this Order divers sentences passed in the Eâ—clesiasticall Courts upon emergent controversies of one for the Parson of St. Dunstans last for tythe of Wharfes and Câ—anes which sentence was given in the Arches 30. H. 8. by a Doctor of Law especially delegated from the King Another for tythe of shops divided from houses for the Parson of St. Magnus in the same Court Anno 35. H. 8. new controversies arising about Brew-houses Dy-houses Cranes c. a Bill was put up in Parliament by the City which passed the Commons but was stayed by the Lords containing among other things that for new buildings no Tythes be payed so long as the Owner lived therein himselfe but if they were let out then to pay the Tythe as other houses and that all Tythes should be recovered by processe in the spirituall Court or Action of debt at the Common Law and no otherwise Anno 37. Hen. 8. for composing all differences an Order or award was made by certaine Lords which is the decree now in question and an Act of Parliament passed that such order as the Lords Referrees or any 6 of them should make before the first of March then next following and enrolled in Chancery should stand as an Act of Parliament bind the said pâ—rties their heires and successors for ever This Decree was made by the Lords Feb. 24 1545. which was delivered the next day to the Bishop of London who the sâ—me day caused his Register to endorse an Act on the back side thereof testifying his receit thereof from the Lords and his commâ—nd to the Register to keepe it safely causing divers persons to attest the same This last Decree or award is now extant among the statutes but the order of 25. H. 8 and the Proclâ—mation therupon which are still of as much force as the other and more beneficiall to the Clergie being not extant in print are hereafter added taken out of authentick Records After this in the time of King Ed. 6. The citizens still neglecting to pay their tithes order was given by the K. his Counsell to Bi. Bonner among other instructions when he was appointed to preach at Pauls Crosse to cause the Citizens to pay their tythes better Aug. 11. 3. Ed. 6. as appeares in Fox his Monuments fol. 1187. Vol. 2. Col. 2 Artic. 5. After this about the middle of Q. Eliz. raign the rents of Houses being inhanced as the pricâ—s of all other things were divers devices were found out to prevent defraud the Parsons of their Tythe * of which grievances they have often complained and by these meanes are so many of the beneficies so poore as we shall shew cap. ult. CHAP. II. The liberall maintenance of the Clergie of London before the 25. of Hen. 8. by Tythe of 3. s. 6. d. in the pound according to the true value of houses the cheapnesse of those times conscientiousnesse in paying Peâ—sonal Tythes duties of Weddings Burials Churchings c. Chauntries obits c. WEE see then the nature of these payments Now that it may appeare how well the parochial Clergie of London were provided for in former times in comparison of ours wee may consider these particulars That the Citizens payed their Tythes according to 3 s. 6. d. in the pound and that according to the true value of the Houses Prout locari poterant as it is in the Bull of Pope Nicholâ—s and in the award of 31. H. 8. above mentioned Now if the payment of 2. s. 9. d. be thought so much if it should bee truely payed without fraud that nothing is more oâ—jected then that the Ministers would have too much and be too rich what thinke they of 3. s. 6. d. in the pound which was duely paid as will bee made cleare with out any contradiction Hence it is in part That the Benefices in London came to be so highly rated and valued in the Exchequer some at 100. marks some at 70. pound and upwards divers at 30. and 40. pounds and few undâ—r 20 l. or thereabouts when as yet the Tythe of divers of them is not at this day above 20 l. or 30 l. and some scant so much in present â—ythes as they were then taxed and whereas other livings in the Country are generally improved where they are not kept downe by unconscionable Customes or modi decimandi since the said valuation according as all other things are to 8. or 10. times as much yet divers benefices within the walls of London are scarce doubled in Tythes since that time yea some have stood at a stint ever since and are hardly so much as they were then That one penny then was as much as 3. d. is now as appeareth by the statute â—â— H. 3. wheâ—e a penny is the 20 part of an ounce â—ince which time from 20 d. the ounce it was reduced to 26 d. 9. Ed. 3. to 32. d. in 2 Hen. 6. to 40. d. in the 5. Ed. 4. to 45. d. 31. Hen. 8. and to 60. d. 2. Eliz. which continues to this day and so by that account 2. s. 9. d. in the pound then was as much as 8 s. 3 d. of the money which is now payed though the finenesse of the Coyne did then also exceed ours besides the low priâ—es of victuals and all other necessaries which came so far short of the enhanced prices in these times that 1 d. then would goe farther not onely then 3 d. of our mony which it equalled in value but farther then 1 s. now as will appeare if we looke at the price of Corne and other victuals in those times which we find mentioned in credible records In the said Act of Parliament in 51. H. 3. which was Anno 1267. somewhat after Roger Nigers time made for the assize of bread and of Beere and Ale for Bakers and Brewers are mentioned the prices of Wheat Barley and Oates and provision is made that when a quarter of wheat containing 8 bushels was at 12 d what the assize of bread should be and so