of geese of eggs of Crafts and manual occupations of Trade by wares merchandize c. And about all these things especially are all the Questions and cases that follow concerning this Subject CHAP. III. Of the Nature of Tithes TIthes by our Law were accounted an Ecclesiastical Inheritance and collateral to the state of the Land out of which they come which of common right are to be paid out of all Lands Meadowes and Pastures and which of their proper nature originally were due only to Ecclesiastical persons by Ecclesiastical Law and till they were severed were esteemed meerly Ecclesiastical for the substraction whereof no remedy was given by the Common Law Neither can any unity of possession extinguish or suspend them but they remain still in esse and might be demised or let to any spiritual person And if a Parson impropriate had infeoffed another of part of his Glebe or had made a Lease of it to him yet he should have had Tithe thereof still so that a man might have had Tithe against his own Feoffment for they were not claimed in respect of any ownership in the Land but ex debito by the Law of God So if a Parson purchase Land within his Rectory and after lease the Parsonage the Lessee shall have Tithe of this new purchased Land And a Lay-man by the Common Law could not have had an Inheritance descendable and grantable of Tithes as of other Temporal possessions neither will they passe by the same words in Grants as other Temporal possessions wil do And therefore if one grant a ground cum proficuis comoditatibus eidem pertinentibus the Tithes will not passe by this But now the Law is changed herein for they and other Ecclesiastical Duties especially such as came to the Crown by the Statures of 27. H. 8. 31. H. 1. 1. Ed. 6. are by those Statutes and the Statutes of 32. H. 8. and 1. 2 Phil. Mar. in the hands of Lay-men Temporal Inheritances and are of the nature of other Land it shall be accounted Assets in the hands of an Heir The wise shall be endowed of it the husband tenant by the courtesie for them real actions may be brought and they have all other incidents of Lay-Inheritances Cook 11. 14. Dyer 43. Cook 1. 3. Cook upon Litt. 5. 159. CHAP. IV. Who must pay Tithes at this day and to whom and who are capable of receiving and retaining of Tithes and by what Title and how TIthes by the Common Law are due of common right out of all things and every man at this day Alien and Denizen is bound to pay the same that cannot shew a special exemption and freedome by composition custome prescription or some Act of Parliament So the Kings have paid no Tithes sometimes for their Lands in their own hands So neither the Lord Protector not his Patentees are to pay Tithe for some of their ancient forrests-Forrests-Lands that lye in no Parish or between two Parishes this is not to pay Tithe And so the Vicar in some places doth pay no Tithe to the Parson so long as his Vicarage Land is occupied by himself Cro. Jur. 60. Cook 2. 44. Broo. Dismes 10. And it is said If a Bishop had held Land discharged of Tithe and made Feoffmeur or Lease of it that his Lessee or Feoffee shall not pay for it Cook 2. 44. And as to the persons to whom and capable of receipt of Tithe albeit by the Common Law anciently no Lay-person was capable of them save onely by way of discharge as where a Parishioner had compounded with the Vicar or Parson for his owner Tithe Yet at this day any man may have them as other Lay-Inheritances and Lay-men as they call them as well as Clergy men have them And to make Clergy men capable of them there were heretofore many things required as Examination and Allowance by the Bishop subscription to the Articles of Religion Institution and Induction into the Parsonage or Vicarage to which the Tithes belong But in these things the Lawes are changed at this day And therefore it seems such a person once capable of Tithes cannot be made uncapable Pluralitie afterwards as heretofore unless it be where he hath one Benefice of 81. a year and he take another for in this case it seems he shall lose the first But for this see the Statutes of 21. H. 8. 13. 28. H. 8. 13. Cook 4. 79. 6. 20. A Parson or Vicar may have Tithe out of his Parish by Prescription a special Prescription Or he may prescribe to have a sum of Money for Tithes within his Parish of any certain man there in lieu of Tithes And another man also may have Title to a portion of Tithes by Prescription Bro. 85. Cook 11. 19. Book of Entries N. B. f. 9. Cook 2. 45. Cook 4. 49. And a man may have his own Tithe of the Parson by agreement betweene them for the Parsons life or how they please CHAP. V. Of what things Tithe is to be paid and of what not and out of what Land and how IN general the rule is that Tithes must be paid of all things that are of profit and that arise from year to year especially of the things wherein the industry of man is helping as in all things it is more or less helping Cook 11-16 Fitz. Nat. Brev. 53. 32. H. 8. 7. And so it is to be paid for and out of all things within not without the Parish that arise grow and happen from year to year by the Act of God alone or by the Act of God and man together But more particularly All sorts of trees but Timber trees are to pay Tithe that Sect. 1. Oâ— trees and woods is their tenth of increase living or dead used or sold by the owner for the body branches bark fruit root and branches that grow out of the root And within this rule all fruit trees as Apple-trees Pear-trees Nut-trees Walnut-trees and the like are to yeild the tenth of their increase of fruit yearly and if they be cut down the tenth of the body whether sold or kept and if they be pared the tenth of their parings whether sold or kept So Tithe is to be paid of the fruit body bark and branches of all other trees not apt to Timber as willowes sallowes though they be above twenty years growth or of any age whatsoever and were never cut before So also Tithe is to bee paid of Silva caedua that is Under-woods and Coppices selled and preserved to grow again and which by good husbandry may grow again And of all these things the Parson is to have the tenth part as the owner hath and at the time when the Owner doth receive his nine parts But of the Underwoods of Coppices parings of Fruit-trees For wood cu for his own use or other trees cut only for mounds or for plow geer for hedging and fencing of the corn fields or other grounds within the
