CHAP. I. The First Chapter shews, Who may, or may not, be a Parson, Vicar, &c.

HAVING taken upon me to shew how to make a com­pleat Parson, Vicar, &c. Who may be a Parson, or Vi­car. It will be necessary in the first place to shew, who is capa­ble of being so. And in the first place, He that is to be a Parson must re­gularly be of free Condition, competently [Page 2]learned, skilled in the Language the People speak or understand, where he is to be Par­son, Vicar, &c. Next he must be twenty four years of Age, conformable to the Govern­ment and Doctrine of the Church of Eng­land, and not criminous, outlawed, excom­municate, 5 H. 7.20. a. Co. 5.58. a [...]. Lindwood c. [...]os qui de non, &c. Ibid. 14 H. 7.28. b. Jew, or miscreant, and must be free from Symony. And a man that is a Bastard is not capable to be a Priest, nor by Consequence a Parson; but in this Case Dispensations are frequently granted.

So a man that is not of free Condition, but a Villain, or a Miscreant, that believes not the Truth, an Infidel, that resists the Truth, a Jew, Schismatick or Heretick, that do not believe aright, cannot be Parsons, &c.

So if a man be criminous, Dyer 293. p 3. 38 E. 3.2. a.. that is, guilty of murder, manslaughter, perjury, forgery, or other foul Crime, that is malum in se, cap. Imprimis & infra Lindwood. is not capable to be a Priest, Parson, Vicar, &c. And the Bishop may refuse to accept such Parson, if presented to a Living: and it matters not whether the Party be convict of this Crime or not; So that the Ordinary have certain knowledg of the truth thereof.

But for a man to be guilty of haunting of Ale-houses or Taverns, Co. 5.58 a⸪ or a player at un­lawful Games, which are only malum pro­hibitum, and not malum in se; it is no Impediment to his being a Parson, Vicar, &c.

So if a Man be illiterate, Dyer 293. b. p. 1, 2, 3. 254. b. p. 2. Albany vers. Evesque Lich. M. 26, & 27 Eliz. C B. 10.20 [...]3. Lucas vers. Evesque Bath. p. 3. El. C. B. per Bendloes. Stat. 14 Car. 2. cap. 14. and cannot speak a Language his Parishioners under­stand, he ought not to be admitted to be Parson of such Parish, but may be rejected by the Bishop, &c. For it is all one not to be able to instruct his Parishioners in the truth by reason of Ignorance, as not to be understood; for when the blind leads the blind, both fall into the ditch.

At this day no man may be a Parson, be­fore he be a Priest in Orders; nor can he Stat. 13. El. cap. 12. be a Priest before he is twenty four years of age: and so by consequence no man can be a Parson regularly, till he be past twenty four years of Age.

And for this reason a Bishop, &c. 1 Leonard. 130. may re­fuse a Clerk, because he is not in orders; but he cannot refuse him, because he wants a Testimonial.

Neither can any man be Parson of that Church, Vide postea cap. 5. for the obtaining whereof he hath been guilty of Symony, as shall be shew­ed more at large in the Chapter of Symo­ny.

And regularly all things that are causes of Deprivation, are just causes to make a man incapable of a Living, and for which the Bishop, &c. may refuse to admit such Clerk.

And note, Lindwood c. cum à jure in­hibitum, &c. the Son is made incapable to succeed his Father by several Canons.

CHAP. II. The Second Chapter shews, how one that is fitly qualified to be a Parson, ought to behave himself in obtaining a Li­ving.

A Person so qualified, as the Law re­quires, must, without any corrupt or Symoniacal Contract, obtain a Presentation from the right and undoubted Patron of the Church, whereof he designs to be Par­son; which may be in this Form.

Reverendo in Christ [...] patri & domino T. The Form of a Presentation. divina permissione L. & C. Episcopo, ejusve Vi­cario in spiritualibus generali, A.B. Armiger, indubitatus Patronus Ecclesiae parochialis de C. in Comitatu D. salutem in domino sempi­ternam. Ad Ecclesiam de C. praedictam vestrae diocesios, modo per mortem (if void by the death of the last Incumbent;) but if it be by resignation, then you must say (modo per resignationem) but if the Church be void, by the last Incumbent's being made Bishop, or by taking a second Living, not being qua­lified, then you may say (per Cessionem) or as the special matter is, or if by deprivati­on, then you must say (per deprivationem) and then proceed E.F. ultimi incumbentis ibidem jam vacantem, & ad meam donati­onem pleno jure spectantem, dilectum mihi in [Page 5]Christo G.H. Clericum in Artibus magi­strum paternitati vestrae praesento humiliter supplicans, quatenus praefatum G. H. ad dictam Ecclesiam admittere, cumque Recto­rem ejusdem Ecclesiae instituere cum suis juribus & pertinentiis universis, caeteraque expedire & peragere, quae vestro in hac parte incumbunt officio pastorali, dignemini cum favore. In cujus rei Testimonium his praesen­tibus sigillum meum apposui: Datum pri­mo die M. anno regni domini nostri Caroli Secundi Dei gratia Angliae, Scotiae, Fran­ciae & Hiberniae, Regis, fidei defensoris, &c. vicesimo octavo, Annoque domini 1675.

As soon as a Clerk has obtained such Presentation, How to proceed upon the Pre­sentation. it behoves him with all convenient speed, and within six months after the Church became void by Death, 22 H. 6.29. b⸪ Creation or Cession of the last Incumbent, of which avoidances the Patron is at his peril to take notice, Doct. & Stu­dent. l 2. c. 31. Dyer 327. p. 7. Roll. 2. 364. &c. or within six months after notice legally given to the Patron by the Ordinary of the Church becoming void by Deprivation or Resignation ten­der his Presentation to the Bishop of that Diocess within which the Church is, or to his Vicar general, or in the vacation, What time the Bishop may take to exa­mine a Clerk. Li [...]dwood chap. Cum se­cundum Apo­stolum. when there is no Bishop of such Diocess, to the Guardians of the Spiritualties, to whom the Law allows a reasonable time to examine the abilities of the Clerk; for the Ordinary is not bound as soon as a Clerk tenders his Presentation to dispatch [Page 6]his business Hob 317.. 15 H. 7.7. b.. The Canon-Law allows two moneths; but the Common Law, which in all these Cases is to be pre­fer'd, allows only conveni­ent time. Admission and Institution. Co. 4.79. a⸫; 32 H. 6.28. b.. 33 H. 6.24. a⸪ 38 H. 6.15. a.. Knowls vers. Dobbyns Pri. Jac. C. B. Carter vers. Crofts 27 El. C.B. Who may make Induction.; but if he be busie about the affairs of his Church, he may make the Clerk to stay till he hath done, or may appoint him a convenient time to attend him for his approbation.

Then if the Ordinary, &c. upon the ex­amination of the Clerk, find him fit in all points, as above in the first Chapter is di­rected, then he admits him in these words, Admitto te habilem, &c. And thereupon the Ordinary institutes him in these words, Instituo te Rectorem Ecclesiae paro­chialis de C, & habere curam animarum, & accipe curam tuam & meam. And this the Bishop may do as well out of his Dio­cess as within it; for as to this matter it is not local, but follows the Person of the Bishop withersoever he goes. When the Bishop has instituted the Clerk, the Ordinary or, &c. makes a mandate un­der Seal to the Arch-deacon of the place, Callis vers. Launt. Parson Den­nye's Case. H. 6. Jac. ro. 190. BR. Plow. 528. b. How Inducti­on is to be made. Lindley vers. Dodson M. 9. Jac. C. B. or to such other Clergy men as he pleases, to induct the Clerk. And it may be made by the Dean and Chapter, but not by the Patron: for though by the Institution the Church is full against all persons save the King, yet he is not compleat Parson till Induction; for by the Institution he is admitted ad officium to pray and preach, yet he is not intitled ad beneficium, until he be formally inducted, which may be done by the delivering of the Ring of the Church door, or latch of the Church gate, [Page 7]or by delivery of a Clod or Turf, and Twigg of the Glebe, but the most com­mon and usual way is, and therefore the sa­fest, Lindwood c. Item quia Archi-diaconi, &c. by delivery of the Bell-rope to the new instituted Clerk, and he tolling the Bell: And the Arch-deacon, if he do it, is to take but 40 d. for doing of it.

Now note, that the six Months, Yelv. 100. Co. 6.61. b. 62 a. within which the Patron is to present, is to be accounted by 192 days, and not by 28 days to the month.

And note, What's to be done after In­duction. that the Clerk is to do ma­ny things more at the time of his Insti­tution, and after his Induction, to secure himself in his Living, which he will find in the sixth Chapter following, to which I refer him, and wherein very great care is to be taken, that all things be duly perfor­med and observed.

There hath been some Dispute, From what time the six months shall commence. whe­ther the six months shall commence from the time of the death of the last Incum­bent, or other avoidance, or from such time as the Patron could reasonably have notice, considering the distance of place; and more particularly, where the Patron or Incumbent should happen to be beyond the Seas at the time of the a­voidance.

And there hath been a Canon, Roll. 2.363. q. quod tempus semestre non incipit versus patro­nos, nisi à tempore scientiae mortis perso­nae.

But by the Common Law of England, I conceive the Patron is bound to take no­tice of the Death, Creation or Cession, as aforesaid.

And this is proved by the Register, Regist. Orig. 42. where in a prohibition 'tis said, Quia se­cundum legem & consuetudinem Regni no­stri Angliae Episcopi, &c. beneficia vacantia per lapsum temporis ante sex menses vacati­onum eorundem transactos conferre non de­bent, nec conferre consueverunt, aliquibus temporibus retroactis. So that it appears by this Writ, What time the Patron is to present. that the time of the six months to collate by lapse commence from the vacancy, and not from the no­tice: but this must be intended of such a­voidances, whereof the Patron is bound to take notice, as aforesaid.

And it is also to be observed, Kelw. 50. b⸫; 14 H. 7.21. a⸪ Dyer 227. p. 7. that if the Patron do present his Clerk, which is re­fused by the Ordinary, because he is illi­terate, criminous, &c. there the Patron shall have no longer time to present but six months from the time of the avoi­dance, where the Patron is bound to take notice of it, The Patron presents after Lapse incur'd. and six months from the time of notice, where the Ordinary is bound to give notice of the Avoi­dance.

But note, 13 E. 4. 3. b⸫; 11 H. 4.80. a⸫; Hutton 24⸫; that in all Cases, if a Church lapse to the Bishop or Arch-bishop, and the Patron present his Clerk before the Bishop or Arch-bishop have collated, [Page 9]the Bishop, &c. Lindwood Si aliquo evin­cente, &c. verba injuria. is bound to admit the Clerk of the true Patron, and cannot take advantage of the lapse. But the Canonist contra.

But if the Bishop collate, Dyer 270. p. 56. and the Patron present before Induction, he comes too late.

But the great question is, Quaere. if the Church lapse to the King, and the Patron pre­sents before the King take advantage of the lapse; Whether this shall avoid the Kings Title by Lapse, Dyer 277. p. 55. Hob 152.. Hut. 24. is made a Quaere by Dyer: but Hobart seems to be clear in it, that the King shall not have the benefit of the lapse; but divers Cro. Eliz. 119⸪ Cro. Jac. 216. a Owen. 3, & 5. Au­thorities are against them, Ideo quaere, Rolls. 2. 368. b. 27 E. 3. 84. b. Co. 7.28. Doct. and Stud. lib. 2. cap. 31.

There hath been some opinions a­mongst the Canonists, What time the Patron has to present. Screne Regi­am majestatem 10. b. chap. Quoniam v [...]rbum devol­vatur. that a Lay-Pa­tron should have but four months to present; but an Ecclesiastical person should have six months, and so it is said is the Law of Scotland; but the Common Law, which rules the point here and with more reason, gives the Pa­trons in both Cases six months.

In the Cases of Deprivation and Re­signation, where the Patron is to have notice, before the Church can lapse the Patron is not bound to take notice from any body but the Bishop himself, Doct. and Stud. ubi supra. or o­ther Ordinary; which must be given per­sonally [Page 10]to the Patron, Co. 6.29. b⸫; Cro. El. 119. Dyer 328. a⸫; if he live in the same County; but if the Patron live in a forraign County, then the no­tice may be published in the Parish-Church, and affixed on the Church door: but such notice must express in certain the Cause of the Deprivation, &c. Dyer 346. a.. Co. 6.29. b⸫; Dyer 346. b⸫; Harp. 3 and 4 El. Dyer 237. p. 29 255. p. 5. and it must be verè, propriè, per­sonalitèr, & non fictè by the Ecclesiasti­cal Laws. There is several other ways, that a Church may become void, of which the Patron is at his peril to take notice, as union, not payment of the Tenths, &c.

CHAP. III. The third Chapter shews, in what Case it is necessary that the Bishop have a Jure Patronatus, and how the same is to be proceeded in, and what is the effect and fruit of the same.

IF two Patrons present to one and the same Church by several Titles, In what casesa Church shall be said litigious. the Church is become litigious; because the Bishop knows not which hath the very true and rightful Title to the same, and by Consequence knows not which Clerk to admit: And I take it the Church is not less litigious, though they both present the same person; because when the Bi­shop admits him as the Clerk of the one, he puts the other out of possession, and consequently to his action; and the Bishop becomes a Disturber, if he who is put out of possession prove to have the better Title.

Now the Bishop in this Case, Where a Jure Patronatus is necessary, and how to be pro­ceeded in. to secure himself, ought to award a Jure Patrona­tus to inquire of the right; which is mere­ly an Inquest of Office in nature of a Writ de proprietate probanda, and does not at all 34 H. 6.38. b⸫; bind the Title or Right of the Par­ty.

But it seems a question in our Books, 35 H. 6.18. b. 19. a⸫; 34 H. 6.12. a⸫; Hob. 317⸪ 34 H. 6.38. 5 H. 7.22. a. it is made a Quaere. whether the Bishop is bound to sue the Jure Patronatus at his own cost and peril, or only at the prayer and at the cost of the Party that prays it, or of both Parties; but the better opinion seems to be, and so is the practice, that the same is sued at the prayer, and at the cost of the one, or both the Parties if they joyn.

Now whereas the Church may become litigious by double or plural Presentati­ons, so it may become more litigeous by the Jure Patronatus; for if two Patrons present, and each of them prays a Jure Patronatus by himself (as they may) and the one Jury gives a Verdict for the ones Title, and the other for the others Title, here the Bishop receives no Direction at all, but the Church still remains litigious.

But here arises another great question, whether the Bishop in this Case may let the Church Lapse, and collate; or whe­ther he be not bound to admit one of the Clerks at his Election, or at his peril. Mr. Serjeant Callis in his reading was of opinion, Callis Read. 3. 21 H. 6.44. a⸪ Quaere. he might refuse both Clerks in this Case, and suffer the Church to Lapse: and so is the Book in 21 H. 6. by Newton and Paston. tamen inde quaere.

And as a Church may become litigious by a Jure Patronatus: 41 H. 6.45. a⸪ so it may become li­tigious after a Jure Patronatus, and a Ver­dict given for one of the Parties; for if a [Page 13] Jure Patronatus be awarded, and a Verdict given for one of the Parties, and before the Patron presents, for whom the Verdict was given, and prays admittance of his Clerk (as ought to do, before the Bishop is bound to admit his Clerk) another presents here; the Church is become litigious de novo, and the Bishop in this Case, as it seems, may award a new Jure Patronatus to de­termine the right of Patronage between the new and the old Patron, for whom the Title was found in the former.

But some have thought, 21 H. 6.44. Callis Read­ing. 29. Hob. 319⸫; that though the Church be not litigious by double or plural Presentations, yet the Bishop, if he doubt of the Patrons Title that pre­sents, may award a Jure Patronatus, and inquire of such Patron's Title, and by that means prevent the surprise, that may happen to other pretenders by sudden ad­mission of the Clerk, and in case the right of Patronage be found for a 34 H. 6.40. a⸪ stranger, the Bishop may admit his Clerk.

But it seems, Hob. 317.. that if the Bishop admit the Clerk, that is presented before the Church becomes litigious by a second Presentation, that the Bishop acquits him­self thereby from being a Disturber; but by this means the Bishop may do great wrong in surprising other Patrons that have right: And the Law doth not so ha­sten the Bishop's proceeding, but that, as has been said, he may take convenirnt time [Page 14]to examine the Clerk, that other preten­ders may take notice of the vacancy.

But though the Church by any of the means abovesaid be become litigious, yet I think there is no doubt but that the Bi­shop may admit either Clerk without a Jure Patronatus, Hob. 317.. but then he doth it at a double peril; for if the Patron, whose Clerk he admits, have not a good Title, or having a good Title do not make it out in a quare impedit, or other Action brought for the Church, the Bishop will be made a disturber.

And it seems likewise, How far the Bishop is bound by a Verdict in Jure pa­tron. that the Bishop is not so bound by the Verdict in a Jure Patronatus, but that he may admit the contrary Clerk, if he see cause, or be sa­tisfied he has the better Title; but this seems to be against Justice and the true in­tent of the Law. 34 H. 6 11. b⸪ Hob. 318 ⸫

And Sir Henry Hobart was of opinion, that an action of the case lyes against the Bishop by the Patron that is so disturbed, if in a quare Impedit he prove to have the better Title, and recover his damages by reason of the delay and trouble the Bishop hath thereby put the Patron to; but then the Bishop must not be made a Defendant in the Quare Impedit: Quaere. but of this quae­re.

Now the manner and form of proceed­ing in a Jure Patronatus is thus: The manner of proceeding in a Jure Patro­natus. The Bi­shop issues forth a Commission under his [Page 15]Seal to his Chancellor, or some other per­sons, whom he pleases, that are expert in the Canon and Ecclesiastical Laws: in which Commission (since the Title of Patronages is determinable at the Com­mon Law) it were not amiss to joyn some Common Lawyer of eminent Lear­ning and Integrity; and these Commissio­ners are by him authorized to summon a Jure Patronatus, and proceed to the De­termination thereof; and then the Com­missioner or Commissioners so authorized issue out a Mandate to some Officer of their own to summon a Jury, which must be one half Clerks, 22 H. 6.29. b.. and the other half Lay-men; and if they refuse being duly summoned to appear, the Commissioners may proceed against the Clergy-men by Sequestration, and the Lay-men by Eccle­siastical Censures to compel an appea­rance.

When a full Jury of Clergy-men and Laicks appear, which must be six of each at least, the Commissioners are to swear first a Clergy-man, and then a Lay-man till twelve be sworn at least of the Jury: But the Commissioners may swear a grea­ter number than twelve of the Jury, if they please or see cause, so always that there be an equal number of Lay-men, and Clergy-men sworn in the whole.

The points inquirable by this Commis­sion are five. Callis Read­ing 29.

1. The points in­quirable in a Jure Patron. Si Ecclesia vacat, & quomodo va­cavit?

2. Quis Patronus ultimò presenta­vit?

3. Quis est verus & indubitatus Patro­nus?

4. Quis praesentare debet ad Ecclesiam nunc vacantem?

5. De Indonitate persona praesenta­tae.

But the main and chief points are the third and fourth, the last resting wholly in the Judgment of the Bishop.

After the Jury is sworn and charged, 21 H. 6.45. a.. the Counsel and Advocates of both Par­ties are to shew their respective Clients Titles, and produce their Evidences to prove the same. And after the Evidence is given on both sides, and Counsel fully heard, the Jury may give their Verdicts forthwith, or the Commissioners may give them time to consider of their Evidence, and may assign them another time and place for the giving their Verdict as in o­ther Inquests of Office; 22 H. 6.29. b.. but I like much better (to avoid being tampered with) that they give their Verdicts forthwith before the Party, unless new Evidence be expected.

The effect of this Suit is no more but for the Bishop's security, The effect of a jure patrona­tus. that he may a­void being a Disturber; for the verdict of this Jury is a sufficient warrant for the Bi­shop to admit and institute his Clerk, for whose title the verdict is given, and the Bi­shop for so doing shall never be made a Disturber, though the other Patron against whom the verdict is given shall after re­cover in a Quare Imp. or other action.

But suppose the Jury will not agree of their verdict, What's to be d [...]ne, if the Ju­ry will not give a verdict. 3 [...] H. 6.18. b &c. and the one half be for the one Patron, and the other half for the o­ther Patron; or, that they refuse to give any verdict at all; or if they find a special verdict, as I suppose they may; the Bi­shop in all these cases is left to proceed at his peril, as though no jure patronatus had issued at all; or perhaps in this case he may discharge the Jury, 34 H. 6.12. a⸪ Callis Read. 29. What's to be done where Coperceners, Joynt-tenants, or Tenants in Common, pre­sent severally. 21 H. 6.45. a⸪ per Ascur. 34 H. 6.40. 5 H. 7.8. 11 H. 4.58. 33 H. 6.32. 1 Inst. 186. b.. and summon a new jure patronatus.

And it is to be observed, that after a verdict found in a jure patronatus for the Patron, the patron must again request the Bishop to admit his Clerk; otherwise, if the Church lapse after six Months, the Bishop may Collate.

But if two Coperceners present several Clerks by the same Title, this doth not make the Church litigious; but the Bishop is bound to admit the Clerk of the elder fister: but this is to be intended where the eldest sister presents alone, and not joynt­ly [Page 18]with any other of the Coheirs.

But if two joyn-Tenants or Tenants in Common present several Clerks, Doct. and Stud. 115. b.. Kite vers. E­vesque Bri­stow P. 7. Jac. C.B. 1 Inst. 186.b⸪ 6 E. 4.10. b⸫; 34 H. 6.40. b⸫; Ʋbi supra. that makes not the Church litigious; for the Bishop may admit the Clerk of which he pleases: or if they do not agree and joyn in presenting a Clerk within the sixth Month, the Bishop may collate.

And note that the Bishop needs not to make Commissioners to inquire De jure patronatus; but he may, if he pleases, do the same himself: If the Commissi­oners neglect their duties. 22 H. 6.30. a⸫; and therefore, if his Commissioners neglect to do their duties, it shall not excuse him, because it was his folly to name such Commissioners. But the opinion of the Civilians seems other­wise: for they say that the party shall name the Commissioners; and if they neg­lect their duties, it shall be at the perad­venture of the party that names them. And though they make a false return, or no return at all, it shall excuse the Bishop; and the party grieved is left to his accord against the Commissioners.

And, Verdict does not bind. 21 H. 6.45. a.. as has been said, the verdict in a jure patronatus does not bind the adverse partie's Title, though it may be some evi­dence for him whose Title is found to be the best. 34 H. 6.38. b..

CHAP. IV. Shews how the Law stood concerning pluralities before the Statute of 21 H. 8. cap. 13. Who are qualified within that Law to have pluralities, and how qualified persons ought to behave themselves in taking the se­cond livings, so that the former may not be void.

A Plurality is where one and the same person obtains two or more spiritual preferments with cure of Souls: What a Plura­lity is. against which there have been several Canons, and they have been alwayes discountenan­ced at the Common Law, Co. 4.90. b⸫; Co mag. ch. 626⸪ vide the Records there cited. and several Complaints have been made against them in Parliament; yet the Pope held them up by his dispensations. How agreeable these dispensations were to God's service; nay how prejudicial they have been to the ad­vance of the Christian-Religion, and are, I leave others to judge; it being no part of my undertaking. Hob. 149.. Concil. tom. 4.221. cap. 29. And though I find a great Judg of this Nation defending of them, yet I find a Canon in the general Council of Lateran against them, in the Year 1215. in these words, Canon against Pluralities. Statutum est quod, quicunque receperit aliquod beneficium [Page 20]habens curam animarum anexam, si prius tale beneficium obtinebat, eo sit jure ipso privatus, & si forte illud retinere conten­derit, alio etiam spolietur, Is quoque, ad quem prioris speciat donatio, illud post recep­tionem alterius conferat cui merito viderit conferendum.

And now let me tell you the fruits of Pluralities out of another Counsel, Tom. 5.368. cap. 64. which is delivered in these words. Res ipsa lo­quitur, The effect of Plural. plura beneficia, potissimum quibus cu­ra animarum submissa est, non sine gravi Ecclesiarum damno ab uno obtineri; cum unus in pluribus Ecclesiis rite officia persol­vere, aut rebus earum necessariam curam im­pendere, nequeat.

I might enlarge much more upon this Subject; but it being collateral to what I design, this last shall serve. And if any body desire further satisfaction upon this Subject, Confil. Tri­dent. 496. I commend him to the Hi­story of the Councel of Trent; where he will find that by the greater and better o­pinion of that Councel, Residence by him that hath a preferment in the Church with cure of Souls is of Divine right; and that therefore the Pope had no power to dispense with non-Residence, the conse­quence of which is, that it is against Di­vine right for any to take more Benefices than one with cure of Souls, because the same person cannot be resident in two places at one and the same time.

But as the Pope by stratagem made the endeavours of all the good men in that Councel ineffectual, so by his frequent di­spensations to take Pluralities without number or measure He made the Ca­nons of the Church of no other effect than to increase his own Revenue by di­spensations. More 119.

But it should seem the Councel of La­teran was received and approved (as to that point) in this Kingdom, Acceptance of a second Li­ving makes the first void. and the Law was always taken, that he that had one Living with cure of Souls, and with­out dispensation accepted another with cure of Souls, made the first void: So that the Patron of the first Church might present a new Clerk, and needed not to stay till the former Clerk should be legally deprived. But in this case the Church doth not lapse till the the end of six Months, to be accounted from the time the Patron had legal notice of the vacancy from the Bishop; but after in­duction the Patron, as it should seem, Co. 4.95. b. 44 E 3.22. a. 9 E. 3.22. a. 10 E. 3.1. 14 H. 7 28. b. 14 H. 8.17. a. F N B. 34. L. 15 E. 3.9. 11 H. 4.37. Cro. Car. 357. Several acts to restrain the Pope. is bound to take notice at his peril: And as to all others but the Patron, the Church remained full till induction into the se­cond Living; and so are all the Books, that seem prima facie to differ, reconciled.

But the Parliament of England, that in all Ages made bold with his Holiness, and to restrain the exorbitances of the Pope and Court of Rome (as the Reader may [Page 22]see, 27 E. 3. cap. 1. 3 R. 2. cap. 3. 7 R. 2. cap. 12. 2 H. 4 cap. 4. 38 E. 3. cap. 1. 16 R. 2. cap. 5. 6 H. 4. cap. 1. 25 E. 3. and Provisoes and 27 E. 3. cap. 1. if he pleases to satisfy himself by the several Acts of Parliament mentioned in the margent against Provisions suing at Rome, impeaching judgments given at the Common Law, Aliens being benefi­ced within this Realm, priviledging re­ligious orders from payment of Tithes, and many other things; and I cannot forbear to observe to the Reader the bold­ness of the Parliament in the sixth Year of H. 4. with his Holyness, where they re­strain the giving of exorbitant and just fees for the investures of Bishops. The act begins thus: Whereas thereis a damna­ble custom in the Court of Rome to take more for the investure of Bishops, &c. Certainly these brave Parliamenteers never expected his Holinesse's indulgence or Pardon, this seeming a sin as high as that against the Holy Ghost to charge the Holy Father with a damnable custom in his Court, The Act against Pluralities. 21 H. 8. cap. 13. Co. 4.79. b.. to use extortion and symony.) I say the Parliament, to prevent the mis­chiefs of these dispensations, made a Law in the twenty first Year of H. 8. That if any Person or Persons, having (that is being instituted) one Benefice with cure of Souls being of the yearly value of eight pounds or above, shall accept and take any other with cure of Souls, and be instituted and inducted into the possession of the same, that then, immediately after such possession had thereof, the first Benefit should be void.

And that it should be lawful to every Patron having the advowson thereof to pre­sent another, and the Presentee to have the benefit of the same, as though the Incum­bent bad died or resigned, and that any licence union or other dispensation contrary to that act should be void.

If this act had gone no further, it had been an excellent Law: But there is so many qualifications in this Law that wholly defeat the benefit of it, since the Nobility are grown so numerous as they are at this day; so that the grievance is now become almost, if not altogether, as great as ever, and deserves a new and stricter reformation; for almost all the greatest and best Livings of the Kingdom are now held by pluralists, and served by mean Curates.

But now let me return to the Act, and let me observe.

That this Act has only provided a Remedy where the first Living is of the Yearly value of eight pounds or above, Cro. cap. 456⸪ Pig. Jac. C.B: Evesque Dur­ham vers. E­vesque Peter­burrough. which must be understood according to the valuation taken in the twenty ninth Year of King E. 1. till the twenty sixth of H. 8. And after that time according to the valuation then returned into the Ex­chequer, Dyer 237. p. 29. Cro. Eliz. 853. Quaere. and now made use of in the first fruits office. But many former Opinions and Books have been, that the valuation ought to be according to the true value. Ideo quaere.

But in case the first Living be under the yearly value of eight pounds, or a sine cura, then the party may accept a second, as he might have done be­fore this act, with a dispensation, which he needs not now go to Rome for, although he be not qualified within this Law.

But by this good Act there are several persons qualified to have and retain Plu­ralities; Who are quali­fied to have Pluralities. and those are of three sorts: 1. by Service, 2. by their Birth, and the 3. by Dignities. And first of those that are qualified by service.

1. Qualification 1 All the King's Chaplains (which are not of his Councel) and of the Queen, Prince, Princess, and Brethren and Sisters, Uncles and Aunts of the King.

