it be replied That the Law hath given the Property of the Land to one and the Use to another why may they not pretend this to be an unreasonable Law to separate one from the other since Land was given for the Use and the Original Right of Dominion was from what was necessary for Use therefore the separating Right and Use is an Incroachment on the Natural Rights of Mankind And there seems to be more Colour for this than for any to allow the Laws to determine the Right of Nine Parts to belong to the Lord of the Soil but the Tenth by no means to go that way which the Law of the Land hath long since determined it So that the Lord of the Soil either by Descent or Purchase can claim no Right to it for neither did his Ancestors enjoy it nor those who sold the Land to a Purchaser consider it as his own for then he would have had the Value of it The Tenth Part then is set aside in Valuation of Estates as already disposed of and the Question is Whether the same Law which settled the Right to the other shall determine this likewise Is it not a part of natural Injustice to detain that which by Law belongs to another And is not the Law the Measure of Right in Cases of Difference between Man and Man Why then should not the Law fairly and equally determine this matter to whom the Tenth of the Profits belongs But still they say It is against their Conscience and they cannot do it Is it against their Conscience to do Acts of Natural Justice not to detain that from another which of Right belongs to him But it is in vain to argue with people who do not judge of things by the common light of Reason and Justice but by an unaccountable Light within them which none can judge of but themselves and in matter of Interest Men are the worst Judges in their own Case 2. Therefore
Case of Hitchcock and Hitchcock there was a Contract between the Vicar and Parishioners but it was denied to be a real Composition although confirmed by the Ordinary and affirmed not to be binding to the Successors A Composition by a meer verbal Agreement in the Case of Hawles and Bayfield was declared to be neither binding to the Party nor his Successors But in the Case of Tanner and Small it was declared to hold for Years but not for Life My Lord Coke seems to be of Opinion That if it be a Prescription it must be time out of Memory of Man but that a real Composition may be either before or within Memory of Man but then it must be by Parson Patron and Ordinary It is well observed by Sir Simon Degge in his useful Book about these matters that although real Compositions are supposed in Law to be the Foundation of Prescriptions de Modo decimandi where the Patron Ordinary and Parson did consent to them yet that the most of them have grown up by the Negligence and Carelesness of the Clergy themselves which I am afraid is too true And he is of Opinion That no real Composition can be made now to bind the Successor since the Statute 13 Eliz. c. 10. which restrains all binding Grants to One and twenty Years or Three Lives and if so then the Consent of Patron and Ordinary cannot make it good 2. It must be reasonable and therefore it hath been rejected in these Cases 1. If it be a Prescription to pay a certain Tithe without the Parson's View of the Nine Parts because saith Hobart it is against the Law of Partition in the Case of Wilson and the Bishop of Carlisle 2. If there be no Recompence to the Parson as in the Case of Scory and Barber the Prescription was founded on the Parishioners finding Straw for the Body of the Church 3. If it be for paying only what was due in lieu of other Tithes as in the Case of Ingoldsby and Iohnson that they paid their other Tithes in lieu of Tithes of dry Cattel or in Case a Load of Hay be prescribed for in lieu of Tithe-Hay or Ten Sheafs of Corn for the Tithe of all the rest 4. If it be not for something certain and durable For this saith Hobart shews an Original Weakness in the Composition being of a thing certain and durable for that which is not so IV. The last Exemption or Discharge that is pleaded as to the payment of Tithes is Unity of Possession That is where a Monastery had the Right of Tithes by Appropriation and had other Lands which did not pay Tithes because the owners were to receive them these were actually free at the time of Dissolution and the Question is Whether they are legally so by Virtue of the Statute It cannot be denied that Unity of Possession is in it self no legal Discharge but whether by the Words of the Statute the Judges were divided in Opinion But afterwards in the Case of Green and Bosekin the Judges allowed it so it were not a meer Unity of Estate but of Occupation Hobart saith That after it had been long controverted it was received as the common Opinion Coke That where Unity of Possession gives a Discharge the Title must be clear the Non-payment general and the Prescription time out of Memory but if the Appropriation were made in the time of Ed. 4. H. 6. it could not be discharged by Unity nor if it were a late Abby-prescription Thus I have endeavoured to lay this matter before you as briefly and clearly as I could from the best Light I could get that I might give you such Directions that you may neither run into needless and vexatious Suits nor be run down by frivolous Pretences It is your great Advantage that you have the Law of your side if you understand it a right but have a care of being set on by such whose Interest it is to promote Suits and I am sure it is yours to prevent them if it be possible and as much as lies in you The Church's Right is not to suffer by your Negligence and you are not to make the Church to suffer by your Contentions He that loves going to Law seldom fails of having enough of it he suffers in his Purse in his Reputation in his Interest and the Church suffers by his Means Endeavour to gain as much as may be the Love of your People by a kind modest courteous and peaceable Behaviour which is the best way to prevent or to compose Differences If you are forced to sue for your Maintenance let them see that you are forced to it and that you are always willing to put an end to all such Disputes if the Church's Right be secured which you are bound to preserve OF THE OBLIGATION To observe the Ecclesiastical CANONS AND CONSTITUTIONS AT A VISITATION October 29 th 1696. IN speaking clearly and distinctly to this Case there are these two Things to be considered I. By what Authority they do oblige II. In what Way and Manner they oblige I. The first thing to be considered is the Authority by which Ecclesiastical Canons and Constitutions do oblige For if there be not sufficient Authority there cannot be that Obligation on Conscience which supposes a legal Exercise of Power or a just Right to command Our Obedience to the Orders of our Superiours is due by Virtue of that Divine Law which requires us to be subject for Conscience-sake But our Obedience is to be regulated by the Order of Iustice i.e. it ought to be according to Law Therefore it is necessary in the first place to enquire Whether there be among us any such things as Ecclesiastical Laws i.e. such Rules which according to the Constitution of our Government we are bound to observe For we are Members of a Church established by Law and there are legal Duties incumbent on us with respect not only to the Laws of God but of the Realm For although our Office and Authority as Church-men hath a higher Original yet the Limitation of the Exercise of it is within such Bounds as are allowed and fixed by the Law of the Land It is therefore a matter of great Consequence to us to understand how far our Ecclesiastical Constitutions are grounded upon the Law of the Land which cannot be done without searching into the Foundations of our Laws Which lie in three Things 1. Immemorial Custom 2. General Practice and Allowance 3. Authority of Parliament And I shall endeavour to shew how far our Ecclesiastical Constitutions are founded on these 1. Immemorial Custom Our greatest Lawyers allow Ancient Custom to be one of the Foundations of our Laws and my Lord Coke calls it one of the main Triangles of the Laws of England I suppose he means Foundations And another saith That the Common Law of England is