case no tithe shall be paid for this to the Parson of the Parish where the Cattel do stray but to the Parson of the other parish So if sheep stray out of one into another Parish and there cane no tithe is to be paid for this to the Parson of that place but if they go there by the space of one Month or more for this a rate Tithe must be paid to that place where they are for a month together And so in all cases where sheep go a while in one and another while in another parish Trin. 7. Jac. B. R. Broâ— Dismâ—â— 16. 3 If sheep after they be shorn dye before Easter next following it is said no Tithe shall be paid for their wooll unlesse the Parson or Vicar that claimes it can alledge a special prescription for it So no Tithes are to be paid of the pelts or fells of sheep wich dye of the rot without a special prescription for it Trin. 3. Car. B. R. Ashton's Case 4 Tithe must be paid for all the grounds within the parish Grounds let and therefore if the grounds within the parish be let or the herbage there be sold to a stranger out of the parish the Tithe must be paid to the Parson and that by the Owner of the Cattle unlesse the course there bee otherwise 5 It seems Tithe is to be paid for the Agistment that is tracking in of cattel of strangers in the parish And that Agistment or rack of cattel to be paid by the owner of the Land that took them in and not by the owner of the cattel for the Parson may not know the owner of the cattel 17 Jac. B. R. But if there be any custome against it this may prevent it and make it payable by the stranger 6 No tithe is to be paid for the herbage or feeding of Horses riding horses that the Parishoner doth use for his own riding And if a man let out his pasture Lands reserving the pasture for one horse to ride about his own affairs or for husbandary no tithe shall be paid for the pasture for this horse But if a man keep or breed a horse or horses in his pasture to sell them there a tithe shall be paid for the horses pasture H. 15. Jac. B. R. Hides Case 7 No tithe is to be paid for the grasse eaten by the Plough cattel working Oxen or Horses about Husbandry that are used in the parish about Husbandry But if the Parishioner use them to other purposes within the parish or for husbandry without the parish it may be otherwise M. 8. Jac. Ct. B. in Baxters Case 8 No tithe shall be paid for the feeding of cowes that Sect. 4. Cowes and barren cattel give milk nor for barren and dry cattel that are bred for the plough or paile whether they feed in the inclosed or in the common grounds of the parish But if a man keep cattel until they are ready for the pail or the plough and then fel them and make profit of them in this case he is to pay tithe for them for if the owner feed his ground with cattel that bring no profit to the Parson he must pay tithes for them M. 8. Jac. Co. B. Baxters Case Trin. 9. Jac. B. R. The whole Court 9 If a stranger feed a ground within the parish with his Sâ—rangers renting within the Parish cattel that do bring no profit to that Parson or Vicar he is to pay Tithe for it And therefore it seemes reasonable that though it he his own ground that is the stranger and he feed them with his owne cattel that do work in another parish that he should pay as stranger that doth rent a ground within the parish 10. No Tithe is to be paid of the Eamouth or after Eamouth or after pasture after the grass is mowed and Tithe hath been paid of it unless by covin there hath been more grasse left then is usual Nor is there any Tithe to be paid for the herbage of the cattel that eat up the same grass unless there be some Fraud in the case Pasch 17. Jac. Co. B. Adjudg M. 6. Jac. Co. B. Smiths Case 11 No tithe is to be paid for the grass or herbage of the studs or meers of ground at the Lands end and adjoining to the errable Land where the Land it selfe doth pay Tithe And so if Lands lye fallow every second or third year the Owner shall pay no tithe for the pasture of this Land nor for feeding upon the stubble albeit it bee fed with barren Cattel Pasch 7. Jac. Co. B. Adjung And yet if he keep it lay beyond the course of Husbandry in this case he is to pay Tithe again 12 No tithe is to be paid for the herbage of the ground whereon corn hath been sowen that hath paid tithe no more then for the rakings of the stubble Pasch 7. Jac. Co. B. Rankings of stubble Adjudg 13 If a man bring in a slock of Sheep to dung the Land and they come by night only and lye there no tithe is to be paid for this but if they feed there half their time they wil be tytheable For the time when and how these Tythes are to be paid and done see in Chap. 5. Sect. 1. Tythes also are to be paid of all such things as come Sect. 5. in yearly by the blessing of God and the industry of the party together And therefore Tythes must be paid of all kind of corn sowne upon the ground as wheat rye Of corn sown barly beans pease and the like to be set out after the custome of the place So also Tythe must be paid of plants herbs and seeds of Woad Saffron Flax Hemp and the like And as to this these things are to be known 1 No Tithe is to be paid for the after rakings or stubble of corn when Tythe hath been paid for the corn it self unless it be where there hath been fraud in cutting it over-long 2 No Tythe is to be paid for the course corn as Vetches Tares and the like which is eaten up by the cattel that do the Husbandry there whether it be eaten green or ripe or eaten upon the ground where it groweth or elsewhere unlesse the Parson have a special custom for it 3 If Corne be sowed where Woad was sowen or where other things grew the Tythe shall be paid of this Change of grain and in its own kind also So if Woad or other things bee sowed where Corne had been sowed the Owner of the Soile must pay his Tythe and pay it in kind of that which groweth there as he doth in the change of wheat beans barly c. 4 If the Soile of an Orchard be sowen with any kind of grain the Parson will have Tythe of it although hee have Tythe of the fruit of the trees for they are of several kinds Tythes also must be paid of the calves of Kine Lambs
of Sheep young Pigs of Sowes Colts of Mares Kids of Sect. 6. Of cattel and fowle Goats c. Also of the cheese and milk of Cowes Sheep and Goats and of the wool of Sheep and of the eggs and young of Hens Geese Ducks c. and of the honey and wax of Bees and for dry cattel and fat beasts sold and killed and according to the course of the place But for the further opening hereof these things are to bee knowne 1. If the Parishioner have but nine pigs or six calves the Parson can have no Tythe in kind that year without a special custome to warrant it as in many places there is for these things are intire and not divideable as wool is And therefore the Parson must have his Tythe prorata either in money the same year if there be any custome for it or in kind the next year and so reckon both the yeers together M 7. Jac. Co. B. And if a Parishioner have but one Cow or milk his Cow every second day so that he can make no cheese in this case the custome of the place is to be observed so that something be paid otherwise no custom in this case will bind so for calves colts and kids when they are under the number of Tythe in kind and if there be no custome in it the Parson must have the tenth whenever it comes 2. It hath been said that no tythe is to be paid for dry Dry cattel cattel bred for the plough or paile unlesse they be sold away before they be put to that use for tythe must be paid for such cattel and for fatting cattel sold or killed after the custome of the place M. 17. Jac. B. R. curia M. 2 Jac. B. R. Wâ—bs Case And though at first they were bred for the plough or pail yet after fatted and kild or sold Tythe must be paid for them M. 8. Caroli by three Justices 3 Tythe must