Church so erected is by the Consecration thereof actually delivered up and made over as it were to God himself it thenceforth ceases to be of any mans property or of any Human Dominion for Quod Divini Juris est id nullius est in bonis § nullius Inst de Rer. Divis And by what is Recorded in the Life of Bishop Vlrick it should seem as if the Right of Presentation originally were in the Diocesan for the Author there saith That if any Erected a Church the Bishop consented Si legitimam Ecclesiae dotem in manum ejus Celsitudinis dare non differret c. And after the Endowment and Consecration thereof the care of the Altar was committed by him to the Priest and the Advowson firmly conveyed to the lawful Heir by the putting on a Robe Author vitae Udalrici c. 7. p. 52. Edit August Vindel. 1595. But the Bishops understanding this as a matter more of Care than of Power as appears by these moderate expressions of Nominare Praesentare or Commendare they were willing the Lay-Patron for his better encouragement to such Pious works should share with them in this priviledge which Panormitan calls Jus â—onorificum yet so as that this transference of the Bishops unto Lay-Patrons should still remain under such a Limitation as that it should be necessary for the Patron to have recourse to the Bishop for the qualifying his Clerk for the Rectory by Ordination And the Bishop's prudent compliance with Lay-Patrons in this matter was not in those days without good reason if we consider what a paucity of publick Churches there then were insomuch that for want or instead thereof they frequently then said Prayers under a Cross in the open Field as is reported of our own Ancestors in the Peregrination of Wilibald Sic mos est Saxonicae gentis c. non Ecclesiam sed Sanctae Crucis Signum c. diurnae Orationis sedulitatem solent habere Hodaeperic Hierosolym Wilibald Extat ad Canisium Tom. 4. Antiq. Lect. par 2. pag. 486. Edit Ingolst 1603. Yea and where perhaps some Churches were many of them were no better than those mentioned by Asser Bishop of Shirburne in King Alured's daies which were of so mean a structure that frequently the wind entering per parietum rimulas did blow out the Candles set before the Reliques which gave occasion to that ingenious Prince to teach us by his dexterity the mystery of making Lanthorns Ex Lignis Bovinis Cornibus 4. In the Infancy of the Christian Faith in this Island under the Saxons several particular Lords of Grand Seignories Regis ad Exemplum erected particular Churches and having Endowed them with Lands reserved to themselves and their Successors for ever a right and power to confer them on such as were meetly qualified for the same And this they did in imitation of those Kings who then Reigning here erected Cathedrals Abbies Priories Churches c. 5. An Advowson being a right of Presentation as aforesaid reserved by a Founder to himself his Heirs and Successors is applicable to other Ecclesiastical Foundations as well as those of Churches as appears by the several Quare Impedits brought on several occasions so that albeit it hath been said that by the Grant of a Church the Advowson passed and when he gave the one he gave the other yet is the word Advowson not improperly applicable to any thing wherein a Quare Impedit will lie And he in whose Right such Presentation is rested is by the Provincial Constitutions of this Realm termed Advocatus Ecclesiae because as the Constitution hath it tueri defenders Ecclesiam ejus jura tenetur ad instar Advocati qui in Judicio Causam alicujus defendit Lindw Provin Const de Foro Comp. cap. Circumspecte ver Advocatus Which every Patron is obliged to do whence Patronus and Advocatus Ecclesiae are in effect Synonymous yet in Lindwood we have the Question put whether there be any difference inter Patronum Advocatum Ecclesiae Lindw Const Prov. de homicidio cap. Sacri Gloss ibid. Where though the prevailing opinion be for the Negative yet you will also there find very Orthodox Authority for the contrary and that Advocatus intelligitur non pro Patrono sed pro Defensore Ecclesiae Gloss ibid. as appears there by Lindwood that Famous Canonist totius Orbis Britannici who being Doctor of Laws Chaplain and Official to the Archbishop of Canterbury in the time of H. 5. was by reason of his great Experience and Abilities in National Laws as well as Provincial Constitutions sent as his Embassador to the Crowns of Spain and Portugal and at his Return about An. 1422. compiled what now is extant to his Immortal Memory and Dedicating the same to the said Archbishop it was after about An. 3505 being first revised by Wolfgangus Hopylius printed at Paris at the cost and charges of William Bretton Merchant of London Mention hereof is here made in regard of the plentiful use here made of this Eminent Author in this Ecclesiastical Abridgment and that rather in the midst of this Subject touching Advowsons as presuming that for the reason aforesaid a Quare Impedit will not lie in the case of this digression 6. The Right of Patronage is it seems by the Common Law a real Right fixed or vested in the Patron or Founder in the Church wherein he hath as absolute a property and Ownership as any man hath to his Lands and Tenements or any Freehold whatever And that the Advowson or Patrons Right to Present is a Temporal and not a Spiritual Inheritance For at the first Creation of a Mannor if Lands were given to erect a Church thereon the Advowson thereof became appendant to that Mannor and reputed as parcel thereof which being Temporal the other became so also as an Accessary to the Principal for which reason such an Advowson passeth by the Grant of the Mannor cum pertinentiis Yea it hath been adjudged That by the Grant of a Mannor without making any mention of the Advowson the Advowson also passed because it was parcel of and appendant to the Mannor And it hath been ever held That by the Common Law an Advowson is a Temporal Inheritance for that it lieth in Tenure and may be holden either of the King or of a Common person and hath been held of the King in Capite or in Knights Service And were a Quare Impedit hath been brought the Plaintiff hath counted that the Defendant held the Advowson of him by Homage and Fealty And it hath been agreed that an Advowson doth lie in Tenure and that the Lord may distrain in the glebe-Glebe-Lands for Rents and Services the Patron 's Cattel if any be there found upon the Land but not the Cattel of a Stranger 7. Other Reasons it seems there are at the Common Law which prove That an Advowson is a Temporal Inheritance for that a Writ of Right of
Secular who within that Province whereof he is Archbishop hath next and immediately under the King Supream power Authority and Jurisdiction in all causes and things Ecclesiastical Of such there are only Two in England one of the Province of Canterbury styled Metropolitanus Primas Totius Angliae the other of York styled Primas Metropolitanus Angliae Under the two Archbishops are twenty six Bishopricks whereof twenty two in the Province of Canterbury and four in the Province of York so that besides the two Archbishops there are twenty four Bishops The Christian Religion in England took root first in the See of Canterbury St. Austin who first preached the Gospel to the one was the first Archbishop of the other Canterbury once the Royal City of the Kings of Kent was by King Ethelbert on his Conversion bestowed on St. Augustine the Archbishop and his Successors for ever and so the Chair thereof became originally fixed in that City of Canterbury Cantuarienses Archiepiscopi Dorovernenses antiquitus dicti sunt quia totius Anglicanae Ecclesiae Primates Metropolitani fuerunt The Archbishop whereof being styled Primate and Metropolitan of all England is the first Peer of the Realm and hath Precedency not only before all the Clergy of the Kingdom of England but also next and immediately after the Blood Royal before all the Nobility of the Realm Sr. Edward Cokâ— says more and lets us to understand That in Ancient time they had great Precedency even before the Brother of the King as appears by the Parliament Roll of 18 E. 1. and many others which continued until it was altered by Ordinance in Parliament in the Reign of H. 6. as appears by a Roll of Parliament of that Kings Reign entred in the Back of the Parliament Roll. The Precedency in Parliament and other Places of Council at this day is That the two Archbishops have the Precedency of all the Lords Temporal and every other Bishop in respect of his Barony hath place of all the Barons of the Realm and under the estate of the Viscount and other Superiour Dignities And at this day in all Acts Ordinances and Judgments c. of Parliament it is said The Lords Spiritual and Temporal The Bishops among themselves have this Precedency 1. The Bishop of London 2. The Bishop of Duresme 3. The Bishop of Winchester The Archbishop of Canterbury as he hath the Precedency of all the Nobility so also of all the great Officers of State He writes himself Divina Providentia whereas other Bishops only use Divina Permissione The Coronation of the Kings of England belongs to the Archbishop of Canterbury and it hath been formerly resolved that wheresoever the Court was the King and Queen were Speciales Domestici Parochiani Domini Archiepiscopi He had also heretofore this Priviledge of special remark That such as held â—ands of him were liable for Wardship to him and to compound with him for the same albeit they held other Lands in chief of our Sovereign Lord the King All the Bishopricks in England except Duresme Carlisle Chester and the Isle of Man which are of the Province of York are within the Province of Canterbury The Archbishop whereof hath also a peculiar Jurisdiction in thirteen Parishes within the City of London and in other Diocesses c. Having also an Ancient Priviledge That wherever any Mannors or Advowsons do belong to his See they forthwith become exempt from the Ordinary and are reputed Peculiars and of his Diocess of Canterbury If you consider Canterbury as the Seat of the Metropolitan it hath under it twenty one Suffragan Bishops whereof seventeen in England and four in Wales But if you consider it as the Seat of a Diocesan so it comprehends only some part of Kent viz. 257 Parishes the residue being in the Diocess of Rochester together with some other Parishes dispersedly scituate in several Diocesses it being as aforesaid an Ancient Priviledge of this See that the places where the Archbishop hath any Mannors or Advowsons are thereby exempted from the Ordinary and are become Peculiars of the Diocess of Canterbury properly belonging to the Jurisdiction of the Archbishop of Canterbury whose Provincial Dean is the Bishop of London whose Chancellour is the Bishop of Winchester whose Vice-Chancellour anciently was the Bishop of Lincoln whose Precentor the Bishop of Salisbury whose Chaplain the Bishop of Worcester and the Bishop of Rochester when time was carried the Cross before him Lind. Const de Poenis gl ibid. c. 1. ver tanquam 2. The Metropolitan See of York had its Original at the first reception of the Gospel in England when King Lucius established Sampson the first Archbishop thereof Not long after the Conversion of the Saxons Paulinus by Pope Gregory's appointment was made Archbishop thereof An. 622. This Province of York anciently claimed and had a Metropolitan Jurisdiction over all the Bishops of Scotland whence they had their Consecration and to which they swore Canonical Obedience The Archbishop of York styles himself Primate and Metropolitan of England as the Archbishop of Canterbury Primate and Metropolitan of All England About two hundred years since viz. An. 1466. when George Nevil was Archbishop of York the Bishops of Scotland withdrew themselves from their obedience to him and had Archbishops of their own The Archbishop of York hath precedency before all Dukes not being of the Blood Royal as also before all the Great Officers of State except the Lord Chancellour Of this Province of York are the Bishopricks of Duresme Chester Carlisle and the Isle of Man who write themselves Eboracenses or Eborum The Diocess belonging to this See of York contains the two Counties of York and Notingham and in them 581 Parishes whereof 336 are Impropriations 3. It hath been question'd whether there be any difference between Archbishop and Metropolitan the DD. herein seem to be divided some conceiving that there is some difference between them others affirming that they are both one the Canon Law seems in a sense to favour each of these Opinions saying in one place that the Archbishop as President hath the charge and oversight of the Metropolitans and other Bishops 21. Dist Cleros In another place That Archbishop and Metropolitan are but one and the same in deed and in truth although they differ in Name Wilhel in Clem. ult de Privileg verb. Archiepiscopo vers fin Metropolitanus Archiepiscopus idem sunt Sed Metropolitanus nomen trahit à numero Ecclesiarum viz. à metro mensura polis Civitas Otho glo in verb. Archiepiscopus De Offic. Archiepisc He is called Archiepiscopus quasi Princeps Episcoporum in respect of the other Bishops whereof he is chief and Metropolitanus in respect of the number of the Cities or Cathedral Churches where the Bishopricks are Lindw ubi supr gl ib. ver Metropolitanum For the word Civitas doth signifie with us as it doth in other Kingdoms such a Town
complaint thereof made to the Pope the Answer was That any man might be Cited to the Arches out of any Diocess in England Also That the Archbishop may hold his Consistory in any Diocess within his Jurisdiction and Province That the Archbishop hath concurrent Jurisdiction in the Diocess of every Bishop as well as the Archdeacon and That the Archbishop of Canterbury prescribes to hold Plea of all persons in England But as to his power of having a Consistory in the Diocess of every Bishop this was in this Case denied but only where he was the Popes Legate whereof there were Three sorts 1. Legates à Latere and these were Cardinals which were sent à Latere from the Pope 2. A Legate born and these were the Archbishops of Canterbury York and Mentz c. 3. A Legate given and these have Authority by special Commission from the Pope Likewise in the Case of Jones against Boyer C. B it was also said by Dr. Martyn That the Archbishop hath Ordinary Jurisdiction in all the Diocesses of his Province and that this is the cause that he may Visit 13. The Archbishop of Canterbury Anciently had Primacy as well over all Ireland as England from whom the Irish Bishops received their Consecration for Ireland had no other Archbishop until the year 1152. For which reason it was declared in the time of the Two first Norman Kings That Canterbury was the Metropolitan Church of England Scotland and Ireland and the Isles adjacent the Archbishop of Canterbury was therefore sometimes styled a Patriarch and Orbis Britannici Pontifex insomuch that Matters recorded in Ecclesiastical Affairs did run thus viz. Anno Pontificatus Nostri primo secundo c. He was also Legatus Natus that is he had a perpetual Legantine power annext to his Archbishoprick nigh a thousand years since And at General Councils he had the Precedency of all other Archbishops abroad and at home he had some special Marks of Royalty as to be the Patron of a Bishoprick as he was of Rochester to coyn Mony to make Knights and to have the Wardships of all those who held Lands of him Jure Hominii although they held in Capite other â—ands of the King as was formerly hinted He is said to be Inthroned when he is invested in the Archbishoprick And by the Stat. of 25 H 8. he hath power to grant Licenses and Dispensations in all Cases heretofore sued for in the Court of Rome not repugnant to the Law of God or the Kings Prerogative As also to allow a Clerk to hold a Benefice in Commendam or in Trust to allow a Clerk rightly qualified to hold Two Benefices with Cure of Souls to allow a Beneficed Clerk for some certain causes to be non-Resident for some time and to Dispense in several other Cases prohibited by the Letters of the Canon Law Likewise the Archbishop of Canterbury Consecrates other Bishops confirms the Election of Bishops within his Province calls Provincial Synods according to the Kings Writ to him ever directed is chief Moderator in the Synods and Convocations he Viâ—its the whole Province appoints a Guardian of the Spiritualties during the vacancy of any Bishoprick within his Province whereby all the Episcopal Ecclesiastical Rights of that Diocess for that time belong to him all Ecclesiastical Jurisdictions as Visitations Institutions c. He may retain and qualifie Eight Chaplains which is more by Two than any Duke is allowed by Statute to do and hath power to hold divers Courts of Judicature for the decision of Controversies pertaining to Ecclesiastical Cognizance CHAP. III. Of Bishops and Ordinaries 1. Bishop Why so called Not above One to be in one Diocess 2. Why called Ordinary and what the Pallium Episcopale is 3. Bishopricks originally Donative Kings of England the Founders thereof 4. The manner of Election of Bishops their Confirmation and Consecration 5. Their Seals of Office in what cases they may use their own Seals 6. What follows upon Election to make them Bishops compleat the grant of their Temporalties 7. The Conge d'eslire and what follows thereupon 8. Bishopricks were Donative