2. Eight Chaplains of every Arch-Bishop.

3. Six Chaplains of every Duke.

4. Five Chaplains of every Marquess and Earl.

5. Six Chaplains of every Bishop.

6. Four Chaplains of every Viscount.

7. Three Chaplains of the Lord Chan­cellor, and of every Knight of the Garter and Baron.

8. Two Chaplains of every Dutchess, Marchioness, Countess and Baroness, being Widows.

9. Two Chaplains of the Treasurer and Controller of the King's House; the [Page 25]King's Secretary, the King's Almner, Clerk of the Closet, and Master of the Rolls.

10. One Chaplain of the Chief Justice of the King's Bench, and Warden of the Cinque Ports for the time be­ing.

All these in respect of their Services may purchase license, or dispensations, and take, receive, and keep two Parsona­ges or Benefices with cure of Souls, not­withstanding this Act.

But those of the King's Chaplains, that are sworn of the King's Councel, may purchase license or dispensations, and take, receive, and keep three Parsonages, or, &c. with Cure of Souls.

2. The second qualification is by Birth; Qualification by Birth. that is, the Brothers and Sons of all Tem­poral Lords, and of Knights, born in Wed­lock, may purchase license or dispen­sations, and take, receive, and keep, two Parsonages, &c. with cure of Souls; in which qualification it is to be observed, that no provision is made for Bastards, nor for the Sons of Bishops, Abbots, Priors, &c. and note, in this case the Sons and Brothers of Knights have greater pri­viledg than the Sons and Brothers of Ba­ronets.

3. Qualification by dignity. The third qualification is of certain persons dignified in the Universities; and [Page 26]of that sort are all Doctors and Bat­chelors of Divinity, Doctors and Batche­lors of the Common Laws, which shall be admitted to any of those degrees by any of the Universities of this Realm, and not by grace only; all which may purchase li­censes or dispensations, and take, receive, and keep two Parsonages, &c. with cure of Souls.

And in this act there is a negative pro­viso to this effect, Proviso, that above the num­ber shall not be advanced. That no person or per­sons to whom any number of Chaplains, or any Chaplain by the provisions afore­said is limited, shall in any wise by co­lour of the same provisions advance any Spiritual person or persons above the num­ber to them appointed, to receive, or keep any more Benefices with cure of Souls, than is above limited.

There is another Proviso, Proviso, that they must have Testimonials. that the Chap­lains so purchasing, taking, receiving, and keeping Benefices with cure of Souls, as a­foresaid, shall be bound to have and ex­hibit, where need shall be, Letters under the sign and Seal of the King, or other their Lord or Master, testifying whose Chaplains they be, Boy vers. Sa­veacre. T. 28 El. C. B. ro. 1130. Hughes p. 41. Boy vers. E­vesque Lin­coln & alios T 31 El. ro. 725. C. B. or else not to enjoy any plurality of Benefice by being such Chap­lains. Upon this clause some question has been made, whether a Chaplain can be re­tained within the meaning of this Law by parol; and it seems he may, so that they have such Testimonial, when they pray their dispensation: but the safest [Page 27]way is to have it in writing, and it must be under Hand and Seal.

Now having shewed what persons are qualified within this Statute, I will in the next place shew how the Clerk, that would have the benefit of his qualification within this Law, ought to proceed in the taking a second Living, so that the first may not be void, which is in this manner.

The Person that falls within any of the qualifications within this Law which makes him capable of a plurality, How to pro­ceed in the ta­king of a se­cond Living. and ha­ving obtained a presentation to a second Living, must carry his Testimonial or retainer under the Hand and Seal of his Lord or Master to the Master of the fa­culties, who is to make out his dispensa­tion or Licence to accept the second Be­nefice; which being obtained, he must next have it confirmed under the great Seal of England; and after he has thus obtain­ed his dispensation, and has it confirmed under the great Seal, then, Stat. 25 H. 8. cap. 21. and not be­fore, he is to apply himself to the Bishop of the Diocess where the Living lies for his admission and institution: for though by the Letter of the Act the first Living is not void untill induction into the se­cond Living, First Living void by institu­tion into the Second. the words whereof are as follows (If the party be instituted and inducted in possession of the second Living that then the first shall be void.) Yet to avoid the great inconvenience that other­wise [Page 28]would ensue, it has been held that the first Living is void upon the bare in­stitution into the second Living; Co. 4.79. b. Hob. 166⸫; and so it should seem the Law was before the making of this Act, where the party had no dispensation.

And it is to be observed upon this Law, Which Chap­l [...]ins shall be qualified, where above the number is retained. More 561. Co. 4.90. a⸪ B. vers. Eves­que Glouc. & Saveacre. Anderson. that in case any Lord or other Person, whose Chaplains are qualified within this Law to have two or more Livings incom­patible, do retain his full number of Chap­lains, and after one or more above his number; that in that case the Super­numerary Chaplains, that were retained after such Lord or other Person had re­tained his full number allowed by the Sta­tute, are not qualified by this Law to have pluralities of Livings, although the supernumerary Chaplains be preferred be­fore the other that were first retained: but if a Chaplain qualified within this Law be legally inducted into a second Living with a dispensation as he ought, Dyer 312. p. 88. although his Master be attainted, degra­ded, or removed from his Office, yet he shall retain his Plurality during his life.

But if one be retained Chaplain to any Lord or other Person, The Master dyes, &c. be­fore preser­ment. Co. 4 17 b. whose Chaplains are qualified within this Law, and his Master dies, is attaint, degraded or displac'd before his Chaplain be preferred to a second Living; or if such Lord or other Person discharge such a Chaplain (as he may); in [Page 29]all these cases the Chaplain loses his qualification to have plurality of Livings incompatible.

But if a Dutchess, Marchioness, Co. 4.118. B. The Mrs. mar­ries. Coun­tess or Baroness do retain a Chaplain, and after marries, this shall not take a­way the qualification of such a Chaplain, but that he may have plurality of Li­vings incompatible within this Law as he might have done before.

And if such Dutchess, &c. Cc: 4.119. a.. retains Chaplains, and after marries, and after becomes a Widdow again; yet the first retainer stands good, and was not Coun­termanded by the Marriage or death of the Husband.

And note that there is a Proviso in this Act, that though a Dutchess, Marchio­ness, Countess, or Baroness, do Marry a Husband under the degree of a Noble Man or Baron, that yet nevertheless she may retain two Chaplains which shall be qualified within this Law.

And it is declared by this Act, What prefer­ments are not within this Law. that Dea­naries, Arch Deaconrics, Chancellor­ships, Treasurerships, Chaunterships or Praebendaries in any Cathedral or Colle­giate Church, or any Parsonage that hath a Vicar indowed, or any Benefice perpe­tually impropriated, are not to be esteem­ed Benefices with cure of Souls within this Act.

And if any Duke, Lord, or other Per­son, [Page 30]whose Chaplains are qualified within this Law, shall have a double capacy to qualifie his Chaplains; as if a Duke, &c. be made Lord Warden of the Cinque Ports, Co. 4.118. a. or a Baron; Master of the Rolls, Knight of the Garter; or, &c. in all these cases such Duke, Baron, &c. can but qualifie his number of Chaplains ac­cording to his best qualification only.

And if the Eldest Son of a Duke, Chapl. returned in the life of the Father. Co. 4.902⸪ Mar­quess, &c. retain Chaplains in the Life time of his Father, who after dies, and the honour descends upon such Son; yet this retainer will not qualifie his Chaplains to have pluralities within this Statute, be­cause at the time of the retainer he was not capable to qualifie them. Et quod ab initio non valet, tractu temporis non conva­lescit.

If a Duke, Lord dischar­ges Chaplains after they are prefer'd. Co 4.90. a ⸪ Marquess, &c. retain his full number of Chaplains which are ad­vanced, and then discharge them; yet he cannot during their Lives qualifie any o­ther within this Statute.

But if a Duke, A greater number of Chapl. retained together. Co. 490 a⸪ Dyer 312. p. 88. Marquess, &c. that has power within this Act to qualifie Chaplains, at one instance of time retain double his number of Chaplains, or any supernumerary Chaplains in that case; those only shall have the benefit of quali­fication that are first prefer'd. Quia in equali jure melius est conditio possiden­tis.

If one that is qualified within this Statute take a second Living incompatible, Co. 4 79. B. Dyer 312. p. 88. and be instituted or inducted into the same before he have obtained a dispensa­tion, the first is void; though Dyer makes a quaere of it.

And note that it hath been resolved, This Law is not dispensa­ble. Dyer 351. B⸪ Co. 4.90. B.⸫; Dyer 377. B. Co. 5. 102. B⸫; Hob. 168. Apluralist neglects to read the 39. Art. the first Li­ving is not void. Hob. 157 ⸫ that the King himself cannot dispence with this Law.

But if one that is not qualified within this Law to have two Livings incompa­tible shall obtain a second Living, and be inducted into the same, and after neg­lects to read the Articles of Religion within the time limited; or doth any other Act that makes the latter void ab initio; in such case the first Living shall not be void within this Law.

And if a Parson, &c. that is qualified within this Statute to have plurality of Livings incompatible, be made a Bishop, his qualification ceases, so that after he cannot take two Benefices incompatible by force of such qualification; but if he had two Livings before he was made Bishop by qualification and dispensation within this Statute, he may retain them by Com­mendam: and although he were the King's Chaplain, it alters not the case; for by the acceptance of a Bishoprick he ceases to be the King's Chaplain within this Law.

And if a Parson have one Living in­compatible, Parson's Law l. 2.14 & 15. Ʋniting a Li­ving is a Plu­rality. he cannot obtain another with Cure to be united, unless he be qua­lified and have a Dispensation, but that the first will be void.

Mr. Parson and Vic. of the same Church si, &c. Hughes in his Parsons Law puts two Cases, which he is of opinion are out of danger of this Law. The first is, where there is a Parsonage and Vicarage indow­ed, and the Parson without Dispensation or Qualification accepts the Vicarage: and he conceives, that notwithstanding that these are two several Advowsons and Benefices, and that several Quare Im­pedits may be brought of them, and that several actions are maintainable by the Parson and Vicar concerning their possessi­ons; that yet nevertheless the presenting of one person to both is no Plurality within this Statute or the Canon: because the Parson and Vicar have both but one Cure of Souls; besides there is a Proviso in the Act, that no Parsonage with a Vi­carage endowed shall be accounted a Be­nefice with cure of Souls within that Act.

But his other Case seems more doubt­ful; 2. Rectories in one Church. and it is put where a Church has two Rectories, and each has cure of Souls per se, and are incompatible, and one person obtains both these Livings without quali­ficaton or dispensation. This Case he con­ceives to be both out of the danger of [Page 33]this Act and the Canon. 1. Because it is not in pluribus Ecclesiis. 2. When there is several Advowsons in one Church, nei­ther Parson hath the whole cure of Souls, and the words of the Statute are, having one Benefice with cure of Souls of the value of eight pounds takes and accepts another benefice with cure of Souls, &c. But here the Church is one and the same, and the cure of Souls the same; and therefore as he conceives neither within the danger of the Statute or Canon: but in a private re­port that I have, this very point came in question in the latter end of the Queen's time, and the Reporter says, Cooper vers. Beauchampe. P. 37. El. C.B. that Walmes­ly and Beaumont were of opinion, that this Case was within the Stat. but Ander­son doubted, and seemed to incline to the contrary. Ideo quaere inde.

By the Resolutions of the several Ca­ses before mentioned it is worth Obser­vation, There is now a 1000 qualifi­fications at least in Eng­land by Ser­vice, besides the Chaplains of the King, Queen, Princes of the blood, and Dowagers, and probably as many more by birth and dignities; and there is about 4300 Livings in England of 10 pound per annnm in the King's books and upwards, and it is not the least Livings the Pluralists catch at, though at first they crept into the Church, where Livings were so small they were not able to maintain a Minister, and if the 41 Canon of King James was ob­served, many mischiefs in this Case might be prevented. how the Judges of the Common Law have endeavoured to advance this Law, and restrain the qualifications: And yet when all is done this Law produces little more effect, than the transferring [Page 34]the power of Dispensations in this case from the Pope, and scattering it amongst the Nobility and others; and how many Pluralists is there in England, that hard­ly see either of their Livings in a year? so that generally the best Livings in the Kingdom are served with poor Curates, and no hospitality kept: A thing worth the Consideration of a Parliament.

CHAP. V. The fifth Chapter shews what Symony is, and who shall be said to be guilty of it, and what are the dangers en­suing thereupon.

HAving shewed my Clerk how to ob­tain a Benefice, and likewise those which are qualified how to take a second Living; It rests that I should shew them, what is to be done after Induction to confirm them in their benefices: But be­cause Symony is not only scandalous to the Clerk that is guilty of it, but also ve­ry dangerous; and I told my Clerk in the second Chapter, that he must obtain his [Page 35]Presentation without any corrupt or Sy­moniacal Contract; I thought it fit by the way to let my Clerk know not only what Symony is, but likewise the dan­ger that attends it: What Symony is. Papormit, c. Nemo extra eo, &c. Tho. Aq. 2o. 2ae q. 100. Art. 1. Cro. El. 789. Tho. Aq. 2o. 2ae. q. 100 Art. 4o. Symony by the Canonist and School-men is defined to be Studiosa voluntas emendi vel vendendi ali­quid spirituale aut spirituali annexum e­pere subsecuto. And Thomas Aquinàs says, Quod Simonia dioi videtur à Simone Ma­go, qui donum Spiritus sancti emere volu­it, ut ex venditione Signorum quae per eum fierent multiplicatam pecuniam lueraretur; & sic illi qui spiritualia vendunt, confor­mantur Simoni Mago in intentione, in actu vero illi qui emere volunt: Illi autem qui vendunt in aciu imitantur Giezi discipu­lum Helisaei, de quo legitur 4 Reg. cap. 5. quod accepit pecuniam à leproso mundato, unde venditores Spiritualium possunt dici, non solum Simonaici, sed etiam Giezitae. And St. Gregory says, In Registro hab. 1. q. 10. Canon, Qui­cunque. Quicunque sacros or­dines vendunt aut emunt, Sacerdotes esse non possunt, ut scriptum est, Anathema danti, Anathema accipienti haec est Simo­naica haeresis: Quomodo ergo, si anathemati­cati sunt, & sancii non sunt, sanctificare a­lios possunt? Et cum in Christi corpore non sunt, quomodo Christi corpus tradere vel ac­cipere possunt? qui maledicius, benedicere quomodo potest? And the same Holy Fa­ther farther says, Ibid. Canon Presbyter. Si Presbyter per pecuniam Ecclesiam obtinuerit, non solum Ecclesiam [Page 36]privetur, sed etiam Sacerdotii honore spolie­tur. And it appears clearly, that the ve­ry intention to buy Spiritual gifts or pre­ferments carries with it the guilt of Simo­ny as well as the act it self; And there­fore the Holy Apostle said to Simon Ma­gus, Act. Apost. c. 8. v. Cor enim tuum non est rectum coram Deo; poenitentiam itaque age ab hac nequi­tiatua, & roga Deum si forte remittatur ti­bi haec cogitatio cordis tui: But this is in foro conscientiae only, and not punishable by any humane Laws, unless it proceed to the Act.

Symony by the Canonist is distinguished into Simoniace & Simoniacus: Division. Canons against Symony. The first is where the Clerk comes in by Symony, whereunto he is not party or privy: Simo­naicus is he which obtains a spiritual pre­ferment by a corrupt and Symoniacal Contract, to which he is party or privy, and consenting.

Against this Corruption in the Church many Canons have been made, amongst which I shall instance only two, and those provincial ones of our own Nation. The first was made in the year of our Lord 1229 in the time of Richard Wethershead Archbishop of Canterbury, and is as fol­lows. Lindwood c. Nal [...]i liceat Ecclesiam, &c.

Nulli liceat Ecclesiam nomine dotalitatis ad aliquem transferre, vel pro praesentati­one alicujus personae pecuniam vel aliquid a­liud emolumentum pacio interveniente re­cipere: [Page 37]quod si quis fecerit, & in jure con­victus vel confessus fuerit ipsam tam Regia quam nostra freti authoritate patronatu e­jusdem Ecclesiae imperpetuum privari statui­mus: but it was not sufficient by a Canon to deprive a man of his Freehold or in­heritance, be the word imperpetuum taken for life, or for ever, as it imports; nei­ther was this Canon ever put in execution or attempted so to be, that I find.

The other Canon I made mention of, I find amongst the Canons of Othobonus, the Popes Legate here in England, which is to this effect.

Quia plerumque evenire didicimus, quod, Chap. Quia plerumque. cum ad vacantem Ecclesiam fuit praesenta­tio facienda, is qui praesentandus est prius cum patrono de certa Summa de bonis Eccle­siae sibi annuatim solvenda pasciscitur, & sic pactus ad Ecclesiam praesentatur. §. Nos huic actui tam Simoniae vitium quam Eccle­siae dispendium ingerenti occurrere intenden­tes, universas promissiones & pactiones hu­jusmodi penitus revocamus, & eas imposte­rum fieri districtiùs inhibemus: Et si factae fuerint, vires aliquas decernimus non ha­bere.

But this Canon was of as little effect as the other, as to the making the Con­tracts void, which were only determina­ble at the Common Law, where this Canon could not be pleaded in Bar. I have mentioned these two Canons not for [Page 38]the validity or use so much as to satisfie the Reader, what Provincial Canons we have against Symony, and to how little effect they were before the Statute of 31. Cro. El. 788, 789⸫; Per Warbur­ton. Eliz. But there were some general Ca­nons of the Church of greater force, whereby Simoniace is punished by Depri­vation, and Simoniacus by Deprivation and perpetual disability Per Bullam Sixtinam pri­vatur ipso fa­cto de omnibus dignitatibus, beneficiis, of­ficiis, & effi­citur inhabilis ad omnia. 3 Inst. 1654 Tho. Aqu. 2o. 2ae. q. [...]00. art. 1 Sect. 2 St. Aust. de h [...]eresibus in principio. St. Greg. in Reg. hab 1. q. 1. &c. d. l. Stat. 31. Eliz. cap. 6. Stat. Against Symony., not only as to the Church he was presented to upon a Symoniacal Contract, but also to all others: and being malum in se, it is not dispensa­ble either by the King or any other.

And it has been held by some of the Fathers to be a Heresie, if not the Sin a­gainst the holy Ghost: but neither the greatness of the sin nor the severity of the Canons were sufficient to restrain this evil in the Church, till the Parliament of England took it into their Care, and in the 31. Eliz. it was inacted.

1. That if any person or persons for any Sum of money, reward, gift, profit or bene­sit directly or indirectly, or for or by reason of any promise, agreement, grant, bond, Co­venant, or other Assurance for any Sum of Money, reward, gift, profit, or benefit what­soever directly or indirectly shall Relates to Patrons. present, or This to Bi­shops. collate any person to any Benefice with Cure of Souls, Dignity, Prehend, or Living Ecclesiastical, &c. or Donatives. give or bestow the same for or in respect of any such corrupt couse or consideration, that then every such [Page 39]Presentation, Collation, gift and bestowing, and every admission, investure and inducti­on thereupon shall be utterly void, &c.

And that the Queen, her Heirs and Successors to present, collate, &c. for that one Turn only.

And that every Person, &c. Penalty. that shall give or take any such Sum of Money, &c. or that shall take or make any such Promise, &c. shall forfeit and lose the double value of one years profit of every such Benefice. And the person so corruptly taking any such Benefice shall thereupon and from thence­forth be adjudged a disabled person in Law to have and enjoy the same Benefice, &c.

2. And further, Against Preci­pitate admissi­on or Institu­tion, &c. that if any Person shall for any sum of money, reward, &c. (ut supra) directly or indirectly (other than for small and lawful fees) or for or by reason of any promise, &c. admit, insti­tute, install, induct, invest, or place any Person in or to any Benefice with cure, &c. That then every Person so offending shall forfeit and lose the double value of one years profit of such Benefice, &c. and that the said Benefice, &c. shall be eft soon void, &c. And that the Patron, or person to whom the advowson, &c. shall and may by virtue of this Act present, or collate, &c. as if the person were naturally dead; but no lapse hereby to incur till six Months after no­tice.

[Page 40]3. Against cor­rupt resignati­ons and Ex­changes. And if any Incumbent of any Bene­fice with cure of Souls do or shall cor­ruptly resign or exchange the same; or corruptly take for or in respect of the re­signing or exchanging of the the same, di­rectly or indirectly, any pension, sum of Money, or benefit whatsoever; that then the giver and taker of any such sum, &c. corruptly shall lose double the value of the sum so given taken or had; the one half to the Queen, &c. and the other Moiety to him that will sue for the same, &c. in any of her Majestie's Courts of Record, in which no essoine, &c.

4. Ecclesiastical Censuressaved. Provided, that this Act shall not restrain any censures Ecclesiastical, &c.

5. Symony in or­daining and giving Orders to preach. And further it is provided, that if any Person shall receive, or take any Money, Fee, reward, or any other profit directly or indirectly; or shall take any promise, agreement, Covenant, Bond or other assu­rance, to receive or have any Money, Fee, &c. direcily or indirectly, to him or themselves, or any other of their, &c. Friends (all lawful and ordinary Fees excepted) for or to pro­cure the ordaining, or making of any Mi­nister, &c. giving any Order and License to preach, shall lose forty pounds; and the Minister so made ten pounds. And that if such Minister within seven years next after such corrupt entring into the Mi­nistry, &c. shall accept or take any Bene­fice, [Page 41]Living, or promotion Ecclesiastical, the same Living after induction, &c. to be void. And that the Patron may present, &c. as if the party so inducted were natu­rally dead; the one half of the said for­feitures to be to the Queen, &c. and the other half to the Informer to be recovered (ut supra.)

And I do not observe that the corrupt Patrons were in danger to suffer by any Law or Canon before this Law was made; Canons against Law. for, as I said before, his right could not be taken away by a mere Canon not confirmed by Parliament: and before this Law was made the Incumbent that came in by Symony held the Living which he obtained by Symony untill he was legally and judicially deprived by Sentence Ecclesiastical, wherein he often escaped for want of such proof as the Spiritual Laws required; but this Statute strikes at the root, and makes as well the presentation, as the admission institution and induction void: So that if this Sta­tute had not given the presentation to the Queen, the true Patron might have pre­sented a new Clerk; or in his default the Church would have lapsed. But by this Act the corrupt Patron does not only lose the presentation to the King pro hac vice; but also two years value of the Church, 3 Inst. 154⸫; not according to the valuation in the King's Books in the the first-fruit Office; [Page 42]but according to the true and utmost value of the Church.

But if one that has no right to pre­sent shall by means of a corrupt and Symoniacal agreement present a Clerk, 3 Inst. 153⸪ who is by his presentation admitted in­stituted and inducted into a Church; yet this shall not intitle the King to present: for the Act of Parliament makes all void; but a Usurper cannot forfeit the right of another in whom there is no fault.

Note that the Patron shall lose his pre­sentation within this Law, Co. 12.74⸫; although the Clerk be not privy to the corrupt Con­tract.

And it should seem by the penning of this Act, that the forfeiture of the dou­ble value of the Church is incurred by the corrupt contract only; but the pre­sentation is not forfeited to the King, unless the Clerk be de facto presen­ted or collated upon such corrupt Con­tract.

And it matters not whether the Incum­bent that comes in by a Symoniacal con­tract were privy thereunto or not, Clerk not Pri­vy to the Sy­mony. as to making the Church void; but the great question is, whether the Clerk that is pre­sented upon a Symoniacal contract, to which he is neither party nor privy, be disabled for that turn to be presented by the King to that Church.

I have seen the Report of a Case in the latter end of the Reign of King James, Fowler vers. Lapthorn P. 17. Jac. B. R. where it was adjudged, that if a Clerk were presented upon a Symoniacal Con­tract to which he was not party or privy, that yet notwithstanding it was a perpe­tual disability upon that Clerk as to that Living.

And in the Case of Baker and Rogers, Cro. El. 788. M. 42, and 43 El. B.R. The case was, Baker agreed, the Church being void, to give the Patron 180 l. for the Presentation, who presented his Brother, who knew nothing of the corrupt Contract till after Indu­ction: and though it was clear, that the grant of the Presentation during the va­cancy was merely void, and that Baker presented as an Usurper; that yet notwith­standing the Clerk was in by the corrupt Contract; because it was not to be inten­ded, that the Patron would have suffered the Usurpation, had it not been forthe corrupt Contract: and there it should seem by Mr. Justice Warburton, that the Clerk was disabled quoad hanc.

And in a Cause between the King and the Bishop of Norwich Cole and Sair, Cro. Jac. 385. Bulst. 3.92. Sir George Crook, who was a Counsel in the Cause, reports, that Sir Edward Cook affirmed it had been adjudged, that if a Church be void, and a stranger contracts for a Sum of Money to present one who is not privy to the agreement, that not­withstanding [Page 44]the Incumbent coming in by the Symoniacal Contract, is a person disa­bled to enjoy that Benefice, although he obtain a new Presentation from the King; for the Statute, as to that Living, has dis­abled him during Life.

I must acknowledg, if the Law be so taken, it is very severe; but let us hear Sir Edward Cook himself speak, 3 Inst. 154⸫; and he in his Comment upon this Statute says, that it was adjudged in the before mentioned Case of Baker and Rogers, that where the Presentee is not privy nor consenting to any such corrupt Contract, as is forbidden by this Statute (because it is no Symony in him) there the Presentee shall not be ad­judged a disabled person within this act; for the words of the Statute are (And the person so corruptly giving): So as he shall not be disabled, unless he be privy to the Contract; and so says he there it was re­solved. M. 13. Jac.

And Sir Edward Cook in that Book, Co. 12.101. that goes under the name of his twelfth Report, and without doubt was his own, reports, that it was so adjudged in the case of Doctor Hutchinson Parson of Kenne in Devonshire by the whole Court, that if a Clerk be presented upon a corrupt con­tract within this Statute, although the Clerk be not privy thereunto; yet the presentation admisson and induction are all void within the Letter of the Statute: [Page 45]for the Law intended to inflict punish­ment upon the Patron, being the Author of this corruption, by the loss of his presentation; and upon the Incumbent, who came in by such a corrupt Patron, by the loss of his Living, although he never knew of the corrupt Contract; but if the Presentee were not cognizant of the corruption, then he's not within the clause of disability within the same Statute; and so (says he) was the opinion of all the Judges of Sarjeant-Inn in Fleet-street. Mich. 8. Jac.

And it seems to me upon the penning of the Statute, that this opinion is more rational than the former, for the words of the Statute are; That the Person so cor­ruptly taking procuring seeking or accept­ing shall, &c. from thenceforth be ad­juged a disabled Person in Law to have or enjoy, &c. And though the Incum­bent in this case take and accept the Bene­fice upon the corrupt contract, yet as to him it is not corrupt. But this being a point thus controverted, Quaere. I shall not take upon me to determine, but leave it to the Judgment of the more learned.

I shall in the next place shew what Contracts have been held Simoniacal with­in the meaning of this Law. What Contracts shall be said Symonical.

In a Cause between Doctor Graunt and one Bowden, Hill. 16. Jac. ro. 667. C. B. it was held (upon an Evidence to a Jury) that where two [Page 46]Parsons agreed to change their Livings, and the one promised his Patron, that if he would present the other with whom he was to exchange, that he should make the Patron a Lease of his Tithes at such a Rent; and this was held Symony, although the other was not privy to the Contract, he making the the Lease after.

The Father in the presence of his Son being a Clerk purchased the next advow­son of a Church, More 916. Cro. El. 685. Smith vers. Shelburne. the present Incumbent of the Church being sick, and not likely to live, who soon after died, and he presented his Son: and this was held Symony within this Statute; but if this had been done in the absence of his Son, it had not been Sy­mony, because the Father is bound to pro­vide for his Son. quaere of the diffe­rence.

And by Hutton it was held Symony to purchase the next Advowson, Winch 63. Sheldon vers. Brett. Hob. 165. the Incum­bent being sick.

In the case of one Winchcombe against the Bishop of Winchester and Puleston the case was, one Say bargained with the Patron (the Incumbent being sick) for ninety pounds to present him when the Church should be void, and for the bet­ter assurance take a Grant of the next a­voidance to Friends in trust; the Incum­bent died, Say was presenred, and this was held Symony within this Law.

There is of late time a practice intro­duced by corrupt Patrons, that, Bonds for Re­signation. if not nipt early in the budding, will make this good Law of no effect; I mean the ta­king Bonds for resignation. And this practice took its rise from two cases in Sir George Crook's Reports.

The first was between Jones and Lau­rence, 8. Jac. The Case was thus: Cro. Jac. 248.274. Jones had a Son which he intended to be a Cler­gy Man, and having obtained a Presenta­tion from Queen Eliz. for the Church of Streetham agreed with the Defendant that he should be presented, so that he would resign when Jones his Son was qualified for the Living; whereupon the Defen­dant entred into a Bond of a thousand Marks penalty to the Plaintiff upon this condition (having first recited the agree­ment) that if the Defendant within three Months after request should abso­lutely resign his said Benefice, that then &c. And in an action of debt brought upon this Bond the Defendant pleaded non requisivit, which was found against him; and in arrest of Judgment it was moved, that this Bond was made for the performance of a Symoniacal contract, and therefore void; but notwithstand­ing the Court gave Judgment for the Plaintiff, and two reasons are given for the Judgment; the first was because there was no averment of the Symony, [Page 48]second that it was not material as to the Bond, because that Statute did not make the Bond or Contracts void, but only the presentation, &c. for this I clearly infer from the conclusion of the case. But I confess the sense of the Court was, that in truth if a man be preparing a Son for the Clergy, and have a Living in his dis­posal which falls void before his Son be ready, he may lawfully take a bond of such person as he shall present to resign, when his Son is become capable of such Living; and I have nothing to say a­gainst that opinion, but it is very just and reasonable, nature obliging that every one should take care for his posterity: but if a Patron take a Bond absolutely to resign upon request without any such cause as the preferment of a Son, or to avoid plura­lities, or non-residence, or such reasona­ble cause, but only to a corrupt end and purpose to exact Money by this Bond from the Incumbent, or attempt it, though perhaps the Bond may be good against the Person that entred into it; yet I am clear of opinion for my own part, that the said Bond makes the Church void, and gives the presentation to the King; and it should seem in Jones and Laurence's case, that if Symony had been averred, it would have been left to a Jury to have adjudged what the intention of the corrupt Patron was.

