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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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of a higher nature that he may try it again there is a Juris Vtrum there is a quare impedit a Darrein Presentment a quare non admisit a quare incumbravit a vi Laica amovenda Thus you see the Law like a wise Physician prescribeth these several Remedies for the several Obstructions which may happen in the Patrons right in Advousons I may draw an Argument from the Topick of good pleading for Mr Littleton and my Lord Cook in his Book of Entries saith that such a one is seised of his Advouson Vt de feodo de jure as of his fee and of right The original of Advouson came either as they were Founders or Benefactours to them as appeareth in Cook in his first Institutes fol. 17. b. or else by Purchase from the Crown upon valuable consideracion I must confess that no Patron can take money for presenting to a Benefice it were Simonie if he should and therefore Cook in his first Institute saith that a Guardian in Soccage cannot present to a Benefice because he cannot take money for it and he ought by the Law to give an account to the Infant but the same Authour saith that the Patron may present his Son Si Persona idonea sit and this will be a good provision of the Father for the younger Sons porcion and therefore in an eye and respect to this the Law looketh upon an Advouson as Assets Fleta lib. 2. c. 65. Britton 185. 5 H. 7.37 32 H. 6. fol. 21. 33 Ed. 3. Garrante 102. therefore the Law in an eye and respect to this giveth the Patron Dammages if he be disseised or outed of his Advouson as appeareth by the Stat. 18 Ed. 1. But why go Lso far in this thing that is so plain to add more were but nodum in scyrpo â—uerere or to light a Candle at the noon-day I come next to the Purchasers of fee-farm rents for if the subject be taken away the Adjunct must needs follow Accessorium sequitur suum principale if you take away Tithes from Parsons as they having no right to them these Rents which they have granted out of Tithes must fall to the ground and vanish with them if Tenant in tail infeoff his Son within age and the Son at full age granteth a Rent-charge out of the Land and then Father Tenant in tail dieth the Son is by this remitted and the Estate out of which the Rent was granted is gone the Rent is gone also Cook first Institutes fol. 310. M. Littl. Sect. 5 28. telleth us if a Parson of a Church charge the Glebe of the Church by his Deed and after the Patron and Ordinary confirm the said Grant then the Grant shall stand in its force but in this Case it behoveth that the Patron hath a Fee-simple in the Advouson for if he hath but an Estate for Life or in tail in the Advouson then the Grant shall not stand but during his Life and the Life of the Parson which granted so that by this you may see that the Patron hath an individed and joynt Estate in the Glebe with the Parson the Patron and Parson by this you may see are more seised Per my per tout of the Glebe than Jointenants are of any other Estate for Jointenant have Moities in judgment of Law which may be extended or a Fine or Particion sued of it but Patron and Parson hath such indistinct fee in the Glebe as if Lands were given to Baron Feme and their heirs here is no Moities for Husband and Wife are but one Person in Law you may see also by this that the Parson Patron and Ordinary concurrentibus his may grant Rent-charges out of the Glebe and if you will allow the Patron and Parson no right then those Purchasers of those Rents which are many hundreds in this Common-wealth must lose their Bargains upon valuable considerations which the Law did then allow them to make Likewise there are many others which have extended Parsons Tithes upon Debts and given money for Leases of them by way of Fine before hand these will also be defrauded I shall not mention Impropriations but hint you of a Passage in the last Parliament when Bishops were to be purged out of the House of Lords one Lord stood up and said Shall we agree to this Vote we stand upon the same foundation with them we shall be wounded through their sides Et proximus ardet Vcaligon our turn will be next and so it proved these inconveniences you see will follow The Cords and Bonds of the usage under the Law and Gospel with the concurrence of all Nations will be broken the Common Law and Custome Law will be infringed thus the Statute Law and Magna Charta will be violated the right and fee of modus decimandi will be intrencht upon the propriety that Patrons have in Advousons and in Tithes will be trampled upon Fee-farm Rents which men have hazarded to buy to assist this Common-wealth with moneys will be extinct former Purchasers also of Rents out of the Parsons Glebe will be merged also these with many other inconveniences which the frailty of man cannot conceive at present onely the Midwife of time and expetience must bring forth will follow if this Law of Tithes receive an alteration and therefore Lycurgus when he altered any Law he exercised it in his own Family twelve years first to see what inconvenience would happen upon it before he would command it to be obeyed abroad I hope therefore that you seeing the right of Tithes and Patrons in Advousons you will make a farther Law to strengthen them and I hope Tithes seeming shattered like a broken Leg you will unite them by a future Provision that they will stand the firmer ever after FINIS
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