till the time of King John 9. What the Interest and Authority is in his several capacities 10. Episcopal Authority derived from the Crown 11. The Vse and Office of Suffragan Bishops 12. Whether a Bishop may give Institution out of his own proper Diocess and under other Seal than his own Seal of Office 13. Several things incident to a Bishop qua talis 14. Ordinary what properly he is and why so called 15. In what cases the Ordinaries Jurisdiction is not meerly Local 16. The Ordinaries power de jure Patronatûs 17. Whether the Ordinary may cite a man out of his own Diocess Also his Right ad Synodalia 18. The Ordinaries power of Visitation 19. The Dignity and true Precedency of the Bishops in England 20. Temporal Jurisdiction anciently exercised by Bishops in this Realm the Statute of 17 Car. 1. against it Repealed and they Restored to it by the Stat. of 13 Car. 2. as formerly 21. The Act made in the Reign of Ed. 6. concerning the Election of Bishops the Endeavours thereby to take away Episcopal Jurisdiction the Nomination of all Bishops was Anciently Sole in the King 22. The Bishops of London are Deans of the Episcopal Colledge 23. A Case at Common Law touching a Lease made by one Bishop during the life of another of the same Diocess in Ireland 1. BISHOP Episcopus from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 supra and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 intendere an Overseer or Superintendent so called from that watchfulness care charge and faithfulness which by his Place and Dignity he hath and oweth to the Church A word which all Antiquity hath appropriated to signifie the Chief in Superintendency over the whole Church within his Diocess wherein are divers inferiour Pastors This Oversight or Care the Hebrews call Pekudah Of this Office or Ecclesiastical Dignity there can be but one at a time in one and the same Diocess whence it is that Cornelius Bishop of Rome as Eusebius relates upbraided Novatius for his ignorance in that point when he could not but know there were no less than 46 Presbyters in that Church Oecumenius and St. Chrysostome affirming also as many at Philippi For in this restrained sense as the word Bishop is now taken it cannot be imagined that there should be more than one in one City or Diocess at the same time consonant whereunto the Synod of Nice prohibited Two or more Bishops to have their Seats at once in the same City This Novatius aforesaid was a Priest of Rome 254 years after Christ he abhorred Second Marriages and was condemned as an Heretick in a Synod at Rome the same year Every Bishop many Centuries after Christ was universal Incumbent of his Diocess received all the Profits which were but Offerings of Devotion out of which he paid the Salaries of such as Officiated under himâ—
tempore Pentecost oblata dicto nuper Prioratui beatae Mariae Wigorn. modo dissolut dudum spectan pertinen c. Ex Archivis Decani Capit. Wigorn. But in Glocester it seems it is otherwise for there the Bishop and the Archdeacon only receive them nor can the Dean and Prebendaries that now are of the Cathedral make any just claim to them For before the Suppression these Pentecostals were inter alia valued to the Archdeacon in the Kings Books as part of the Revenue of the Archdeaconry And as for Procurations aforesaid although they are as Dr. Cosen says ratione Visitationis plerumque praestandae yet not solummodo so and thence it is held that they are in some places payable to the Archdeacon jure Consuetudinario even in the Bishops Triennial year sine Visitatione on the Archdeacons part 11. To this purpose Remarkable is that Case of Proxies which Sir John Davis the Kings Attorney General in Ireland reports to have been there Resolved and Adjudged The Case was this The Bishop of Meth before the dissolution of Monasteries had a Proxy of fifteen shillings four pence payable yearly out of the Commandry of Kells in the County of Meth parcel of the Possessions of the Hospital of St. John of Jerusalem in Ireland and one other Proxy of twenty shillings payable yearly out of the Impropriate Rectory of Trevet in the same County parcel of the possessions of the Abbey of Thomascourt in the County of Dublin In the thirty third year of King H. 8. the said Hospital and Abbey were suppressed and dissolved and all the possessions of both the said Houses were vested in the actual possession of the Crown by Act of Parliament But in the said Act there is an Express Saving the Proxies to all Bishops and their Successors Afterwards the Bishop of Meth and his Clergy for that Bishoprick hath not any Dean and Chapter by Deed Inrolled Dated 16 March 36 H. 8. granted to the said Proxies inter alia to King H. 8. his Heirs and Successors the King being at the time of the Grant and after in the actual possession of the said Commandry and Rectory out of which the said Proxies were payable Afterwards Queen Elizabeth by her Letters Patent dated Primo Novemb. in the thirty third year of her Reign demised the said Commandry and Rectory to Dr. Forth And now whether he shall be charged with these Proxies and the Arrearages thereof after the commencement of the Lease was the Question And it was Adjudged that he should be charged therewith In the Argument of this Case there were Three points moved and debated 1 Whether the Proxies were wholly extinct by the suppression and dissolution of the said Religious houses notwithstanding the said Saving in the Act of Dissolution 2 Whether the Bishop could grant the Proxies to the King 3 Whether the Proxies in the hands of the King were extinct by the Unity of Possession For the First point it was Objected by Sir Ambrose Forth 's Counsel That the Proxies were extinct by the suppression and dissolution of the Religious houses For that the Visitation of the Religious houses were the sole cause of the payment of the Proxies Et cessante causa cessat effectus For the Religious houses being gone and dispersed they shall not be afterwards subject to Visitation and then when the Visitation doth cease the Proxies being only Exhibition given to the Visitor for his Travelling charges shall cease also For Procuratio as the Canonists define it est Exhibitio sumptuum necessariorum facta Praelatis qui Dioeceses peragrando Ecclesias subject as Visitant Yet it was agreed That the Visitation doth not cease immediately upon the Surrender or by the Act of Parliament which gives the Religious houses and their Possessions to the Crown for by that their Corporations are not dissolved as was held in the Case of the Dean and Chapter of Norwich Co. par 3. 15 Ass p. 8. 32 H. 8. Br. Corporations 78. But when the Religious persons were dispersed and had relinquished their Habit Rule and Order for which they were Visitable then their Corporation was utterly dissolved and thereupon the Visitation ceases And in this case they resembled a Proxie due for Visitation to an Annuity for Counsel or some other Service to be done if the Counsel or the Service be withdrawn the Annuity determines So if a Rent-charge be granted for a Way stop the Way and the Rent-charge shall be stopt also 9 Ed. 4. 19. 15 Ed. 4. 2. 21 Ed. 3. 7. So where a Corodie is granted for certain Service to be done the omission of the Service determines the Corody 20 Ed. 4. fo ult It was also said That the duty is not Annual but Contingent and payable only upon every Visitation And for the Saving they said it was a Flattering Saving which could not preserve the Proxies in being which the Law had extinguished as was held 14 Eliz. Dyer 313. That the tenures of the Obit or chauntry-Chauntry-Lands held of the Subjects are extinct by the Act of 1 Ed. 6. notwithstanding the Saving in the said Act propter absurditatem So the Proxies in this Case shall be extinct propter absurditatem For as it is absurd that the King should be subject to Attendance in respect of a Tenure so it is absurd that the King should be subject to Visitation or to any duty in respect thereof Of the same nature there are many Savings put in Walsingham's Case Plow Com. 563. which are there called Flattering Savings As to the Second point it was objected That the Bishop could not grant these Proxies to the King for two Reasons the one drawn from the person of the King the other from the person of the Bishop 1 For the King Admit that he were capable of such a Spiritual Office as to be a Visitor of Religious persons yet he shall not have Proxies by reason of the Inconveniency and Indecency and also for the Impossibility thereof For it is neither Convenient nor Decent that the poor Religious persons should bear the Charges of the King And it is also Impossible for by the Canon Law Procuratio exhibenda est secundum qualitatem personae Visitantis and the Majesty of the person of the King and the grandure of his Train such that by presumption of Law no private person can bear his necessary charges or make him entertainment answerable to the quality of his person 2 For the Bishop Although he may grant his Temporal possessions with the assent of his Chapter or Clergy yet those duties which he hath by the prerogative of his Episcopal Chair or as incident to his Spiritual Function he may not grant And they by the Rule of the Canon Law are of Three sorts viz. 1 Subsidium Cathedrarium which is a duty of Prerogative and Superiority 2 Quarta Episcopalis which was given to him for Reparation of Churches 3 Procurationes for his Visitation as aforesaid which is a perquisite
difference between Vicarage and Parsonage their several Rights and Interests respectively 3. Whether a Vicarage Endowed may be Appropriated and how 4. The Chaplain of the Vicar of Hallifax his Case for his Salary 5. Vicars may Sue in the Ecclesiastical Courts for Pensions 6. How a Vicarage may be created 7. The Resolution of Court touching the Vicar's Tithes in reference to the Parson's Glebe 8. Cases in Law touching the Parsons and the Vicar's Tithes where Composition or Prescription is in the Case 9. Who is Patron of the Vicarage whether the Parson or the Patron 10. In what case the Vicar may Sue in the Ecclesiastical Court for an addition or increase of Maintenance 11. In what case a Vicarage shall determine and what shall be an union of Parsonage and Vicarage 12. Benefice how defined by the Canon Law with the Reasons of that definition 13. Benefices Ecclesiastical extend to Ecclesiastical Dignities by the Canon Law but not so within the Statute of 21 H. 8. 14. Of what an Ecclesiastical Benefices consists according to the Canonists 15. Cautionary Laws relating to Benefices by what marks or signs an Ecclesiastical Benefice is known at the Canon Law 16. The common distinction of Ecclesiastical Benefices at the Common Law 17. A Case in Law touching a Vicarage whether Dissolved or not 18. Vicarages of Two sorts how compared to a Commendam 1. VICAR is he who hath that Spiritual Living called a Vicarage being no other than a certain part or portion of a Parsonage allowed to the Minister for his Maintenance introduced at that time when Impropriations first began both which Livings as they are commonly called the Church so both such as serve in them are called the Patron 's Clerks The Vicar is usually appointed and allowed to serve the Cure by him who hath the Impropriation of the Parochial Tithes for at the Original of such Impropriations a certain portion of the Parsonage was allotted and set apart from the rest to maintain the Vicar who was to serve the Cure So that now the Priest of a Parochial Church where the Predial Tithes are Impropriated is called the Vicar h. e. vice Rectoris And it seems Anciently they did sometimes style themselves Perpetual Vicars because every Vicarage Corporation-like hath a constant Succession 2. A Parsonage and a Vicarage as appears in Britton and Wade's Case are two distinct Benefices and both have Curam animarum the Parson habitualiter the Vicar actualiter and although the Vicarage be Spiritual yet the Corporation is Temporal which the Pope could not dissolve And in the Case between Parry and Banks it was Resolved That after the Statute of 31 H. 8. which made Parsonages Lay-Fees the Ordinary could not dissolve a Vicarage when the Parsonage is in a Temporal hand for that were to destroy the Cure Vicarages being originally endowed out of Parsonages the Vicar was to have aid of the Parson if he were impleaded for any thing touching the Vicarage and the Parson was subject to every charge of the Vicarage And anciently the Vicar was not held as Tenant of the Freehold of the Glebe of the Vicarage but the Freehold thereof was in the Parson and the Vicar could not maintain an Assize in his own Name But now it seems the Freehold of the Glebe of the Vicarage is in the Vicar himself and not in the Parson for that the Possessions of the Vicar and Parson are severed and each of them shall have several Writs concerning their respective Rights and shall not joyn in one Writ and the Vicar shall have and maintain a Writ of Juris Vtrum against the Parson who is the Patron of the Globe of the Vicarage for the same Glebe This Vicarage being a certain portion of a Parsonage allowed to the Vicar for his Maintenance as aforesaid is in some places a sum of Money certain in others a part of the Tithes in kind commonly the smaller Tithes and in some places a part of the great Tithes also And vicarage-Vicarage-Lands occupied by the Vicar do in some places pay no Tithe to the Parson 3. In Ward 's Case it was said by Mountague That a Vicarage endowed might be Appropriated but not to the Parson to which Haughton and Doderidge agreed 31 H. 6. Fitz. tit Indicavit is that such a Vicarage may be dissolved An Appropriation may be by the King sole where he is Patron but there is no Book that it might be by the Patron sole Grindon's Case in Plowden and 17 E. 3. 39. an Appropriation cannot be without the King's License In that case it was agreed That Tithe-Lamb and Wool was included within small Tithes which Tithe belongs to the Vicar 4. A Chaplain that was under the Vicar of Hallifax Libells against him in the Ecclesiastical Court for his Salary And he prescribes That the Vicar ought to pay the Chaplain four pounds a year and the Vicar prays a Prohibition 1 for that he alledges That the Chaplains were Eligible by himself and because that Chaplain was not Elected by him he is not Chaplain but he is in of his own wrong c. 2 That Prescription for Salary was Triable at the Common Law Yelverton The Salary is Spiritual as the Cure it self is Spiritual for which it is to be paid As the Case in Dyer 58. Pl 4. But a Prohibition was granted until it was determined to whom the Election appertained and that now depends by Prohibition in this Court 5. G. Vicar Sues in the Ecclesiastical Court the Dean and Chapter of Wells Parson of a Church for a Pension and they pray a Prohibition and it was denied For that Pension is a Spiritual thing for which the Vicar may sue in the Spiritual Court 6. The Parson Patron and Ordinary may Create a Vicarage and Endow it without the Assent of the King but the Ordinary cannot Create a Vicarage without the Patrons Assent 16 E. 3. Quare Impedit 145. And in or during the Vacancy the Patron of a Parsonage and the Ordinary may Create a Vicarage 8 R. 2. Annuity 53. per Belk And before the Statutes of Dissolutions a Parson Impropriate and the Ordinary might Create a Vicarage for the Parson was Parson and Patron Ibid. 7. It was Resolved per Curiam That if a Vicar be endowed out of a Parsonage of all the white Tithes growing and renewing within the Parish on all the Land of the Parish the Vicar shall not therefore have the Tithe of the Parson's Globe for that is excepted nor the Tithes of the Land which at the time of the Endowment of the Vicarage was parcel of the Glebe but since severed from the Glebe for that at the time of the Endowment that Land was exempted out of the Endowment 8. If there be a Composition made between the Parson and the Vicar That the Parson shall have all the Tithe of Corn and Hay and the Vicar the other Tithes and