from 12 d. to 12 s. which was then supposed the highest prices that it could at â—ny time amount unto as that some times it was but 12 d. a quarter It is also there ordered that Beere and Ale should be sold in Cities and Townes according to the prices of Barley and oates two or three Gallons a penny and in the Country three or foure Gallons for a penny whereas now the ordinary price of wheate is foure s. a quarter and sometimes in deare yeares 3 l. or 4 l. a quarter and Beere and Ale sold at farre greater prices according to the prices of corne wee may conceive were the prices generally of other things as Beeves Muttons c. There is in the Exchequer a Booke called the Black Booke composed 23. Hen. 2. Anno 1177. about Rules and Orders in the Exchequer and among other things there is mentioned that for provision of the Kings houshold from the
house come to be lesser worth in true yearlie value 3. They grant likewise That if a Lessee shall let out his house in part or in whole at a full Rent by the name of Rent though afterwards he let the same out for lesse rent by reason of Fines or double Leases yet the Tithe shall be paid according to the highest rent during the time or tearme of yeares which the said chiefe Lessee hath in his house 1. Cases controverted are chiefly these where the old Rent is still continued without encrease by reason of Fynes really paid before hand whither the Tythe shall bee paid according to the true value of the house or of the old Rent 2. When the old rent is onely reserved by the name of Rent and the improvement is and hath alwayes beene reserved by other names as Fynes Annuities New-yeares gifts c. to be yearly and quarterly paid as the Rent is and to begin and end with the Lease done purposely to prevent their Parsons Tythes whither those payments bee Rents as to the payment of Tythes and according to the true intent of the Decree Whither the jurisdiction Ecclesiasticall be quite taken away by the Decree and the Major be made sole Judge or whither it remaine in the same state it was before the said Deâ—ree The first of these I will not insist upon becâ—use there are few such instances to bee found without aâ—y augmentations of Rents by fines really paid The most of the frauds and practises having been invented since the encrease of rents and therefore I 〈◊〉 that over and shall onely propound 〈◊〉 Aâ—guments about the two latter 〈…〉 I shall not take upon me to 〈…〉 thing but submit all to the 〈◊〉 of the learned professors of the 〈◊〉 That 〈◊〉 annuall payments are rents and lâ—â—blâ— to Tythes as when one lets a House for 1â— â— suppâ—sed to bee the accustomed reâ—t and reserves 50. l. more by Covenant as â— yearâ—ly fine to begin and end with the leâ—â—â— and to bee paid at the same dayes of pâ—yment with the râ—nt that this is a rent and lyâ—ble to the payment of Tythes may be proved 1 From the usuâ—ll acception of the word in coÌ„â—on speacâ— which agrees with the Etymologie redditus a reddendo or reditus a redeundâ— If a man doe but let out his mony he cals 〈◊〉 interest rent If one aske one that holds such a lease iâ— question what rent he paies hâ— sâ—itâ— he sits at a deere rent reckoning all the yeâ—rely payments and therefore when the Lâ—nd â—ord and Tennant agree thâ—y agree for so muâ—â— rent till the lease come to bee mâ—de by the Sâ—riveâ—er who tels them they muâ—t take some course to prevent the Parson who will else claime his Tythes after the full rent and yet some even after such leases made give acquittances for all in the name of Rent Now here the Civill Law saith Communis usus loquendi praevalet rigori significationi Verborum and the Common Law attributes much to Common speech 39. Edw. 3.11 Sir Moyle Finches Case Col. 6.63 c. 2. Legally properly and even in the construction of the Common Law it is a Rent It is none indeed of Littletons Rents nor rent change nor rent seck nor rent service it issues not out of the soyle no distresse câ—n be taken descends not to the heire nor is incident to the reversion entry of the lessor doth not suspend it c. All this is granted but yet many things goe vnder the name of Rent â—ven legally and properly which are none of Littletons rents J grant you 20. l. during your life to bee taken of my person without charging of my land This is a rent as appeares by the Registers the most fundamentall booke of Common Law and by the originall writs which being the ground of suites are most accurate and curious in names Register fol. 159. The writ of annuity Rex vic. sal. precipe A quod juste reddat B. 20. libraes quae ei aretro sunt de annuo reditu 20. solidorum here an annuity is called rent Fitzherbert nat Br. 152. speakes of a rent Issant hors de Cofers 29. Hen. 6.12 Margery Parkeâ—s case Royne grant a lui vn annuell rent de 20. l. pour terme de vie a recever de quadam pecuniae summa assignata in partem dotis ipsius Reginae de magna Custuma London 1. Henry 6. we read of a rent reserved upon a Chattell personall a flock of sheep and such like and yet in all these cases you may say No distresse no assize no action of debt till the Tearme be ended all nothing to the purpose See 30. ass plo 5. Shard 14. Edw. 3. scire facias 122. Co. 5. seignior Mount joyes Case But must every Statute that speakes of rent extend to those rents No Statutes must bee taken Secundum subjectam materiam for such a rent as this is not within 32. Hen. 8. of leases by Tennant in tayle nor of 1. Eliz. leases by Bishops nor of 13. Eliz. leases by Deanes and Chapters for as it is said Coo. 8.60 Bishop Farnius