which is the time of the limitation of all Prescriptions at the Common Law 2 Inst 653. which rejects the practice of the Civil Law which as should seem allows the limitation of a prescription or custom to forty years It may reasonably be demanded how this manner of discharge can be made out at this day since there is now no Person living that can prove how the Abbots held and enjoyed their Lands to which I answer that what was done before the dissolution of Abbeys must now be proved by what has been done since for if Monastery Lands have been held all the time of memory since the dissolution freed from the payment of Tithes it shall be intended that they were so held before and therefore they have not paid or been questioned since The fourth sort of discharge is by order Discharge by Order and this discharge also for the most part depends upon Popes Bulls or grants who at pleasure granted exemption to what orders they pleased About the Year of our Lord 1150. 2 Inst 652⸪ Seld. Hist decim 120. the most Religious orders then in being were discharged of the payment of Tithes but about that time Pope Adrian the fourth reduced them to Cistertians Hospitaliers and Templers and about the Year 1215. Seld. de decim 406. Pope Innocent the third added the Praemonstratenses But the Priviledges granted to these orders extended only to the Lands Dyer 277 278. these orders held in their own manurance and not to any which was held by their Tenants or Farmers But about the beginning of the Raign of H. 4. the Cistertians attempted to have enlarged their priviledg to their Tenants and Farmers which tending to the ruine of many poor Parsons and Vicars that had cure of Souls was complained of in a Parliament held in the second Year of H. 4. whereupon it was enacted that not only the Cistertians but all other orders that put any Bulls in execution for the discharging any of their Lands from the payment of Tithes in the Lands of their Tenants and Farmers shall incur a Premunire that is forfeit all their Goods and the profits of their Lands during life and be likewise imprisoned during the offenders life which gave such a check to that proceeding that I do not find any thing of that nature after attempted The Templers after in the Councel of Vienna The Templers 2 Inst 432⸫ which was held in the Year of our Lord 1311. and in the fourth Year of E. 2. were condemned for Heresy And all their possessions by Act of Parliament made in the seventeenth Year of the same King were transferred to the Hospitaliers or Knights of St. Stat. 17. E. 2. c. John of Jerusalem who enjoyed them till the thirty second Year of the Reign of King H. 8. at which time by Act of Parliament they were setled upon the Crown 32 H. 8. c. 24. But where it is said in Kelway that the Templers were condemned of heresie in the eight Year E. 2. and their Lands given the same year to the Hospitaliers it is a great error for it is clear that the Council of Vienna was held in the fourth year of that King and chiefly called against the Templers and it is as clear that their Lands were not here in England setled upon the Hospitaliers till the seventeenth of the same King And though the Lands of the lesser Monasteries be not within the benefit of the Statute of 31 H. 8. Where the lesser Abbeys may be freed of Tithes to be freed of the payment of Tithes yet they ought to enjoy all such priviledges as are annext to the Land and therefore such Lands in whose hands soever they come shall be freed of the payment of Tithes yet they ought to enjoy all such priviledges as are annext to the Land and therefore such Lands in whose hands soever they come shall be freed of the payment of Tithes by real compositions and prescriptions de modo decimandi Jones 3. but not by prescriptions de non decimando unity of possession order or Bulls of Popes but in all the cases the Parsons and Vicars have the advantage by the dissolution of all those Abbies that were dissolved by the Statute of twenty seven H. 8. and the Parsons and Vicars shall in such case be restored to their Tithes again which in all Justice they ought in all other cases if the Parliament had not seen reason to the contrary The lesser Monasteries that is which were under 200 l. per annum of the orders of Cistertians and Praemonstratenses were as has been said dissolved by the Statute of 27 H. 8. have lost the priviledg of being discharged of the payment of Tithes unless they were continued as the Abbey of Crouden was but those Monasteries of those orders that came to the Crown by the Statute of 31. H. 8. retain the priviledg of those orders in not paying Tithes but this is to be understood only for such time as the Owners hold them in their own manurance for if they let them out to Tenants they shall have no more priviledg than the Tenants of those orders of the Cistertians and Praemonstratenses had which was none at all But note Jones 2 3 c. Cro. Jac 6â—7 Hob. 6â—8 Lands of the lesser Abbeys granted to the bieger not freed that if the King after the dissolution of the lesser Monasteries which had been of any of the orders that were discharged of the payment of Tithes had granted any of their Lands to any of the greater Monasteries which were not dissolved till the Statute of 31 H. 8. yet those shall not retain the priviledges the Abbots had at the time of the former dissolution the right immediately reverting by the dissolution to the Parsons and Vicars to whom the Tithes of right did belong the greater Abbyes could not hold them legally discharged at the time of the second dissolution So that there is a manifest difference between this and the case of Walkelate and Wilshaw before remembred for in that case the Monastery was continued and not dissolved till the Statute of 31 H. 8. And it is to be observed that no Lands acquired by any of the Monasteries of those orders which were so freed from payment of Tithes after the Councel of Lateran Lands purchased after the Friviledges granted not freed which was in the Year of our Lord 1215. and by consequence none that were founded after that Councel are discharged of the payment of Tithes either in their own Seldens hist of Tithes 121. or their Tenants hands for by that Councel the Priviledg was limited to such Lands as these orders had at the time of that Councel And although any Abbey Lands of the great Abbeys which were of the Cistertian and Praemonstratensian orders were in the hands of Tenants for years at the time of the dissolution Dyer 277 b⸪ p. 60. Cro. Jac. 559. yet the King and