are fain to borrow from the old Stock and scarce any thing worth Answering hath been said by them but hath been often said and with more Force by their Masters And the best Philosophers of this Age have given up the Cause of Atheism as indefensible so that the Being of God and Providence seems to be established by a General Consent and if any secretly be of another Mind they think it not for their Reputation to own it The main Pretence now is against Revealed Religion but without offering to shew how so great and considerable a Part of Mankind as the Christian Church hath been made up of came to be so imposed upon as to a Doctrine which advances Morality to the greatest Height and gives Mankind the most assured Hopes of a Blessed Immortality when nothing like Interest and Design as to this World could be carried on by the First and Greatest Promoters of it But we are told in a late Complaint made abroad by a Friend of our Deists wherein I am particularly concerned That we make Objections for them which are most easie to answer and pass over their most considerable Difficulties Which is a very unjust Charge and cannot be made good but by producing those Considerable Difficulties which we have taken no Notice of For my part I know of none such and we make no Objections for them however we may think it our Duty to lay open the Weakness of them when we are importuned to do it which was my Case in the Treatise I suppose he refers to If they keep their Considerable Difficulties to themselves I know not how we should be able to answer them But it is the common way in a baffled Cause still to pretend that the main Difficulties were not produced But this is not a proper Occasion to insist lonâ—er on these Matters my present Business is to answer the Objection which immediately regards the Clergy and the Summ of it is That our Profession rather hinders than confirms the Belief of Religion because they who plead for what makes for their Interest are always suspected to be swayed more by Interest than by Reason To give a full and clear Answer to this we must consider That however Mankind are apt to be swayed by Interest yet the Truth and Reason of Things do not at all depend upon them for a Thing is not true or false in it self because it makes for or against a Man and the Measures of judging Truth and Falshood are quite of another Nature and so Mens Interests come not into Consideration So that in this Case they are not to examine whose Turn is served whether such a Thing be true or false but whether there be sufficient Evidence to convince an impartial Mind of the Truth of it for let the Reasons be produced by whom they please the Grounds of Conviction are the same If a Man in a Dispute about Surveying a piece of Land which he claimed a Right to should appeal to the Elements of Geometry in his Case would the Evidence be less because he was concerned in the Land But we proceed farther Suppose it be for the Interest of Religion in a Nation for an Order of Men to be set apart on purpose to attend the Services of it and that there should be great Incouragements for their Education and a Maintenance set apart for their Subsistence afterwards that they may not live in Dependance on the Humours and uncertain Fancies of the People how can such a Constitution take off from the Credibility of that Religion which they are to support Was it any lessening to the Authority of the Law of Moses that the Tribe of Levi was so plentifully provided for by God's own Appointment They were to teach the Law to the People in the Places where they were dispersed among the several Tribes And suppose it had been then said Why should we believe what you say when you live by it You have Cities and Lands and Tithes and Oblations and Dignities among you no wonder you set up this Law as Divine and Holy but we get nothing by it but part with a Share of our Profits to maintain you What then Was the Law therefore false and Moses an Impostor These are hard Consequences but they naturally follow from such a Supposition And if such an Inference were not reasonable then neither will it appear to be so now But we do not pretend that the Parochial Settlement of our Clergy is by such a Divine Law as the Levitical Priesthood was but this we do insist upon That the Christian Religion being owned and established in the Nation there was a necessary Reason from the Nature of it and the Obligation to Preserve and Support it that there should be an Order of Men set apart for that End that they should instruct the People in it and perform the several Offices belonging to it and that a sufficient Maintenance be allowed them by the Law of the Land to support them in doing their Duties And I appeal to any Men of Sense or of common Vnderstanding whether on Supposition that our Religion is true these be not very just and reasonable Things How then can that make a Religion suspected to be false which are very reasonable supposing it to be true If it be true as most certainly it is are not they bound to maintain it to be true And can it be the less so because their Subsistence depends upon it Therefore all the Impertinent Talk of our Profession being a Trade can signifie nothing to any Men that understand the Difference between Scarron and Euclid or the way of Burlesquing and of Demonstration There is still one common Prejudice to be removed and that is That too many of those who preach up our Religion as true do not live as if they believed it to be so We are very sorry there should be any Occasion given for such a Reproach as this and we hope there are not so many Instances of it as some would have it believed Woe be to those by whom such Offences come But supposing the Instances true is there any Religion in the World considering the Follies and Infirmities of Mankind which can secure all the Professors of it from acting against the Rules of it But if such Instances are sufficiently proved there ought to be the greater Severity used in such Cases because Religion it self as well as the Honour of our Church suffers so much by them But it will still be said That these Persons are secret Infidels and believe nothing of what they profess This is another Point how far bad Lives are consistent with sound Opinions Some that think that Men act consistently will not allow that Bad Men can be any other than meer Infidels but others who consider the Prevalency of Mens Lusts and Passions over their Reasons are apt to think that they may retain their good Opinions even when they act contrary to them But then
I come to those who are capable of being argued with such I mean who are unsatisfied in the Point of Law not in general but in particular Cases from whence Suits arise and those are often from these Causes 1. Not duly considering the just Measure and Extent of the Rules of Law for the Payment of Tithes 2. Not attending to the Exemptions or Discharges by Law from the Payment of Tithes The best way I know to prevent troublesome Suits about Tithes is to enquire diligently into these two Things 1. The Rules of Law for the Payment of Tithes One might have justly expected that in a matter of common Right and daily Practice and wherein the Peace and Quiet of the People is so much concerned as well as of the Clergy the Rules of Law should have been plain and clear and liable to as few Exceptions as possible but instead of this there is not one general Rule in this matter but hath several Exceptions and different Opinions have been about them by the great Men of the Law which hath given too much occasion to the Multitudes of Suits which have been in the matter of Tithes so that the Clergy are not so much to blame if they are unavoidably involved in Suits by the Perplexity of the Law and the different Resolutions which have been made about the Cases reported by them This I shall make appear by examining some of the most general Rules of Law and comparing them with the Resolutions which have been made in particular Cases 1. One of the most standing Rules of the Law is That Tithes are only to be paid of things which do annually increase ex annuatis renovantibus simul semel But is this Rule allowed in all Cases 1. From hence Coke concludes That no Tithes are to be paid of Minerals or of what is of the Substance of the Earth and so Stone Turff Tinn Lead Coals Chalk Pots of Earth are denied to be titheable But I find 5 H. 4. n. 65. a Petition of the Commons was denied about being sued in the Ecclesiastical Courts for Tithes of Stone and Slat taken out