The other Case upon which these sub­til Simonists build, Cro. Car. 180. Hur. in Jones 220. was between Babbing­ton and Wood, 5 Car. 1. B. R. where the Case was likewise in debt upon an Obliga­tion with a Condition, that whereas the Plaintiff intended to present the Defen­dant to such a Living, that if the Defen­dant upon request after his admission should resign, that then the Bond to be void, &c. Upon Oyer of this Bond and Condition, the Defendant demurred, and Judgment was given for the Plaintiff: But all the Court conceived, that if the Defendant had averred, that the Obliga­tion had been made with intent to exact money, make a Lease, &c. which in it self had been Simony; then upon such a Plea peradventure it might have appeared to have been Simony, and then it might have been a question, whether the Bond had been good or no; but upon this De­mur it did not appear there was any Si­moniacal Contract, and such a Bond might be made upon a good and lawful design, as the preferment of a Son, as in Jone's and Laurence's Case before, to avoid non-Residence, Pluralities, &c. So that it appears by both these Cases, that Bonds taken upon prudent and just ends to re­sign are non-Simoniacal; but where such Bonds are taken upon corrupt designs, and it be made appear by any subsequent practice or action, it is clearly Simony, [Page 50]as if the Bond had been expresly to pay money; for what difference is there be­tween a Bond expresly to pay money, and a Bond to resign (which is to pay money, if the Patron say, either pay me so much or resign when all the world knows in such a Case the Parson must pay the money, or resign) and be undone? And the world shall never perswade me, that those reverend Judges that gave these Judgments ever intended further: and I hope that those reverend Judges, that now supply their places, will discountenance and discourage such practices that tend so much to the ruine of the Church and Religion; for I know no Law that tends more to the ad­vancement of learned and religious men than this Law doth, and therefore ought to have a benign construction to the end it was designed.

I find a Case reported, Noy. 22. T. 15 Jac. ro. 2051. C. B. I cannot say that is by an Authentick hand, but such as it is I will give it the Reader: it was between Sir John Pascall and one Clerk in the 15 year of King James; upon evidence to a Jury it was held, that such a Bond was Simonia­cal, but the Circumstances not appearing in the book, the Case can be of no great Authority.

But before I shake hands with these Bonds for Resignation, it will be conveni­ent I give my young Clergy-man some cautions against them; for it is an old [Page 51]saying, the Resetter is worse than the Thief, for without Resetters there would be sew theeves.

And 1. Advice against Bonds for Re­signation. I hold it a great disreputation for any Clergy-man to give any such bond, which may have the least tincture of Simo­ny; nor do I believe any man of worth will do it, unless it be upon such reasons as aforesaid.

2. If such Bond carry with it a Simo­naical corrupt design, it makes the Clerk no less guilty of Simony than the cor­rupt Patron; and then the Clerk not on­ly loses his Living by this Statute, and is for ever incapacitated to have it by any su­ture Presentation, and by the Canon-Law is to be degraded and incapacitated to all other.

Lastly, if he do not resign upon request, 3 Inst. 153. Margine Noy 72. he is subject to the whole penalty of the bond; for Simoniacal Bonds, Contracts, &c. are not made void by this Act, but on­ly the Presentment, &c. And so you may observe a difference between malum in se, and malum prohibitum by the Statute, or by the Canon-Law, whereof the Judges at Common Law take no notice.

It is now to be considered, What Cove­nants and a­greements are within this Law. what Cove­nants or Agreements shall be said to be Simoniacal within this Law.

If a Father-in-Law upon the marriage of his Daughter covenant with his Son­in-Law without any consideration, Cro. [...]ar. 425. but [Page 52]voluntarily, that when such a Church falls void, which is in his gift, that he will present him to it, this is no Simony within this Law; but it should seem, that such Covenant in consideration of marri­age, or any other consideration, had made it Simoniacal.

So where the Patron took a bond from the Presentee to pay 10 l. Noy 142. Baker vers. Mountford. yearly towards maintainance of his Predecessor's Son, whilst he remained in the University un­preferred, was held no Simony: And in that Case it was said by Foster Justice, that it was adjudged in the Earl of Sussex's case, where the Patron took a Bond of the In­cumbent to pay 5 l. per annum to the Wi­dow of his Predecessor, it was not Simo­ny; these were good charitable Resoluti­ons; sed quaere rationem inde; and Foster said, that notwithstanding great opposition in that Case, the Parson enjoyed the Living at that time.

In the next place it will be fit to consi­der, what Church-preferments are within this Law; the Statute only names Bene­fices with Cure of Souls, Dignities in the Church, Prebends and Livings Ecclesiasti­cal. The word Benefices with Cure of Souls seems chiefly aimed at Parsons and Vicars in Churches parochial: Dignities comprehend Arch-bishops, 3 Inst. 155⸪ Bishops, Arch­deacons, Deans, Chauncellors, Treasurers, Chaunters, Presenters, &c. For Dignities [Page 53]Ecclesiastical are defined by the Civilians to be Administratio cum Jurisdictione ali­qua conjuncta; Duarynos de sacris Eccles. ministr. & be­neficiis. lib. 2. c. 6. Fletcher vers. Machaller T. 7 Car. 1. B.R. Prebends are particularly named and Livings Ecclesiastical are words of a large extent, and draw in Donatives within the penalty of this Law, as hath been adjudged, though they have no cure of Souls.

Having held the Reader something long in my Discourse upon the matters relating to the first paragraph of this Sta­tute, I shall after some general Observa­tions upon it draw to a conclusion.

And first it is to be observed, Who may take advantage of Simony, quod nota. that where any Clerk is in by Simony, or any other dignified person, every stranger as well as the King may take advantage of it: and therefore if the Parson, Vicar, or other dignified person shall bring any action for the Tithes or other things belonging to his Church; Sir John Bowse vers. Wright. P. 17. Jac. Hob. 167, 168, 177. Contract not executed. the Defendant may avoid the action by proving that the Plaintiff obtained his preferment by a Simoniacal Contract.

And note, that a Simoniacal Contract, where the Party is not presented in pur­suance of it, is not within the penalty of this Law; but it should seem, that if one that has no right present a Clerk upon a Simoniacal Contract, Hob. 167. he is within the pe­nalty though an Usurper, but not, as hath been said, to give the King the Presenta­tion.

It hath been a question, Simonist dyes Possessed, if the K. lose the turn. Hob. 166⸪ if the Clerk which comes in by Simony dye in posses­sion of the Church, whether the King should lose his Presentation: but it hath been resolved that he shall not; for the Statute makes the Presentation, admission, institution, and all void; so that the Church was never full of an Incumbent, & nullum tempus occurrit Regi.

And note, Simony and Pa­tron and Clerk free. Bath vers. Potter p. 17. Jac. B.R. there may be Simony, and neither Patron nor Clerk consent or be privy to it; and yet the Church for that turn is by Statute given to the King: if the Clerk be presented by the means of such corrupt Contract, though neither Patron nor Clerk were privy or consenting to it; so the King, though he himself cannot be guilty of Simony, may present upon a Si­moniacal Contract between others, and such Presentation is void by this Act.

Suppose a Clerk be presented upon a Si­moniacal Contract, Pardon of Si­mony the effect. and then the King or Parliament, that is the King in Parliament with the Assent of his Lords and Com­mons, pardons all Simony by express or general words, Hob. 167⸪ though this may pardon the penalties, yet the Church remains void.

I shall now conclude this Paragraph with a saying of a holy Father of the Church, De ministeriis & hab. viz. St. Ambrose upon this Subject: Cum ordinaretur Episcopus quid dedit? Canen cum ordinar. au­rum fuit: quid perdidit? animam suam. Cum [Page 55]alium ordinaret quid accepit? aurum fuit: quid dedit? Leprafuit.

I am now come to the second Para­graph of this Statute, 3 Inst. 155⸪ The reason of the Paragraph against preci­pitate Admiss. which Sir Edward Cook (who was a member of this Parlia­ment) tells us was added to avoid hasty and precipitate admissions, institutions and inductions, &c. to the prejudice of those that have right to present, and there­by putting them to their actions to reco­ver their rights, and there is seldom bribes (as I may say) in this Case given, where the Patron has a good and sure Ti­tle.

The taking or giving above the usual Fees in this Case is as well dangerous to the Clerk as the Officer: for the Church shall be void, so that the Patron, that has right to present must present again; and the Usurper and Officer, that takes more than his Fees for such expedition, forfeits double the value of the Benefice for a year, not according to the rate in the first fruit Office, but according to the very true va­lue: but upon this Clause no disability rests upon the Incumbent, but that he may by the true Patron be presented again; nor lapse, till after six months from the time of notice given by the Bishop, &c.

And observe the penning of this clause: When the Church shall be void. it is not that the Church shall be ipso facto void, or that the Institution, &c. should be void; but that it shall be eft soon void, and [Page 56]that the Patron shall present, as if the per­son were naturally dead: so that it should seem the Church is once full by this insti­tution and induction; and hence there may some doubts arise, whether the Church shall be void ipso facto, or whether it must be avoided by Ecclesiastical Sentence of Deprivation: but it seems to me, that the Patron may present immediately without any Sentence Ecclesiastical.

3. Resignation and Exchan­ges Simoniacal. The third Paragraph of this Sta­tute is made against such as shall corrupt­ly for money, pension, or other benefit, re­sign or exchange their Livings with any other: in that case as well the giver as the taker forfeits double the Sum of money, &c. given and received; but this clause works no advoidance or disability in the person that is guilty.

The fourth Paragraph preserves the Ecclesiastical Jurisdiction, The Ecclesia­stical Jurisdi­ction saved. that they may proceed judicially to censure the Parties for their corruption in buying and selling Church-preferments: wherein as should seem the Ecclesiastical Laws in some cir­cumstances are more severe than this Sta­tute; for by that Law, as I take it, he that is convicted of Simony, Cro. El. 788, 789. is after inca­pacitated not only to that Living, but to all other Church preferments; but of this be informed by the Canonist. But I know no reason, why those corrupt Patrons, that take bonds for resignation without any [Page 57]reasonable cause apparent, may not be cal­led to an account before the Ordinary, and punished by Ecclesiastical censures, if it appear, they were taken to any corrupt end, or if afterwards he shall endeavour to exact money by colour of any such bonds.

I am now come to the last Paragraph of this Statute, Corrupt giving Orders and li­censes to preach. which is also a two-edged Sword, that punishes as well the giver as taker of greater fee or reward than the ordinary and just fees for, or for procu­ring, any person to be ordained or made a minister, or giving any order or license to preach, &c. but is more severe upon the Clergy-man than the Officer; for the Of­ficer only forfeits forty shillings, but the Clergy forfeits ten pounds, and all the Livings he shall take within seven years, are made void by this Law after Indu­ction; so that for seven years an Incapa­city lyes upon the Clerk; how careful ought Clergy-men to be, what Fees they give for their Orders? And note the man­ner of the penning of this paragraph, that the Church shall not be void till after In­duction. The first Paragraph makes the presentation, institution and induction, and all void: So that the Church in that case is never full. The second Paragraph makes it void, not till after the corrupt admissi­on, institution, installation, induction, in­vesture or placing; and this not till after [Page 58]induction, by which means the Grantee of the next avoidance that presents such Clerks, cannot present again: and so it is where the Patrons present by turn, Co. 8.102.a⸪ the presenting such a Clerk will satisfy a turn, if inducted.

Lastly, How the forf. are to be reco­vered. observe all pecuniary forfeitures and penalties within this Statute are given to the King and Informer, and are to be recovered by Bill, Plaint, Action of Debt or Information in any of his Ma­jestie's Courts of Record; that is, the Chauncery, King's Bench, Commonpleas, and Exchequer at Westminster; but not in any inferior Court of Record, and no essoin priviledg, protection or wager of Law is to be allowed; but I conceive the priviledg or protection of Parliament are not intended in these general words, but the common protections and privi­ledg of Officers and Courts. Quaere. Ideo quaere inde.

It is not proper for this discourse to examine by what Authority any thing at all is taken for giving Orders, See a Canon a­gainst it, and what F [...]es shall be taken by the Clerks. Lindwood c. saeva & mise­ratis. Mat. 10. v. 8. Ad­missions, Institutions, &c. Since our Sa­viour says, Gratis accepistis, gratis date: But he that has a mind to satisfy himself therein, let him read that most excellent History of the Council of Trent, Pag 492, 493, 494, &c. which is faithfully translated by Sir Nathaniel Brent, where this point is excellently discussed Pro. and Con. where I will leave [Page 59]my Reader and conclude this Chapter, and in the next place shew my Parson, Vicar, &c. what he is to do before, at, and after, his Admission, Institution, and Induction.

CHAP. VI. The Sixth Chapter shews, what a Clerk is to do before, at, and after, his admission, institution and in­duction, to make him a complete Par­son.

NO Man at this day is capable to be Parson, Vicar, &c. Every Parson and Vicar must be a Priest. before he is a Priest in Orders, which he cannot be be­fore he is four and twenty years of Age, as has been said; and if any Person shall be admitted, instituted and inducted into any Living before he is in Holy Orders, his admission, institution and induction are void by the late Act of Uniformity: Stat. 14. Car. 2. cap. 4. Subscription and Certificate. Secondly, he must make his Subscription according to the said Act, and have a Certificate from the Bishop or, &c. under his Hand and Seal that he hath so done; and then within two Months after he [Page 60]is inducted, he must upon some Sunday, or Lord's-day, during Divine Service (that is, Read Prayers. after some part of the Divine Service of the Church for that day ap­pointed is read, Read the Arti­cles. and before the whole is finished) read the nine and thirty Ar­ticles of Religion in the Parish Church, &c. Stat. Supra. into which he shall be inducted, and declare his unfeigned assent and consent to all that is therein contained; and he must likewise within two Months after actual possession of such Benefice, &c. (which is intended within two Months after induction, or installation, &c.) read the Book of Common Prayer (that is, the whole Service of the Church ap­pointed for that day, as it is there ap­pointed) and likewise declare his assent and consent to all the matters and things therein contained in these words. St. t. supra. I. A. B. do declare my unfeigned assent and consent to all and every thing contained and pre­scribed in and by the Book intituled, Declaration. The Book of Common Prayer and Administra­tion of the Sacraments, and other Rites and Ceremonies of the Church, according to the use of the Church of England, to­gether with the Psalter or Psalms of David, pointed as they are to be sung or said in Churches, and the form or manner of ma­king, Ordaining, and Consecrating of Bi­shops, Priests and Deacons.

And if any Parson, Vicar, &c. fail in the doing of any of these things before-mentioned, or any of these things be neglected, the Church becomes void; and the Clerk that makes such failure, in case he shall sue for his Tithes, or any other Church duty, or other thing be­longing to his Church; if the Defendant insist upon it, must prove the doing of all these things: But usually the Judges in fa­vour of the Clergy, after they have been in possession of their Livings ten or twen­ty Years, or any considerable time, will presume all these things regularly done, and will not put the Parsons, &c. to the precise proof of them.

And it is to be observed that the Par­sons, Vicars, &c. must upon the accep­tance of every new Living or Ecclesi­astical preferment within this Law re­peat all these things; for the performance of all these things upon the taking of one Living will not satisfy for any o­ther.

I shall give my reverent Clergy Men therefore this caution, Advice to the Clergy. that if any of them have accepted any Ecclesiastical preferments, and have negligently omit­ted any of these things, and that thereby may be lapsed to the King, that they ob­tain presentations from the King ad Corro­borandum; and that thereupon they per­fect all their former neglects.

And for the future I advise them, that they first have some credible Witnesses present, when they make their Subscrip­tions before the Bishop; and that they at­test the Bishop's Certificate; and that they get two Books of Articles; and that when they read the thirty nine Articles they give one of those Books of Arti­cles to some credible Parishioners to read with them, and then attest the Book, that they were present, and heard the Clerk read the said thirty nine Articles during the time of Common Prayer, and decla­red his unfeigned assent and consent to all the matters and things therein con­tained, by subscribing their names there­unto; and that the Clergy Man keep safe­ly the said Book of Articles with this at­testation.

And I advise, that when he reads the Book of Common Prayer, which must (as above is said) be read Morning and Evening, in all things which is prescri­bed therein, within two Months after induction; that he likewise make some intelligent Parishioners to read with him, and give them a Copy of the Declaration aforesaid, and at the foot of it take an attestation under their hands of his reading the said Book of Common Prayer and Declaration, which may be done in this form.

First, in a fair legible hand write the Declaration aforesaid, then write under to this effect, [...] Memorand. That upon Sunday the [...] Day of [...] in the Year of our Lord. [...] A. B. Parson of D. in the County of D. read Common Prayers in the Parish Church of D. aforesaid, both in the forenoon and afternoon of the same day, according to the Form and Order prescribed and directed by the Book intituled, The Book of Common Prayer, and Administra­tion of the Sacraments, and other Rights and Ceremonies of the Church, according to the use of the Church of England, to­gether with the Psalter or Psalms of David, pointed as they are to be sung or said in Churches, the Form or manner of making, Ordaining, and Consecrating of Bishops, Priests, and Deacons; and immediately after the reading the same, made a Decla­ration of his unfeigned assent and consent, to all the matters and things therein con­tained in the Form and words above written: And then let the Witnesses here­unto subscribe the same Certificate; which the Clerk is to keep carefully with his In­stitution, induction, and Certificate, with the Book of Articles attested, as is above directed. And in these things I advise all Clergy Men to be very tender and care­ful.

There was an Act made in the thir­teenth Year of Queen Elizabeth, 13 El. cap. 12. What age a Parson ought to be. That none should be admitted to any Benefice, un­less he were three and twenty Years of age, and a Deacon at least, and should subscribe the thirty nine Articles before he should be admitted; and that none should be admit­ted to Preach or Administer the Sacra­ments, unless such Persons were 24 Years of Age at least: But this Law is in part al­tered by the beforementioned new Statute of Ʋniformity; for now none can be admit­ted to any Living till he is a Priest in Holy Orders, which he cannot be by this Statute till he is four and twenty Tears of age.

And by the same Statute it is enacted, Who may be admitted to a Benefice of 30 l. per annum in the King's books. that none should be admitted to any Bene­fice with cure of Souls of the value of thirty pounds or upward in the King's Books, unless he be a Batchelor of Divini­ty at least, or a Preacher licensed by some Bishop, or one of the Ʋniversities of this Kingdom; and if not so qualified his Insti­tution to be void.

CHAP. VII. The Seventh Chapter shews the duty of the Parson, Vicar, &c. after Induction, and the former Ceremonies perfor­med; and treats of non-residence, and the penalties thereof, and for what reasons the same may be ex­cused.

HE that has orderly, as aforesaid, Parsons, &c. must be confor­mable. Stat. 1. Eliz. cap. 2. ob­tained an Ecclesiastical preferment in the Church of England, must be confor­mable to the Government and Orders there­of, and must not use any other publick Form of Prayer, than what is prescribed by the Book of Common Prayer before mentio­ned, neither must he administer the Sa­craments of Baptism, and the Lord's Sup­per in any other manner or form, than what is therein and thereby directed and prescri­bed.

And if any Incumbent be resident upon his Living (as he ought to be) and keep a Curate, Stat. 14. Cat. 2. cap. 14. When, and how oft he must read the Com­mon Prayers. he is bound by the Act of Ʋnifor­mity once every month at least to read the Common Prayers of the Church, according as they are directed by the book of Common Prayer, in his Parish-Church in his own person, or he forfeits 5 l. for every time he [Page 66]fails therein. See the Statute how he is to be convicted, and the penalty to be levi­ed.

And the Common Prayer by that Statute is to be read before every Lecture: Before every Lecture. and it is not sufficient to read a piece here, and a piece there, where the Party pleases; but they must read the whole appointed for the day orderly, as it is appointed with all the Circumstances and Ceremonies of kneeling and standing, as is prescribed, otherwise it is no reading of Common Prayers with­in this Law; quod nota.

And note, Stat. 14. Car. 2. cap. 4. that by the late Statute of Uniformity, the former Statutes for Uniformity and Penalties therein are ex­tended to this Book of Common Prayer now lately established.

And by the Stat. Stat. 1. Eliz. cap 2. of 1 Eliz. It is inacted, That if any Minister, that ought or should sing or say Common Prayer, &c. refuse to use the same Common Prayers, or to admini­ster the Sacraments, The penalty for using other Forms of Pray­er, &c. &c. in such order and form as they are mentioned and set forth in the Common Prayer-Book, or shall wilfully or obstinately standing in the same use any other Rite, Ceremony. Order, Form or Man­ner of Celebrating the Lords Supper, or o­ther open Prayers, or shall preach, declare, or speak any thing in derogation or depra­ving of the same Book, or any thing therein contained. &c. upon Conviction the Party guilty of any of these offences forfeits the [Page 67]profits of all his Livings and Spiritual Promotions for a year, and is to suffer Im­prisonment for six months without bail or mainprise; and upon a second Conviction for the like offence he is to suffer imprisonment for a whole year, and be deprived ipso facto of all his spiritual promotions; and upon a third Conviction for the like offence shall be imprisoned during life, and lose all his Spiritual promotions, if he have any: And if such person have no spiritual promotions, then for the first offence he is to be impriso­ned for a year, for the second during life without bayl or mainprise.

I have been the briefer in these mat­ters upon the Statutes of Uniformity, be­cause they are printed at large before the book of Common Prayer, to which I re­fer the Reader for his fuller satisfaction; and they are so plain and full, that they need no Comment, but to advise all Cler­gy-men to read and observe them cauti­ously.

I shall only give the Reader this fur­ther caution, that if any Parson, Vicar, 13 Eliz. c. [...]2. &c. shall maintain any Doctrine, contra­ry to the thirty nine Articles of Religion, it is cause of Deprivation; or if he admi­nisters the Sacraments in any other Form than is prescribed by the Book of Com­mon Prayer, he forfeits 100 l. by a Sta­tute made in the 13 year of Queen El. And by the new Statute of Uniformity this [Page 68]penalty is extended to such as do it contra­ry to the present book of Common Prayer now used.

The next Duty Incumbent upon the Parsons, Vicars, &c. is, that they be resident upon their Cures, a Duty Incumbent up­on every one, that hath the cure of Souls in the Church of Christ; Page 217. in the English Translation. for, as Padre Pau­lo in his most excellent History of the Council of Trent observes, that in the first 700 years after Christ, Non-Residence when it came into the Church. there was not any such thing known in the Western Church, that any man should have an Of­fice or Title in the Church, and not do the duty; and many Canons and Decrees have been made against non-Residence: And in the Council of Trent it was held by much the greater and better number of the Prelates and Fathers in that Council, The same hist. p. 217. &c. 486, &c. 509, &c. 496⸪ Residence Ju­re divino. that Residence was Jure divino, and undoub­tedly had been so decreed, if the Pope had not used all his old stratagems against it; but whilst the Pope had power to dis­pense with residence, all the Canons and Decrees of that Church were of little greater effect than to fill his Coffers with money; for in this Kingdom, how ma­ny Bishopricks, Abbies, Priories, &c. were enjoyed (I mean the profits of them) by Forraigners, that never saw them, or took any care of their duties? I should be glad it were much better now.

But the Parliament of England, which has ever been the best Guardian of the Church, made bold with his Holiness, and in 21 year of King H. 8. made an Act of Parliament to this effect.

That as well every Spiritual Person then being promoted to any Arch-deaconry, 21 H. 8. cap. 13. Act against non-Residence. Dean­ry or Dignity in any Monastery, or Cathe­dral, or other Church conventual, or Collegi­ate, or being benefieed with any Parsonage or Vicarage; as all and every spiritual Per­sons, which then after should be promoted to any of the said Dignities or Benefices with any Parsonage or Vicarage from the Feast of St. Michael then next following, should be personally resident and abiding in, at, or upon, his said Dignity, Prebend, or Be­nefice, or one of them at the least; and that if any such person wilfully absented him­self from his said Benefice, &c. by the space of a Month at one time, or two Months at several times in any one year to be account­ed at several times, that such Person so ab­senting should forfeit ten pounds for every such default, the one half to the King, the other half to the Informer to be recovered, as is expressed in the Act.

And by the same Act, there is a Proviso worth mentioning, though now out of date, to this effect.

That if any Person should procure any Dispensation from Rome or elsewhere to be non-resident, the Party guilty should [Page 70]forfeit twenty pounds. By this and other Statutes mentioned in this book it is evident, that the Parliaments of England, even when the Pope was in full power, often made bold with his Holiness to correct his, and his Court's corruption.

Certainly this was an excellent Law, if there had been no more in it but the dispensing with such persons as by the same Law are qualified to have two Li­vings; and the persons capable to qualifie Chaplains to have pluralities had not been grown so numerous, that there is but few of the best Livings but they are held by Pluralists, and they either by colour of at­tending their Lords, their Deanries, or Prebends, find an excuse to be non-Resi­dent, which has made this Law of little effect. The ends of this Law To do their du­ties.

This good Law principally aimed at three ends or effects:

1. That every Clergy-man might at­tend his duty in reading the publick pray­ers of the Church, administring the Sa­craments, preaching, inspecting the beha­viour of his flock, and performing all sa­cred and divine Offices, like a good and faithful Shepherd: and I do wonder with what Conscience any Clergy-man can ex­pect his dues from his Parishioner, that does not perform his duty in the first place.

[Page 71]2. The second end of this good Law, to avoid Dila­pidations. is to avoid Dilapidations in the Buildings belonging to their Livings: for you shall seldom see a Non-resident, but he is also a Dilapidator; and 'tis no wonder that he that neglects the Flock, lets the Sheep­fold go to ruine.

3. To maintain hospitality. Stat. 15. B. 2. cap. 6. and 4 H. 4 cap. 12. The third end of this good Law was to maintain hospitality: and I would wish every Clergy-Man to remember that the poor have a share in the Tithes with him.

And to this end the Statute enjoyns the Clergy-man to be resident in and upon his Living, that is his Parsonage or Vicarage House if he have any, and not at any other House in the Parish; Co. 6.21.b⸪ but Imprison­ment without fraud, or removing for health without fraud, or not having a House upon his glebe, excuses his residence for the time; for the words of the Sta­tute are (That he that wilfully absents himself,) So if any Parson, Vicar, &c. shall be in the King's service beyond Sea, or in any Pilgrimage, or shall without fraud abide in any University within this Realm to study, Who may be non-Residents. or is a Chaplain qualified within this Stat. to have Plurality of Be­nefices, 25 H. 8. cap. 16. or the Chaplains of any of the Judges of the King's Bench, or Common Pleas, Chancellor or chief Baron of the Exchequer, of the King's Attorney and Solicitor, and the Chaplains of the Chan­cellor, [Page 72]of the Dutchy of Lancaster, 33 H. 8. cap. 28. of the Augmentations, First-fruit and Tenths; of the Master of the Wards, the Surveyer ge­neral, of the Treasurer of the Chamber, and Augmentations, and Groome of the Stool, whilst such Chaplains abide, and are atten­dant in the Households of their Masters; and the Master of the Rolls, 21 H. 8. cap. 13. the Dean of the Archer, and the Chancellor, and Com­missaries of Arch-Bishops, and Bishops, and the twelve Masters of the Chancery so long as they shall continue in their places; may be non-resident: but the Chaplains of the Chancellor of the Dutchy, Augmen­tations, 33 H. 8. cap. 28. First-fruits, Master of the Wards, Surveyer General, Treasurer of the Cham­ber, and Augmentations, and Groom of the Stool, 9 E. 2. cap. 8. are to be resident twice in a year at least, eight days at each time: And the King may give License to any of his own Chaplains to be non-resident: 21 H. 8. cap. 13. And any Ecclesiastical Person to attend any Suit in the Chancery or Star-Chamber without fraud may be non-resident for so long time, &c. Masters die, &c. Co. 4.119. a⸫;

But if a Chaplain be qualified in re­spect of his Service to have a plurality, and his Lord or Master die, be attaint of Treason, Felony, or removed from his place, it will not serve the Chaplain's turn to be resident upon one of his Livings without the King's special License with a non obstante.

But Bishops, and Arch-Bishops are not within this Law, but not exempt from this duty; there being several Canons that require it: Bishops resi­dence requira­ble. and Bishops may be com­pelled hereunto by Ecclesiastical censures by their Superiors; and the King may compel them by seizing their temporalites: a notable precedent whereof we have in the the time of H. 3. 1 Inst. 25⸪ When Popery was at highest, and the King not lookt upon as head of the Church; yet that King sent his Writ Mandatory to the Bishop of Here­ford to be attendant upon his Bishoprick, otherwise he would seize of all his Tem­poralties.

And now I have done with non-resi­dence one of the Pests of the Church: I will in the next place shew what Dilapi­dations are; and the several ways the same are punishable, this being often the effect and fruit of Non-residence.