Lord ordained that they that preach the Gospel should live of the Gospel what effect this Doctrine wrought amongst the Primitive Christians you may read in the fourth Chapter of the Acts of the Apostles where it is said that as many as were possessors of Houses or Lands sold them and brought the prices of things that were sold and laid them down at the Apostles feet and distribution was made to every man according as he had need But the Christians of this present Age are so far from selling their Houses and Lands and laying the price at the Apostles feet that they will rather detain that from the Clergy which by Law and right is due to them But certainly had the sincerity of the Primitive Christians continued I should never have needed to have set pen to the paper upon this subject I am now about which is the Law of Tithes or Tithing a duty established by the Laws of this as of other Nations for the maintainance of the secular Clergy and for their sake it is that I have undertaken this work There was a Tithing Table published many years ago By a Batchelor of Laws wherein he has learnedly set forth the manner of Tithing by the Canon and Ecclesiastical Laws but those Laws and the Common Laws of this Realm differing in many things wherein the Common Law is to be preferred that Tithing Table has often led both Parson and Parishioners into many errors besides the several discharges from payment of Tithes either absolutely or sub modo of divers Lands in England by the Statutes or Common Laws makes great alteration here from the Canon Laws to rectifie which and as near as may be to reconcile the Canon and Common Laws I did by the perswasion of some Reverend Divines first make some Animadversions upon that Tithing Table but when I had done that considering there were many more things in relation to Tithing than I could conveniently apply to that Text concerning Prescriptions Customs Compositions and other priviledges besides the Laws concerning Offerings Mortuaries and other Church duties fit for all men to know as well Lay as Clergy I adventured upon this larger work which I the rather did because I do not find any other that hath published any compleat work in this kind or to reconcile the Common and Canon Laws that kind of learning lying dispersed in our Law Books I have therefore in favour of the Parsons and Vicars taken up a former resolution and adventured to expose my self to the publick censure And though I cannot promise any perfection in this work yet I dare presume to say it is the most perfect work of this nature yet extant though I can pretend to nothing of it but the errors and mistakes which I will be thankful to any body that will friendly correct that I may make it more exact in a second Edition if I have encouragement The hindrance of conversing with the learned by reason of my confinement to the Country and publick Libraries hath hindred me of some helps I might have had thereby Perhaps it may not be so acceptable to those in whose favour I have writ it because it comes from the pen of one who professes himself a common Lawyer But in my Judgment in this Nation wherein the common Laws and customs of the Country prevail against the Canon and Ecclesiastical Laws this subject is not altogether improper if not most proper for a common Lawyer And truly I have through this discourse dealt with as impartial an hand as the matter would admit And though the Clergy may think it to their prejudice that I have at large set forth the several discharges by which lands are freed from the payment of Tithes yet in that I have given them a clear light which lands cannot be so priviledged and what Prescriptions and modus decimandi is not good being well assured that there are more Lands at this day escape payment of Tithes upon pretence of some priviledg to which they have no Right than those that pay Tithes and might legally be discharged But when I have done my best endeavour to serve the Reverend Clergy I cannot give them Incouragement to depend upon their own Judgments grounded upon any thing here writ for though this may suffice to give them some light what shall be due to them yet I cannot hope by any thing I can write to make them complete Lawyers for many Quaere's will arise that no foresight of mine could give an Answer to but this benefit I hope they will receive by my labours that they may put their Case and make their doubts known more pertinently to the learned I had no sooner finished this little Tract concerning Tithes but I considered there were many other things almost as useful for a Clergyman to know as the Law of Tithes And though Mr. Hughes of Graves-Inn many years since published a learned Tract which he intitled the Parson's Law yet there are many more things necessary for a Clergyman to know that are there only briefly or not at all touched upon and of such force that they must either be performed and observed to make a man a compleat Parson or to make him none though never so exactly instituted and inducted if omitted I have therefore in the first place before I come to the Law of Tithes shewed what Simony is and what danger those run themselves into that are guilty of it what things every Parson Vicar c. is to do before at and after his Institution and Induction to make him a compleat Parson c. what Dilapidations are and how punishable what priviledges the Clergy have at this day by the Laws of England what charges and payments their Tithes and Church-livings are subject unto what Causes of Deprivation have been allowed of by the Laws of England what Leases they may take or set and what Statutes they may fall in danger of and of pluralities and who is qualified to have them and in what manner to be accepted Non-residence and many other things necessary for every Clergy-man to know I have divided the whole into Two Books and them again into several Chapters and Paragraphs and added a short Table for the more ready finding of any thing in either I have likewise added a List or Catalogue of all the Abbeys and Priories that were valued in the Kings Books at 200 l. per annum or upwards and which were dissolved by the Statute of 31 H. 8. the Lands of which can only pretend to any priviledg to be discharged of the payment of Tithes in which I have rather chosen to write after Mr. Dugdale being a sure Author than Mr. Speed in whom I have observed many Mistakes I must beg the Readers Patience to correct the Mistakes of the Printer which are too many by reason of my absence from the Press by the Errata annexed and for my own I shall take it kindly from any body that will in a friendly
they may fall HAving undertaken this Work chiefly in favour of the Parsons and Vicars What Leases Clergy-men may make I designed to have medled with no other Orders of the Church but those only but having in many other things been enforced to intermingle the concerns of other Orders with those of the Parsons and Vicars I shall beg the Readers pardon that in this Chapter where I am to treat of the Leases which may be made by Parsons and Vicars I likewise take in all other Orders of the Church with the Colledges the Learning concerning Leases being of use and necessary for all people to know and which I shall in this Chapter put into as good a method as the subject matter will permit And because the Learning of these Leases will depend upon several Statutes it will not be amiss first to examine what Leases or Alienations the several persons we have to do with in this Chapter might have made at Common Law before the Statutes and then to consider where or in what manner the several Statutes have inlarged abridged or restrained their power at Common Law And first At Common Law 1 Inst 45. a⸫ at the Common Law no Bishop Abbot Prior Dean Prebend or other single Corporation could make any Alienation or Lease to bind their Successors without the confirmation of their Chapter Covent c. The first Statute that made any alteration in these cases was the Stat. The enabling Act of 32. H. 8. c. 