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
been only a reviver of an Ancient power which had been formerly invested in his Predecessors and in all other Christian Princes If we consult the Records of elder Times it will readily appear not only that the Roman Emperours of the House of France did Nominate the Popes themselves but that after they had lost that power they retained the Nomination of the Bishops in their own Dominions The like done also by the German Emperours by the Kings of England and by the Ancient Kings of Spain The Investure being then performed per Annulum Baculum that is by delivering of a Ring together with a Crosier or Pastoral Staff to the party nominated 22. By Ancient Right the Bishops of London are accounted Deans of the Episcopal Colledge and being such are by their place to signifie the pleasure of their Metropolitan to all the Bishops of the Province to execute his Mandates and disperse his Missives on all emergency of Affairs As also to preside in Convocations or Provincial Synods during the vacancy of the See or in the necessary absence of the Metropolitan 23. In O Brian and Knivan's Case the Case was That King Ed. 6. under his Privy Seal signified to Sir J. C. and to the Lord Chancellor and others in Ireland That he elected and appointed J. B. to be Bishop of Ossory Requiring them to Instal him in the Bishoprick The Deputy being removed the Chancellor and the other made a Commission under the Great Seal of Ireland to the Bishop of Dublin to Consecrate him which was done accordingly and he did his Fealty and recovered the Temporalties out of the Kings hands Afterwards in the life of J. B. Queen Mary elected J. T. to be Bishop there who was likewis◠Consecrated and who made a Lease of divers Lands of the Bishoprick for 101 years which was confirmed by the Dean and Chapter J. B. died and after J. T. died J. W. was elected Bishop The Questions in the Case were 1. Whether J. B. was well created Bishop 2. Whether this Lease made by J. T. being Bishop de facto but not de jure in the life of J. B. he surviving J. B. should be good to bind the Successor Resolved The Commission was well executed although the Deputy Sir J. C. were removed 2. Resolved That before the Statute of 2 Eliz. the King might by Patent without a Writ of Congé d'eslire create a Bishop for that was but a Form or Ceremony 3. Resolved That although J. T. was Bishop de facto in the life of J. B. that the Lease made by him for 101 years was void though it was confirmed by the Dean and Chapter and should not bind the Successor But all Judicial Acts made by him as Admissions Institutions c. should be good but not such voluntary Acts as tended to the depauperation of the Successor A Bishop made a Lease for three Lives not warranted by the Statute of 1 Eliz. rendring Rent the Successor accepted the Rent It was Resolved It should bind him during his time so as he shall not avoid the Lease which otherwise was voidable CHAP. IV. Of the Guardian of the Spiritualties 1. What the Office of such a Guardian is and by whom Constituted 2. The power of such Guardians in vacancy of Archbishopricks 3. What Remedy in case they refuse to grant such Licenses or Dispensations as are legally grantable 4. Who is Guardian of the Spiritualties of Common Right 5. What things a Guardian of the Spiritualties may do 1. GVardian of the Spiritualties Custos Spiritualium vel Spiritualitatis is he to whom the Spiritual Jurisdiction of any Diocess during the vacancy of the See is committed Dr. Cowell conceives that the Guardian of the Spiritualties may be either Guardian in Law or Jure Magistratus as the Archbishop is of any Diocess within his Province or Guardian by Delegation as he whom the Archbishop or Vicar General doth for the time depute Guardian of c. by the Canon Law pertains to the Appointment of the Dean and Chapter c. ad abolend Extr. Nè sede vacante aliquid innovetur But with us in England to the Archbishop of the Province by Prescription Howbeit according to Mr. Gwin in the Preface to his Readings divers Deans and Chapters do challenge this by Ancient Charters from the Kings of this Realm Cowell verb. Custos This Ecclesiastical Office is specially in request and indeed necessarily in the time of the Vacancy of the Episcopal See or when the Bishop is in remotis agendis about the publick Affairs of the King or State at which time Presentations must be made to the Guardian of the Spiritualties which commonly is the Dean and Chapter or unto the Vicar General who supplies the place and room of the Bishop And therefore if a man Recover and have Judgment for him in a Quare Impedit and afterwards the Bishop who is the Ordinary dieth In this case the Writ to admit the Clerk to the Benefice must be directed to the Guardian of the Spiritualties Sede vacante to give him Admission But if before his Admission another be created Bishop of that See and Consecrated Bishop in that case the power of the Guardian of the Spiritualties doth cease and the party may have a new Writ to the new Bishop to admit his Clerk A Guardian of the Spiritualties may admit a Clerk but he cannot confirm a Lease 2. The Guardian of the Spiritualties takes place as well in the vacancy of Archbishopricks as Bishopricks and hath power of granting Licenses Dispensations and the like during such Vacancies by the Statute of 25 H. 8. whereby it is provided and enacted That if it happen the See of the Archbishop of Canterbury to be void that then all such Licenses Dispensations Faculties Instruments Rescripts and other Writings which may be granted by virtue of the said Act shall during such vacation of the said See be had done and granted under the Name and Seal of the Guardian of the Spiritualties of the said Archbishoprick according to the tenor and form of the said Act and shall be of like force value and effect as if they had been granted under the Name and Seal of the Archbishop for the time being Where it is also further enacted 3. That if the said Guardian of the Spiritualties shall refuse to grant such Licenses Dispensations Faculties c. to any person that ought upon a good just and reasonable cause to have the same then and in such case the Lord Chancellor of England or the Lord Keeper of the Great Seal upon any complaint thereof made may direct the Kings Writ to the said Guardian of the Spiritualties during such Vacancy as aforesaid refusing to grant such Licenses c. enjoyning him by the said Writ under a certain penalty therein limited at the discretion of the said Lord Chancellor or Lord Keeper that he shall in due form grant such License Dispensation Faculty
void a Stranger doth usurp and presents his Clerk to the Avoidance and Six months pass and afterwards the King being entitled to the Avoidance by reason of the Outlawry bring a Quare Impedit against the Incumbent as being in wrongfully and remove him By this means the Advowson is recontinued again to the Rightful Patron whereof he was ousted by the Usurpation who upon the reversal of the Outlawry shall Present in case the Church becomes void again 12. A man hath Three Avoidances granted him of one Church at one time and by one Deed The Church becomes void the Grantor by Usurpation presents his Clerk who is Admitted Instituted and Inducted afterwards the Church becomes void again In that case the Grantee shall present to the Second Avoidance for that the former Presentation made by the Grantor usurping did not put the Grantee out of all the Avoidances and Adjudged accordingly 13. A. seized of a Mannor with an Advowson appendant presented B. who was Admitted Instituted and Inducted afterwards A. fells the Mannor to which the Advowson was appendant unto J. S. The Church becomes void by the death of B. whereupon the Queen 15 Feb. 1588. Present J. D. by these words viz. Per mortem naturalem Incumbeatis ibid. vacant who thereupon 20th of the said Feb. was Admitted Instituted and Inducted by Letters of Institution Per Dominam Reginam veram indubitatam Patronam The said J. D. dies The King presents R. in these words viz. Ad nostram Praesentationem sive ex pleno jure sive per Lapsum Temporis sive alio quocunque modo spectant The only Question was Whether notwithstanding all this matter the Advowson did remain Appendant or not And it was Adjudged by the Court That the Advowson remained Appendant notwithstanding the Queens presentation of J. D. For it appeared there was no colour of Title to the Queen to present no Lapse for the Presentation Institution c. were all in the same month wherein the Advoidance was And it was no Usurpation by the Queen because the Presentation supposed a Right where none was and so was void for the Queen meant to do no wrong And upon the same reason the Presentation of R. afterwards by the King was void And it was then further holden by the Court That the Presentation of J. D. being void it was but a Collation of the Bishop which makes no disappendancy nor so much as a plenarty against the Rightful Patron but that he may bring his Quare Impedit when he will and if the Bishop receive his Clerk the other is out ipso facto 14. Although an Advowson be a kind of Reversion of a right of Presentation to a Living or Benefice called Spiritual yet it is now in the nature of other Temporal Inheritances and therefore he that hath this Right in him may either devise it by Will or grant it by Deed in Fee or for life or for years as other things And in regard an Advowson or Jus Patronatus refers to and respects not the Oblations and Tithes belonging to the Church but rather the Building thereof with the Ground whereon it is built and the Endowment thereof if therefore any debate or controversie should happen to arise touching any of these last mentioned it might prejudice the Patron as to his Right to the Advowson but if the controversie be only touching the other viz. the Oblations or Tithes whether Great or Small the Jus Patronatus will remain good and entire to the Patron notwithstanding such Controversie provided the Suit doth not extend and be for a fourth part of the whole belonging to the Church Lindw de Foro Comp. cap. Circumspecte verb. Item si Rector gl ibid. verb. quarta pars And he to whom the Right of Advowson of any Church appertains is termed Avowè for distinctions sake to discriminate him from those who sometime Present in the Name of another as a Guardian that presents in the Name of his Minor as also to difference him from such as have only for term of their Lives or of years or by Intrusion or Disseisin the Lands to which an Advowson appertains the Avowè properly and strictly taken being only he who may Present in his own Right and in his own Name 15. It hath been Adjudg'd That an Advowson belonging to a Prebend will not pass by a Lease thereof albeit it hath in it these words viz. Commodities Emoluments Profits and Advantages because all these four words being of one sense and nature imply things gainful which is contrary to the nature of an Advowson regularly as aforesaid yet an Advowson may be yielded in value upon a Voucher and may be Assets in the hand of an Executor and in the foresaid Case of London vers c. it is said That an Appropriation nor the Advowson of it will not pass by the name of an Advowson yet an Advowson will be contained under the name of a Tenement And where the King granted that Monks should have all their Possessions of the Abbey in the Vacation for their sustentation Ruled that they should not have the Advowsons because no sustentation arose from them nor will an Advowson though it be appendant pass in the Kings Grant without special words yet in the Case of a Recusant convict to whose Lands an Advowson is appendant the seizure of Two parts of his Land for the King is a Seizure by consequence of two parts of the Advowson without mention of it and if the King have but Two parts of an Advowson yet he shall Present alone for no Subject can be Tenant in Common with the King who though he be no party to a Quare Impedit yet if his Title appear clear for him against both parties shall have a Writ awarded for him to the Bishop Or if the King joyn issue in a Quare Impedit which is not found fully for him yet if a Title do any way appear the Court must award a Writ to the Bishop for him 16. A. brought Quare impedit against D. The Plaintiff counted that the Defendant had disturbed him to Present ad Vicariam de D. and shewed That the Queen was seized of the Rectory of D. and of the Advowson of the Vicarage of D. and by her Letters Patents gave unto the Plaintiff Rectoriam praedictam cum pertinentiis etiam Vicariam Ecclesiae praedict And it was holden by the whole Court That the Advowson of the Vicarage by these words doth not pass nor so in the Case of a Common person much less in the Case of the King But if the Queen had granted Ecclesiam suam of D. then by Walmsley Justice the Advowson of the Vicarage had passed 17. Although he who after the death of a Parson Incumbent hath Right of Presentation in him doth not upon a Disturbance bring a Quare Impedit not Darrein Presentment but suffereth a Stranger to usurp upon him yet he
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-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
tithable no Tithes of Pasture of Milch-kine grown dry unless kept for Sale 45. Composition for Tithes for life not good without Deed. 46. Estovers burnt in the house not Tithable The Hearth-peny good by Prescription 47. A Composition for Tithes de anno in annum 48. The Modus decimandi is Suable in the Ecclesiastical Court as well as the Tithe it self 49. Proâ—ibition in case of Libel to prove in perpet rei memo 50. Custome of Tithe-Grass Cocks as to both Mathes 51. In a Prohibition upon matter at Common Law and not within the Stat. of 2 E. 6. 13. the Suggestion need not be proved in Six months 52. Tithe-Hay of Headlands Custome and Prescription 53. Tithe-Hay of Heathlands also Tithe of Pidgeons 54. Minute Tithes to the Vicar 55. Tithes to Parson and Vicar may amount but to one Action 56. The Curate may not Prescribe in Tithes against the Parson 57. Curates may sue for Pensions in the Ecclesiastical Court 58. By the Civil Law the Parson to have Notice when Tithes set out 59. Action on the Case against a Compounder for Tithes Suing in the Ecclesiastical Court 60. Modus decimandi by one may hold as to others for a Prohibition 61. Composition for one year good without Deed not if for years 62. Tithe-Hasel Holly Willow Whitethorn Whether the Parishioner shall preserve the Parsons Tithe for him 63. Testis Singularis not sufficient to prove payment of Tithes in the Ecclesiastical Court 64. Composition for Tithes and a Prohibition thereon 65. Tithes taken away by a Stranger after they are set out the Parsons remedy lies at the Common Law 66. In what Case no Costs upon failure of Proof of the Suggestion within the Six months 67. Modus Decimandi may be Sued for in the Ecclesiastical Court where if denied they are to surcease 68. Custome in Cornwall touching Tithes of Sea-fâ—sh 69. In what Case an Agreement for Tithes for years may be good without Deed. 70. In what Court Tithes of Rents in London may be Sued 71. A Collector of Tithes cannot License a Parishioner to carry away his Corn. 72. Whether Debt lies for Treble dammages upon Fraudulent setting forth of Tithes 73. Tithes whether they belong to the Parson or the Vicar cognizable in the Ecclesâ—astical Court where the Right of Tithes is confessed 74. The Ecclesiastical Court not Judges of the Bounds of a Parish 75. Modus Decimandi in reference to a Park 76. A Frâ—udulent setting out of Tithes is no setting them out at all 77. The Vicar shall have Tithe of Rape-Seed being within a Prescription though a new thing in England 78. What the word Garba signifies 79. Whether Wood in its own nature be great Tithes and in what case it shall pass by the words de minutis Decimis 80. If two Titles of Tithes unite in one person there need but one Action for them 81. A Parson may not sett a Lease for years of Tithes per parol only 82. If a Parson be disturbed in carrying away his Tithes seâ— out his Remedy lies properly in the Ecclesiastical Court 1. TITHES Dismes Decimae probably an abbreviation from the Saxon Teoâ—unâ— or Tithing properly Decuria in that Language Lamb. Expl. of Sax. words verb. Deâ—uria That the Apostles and Elders at Jerusalem were competently supplied by the Contributions of the Jewish Proselytes is very conjecturable in that they sold their possessions and brought the price thereof and laid it down at the Apostles feet and such as then planted the Gospel and labourâ—â— in the Word and Doctrine had their maintenance by the Contributions of their Converts Vid. Concil Grang. Can. 7 8. And St. Cyprian writing to his Church of Carthage Epist 33 34. to receive Aurelius and Cellerinus Confessors saith in Epist 34. Presbyterii honorem designasse nos ilâ—is jam sciatis ut sportulis iisdem cum Presbyteris honorentur Divisiones Mensurnas aequatis quantitatibus partiantur Know you that we have already designed to them the Dignity of Presbytership that they might be honoured with such allowances as Presbyters have and receive equal shares in the Monthly Dividends So that Sportulae were the allowances which in this Infancy of the Gospel the Presbyters had out of the Contributions of the Converts And the Fratres Sportulantes mentioned by him in Epist 66. were the Clergy which received such allowance These Converts after the Conversion of Constantine the Emperour many of them being Governours and Nobles settled great and large Demesn-Lands upon those who Converted them and that according to Mr. Seldens conjecture the first Oratories or places of Publick Worship were built in the Lands bestowed on them which first Oratories were called Cathedrals Sees or Seats from their constant Residence thereon That the Christian Church even in times of Persecution laid claim to Tithes as due Jure Divino is partly confessed by Mr. Selden himself citing some passages in the Ancient Fathers to that purpose But when the Empire became Christian then the Christian Clergy did more earnestly press the Donation of Tithes and in process of time they prevailed not only by Preaching and Canons but by the Edicts of Emperours and Kings to have Tithes given to the Church And it appears that the Roman Empire where-ever it did reduce any Conquered Countrey in formam Provinciae appointed the Farmers of the Customes to collect among other Impositions the Tenths of the Tenants of the Empires that is of all who occupied any Land in the Conquered Province either as immediate Tenants to the Empire or as Sub-Tenants under them The Publicans therefore who collected these Tributes were called Decumani as Mr. Selden pag. 39. of his History of Tithes doth observe out of Appian But whether these Tenths were received by the Senate or Emperours upon a Civil or Religious account is not liquid and clear For the Emperours alwaies till Christianity came in nay Constantine and other Emperours even after Christianity was received till Gratian's time as the Noble and Learned Du-plessy in his Mystery of Iniquity observes out of Zosimen continued the chief Pontifice or High-Priesthood in their own persons And as touching us here in England Dr. Heylin P. H. Treleyny in his Treatise touching Tithes p. 3. saith Tithes are not given to the Ministers by the People for Sr. Ed. Coke on Litt. Tenures lib. 1. c. 9. Sect. 73. fo 58. asserteth That it appears by the Laws and Ordinances of Ancient Kings and especially of King Alfred That the first Kings of this Realm had all the Lands of England in Demesn and Les Grandé Mannors Royalties they reserved to themselves and with the Remnant they for the defence of the Realm enfâ—offed the Barons of the Realm with such Jurisdiction as the Court Baron now hath And at this time when all the Lands of England were the King Demesns that Ethelwolph the Second Monarch of the Saxon race his Father Egbert being the first which brought the former Heptarchy under one
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