CHAP. VIII. Shews what Dilapidation is, and in what manner punishable, and what remedies the Successor hath.

A Dilapidation is the pulling down or destroying in any manner any of the Houses or Buildings belonging to a Spiritual Living, Dilapidations what. or the Chauncel, or suffering them to run into ruin or de­cay; or wasting, and destroying the Woods of the Church; or committing, or suffering any wilful waste in or upon the inheritance of the Church. And cer­tainly there can be nothing worse becom­ing the dignity of a Clergy-Man than non-residence and dilapidations, which for the most part go hand in hand. I wish our Church had not too much rea­son to complain of both. There hath been divers Canons of the Church made against this crime, as I may justly call it; but as in others, so in this, I shall confine my self to our own Provincials: and I find in a Provintial Council or Synod held under Edmund Arch-Bishop of Can­terbury, in the Year of our Lord 1234. which was as I take it, about the 18th Year of H. 3. a Canon to this ef­fect.

Si Rector alicujus Ecclesiae decedens do­mus [Page 75]Ecclesiae deliquerit dirutas, Canon against Dilapidation. Lindwood. Chap. Si Rector ali­eujus Ecclesiae. de bonis suis Ecclesiasticis tanta portio deducatur, quae sufficiat ad reparandum haec, & alios defectus Ecclesiae supplendos. Idem statuimus circa illos Vicarios, qui solvendo modicam pensionem omnes Ecclesiae habent proventus: nam cum ad praemissa teneatur talis portio deducta satis poterit & debet inter debita computari; Semper tamen rationabilis con­sideratio sit habenda ad facultates Ec­clesiae, cum haec portio fuerit habenda.

Now if it be demanded what Houses are meant within this Canon, the Gloss tells you, ut puta mansum Rectoriae vica­riae & alia Edificia quaecunque, quorum Edifi­catio sive reparatio spectat ad ipsum Rectorem.

By the Letter of this Canon the Rector is to repair the whole Church; Co. 5 6 7. Cro. Eliz. 659. Not to repair the Church but Chauncel. but by the Custom of England the Owners of the Houses and Lands in every Parish are bound to repair the Body of the Church, and the Rector only the Chauncel; unless by particular custom it hath been other­wise: And in this point the Common Law is kinder to the Parsons, Vicars, &c. than the Canon-Law: and the Common Law being here to be preferred annuls that part of the Canon: 2 Inst. 653⸪ and the Gloss upon the words defec [...]' Ecclesiae add, A Canon for relief against Dilapidatient. Haec litera potestintelligi de defectibus Ecclesiae, quae pertinent ad curatum ipsius Ecclesiae in solidum sic, quod non pertineant ad alios, ut puta, in Cancella, & aliis ad onus Recto­ris [Page 76]de jure vel consuetudine spectantibus.

But this Canon seems only to affect the Ecclesiastical goods: Verbo Eccle­siasticis. and what those might be deserves the judgment of the Gloss; which tells you they are such as jure & no­mine Ecclesiae obvenientibus; talia enim bona sunt per viam tacitae hypothecae ad re­parationem hujusmodi faciendam obliga­ta.

And if the goods of the Church shall not suffice, then the Gloss tells us, Si Rector bona Ecclesiastica expenderit in melioratio­nem patrimonii sui, vel si propter nimiam diligentiam propriorum negotiorum neglexe­rit negotia Ecclesiae procurare, Et sic Eccle­sia sit dampnum passa; tenetur satisfacerc de bonis suis patronalibus, si quae habuerit. But there has been made a further questi­on, whether satisfaction for dilapidations should be preferred in payment before Debts and Legacies: And as the Common Law prefers the payment of Debts before dammage for Dilapidations; So the Ec­clesiastical Law prefers the dammage for Dilapidations before the payment of Le­gacies; to which hear what the Gloss says: Si Legatarii tanquam Creditores petant legata sibi relicta, & Praelatus petat sump­tus reparationis Edificiorum Ecclesiae; talis Praelatus debet praeferre caeteris Legatariis: and gives this reason. Nam Legata solvi non debent nisi prius deducto aere alieno. So that the Ecclesiastical Law agrees with [Page 77]the Common Law in this, that Debts are to be preferred before Legacies.

The next thing considerable is, Verbo repa­rand. haec. what repairs are requirable in this case, which is answered by the Gloss. Et intellige hanc reparationem fieri debere secundum exigentiam & qualitatem rei reparandae, &c.

Thus far I have followed the Canon and Gloss thereupon: Now in the next place we will shew you what we have re­lating to this matter amongst the Laws and Statutes of this Realm.

And first, Waste by Bi­shops. I find that at a Parliament at Carlisle in the 35th Year of Edward the first a great complaint was made against Anthony, then Bishop of Durham, Co 11.49.2⸪ for waste and destruction of the woods belonging to his Bishoprick by gift sale and other­wise, Cause of depri­vation. and for erecting forges of Iron and Lead, and making Charcoals of the Wood to be spent in their Iron and Lead works, to the disinheritance and im­poverishing of his Church, and in preju­dice of the King and his Crown, and of the Chapter of Durham. To which the answer is, Inhibetur per Breve de Cancel­laria Episcopo & ministris suis, ne faciant vastum de contentis in petitione.

By which it appears, M. 23. Ei inter adjudicat co­ram Rege Huntsf. 83. that if a Bishop or any other Clergy-Man do waste upon the Woods or Lands of his Church, that a prohibition may be sued in Chancery to prohibit him: for Ecclesia est infra aetatem [Page 78]& in custodia Domini Regis, qui tenetur jura & haereditates ejusdem manu tenere & defendere.

And the Arch-Bishop of Dublyn was fined 300. Rot. Patrum 14 H. 3. m. 8. Marks for the disaforresting a Forrest belonging to his Arch-Bishop­rick.

And it seems by several Books of the Common Law, that in case a Bishop, Ab­bot, Prior, &c. waste the Lands, Woods, or Houses of his Church, he may be de­posed or deprived by his Superior: so that it appears clearly, 20 H. 6.46. a⸪ 2 H. 4.3. b⸫; Co. 11.94 b⸫; 29 E 3.16. a.. 9 E. 4.34. a⸪ that the fault in this case lies heavy upon those that have the Visita­tion and Superiority, that they do not take care against the wasting and destructi­on of the Buildings, Houses, Woods, &c. of the Church; and that the Suc­cessors should not be put to seek remedy against Executors and Administrators, who are too active in finding shifts to a­void their actions, to avoid which there is a good Law made in the thirteenth Year of Queen Elizabeth to this effect.

That if any Parson, Statute against fraudulent Conveyances. Stat. 13 Eliz. cap. 2. Vicar, &c. shall make any conveyance of his goods to defraud his Successor of his remedy, the like Suit is given in the Spiritual Court against the Grantee, as the Successor should have had a­gainst the Executors or Administrators of the Predecessors.

But this Act gives no remedy at Com­mon Law, Stat. 13. El. c. 5. because by another Act made at the same Parliament all such Grants to defraud any Person or Persons of their just actions are made void.

So that the Plaintiff has equal remedy in both cases: Suits for Dilapidations are most properly and naturally to be sued in the Spiritual Courts; and if any pro­hibition should be granted, Fitz. N.B. 51. f. the same ought to be superseded by a consultation; but this is intended where the Suit is ground­ed upon the Canon-Law.

But the Successor may upon the Custom of England have a special action upon the case against the Dilapidator, Action upon the Case at Law for Dilapida­tions. T. 8. H. 7.10. 69. B.R. T. 18. H. 7. ro. 69. C.B. P. 12 and 13 H. 8. rot. 126. C.B. H. 15 H. 8. ro. 306 C. B. in 12 H. 8. ro. 730. C. B. H. 15. Jac. 10.474, &c. The Custom up­on which the Action is grounded. his Exe­cutors or Administrators, whereof there are multitudes of precedents even in the time of Popery, whereof the Reader has a taste in the margent: By all which it ap­pears, that by the Custom of England, which is the Common Law; omnes & sin­guli Praebendarii, Rectores, Vicarii, Regni Angliae pro tempore existentes, omnes & singulas domos & Edificia Praebendorum, Rectoriorum & Vicariarum suorum reparare & sustentare, & ea Successoribus suis repa­rata & sustentata dimittere teneantur. Et si hujusmodi Praebendarii, Rectores & Vica­rii domus & Edificia hujusmodi Successoribus suis Sic, ut praemittatur, reparata & susten­tata non dimiserunt & deliquerunt; sed ea irreparata & dilapidata permiserunt, [Page 80]Executores sive Administratores bonorum & catallorum talium Praebendariorum, Recto­rum & Vicariorum, post eorum mortem de bonis & catallis decedentium Successoribus talium Praebendariorum, Rectorum & Vica­riorum, tantam pecuniae summam quantam pro necessaria reparatione & edificatione hujusmodi domorum & Edificiorum ex­pendi aut solvi sufficiet, satisfacere tene­antur.

And upon this Custom actions of the case have been frequently brought, both antiently, and of later times, and dam­mages recovered.

And note, Stat. 14. El. c. 11. that by a Statute made in the fourteenth Year of Queen Elizabeth it is expresly enacted, that all the Moneys and Dammages that shall be recovered for Dilapidations are to be expended and laid out, in, and about the repair of the Hou­ses, &c. dilapidated, wherein the Visitors of those Churches ought to take care.

It will not be altogether improper to conclude this Chapter with the Stat. 35 E. 1. of 35 Eliz. intitled, Nè Rectores prosternant arbores in Coemiterio; whereby it is inacted, or rather the Common Law declared to be in these words.

We do prohibit the Persons of the Church, Against cutting the trees in the Church-yard. that they do not presume to fell them (viz. the trees in the Church-yard) down unad­visely, but when the Chauncel of the Church [Page 81]wants necessary Reparations: neither shall they be converted to any other use, unless the body of the Church do want repair; in which Case the Parsons of their Charity shall do well to relieve the Parishioners with be­stowing upon them the same trees, which we will not command to be done, but we will commend it when it is done.

By this Law it appears, that the Church-yard and the soyl thereof is in the Parson, and by consequence the trees are in the Parson or Rector, that grow therein. But because the Trees that grow there are for the most part planted there for the shelter and ornament of the Church from Tempests and Storms; there­fore the Parliament has granted a Prohi­bition in this Case against the Rectors and Parsons of Churches, that they should not cut down these trees for any other use, but the necessary repairs of the Church and Chauncel, which in truth was no more than what the Common Law en­joyned: for if the Rector had gone about to have cut them down for any other use, the Patron might have had a Prohibition; but now I conceive the Rector or Impro­priator, that cuts down any Trees grow­ing in the Church-yard for any other cause than for the repair of the Church or Chauncel, may be indicted and fined up­on this Statute at the Common Law.

If the Bishops and Arch-deacons in their Visitations would take care, these Di­lapidations might easily be avoided, which is a great dishonour to the Clergy, and cannot be pleasing to God Almighty or good men: And the Canon enjoyns the Arch-deacons and other Officials, ut in visitationibus Ecclesiarum faciendis dili­gentem exhibeant considerationem ad fa­bricam Ecclesiae & maxime cancell', Cap. Archidi­aconi & infra. si for­te indigeant reparatione, & si quos invene­rint defectus hujusmodi, certum sub poena praefigant terminum infra quem emendentur vel suppleantur, &c.

CHAP. IX. The ninth Chapter shews for what Causes a Parson, Vicar, &c. may be deprived by any Statute-Law; and what matters are allowed for good causes of Deprivation at the Com­mon Law.

DEprivation or Deposition is, Deprivation and Deposition quid. where a man by any Statute-Law, or by a­ny judicial Sentence Ecclesiastical, that hath proper Jurisdiction, is made incapa­ble to hold or enjoy his Parsonage, Vica­rage, or other spiritual promotion, or dig­nity: and the causes of such Deprivation or Deposition are properly and naturally determinable by the Ecclesiastical Laws of this Realm. Where deter­minable. But because generally there are Estates of Freehold dependant upon these promotions and dignities, and annexed to them inseparably, which rest at the sole determination of the Common Law; the Courts of Common Law do sometimes inspect and regulate the pro­ceedings of the Ecclesiastical Courts; and where they proceed against the Rules of common Law, they frequently prohibit them: I have therefore thought fit to shew what causes of Deprivation or Deposition [Page 84]have been allowed and approved of by the Judges and Courts of the Common Law, or by any of the Statutes of this Realm. But there are many more causes of Deprivation by the Canons and Laws Ecclesiastical, which being out of my pro­fession I shall not presume to discourse of.

1. Co. 11.49. b⸫; Waste and Di­lapidation cause of De­privation, &c. The Dilapidating and wasting the woods and houses and other buildings of the Church is held a good Cause of De­privation or Deposition, as appears in the precedent Chapter and the Books there vouched in the margent.

2. Simony cause of Deprivati­on. The Clerk that obtains any pre­ferment in the Church by any Simoniacal Contract or agreement may be deprived by his Ordinary, &c. as appears at large in the fifth Chapter here before upon that Subject.

3. 1 El. cap. 2. Stat. 14. Car. 2.4. To use other Forms of Pray­er, the second offence. That if any Parson, &c. shall refuse to use the book of Common Prayer or admini­ster the Sacraments in the order there pre­scribed, or shall wilfully and obstinately standing in the same use any other Rite or Ceremony order form or manner of Cele­brating the Lord's Supper, or other open Prayers, or shall preach declare or speak any thing in derogation thereof or depraving the same, or any thing therein contained, and having formerly been convicted for the like offence, shall upon his second Conviction be deprived ipso facto.

[Page 85]4. If any Parson, Vicar, &c. Stat. 14. Car. 2. cap. 4. Neglecting to read Prayers within two months after Induction. shall not within two months next after Induction up­on some Lord's day openly publickly and solemnly read the Morning and Evening Prayers appointed to be read the same day according to the Book of Common Prayer, and after such reading shall not openly and publickly before the Congregation there as­sembled declare his unfeigned assent and consent to the use of all the things therein contained in such manner as is directed be­fore here in the seventh Chapter; and if there be any lawful Impediment, then if he do not do the same within one Month after the impediment removed; such Parson, Vi­car, &c. shall be deprived ipso facto. 13 El. cap. 12. To maintain a­ny doctrine a­gainst the 39. Art. of Religi­on. 5 B. 2. tit. Tri­al 54. Misereant, In­fidels, Schis­maticks and Hereticks De­priv. f. 3.

5. If any person, which shall have any Ecclesiastical preferment, shall advisely maintain or affirm directly any Doctrine contrary or repugnant to the 39 Articles of Religion, and being convented before the Bishop of the Diocess or Ordinary or be­fore the high Commissioners shall persist therein and not revoke his Error, or after such Revocation shall eftsoon affirm such untrue Doctrine, he may be deprived.

6. If any person shall obtain a prefer­ment in the Church, which is a a Misboliever. Mis­creant an Atheist, &c. 38 E. 3.2. b. Dyer 8 and 9 p. 254. Co. 558. a ⸪ Dyer. 293. p. 1, and 2., Infidel, Schismatick or Here­tick, he may be deprived.

7. So if one be made a Parson, Vicar, &c. that is not of free Condition, but a Villain, or that is illiterate and not able [Page 86]to perform his duty, Slave, Villain, illiterate and criminous per­son may be de­prived. or that is guilty of any heinous Crime, as Murder, Manslaugh­ter, Perjury, Forgery, or that is merè Lai­cus and not in holy Orders, he may be deprived.

8. Allen vers. Nash. P. 13. Car. 1. B R. Disobedience to his Ordinary cause of De­priv. Cro. Jac. 37. Non-Conformi­ty. Quod nota. A Parson, Vicar, &c. may be depri­ved for being disobedient and incorrigible to their Ordinary, &c.

9. And it was resolved by all the Judges of England 2 Jacob. That non­conformity was a good Cause of Depri­vation, and it was declared by them all, that in case any Canons were made by the Clergy for the good Government of the Church, and approved and confitmed by the King (as they ought) that the obsti­nate disobeying of them was a just cause of Deprivation.

10. 2 H. 4.37. Tuking a se­cond Benefice: If any Parson, Vicar, &c. have one Benefice with Cure of Souls, and take another incompatible without a faculty and dispensation, it is a just cause of De­privation.

11. Dyer 133. p. i. Priest to mar­ry was cause of Deprivation. In the time of Popery it was cause of Deprivation for a Priest to marry, but not to have two or three Concubines, as they called them, but more of this here­after.

12. Co. 11.98. b ⸪ 2 H. 4.3. 9 E. 4.34. 20 H. 6.36. 29 E. 3.16. Dilapidation, Destruction of woods, &c. or Alienation of Land belonging to the Church by any Bishop, Abbot, Prior, Parson, Vicar, &c. have been held and ad­judged good Causes of Deprivation, and [Page 87]it is very fit it were practised, Dilapidation, Waste, Aliena­tion of the Lands cause of Deprivation. Deprivation ipso facto. where after monition there is not Reformation.

There may be a question started, what shall be intended by the words deprived ipso facto; whether by those words the Church immediately shall become void by the fact done, or not till Conviction or Sentence declaratory. The words ipso fa­cto are of late time crept into acts of Par­liament, as that for striking with a wea­pon in a Church-yard, the Party shall ip­so facto be excommunicate: Dyer 275. b. p. 48. and in that Case it is made a quere in Dyer; and ha­ving not met with any Resolution in the point, I shall not presume to give my o­pinion in the Case, but leave it to the de­termination of the learned: But in that Case by the Canonist requiritur Sententia declaratoria. Quaere.

I must consess, Lindwood c: quia inconti­nentiae vitium verb. ipso facto. in this Chapter I may seem to transgress upon the Canonists and Civilians as well as in some other, but I have gone no further upon this Subject, than what I have met with in our own Books, and I must agree, that the Ec­clesiastical Courts have the sole Jurisdicti­on in all Causes of Deprivation, Deposi­tions Resignations, &c. And yet the Judges of the Common Law have pow­er to correct their proceedings, if they shall proceed against the Rules of the Common Law, which is the reason we meet with these things in our Books, and [Page 88]it may be some advantage to the Civili­ans to know, how far the Common Law approves of their proceedings: and ha­ving said what I have to say upon this Subject, I shall proceed next to shew, what Leases Parsons, Vicars and other Ec­clesiasticks may make at this day of the Glebes, Tithes, Farms, &c. and within the danger of what Statutes they may fall.

CHAP. X. The Tenth Chapter shews, what Lea­ses Parsons, Vicars and other Eccle­siastical Persons may make of their Glebe, Tithes, Farms, &c. and what Farms they may take, and within the danger of what Statutes 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 [Page 90]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 [Page 91]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: [Page 92]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 [Page 93]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 [Page 94]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 [Page 95]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. before­mentioned.

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 [Page 97]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 Collegiate Persons or others of any of their Ecclesiastical, &c. Lands, &c. whereof any former Lease for years is in being, and not expired, surrendred or ended within three years next after the making of any such new [Page 99]Lease, should be utterly void frustrate and of none effect, any Law, &c.

By this Proviso, it should seem, the Par­liament was of opinion, that concurrent Leases might be made; but has by this Pro­viso so restrained them, that they cannot be made but within three years before the Determination of the former.

But Bishops are conceived not to be com­prehended within this Proviso; Bishops not in this Act. for though the words are general enough, yet the particulars mentioned before the general words being of an inferiour rank, the ge­neral words cannot draw in the more worthy.

And there is a Provision in this Act of 18 Eliz. Which Bonds and Covenants shall be void. That all Bonds and Covenants then after made for the making or renewing of a­ny Lease contrary to the intent of that Sta­tute, or of the Statute of 13 Eliz cap. 10. should be utterly void.

By a Statute made in the 13th. 13 Eliz. c. 20 Leases of Par­sons to be void by non-Resi­dence. Year of Queen Elizabeth there is an Act of Par­liament made, whereby it is enacted, That no Lease made after the 15th day of May following of any Benefice or Ecclesiastical Promotion with Cure, or any part thereof, and not being impropriated, should endure any longer, than while the Leasor should be ordinarily resident and serving the Cure of such Benefice without absence above four­score days in any one year; These wordt within the [] are repealed by 14 El. c. 11. but that eve­ry such Lease [so soon as it or any part [Page 100]thereof should come to any possession a­bove forbidden or] immediately upon such absence shall cease and be void, and the In­cumbent so offending shall, &c. lose one years profit of his said Benefice to be distributed by the Ordinary to the poor of the Parish.

And by the same Statute, Charging Par­sonages void. it is further enacted, That all charging of such Bene­fices with Cure then after with any pension, or with any profit out of the same to be yiel­ded or taken, other than Rents reserved upon Leases, should be void.

But where any Person should be qualified to have two Livings, Where a Par­son may devise, and be non-re­sident. he may devise the one of them, where he is not ordinarily resident, to his Curate only, that shall there serve the Cure. And such Lease shall endure no longer than during such Curate's residence without absence above fourty days in any one year.

And by the 14. 14 El. cap. 11. Leases, Bonds, and Covenants to be void. of Eliz. it is enacted, That all Leases, Bonds, Promises and Covenants of and concerning Benefices and Ecclesia­stical Livings with Cure to be made by a­ny Curate shall be of no other or better force, validity or continuance, than if the same had been made by the beneficed person himself, that shall demise the same to such Curate.

And by the same Statute it is enacted, Houses Incor­porations, &c. how to he lea­sed. That the restrictive Statute of 13 Eliz. cap. 10. before shall not extend to any Grant, Assurance or Lease of any houses belonging [Page 101]to any the persons, &c. ( in the said Stat. of 13.) nor to any grounds to any such houses appertaining, &c. in any City, Burrough, Town Corporate or Market Town, or the Suburbs of any of them; but that all such houses and grounds may be granted, demised and assured, as they might have been before the making of the said Act, so always as such house being not the Capital, or dwelling house used for the Habitation of the Parsons, &c. nor have above ten Acres to the same.

Provided, Not to lease in reversion. That no Lease be made by vertue of this Act in reversion, nor without reserving the accustomed yearly Rent at least, nor for a longer term than for fourty years at most, charging the Leasee with re­pairs, and no alienation in Fee, unless lands of as good yearly value be settled, &c. in lieu thereof.

There is likewise another Proviso in this act, that all Bonds, Conrracts, Bonds, Con­tracts, Cove­nants, Promi­ses, where to be void. Promises and Covenants to be made for the suffering or permitting any person to enjoy any Benefice or Ecclesiastical Promotion with Cure, or to take the profits or fruits thereof, other than such Bonds and Covenants as shall he made for assurance of any Lease heretofore made, shall be of no other force than Leases made by the same person.

And by another Statute made in the 18th year of the same Queen Eliz. 18 Eliz. c. 11. It is e­nacted, That after complaint made to the [Page 102]Ordinary, and Sentence given upon any offence committed by the Incumbent against the Statute of 13 Eliz. cap. 20. whereby he shall or ought to lose a years profit of his Benefice, &c. That then the Ordinary with­in two months after such Sentence, and re­quest made by the Churchwardens of the Parish, where, &c. or one of them, shall grant the Sequestration of such profits to such In­habitant or Inhabitants within the same Parish, &c. as to him shall seem meet, &c.

And that upon default of the Ordinary, it shall be lawful for every Parishioner, Every Parishi­oner may take advantage. &c. to retain, &c. his Tithes, and for the Church-wardens to enter upon the Glebe­land Rents and Duties of every such Bene­nefice to be imployed to the use of the poor, &c. until such time as Sequestration shall be committed by the Ordinary; and then the Church-wardens and Parishioners to accompt to such to whom the Sequestration shall be committed, who is to imploy the whole pro­fits according to the act, upon pain to forfeit the double value of the profits with-holden, to be recovered in the Ecclesiastical Court by the poor of the Parish.

Having thus briefly for the Readers sa­tisfaction given him a brief Abstract of all the Statutes concerning the Leases of Ecclesiasticks of all kinds, I shall briefly sum them all up, and proceed to take a view of such other Statutes as the Par­sons, [Page 103]Vicars, &c. are in any manner in dan­ger of.

Upon the whole matter it appears, What Leases may be made by Bishops and Arch-bishops. that Arch-bishops and Bishops may make Leases for twenty one years, or for one two or three Lives, with the qualifications before mentioned without any Confirma­tions at all: and they may make concurrent Leases for twnety one years upon Leases for tweny one years from the making with confirmation of the Dean and Chapter with such qualifications as is aforesaid, though there be above three years in be­ing of the old Lease at the time of the making the new, and where the Bishop has two Chapters, there the concurrent Lease must be confirmed by both Chap­ters; unless it be as it was in the Bishop of Waterford's Case, which was thus. The Bishop of Waterford had long agoe the Bishoprick of Lismore, and the Chapter united to that of Waterford; And in all Grants made of the Lands belonging to Lismore that Chapter only confirmed, and all Grants made of the Lands anti­ently belonging to the Bishoprick of Wa­terford the Chapter of Waterford only confirmed: Co. 12.71. a⸪ b⸫; and because the Union was not extant, all the Judges held the confir­mation of the one in the manner afore­said was good, for it shall be intended, that it was so provided for upon the con­solidation; but otherwise all the Judges [Page 104]held, Dyer 282. p. 26. that both Chapters ought to have confirmed.

But if a Bishop had two Chapters, Ibid. and one of them surrender is suspended or dis­solved, the confirmation of the other suffices.

There is a Case in Mr. Justice Harpur's Reports, M. 14 and 15 El. where the Case is put, That a Bishop made a Lease [...]. die Maii confir­med the third day, and sealed the fourth day of May, and held good Lease and well confirmed.

But a Confirmation by the Dean and Chapter after the death of the Bishop comes too late by Catlyne, Har [...]ur Rep. m. 14 and 15 El. Southcoate and Windham against Wray.

But if a Bishop make several concur­rent Leases, T. 6. El. More 66. and the latter is first confir­med, and after the first is confirmed; in this Case the first Lease shall be preferred, because nothing passes by the Confirmati­on in point of Interest but a mere Con­sent.

If a Bishop make a Grant to the King, T. 8. Jac. S. Sir Edw. Di­mock's Case. Rolls 1.477. h. 7. Crok El. 141. More 253. which is confirmed by the Dean and Chap­ter before the Grant is inrolled, this is well enough.

But note, that a Bishop cannot make a concurrent Lease for life, though up­on a precedent Lease for Years; nor a con­current Lease for years, where there is a Lease for life in being.

Deans Prebendaries Heads of Colledges Masters of Hospitals and other Ecclesiasti­cal Persons mentioned in the Stat. of 13. Leases by Deans, Pre­bends, Col­ledges, &c. Eliz. cap. 10. may make Leases for 21 Years, or any lesser number of Years, or for one two or three Lives in possession, according to the qualifications above­mentioned; and they may make concur­rent Leases as Bishops may with confirma­tions; 18 Eliz. c. [...]. but they must be within three Years of the determination of the former term by expiration surrender or otherwise: so that in this point the Bishop has the ad­vantage.

And though the enabling Stat. of 32 H. 8. gives power to make Leases to hold from the making, or day of the making; yet the Restrictive Stat. of 13 El. makes them void, 13 El. c. 10. if they be not made to hold from the ma­king, and not from the day of the making; quod nota: But the Leases of Bishops and Arch-Bishops are not within that Act, but the Act of primo of the Queens; which is, that all Leases should be void, other than for 21 Years or three Lives from the time of the commencement: Concurrent Leases, and who is to con­firm Lases. Rolls 1.481. p. q. r. Dyer 221 p. 18.357 p 42. Plow. 528. Dyer 61. p. 30. Co. 5 81. a.. Note the different pennings.

And for as much as all concurrent Lea­ses of any Bishop Dean Prebend and Arch-Deacon are to be confirmed, it is convenient to let the Reader know who is to confirm the same; therefore for the Reader's satisfaction he is to know that the [Page 106]Leases of Bishops and Arch-Bishops are to be confirmed by the Dean and Chapter or Deans and Chapters, if there be seve­ral Chapters: Grants made by a Prebend are to be confirmed by the Bishop Dean and Chapter: the Grants made by Deans are to be confirmed by the Bishop and Chapter: the Grants made by the Arch-Deacon, by the Bishop Dean and Chapter: the Grants of Parsons and Vicars, with their Patrons and Ordinaries: and Grants by the Incumbent of a Donative, by the Patron alone.

But if a Parson make a Lease, which is confirmed by the Bishop only, who is Patron, without the Dean and Chapter which ought to have joyned; it shall bind the Successor during the Lives of the Bishop and Incumbent, although the Bishop be translated.

But Grants by Parsons Vicars Prebends, &c. before induction or installation, &c. although confirmed, are not binding to the Successor.

But if the King be Patron of a Pre­bend, then the King and Dean and Chap­ter, and not the Bishop, ought to confirm the Grant.

A Lease made by a Prebendary Parson Vicar, &c. may be confirmed for part of the term, Co. 5.81. [...] ⸫ Dyer 52 a.b. Cto. El. 472. if it be for Years, that is, con­firm the Land to the Leasee for so ma­ny Years of the Term; but if the Term [Page 107]be confirmed for part of the Term, it were absurd and repugnant, and should be good for the whole term: & as such Lease may be confirmed for part of the term, so it may be for part of the Land.