28. of 32 H. 8. which is comonly called the enabling Statute whereby it is enacted That all Leases then after to be made of any Mannors Lands Tenements or Hereditaments by writing under Hand and Seal for term of years or for term of the life by any Person or Persons of the full age of 21 years having any estate of Inheritance either in Fee-simple or Fee-tail in their own rights or in the right of their Churches c. shall be good and effectual in the Law against the Leasors their Wives Heirs and Successors Provided that Act should not extend to any Lease of any Mannors c. Where any old Lease should be in being unless the same expire be surrendred or ended within one year after the making of such new Lease nor shall extend to any Grant to be made of any Reversion of any Mannors c. nor to any Lease of any Mannors c. which have not most commonly been letten to Farm or occupied by the Farmers thereof by the space of twenty years next before such Lease thereof made nor to any Lease to be made without impeachment of waste or to any Lease to be made above the number of three Lives or twenty years at the most from the day of the making thereof and that upon the making of every such Lease there be reserved yearly during the said Lease due and payable to the said Leasors their Heirs and Successors to whom the reversion shall appertain c. so much yearly Farm or Rent or more as hath most accustomably been yielden and paid for the said Mannors c. so to be letten within twenty years next before the Lease thereof made c. Provided this Act should not extend to give any Liberty or power to any Parson Vicar c. to make any Lease or Grant of any of their Messuages Lands Tithes c. or in any other manner than they should or might have done before the making of the said Act. So now where before the making of this Act no Arch-Bishop Bishop Arch-Deacon Dean or Prebend could have made any Lease to have bound his Successors without the confirmation and consent of their Chapters c. as aforesaid Now by this Act they are enabled to make leases for three Lives or one and twenty years without any confirmation at all with these qualifications What qualities such Leases must have Must be in writing indented 1. Such Lease must be made by writing Indented and not by parol or deed poll 2. Must begin from the making or day of making Old Lease must expire with a year Co. 5.2 b⸫ It must be made to begin from the making or day of the making of such Lease 3. If there be any old Lease in being at the time of the making of such Lease it must expire be surrendred or ended within a Year after the making of such new Lease and such surrender must be absolute and not upon condition 4. Must not be a double Lease Fourthly there must not be a double Lease in being at one and the same time the one for Years and the other for Lives 5. Of what things such Lease may be Co. 5.3 a. More 778⸪ Such Lease must be of Lands manurable or corporeal which are necessary to be letten and out of which a Rent may be reserved and not of things that lie merely in Grant as Fairs Markets Tithes Tolls Franchises Advowsons c. 6. Of Lands usually letten Such Lease must be of Lands c. which have most commonly been letten to Farm or occupied by the Farmers thereof for the more part of twenty years before the making of such Lease So if they have been so let for eleven years within the twenty years next before the making of the new Lease it suffices Co. 6.37 b⸪ and a letting to Farm by Copy of Court-Roll is a sufficient letting to Farm within this Statute to enable the making of such new Lease 7. The accustomed Rent must be reserved There must be reserved upon every such Lease and payable during the continuance thereof to the Leasor his Successors c. so much Farm or Rent as hath most accustomably been yielded and paid for the Land so demised within twenty years next before such Lease made so that it sufficieth Co. 6.37 b⸪ if the yearly Rent or Farm be reserved though Herriots and other casual services be omitted Ibid. so if a greater Rent than formerly be reserved it sufficeth But if Lands usually letten be demised with any other Lands c. though a Rent be reserved that exceeds the value of those Lands and the old Rent Co. 5.5 b⸫ yet such Lease is not good against the Successor within this Law But if the Rent were formerly reserved to be paid at four several days and by the new Lease be reserved to be paid all at one Co. 5.37 b. so the whole Rent be reserved yearly it is well enough 8. Lastly Such Lease must not be without Impeachment of Waste such Lease must not be without impeachment of waste and therefore a Lease to one for life remainder to another for life remainder to a third for life is not good against the Successor though but for three Lives because the remainders make the present Tenants dispunishable for waste for the time But Parsons and Vicars being excepted in this enabling Law are left as they were at the Common Law Farsons and Viears excepted so that they
could make no Lease to bind the Successor without the confirmation of the Bishop and Patron till the Stat. of 13. Eliz. which we shall speak of hereafter And note that it hath been held Co. 8 70. b. Lease for years determinable upon Lives that a Lease for ninety nine years if one two or three Lives so long live hath been held good within this Statute But this Act as appears by what hath been said conferred a new power upon single Corporations but did not in any thing restrain their antient power in making long Leases and Alienations of their very Scites Demesns c. with confirmations as aforesaid which was a great prejudice to the Church in general a means of Dilapidations and a great hindrance of hospitality and therefore In the first Year of Queen Eliz. 1 Eliz. c 19. More 107. Bishops restraned it was enacted that all Gifts Grants Feoffments Fines and other Conveyances and Estates from the first day of that present Parliament to be had made done or suffered by any Arch-Bishop or Bishop of any Honors Castles Mannors Lands Tenements or other Hereditaments being part of the possessions of his Arch-Bishoprick or Bishoprick or united appertaining or belonging to any the same Arch-Bishopricks or Bishopricks to any Person or Persons bodies politick or incorporate other than the Queens Majesty her Heirs and Successors whereby any Estate or Estates should or might pass from the said Arch-Bishops or Bishops or any of them other than for the term of twenty one years or three Lives from any such time as any such Lease Grant or assurance shall begin and whereupon the old accustomed yearly Rent or more shall be reserved and payable yearly during the said term of twenty one years or three Lives shall be utterly void and of no effect to all intents constructions and purposes any Law eustom or usage to the contrary thereof in any wise notwithstanding Note the exception 1 Jacobi c. 3. which gives or rather reserves the power to grant c. to the Queen c. was made void by a Statute made 1 Jac. And note also Leases in other Forms not void but voidable Small wood Sale vers le Evesq Lich. alios P◠31. El. ro 21 65. Co. 3.59 that though this Statute enacts that all Leases made in any other form shall be void and of none effect to all intents and purposes yet it has been adjudged