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A89724
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An argument in defence of the right of patrons to advousons. And incidently of the right of tythes in generall. As it was delivered to the committee for tythes, on Wednesday the 14 of September 1653 and taken exactly by one that hath skill in tachygraphy or the art of short-writing
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Nortcliffe, Counsellor.
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1653
(1653)
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Wing N1279; Thomason E713_14; ESTC R207166
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6,918
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12
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the Law and Gospel by the Concurrence of all Nacions by the Common Law by the Custom Law of the Land but they are also due by Statute-Law and the Spirituall right of them as it were waved and made Temporall by severall Acts of Parlament To begin with Magna-Charta the begining and Fountain of all our Lawes the Birth-right of the Free-born people of England the pale and bounder of the people from the Tiranny of Kings and Userpers and therfore it was always strugled by the people to be confirmed by all Kings and so it was 32 severall times This MagnaCharta being so many severall times confirmed by so many wise Parlements that my Lord Cook in his second Institutes upon this saith that all Statutes made against it are voyd and this Statute this Magna-Charta the good people of Englands Birth-right this doth establish Tythes other Statutes have been made as the 28 of Ed the First cap. 13. Statutes since the blessed Reformacion and casting off of the Popish yoak Tythes were made Temporal and Recoverable in Common Law Courts by 27 of Hen 8. the 31 32 Sta of Hen the 8. the first of Ed the 6. Ch the 2 of Ed the 6. Ch the 13. and the Statutes in the Late Parlament Thus you see how all Parliaments have been tender of Tythes nay do so much favour Tythes that they give them better Remedy then other Free-holds or Inheritances they give them Treble dammages Objection But some will say that we will pay no Tyths they are supersticious Answer It will receive this Answer that the Statutes made since Hen the 8. and the casting off the Popish yoak and all supersticious uses forfeited to the King yet these Tythes of the parson stood firm and adjudged not supersticious as appeareth in the Bish of Canterberies case and the Bish of Winchesters case in Cooks second Report I need not put you in mind of the severall Acts of the late Parliament being so fresh in your memories Others will object that Tythes are chargeable we will have them by stipends Truly I think they cannot be lesse for they are commonly but 50 100 or 200 Pounds per annum The Clergy of Holland whose Apes wee seem to be in this of Stipends allow as much nay and their Wives and Children provided for to boot but I may say that the people of England payeth no Tythes at all for Cook in his first Institutes 58 saith that all the Lands in England were the Kings Demesnes and I have seen an ancient Record that Ethelwolph the second Monarch of the Saxon Race his Father Egbert beeing the first that brought the former Heptarchy under one sole Prince conferd the Tythes of all the Kingdom upon the Church by his royall Charter or which thus Ingulph Abbot of Crowland and old Saxon writer King Ethelwolph with the consent of his Prelats and Princes which ruled in England under him in their severall Provinces did first enrich the Church of England with the Tythes of all his Lands by his Charter Royall You may see by this that they are of a Temporall constitution with the consent of his Prelats and Princes And that the Case is no more then this Iohn Astiles graunts a Rent charge out of his Land and then selleth me the Land I hope you will all say that I cannot be said to pay the Rent Charge for I considered it in my Purchase Therefore thus you see the people grumble and complain to pay Tythes and to be eased of this great Burden when as indeed they pay none at all Some will say they are Burdensom to pay them in specie we will pay them by Stipends which is more preporcionable and more easie This Objection will receive this Answer that Tythes are more easie First to the Parishoner in generall for now they pay it in specie then they will pay it in nummis numeratis and I know that the Country-man generally had rather pay twelve pence in Free-quarter or in specie then si penc in Money besides now the honest Parson living