case those Statutes looke to the benefit of the heire or their successour and therefore must bee intended of a rent incident to the Reversion and issuing out of a thing Maynorable but in our case the Statute lookes to the benefit of a stranger the Parson to whom it is not materiall what rent it is so it be a yearely pâ—yment 3. Though it were no rent in the Common law yet without all doubt it is in the Ecclesiasticall Law according to which it must be here expounded 4. That it is a Rent in that Law is manifest Pensio quae provenit domo vel habitatione redditus praedialis Lindwood fol. 109 and in the enlishing of the Constitutions above mentioned Annua Pensio domus is rendred Rent payment price pension farme in the old booke of Customes Now that in matters Ecclesiasticall the Common Law judgeth according to the Ecclesiasticall law is certaine for even in speciall Courts of Common Law it judgeth as those Courts would In matters customary it altereth the Common Law to fit them to the Custome quia dominus remisit Curiam The Statute 31. Hen. 3. Cap. 3. when a man dies intestate the Ordinary shall depute the next and most lawfull friends of the person dying intestate to administer his goods Now by goods at the Common Law are not meant leases for yeares Wardship Prochyn avoidance 4. Edw. 6. Br grants 51. If J make you a deed of gift of all my goods Omnia bona mea you shall have none of these yet it was alwaies taken Sans Contradiction That the Ordinary may by thesâ— words grant administration of leases And if an administration of goods be granted without more words Wray said 22. Eliz. such an administration hath power to deale with leases for yeares because the Spirituall Law so takes the word
away his Jurisdiction for the Act of Parliament saith onely it â—hall bind the said parties viz. Curates and Citizens and their Heires and Successours but mentions not the Ordinary 3 The originall Decree was delivered by the Lords to the Bishop of London to be kept in his Registry and in the time of King Edward 6. the Lords of the Counsell whereof some were makers of the Decree gave order to the Bishop of London in the Kings name to cause the Citizens to pâ—y their Tythes which he could not doe without Jurisdiction 4. Proâ—ibitions were never granted anciently in the time of Queen Eliz. upon such suggestions as they are granted for in the Country Circa metas boundâ—s and Circa modum decimandi c. 5. Though the jurisdiction were quite taken away yet it is restord againe 1.2 Ph. and Mary Cap. 8. towards the end which sets the Bishops in the same State for jurisdiction and cognizance of causes as they were before 20. Hen. 8. and if any say that Statute is repealed 1. Eliz. cap. 1. I answer not wholy but in part â—or this clause stands confirmed by generall words viz. That all Acts and clauses of any Statute repeâ—ted by that of 1. 2. Ph. Mary and not reviâ—ed by that of 1. Eliz. shall stand still repealed and therefore if that part of the Decree which takes from the jurisdiction Ecclesiasticall were repealed by 1. and 2. Ph. Mar. then it stands repealed still by the same clause is that of 1. Edw. 6. cap. 2. concerning Bishops sending processe in the Kings name and vnder his seale repeâ—led or else it s not repealed to this day for though it were repealed in 1. Mariae 2. chap. yet that Act 1. Mariae is repealed againe by 1. Iaâ—oâ—i 25. 6 Besides Tythes in their oâ—ne nature are originally of Eccleâ—iasticall cognizance and so whatsoever comes in the name of Tythe except by speciall words it be otherwise determined which is not here remaines of Ecclesiasticall cognizances 7. Jn the Exchequer 16. Iack Ivalts case it was over ruled against the defendants plea of the Lord Majors being to be Judge That notwithstanding that Court had knowledge the impropriation being held in Fee-farme of the King and upon this ground that the Majors power was not exclusive to any other Jurisdiction but onely accumulative 7. Lastly it appeares by what was said before Cap. 1. That before this Decree the Ordinaries Iurisdiction was not in question for that the City put up a Bill in Parliament 35 Henry 8. that none might sue for Tythes anywhere but in the Spirituall Courts or by action of debt at the Common law which shewes it was never intended nor desired that the Ordinary should be divested of his power It is objected that the Major is the onely Judge named in the Decree and the Tythes herein mentioned are not nor can be claimed by any other Law then by this Decree and therefore cannot be sued for before any other Judge then such as the Decree directs vnto This Argument takes that for granted which is vtterly denyed viz. That the Tythes in London are grounded onely upon the Decree of 37. Hen. 8. as if there were no other Law now in force which is apparantly an error for this Decree doth not abrogate nor nullifie any other Law formerly inforce further then where it was contrary to this Now it is certaine that 2. s. 9. d. in the pound was due by lawes in force before this Decree viz. by the Award and Proclamation in 25. Hen. 8. confirmed by Act of Parliament 27. Hen. 8. The force of which Award and Proclamation and Act were no waies nullified by this Decree but were onely confirmed and explained thereby in some things then doubtfull so that they were then and are still in force and therefore seeing that by them the Ordinaries power was not extinct as is cleare and granted by all it is as cleere that there is nothing in this Act to exstinguish it for the Major had power by the Statute of 