that is only to be intended as against the Successors and that Leases made in other forms shall be good notwithstanding against the party himself that makes them Cro. Jac. 95. and may be affirmed by the Successor by the receipt of the Rent reserved thereupon And note 1 Eliz. A private Act. Co. 4.76 Co. 5.2 b⸫ Cro. El. 874. this is a private Act of Parliament that must in all cases be pleaded and cannot be given in evidence And note also that though this Statute do not restrain demising of any Lands not formerly demised yet it does it by implication for the accustomable Rent must be reserved and unless accustomable let there cannot be an accustomable Rent and Leases within this Statute must have all the restrictions in that of 32. H. 8. before-mentioned And it must be of things manurable Of what things such Leases may be made Co 5.3 a. as hath been said out of which a Rent may be reserved but some are of opinion that Tithes or things not manurable may be demised for twenty one years because an Action of debt will lye upon the Contract More 778. Sir Timothy Tourneur Serjeant le Roy. and so it was adjudged as a learned Serjeant at Law inform'd me in the case of the Precentor of Paul's about 17. Jacobi and that the Successor shall have an Action of debt upon this Contract by the Stat. of 21 H. 8. cap. 28. Upon this Statute and the former it hath been held 1 Inst 45. a⸫ Concurrent Leases that Arch-Bishops and Bishops may with confirmation of the Dean and Chapter make concurrent Leases that is notwithstanding there be a Lease in being for twenty one years they may make a new Lease of the same Lands to another for twenty one years from the making thereof and this being confirmed as aforesaid shall bind the Successor the other things being observed in it And Sir Edward Cook is of opinion 1 Inst 45. a⸫ that like concurrent Leases may be made by Deans Prebends c. with confirmation but some learned men are not satisfied herein because by these concurrent Leases the Successor loses his remedy for his Rent by distress during the former term and the Tenant may be insolvent as to an Action of debt The next restrictive Law is that of 13. 13 El. cap. 10. The Restrictive Law against Leases of Deans Prebends c. Eliz. whereby it is enacted That from thenceforth all Leases Gifts Grants Feoffments Conveyances or Estates to be made had done or suffered by the Masters and Fellows of any Colledge Dean and Chapter of any Cathedral or Collegiate Church Master or Guardian of any Hospital Parson Vicar or any other having a Spiritual or Ecclesiastical Living or any Houses Lands Tithes Tenements or other Hereditaments being any part of the possessions of any such Colledge c. or any wise appertaining or belonging to the same or any of them to any Person or Persons Bodies c. other than for the term of twenty one Years or three Lives from the time as any such Lease or Grant shall be made or granted whereupon the accustomed yearly Rent or more shall be reserved and payable during the said term shall be utterly void c. The penning of this Act Co. 5.14 b⸫ and that of 1 Eliz. beforementioned being in effect the same in substance the construction is the same in effect but in this Act there was no saving of Grants to the King and therefore this Act being for the publick good had restrained other Grants to him not warranted by this Stat. though 1 Jac. cap. 3. had never been made And here note Parsons and Vicars restrained by this Law that as the Parsons and Vicars had not their power any wise inlarged by the Stat. of 32 H. 8. So they had no restriction upon them till this act but from henceforth they are restrained from making any Lease or Grants other then for twenty one years or three Lives with the qualifications above mentioned in the Statutes and such Leases must be confirmed by the Patron and Ordinary because excepted in the inabling Statute of 32 H. 8. before And whereas after the making of this Statute Heads of Colledges Deans Prebends c. might have made concurrent Leases as well as Bishops might there is a Proviso in the Statute of 18 Eliz. 18 Eliz. c. 11. No concurrent Lease but within three years before the former ends That all Leases then after to be made by any the aforesaid Ecclesiastical Spiritual or
239. pl. 42 F. N. B. c. which have the inheritance in Fee-simple in them make a Lease for lives or years not warranted by the Statutes before mentioned not being absolute void by their deaths but only voidable by the entry of the Successor if the Successor accept the Rent before Entry be it for lives or years Rollsi 476. d. he affirms the lease for his Life If a Bishop make a Lease not warranted by the Statutes rendring Rent and die and his Successor appoints his Bayliff to collect his Rents of that Mannor who amongst the rest receives the Rent reserved upon this Demise and accounts to the Bishop's Successor for it this is a good Acceptance and shall bind the Bishop for his time 11 E. 3. F. Abbot 9. Dyer 139. p. 42. So if a Parson lease for life not warranted nor confirmed reserving Rent if his Successor receive Fealty of this Tenant upon this lease he has thereby affirmed the lease for his time 2 H. 4.2 a. the like it will be if the Successor bring an Action of waste But if a Bishop make a lease of Tithes or other things not manurable for life or lives Cro. Jac. 1.73 rendring Rent and dies and his Successor accepts this Rent it will not affirm the lease But whether such acceptance upon a lease for years of Tithes c. will bind the Successor Quaere I must leave it a Quaere not finding that point any where resolved I having now held the Reader long upon this subject shall now leave them and proceed to examine what Leases or Farms they may with safety take or not take By a Statute made in the twenty first year of King H. 8. Stat. 21 H. 8. cap. 13. Parsons c. must not take Farms It is amongst other things enacted That no Spiritual Person shall in his own name or in the name of any other take to farm any Mannors Lands Tenements or Hereditaments upon the penalty of ten pounds for every Month that he holds the same nor by himself nor any other shall buy Cattle Corn Lead Tynn Hydes Leather Tallow Fish Wool Wood or any manner of Victuals or Merchandizes upon pain to forfeit the treble value of things so bought But a Spiritual Parson may buy such things for his own use Where he may and if they do not fit him he may sell the same again and so where he hath not sufficient Glebe he may take grounds for the maintainance of his Family And it is further enacted by the same Statute Shall not farm anothers Parsonage c. That no spiritual Person beneficed with Cure of Souls shall farm the Parsonage or Vicarage of another to take any Rent or Profit out of such Farm upon the penalty of fourty shillings a week and ten times the value of the Rent or Profit he shall take out of such Farm And it is further enacted by the same Statute Must not keep a Tan-house or Brew-house That no spiritual Person shall have or keep by himself or any other any Tan-house or Brew-house other than for his own Family upon pain to forfeit ten pounds per mensem All which Penalties are given to the King and Informer to be recovered in any of his Majesties Courts of Record at Westminster by Action of debt Penalties