be paid of the locks and flocks of wool after Locks of wool the wool made up if they be more then ordinary and left deceitfully otherwise not 4 Where sheep be removed from one Parish to another Rate Tithe for wool of sheep and of young cattel each Parson must have prorata but under three dayes no rate is to be paid as for example If forty sheep yeild eighty pound of wooll and these have been fed and lyen all the year in one place in this case the Parson of that place must have all the Tythe if the sheep were there but half the year then he is to have but forty pound of the wool if three months only then but twenty pound of the wool and so ratably for four or five months more or lesse And the Parson in whose Parish the sheep lay and fed but one month he shall have only the Tithe of the twelfth part of the wool and if the sheep feed all the yeer in one parish and lye in another parish the Tythe shall be divided betwixt the Parsons And if sheep come from one place and be shorne in a place where they were not before it seemes the Tythe must be paid where the sheering is unlesse it appear to bee paid to the Parson of the place from whence they came And so of the young of cattel lambs calves pigs colts and the like where the dam was removed from one place to another a rate Tythe must be paid to the Parson according to the times of their abode in the several places from the times of their engendring by the month rate Broo. Dismes 16. 5 If any have cattel tytheable feeding in any wast place not commonly knowne to be in any Parish yet the Tythe thereof is to be paid and to be paid to the Parson of the place where the owner of the cattel doth dwel 6 When the Tenth part of the milk is paid there must be no Tythe paid of the cheese which is made of the other nine parts of the milk And so where Tythe is paid for the cheese no Tithe is paid for the milk But see more of this and when and how this is to bee paid and delivered in Chap. 5. Sect. 2. Some Tythe is to be paid of Parks Warrens Pools Ponds and Dove-houses and for Conveys Pigeons and Fish Sect. 7. Of Parks warrens pools and Dove-houses And some would have Conveys in a Coniger fish in a pond or several fishing in the nature of Predial Tythes and that the tenth of the profit is to be allowed But for the opening of this take these things 1 That where the things bring in a certain profit and without much charge as coneys fish and pigeons there is great reason the Parson or Vicar should have the full Tythe Coneys Fish Pigeons of them and in these cases a division may be easily made 2 The Pigeons are a sensible loss to the Parson in the destruction of Corn and good reason then the Parson should have some profit by them 3 In some cases as where Gentlemen have turned their fields into Conigers and laid down their tillage the loss of the Parson hath been notorious and the case grievious hurtful to the Parson and Commonwealth profitable to none but the Owner of the Land these cases deserve no favour 4 We conceive the Parson will have no remedy in this case by Law and that in all these cases there is nothing to be had but what the custome or usage yeilds for Deer and Coneys being wild are not reckoned a mans own till they Ferae Naturae are catched And a man is to pay Tythe of nothing where of he hath not a property except only the personal Tythe which is a small matter When Pheasants Partriges Swans and such like wild things of profit become tame it seemes Matters of pleasure they must pay Tythe but not otherwise And for such things of pleasure as are of no profit as Hawks Hounds Apes Thrushes Poppingjayes and the like no Tythe shall be paid of these Some Tythe hath been by usage paid in the nature of Personal tythe Trades and labours personal Tythe for mens Trades and labours So Fishers Fowlers Hawkers and the like not such as fish hunt and fowle for pleasure but such as make a Trade of and get by Fishing Hunting and Fowling have paid So Carpenters Masons and all handicrafts men have paid so Merchants Mercers Drapers and all Tradesmen so men-servants and maid servants have paid some small matter in the nature of an offering as the tenth of their clear gain once a year to the Parson and this to be paid still according to the custome of the place And for any other things or for things tytheable out of any Land which by the Lawes by any Priviledg Prescription or composition ought to be discharged no Tythe is to be paid See more of this and how these Tythes shal be paid chap. 5. Sect. 3. CHAP. VI. When where and how Tythes payable
follow A man may be discharged of payment of Tythe by a custom or prescription Wherein these things are to be known 1 Custom and Prescription do differ but little custom By custome or prescription And what is good or not goes to a place or Country and prescription to a person 2 A custom applyed to a Country to pay no tythe in some cases as the custom for the Wild being forty Parishes in Sussex to pay no tythe is good But generally such a custome is not good and a Prescription to pay no tythe nor any thing in lieu of it is not good nor wil it discharge though nothing can be proved to be paid within the time of memory D. St. 171. 167. Broo. Prescrip 92. Cook 2. 44. And yet one may shew a discharge of his Land another way which wil amount to the payment of no Tythe nor nothing for it 3 But any man may prescribe de modo decimandi i. e. to pay money or other thing in lieu of the Tythe in kind for a Manor Farm or piece of Land and if he can prove this time out of mind this will discharge him Cook 1. 44. 45. And therefore a Prescription to pay 4 d or any other sum of money for all his Tythe whatsoever or all his tythe hay or all his tythe corn in such a Farm or such a Close is good If one prescribe that he is to put the corn of the ground in hillocks or cocks c. and that for this the Parson is to have no tythe corn every second year or is to have no Tythe in some part of the ground this is good So if he prescribe to pay the tenth fleece of wool and for this to be discharged of the tythe of the locks this is a good Prescription 36 37. Eliz. Co. B. Jesops Case But if one prescribe that because he doth pay tythe hay he is to pay no tythe corn or because he payeth tythe corn he is to pay no tythe of his cattel this is not good Smiths Case Hill 8. Jac. B. R. So if one prescribe to be discharged of Tythes in one place because he payeth Tythes in another place or to be discharged of Tythes of Lambs because he payeth tithe of wool or to be discharged of tithes of other cattel because he payeth 12 d for a Cow these are not good Prescriptions Fleetwoods Case 7 Jac. Co. B If a custom be alledged That the Parson shal have but the tenth sheaf of wheat for the tithe of all manner of corn and grain this is not a good custome Mich. 11. Jac. Co. B. Jacks Case 38 Eliz. Co. B. Adjudg So a custome was alledged That the Owners of a Farm had been used time out of mind to take back 30 sheass of their Tythe corn again after it was set out to their own use This was disallowed 4 A Prescription to pay a shoulder of a Buck or Doe when they are killed in lieu of all the Tythe of a Park is good and will discharge the Park 3. 