may have a Writ of Right of Advowson but this Writ lieth not for him unless he claim to have the Advowson to him and his Heirs in Fee-simple which Advowson is valuable though the Presentment be not 18. The Queen seized of an Advowson being void the Ancestor of P. Presented and so gained it by Usurpation and then the Church being void he Presented again his Clerk dies and then the Queen grants the Advowson to Y. the Plaintiff who brings a Quare Impedit in the Queens Name supposing that this Usurpation did not put the Queen out of Possession It was argued That the Grant could not pass without special words because it is in the nature of a Chose in Action And Dyer Mead and Windham held That this Usurpation did gain possession out of the Queen and that she should be put to her Writ of Right of Advowson but the Opinion of Anderson Cheif Justice was clearly That the Queen was not out of Possession for he said That it was a Rule in our Books that of a thing which is of Inheritance the act of a Common person will not put the Queen out of possession But if she had only a Chattel as the next Advowson then perhaps it is otherwise But Mead and Windham very earnestly held the contrary relying on the Book of 18 E. 3. where Shard said That if the King had an Advowson in his own Right and a Stranger who had no Right happen to Present it puts the King out of Possession And the King shall be put to his Writ of Right as others shall The Defendant alledged Two Presentations in his Ancestor after the Title of the King and demanded Judgment if the King should have a Writ of Possession and the Plea was admitted to be good But after Pasch 25 Eliz. Judgment was given for the Queen for that she might very well maintain a Quare Impedit and the two Presentments did not put her out of possession 19. In a Quare Impedit by G. against the Bishop of L. and D. Incumbent The Case was That a Mannor with the Advowson Appendant was in the hands of the King and the Church became void and the King grants the Mannor with the Advowson If the Grantee shall have the Presentation or the King was the question All the Justices held clearly That the Avoidance would not pass because it was a Chattel vested And Periam said that in case of a Common person without question an Advowson appendant would not pass by such Grant for if the Father die it shall go to his Executor but if it be an Advowson in Gross in case of a Common person there is some doubt But in the Principal Case all the Judges held ut supra and said That so it was in 9 E. 3. 26. Quare Impedit 31. and in Dyer in the Case of the Church of Westminster But F. N. B. is contrary 33. N. 20. Of Advowsons there are three Original Writs whereof one is a Writ of Right the other two of Possession viz. Darrein Presentment and Quare Impedit And where an Advowson descendeth unto Parceners though one Present twice and usurpeth upon his Co-heir yet he that was negligent shall not be clearly barr'd but another time shall have his turn to Present when it falleth And by the Statute of 3 Jac. 5. every Recusant Convict is utterly disabled to Present to any Ecclesiastical Living or to Collate or Nominate to any Donative whatsoever the Advowson of every such Recusant being left to the disposition of the Universities of Oxford and Cambridge Also by the Statute of 13 E. 1. 5. it is directed what Action shall be maintained by him in the Reversion who is disturbed to Present after the Expiration of a particular Estate where there is also provided a Remedy for him in the Reversion or Remainder or others that have right where there is an Usurpation of an Advowson during any particular Estate And that Judgments given in the Kings Courts touching Advowsons shall not be avoided by Surmizes but by lawful means Likewise it is Statute-Law to hold That Advowsons shall not pass from the King but by Special words for when the King doth give or grant Land or a Mannor with the Appurtenances unless he make express mention in his Deed of Advowsons of Churches when they fall belonging to such Mannor or Land they are reserved to him notwithstanding the word Appurtenances albeit among Common persons it hath been otherwise observed nor is it lawful to purchase an Advowson during the dependancy of a Suit at Law concerning the same 21. If a Feme Covert be seized of an Advowson and the Church becomes void and the Wife dieth the Husband shall Present Where Parson and Vicar be Endowed in one Church and the Vicarage becomes void the question is To whom the Advowson of the Vicarge doth belong and who in that case shall be said to be the Patron of the Vicarage Whether the Patron of the Parsonage or the Parson It seems the Books at Common Law the Judges and the Court were divided in Opinion touching this point some of the Judges were of Opinion That the Advowson of the Vicarage appertains to the Parson Others that it belongs to the Patron Such as inclined that it is in the Patron gave for reason That the Ordinary cannot make a Vicar without the assent of the Patron 5 E. 2. Quare Impedit 165. puts the Case That although the Vicarage be Endowed with the assent of the Patron and Ordinary yet the Advowson of the Vicarage doth remain in the Parson because the same is parcel of the Advowson of the Parsonage And 16. E. 3. Grants 56. it was a question Whether by the Grant of the Advowson of the Church the Advowson of the Vicarage did pass and there it was said by Stone That it doth pass as Incident to the Parsonage And in regard the Vicar is as the Parsons Substitute and his Endowment originally only as a Maintenance for him in officiating the Cure for the case of the Parson whose Concern it is to see that he be a fit and able person sufficient for the Cure it should thence seem rational that the Parson should be his Patron to Present such an one to the Vicarage as shall be sufficient for the Cure for which reasons the Patronage of the Vicarage should seem rather to belong unto the Parson than to the First Patron of the Parsonage Appropriate 22. An Advowson cannot it seems at the Common Law be called a Demesne for that it is not such a thing as a man hath a Manual occupation or possession of as he hath of Lands Tenements and Rents whereof he may say in his Pleading That he was seized thereof in his Demesn as of Fee which he cannot say that hath only the Advowson of a Church because it lies not as the other in Manual occupation And therefore in the case
in Pembrokeshire the Chaunter is next to the Bishop there being no Dean Chauntry Cantaria Aedes sacra ideo instituta dotata praediis ut Missa ibidem cantaretur pro anima Fundatoris Propinquorum ejus These were commonly Little Chappels or particular Altars in some Cathedral or Parochial Church endowed with Lands or other Revenues for the maintenance of one or more Priests to officiate as aforesaid whereof mention is made in certain Statutes of this Realm though not to such Superstitious uses as aforesaid A man might make a Chauntry by License of the King without the Ordinary for the Ordinary had nothing to do there with 9 H. 6. 16. It might be Founded in a Cathedral Church also in any other Church 9 H. 6. 17. Roll. Abr. ver Chauntry lit A. Q. 387. Of these Chauntries there were it seems 47 belonging to St. Pauls Church in London The Superstitious main use and intâ—nt of these Chauntries originally was for Prayers for Souls departed under a supposition of Purgatory and of being released thence by Masses Satisfactory and as in Adam's Case fo 112. mentioned by Sir Hen. Hobart Chief Justice in the Case of Pitts against James That Prayer for such Souls was the general matter of all Obits Anniversaries and the like which were but several Forms of Prayers for Souls And as in the said Case of Pitts if a man give Land to a Parish-Priest to pray or say Mass for his Soul this is within the Law that is within the Statutes of 37 H. 8. c. 4. and 1 Ed. 6. c. 14. as it is held 16 Eliz. Dyer 337. for to this purpose he is a Souls-Priest not a Parochial By which Statutes all Chauntries and all their Lands and Hereditaments are given to the Crown and all Lands Rents and Profits given to the finding of a Priest for the Superstitious ends aforesaid to continue for ever are vested in the actual possession of the King and of his Heirs and Successors for ever who shall also have by the said Statute of 1 Ed. 6. all the Common Goods of such Chauntries and the Debts thereof shall be paid to the Kings Treasurer and shall also have all Lands and all such Sums of money and part of the issues of Lands given for the maintenance or for the finding of any Anniversaries Obits Lights Lamps c. Only the said Act doth not extend to such Lands as whereof the Governours of such Colledges as were mentioned therein or Chauntries were seized to their own uses nor to any Lands or Rents given by the King for the term of his life only nor to any Copyhold-Lands and all Rents and yearly profits due to any Patron Donor and Founder of any of the said Chauntries c. and the Right of others except the Governours of Houses are by the said Act saved to them All Chanteries Colledges Free-Chappels and Hospitals were by Parliament given to King H. 8. for the carrying on the War against France and Scotland Towards the Charges of which Wars the King obtained a Grant in Parliament of the same with the Lands thereto belonging to be united to the Crown But dying before he took the benefit thereof he left that to such of his Ministers who had the managing of Affairs in his Son's Minority Heyl. Hist Eccles pag. 12. In the Reign of King Ed. 6. one of the great Affairs was the retrieving of a Statute made in the 27th year of King H. 8. by which all Chanteries Colledges Free-Chappels and Hospitals were permitted to the disposing of the King for term of his life but the King dying before he had taken many of them into his possession it was set on foot again in the time of King Ed. 6. and by Parliament during his Reign it was Enacted That all such Colledges Free-Chappels and Chanteries as were in being within Five years of the present Session which were not in the Actual possession of the said late King c. other than such as by the Kings Commissions should be altered transported and changed together with all Mannors Lands Tenements Rents Tithes Pensions Portions and other Hereditaments to the same belonging after the Feast of Easter then next coming should be adjudged and deemed and also be in the Actual and Real possession and Seisin of the King his Heirs and Successors for ever And although the Hospitals being at that time 110 were not included in this Grant as they had been in that to the King deceased c. yet there were 90 Colledges within the compass of that Grant those in the Universities not being reckoned in that Number and no sewer than 2374 Free-Chappels and Chanteries the Lands whereof were thus conferr'd upon the King by Name but not intended to be kept together for his benefit only In which respect it was very strongly insisted on by Archbishop Cranmer That the dissolving of these Colledges Free-Chappels and Chanteries should be deferred until the King should be of Age to the intent that they might serve the better to furnish and maintain his Royal Estate than that so great a Treasure should be consumed in his Non-age as it after was These Chanteries consisted of Salaries allowed to one or more Priests to say daily Mass for the Souls of their deceased Founders and their Friâ—rds which not subsisting on themselves were generally incorporated and united to some Parochial Collegiate or Cathedral Church No fewer than 47 in Number being as aforesaid found and Founded in St. Pauls Free Chappels though Ordained for the same intent were independent of themselves of stronger Constitution and richer Endowment than the Chanteries severally were All which Foundations having in them an admixture of Supersâ—â—tion as presupposing Purgatory and Prayers to be made for the deliverance of the Soul from thence were therefore now suppressed upon that account Heyl. Hist Eccles in temp Ed. 6. pag. 50 51. 7. Before King John's time the King and other Founders and Patrons of Priories and Abbies were wont to present Priors and Abbots But by King John there was a Free Election granted unto Priors 8. In Adams and Lambert's Case touching Chanteries these differences were taken 1 If one give 20 l. per annum for the Finding of a Priest and limit to the Priest 10 l. per annum all is given to the King for the residue shall be intended for the finding of Necessaries otherwise it is if a Condition be annexed to the Gift to give 10 l. per annum to a Priest there the King shall have but 10 l. 2 Land of 20 l. per annum is given to find a Priest with 10 l. per ann thereof and that the other 10 l. shall be to the Poor the King shall have but 10 l. But if it be for finding a Priest and maintenance of Poor men without limiting how much the Priest shall have the King shall have the Land for otherwise he shall have nothing 3. If Land of 20 l. is given
Adrian in the time of Offa King of Mereia during Englands Heptarchy in An. 786. Answ Possibly it might be so what follows thence does a thing lawful in it self become unlawful because a Pope enjoyns it what if he had commanded Alms to be given instead of Tithes must we therefore be neither honest in payment of the one nor charitable in giving the other because there was a Command of a Pope in the case 4. That AEthelstane Edmond Edgar Canutus and AEthelwolfe Kings of England Ordained the payment of Tithes meerly to pacifie their Consciences and thereby to make Atonement for their Blood-guilty Souls Answ Admit it were Historically true yet the final Cause of any Action or the End for which a thing is done alters not that quality that is inherent naturally in the thing A thing lawful in it self commanded for a wrong End perverts the Action not the thing if a man gives Alms that the Poor may be drunk though that be no Alms yet it doth not render Alms as unlawful nor alter that quality of Charity which is inseparable from Alms. 4. Tithes Anciently were Fourfold as 1 That which the People paid to the Levites 2 That which the Levites thence paid to the Priests 3 That which the Jews reserved for Expence in their Solemn Feasts when they went to the Tabernacle or Temple 4 A Third years Tenth which was then laid up for the Levite and the Poor The first of these is held a Natural Moral and Divine Tribute the second and third Ceremonial the fourth Judicial The Jews had also their Theruma which was not properly Tithe but a second kind of First-Fruits There were two kinds hereof the one called the Great Theruma the exact quantity whereof was not defined by Moses but the Ancient Lawyers determin'd that it might not be less than the fourtieth fiftieth or at least the sixtieth part of the kinds already dress'd and prepared as Wheat Fann'd Oyl and Wine Corn in the Ear taken from the heap and given to the Priests The other was the Lesser Theruma which was that when the former was taken away for the Priests the rest of the Heap was Tithed for the Levite the tenth part whereof the Levites gave to the Priests which was called the Tithe of the Tithe or the Theruma of the Tithe 5. Because the Law of Moses hath been divided into Three parts viz. Moral Judicial and Ceremonial some of the Schoolmen have thence conceived That Tithes admit the like division whereof the Moral part was only a necessary Maintenance for the Minister and therefore natural and perpetual The Judicial part was the number of Ten as fit only for the Jews and therefore positive and remotive The Ceremonial part was the Mystery contained in this Number of Ten which being as they taught but a shadow only was vanish'd and abolish'd with the Law it self and thence inferr'd that the Quotity or precise number of Ten being taken away by reason of the Ceremony a competency now only remains for the Minister out of the Tithes This Conceit hath occasioned no small prejudice to the Church although it hath no more probability of truth in it than that whereon it is grounded viz. That the Number of Ten is a type of Christ and that the inferiour Digits do signifie the People Levi himself paid Tithes to the first Priest we ever read of that is he paid them in Abraham which being urged by the Apostle against the Levitical Ceremonies argues that they are more than meerly Levitical and Ceremonial indeed if we consider their assignment to Levi's Tribe they are such but not otherwise The Sabbath and Tithes were both before the Law in their very Numbers respectively and were but repeated by Moses under the Law because they had been approved of God before the Law in the self-same Numbers The Sabbath is said to have a Moral and a Ceremonial part The Moral is perpetual and unalterable which is that God should have a Seventh day the Ceremonial being Typical of our Rest in Heaven is only positive and not so unalterable but that it might be as it is changed from the Seventh day of the Creation to the Seventh after our Saviours Resurrection So Tithes they also have a Natural and a Positive part the Natural is permanent and unalterable which is that God hath reserved to himself a Tenth of the increase c. for the Maintenance of his Ministers in which sense immediately after the dissolution of the Jews policy the Christians of the Primitive Church as soon as they could get any outward form of a Church and peace from Persecution received it in the very Quotity the Positive is That the Lord annexed those Tithes by Moses to the Priests and Levites for their maintenance during the dispensation of the Mysteries under the Law and thâ—refore changed by the Christians in the Primitive Church to the Christian Ecclesiasticks so that how this Quotity can be changed into a Competency sâ—â—ms neither demonstrable nor warrantable by the Word of God but that the Quotity ought to remain as a perpetual Right due to God and his Church And if any shall argue that Tithes are not to be paid or required in a Protestant Church because they have been ever so upheld in the Church of Rome such may as well argue they ought not to be paid in a Christian Church because they are paid to Mahumetan Princes for so they are and that because they were Priests for every Husbandman is bound to pay for Tribute the Tenth part of all his Corn to the Patriarch for the use of the Prince the relief of Impotent people and Widows and for maintenance of War against the Enemy Purch Pilgr lib. 6. cap. 1. § 3. p. 803. nu 10. 6. Tithes which anciently were meerly Ecclesiastical are now made Temporal Inheritances therefore are they Assets in the hands of the Heir the Wife endowed of them and the Tenant by the Courtesie shall hold them They are not grantable for life or years or for a longer term than one year but by Deed They cannot be extinguished by a Fâ—offment of the Land nor pass by a Devise of Lands with all profits and commodities thereto belonging and yet may be exchanged for Temporal Inheritances Anciently and at the Common Law there were none qualified to receive them but either an Ecclesiastical person or a mixt person as the King They are not extinct by their coming into any hands but of the Parson himself And that which is given in lieu of them is turned into a Spiritual Fee It is not paid more than once for one and the same thing in one and the same year and that only for the neat and clear profit of the thing Tithable It must be paid in kind if there be Corn now where Wood grew before or Wood planted now where Woodlands formerly were And the Law allows the Parson a convenient time to