If a Parson, &c. make a Grant, Rolls 1. 476. f. 1.2. which is confirmed by the Patron and Ordinary, and after be deprived; yet the Grant is good. Rolls 1.479. n. 1. A Husband seized in the right of his Wife of an Advowson, the Parson makes a Lease warranted by the Statutes before mentioned, and the Bishop and Husband confirm it; this shall not bind the right of the Wife but during the Hus­band's life, but that the Successor after his death will avoid it, that comes in by the presentation of the Wife. Rolls 1.480. n. 2. So if Tenant in tail being Patron confirm the Grant of the Parson with the Bishop, this shall not bind the Incumbent of the issue in tail. Rolls 1.480. n. 4.

If a Usurper present, and confirm the Lease of his Incumbent with the Bishop, & after is removed by quare Impedit, this shall not bind the Clerk of the true Patron.

If the true Patron grant the next avoi­dance, Cro. Car. 582. and then confirm the grant of the Parson, who after dies; the Incumbent presented by him that had the next avoi­dance shal avoid the Lease, Rolls 1.480. n. 5. Cro. El. 430⸪ & his very entry upon the Leasee avoids the Lease for ever.

If the Parson make a Lease to the Patron, which is confirmed by the Bishop, this is not good; but if the Patron [Page 108]grants it over, Co. 5.15. a⸪ it amounts to a confirma­tion.

If a Prebend Parson or Vicar make a Lease, Rolls 1.481. p. 1. and the Bishop being Patron con­firms it without the Dean and Chapter; yet this shall bind the Bishop and all the Prebends Parsons, &c. which he shall Col­late.

If a Parson had made a Lease for above 21 Years before the Statutes of 13. Cro. El. 18. and 14 Eliz. which had been confirmed after, this had been good, and not within the restri­ction of those Laws.

If a Parson Leases where there is two Patrons, 1 Leon. 233. Quaere. both ought to confirm as should seem.

If the Patron and a succeeding Bishop confirm the Lease of the Parson, Cro. Car. 38. it is good enough.

A Prebend made a Lease, Dyer 106. p. 24. Quaere. reciting that it was with the consent of the Bishop, who signed and sealed the Lease to the Leasee, but was no party to the Deed, quaere if good.

And having said thus much of confir­mations, let us see, what Leases a Parson or Vicar may make at this day, considering all the beforementioned Statutes.

And first, Leases by Par­sons and Vicars. it is to be observed, that at and by the Common Law a Parson or Vicar might have granted or charged his Glebe in Fee-simple with the confirmation of the Patron and Bishop; but being ex­cepted [Page 109]out of the inabling Statute of 32 H. 8. 32 H. 8. c. 28. he could never make any Lease or Grant to bind their Successors, without such confirmation; then by the Statute of 13 Eliz. Parsons and Vicars are restrained: 13 El. cap. 10. So that they cannot grant but for 21 Years or three Lives from the making of such Lease, and not from the day of the making, as is before observed; and these Leases and Grants must be with the confirmation of the Patron and Ordinary with all the qualifica­tions expressed in the beginning of this Chap­ter.

And it should seem, they may make con­current Leases, as Deans Prebends, &c. may do, within three Years of the end of the former Leases.

It has been a question whether a Par­son or Vicar at this day can make any Lease at all to bind his Successor: for by the Statute of 13 Eliz. Chap. 20. 13 El. cap. 20. it is en­acted, that Leases of Parsons Vicars, &c. that have Cure of Souls shall endure no lon­ger, than they shall be ordinarily resident and serve the Cure; and that if such Parson, &c. shall be absent from their Cure above 80 days in one Year, that then such Lease shall cease and be void. Now when a Parson dies, and 80 days incurs, and this being a Law for the advancement of Religion and Hospitality, to avoid Dilapidations, shall have an equitable construction for the preferring of these ends: therefore some [Page 110]have held that the death of the Parson Vicar, &c. after 80 days have incurred from their deaths, shall make all their Leases and Grants void, though never so sufficiently confirmed; and rely very much upon the preamble of the Statute, which begins, Parson's Leases which is con­firmed, and dyes. That the Livings appointed for Ecclesiastical Ministers may not by cor­rupt and indirect dealings be transferred to others uses, Be it enacied, &c. But by these Leases it is apparent the profits are converted to other uses, &c. But others have held the contrary Opinion; because such absence is not voluntary but by the Act of God, and regularly these cannot be said absent that are not in esse: Cro. El. 123. and though Crook report Mott and Hale's Case adjudged in point that their Leases are void by death; More 270. Yet More reporting the same case says, As to the matter in Law the Judges were divided two against two, and that the Judgment was given upon a misrecital of the Statute. Bayley vers. Murnes T. 24. Car. 2. B R. And this point as I am informed, came lately in question in the King's Bench, and was adjudged that death doth not avoid such Leases. Quaere. Ideo quaere inde. Dyer 372. p. 2. When Parson's Leases shall be void by non­residence.

There is a quaere in Dyer whether such Leases shall be void upon 80 days absence ab initio, or but from the time of absence by 80 days; but it seems to me with some clearness that it shall only be void from 80 days absence, and not ab initio; [Page 111]For first, the words of the Statute are, that such Lease shall indure no longer than the Leasor shall be ordinarily resident, &c. So that till then it is to indure: and the Statute closes, that upon such absence the term shall cease, which it could not do, Quaere. if had not a being before; for a thing cannot cease to be, that has not been.

But another quaere may be startled in this Case upon the reason in Lincolne Col­ledg Case, Whether void against the Parson him­self. Co. 3.59. b⸪ 60. a⸫; whether such Lease shall be void against the present Incumbent that made it, or only against his Successors; but it seems to me with some clearness that the intent of the makers of this Act was to make such Lease void against the Leasor himself upon such absence: for, as before is said, the Statute says it shall in­dure no longer, which is a term of limi­tation, and that immediately upon such absence the Lease shall cease and be void; and it cannot cease immediately upon the absence, and yet be good during the life of the Incumbent. But in the Case of Re­vel vers. Hart H. 43. Eliz. B. R. Dyer 372. p. 11. Quaere. the Court held the contrary as my Reporter says. Ideo. quaere.

If any Parson Vicar, &c. Dobbins vers. Gerrard P. 39. El. B. R. be suspended inhibited or disabled to serve the Cure by the space of 80 days in a Year, this shall not make such Lease void; for the not ser­ving the Cure must be voluntary: And it has been held that if a Parson be resident [Page 112]and do not serve the Cure, or serve the Cure and be absent by 80 days, that in both these Cases it will make such Lease void.

Though this Statute upon 80 days ab­sence makes such Lease void made by Parsons and Vicars, and says nothing of confirmation; yet a confirmation of the Patron and Ordinary in this case seems not to amend the matter, for if the Lease be void, the confirmation is of no a­vail.

At the Common Law, Stat. 28. H. 8. cap. 13. Parson leases and resigns. if a Parson Vicar, &c. had made a Lease and resigned, the next Incumbent might have entred imme­diately upon the Leasee; but by a Sta­tute made in the 28th Year of H. 8. the Leasee may hold on his term for six years, if the Parson that made his Lease so long live, and the term were made for so long time; but upon such Lease there must be so much Rent reserved within fourty shillings as such Benefice is valued at in the King's Books.

And by the same Statute, if a Parson make a Lease and resigns and dies, the Te­nant shall hold out his Lease for the Year that was commenced at the time of his death, if the Term were to have had so long conti­nuance, if the Parson had not died: but this seems only of such Lands as are plow­ed, for the succeeding Parson is to have the Parsonage House and Glebe which is [Page 113]not sowed within a month after he is in­ducted, allowing a reasonable deduction for the Rent reserved upon such Lease.

But in both Cases the Lessee must pay the reserved Rent to the succeeding In­cumbent, who is inabled to sue or di­strain for the same.

And such Lease must be in writing un­der hand and seal and not by parol.

But it should seem the Statute of 13 El. 13. El. cap. 20. before has made this Law of no effect.

And having now done with these Sta­tutes, as to Leases, let us next consider what Bonds, Covenants, Promises, &c. 18 El. c. 11. are void within the Statute of 18 Eliz. be­fore-mentioned.

Covenants, Bonds, &c. Hob. 269⸫; Covenants, Bonds, which good. made for the enjoying houses within Cities, Corporati­ons, &c. are not void within this Law; for this Law makes no Bonds, Covenants, &c. void, which are not against the intent of this Statute, and the Statute of 13 El. cap. 10. but Leases of Houses and Lands in Cities, &c. by the Stat. of 14 El. c. 11. are exempted out of 13 El. cap. 10. and are not within the Stat. of 18 El. be­fore.

A Parson made a Bond to resign upon request, More 641⸪ and afterwards a Lease to his Pa­tron of part of the Glebe for twenty one years: in an Action brought upon this bond, the Incumbent pleaded the Statute of 18 Eliz; and averred that this Bond [Page 114]was made to secure this Lease, and to compel the Incumbent to reside, and ad­judged a good Plea, and an apt aver­ment.

A Parson made a Lease, Cro. El. 489. Noy 66. and in the Lease covenanted not to be absent by the space of 80 days in any one year, and gave Bond for the performance, and after became non-resident by 80 days, and re­solved that the Bonds and Covenants were both void.

A Parson made a Lease, Olivers Case M 4. Jacob. B. R. and covenan­ted neither to do or suffer to be done any matter, whereby the Lease should become void, and after became non-resident by the space of 80 days in a year, and this was held a good Covenant, and a Cove­nant that the Parson should be resident was held not to be against this Law by Popham, Tanfield, and Clencb against Wil­liams. Quaere. Leases of Coll. Hospitals. Ideo quaere.

And having now done with Leases to be made by Ecclesiasticks of every kind, and having therein exceeded my bounds beyond Parsons and Vicars to all other Ecclesiasticks, since the Leases of Col­ledges and Hospitals come in my way, I will give the Reader what satisfaction I can concerning them: And as to them,

It is to be observed, that they are not comprehended in the inabling Statute of 32 H. 8. nor in no other Statute that I find till the restrictive Statute of 13 El. 13 El. cap. 10. [Page 115]whereby amongst the rest, the Masters and Fellows of Colledges, and the Masters and Guardians are disabled to make any Grants or Conveyances of any of their possessions, other than for twenty one years, or three Livings from the making of such Lease, and not from the day of the date, or from the date, as has been said: and this must be of Lands usually demised, and the accustomed Rent, or more, must be reserved with all the other quali­fications mentioned in the beginning of this Chapter.

And by the Statute of 18 Eliz. 18 El. c. 11. they are restrained to make any concurrent Leases till within three years of the end of the for­mer Terms that are in being.

I shall now shew the Reader, what things are demisable within these seve­ral Statutes, and what Reservations are good, and in what cases the Acceptance of Rent by the Successor will make a Lease good, that was voidable within these Laws, and the several qualifications men­tioned in the beginning of this Chap­ter. What Leases shall be good. Smalls Case. M. 4. Jac. B. R. Former in be­ing.

One Small being possessed of the man­nor of Padington by a Lease from a Bi­shop for a Term of years, the Bishop made a Lease to another for three Lives, and before Livery the Tenant surrendred his former Term, and it was held that the Surrender was made in due time, and the second Lease good.

A Prebend had usually been leased (ex­cepting the Crab-trees) and the Prebenda­ry made a new Lease without excepting the Crab-trees, Cro. Jac. 458. 3 Bulst. 290. More in the new Leases than the old. reserving the antient Rent, with other due Circumstances, and this Lease was held void against the Successor by reason of the adding of the Crab­trees.

It hath been adjudged, Co. 5.15. a⸫; Next Avoi­dance not de­misable. That a Bishop, Dean, &c. cannot grant the next avoi­dance of an Advowson, nor any Rent­charge out of the possessions of the Church, but the same is void within the restrictive Acts before-mentioned, though these can­not be said any of the possessions of their Churches.

It was also resolved, Co. 5.15. a⸫; Charges void. that where an Arch-deacon made a Lease for three Lives warranted by the Statutes before mentio­ned, and the Lessee granted a Rent­charge for a hundred years, which was confirmed by the Bishop, Dean and Chap­ter, that notwithstanding the same was void against the Successor within the Stat. of 13 Eliz. cap. 10.

If a Writ of Annuity should be brought against a Parson, Co. 5.14.b⸪ &c. pretending the same due by Prescription, and although the Par­son pray in aid of the Patron and Ordi­nary, and upon a Plea pleaded by them the Plaintiff obtains a Verdict and Judg­ment, and all this by practice and fraud to charge the Glebe, it is void against the [Page 117]Successor; for these Statutes being made for the benefit of the Church, advance of Religion and Hospitality, and to avoid Di­lapidations, 19 Ass. p. 9. shall always have a favourable Construction.

It is regularly true, Acceptance of Rent, where it shall bind. that where the Wife issues in tail, or Successor accepts the Rent after the death of the husband, Te­nant in tail or Predecessor upon a void Lease made by the Husband, Tenant in tail or Predecessor, that such Acceptance will not affirm the Lease: but this Rule must be understood of such a Lease as is void ipso facto without entry or any other Ceremony; and therefore if a Parson, Vi­car or Prebend, &c. make a Lease not war­rantable by the Statutes for twenty one years, rendring of Rent, and dyes, Co. 3 65. a.. 37 H. 6. 3 & 4. 11 E. 3. Fitz. Abbot 9. 8 H. 519. here no Acceptance of Rent by the Successor, &c. will affirm this Lease, because the same was void without Entry or other Cere­mony; but if a Parson, Vicar or Pre­bend make a lease not warrantable with­in the before mentioned Statutes for life or lives, reserving Rent, and dye, and the Successor before Entry acccept the Rent; this Lease shall bind him for the time, for this being an Estate of Freehold could not be void before entry.

But if a Bishop Abbot or Prior, Dyer 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, [Page 118]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 Tan­house, 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 'tis 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 [Page 122]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 Year of that King, where he made more severe Canons against the Married Clergy in the presence of the King and Nobility, Hollingshed 34. b. 10. to give them greater Authority, which he prosecuted with great zeal, but did not live to effect what he desired. I do not find that his Suc­cessor Rodolphus troubled himself much in this concern of the eight Years that he Governed the Church of Canterbury: but his Successor William Corbet followed the steps of Anselm, who for this and his other good works was Canonized a Saint at Rome: and in the Year 1126 called a Council or Convocation at Westminster [Page 123]against the Married Priests, wherein one John de Crema the Pope's Legate sent to manage this business, being a learned Man, made an Eloquent Oration in commenda­tion of Chastity and a single life, and in­veighed violently against the Married Clergy; H. Huntingd. l. 7. Hoveden in H. 5. Speed 461. a. &c. Bish Goodwins Catalo. of Bish. 83. and as divers Authors of good credit affirm, the great Orator was the same night taken in bed with a Woman, which made him to return with shame enough; howsoever, as Bishop Goodwyn tells us, that in that Convocation the Ca­nons were renewed against the Married Clergy; but the Arch-Bishop finding him­self too weak to deal with so stubborn a Clergy, commendeded the care of this business to the King, who taking advan­tage of the Canons squeezed some Money out of the Married Clergy by way of Com­mutation. I find no more of this matter, till after the death both of this Arch-Bi­shop and H. 1. But I find there was a Con­vocation held at London Decemb. 13. 1138. Good win 84. Fullers Eccl. Hist. 27⸪ by the Command of Albert Cardinal Bi­shop of Hostia, where this matter was again violently prosecuted: and I find no more af­ter of it till in a Convocation or Council held under Rich. Wethershead Arch-Bishop of Canterbury 1229. in which it is decreed, Lindw Si qui Clerici. Qui autem in Subdiaconatu vel supra ad matrimonium convolaverint, mulieres reni­tentes & invitas relinquant. But it should seem, notwithstanding all this persecution, [Page 124]that for some Years after some Married Men held their Livings: for in a Synod or Council held by Otho the Pope's Legate at Saint Paul's in London in the Year 1237. Cap. de uxora­tis a beneficiis amovendis. there is a Canon to this effect, Innotuit nobis, pluribus referentibus fide dignis, quod multi propriae salutis immemores, Matri­moniis contraciis, claudestine retinere cum uxoribus Ecclesias, & Ecclesiastica Beneficia adipisci de novo, & promoveri ad sacros or­dines contra statuta sacrorum Canonum, non formidant, &c. and then proceeds Quod si repertum fuerit aliquos taliter contraxisse, ab Ecclesiis & Ecclesiasticis Beneficiis (qui­bus tam eos quam quoslibet alios uxoratos fore decernimus ipso jure privatos) remo­veantur omnino, &c.

This nail being thus at length driven to the head, the secular Clergy lay about 300 Years under this Bondage, and though if they would be at the cost they might have dispensations to keep Concubines, yet for the credit of holiness there was great care taken they should not do it pub­lickly, or scandalously: to which purpose there is a Canon in the same Council I last mentioned to this effect, Statuimus, & statuendo praecipimus, Cap. de Concu­binis Clerieo­rum removen­dis. * Nota. Canons against Concubines. ut ubi Clerici, & maxi­me in sacris ordinibus constituti, qui in de­mibus suis & alienis detinent publice Concubinas, eas à se prorsus removeant infra mensem, & illas vel alias de caetero nullate­nus detenturi, &c.

There was another Canon much like this made in another Council held under Stephen Langton Arch-Bishop of Canter­bury at Oxford not long before, in the Year 1222. to this effect, Cap. Clerica­lis Ordinis. * Nota. Quod Clerici Beneficiati aut in sacris ordinibus consti­tuti in Hospitiis suis publicè tenere Con­cubinas non audeant, nec etiam alibi cum scandalo accessum publicum non habeant ad eas.

So that it appears clearly by these Ca­nons that Clerks were not in those days positively and absolutely forbidden to keep Concubines; but it must not be done publicè nec cum scandalo, nor must they have publicum accessum.

And it appears by the centum grava­mina that were presented to the Pope about the Year 1521. Dispensations for Concubi­nage. Hist. H. 8. by my Lord Cher­bery. p. 131. art. 74. Art. 91. by the German Princes, that it was one of the grievances of that Nation, that the Pope permitted Clerks Religious and secular Persons to live publickly with their Harlots and get Children; and that in most places the Bishops and their Officials not only tole­rated Concubinage upon paying Money in the more dissolute sort of Monks, but also exacted it of the most continent say­ing, it was then at their choice whether they would have them or no.

So upon the whole matter it seems it was no offence in a Clergy-Man that had a dispensation to keep a Concubine St. Calvins Inst. lib. 4. c. 12. Sect. 23. [Page 126]privately in a nooke without scandal, and go to her in the dark; but to keep a Wife of his own was a sin against the Holy Ghost, Dyer 133. p. 1. 2 H 4.16. a⸫; Cap. de uxora­tisa beneficiis amovendis, ubi supra. he must be deprived, he must be deposed. And therefore I cannot blame the German and French Laity that they were so solicitous in the Council of Trent to have their Priests Married, being loth, as should seem, to trust their Wives and Daughters at confession with Priests that had not Wives of their own. And it was no less a Religious than prudent expression of Pope Pius the Second, that though there was many weighty reasons why Priests should be restrained from Marriage, yet the reasons for restoring them their Wives were the more weigh­ty.

Having given the Reader this Histo­rical account concerning the restraint of the Marriage of Priests, and the success of it, I will in the next place shew what Acts of Parliament have been made rela­ting to this matter, and which are in force at this day.

In the first Tear of H. 1 H 7. cap 4. Statute that the Bishops should impri­son Priests for Incontinence. 7. there was an Act made, that it should be Lawful to all Arch-Bishops and Bishops and other Ordi­naries having Episcopal Jurisdiction to punish and chastise such Priests and Clerks and Religious Men being within the bounds of their Jurisdiction, that should be con­victed before them by examination and [Page 127]other Lawful proofs requisite by the Law of the Church, of Advowtry Fornication and Incest, or any other fleshly incontinency, by committing them to Ward and Prison, there to abide for such time as shall be thought to their discretions convenient for the qua­lity and quantity of their trespass. And that none of the said Arch-Bishops, &c. be thereof chargeable, of, to, It seems a Ca­non would not justifie an Im­prisonment. or upon any Action of false or wrongful Imprisonment, but that they be utterly thereof discharged in any of the cases aforesaid by vertue of this Act.

This Law for ought I know stands still in force, 31 H. 8. c. 14. made Felony to use their own Wives. but there was a severe Law made in the 31 H. 8. whereby it was made Felony for a Priest carnally to use a Woman to whom he had been Married or contracted; or if he kept company or familiarity with her, or if any Priest kept a Concubine, as by paying for her board, maintaining her with Money or other gifts or means to the evil example of others, he should forfeit all his Goods Cattels and Spiritual promotions, and be put in Prison for the first offence, and the second offence to be Felony.

But this seeming too severe was the next Year repealed, and it was enacted, 32 H. 8. c. 10. mitigated. That such Offender should for the first offence lose all his Goods Chattels and Debts, and lose the profits of all his Ecclesiastical promotions; but one for his life, for the se­cond offence to forfeit his Goods Cattel [Page 128]and Debts, and the profits of all his Lands and of all his Spiritual Benefices Promo­tions and Dignities for his life. And for the third offence should make the like for­feiture and be Imprisoned during life.

By an Act of Parliament made in the 31 of H. 31 H. 8. c. 14. The 6 Articles makes the mar­riage of Priests Heresie. 8. which is commonly called the Act of the six bloody Articles, by the third Ar­ticle it was declared, that Priests after they have received Orders might not Marry, and to affirm the contrary thereof was made He­resie and Treason by that Act: but this bloo­dy Act was repealed by 1 E. 6. cap. 12.

By the Statute of 2 and 3 E. All Laws a­gainst marri­age of Priests made void. 6. cap. 21. all Laws Statutes Canons and Ordinances and Constitutions made against the Marriage of Priests are made null and void.

And by another Statute made the fifth and sixth of E. Children legi­timate. 6. cap. 12. It is adjudged and declared, that the Marriage of Priests is Lawful, and legitimates their Children, and makes them capable to endow their Wives, and to be Tenants by the Courtesy. But these Laws were repealed by the Stat. of 1 Mariae cap. 1.

However it came to pass I know not, 1 Jacob. c. 25. but for ought I can find, these Acts lay repealed all Queen Elizabeth's time till 1 Jac. then the latter Act was revived and made perpetual, and their Children made ligiti­mate.

So that upon the whole matter all acts of Parliament, Canons, Constitutions, &c. that restrain the Marriage of Priests, or the Illigitimation of their Children, are made null and void; but the Canons and Acts of Parliament that punish their Incontinency stand in force. Next let us see what Priviledg the Clergy have right to at this day.

CHAP. XI. The Eleventh Chapter shews, what Priviledges belong to the Clergy at this day by the Common and Statute Laws of this Realm.

THE Laws of this Realm have al­lowed the Clergy in holy Orders many great Priviledges: First, The Priviledge of the Clergy. 2 Inst. 3⸪ 625.. 4⸪ May not be Of­ficers tempo­ral. 5 E. 3. c. 5.. 1 R. 2. c. 15 Must not be arrested in Church or Church-yard. in their Per­sons, they are not compellable to serve in any Temporal Office, as Sheriff, Constable, Overseer of the Poor, &c. Neither can they be prest to serve in the Wars: neither may they be arrested in the Church, or Church-yard, when they are attendant on divine Service, upon pain of Imprison­ment, and ransom at the Kings pleasure, and [Page 130]likewise to make agreement with the Par­ty.

And by a Statute made i. 1 Mariae Sess. 2. cap. 3. Most not be distarbed pray­ing or preach­ing. Mariae. It is enacted,

That if any Parson, &c. of their own Power and Authority at any time, &c. shall or do willingly or of purpose by open and o­vert word, fact, act or deed maliciously or contemptuously molest, lett, disturb, vex or trou­ble, or by any other unlawful way or means disquiet or misuse any Preacher or Preachers, &c. licensed, allowed or authorized to preach by the Queen, or by any Arch-bishop or Bi­shop of this Realm, or by any other lawful Ordinary, or by either of the Ʋniversities, &c. or otherwise lawfully authorized or charged by reason of his or their Cure, Be­nefice or other Spiritual Promotion, or Charge, in any of his or their Sermon or Collation in any Church, Chappel, or Church­yard, or in other place appointed to be preached in,

Or if any Person, &c. shall maliciously, willingly or of purpose molest, lett, disturb, vex, disquiet, or otherwise trouble any Parson, Vicar, Parish-Priest or Curate, &c. saying, doing, singing, ministring, or celebrating mass, or other divine Service, Sacraments, &c. that at any time then after shall be allowed, set forth or authorized by the Queen's Maje­sty.

That the Offender upon Conviction before two Justices of the Peace shall by them be [Page 131]committed to the Goal without bail or mainprise for three months, and after to the next Quarter Sessions: where if he re­pent and be reconciled, then to be discharged of his Imprisonment, finding sureties for his good behaviour; and if he fail therein to be continued till the next Quarter Sessions, &c.

This Act though made in the time of Popery is still in force, and may be ex­ecuted upon such as disturb the present Ministers, Parsons, Vicars and Curates, &c. And though it refer to such Church-Service as then after should be settled by the Queen, yet I conceive it extends to her Successors; and a settlement by Act of Parliament is a settlement by the King in the most superlative manner; and the late Act for Uniformity declares and enacts, 14 Car. 2. c. 4. that all former Acts for Uniformity of Common Prayer shall be of force, and extend to the Book of Common Pray­er.

The Bodies of Clergy-men cannot be arrested upon any Capias sued forth upon any Statute-Staple or Statute-Merchant; Must not be arrested. for the Process are made out conditionally Si Laicus fuerit: and if the Sheriff or any other Officer arrest a Clergy-man upon a­ny such Conditional Process, I conceive an Action of false Imprisonment lyes a­gainst him that does it, or he may have a special Supersedeas out of the Chan­cery. Regist. 147. [Page 132](that is the Cursitors Office.) Priviledg in their goods. Regist. 260. a.. Free from Tolls.

And every Parson, Vicar, &c. is by the Common Laws of England free from the payment of any tolls in all Fairs and Markets, not only for all the Goods and Merchandizes gotten upon their Church-Livings, but also for all Goods and Mer­chandizes by them bought to be spent up­on their Rectories and Church-Li­vings.

And they are quit of Pontage Murage and other like charges; Pontage, Mu­rage. and if they be di­strained for any of these, they may have a Writ out of the Chancery, as aforesaid, made of Course without petition or mo­tion, made under the great Seal of Eng­land, directed to the party that distrains or disturbs them for any of these things, commanding them to desist: and if such Writ be not obayed the Cursitor of Course will make out an alias and pluries; and if none of those will be obeyed, an Attachment to arrest the party and detain him till he obey: Regist. 260. a.. Fn. b. 227. f. and this Writ is called a Writ De essendi quietum de Toloneo, which you may see in the Register or in the natura bre­vium.

They are not bound to appear or do suit at the Sheriff's Turn or any Leet or Law day; Not bound to appear at Leets and Sheriffs Turns. Regist. Or. 175. a.. Fn. b. 160. C. and if they shall be distrained so to do, they may have a Writ of Course in the Chancery directed to the Lord of the Leet, commanding him to forbear di­straining [Page 133]them for any such Cause with like process as in the last for his con­tempt.

And by the Statute of circumspecte A­gatis it is enacted, Stat. 13. E. 2 Inst. 491, 492, 493. De violenta etiam ma­nuum injectione in clericum, & in causa de­famationis placitum tenebitur in Curia Christianitatis, dummodo ad correctionem peccati agatur; & non petatur pecunia.

And if a Clergy-Man have Lands, Regist. or. 187. b.. Fn. b. 175. b. Not to be Bay­liffs, Reaves, &c. by the tenure of which he is subject to be Bay­liff Reave or Beadle, and be chosen into any such Office by reason thereof, he has a Cursitory writ out of the Chancery to discharge himself. Beg. or. 188. a⸫; F.n. b. 176. a. Must not be disturbed by C [...]llector of Tenths.

So if the Sheriff or Collector of the Tenths or Fifteens will disturb them in the Lands belonging to their Churches, &c. they may have the like Writ for their discharge, and like Process for disobeying of it, ut supra.

Antiently if a Clergy-Man had been convicted of any Murder Robery Burgla­ry, &c. The Priviledg of Clergy in criminal Ca­ses. he was upon the demand of his Ordinary to be delivered over to him, where he was to make his Purgation ac­cording to the Rules of the Ecclesiastical Laws; and if he cleared himself, he was acquit Lindwood cap. Clerici pro suis crimi­nibus detent. gloss. verb. pro convictis. West. 1 c. 2. Marleb. c. 27. 25 E. 3. cap. 4, and 5. 4 H. 4. c. 3. without any regard to his Con­viction at Common Law; but if they adjudged him guilty, then he was to be degraded and kept in Prison: and this was confirmed to them by several Acts of [Page 134]Parliament. But this priviledg was ne­ver allowed to them in this Kingdom in Treason petit, Treason or Sacriledg.

And a Delinquent might have had his Clergy ad infinitum till the Stat. 4 H. 7. cap. 13. of 4 H. 7. And though this priviledg of the Clergy be taken totally away in many Cases by several Statutes, and in other Cases Lay men have it in Common with the Clergy, if they can read as a Clergy-Man; and though the delivery of them over to the Ordinary be totally abolished; yet the Clergy that are in Holy Orders at this day retain some of their antient priviledges, which the Lay-Men are not capable of.

For if a Clerk in Holy Orders be convi­cted (that is found guilty by the Petit Jury) of a Crime for which the benefit of the Clergy is allowable; at this day he shall not upon the allowance thereof be burned in the hand (as a Lay-Man shall) upon the producing of his Orders; and if he have not them with him, the Court may ex gratia give him time to produce them till any other Assise or Sessions.