7 37 Eliz. Shipdams Case And although after the Park be discharged and converted into tillage or hop ground yet it is held that the Parson shall not have Tythes in kind but the discharge shall continue M. 5. Jac. Co. B. Adjudg M. 11. Jac. Co. B. Cowpers Case 5 A Prescription to pay a less part then the tenth part Sect. 2. may be good and binding 6 A Prescription that if one have less then seven Lambs he shal pay but 1 d a piece sor them is good Curia 7. Jac. B. R. Patches Case 7 A Prescription to be discharged of Tithes for every house in London in lieu of 12 d of the rent made of the house is good Cook 11. 16. And so for any other thing that may be conceived to have a reasonable Commencement the Law will admit it 8 One may prescribe That he and all those whose estates he hath in the Manor of Dale in Dale time out of mind have paid to the Parson of Dale for the time being a certain Persion yearly for the maintenance of Divine Service there in satisfaction of all the Tithes arising and growing within the Manor of Dale and prescribes further That he and all those whose Estates he hath in the said Manor time out of mind have been used in regard of the said pension so paid to the Parson to have all the Tythes happening and arising within the said Manor or any part of it viz. of all the Lands held of the said Manor or any parcel of it this is a good Prescription and may have a reasonable beginning thus That the Lord was seized of all the Manor before the Tenancies derived out of it and by some good Composition or Grant between him the Parson Patron and Ordinary it was granted to him in lieu of this money which must be intended because time out of mind it hath been so paid Cook 7 45. But without some special matter alledged a Lord cannot prescribe after this manner in him and all those c. generally 9 Also a Parishioner may be discharged of Tythe by an agreement with the Parson if he be a Spiritual Person he may discharge it for his life if he be an Impropriator he may discharge it for all the time he hath the Parsonage But a spiritual Person cannot by his agreement bind his successors And payment of a sum of money in lieu and recompence of tythes for sixty yeers or thereabouts is held a reasonable time to make a Prescription Cook upon Litt. 14. Crompt Jur. 77 Dyer 7. 9. Tythe may be discharged by the alteration of the place or Sect. 3 By an alteration of the place or thing out of which the tithe doth come or by other alteration Whether gone or not thing out of which the tythe is to come For the opening of which take these things 1 If one prescribe to be discharged of payment of tythe hay for such a ground or the tythe corn of such a ground and the owner change the nature of the ground the pasture into tillage or tillage into pasture in these cases the Prescription is gone Hill 7. Jac. B. R. Shipton's Case adjudg But if the Prescription be general 4 d for all manner of tithe arising in such a ground there the alteration will not hurt the prescription So it is if one prescribe to pay the shoulder of every Buck and Deer of his Park for all manner of Tithe of the Park and the whole Park be after disparked and sowne to corn it is said the Prescription is gone and that Tythes must now be paid in kind but if any part of it remain a Park and the rest only be sowed it is otherwise 36 37 Eliz. Shipdams Park in Norfolk So it is said if all the Parks be suffered to fall down which is a disparking in Law of the Park yet the same doth not destroy the manner of tithing for the same may be a
Parish or for fuel for the maintenance of the plow or paile no Tithe is to be paid for it although the Vicar have the Tithe wood and the Parson the Tithe of the places inclosed Nor is Tithe to be paid of Underwoods which are digged up by the roots Nor as it seems for the wood of Coppices or trees that a man doth cut or spend in his own house-keeping though he spend much by Hobbard Chief Justice But if the Parson can alledge a special custome for it he may have Tithe for this also M. 4. Jac. B. R. But for Timber Trees such as are Oak Ash and Elme which are esteemed Timber after they are twenty years old Timber in all Countries and beech horse-beech hornbeam maple aspe and hasel any of which may be and are esteemed Timber in some Countries as the usage of the Countrey or the plenty or scarcity of other Timber there is for these either living or dead for their bodies branches bark roots or germines that grow out of them no Tithe is to be paid at all in any case but Tithe is to be paid for all this Timber wood if it be cut within twenty years after the first planting of it For the opening whereof in relation to wood and trees further these things are to be known 1. If the Parson have Tithe of the fruit of a tree and the same year the owner doth fell the tree and make it into billets or fagots in this case the Parson shall not have tithe for the tree for it is a rule that he must not have tithe of one thing twice in one year 2 Beech in a Country where there is abundance of it is not to be accounted Timber nor to be tithe-free 16. Jac. Co. B. Pinders Case 3. Cherry Trees in Buckingham shire have been adjudged timber and tithe-free Pasch 17. Jac. B. R. 4. If a man lop a tree under twenty years growth and after suffer the body to grow past twenty years growth and then lop it again in this case no Tithe shall be paid for it though it were not tithe-free at the first cutting Co. B. by the whole Court Brown 1. part 33. 5 If wood be cut to make hedges which is not Tithable and there be a little remaining or left of it no Tithe shall be paid for this remnant 6 If wood be cut down and imployed for Hop-poles where the Parson or Vicar hath Tithe Hops in this case he shall not have Tithe of the Hop-poles 7. If a great Wood doth consist for the most part of Underwood which is titheable and some great trees of Beeches or other wood grow scattering amongst them in this case Tithe may be paid and must be unlesse the usage be other wise of all both great and smal together And so if a Wood do consist for the most part of timber trees and there is some small parcel of Underwood or bushes growing in the same Wood no Tithe shall be paid for this underwood or bushes Trin. 19. Jac. B. R. Adjudg 16 Jac. in C. B. Leonards Case 8 No tithe is to be paid of Common of Estovers the wood that he burns in his house See for all these matters within this point of trees and wood Cook Rep. 11. 48 49. 81. Plow 470. Brownlows Rep. 1 Part 94. 2 Part 150. D St. 169 Where and how this is to be paid and delivered see more in Chap. 5. Sect. 1. No Tithes are to be paid of Mines or Quarries of iron brass tin lead coals stone tile brick lime gravel Sect. 2. Of Mines and Quarries marle chalk and the like which a man doth find and make in his own Land for they are parcel of the inheritance and the Parson or Vicar hath tithe of the grasse and corn upon the ground and it is a rule the Land must not pay a double Tithe and besides it is not a yearly profit Register 51. Fitz. Nat. Brev. 53. 