to Spiritual persons for their necessary maintenance If the original of a Parish in the 2 former acceptations were a device of the ancient Rom. Bish from them derived to other Nations then probably from the inconveniencies thereof might be the beginning of a Parish as it is taken for suâ—h a part of the Diocess as is limited to some Residentiary Incumbent allowed by the Bishop and maintained by the Church-dues in his own Right which consideration of a Parish seems most of all agreeable with those which we now have and were in use with us before Edgar's daies as appears by the Saxon Laws of that time 9. The Ancient Kings and Sovereign Princes of this Realm both before and since the Conquest have ever made special Provision for the due payment of Tithes unto the Church and that ever since there was any Church-Government in this Land witness that Law made before the Conquest by King Aethelstane That every man should pay his Tithes in manner as Jacob did that is of all that God should give him The like did King Edgar and King Edmund command on pain of Excommunication And about the Seventh Century Ina King of the West-Saxons made a Law That the Church-Sceat be paid at Martlemass on pain of paying twelve times as much in case of Refusal this Church-sceat Fleta interpreteth Church-seed and therefore calls it Certa mensura bladi Tritici c. Others read Church-scet that is the Church-shot or Church-due Also the said King Aethelstane in the Ninth Century made a Law by the Advice of Walfehelme his Archbishop and his other Bishops Commanding all his Reeves throughout all his Kingdom in the Lords name and of all Saints that in the first place they pay the Tithe of his own Revenues as well in Living Cattel as the yearly Fruits Likewise King Edmund at a Synod holden in London at which Oda and Wulâ—â—tan Archbishops and many other Bishops were present made a Law Commanding all Christian men by their Christianity to pay Tithes Church-sceat and Almes-fee if any refuse to do it let him be accursed This Alms-fee or Alms-money was that which was called the Peterpence for when Ina the West-Saxon King went in Pilgrimage to Rome he made it a Law to his Subjects That every House should pay a peny to the Pope and this was to be tendred at St. Peters-tide as appears by Edgar's Law nu 4. In the Laws also of King Edgar it was Decreed in the first place That Gods Church should have all her Rights and that every man should pay his Tithes to the Elder Minister or Mother-Church where he heareth the Word cap. 2. of Edgar's Laws And in the Eighth Chapter of King Rnutes Laws it is Ordained That care be taken rightly to pay Gods Rights every year viz. the Plough-Alms fifteen Nights after Easter the Tithe of young Cattel by Whitsontide and the Fruits of the Earth by Allhallentide otherwise the Kings Reeve and the Bishop may take the Tenth part whether he will or no and give it to the Minister whereunto it belongeth Also by the Laws of Edward the Confessor nu 8. 9. it was Decreed particularly that Tithes should be duly paid De Garba Grege Equarum Pullis Vaccis Vitulis Caseo Lacâ—e Vellis Porcellis Apibus Bosco Prato Aquis Molendinis Parcis Vivariis Piscariis Virgultis Hortis Negotionibus in a word omnibus rebus quas de derit Dominus which Decree was afterwards ratified by the Conquerour Afterwards King Edward the First at the Petition of the Clergy established the Articles of the Clergy which his Son Ed. 2. Confirmed by his Letters Patents under the Great Seal and by Consent of Parliament at the Petition of the Clergy in the Ninth year of his Reign And by the Statute of 1 R. 2. cap. 14. it is Acknowledged That the Cognizance of Tithes of right doth and of Ancient time was wont to pertain to the Spiritual Court Also the Cistercians who had purchased Bulls from the Pope to be discharged of Tithes in the Second year of H. 4. were by Act of Parliament after reduced to the state they were in before And in the Fifth year of H. 4. it was Ordered That such as held Lands belonging to any Friers-Aliens should pay all manner of Tithes to the Parsons and Vicars of the Parishes wherein the same were notwithstanding their being seized into the Kings hands or any Prohibition to the contrary For before the dissolution of Monasteries c. by King H. 8. Lay-men were not capable thereof nor indeed after the Dissolution notwithstanding the Statute of 27 H. 8. c. 20. could the People be well brought to pay their Tithes to the Lay-Purchasers thereof not qualified to Sue for the same until the Statute of 32 H. 8. c. 7. enabled them to Convent the Refusers before the Ordinary or other competent Judge according to the Ecclesiastical Laws without the Reserve of any cognizance for the Temporal Judge therein otherwise than as to what refers to the Inheritance or Freehold of such Tithes or in case of disseisin thereof which was not only ratified and confirmed by a subsequent Statute made in the time of Edward the Sixth but it was also then Enacted That the Tithes should be paid as the Usage or Custome had been within forty years next before and that under certain penalties and forfeitures in case of detention or substraction and of treble Dammages in some cases the party so subtracting to be prosecuted in the Spiritual Court according to the Kings Ecclesiastical Laws 10. Sir Simon Degge in his late useful Treatise entituled The Parsons Counsellor par 2. or Law of Tithes cap. 2. discovers a vulgar Error touching the Original Settlement of the Parochial Right of Tithes For whereas it is frequently said in the Books of the Common Law That before the General Council of Lateran every one was at liberty to give his Tithes to what Spiritual Ecclesiastical or Religious person he pleased and that the Parochial Right thereof was settled by the said Council he says there is not any Canon of that Council to any such purpose whereby the Parochial right of Tithes was settled Nor could it then be for that the said Council was in An. 1179. but the Parochial Right of Tithes was not settled till the year 1200. and then not by any Canon but by a Decretal Epistle of Pope Innocent the Third a Brief whereof he there inserts out of Mr. Selden and Sir Ed. Coke If this were an Error in them it was so also in Lindwood c. locat conduct verb. portion But possibly not such an Error in either as is conceived for whether the Canon for the settling of Parochial Right of Tithes made in the Council of Lions 1274. were an Original Decree or only a Confirmation of some former Canon to the same effect or not clear it is that the said Decretal Epistle of P. Innocent 3. obliged only the Province of
whole Court of Kings Bench Mich. 5 Jac. and hath many times been Ruled That if a man sell his Tithes for years by word it is good but if the Parson agree that one shall have his Tithes for seven years by Word it is not good by the opinion of Flemming Chief Justice because iâ— amounts to a Lease and he held strongly That Tithes cannot be Leased for years without a Deed. 82. Upon the Statute of 2 Ed. 6. cap. 13. â—or Setting out of Tithes in a Prohibition to stay proceedings by a Parson in a Suit in the Ecclesiastical Court against one of his Parish for hindering of him in his way in the Carriage of his Tithes The whole Court agreed in this That if a Parson hath his usual way stop'd that so he cannot come to take away his Tithes being set out for him he may well sue for this in the Ecclesiastical Court and there have his remedy But if the Question be whether the Parson be of right to have a way viz. one way or another this is Triable by the Common Law and not in the Ecclesiastical Court but if the Parson have a certain Way granted to him and set out by the Common Law if he be at any time disturbed or hindered by any of his Parishioners or by any other in the use of this his Way he may then in such case well sue in the Ecclesiastical Court for his remedy And the words of the Statute of 2 Ed. 6. cap. 13. are That if any Parson be disturbed stopped or hindered in the carrying away of his Tithes so that the Tithe comes to be lost hurt or impaired in this case he may sue in the Ecclesiastical Court for his Remedy and upon due proof there made thereof he shall recover double value of the Tithe so taken or lost besides his cost and charges of Suit But because in this principal Case the Parson sued in the Ecclesiastical Court for the Right of his Way whether he was to have that Way or not which belonged properly to the Common Law and not Triable there in the Ecclesiastical Court for this cause the Court granted a Prohibition to stay their proceedings in the Ecclesiastical Court A ABby-Lands were five waies priviledged or discharged of Tithes viz. by Composition Bull or Canon Order Prescription and Unity of possession of Parsonage and Land time out of mind together without payment of Tithes It is supposed that no Land which belonged to Abbots Priors c. is at this day discharged of Tithes but such as came to the Crown by the Statute of 31 H. 8. c. 13. All Monasteries under Two hundred pounds per Aâ— were to be dissolved by the Statute of 27 H. 8. But those of 200 l. per Ann. or upwards not till the 31 of H. 8. The Unity aforesaid or perpetual Unity is where the Abbot Prior c. time out of mind have been seized of the Lands out of which the Tithes arise and also of the Rectory of the Parish in which the Lands lie Which Unity as to a discharge of Tithes must have these four properties 1 It must be Justa as to the Title 2 Perpetua or time out of mind 3 Aequalis that is a Fee-simple both of the Lands and Rectory 4 Libera or Free from the payment of all manner of Tithes whatsoever In a Case where an Abbot held a Pâ—rsonage Impropriate which was discharged of Tithes and had purchased Lands so that the Tithes were suspended in the hands of the Abbot and afterwards the Possessions of the Abbot coming to the King by the Statute of 31 H. 8. The Question was Whether the Lands so purchased by the Abbot before his Surrender to the King were discharged of the Tithes It was the Opinion of Mr. Plowden in that case that they were not discharged for that no Lands were discharged but such as were lawfully discharged by right Composition or other lawful thing and in the said Case the Lands were not discharged in Right but suspended only during the time that they were in the Abbots hands Acorns or Mast of Oak shall pay Tithe for they are of Annual increase as in Lifoâ—d's Case These Acorns or Mast are known in the Law by the word Pannagium so Lindwood Pannagium est pastur Porcorum in Nemoribus Sylvis ut puta de glandibus aliis fructâ—bus arbâ—rum Sylvestrium quarum fructus aliter non solent colligi Lindw de Decim c. Sancta Ecclesia verb. Pannagiis And Mr. Skene de verb Sign defines this to be a Duty given to the King for the pasturage of Swine in his Forrests Also Pannagium is taken for the money which is paid for the Pannage it self as appears by the Statute of Charta de Foresta cap. 90. Vnusque liber homo c. Aftermoath or Second Moath Of this Tithes shall be paid de jure unless there be a Special Prescription of Discharge by paying the Tithes out of the first Moath and then it shall be discharged But if a man pay Tithe-Hay no Tithes ought to be paid dâ— jure afterwards for the pasture of the same Land for the same year for he shall not pay Tithes twice in one year for the same thing for that the After-pasture is but the Reliques of Hay whereof he had paid Tithes before Nor shall Tithes be paid for Agistments in such After-grass In Johnson and Awberie's Case it was Resolved that Tithes are not to be paid for the After-pasture of Land nor for Rakings of Corn And where in Awberies Case Suit was in the Ecclesiastical Court for the Tithe of the After-mowings of Grass anâ— upon a Surmize That the Occupiers of the Land had used to make the first Cutting of the Grass into Cocks for Hay and to pay the Tenth Cock thereof in satisfaction of the First and After-mowings a Prohibition was awarded So that After-grass or After-pasture or Aftermoath do not pay Tithes where they have paid before of the Grass of the same ground the same year save where by Covin to defraud the Parson more Grass is left standing than was wont to be or is there usual Nor is the Herbage of Cattel which eat up that Grass Tithable unless there be some Fraud in the case Notwithstanding the Premisses although the Aftermoath be not Tithable where the Owner at his own costs charges and labour made the first Grass into Hay yet Q. whether it may not be otherwise where the Owner doth no more than cut down the Grass of the first Moath Agistment that is a taking into Grass the Cattel of Strangers within the Parish where the Grass grows this is Tithable and regularly by the Owner or Tenants of the Land not of the Cattel unless the Custome makes it Tithable by the Stranger Heretofore there was not any Tithe paid for this Agistment but now the Law is taken to be otherwise And is
as aforesaid to be paid by the Owner not of the Cattel but of the Land Under this Notion of Agistment is also comprehended the depasturage of Barren Cattel whereof comes no profit to the Parson the Quota of which Tithes is regulated by the Annual value of the Land the Number of the Cattel or the Time of the Pasturing according to the usage and custome of the place yea though the Cattel be bred for the Plough or Pail to be employed out of the Parish where they are Agisted and by one that is no Inhabitant within the Parish Tithes shall be paid for the Agistment of such Cattel But for profitable Cattel as Oxen Horses or Beasts of the Plough employed and used in the same Parish no Tithes shall be paid for the Agistment thereof But if Cattel or Horses be bought not for any Husbandry in the same Parish but to be sold again Tithe shall be paid for the Agistment thereof and a fraudulent employment of them in the Parish to defeat the Parson of his Tithes will not prevent the same A. sued a Prohibition against B. Parson of D. because he Libelled in the Ecclesiastical Court for Tithes for Agistments the Plaintiff pleaded That he had alwaies paid 12 d. for every Milch-Cow going in such a Pasture and for this payment he had been discharged of Tithes for all Agistments in that Land In this case it was said That this payment of money for Milch-Beasts should not discharge him from the payment of Tithes for other Beasts In the Case of Lacie against Long the suggestion for a Prohibition was That Parson sued in the Spiritual Court the Owner of the Land for Tithes of Cattel which he took to Agistment where he ought to sue the Owner of the Cattle It seemed reasonable to the Court that the Suit was well brought against the Owner but be it quomodocunque it belongs to the Spiritual Court to determine whether the one or the other ought to be Sued therefore for that reason as to that point a Consultation was granted per Curiam Vid. Pasture Agreement No Parson can by any Agreement made with his Parishioner bind his Successors but being made with him for his Tithes during only the Parsons life this is good And an Agreement only by Word without any Deed may be good made by the Parson with his Parishioner that he shall keep his Tithes A Parson contracted with A. his Executors and Assigns for 10 s. to be annually paid him by the said A. his Executors and Assigns That he his Executors and Assigns should be quit from the payment of Tithes for such Lands during the life of the Parson A. paid the Parson 10 s. which he accepted of and made B. an Infant his Executor and died The Mother of the Infant took Letters of Administration durante minori aetate of the Infant and made a Lease at will of the Lands The Parson Libelled in the Spiritual Court for the Tithe of the same Land against the Tenant at Will In this Case it was said That the Agreement did oblige the Parson during his life and although the Assignee could not sue the Parson upon the Contract yet he should have a Prohibition to stay the Suit in the Ecclesiast Court and put the Parson to his Remedy for the 10 s. upon the Contract for that he could not have Tithe in kind by reason of the Composition made If a Parson agree and contract with one of his Parishioners that he shall keep back his own Tithes if that be made after that he hath sown his Corn and for the same year only in that case the Agreement shall be good And if the Parson sue in the Ecclesiastical Court for the said Tithes the Parishioner shall have a Prohibition but if it be for more years than one or before the Corn is sowed this shall not be good by Coke and Foster against Warburton and Coke said it was so Adjudged in B. R. in Parson Booth's Case That a Contract made with a Parishioner for keeping back of his Tithes for so many years as he shall be Parson was not good and so it was Wellow's Case here also But it was Agreed by them all That such a Contract or Agreement for the Tithes of any other was void but only of the party himself who was party to the Agreement and that ought to be made by way of keeping them back Vid. 20 H. 6. 