at home with him can take it at his best convenience but the Collector he is responcible to the Treasurer who expects a strict account therefore the Collector being thus a stranger must ask and have or else distrain and use violence I am sure it will not be proporcionable nor easie to the Parishioner in particular for those who are many hundreds that have a modus decimandi as having purchased Abbey Lands which by order of Cesterciens Hospitallers are free from paying of Tithes or by the Statute of the 31 of Hen. 8. of unity of Possession pay no Tithes or by real composition pay but six pence for 3 hundred pounds per annum will by an alteration of Tithing to a Stipend pay twenty pounds per annum or more thus you see these men undoubtedly injured by this alteration of Tithes into Stipends The Parson I am perswaded will not consent to the alteration of Tithes into Stipends for now he hath his Tithes at home and paid himself he can keep as much of them as will keep his house without sending to the Market the rest he may let his Neighbour have a good bargain in and so maintain a love and correspondency with his Neighbour and receive his money at home when his Neighbour can best spare him it but if he have his maintenance in Stipends and receive it of Treasurers he must often be interrupted in his Studies in making many journeys to him and many of them will prove bootless for the Treasurers will say I am busie or Money is not come in or his Betters must be paid before him with many other Delays which none but those that are acquainted with receiving Moneys of publick Treasuries can imagine Some I know have been compounded out of half their Pay because they have not Moneys to stay in Town for their Pay or because their present occasions necessitates them to it But I have been too much transported with my zeal in speaking too long of the Justice in right of Tithes I shall make you amends in speaking less of the right of Advousons and Fee-Farms issuing out of appropriated Tithes having made the Porch bigger than the House First for Advousons I shall maintain that if Tithes be taken away the Patron will lose his Right of Presenting and his Right in Tithe and that he hath as good an Estate in it as any other man hath in his other Lands and Possesrions and in this I speak but my Lord Cook 's words in his first Institutes fol. 17. b. my Lord Cook doth ground himself upon very many good Authorities in the Law as 7 Ed. 3.63 24 Ed. 3. fol. 34. H. 6.34 19 Ed. 3. Quare impedit 154. Mirrour cap. 3. Sect. 17. Dyer 83. I shall prove it also by Writ out of the Register A rescriptis valet argumentum as first the Writ of Right of Advouson when the Patron loseth by default this is a Writ
AN ARGUMENT In Defence of the Right of Patrons to Advousons And incidently of the Right of TYTHES in generall As it was delivered to the Committee for Tythes on Wednesday the 14 of September 1653 and taken exactly by one that hath skill in Tachygraphy or the Art of Short-writing LONDON Printed for Edward Blackmore at the Angell in Pauls Church-yard 1653 An ARGUMENT In Defence of the Right of Patrons to Advousons And incidently of the Right of TYTHES in generall As it was delivered to the Committee for Tythes on Wednesday the 14 of September 1653 and taken exactly by one that hath skill in Tachygraphy or the Art of Short-writing May it please you Sir I Am of Councell for two one as claiming right to an Advouson the other as being a late Purchaser of Fee-Farm Rents issuing out of Tithes appropriated and distinct from Impropriacions That of Tithes in general is a large copious field it would tire your pacience too much for me to speak as the subject matter deserveth or affordeth yet it stands so much in my way that I cannot pass it by the interposition of it causing an Eclipse to my intended Plea to Advousons and Fee-Farms if not removed I shall therefore crave leave to speak a word or two to it First I conceive that by the Law of God and Reason that a maintenance is due to the Dispensers of the Word of God for what Souldier is there in this Common-wealth that does fight without his Pay Who planteth a Vineyard and eateth not the fruit thereof or who feedeth a flock and eateth not of the milk of the flock Is not the common Labourer worthy of his hire ae fortiori then the Dispensers of the Word of God ought to have a Compensation and Maintenance for his Labour pains and sweat of his brows in holding forth the precious things of Jesus Christ I shall make a further step and hold that the maintenance of the Ministers or Dispensers of the Word of God ought to be in this