9 Broo. Dismes 18. No Tithes regularly are to be paid for houses of habitation Of Houses nor of any rent reserved upon any demise of them for tithes are to be paid of things that renew yearly by the Act of God But by a special custome or by an Act of Parliament as in London where the Parsons have 2 s. 9 d. out of every pound rent in lieu of Tithe there it is good enough Cook 11. 16. Fitz. Nat. Brov. 53. 37 Hen. 8. Ch. 12. If any barren heath or waste ground that is barren Of barren heath and wast ground in his own Nature and that cannot be fitted for hushandry without an extraordinary charge although it may pay tithe of wool or Lamb or other things or the tithe that it formerly paid yet it shall pay no tithe of corn for seven yeers after they have by their Husbandry improved it and made it fit for tillage But if a wood be grubbed up and made fit to plough this must pay tithe presently So if it become barren by a sudden accident of inundation or the like or by being overgrowne with bushes or the like and it be reduced this must pay Tithe presently M. 11. Jac. C. B. Sharringtons Case Dyer 170. 2 Ed. 6. Ch. 13. Tithes are to be paid for all new Corn-mills be they Of Mils wind or water Mils and for Fulling Paper or Apple-mils that are common and publick mils and whether they be driven by wind or water some tithe or other is to be paid for them But for an old corn mill that no tithe was ever paid for no Tithe is to be paid exept personal tithe as for a trade of profit and so it will be for the other Mils But see how it is to be paid Chap. 5. Sect. 1. Tithes are to be paid of turves that grow in sennish and Of Turves moorish grounds when they are used for firing Tithes shall be paid of heath furrs and broom unless the Of heath furs and broom ownâ—r can prescribe or make good a special custome of payment of milk and calves c. of the cattel kept upon the ground M. 29 El. B. R Adjudge Tithe is to be paid of the grasse growing on the ground Sect. 3. Of grass cut or eaten whether it be cut for hay or eat by cattle to be set out according to the custome of the place And as to this kind of Tithe these things are to be known 1 A rate Tithe is to be paid according to the custome of the place for the feeding of Sheep and all other cattel save only Oxen that labour and the young cattel that are bred for Oxen or Cowes as for horses and Cattel that are fatted for tithe must be paid for these for the pasture and profit of the cattel whether they go on the Common or elsewhere 2 If two Parishes together have Common because of Rate Tythe vicinage and the cattel of the one side do stray to the other side and there a bide in this
Park again But some doubt of this And a difference hath been taken where a Prescription runs to so many Acres of Land certain for in that case the modus continueth and where to the Park in the name of a Park in which case it is gone if it be disparked Pasch 19. Jac. Co. B. Pools Case and in Brownl Rep. 1 Part Pasch 10. Jac. Co. B. 35. It is doubted whether the Tythes be not gone in both cases and held That if a man can prescribe for so many bucks that this Park is discharged and if it be disparked that the prescription is not gone 2 And if two Fulling mils be under one roof and a rate Tythe be paid for the mils which is a kind of prescription and after the mils are altered and made into one corn-mill in this case the prescription is gone and tythe shall now be paid in kind So if there be but one pair of stones in the mill and after there is another pair of stones put in the mill now tythe must be paid in kind and the manner of tithing is gone Brownl Rep. 1. Part. Pasch 10. Jac. 31. 3 If I have the Tythe of the hay of a close or all manner of tythe there and the owner of the ground turn it from Meadow to tillage or to hops or the like or turne it from tillage to pasture the tithe is not gone but shall bee paid in kind as it falleth So if one turne wood ground into meadow or tillage the owner shall pay Tythe in kind and tythe is not lost hereby only if it fall out to be within the case of barren heath he shall pay for seven years no more then was paid formerly for it See it before Pasch 18. Jac. B. R. Court in Baxters Case 4 If one be to pay a sum of money for the Tythe of a piece of ground and the ground be after turned to houses and gardens in this case the manner of tithing doth continue Cook 11. 16. 5 If one turn his pasture into a Coniger and make coney-borrowes in it the Tythe will not be gone But I conceive it doth continue as it did for the manner of Tithing as before and no new manner of Tithing See before Tithe of Coneys M. 13. Car. B. R. 6 If the Vicar keep the Glebe in his own hands it is said That so long he is to pay no Tythe to the Parson impropriate But if he lease it to another then the Lessee must pay tithe to him and if he sow the Land that he must pay tithe as other men Brownl Rep. 69. 7 If a Parson impropriate keep his Glebe in his owne Suspension hands he cannot pay tithe to himself But if he sell or let it to another he shall pay lithe as other men And if a Parson purchase Land within his Rectory no Tythe is to be payed for this whiles it is in his own hands But if he after leasethe Parsonage his Lessee shall have tythe of this new purchased Land And if he make a Feoffment or Lease of the purchased Land his Feoffee or Lessee must pay tithe again Cook upon Litt. 139. 11 14. Broo. Dismes 17. Dyer 43 And if one purchase a Parsonage and a Manor in the parish discharged of Tythes and then lease part of the demeshes of the Manor it is said the Lessor shall have tythe of this part Breo Dismes 17. Sed quare of this 8 If Land lye in a Forest in any parish and is tythe free and the Forrest be disforrested now it shall pay Tythe in kind Crompt Jur. 52. Lord Ch. Baron at Sarum Assizes The alteration of payment as if in stead of the mony to be paid another sum or Tythes in kind have been paid for twenty years past will not destroy the Prescription Cook upon Lit. 14. Dyer 7. Lands may be discharged from paiment of tythes by a unity Sect. 4. By Act of Parliament and unity of possession together Whether gone or not of possession of the Parsonage and Lands which did pay Tithes by an Appropriation or otherwise in the hands of Religious and Ecclesiastical persons as they were called So that now at this day by the Statute of 31. H. 8. 