how to be recovered Bill Plaint or Information wherein no essoine protection or wager of Law is to be admitted 5 Eliz. cap. 5. Where he may license the cating of flesh c. By the Stat. of 5 Eliz. there is authority given to the Bishop of the Diocess Parson Vicar or Curate of the Parish to license any sick person to eat flesh during his sickness and if his Sickness continue above eight days after the granting of such license than the same is to be registred in the Church-book c. and that license to endure during the sickness and no longer And if any Parson Penalty if needless Vicar or Curate grant any License to any person or persons other than such as evidently appears to have need thereof by reason of sickness the Parson Vicar or Curate that granted such license shall forfeit five Marks for every such License 25 H. 8. cap. and the License to be void In the 25 year of H. Sheep 8. There was a Statute made against the excessive number of sheep wherein there is a Proviso that it might be lawful to all spiritual Persons and every of them to keep such and so many sheep upon their own Lands and after such form and manner and not otherwise as they might have done before the making of the said Act. There is several Acts of Parliament for punishing incontinent Priests Incontinence which though since the blessed Reformation I do not mean the last pretended reformation but that in the time of E. 6. and Queen Elizabeth are become absolute and useless yet since I have promised them all the Statutes they may fall in the danger of these are not to be omitted but before I come to those particular Laws I will beg the Reader 's pardon for giving him a short Historical account of the Restriction of the Marriage of Priests which gave the occasion of these Laws Bellarmine in his disputations endeavours to make the single life of Priests to be Jure Divino but if not so De Clerici◠cap. yet he goes about to prove that it has been enjoyned by Canons as high as the Apostles time and to that purpose vouches the Canons of the Apostles which though they may be antient yet no rational Man that peruses them will believe they were made by the Apostles or very near their time in which I must confess I find a Canon that by implication forbids Priests to Marry but not Married Men to be Priests and 't is to this effect Canon 25. Ex his qui coelibes in clerum pervenerunt jubemus ut Lectores tantum cantores si velint nuptias contrahant Canon 5. Canons against the marriage of Priests But if he had lookt a little back in those Canons he would have found another manner of Prohibition in these words Episcopus aut Presbyter aut Diaconus uxorem suam praetextu Religionis non abjicito si abjicit se gregator à Communione si perseverat deponitor But however it cannot be denied but there were Antient Canons against the Marriage of Priests but never received or put in practice in England though practised in Italy France c. but the Priests here Married till Anselme Arch-Bishop of Canterbury a Burgundian a powerful and busie Praelate in a Synod or National Councel held at Westminster made a severe Canon against it Hollingshed 30. b. 10. but he meeting with an obstinate Clergy that were unwilling to change their Wives for Concubines to speak in the softest word were not obedient whereupon as my Author tells me he called a second Council in the ninth
which are still enjoyed by the Clergy but also of the impropriations as I take it Synodals is another charge upon the Parsons Synodals Vicars c. and is likewise paid to the Arch-Deacon not by any certain rule but by some antient Taxation so that some pay more and some less I must confess I cannot find how this payment first became due but by the name it should seem to be a contribution to the Arch-Deacon's charge in the Synods they being antiently elected by the Deacons themselves as their representative But it should seem Dugdales Warw. 126 b⸫ that the Arch-Deacons claim these Synodals for their Easter visitation and the Bishops have laid some claim to them but as my Author conceives without any just reason the Arch-Deacon and his Officers performing the Labour and undergoing the Charge All these charges the secular Clergy undergo which takes away a considerable part of their Revenues CHAP. XVI The Sixteenth Chapt. shews how far prescription will prevail in the manner of Tithing and in what cases the Parson Vicar c. shall be bound by a modus decimandi THe Canonists and those that are of opinion that Tithes are due jure divino The force of a modus decimandi in Tithing Lind wood cap. Quoniam propter verbo redemptionem decry all Customs and Prescriptions that either diminish the tenth part or acquit the whole for in truth no Custom or Prescription can be good which is positively against the Law of God And that is the reason why it is frequently said in our Law Books Co. select cases 46⸪ that the Ecclesiastical Courts will not allow a modus decimandi But the Common Lawyers allow Tithes to be due Common Law and Canon differ Concerning Customs c. Jure Divino secundum quid that is quoad sustentationem cleri but not quoad decimam aut aliquam aliam certam partem and therefore they allow of a manner of Tithing which diminisheth the quantum or a Custom of not Tithing for this or that particular thing so there be a sufficient maintainance for the Clergy besides and of the same opinion are some of the most eminent School Men Tho Aq. Sum. 2. 2ae and in this Tho. Aq. Sum. 2. 2ae q. 87.1.0 as in all other things where the Common Law and Canon or Ecclesiastical Laws differ the Common Law is to be preferred The difference between Custom and Prescription I have shewed before in the thirteenth Chapter The difference between Custom and Prescription But before I proceed upon this Subject I must beg leave of the Reader to say something more in vindication of the Common Law The Common Law vindicated which in this point I conceive does not differ materially from the Ecclesiastical and civil Law for if I do not very much mistake the Canonists and Civilians Lindwood c. Quoniam propter verb. Redemptionem they do at this day allow of real compositions in discharge of Tithes that is where the Parson Patron and Ordinary do by deed agree to accept of a certain sum of Money yearly or so much Land or other profit though not to the full yearly value in discharge of the Tithes growing and arising upon such Lands as they agree for now what is this but a modus decimandi and a prescription to maintain this modus is no more than a supply to prove a real composition which was made beyond all memory and lost and it were against all Justice and reason that if a Man should be plundred of or lose his Deeds that he should thereby lose his Estate And it must necessarily be intended Seld. hist Decim 408. that every modus decimandi that has continued time out of mind must have a reasonable and legal commencement and must be intended that it began by a real composition A Rent charge cannot be created but by Deed and yet it may be claimed by prescription supposing a Deed preceded the like Law is of all Canons c. And St. German in the Doctor and Student puts this case Lib. 2. cap. 55. f. 67. a⸪ that if it were ordained for a Law that all payment of Tithes from thenceforth should cease and that