in dividual and numerical way of decimal parts or Tenths or Tithings First by Vsage under the Law for the Tribe of Levy they had their 48 Cittyes with their territories round about they had their Tythes also the first born and the first fruits of every thing the Earth brought forth for the use of man Vnder the Gospell though they had not Tythes actually payd them because they were as it were in theyr mocion to the Land of Rest yet it appeares by Origen and many other ancient Authors that they were continually claymed as their due and right and this continuall claym Mr. Littleton telleth us preserveth a right nay it prevents discents que tollent entries wee may deduce and draw Tithes down from all Ages and Nacions in the Christian world and that is one Argument that Wollebius and all Divines in Christendom useth to proov the Bible divine because it is used received and beleived of all Nacions And certainly there must be digitus Dei in it that all Nacions ab origine before they heard of oneanother that they should all fix upon one way of the Ministers mayntenance by Tythings They are not only due by Vsage under the Law and the Gospel and the Concurrence and Concord of all Nacions in Christendom but I shall make a further step and proove them to be due by the Common Law of the Land and that I shall proov by the writ of waste in the Register which is the ancientest Book of the Common Law for the Book Case of 26 Ed 3 Lib. Assizes Pl. 24. proves that Originall Writs have been long before the Conquest nay time out of memory of man the beginning whereof cannot be known either by Reading or Record For if any one cut up the Parsons Trees or do any other waste he may by the Common Law of this Land have a writ of waste against him and say in his writ that such a one cut up his Trees ad exheridacionem ipsius vel Ecclesiae and both wayes are good as it is adjudged in Hen the 7 fol by his bringing of this writ it appeareth that the Parson hath not only a Free-hold but a fee-simple and good inheritance in his Tithes or gleabe for of a lesser estate then a fee-simple or fee-tayl a writ of waste will not ly therefore in my Lord Cooks fift Report fol saith that if there be Tennant for Life Remainder for life and Tennant for Life commit Wast Remainder for Life cannot bring an action of Wast the writ of Wast alwaies concludeth ab Exheridacionem ipsius and Remainder for Life hath but a Free-hold and no Inheritance so Cook in his first Institutes Fol saith that if Tennant in tayl Special make a Lease for Life and Lessee for Life commit Wast and then Tennant in tayl bringeth a writ of Wast and pending the writ he becometh Tennant in Tayl apres Possibility of Issue extinct now this Wast is dispunishable for he is now become but Tennant for Life he hath but a Free-hold he hath no Inheritance and the words of the Writ must be observed because penall ad Exheridacionem ipsius The tenth part severed from nine parts was alwayes suable at Common Law for Trespass lies if taken away Brook title Tythes Many other Authorityes I may add upon this Head but I hasten to that I first propounded of Advousons and Fee-Farmes Thirdly it is not only due by Vsage under the Law of God and Gospel and Concurrence of all Nacions and by the Common Law of the Land but it is due by the Custom law of this Nacion which is superintendent to the Common Law Mr. Littleton telleth us that Consuetudo privat Communem Legom for Custom is of that puissance and nature that it must be time out of the memory of man and therefore a Copy-hold Estate the essence and being of it is secundum consuetudinem Manerij it cannot be intayled for the Statute of Westminster the 2 de Donis of intayling Estates though in the 13 of Edward the firsts time yet it is extant of Record therefore said to be within the memory of man for Littera Scripta manet this need not be proved by the Authorityes of our Bookes for it is obvious to every mans sight and experience that some Parsons hath Tythe of Furz by Custom and others Tithe-Pigeons Vpon this a Committee-man quibbled said the Gentleman did say true in Tythe-Ale and that is the reason why Parsons have commonly such fiery Faces if sold by Custom and some Parsons have Tithe Rabbets by Custom and some Parsons have Tithe-Ale by Custom But to satisfy you for the Authorities of the Law in this point see Cook second Report fol. 44. Doctor and Student 2d cap. 5. See Cook second Institutes fol. 664 where hee sayth that a Parson by Custom may have Tythes of such things as are not Tythable of Common Right Fourthly I shall proov that Tythes are not only due by Vsage under