21 H. 7. 21. b. Tithes cannot be granted without Deed It was Agreed by the Justices in Bugg and Woodward's Case That an Agreement between a Parishioner and the Parson that in consideration of twenty shillings per An. he should hold the Land discharged of Tithes during the life of the Parson was not good to ground a Prohibition upon for that the Grant of Tithes cannot be without Deed The like in Hawks and Bryafield's Case in stay of Suit for Tithes in the Ecclesiastical Court it was Surmized That A. was seized of a Messuage and Lands in the Parish of D. and agreed with the Defendant being Parson in Consideration of Ten pounds to be yearly paid by A. to the Defendant during their Joynt-lives and his continuing Parson in satisfaction of all Tithes growing upon the same Lands that he should hold the Lands without payment of Tithes Resolved it was not a sufficient Surmize to ground a Prohibition For an Agreement to be discharged from payment of Tithes for one year by word may be good but such an Agreement during the life of the Parson cannot be good without Deed Alms or Things appointed for Alms are not Tithable Animalia Vtilia such as Cows Sheep and the like shall pay Tithes in kind Animalia Inutilia as Oxen Horses and the like though Tithe cannot be paid thereof in specie yet for their depasturage or what bargain is made for the same Tithes shall be paid Apples Suit in the Ecclesiastical Court for the Tithe thereof in discharge whereof an Award or Arbitrement was there pleaded and the plea refused notwithstanding which a Prohibition was denied B BArk of Timber Trees is not Tithable but is priviledged together with the Trees Barren Ground which is suapte natura Barren is not Tithable but if Tithe-Wool and Tithe-Lamb have by Thirty years been paid for it and after by Manurance is made Fertil then for the first Seven years such Tithe shall be paid for it as was paid before Therefore Barren Heath or Waste-grounds naturally Barren and not Manurable without extraordinary charge may pay Tithe of Wool Lamb or the like but being converted into Tillage shall pay no Tithe of Corn or Hay for the first Seven years after such improvement during which time it shall pay only such Tithe as was formerly paid Otherwise it is if it became barren only by ill Husbandry Or if it became Barren by some accident of Inundation or overgrown with Bushes and after reduced
away yet it may limit and moderate the payment thereof Notwithstanding in some places and cases a Custome applied to a Countrey to pay no Tithe as in 40 Parishes for the Wild in Sussex is good but generally such a Custome is not good Likewise a Custome tending to the impoverishment of the Parson or Vicar is no good Custome Mich. 11 Jac. C. B. inter Jux and Sir Charles Candish Likewise a Custome to pay Tithes truly without view of the Parson is not good Also a Custome alledged to pay the Tenth Sheaf of Wheat for the Tithe of all manner of Corn and Grain is not a good Custome dict Cas Jux 38 Eliz. C. B. Adjudg But a Custome to pay Tithe-Wool at Lammas-day though due at Shearing is good But such is the strength of a Custome that it cannot be discharged by a verbal Agreement for Money Custome may make that Tithable which of it self is not Tithable and may alter Tithes in any other thing which will be a Modus Decimandi sufficient to bind the Parson and his Successors Custome is properly Triable at the Common Law upon a Prohibition but a Consultation may be granted on a Prohibition granted on a Surmize not proved within Six months as was Adjudged Hill 6 Jac. C. B. in Cas inter Sharp and Sharp Noâ— Rep. Custome and Prescription both ought to be without interruption Constant and beyond the memory of man Perpetual that is no man in being remembers to the contrary for it seems if any man or any Authentick Record or other sufficient Evidence can prove it was otherwise at any time since the first of R. 1. viz. 1189. the Custome or Prescription at Common Law would not hold Albeit by the Statute of 2 Ed. 6. c. 13. Tithes are to be yielded and paid as of right they had been within 40 years next before which time somewhat agrees with the Ecclesiastical Computation And by the Statute of 27 H. 8. c. 20. they are to be paid according to the Ecclesiastical Laws and Ordinances after the laudable Usages and Customes of the Parish which was also after confirmed as to the lawful Usage and Custome by the Stat. of 32 H. 8. 7. D DEcimae Majores such as Corn Hay c. belong to the Parson Decimae Minores or Minutae as Saffron Herbs c do belong to the Vicar Pasch 38 Eliz. B. R. Beding and Feak's Case Mich. 1 Car. C. B. Sir Rich. Vdal and the Vicar of Alton's Case Deer though they are Ferae naturae yet they may be given for Tithes and although they are not Tithable of themselves yet they may be given for a Modus Decimandi Hill 6 Jac. C. B. the Vicar of Clare's Case Sharp and Sharp's Case Noy 148. acc Deprivation A Parson may after his Deprivation sue in the Ecclesiastical Court for subtraction of Tithes which were due to him before his Deprivation and a Prohibition will not lie in the Case Adjudged Hill 13 Jac. Cole's Case Discharge of Tithes may be either by Custome Prescription Composition Statute Unity of Possession or by Priviledge as to Religious Orders now not of use There may be also a Discharge of Tithes as against the Vicar by the payment thereof unto the Parson And it may be by a Real Composition but it cannot be by a Verbal Agreement for money And if there be a Discharge not of the Tithes themselves but from the exact payment thereof by a Modus Decimandi or Annual recompence in satisfaction thereof it must be by Custome or Prescription By the Common Law a Lay-man although he were capable of a Discharge of Tithes by Grant of the Parson Patron and Ordinary or by Composition yet at that Law none had a capacity to take or receive them save only Ecclesiastical persons or a Mixt person as the King And by the same Law if a Bishop were absolutely Discharged of Tithes by Prescription whilst the Lands were in his hands his Demising thereof to a Lay-man could not make the same chargeable therewith For in Wright's Case where the Bishop of W. was seized of a Mannor in right of his Bishoprick Prescribed that he and all his Predecessors had held the said Mannor and the Demesns thereof time out of mind for him his Farmers Tenants for years or at will Discharged and acquitted from payment of Tithes for these Lands the Bishop made a Lease for years of parcel of the Demesns The Farmer of the Rectory Libelled in the Ecclesiast Court against the Lessee for Tithes all which matter he pleaded in the Ecclesiastical Court and the Judge there refused to allow of the Allegation in Discharge of the Tithes It was held in this case 1 That if the Lands of the Bishop were absolutely Discharged in his hands by Prescription the Demising of it to a Lay-man could not make it chargeable with Tithes 2 That a Spiritual person may Prescribe in non Decimando 3 That the Refusal by the Ecclesiastical Judge to allow the Allegation in Discharge of Tithes is not Traversable In like manner the King being seised of Lands parcel of the Forest of B. in Fee in right of the Crown Discharged of the payment of Tithes granted the Lands to the Earl of Hertford in Fee and it was held that the Patentee should be Discharged of payment of Tithes and a Prohibition was granted in that Case Yet in another Case where it was surmized for a Prohibition that the Prior of B. was seised of Lands parcel of his Priory and held them till the dissolution Discharged of Tithes for his Farmers and Tenents for life or years that the Priory was dissolved 27 H. 8. that the King was seised of the Lands and shews the Statutes of 32 H. 8. and 2 Ed. 6. and that the King died seised of the Lands that by mean Conveyances it was conveyed to J. S. and that the Plaintiff being his Tenant for years was sued by the Parson of B. for the Tithes of these Lands It was Resolved by the Court That the Lands which came to the Crown by the Statute of 27 H. 8. should not be Discharged from the payment of Tithes but should pay the same although the Lands in the hands of the said Religious Persons or Houses were Discharged from the payment thereof for that the Priviledges were Personal Priviledges which were extinguish'd by the said Statute of Dissolutions and there are not any words in the said Statute of 27 H. 8. to save the Priviledges and the Statute of 31 H. 8. being a subsequent Law had not respect to these Priviledges Likewise where a Parson by Deed Indented leased his Glebe cum omnibus proficuis Commoditatibus It was notwithstanding Adjudged that the Lessee should be charged with the payment of Tithes And in Branches Case it was Resolved That an Union of Copyhold Lands and of the Parsonage in the hands of the Parson as Parson Imparsonee
was no Discharge of the Tithes of the Copyhold Lands And in this Case it was also Adjudged That a Farmer of Lands might Prescribe in Modo Decimandi but not in non Decimando The Statute of 31 H. 8. gave all Colledges Dissolved to the Crown in which there is a Clause That the King and his Patentees should hold Discharged of Tithes as the Abbots held Afterwards the Statute of 1 Ed. 6. gave all Colledges to the Crown but there is in it no Clause of the Discharge of Tithes The Parson Libelled in the Ecclesiastical Court and the Farmer of the Lands of the Colledge of Maidstone in Kent brought a Prohibition upon the Statute of 31 H. 8. The Court was clear of Opinion That the King had the Lands of the Colledge by the Statute of 1 Ed. 6. and not by the Statute of 31 H. 8. But the Justices doubted the Lands coming to the King by that Statute whether they should be Discharged of Tithes by the Statute of 31 H. 8. there being no Clause in the Statute of 1 Ed. 6. for Discharge of Tithes But it was Resolved by the Justices That Unity without Composition or Prescription was a sufficient Discharge of Tithes by the Statute of 31 H. 8. The Templers were Dissolved and their Possessions and Priviledges by Act of Parliament 17 Ed. 2. transferred to St. Johns of Jerusalem and their Possessions by Act of Parliament 32 H. 8. cap. 24. given to the King It was Resolved That the King and his Patentees should pay Tithes of those Lands although the Lands propriis sumptibus excolantur because the Priviledges to be Discharged of Tithes were proper to Spiritual persons and ceased when the person Spiritual was removed And the Statute of 31 H. 8. of Dissolutions did not extend to such Lands as came to the King by Special Act of Parliament as those Lands of St. Johns of Jerusalem did And Mich. 6. Jac. C. B. in a Case de Modo Decimandi it was said That one may be Discharged of Tithes five waies 1 By the Law of the Realm viz. the Common Law as tithes shall not be paid of Coles Quarries Bricks Tiles c. F. N. B. 53. and Reg. 54. nor of the After-pasture of a Meadow c. nor of Rakings nor of Wood to make Pales or Mounds or Hedges c. 2 By the Statutes of the Realm as 31 H. 8. 13. 45. Ed. 3. c. 3 By Priviledge as those of St. Johns of Jerusalem in England the Cistertains Templers c. as appears 10 H. 7. 277. Dyer 4 By Prescription as by Modus Decimandi annual recompence in satisfaction 5 By real Composition By all which it appears that a man may be Discharged of payment of Tithes yet a Lay-man ought not to prescribe in non Decimando albeit the may in modo Decimandi And this in effect agrees with Tho. Aquinas in his Secunda Secundae Quaest 86. art ult vid. Dr. Stu. lib. 2. c. 55. fo 164. And the Causes why the Judges of the Common Law permit not the Ecclesiastical Judges to try Modum Decimandi being pleaded in their Courts is because that if the Recompence which is to be given to the Parson in satisfaction of his Tithes doth not amount to the value of this Tithes in kind they might overthrow the same And that appears by Lindwood Constit Mepham de Decim c. Quoniam propter verb. Consuetudines For this Reason it is said a Prohibition lies and therewith agrees 8 Ed. 4. 14. vid. 7 Ed. 6. Dyer 79. and 18 Eliz. Dyer 349. In a Prohibition upon a Suit in the Ecclesiastical Court by the Defendant the Vicar of D. for Tithes A Prohibition prayed upon his Plea thereof a Modus Decimandi to pay so much yearly to the Parson of Dale in Discharge of his Tithes and the same Plea there disallowed The whole Court agreed that this Modus between him and the Parson will not discharge him from payment of Tithes as to the Vicar and therefore by the Rule of the Court a Consultation was granted Also the Court was of Opinion That where a Bishop holds Lands discharged of Tithes and he makes a Feoffment of the Land the Feoffee shall be discharged of Tithes and the like if the King hath ancient Forest Lands discharges of Tithes and the King grants this Land the Grantee is discharged of Tithes And it is a General Rule That he which may have Tithes may be Discharged of Tithes So long as the Land is occupied by him who hath the Fee-simple which did formerly belong to the Order of Cistertians it shall pay no Tithes but if he lett it for years or life the Tenant shall pay Tithes For anciently there were many large Estates wholly exempted from paying Tithes as Land belonging to the said Cistertian Monks to the Knights Templers and Hospitallers As in the Earl of Clanrickard's Case who Libelled in the Ecclesiastical Court for the Tithes of Hay of a certain Meadow against Dame Denton who pleaded That the Prior of A. was seised of that Meadow as parcel of the Possessions of the Priory and that they held it discharged time out of mind c. whereupon Issue was joyned upon a Prohibition and it was found for the Plaintiff for that the Land was only discharged when it was in the hands of the Priory and not when it was in the hands of their Farmers and they were of the Order of Cistertians whereupon a Consultation was granted And now a new Prohibition was prayed for that in the Ecclesiastical Court they had added to the former Libel when the Statute of 50 Ed. 3. cap. 4. is That whereas a Consultation is duly granted upon a Prohibition that the same Judge may proceed in the same case by virtue of the former Consultation notwithstanding any other Prohibition Provided alwaies that the matter in the Libel of the said cause be not altered enlarged or otherwise changed Dr. Pope Doctor of the Civil Law said That there was not any enlarging or changing in substance of the Libel in question for whereas in the former Libel it was That they had used to pay Tithes time out of mind now in the second Libel is added That although the Prior was discharged yet they viz. the Farmers have paid Tithes for 20 30 or 40 years and time out of mind Montague Ch. Justice said That it seem'd that that was not an alteration but Doderidge and Houghton Justices held That that was an alteration of the Libel for now by that last Libel They could fetch them in for Tithes though they were discharged in the hands of the Abbot and for that the Tithes had been paid for 20 30 or 40 years since the Statute aforesaid the which is a sufficient time to make a Prescription according to the Law of the Civilians they would charge the Land with Tithes in whose soever hands they are when by the Statute it ought to be discharged only in