the Bishop were Discharged in his hands absolutely by Prescription the Demising it to a Lay-man cannot make it chargeable and the Bishop might reserve the greater Rent A Parson by Deed Indented leaseth his Glebe cum omnibus proficuis commoditatibus It was notwithstanding Adjudged that the Lessee shall be charged with the payment of Tithes And in an Action of Debt upon the Statute of 2 Ed. 6. for not setting forth of Tithes the Case was The Lands were a parcel of the possession of the Templers whose Lands were annexed to the Priory of St. Johns The Templers had a Special Priviledge to be Discharged of Tithes of those Lands which propriis manibus excolunt By a Special Act of 32 H. 8. the Possessions of the Priory of St Johns were given to the King by general words of all Lands in tam amplis modo c. as the Abbots held them Resolved That the Defendant should not be Discharged nor have the Priviledge for by the Common Law a Lay-person was not capable of such a Priviledge and the King should not have the benefit of the Priviledge until the Stat. of 31 H. 8. But the Statute extends only to such Possessions as came to the King by Surrender and should be vested in him by that Act and doth not extend to Possessions which are vested in him by another Act. and these Lands were given to the King by a Special Act of Parliament and therefore not Discharged of Tithes Dotards or the Branches of Trees of twenty years growth or upward are not Tithable Doves in a Dove-house do pay Personal not Predial Tithes but if stolâ— out of a Dove-house no Tithe is to be paid of such Tithes shall be paid de jure of young Pidgeons Mich. 14 Jac. B. between Whatley and Hambury Resolved Hill 15 Jac. B. R. Resolved and a Prohibition denied in Gastrell's Case By Custome Tithes may be paid of Pigeons spent in a mans own house but not so of Common right Case ibid. But if sold they shall pay Tithe dict Cas Whatly E EGgs are Tithed in kind or according to the Custome of the place which serves for the Tithe of the Tame and Domestick Fowl where their young are not paid in kind and where Tithe of Eggs is paid there is no Tithe of the young And so vice versa where the Tithe of the Young is paid there no Tithes of Eggs may be demanded F FAllow-Grounds pay no Tithe for these years wherein they lie Fallow nor is the Pasture thereof Tithable unless it be kept Lay beyond the course of Husbandry for if Land lie Fallow every two or three years the same is a charge unto the Owner and Tenant for that time and an advantage to the Parson in the bettering of his Crop the year following when the same is sowed with Corn or Grain and therefore although the Grass and feeding of the Fallow-ground for that year be some small profit to the Owner of the Soil yet he shall not pay Tithe for the same as hath been Adjudged Yet it was afterward Adjudged That if Lands be Tithable and the Tenant or Occupier of the Land will not Plough it or Manure it especially thereby to prejudice the Parson that in such case the Parson may Sue the Tenant in the Ecclesiastical Court to have Tithe of that Land Ferae naturae Beasts and Birds that are such are not Tithable till they become tame and profitable to the Owner that is till they are reduced to a Tameness and Property yet it hath been held that Tithes are not payable for tame Turkies Pheasants or Partridges nor for their Eggs Although Beasts Ferae naturae as Bucks Does Pheasants c. are not Tithable of themselves yet they may be given for Tithes or for a Modus Decimandi as a great Tree may be given for Tithe of Trees tithable And as things which are Ferae naturae whereof a man hath not an absolute property are not Tithable so likewise of things which are meerly for Pleasure Tithes shall not be paid Fenny-Lands drained and made Arable do pay Tithes notwithstanding the Statute of Barren Land Fish taken in the Sea are by the Custome of the Realm Tithable not by the Tenth Fish but some small Sum of Money in consideration of a Tithe But if taken in a Pond or in a several Piscary then they are Tithable by the Owner thereof as a Predial Tithe and as such ought to be set forth according to the Statute of 2 Ed. 6. Trin. 8 Jac. C. B. the Earl of Desmond's Case Mich. 15 Car. B. R. Adjudg acc vid. Trin. 9 Car. B. R. Yet it is said that Fishers Fowlers and Hunters not for pleasure but by way of Trade for profit pay some Tithe by usage in nature of a personal Tithe to the Parson or Vicar where they inhabit though they take their Fish Fowl c. in another Parish but if they paid Money to another in that other Parish for this liberty of Fishing c. then he that takes that Money must pay as a Predial Tithe to the Parson of that other Parish where he inhabits Fish taken in the Sea being Ferae naturae are not understood to be Regularly but Customarily only Tithable as in Cornwall Wales Yarmouth c. And so it hath been Resolved albeit in the said Case of the E. of Desmond it was held that they were Tithable by the Custome of the Realm In which case it is more probable that the Fishers pay a Personal than the Fish a Predial Tithe to the Parson or Vicar of that Parish where they inhabit To this purpose there is a Case extant wherein a Prohibition was granted against the same Parson of W. in the County of L. for suing in the Ecclesiastical Court for the Tithe of Trouts taken in a River because being Ferae naturae they are not Tithable and a President was shewed 5 Car. where a Prohibition was granted against the same Parson for suing for Tithe-Eeles taken in the River because they were Ferae naturae And it was said that in Yarmouth was a Suit for Tithe-Herrings taken in the Sea but they could not prevail in it Jones Justice said That in Wales they used to pay Tithes for Herrings and in Ireland it is a common course to pay Tithe for Salmons taken in Rivers whereunto it was replyed That that might peradventure be by Custome for otherwise Tithes are not due for Fish taken in Rivers For no Tithes de jure are to be paid for Fish taken in a Common River Pasch 5 Car. B. R. a Prohibition granted to stay a Suit for Tithes of Eeles taken in a Common River in the Parish of Barton in Westmerland and Hill 9 Car. Prohibition granted to stay a Suit for Tithes of Trouts in the same River But the Court seemed to be divided whether Tithes of them were due or not But they granted a
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-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-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
Parson of one Parish having part of his Glebe in another may Prescribe in non Decimando for the same So that a Prescription even de non Decimando as for Ecclesiastical persons their Farmers and Tenants may be good In Nash and Molin's Case it was agreed by the Court That a Spiritual man may Prescribe in Non Decimando Cro. par 1. And as for any other person a Prescription de modo Decimandi that is to pay Money or other things in lieu of Tithes in kind is good and if he can prove it Time out of mind this will discharge him Thus a Prescription to pay 4 d. or any other Sum for all his Tithe whatever or for all his Tithe-Hay or for all his Tithe-Corn in such a Farm or in such a Close or for all his Fruit in such an Orchard is good But a Prescription of paying no Tithe-Corn because he pays Tithe-Hay or of paying no Tithe of his Cattel because he pays Tithe-Corn is no good Prescription Or of not paying of Tithes in one place because he pays in another or of not paying Tithe-Lamb because he pays Tithe-Wool vel è contra or of not paying Tithe for other Cattel because he pays 12 d. for a Cow these and the like are no good Prescriptions Yet a Prescription to pay a less part than a Tenth may be good and binding Also a Prescription to pay a peny called Hearth-peny in satisfaction of Tithe for all Combustible Wood may be good Likewise a Prescription by the Lord of a Mannor to pay six pound in satisfaction of all the Tithe-Corn within the Mannor and to have the Tenth Sheaf or Cock in recompence of his payment is good But if the Prescription be to be discharged of Tithe-Hay of such a ground or Tithe-Corn of such a ground and the Owner change the nature of the Ground as Pasture into Tillage or Tillage into Pasture the Prescription is gone Yet a Prescription is not destroyed by an Alteration of payment as if instead of the money to be paid another sum or Tithes in kind have been paid for 20 years past But a Prescription to have Tithes of Houses according to the Rent is not good for no Tithes are to be paid for Houses in any City save in London only Regularly Prescription referrs to one in private as Custome does to many in publick and where a Prescription de modo Decimandi is denied there a Prohibition will lie to try it at the Common Law otherwise if the Prescription or Custome be agreed If a Prescription by a Parishioner be to pay the Tenth part of Corn as a Modus Decimandi for the Hay also that grows on the Headlands it is not good but such Prescription for the Corn and After-Rakings is good with an averment That they are sparsae minus voluntarie If there be a Prescription of a Modus Decimandi for an Orchard or Garden and it afterwards ceases to be such the Modus shall cease also and Tithe shall be paid in kind but if it afterwards be restored to a Garden or Orchard by being replenished with Herbs or Fruit-Trees it shall pay the Modus as formerly If the Modus be to pay two shillings and the Shoulder of three Deer for a Park the Modus remains though the Park be disparked it is otherwise in case the Modus be only to pay Venison Or if the Prescription be to pay a certain Sum of money for all the Tithes of a Park the Modus shall continue though the Park be afterwards disparked A Prescription of a Modus Decimandi generally for a Park is not good if it be Disparked but it shall be particularly for all Acres contained in the Park Prescription being a Temporal thing is Triable only in the Temporal Courts and therefore in the Case of Two Parsons of Two several Parishes where one of them claimed Tithe within the Parish of the other and said That all his Predecessors Parsons of such a Church viz. of D. had used to have the Tithe of such Lands within the Parish of S. and pleaded the same in the Spiritual Court The Court was of Opinion That in this Case a Prohibition did lie for he claims only a portion of Tithes and that by Prescription and not meerly as Parson or by reason of the Parsonage but by a Collateral cause scil Prescription which is a Temporal cause and thing And in another Case it hath been Adjudged That if a Prescription be laid to pay a Modus Decimandi to 100 Acres or to several things if there be a failure of one Acre or of one thing it is a failure of the whole Prescription But where it hath been Prescribed to pay in one part of the Land the Third part of the Tenth and in another part the Moity of the Tenth for all manner of Tithes it hath been held a good Prescription These Prescriptions de modo Decimandi are equally incident as well to Lay-persons as to persons Spiritual or Ecclesiastical but as to Prescriptions de non Decimando none but Spiritual persons are capable of being discharged of Tithes in that kind as was Resolved in the Bishop of Winchester's Case Yet a whole Countrey or County may Prescribe de non Decimando though this or that particular meer Lay-man cannot nor indeed can the other unless there be sufficient Maintenance for the Clergy besides The Prescriptions de modo Decimandi are confirm'd by Act of Parliament and if any Lay-man will Prescribe de non Decimando to be absolutely discharged from the payment of Tithes without paying any thing else in lieu thereof he must Found it in some Religious or Ecclesiastical person and derive his Title to it by Act of Parliament and it is not sufficient to say That they who Prescribe de non Decimando are Churchwardens who have Land belonging to their Church for they are neither Religious nor Spiritual persons But they who are such indeed may so Prescribe not only for themselves but also for their Tenants and Farmers as was formerly said So also may the Kings Patentees of those abbey-Abbey-Lands that came to the Crown by the Statute of 31 H. 8. Prescribe de non Decimando by force of the said Statute if so be it may be proved That they have beyond the Memory of man so enjoyed the Lands discharged from the payment of Tithes But for a Parishioner to Prescribe to Non-payment of Tithes because he hath Time out of mind repaired the Church is no good Prescription otherwise in case he had repaired the Chancel and in consideration thereof had been quit of Tithes the Reason is because the Parson not being obliged to repair the Church hath no recompence And in Sherwood and Winchcombs Case it was Resolved That a man cannot Prescribe to have Tithes as parcel of a Mannor for that they are Spiritual but a
of new improvements in their own occupation by culture Pasture and Garden-Fruits only the said Three Orders were exempted from the general payment of all Tithes whatever The Templers and Hospitallers were meer Lay-men yet they were exempted as well as the other Yet the Lateran Council in An. 1215. Ordered That this Priviledge should not extend to Covents erected since that Lateran Council nor to Lands since bestowed on the said Orders though their Covents were erected before that Council Insomuch that when the said Cistercians contrary to the Canons of that Council purchased Bulls from the Pope to discharge their Lands from Tithes King H. 4. Null'd such Bulls by the Stat. of 2 H. 4. cap. 4. and reduced their Lands to a Statu quo These Exemptions from payment of Tithes in this or that particular Religious Order was not known in the World when Aethelwolph Son of Egbert whom he succeeded as King of the West-Saxons gave as aforesaid Tithes of all his Kingdom and that freed of all Tributes Taxes and Impositions as appears by his Charter to that purpose having at a Solemn Council held at Winchester subjected the whole Kingdom of England to the payment of Tithes True it is that long before his time many Acts for Tithes may be produced such as the Imperial Edicts Canons of some Councils and Popes beside such Laws as were made by King Ina and Offa yet the said Edicts and Canons were never received in their full power into England by the consent of Prince and People nor were King Ina and Offa though Monarchs of England as it were in their turns such Kings as conveyed their Crowns to the Issue of their Bodies but the said Aethelwolph was Monarcha Natus non factus and although before his time there were Monarchs of the Saxon Heptarchy yet not successive and fixed in a Family but the said King Egbert being the first that so obtained this Monarchy as to leave it by descent unto his Son the said Aethelwolph he thereby had the more indisputable power to oblige all the Kingdom unto an observance of the said Act. In the said Chapter of Tithes there is also mention made of Mortuaries as having some relation of Tithes wherein is shewed what it is when by and to whom and wherefore to be paid By the Stat. of 21 H. 8. they are reduced to another Regulation than what was in the time of King Henry the Sixth A Mortuary was then the Second best Beast whereof the party died possessed but in case he had but two in all then none due It was called a Corse-Present because ever paid by the Executors though not alwaies bequeathed by the dying party All persons possessed of an Estate Children under Tuition and Femes Covert but not Widows excepted were liable to the payment thereof to the Priest of that Parish where the dying party received the Sacrament not where he repaired to Prayers but in case his House at his death stood in two Parishes it was then divided betwixt them both And it was given in lieu of Personal Tithes which the party in his life time had through ignorance or negligence not fully paid Lindw Cons de Consuetud Such of the ancient Lawyers as were unacquainted with this word Mortuarium in the aforesaid sense as we now use it took Mortuarium only pro derelicto in morte say of it That it is Vocabulum novum harbarum but we understand it better where of Custome it is due and payable These Mortuaries where by the Custome they are to be paid were ever in consideration of the omission of Personal Tithes in the parties Life-time which Personal Tithes were by the Canon Law to be paid only of such as did receive the Sacraments and only to that Church where they did receive them as may be inferr'd plainly from cap. Ad Apostolicae de Decimis But observe says Lessius that in many places these Personal Tithes have been quite taken away and in some places they are paid only at the end of a mans Life as among the Venetians which manner of payment seems to have a great resemblance to these Mortuaries and in some places they are paid only ot the end of the year And in like manner many Predial and Mixt Tithes in divers places are also abolish'd which says he is for the most part done by the permission of the Church where men have been observed to pay them with regret and much against their minds nor hath the Church in such cases thought fit to compel them to it on purpose to avoid scandal Lessius de Just jur lib. 2. cap. 39. Dub. 5. nu 27. And in such places where the Custome is to pay a Personal Tithe when any persons shall Hunt Fish or Fowl to make gain or merchandize thereby and it be neglected to be paid whether Restitution or Compensation by way of a Mortuary where Mortuaries are Customable be in that case due by Law is a Question which by Covarruvies may be well held in the Affirmative Although the face of the Church as well as State began to look with a purer though less Sanguine complexion when Queen Elizabeth adorn'd the Crown than when her Sister wore it yet even in Queen Elizabeths time there crept such abuses into the Church that Archbishop Parker found it necessary to have recourse unto the Power given him by the Queens Commission and by a Clause of the Act of Parliament For the uniformity of Common Prayer and Service in the Church c. whereupon by the Queens consent and the Advice of some of the Bishops he sets forth a certain Book of Orders to be diligently observed and executed by all persons whom it might concern wherein it was Provided That no Parson Vicar or Curate of any Church Exempt should from thenceforth attempt to conjoyn by solemnization of Matrimony any not being of his or their Parish-Church without good Testimony of the Banns being ask'd in the several Churches where they dwell or otherwise were sufficiently Licensed Heyl. Hist of Q. Eliz. An. Reg. 3. Banns or Banna that word Bannum is sometimes taken pro Mandato scil Edicto it is a word of divers significations as appears almost by all the Glossographists and Feudists it sounds sometimes like Edictum sometimes like Mandatum or Decretum and sometimes as here like Proclamatio Saxonibus gebann whence there is their gebannian pro Proclamare edicere mandare ut nostratium Bannes pro Nuptiarum foedere Publicato This Publication of Banns was cautiously ordain'd for the prevention of Clandestine Marriages which were prohibited in this Kingdom above 500 years since as a thing contrary in all Ages to the practice of all Nations and Churches where the Gospel was received and therefore at a Council conven'd at Westminster in the year 1175. by Richard Archbishop of Canterbury under the Reign of King H. 2. it was Ordain'd That no person whatsoever should solemnize Marriage in
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
vacancy of a Bishoprick the Dean and Chapter by virtue of his Majesties License under the Great Seal of England hath proceeded to the Election of a new Bishop in pursuance of and according to his Majesties Letters Missive on that behalf and Certificate thereof made unto the Kings Majesty under their Common Seal then follows the Confirmation Consecration and Investiture by the Archbishop or Metropolitan of that Province wherein such Bishoprick was void the said Election having upon such elected Bishops Oath of Fealty to the Kings Majesty been first signified to the Archbishop by the King under his Great Seal whereby the said Archbishop is required to Confirm the said Election and to Consecrate and Invest the person Elected And now he is compleat Bishop as well unto Temporalties as Spiritualties yet after his Confirmation and before his Consecration the King may if he please ex gratia grant him the Temporalties But after his Consecration Investiture and Instalment he is qualified to sue for his Temporalties out of the Kings hands by the Writ de Restitutione Temporalium And yet it seems the Temporalties are not de jure to be delivered to him until the Metropolitan hath certified the time of his Consecration although the Freehold thereof be in him by his very Consecration But if during the Vacation of Archbishopricks or Bishopricks and while their Temporalties are in the Kings hands the Freehold-Tenants of Archbishops or Bishops happen to be attainted of Felony the King by his Prerogative hath the Escheats of such freeholders-Freeholders-Lands to dispose thereof at his pleasure saving to such Prelates the Service that is thereto due and accustomed Before the Conquest the Principality of Wales was held of the King of England and by the Rebellion and forfeiture of the Prince the Principality came to the King of England whereby the Bishopricks were annexed to the Crown and the King grants them their Temporalties 10 H. 4. 6. 7. The manner of making a Bishop is fully described in Evans and Kiffin's Case against Askwith wherein it was agreed That when a Bishop dies or is Translated the Dean and Chapter certifie the King thereof in Chancery and pray leave of the King to make Election Then the King gives his Congé d'Esâ—ire whereupon they make their Election and first certifie the same to the party Elect and have his consent Then they certifie it to the King in Chanceâ—y also they certifie it to the Archbishop and then the King by his Letters Patents gives his Royal Assent and commands the Archbishop to Confirm and Consecrate him and to do all other things necessary thereunto whereupon the Archbishop examines the Election and the Ability of the party and thereupon confirms the Election and after Consecrates him according to the usage upon a New Creation And upon a Translation all the said Ceremonies are observed saving the Consecration which is not in that case requisite for that he was Consecrated before 8. Bishopricks were Donatives by the King till the time of W. Rufus and so until the time of King John Read for that the History of Eadmerus Vid. Case Evans vers Ascouth in â—in Caâ— Noy 's Rep. It hath been generally held That before the Conquest and after till the time of King John Bishops were Invested by the King per Baculum Annulum but King John by his Charter granted That there should be a Canonical Election with Three Restrictions 1. That leave be first asked of the King 2. His Assent afterwards 3. That he shall have the Temporalties during the Vacation of the Bishoprick whereof mention is made in the Stat. of 25 Ed. 3. de Provisoribus and which is confirmed by the Stat. of 13 R. 2. c. 2. Also the Law in general is positive therein That in the making of all Bishops it shall be by Election and the Kings Assent and by the 25 H. 8. the Statute for Consecration of Bishops makes it more certain And if the Pope after the said Charter did use to make any Translation upon a Postulation without Election and Assent of the King it was but an Usurpation and contrary to the Law and restrained by 16 R. 2. and 9 H. 4. 8. And after the 25 H. 8. it was never used to have a Bishop by Postulation or any Translation of him but by Election as the said Statute prescribes And the form of making a Bishop at this day is after the same manner as aforesaid and according to the said Statute 9. The Interest and Authority which a Bishop Elect hath is That he is Episcopus Nominis non Ordinis neque Jurisdictionis But by his Confirmation he hath Potestatem Jurisdictionis as to Excommunicate and Certifie the same 8 Rep. 89. And then the power of the Guardian of the Spiritualties doth cease But after Election and Confirmation he hath Potestatem Ordinationis for then he may Consecrate confer Orders c. For a Bishop hath Three Powers 1. Ordinis which he hath by Consecration whereby he may take the Resignation of a Church confer Orders consecrate Churches And this doth not appertain to him quatenus Bishop of this or that place but is universal over the whole World So the Archbishop of Spalato when he was here conferr'd Orders 2. Jurisdictionis which is not Universal but limited to a place and confin'd to his See This power he hath upon his Confirmation 3. Administratio rei familiaris as the Government of his Revenue and this also he hath upon his Confirmation The Bishop acts either by his Episcopal Order or by his Episcopal Jurisdiction By the former he Ordains Deacons and Priests Dedicates or Consecrates Churches Chappels and Churchyards administers Confirmation c. By the latter he acts as an Ecclesiastical Judge in matters Spiritual by his Power either Ordinary or Delegated 10. An. 1430. Temp. Reg. H. 6. Hen. Chicheley Archiepisc Cant. in Synodo Constitutum est Ne quis Jurisdictionem Ecclesiasticam exerceret nisi Juris Civilis aut Canonici gradum aliquem ab Oxoniâ—nsi vel Cantabrigiensi Academia accepisset Ant. Brit. fo 284. nu 40. The power of the Bishop and Archbishop is derived from the Crown as was held in Walkers Case against Lamb where it was also held That the Grant of a Commissary or Official to one was good notwithstanding he were a Lay man and not a Doctor of Law but only a Batchelour of Law for the Court then said That the Jurisdiction of the Bishop and Archdeacon is derived from the Crown by usage and prescription and that in it self as it is coercive to punish Crimes or to determine Matrimonial Causes and Probate of Testaments and granting of Administrations being Civil Causes are derived from the Crown and not incident de mero jure to the Bishop which appears by Henslows Case par 9. Cawdry's Case par 5. 1 Ed. 6. c. 2. the Stat. of 37 H. 8. and divers other Authorities and the Statute of 37 H. 8. c.