And a Clerk in Holy Orders at this day shall have his Clergy ad infinitum from time to time, which no Lay-Man can have above once.

The goods of Clergy-Men were by se­veral Statutes exempted and freed from the King's purveyance; St. 3 E. 3. c. 1. 14 E. 3. c. 1. 18 E. 3. c. 4. 1 B. 2. c. 3. but his Majesty [Page 135]having by Act of Parliament graciously released this Duty, Purveyance. the Laity hath the same priviledg.

A Clergy-Man shall not be amerced the higher in respect of his Church Living or Benefice. 2 Inst. 627. Not amercied for the Church­land. Regist. ov. 289. F.N.B. 29. No Execution upon the goods of the Church.

Nor shall any execution be executed upon the goods of his Church, nor any distress taken in the antient Fee thereof; but otherwise it is of Lands of late purchase: and if he fear any such thing he may have a Protection in Chancery cum clausula (Quia nolumus.)

If an Action of Trespass Debt Account, 2 Inst. 4.. No Capias a­gainst a Clerk. or other Action, wherein Process of Capias lies, be brought against a Clerk in Holy Orders, and the Sheriff upon the Original return that the Defendant is Clerious Be­neficiatus nullam habens Laicum feodum ubi summoniri potest; in this Case the Plaintiff cannot have a Capias to arrest his body, but a Writ to the Bishop to compel him to appear.

And note that all the Priviledges of the Church of England are confirmed by the Antient and good Statute of Magna Charta: Priviledge of the Clergy con­firmed by seve­ral Parlia­ments. And so they were for the most part at the opening of every other Parliament after till the beginning of the Reign of H. 5. How it began then to be discontinued by the negligence of the Clergy, or for what other cause, I know not.

And so having thus briefly mentioned many of the priviledges of the Clergy, Conclusion. whereof the Common Law takes notice, and to which they have right at this day by the Laws and Statutes of this Realm, I shall not only conclude this Chapter, but the first Part of this Discourse with

CHAP. I. The First Chapter shews, what Tithes are, the several sorts and kinds thereof, and in what manner due.

HAving in the former part of this discourse shewed the worthy and Reverend Cler­gy-Men in what manner they may lawfully and justifiably attain to such preferments in the Church as they are capable of, and in what [Page 142]manner they may avoid all the perils and dangers that attend the Beneficed Clergy-Men; it rests now that I shew him what profits they may justly challenge to belong to their Church-preferments, and in what manner to be paid, and how to be reco­vered if need require. And first of Tithes, which the Canonists define to be Definition.

A tenth part or portion of increase com­manded to be paid to the Sons of Levi for their Ministry, wherein they served in the Tabernacle.

Or, as some others define them, they are

Omnium bonorum licitè quaesitorum quo­tae pars Deo Divina institutione debi­ta.

But the Common Lawyers define them to be

An Ecclesiastical Inheritance Collateral to the Estate of the Land, Co. 11.13. b.. and of their own proper Nature due only to an Ecclesiastical Person by the Ecclesiastical Laws.

And for that reason no unity of possession can extinct or suspend them; but they, notwithstanding any such unity, remain in esse, and may be demised or granted notwithstanding any such unity: but may more properly in my judgment be defined to be

A tenth part or some other thing in lieu thereof, of all the Increase yearly arising forth of the profits of the Lands and [Page 143]Stock, or raised by the Industry of the Pa­rishioner, and properly due to the Clergy that have the Cure of the Souls in the Parish where they arise.

And by some Canonists Tithes have been divided only into two kinds, that is, Division. Predial and Personal: and in this man­ner of division they comprehend all man­ner of Tithes, that arise either immediate­ly or mediately from the Land, under the name of Predial Tithes: Doct. & Stud. l. c. 55. p. 168. b. Lindwood c. Quoniam prep­ter verbis di­vid end. est de­cima. which they again distinguish in Predial mediate and imme­diate; under which they comprehend the Tithes of Corn Hay Wood Herbs and all other things, that either come from the ground by manurance, or of its own Nature; and under the name of Tythes Predial mediate is comprehended the Tithes of all manner of Cattel and other things that receive their nourishment from the ground.

But Tithes by the Common Lawyers, 2 Inst. 649. Roll 1.635. a. (and which division I shall observe in my discourse) are divided into Predial Mixt and Personal: and according to this divi­sion all Tithes that arise from the ground, as before is said, immediately, Lindwood c. Quoniam prop­ter verbis tali­bus decimis. are only ac­counted to be Predial; and those that arise from Cattel and other things, that receive their nourishment immediately from the ground, they call Mixt; and those that a­rise from the Labour and Industry of Man alone Personal.

Tithes again both by the Common Lawyers and Canonists are divided again into great Tithes, in Latine majores seu grossae decimae; and into small Tithes, in Latine minores or minutae decimae. And in this division Corn Hay and Wood are all accounted gross or great Tithes. But there has been some question whether Tithe Wood should be accounted a great or minute Tithe, and resolved, that if a Vicar be only endowed with the small Tithes, Rolls 1. 643. v. 2. 2 Bulst. 27. and have by reason thereof always had Tithe Wood, that in such Case it shall be accounted a small Tithe, otherwise it is to be accounted amongst the great Ti­thes.

But all manner of Tithes of Gardens Herbs Roots Fruit Saffron Woad, Cro. El. 467. Hutton 77. Cro. Car. 28. Rolls 1. 643. v. 3. whether sowed in Fields or Gardens, Flax Hemp Hops Rape and all other Predial Personal and Mixt Tithes are accounted inter minu­tas decimas; but in Ʋdal's and Tyndal's Case Hutton 77. in some Cases Hops Woad, &c. may be great Tithes in places where they are much sowed.

And herein the Custom of England is kind to the poor Vicars, Lindwood c. Quoniam prop­ter verb. tali­bus decimis. making many things to be allowed for Minute Tithes that are not so in others.

I have been the longer in this division of Tithes between great Tithes and small Tithes, because many Vicarages are in­dowed with the small Tithes only, and [Page 145]in some old Indowments you will find the word Altera omnia, Spelm. Gloss. 28 Cro. El. 578. Hetley 135. which by Custom may as well comprehend the small Tithes, as such profits as arise from the Altar.

Now perhaps it may be expected, Quo Jure de­bet. I should say something to satisfie the Rea­der by what Law Tithes became due un­der the Gospel. But in that point I find so great a difference between the Cano­nist School-men and Divines, that it would be a great presumption in me to take upon me to determine the point, the rather because I am informed by a reve­rend learned and grave Divine, Helyns Hist. of Presbytery 391. Seld. Hist. de­cim. cap. 5. Sect. 4. cap. 7. And in the end of the Epistle to the Reader. that the learned Selden retracted his opinion there­in; and what it was, you may see in the places noted in the Margent: But so far as I have observed, they all agree in this, That Tithes quoad sustentationem Cleri vel ministrorum Dei are jure divino; So that the sole question amongst all these learned men is about the quantity, The Question; or quo­ta pars. But be they due jure divino, ju­re Ecclesiastico, or jure humano, I conceive the difference cannot be great, since, as it must necessarily be confessed, they have been given and consecrated Deo & sanctae Ecclesiae; and so being dedicated to God and his Service (in my poor Judgment) the taking them away from the proper use and end cannot be less sacrilegious, Doct. & Stud. l. 2. cap. 55. f. 164. b⸪ 65 a⸫; than if they were without dispute jure divino. I shall not therefore stuff this present Di­scourse [Page 146]with the Arguments of any side; but shall leave the learned to their own Conceits, it serving my purpose that they be due by any Law, divine, humane, or Ec­clesiastical. My next examination shall be to whom they are due.

CHAP. II. The second Chapter shews to whom Tithes are due, and by whom to be paid.

HAving shewed in the former Chap­ter what Tithes are, To whom Tithes are due to be paid. and the seve­ral kinds thereof, I shall in the next place shew to whom the same are due to be paid.

That there were Infeudations of Tithes, before the parochial Rights were settled, both in this and other Countries is with­out dispute both here in England and in other Christian Kingdoms and Common­wealths: Seldens hist. decim. 178, &c. Tho. Aq. Sum. 20. 2ae. q. 88. art. 3. concluisi­one. in which particular the curious may satisfie themselves in Mr. Selden's History of Tithes, and other Authors. And it is more clear, that before the time that the parochial Rights of Tithes were set­led, that the Owners of Lands might grant their Tithes to any Ecclesiastical or [Page 147]Religious persons (a multitude of Pre­cedents whereof the Reader for his satis­faction may find in the Monasticon Angli­canum of Mr. Dugdale): so that by this means the whole Tithes of some Parishes, and divers great portions out of other Parishes were granted to Abbots, Priors, &c. and some to the Parsons and Rectors of other Parishes; which is the reason, that at this day there is several portions of Tithes held from the Parish Churches by Impropriators and the Rectors of other Parish Churches.

When the parochial Right of Tithes was first settled, When the Pa­rochial Right of Tithes first begun. there hath been (as should seem) a vulgar Error: for 'tis frequently said in our Common Law Books, that be­fore the general Council of Lateran, 10 H. 7.18. a.. 43 E. 3.5⸫; Doct. & Stud. l. c. 55. Co. 2. 44. b. Dyer 84, &c. which was held 1179. That every one was at liberty to give his Tithes to what Spiritual Ecclesiastical or religious Per­son he pleased; but that by that Council the parochial Right of them was settled. Neither was this an Error of the Com­mon Lawyers only; for Mr. Lindwood a learned Doctor of the Civil and Canon Laws, that lived in the time of H. 5. a­bout two hundred and fifty years ago, tells us, that

Bene potuerunt Laici decimas infeudum retinere, Lind wood c. locat. & con­duct. verb. portion. & eas alteri Ecclesiae dare ante concilium Latarenense, non tamen post, &c.

But there is no Canon in that Council to be found, whereby the parochial right of Tithes was settled, nor was the paro­chial Right of Tithes settled till the year 1200; and then not by any Canon, but by a decretal Epistle of Pope Innocent the third, Selden hist. Decun. 231. 2 Inst. 641. a Brief of which Epistle here fol­lows, as I find it in Mr. Seldens History of Tithes, and in Sir Edward Cooks In­stitutes.

Pervenit ad audientiam nostram, Innocent. 3. Epist. decret. l. 2. p 457. Edit. colen. quod multi in Diocesi tua Decimas suas integras vel duas partes ipsarum non illis Ecclesus, in quarum Parochiis babitant, vel ubi praedia habent, & à quibus Ecclesiastica percipi­unt Sacramenta, persolvunt; sed eas aliis pro sua distribuunt voluntate: Cum igitur inconveniens esse videatur & a ratione dissi­mile, ut Ecclesiae, quae Spiritualia seminant, metere non debeant a suis Parochianis tem­poralia, & habere, Fraternitati tuae (be­ing directed to the Archbishop of Can­terbury) authoritate praesentium indulge­mus, ut liceat tibi super hoc, non obstante contradictione vel appellatione cujuslibet seu consuetudine hactenus observata, quod ca­nonicum fuerit ordinare, & facere quod statueris per Censuram Ecclesiasticam fir­miter observari: Nulli ergo, &c. Confirma­tionis, &c. Datum Lateran. 2 Nonas Ju­lii.

I must acknowledg I give the Reader this a little imperfect for want of the O­riginal: [Page 149]and it was Sir Edward Cooks Case also; for I perceive the borrowed his from Mr. Selden.

But some have fancied (and perhaps not without reason; for this seems not to be a general Decree, but a particular Instru­ction to the Arch-bishop of Canterbury) that the parochial Right of Tithes was not generally settled of long after, that is, by a Canon made in the Council of Lyons, which was in the year of our Lord 1274. in which Council there is a Canon for the settling the parochial Right of Tithes. But whether that were the Original, or a Con­firmation of some other Decree or Coun­cil, I dare not take upon me to judge: but certain it is, that about this Century the parochial Right of Tithes was settled in general. But though this decretal Epistle of Pope Innocent the third be not gene­ral, yet it was obligatory as to the Pro­vince of Canterbury; so that in that Pro­vince the parochial Right of Tithes may take its date from the time of that de­cretal Epistle, which was, as above is said, in the year 1200.

But after the Parochial Right of Tithes was settled, it is clear, that no Lay-man was capable of Tithes in pernancy but in particular Cases, till the Statutes, Selden. hist. decim. 398. and in his Re­view. 478⸫; by which the Monasteries and religious Houses were dissolved, enabled them; but in some special Cases, Lay-men were capable of [Page 150]Tithes in pernancy, Co. 2.44. a.. Lay-men capa­ble of Tithes in Pernancy. Co. 2.45. a⸪ as in the Case of Pigot and Heron cited in the Bishop of Winche­ster's Case: where the Case is put, that the Lord of a Mannor, and all those whose Estate he had in the Mannor time out of mind, had paid to the Parson of D. (in which Parish the Mannor lay) for the time being for the maintainance of Divine Ser­vice in contentation of all Tithes arising within the said Mannor, and that in con­sideration thereof he and all those whose Estates he had in the said Mannor by the time aforesaid had and enjoyed all the Tithes arising in the said Mannor: and in this Case it was adjudged, that the Lord of the Mannor might have these Tithes in pernancy, and sue for the same in the Spiritual Court; but a man cannot claim Tithes generally as part of, or belonging to, a Mannor.

But since the several Statutes made for the dissolution of Monasteries, Lay-men capa­ble of Tithes in Pernancy by the Statutes of the dissoluti­on of Abbeys. those Tithes which were appropriated to the religious houses so dissolved are become Lay-Fee, and any Lay-man by the Laws of this Realm are capable of them in pernancy, and may sue for the same in the Spiritual Courts.

But since the parochial Right of Tithes was settled prima facie, All Tithes be­long to the Rector prima facie. Portions by Prescription. All Tithes not appropriated belong to the Rector of the Parish Church wherein they arise; yet notwithstanding the Parson of one Parish [Page 151]may prescribe to have a Portion of Tithes in the Parish of another; 14 H. 4.17. a 44 Ass. p. 25. Roll 1.657. o. and so might Abbot, Priors, and other religious persons prescribe to have portions of Tithes in Parishes, How Prescrip­tiont are to be proved. Seld. hist. de­cim. 364⸪ 290⸪ whereof they had not the Ad­vowsons; and by consequence the Paten­tees from the Crown, and the Impropria­tors may claim the same by prescriptions in the Abbots, Priors, &c. and the usage since the dissolution will serve to prove the prescription and usage in the Abbots, &c. that they held the same so time out of mind.

As for extra-parochial Tithes, Extra-pare­chial Tithes. 7 E. 3. there has been some differing Opinions. Sir Wil­liam Herle was of opinion, that they be­longed to the Bishop of the Diocess, as general Parson of his whole Diocess, grounding his opinion, as it should seem, Seld. hist. de­cim. 108. upon the Canon Law: But there was ne­ver any such Canon received or approved in this Kingdom.

But it hath been resolved both in Par­liament, 21 Ass. 75. 2 Inst. 647⸫; Roll 1.657. o. p. Seld hist. decim. 365. and by several Judgments at Common Law, that all extra-parochial Tithes belong to the King, who is a mixt Person, and capable of Tithes at the Com­mon Law in pernancy.

Now having shewed in general who are capable of Tithes in pernancy at this day, In Particular Cases to whom Tithes are due. and to whom of Common right they belong, I shall proceed to shew to whom they are due in some particular Cases.

If a Parson Lease his Glebe-Lands, Cro. El. 161. Against the Parsons own Lease. Portman vers. Hind in 31, & 32 El. B. R. Co. 11.13. b⸪ Dyer 43. p. 22 est Quaere. and do not also grant the Tithes thereof, the Tenant shall pay the Parson Tithes: nay though the Parson Lease his Lands cum omnibus proficuis & commoditatibus eidem spectantibus, rendering Rent pro omnibus exactionibus & demandis quibus­cun (que) Yet notwithstanding the Tenant shall pay the Parson the Tithes arising upon these Lands.

The like Law it is, if an Impropriator, Vicar, &c. make such Lease, &c.

And as the Parson shall have Tithe of his own Tenant, Against his Fe­offment. Co. 1.111. a⸪ Co. 11.13. b⸪ so he shall have of his Feoffee. And if a Parson have Lands in the same Parish whereof he is Parson, and demises his Tithes, he shall pay Tithes to his Farmer.

If a Parson sow his ground, Dyer 43. p. 21. Moyle ver. Ewre. Hill. 1 Jac. B. R. Roll 655. k. 2. Lease. Roll 655. k. 1. and then sell the emblements, (I mean the Corn growing upon the ground) the buyer of the Corn shall pay the Tithe of it to the Parson that sowed and sold the Corn.

So if a Parson sow his Glebe-Land, and then Lease the Land, the Tenant shall pay his Parson Landlord Tithe of this Corn.

There has been some opinions, Co. 10.88. b⸪ 21 H. 6.30. a.. that if the Parishioner sow his Lands, and before severance the Parson die, that in this case the Parson's Executors, Uphaven ver. Humfries 40 El. per Poph. & Gaudy vers. Fenner. and not his Suc­cessor, should have the Tithes.

And there has been some Opinions, that if the Parson sow his Glebe, and die be­fore [Page 153]severance, that his Executors should not pay Tithes of this Corn.

But both these Cases, To whom the Tithes in the Vacation be­long. St. 28. H. 8. c. 11. if they had been Law, are put out of doubt by the Stat. of 28 H. 8. which hath given all the Tithes and other profits belonging to the Rectory to the Successor from the death of the last Incumbent, which hath taken away all pre­tence the Executors could have in such Cases. But notwithstanding this Statute, I take the Law to be clear, that the Executor of the Parson shall have the Corn sown by his Testator in his life time, Rolls 655. k. 3. as the Execu­tors of other Tenants for life have by the Law.

It hath been held, Whether the Vicar and Par­son shall pay to each other. Crompt. Case P. 7. Car. 1. B. R. Cro. El. 578. that the Vicar upon a general indowment shall not pay Tithes of his Glebe to the Parson, or the fruits that arise from the same, Quia decimas Ec­clesia Ecclesiae reddere non debet.

So if a Vicar be endowed of all the small Tithes arising within the Parish, yet he shall not have the small Tithes arising upon the Glebe-Lands of the Parson. Tithes may be­long to a Chap­pel. 13 Ass. p. 2. Dyer 87.

Tithes by prescription may be appendant to an antient Chappel.

CHAP. III. The third Chapter shews of what things Tithes are due, and in what man­ner the Tithes of Hay and Corn are to be paid.

Tithes Regularly are to be paid of all things annually arising from the gound, Of what things Tithes are to be paid. Co. 11.160. F. N. B 53 E. either of themselves, or by the Culture and Industry of the Parishioner without any deduction of Averg. in their proper kinds, as soon as the same may be separated and divided from the nine parts in Sheaves Garbs or Heaps. Lind wood c. Quoniam prop­ter verb. non deductis expen­sis. But the man­ner and form of the payment of Tithes is for the most part governed by the Custom of the place: and therefore if by Custom the tenth part, How Tithes of Corn are to be paid. of Corn or Hay hath been measured forth growing upon the Lands, as 'tis in some parts of Lincolnshire, this manner of Tithing is to be observed; for in what manner soever the Tithe hath been paid time out of mind, St. 27 II 8. c. 20. 32 II. 8. cap. 7. in such manner it still ought to be paid; and therefore where Tithe Corn hath used to be paid time out mind in Sheaves or Garbs bound up, it is no good payment to leave it in bonds un­bound, as I have known some contentious Parishioners do.

So for the Tithe of Hay, How the Tythe of Hay is to be paid. if the Parishioner have used to make it into Hay-cocks be­fore they have set forth their Tithes, they must do so still; Roll 1.644. y. 1256. but where there is no such Custom, they may set it forth in Grass-cocks.

The same order ought to be observed in all other things arising from the Ground as Rape Saffron Apples, &c. and other fruit.

But no Tithes are to be paid for the Rakings of Corn, Rakings. 2 Inst. 652⸫; Cro El. 660. More 278. Crok. Jac. 42: Yelver. 86. Hetley 133. Rolls 1.645. z. 11, 12, & 13. Aftermaths. unless the Parishioner fraudulently scatter his Corn to cozen the Parson of his Tithes.

Neither are Tithes to be paid of the aftermaths of Meadows, nor of balks in Corn Fields, or of the stubble of Corn: But if the Meadowing be so rich, that there is two crops of Hay got in one Year, or two crops of Woad, &c. there the Parson shall have Tithe as well of the later as of the former Crop.

If a Man gather green pease to spend in his House, Rolls 1.647. a. 11, 12. Green Pease. and there spend them in his Family, no Tithes shall be paid for the same; but if he gather them to fell or to feed Hogs, there Tithes shall be paid for them.

Neither shall Tith Hay be paid for the Grass growing upon head-Lands, Headlands. Roll 1.646. z. 19. which are only large enough for the turning of the plow.

But Tithe shall be paid of the Hay and Corn growing in Orchards, 2 Inst. 652⸫; Orchards. though the Tith of the fruit growing in them were paid the same Year, be it Apples Pears Cherries, &c.

There hath been some question about fodder gotten in the feen Lands in Cam­bridgshire and elsewhere, More 683.. Cro Jac. 47⸪ Fodder. and spent upon beasts of the Plow and Pail, whether it should pay Tithes or no; but it hath been resolved, that Tithes shall as well be paid of this Fodder, as of other Hay spent upon the Beasts of the Plow and Pail.

But it has been resolved, Grass out in Meadows for Beasts of the Plow. Wells vers. Crawly. T. 1. Car. 1. B.R. Tares Vetches cut green. Cro. Car. 393. Jones 357⸪ that for Grass cut in Meadows to feed the Beasts of the Plow, and not made into Hay, that Tithes should not be paid thereof.

It hath been resolved, that Tares Vetches, &c. cut green for the feeding Beasts of the Plow, by Custom may be freed from the payment of Tithes, but not without Custom.

CHAP. IV. The Fourth Chapter sets forth where, and in what Cases, and in what manner, the Tithes of Wood are to be paid.

IN the time of Stratford Arch-Bishop of Canterbury, How and where Tithe Wood is to be paid. in or about the 17th Year of the Raign of E. 3. 1343. there was a Provincial Canon or Declaration made to this effect.

Declaramus provisiône concilii sylvam coeduam illam fore, Canon. Lindwood c. Quanquam ex solventibus, &c. quae cujuscun (que) existens generis arborum in hoc habetur ut caedatur, & quae etiam succisa rursus exstirpibus aut radicibus renascatur; ac ex ea decimam ut pote realem & praedialem parochialibus seu matricibus Ecclesiis persolvendam, nec non Sylvarum possessores hujusmodi ad praesta­tionem decimarum Liguorum ipsorum Ex­cisorum in eis sicut faeni & bladorum omni censura Ecclesiastica fore Canonicè compel­lendos.

But in or about the same Year there was a Petition in Parliament, Exact Abridg­ment p. 40. nu. 51. & ibid. 80. num. 37. that no Man should be impleaded in Court Christian for the Tithes of Woods or under-Woods, but in places accustomed, which was answered; As heretofore, the same shall be.

The like Petition was in the 25th Year of E. 3. and other Parliaments, till at the length in the 45th Year of the same King an Act of Parliament was made to this ef­fect reciting,

That whereas they sell their great Wood of the age of twenty years or of greater age to Merchants to their own profit, St. 45. E. 3. c. 3. Statute not to be paid of great Wood. and in aid of the King in his Wars, Parsons and Vicars of Holy Church do implead and draw the said Marchants in Suit in the Spiritual Court for the Tithes of the said Wood by the Name of Sylva caedua, whereby they can­not sell their Woods to the very value, to the great dammage of them and the Realm. It is therefore by that Law ordained and e­stablished, that a Prohibition in this case shall be granted, and upon the same an At­tachment, as hath been used before this time.

By which it appeareth, that this Act of Parliament was but a Declaration of the Common Law, Prohibitions and Attach­ments thereupon in such case having been formerly used, 9 H. 6.56. a⸫; T. 27 E. [...]0.28. a. Prohibition in Point. 50 E. 3.10.a⸪ and so was Paston's opinion. 9 H. 6.

This Act of Parliament was after questioned by the Clergy pretending it did not pass as an Act of Parliament, but only as an Ordinance and so not binding. And thereupon the Commons in the next Parliament petitioned, Exact Abridg. 118 nu. 21. that it might be enacted, that for Wood above twenty [Page 159]Years growth no Tithes should be due, and that in all such cases a Prohibition might be granted. To which was answered, that such Prohibition should be granted as then before had been used.

But Sir Edward Cook in his Com­mentary upon Magna Charta does suffi­ciently prove it was an Act of Parliament.

1. Because it is entred upon the Parlia­ment Roll amongst other Acts of Parlia­ment. 2. 2 Inst. 643⸪ 644⸫; It is under the Title in that Roll of Statutes of E. 3. Anno regni sui 45. 3. It was proclaimed with the rest of the Acts of that Parliament. 4. It is penned in the form of an Act of Parlia­ment, viz. (it is ordained and established.) 5. It hath the consent of the Lords and Commons. 6. There hath been infinite Prohibitions upon it. To which let me add, that in the Parliament of 8 R. 2. 8 R. 2. Exact Abridg­ment of Re­cords nu. 21. It was owned for an Act of Parliament, in which Parliament 'tis like many of the Persons were present that were at the ma­king of the said Act.

And in 9 H. 6. 9 H. 6.56. a⸫; Exception was taken to the Prohibition, because it was not grounded upon this Statute.

And in the 11 H. 4. 11 H. 4.9. a.. it was affirmed by Thirming to be an Act of Parliament and in force. Seld. hist. de­cim. 236. 2 Inst. 643⸪ 644⸫; Roll 1.637⸪ 638, 639.

But whosoever desires more satisfaction in this point, I refer them to Mr. Selden's History of Tithes, and the other places mentioned in the margent.

Notwithstanding this Act, many que­stions were startled what was Sylva caedua, and many Petitions in Parliament to have it declared; to which I find no positive answers, but sometimes referred to usage, and sometimes the King took time to ad­vise.

But Belknap a learned Judg, Sylva caedua quid. 50 E. 3.10. b⸫; 50 E. 3. declares, that Sylva caedua is to be intended every manner of Wood that may be cut and will grow again: which all manner of Wood will do, as he there says, if it be preserved from Cattel; and therefore the Defendant in the Prohibition in that case was put to Traverse, that he sued not in the Spiritual Court for the Tithes of gross Woods.

So that the question at this day chiefly is, what shall be said gross Woods? To which question

The Judges of the Common Law have resolved, 2 Inst. 643⸫; What shall be said great Wood. Contra Rolls 1.640. q Plo. 470. a.b. that all sort of Wood that is usually imployed for the building of Houses, Mils, &c. are gross Woods, and within this Statute: of which sort are Oak Ash Elm Beech Horse-beech and Horn-bean against the opinion in Molyn's case: Contra Rolls 640 q. 7. Hob. 288. Rolls 640. q. 6, 7, 8. Hob. 219⸪ Noy 30⸪ Cro. Jac 199⸪ Asp is likewise esteemed a gross Wood, being sometimes used for Timber; but for Willows Hasels Hollies Maples Birch Alders Thorns, &c. of what age or bigness soever they be, they are regu­larly to pay Tithes.

But if they be cut for fencing of grounds, Cro. El. 499⸪ 609⸪ 2 Inst. 652⸫; Cro. Car. 113.. More 683.. Roll 1.644. z. 1, 2, 3. or for fewel to be spent in the Houses of the owner within the same Parish, no Tithes shall be paid of them.

But if by Custom Tithes have been paid of such Wood, the Custom is to be observed.

So if a man cut Wood for the burning of Bricks, Of what Wood Tithe shall not be paid. Roll 1.645. z. 8, 9. Burning Bricks. Roll 1.645. z. 10. which are imployed for the re­pair of houses and buildings of the own­er within the same Parish, no Tithes shall be paid for it; but if he make Bricks to sell, or for making of houses of pleasure, or other than for necessary Habitation, he shall pay Tithe for the Wood spent there­in, if Tithable.

If a man convert his Land into a Nur­sery for fruit-trees or other trees, Nurseries, Roll 1.637. E. 6. Cro. Car. 526. Jones. 416. and sell them for profit to such as transplant them into other Parishes he shall pay Tithes of them.

If a man cut his Coppice Wood, Grubbed Wood, Roll 1.637. E. 7. and pay Tithe of them, and soon after grub up the roots to cleanse the ground, he shall not pay Tithes of them.

Upon the whole matter it is left a little uncertain, which shall be accompted gross Wood; because in some Countries almost the meanest sort of Wood are used for building, and the Judgments in our books vary, some allowing one thing for Timber, which another contradicts; but the proper and undeniable Wood for Tim­ber [Page 162]are Elm, Ash and Oak, which are u­sed for Timber in all Countries and Places as Timber: It rests now to shew in what Cases such Wood as are accompted gross Wood shall pay Tithes.

If Oak, Ash, Elme, &c. which are estee­med Timber in the Countries where they grow, be cut under one and twenty years growth, they are accompted Sylva caedua and ought to pay Tithe.

But the Loppings of great Oaks, Loppings of trees. 2 Inst. 643⸪ Cro. Jac. 100⸪ More 762⸫; Plow. 470. b. Roll 1.640. q. 13.4. Co. 11.48. b⸪ Ashes, &c. though the Lops be under twenty years growth, shall not pay Tithes; for they are priviledged by the bodies, neither shall Tithes be paid of the shoots and un­der-wood, which grows from the roots and stocks of such Timber-trees, and trees above the growth of twenty years, which have been felled.