Prohibition for that the Law shall decide thereupon it was between Dawes and Huddlestone No Tithes shall be paid in kind without a Custome for Fish taken in the high Sea out of any Parish Hill 14 Car. B. R. between Long and Dircell per Curiam and Prohibition granted accordingly And Justice Jones said that on an Appeal to the Delegates out of Ireland in the Lord Desmond's Case it was Agreed That for such Fish so taken only Personal Tithes are due deductis expensis Likewise no Tithes in kind shall be paid de jure for Fish taken in a Common River which is not enclosed as in a Pond enclosed for that they are Ferae naturae although they are taken by one who hath a severed Piscary there and although the place where they are taken be within the Parish of that Parson who claims them for it is a Personal Tithe in which Tithes ought to be paid deductis Expensis Pasch 15 Car B. R. between Gold and Arthur and others Prohibition was granted where the Suit was for Tithes of Salmon in the River of Exe. Mich. 15 Car. between Whislake and the said Arthur and others the like Prohibition granted on the same matter between other parties And in the Case of a Prohibition it was Resolved That Tithe shall be paid for Fish taken in the Sea which is not within any Parish and they shall be paid to the Parson of the Parish where the Fish is landed Flax pays a Predial Tithe payable when dressed up Coke Mag. Char. 649. The Tithes of Flax are Minutae Decimae Mich. 14 Car. B. R. in Noah Webb's Case Forest-Lands that lie in no Parish or between two Parishes and anciently such are not Tithable by the King or his Patentees but if the Forest be in a Parish and Land therein which is Tithe-Free if the Forest happen to be disforested it shall pay Tithes in kind Crompt Jurisd 52. Bacon Chief Justice at Sarum-Assize the Case was A. Lessee for years of the Earl of H. prayed a Prohibition against the Vicar of L. to stay a Suit in the Ecclesiastical Court for Tithes because the Lands out of which the Tithes were demanded were parcel of the Forest of B. whereof the King was seised in right of his Crown and he and all his Predecessors held the said Land discharged of Tithes and shewed that the King had granted the said Forest to the Earl of Hertford in Fee and so he ought to have them discharged of Tithes In that Case it was held by the Court That it was only a Priviledge annexed to the Crown during the time that the Land was in the Crown but the Court doubted whether the Patentee might have such Priviledge But yet de bene esse the Prohibition was granted If Tithes do lie in any Forest as in the Forest of Windsor Rockingham Sherwood or other Forest which is not any Parish the King shall have them by his Prerogative and not the Bishop of the Diocess or Metropolitan of the Province as some have thought But yet it seems by 22 Ass 25. if there be cause of Suit for such Tithes against the parties who ought to pay the same such Suit might be brought in the Ecclesiastical Court But if a Stranger takes away such Tithes from the Parson or Vicar there for such Trespass the Suit may be in the Temporal Court as the same may be for taking away other goods in the like case Adjudg 15 Car. B. R. Fowl taken by a Faulkner who hawks for his pleasure shall not pay Tithe but if a Fowler kill Fowl and make a profit of them it hath been held that he shall pay a Personal Tithe for them Pasch 15 Car. Adjudg acc Fruits of Trees as Apples Pears c. are Tithable presently upon their gathering and are Predial Tithes for the subtraction whereof the Parishioner is impleadable Stat. 2 Ed. 6. c. 13. Fruits of Trees Apples Pears c. Mast of Oak Beech c. are Predial Tithes Coke Magn Chart. 649. The Fruits of Orchards and Gardens are Tithable in their proper kinds and to be paid when they are gathered unless there be some Modus or Rate-Tithe paid in lieu thereof Furse is Tithable and pays a Predial Tithe unless the Owner thereof can prescribe or prove a Custome of Tithing Milk or Calves of the Cattle on the ground where the Furse grows Mich. 29. Eliz. B. R. Vid. Heath G GArdens are Tithable as other Lands and therefore the Herbs which grow therein pay Tithes in kind Also Plants Seeds Woad Saffron Hemp Rape c. pay Tithes in kind unless the Parson make an Agreement for the same otherwise the Tenth part must be set forth for the Parson when the Owner receives his Nine parts Mich. 8. Jac. C. B. in Baxter's Case Trin. 9 Jac. B. R. The whole Court Glebe is a portion of Land Meadow or Pasture belonging to or parcel of the Parsonage or Vicarage over and above the Tithes If it be Demised by the Parson to a Lay-man it pays Tithe otherwise if he keep it in his own hands For Glebe kept in the Vicars own hands pays no Tithe to the Parson Impropriate it is otherwise if it be in the hands of his Lessee by whom it is Tithable if lett by a Parson Impropriate And although Glebe-Lands are not properly Tithable because Ecclesia Ecclesiae Decimas non debet solvere yet if Glebe-Lands be leased out the Parson the Lessee shall pay the Small Tithes arising out of such Glebe-Lands to the Vicar that hath Small Tithes upon his endowment as in Blinco's Case And yet in that case the Vicar Libelled in the Ecclesiastical Court to have Tithes of the Glebe of the Parson and a Prohibition was granted for that the Glebe shall pay no Tithe Notwithstanding which if a Parson lease his Glebe-Lands and do not withal Grant the Tithes therof the Tenant shall pay the Tithes to the Parson Likewise if a Parson sow his Glebe-Land and then Lease the same the Tenant shall pay the Tithes of this Corn to his Landlord the Parson Yet if a Parson sow his Glebe and die before Severance some have held that his Executors shall not pay Tithes of this Corn. And albeit where glebe-Glebe-Lands are leased out by the Parson the Lessee shall as aforesaid pay the Small Tithes thereof to the Vicar that hath the Small Tithes upon his Endowment yet he shall not have the Small Tithes arising upon such of the Parsons Glebe-Lands as the Parson keeps in his own hands Likewise on the other hand it hath been held That the Vicar upon a general Endowment shall not pay Tithes of his Glebe to the Parson or of the Fruits that arise from the same and that for the same reason aforesaid Quia Decimas Ecclesia Ecclessae reddere non debet But the Lessee of the Parsons Glebe shall pay him the Tithes thereof to this purpose the Case was A Parson
Custome is not otherwise the Parishioner ought to make the Grass into Hay for the Parsons Tithe Yet when the Tithes of Grass are severed from the Nine parts the Parson de jure may make it into Hay upon the Land where it grew and that de jure as well as the Parishioner himself and so Adjudged in the Parson of Columbton's Case in Devon and the Prohibition denied accordingly where the Parson had alledged a Custome of doing so but the Court held that to be needless Hill 14. Jac. B. R. Newbery and Reynold's Case per Curiam And in this case it was held That the Parson may go over the Parishioners ground in the Path-way to make the said Grass into Hay for that is incident to the Tithes A man is not bound to make into Hay the Tithes of the Grass which he cuts but he may set forth the Tithes thereof when it is in Grass-Cocks for he may then sever the Tithes of Grass from the Nine parts Pasch 17 Jac. B. Hide Ellis Hob. Case 328. Contr. Hill 14 Jac. B. R. Barham Goose P. 15. Jac. B. R. per Cur. and Prohibition denied Tr. 15 Jac. B. R. Poppinger Johnson per Cur. and Prohibition denied Pasch 13 Jac. B. R. per Cur. and Prohibition denied P. 2. Jac. B. R. Hob. 328. Hall Simonds Adjudged Likewise a man is not bound to sever the Tithe of Grass before it be put into Grass-Cocks and hath set forth the Tenth part for he may put it into Grass-Cocks out of the Swath and then set forth the Tenth part Ibid. Suit was for Tithe-Hay in the Ecclesiastical Court by the Parson it was Surmized That they had time out of mind paid to the Vicar 4 d. for the Tithe-Hay The Court awarded a Consultation for that the Modus Decimandi doth not come in question but this he may plead in the Ecclesiastical Court And in Gomersall and Bishops Case for Tithe-Hay the Court held That if there be variance between the Surmize and the Declaration all is ill In another Case in a Prohibition it was Surmized That time out of mind the Owners of the Land had found Straw for the Body of the Church in discharge of all Tithes of Hay It was the Opinion of the Court That it was no good Surmize for that the Parson had no benefit of it and a Consultation was awarded Heath Furse and Broom Tithe shall be paid thereof unless the party set forth a Prescription or Special Custome That time out of mind there hath been paid Milk Calves c. for the Cattel that have been kept upon the same Lands in which case they shall not pay Tithes Hemp pays a Predial Tithe Co. Magn. Char. 649. Herbage of ground whereon Corn was sowed the same year and whereof Tithe hath been paid the same year is not Tithable If Herbage he sold it is at the Parsons Election whether he will Sue the Owner of the Cattel that feed thereon or of the Ground for the Tithe thereof if Custome be not against it And as for Herbage growing at Lands-ends adjoyning to the Arable pays no Tithe where Tithe was paid for Arable Where an innkeeper hath paid Tithe-Hay of certain Lands and the rest of the year after puts into the same the Horses of his Guests no Tithes shall be paid for the Herbage of such Horses for it is but the After-pasture of the same Land whereof he had paid Tithes before Trin. 16 Jac. B. R. Richardson Cable per Curiam Prohibition granted Honey is Tithed by the Tenth measure thereof A Prohibition was prayed for Suing for divers kinds of Tithes inter alia for Honey upon a Surmize that it was not payable that Bees are Volatilia It was thereupon demurred but the Opinion of the Court was That Tithes are to be paid for Honey for so is the Book Fitz. N. B. and therewith agreeth Lindwood wherefore the Court awarded that there should be a Consultation Hops pays a Predial Tithe and regularly are accounted inter minutas Decimas yet in some Cases they may be Great Tithes in places where they are much set or planted Mich. 8. Jac. B. A man may set forth the Tenth part of his Hops for Tithes before they be dried Hill 14 Jac. B. R. in Barham and Goos's Case put by Serjeant Hitcham and agreed by Mountacute Hop-poles or Wood cut and employed for them are not Tithable where Tithe Hops are paid And so it hath been Resolved That if Wood be cut and employed for Hop-poles where the Parson or Vicar hath Tithe-Hops they shall not have Tithes of the Hop-poles So if a man hath a great Family and much Wood be felled and spent in House-keeping Tithes shall not be paid of such Wood. Mich. 15 Jac. C. B. by Hobart Chief Justice White Bickerstaff's Case Houses of habitation or Dwelling-houses are not properly Tithable no Tithe payable for the same nor out of the Rent reserved for them being Lett yet by a Custome Tithes may be paid for Rent reserved upon Domise of Houses of habitation although it be otherwise do jure for it might commence on good Consideration Co. 11. Dr. Grant 16. vid. Mich. 12 Jac. B. Hobart 16. Leyfield's Case Prohibition granted Otherwise of New Houses whereof there can be no Custome Ibid. But regularly Houses are not at all Tithable nor were Tithes anciently paid for Houses in London the Profits of the Churches whereof consist only in Oblations Obventions and Offerings Co. ibid. But by a Decree made An. 1535. and confirmed by Act of Parliament Stat. 37 H. 8. cap. 12. there is 2 s. 9 d. made payable to the Parson for every Pound of House-Rent for the Tithes of the Houses in London Hob. 11. But if a Modus Decimandi be alledged to pay 12 d. in every Pound of Rent for every House in such a Parish in London it is a good Modus Decimandi The aforesaid 2 s. 9 d. is to be raised and made up according to the usage and Custome of the City Stat. 27 H. 8. 20. 32 H. 8. 7. And no Tithes are payable for Houses in any City save London where a Prescription to be discharged of Tithes of a House by paying 12 d. of every Pound Rent in lieu thereof is as aforesaid a good Prescription Co. 11. 16. But Tithes regularly are not payable for Houses of Habitation nor of any Rent reserved upon any Demiss of them for Tithes are to be paid of things which grow and renew every year by the Act of God And for the Houses in London Tithes anciently were not paid as aforesaid yet the Parson of St. Clements without Temple-Bar Libelled against a Parishioner for Tithes of certain Stables 〈…〉 set forth in his Libel That of 〈…〉 â—â—scription time out of mind the 〈…〉 had used to have a Modus Decimandi after the Rate 〈…〉 Tenth-part of the yearly Rent or value of the same 〈◊〉 was the Opinion of
paid no Tithe is to be paid except a Personal Tithe as is for a Trade of profit And such Tithe shall be paid of Fulling Mills Rapt Mills Paper Mills Iron Mills Powder Mills Lead Mills Copper Mills and Tin Mills for such Mills pay no Tithe as Mills because they are but Engines of their occupation Pasch 17. Jac. Johnson's Case Cro. 2. 532 Bulstr 3. 212. Fitzh N. B. 41. G. Co. 2. 44. only the Millards are to pay a Personal Tithe as aforesaid as for a Handicraft or Faculty Therefore a Fulling-Mill as such pays no Tithe Hill 16 Jac. B. R. between Dawbridge and Johnson Parson of Buckfield For there being a Fulling-Mill which Fulled 40 Clothes a week and gained two shillings for every Cloth It was held that there was no Tithe to be paid thereof Cro. 2. Abridg. Case 2638. But a Corn Mill newly erected though upon Land discharged of Tithes by the Statute of Monasteries must pay Tithes and so of every new erected Mill on a mans own ground Ibid. Cas 1522. Notwithstanding the Premisses it seems somewhat questionable whether any Tithes are due for Mills de jure or not for the Lord Coke Instit 2. par 622. says It was never Judicially determined that ever he knew of If Mills do not yield a Predial Tithe yet doubtless the Millards are to yeild a Personal Tithe as well as other Handicrafts-men but Custome in this as in other cases prevails It hath been Adjudged Trin. 18. Jac. B. R. That where a Parson Libelled in the Ecclesiastical Court for Tithes of a Mill which was erected upon Lands which were discharged from payment of Tithes by reason of Priviledge within the Statute of 31 H. 8. That a Prohibition would not lie in that case for that De Molendino de novo Erecto Tithes ought to be paid Mich. 15 Eliz. in Hapers Rep. acc But in the other Case of the Fulling-Mill aforesaid where the Parson Libelled in the Ecclesiastical Court for the Tithes thereof and suggesting that the Miller Fulled every week 40 Clothes as aforesaid and gained two shillings of every Cloth demanded Tithes for them A Prohibition was granted in that case for it was said by the Justices That by the Law of the Land he ought not to pay Tithes of such Mills for of such things as come only by the Labour of men Tithes are not payable but of things which are renewable every year dict Cas Dawbridge Johnson Cro. par 2. 523. And in another Case where a man Libelled to have Tithes of Mills upon a Suggestion of a Modus Decimandi for the same a Prohibition was granted In that Case it was said by Coke Chief Justice That in some cases Tithe is payable for Mills and in some cases not No Personal Tithes by the Statute is to be paid of Mills but where by special Usage the same hath been paid and whereas a Modus Decimandi was alledged to pay Tithes for Mills it was Resolved That the Modus did not extend to Mills newly erected upon the Statute of Articuli Cleri for De Molendino de novo erecto solvuntur Decimae Trin. 14 Jac. B. R. Jake's Case Bulâ—â—r pa. 3. 212. If two Fulling-Mills be under one Roof and a Rate-Tithe paid for 〈◊〉 Mills and after you alter these Mills and make one of them a Corn-Mill the Rate-Tithe is gone and you must pay Tithes in kind Brownl pa. 1. Cases in Law If there be two ancient Corn-Mills time out of mind c. for which 6 s. 8 d. have been paid for the Tithes time out of mind c. and after in continuance of time the Mill-Stream doth change his course and goes another way at a little distance from the ancient Stream and thereupon the Owner of the Mills pulls down one of the ancient Mills and new builds it in that other place where the Stream now runs In this case it shall be discharged of any Tithes by force of the ancient Modus for that happened by the act of God and not by the act of the party and Prohibition was granted accordingly Mich. 11 Car. B. R. Johnson and Dawbridge's Case Resolved Per Curiam But withal the Court held that if the Stream had been altered by the Owner Tithes ought to have been paid as of a new Mill. In another Case it being Libelled in the Ecclesiastical Court for Tithes of a Grist-Mill and of a Fulling-Mill Crook agreed That for a Grist-Mill Tithes shall be paid but he said That the Statute De Articulis Cleri which speaks de Molendinis non fiat Prohibitio ought not to be meant or intended of a Fulling-Mill for the profit that accrues by that is by the Labour of men and therefore not intended within the general words of the Statute De Molendinis for which reason he prayed a Prohibition Calthroppe said that it was the opinion of Justice Warburton and Nicholls 12 Jac. That Tithes shall be paid of Fulling-Mills viz. the Tenth-peny of the gain or profit but of Grist-Mills the Tenth-dish of Corn shall be paid for that is in the nature of a Predial Tithe And so it was held 5 Jac. in the Case between Vbi and Lux Vid. Lindw Provin Constit But yet Doderidge held That if there be not a Special Custome alledged for the payment of Tithes of a Fulling-Mill Tithes shall not be paid thereof for he had spoken as he said with the Civilians who held that Tithes should be paid of such a Mill but they could not agree what manner of Tithe it is for some said it is a Predial Tithe Others that it is a Personal Tithe but he said it could not be a Predial Tithe for it wholly accrues by the Labour of man and if so be that he should have that Tithe as a Predial Tithe then another Tithe would be demanded of him who Sheers the Cloth and also of the Dyer thereof and so Tithes should be paid many times for the same Cloth But the Usage or Custome of the Countrey is to be considered And for Tin-Mills or Lead-Mills or Plate-Mills Ragg-Mills or Edge-Paper-Mills no Tithes shall be paid and to this agreed Doderidge Houghton and Croke And therefore as to the Grist Mill a Consultation was granted and as to the Fulling Mill there was a Prohibition Pasch 17 Jac. B. R. Roll. Rep. par 2. A Parson Libelled in the Ecclesiastical Court for Tithes of a Mill which was erected upon Lands discharged of Tithes by the Statute of Monasteries 31 H. 8. A Prohibition was prayed but denied by the Court for de molendino de novo Erecto non jacet Prohibitio Trin. 15 Jac. B. R. Cro. par 2. Also in another Case where it was moved for a Prohibition upon a Suggestion of a Modus to pay so much by a Custome for all Mills erected or to be erected and this appearing to be a New-erected Mill Whether the Custome shall run to this or not upon the Statute of Articuli Cleri c.