or profit of his Spiritual Jurisdiction As to the Third point they said That although a Proxie is a Personal thing payable only in respect of persons Visitable yet admit that these Proxies are become Real and that the Commandry and Rectory are charged with these Proxies then the unity of possession doth extinguish them in the hands of the King as a Seignory Rent-charge Common and the like are extinguished by the purchase of the Terre-tenant if he hath the like Estate in the Land and in the thing which charged the Land And to this purpose was cited the Case of 2 H. 4. 19. a. where a Prior had an Annuity out of a Parsonage by Prescription the Parsonage is after appropriate to the Priory the Annuity is extinguimed for ever But on the other side it was answered by the Kings Council and Resolved by the Court That the said Proxies were not extinguished by the dissolution of the said Religious houses but were well preserved and saved to the Bishop and the Bishop had well granted them to the King and the unity of possession in the hands of the King made but a Suspension and no Extinguishment of the said Proxies 1 As to the First point it was first observed that these Proxies had not their original in the primitive Church for St. Paul in visiting all the Churches which he had planted in Asia and Europe demanded not any Proxies but laboured with his own hands for his subsistance lest he should be burthensom to the Churches Yet long after this the Canon Law which declares that Proxies are due to Bishops in their Visitations says that it is agreeable to the doctrine of St. Paul ut à quibus spiritualia recipimus eisdem Temporaliae communicemus Instit Jur. Can. l. 2. c. de Censib It was also observed that that which we call Proxie or Procuracy is called by the Canonists Procuratio for that upon every Visitation the persons visitable procurant necessary Provisions for the Visitors which Provisions at first were made in Victuals viz. in Esculentis Poculentis but that was with moderation and temperance Ne jejuniorum doctrinam rubentibus buccis praedicant But afterwards when the pomp and excess of Visitors required such provisions as were grievous and intolerable to the Churches and Religious houses then every Church and such House was reasonably Taxed and for that every Proxie was reduced to a certain sum of money payable yearly in the nature of a Pension to the Ordinary who had power of Visitation de mero Jure as is said 10 Eliz. Dyer 273. b. After the Procuration of Victuals was reduced to a certain sum the Churches and Religious houses paid it to the ordinary yearly albeit he made not any Visitation And so the Rule of Cessante causa cessat effectus doth not hold in this case These certain sums of money which come in lieu of Proxies and retain the name of Proxies are by ancient Composition made parcel of the certain and settled Revenues of the Bishop do remain for ever and are not subject to extinguishment And at this day the King himself pays and allows Proxies out of all the Impropriations which he hath in his possession for which reason in every Lease made by the King of a Rectory Impropriate there is a Covenant on the Lessee's part that he shall bear and pay all Proxies Synodals Pensions c. And as for the Saving in the Act of 33 H. 8. cap. 5. it is not an idle or Flattering Saving but real and effectual for it was agreed before that these Proxies were in being at the time of making the Act and are not extinguished by the Surrender of the Religious houses for their Corporations are not dissolved till the Religious persons have relinquished their houses and are dispersed And such things as were in being at the time of making the Act may well be preserved and saved by the Act albeit the things which were extinct before cannot be revived by a Saving without express words of Grant and Restitution As to the Second point it was Resolved That the Proxies in their original nature being Duties payable for Visitation are grantable to the King and the King is capable of such a Grant specially when the said duties are converted to a sum of money certain in the nature of a Pension or Annuity For by the Ancient Law of the Realm the King had power to Visit reform and correct all Abuses and Enormities in the Church And by the Statutes made in the time of King H. 8. the Crown was but remitted and restored to his ancient Jurisdiction which had been usurped by the Bishop of Rome 33 Ed. 3. tit Ayd del Roy 103 Reges sacro oleo uncti Spiritualis Jurisdictionis sunt Capaces And Proxies are profits of the Jurisdiction 10 H. 7. 18. Rex est mixta persona cum Sacerdote So the King shall have Tithes by the Common Law whereof no meer Lay-person was capable 22 Assis pl. 75. 21 H. 7. 1. The King himself may Visit his Free Chappels and Hospitals 8 Ass p. 29. N. Br. 42. a. And Cassanae in Catol Glo. mund par 5. Cons 24 cites a Text of the Canon Law viz. Quod omnes Reges dicuntur Clerici also another Text which faith Quod Causa Spiritualis committi potest Principi Laico And whereas it was said that in respect of the grandeur of the King and his Train competent Proxies cannot be provided for him and by consequence a Grant thereof cannot be made to him that Objection is removed in that the Proxies at the time of that Grant was reduced to certain reasonable sums of money Also the Rule of the Canon Law was not rightly and fully cited before for the Rule is Procuratio exhibenda est secundum qualitatem personae visitantis substantiam Visitatorum It was also Resolved that the Bishop with the assent of his Clergy might well grant the Proxies to the King for that the Law hath qualified the person of the King to receive such a Grant albeit it be such a Prerogative of the Bishop as may not be assigned to any other person As the Creation-money of a Duke or Earl may be granted and surrendred to the King although it can be granted to a Subject Also the Proxies being now reduced to certain sums of money and so made part of the certain settled and perpetual Revenue of the Bishop may be granted by him as well as a part of the Tithes or an Annuity or any of his Rents Services or other Hereditaments Temporal And as to the Third point it was also Resolved and Adjudged That the Unity of Possession of the Proxies with the Rectories impropriate and religious Houses out of which the Proxies are payable do not extinguish the Proxies in the hands of the King but suspends the payment of them tantum pro tempore quousque or until the King by his Grant shall sever the one from the other To conclude
the Bishoprick of Winchester contra novi Concilii statuta as the same Author reporteth And this because succeeding Popes had broken Pope Vrban's promise Touching the not sending of Legates into England unless the King should require it And in the time of the next succeeding King Stephen the Pope gained Appeals to the Court of Rome For in a Synod at London Conven'd by Hen. Bishop of Winchester the Pope's Legate it was Decreed That Appeals should be made from Provincial Councils to the Pope Before which time Appellationes in usu non erant saith a Monk of that time donec Henricus Winton Episcopus malo suo dum Legatus esset crudeliter intrusit Thus did the Pope usurp Three main points of Jurisdiction upon Three several Kings after the Conquest for of King William Rufus he could win nothing viz. upon the Conquerour the sending of Legates or Commissioners to hear and determine Ecclesiastical Causes Upon Hen. 1. the Donation and Investures of Bishopricks and other Benefices and upon King Stephen the Appeals to the Court of Rome And in the time of King H. 2. the Pope claimed exemption of Clerks from the Secular Power 2. The high Court of Convocation is called the Convocation of the Clergy and is the highest Court Ecclesiastical where the whole Clergy of both Provinces are either present in Person or by their Representatives They commonly meet and sit in Parliament-time consisting of Two parts viz. the Upper-house where the Archbishops and Bishops do sit and the Lower-house where the Inferiour Clergy do sit This Court hath the Legislative power of making Ecclesiastical Laws is commonly called a National Synod Conven'd by the King 's Writ directed to the Archbishop of each Province for summoning all Bishops Deans Archdeacons Cathedrals and Collegiate Churches assigning them the time and place in the said Writ But one Proctor sent for each Cathedral and Collegiate Church and two for the Body of the inferiour Clergy of each Diocess may suffice The higher House of Convocation or the House of Lords Spiritual for the Province of Canterbury consists of 22 Bishops whereof the Archbishop is President the Lower-house or House of Commons Spiritual consisting of all the Deans Archdeacons one Proctor for every Chapter and two for the Clergy of each Diocess in all 166 persons viz. 22 Deans 24 Prebendaries 54 Archdeacons and 44 Clerks representing the Diocesan Clergy Both Houses debate and transact only such matters as his Majesty by Commission alloweth concerning Religion and the Church All the Members of both Houses of Convocation have the same priviledges for themselves and Menial Servants as the Members of Parliament have The Archbishop of York at the same time and in the like manner holds a Convocation of all his Province at York constantly corresponding debating and concluding the same matters with the Provincial Synod of Canterbury The Antiquity of this Court of Convocation is very great for according to Beda St. Augustine An. 686. assembled in Council the Britain Bishops and held a great Synod The Clergy was never assembled or called together at a Convocation by other Authority than by the King 's Writ Vid. Parl. 18 E. 3. nu 1. Inter Leges Inae An. Dom. 727. A Convocation of the Clergy called Magna servorum Dei frequentia The Jurisdiction of the Convocation is only touching matters meerly Spiritual and Ecclesiastical wherein they proceed juxta Legem Divinam Canones Sanctae Ecclesiae The Lord Coke cites some Ancient Records to prove that the Court of Convocation did not meddle with any thing concerning the Kings Temporal Laws of the Land and thence inferrs That the Statute of 25 H. 8. cap. 19. whereby it is provided That no Canons Constitution or Ordinance should be made or put in execution within this Realm by Authority of the Convocation of the Clergy which were contrariant or repugnant to the King's Prerogative Royal or the Customes Laws and Statutes of this Realm is but declaratory of the old Common Law And by the said Act the Court of Convocation as to the making of new Canons is to have the King's License as also his Royal Assent for the putting the same in execution But towards the end of that Act there is an express Proviso that such Canons as were made before that Act which be not contrariant nor repugnant to the King's Prerogative the Laws Statutes or Customes of the Realm should be still used and executed as they were before the making of that Act. And if any Cause shall depend in contention in any Ecclesiastical Court which shall or may touch the King his Heirs or Successors the party grieved shall or may appeal to the Upper-house of Convocation within fifteen days after Sentence given Remarkable are the Constitutions of Claringdon in the time of King H. 2. occasioned by the Popes claiming Exemption of Clerks from the Secular power so contended for by Thomas Becket then Archbishop of Canterbury against the King as occasioned a convening a Common Council as well of the Bishops as of the Nobility at Claringdon in the time of H. 2. wherein they revived and re-established the Ancient Laws and Customes of the Kingdom for the Government of the Clergy and ordering of Causes Ecclesiastical The principal Heads or Articles whereof were these viz. 1 That no Bishop or Clerk should depart the Realm without the King's License and that such as obtained License should give Sureties That they should not procure any dammage to the King or Realm during their absence in Foreign parts 2 That all Bishopricks and Abbies being void should remain in the Kings hands as his own Demesns until he had chosen and appointed a Prelate thereunto and that every such Prelate should do his Homage to the King before he be admitted to the place 3 That Appeals should be made in Causes Ecclesiastical in this manner viz. From the Archdeacon to the Ordinary from the Ordinary to the Metropolitan from him to the King and no farther 4 That Peter-Pence should be paid no more to the Pope but to the King 5 That if any Clerk should commit Felony he should be hanged if Treason he should be drawn and quartered 6 That it should be adjudged High Treason to bring in Bulls of Excommunication whereby the Realm should be cursed 7 That no Decree should be brought from the Pope to be executed in England upon pain of Imprisonment and Confiscation of Goods 3. Arches or alma Curia de Arcubus so called of Bow-Church in London by reason of the Steeple or Clochier thereof raised at the top with Stone-pillars in fashion like a Bow-bent Arch-wise in which Church this Court was ever wont to be held being the chief and most Ancient Court and Consistory of the Jurisdiction of the Archbishop of Canterbury which Parish of Bow together with twelve others in London whereof Bow is the chief are within the Peculiar Jurisdiction of the said Archbishop in Spiritual Causes and
exempts the Bishop from the Jurisdiction of his Metropolitan And for that the Cardinal fell into a Praemunire for which he purchased his Pardon which is sound among the Charters 4 H. 6. in Archivis Turr Lond. 6 7 Eliz. Dyer 233. a. Jo. Packhurst being elected to the Bishoprick of Norwich before that he was created Bishop obtained a Faculty or Dispensation from the Archbishop of Canterbury by force of the Statute of Faculties to retain a Parsonage which he had before in Commendam for Three years viz. Ã Festo Michaelis An. Dom. 1560. usque ad idem Festum in An. 1563. Before the first Feast of St. Michael Packhurst is created Bishop and afterwards he resigned the Benefice And the Question was whether that Benefice became void by the resignation of Packhurst or by his promotion to the Bishoprick And it was adjudged That the Church became void by his Resignation Which proves That by virtue of the said Faculty or Dispensation he continued Parson until he had Resign'd Vid. N. Br. 36. h. If a Parson who hath a Faculty or Dispensation to hold his Rectory be created a Bishop and after the Patron present another Incumbent who is Instituted and Inducted now the Bishop shall have a Spoliation against that Incumbent which proves that his real possession in the Parsonage always continued by virtue of the said Faculty or Dispensation And in this Case of a Commendam in Sir Joh. Davis Reports this difference is put between a Faculty to take a Benefice and a Faculty to retain a Benefice viz. That a Faculty granted to one who is not Incumbent to Take a void Benefice is void And a Faculty to one who is Incumbent of a Benefice to Retain the same Benefice is good By virtue of these Faculties Dispensations and Provisions from the Pope Edmond the Monk of Bury who was a Minister in the Court of King Ed. 3. had many Benefices as appears in the foresaid Case of the Bishop of St. Davids 11 H. 4. And Hankford said in the same Case fo 191. a. That by virtue of such Faculty one and the same person had been Abbot of Glastenbury and Bishop also of another Church simul semel and had the Possessions and Dignity of both at the same time Likewise Hen. Chichley who was afterwards Archbishop of Canterbury being a Prebend in the Cathedral Church of Sarum was elected Bishop of St. Davids and before his Consecration the Pope reciting by his Bull that he was elected Bishop of St. Davids granted him a Faculty and power to hold and enjoy all his other Benefices till the Pope should otherwise order c. Vid. Nov. Decis Rot. 331. And that these Faculties or Dispensations to hold Benefices in Commendam were granted in the Court of Rome in the time of King H. 5. appears in Lindw de Praeb c. Audistis ver Dispensatione And although in case of Hen. Beauford aforesaid it was held That the Dispensation came too late it being granted after the Bishop was created Cardinal yet afterwards in the time of King H. 8. Cardinal Wolsey having before he was created Cardinal obtained a Bull from the Pope to retain the Archbishoprick of York as perpetual Administrator and the Abbey of St. Albans in perpetuam Commendam he held both during his life by virtue of the said Faculty or Dispensation Vid. 27 H. 8. 15. b. By these Presidents and Authorities it is evident That before the making of the foresaid Statute of Faculties such Dispensations were had and obtained at the Court of Rome to hold in Commendam Ecclesiastical Benefices in England But the Truth is as in the foresaid Case de Commenda Davis Rep. such Faculties or Dispensations granted by the Pope touching Ecclesiastical Benefices in England were ever contrary to the Law of the Realm for it was a meer usurpation on the Crown of England before the Statutes made against Provisors And these Statutes were made in declaration of the Common Law in that point 12 Ed. 2. Fitz. Qua. Imp. 169. 19 Ed. 2. Eitz Qua non admisit 7. 15 Ed. 3. Fitz. Qua. Imp. 160. 21 Ed. 3. 40. 11 H. 4. 230. a. It is also meet to be known That long before King H. 8. the Statute of 16 R. 2. and divers other Laws against Provisors and Appeals to Rome and the Popes Usurpation upon the Rights of the Crown of England were made well-nigh as severe as any since The first encroachment of the Bishop of Rome upon the Liberties of the Crown of England was made in the time time of King William the Conqueror For before that time the Pope's Writ did not run in England his Bulls of Excommunication and Provision came not thither nor were any Citations or Appeals made from thence to the Court of Rome Eleutherius the Pope within less than two hundred years after Christ writes to Lucius the Brittish King and calls him God's Vicar within his Kingdom Pelagius the Monk of Bangor about An. 400. being cited to Rome refused to appear upon the Pope's Citation affirming That Britain was neither within his Diocess nor his Province And when about the year 600 Augustine the Monk was sent by Gregory the Great into England to Convert the Saxons the Brittish Bishops then in Wales regarded neither his Commission nor his Doctrine as not owing any duty to nor having any dependence on the Court of Rome but still retained their Ceremonies and Traditions which they received from the East-Church upon the first plantation of the Faith in that Island And though Ina the Saxon King gave the Peter-pence to the Pope partly as Alms and partly in recompence of a House erected in Rome for English Pilgrims yet certain it is that Alfred Aethelstane Edgar Edmond Cauutus and Edward the Confessor and other Kings of the Saxon Race gave all the Bishopricks in England per Annulum Baculum 9. In the Case of Evans against Askwith it was agreed That the nature of a Dispensation is for to derogate and make void a Statute Canon or Constitution as to that which it prohibites as to the party and it is as an Exception as to him out of the Statute or Constitution It is said that a Dispensation is Provida Relaxatio mali prohibiti necessitate vel utilitate pensata And in the same Case it was also Resolved by all the Judges That the King hath power to Dispence with Statutes and Canons in force within this Realm By the very Common Law of right it was in the King for the Canons are the Ecclesiastical Laws of the Land and do not bind except they are received in the Realm as appears by the Statute of 25 H. 8. c. 21. And by the Statute of Merton touching one born before Marriage as by the Canon yet at Common Law he is Legitimate And 10 H. 7. 12. it is said That the King may Dispence with one to hold Two Benefices and it seems the Pope
Law Provisional touching the Building of new Chappels 18. Whether a Seat in the Church and Priority in that Seat claimed by Prescription be Triable at the Common Law by Action upon the Case 19. A Case in Law touching a Tax made in a Parish for the making of new Bells for the Church 20. Whether a Tax for Repairs of the Church may be made by the Church wardens alone without the Major part of the Inhabitants 21. Church-Seats in the generality are in the Ordinaries power to dispose 22. Divers other Cases at the Common Law pertinent to the subject of the Premisses 23. In what respects an Inhabitant in one Parish having Land in another may or may not be Taxed as to the Church of that Parish where the Land lies 24. The difference in Law between a Parsons grant to a man his own Tithes and his grant to him the Tithes of another man as to the validity of the Grant 25. Disposal of Seats in the Body of a Church belongs of Common right to the Ordinary of the Diocess 26. In what respect a man inhabiting in one Parish shall be charged towards the Reparation of the Church of another where he hath Land and in what respects not so 27. Rates for Reparation of Churches are cognizable only in the Ecclesiastical Court and no Prohibition notwithstanding any inequality in the Rate 28. Repairers of a Chappel of Ease not discharged thereby of Reparations of the Mother-Church 29. Land in a Parish not to be Rated for the Ornaments of a Church That Rate to be according to the personal Estate 30. In what case a Prohibition lies to a Suit for Reparations of a Church not so as to a Rate made by the Major part of the Parishioners for the Ornaments of the Church 31. The Bounds of a Parish not Triable in the Ecclesiastical Court though the difference be between two Spiritual persons 32. Prohibition where a Vicar sued the Parson Impropriate for Dammages for cutting down the Trees growing in the Church-yard 33. Prescription of Repairing a Chappel of Eâ—se no discharge from repairing the Mother-Church 34. The charge of Repairing a Church refers to Land of providing Ornaments of the Church to the personal Estate and how to be apportioned between Landlord and Tenant 35. Action of Trespas lies for the Heir of such whose Coat-Armor or Monument in Church or Church-yard is by any defaced or demolished be it by the Parson the Ordinary or by any other 36. A Case in Law touching a disturbance of sitting in certain Seats in a Chancel of a Church 37. Certain Cases in Law touching striking in a Church and Church-yard and drawing a Weapon in the same 38. The difference taken between having a Seat in the Isle of a Church and a Seat in the Body of the Curch 39. A Prohibition denied on a Prescription of not Repairing a Mother-Church in regard such Prescription is meerly Spiritual 40. The Ecclesiastical Court not to intermeddle with the Precincts of Parish-Churches 41. Towards Church-Reparations all Lands within the Parish as well of Foreigners as Parishioners are ratably liable 42. Controversies touching Seats in Churches determinable in the Spiritual not Temporal Courts In what Cases the Common Law hath took cognizance thereof 1. CHURCH Ecclesia 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 from the old word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 h. e. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or rather 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 h. e. evocare being an Assembly of men gathered out of all Mankind or evocatus per Evangelium or from the Hebrew Cahal h. e. Congregatio the true visible Church being a Congregation of Faithful men in which the pure Word of God is preached and the Sacraments duly ministred according to Christ's Institution in all things necessary to the same This in a Theological sense but the word Church in a Legal sense as here chiefly intended differs from the former as far as Dead Walls do from Living Saints there being no more here designed to be touch'd at than what refers rather to the Place than to the Persons Churches are of three sorts Cathedral Collegiate Parochial The Bishop is the Incumbent of the first Priors and Abbots were and Heads of Colledges are Incumbents of the second and Parsons of the third commonly called a Rectory being either a Parsonage or a Vicarage And that either 1 Ratione dotationis 2 Fundationis 3 Fundi 2. The Emperour Justinian Decreed That the Lands of the Church should not be sold alienated or exchanged unless it were to the Prince's house or to or with another like Religious place and that in equal goodness and quantity or that it were for the Redemption of Captives But by the Statute of primo Jac. the Possessions of the Church are protected from alienation or diminution in all respects and so as that they shall remain and continue according to the true intent of their Foundation to their Successors for ever to the uses and purposes therein limited 3. By the Common Law the Church and Church-yard are it seems the Soyl and Freehold of the Parson but the use of the Body of the Church and the Repairs and Maintenance thereof is common to all the Parishioners albeit the disposal of the Pewes in the Body of the Church or an Isle or Chappel joyning to the Body and the disposing of the charges of the Repairs thereof belong to the Ordinary insomuch that no man can challenge a Seat in the Body of the Church without shewing some special reason for the same All which appears in the Case of Boothby against Baily where Boothby being Executor of Gilbert brought a Prohibition against Baily and his Surmize was That whereas Sir Bernard Whetston was seized of the Mannor of Woodford-Hall and that he and those whose Estate he hath in the same had used time out of mind to have a peculiar Pew in the Body of the Church and that the Defendant by Suit in the Ecclesiastical Court sought to dispossess them of the same And by the Opinion of the whole Court this was no sufficient ground of a Prohibition for though the Church and Church-yard be in Law the Soyl and Freehold of the Parson yet the use of the Body of the Church and the repair and maintenance thereof is common to all the Parishioners And for avoiding of confusion the distribution and disposing of Seats and charges of Repair belong to the Ordinary and therefore no man can challenge a peculiar Seat without a special reason But if it had been Prescribed That Sir Bernard Whetstone c. had used time out of mind at their own costs to maintain that Pew and had therefore had the sole use thereof the Prescription might have stood and been warrant for a Prohibition though the Pew were in the Body of the Church And so it is in the like case of an Isle or Chappel adjoyning to the Body of the Church upon the same difference whether it hath been maintained by the whole Parish or