of their Quarries The Petition was renewed 8 H. 4. and then the King's Answer was That the former Custom should continue And so about Tithes for Sea-Coals 51 E. 3. n. 57. From whence it appears that these things might be tithed by ancient Custom and that was not thought fit to be altered But 34 Eliz. it was resolved in the Kings-Bench That no Tithes are due of Quarries of Slat or Stone in the Case of Lysle and Wats Here was no Regard to Custom and a Reason is given which deserves to be considered viz. That he may have Tithes of the Grass or Corn which groweth upon the Surface of the Land where the Quarry is But how if there be none As Lands where Quarries are seldom afford Tithes But the Note on the Register saith That if Corn do grow there Tithe of it would be due however So that here we have a Rule against an ancient Custom and Rule too But it cannot be denied that Fitz-Herbert and Brook say That there is no Tithe of Quarries or Coals or such things and it was so adjudged 11 Iac. and 14 Iac. and in other Cases since And yet after all Rolls yields That a Custom in these cases is to be allowed so that the general Rule is to be understood so as there be no Custom to the contrary And as to Minerals it is determined by a late Writer That by Custom Tithes may be due of them although they do not annually increase And my Lord Coke mentions King Iohn's Grant to the Bishop of Exeter of the Tithe of his Tinn-Farm And a good Author assures us That in Places of Lead-Mines the Tithe of Lead is the chief Part of the Ministers Maintenance Therefore my Lord Coke concludes his Discourse of Tithes with this general Rule That by Custom a Parson may have Tithes of such things as are not titheable of common Right 2. From hence it is concluded That no Tithe can be due for Houses because they have no annual Increase This was solemnly debated in Dr. Grant's Case 11 Iac. and that there was no Tithe due was proved by the Counsel from the Register Fitz. H. N. B. Brook c. But it was resolved by the Court That although Houses of themselves were not titheable yet there might be a Modus decimandi on the Ground on which the Houses stood and the Houses did not take away the Right before and in most ancient Cities and Burroughs there was such a Modus for the Maintenance of their Minister I grant that there was a certain Modus decimandi upon Houses but not upon the Account of the Ground they stood upon but there was a customary Duty upon Houses in lieu of Tithes and were accounted a sort of Praedial Tithes although they were called Oblationes de Domibus as Lyndwood saith and were distinct from Personal Tithes for the Iews were bound to pay Tithes of Houses but not personal Such was the Rate on Houses in London But in Dr. Layfield's Case it was denied that there could be a Prescription of Tithes upon Houses because they are to be paid only for the Increase of things What is now become of the former Modus decimandi when a Prescription was here insisted upon and denied So that here were different Opinions a special Custom was allowed upon good Reason and here a Prescription disallowed upon such a Reason as would have overthrown the former Custom and yet the Law was the same still 3. From hence it would follow That if this Rule hold things which have not an annual Increase would not be titheable Then no Tithe of Saffron would be due whose Heads are gathered but once in three years nor of Sylva caedua under twenty years and yet this was allowed in Parliament at Sarum saith the Register notwithstanding it was not renewed every year And Rolls saith That Tithes shall be paid of Beeches Hazle Willows Holly Alder Maple even after twenty Years because they are not Timber But what if Willows be used for Timber Then Hobart saith they ought to be excepted If young Trees grow in a Nursery and be sold it is allowed that Tithes shall be paid of them and these are not renewed every year And what becomes now of this General Rule when so many Exceptions are made to it 4. If this Rule hold there can be no Tithes of After-pasture for the Rule is simul semel And my Lord Coke saith It was adjudged 8 Iac. That a Parson shall not have two Tithes of Land in one year and he instances in the Hay and After-pasture c. And yet Rolls affirms That it is due by Law unless there be a Prescription to the contrary and he saith the Iudgment was given upon
the Prescription And therefore he resolves it into a Modus decimandi But he mentions several Judgments that no Tithe is due for After-pasture where Tithe-Hay hath been paid before which must be where there was no Custom to the contrary or else he must contradict himself And so Yelverton saith in the Case of Green and Austen That of common Right Tithe-Hay discharges the Tithe of the After-pasture But Crook saith That in that case the Court went upon the Prescription and allowed it to be good How could it go upon both And Sir S. Degge is positive that if a Meadow affords two Crops the Parson shall have Tithe of both How can these things consist Or what Authority may we rely upon in such Difference of Opinions 2. Another Rule in Law is That things which are ferae Naturae are not tithable But here we are to seek what things are ferae Naturae Whether such things as may be tamed and kept under Custody and become a Man's Property are ferae Naturae Is it not Felony to steal Rabbets or Pigeons if it be they must be some Man's Property and if they be a Man's proper Goods how can they be said to be ferae Naturae For the meaning was That no Man was to pay Tithes for that which was not his own Are not Bees ferae Naturae as much as Pigeons and Rabbets But the Tithe of Bees is allowed to be paid by the Tenth of the Honey and Wax But Rolls saith That it was doubted whether a Tenth Swarm were a good Modus for the Tithe of Bees because they are ferae Naturae The Reason is because they are left wild and under no Custody but if they went into several Hives belonging to the Proprietor they might be tithable by the Hives And so for Pigeons under Custody in a Dove-house they are a Man's Property and therefore tithable As it hath been several times resolved in Courts of Law 14 Iac. in Whately and Fanbor's Case in Iones and Gastrill's Case a Prohibition was denied and Justice Dodderidge declared to whom the Court assented that Tithe was due both of young Pigeons and Conies But the prevailing Opinion hath been That if they are consumed in the House they are not tithable but if sold they are But are they not ferae Naturae as well when they are sold at Market as when they are eaten at home Why then are they tithable in one Case and not in the other If they are tithable at all they are so where-ever they are spent for in tithing the Nature of the thing is to be considered and not the Place of spending it For upon the same Reason there would be no Tithe of Corn spent at home or Pigs Calves c. and therefore I look on the Reason as of worse Consequence than the total denying the Payment For who can tell how far this Reason may be carried in other Cases But it is resolved in many Cases that though they are ferae Naturae yet by Custom they may be tithed and so for Fish Custom it seems hath the Power of reducing things ferae Naturae to the same Condition with other things But as far as I can find these things by our old Constitutions were as tithable as other things but the notion of their being ferae Naturae being started served as a Plea against them where the Custom was not continued and where it was beyond all Dispute then they said they were not tithable in themselves but only by Custom or not by Law but by Custom and yet such Customs make a part of our Law In several ancient Appropriations Fish and Pigeons and Rabbets are expresly mentioned as given together with other Tithes so that in those times both Law and Custom went together For the Lords of Manors were not wont to give Tithes which were not otherwise due 3. But what is to be done with those Lands which might afford Tithe if the Increase of Grass were suffered but the Owners feed Cattel upon it and so there can be no Tithes what Remedy doth the Law afford in this case 1. It is agreed that no Tithe is due if no other Cattel be fed but such as the Owner pays Tithe for or are imployed in plowing or any other way which is for the Benefit of the Incumbent of that Parish where they are fed For otherwise they