25. H. 8. as well as by this of 37. Henry 8. and there are no negative words in this more then in that Yea not onely are the Award and Proclamation of 27. Hen. 8. and Act of Parliament of 27. Hen. 8. still in force but also the Constitution of Roger Niger and Archbishop Arundell with the award made in 32. Hen. 6. and other lawes then in vse are all as may be probably concluded at this day in force viz. so farre as they are not contrary to the Act and Decree of 37. Hen. 8. for if they were abrogated I would gladly know when and by whom In the 25. H. 8. they were not nor by the Statute of 27. Henry 8. for then onely the quantity was alâ—ered from 3. s. 6. d. to 2. s. 9. d. and in all other things the payment was left to the former Lawes and Constitutions and Customes according to which the controversies were determined arising after that time as appeares by the sentences still remaining on Record and in the 37. Hen. 8. there is nothing abrogates any of them further then when they are contrary to what was then decreed and therefore it is probably thought by some that for non payment the Major Excom. is now incurred ipso facto according to Arundels Constitution and that none ought to be absolved without payment Nisi in articulo mortis as is there set downe and certaine it is that if this last Decree were quite abrogate the Clergie might have as good Law for their Tythes as they have now Further I answer that though the Ordinary had no Jurisdiction formerly yet the very nature of Tythes here decreed gives him jurisdiction vnlesse negative words had beene added It is further said that the nature of these payments is altered by this Decree oblations are made Tythes and though formerly the Ordinary had power whilest they had the name of Oblations yet now another Iudge being mentioned and the Oblations become Tythes the Case is altered This is cleerely refuted by the precedent Historie whereby it is manifest that neither the name nor the nature was altered by this Decree The Proclamation appoints 2. s. 9. d. to be paid for Tythes and 2. d. at Easter for oblation or offering So the Award 25. Hen. 8. and so most of the precedent Acts style them Tythes and long before not onely this last Decree but before 25. Hen. 8. yea before the time of Henry 8. the payment on severall offering daies was disused and the whole payed in one or 4. entire payments by the name of Tythes and yet it is most certaine that then the Ordinary had this Jurisdiction and that solely But it seemes these two Iurisdictions of the Ordinary and Lord Major cannot both stand by the Letter of the Decree for by the Decree if any difference arise-upon complaint of the party grieved the Major may make an end and force
the parties to stand to his Decree Now suppose the Ordinary should determine otherwise concerning the same matter and force by censures of the Church the parties to oâ—ey his sentence hâ—re it will bee doubtfull to whom obedience must be given and so the one Iurisdiction must destroy the other J answer first it may well be affirmed that by the party grieved can be only meant the Minister for wherein can the Citizen be grieved if the Minister demand more then his due the Citizen may with-hold payment and so long J hope hee is not grieved by the Ministers demand If it be said hee is grieved when hee is sued in the Spirituall Court J answer that this grievance cannot bee heere meant because first the party must bee grieved with some thing mentioned in the Decree which this is not and secondly the grievance must bee such as the Lord Major can helpe or remedy but this hee cannot for he never did nor can stay the proceeding in any Spirituall Court nor ever used any compulsive power against any Minister but against the Atturney onely according to the words of the Statute 27 Hen. 8. Secondly J answer by propounding the like question The Exchequer hath power to determine matters of Tythe in London where the Living is impropriate and held in Fee-farme of the King as hath beene often adjudged especially in Ivats Case 16. Iacob Now suppose that Court and the Major make contrary Decrees which of them must bee obeyed or how can the words of the Statute bee made good for the Lord Majors power Heere I know it will bee answered that the Exchequer being the higher Court must take place and the Lord Major may not meddle with causes there depending but I say this is not mentioned in the Decree but onely gathered by consequence because that Court had jurisdiction before the Decree which Jurisdiction is not taken away by the Decree and if so then the very same answer doe J give for the Spirituall Court which is superiour to the Majors in matters of Tythes and had power before him many hundred yeares in this Case so that hee ought not to meddle with matters there depending But Statutes and Acts of Parliament must bee expounded by Iudges at Common Law This makes nothing to the question for first the Lord Major is none of those Judges and secondly this proves onely that the Judges may prohibite the Spirituall Court if it proceed contrary to the true meaning of the Decree but if it proceed according to the true sence of it then it may proceed otherwise No Ordinary could hold out plea for Tythes in the Countrey because there are Statutes made for all Tythes in the time of Henry 8. and Edward 6. which yet wee know they did and may doe lawfully and are never prohibited but upon suggestion that they proceed contrary to the meaning of those Statutes and Customes which the Iudges conceive they onely are to interpret FINIS Errata graviora Page 5 line 20. for could read would Page 6. l 6. dele of and in Marg. for iâ—tituled r. impriâ—ted Page ibid. line 7. for lâ—st read Lâ—st Page ibid. line 30 for vent read 〈◊〉 Page â—2 line ult. for iâ—â—rease read câ—â—câ—ssâ— Page 13 line 4 for foure read forty Page 14 line 19. delâ—of Page 15 line 15 dele Bill Page ibid. line 25. for 〈◊〉 read câ—â—sciâ—â—tioâ—snesse Page 20 line 22 for of read 〈◊〉 Page 24 line 9 col 2 for 0. l. 8 â— d. read 1. l. 