surmized they had a Custome to place a Clerk there by the Election of the Vestry the Parson sued them in the Ecclesiastical Court to have his Clerk placed there according to a late Canon made It was the Opinion of the Court that it was a good Custome and that the Canon could not take it away wherefore a Prohibition was granted 16. A Bishop Archdeacon Parson are Spiritual Corporations at the Common Law for the Parson and this is meant also of the others hath two Capacities The one to take to him and his Heirs the other to him and his Successors and in that respect he is seized jure Ecclesiae If J. S. be Parson of D. and Land be granted to J. S. Parson and his Successors and to J. S. Clerk and his Heirs in this case he is Tenant in Common with himself 17. Note That it was agreed in Bushie's Case That if a Parsonage be Impropriate and the Vicarage be endowed and difference be between the Parson and the Vicar concerning the Endowment that shall be tried by the Ordinary for the Persons and the Cause are both Spiritual And there the Vicar sues the Parson for Tithes and suggests the manner of Tithing and prays a Prohibition and it was granted and after upon solemn Argument Consultation was granted insomuch that the manner of Tithing did not come in question but the Endowment of the Vicarage only for that is the elder Brother as the Lord Coke said This was cited to be Adjudged by Coke Also there is much difference between Prebends and Parsons for it was Adjudged in Watkinson and Man's Case That a Lease made by a Prebend is good by the Statute of 32 H. 8. for he is not excepted but only Parsons and Vicars and so it was said it had been Adjudged in Doctor Dale's Case 18. It will not be denied but that the Clergy of England have had in all Ages certain Priviledges which the Laity never pretended to To which purpose there have been Laws Enacted and Cases Ruled by persons learned in the Laws In An. 22 H. 8. cap. 5. it is Enacted That the decayed Bridges in every County where it cannot be known who in right ought to repair the same shall be repaired by the Inhabitants of the said County Town Corporate or Riding where the Bridge is by the Assessment of the Justices of Peace who may appoint Collectors to levy the same by Distress Now the Question is Whether the Parsons and the Vicars may be charged by the general word of the Inhabitants and Distress taken on their Spiritual Livings In order to a Resolution of this Question it must be premised That it is most evident that the Clergy are by the Common Law of this Kingdom a divided Estate both for their Persons and Spiritual promotions from the Laity of this Land 1 For their Persons Fitz. N. B. fo 175. That Clerks shall not be chosen Bayliffs or Beadles for the Lands in their possessions although the Land before it came to the hands of the Clerk was charged therewith by tenure 2 A Clerk arraigned before a Temporal Judge for Felony may plead the Jurisdiction of the Court The Clergy-men by reason of their Resiance are not bound to the Leet nor to follow Hugh and Cry 3 That their Spiritual Livings are also discharged from the general charge of this Realms Laity appears by the Register fo 260. F. N. B. fo 227. That Spiritual persons shall not be charged to pay Toll Pontage or Murage but may discharge themselves by Writ Also the Sheriff who by the Law is the King 's general Officer to serve Processes in every County may not intermeddle with the Clergy in respect of their Spiritual promotions but return Quod Clericus est Beneficiatus in Episcoparu non habet Laicum foedum in baliva mea and then the Process must be to the Bishop as appears 34 H. 6. 21 H. 6. This Priviledge is confirmed to them by Magna Charta and divers Grants and Statutes viz. Articulis Cleri 9 Ed. 2. cap. 9. Likewise no Distress shall be taken in the Ancient Donations of the Church The like Grant is made unto them by King Ed. 1. 24. Protestation 2. That the Sheriff or Minister of the King shall not meddle with the Goods Chattels or Carriages of the Clergy and in Purveyors 12. An. 14 Ed. 3. there is a Statute that Purveyors shall not meddle with the Clergy c. Ed. 1. cap. 1. 1 R. 2. cap. 2. 1 H. 4. cap. 3. Statute Spiritualties 2. Priviledges Grants Immunities of the Clergy are confirmed So that it appears both by the Common Law and the Statutes that the Clergy are not to be burthened in the general charges with the Laity of this Realm neither to be troubled or incumbred unless they be especially named and expresly charged by some Statute And divers Statutes heretofore expressing themselves with the like general words have never been expounded to extend to the Clergy as by the usage of them appears by the Statute of Winton An. 13 Eliz. 1. Again the people dwelling in a Hundred where any Robbery is committed shall either bring forth the Felon or agree with him that is robbed yet hath it never been taken that Parsons and Vicars should be Contributors thereunto yet the words Gentes demorantes viz. the People dwelling are as general words as Inhabitants In the same Statute there are the like general words Watching c. yet the Clergy thereby are never charged Also the Statute made for the High-ways An. 2 3. P. M. chargeth every Housholder yet this general Housholder hath never been taken by usage to charge the Clergy viz. the Parson or Vicar Fitz. in his Nat. Bre. fol. 131. saith that a Clerk being bound in a Statute-Merchant shall not be taken by his Body And the Writ founded upon the Statute-Staple 27 Ed. 3. cap. 9. hath this special Proviso Si Laicus Sit capias Also the Statute whereupon this Writ is founded is general and no Exception made at the Clergy And 33 H. 8. cap. 2. there is a Statute that chargeth all Resiants within any Countyâ— where there is no Goal to be Taxed by the Justices for the Building of one yet have the Clergy never been charged by reason of these general words Resiants c. 1 Ed. 1. 18 Ed. 3. 4. 1 R. 2. 1. For these Reasons it is supposed that the general words in the aforesaid Question will receive in Law the like Exposition as the other said recited Statutes have done And the Parsons and Vicars shall not thereby be charged the rather for that the Statute sets down the Inhabitants of the County where the certain persons that should do it cannot be known which is to be intended such Inhabitants as are chargeable to Pontage which Spiritual persons are not but excepted as aforesaid CHAP. XVIII Of Vicars Vicarages and Benefices 1. The Vicar and Vicarage described according to Law 2. What
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
placuit 10. q. 3. Rebuff de Commenda who yet by the same Law possit expensas facere ex reditibus Beneficii Commendati sumere ex eo alimenta debita persolvere sicut is qui titulum habet c. 1. de Solutio hoc afferit Archidiac in cap. qui plures 21. q. 1. 7. The grand Case of a Commendam was that of Evans and Kiffin against Ascuth which being two daies argued by the Judges and by Noy Attorney is acutely and succinctly Reported thus viz. In Trespass Dr. Thornbury being Dean of York was chosen Bishop of Limbrick in Ireland But before Consecration or Confirmation he obtained a Patent with large words Non obstante retinere valeat in Commendam the said Deanary c. And afterwards he was chosen Bishop of Bristol and then also before Installation he obtained another Patent with a more ample Dispensation of retaining the Deanary in Commendam It was Agreed by all That the Church or Deanary c. in England shall be void by Cession if the Parson or Dean c. be made a Bishop in Ireland For the Canon Law in that is one through all the World Also Ireland is governed by the Laws of England and is now as part of England by Subordinacy Note well 45 E. 3. 19. b. Confirmation under the Great Seal of England is good in this Case Confirmation under the Great Seal of England of Presentation to a Church in Ireland of the Heir of the Tenant of the King and that a Dispensation under the Great Seal of England is good in this Case without any Patent of it in Ireland vid. 8 Ass 27. 10 E. 3. 42. An Exchange of Land in England for Land in Ireland is good Note 20 H. 6. 8 Scir fac sued in England to Repeal a Patent under the Great Seal of Ireland vid. the Irish Statute 2 Eliz. cap. 4. That an Irish Bishop may be made under the Great Seal of England Note Stat. 1 E. 6. the Irish Bishops shall be Donative by Patent of the King under the Great Seal of England yet the King may let them be chosen per Congé d'Eslire c. 1 Noy Attorney Argued at Bar and so stated the Points of the said Case by themselves If a Commendatary Dean by a Retinere in Commendam may well Confirm a Lease made by the Bishop for it is Agreed That a Commendatary Dean by Recipere in Commend cannot Confirm because he is but a Depositarius Note 19 H. 6. 16. 12 H. 4. 20. 27 H. 8. 15. a Commendatary shall be sued by that Name and by such a Commend he may take the profits and use Jurisdiction and yet is not a Dean compleat Note he may make a Deputy for Visitation but not for Confirmation of Leases Note if there be two Deans in one Church both ought to Confirm Vid. Dy. 282. Co. Inst 30. a. 2 The Second point if such a Bishop be chosen to another Bishoprick if now the first Church in Commend admitting that there was a Full Incumbent be void presently by the Election and assent of the Superiour viz. the King And it seemed to him that it was because there need not be a new Consecration and he vouch'd Panormitan 2. par 101. The Bishop of Spires was chosen Bishop of Trevers and had the assent of the Pope and that he came to Trevers and there found another in possession and he would have returned to the former Bishoprick and could not He also Cited 8 Rep. Trollop's Case That the Guardianship of the Temporalties cease by the Election of a new Bishop Note that Serjeant Henden who argued on the contrary vouch'd Mich. 4 Jac. May Bishop of Carlisle made a Lease to the Queen and a Commission issued out of the Exchequer to take it and the Dean and Chapter Confirmed it before the Inrolment of it and yet Adjudged good That Case was for the Castle of Horne First the Judges having Argued two daies Resolved 1 That all Commendams are Dispensations and that Cession commenced by the Canon and Council of Lateran 2 That the King may dispense with that Canon 11 H. 7. 12. For the Pope might and now by the Statute 21 H. 8. that power is given to the King cumulative by way of Exposition veteris and not by Introduction novi Juris and by that Statute a concurrent power is given to the Archbishop of Canterbury and may be granted to the King or by the Archbishop c. 3 That the Dispensation after Election to the first Bishoprick and before Consecration c. and also the Dispensation after Election to the second Bishoprick and before Confirmation is good enough in both Cases and he remains a good Dean to Confirm c. and afterwards the Judgment in the Case being an Action of Trespass was given accordingly 8. A Commendam is to be granted Necessitate evidenti vel utilitate Ecclesiae suadente and in the Infancy of the Church quando defuerunt Pastores they were necessary A Commendam ordinarily is but for six months and he that hath it is Custos only the other is extraordinary and that is for life and he is an Incumbent The King by his Prerogative Royal may grant a Commendam without any Statute yet if such Commendam shall be good it may be very mischievous to the Patron It is it seems agreed in the Books of the Common Law that the use of Commendams in their first Institution was lawful but not the abuse thereof and that a perpetual Commendam viz. for life was held unlawful and condemned by a Council of 700 Bishops It is likewise Reported to us That where the Incumbent of a Church was created a Bishop and the Queen granted him to hold the Benefice which he had in Commendam It was the Opinion of the Justices That the Queen had the Prerogative by the Common Law and that it is not taken away by the Stat. of 35 H. 8. 9. In a Quare Impedit brought by the King against Cyprian Horsefall and Robert Wale on a Special plea pleaded by Wale the Incumbent the Kings Attorney demurred in Law The Case in substance was this viz. the Corporation of Kilkenny being Patrons of a Vicarage within the Diocess of Ossery Presented one Patrick Fynne thereunto who was Admitted Instituted and Inducted After that during the Incumbency of the said Fynne Adam Loftus Archbishop of Dublin and Ambrose Forth Doctor of the Civil Law being Commissioners Delegates for granting of Faculties and Dispensations in the Realm of Ireland according to the Statute of 28 H. 8. cap. 16. by their Letters Dated 9 Octob. 33 Eliz. granted to John Horsefall then Bishop of Ossery That the said Bishop unum vel plura Beneficia curata vel non curata sui vel alieni Jurispatronatus non excedentia annuum valorem quadraginta Librarum adtunc vacantia vel quae per imposterum vacare contigerint perpetuae Commendae titulo adipisci occupare retinere omnesque fructus
for the avoiding of Leases made by a Parson by his Absence from his Living by the space of eighty daies in one year and also shews that one Stallowe who was Parson of Sharrington to whom these Tithes did belong and in whose Right the Defendant claimed them was Absent from his Parsonage by the space of eighty daies in one year and shews in what year and so by this his interest determined and Agreement with the Plaintiff by this made void but they found further as the Plaintiff made it to appear That Stallowe the Parson of Sharrington was not Absent in manner as it was alledged for that they found that he did dwell in another Town adjoyning but that he came constantly to his Parish-Church and there read Divine Service and so went away again They did also find hat he had a Parsonage-house in Sharrington fit for his habitation and whether this were an Absence within the Statute as to avoid his Lease they left that to the Judgment of the Court Yelverton Justice This is a good Non-Residency within the Statute of 21 H. 8. cap. 13. but not an Absence to avoid a Lease made within the Statute of 13 Eliz. cap. 20. It cannot be said here in this Case that he was Absent for he came four daies in every week and in his Parish-Church did read Divine Service Williams Justice upon the Statute of 13 and 14 Eliz the Parson ought not to be Absent from his Church eighty daies together in one year à Rectoria sua but this is not so here for he came to his Church and read Divine Service there every Sunday Wednesday Friday and Saturday and therefore clearly this cannot be such an Absence within the scope and intention of these Statutes as thereby to avoid his Lease Yelverton Justice he ought to be Absent eighty daies together per spatium de Octogin diebus ultra and this to be altogether at one time and so the same ought to have been laid expresly the which is not so done here for that it appears here that he was at his Parsonage-house and did read Prayers every Sunday Wednesday Friday and Saturday and so the whole Court were clear of Opinion that this Absence here as the same appeared to be was not such an Absence by the space of eighty daies in one year to avoid his Lease within the said Statute and so the Defendants Plea in Barr not good and therefore by the Rule of the Court Judgment was entered for the Plaintiff 17. An Information was Exhibited against Two Parsons by J. S. upon the Statute of 21 H. 8. cap. 13. against one of them for Non-Residency and against the other for taking of a Farm the one of them pleaded Sickness and that by the Advice of his Physicians he removed into better Air for Recovery of his health and this is justifiable by the whole Court vid. more for this Coke 6. par fo 21. in Butler and Goodall's Case The other pleaded That he took the Farm for the maintenance of his House and Family And this also is justifiable by the Opinion of the whole Court Crooke moved the Court for the Defendants That the Plaintiff was a Common Informer and that he did prefer this Information against them only for their vexation and so to draw them to compound with him as formerly he hath so done by others for which they prosecuted an Indictment in the Countrey upon the Statute of 18 Eliz. cap. 5. made to punish Common Informers for their Abuses The whole Court did advise them to prosecute this Indictment against him Crooke moved for the Defendants That in regard the Informer is a man of no means that the Court would order him to put in sufficient Sureties to answer Costs if the matter went against him and that then the Defendants would presently answer the Information Williams Justice nullam habemus talem legem this is not to be done but the Rule of the Court was That the Defendants should not answer the Information until the Informer appeared in person 18. In an Action of Covenant the Plaintiff in his Declaration sets forth that the Defendant was Parson of D. and did Covenant That the Plaintiff should have his Tithes of certain Lands for thirteen years and that afterwards he Resigned and another Parson Inducted by which means he was ousted of his Tithes and for this cause the Action brought The Defendant pleads in Barr the Statutes of 13 Eliz. cap. 20. and 14 Eliz. cap. 11. for Non-Residency upon which Plea the Plaintiff demurr'd in Law It was urged for the Plaintiff That the Plea in Barr was not good because it is not averred that the Defendant had been Absent from his Parsonage by the space of Eighty daies in a year for otherwise the Covenant is not void by the Statutes For the Defendant it was alledged That the pleading of the Statute of 13 Eliz. is idle but by the Statute of 14 Eliz. this Covenant is made void for by the Statute all Covenants shall be all one with Leases made by such Parsons And in this case if this had been a Lease this had been clearly void by Surrender of the Parson and so in case of a Covenant Doderidge and Houghton Justices The Statutes of 13 and 14 Eliz. do not meddle with Assurances at the Common Law nor intended to make any Leases void which were void at the Common Law and therefore this Covenant here is not made void by the Statute unless he be Absent Eighty daies from his Parsonage Coke Chief Justice agreed with them herein They all agreed in this Case for the Plaintiff and that by the Preamble of 14 Eliz. it is shewed the intent of the Statute to be to make Covenants void within the Provision of 13 Eliz. by Absence for Eighty daies And Judgment in this Case was given for the Plaintiff CHAP. XXIX Of Abbots and Abbies also of Chauntries and of the Court of Augmentations 1. Abbot what why so called the several kinds thereof and how many anciently in England 2. A famous Abbot anciently in Ireland The manner of their Election prescribed by the Emperour Justinian Anciently the Peers of France were frequently Abbots 3. The ancient Law of King Knute concerning Abbots 4. The Abbot with the Monks making a Covent were a Corporation 5. Abbots were either Elective or Presentative they were Lords of Parliament How many Abbies in England and which the most Ancient Founded by King Ethelbert 6. Chaunter and Chauntries what and whence so called their use and end 47 belonging anciently to St. Pauls in London when and by what Laws their Revenues were vested in the Crown 7. Before King John's time Abbots and Priors were Presentative afterwards Elective 8. Six Differences taken and Resolved in a Case at Law touching Chauntries 9. Certain Cases in Law touching Lands whether under pretence of Chauntries given by the Statute to the King or not 10. What the Court of Augmentations was the end