5. was the Question Coke Chief Justice This Modus cannot go to this new Mill for an ancient Mill your Modus shall be allowed but not for the Mill newly erected the Custome will not extend to it and therefore by the Rule of the Court for this new Mill a Consultation was granted Mill-stones if one pair thereof be turned into two pair both of them shall pay Tithe and their Priviledge if they had any will be lost Pasch 17 Jac. Johnson's Case Fitzh N. B. I. G. Co. 244. Brownl 1. 31. So that if there be but one pair of Mill-stones in a Mill and a Rate-Tithe be paid for them if afterwards there be another pair of Mill-stones put on now Tithes must be paid in kind Brownl ibid. Milk paying Tithe exempts the payment of Tithe-Cheese made of the same Milk Et è contra Mines or Minerals of Iron Brass Tinn Lead Copper Coles and the like are not Tithable Register 51. F. N. B. 53. 9. Broo. Dismes 18. Mixt Tithes are of the profits of such things as arise partly from the labour and care of men and partly from the Earth whereof the things are and sometimes are called Predial Mediats and come not immediately of the Ground but of things maintained out of the Ground as Cattel Calves Lambs Kids Wool Milk Cheese Chicken Geese Ducks Swans Eggs c. Mixt Tithes are properly such as come of Milk Cheese c. Or ex foetibus animalium quae sunt in pascuis gregatim pascuntur ut in Agnis Vitulis Haedis Caprcolis Pullis c. Coke Magn. Chart. 649. Modus Decimandi is the payment of something in lieu of the just and full Tithe of a thing Tithable legitimated by Composition Custome or Prescription it is when Lands Tenements or Hereditaments have been given to the Parson and his Successors or an Annual certain Sum or other Profit alwaies time out of mind to the Parson and his Successors in full satisfaction of all Tithes in kind in such a place and all Presidents in Prohibitions in discharge of Tithes in case De modo Decimandi run thus viz. That such a Sum had been alwaies paid in plenam Contentationem Satisfactionem Exonerationem omnium singularum Decimarum And although the Sum be not paid yet cannot the Parson sue for Tithes in kind not for the Tithes in kind in the Ecclesiastical Court but for the money in the Temporal Trin 7 Jac. in the Case De modo Decimandi Prohibitions debated before the K. Coke Select Cas 40 46. In Biggs Case it was Resolved where a Prohibition is awarded upon a Suggestion of a Modus Decimandi and a Consultation awarded for not proving the Suggestion within Six months there a new Prohibition shall not be awarded upon an Appeal in the same Suit More 1234. This Modus Decimandi refers only to the Reality viz. the Tithes and not to the Personalty viz. the Offerings Nor can it begin at this day but is and must be by Prescription and is intended to have a lawful commencement upon some Agreement at first made for valuable Consideration with the Parson or Vicar And if the Modus Decimandi be to pay a Sum of money for the Tithe of a piece of Ground which is after turned to Houses and Gardens the Modus continue Yea it doth so actually discharge and extinguish Tithes that they are thereby turned into a Lay-Fee as well as the Nine parts Touching this Modus Decimandi there are some things that seem doubtful and unresolved in the Law as if the Modus be of Land given to the Parson in satisfaction of Tithes and the Land after happen to the evict Q. if the Tithes in kind do not in such case revive Or if Lands be once discharged of Tithes by a Modus Decimandi Q. whether the Tithes shall revive again upon failure of the Modus But if Land be granted to the Parson in satisfaction of Tithes if the Parson alien the same without the consent of the Patron and Ordinary his Successor shall have Juris Vtrum If a man Prescribe to pay a Modus Decimandi for the Tithe of certain Lands if the Land be afterwards lett to Farm and the Farmer pay the Tithe in kind yet it shall not destroy the Prescription as to the Lessor If a Lessee pay Tithes in kind yet that shall not destroy a Modus in the Lessor But if the Modus Decimandi be of a thing for which no Tithe is due de Communi jure it is not good nor can it stand to rise and fall according to the Rent by Prescription as of Houses in London That the Trial of Modus Decimandi as the Common Lawyers affirm belongs to the Temporal not the Spiritual Courts and for the grounds of Prohibitions in such case If the Ecclesiastical Court allow not of any such thing as a Modus Decimandi it is because the Canonists do hold Tithes to be due Jure Divino and consequently not extinguishable in the whole nor diminishable in part by any Custome or Prescription in opposition to the Law of God The Temporal Courts will admit them also to be Jure Divino but do allow if so only Secundum quid viz. quoad sustentationem Cleri but not quoad Decimam aut aliquam aliam certam partem and therefore do admit of a Modus as to the quantum where there is a sufficient maintenance for the Clergy besides which is not only allowed but also confirmed by Act of Parliament So that if the Lord of a Mannor grants parcel of his Mannor to a Parson in Fee to be quit and discharged of Tithes and makes an Indenture and the Parson with the assent of the Ordinary without the Patron grants to him that he shall be discharged of Tithes of his Mannor for that parcel of Land if afterwards the said Lord of a Mannor or his Assigns be sued in the Ecclesiastical Court for Tithes of his Mannor he or his Assigns shall have a Prohibition upon that Deed and therefore if the Lord of the Mannor hath alwaies holden his Mannor discharged of Tithes and the Parson had time out of mind Lands in the same Parish of the Gift of the Lord of which the Parson is seised at this day in Fee in respect of which the Parson nor any of his Predecessors ever had received any Tithes of this Mannor If the Parson now sueth for Tithes of this Mannor the Owner of the Mannor shall shew that Special matter that the Parson and his Successors time out of mind have holden those Lands of the Gift of one who was Lord and the same is good Evidence to prove the Surmize in the Prohibition And in another Case of a Modus Decimandi it was holden by the Court That if a Modus Decimandi be for Hay in Black-Acre and the party soweth the same with Corn seven years together the same doth not destroy the Modus
and shall recover the Treble value of the Tithes in an Action of Debt for although the Treble value be not given to the Parson or other Proprietor of the Tithes by any express words of the Statute yet forasmuch as he is the party grieved and hath the Right of the Tithes in him the Treble value is given to him For wheresoever a Statute giveth a Forfeiture or penalty against any one who wrongfully detaineth or dispossesseth another of his Right or Interest in that case he that hath the wrong shall have the forfeiture or penalty and shall have his Action at the Common Law for the same or he may Sue in the Ecclesiastical Court for the same But in his Action at Common Law it seems he shall recover no Costs as hath been Adjudged But if the Parson or other Proprietor will sue in the Ecclesiastical Court for the subtraction of the Tithes he shall recover there but the double value of them because in that Court he shall recover the Tithes themselves which is equivalent to the Treble value at the Common Law In another Case where Debt upon the Statute of 2 Ed. 6. was brought for not setting forth of Tithes the Plaintiff shewed That Two parts of the Tithes did appertain to the Rectory and a Third part to the Vicarage and that he had a Lease for years of the Rectory and another Lease of the Vicarage And for not setting forth of the Tithes he demanded the Treble value upon Non Debet it being found for the Plaintiff it was urged in stay of Judgment that he ought to have brought several Actions being grounded upon several Leases as his Title is several But it was Resolved That the Action was well brought in regard he had both Titles in him and the Action is brought upon the wrong because he did not sett out the Tithes Again in Debt for not setting forth of Tithes upon the Statute of 2 Ed. 6. The Case was Corn was growing upon the Glebe-Lands of the Vicar which was discharged of Tithes being in his own use It happened that the Vicar died before the Tithe was severed and his Executors did cut and carry away the Corn and he that had the Parsonage appropriate brought the Action The Counsel of the Defendant prayed the Opinion of the Court whether he might plead Nihil debet But the Court refused to deliver their Opinion in it because it hanged in Suit before them In the Case of Mountford against Sidley it was said That where Tithes are sett out the Parson hath a liberty for a convenient time to come and carry them away And this convenience of Time is triable by a Jury if he exceed this he shall be subject to an Action and then by Judgment of Law he shall be taken to be a Trespasser ab initio Otherwise it shall be of a License in Fact given by the Parson himself And it was holden by the Court if the Corn had continued over long his Remedy had been by Action upon the Case And as a Parson ought to have convenient time to carry away his Tithes so likewise he ought to have for that end free ingress egress and regress to through and from the Land where the Tithes are wherein if he meet with any obstruction he ought to see how he Sues and lays his Action for in a Case where a Parson Libelled for Tithes in the Ecclesiastical Court and set forth That the Tithes were set forth and that the Defendant did hinder him and stop him from carrying them away But because he did not Sue there upon the Statute of 2 Ed. 6. for he did not mention the Double value as he ought and it was Agreed by all the Justices he ought to have done nor mention the Statute as he ought also to have done a Prohibition in that Case was awarded The Grant of a Tithe for Life to begin at a day to come is not good Yelvert 131. If a man will lett a Lease of his Tithes the Lease must be by Deed and not by word only therefore if a Parson doth Demise his Rectory for years the Tithes will pass inclusive although the Lease be by word only but if the Parson Lease his Tithes alone they will not pass unless the same be by Deed or Writing Yet the Parson may Demise his Tithes to the Owner of the Land for a year by word only as hath been agreed by all the Justices but to a Stranger he cannot Demise them otherwise than by Deed And although Tithes will as aforesaid pass by Contract to the Owner of the Soil yet may the Parson sue the Owner for Tithes in kind in the Spiritual Court and as it hath been holden the Owner by reason of the Contract shall not have a Prohibition In which case the Ower of the Soil may sue the Parson upon the Contract in the Temporal Court and recover as much in Dammages but then in his Pleading he must not declare of a Verbal Contract but must set forth the same to have been made in Writing and so it hath been Adjudged And in the Lord Shandois Case it was holden by the Court That a Suggestion of an Agreement between him and the Parson in consideration of a certain Sum to be yearly paid to the Parson during their Joynt-Lives and his continuing Parson that his Messuage and Lands in the Parish of D. and the Tenants thereof should be discharged from the payment of Tithes thereof shewing that the said yearly Sum was paid accordingly and that notwithstanding the Defendant sued the Plaintiff being his Farmer for Tithes In this Case it was held That this was not a sufficient Surmize to maintain a Prohibition For an Agreement to be discharged from Tithes may be a year by word but to have such an Agreement for life or years cannot be without Deed Likewise in an Ejectione Firme brought of a Lease of Tithes the Plaintiff did not shew that the Lease was by Deed and because Tithes cannot pass without Deed after a Verdict found for the Plaintiff It was Ruled to be ill and Adjudged for the Defendant To conclude In the 19 El. B. R. it was debated whether Tithes were Jure divino or by the Constitution of men only The Judg. were all it seems of Opinion That they were due as well by the Constitution of Kings as by the Law of God And therewith doth Dr. Stu. 166. if the Qu. be de Quota parte For there it is held that the 60 part is due only by mans Law And the Opinion of Gerson the Divine is cited in his Treatise Entituled Regulae Morales where it is said Solutio Decimarum Sacerdotibus est jure Divino quatenus inde sustentur sed quoad hanc quam illam partem assignare aut in alios reditus commutare Positivi juris est And elsewhere Non vocatur portio Curatis Decima pars imo est
before the Birth of such Child for in that Case he is not reputed a Bastard who cannot inherit Land as Heir to his Father nor can any person inherit Land as Heir to him but one who is Heir of his Body Otherwise it is in case the Child were begotten by him who after the Birth of the Child doth Marry his Mother For in that Case notwithstanding such Marriage subsequent to the Birth the Child is reputed a Bastard in the judgment of the Common Law as being born out of Wedlock though according to the Ecclesiastical Law the Child in that case is reputed as Legitimate But if one Marry a Woman and dye before Night without ever bedding her and she after happen to have a Child within possibility of conception in respect of time computable from such Marriage it seems it shall be accounted his Child and Legitimate 9. If a Child be born within the tenth Month computing thirty days to the Month next after a Mans death it shall be reputed his Child as a Mulier but the most natural time is nine Months and ten days computing twenty eight days to the Month which is forty Weeks or any day in the tenth Month may be natural enough Also the Children begotten under a second Marriage after a Lawful divorce from a former are Legitimate and not Bastards And the Child wherewith the Mother is visibly big when she taketh a second Husband shall be reputed the Child of the former Husband though born after Marriage with the second Otherwise if at her second Marriage she were so privlly with Child as that it could not be discerned understand it with this limitation if by possibility of nature it may be so And if a Widow take another Husband within ten days next after the death of her former and be delivered of a Child eleven days before or after forty Weeks from the death of the said former Husband it shall be reputed the Child not of the former but of the later Husband And in one Thecker and Duncombes Case it was adjudged that a Woman may have a Child in thirty eight Weeks and that by cold and hard usage she may go with Child above forty Weeks which was mention'd by the Court in the Case of one Owen against Jevon in an Action of the Case for saying This is the Whore that my Man C. begat a Bastard on and upon a Verdict for the Plaintiff it was moved in arrest of Judgement that the words are not Actionable because there is no special loss or dammage alledged by the Plaintiff and that in one Lightfoots Case against Pigot it had been ruled that an Action lies not for saying a Woman had a Bastard but it being argued on the other side that the words are Actionable because if they were true the Party of whom they are spoken is punishable by the Statute of 7 Jac. with corporal punishment Judgement was given for the Plaintiff Nisi 10. The punishment of a Woman that hath a Bastard that may be chargeable to the Parish is the House of Correction for one year by the Statute 11. Although in the judgement of the Common Law a Bastard be reputed quasi nullius Filius insomuch that if being seized of Lands in his own right he dye without Issue of his Body they may Escheat yet even by that Law the Bastard in respect of his Mother is said to be a Son But in respect of the the Father he is said to be nullius Filius and therefore in the Case of Ralph Haward and the Lady Anne Powes his Wife in a Writ of Partition it was held that if the Mother dispose of all her Lands holden in Knights Servive to her Bastard-daughter by conveyance in her life-time that the same is out of the Statute of 32 H. 8. because she is but a meer Stranger to the Father because nullius Filia and the said Statute speaks of Lawful generation And in the 39 Ed. 3. 