〈…〉 Page 21 in the Marg. for 9 read 6. Lâ—ndwâ—oâ— lib 3 tit de Deâ—mis cap. sanct. Ecâ—l verbo Negotiâ—tionem â—ol 103. Roger Niger Constituâ—ion about Anno H 3 1230. Booke of Common Customes of London fol. 18. Dr. Tildsley in Prefat. contra Selden Arundels Constitution anno 1397.21 R. 2. extant in the Office Lib. Arundell fol. 1. in the booke of Common Customes Pope Innocents Bull in the booke of Customes Anno 1453. 3â—Hen 6. Pope Nich. Bull recited at large in the Booke of Customes fol. 19 20 21. c An award 31 H. 6. mentioned in the Act of Common Councell 31. H. 6. recited at large in the booke of Customes Act of CoÌ„mon Councâ—ll 31. H. 6. Bull received by Act of CoÌ„mon Councell 14. Edw. 4. 3. Martij 1474 3. â— â— d. in the pound Acts of Coâ—mon Counsell Aâ—â—o 1â— and 20. H. 8. in the Guild-Hall O. deâ— for 2â— 9 d. 25. H. 8. Letters pattents and Proclamations Act of Parliamâ—nt 27. H. 8 In a little treaâ—isâ— of tythes of London entitâ—led 36 H. 8. by a Citizen Decree 37 H. 8 Act of Parliameâ—t 37 H. 8. Act in the Bishâ—ps Râ—sâ—â—gry * by reserving the vent under other naâ—es as annuall quarterly fineâ— duâ—ing the lease annuities new-years gifts interest monyes rent for implemeÌ„ts and houshold stuffe by double leaâ—es the like See the new booke of Assizes for bread c See Cooke upon Littleton â—â— 2 cap 3. Sect. 95. * In a Leidger booke of Sâ—t Magnâ—s London for a Lawyers fee and spent in wine at a meeting of the best of the Parish 8 d Duâ—ies anciently pâ—id to the Pâ—â—sâ—n or Cuâ—ate for weddings These dutiâ—s were not 〈◊〉 same in 〈◊〉 Pâ—rishes buâ— dâ—â—feâ—ing accoâ—dign to the severaâ—l customâ—s of seveâ—all Pâ—riâ—hes The same duties when he is buâ—â—ed ouâ— of his owne Parish 1. Beadroll 1. Hoâ—sell at Easter 1. Tythes of Servants waâ—ges 1. Mens devotions on divers dayes Leases The Case Object Answer Sr R. Ct. Object against the legality Answ Object 3. vide p. vlt. Objections Answ. Object Answer Acts and Monuments vâ—l 2. fol. 1187. Col. 2. articâ— 5. Objecâ— Answer Answer Object Answer Object 4â— Answ. 1.
AN ABSTRACT OF A TREATISE concerning the payment of Tythes and Oblations in LONDON SHEWING The Antiquitie of those payments according to the Rents of Houses That they were payed by positive Constitutions according to the true value of the Houses ever since the yeare 1230. and by antient Custome long before till the quantitie not the name or nature was altered in time of Henry 8. from 3 s 6.d in the pound to 2 s 9.d in the pound as it is now The liberall maintenance of the Clergie of London in former times The Award and Proclamation 25. Henry 8. confirmed by Act of Parliament 27. Hen. 8. The matters now controverted about double Leases annuall Fines c. and concerning the Jurisdiction Ecclesiasticall for Tythes of London A generall Survey of the Value of the London Benefices both as they are now and also what they might arise unto if Tythes were truly payed according to the value of Houses The moderate Demands of the Clergie with other matters pertinent to this Subject Printed Anno Dom. MCDXLI AN ABSTRACT of a Treatise concerningthe payment of Tythes and Oblations in London CHAP. I. A Historicall narration of the payment of Tythes and Oblations from the time of ROGER NIGER Bishop of London about the yeare 1230. till the 37. of HENRY the 8. BY the Custome of London the Parish Churches were antiently endowed with certain Oblations viz. one Farthing of every ten shillings rent of all Houses Shops c. to bee offered by the Parishioners upon every Sunday and upon every solemne and double feast especially and by names of the Apostles whose Eeves were fasted Which offerings comming to more then a tenth part of the rent were payd in lieu of prediall tithes of the Houses and in recompence of the want of Gleabe as appeares at large by Lindwood and by other Records hereafter mentioned The Citizens neglecting to pay the said Offerings or Tythes to their owne Curates and giving part thereof to the Dominicans and Franciscans who were lately come over and began to Preach heere and draw people after them a Constitution was made about the yeare 1230. by Roger Niger Bishop of London authoritate ordinaâ—ia commanding all to pay to their owne Curates as is before expressed Et prout loâ—ge retroactis temporibus consuetum extiterat After this when Rents increased the Citizens refused to pay if the rent came to above 40. s. per annum pretending that no more was intended by Nigers constitution Whereupon a constitution was made by Thomas Arundell Archbishop of Canterbury declaring the â—ormer viz. That they should pay the said offerings or tythes to whatsoever summethe rent should amount and this sub paena majoris Excommunicationis These Constitutions were confirmed by Pope Innocent the 7th in his Bull dated in May 1406. Et pontificatus Anno secundo and all defects supplyed if any were After this the Citizens pretending a copie of Roger Nigers constitution which was adjudged afterwards to bee spurious would pay onely on Sundayes and the Apostles dayes not on the other