13. Such a unity in the said Religious houses and persons will be a discharge to all Patentees from the payment of Tythes of Lands that came to the Crown by the same Statute But then this unity in the said Religious persons must have been Justa obtained by Right for if either the Parsonage Vicarage Tythes or Lands had come or been united to their houses by disseisins or other tortious and unlawful Acts this had not been a good discharge within the Statute 2 It must have been aequalis there must have been a Fee-simple both in the Lands out of which the Tithes were to be paid and in the Parsonage or Vicarage in them for if the Abbots Pryors or other Religious persons had held but by Lease that had not been such a unity as the Statute intended 3 It must have been libera free from the payment of any Tythes for if their Farmers or Tenants at Wil or years had paid tythes that had not been a sufficient unity to have discharged the Land 4 And lastly It must have been perpetua time out of mind And then for the infinite impossibility and impossible infinitenesse that such Immunities and discharges that such religious persons and houses had before time of memory could not be knowne such a unity had been a good discharge of the Lands in their own hands And if the Monastery were built in the time of memory or appropriated within the time of memory and tythe were paid before this it will not serve turn to discharge it And at this day such an unity is a good discharge for the Kings Patentees with the Statute of 31. H. 8. But such Lands as came to theCrowne by the Statute of 27 H. 8. of Dissolution must at this day pay Tythes although the Lands in the hands of such Religious persons or houses were discharged from the payment of Tythes for the priviledges being personal priviledges were extinguised by the Statute of Dissolution and there are no words in that Statute to save them Sta. 31 H. 8. 13. 7. H. 4. 6. 32. H. 8. 7. Cook 11. 14. 2. 42. Dyer 278 349. 277. CHAP. X. Of other Profits which the Parson and Vicar doth claim THere are some other smal profits which Parsons and Vicars claime as belonging to their Parsonages and Vicarages beside Tythe and money in lieu of Tythe as Mortuaries Oblations Obventions c. And as to Mortuaries Mortuaries these things are to be knowne 1 That no Mortuary is to be paid but where it hath been used to be paid 2. There shall be but one Mortuary paid and no more 3. No person that doth keep house must pay them 4 No woman that hath a husband shal pay them 5 No children must pay them 6 Where they are to be paid they must be paid after this proportion viz. he that dyeth having goods under Ten Marks shall pay nothing for Goods above that value and under Thirty pound but three shillings foure pence for Goods above Thirty pound and under Forty pound six shillings eight pence for goods above Forty pound how much ever it bee but Ten shillings 7 All this account must be made only out of the Goods remaining after debts paid 8. The Parson of the place where the party dwells no of the place where he dyeth must have it Stat. 21. Hen. 8. 6. 26. Hen. 8. 15. There is no more to be said for Obventions Oblations Oblations Obventions and Ofterings and Offerings which seem to be all one but that they by the Law now in force are to bee paid as formerly they have been Stat. 32. H. 8. 7. 27 H. 8 20. 2 3 Ed. 6. 13. Cook 11. 16. FINIS
THE PARSONS GUIDE OR THE LAW OF TITHES Wherein is shewed Who must pay Tythes and to whom and of what things When and How they must be paid and how they may be recovered at this day and how a man may be discharged of payment thereof By W. S. Esq London Printed for W. Lee D. Pakeman and G. Bedell at their Shops in Fleet-street 1654. THE REASONS Of publishing this BOOK HAving made this little Treatise of Tythes at the first for mine own private use it came into my thoughts how much strife there is every where about the payment of Tythes and other Duties whereto and wherein the Parson or Vicar by the present Lawes of this Nation hath as good right and property as any man hath to the rest parts of the profits of his Estate And that this strife may arise much from the ignorance of the Law in this matter there being as yet no cleer and full advice herein and hoping that when men know what the Law is herein the one will not demand more nor the other offer lesse then what the Law sets down to be due much of this trouble may be prevented and some peace procured For this cause I say I have put the same in Print And now if any man shall say Why at this time when there is so much talk of taking away Tythes I answer him That we have had much talk of taking away many things a long time which are not as yet taken away nor perhaps ever will be And I suppose the talk of taking away Tithes is only the Tythes in the hands of Ministers and in relation to their Maintenance and not the Tythes in the hands of other men And as to these I wish they were taken away so that first of all a more convenient way of Maintenance in stead thereof be provided for the Minister but this I suppose will ask time and till that time and after that time for the help of other persons I have taken the pains to write this little Tract which as it doth neither justifie nor condemn Tythes so it will neither further nor hinder the continuance of them and which may do some good but certainly can do no hurt at all The TABLE CVsteme Chap. 9. Sect. 1 Discharge of Tythes Chap. 9. Glebe Chap. 1 Mortuary Chap. 1 and 10 Oblations ibid Obventions ibid. Parson Chap. 1 Plurality Chap. 4 Prescription Chap. 4. and Chap. 9. Sect. 1 Tythes The kinds thereof Chap. 2 The rature of them Chap. 3 Who must pay Tythe and who must receive them Chap. 4 Of what things they are to be paid Chap. 5 How when and where they must be paid Chap. 6 Who must pay them and to whom they must be paid Chap. 7 How they may be recovered Chap. 8 How they may be discharged Chap. 9 Vicar Chap 1 THE PARSONS GUIDE CHAP. I. Of a Parson and Vicar his Parsonage or Vicarage and the profits belonging to them THE Parson at first was hee that had the charge of a Parish Church and was called the Rector of a Church but he is most properly so called that hath a Parsonage where there is a Vicarage endowed The Vicarage is a certain portion of the Parsonage allowed to the Vicar for his Maintenance And this portion in some places is a sum of money certain In other places it is a part of the Tithes in kind and commonly the smaller Tithes but in some few places the Vicar hath part of the great Tithes also and he that hath the right to and possession of this is called the Vicar and he that hath the other part is called the Parson who in some Parishes is the Minister of the place one they call a Clergy man or Minister and in other places he is a Lay-man where it is an Impropriation The profits and fruits of a Parsonage or Vicarage belonging to the Parson or Vicar are his Glebe Land if there be any Oblations Obventions Offerings and Tithes The Glebe is that portion of Land Meadow or Pasture that is belonging to and parcel of the Parsonage or Vicarage over and above the Tithes Oblations Obventions and Offerings seem to be but one thing and that which was called meerly Spiritual The Oblations were said to be such things real or personal as were offered to God and his Church by Testament or otherwise And Obventions did include Oblations and other things now unknowne and lost amongst us And of this nature it seems the Mortuary is And the other profits are the Tithes CHAP. II. Of Tithes and their kinds TIthes are a certain part of the fruit or lawful increase of the earth beasts or mens labours which in most What they are places and of most things is the tenth part and hath been by the Law given to the Ministers of the Gospel in recompence of their labour in the execution of their Office