for finding Salary for a Priest with 10 l. of it and also a good use is limited there the King shall have but 10 l. although the other Necessaries are to be found for the Priest because a good use in certain shall be preferred before a Superstitious incertain use but if nothing in certain be limited to the Priest the King shall have the Land 4 If Land be given to find a Priest the King shall have it but if a Priest have but a Stipend the King shall have but the Stipend 5. When a certain Sum is limited to a Priest and other good uses are also limited which depend upon the Superstitious use all is given to the King 6. If all the uses be Superstitious of what certainty soever they are the Land is given to the King otherwise it is if there be any good use 9. The Case was where A. devised to the Dean and Chapter of Y. 400 l. to the intent to find a Chantery in their Church perpetually and an Obit for the Soul of D. and that the Chantery-Priest should have 40 Marks yearly King H. 4. gave License to the Dean and Chapter to purchase divers Lands in F. ad onera opera pietatis In the Will of A. they purchased Houses in F. and made Ordinances how the Priests should be maintained and obliged themselves omnia bona sua ad performandum and they employed 8 l. for the maintenance of the Priest and other Sums for the Obit Resolved That this was not a Chauntery either in truth or in reputation within the intent of the Statute of 1 Ed. 6. because here are not any Lands given by A. and his Intent cannot make a Chauntery nor appoint any Lands thereunto but obliged their Goods for the payment of an Annual Sum to a Priest and when no Lands are given nor employed to that purpose it is not reason they should be given to the King A Freeman of London seized of Messuages of the value of 9 l. 4 s. per ann out of which a Quit-rent of 42 s. per ann was paid 6 H. 7. devised the same to the Parson and Churchwardens of the Parish of S. and their Successors That the Churchwardens should receive the Profits thereof and therefore should find a Chaplain for ever to pray for the Soul of him and his Ancestors and to find an Anniversary expending yearly on it 13 s. 4 d. and the Residue of the profits thereof to be expended and employed about the Reparations of the said Church which were done accordingly The Question now was Whether these Messuages were given to the King by the Statute of 1 Ed. 6. of Chaunteries It was said part of the Profits were given for a good use and that should save the Lands But Resolved because that was incertain for it is si quid fuerit and also for that it appeareth That the Superstitious uses and the Quit-rent did amount to the full value of the Messuages and the value shall be taken as it was at the time of the making of the Will and not to be of any greater value that the said Messuages were given to the King by the said Statute A man devised two Houses in L. to the Churchwardens of S. 1 To find an Obit and to bestow 3 s. per annum upon the same Obit 2. The residue of the Profits to Repair the said Church of S. and to provide Ornaments in the said Church In this Case it was Adjudged That by the Statute of 1 Ed. 6. no more of the Land was to the King than was given to the Obit and the Devise to the other uses of the rest was good A Citizen and Freeman of London seized of divers Messuages and Tenements of the yearly value of 30 l. 6 s. 8 d. by his Will before the Statute of 1 Ed. 6. Devised the same to the Corporation of Skinners of London and that 42 s. 8 d. thereof should be employed upon an Obit and 12 Marks yearly thereof upon the Priest and the residue to be employed upon Poor men of the Corporation decayed by Misfortune who inhabited the said Messuages and Tenements and appointed the said Poor men to pray for his Soul and further with the Profits to repair the Messuages and Tenements and after the Statute of 1 Ed. 6. was made of Chanteries It was the opinion of the Court 1 That Lay-Corporations are excepted out of the Statute for their Lands which they have to increase their Treasure for the good of the Corporation but not for Lands which they have to employ to Superstitious uses 2 Resolved That all the money which was given for the Obit and the finding of a Priest was a Superstitious use and given to the King by the Statute but that which was given for the maintenance of the Poor men and although it was appointed them to pray for his Soul which was a Precept suitable for that time and which was given for the Reparation of the Messuages was not given to the Crown by the said Statute And Turner's Case was vouched to be Adjudged where Land was given to the intent that his Feoffees should keep an Obit with so much of the Profits of it as they should think fit in their discretion that the Land thereby was not given to the Crown but so much of the yearly Rent as the Feoffees employed to that purpose and if they had employed nothing that way then nothing was given to the Crown In the principal Case it was Adjudged against the Queen and Informer And in the Case between the Queen and Palmer it was said by Anderson Chief Justice That where a Gift is made to sustain Poor men and Mass-Priests without limiting a certain quantity how much to one use and how much to the other use there the Queen shall have the whole Land But if the quantity was appointed as to one use and how much to the other use there the Land is not forfeited but only so much as is employed to the Superstitious uses 10. In order to the better execution of the Premisses there was a Court established commonly called the Court of Augmentations erected as a Court of Record by Authority of Parliament An. 27 H. 8. which was to have one Great Seal and one Privy Seal consisting of a Chancellor as the chief and principal Officer thereof a Treasurer Attorney Sollicitor Clerk Usher and Messenger All Lands c. belonging to Monasteries Priories and other Religious Houses and Purchased Lands were within the survey and government of this Court which as the Lord Coke says could not be erected but by Parliament because a Chancellor and a Court of Equity were constituted There were also other Ministerial Officers that had relation to this Court for there were Ten Auditors called Auditors of the Revenues of the said Augmentations and Seventeen particular Receivers of the said Revenues This Court of Augmentations together with the Court of General Surveyers being
repealed dissolved extinguished and determined by King H. 8. by his Letters Patents in the 38th year of his Reign a new Court of Augmentations was erected by his Letters Patents which Repeal and Dissolution thereof was held void in Law because they had been erected by Authority of Parliament For which reason also the new Erection of the new Court of Augmentations was held likewise void and therefore the said Letters Patents as well for the dissolution of the former as for the erecting of the latter new Court of Augmentations were after confirmed and established by a Statute enacted by King Ed. 6. But afterwards Q. Mary according to the power given her for dissolution of the said Court by Act of Parliament did dissolve the same by her Letters Patents Dat. 1. Jan. in primo Regni and the day next following by other Letters Patents united the same to the Exchequer which was utterly void because she had dissolved the same before So as she pursued not her Authority and so it was Resolved by all the Judges The end and intent of this Court was that the King might be justly dealt with touching the profit of such Religious Houses and the Court took its name from this that the Revenues of the Crown were so much augmented by the suppression of the said Religious Houses and their Lands for by the suppressing of some and the surrendring of other Religious Houses the Royal Intrado was so much increased in the time of H. 8. that for the better managing of it the King erected first the Court of Augmentations and afterwards the Court of Surveyors But in short time what by the profuseness of some and the avariciousness of others it was at last so retrenched that it was scarce able to find work enough for the Court of Exchequer Hereupon followed the dissolving of the said Two Courts in the last Parliament by this King CHAP. XXX Of Annates or First-Fruits as also of Tenths of Aumone or Frank Almoign 1. Annates what why so called paid anciently to the Pope when and by what Laws translated to the Crown a Court thereof when erected and by whom dissolved 2. The great Antiquity of Annates or First-Fruits the great Revenue it brings to the Papal See often complained of as a great grievance anciently 3. The Popes receiving of Annates compared to Aaron the High Priest's receiving Tithe of Tithes The Original Antiquity and Equity thereof controverted by some of the Ancient Canonists 4. What the Tenure of Aumone or Frank Almoigne is a description thereof with its use and end 5. The difference between Statute and Common Law touching Annates or First-Fruits whether due and payable upon Institution or not till Induction 6. To whom the Tenths of Spiritualties were anciently paid and how they came to the Crown originally 1. BY the Statute of 25 H. 8. 20. Annates and First-Fruits of Archbishopricks and Bishopricks seem to be one and the same thing and were Anciently paid to the See of Rome and that throughout all Christendom as were also the Primitiae First-Fruits or Profits of every Spiritual Living but were afterwards by another Statute translated from the Pope to the Prince For the due regulation whereof there was a Court purposely crected by a Third Statute whereby it was made a Court of Record and commonly called the Court of the First-Fruits and Tenths and so continued until it was dissolved by Queen Mary since which time it was never restored albeit the Profits were reduced again to the Crown by Queen Elizabeth and the matters thereof to be transacted were transferred to the Exchequer The First-Fruits after the last Avoidance were probably called Annates because they took their measures from the rate or proportion of one years profit of all Spiritual Livings and Promotions and accordingly are to be compounded for so that these Annates Primitiae and First-Fruits are all one and it was anciently the value of every Spiritual Living by the year which the Pope claiming the disposal of all Ecclesiastical Livings reserved These and Improprâ—ations began about the time that Polydore Virgil lib. 8. cap. 2. makes mention of vid. Concilium Viennense quod Clemens Quintus indixit pro Annatibus These First-Fruits were given to the Crown â—0 H. 8. cap. 3. Sir Ed. Coke cites an Ancient Record of this Subject â—ill 34 Ed. 1. An. 1307. At a Parliament held at Carlisle great complaint was made of Oppressions of Churches c. by William Testa called Mala Testa and Legate of the Pope in which Parliament the King with the assent of his Barons denied the payment of First-Fruits and to this effect he writ to the Pope whereupon the Pope relinquished his Demand and the First-Fruits for Two years were by that Parliament given to the King These First-Fruits or Annates Primitiae are the First-Fruits after Avoidance of every Spiritual Living for one whole year except Vicarages not exceeding 10 l. and Parsonages not exceeding 10 Marks but all are to pay Tenths Which Tenths Ecclesiastical Decimae are the Tenth part of the value of all Ecclesiastical Livings yearly payable to the King his Heirs and Successors by the said Statute of 26 H. 8. cap. 3. and 1 Eliz. to be valued according to the value of Ecclesiastical Livings which were sometimes valued by a Book of Taxation made in 20 Ed. 1. which remaineth in the Exchequer and by another Taxation in 26 H. 8. which also remaineth in that Court. And according to this latter Taxation are the values of Ecclesiastical Livingss computed for the First-Fruits and Tenths The Lord Coke says That the Bishop of Norwich had in 19 Ed. 3. by Prescription time out of mind c. First-Fruits within his Diocess of all Churches after every Avoidance But these were also given to the Crown by the Statute of 26 H. 8. cap. 3. And as for the Tenths the Canâ—nists do hold That the Pope pretended to have them Jure Divino as due to the High Priest by pretence of these words Praecipe Levitis atque denuncia cum acceperitis à filiis Israel Decimas quas dedi vobis Primitias earum offerte Domino id est decimam partem Decimae ut reputetur vobis in Oblationem Primitiarum tam de areis quam de torcularibus universis quorum accipietis Primitias offerte Domino date ea Aaron Sacerdoti But the Parliaments in 25 H. 8. and 26 H. 8. were not of opinion that these Tenths did belong to the Bishop of Rome as appears by the several Preambles of the Statutes then enacted And had they been due Jure Divino to the Pope it is not probable that Queen Mary by the Act of 2 3 Ph. M. c. 4. would have exonerated and discharged the Clergy thereof nor refused to have had them paid to the Pope nor could the Bishop of Norwich as aforesaid have prescribed to have First-Fruits within his Diocess if they had
been due to the Pope de jure Divino speeially for that Anthony de Becke for whom the Prescription was made was a Reteiner to the Court of Rome and made Bishop of Norwich by the Pope Vid. Co. Instit par 4. cap. 14. 2. It was an old Observation and of no less truth than Antiquity that there never was any Invention that ever brought more Treasure to the Bishop of Rome than this of Annates which is of far greater Antiquity than some Modern Writers suppose so Polydore Virgil. Pol. Virg. de invent rerum lib. 8. cap. 2. Et Annates more suo appellant Primos fructus unius Anni Sacerdotii vacantis aut dimidiam eorum partem Historians do not agree what Pope first imposed First-Fruits Wals An. Do. 1316. Trivet Ranulphus Cistrensis lib. 7. c. 42. Polyd. Virg. ubi supra Platina Fox c. This Tribute or Revenue long since when the Bishop of Rome had not such large possessions as now he hath yet at vast expence and charge to uphold and maintain his Dignity was gradually by little and little imposed on such vacant Benefices as himself conferred and bestowed which as Hostiensis contemporary with P. Alex. the Foâ—rth doth affirm was often complained of as a very great Grievance so that after this Labarell declared in the Council at Vienna That Clement the Fifth who was made Pope in the year 1305. forbad the receiving thereof and that laying the same aside the Twentieth part of the Sacerdotal Revenues should instead thereof be annually paid to the Bishop of Rome but this not taking effect the Pope so retained the said Annates to his Exchequer as that to this day it remains one of the considerablest parts of his Revenue Polyd. Virg. ubi supr 3. The Canonist Gammarus in favour of the Apostolick See asserts that Annates are very justly required by the Pope pro Conservando decenti statu and compares it to Aaron the High Priest's receiving the Tithe of Tithes the Tithe of such Tithes as were given to the other Priests adding withal that Annates are of very great Antiquity Gammar in Extr. Julii 2. de Simon Papae Elect. nu 253. in Repet Jur. Can. To. 6. par 2. fo 54. as appears by the Concessions of Jo. Andâ—aeas and of Hostiensis Jo. Andr. Hostiens in c. inter caetera de Offic. Ordin the which Tho. Aquinas doth not deny saying That it is but consonant to Natural reason that he qui omnium curam habet de Communi alatur and thence concludes That the Pope may require Tithes and Annates from the Clergy Aquin. 2. 2. quaest 87. artic 4. As to the Original of these Annates Platina and Blondus report them to have been first exacted by Pope Boniface the Ninth Others assert it to be in the time of Pope John the Two and twentieth which was above Seventy years before that Boniface But Johannes Eccius in his Enchiridion against the Lutherans says that both Blondus Platina and Gravaminus whom he there nick-names Ecclesiae Consarcinatores were all in an Error in ascribing the original of Annates to this Boniface or that John for says he quoting Johannes Andâ—aeas for his Author in the Council at Vienna An. 1311. whereof P. Clement the Fifth was President which was long before Boniface or John the 22d there was a Debate concerning Annates Jo. Andraeas ubi supr Gam ubi supr But their supposing Clement the Fifth to have been after John the 22d was the ground or reason of their Error 4. Aumone or Frank Almoign is the same which we call Libera Eleemosyna or Free Alms whence that Tenure is known by the Name Tenure in Aumone which is a Tenure by Divine Service It is a certain Tenure or Title of Lands at the Common Law as when Lands or Tenements are freely given in the way of Alms to some Church or Religious House upon this condition or consideration That Divine Service shall be offered and Prayers made pro bono animae Donantis or the like So that this Aumone or Frank Almoign is no other than a Tenure or Title of Lands or Tenements bestowed upon God by giving them to such as devote themselves to the Service of God for pure and perpetual Alms whence the Feoffors or Donors cannot demand any Terrestrial Service from the Feoffors so long as the said Lands and Tenements remain in their hands With this agrees the Grand Customary of Normandy cap. 23. and whereof Bracton writes at large But Britton makes another kind of this Land which is given in Alms but not in Free Alms because the Tenants in this are obliged to certain Services to the Feoffor 5. In the Case of Dennis against Drake it was said That if a man be Instituted to a Benefice he ought to pay the First-Fruits before Induction by the Statute but by the Common Law it was otherwise for he is not to have the Temporalties until Induction and therefore he could not pay the First-Fruits But another person cannot be Presented to this Benefice during the continuance of the first Institution And an Institution to a second Benefice is a present Avoidance of the first 6. Decimae id est Tenths of Spiritualties were perpetual and paid to the Pope till Pope Vrban gave them to R. 2. to aid him against Charles King of France and others who supported Clement the Seventh against him And 5 H. 3. by the Pope's Bulls all Tenths were paid to H 3. for years These were given to the King 26 H. 8. cap. 3. Vid. Lambert de prist Angl. c. fo 128. cap. 10. St. ibid. inter Leges Inae fo 78. cap. 4. CHAP. XXXI Of Altarage 1. The genuine signification of the word Altarage what is comprehended under that word Two Cases at the Common Law touching Altarage 2. A severe Canon made by Cardinal Otho against the gross abuse of Altarage an Artifice to defeat that Canon And whether Altarages may be let to Farm 3. Whether Tithe-Wool will pass by the word Altaragium 4. The word Altaragium shall be expounded according to the use and eugome of the place 5. Whether Tithe-wood may pass to the Vicar by the word Altaragium 1. ALtarage or Altaragium a word though now somewhat obsolete yet in signification of Ecclesiastical cognizance and in the intent thereof practicable at this day Mr. Blount in his Nomo-Lexicon takes notice thereof as a word which comprehends not only the Offerings made upon the Altar but also all the profit which accrues to the Priest by reason of the Altar Obventio Altaris And for further proof and illustration of this matter there cites a President out of the Orders and Decrees of the Exchequer in the Reign of Queen Elizabeth to this effect That upon hearing of the Matter between R. T. Vicar of West-Haddon and E. Andrewes it was ordered That the said Vicar should have by reason of the words Altaragium cum manso Competenti contained in the
sole Prince conferred the Tithes of all the Kingdom upon the Church by his Royal Charter Of which Ingulph Abbot of Crowland An. 855. saith That King Ethelwolph with the consent gratuito consensu of his Prelates and Princes did first enrich the Church of England with the Tithes of all his Lands and Goods Many other Laws of the Saxon Kings for the payment of Tithes are recited by Mr. Selden as entirely the Gift of Kings And so saith King Elred Nemo auferat à Deo quod ad Deum pertinet Praecessores nostri concesserunt The whole Bishoprick Anciently was in a large sense a Paroecia and the income of it by Contributions first and by Tithes also afterwards was the Common stock of all the Clergy of the Diocess and Mr. Selden asserts it to be the general Opinion of all the Common Lawyers That before the Lateran Council under Innocent 3. every man might have given his Tithes to what Church he would probably within the Diocess because they were not the Propriety as yet of any one Presbyter but the Common Patrimony of all the Diocesan Clergy So that Tithes are a Tenth part of all increase Tithable due to God and consequently to his Ministers that wait on the Altar These are divided into Three sorts 1. Praedial Tithes arising only either of the Fruits of the Ground as Corn Hay Hemp and the like or of the Fruits of Trees and Orchards as Apples Pears and the like 2. Personal Tithes arising of the profits that come by the labour and industry of Man either by Handicrafts as Carpenters Masons and the like or by Buying Selling or Merchandizing 3. Mixt Tithes arising partly of the Ground and partly of the Industry of Man as of Calves Lambs Piggs Milk Cheese and the like No Tithes shall be paid for such things as do not increase and renew year by year by the Act of God Of Praedial Tithes some are called Majores vulgarly termed the Great Tithes others Minores vel Minutae vulgarly the Small Tithes The Great such as Wheat Rye Hay c. The Small such as Min◠Annis Cumin c. And commonly with us here in England we compute Flax in the number of Small Tithes which is a Praedial Tithe as also Wool Milk Cheese Eggs Chicken of all kinds Lambs Honey Bees-wax and the like Vid. Lindw cap. de Decimis In Ancient times the Laity were so far from subtracting their Tithes as is the common practice of these daies that oft-times they would give more than was due or demanded and were so Conscientious in the payment thereof as at their death they usually bequeathed a Soule-Sceat to their Parochial Priest in lieu of any Tithes forgotten and at their Funerals caused their best Ox or Horse to be led with the Corps and as a Mortuary or Oblation given to the Priest in recompence of any Tithes which possibly in their life-time might have been omitted to be paid But in these latter Ages not regarding what S. Hierom says That Fraudare Eccelsiam est Sacrilegium all Artifices imaginable are put in practice to subduct the Tithes and therefore to enforce the due payment thereof were the Statutes of H. 8. and Ed. 6. made and enacted 2. Covarruvias with other Canonists and Schoolmen holds That by the Moral Law the rate or proportion of Tithes is not necessarily to be the Tenth part of the Fruits which the more received Opinion holds to be both Erroneous and Mischievous and that by the Law of God and Nature no Custome deviating from the exact rate and proportion of the Tenth of the Fruits ought to prevail any longer than by the free and mutual consent of Parson and Parishioner For which reason it is supposed That the paying of a Halfpeny for a Lamb or a Peny for a Calf by such as have under Seven in one year is now become an unreasonable Custome in regard the value of such Lambs and Calves is now raised four times higher than in Ancient times This seems far remote from Tithes the very Quotity whereof seems to be Moral rather than Ceremonial or Judicial and not only allowed or approved but even commanded by our Saviour himself Yea by the very Law of Nature which is the ground of the Moral Law and long before the Levitical Tithes appear to be due in that Abraham paid it to Melchisedec And God himself who is the best Interpreter of his own Law calls the detention of Tithes Sacriledge And that Command of Christ affirming that Tithes ought to be paid of all even to the very Herbs spoken by him at the period of the Levitical Law ought not to be restrained only to the Priesthood of Aaron for it doth now remain in force as to Priests under the Gospel as that other part of the Moral Law Thou shalt not steal the withholding of Tithes being expresly interpreted Theft and Robbery by the Prophet And lest it should be thought a meer Human Interest or in the power of Man to alienate God himself hath vouchsafed to take Tithes upon his own account in his Ministers behalf These Tithes could not be meerly Ceremonial as some would have it for they prefigure nothing nor are they repealed by any one Text in the Gospel but reinforced as aforesaid so that whatever was commanded in the Old Testament and grounded on the Law of Nature and being not Repealed in the New must yet stand in force as a Duty of the Moral Law And if it be Objected That Tithes were not paid in the Primitive times of the Christian Church the Reason is not because they were not then due but because there was not then any such settled Order for things of this or the like nature in the Church 3. Wherefore all the Common Objections made against the payment of Tithes in the Christian Church may be reduced to one of these Four 1. That our Saviour gave no Command to his Apostles to take Tithes but rather on the contrary said Freely ye have received freely give Answ Yet our Saviour says These things speaking of Tithes ought you to have done And says The workman is worthy of his meat And St. Paul says The Labourer is worthy of his Reward Where hath Christ in totidem verbis forbidden Sacriledge wilt thou therefore commit it because he hath not in terminis terminantibus forbidden it Thou that abhorrest Idols dost thou commit Sacriledge 2 Tithes were not paid till about three hundred years after Christ as Tertullian Origen and S. Cyprian do testifie Answ These Fathers do withal acknowledge that during that time the Churches Maintenance was the Peoples free Contribution which probably might have continued to this day had not that Contribution in process of time turned into a Sacrilegious Century by Covetousness instead of a Commanded Decuma as a Duty Morally enjoyn'd 3. That Tithes came first into this Kingdom by the power of the Pope as by Pope