solemne and double Feasts Whereupon Robert Wright of St. Edmunds Lumbard-street was cited before the Ordinary and sentence given against him and upon appeâ—le first to the Popes Commissary and after to the Pope himselfe the sentence was twice affirmed and upon the Letters of King Henry the 6. Pope Nicholas the 2. sent out his Bull commanding the Citizens to pay upon all the said Feasts authorising the Ordinaries to enquire hereof at the Visitations and to curse the offenders 7. Idus Aug. Pontif. anno 7. The same yeare before the Bull was received an award or Composition was made by eight arbitrators wherein some dayes are left out which are appointed by the Bull the whole offering in 52. Sundayes and 22. Holidayes amounting to 3. s. j. d. in the pound which award was agreed by Act of Common Councell 31. H. 6. After this by Act of Common Councell the Citizens bind themselves in all things to obey the Bull of Pope Nicholas according to which they payed for so many dayes that the Tithe or oblation amounted to 3. s. 6. d. in the pound 14. d. in the Noble 1. s. 9. d. in the halfe pound and not long after in regard it was troublesome to offer every day in time of divine service by mutuall consent the same was payed either once at Easter or quarterly by the name of oblations or Tythes â—s appeares by the Decimary of St. Magnus Anno 1494 about 7. Hen. 7. in the Booke of Common Customes and by sundry suites and sentences in the Arches and by the Bill of the Parsons exhibited to the common Counsell 19. Hen. 8. remaining on Record in the Guild-hall and by Records of a suite in Starre-chamber 25. Hen. 8. Upon occasion of sentence giâ—en in the Arches 18. Hen. 8. against Robert Hearne of St. Mildreds Poultry for 14. d. in the Noble the Citizens complaine in Common Counsell that the Curates tooke above the rate appointed by the Bull viz. 14. d. in the Noble whereas they should have nothing unlesse the rent came to 10. s. and so ascending from ten shillings to 10. s. and not under and also they sent Bills to every Church shewing what dayes should bee paid for according to which computation of theirs the Tythes came to 3. s. 5. d. in the pound which was 1. d. lesse then formerly they order that nothing should be pay'd for any summe vnder 10. shillings and desire that the Bull may be published in English 4 times a yeare as was prâ—scribed had bin disused An. 25. H. 8. when the Popes power was abrogate some Citizens pretending they should runne into a premunire by obeying the Bull refused to pay either according to the Bull or to any former constitution or custome and put up a Bill in Star-chamber against some parsons that sued in the Spirituall Court praying that they might pay onely two shillings in the pound as other Parishes without the liberties did in which suit after publication both parties submitted the cause to the Lords who ordered the Tythe to be onely 2 s. 9. d. in the pound and 16 d. ob in the halfe pound dividing the controverted Summe viz. 18. d. per pound by abating 9. d. of what the Clergy would have and adding 9 d. more then the Citizens could have paid This Order was confirmed by the Kings Letters Pattents Apr. 2.25 Hen. 8. and by Proclamation upon paine of fyne and imprisonment at the Kings pleasure and by divers Acts of Common Counsell made the same yeare and remaining upon Record in the Guild-hall The same was confirmed by Act of Parliament 27. Hen. 8. to continue till some other order should be made by the 32 persons to be chosen for reforming Ecclesiasticall Lawes and by this Act the Major hath powâ—r to commit such Citizens as refuse to pay according to such order According to
Bona by which wee are to judge But this is our case for now in like manner the Spirituall Law under Rent includes this annuall payment and Ergo the Judges are to take it so 5. That it must needs bee a Rent within the intent and true meaning of this decree appeares 1. It was made for the maintenance of the Clergie and so pro bono Ecclesiae and consequently â—or the maintenance of Religion and Seruice of God How Summa est ratio quae pro Religione facit 2. It was made to suppresse fraud and covyn it is spoken of thorough all the branches of the decree Now the Civill law saith Dolis fraudibus omnibus modis occurrendum then specially such frauds as this for Statutes of such a nature â—re extended by equity beyond the word and therefore well may the word here be taken so farre as Common speach dâ—â—h extend them for this favour the Judges have ever extended even to Statutes most penall for words must stoope to meaning not meaning to words and yet this decree must be extended in equitie euen beyond what the words will beare in Common sense in some Cases The Register and Fitz-herbert Nat. Br. fol. 152. tells us of Redditus Robae and like Now suppose a man make a lease of a House in London reserving so many furrs so many Robes shall not the Parson have his Tythes of every 10 s. valewe a man makes a lease and the Lessee covenants in the same Indenture to pay for it 10 s. yearly and this without intent to defraud the Parson Beestons Case Plowden 131.2 doubts whither this bee rent and the Pryor of Binghams Case is vouched that it is no rent fol. 136.2 But is there any doubt but this is a rent within the Decree Or if one make a lease of a house and the Lessee grants him a yearly fine during the tearme and if it bee behind hee shall distrayne for it This is no rent but an annuity and the clause of distresse onely a penalty Butts Case Coo. 7.23.2 yet no doubt the Tythe is