are but as barren Cattel to him 2. That there is a certain Rate due for the Agistment of barren Cattel Iure communi and so delivered by Hales then Chief Baron according to the Value of the Land unless Custom hath determined otherwise And so for Guest-Horses c. unless the Inn-keeper had paid Tithe-Hay say some or the Custom be otherwise But none for Saddle-Horses for the Use of the Owner One of the Judges dissenting because not intended for Husbandry But for unprofitable Cattel the tenth part of the Bargain is due or according to the Value of the Land and the Owner of the Cattel is compellable to pay 3. If profitable and unprofitable be mixed so as the latter be the greater Number then Herbage must be paid for them and Tithe in kind for the profitable but if the profitable be the greater Number it is questioned whether the other are not excused but no Law or Precedent is produced for it And there seems to be no Reason if Pasturage be due for unprofitable Cattel why they should be excused because there are more profitable unless their Number be inconsiderable These things I have only briefly touched at that you may the better govern your selves in Disputes of this Nature and as you are not to lose the just Rights of the Church so neither is it for your Interest or Honour to be engaged in them where the Law will not bear you out II. The next thing necessary to be considered is the legal Discharges from the Payment of Tithes For although the Reason of the Payment of them be founded on the Law of God and the Settlement of Tithes among us hath been by ancient and unquestionable Laws of the Land yet the Recovery of Tithes when unjustly detained can be no otherwise than by the Law of the Land as it is now in force And if these do allow several Discharges and Exemptions not to be found in the ancient Laws or Practice we shall but involve our selves in fruitless-Contentions if we dispute those Limitations which the Law hath put upon the Payment of Tithes And therefore our Business is to enquire and satisfie our selves as well as we can about the Nature and Extent of these Limitations Now there are four sorts of Discharges of the Payment of Tithes allowed 1. By Appropriations to Monasteries 2. By Privileges of particular Orders 3. By Prescription and real Compositions 4. By Unity and Possession Of
these I shall discourse in order so as to clear the greatest Difficulties with respect to them 1. As to Appropriations By the Statute of Dissolution 31 H. 8. 13. the new Possessors are to enjoy their Parsonages appropriated Tithes Pensions and Portions and all other Lands belonging to them discharged and acquitted of the Payment of Tithes as freely and in as ample a manner as they were enjoyed before 32 H. 8. 7. It is Enacted That no persons shall be compelled or otherwise sued to yield give or pay any manner of Tithes for any Mannors Lands Tenements or other Hereditaments which by Laws or Statutes of this Realm are discharged or not chargeable with the payment of any such Tithes So that we must enquire into the State of Parsonages appropriated before the Dissolution and how the payment of Tithes stood then I will not deny that there were Churches appropriated to Monasteries in the Saxon times but if Mr. Selden's Doctrine hold good as to the Arbitrary Consecration of Tithes till the Twelfth Century those Churches cannot carry the Tithes along with them but only such Glebe and Oblations as belonged to them For how could the Tithes pass with the Churches if they were not then annexed to them But he confesses That the mention of Tithes with Churches in Appropriations was rare or not at all till after the Normans The Reason might be that the Separation of Tithes from the Churches was not known till the Norman times For the Norman Nobility took little notice of the Saxon Laws about Tithes but finding Tithes paid out of the Lands within their Manors they thought they did well if they gave the whole Tithes or a Portion and Share of them as they thought fit to some Monastery either abroad or at home And this I take to be the true Account of the beginning of Appropriations among us It were endless to give an Account of the Appropriations made by the Normans for the Monasticon is full of them William I. gave several Churches with their Tithes to Battle-Abbey William Rufus added more H. 1. to the Monastery of Reading several Churches in like-manner and H. 2. more Hugh Earl of Chester gave the Tithes of several Manors to the Monastery of St. Werburg in the time of William I. Of which kind the Instances are too many to be mentioned instead thereof I shall set down the State of the parochial Clergy under these Appropriations which was very mean and intended so to be being supplied by the English Clergy 1. Where the Churches and Tithes were appropriated to a Monastery the Vicar had only such a Competency as the Bishop thought fit to allow till Vicarages came to be endowed For right understanding this matter of Appropriations as it stood here in England these things are to be considered 1. That there was a parochial Right of Tithes settled in the Saxon times Which I infer from the Laws of Edgar and Canutus where the Tithes are required to be paid to the Mother-Church and if the Lord of a Manor have a Church on his own free-Free-land he may retain a third part of the Tithes for the Use of it These Laws are so plain and clear that Mr. Selden does not deny them and he confesses the first Limitation of Profits to be contained in them But what is to be understood by the Mother-Church to which the Tithes were given Mr. Selden would have it the Monastery or Mother-Church but afterwards he grants That a Parochial Right to Incumbents was hereby settled Which is the first legal Settlement of Tithes in a parochial Manner But these Laws of Edgar and Canutus were so solemnly Enacted that as Mr. Selden observes they were particularly called Leges Anglicae the old English Laws in the old Latin MSS. It is a commonly received Opinion among the Lawyers of the best Rank That before the Lateran Council there was no Parochial Settlement of Tithes here My Lord Coke found no such Decree of the Lateran Council under Alexander 3. 5 H. 2. A. D. 1179. and therefore he refers it to a Decretal of Innocent 3. As to the Lateran Council which Lyndwood mentions it plainly speaks of Feudal Tithes which a person enjoyed by the Churches Grant and such might before that Council be given to what Church the person pleased But is there no Difference between Feudal and Parochial Tithes And what Proof is there of any Ancient Infeodations of Tithes here Mr. Selden himself thinks Lyndwood applies the Custom of other Countries to his own But as to the parochial Right of Tithes among us it stands thus By the Saxon Laws the parochial was settled After the Norman Invasion these Laws were neglected and slighted by the Normans H. I. by his Charter restored them H. 1. c. 11. and the very Words of the Laws of Edgar and Canutus are repeated The Normans went on notwithstanding and so these Laws were discontinued in Practice But Hadrian 4. who was an Englishman by Birth observing the disorderly Payments of Tithes here published a Constitution to require the parochial Payment of them as is observed by P. Pithaeus a very learned and impartial Man After him Alexander 3. in a Decretal directed to the Archbishop of Canterbury and his Suffragans complains That whereas the Parishioners had formerly paid their Tithes entirely where they ought to pay them the contrary Custom had obtained and some withdrew the Tithe of Wooll Fish and Mills therefore he requires the strict Payment of them to the Churches to which they were due The latter part only is in the Canon Law but the former is added from the Ancient Copies by Pithaeus As to the Decretal of Innocent III. to which my Lord Coke refers and Mr. Selden thinks was mistaken for the Lateran Council being brought into England with it there is such an Epistle extant in the Collection of his Epistles but not put into the Canon Law and was nothing but an Inforcement of the former Laws and a declaring the contrary Custom void which had too much obtained since the Norman times But in a Decretal extant in the Canon Law De Decim c. 29. he acknowledges the parochial payment of Tithes to be due by common Right Cum perceptio Decimarum ad Paroeciales Ecclesias de Iure communi pertineat Can any thing be plainer than that the parochial Right could not depend upon his Decretal Epistle when himself confesses that they were due by common Right We do not deny that he inforced the payment which had been so grosly neglected in the Norman times and the most they would be brought to in many places was to pay only a third part to the Parish-Priest who officiated and gave the rest to Monasteries and often appropriated the whole Tithes to them either at home or abroad as will abundantly appear by the Monasticon from whence it is plain that they