There are three sorts of Tithes Some of them are Predial Their kinds that is such as come in and arise yearly of the fruit and profit of the earth such as are wood corn grain hay the seed of Rape Parsley hops saffion woad flax hemp darnel or cockle fennel annise and the like Such are the fruits of trees as Apples Pears Plums Nuts Cherries Wardens Grapes Mast Acornes and the like Such also as it seems are Herbs as Rue Sage Mint and the like Some of them are Personal and they are such as arise and grow due by the profits that come by mans honest labour and industry in some personal work Artifice or Negotiation as by buying selling merchandizing or by the labour of handicrafts men such as are Carpenters Masons Fishers Fowlers Hunters and the like And some Tithes are said to be mixt such are the profits of some things that arise partly from the labour and care of men and partly from the earth where the things are fed of this sort are Cattle as their young Calves Lambs Kids Roes the wool of sheep milk and cheese of Cowes so the eggs and chickens of Hens Geese Ducks and Swans and the like Amongst Predial Tithes some of them are said to be greater as wood corn hay and the like And some of them are lesser as the Tithe of Herbs Flax Hemp and the like And all these of the one sort and of the other the dispute is under the names of Tithes of harvest fruits of woods felled and preserved to grow again of wood not in use nor apt for Timber but for fire of trees planted for fencing of grounds in fields pastures and hedgrowes of Turves growing in fennish and moorish grounds of pasture ground of hay of wool of lambs of calves of pigs of colts of milk of cheese of fruits of trees of seeds hemp flax onions rape of pot-herbs of mast of Beech or Oak of Mills driven by wind or water of Parks Warrens pools ponds of wild Beasts under custody c. of Dove-cotes or Dove-houses of bees of fowlings of huntings of fishings of swans
must be paid and set forth and when the Parson c. may take them FOR answer to this Question in the general the Law saith That all Tythes and Church duties are to be yeilded and paid according to the usage and custome of the place where they are to be paid Stat. 27. H. 8. 20. 32 H. 8 7. And for Predial Tythes the tenth part of the profits are to be set forth and divided from the nine parts in the place where they grow before the Owner taketh away his part thereof and the Owner is to send to the Parson who is to send his servant when the Title is to be served and see that it be justly done and then the Law doth give him a reasonable time to take it away And if Tithe be once set out and divided the Parson not the Parishioner must look to it for he must bear the loss of it if any come to it And this setting out of the Tithe the Law saith must be effectual and therefore if the Owner set out his Tythe and then take it away again this is not a good payment of his Tythe and if the Owner sell the whole to another before the Tythe be set out with an agreement to deceive the Parson this is fraud and not allowed for a good payment in Law And this must be heeded as to the manner of Tything That the custom of the place is to be observed for in some places the custome is to leave the Tythe in grass in swathes in other places in windrowes in other places in grass cocks in other places in hay-cocks and either way it is good So for the time when and place where the custome of the place must be followed but the Parson shall have reasonable time to take it away Broo. Trespass 125. Cook 2 Part Instit 610. To give to the Parson the Tenth Acre of wood in a Coppice or the tenth coard if the coards be equal is a good Of trees and wood payment and setting forth of this Tythe especially if it be the custome of Tithing wood in the Countrey The Tythe of the Mast of Oak and Beech if it be sold must be answered by the tenth penny it is be eaten by pigs the tenth of the worth thereof must be answered And the most reasonable way of payment for any thing sold is to pay the Parson the tenth penny of the money made thereof The payment of Tithes and Church Duties in the City of London which is 2 s. 9 d. in the pound of the rent of their Of Houses in London Houses is to bee made according to the usage there Stat. 27. H. 8. 20. and 32. H. 8. 7. 37. H. 8. 12. Cook 11. 16. The tythe of the new corn mil must not be the tenth penny of the rent but the tenth measure of the corn or the Sect. 1. of Mils tenth tole dish if there be no custome in it But the Millard for his Fulling-mil Rape-mil Paper-mil Iron Powder Lead Edge Copper and Tin mils and so for an ancient Corn-mil is to pay only personal Tythe as for a Handicraft or Faculty Pasch 17. Jac. Johnsons Case Fitz. Nat. Brev. 41. G. Coo. 2. 44. And if a rate tythe be paid for two Mils in one house and one of them is made a Corn-mill in this case Tythe shall be paid in kind for this Mill. And if one pair of mill-stones be turned into two pair of Mill-stones now both of them must pay Tythe and the priviledge is lost Brownl Rep. 1. Part 31. The Tythe of the hay may be set out and delivered in Of grass cut or eaten swathes windrowes or cocks as the custome of the place is The Tythe fruit of Apple-trees Pear-trees the like trees Fruits of trees as Apples c. are to be set out and delivered when they are newly gathered and if then the Owner do not give the Parson notice and set them out and they be by his meanes lost or impaired the Owner is chargeable to the Parson in treble damages The common course of setting out and delivering corne Of corn sown by the common Law is by the tenth shock cock or sheaf but if the custome of the place be otherwise the Parson must sit down by it and if there be a custom to put the corn into shocks and that every shock be ten sheaves and that the Parson must have the tenth shock it must be done by two Justices B. R. But without a special custome binding the Owner of the Land he is not bound to set the Parsons part of the corn up an end in shocks Smith's Case Co. B. the Conrt The tythe seeds and herbs of gardens and fields as Rape Of seeds and herbs Hemp Flax Parsley Fennel and the like and of Sage Mints Onions Leeks and the like either of the seed or of the herb before the seed time this must bee paid at the time when the Owner doth receive in his nine parts thereof The time when the calves and Lambs are to be paid and delivered is when they are weanable and able to live without Sect. 1. Of calves and lambs the Dam and unlesse there be any custom herein against the Parson at this time all these young things are to be delivered And if the owner sell any calf or lamb in most places the Parson is to have the tenth penny of the money and so must if there be nothing in the custom against it And if the Owner kill a calf in some places the Parson hath the right shoulder and the custome must be yeilded to as reasonable if any thing though never so little be paid for it otherwise not The Tythe of milk and cheese is to be paid in the season Of milk and cheese thereof and so long and so soon as either of them is taken by the parishioner The tenth measure of honey and the tenth weight of wax not the tenth Bee nor the tenth swarm of Bees is to Bees be paid for Bees The Tythe of chicken and eggs of all kind of tame birds Of hens ducks wild and tame or fowle as Swans Hens Ducks Geese they are to be delivered and paid or that which is paid for them according to the custome of the place But for wild Swans Geese and Ducks if they be taken in and from a certain and known place they are said to be tytheable as Predial Tythes but if from incertain and unknowne places they are said to be as personal Tythes But I suppose no Tythe is to be paid in either case For personal Tythes which is for Trades Crafts and manual Occupations and the profit made thereby It is Sect. 3. Personal Tythes provided by a special Law That all such as use trading buying and selling handicrafts except common Labourers shall pay their Tythes as they were used to be paid forty years before the Statute of 2 Ed. 6. and as of right they ought to be