due to the Parson This Decree comes instead of that provision formerly made for Tythes in London and not by enlarging but by way of diminution taking from the Clergie 9. d. in the pound which they had before and therefore ought to be taken strictly against them and largâ—ly for them 4. Without all question the meaning of the Decree was that the rates therein expressed should be paid as the rates formerly in vse were paid before the decree for though there was made an alteration of the rates 3. s. 6. d. made 2. s. 9. d. yet it was never intended but that the manner of payment should continue and therefore rent in the decree must be takâ—n as it was formerly taken by constitution or custome before the Decree which was for any kind of payment as is manifest for the practise of former times appeares by the names then vsed viz. rent pensions payment price in the Booke of Customes it is called rent or Farme in the Proclamation confirmed by Act of Parliament 27. Hen. 8. The Citizens never payd according to any fixed rents but as the Rent improved so did the Tythe as appears by Arundels constitution declaring that if the rent were above 4. d. the old Rent of some house in those times then they should pay to whatsoever summe it arose by the Bull ordaining to pay Secundum verum valorem pro quo domus Secundum veram existimationem locari poterit by the award 31. Hen. 6. wherein Houses let out or kept by the owners were to pay after a common valew by the Decimary of St. Magnus in the Booke of Customes 7. Henry 7. wherein they pay after the full Rents some 10. pounds some 16. l. which was as high a rent then as one hundred pounds now By the Bill in Starre-chamber 25. Henry 8. wherein the city sets out that the rents of houses were enhansed and doubled and that they paid Tythe after the enhansed Rents and that divers new houses were built in void grounds and some newly repaired and that they payed Tythe for them as for other houses which they would not have done had they been as wise as men are now And in all former controversies about Tythes even in those which occasioned the decrees of 25. and 37. Henry 8. there was no question made at all about the Rent for which the Tythe was to bee paid but about the quantity how much in the pound and therefore the occasion of the decree being onely to settle that it could never intend to alter other things which were not at all in question for such leases and Fines were never paid before the Decree nor many yeares after Decree in the Exchequer for the true value in Ivats case 16 Iac. 4. By a Decree in the Exchequer Pasch. 16. Iac. the Barons declare that they conceived the meaning to be that Tithes should be paid according to the true value as the houses are worth to be let per annum 5. The practice of the Ecclesiasticall Courts is such that divers sentences have bin given for payment according to the true value whether the annuall payment were called Fine or Rent 6. The Decree provides that where more rent is reserved for implements of brewing dying c. a third penny shall be abated and where lesse rent is reserved by ruine fire or any other casualties there shal be abatement of tithe accordingly and therefore it must needes be meant that in other Cases the house should pâ—y according to the value Those annuall payments are not Fines in common spâ—ech nor accordiâ—g to aâ—cieâ—t use and thereâ—ore could nâ—ver be intended to be exempted from tythes for as there were few Fines antiently so usually they were some small summe which the Lessâ—r had beene at for reparation which the Tenant was to pay at his comming in but now by Fine they reserve the whole value of the house besides in common speech a Fine is a summe payed before hand and therefore called an Incombe so in this Decree is called a Fine paid before hand and in some places a grosse summe the rent being paid in many summes afterwards wheras in these practises the Fine and rent differ not but in name and by as good reason the Country-mâ—n that called his pigs puppies might refuse to pay his tithe pig because puppies are not Titheable besides the reason why Fines are pâ—id is either to furnish the Landlord with ready money or to ease the Tennant by bringing downe the Rent or to secure the Rent to the Landlord by a Fine paid before hand None of which reasons are of any use here so that the onely cause is the Parsons tithe and therfore no such Leases are knowne in any partof the Kingdome besides The encrease of Rent is either because the house is greater or fitter for a greater family or because Trading encreaseth and Rent riseth in both which cases
all reason requires that the Tithe should encrease For by the first the Parson hath a greater charge of soules By the second the Parishioner is better able to give his gaines being greater 9. Otherwise divers absurdities will follow hereupon for by this device in a new house a new Parishiner shall come and partake sacrâ— sacramenta and yet be bound to pay nothing to the Parson reserving all by Fine Heerâ— is Officium sine beneficio Besides hereby the Ministers meanes shall stand at a stay for ever though all meanes of livelyhood grow ten times dearer hereby the 9. parts shall encrease to the owner and not the tenth part to the Parson c. 10. These practises were resolved by all the Reverend Bishops under their hands and by both the Universities Anno 1620. to be utterly unlawfull in point of conscience There can be no fraud here by the common law because the Parson hath no present right or interest in being nor by the