's there said that all these new things as Saffron Hemp Woad Tobacco c. are to be reckoned among small Tithes unless there be some material Circumstance to the contrary But who is to be Judge of that And what Proportion changes small Tithes into greater But what if the Endowment be so expressed that only Tithes of Corn and Hay be reserved to the Parson Then Rolls thinks all the rest falls to the Vicar by Construction of Law By the Word Altarage it was resolved in the Exchequer upon a solemn Hearing 21 Eliz. and after confirmed in the Case of Wood and Greenwood not meer Oblations are to be understood but whatever Custom hath comprehended under it And I find in the Settlement of the Altarage of Cockerington by Rob. Grosthead Bishop of Lincoln not only Oblations and Obventions but the Tithes of Wooll and Lamb were comprehended under it II. The next Discharge of Tithes is by the Privileges of particular Orders allowed by our Law For it is to be observed that no Bulls of Popes make a legal Discharge but in such Cases where the Law allows them and my Lord Coke thinks it cannot be insisted upon without danger of a Praemunire For when the Cistertians had procured new Bulls to inlarge their Privileges as to their Lands in the Hands of Farmers a Law was passed against it 2 H. 4. c. 4. which was grounded on a Petition in Parliament shewing the Novelty and Mischief of it It was affirmed by our great Lawyers that the Pope's Act in dissolving the Body of the Templars which was done 5 E. 2. had no Effect here till the 17 E. 2. when the Parliament gave their Lands to the Hospitallers And that the Pope could not by his Bull dissolve a Vicarage after they were made perpetual by the Statute so that our own Law is to govern in this matter But what Orders had Exemption from Tithes by our Law At first most of the Orders of Monks had it for Lands in their own Hands This by Hadrian IV. was restrained to the Cistertians Templars and Hospitallers which is owned in the Canon Law by a Decretal of Alexander III. who declares it not to be intended for Lands let out to farm Innocent III. restrains it to such Lands as they were then in possession of but my Lord Coke makes the Grant to be from Innocent III. in the Council of Lateran 17 John but he adds That it extends only to the Lands which they had before which was all that was done then But he saith That this Privilege was allowed by the general Consent of the Realm however that were it is certain that the Lateran Council made no Restriction to the three Orders But what shall we say to the Praemonstratenses of whom he saith That they were discharged by a Bull of Innocent III. This Point was disputed in the Case of Dickenson and Greenhow It was not denied that they had obtained such a Bull but it was denied that it was ever received here On the other side it was said that their Bulls were confirmed which doth not appear nor that any Judgment was given in the Case There is a Bull extant in the Collection of Innocent's Epistles to exempt the Praemonstratenses from the Tithes of Lands in their own Hands but this was granted in the first year of Innocent III. sometime before the Lateran Council and they might enjoy the same Privileges with the Cistertians if it could be proved that they were as generally received which hath not yet been done As to the Cistertians themselves there are considerable Limitations of their Privileges 1. They must relate to Lands in their Possession before the Lateran Council A. D. 1215. 17 of King Iohn And in matters against common Right the Proof in Reason ought to be on those who pretend to particular Privilege But it 's certain the Cistertian Order hath had many Lands in England since that time and it were no hard matter to find them out But suppose they were actually discharged at the Dissolution and the Proprietaries were to enjoy them in the State they found them is not this a sufficient Discharge Yes if it be a legal Discharge for the Statute only puts them into the same legal Capacity they were in before but if they were Lands given since the Lateran Council they were not in a Capacity to be discharged by Law for it was not otherwise received 2. This Privilege doth not exclude ancient Compositions as to their Demesn Lands For these Privileges did not go down so easily but where there were Rectors able to contest it they brought even the Cistertians to Compositions And the Pope himself appointed Commissioners here to compound the matter As between the Monastery of Pipewel and Hugh Patesbul Rector of Eltyndon which ended in a Composition of six Marks per Annum for the Tithes of their Demesns And another between the Vicar of Dunchurch and the same Monastery and between the Rector of Wynswick for the Tithes of Ten Yard-Lands in Colds-Abbey All which I have perused in the Register of that Monastery MS. 3. The Privilege doth not hold where the Monasteries were under Value and came to the King by the Statute 27 H. 8. unless they were continued and came within the Statute of Dissolution 31 H. 8. And it ought to be proved that they continued separate for if their Lands were given to the greater Monasteries they did not retain the Privilege upon Dissolution But there is a much harder point concerning the Hospitallers who had the Lands of the Templers after 17 E. 2. Their Lands were not given to the King by the Statute of Dissolution 31 H. 8. but 32 H. 8. c. 24. and the Clause of Exemption was left out of the Grant Upon which a great Question hath risen Whether their Lands are exempt or not And Judgment was given against them in the Case of Cornwallis or Quarles and Spurling But in the Case of Whiston and Weston it was argued That the King had the same Privileges which the Hospitallers had But it was replied That other Lands given to the King after that Act had not those Privileges as Chanteries c. It was said that it was because they were not regular Ecclesiastical Bodies Which was a strange Answer considering what sort of Ecclesiastical Bodies the Hospitallers made when only the Grand Master and two Chaplains are bound to be Ecclesiasticks and in Foreign Judicatures they were denied to be any part of the Clergy being only an Order of Knights under some particular Regulations But suppose them capable of Appropriations of Tithes yet when the Body is dissolved the Appropriation falls of it self unless continued by Act of Parliament as those of the Templars were to them and those of the Monasteries by 31 H. 8. but where there is no Clause to continue the Appropriation it must be