Nor shall Tithes be paid of the Bark of such Trees as are Timber-trees, Bark. 2 Inst. 643.. Co. 11.49.a⸫; and priviledged from the payment of Tithes.

But Tithes shall be paid of the mast, acorns, &c. of Timber-trees, because the same is of annual increase. 2 Inst. 643.. Dotards 2 Inst. 643⸫; Cro. El. 477. Roll 1.640. q. 2. Co. 11.49. a⸫; Rolls 1.640. q. 1.

Neither shall Tithes be paid of Tim­ber-trees, which become dotard, and are become arida, sicca, & non portans folia in aestate nec existens maheremium.

If one lopp Oaks, Ash, &c. under twen­ty years of age, and after let them grow above twenty years of age, no Tithes [Page 163]shall be paid of them or their Lops. Wood mint with great and Ʋnderwoods. Parsons Law 99. T. 19. Jac. B. R. Buckhurst vers. New­man Parson of Staplehurst. T. 36. El. B. R. per Henden.

It hath been held, that if a Wood ground be mixt with Woods tithable, and Woods not tithable, and the greater part be such as are not tithable, it shall priviledg the rest and pay no Tithe; but if the greater part be tithable it shall pay Tithe of such part as is tithable; for where the greater part is great Wood, the whole shall be called grand Wood à majore.

It hath been a question amongst the Ca­nonists, Who shall pay the Tithe of Wood. Lindwood c. Quanquam ex silventibus & verb. Sylvarum pos. & cap. Quia quidam maledictionis verb. asportan. who shall pay the Tithes of Wood tithable, the buyer or the seller, Mr. Lind­wood in his Gloss upon the Canon before recited, seems to be of opinion, that the buyer shall pay the Tithes, Quia verum e­nim est quod decima sequitur fructus, & cum onere decimae transferuntur fructus in alterum, and this opinion of his seems reasonable, where the Owner of the wood sells the whole wood together, or parcels it out, and the buyers cut it; but if the Owner of the Wood cut it himself, and then sells it by parcels, there it seems rea­sonable, that the Owner of the Wood should pay the Tithe; Roll 1.656. l. 1. but by the Com­mon Law the Parson may sue the one or the other at his Election.

And it is to be observed, Roll 1. 637, f. that a whole Province, County or Hundred may pre­scribe in non decimando of Woods, Prescription of not Tithing of Wood. as in the Wilds of Kent and Sussex and other places; and therefore the Commons in [Page 164]the 18 El. upon the making of the afore­said Canon moved in Parliament, that no man should be drawn in Plea in the Court Christian for the Tithes of Wood or Underwood, except in such places where such Tithes have been used to be paid; Roll 1. 637. f. for by the strict Letter of this Canon, Tithes were to have been paid of all manner of Wood great and small in all places, to which the Answer is recorded, Let it be done in this also, as has been done before time.

The manner of the payment of Tithe wood must either be by the measure of the ground by Poles, The manner of paying Tithe Wood. Pearches, &c. as 'tis in some parts of Lincolnshire, or every tenth Faggot, Billet, &c. as 'tis paid of Corn and other things, but in this, as in all other Cases, the Custom of the place is to be observed.

But no Tithe shall be paid of Wood cut for Hop Poles to be used in the same Parish, White vers. Arch. M. 15. Jac. C. B. where the Parson hath the Tithe of the Hops.

CHAP. V. The Fifth Chapter shews where, and in what Cases, Tithe is due for the herbage or agistment and Pasturage of Cattle, and who is to pay the same.

I Am now come to speak of the Tithe of herbage, In what Cases Tithe Herbage is due. agistment or depasturing of Cattle, for which I find no Canon, save a Clause of a Provincial Canon of Robert Winchelsey, dated 1305. in these words.

De Pasturis autem & pascuis tam non communibus quam communibus statuimus, The Canon. quòd decimae fideliter persolvantur, & hoc per numerum animalium & dierum, ut ex­pedit Ecclesiae.

The Tithe of the Herbage or Agist­ment of Cattle is due, where the Owner or Farmer of any Lands, Depastures the same with barren Cattle, that yield no pro­fit at all to the Parson, which is a Tenth Part of the yearly value of the ground so eaten, but commonly a twentieth part is accepted, but in this, as in all other Tithes the Custom and Usage of the place is to be observed.

If the Owner of the Land agist it with Forrainers Cattle, Cro. Car. 237.559. Jones 254. Who shall pay it. then the Owner of the Land shall pay the Herbage Tithe; but if he let the ground to a Tenant, then the Tenant is to pay it.

But no Herbage Tithe shall be paid for the Agistment of Beasts bred for the Plow and Payle, Cro El. 365. 2 Inst. 651⸪ Cro. Car. 237. 559. Roll 1.647. a. 9, 10. Roll 1.643. R. 4. Bulst. 1.171. Poph. 126.142. Wild vers. Lampton. T. 15. Jac. B. R. per 3 Inst. in Houghton. Saddle horses. Roll 1.646. a. 4, 5. Beasts bred for the Plow and Pail. and so imployed in the same Parish; nor for Beasts fed and spent in the Owners house in the same Pa­rish.

So if a man eat a ground with his own Saddle Horses, he shall pay no Tithes for the same; but if an Inn-keeper eat up a ground with Guest horses, he shall pay Tithes for the herbage of them.

If a Forrainer that lives in another Pa­rish depastures a ground with Cattle bred for the Plow and Pail, to be imployed in a Forrain Parish, he shall pay Tithe for the agistment of such Cattle.

And there is no difference between the Case of a Parishioner and a Forrainer, where the ground is eaten with unprofi­table Cattle, and not bred for the plow and pail, Saddle horses and fatting Cattle, as aforesaid to be spent in the Parishioners house; but that the Parishioner, as well as the stranger, shall pay Tithe; but for the breeding of Cattle for the plow and pail, &c. conduces to the profit of the Parson in his other Tithes.

No Tithe is due to the Parson for the herbage of beasts ferae naturae, as Deer, 2 Inst. 651⸪ Herbage of Beast ferae naturae. F.N.B. 53. g. Co­nys, &c. without a special Custom.

Fitzherbert in his natura brevium seems to be of opinion, that there is no Tithe due for the herbage or agistment of Cattle, and adds this reason, because they pay Tithe of the Cattle there depastured, which proves his meaning to be, that there is no Tithe herbage due, where the ground is depastured with profitable Cattle.

If a ground be eaten with profitable Cattle, as milch Cows, Yews, Pasture eaten with mixt Cat­tle. Lambs and Cattle bred for plow and pail, &c. and also with barren and unprofitable Cattle, and the profitable Cattle exceed in number, it should seem the greater part being profi­table should free the rest, Roll 1641. q. 20. Quaere. tamen inde quae­re.

No Tithe Herbage is to be paid of the Agistment of Oxen, Roll 1.646. a. 6, 7. Beasts of the Flow. Horses or Beasts of the plow imployed and used in the same Parish, for they are profitable Cattle to the Parson.

If a ground be eaten with barren and unprofitable Cattel, Ground eaten with mixt Cattle. and profitable Cattel together, and the profitable Cattel are the less in number; I conceive there's no doubt but the Land holder must pay Tithe in kind for the profitable Cattel, and Tithe of the herbage for the rest, and not her­bage for the whole.

If there be a Custom in a Country to sow Tares, Yares and Vet­ches eaten green. Roll 1.646. a. 6, 7 Vetches, &c. and to eat them green upon the ground before they are ripe, with Horses and Beasts of the Plow, no Tithes shall be paid for the same.

If a Stranger or a Parishioner buy bar­ren Cattel, Roll 1.647. a. 8. and 16. Of what Cattel herbage is due. and depasture and feed them for sale, he shall pay Tithe for the her­bage of them.

If a Man buy Oxen, Roll 1.647. a. 13. Steers or Horses, and depastures and after sells them, and doth not without fraud imploy them in the Plow, he shall pay Tithes for their agistment: and if he work them fraudu­lently to defeat the Parson of his Tithes, it will not serve his turn.

So if a man buys or rears young Cattel, Roll 1.647. a. 15. and depastures them in a Parish, and do not imploy them there for the Plow or Pail without fraud, as hath been said, he shall pay Tithe for the herbage of them.

But for the Grass of Fallows no Herbage shall be paid, P. 7. Jac. C.B. Parsons Law. because it is for the bettering of the Parson's Tithes in the Year follow­ing.

CHAP. VI. The Sixth Chapter shews where, and in what manner, the Tithes of Calves, Milk, Cheese, Wool, Lambs, Piggs, &c. are payable.

IN the payment of these sort of Tithes I do not observe that the Common Law crosses the Canon in any thing ma­terial, How the Tithes of Calves, milk, wool, Lambs, &c. are to be paid. and therefore I shall recite you the Provincial Canon made by Robert Win­chelsey. And his Clergy Anno Dom. 1305. which is to this effect.

De nutrimentis autem animalium, The Canon. Lindwood c. Quoniam prop­ter. scilicet de agnis, statuimus, quòd pro sex agnis & infra, sex oboli dentur pro decima; si septem sint agni in numero septimus Agnus detur pro decima Rectori: ita tamen quòd Rector Ecclesiae qui septimum Agnum recipit, tres obolos in recompensationem solvat parochia­no a quo decimam recipit: Qui octavum recepit, det denarium: Qui vero nonum, det obolum parochiano, vel expectet Rector usque ad alium annum, donec plenariè decimum agnum possit recipere si maluerit; & qui ita expeciat semper exigat secundum Agnum meliorem vel tertium ad minus de agnis secundi Anni, Et hoc pro expectatio­ne primi anni. Et ita intelligendum est de [Page 170]decima lanae: Sed si oves alibi in Hyeme & alibi in Aestate nutriuntur, dividenda est decima; similiter si quis medio tempore emerit vel vendiderit oves & certum sit à qua parochia illae oves venerint, earundem divi­denda est decima, sicut de re quae sequitur duo domicilia: si autem incertum fuerit, habeat illa Ecclesia totam decimam, infra cujus limites tempore tonsionis inveniuntur. De lacte vero volumus quod decima solvatur dum durat, videlicet de caseo tempore suo, & de lacte autumno & Hyeme, nisi paro­chiani velint pro talibus facere competen­tem redemptionem & hoc ad valorem decimae & commodum Ecclesiae.

By this Canon the payment of the Tithes of Wool and Lambs is setled in this manner, How Wool and Lamb is to be paid. that if the Parishioner have under seven Lambs or Fleeces he shall pay a half peny for every Lamb and Fleece, and if there be seven Lambs or Fleeces, and under ten, then the Parson or &c. is to allow a half peny for every one that is wanting; but where this Canon gives the Rector election to take his Tithe in this manner, or let them run on till a Lamb or Fleece be due in the ensuing Year; that is not allowed by our Law, P. 14. El. Har­purs Rep. for Tithes must be paid annually; where Sheep are kept in one Parish in Summer, and ano­ther in Winter, the Tithes are to be di­vided: So if one buy in Sheep out of ano­ther Parish, the Tithe is to be divided; [Page 171]that is, to each Rector, &c. his propor­tion for the time they were respectively kept in the respective Parishes; but if it be not known from whence Sheep so bought in, came, then the whole Tithe is to be paid, where the Lambs fall, and the Sheep are shorn.

By the Canon the Tithe of Milk is to be paid in Cheese whilst the Parishioner makes Cheese; but in Autumn and Winter, it is to be paid in kind: but this part of the Canon is generally overruled by the Custom of the place; for in many places they pay the Milk in kind all the year, in some places they pay only Cheese, and in some neither Cheese nor Milk, but some small rate for it: and in some Countries they prescribe to pay no Tithe of their Milk at all; and the Custom of the place in this, as in all other Tithing, is to be observed notwithstanding the Canon: but for the better explanation of the meaning of this Canon there was a se­cond Canon made, but the date thereof I cannot attain to, the tenor whereof fol­lows.

Quoniam, ut audivimus, Lindwood c. Quoniam audi­vimus. Canon where Sheep, &c. shift their Pa­sture from one Parish to ano­ther. super decimis & nutrimentis animalium inter Ecclesiarum Rectores propter amotiones pecorum ad diversarum parochiarum pasturas diversis anni temporibus contentiones multimodae oriuntur: Nos viam pacis praeparare vo­lentes statuendo desinimus & definiendo sta­tuimus [Page 172]quod ad Ecclesias in quarum paro­chiis oves à tempore concionis us (que) ad festum sancti Martini in Hyeme continuè pascuntur & cubant, Decima lanae lactis & casei ejus­dem temporis licet postea amotae fuerint ab illa parochia & alibi tondeantur, integre per solvatur, & nè fraus fiat in casu praedicto praecipimus, quod antequam oves amoveantur à pasturis vel etiam distrahantur, Ecclesia­rum Rectoribus sufficienter de solvenda de­cima caveatur. Quod si infra praedictum tempus ad diversarum parochiarum pastu­ram transferantur, quaelibet Ecclesia pro rata temporis portione decimam percipiet earun­dem minori triginta dierum spatio in rata temporis minime computando. Si vero per totum tempus praedictum cubant in una pa­rochia & pascantur continuè in alia, inter ip­sas Ecclesias decima dividatur. Quod si post festum sancti Martini ducantur ad pascua aliena, & usque ad tempus tonsionis in u­na vel diversis parochiis sive in propriis pasturis dominorum suorum sive alterius cujuscunque pascantur, babita ratione ad numerum ovium pascua aestimentur & secun­dum aestimationem pascuorum ab eorum do­minis exigantur decimae: Decima vero lactis & casei de vaccis & capris proveniens ubi cubant & pascuntur, ibi solvatur. Alioquin si cubant in una parochia & pascuntur in alia parochia, decima inter Rectores divi­datur omnino. Agni vero, vituli, pulli Equini & alii faetus decimales habita ratione ad [Page 173]loca diversa ubi gignuntur, oriuntur & nu­triuntur, & ad moram quam traxerint in eisdem, particulariter decimentur. Quid vero pro decima debeatur ubi lac propter pauci­tatem vaccarum vel ovium ad caseum fa­ciendum non sufficit; Et quid pro agnis, Milk and Cheese. vitulis, pullis equinis, velleribus, aucis, aut aliis hujusmodi, de quibus propter eorum modicitatem decima certa dari non potest, consuetudini locorum duximus relinquen­dum. Item praecipimus quod si quis post festum sancti Martini oves occiderit, vel si oves quovis casu fortuito moriantur; Deci­mam legitimam parochiali Ecclesiae solvere non postponunt. Et si oves extraneae in alicujus parochia tondeantur, Decima ibi­dem tradetur Rectori Ecclesiae, nisi sufficienter doceri posset quod pro decima alibi satis­factum ut solutionem ibidem faciendam mo­do legitimo valeat impedire.

There may some question be made upon the first Paragraph of this Canon, Verbo integrè. whe­ther the Rector where the Sheep are kept from sheering till Martlemas should have the whole Tithe of the Sheep for the whole Year: but Mr. Lindwood in his Gloss conceives it is intended the whole Tithe that ariseth during that time, which for Sheep will be nothing at all; but cer­tainly it were very unreasonable that the Rector of the Parish where Cattel are kept but for half the Year, should have the whole Tithes, and it cannot be intended [Page 174]to be any more than the proportion for the time they are so kept.

But by this Canon, Sheep kept less than thirty days. if Sheep be kept less than thirty days in any Parish, no rate is to be allowed to the Rector of that Pa­rish where they are kept so small a time.

If Sheep be bought in a little before share day, and it is not known that they answer the Tithes elsewhere, the whole is to be delivered to the Rector of the Pa­rish where they are shorn.

Where the Milk is so little that it will not make Cheefe, or the Calves, Lambs, Fleeces, Colts, Geese, &c. are so few in number that there will none fall to the Parson, the Canon gives no rule of Tithing in that case, but refers it to the Custom of the place: but the Canonists generally hold, that Custom to pay less then a tenth part is not binding; for says Lindwood, Quod laici minus solvant quam decimam, Custom to pay less than the value of the Tithe. Verb. Consu­et. loc. non potest consuetudine introduei quia esset contra jus divinum plus tamen potest deberi ex consuetudine. And concludes, Quod autem hic loquitur de consuetudine locorum, intelligas de tali consuetudine quae non ex­cludit solutionem decimae, sed de tali quae limitat ipsius decimae solutionem ad commo­dum Ecclesiae, scilicet ad verum valorem vel amplius; herein I perceive the Cano­nists and Common Lawyers agree, that a Custom to be free from payment of any [Page 175]Tithe, or a rate for it, is not good, except it extend to a whole Country, County, &c. and that where there is competent live­lyhood for the Minister beside; but the Common Law allows of Customs and Prescriptions, where money or some o­ther thing is paid in lieu of Tithes, though not to the full value, as shall hereafter be made appear in it's proper place.

By this Canon 'tis provided, that where Cows feed in one Parish, and lodge in ano­ther, that the Tithes shall be divi­ded.

For the Tithes of Lambs, Calves, Colts, &c. the Tithe of them by this Ca­non is to be apportioned with respect to the places where they were engendred, brought forth and nourished.

If a mans Sheep dye or be killed after Martlemas, a proportionable Tithe must be paid for them.

The time of the payment of Lambs, The time when Calves, Lambs, Piggs, &c. are to be paid. Kids, Calves, Pigs, &c. is regularly when they are so old, that they may be weaned and live without the Dam, unless the Cu­stom of the place confine the payment to any certain time or age, and Wool is to be paid at Sheerday.

If several mens Sheep depasture toge­ther in one flock, or under one Shepheard, Lindwood c. Quoniam prop. ter verb. lanae. yet this shall not make them to be tithed together, but every Owner shall pay his Tithe of them by himself, but if the head [Page 176]of a Family have his flock mixt with his Childrens Sheep which are under his tui­tion, Several mens Sheep depa­sture together. and he takes the profit of them to his own use in that case they shall be ti­thed together.

It hath been resolved that where Tithe Fleeces of Wool are paid, Cro. El. 363. T⸪ Wool locks. there shall be no Tithe paid of the locks and belts

There is a Custom in some Countries to sheer their Sheep about the necks at Michaelmas, Roll 1.645. z. 14, 15, 16. Bulstrode. l. 3. 242. Neckings. that the Wool may not in Winter be pulled off with Bryers, and for this sort of Wool without fraud, it hath been held that no Tithe shall be paid, and so of the birling of Sheep without fraud, Roll 1.646. z. 17. no Tithe is to be paid.

If a Man's Sheep dye of the Rot or other disease, Roll 1.646. z. 18. Sheep dye of the Rot. or if the owner kill or sell them as hath been said, he must pay Tithe for the Wool ratably.

Though the Canon direct one at seven to be paid only for Wool and Lambs, yet in most places the same order by Custom is observed for Calves, Colts, Pigs, Geese, &c. which Custom I presume took its rise and beginning from this Canon.

And note that where Tithe-Milk is paid in kind, Lindw. cap. Quoniam Prop­ter verbis de Casco. there no Tithe Cheese is due, and so where Tithe Cheese is paid for so long, no Tithe Milk is to be paid.

Lastly, note, Stat. 2. E. 6. [...]. 13. that where any Person hath Cattel Tithable going in a Ground or Common whereof the Parish is not known, the Tithe is to be paid in the Parish or place where the party lives that owns the Cattel.

CHAP. VII. The Seventh Chapter shews where, and in what manner, the Tithes of Seeds, Fruit, Mast, Bees, &c. is to be paid.

TIthes are to be paid of the fruits ari­sing in Orchards and Gardens in their proper kinds when gathered, How the Tithe of Seed, Fruit, Mast, Bees, &c. is to be paid. unless there be some modus or rate Tithe paid in lieu thereof, and so of the Seed of flax, hemp, &c. is to be paid when drest up; the Tithe of Crabs, Mast, &c. is likewise to be paid, when the same are gathered, Roll 1.640. q. 10. Cro. Car. 559. Jones 447.. An. b 51. g. Roll 1. 635. c. 1. Cap. Quoniam propter. or sa­tisfaction is to be given if eaten with swine on the ground, and the Tithe of Bees is to be paid by the tenth part of the Honey and Wax, the Canon is that

De Apibus sicut de omnibus aliis bonis justè acquisitis quae renovantur per annum statuimus, quod decimae solvantur & exi­gantur debito mode.

CHAP. VIII. The Eight Chapter shews where, and in what manner, Tithes of Pigeons, Coneys, Fish, Deer and other Beasts and Birds ferae naturae, are Ti­thable.

BY the Common Laws of England there is no Tithe due for Birds or Beasts that are ferae naturae, Whether Tythe be due of beasts and birds fe­rae naturae. Cro. Car. 264.. 339⸫; Roll 1.635. c. 4.6, 7. Noy 108. St. 2 E. 6. c. 13. and therefore it hath been resolved, that no Tithe shall be paid for fish taken out of the Sea or Ri­ver, unless by Custom as in Wales, Ire­land, Yarmouth, &c. neither, for the same reason, is any Tithe due of Deer, Coneys, &c. but if due by Custom it must be paid.

And if a man keep Pheasants, Roll 1.635. c. 3. or other wild Fowl within limits by clipping their wings, yet no Tithes shall be paid of their Eggs or Young not being reclaimed, Roll 1.636. c. 5. Hetley 147⸪ for as much as if their wings were not cut they would fly away.

But of young Pigeons in Dovecoats or in Pigeon-holes about a mans house, Tithe shall be paid, if they be sold; but if they be spent in the Family, no Tithe shall be paid for them.

It is said in Hughton and Princes Case in More's Reports, More 599⸫; that no Tithes shall be paid of tame Turkeys, Pheasants or Par­tridges, nor their Eggs, quia ferae naturae, but I believe the Book is misprinted, for after they are reclaimed, they cannot be said to be ferae naturae.

CHAP. IX. The Ninth Chapter shews, what Tithes are to be paid for Mills, and what kind and nature they be of.

THe Canon is, Whether Tithes are to be paid of mills, and how. De proventibus autem molendinorum volumus quod decimae fideliter & integrè solvantur.

And Articuli Cleri cap. 5. is to this pur­pose.

Si quis in fundo suo molendinum erexit de novo, & postea à Rectore loci exigatur decima de eodem, exhibetur Regia prohibi­tio sub hac forma. Quia de tali molendino hactenus non fuerunt solutae, prohibemus, &c. Et sententiam excommunicationis, si quam hac occasione promulgaveritis, revoce­tis omnino. Responsio: In tali casu nun­quam exivit Regia Prohibitio de principis voluntate, qui & decernit talem perpetuo non exire.

It is made a question first, 2 Inst. 622⸫; whether any Tithes are due for Mills or not, which Sir Edward Coke in his second Institutes says, was never judicially determined that he knows of, and it was held in the Case of a Fulling Mill no Tithe was due; for of profits that come only by the labour and industry of man no Tithe is to be paid, Cro. Car. 523⸪ 524⸫; and the same reason holds for Corn-Mills.

The next question is, admitting, that Tithes are due for mills, whether the same be predial or personal.

Sir Edward Coke is of opinion, that in Case any Tithe be due, it is only a perso­nal Tithe, being acquired by the labour and industry of the miller, and takes no Increase from the ground to make it pre­dial: And the Statute of 2 E. 6. is, that e­very person shall justly set forth, yield and pay all predial Tithes in their proper kinds, as they arise and happen, which cannot be applyed to the Millers taking of the Toll dish, nor to Fulling Mills, Iron Mills, Paper Mills, &c. which are all comprehended under the word mill; and no Tithe can be paid in specie, for if the Parson should have every tenth Toll dish, then it would often happen, that he should have twice Tithe of the same Corn, which is against the Law, and such Tithe as the Tenth Toll dish has never [Page 181]been paid in any place, that I have known or heard of.

And if it be a personal Tithe, as there is great reason that it can be no other, then it must be paid with the deduction of the expences and charges, and is not payable but in such places, where per­sonal Tithes are payable by Custom: See more thereof in the twenty second Chapter.

But the Canonists hold, That the tenth Toll dish shall be paid as a predial Tithe without deduction of expences.

CHAP. X. The Tenth Chapter shews, whether Tithes ought to be paid of Hawking, Hunting, Fishing, Fowling, &c.

THese are all comprehended under personal Tithes, Tithe of Haw­king, Hunting, Fishing, Fow­ling if due. for that these things being obtained by the labour and industry of the Party, and the things obtained are ferae naturae, and not of their own nature tithable in their proper kind, unless the particular Custom of the place require it, and therefore I shall re­fer these to the twenty second Chapter, where I shall speak of Personal Tithes.

CHAP. XI. The Eleventh Chapter is concerning the Tithes of Ducks, Geese, Hens, Swans, and other domestick Fowls and Birds.

THE Tithe of all tame and dome­stick Fowl is to be paid in their Eggs, or Young in their proper kind, Of the Tithe of domestick Birds and Fowl. ac­cording to the Custom of the place: Geese, Ducks and Swans are usually paid in their kind, but of Hens and Turkeys, com­monly in Eggs, but therein the Custom of the place is to be observed; but note, that where they pay Tithe of the Eggs, there is no Tithe of the Young, nor è converso Tithe Eggs paid, where they have the Tithe of the Young.

CHAP. XII. The Twelfth Chapter shews, of what things Tithe shall not be paid.

TIthes regularly are not due of dwel­ling houses, Of what things Tithes shall not be paid. Co. 11.16. a.. Hob. 11⸫; and yet a modus may be due for a house as well as for land, and it shall be intended, that it was a modus for the land before the house was built.

No Tithes shall be paid for Hounds, Things of plea­sure. 12 H. 8.4.b⸪ 2 Inst. 651. Things that in­crease not. Roll 1. 636. d. 1. Doct. & Stud. 174. Apes, Popinjayes, & similia, because they are things only of pleasure.

Neither shall any Tithes be paid of those things, which do not increase from year to year, and therefore no Tithes shall be paid for stone got out of Quar­ries, Pit-coals, Turfs, Slates, Bricks, Quar­rels, Tyles, earthen Pots, nor of any thing made of the earth, nor of marle or lime, got for the Improvement of the ground, Cro. El. 277. More 908. 2 Inst. 651⸪ Roll 1. 637. Et Doct. and Stud. 174. Baxter vers. Hope. H. 8. Jac. C.B. 10.1109. St. 2. E. 6. c. 13. nor of Tynn, Lead, Copper or other Met­tal gotten out of the ground, but by Cu­stom Tithes of such things may be due and payable.

Servants in Husbandry shall not pay personal Tithes, neither shall any Tithes be paid of marriage goods.

No Tithes shall be paid of aftermaths, Stubbles or Rakings of Corn without fraud. Rolls 1.640. q. 12, 13, 16, 17.

No Tithes shall be paid of birds, or beasts, that are ferae naturae, &c.

CHAP. XIII. The Thirteenth Chapter shews, what Force Custom has as well in the form and manner of Tithing as in the discharge of the payment thereof, and wherein Custom and Prescrip­tion differ.

BY the Statute of 2 E. 6. it is enacted, Stat. 2 E 6. c. 13. What force Cu­stom has in the manner of Ti­thing. that every of the King's Subjects should from thenceforth truly and justly, without fraud or guile divide, set out, yield and pay all manner of their predial Tithes in their proper kinds, as they should arise and happen in such manner and form as had been of right yielded and paid within forty Years next before the making of the said Act, or which of right or of custom ought to have been paid.

In this Act there are three qualifications. 1. It enjoyns the payment of such Tithes as had for forty Years then past been of right yielded and paid. 2. such as of right ought to have been paid. 3. such as by Custom ought to have been paid.

Tithes due by Custom are of two kinds. 1. where there is a modus decimandi, and by Custom Money or some other thing is paid in lieu of the Tithes. 2. where [Page 186]Tithe hath by Custom been paid of things not Tithable, as of Lead in Derbyshire, Tynn in Devonshire and Cornwall, fishing in the Sea, And this is confirmed by the Stat. of E. 6. cap. 13 as in Southwales where the Custom is, that if the Parishioner of one Parish land his fish in another, the Tithes are divided between the Parson of the Pa­rish where the fisher lives, and the other where he landed his fish; but if the Pa­rishioner land his fish in the Parish where he himself dwells, then the Rector of that Parish has the whole Tithes.

And I have heard that in some Coun­tries they pay Tithe Ale, Tithe-Ale. Roll 1. 642. and Tithe of Limekilns, &c. which in their own na­tures are not Tithable.

And as by custom things may be made Tithable which in their own natures are not so: or one thing may by custom, be paid in satisfaction or discharge of another; so custom hath a great in­fluence upon the form and manner of Ti­thing, for the direction of the time, place, and order of payment of Tithes.

And as custom may make things Ti­thable, Custom of not Tything where good. which of their own nature are not Tithable, so a Custom of a Province, County or Hundred may discharge the payment of Tithe, of a thing in its own nature Tithable, so there be a competency for the maintainance of the Ministry be­side.

And therefore in the wilds of Kent and Sussex they do pretend by Custom to be free from payment of Tithe Wood, Hob. 266⸪ Bulst. 2. 285. Doct. & Stud. cap. ult. Roll 1. 642. b. 1. & p. 5, 6, 8. Co. 11.16. a⸪ Custom to pay Tithes of things not Tithable. or any thing in lieu of it, and so in seve­ral Countries they pay no Tithe of their Milk.