every Curate should have a certain Portion of Land assigned to him or a Rent or Annuity which should be sufficient for his maintainance and those that served under him or that every Householder should give a certain sum to that use that this were a good Law and grounded his opinion upon this saying of Doctor Gerson a great Doctor in Divinity Solutio decimarum sacerdotibus est de Jure Divino quatenus inde sustententur sed quoad tam hanc vel illam assignare aut alios in alios redditus commutare positivi juris existit And this commuting Tithes into annual Salaries is frequently practised in the Protestant Churches beyond Sea as I have been informed And these prescriptions de modo decimandi Prescriptions are confirmed by Parliament are not only allowed by the antient Common Laws of this Realm but confirmed by Act of Parliament For by the Stat. Stat. 2. E. 6. cap. 13. of 2 E. 6. it is enacted that no Person shall be sued or otherwise compelled to yield give or pay any manner of Tithes for any Mannors Lands Tenements c. which by the Laws and Statutes of this Realm or by any Priviledg or Prescription are not chargeable with the payment of any such Tithes or that be discharged by any composition real and having said thus much in vindication of the Common Law I shall proceed to shew what Prescriptions and Customs de modo decimandi vel de non decimando are good and allowed at Common Law First who may not prescribe in non decimando Seld. Hist decin 409⸫ Rolls 1.653 H. no Lay-Man can prescribe in non decimando that is to be discharged absolutely of the payment of Tithes and to pay nothing in lieu thereof unless he begin his prescription in a Religious or Ecclesiastical Person and derive a Title to it by Act of Parliament But all Spiritual and Religious Persons who may prescribe in non decimando as Bishops Abbots Priors Deans Prebends Parsons Vicars c. may prescribe in non decimando and their Farmers may make use of such prescriptions to free themselves from the payment of Tithes And hence it is that the Parson or Vicar of one Parish that hath part of his Glebe lying in another Parish may prescribe in non decimando for it Rols 1.653 H. 3. that is as hath been said to be free from the payment of any manner of Tithe for it But Church Wardens who have Land belonging to their Churches cannot prescribe in non decimando because they are neither Religious nor Spiritual Persons Rolls 1.653 H. 6. Church Wardens not It hath been held that a Bishop may prescribe that he and his Tenants for Life Rolls 1.653 H. 7. A
during the first seven years yet by a reasonable intendment 2 Inst 656⸪ Dyer 170. b⸪ P. 5. Plow 204. a. 396. b. the same shall be discharged from the payment of Corn and Hay for the first seven years after the Improvement and that is proved by the subsequent Clause whereby it is provided That if any such barren waste or heath ground hath before this time been charged with the payment of any Tithes and that the same be hereafter improved and converted into arable or Meadow that then the owner or owners thereof shall during the seven years next following from and after the same Improvement pay such kind of Tithe as was paid for the same before the said Improvement any thing in this Act c. So that it appears plainly by this Proviso that it was the intent of the makers of this Law only to free these improved Lands from the payment of such Tithes as were produced by the improvement which must be Hay or Corn and no other Next suppose a Man have barren Lands within this Law which are free from the payment of Tithes by prescription real composition c. It should seem by the penning of the aforesaid Proviso that he should pay Tithes for the same after the seven years this Proviso only providing for such Lands as are freed by Act of Parliament But that doubt seems cleared by the next precedent Proviso in this very Act whereby it is provided That no Person shall be sued or otherwise compelled to yield give or pay any manner of Tithes for any Mannors Lands Tenements or Hereditaments which by the Laws and Statutes of this Realm or by any Priviledg or Prescription are not chargeable with the payment of any such Tithes or that be discharged by any composition real So that this Proviso preserves all former legal discharges But the great question upon this Law is what shall be said to be barren Heath or wast Ground within this Law And Sir Edward Coke defines barren Land in these words Terra sterilis est terra infoecunda nullum ferens fructum 2 Inst 655⸪ But that definition will not hold in this Case for it does appear by the second Proviso that such barren Lands are intended that are barren quoad Agriculturam that is Dyer 170. p. 5. Co. Ent. 462.463 such barren Heath or wast Ground that of its own nature without improvement by Lime Marle Manure c. will not bring forth Corn or Hay 6 E. 6. per Bendloes 2 Inst 656⸫ Hill 9. Jac. C. B. ex motione Houghton But if Ground be not fit for Tillage yet if it be not suapte natura barren it is not within this Law As if a Wood be stubbed and grub'd up and made fit for the Plow and reduced to Tillage it shall pay Tithes presently for Wood Ground is Terra fertilis Faecunda So if Marish 2 Inst 656⸫ More 969. Meadow or other Land by neglecting to scowr the Trenches or Sewers or by sudden inundation be drowned or if by ill husbandry or negligence fertile Land be over-run with goss whynns broom fern bushes briars c. yet they shall not have the benefit of this Proviso because of their own natures they are fertile and apt for Tillage and the Parson Vicar c. shall not lose his Tithe by the ill husbandry of the Parishioner If Lands were barren Heath or wast Ground at the time of the making of this and were improved and had or might have had the benefit of this Law and after return to their barrenness Co. 10.86 b⸪ Co. 6.18 a⸪ the Owner of such Lands shall not have the benefit of this Law a second time upon a second improvement but I take the Law to be otherwise if the Lands had been improved before the time of the making of this Law and were then become barren again for there I take it upon a new improvement the Owner of such Land shall have the benefit of this Law Marsh Lands new gained from the Seas More 430. Bulft 165. 2 Inst 656⸫ and fenn Lands gained from the fresh waters by draining banking c. are not within the meaning of this Law to be freed from the payment of Tithes during the first seven years after the gaining But the Determination of this point which is or which is not barren Land within this Statute commonly falls out to be determined by common Jurors which notwithstanding the Direction of the Judge are seldom so favourable to the Church as they ought This Proviso only charges the payment of Corn and Hay after the seven years and the second Proviso provides only for the payment of such like Tithes as were formerly paid before the improvement for the first seven years after the improvement 27 H. 8. c. 20. 