42. in a Praecipe where a Bastard was named Filius J. S. the Writ for that reason did abate For the same reason also it is that in a conveyance by a Father to his Bastard-son natural affection is not a sufficient consideration for that he is a Stranger in Law although he be a Son in Nature And yet it seems if a Grant be made to a Bastard by the Sirname of him who is supposed to beget him it is good if he be known by such Name and yet in truth he is nullius filius And if Husband and Wife divorced causa Praecontractus the Issue hath lost his Sirname for Cognomen Majorum est ex sanguine tractum and the Issue now is Bastard and nullius filius yet because he had once a Lawful Sirname it is a good ground of reputation to make him a reputed Son which is a good Name of purchase And it hath been resolved that a Child begotten by a second Husband living the former of a Woman divorced from the former causa Praecontractus is legitimate and no Bastard But in another case that a Child begotten after Marriage solemniz'd infra annos nubiles and for that cause after divorced is illegitimate and a Bastard 12. A. takes B. to Wife and dies B. after forty Weeks and ten Days is delivered of a Daughter The question is whether the Daughter shall be Heir to her Father or a Bastard The Affirmative prevails and such a Child may be lawful Daughter and Heir to her Father for a Post-natus that is born after the forty Weeks may as well be an Heir as an Ante-natus that is born at the end of seven Months And a Child may be legitimate although it be born the last day of the tenth Month after the conception thereof computing the Months per menses solares non lunares according to the report given upon Oath by the learned Physicians in Alsop's Case If a Man hath Issue born by his Wife forty Weeks and eight Daies after his death as if he dye the three and twentieth of March and the Issue is born the ninth of January next following that Issue shall be held Legitimate for it may be Legitimate by nature and it seems the Common Law doth not limit any certain time for Legitimate Infants to be born p upon evidence at the Barr which concern'd the Heir of one Andrews it was resolved by the Court that Dr. Paddey and Dr. Momford Physicians should being first sworn in that case inform the Court upon their Oaths whether according to Nature such Issue may be Legitimate and they said that the exact time of the birth of an Infant is 280. dayes from the conception viz. nine Months and ten Days after conception accounting it by the Solar months viz. 30. days to each month but it is Natural also if he be born any time of 10 Months viz. in 40 Weeks for by such
other Bodies they conceived that he which kept most of the Commandments although he transgress'd in some was just before God with innumerable Pharisaical Proud and Hypocritical conceits and actions The Sadduces either from Sedec Justice because they were fevere and rigorous in Judgment or of one Sadoch the first Inventer of their Heresie or from both These Sadduces were called Minim or Minei that is Hereticks They interpreted the Scriptures after their own Sense and rejected Traditions they denied a future Reward and consequently the Resurrection they denied also the subsistence Spiritual they cooped up God in Heaven without all beholding of evil They denied Spirit altogether for they held God to be corporeal the Soul to dye with the Body the denied Angels and Devils they ascribed good and evil to a mans Free Will The Hessees Essees or Essens either from a word which signifieth Rest or Quietness and Silence or Essaei quasi 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Holy They are placed by Pliny on the West of the Dead Sea a people solitary without women without Money they make no weapon of Warr nor meddle with Merchandize they have no servants but are all both free and mutually servants to each other they live perpetually chast counting continence and contentment great Vertues they swear not at all and have all things Common they avoid pleasures and riches as sins they marry nor yet do not deny the lawfulness of Marriage but the honesty of Women they shun Oyl and Neatness yet always wear a white Garment they neither buy nor sell but mutually communicate they were worshippers of the Sun for before the Sun riseth they speak of no worldly matter but celebrate certain Prayers as praying him to rise they hate an Oath no less than Perjury they keep the Books of their own Opinions and the names of the Angels they give no Sentence of Judgement being fewer than one hundred they will not so much as purge Nature on the Sabbath for fear of prophaning it thereby The Galilaeans their Doctrine was that onely God was to be accounted their Lord and Prince and would rather endure any the most exquisite Tortures than call any mortal man their Lord in other things they agreed with the Pharisees The Hemerobaptists so called from their being baptized or wash'd every day at all times of the year they were in their Doctrine of the Resurrection and in Infidelity like unto the Sadduces in other things they differed not from the Scribes and Pharisees The Nazaraeans they would not eat any thing which had life and held it unlawful to eat Flesh They disallowed the five Books of Moses They placed all Righteousness in Carnal Observations And professing to imitate Sampson they nourished the hair of their head placing all their Vertue therein The Ossens were an Issue of the Ancient Essens holding some things of theirs as concerning the worshipping of Angels and of the Sun adding thereto other Heresies of their own The Sampsaeans would not admit either the Apostles or the Prophets They worshipped Water esteeming it as a God believing that life is from thence The Massalians were a Slip of the Essees but after by Marriage with some Pseudochristians of Jewish became Christian Hereticks The Herodians thought Herod to be the Messias and entered into society for costs and charges in Common to be bestowed on Sacrifices and other Solemnities wherewith they honoured Herod alive and dead The Genites or Genists stood upon their Stock and Kindred because in the Babylonish captivity or after they married not strange Wives and therefore boast themselves of the purity of Abraham's seed The Merissaeans or Merists were as the name imports sprinklers of their Holy Water they made a division of the Scriptures and received only some part thereof The Coelicoli were also an Off-spring of the Essees and from these proceeded the Massalians they were Jews though they corruptly embraced Christianity and being baptized revolted to their former Judaism and retained the Rites of these Coelicolae or Heaven-worshippers they had their places of prayer abroad in the open air The Ophitae or Serpentines worshipped a Serpent saying that he first procured us the knowledge of Good and Evil for which God envied him and cast him from the first Heaven into the second whence they expect his coming esteeming him some virtue of God and to be worshipped The Caiani which commend Cain for Fratricide saying that Cain was made of the power of the Devil Abel of another power but the greatest power was in Cain to slay Abel The Sethiani were worshippers of Seth the Son of Adam who affirmed that two men being created in the beginning and the Angels dissenting the Feminine power prevailed in Heaven for with them they held are Males and Females Gods and Goddesses Eve perceiving that brought forth Seth and placed in him a Spirit of great power that the adversaries power might be destroyed Of Seth they held that Christ should come of his Stock yea some of them conceived him to be the very Christ The Heliognosti were such as worshipped the Sun and held that the Sun knew all the things of God and yielded all necessaries to men The Frogg-worshippers were such as held that worship was due to those croking Creatures thereby thinking to appease Divine Wrath which in Pharaâ—h's time brought Frogs upon the Land of Egypt The Accaronites were such as held that worship was to be performed unto a Flye and did worship it accordingly probably for the same blind reason that others of them worshipped Frogs for Divine Wrath was executed by the one as well as by the other The Thamuzites of Thamuz the Son of a heathen King they held that his image was to be worshipped and abroed accordingly the Jewish Women that were bewitched with this Heresie worshiped this image of Thamuz with Tears and continual Sacrifices and held further that Pharaoh which ruled in Egypt in Moses his time was of that Name The Samaritans were those Jewish Hereticks who held especially the Cuthaeans among them an abstinence from pollution by the Dead or Bones the Slain the Sepulchres they held washing their bodies changing their vestments when they enter into the Synagogue they held such Heretical opinions that the other Jews would have no dealings with them they held that only the five Books of Moses were Canonical Scripture the rest they recived not they held that neither the Trinity nor the Resurrection was to be acknowledged they wash'd themselves with Urine when they came from any stranger being thereby as they held polluted they held themselves prophan'd by the touch of one of another Faith therefore if they touch'd one of another Nation they div'd themselves garments and all in Water they held a dead Corps in abomination presently If they met a Jew or Christian they said Touch me not They call themselves
Church-gemote Int. Leges H. 1. c. 8. The Convocation is under the power and Authority of the King 21 Ed. 4. 45. b. Assembled only by the Kings Writ 13 Ed. 3. Rot. Parl. M. 1. vid. Stat. 25 H. 8. c. 19. The King having directed his Writ therein assigning the time and place to each of the Archbishops to the effect aforesaid the Archbishop of Canterbury doth thereupon direct his Letters to the Bishop of London as his Dean Lindw Provin Sec. 1. de Poenis ver Tanquam in Gloss First Citing himself peremptorily then willing him to Cite in like manner all the Bishops Deans Archdeacons Cathedral and Collegiate Churches and generally all the Clergy of his Province to the Place at the day in the said Writ prefixed withal directing that one Proctor for every Cathedral or Collegiate Church and two for the other Clergy of each Diocess may suffice In pursuance whereof the Bishop of London directs his Letters accordingly willing them to certifie the Archbishop the Names of all such as shall be so Monished by them in a Schedule annexed to their Letters Certificatory whereupon the Cathedral and Collegiate Churches and the other Churches having Elected their Proctors it is certified to the Bishop who makes due Returns thereof which method is likewise observed in the other Province of York It is said That these Proctors anciently had Place and Vote in the Lower House of Parliament a good expedient for the maintenance and preservation of the Liberties of the Church The Prolocutor of the Lower House of Convocation is immediately at the first Assembly by the motion of the Bishops chosen by that Lower House and presented to the Bishops as their Prolocutor by whom they intend to deliver their Resolutions to the higher House and to have their own House specially ordered and governed His Office is to cause the Clerk to call the Names of the Members of that House as oft as he shall see cause likewise to see all things propounded to be read by him to gather the Suffrages or Votes and the like Trin. 8 Jac. It was Resolved by the two Chief Justices and divers other Justices at a Committee before the Lords of Parliament concerning the Authority of a Convocation 1 That a Convocation cannot Assemble without the Assent of the King 2 That after their Assembling they cannot conferr to constitute any Canons without License del Roy. 3 When upon Conference they conclude any Canons yet they cannot execute any of them without the Royal Assent 4 They cannot execute any after Royal Assent but with these Limitations viz. 1 That they be not against the Kings Prerogative 2 Nor against Statute Law 3 Nor against the Common Law 4 Nor against the Customes of the Realm All which appears by 25 H. 8. c. 19. 19. Ed. 3. Title Quare non Admisit 7. 10. H. 7. 17. Merton cap. 9. By 2 H. 6. 13. a Convocation may make Constitutions to bind the Spiritualty because they all in person or by Representation are present but not the Temporalty Q. And 21 Ed. 4. 47. the Convocation is Spiritual and so are all their Constitutions Vid. The Records in Turri 18 H. 8. 8 Ed. 1. 25 Ed. 1. 11 Ed. 2. 15 Ed. 2. Prohibitio Regis ne Clerus in Congregatione sua c. attemptet contra jus seu Coronam c. By which it appears that they can do nothing against the Law of the Land or the Kings Prerogative 5. The word Convocation and the word Synod are rather words of two Languages than things of two significations for although they have different derivations the former from the Latin the other from the Greek yet in effect they both center in the same thing Convocation à Convocando because they are called together by the Kings Writ It is of very great Antiquity according to Sir Edward Coke who mentions out of Mr. Bede and other Authors and ancient Records such as were nigh a thousand years since and more expresly of one great Synod held by Austins Assembling the Britain Bishops in Council An. 686. And affirms That the Clergy was never Assembled or called together at a Convocation but by the Kings Writ And in the year 727. there was a Convocation of the Clergy called Magna Servorum Dei frequentia It was by the assistance and authority of Ethelbert the first Christian King of Kent that Austin called the aforesaid Assembly of the British Bishops and Doctors that had retained the Doctrine of the Gospel to be held in the borders of the Victians and West-Saxons about Southampton as supposed to which resorted as Mr. Bede says Seven Bishops and many other Learned Divines but this Synod or Convocation suddenly brake up without any thing done or resolved This Assembly was conven'd for determining the time for the Celebration of Easter touching which the Controversie continuing no less than 90 years after was at last concluded at another Convocation purposely called at Whitby by the Authority of Oswy King of Northumberland and whereof the Reverend Cedda newly Consecrated Bishop was Prolocutor and King Oswy himself present at the Assembly Likewise about the year 1172. at Cassils in Ireland a Convocation was held by Authority of King H. 2. soon after he had Conquered that Island which Convocation was for the Reformation of the Irish Church where amongst many other Constitutions it was Decreed That all the church-Church-Lands and all their Possessions should be altogether free from the Exaction of Secular men and that from thenceforth all Divine things should be handled in every part of Ireland in such sort as the Church of England handleth them Likewise about the year 1175. at London a Synod or Convocation was held at which King H. 2. was present where among other Canons and Constitutions it was both by Authority of the King and Synod decreed That every Patron taking a Reward for any Presentation should for ever lose the Patronage thereof Which together with other Canons then made for the better government of the Church of England were Published by Richard Archbishop of Canterbury with the Kings Assent Likewise a Provincial Synod was held at Oxford by Stephen Langton Archbishop of Canterbury under King H. 3. about the year 1222. for Reformation of the Clergy with many others in subordination to the Laws of the Land One special Priviledge of the Convocation appears by 8 H. 6. cap. 1. All the Clergy from henceforth to be called to the Convocation by the Kings Writ and their Servants and Familiars shall for ever hereafter fully use and enjoy such liberty and Immunity in coming tarrying and returning as the Great men and Commonalty of the Realm of England called or to be called to the Kings Parliament have used or ought to have or enjoy 8 H. 6. In Parliamento Statutum est ut Praelati atque Clerici câ—rumque Famulatus cum ad Synodos accesserint iisdem Privilegiis ac