remove the Tithe which circumstance of Time and the convenience thereof is triable by a Jury and if the Parson exceed the Time the Parishioner may have his Action against him as a Trespasser ab initio And some conceive that the Parishioner is not bound to give the Parson Notice when he doth set forth his Tithe By the Civil Law the Parishioner ought to give the Parson Notice when the Tithes are set forth but it hath been Adjudged that the Common Law doth not so oblige a man But a severance of Nine parts from the Tenth part there must be for such Severance is so necessary and in a kind so essential to Tithes that they are not due nor is it Tithe within the Statute of 2 Ed. 6. until such Severance be made Yet the Parson may Grant his Tithes growing upon the Land before Severance which ought to be made by the Owner of the Land for though the property of Tithes set out by the Owner of the Land belongs to the Parson yet it is otherwise if they be set out by a Stranger And in case the Land be not in any Parish then the King shall have the Tithe thereof by his Prerogative and by the Custome of England But where Lands in themselves Tithable are not manured or ploughed specially in prejudice to the Parson in such case he may notwithstanding Sue the Occupier thereof in the Spiritual Court for the Tithes of that Land But if the Parishioner duly sets forth and severs the Tithe in convenient time and after Dammage happen to him by the Parsons not taking the same away in like convenient time in that case the Parishioner may have his Action on the Case against the Parson 7. The Common Law of this Realm takes notice of Tithes by the word Dismes Decimae of the French Decimes signifying Tithe or the Tenth part of all the Annual Fruits either of the Earth or of Beasts or Mans labour and industry due unto God and consequently to him that is of the Lords Lot and hath his share by his special appointment It signifieth also the Tenths of all Spiritual Livings yearly given to the Prince called a perpetual Disme which anciently were paid to the Pope until Pope Vrban gave them to K. Richard the Second to aid him against Charles the French King and such others as upheld Clement the Seventh against him as aforesaid It signifieth likewise a Tribute levied of the Temporalty But here it is to be understood as Quota pars omnium bonorum licite quaesitorum Deo Divina Institutione debita which though according to the Canon Law is a Tenth of Annual and lawful Encrease commanded to be paid to the Sons of Levi for their maintenance in consideration of their Ministry yet at the Common Law it is an Ecclesiastical Inheritance collateral to the Estate of the Land and of its own nature due only to Ecclesiastical persons by the Ecclesiastical Laws The Practice whereof never met with any considerable interruption in any Age until Charles Martel's Sacrilegious Infeudations of Tithes about the year 650. which usher'd in such a President into the Christian World as could never to this day grow obsolete and out of use Notwithstanding from the beginning it was not so nor did any Lay-persons pretend to Tithes originally nor legally till the Statutes of Dissolutions of Abbies made them capable thereof whereby the Tithes appropriated to such Houses of Religion as were dissolved became a Lay-Fee and Suable by the Laity in the Kings Ecclesiastical Courts 8. Where in the Books of the Common Law it is Reported That before the Council of Lateran every man might give his Tithes to what Church he pleased and might have bestowed them upon what person he thought best there it is also asserted for reason That before that Council there were no Parishes nor Parish-Priests that could claim them But by a Canon made in that Council every man is since compellable to pay his Tithes to the Parson or Vicar of that Parish where the Tithes arise Here may arise a question Whether there were not Parishes long before any Council at Lateran For admitting that the Second Lateran Council was held in the year 1120 as S. Tho. Ridley computes it or that the general Council of Lateran was held in the year 1179 as Sir Simon Degge calculates it yet there seems of be a division into Parishes some Centuries of years before either of these For it is said That Cities and Countries were divided into several Parishes by an Ordinance of Pope Dionysius about the year 266 and from him derived into this and other Realms Also that Ecclesiastical persons first in this Kingdom made Divisions of Parishes as appears by our own Chronicles and that the first Practice thereof came from Honorius the 4th Archbishop of Canterbury after Augustine who died in the year 693 And such as have followed the course of Antiquity in this matter conceive that the original of Parishes had its President from the practice of some Ancient Roman Bishops it being as some would have it recorded in the Pontifical of Damasus but in Anastasius's Bibliothecar it is found That when Peter had appointed and ordained Priests c. and Cletus had reduced them to a certain number Pope Euarist assigned to each of them his Parish and as to the time when those Parishes were assign'd by Euarist it must be about the beginning of the second Century which was many Centuries before the C. of Lateran as also was the practice thereof here in England by Honorius as aforesaid the truth whereof is approved by Cambden But Cavendum c. saith Marsil in his Book De Red. Eccl. c. 12. heed must be taken as to the word Parish for it is equivocal having various acceptations as sometimes when nothing is named but a Parish the whole Diocess is understood which notion of the word often occurs in the Councils in which sense Barbatia spake a wide word for the Pope in his Tract de praest Card. when he said that in respect of his Holiness the whole world was but one Parish Sometimes a Parish is taken for such a part of the Diocess as was assign'd to some Priest arbitrarily sent and maintained by the Bishop to whom such a Parish paid all their dues and he to his Clergy about which time this custome was introduced that all Church-dues should be at the Bishops disposal to be divided into four portions whereof he should haveâ— part for himself another for his Clergy a 3d for the Poor and Strangers and the 4th to be reserved to the Parishioners for the repairing of Churches the collection of which dues was committed to the care of the Chorepise from which Quadripartite division probably came that custome whereby the Bishop of every Diocess might before the C. of Lateran make distribution of the Tithes within his Diocess where he thought convenient
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
again to Fertility in that case it shall pay Tithes presently Also Marsh-Lands newly gained from the Sea and Fenn-Lands gained from the Fresh waters by Drayning c. are not within the Statute of 2 Ed. 6. c. 13. to be freed from the payment of Tithes during the first Seven years after the gaining thereof Likewise if Land be gained from the Sea and that by great cost and expence and afterwards turned to Arable-Land it was the Opinion of the Court that it shall pay Tithe notwithstanding the Costs because it is not Barren Land of it self but only by accident and so not within the scope and intention of the Statute of 2 Ed. 6. In the Case between Strowd and Hoskins upon a Prohibition Two Points were Argued by the Four Justices viz. 1 When a Prohibition is brought upon the Statute of 2 Ed. 6. to stay a Suit in the Ecclesiastical Court for Tithes of Barren-Lands the first Seven yearsâ— it behooves the party who brings the Prohibition to prove his Suggestion within Six months otherwise a Consultation by the said Statute is grantable 2 When a Consultation is granted for the Reason aforesaid yet the party may have a new Prohibition upon the same Libel for that the Statute of 50 Ed. 3. doth not extend to a Consultation granted upon non-probate of a Suggestion within Six months but where a Consultation is granted upon the matter of a Suggestion And so the Chief Justice declared the Opinion of the Four Justices and thereupon a Rule given That the Prohibition should stand and the Defendant notwithstanding such Plea aforesaid in Barr of the Prohibition may plead in chief to the matter of the said Suggestion and if he will dispute it then he shall have several Consultations on the said Libel Thus as aforesaid in a Prohibition for Tithes it was said by Papham Chief Justice That if Lands be overflown with Water and afterwards gained by Industry Tithes shall be presently paid although it had been overflown time out of mind for those Lands of their nature were not barren and the Statute of 2 Ed. 6. doth not intend that Tithes shall not be paid within seven years but of such Lands as were meerly Barren and made good by Foldage or other industrious means And so it was Adjudged Pasch 14 Jac. B. R. in the Case between Witt and Buck in a Prohibition upon the Statute of 2 Ed. 6. cap. 13. the Clause touching Barren and Heath-ground of which after improvement no Tithes to be paid the space of Seven years next after the Improvement For a Prohibition it was shewed That this Land for which the Parson Libelled for Tithes was Marsh and Sandy Land and covered with Salt water so that time out of mind no Grass had been known there to grow nor any profit at all made of this until now of late time by and with the great costs charges and industry of the Tenant this ground had been lately gained from the Sea and from its overflowing by repairing and making new Banks and Sea-walls and by continual repairing of them and so he had now converted the same into Arable Land where he had Corn and of this Land the Parson Libels for Tithes in the Ecclesiastical Court And upon this matter thus shewed a Prohibition prayed being to be discharged from payment of Tithes of this Ground for Seven years this Statute being thus made for the encouragement of Tenants to make improvement of their Lands Coke Chief Justice It was Resolved in one Farrington's Case upon this Statute of 2 Ed. 6. that Wood-ground is not Barren ground within this Statute This was there Adjudged That if one do stock and grub up Wood-ground and after convert this into Arable ground he hath by this meliorated his Land but with great cost and labour yet he shall pay Tithes for this ground presently for that Heath and barren-ground intended to be within the Statute ought to be such Land as is suapte natura sterilis and Barren Dederidge Justice A Salt Marsh if this be fenced and so made good Meadow shall pay Tithes presently yet before this was so fenced no Tithes thereof payable Coke This Land shall be out of the Statute out of the clause of Discharge for Seven years notwithstanding this charge the Tenant hath been at in gaining this Land from the Sea for to have this Land within the clause of Discharge within the Statute it ought to be Suapte natura Barren which here it is not but by accident and by the overflowing of the Sea The whole Court agreed in this That by this Statute Barren ground is such ground as will not bear Corn of it self without very great cost in the extraordinary manuring of it and therefore that this is no such Barren ground within the Statute as ought to be discharged from payment of Tithes but that Tithes ought to be paid for the fame and that the Parson had just cause to sue for his Tithes in the Ecclesiastical Court and therefore the Prohibition was denied Beech-Trees regularly are Tithable yet in a County where there is a scarcity of Timber and where Beech is used as Timber for Building or the like there possibly they may be discharged of paying Tithes and therefore in Trin. 38 Eliz. it was Resolved That Tithes shall be paid of Beeches although they are above twenty years growth for they are not Timber Yet in Holliday and Lee's Case in a Prohibition it was Resolved That Tithes should not be paid of Beeches of above twenty years growth And in Pindar's Case it was also Resolved That Beeches above twenty years growth being Timber shall not pay Tithes yet in a Countrey where there is plenty thereof they are not to be accounted Timber or Tithe-free So that Beeches in their own nature are not computed Timber-trees and therefore Tithable except where by the Custome of the Countrey where there is scarcity of Wood they are accounted Timber-trees in which case they are not Tithable The Judges of the Common Law have Resolved That all sort of Wood that is usually employed for the building of Houses Mills c. are Gross Woods and within the Statute of 45 Ed. 3. cap. 3. of which sort are Oak Ash Elme Beech Horse-Beech and Horn-bean against the opinion in Molyn's Case as also in Man and Somerton's Case where it was said by Tanfield Justice That Beech by the Common Law is not Timber and so he said it was Adjudged in Cary and Pagett's Case and in that case it was holden That Tithes shall not be paid for Beech above the growth of twenty years in a common Countrey for Wood as in Buckinghamshire for there it is reputed Timber but in a plentiful Countrey of Wood it is otherwise for there it is not Timber and Tithes shall be paid of it as Sylva caedua for which Tithes shall be paid under the growth of 20 years Bees pay not Tithes by the Tenth
the hands of some viz. the Priors and afterwards Dr. Pope pulled off the Addition which he had made to the former Libel off from the second Libel And the whole Court said That if he proceeded upon that Addition that Sentence shall be given for Tithes upon any Prescription since the Statute that then they would grant a Prohibition Mich. 18. Jac. B. R. Dame Denton's Case and the Count of Clanrickard Roll. Rep. par 2. The Order of the Praemonstracenses were Discharged of all Tithes of their Land the which Manibus aut sumptibus excolebant propriis All the Chief Monks paid Tithe as well as other men till Pope Paschal at the Council of Mentz Ordained that they should not pay Tithes de Laboribus suis and that continued as a general Discharge till the time of H. 2. when Pope Adrian restrained it to three Orders viz. the Cistertians the Templers and the Hospitallers And the Discharge which the Order of the Praemonstracenses had was made by Pope Innocent the Third by his Bull. And after in the Council of Lateran ne Ecclesia nimium gravaretur it was provided That the Priviledge of the Templers should not extend to their Farmers Vid. Case Dickenson and Greenhall Mich. 22. Jac. B. R. Roll. Rep. 2. part In Hurrey's Case against Boyer in a Prohibition to the Ecclesiastical Court for stay of a Suit there for Tithes of Lands which were the possessions of the Hospital of St. John of Jerusalem upon Suggestion that the Prior of the said Dissolved House of St. Johns had this Priviledge from Rome which was by divers Councils and Canons viz. That the Lands of their Predecessors which by their own hands and costs they did Till they were not obliged to pay Tithes In this Case it was agreed That this Hospital was not Dissolved by the Statute of 31 H. 8. c. 18. of Dissolutions but by a Special Act made 32 H. 8. c. 24. by which their Corporation and Order was Dissolved and their Possessions given to the King with all the Priviledges and Immunities thereto belonging which the King granted to the Plaintiff in the Prohibition and whether he should hold them Discharged of the payment of Tithes was the question Harris Serjeant urged That this Immunity was annexed to the Corporation of the Prior and his Brethren of the said Hospital and doth not come to the King it being determined by the Dissolution of the said Hospital and so Adjudged in B. R. against the Book of 10 Eliz. Dyer 277. 60. 2. Coke the Bishop of Winchester's Case 14. B. and the Archbishop of Canterbury's Case 47. B. and 18 Eliz. Dyer 349. 16. Nichols Serjeant to the contrary and cited a Canon made by the Council of Mag. and another made by Innocent 3. An. 1215. and divers others and also the Statute of 2 H. 4. 4. and 7 H. 4. 6. and if Land be Discharged of payment of Tithes by Prescription of not Tithing and this Land come to the King the Priviledge remains and these Lands are given to the King in the same plight and case as they were in the Hospitallers and affirmed the Book of 10 Eliz. Dyer 277. 60. to be good Law and that the aforementioned Cases of the Archbishop of Canterbury and the Bishop of Winchester and the words of the Statute of 32 H. 8. 24. gives the King not only the Mannors Houses c. but also all Liberties Franchises Priviledges c. In this Case it was Confessed that it came by reason of the Order of the Cestertians as appears by the Canon And Hutton Serjeant arguing for the Defendant said that it appears by the Statute of 2 H. 4. 4. that it is Personal and that it differs from the Lands which came to the King by the Statute of 31 H. 8. For by that the King is Discharged of payment of Tithes and so are his Patentees but that this Priviledge is Personal and if so then it is determined by dissolution of the other and a personal Priviledge in case of Tithe is not transferred to the King Barker Serjeant for the Plaintiff in this case said That it was Ordained by Edgar King of this Realm that Tithes shall be given to the Mother-Church Also Edmund Ethelstone William the Conqueror and the Council of Magans specially provided that Tithes should be paid but did not appoint when they should be paid But the first Law which appointed the quantity was made in the time of Ed. 1. and this Ordained when they ought to pay the Tenth with the fear of God And before the Council of Lateran every one might pay his Tithes to what Parson he would and then were paid to Monasteries as Oblations If a Parson in one Parish claim Tithes in another as portion of Tithes due by Prescription to his Rectory he ought to shew the place especially viz. the place where the Tithes lie In the Seventeenth year of Ed. 2. the Order of the Templers was dissolved and their Possessions annexed to St. John of Jerusalem and they did not claim by any Bull of the Pope nor other Spiritual Canon but by Prescription which is Priviledge and private Common Law as appears by the Statute of Westm 2. cap. 74. And Menham's Canon in the time of Ed. 1. saith Let the Custome be observed And another Canon That Custome of not Tithing or of the manner of Tithing if they paid less than the Tenth part shall be observed Vid. Panormitan Cas Hurrey vers Boyer Brownl Rep. dict Cas Pasch 9 Jac. Rot. 1511. C. B. Brownl Rep. par 2. In the Bishop of Winchester's Case 38 Eliz. it was Resolved That at the Common Law none had capacity to take Tithes but Spiritual persons or Persona mixta as the King and regularly no meer Lay-man was capable of them except in special Cases for he could not Sue for them in the Court Christian and regularly a Lay-man had no remedy for them until the 32 H. 8. A Lay-man may be Discharged of Tithes at the Common Law by Grant or by Composition but not by Prescription for in the Books of the Common Law it is commonly said That a Law-man may Prescribe In Modo Decimandi but not In non Decimando And the reason is because he is not except in Special Cases capable of Tithes at the Common Law before the Statute of 32 H. 8. cap. 7. And therefore without Special matter shewed it shall not be intended that he hath any lawful Discharge and in favour of the Holy Church although it may have a lawful Commencement the Law will not suffer this Prescription In non Decimando to put it to the Trial of Lay-men A Spiritual person that was capable of Tithes at the Common Law in Pernancy may Prescribe to be Discharged of Tithes generally or to have a portion of Tithes in the Land of another Before the Council of Lateran every man might give his Tithes to any Spiritual person that he would and if the Lands of
leased all his Glebe-Lands with all Profits and Commodities rendring 13 s. 4. d. pro omnibus exactionibus demandis and afterwards Libelled in the Ecclesiastical Court against his Lessee for the Tithes thereof It was the Opinion of the Court That Tithes are not things issuing out of Lands nor any Rent or duty but Spiritual and if the Parson doth Release to his Parishioner all demands in his Lands his Tithes are not thereby extinct and therefore a Consultation was granted And so it was Adjudged 32 Eliz. in Babington's Case That such Lessee should pay Tithes to the Parson for that they are due jure divino and cannot be included in Rent As long as the Vicar occupies his Glebe-Lands in his own hands he shall pay no Tithes but if he Demise it unto another the Lessee shall pay Tithes to the Parson that is Impropriate If the Vicar sow the Land and die and his Executor take away the Corn. and doth not set forth his Tithe and the Parson bring his Action of Debt upon the Statute of 2 Ed. 6. In this case the Court seemed to incline that it would lie The Glebe-Lands and Spiritual Revenues of Clergy-men being held in pura perpetus Eleemosyna h. e. in Frankalmoign are exempted from Arraying and Mustering of Men or Horses for the War as appears in a Stat. of 8. H. 4. nu 12. in the unprinted Rolls of that Parliament An Abbot was Parson Imparsonee of the Church where the Abbey and Tithes were the Abbey was Dissolved the King granted the Monastery to one and the Parsonage and Rectory to another It was the opinion of the Justices That if the Land of the Abbey was the Glebe of the Parsonage before the Impropriation that then the Land was discharged of Tithes for it remains Glebe notwithstanding the Appropriation and the Glebe cannot be gained by Prescription nor was ever chargeable to pay Tithes And if the Parson doth make a Lease of his Glebe the Lessee as was there said contrary to what was before said shall not pay Tithes but the Demesns of the Abbey not parcel of the Glebe should be chargeable to pay Tithes if they were not discharged in right of a Composition or perpetual Unity Grass pays a Predial Tithe but if a man cut Grass and before it be made into Hay being only put into Swathes he carry it thence and give it to his Plowing Cattel for their necessary sustenance not having otherwise Food sufficient for them in this case no Tithes shall be paid for the same and Prohibition was granted Mich. 9. Car. B. R. Crawley Wells per Curiam The Case was where J. Libelled in the Ecclesiastical Court for the Tithes of the Profits which came of the Grass and herbage of Pasture-Land and upon a Prohibition granted P. suggests That he did feed on that Grass and Pasture with his own Plough-Cattel and with the Plough-Cattle of other man in the same Village Noy Consultation shall be granted for though a mrn shall not pay Tithes for the Cattel of his Cart yet he shall pay Tithes for the Land whereon they do feed Doderidge Justice Where I do agist Cattel and take the Cattel of other men to eat up my Grass and Pasture there I shall pay Tithes for the Grass otherwise it is where the Grass is only such as I do depasture with my own working Cattel Crook cited Sherington and Fleetwood's Case where a man Agists other mens Cattel on his Meadowgrouâ—d whereof he paid Tithe-Hay afore time and it was Resolved in this Case That he shall not pay Tithes for that Meadow-ground now fed with other mens Cattel after Harvest and no more than if he had depastured the Land with his own Cattel Gravel is not Tithable Mich. 19. Eliz. B. R. Pasch 34. Eliz. C. B. Liff and Watt ' s Case Grain is computed among the Predial Tithes which is to be set out according to the Statutes and the usage of the place Brownl 1. 14. which holds true of all sorts of Grain in all grounds within the Parish The Law is the same touching Hay in Meadows Grounds lett to Strangers out of the Parish the Tenth-peny of the Rent is commonly payable to the Parson if no Custome against it Or Ground within the Parish lett to a Stranger without the Parish is Tithable by the Ower of the Cattel unless the Custome there be osherwise Or if the Ground be fed with Cattel that bring no profit to the Parson the Owner thereof must pay Tithes for them Or Ground fed with the Cattel of a Stranger within the Parish which brings no profit to the Parson or Vicar he is to pay Tithes for it the Case therefore seems the same if both the Ground and the Cattel be his own that is the Stranger in case he work them in another Parish But the Studs of Ground or the Meers thereof at the Ends of Land and adjoyning to the Arable-ground are not Tithable where the Land it self pays Tithe unless where being mowed for Hay it hath used to pay Tithes H HAy pays a Predial Tithe and is to be Tithes in Swathes Windrows or Cocks as the Custome of the place is Or if the Custome be to measure out the Tenth part as the Grass grows on the Land for Hay the Custome is good and the Tithe of Hay may be set forth in Grass-Cocks where the Custome doth not oblige to make it into Hay-Cocks And if Hay be put into Ricks on the ground and after sold the Buyer cannot be sued for the Tithe the Seller may in case the Tithe thereof were not paid before Hill 16. Jac. by three Justices in Ashfield's Case And where two Crops of Hay are had from the same ground in the same year Tithe shall be paid as well of the latter as of the former Also Tithe shall be paid of the Hay made of Grass growing in Orchards Co. 2. Instit 652. But no Tithe Hay shall be paid for the Grass growing upon Headlands which are only large enough for the turning of the Plough but not for Grass cut in Meadows to feed the Beasts of the Plough and not made into Hay Trin. 1. Car. B. R. Wells vers Crawly Yet on some Headlands Tithe may be payable of Hay for suppose that in an Arable Field there be much Grass on the Headlands thereof and there be a Prescription to pay the Tenth Shock of Corn there for all the Hay on the Headlands and Rakings of the Corn and for Tying of Horses on the Headlands such Prescription was held good to discharge the Tithe of the Hay upon such Headlands And although a Second Crop of Hay from the same ground the same year is Tithable as aforesaid yet regularly the Hay of the Aftermath pays no Tithe except there be a Special Custome for it the Rule being That Tithes shall be paid Ex annuatis renovantibus simul semel And where the