Decree First because this is a rate Tithe Secondly because the second clause requires onely that where no rent or lesse then was wont is reserved the Tythe shall be paid according to the rent for which it was last letten The ground of this is false that there can be no fraud but where the party hath a present right This is against as many Acts of Parliament almost as speake of fraud instance Mâ—rlebe cap. 6. De his qâ—i primogenitos c. of those that enfeose their heires within Age to defraud the Lords of their Wardships the statute saith not that shall hereafter enfeoffe but Qui feofâ—re solent so here was a fraud by common law before the statute though not made void and so penall till the statute and yet the Lords which were defrauded had no present right for their interest groweth long after by the death of the tennant that made the Feofment See 13. Eliz. Dy. 294. Here is quasi a Rent in Esse and to grow upon an instant for in the instant that the Lease is made the right of the Parson growes to have the Tithe The very Decree mâ—kes it fraud against the Parson disertis verbis as 27. Eliz. doth against a purchaser that purchaseth the â—and after To the second part I answer first this rate Tythe must follow the rent and if that bee uncertaine then is the Tythe also and so subject to fraud Secondly for the clause of the Decree I answer there is Fraus in intentione and fraus in executione here is an intent of fraud but in effect there is none for he intended to deceive the Decree and it deceived him where he inâ—ended an annuall payment to bee no â—enâ— which the Decree saith is a Rent and so Titheable so fraus in authorem redit and so fraud is out of doores besides the substance or body of the Decree is the first clause and the question rests whither this annuall payment be a rent within that clause of the Decree which if it be the branch following nihil operatur fraude or no fraud within that branch is not materiall By the Decrees and Acts of 27. 37. Hen. 8. a new duty is created for no tythes were paid before but oblations onely for the Churches of London had nothing but oblations and obventions and therefore the tythes being onely by sorce of those statutes the words must be expounded not according to former practises but according to the common Law This is clearely otherwise for these payments are not tythes more now then heretofore nor lesse heretofore then now For though two â—hillings nine pence bee more then a tenth part yet it is called a tythe and so was the three shillings sixe pence long before either of the decrees of 25. or 37. Hen 8. in Arundels constitution 21. Richard 2. Anno 2397. they are called Oblationes seu decimae Lindwood who lived in Anno 1422. saith in the place alledged cap. 1. they are paid in liew of prediall Tithes of houses and recompence of want of glebes referring himselfe to the constitution of Roger Niger then extant in divers suites and sentences in the Courts Ecclesiasticall they are called Decimae in a Libell in the Arches 10. Hen. 8. they be thrice called Decimae In a sentence there 18. H. 8. it is said to be secundum consuetudinem solvendum Decimas in Civitate London In ye Acts of coÌ„mon Counsel 19 H 8. It is said the Bull confirmed by that Court 14. Ed. 4. was concerning Tythes and Oblations so in the suit in Starchamber 25. Hen. 8. they are called Tythes and the witnesses depose for 40 50.60 yeares these payments were paid sometimes quarterly sometimes at Easter by the name of oblations or tithes so that the custome of offering upon each severall day was left off and the payments made yearly or quarterly long before 25. Hen. 8. so that it is certaine neither the name nor the nature of those payments or duties are altered by any Act of Parliament as is commonly but ignorantly by many affirmed but onely the quantity made lesse as appeares by what is formerly said But there is a clause in the decree that where lesse then 2. s. 9. d. for every 20 s. rent hath bin accustomed to be paid for tythes there such tithe shall be paid onely as hath beene accustomed This clause is by some expounded of St. Martin le grand which is in the city but not of the city and the out Parishes which pay 2 s. in the pound by custome but this cannot be for those places are not within the decree wch extends onely to the liberties of the city and therfore they cannot be excepted out of a rule wherein they were never included It must be therefore meant of such parishes or places within the city which by special custome pretended to pay only after the rate of 2. s. in the pound as appeares by thee citizens bill in Starchamber 25. H. 8. wherein they name somâ— such places within the city and by the Majors precept upon the order then made directed to every Ward wherein it is expressed that such as paid onely 2. s. in the pound should pay no more Now though this were pretended by the city in that Bill yet it appeares by the depositions their proofe came short herein and therefore the makers of the Decree doe not specifie this rate of two shillings in the pound but doe onely in the generall say that where lesse then 2. s. 9. d. was accustomed to be paid lesse should be paid leaving them which alledged the said custome or any other to prove the same Now seeing no parish or place in London doth at this day pay according to that rate of 2. s. in the pound or of any lesser summe nor was any such custome ever yet proved though often alleadged and whosoever wil prove any must prove a custome of paying after such a rate before the 37. of Hen. 8