Incouragement both to repair Old Churches and to build New However the Work went on slowly Augustin consecrated but two Bishops which were setled at London and Rochester where Ethelbert built and endowed two Churches for the Bishops and their Clergy to live together In the Western Parts Bicinus built several Churches about Dorchester where his See was fixed Wilfred converted the South-Saxons and settled Presbyters in the Isle of Wight but they were but two In the Kingdom of Mercia there were five Diocesses made in Theodore's time and Putta Bishop of Rochester being driven from his See he obtained from Saxulphus a Mercian Bishop a Church with a small Glebe and there he ended his Days In the Northern Parts we read of two Churches built by two Noblemen Puch and Addi upon their own Manors And the same might be done elsewhere but Bede would never have mentioned these if the thing had been common But in his Epistle to Egbert Archbishop of York a little before his Death he intimates the great Want of Presbyters and Parochial Settlements and therefore earnestly perswades him to procure more And if Egbert's Canons be genuine of which there are several Ancient MSS. the Duties of Presbyters in their several Churches are set down However the Work went not on so fast but in his Successor Eanbaldus his time the Bishops were required to find out convenient places to build Churches in and the same passed in the Southern Parts by general Consent In the Council of Cloveshoo we read of Presbyters placed up and down by the Bishops in the Manors of the Laity and in several Parts distinct from the Episcopal See and there they are exhorted to be diligent in their Duties In the times of Edgar and Canutus we read of the Mother Churches which had the Original Settlement of Tithes after they were given to the Church by several Laws and of the Churches built upon their own Lands by the Lords of Manors to which they could only apply a third Part of the Tithes But in the Laws of Canutus we find a fourfold Distinction of Churches 1. The Head Church or the Bishop's See 2. Churches of a second Rank which had Right of Sepulture and Baptism and Tithes 3. Churches that had Right of Sepulture but not frequented 4. Field-Churches or Oratories which had no Right of Burial The second sort seem to be the Original Parochial Churches which had the Endowment of Tithes and were so large that several other Churches were taken out of them by the Lords of Manors and so the Parishes came to be multiplied so much that in the Laws of Edward the Confessor c. 9. it is said That there were then Three or Four Churches where there had been but One before In this Diocess I find by an Epistle of Wulston Bishop of Worcester to Anselm that before the Conquest there were Churches in Vills or upon particular Manors that were consecrated And if William the Conqueror demolished Six and thirty Parish Churches in the Compass of the New Forest as is commonly said there must be a very great Number before the Conquest although so few are said to appear in Doomsday Book yet there are many parochial Churches of this Diocess in it above twenty in two Deanaries but the Normans almost ruined the parochial Clergy by seizing the Tithes and making Appropriations of them But in the Saxon times the Number still encreased as Lords of Manors and others were willing to erect new Churches and to have a settled Parochial Minister among them who was to take Care of the Souls of the people within such a Precinct as hath obtained the Name of a Parish But Parishes now are of a very different Extent and Value but the Obligation which the Law puts upon them is the same only where the Maintenance is greater they may have the more Assistants And from hence came the Difference among the Parochial Clergy for those whose Parishes were better endowed could maintain inferior Clerks under them who might be useful to them in the publick Service and assist them in the Administration of Sacraments And this was the true Original of those we now call Parish-Clerks but were at first intended as Clerks-Assistant to him that had the Cure and therefore he had the Nomination of them as appears by the Ecclesiastical Law both here and abroad And Lyndwood saith Every Vicar was to have enough to serve him and One Clerk or more and by the Canon-Law no Church could be founded where there was not a Maintenance for Assisting-Clerks In the Synod of Worcester under Walter Cantelupe in Henry the Third's time they are called Capellani Parochiales and the Rectors of Parishes were required to have such with them And the Canon Law doth allow a Rector to give a Title to another to receive Orders as an Assistant to him and this without any prejudice to the Patron 's Right because but One can have a Legal Title to the Cure But Lyndwood observes very well That those who gives Titles to others as their Assistants or Curates are bound to maintain them if they want These are called Vicarii Parochiales Stipendiarii but Conductitii Presbyteri who are forbidden were those who took Livings to farm without a Title But after Appropriations came in then there were another sort of Vicars called Perpetui and were endowed with a certain Portion of the Temporalities and were admitted ad Curam Animarum But such could not Personam Ecclesiae sustinere in an Action at Law about the Rights of the Church but as to their own Right they might But still there is another sort of Vicars who are Perpetual but not Endowed any otherwise than the Bishop did allow a congrua Portio and this was in Appropriations where the Bishop consented only upon those Terms as they generally were so made till the Neglect made the Statutes necessary 15 R. 2. 6. and 4 H. 4. 12. The Bishops were to make or enlarge the Allowance say the Canonists after Presentation and before Institution and were to see that it were a sufficient Subsistence But there were some Cures which had Chapels of Ease belonging to them and they who offiuated in them were called Capellani and had their Subsistence out of the Oblations and Obventions and were often Perpetual and Presentative And where the Incumbents had several Chapels of Ease and only Assistants to supply them the Canon Law doth not call them Rectores but Plebani who had a sort of peculiar Jurisdiction in lesser Matters but still they were under the Bishops Authority in Visitations and other Ecclesiastical Censures because the Care of the whole Diocess belonged to him Iure Communi and so it was taken for granted in all Parts of the Christian World And especially in this Kingdom where Parochial Episcopacy was never heard of till of late
Curates in appropriated Churches is founded on very good Reason For the Tithes were originally given for the Service of the Church and not for the Use of Monasteries And this was a hard Point for the Monks to get over since the Tithes were given for the Maintenance of the Clergy and they were none of the Clergy how they came to have a Right to the Tithes It is certain that the State of the Clergy and the Monastick State were different and the Offices of the Clergy and of the Monks were inconsistent if they held to their Rules how then came the Monks to take the Maintenance which belonged to the Clergy for other Offices as though they were originally intended for them For which there is no Colour or Pretence This Point was debated between two Great Men of their times S. Bernard and Petrus Cluniacensis The former a Cistertian Monk declared himself unsatisfied with the Monks taking the Maintenance of the parochial Clergy from them which was given on purpose to attend the Cure of Souls But said Petrus Cluniacensis do we not pray for their Souls But the Cure of Souls is another thing and by the Canons of the Church the Monks were forbidden to meddle in parochial Offices of Preaching Baptizing Visiting the Sick So that it might bear a Question in Law Whether a Monastery were capable of an Appropriation since by the Ecclesiastical Law they are not an Ecclesiastical Body and for that Reason Hobart saith a Nunnery is not and the same Reason will hold for the other The Cistertian Order was at first very scrupulous in this matter when they came hither and pretended to live only on their own Lands and disliked Appropriations as great Injuries to the Clergy and called it Sacrilege to take their Tithes away from them This was wisely done of them at first to ingratiate themselves with the Clergy and to get as good Lands as they could But after a while they abated their Zeal and then they pretended to do nothing without the Bishops Consent till at last they were as ready as any and got as large Privileges to exempt their Lands from Payment of Tithes under which the Clergy suffer to this day But to return to the Beginning of Appropriations among us After the Normans coming they stood upon no Niceties of Law or Original Grants but they took Possessions of the Tithes of their Manors and disposed them as they pleased The poor parochial Clergy were English whom they hated and cared not how poor they were the Bishops were Normans as fast as they could make them and the business of the Great Men was to incourage the Norman Monks that came over and to build and endow Monasteries for them to pray for their Souls which they minded so little themselves and this I take to be the true Account of the Beginning and Increase of Appropriations in England which at first were only permitted but are confirmed by the Law since the Statute of Dissolution II. In some Appropriations there were Vicarages endowed and here the Difficulty lies in distinguishing the Tithes which belong to one from the other Before the Statutes for Endowment of Vicarages in case of Appropriations 15 R. 2. 