the Court That in this Case a Prohibition should be granted for de Communi jure no Tithes are to be paid of the yearly Rent or value of Houses for Tithes are paid of the revenue and increase of things and therefore no Tithes are paid for Houses in any Cities or Towns in England saving in London and this Parish is out of London and the Liberties thereof Now where there is no Tithe at all there can never be a Modus Decimandi and yet it seems this kind of Payment hath been long used in London which certainty was by use But for Houses Oblations were paid in all places which are now by the Stat. brought to a certainty viz. 4 d. for a House Trin. 12. Jac. C. B. Dr. Leyfield and Tindall's Case Hob. 10. 11. In Green and Piper's Case it was agreed by the Justices That a House in London which was parcel of the Possession of a Priory which was discharged of the payment of Tithes should by the Stat. of 37 H. 8. be charged with the same One who was a Curate and Sequestrator only of the Rectory of D. in London the Incumbent being suspended Sued Four of the Parishioners in the Ecclesiastical Court for Tithes of their Houses and not before the Mayor of London according to the Statute of 37 H. 8. The Court doubted of it especially because the party was neither Parson nor Vicar and because the Statute is a New Law and appoints how the Tithes in London shall be paid and Ruled and before what Judges and what Remedy shall be for the party grieved and day given to hear Counsel on both sides In the Case aforesaid between Green and Piper when Suit was in the Ecclesiastical Court for the Tithes of a House in London a Prohibition was prayed upon a Surmize That the House was a Priory which was discharged of Tithes by the Pope's Bull and the Statute of 31 H. 8. which gave their Possessions to the Crown did Ordain That the King and his Patentee of such Lands should be discharged of Tithes yet a Consultation was awarded because by a latter Statute viz. 37 H. 8. cap. 4. all Houses in London shall pay Tithes according to their Ordinances and the Statute extends to all Houses and none excepted but the Houses of Noble-men L LAmbs are computed among the Mixt Tithes To pay Pence apiece for Lambs when the number is less than Seven is a good Prescription Curia 7 Jac. B. R. Patche's Case Or rather thus viz. if the Parishioner hath Six Lambs or under he shall yield for Tithe a halfpeny for every Lamb if he hath Seven Lambs then he shall yield a Lamb for his Tithe and receive Three-halfpence from the Parson if Eight Lambs then a peny if Nine Lambs then a half-peny from the Parson who may otherwise expect the Fall of the Tenth Lamb the year next following Lindw cap. Quoniam propter Also the Tithe of Lambs is to be apportioned with respect to the places where they were engendred brought forth and nourished Lindw cap. Quoniam audivimus And regularly the time of payment is when they are weaned from the Dam unless the Custome of the place be otherwise To stay a Suit in the Ecclesiastical Court for the Tithe of Lambs a Prohibition was prayed upon a Surmize the Custome to be That if one hath Lambs under the number of Seven he ought to pay a halfpeny for every Lamb in lieu of all Tithes of Lambs if he hath but Seven then the Parson to have the Seventh and he to pay Three-pence if Eight then Two-pence and if he had Ten the Parson should have the Tenth without paying any thing Resolved That this being a Custome which they refused to allow in the Ecclesiastical Court a Prohibition should be awarded Lands accruing to the Crown by the Statute of 27 H. 8. touching Dissolutions are now Tithable though whilst they were the Lands of Religious Houses they were not Tithable but their Priviledges being Personal they were extinguished by the said Statute of Dissolutions nor hath the Statute of 31 H. 8. retrospect to the said Priviledges 15 Jac. C. B. Garret and Wrigh's Case 7 Car. B. R. Clark and Ward 's Case Vid. Sr. Marmad Strickland's Case 1639. Adjudged at York Assize accordingly Vid Clayton's Rep. 117. 12 Car. Adjudged in another Case Also Lands gained from the Sea and made Arable must pay Tithes Bulstr 8. 165. So must Lands in themselves Tithable but not Manured or Ploughed specially if so in prejudice to the Parson in which case he may Sue the Occupier of such Lands in the Ecclesiastical Court for the Tithes of that Land Vid. 15 Car. C. B. per Berkley Justice Adjudged Lops of Trees above twenty years growth shall pay no Tithes For it hath been held that if a man Lop a Tree under twenty years growth after suffer the Tree to grow past twenty years and then Lop it again no Tithe shall be paid for the second Lopping although the first Lopping were not Tithe-Free It was Resolved in Reynold's Case That Tithes shall not be paid of the Lopping of Trees above twenty years growth More 's Rep. Lime is not Tithable Adjudg 19 Eliz. B. R. Pasch 34. Eliz. C. B. Liff and Waltt's Case Nor Marle Bricks Slates or Tiles unless the Custome of the place make them Tithable otherwise not because they do not annually increase and because Lime is part of the Freehold Mich. 13 Jac. B. Thomas and Perrye per Curiam M MAst of Oak or Beech if sold the Tenth-peny is payable for the Tithe therof but if eaten by Swine then the Tenth of the value or worth thereof Meadows by ill husbandry over-run with Thorns Bushes and the like are not computed as Barren Lands but do still remain Tithable Hill 38 Eliz. B. R. Sherington and Fleetwood's Case Vid. 15. Car. B. R. Sugden and Cottle's Case Mills the Tithe thereof as also of Parks Ponds Warrens Dove-coats and Bees seem primo intuitu as if they were all Predial Tithes For the Tithe of Mills not the Tenth peny-Rent but the Tenth Measure of Corn grinded at the Mill is responsible for the Tithe understand it of Corn Mills whether new or old driven by Wind or Water for the Tithe whereof generally the Tenth Toll-dish is due if there be not some other Custome in the place And whereas by the Law and the ancient Constitutions of the Church Tithes were not paid of Ancient Mills yet by the Statute of Articuli Cleri cap. 5. Tithes are to be paid for all Mills newly erected so that de Molendino de novo Erecto Tithes shall be paid Trin. 14. Jac. B. R. So that all new Corn Mills be they Wind or Water Mills also Fulling Mills Paper Mills Powder Mills Stamping Mills and probably for the same reason Saw Mills Iron Mills and all others that are of Common and Publick use do pay Tithes but old Corn Mills for which no Tithe was ever
Decimandi but the same shall continue when the same is made again into Hay And when it is sowed with Corn the Parson shall have Tithen in kind and when the same is Hay the Vicar shall have the Tithes-Hay if he be endowed of Hay And where a Suit was in the Spiritual Court by a Defendant Vicar of A. for Tithes a Prohibition was prayed upon the Plaintiffs Plea there of a Modus Decimandi to pay so much yearly to the Parson of A. in discharge of his Tithes It was the Opinion of the Court That this Modus between him and the Parson will not discharge him from payment of Tithes to the Vicar and therefore the Court granted a Consultation Also if a Prescription be laid to pay a Modus Decimandi to 100 Acres or to several things if there be a failure of one Acre or of one thing it is a failure of the whole Prescription Monasteries under 200 l. per Ann. commonly called the Lesser Monasteries of the Order of Gistertians and Praemonstratenses that were Dissolved and came to the Crown by the Statute of 27 H. 8. were not discharged of the payment of Tithes by the Statute of 31 H. 8. c. 8. by which Statute those of 200 l. per Ann. and upwards commonly called the Greater Abbies were Dissolved and whereby it is Enacted That the King and his Patentees having any Monasteries c. or any Mannors Lands c. belonging to them should enjoy the same discharged of the payment of Tithes in as ample manner as the said Abbots c. who were discharged of Tithes either by Bulls Compositions Prescription Order or Unity of Possession And albeit the Lands of the said Lesser Monasteries are not within the benefit of the said Statute of 31 H. 8. to be quit of Tithes yet they ought to enjoy all such Priviledges as are annex'd to the Lands for which reason they shall in whose possession soever they are be exempted from the payment of Tithes by real Compositions and Prescriptions de Modo Decimandi though not by Prescriptions de non Decimando Unity of Possession Order or Popish Bulls in all which Cases the Parsons and Vicars have the advantage by the Dissoltion of all those Monasteries and Abbies which were Dissolved by the Statute of 27 H. 8. For these Lesser Monasteries under 200 l. per An. which were as aforesaid Dissolved by the Statute of 27 H. 8. lost their Priviledge of being discharged of the payment of Tithes Nor did the Priviledge extend to any Lands other than such as they had at the time of the Council of Lateran and only for such time as the same remained in their own possessions and only for such Lands as were in their own manurance It is said in Dickenson's Case against Greenhowe That Monks are not of Evangelical Priesthood viz. capable of Tithes in pernancy but meer Lay-men and cannot prescribe in non Decimando And that Bede saith of them That they are meer Laici and the Monks of the Order of Praemonstratenses were such and therefore they could not Prescribe to be Discharged of Tithes Mortuaries in some place called Coarse-Presents though they are not Tithes yet they were given Pro Recompensatione subtractionis Decimarum Personalium nec non Oblationum Lindw c. Statutum infra c. for which reason they are not here omitted out of this Catalogue of Tithes Mortuaries as Sir Edw. Coke conceives were not anciently due otherwise than by Custome only until they were settled by the Statute of 21 H. 8. cap. 6. whereby it is Enacted That no man dying possessed of Goods under the value of 6 l. 13 s. 4 d. should pay any Mortuary nor any to be paid but in such places where they used so to be and that but one Mortuary nor that but in one place and that where the party deceased had his most constant abode and usual dwelling and habitation after the rate following viz. 3 s. 4 d. where the Deceased had in Moveables his Debts first paid to the value of 6 l. 13 s. 4 d. and under 30 l. at his death 6 s. 8 d. if he died possessed of Moveables to the value of 30 l. and under 40 l. 10 s. if to the value of 40 l. or upwards And none to be paid by any married Woman Child Non-Housekeeper Wayfaring-man or Non-Resident in the place where he died Which Statute provides That accustomed Mortuaries should be paid as formerly whether more or less than is before limited There were also it seems certain Mortuaries which the Prelates anciently paid to the Kings of this Realm A Mortuary is not properly and originally said to be due to an Ecclesiastical Incumbent Parson or Vicar from any but those only of his own Parish to whom he ministreth Spiritual Instruction and hath right to the Tithes Lindwood in his Gloss on c. Statutum ver ut infra de Consuetud discovers the ground or reason of that payment to be this viz. That when through ignorance and sometimes through negligence and unjust detention of Tithes and Oblations the Parishioner was found tardy and faulty c. Ideo statuit Archiepiscopus quod Compensatione sic subtractorum secundum melius Animal defuncti Ecclesiae damno debuit applicari But all this notwithstanding we know the prevalency of Custome to be such that in some places of this Kingdom they are paid to the Incumbents of other Parishes that perform no Ministerial duties at all to the deceased party nor living nor dying And the Statute of 21 H. 8. c. 6. doth nothing at all controll the course but makes the Usage of payment only to be the Law thereof In the Case of a Prohibition because the Defendant sued in the Consistory Court of Chester before the Commissary for a Mortuary after the death of every Priest withi nt the Archdeaconry of Chester the best Horse or Mare his Saddle Bridle Spurs his best Gown his best Signet or Ring his best Hat his best upper Garments under his Gown as to the Bishop de debito consuetudine fore supponitur and recites the Statute of 21 H. 8. concerning Mortuaries The Plaintiff averred that there was no such Custome there and that she had paid a Mortuary to the Parson of B. and that after a Prohibition the Defendant had prosecuted his Suit in the Ecclesiastical Court The Questions were 1 Whether there was a Custome in that place to give such things for Mortuary and this to be a just cause to have Prohibition Mortuaries being only Triable in the Ecclesiastical Court. 2 Whether Consultation shall be granted without answering the Prohibition The Court was divided in Opinions wherefore ordered the Defendant should Plead or Demurr and then the Court would give Judgment upon the Return before them N NAg or Riding Nag if a man keep a Nag or Horse within the Parish only for his Saddle to ride on no Tithes shall be paid of
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
but if the Owner himself after he hath once set forth his Tithes takes them away again the Parson may Sue him in the Ecclesiastical Court for the Tithes S. Libelled in the Ecclesiastical Court against H for Subtraction of Tithes the Defendant there pleaded That he had divided the Tithes from the Nine parts And then the Plaintiff made Addition to the Libel in nature of a Replication viz. That the Defendant divided the Tithes from the Nine parts Quod praedict the Plaintiff non fatetur sed prorsus diffitetur yet presently after the pretended Division in fraudem Legis he took and carried away the same Tithes and converted them to his own use and thereupon the Plaintiff obtained Sentence in the Ecclesiastical Court and to recover the Treble value according to the Statute of 2 Ed. 6. cap. 13. And thereupon H. made a Surmize that he had divided his Tithes and that the Plaintiff ought to Sue in the Ecclesiastical Court for the Double value and at the Common Law for the Treble value But it was Resolved by the whole Court That the said Division mentioned in the Libel was not any division within the Statute of 2 Ed. 6. c. 13. For that Act provides That all the Kings Subjects henceforth shall truly and justly without Fraud divide set out yield and pay all manner of other Predial Tithes in their proper Land So as when he divides them to carry them away he divides them not justly without fraud and therefore the same is out of the Statute and where the words of the Statute are divide set out c. their Predial Tithes c. and if any person carry away his Corn and Hay and other Predial Tithes c. And to make an evasion out of these words this Invention was devised the Owner of the Corn by Covin sold his Corn before Severance to another who as Servant to the Vendee reaped it and carried it away without any Severance pretending that neither the Vendor because he did not carry them away nor the Vendee because he had no property in them should be within the Statute But it was Resolved That the Vendor should be charged in that case with the penalty of the Statute for he carried them away and his fraud or covin shall not help him Vid. 8 Ed. 3. 290. 9 H. 6. 41. 33 H. 6. 5. But it was Resolved That the Plaintiff could not Sue in the Ecclesiastical Court for the Treble value but for the Double value he might A Parson Libels in the Ecclesiastical Court upon the Statute of 2 Ed. 6. cap. 13. for Tithes The Case was this The Parishioner sets them out according to the Statute but they being so set out he would not suffer the Parson to come and take them away thinking by this means and this way to avoid the Statute And upon this the Parson Libels in the Ecclesiastical Court for these Tithes the Defendant there Surmizes That he did not hinder him from the having of his Tithes but saith That he did hinder him in coming for his Tithes one way which was the usual way but that he might have come for them another way And upon this a Prohibition was prayed and granted supposing that there was no question at all as touching the payment of Tithes but as touching the Way to come for them and upon this whole matter the Parson prayed a Consultation The whole Court were clear of Opinion That such a setting out of Tithes as the same appeared here to be in this Case without suffering the Parson to come and take away his Tithes that this is a fraudulent and no good and sufficient setting forth of Tithes according to the Statute and as the Statute doth require which ought to be a fruitful and effectual setting forth of his Tithes for in so doing he ought to set forth his Tithes and also to suffer the Parson to come have and to take away his Tithes otherwise unless he do also perform this the setting out of his Tithes here is to no purpose for to excuse him and to the Surmize here made for the Way The whole Court clear of Opinion That this is no waies at all material and so without any further motion or Arguments by the Rule of the Court a Consultation was granted Vid. Bulstr par 1. fo 108. Hill 8 Jac. V VEnison though not Tithable of it self yet may be given as Modus Decimandi Per Assisas Forestae and other Records it doth appear that Tithes have been paid even of Venison in divers parts of England Vetches Tares and the like eaten by the Cattel that do the Husbandry in the same Parish be it eaten on the Ground or elsewhere are not Tithable unless the Parson hath a Special Custome for it Vine is Predial Tithe Co. Magna Charta 649. Vnity of Possession or Unity of the Parsonage and Lands which should pay Tithes in the hands of Religious and Ecclesiastical persons By this Vnity of Possession Tithes are not now discharged in Right though in Payment so that it is not to be pleaded as a Discharge of Tithes but as a discharge of the Payment of Tithes This Vnity hath been often Resolved to be a good Discharge of the payment of Tithes within the meaning of the Statute of 31 H. 8. Originally this Vnity was where an Abbot Prior c. time out of mind had been seized of Lands in themselves Tithable and also of the Rectory of that Parish wherein such Lands did lie So that Vnity of the Parsonage and Lands which should pay Tithes by Appropriation or otherwise in the hands of Religious and Ecclesiastical persons had discharged from the payment of Tithes and now since the said Statute of 31 H. 8. such an Vnity of Possession in the said Religious Houses and Lands and Persons shall be a Discharge for the Kings Patentee for the Lands that came to the Crown by the said Statute But then it was Resolved That such an Vnity must have been Justa Libera Aequalis and Perpetua It must have been Justa claimed by Right by good and lawful Title and not by Disseisin or other extortious and unlawful Acts for such an Vnity had not been a good discharge within the Statute 2. It must have been Aequalis that is there must have been a Fee-simple both in the Lands and in the Tithes as well of the Lands upon which the Tithes are as of the Parsonage or Rectory for if those Religious persons had held but by Lease that had not been such an Vnity as the Statute intended 3. It must have been Libera free from the payment of any Tithes in any manner for if their Farmers Tenants at Will or Years had paid any manner of Tithes before the Dissolution it may be a sufficient Bar to avoid the Vnity pleaded in discharge of Tithes 4. It must have been Perpetua time out of mind that such Religious Houses were Endowed and such Religious Persons had in their