32 H. 8. c. 7. confirmed by the St. of 2 E. 6. Canons provincial cap. Quia quid maledictionis cap. Erroris damnabilis cap. Quoniam propter cap. Quoniam ut audivimus c. and makes no provision for the payment of other Tithes save Corn and Hay after the seven years So that it may seem to imply a discharge of all Tithes but Corn and Hay after the seven years but to this I answer that there being several Laws both Statute and Canon made formerly for the due payment of Tithes and no negative words in this act it shall not abrogate those Laws to the prejudice of the Church by implication CHAP. XX. The Twentieth Chapter shews what a real Composition is and in what Cases Lands shall be freed of the payment of Tithes by such Composition real THat which we call a real Composition is Where Tithes shall be discharged by a real Composition and what it is where the present Incumbent of any Church together with his Patron and Ordinary do agree by Deed under their hands and seals or by fine in the Kings Court that such Lands shall be freed and discharged of the payment of all manner of Tithes for ever paying some annual payment or doing some other thing to the ease profit or advantage of the Parson or Vicar c. to whom the Tithes did belong Co. 4.44 a⸪ 2 Inst 655⸪ Doct. Stud. l. 2. cap. 55. f. ult And these real Compositions have ever been held and allowed here in England to be a good Discharge of the payment of Tithes And from these real Compositions it is intended all Prescriptions de modo decimandi first took their rise and beginning though I doubt most at this day have grown up from the negligence and carelesness of the Clergy themselves And such Compositions may be made by the Parishioner alone without the Patron and Ordinary Vide Lindw cap. Quoniam propter verbo Redemptionem Upon this matter but it then binds only for the Life of the Incumbent and will be avoided by his Resignation Deprivation or being absent eighty days in a year from his Cure if he have Cure of Souls
his Patentees after the Leases determined shall hold them discharged whilst the Patentees and Owners hold them in their own hands but the Kings Tenants shall hold them discharged because of the Royal Prerogative of his Person not being intended fit for Husbandry Having now said thus much of the four legal manner of discharges beforementioned 5 Perpetual unity Co. 1.47 b⸪ c. Co. 11.14 b. Dyer 349. p. 16. More 528. Hob. 311⸪ 306 298⸫ 300⸫ 2 Inst 655⸫ More 46 47. Cro. Jac. 608. I shall proceed to that of perpetual unity which cannot be said to be a legal discharge of the payment of Tithes Yet because the Abbots Priors c. at the time of the dissolution held the Lands discharged of the payment of Tithes though not legally discharged of Tithes it hath been resolved by many Judgments and setled that this is a good discharge within the meaning of the aforesaid clause of 31 H. 8. Now that which we call a perpetual unity is as hath been said where an Abbot Definition Prior c. time out of mind have been seized of the Lands out of which the Tithes arise and the Rectory within which Parish the Lands lye And it is to be observed that every perpetual unity that shall discharge the Lands from the payment of Tithes must have these four qualities First Co. 11.44 b⸪ Hob. 300⸪ it must be justa that is by good and lawful Titles Secondly It must be perpetual that is the Abbey must be founded and indowed with the Land and Rectory before the time of memory which by the rules of the Common Law as has been said must be before the first Year of R. 1. for if by any Records Deeds or other legal and good evidence it can be made appear that either the Land or Rectory came to the Abbey since the said first Year of R. 1. the union is not perpetual and yet if the appropriation be antient as in the time of E. 4. or before though the Lands cannot be discharged upon the score of perpetual unity yet they may by prescription if in truth the Lands were held discharged of the payment of Tithes Thirdly such unity as shall discharge Lands of the payment of Tithes within this Law must be aequalis That is the Abbots Priors c. must be seized in fee-simple as well of the Lands upon which c. as of the Rectory Lastly such unity must be libera that is free from the payment of any manner of Tithes for if their Farmers at will years c. have paid any manner of Tithes to the Abbots Priors c. Cro. Jac. 454 482. or their Farmers of the Rectories the perpetual unity will not serve And therefore where such perpetual unity is pleaded in discharge of Tithes the adverse party may reply that the Tenants or Farmers before the dissolution paid some sort of Tithes and so avoid the perpetual unity Having first given the Reader satisfaction that all the Lands that came to the Crown by the Statute of 27 H. 8. and before can have no benefit of the discharge given by the Statute of 31 H. 8. and having also shewed how many ways Lands may be discharged from payment of Tithes that came to the Crown by the said Statute of 31 H. 8. It rests now that I should say something of those Lands that have since come to the Crown by the Statutes of 32 H. 8. cap. 24. 37 H. 8. cap. 4. and 1 E. Co. 2.47 a. How other Lands stand that came not to the Crown by 31 H 8. 6. cap. 14. It is a Rule taken in the Arch-Bishop of Canterburies Case that neither the Letter nor the meaning of the Statute of 31 H. 8. extended to free or discharge any Lands from the payment of Tithes save those that came to the Crown by that Act for as that Book says it is absurd that the branch of the Statute of 31 H. 8. concerning Tithes should be extended to a future Act that the makers of the Statute of 31 H. 8. without the Spirit of Prophesy could not have the prescience of And as to those that came to the Crown by the Statute of 32 H. More 913. Cro. Jac 57. Hill 2 Jac. 8. cap. 24. It was adjudged in the case of Spurling and Quarles that they are not discharged of the payment of Tithes Jones 182 c. Latch 89. Hughes 392. Bridgm. 32. But there is a later Judgment that seems to oppose these former resolutions it was between one Witton and Sir Richard Weston that was after Lord Treasurer Trin. 4. Car. 1. B. R. and the question was whether those Lands of the Hospitaliers that came to the Crown by the Statute of 3 H. cap. 24. were discharged of the payment of Tithes by that Statute of 32 H. 8. or by the former Statute of 31. and in that case Dodridg and Jones Justices held that they were discharged within the Statute of 31 H. 8. and they did in effect deny the Books before cited to be Law the chief Justice Hide was of opinion that they were not discharged by the Statute of 31 H. 8. but by that of 32. So that by their three opinions the defendant Sir Richard Weston had judgment but Whitlock was of opinion that those Lands were not discharged of the payment of Tithes by the one Statute or the other now upon the whole matter I shall submit to the Judicious Readers Judgment whether this later resolution be of any weight to shake the former resolutions since in this case though there were three for giving Judgment for the Defendant yet to the point controverted upon the Statute of 31 H. 8. they were two against two and that they were not discharged by the Statute of 32. there were three against the chief Justice Hide So that I conceive the Law remains according to the former resolutions that there are no Lands freed from the payment of Tithes by any Statute but those that came to the Crown by the Statute of 31 H. 8. I must confess I have met with no Judgments upon those Lands which came to the Crown by the Statute of 37 H. 8. but those being the same with those that came to the Crown by the Statute of 1 E. 6. cap. 14. I conceive neither those that came to the Crown by either of those later Statutes have any priviledg at all and it is agreed in that very case of Witton and Weston that those Lands that came to the Crown by 1 E. Jones 185. Cro. 2.470 .. Co. 2.47 a. 6. could not have any benefit by the clause of discharge in the Statute of 31 H. 8. So that I shall conclude that there is no Land can have any priviledg at this day to be discharged of Tithes that belonged to the Abbots Priors c. but such only as came to the Crown by the Statute of 31 H. 8. cap. 13. CHAP. XXII The Two and Twentieth Chapter