paid And for this the Parishioner doth use at or about Easter in most places the usual time of payment for smal Tythes to pay a small sum of mony to the Parson or Vicar And according to the custome of the place men are to pay for without a custom for it nothing at this day is to be paid for this by three Judges Co. B. 17. Jac. And for all or any of these things in case where the Owner may let or sell the thing of which the Tythe is to be had the best way is to let the Parson or Vicar to have the tenth penny made by the sale as they have generally of grounds let to strangers out of the parish in which case the Parson hath commonly and must have if there be no custome against it the tenth penny of the Rent But in no case the Parson or Vicar may take his Tythe before the same be severed from the nine parts and tythed And if the Owner will not cut his corn till it be spoiled the Parson is remediless 12 Ed. 4. D. St. 169. CHAP. VII Who must pay the Tithe that is to be paid and may be sued for it and to whom the Tythe must be paid FOR answer to the first part of this Question take these things Sect. 1. 1. That generally he that receiveth the nine parts is to pay the tenth part to the Parson And yet if a main that is Owner of a Coppice or other such like thing and he cut it and sell it all in this case the Seller must answer the Parson for his Tythe and not the buyer And therefore if A cut the grass of his ground and put it all not setting out Tithe in a Rick in the ground and three months after he sell it away to B in this case B cannot be sued for this tithe Hill 16 Jac. by chief Justice in Ashfields Case And if one sell underwoods standing the Buyer not the seller must answer the tythe But the tythe due for fellets before the sale the seller must answer for this 2. If a Parishioner dye before he pay his tythe his Excutor if he have Assets must pay it Executor 3. If a Parishoner let or sell his ground or herbage it is said the Parson may sue the Owner of the ground or the Owner of the cattel at his choise which is reasonable if the usage be not against it 4. If cattle be pawned or pledged the Gagee must pay tythe for them But if I deliver my goods to H. to be redelivered to me I must pay tythe for them And for answer to the second part of this Question these things are to be known 1. The Tythes must paid to him that hath right to them be he Lay-man as an Impropriator or a Clergy-man as we have called them and be he Parson or Vicar of the place 2 The rule generally is this That the tythe must be paid to the Parson or Vicar of the Parish wherein it ariseth and not to the Parson or Vicar of another Parish 3 The tythe hapning in the time of the vacation the succeeding Parson is to have it but they that gather it in may keep up so much thereof as to pay them their charge in the collection thereof and to Ministers that did serve the Cure there And if one be put into a place and then he is removed and another is put in the first of these shall have the Tythes that hapned in the vacation time Hil. 18. Jac. Woods Case 4. If any man have cattel tytheable feeding in any waste or place which is not certainly known to be in any Parish the tythe thereof shall be paid to the Parson of the place where the Owner of the cattel doth dwell 5 If a man living in the Parish of A being a common Fisher Fowler or Hunter and fish fowle or hunt in the grounds of H. in B and take fish there if this were free and without reward in H. then it is a personal Tythe that must be paid to the Parson of A. But if H. had money or reward for this then it is said H. must pay the Parson of B as for a predial Tythe 6. Personal Tithes are alwayes to be paid to the Parson or Vicar of that place where the person that is to pay the tythes doth dwel CHAP. VIII Which way the Owner of Tythes and such like things may recover them being detained FOR answer to this we are to know that by the ancient Law of the Nation Tythes were not recoverable by any man in any place but in the Spiritual Court and there by no person but such as they called Spiritual persons or Clergy men and this Ecclesiastical Court is gone But they are now recoverable by all sorts of men alike and in these waies First for Predial Tithes such as are the Tythe of wood grass fruit hay and the like divideable things if these be not duly and truly divided and set forth as before is shewed they ought to be the Parson or Vicar may sue for them in any of the Courts by an Action of Debt wherein he shall recover treble damages upon the Statute of Ed. 6. But for lesser Tithes of Wool and Lamb and the like no Action will lye upon this Statute nor for money given to the Parson in lieu of them But for the one and the other the party grieved may at this day sue in the Chancery or in the Exchequer or before two Justices of the Peace who in most cases for all Tythe Offerings Oblations Obventions rates for Tythes and all Arears thereof are to give relief Stat. 27. H. 8. 20. 2 Ed. 6. 13. 32 H. 8. 7. Cook upon Litt. 159 And if the Tythe be once served and set forth and they be after taken away by the owner of the Land or a stranger in this case the Parson may have an Action of Trespasse against him Broo. Dismes 6. Brownl 2 Part 30. CHAP. IX In what case and how a person or place may be quit and discharged of Tythes and what shall be a good discharge or not SPiritual persons were some of them formerly discharged of Tythe by their Order but there are no such discharges Sect. 2. now but a discharge of tythes may be at this day by the custome of a Country or by a Prescription or by a Composition which at first was made by and between the Parson Patron and Ordinary and another or by an alteration of the place out of which the tythe doth come or by an Act of Parliament and by a unity of possession Cook 1 Part 33. 2 3 Ed. 6. 13. 32 H. 8. 7. Cook 44. Or by priviledg as certain Religious Orders Templers and others of which there are none with us And therefore no such discharge can be amongst us at this day Brownlow's 2 Part 33. Or they may be suspended for a certain time and revived again Of all which see examples in the cases that