6. 4 H. 4. 12. there were Endowments made where the Bishops took care of it but they were generally so remiss in it that those Statutes were thought very necessary and one it◠seems was not sufficient For they eluded the former by appointing Vicars out of their own Body but the latter Statute requires That the Vicar shall be a Secular Person and made Spiritual Vicar and have such an Endowment as the Ordinary should think fit otherwise the Appropriation to be void The Scandal of the Appropriations was made so great by the Greediness of the Monks and Easiness of the Bishops that I find in the Parliament Rolls 2 H. 4. 51. a Petition of the Commons that no Appropriations should be made for the future but afterwards they came to that Temper which is expressed in the Statute 4 H. 4. And that before those Statutes there was no Necessity of the Endowment of a Vicarage is plain from the Occasion of making them and so it hath been agreed in the Courts of Law in the Case of Britton and Ward But the main Difficulty is to state the Tithes which belonged to the Vicarage and to the Appropriation because there was no certain Limitation either as to Quantity or Kind although generally the great Tithes of Corn and Hay went with the Parsonage and the small Tithes and Obventions and Altarage with the Vicarage The best Rules I can find to be satisfied in this matter are the Endowment or Prescription And where the Endowment is found yet there may be a Prescription for Tithes not mentioned because the Bishop had a Power reserved to increase the Allowance As in the Case of the Vicar of Gillingham who sued for customary Tithes not mentioned in the Endowment and he recovered them on this Presumption That the Vicarage might be augmented with those Tithes and in case of long Possession it is there said to have been often so held and ruled Sometimes there is a Difficulty in the Sense of the Words of the Endowment as in the Case of Barksdale and Smith whether Decima Garbarum in W. implied Tithe-Hay but it was resolved that although Garba seems to relate to Corn de omni Annonâ decima Garba Deo reddenda est L. Edw. Confess c. 8. at least to something bound up and so Lyndwood applies it to Faggots yet the Custom was thought sufficient to extend it to Tithe-Hay and for Tithe-Wood in Renoulds and Green's Case But the greatest Difficulty hath been about small Tithes which is the common Endowment of Vicarages In the Case of Ward and Britton one Point was Whether Lambs were small Tithes or not Noy pleaded Custom for it The Councel on the other side said That small Tithes were such as grew in Gardens but Lambs were a sort of Praedial Tithes however it was yielded that Custom might bring them under small Tithes Another Point about small Tithes was about Saffron growing in a Corn-Field in the Case of Bedingfield and Freak and it was resolved to be small Tithes But the Ground of that Resolution was questioned in the Case of Udal and Tyndal some said it was because Saffron was small Tithes where-ever it grew Others That by the Endowment the Parson had only reserved the Tithe of Corn and Hay But suppose whole Fields be planted with Woad which grows in the Nature of an Herb is this to be reckoned among small Tithes Crook seems to deliver the Sense of the Court so in the former Case but Hutton reports it that it might come to be majores Decimae and Praedial if it came to be the main Profits of the Place And the like may hold as to Hemp Hops Wooll and Lambs It
understood to be left to the natural Course of things and so the Appropriation sinks III. The third legal Exemption is from Prescription and ancient Compositions This seems a difficult Case because something less than the real Value is to be taken and the Rule in Lyndwood is non valet consuetudo ut minus quam Decima solvatur but in all such Prescriptions and Compositions there is less than the true Value To clear this matter I shall shew 1. That by our Ecclesiastical Law all Compositions are not condemned 2. That by the Common Law all Prescriptions are not allowed And if these things be made out it will follow that where the Compositions and Prescriptions are legal the Clergy may with good Conscience submit to them as they do in other matters of Law 1. As to the Ecclesiastical Law Lyndwood himself makes these Limitations 1. In case of personal Tithes He grants that as to them a Man may with a good Conscience observe the Custom although it be under the real Value Now these are founded on the same Laws that Praedial and Mixt Tithes are and by the Stat. 2 E. 6. c. 13. they are reduced to a customary Payment before Easter as it had been used Forty Years before But besides these there were Offerings to be compounded for and the Easter Duties are a kind of Composition for personal Tithes 2. In small Tithes the customary Payment is allowed The Payment in Lyndwood's time was 6 ob for Six Lambs because it was the Tenth of the Value at that time of a Lamb of a year old the Seventh Lamb was to be paid in kind for which 3 ob were to be paid back because three Lambs were wanting of the Number Ten. But can any one believe that 5 d. was the true Value then of a Lamb of a year old And Lyndwood doth not suppose it be the exact Value but it was such as the Provincial Constitution determined and he allows Compositions super minutis Decimis 3. Compositions were allowed with the Bishop's Consent with Lay-persons for their Tithes As to what is past there was no doubt but for the future he saith it doth not hold sine Iudicis auctoritate which implies that by his Consent it may And if so then a Modus decimandi so qualified is allowed by the Ecclesiastical Law Such Compositions as these were entred into the Bishop's Registries and if they were then made upon a valuable Consideration at that time I doubt the Force of Custom will get the better of the Reason that may be taken from the great Difference of Valuation of things 2. Let us now consider what Prescriptions and Compositions are not allowable at Common Law 1. No Prescription de non decimando is allowed among Lay-persons because none but spiritual Persons are by the Law capable of Tithes in their own Right A Lay-man saith Mr. Selden cannot be discharged of all Payment by meer Prescription unless he begin the Prescription in a Spiritual Person And to the same purpose our great Lawyers speak But in the famous Case of Pigot and Hern a Distinction was found out which may prove of dangerous Consequence viz. That although the Lord of a Manor cannot prescribe for Tithes because he is not capable of them by our Law yet he may prescribe for a tenth Shock as a Profit apprendre as a thing appurtenant to his Manor and so he may have decimam garbam but not Decimas garbarum Upon which Resolution it is said in the Bishop of Winchester's Case That the Lord of a Manor may have Tithes as appurtenant to his Manor For which there is no Foundation in our Ancient Laws or Customs that I can find and is inconsistent with what is before acknowledged that none but Spiritual persons are capable of Tithes But in plain Truth this Case is not truly represented and my Lord Chief Justice Hobart a person of great Judgment and Learning in the Law hath told the World That this famous Reporter hath sometimes given his own Opinion and that sudden instead of the Resolution of the Court which must take much off from the Authority of his Reports especially when the Case is differently reported by others as it falls out in this Case For Serjeant Moor who was of Councel in that Case saith That the Defendant pleaded a Modus decimandi in Satisfaction for Tithes which was 6 s. per Annum But as to the other point Whether such an Ancient Modus being made with the Lord of a Manor binds the Copy-holders it is out of our way but surely there ought to be good Proof that the Modus was made before the Copy-holds holds were granted which is not offered but only that it might be so which deserves no other Answer but that it might not be so And it is hard indeed when Judgments are given upon Possibilities And for the Distinction of decima Garba and Decimae Garbarum in a Composition for Tithes is the same thing Mr. Selden as to this Case of Pigot and Hern saith It was an Inheritance of Tithes from immemorial time by