Stat. of 2 E. 6. 6. This Law extends as the former did to all manner of Tithes and Offerings 7. London is excepted out of this Act as it was in the former 8. This Law only extends to customary Tithes and not for Tithes due by Canon and Ecclesiastical Laws 9. This Act only extends to such as shall obstinately and wilfully refuse to perform the Sentence of the Ecclesiastical Judge and for no other contempt or neglect 10. Lastly this Act restrains the Suit to the Ecclesiastical Court upon this Statute otherwise an Action as should seem might have been brought at Common Law upon this statute for not setting forth c. of their Tithes But diverse defects appearing in this Law especially to the Lay Impropriators they obtained a more effectual Law for their purpose in the 2 E. 6. by which it is enacted That if any Person carry away his Corn or Hay Stat. 2. E. 6. cap. 13. or other predial Tithes before the Tithe thereof be set forth or willingly withdraw his Tithes of the same c. that then upon due proof thereof made before the Spiritual Judge or any other Judge to whom heretofore he might have made complaint the Party so carrying away withdrawing letting or stopping shall pay double the value of the Tenth or Tithe so taken lost withdrawn or carried away over and besides the costs charges and expences of the Suit in the same the same to be recovered before the Ecclesiastical Judge according to the Ecclesiastical Laws There is a Proviso in this Act that gives occasion of many Prohibitions to this effect That no person shall be sued or otherwise compelled to yield give or pay any manner of Tithes for any Mannors Lands Tenements or Hereditaments which by the Laws and Statutes of this Realm or by any Priviledg or Prescription are not chargeable with the payment of such Tithes or that be discharged by any Composition real Extends only to Predial Tithes This Paragraph of this statute as to the double value extends only to predial Tithes as Corn Hay Wood Flax Hemp Fruit c. but for mixt and personal Tithes there is a Provision after in this Act. There is also another Proviso in this Statute as in the former Sole Jurisdiction to the Spiritual Courts which restrains all Suits for Subtraction of Tithes to be sued in the Ecclesiastical Court and that it shall not be lawful to sue any with-holder of Tithes obventions c. in any other Court and that if the Ecclesiastical Judge shall give Sentence no Prohibition or Appeal depending and the Party condemned do not obey the Sentence that then such Judge may excommunicate the Party and if he wilfully stand excommunicated by the space of forty days next after publication thereof in the Parish Church or the Place or Parish Excommunicato capiendo given where the Party excommunicated is dwelling or most abiding then the Judge Ecclesiastical may certifie the King in Chancery and require Process of Excommunicato capiendo This Clause extends to all manner of Tithes Offerings c. but this gives no double damages for them as the former Clause doth for Predial Tithes There is another Clause in this Act that gives ground likewise for many Prohibitions which is to this effect That the aforesaid Clause shall not extend to give any Judge Ecclesiastical Jurisdiction to hold Plea of any matter cause or thing repugnant to or against the effect intent or meaning of the Stat. of Westm the second cap. 5. the Stat. of Articuli Cleri circumspecte Agatis sylvae coeduae the Treatise de Regia Prohibitione Stat. 1. E. 3. cap. 10. or any of them or to hold Plea in any matter wherein the Kings Court ought to have Jurisdiction any thing therein c. Note that by these three Statutes before mentioned the Jurisdiction of Tithes is confirmed and restrained to the Ecclesiastical Courts That by the Stat. of 27 H. 8. Observations upon all the Statutes Process for contempt is given before Sentence By that of 32 H. 8. Process for contempt is given after Sentence definitive but observe the different penning And by this last statute a Writ of Excommunicato capiendo is given if the Party continue obstinate by the space of forty days after an Excommunication published against him so that a man would think here were as good remedies provided for the Recovery of Tithes in the Ecclesiastical Court as could be imagined but the Interruptions that are frequently given by Prohibitions as shall be shewed hereafter in due place very much frustrate the effect of the proceedings in those Courts And note 2 Inst 490⸫ that a modus decimandi is properly to be sued for in the Ecclesiastical Courts And so having said so much concerning the Ecclesiastical Jurisdiction for the determining the right of Tithes and relief against subtraction of Tithes I shall in the next place shew in what Courts in what Cases and in what manner they are determinable in the Temporal Courts Mr. Selden 422. In what Cases the Temporal Courts have and may determine the Right of Tithes Selden in his History of Tithes reckons up five manner of ways whereby the Right of Tithes may be determined in the Temporal Courts 1. In Prohibitions whereby the Spiritual Courts are forbidden to hold Plea where matters happen which are only triable in the Kings Court or where those Courts proceed against any statute or the Common Law c. 2. By Writs of Right of Advowson whereunto may be annexed the Writ of Judicavit 3. By Scire facias 4. By Process mandatory to command the payment of Tithes 5. By Suits and Actions upon the before mentioned Statute of 27 H. 8. 32 H. 8. and of 2 E. 6. to which may be added the Trials at Common Law by Actions of Trespass Assise c. And of these in order And first of Prohibitions In what Cases Prohibitions use to be granted which are frequently obtained out of the Courts at Westminster Courts of great Sessions in Wales and the County Palatines c. upon these grounds following First upon a modus decimandi Hob. 286. 42⸫ 247⸪ 2 Inst 610⸪ Co. Entr. 459. d. 460. b. Co. 2.44 Dyer 74. p 49. Modus decimandi where the Defendant in the Spiritual Court suggests that he and all those whose Estate he hath in the Lands c. in which c. have time out of mind paid so much yearly in money or giving some other recompence in satisfaction of all the Tithes arising upon the Lands or of all the Tithe Hay or Corn c. this manner of Tithing being by Prescription which is only and properly tryable at Common Law if pleaded in the spiritual Court or not pleaded or allowed or not allowed as a good Plea there is a ground of a Prohibition and what Prescriptions and modus decimandi are in this Case approved of by the Common Law I must refer the Reader to the proper