may consult the Authors in the Margent The Parson of Henley brought an Action of Debt for 600 l. upon the Statute of E. 6. for not setting forth Tithes of Wood and shews that the Defendant had cut down 200 Loads of Wood to the value of 200 l. and saith that the Tenth part of that did amount to 200 l and so he brought his Action for 600 l. upon the Statute And the Plaintiff was Non-suit for one fault in his Declaration for whereas he declares the price of the Wood to be 200 l. it was mistaken for it should have been 2000 l. for he demanded more for the Tenth part than the Principal is by his own shewing If a man buy Wood Tithable and burn it in his own House he shall not pay Tithes thereof as hath been Resolved And no Tithes shall be paid for Wood cut and employed for the enclosures in the Husbandry Also if a man cut Wood and burn it to make Brick for repairing of his Dwelling-house for himself and his Family within the Parish no Tithes shall be paid for that Wood in regard the Parson hath benefit by the labour of the Family otherwise it is in case the Bricks were only to enlarge his house within the Parish and more than needful for his Family as for his pleasure or delight If a man sell Wood to me and I burn it in my house the Vendor shall stand charged for the Tithes thereof and not the Vendee for no Tithes are due for Wood burnt in the Parishioners house as hath been Resolved Pasch 14 Jac. in B. Parson Ellis Drakes Case and Prohibition granted accordingly Although it was said That by the Civil or rather Canon Law the Parson hath his Election to Sue either of them which is contrary to the Common Law In the Lord Clanrickard's Case against Dame Denton the Plaintiff surmized to the Court That all the Vill. of Kent which is a Precinct containig above forty Parishes time out of mind c. have been discharged of the payment of Tithes of Wood under the age of 20 years and the Defendant had sued him in the Ecclesiastical Court and hereupon had a Prohibition And the Defendant Traversed the Custome which a Jury was taken at the Bar to try and for inducement of the Custome Lindwood was produced in Cap. de Decimis where it is said That before that time Tithes were not paid for Wood which is contrary to the Old and New Testament and that Assertion is made by Stratford Archbishop of Canterbury for that this was a Provincial Constitution that at that time viz. 17. E. 3. Tithes of Sylva caedua shall be paid By which Constitution the Comminalty finding themselves grieved exhibited a Bill in Parliament the same year 17 E. 3. reciting the Ancient Usage of not paying such Tithes and the last Constitution to the contrary and prayed a Prohibition to the contrary To which Bill answer was made in this manner viz. Be it done in this case as it hath been done before this time And the next year another Petition was made in Parl. for the same cause to which it was answered also That where Tithes of Wood have not been used to be paid by Custome that a Prohibition shall be granted And these Acts of Parliament the Plaintiffs Counsel produced out of the Parliament-Rolls Crook Justice gave the Rule viz. Quod de grossis aâ—boribus Decimae non dabuntur sed de Sylva Caedua Decimae dabuntur Vid. Dr. Stu. 164. a. 169. b. Anscombe said The Doctor and Student mistook the maker of that Constitution of Stratford Archbishop In a Prohibition for Tithes of Wood it was suggested That in the Parish there is a Custome that all the Parsons of the said Church time out of mind Habuerunt gavisi fuerunt such Lands parcel of the Manner of F. in recompence of all Tithe Wood within the Parish It was the Opinion of the Justices that it was a good Prescription for it may be that at the beginning all the Land was parcel of the Mannor and then the allowance of the Profits of this Land was alotted in discharge of the Tithes of all the Woods within the Parish In Prohibition to stay a Suit in the Ecclesiastical Court for Tithes Wood it was shewed that the Custome of the Parish is That the Owners of any House and Land in the Parish who pay Tithe to the Parson ought not to pay Tithe for Wood spent for Fuel in their Houses It being found for the Defendant the Issue being upon the Custome It was said That notwithstanding there were any such Custome yet Tithe ought not to be paid for Wood spent for Fuel nor for Fencing-stuff but per Legem terrae he ought to be discharged thereof Resolved It is not de jure per Legem terrae that any one is discharged of them for it is usual in Parishioners to alledge a Custome but not to alledge that per Legem terrae he is discharged And in this case the Plaintiff in the Prohibition having alledged a Custome and it being found against him a Cousultation was awarded A Composition was betwixt an Abbot and a Parson that in recompence of the Tithes of all the Woods within the Mannor whereof the Abbot Owner That he should have to him and his Successor 20 Loads of Wood every year in 20 Acres of the said Mannor to burn and spend in his House The Parsonage was Appropriate to the Abbey and after the Abbey was dissolved the King granted the Parsonage to one and the 20 Acres to another It was Resolved That by the Unity the Estovers were not extinct for it they be Tithes they are not extinct by this Unity of possession for that Tithes run with the Lands and Tithes de jure Divino Canonica Institutione do appertain to the Clergy Wool of Sheep is Tithable proportionably to the time they are in the Parish as thus viz. The Parson shall have Eight pound of Wool in Eighty of Forty Sheep in the Parish a whole year Four pound of Wool in Forty if they were there but half the year Two pound of Wool in Twenty if they were there but Three months and but the Tithe or Tenth of the Twelfth part of the Wool if the lay and fed but One month in the Parish The Wool of Sheep shorn and dying before Easter next following such shearing is not Tithable unless the Parson or Vicar can alledge a special Prescription for it Therefore Q. where by Prescription such Tithe is claimed It is said also That a Custome to pay a Halfpeny for the Wool de ovibus venditis after shearing and before Michaelmass is good and that the Sheep discharged shall be Weathers as well as Ewes Also Wool-locks and Flocks of Wool after the Wool made are likewise Tithable if there be more than ordinary left otherwise not And if a Prescription be alledged to be discharged of Locks of Wool it
whether sufficient Notice thereof were given or not are examinable only in the Ecclesiastical Court and when the Licence is sufficient and the Provisoes well and duly observed and Notice thereof and This be refused or rejected in the Ecclesiastical Court yet no Prohibition lies but the Party grieved must have his Remedy by way of Appeal and not otherwise 4 That where power is given by Act of Parliament to the Archbishop to grant Licence either de novo or in Confirmation of his Authority yet the form of the Dispensation and the observation of the Provisoes and Conditions thereof and whether sufficient Notice were given or not are examinable in the Ecclesiastical Court and if they there adjudg in that case irregularly no Prohibition lies but the Remedy is only by way of Appeal But if it come into question in the Ecclesiastical Court whether the words of the Act of 25. H. 8. do give sufficient power to the Archbishop to grant a Licence there if the Ecclesiastical Court doth judge against the power a Prohibition lies and not otherwise but if they allow the Licence in point of power and only insist upon the Form and Notice and other Circumstances in such case a Prohibition doth not lie For though a power to grant Licences be by Act of Parliament which is a Temporal thing yet the Licence it self remains an Ecclesiastical thing and the examination of all these things saving the Power remains to the Ecclesiastical Court as it was before CHAP. XXXIIII Of Adultery 1. What Adultery is why so called and in what Court Cognizable 2. The Punishment of Adultery under the Levitical Law and what it was anciently by the Civil Law 3. The several Punishments thereof anciently according to the Quality of the Offenders respectively 4. Adulterers compared to Idolaters strange Punishments of Adultery among the ancient Pagans 5. The Severity of certain Ecclesiastical Laws in ancient times against Adultery 6. The Customs among the Arabians Mahumetans Tartars Indians Pagans in punishing Adulterers 7. The Civil Law touching Jealousie and second Marriage the former Husband then living 8. Adultery what in sensu largo how the punishment thereof is now mitigated at the Civil Law to what it was anciently and how punished at the Canon Law 9. The diversity of punishments inflicted on Adulterers according to the divers Customs of Nations respectively 10. In what respect the Temporal Laws may take some Cognizance of Adultery 11. What the Saxons of old in this Kingdom called the Punishment of Adultery the remarkable Case of Sr. Jo. de Camois 11. Adultery fals under a Threefold Consideration of Law the History of the Adulterous Stork 1. ADULTERY or Adulterium quasi ad alterius thorum where the Rights of lawful Matrimony are violated Lindwood's Const de Offic. Archipresb verb. tertium mandat is the Incontinencie of Married persons or of persons whereof the one at least is under the Conjugal Vow This is properly cognizable within the Ecclesiastical Jurisdiction the Conviction whereof is by Examination and other Legal proof requisite by the Law of the Church which if committed by any of the Clergy duely convicted thereof he was punishable by Imprisonment at the discretion of the Bishop or Ordinary of that Diocess wherein he resides 2. By the Levitical Law Adultery was punished with Death in both Sexes yea Stoned to death By the Civil Law also which cals it the Violating of another mans Bed the Punishment anciently was Death both in the Man and in the woman But afterwards the Punishment was mitigated by that Law as to the Woman she being first whipt and then shut up in a Monasterie but by the Canons other Laws are inflicted 3. At the Synod in Ireland held by St. Patrick and other Bishops an 456. by the 19 th Canon thereof the Adulterers were to be excommunicated At the Council held at Berghamstead by Bertwald Archbishop of Canterbury the Bishop of Hereford and others in the fifth year of Withred King of Kent an 697. several Laws were made against Adultery according to the several qualities and conditions of the Persons offending respectively beside Excommunication against all such if the Adulterer were an Alien he was to depart the Land and to take his Sins and his Estate away with him If a Soldier then to be fin'd five pounds If a Rustick or Countrey Husbandman known in the Law by Paganus then to pay fifty shillings If a Priest then to be inhibited from administring the Sacrament of Baptism 4. Boniface Archbishop of Mentz when he was the Popes Legate in Germany an 745. in his Epistle to AEthelbald King of Mercia compares Adulterers to Idolaters and moreover says that the Greeks and Romans Compar'd Adultery to Blasphemy when committed by or with one of religious Orders and adds that among the Pagans in the time of the old Saxons the very pactice was that if a Virgin Adulterously defil'd her Fathers Family or a Married woman plaid the whore they were enforced to be their own Executioners and by their own hands to reduce themselves by Strangling to dead Corps which being after burnt the Adulterer was hangd over the Ashes thereof and at other times the Adulteresses were by those of their own Sex out of their Zeal to Chastity whipt from Village to Village till they were whipt to death In Antiqua Saxonia ubi nulla est Christi cognitio si Virgo in paterna domo maritata sub Conjuge fuerit adulterata manu propria strangulatam cremant supra fossam sepultae corruptorem suspendunt aut cingulo tenus vestibus abscisis flagellant eam castae matronae cultellis pungunt de Villa in Villam inter se occurrunt novae flagellatrices donec interimant By the Laws of William the Conqueror the Adulterer was to be put to death Si Pater deprehenderit Filiam in Adulterio in domo sua seu in domo Generi sui bene licebit ei oure lege forsan occire occidere Adulterium 5. In the Ecclesiastical Laws of Keneth King of Scots an 840. By the 14 th and 15. Canon thereof it is ordained That he who deflowrs a Virgin shall dye for it unless she desires him for her Husband and that he who Adulterates another mans Wife not dissenting Both shall suffer the severest punishment unless she were under a force in which case she shall be acquitted By the Ecclesiastical Laws of Hoel Dak King of Wales an 940. it was a sufficient cause of Divorce if a Woman did but kiss any other man than her Husband l. 18. Yea she must lose her Dower and all her Rights by that Law and only for a kiss and by the same Law Adultery in the Man was held as a kind of Hostility In the time of the latter Saxons by the Ecclesiastical Laws of King Edmund an 944. Adulterers and Murderers had one and the same punishment and both alike denied Christian Burial After him by the Ecclesiastical Laws
of Sacriledge doth distinguish between Excommunication latam and ferendam for if it be Sacriledge committed against an Ecclesiastical Person then according to the Canon Law and as heretofore practised in this Realm the penalty was Excommunicatio lata but when it is in respect of some things pertaining to the Church in that case the Punishment was Excommunicatio ferenda Lindw de immun Eccl. c. 1. glo in ver omnibus poenis And sometimes a pecuniary punishment was inflicted for Sacriledge 17. q. 4. c. quisquis c. si quis contumax The Ecclesiastical Law doth not punish Sacriledge with that austerity and severity as the Civil Law doth l. Sacrilegio ff ad Leg. Jul. peculat whereby the punishment sometimes is Damnatio ad bestias sometimes the Sacrilegious person is burnt alive sometimes hung on Fonk sometimes condemned to the Mines sometimes banished and sometimes sentenced to death in the ordinary way of Execution He that is guilty of Sacriledge against an Ecclesiastical person is by the Canon Law excommunicatus ipso facto 17. q. 4. c. si quis suadente But if it be in rebus Ecclesiae he is by that Law Excommunicandus de Foro compet c. conquestus If it be committed in the Church and that by firing or breaking it open in that Case the Sacrilegious person is ipso jure excommunicated de sent Excom c. conquesti If it be without burning or breaking it open as when a thing being left in the Church is taken away in that Case he ought to be excommunicated De furtib c. fin And this says Lindwood may stand as a rule in Law that wherever you find that regularly the Sacrilegious person is not ipso jure excommunicated majori Excommunicatione it hath these several Fallentias that is it doth not hold in case of Burning violating spoiling and wasting of the Church nor in burning or breaking open the Church door nor in Sacriledge against an Ecclesiastical person nor in case of striking or violently apprehending any man in the Church nor in any forcible or violent taking away any thing out of the Church nor in any that were excommunicated before for the like Offence nor in such as pull down or demolish the Body of the Church or any part thereof and the like Lindw de immu Eccl. c. ut invadentib glo in ver Excomunicati All which is likewiseexpresly set down in John de Athon's Gloss on Cardinal Othobon's Constitutions de abstrahentib Confug ad Eccles c. ad tutelam glo in ver Obsevari and seems to have an adequate affinity with what Solomon who as in other things so specially in matters of the Temple had the best experience says It is a suare to the man who devoureth that which is Holy Pro. 20. 25. 7. The dreadful Curse denounced against Sacrilegious persons appears in that remarkable passage in Parliament above Four hundred years since where the Priviledges of the Clergy and Franchises of the Church were with the Liberties of the People granted confirmed and settled by the King in full Parliament Anno 1253. in such a solemn manner as no History can parallel The King stood up with his Hand upon his Breast all the Lords Spiritual and Temporal stood with burning Tapers in their Hands the Archbishop pronounceth as followeth viz. By the Authority of God Omnipotent of the Son and of the Holy Ghost c. We Excommunicate Anathematize and sequester from our Holy Mother the Church all those who henceforth knowingly and maliciously deprive and spoil Churches of their right and all those that shall by any art or wit rashly violate diminish or alter secretly or openly in Deed Word or Counsel those Ecclesiastical Liberties c. Granted by our Lord the King to the Archbishops Bishops Prelates c. For everlasting memory whereof we have hereunto put our Seal After which all throwing down their Tapers extinguish'd and smoaking they all said So let all that shall go against this Curse be extinct and stink in Hell And Ethelwolphus the second sole Monarch among the Saxon on Kings having by advice of his Nobles granted for ever to God and the Church both the Tithe of all Goods and the tenth part of all the Lands of England free from all secular Service Taxes or Impositions whatsover concludes the said Grant or Charter of Donation in these words viz. Qui augere voluerit nostram Donationem augeat Omnipotens Deus dies ejus prosperos si quis vero mutare vel minuere praesumpserit noscat se ad Tribunal Christi rationem redditurum 8. Dr. Heylyn in his Ecclesia Restaurata relates a remarkable passage touching a sad Judgment that in the time of Queen Mary befell Buckly Bishop of Bangor An. 1541. for the Sacrilegious havock he made of the Lands and Patrimony of that Church who not content to alienate the Lands and weaken the Estate thereof resolved to rob it also of its Bells for fear perhaps of having any knell rung out at the Churches Funeral and not content to sell the Bells which were five in number he would needs satisfie himself with seeing them conveyed on Shipboard and had scarce given himself that satisfaction but was immediately struck blind and so continued from that time to the day of his death CHAP. XXXIX Of Simony 1. The Definition and description of Simony the penalties thereof 2. The difference between Simoniacus and Simoniace Promotus the latitude of that word Simony 3. How the anuual value of the Benefice is computable upon the Forfeiture by reason of Simony 4. Whether a Clerk Simoniacally presented but not privy to the Simony be disabled for that turn to be presented by the King to the same Church 5. The diversifications of Simoniacal Contracts or the various ways of committing Simony 6. An Obligation to present one upon condition of resignation may not be Simony 7. To promise one a Sum of Money to bestow his endeavour to procure one to be presented to a Benefice is a Simoniacal Contract 8. Several ways of contracting obliging and agreeing which will amount to Simony 9. A Clerk may oblige to his Patron to pay a Sum yearly and yet no Simony 10. The Plea of Simony is a good Barr to the Parsons demand of Tithes 11. Whether the Fathers free Covenant with his Son in Law upon the Marriage of his Daughter to present him to such a Living when it falls be Simony 12. Whether a SimoniacalVsurper shall prejudice the rightful Patron by giving the King the presentation 13. Whether an Incumbent that is in by Simony may after a General Pardon be removed 14. The grand Case of Calvert and Kitching at the Common Law touching Simony 15. To convey a corrupt gift by an innocent hand will not excuse it from being Simony 16. The Kings Case against the Archbishop of Canterbury Sir John Hall and Richard Clark touching Simony 17. The Proof of Simony in a Parson is good to harr him of Tithes 18. A Patrons Presentation upon
Men which belong to the Blessed Hill They abstained from things that have life and some of them from Marriage One Dosithens a Samaritan is supposed to be the first Founder of the Samaritam Heresies and the first among them that rejected the Prophets as not having spoken by the Holy Ghost There were four sects of Samaritan Hereticks according to Epiphanius each of them holding their different Heresies in some respects and having in other respects certain Heretical Tenents common to them all By all which premisses it is most evident that the Prince of Darkness and the Father of Lyes hath had in all Ages Nations and Churches his Emissaries to infect them with Heretical and Blasphemous Erros but the Gates or Power of Hell to this day never could nor to Eternity ever shall prevail against the Truth CHAP. XLI Of Councils Synods and Convocations 1. The several kinds of Councils and Synods 2. What Canons in force in the Realm of Primo Ed. 6. Also how the Canons entituled Reformatio Legum Ecclesiasticarum became abortive 3. That part of the Canon Law is part of the Law of England 4. Convocation in England what how and by what Authority and for what ends conven'd also of what Members it doth consist with the Authority thereof 5. Convocations and Provincial Synods of very great Antiquity in England have been ever call'd by the Kings Writ their Priviledges 6. The Canons and Ecclesiastical Constitutions may not be repugnant either to the Kings Prerogative or to the Laws Statutes or Customes of this Realm 7. Lindwood's Method of Provincial Synods in this Realm and under what Archbishops 8. The four several kinds of Councils and Synods in general 9. A compendious Catalogue thereof when and where held by and under whom conven'd with the principal matters therein treated and determined 1. OF Councils or Synods there are four kinds viz. 1 Oecumenical as being called out divers Nations 2 National as out of divers Provinces both these kinds of Councils or Synods were ever assembled by Imperial Regal or Papal Authority 3 Provincial as out of divers Dioceses conven'd by Metropolitans or Patriarchs 4 Diocesan as out of one Diocese onely assembled by the Bishop thereof The frequent celebration of Synods the Council of Basil calls praecipuam agri Domini culturam Touching Synods vid. Duar. de Sacr. Eccl. minist et benefic 2. In the Reign of King Hen. 8. the Bishops and Clergy in the Convocation an 1532. oblig'd themselves neither to make nor execute any Canons or Constitutions Ecclesiastical but as they were thereto enabled by the Kings Authority it was by them desired by him assented unto and confirm'd in Parliament that all such Canons and Constitutions Synodal and Provincial as were before in use and neither repugnant to the word of God the Kings prerogative Royal or the known Laws of the Land should remain in force until a Review thereof were made by 30 persons of the Kings appointment which Review not having been made from that time to the first year of King Edward 6. All the said old Canons and Constitutions so restrained and qualified did then still remain in force as before they were For this consult the Act of Parliament of 25 H. 8. c. 1. And in the Third year of the said King Edward 6. there passed an Act in Parliament For enabling the King to nominate Eight Bishops and as many Temporal Lords and Sixteen Members of the Lower House of Parliament for Reviewing of such Canons and Constitutions as remained in force by virtue of the Statute made in the 25th year of King H. 8. and fitting them for the use of the Church in all times succeeding According to which Act the King directed a Commission to Archbishop Cranmer and the rest of the Persons whom he thought fit to nominate to that employment and afterwards appointed a Sub-Committee of Eight persons to prepare the Work and make it ready for the rest that it might be dispatch'd with the more expedition which said Eight persons were the Archbishop of Canterbury Dr. Goodrick Bishop of Ely Dr. Cox the Kings Almoner Peter Martyr Dr. in Divinity William May and Rowland Taylor Drs. of Laws John Lucas and Richard Goodrick Esquires by whom the Work was undertaken and digested fashioned according to the method of the Roman Decretals and called by the name of Reformatio Legum Ecclesiasticarum c But not being Commissionated hereunto till the Eleventh of November in the year 1551. they either wanted time to Communicate to the chief Commissioners by whom it was to be presented to the King or found the King encumber'd with more weighty Affairs than to attend the perusal thereof And so the King dying before he had given life unto it by his Royal Assent and Signiture the design miscarried and never since thought fit to be resumed in the following Times by any of those who have had the Government of the Church or were concerned in the honour and safety thereof 3. It is asserted by good Authority That if the Canon Law be made part of the Law of this Realm then it is as much the Law of the Land and as well and by the same Authority as any other part of the Law of the Land Likewise in the Case of Shute against Higden touching Voidance of a Former Benefice by being Admitted and Instituted into a Second and that by the Ancient Canon Law received in this Kingdom This says the same Authority is the Law of the Kingdom in such cases And in the Case of Hill against Good the same Author doth further assert That a Lawful Canon is the Law of the Kingdom as well as an Act of Parliament And whatever is the Law of the Kingdom is as much the Law as any thing else is so for what is Law doth not suscipere magis minus Which Premisses though they may seem yet are not inconsistent with what Sr. Ed. Coke says viz. That the Laws of England are not derived from any Forein Law either Canon Civil or other but a special Law appropriated to this Kingdom That it may be said of its Law as of its situation Et penitus toto divisos Orbo Britannos 4 Convocation is the highest Ecclesiastical Court or Assembly called and convened in time of Parliament by the Kings Writ directed to the Archbishops consisting of all the Clergy of both Provinces either Personally or Representatively present in the Upper House of the Archbishops and Bishops and the Lower House of the other Clergy or their Proctors chosen and appointed to appear for Cathedral or other Collegiate Churches and for the Common Clergy of every Diocess with a Prolocutor of each House and President of the Convocation for the Province of Canterbury to consult of matters Ecclesiastical and thereon to Treat Agree Consent and Conclude as occasion requires on certain Constitutions and Canons Ecclesiastical to be ratified and confirmed by the Royal Assent They were Anciently called
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