Virtue of an Ancient Composition And he would not understand the Judges in any other Sense For no kind of Infeodation of Tithes is allowable here he saith so as to create in Lay-men a perpetual Right to them except only by the Statute of Dissolution of Monasteries unless it be derived from some Ancient Grant of Discharge from the Parson Patron and Ordinary with a Consideration of Recompence to the Parson and that either from time immemorial or Ancient Composition And to the same purpose he speaks in another place where he owns that by our Law every Parson had a common Right to the Tithes of all annual Increase Praedial or Mixt within the limits of his Parish and any Title or Discharge must be specially pleaded 2. Where a Prescription is pleaded de Modo decimandi the actual Recompence by Composition must be shewed For as my Lord Coke saith a Modus decimandi is intended as a yearly Sum in way of Satisfaction for the Tithes to the Parson which Rolls calls the Actual Recompence In the Register the Account of the Modus decimandi is thus set down 1. There was a real Composition as Four Acres of Land for some small Tithes 2. There was an Agreement in Writing by the Consent of Ordinary and Patron But my Lord Coke saith the Modus may as well be for a Sum of Money as for Land Suppose no Ancient Composition in Writing can be produced how far doth a Prescription hold 1. It must be immemorial or time out of mind Here a great Point arises fit to be considered Suppose the thing it self hath been within Memory as Improvements by Hops Fruit-trees c. doth not a Composition bind in this Case I answer that we are to distinguish Personal Contracts from Real Compositions In the
and the more Ancient the more Suspicious But the Lord Chancellor and three Chief Judges declared That by the Common Law of England every Bishop in his Diocess and the Archbishops in Convocation may make Canons to bind within the Limits of their Jurisdiction 3. The subordinate Jurisdiction which was lodged in the Bodies of the Clergy resident in Cathedral Churches and of Archdeacons in the several Diocesses I cannot find either of these to have had any Jurisdiction here before the Conquest neither were there any Courts of Justice out of the several Counties before for all Causes were transacted in the County-Courts and Sheriffs Turns and Appeals lay from them to the Supreme Judicature of the King and the Lords But this doth not hinder but these Courts may be founded on the Law of England And so the original Jurisdiction which of Right belonged to the Bishop might by degrees and a gradual Consent come to be committed as to some parts to the Bodies of Cathedral Churches and to the Archdeacons who are saith my Lord Coke Sixty in England We are told in a late Case of Woodward and Fox That there are Archdeaconries in England by Prescription which have no Dependency on the Bishop but are totally exempt And for this Godolphin is cited who refers to the Gloss on the Legatine Constitutions f. 27. where we read of some Archdeacons having a customary and limited Iurisdiction separate from the Bishop for which a Prescription lies But this is only for some special Iurisdiction as the Archdeacon of Richmond for Institutions which came first by Grant from the Bishops but that not being to be produced they insist upon Custom and Prescription as the Deans and Chapters do where the Ancient Compositions are lost But none who understand the Ancient Constitution of this Church can suppose either of them to have been Original since the Right to the Jurisdiction of the Diocess was in the Bishop before there were here either Archdeacons or Chapters with Jurisdiction In the Case of Chiverton and Trudgeon it was declared That an Archdeacon might have a peculiar Jurisdiction as to Administration c. as the Dean of St. Paul's had at S. Pancras and so the Archdeacon of Cornwall as to Wills In the case of Gastril and Iones the Chief Justice declared That the Archdeacon is the Bishop's Officer and his Authority subordinate to the Bishops and granted by them but if special Custom be pleaded that must be well proved to which Dodderidge agreed But we must distinguish between Archdeaconries by Prescription for which I can find no Foundation being all derived by Grant from the Bishop and Archdeacons having some kind of Iurisdiction by Prescription which others have not which cannot be denied All the Power which the Archdeacons have by virtue of their Office is per modum scrutationis simplicis as Lyndwood speaks tanquam Vicarius Episcopi Whatever Power they have beyond this is not Iure communi but Iure speciali and depends either upon Grant or Custom which the Gloss on the Legatine Constitutions calls a limited Iurisdiction The Archdeacon's Court is declared by the Judges in Woodward ' s Case to have been time out of Mind settled as a distinct Court from which there lies an Appeal to the Bishop's Court by the Statute 24 H. 8. c. 12. And so the Archdeacon's Jurisdiction is founded on an immemorial Custom in Subordination to the Bishops As to Deans and Chapters I observe these things 1. That although Ecclesiastical Bodies in Cathedrals were very ancient yet we read not of any Jurisdiction peculiar to themselves during the Saxon times My Lord. Coke saith There were Chapters as the Bishop's Council before they had distinct possessions And by their Books he saith it appears that the Bishops parted with some of their Possessions to them and so they became Patrons of the Prebends of the Church Such were London York and Litchfield 2. That several of our Chapters were founded and endowed by the Bishops since the Conquest Such was that of Salusbury by Osmund out of his own Estate as appears by his Charter and the Confirmation of H. 2. So was that of Lincoln by Remigius who removed the See from Dorchester thither and placed there a Dean Treasurer Praecentor and Seven Archdeacons as Henry of Huntingdon saith who lived near the time And in following times those of Exeter and Wells were settled as Dean and Chapter for they were Ecclesiastical Bodies before but not under that Denomination 3. That some had the legal Rights of Dean and Chapters as to Election of Bishops and Confirmation of Leases c. but were a Monastick Body consisting of Prior and Convent Such were Canterbury Winchester Worcester after the Expulsion of the Secular Canons for the Monks not only enjoyed their Lands but were willing enough to continue the Name of Dean among them As at Canterbury after Dunstan's time Agelmothas is called Dean in Worcester Wolstan is called Dean when he was Prior and Winsius upon the first Change is said to be placed loco Decani by Florence of Worcester At Norwich Herbert the Bishop founded the Prior and Convent out of his own Possessions in the time of William II. and they became the Chapter of the Bishop by their Foundation Now as to these it is resolved in the Dean and Chapter of Norwich's Case That when the King transferred them from a Prior and Convent the Legal Rights remained the same And in Hayward and Fulcher's Case the Judges declared That an Ecclesiastical Body may surrender their Lands but they cannot dissolve their Corporation but they still remain a Chapter to the Bishop And it was not only then delivered but since insisted upon in a famous Case That it was the Resolution of the Iudges That a Surrender cannot be made by a Dean and Chapter without Consent of the Bishop because he hath an Interest in them 4. That H. 8. endowed some as Chapters to new erected Bishopricks as Chester Bristol Oxford c. 31 H. 8 9. 34 H. 8. 17. and united others as Bath and Wells and Coventry and Litchfield 33 H. 8. 30. 34 H. 8. 15. 5. That where the Custom hath so obtained there may be a Legal-Chapter without a Dean as in the Diocesses of S. David's and Landaff where there is no other Head of the Chapter but the Bishop but they must act as a distinct Body in Elections and Confirmations of Grants by the Bishops 6. That by the Ancient Custom of England there are sole Ecclesiastical Corporations as well as aggregate A sole Ecclesiastical Corporation is where a single Person represents a whole Succession and under that Capacity is impowered to Receive and to Convey an Estate to his Successors As Bishops Deans Archdeacons Parsons c. But Parsons and Vicars are seized only in Right of the Church but as to a Bishop he may have a Writ of