And as Custom may prevail in not Ti­thing, so it may, as has been said, make things Tithable which in their own na­tures are not Tithable, as the Rents of Houses, Pigeons eaten in the House, Wood spent in the House, and by Custom Tithe may be paid of Salt, Brick, Lime, Ale, Chickens and other things not Tithable.

Now the difference between a Custom and a prescription is this, Difference be­tween Custom and Prescripti­on. every Custom must have dimension and alledged to be within some certain Province, County, City, Hundred, &c. for if it be a gene­ral Custom of England, it is Common Law, and such Custom must be common to all within such limits; but if it be confined to one certain Person, House, Land, or other thing, there it becomes a prescription which is a younger daughter to Custom; and therefore when a Man comes to plead a Custom, the manner of pleading is to al­ledg, that within such a County, Hun­dred or Town, there is, and from the time whereof in the memory of Man is not to the contrary: there hath been such a Custom used and approved in the same, that is to say, that, &c. alledging the Custom as it is.

But when you come to plead a prescrip­tion you only alledg that you and all those whose Estate you have in such Lands have time out of mind paid so much annually to the Parson of D. How to plead a Prescription. in full satisfaction and exoncration of all the Tithes arising upon the said Lands, &c.

So that Custom and prescription differ in these things, Wherein Cu­stom and Pre­scription differ. that Custom must be li­mited and confined to some certain place; prescription is at large, Custom is com­mon to all the Persons and Lands within the limits wherein it is alledged, but Pre­scription is confined to certain Persons or things; but in this they agree, that they must be constant without interruption, and perpetual from the time whereof the memory of Man is not to the contrary: for if there have been frequent interrup­tions, there can be no Custom or Prescrip­tion obtained, but after a Custom or Pre­scription is once duly obtained, a distur­bance for ten or twenty Years shall not de­stroy it; 1 Inst. 114. b. 2 Inst. 653⸪ 2 Inst. 654⸫; for Multiplex interruptio non tollit praescriptionem semel obtentam.

But I must here observe to the Reader, How the Eccle­siastical Laws look upon Cu­stoms and Pre­scriptions. that though the Civil and Ecclesiastical Laws do in some cases take notice of Custom and Prescription, yet in this they differ from the Common Law, In what they differ from the Common Law in this matter. that they allow a usage for forty Years to be a good proof of a Custom or Prescription, ground­ing their judgments upon a decretal E­pistle [Page 189]of Pope Alexander the third Anno Domini 1180. But this Kingdom never allowed of that Epistle, or yielded any obedience thereunto, so that as well in Spiritual as Temporal Prescriptions and Customs if they come to be tried at Com­mon Law, as all Prescriptions concerning Tithes must be, they must be proved to have been used beyond the memory of any Man to the contrary: for if any Man living, or any authentick Record, or o­ther evidence prove it was otherwise at any time since the first Year of Richard the first, which was Anno Domini 1189. 2 Inst. 653.. the Custom or Prescription fails.

And the Influence, Custom, What Influence Custom and Prescription have in the manner of Ti­thing. 27 H. 8. c. 20. and Pre­scription have in the Manner of Tithing is confirmed by three several Acts of Par­liament.

First, by the Stat. of 27 H. 8. whereby it is enacted, that every Subject of England, &c. according to the Ecclesiastical Laws and Ordinances of the Church of England, and after the laudable Ʋsages and Customs of the Parish or other place where he dwelleth, or occupieth, shall yield and pay his Tithes, Offerings, and other duties of Holy Church, &c.

By this Statute the Ecclesiastical Laws and Canons are affirmed for the payment of Tithes; but in such cases as they are contrary to the Common-Law, or Customs of the place, they do not bind.

Next this Act confirms and allows all Usages and Customs of the place where the Tithes arise, which are to be prefer­red before all Canons and constitutions in the manner of Tithing.

The next Statute is that of 32 H. 32 H. 8. c. 7. 8. whereby it is enacted, That every Person, &c. shall fully, truly, and effectually, set out, yield or pay all and singular Tithes and offerings aforesaid, according to the Lawful Customs and usages of the Parishes and places where such Tithes or duties should grow, arise, come, or be due.

This Act seems only to extend to custo­mary Tithes, and so doth the Statute of 2 E. 6. which is,

That every of the King's Subjects should from thenceforth, 2 E. 6. c. 13. truly and justly, without fraud or guile, divide, set out, yield and pay all manner of their predial Tithes in their proper kind as they arise and happen, in such manner and form as hath been of right yielded and paid within forty Years next before the making of the said Act, or of right or Custom ought to have been paid.

But more of these Statutes in their proper place. I shall now proceed to shew what liberty and priviledg the Parson, Vi­car, &c. hath in the grounds where the Tithes arise, for the drying, ordering, and carrying away their Tithes.

CHAP. XIV. The Fourteenth Chapter shews, what Priviledg and Liberty the Parson, Vicar, &c. hath in the ground, where the Tithes arise, for the dry­ing, making, ordering and carrying a­way the same.

BY the Stat. of 2 E. 6. It is enacted, 2 E. 6. cap. 13. What Frivi­ledg the Par­son, &c. hath in the Lands where the Tithes grow. that at the Tithing time of Predial Tithes, it should be lawful for every party to whom any Tithes ought to be paid, or his Deputy, or Servant, to see the said Tithes to be set forth and severed from the nine parts, and the same quietly to take and car­ry away.

This Statute as to the taking and car­rying away, seems only declarative of the Common Law, but as to comeing upon the Lands to see the Tithes set forth, seems to me to be a new Authority given by this Law, for the owners of the Land are de jure, bound to set forth their Tithes duly and rightly; and if they fail therein, the Parson, Vicar, &c. have their remedies, and if the Parishioner do justly and truly set forth his Tithes, although the Parson, Vicar, &c. be not present, or had no no­tice given him to be present, yet this had been a good setting forth before this Sta­tute: [Page 192]but it is a fair and just way to do it in the presence of the Parson, Vicar, &c. And note, this Act is warily penned in the singular number, tha [...] [...]he party himself, his Agent or Servant may come to see the Tithes set forth, but must not come with a greater number.

And note, that the Parson, Vicar, Im­propriator or Farmer cannot come himself and set forth the Tithes without the Li­cence and consent of the owner of the Corn, Hay, &c. for if the Parson, Vicar, &c. shall of his own head Tithe the Corn, Hay, &c. of any Landholder within his Parish, &c. and carry it away, he is a Trespassor, and an Action will lye against him for it.

But a Parson, Vicar, &c. may de com­muni jure, after the Tithes are set forth come himself, or his Servants, and spread abroad, dry and stack his Corn, Hay, &c. in any convenient place or places upon the ground where the same grew, till the same be sufficiently weathered and fit to be carried into the Barn, &c. but the Parson, Vicar, &c. must not take a longer time for the doing thereof than what is convenient and necessary, and what shall be said a convenient and ne­cessary time, the Law doth not, nor can define for the quantity of Hay, 1 z E. 4.6. a. Roll 1.643. x. 2. Corn, &c. and the weather in this case is to be considered, and what shall in this, and all [Page 193]other cases of like nature be said, a reaso­nable and convenient time is to be deter­mined by the Jury, if the point come in issue triable by a Jury; but if it come to be determined upon a demurrer, or other matter of Law, the Judges of the Court where the Cause depends are to resolve the same.

And if the Parson, Vicar, &c. shall exceed a convenient and necessary time in the drying, ordering, and carrying a­way their Tithes; Hughes Rep. 329. Styles 342. and the Parishioner shall receive dammage thereby, an Action of the Case will lye against them for their negligence in this behalf.

But no Action will lye against the Par­son, Vicar, &c. in such a case, Stiles 342. Lampen vers. Woodnet P. 8. Car. 1. B.R. per Latch. unless the Parishioner have duly set forth his Tithe and given notice thereof to the Parson, Vi­car, &c.

And the Parson, Vicar, &c. Halsey vers. Halsey. H. 6. Car. 1. B. R. Roll 1.643. [...]. 3. may car­ry his Tithes from the ground where they grew, either by the Common way or any such way as the owner of the Land useth to carry away his nine parts.

But if the owner of the Soyl, after he has duly set forth his Tithes will stop up the wayes, and not suffer the Parson, Vi­car, &c. to carry away his Tithes, or to spread, dry and stack them upon the Land, this is no good setting forth of his Tithes without fraud, within the Statute of 2 E. 6. but that the Parson, Vicar, &c. or other [Page 194]Owner or Farmer may have an action upon the said Statute, and may recover the treble value, or may have an Action of the Case for such disturbance, Bulst. 1.108. as I con­ceive, or he may, if he will, break open the Gate fence, &c. which hinders him, and carry away his Tithes, but in that he must be cautious that he commit no Ri­ot, nor break any Gate, Rails, Lock, Hedges more than necessarily he must for his passage.

And note, that the Parson, Vicar, &c. when he comes with his Carts, Teams or other Carriages to carry away his Tithes, must not suffer his Horses, Oxen, &c. to eat and depasture the Grass growing in the grounds, where the Tithes arise, much less the Corn there growing or cut, but if his Cattle (as cannot be avoided) do in their passage against the Will of the Drivers here and there snatch some of the Grass, &c. in their passage, this is excusable.

CHAP. XV. The Fifteenth Chapter shews, to what Charges the Glebe lands belonging to a Rectory, the Tithes are Sub­ject.

SIR Edward Coke tells us, a Inst. 641.. What Charges Tithes and Churchlands are subject to. Quod nullus pro decimis quae sunt Spirituales de aliqua reparatione pontis, seu aliquibus o­neribus temporalibus onerari debet.

That Tithes being Spiritual were not subject to temporal Charges at the Com­mon Law.

And upon a doubt of Mr. P. 5. Car. 1. Justice Yel­verton, who was Justice of Assise in the Bishoprick of Durham, as Sir Nicholas Hyde, heretofore Chief Justice of the Kings Bench, has reported, it was resol­ved by all the Judges of England, that Tithes are at this day chargeable with all charges imposed by any Act of Parlia­ment, wherein they are not excepted, as upon the Statute of 43 Eliz. to the poor, and to maimed Souldiers, Kings Bench, Marshalsey, Bridges, &c. But they are not Subject to any Charges Temporal at, or by, the Common Law.

But Tithes at this day are Subject to pay first fruits or Annates, First Fruits. in Latine Pri­mitiae, [Page 196]which are the first years profits of every spiritual Benefice at a new Incum­bents Entry into his Living; they were antiently exacted by the Popes of Rome, when they had small revenues to support the publick charge of his place: And Po­lydore Virgil tells us, Polid Virgil. De Inventione rerum. l. 1. c. 2. p. 498. Caeterum nullum in­ventum majores Romano Pontifici cumu­lavit opes quàm annatum quas vocant usus qui omnino multo antiquior est quam recen­tiores quidam Scriptores suspicantur: Et Annates more suo appellant primos fructus unius anni Sacerdotii vacantis aut dimidi­am eorum partem.

And Polydore Virgil tells us, that Pope Boniface the Ninth first introduced them, though others ascribe them to John the 22th.

These were often complained of, as a great oppression upon the Clergy, as Hen­ricus Hostiensis, who lived in the time of Pope Alexander the Fourth, witnesseth; but however upon the abolishing of the Popes Usurpations here in England, the poor Clergy were not acquit of this ex­action, but the same was by the Stat. of 26 H. St. 26 H. 8. c. 3. 8. settled upon the then King and his Successors.

The first fruits are not here in England rated at the full and utmost value of the Living they are to be paid for, but accor­ding to valuation taken and made in the said 26 year of King H. 8. and now used in the first fruits Office.

And these first fruits are by a Statute made 1 Eliz. not to be paid all at once, 1 El. cap. 4. but one quarter of them is to be paid at the end of six months from the time of the Inducti­on, Collation, &c. another fourth Part at the end of twelve months, another fourth part at the end of eighteen months, and the last quarter part thereof at the end of two years.

And by a Statute made 1 Eliz. all Vi­carages not exceeding ten pounds, 1 Eliz cap. 4. and all Parsonages not exceeding ten Marks ac­cording to the valuation in the first fruits Office are discharged from the payment of first fruits.

And if an Incumbent die, or be le­gally removed out of his Living with­out fraud, then after such death or remo­val, the remaining half yearly payments of the first fruits, which were not become due, are discharged by the said Statute of 1. Eliz.

And by that Statute the Dean and Ca­nons of Windsor are discharged of the payment of first fruits.

And by the Statute made in the 26th. St 26 H. 8. c. 3. When the first Fruits are to be paid. year of H. 8. before mentioned, It is ena­cted, That every Archbishop, Bishop, Dean, Prebendary, Archdeacon, Parson, Vicar, &c. before he have any actual or real pos­session, or medling with the profits of his Living (this must be between Institution, Collation and Induction) must pay or com­pound [Page 198]for, or give security for the payment of his first fruits, in the first fruits Office: And that an Obligation taken for the same should be of the force of a Statute of the Staple, and that if any such presume to enter into his Living before such payment or security given, or composition made, he is to forfeit double the value.

But his Majesty and his Royal Prede­cessors have not been severe in this Case to take the penalty, but upon faileur their Officers of the Exchequer have sent our Process to the Sheriff, to put the negligent Parsons, Vicars, &c. in mind of this du­ty, and upon coming in and paying the charge of the Process, and paying or gi­ving security for the first fruits, they are discharged.

But the Parsons, Vicars, &c. must be careful to pay in their half yearly pay­ments, as the same become due, and take up their bonds, or else new Process will issue to the increase of their charge.

Perhaps some may be so curious, Why Vicarages are charged higher in the first fruits Of­fice than Par­sonages. and desire to know why Vicarages not excee­ding ten pound should be freed of this charge, and Parsonages of ten marks should pay them, now the reason of that was, that the Vicarages in time of Popery, and when the Valuation was taken, had a great income by voluntary Offerings, which falling to little or nothing upon the dissolution of Monasteries, this fa­vour [Page 199]was afforded them in their first fruits.

The next charge Parsons and Vicars are subject to, are the Tenths, Tenths. that is a tenth part of the yearly value of all their Church Livings; this payment was first exacted from the Clergy by the Pope a­bout the twentieth year of E. 1. 2 Inst. 628⸫; and a Valuation was then made by his autho­rity of all Church Livings, at which rate the Pope was answered his Tenths, but he never had any Tenths of such Land as was given to the Church after that time; these payments (as appears by our Histo­ries) the Popes of Rome sometimes gran­ted to Kings of England, when the Kings pleased him, or rather when he sea­red their power; but upon the abolishing the Popes power, which was in the 25th. Stat. 25. H. 8. cap. year of H. 8. these Tenths were given to the King the year following, by the afore­said Statute of 26. H. 8. Stat. 26 H. 8. cap. 3. and to be paid at Christmas yearly, and the Bishop of the Diocess is to collect them, and they are to be paid according to the valuation taken the same year, and now in the first fruits Office, and are not paid that year the first fruits are paid, but are allowed out of them, because 'tis intended that the King has the whole years profit.

But immediately upon the Reforma­tion many Clergy men scrupled, and de­nyed to pay these Tenths to the King, [Page 200]being a duty properly due to the Pope, and therefore the refusal or neglect to pay them to the King, being certified by the Bishop that had the Collection of them, is made a Cause of Deprivation not only of the Living, St. 26. H. 8. c. 3. for which they refused to pay their Tenths, but also of all their spiritual Preferments.

But by the Stat. St. 2 & 3 E. 6. c. 20. of 2 and 3 E. 6. that severity was moderated, so that now the refusal or neglect to pay them, and so cer­tified by the Bishop makes only that Living void, for which the Tenths shall be so refu­sed. But his Majesty and his Royal Pre­decessors have rarely put the severity of this Law in Execution, but make out Process in the Exchequer to compel the payment, however since the penalty is so great, every Clergy man ought to be very careful to avoid the danger.

There is a Provision made by an Act of Parliament in the 27 Year of H. St. 27 H. 8. c. 8. The remedy where the Successor pays Tenths due by his Predecessor. 8. for those Incumbents that shall be forced to pay the Tenthes due in the time of their Pre­decessors, that they may levy the same upon any Goods they can find of their Predecessors upon the Church Living; and if they be not redeemed within twelve days after, they shall be distrained; that then the same shall be praised by two or three indifferent Persons to be sworn, and so many of them sold as will satisfy the arrear with cost; and if no such Goods can be found, then the [Page 201]Successor to take his remedy against his Pre­decessor, his Executors or Administrators, or others to whom his Goods shall come by hill in Chancery, or an Action of Debt at Common Law.

There is another charge, Procreation [...] to which the Parsons, Vicars, &c. are subject for their Church Livings, Sir John Da­vies. Rep. 1, 2, 3. which is called Procrea­tions or Proxies, and these are duties due and payable to the Bishops and Arch-Dea­cons, at the time of their visitations, which are not paid by any certain Rule, but by some antient Taxation, for antiently the Re­ligious Houses and Clergy-Men at their own charge entertained the Bishops and Arch-Deacons in their visitations, See more of this matter Lind. cap. ut singula Ecclesiastica, That by a Ca­non made by Steph. Lang­ton about 1222 the Archdea­cons were to bring but se­ven horses in their Trains, and stay but one day, and to invite no body. but at length their attendants were so many, and their trains so great, that the Clergy and Re­ligious Houses were horribly oppressed with entertaining of them, to avoid which, the Clergy and Religious Houses came to this composition, every one to pay such a proportion to their visitors to be freed of that great oppession, and therefore the Canonists define them to be, Exhibitio sumptuum necessariorum facta praelatis qui Diocaeses peragrando Ecclesias subjectas visi­tant, and this payment is continued to this day, not only of those Livings 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 [Page 204]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 [Page 205]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 [Page 206]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 [Page 207]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 Clergy Man may prescribe for himself and Tenants. Years, and Will, and his Copyholders have been free from the payment of Tithes, the reason alledged is, because it might commence by a real composition for the whole Mannor, Rolls 1.653. H. 4. Co. 2.45. a⸫; and in all cases where a Spiritual Person prescribes in non deci­mando his Tenants and Farmers shall take the benefit thereof.

But if any of the Abbots, Priors, &c. Stat. 27. H. 8. cap. that came to the Crown by the Statute of 27 H. 8. were discharged of the payment of Tithes by prescription de non deciman­do, Rolls 1.654.1. 1. contra. Hob. 309⸪ yet the Patentees of these Lands shall not have the benefit of such prescriptions, but shall pay Tithes.

Neither can the Kings Patentee be freed from the payment of Tithes of those Lands which the King whilst he had them in his own hands prescribed to be freed from the payment of Tithes, Rolls 1.655.1.2. Patenter del Roy. because it is a Personal discharge in the King, for the question arising upon Lands disaffor­rested, there might be several reasons why [Page 208]he paid no Tithes, first, because the grounds were depastured with Beasts ferae naturae for which no Tithes were due, Cro. Car. Du­bitatur, Ideo quaere. or for that the King was not bound by the decretal Epistle of Pope Innocent the third, who setled the Parochial right of Tithes, or by reason the King being a mixt Person might prescribe in non decimando.

But the King's Patentees of those Abby Lands that came to the Crown by the Statute of 31. H. 8. may take advantage of a prescription de non decimando in the Abbot, Prior, or other Religious Person by the force of that Statute, and the en­joyment of the Lands since the dissolu­tion freed from the payment of Tithes du­ring memory is a good proof à posterior, A Country may prescribe in non deciman­do. Lib. Inst. tit. prohibit. Co. 2.44 b. Doct. & St. l. 2. c. 55. f. 166, 167. b.. 174. b⸫; Roll 1.653. H. 10, 11, 12, 13. Who may pre­scribe de mo­do decimandi Co. 2.44. a⸪ b ⸫ Cro. El. 599.758.784. that the Abbots, Priors, &c. held the same discharged from the payment of Tithes.

The inhabitants of a County, Hundred, or Country, as the wilds of Kent and Sussex may prescribe not to pay Tithes of Wood, Milk, or any other particular thing, so there be a competent Livelyhood for the Clergy besides.

But every Lay Man may prescribe, de modo decimandi, That is, that such a Man being Lord of such a Mannor, and all those whose Estate he hath in the said Mannor, have from the time whereof the memory of Man is not to the contrary, have had and enjoyed to his and their own [Page 209]uses all the Tithes arising, &c. Co. 2.44. a⸪ b⸫; Cro. El. 599.758.784. within the said Mannor, paying so much yearly to the Parson of D.

And a Lord of a Mannor may pre­scribe for himself, and his Copyholders, Cro. El. 784. Noy. 132. for they are part of the Demesns of the Mannor or the Copyholder may pre­scribe in the name of his Lord.

If a modus decimandi be to pay two things, as two shillings for a Park, Hob. 43⸫; A modus to pay two things and one fails. and a shoulder of every Buck kil'd in the Park, and all the Deer die or are kil'd up, yet notwithstanding the Prescription holds good for the two shillings.

But every Prescription and modus must have a Continuance, Hob. 43⸫; Prescriptions must not sleep. for it cannot be good at one time, and asleep at another, nei­ther can a wilful denial destroy a modus decimandi: And it is taken for a Rule in Dr. Leyfield and Tisdale's Case, Hob. 11⸫; Modus for houses. that where no Tithes are regularly and legally due, as for a house, &c. there can be no mo­dus decimandi alledged.

And yet it hath been held, Co. 11.162.. Hob. 11⸫; Quaere. Roll 1.640, b. 5. Hob. 107.. Roll 1.651. d. 16, 17, 18, 19. Cro El. 446.. Co. S [...]lect Ca­ses 45⸪ More 454. that a Tithe by prescription may be paid for a house, because it might be due for the land be­fore the house was built. Ideo quaere.

A modus to pay Tithes without the view of the Parson is not good, because it conduces to fraud, and is now against an Act of Parliament.

So a modus that you have paid your Tithe of your Cows, you have been fre­ed [Page 210]of the Tithes of Oxen, Steers, Heyfers, &c. is not good, That is, to pay your Tithes in kind of one thing, thereby to free another Tithe.

And it hath been held a void prescrip­tion to pay a Load of Hay yearly in dis­charge of all his Tithe Hay, Cumberland per Roll. P. 13. Jac. B.R. What Prescrip­tions de modo decimandi. 2 Leo 70. are good. that is to pay a part in discharge of the whole.

So for a Parishioner to prescribe that he, &c. has time out of mind repaired the Church, and by reason thereof hath been discharged of the payment of Tithes, is no good Prescription, for the Parson not being bound to repair the Church has no recompence, but if it had been, that he had repaired the Chauncel, Roll 1.649. d. 8, 9. and in consi­deration thereof had been freed of the payment of Tithes, that had been a good modus, ratio patet.

It hath been held a good Prescription, Wool and Lamb. Roll 1.648. c. 1.649. d. 7. that the Parishioner hath time out of mind paid the Tithe Wool of all the Sheep he has shorn, though never so late­ly bought in, and in consideration thereof hath been freed of the payment of the Tithes of those he has sold before Sheer­day.

It hath been held a good Prescription, Roll 1.648. c. 4. to have paid the Tenth Fleece or Pound of Wool, so there were any allowance for the odd Fleeces or odd weight.

It hath been adjudged a good modus, Roll 1.649 d. 5. that in consideration the Parishioner hath [Page 211]shorn and wound the Wool to be free of paying Tithes of the neckings and bir­lings without fraud.

It is a good prescription, Roll 1.652. g. 1. that the Pa­rishioner hath time out of mind paid a half penny for every Lamb sold before Mayday, but if the Parishioner sell his Lambs fraudulently a few days before Mayday on purpose to defraud the Parson, &c. it is no good discharge.

A Prescription to pay wool in kind, Marsh 79⸪ if kept till Clipping day, but if sold before, to pay a half penny a fleece, as Mr. Marsh reports, was held no good Prescription, tamen quaere.

It hath been held a good modus, For Corn. More 454. that in consideration that the Parishioner hath mowed, reaped and shockt the Corn, and paid his Tithe in the shock, that he hath been freed of the payment of any Tithes of the Rakings, but as Sir Edward Coke says, there needs no modus as to Rakings without fraud.

To prescribe to have paid the Tenth sheaf or shock, Roll 1.648. b. 6. as it falls out is no good Prescription to free the Parishioner of a­ny other Tithe, it being no more than is due.

A modus that in consideration, Roll 1.649. d. 4. that the Parishioner hath sowed, reapt, bound and set up the Corn one year to be free from the payment of herbage the next year of the same Land was held good, tamen quae­re inde.

But it is no good consideration, Roll 1.650. d. 11. that in consideration the Parishioner has plow­ed, sowed, mowed, cockt and set out the Tithes of part, that therefore he should be freed of paying Tithes of a small par­cel left standing.

A man may prescribe to pay the Tenth Acre or Rood of wood standing, Wood. Roll 1.648. H. 7. and the Parson, &c. cut it himself as is used in some parts of Lincolnshire.

It hath been held a good modus to pay one Calf at seven, Calves and milk. and if under a half penny a piece, and if he sell any Calf to pay the tenth part of the price, and it hath been held a good modus to pay Tithe Cheese from Mayday till Michael­mas to be discharged of the whole Tithe of the Cows, Roll 1.651. d. 19. Cro. El. 609.786. and no Tithe is due for Cheese but by Custom, and the labour of milking and making into Cheese is added, whereas nothing but the Tithe of milk is due by Law.

But it is no good modus to pay for e­very milch Cow 2 d. Roll 1.651. d. 17. and for every Calf 1 d. in discharge of the Tithes of all other Cattle, but it is a good modus for the Calves and milk only; so a modus to pay a Tithe-Calf in satisfaction of the Tithe of all manner of Cattle is not good. Roll 1.651: d. 18. Eggs. Roll 1.648. c. 3.

A modus to pay thirty Eggs in Lent in satisfaction of all the Tithe of Eggs has been hold a good modus.

It is a good modus that the Parson time out of mind hath had so much, Land in lieu of Tithes. Roll 1.649. d. 6. Cro. El. 587. 8 E. 4.14. a⸫; or such a parcel of meadow or Land in satis­faction and discharge of all the Tithes of Hay, &c. arising upon such Land.

It is no good modus to be free from the payment of Tithe Hay, Headlands, Balks, &c. and Hay. Roll 650. d. 10. Noy contra 15. arising upon Hades, Balks, Greenslips, or Doals eaten by Beasts of the Plow, in regard the Pa­rishioner hath sow'd, mown, reapt, shockt and prepared the Corn, &c. but the con­trary hath been held, ideo quaere.

But in consideration, Herley 147. that the Parishio­ner hath made the Grass growing in such a Close, and then paid the Tithe of it, he hath been free of the payment of the Tithes of the balks and hades, has been held good.

It is not a good modus, Roll 1.650. d. 3. that the Pa­rishioner having spent all his Hay upon the Beasts of the plow, that therefore he should be free from payment of Tithe Hay.

But a modus that in consideration the Parishioner hath cut, Roll 650. d. 13. dryed and shockt the Corn, he hath been freed from the pay­ment of Tithe Hay, has been held a good Prescription.

A modus That the Parishioner hath time out of mind got Rushes and strew­ed the Church, Noy 31. and in consideration there­of hath been discharged of the payment of Tithe Hay, Cro. El. 276. has been adjudged no good [Page 214] modus, but if it had been to strew the Parsons Seat, or to deliver straw to the Parson to strew the Church had been a good modus.

And it hath been held a good modus, Roll 1.647. b. 1, 2, 3, 4. 648. d. 1, 2. 649. d. 3. Hetley 133. Hob. 250⸪ More 910. Cro. El. 660. that in consideration the Parishioner has made the Hay into Grass Cock, that therefore he hath been discharged of the Tithe of the aftermath; but Sir Edward Coke declares for Law, that there needs no modus to be alledged, but that after­math is of it self freed from the payment of Tithes, 2 Inst. 652. and so I take it the Law is held at this day.

A modus to pay the tenth part of all the honey and wax of Bees killed, Bees. Roll 1.651. d. 15. has been held a good modus for the Tithe of Bees.

But there have been some opinions, that there is no Tithe due by the Law for Bees, because they are ferae naturae. But nevertheless by Custom they may be Tithable, and so they are in most places.

A Custom or Prescription to pay no Tithe for the Herbage of Beasts bred up for the Plow and Payl hath been allowed to be a good Custom, Herbage. Bulst. 2. Price vers. Mascal. More 909. but of this see more before in the fifth Chapter.

It is no good modus that the Owner of the Land has paid all his Tithe for his Cattel there depastured, Guest Horses. Roll 1.650. d. 14. therefore to be free of the Tithe Herbage for guest Hor­ses.

It hath been held that no Tithes shall be paid for the fewel spent in the dwelling Houses in the same Parish it grew, Fewel. More 909. without alledging any modus at all.

But it should seem that in this last Case there needs no modus at all to be alledged, Cro. Car. 113. Norton vers. Farmer T 4. Car. 1. C. B. but that for the fewel spent in the Owners House in the same Parish, there is no Tithe due of Common right. Ideo quaere.

If a man prescribe to pay six shillings and eight pence, Parks. Roll 1.651. E. 1. and 4. Mas­cal vers. Price. P. 13. Jac. B. R. Hob. 39⸪ Hutton 58. for all the Tithes arising and happening in such a Park, and the Park is disparkt and turned to tillage, the Prescription is gone.

But if in this Case he had made his Prescription, that in consideration of six shillings and eight pence yearly paid to the Parson, &c. he had been freed of all the Tithes arising upon six hundred Acres of Land called a D. Park, this had been a good Prescription, and should have freed the Park.

So if the Prescription of a Park have been to pay six shillings and eight pence, Roll 1.652. E. 5. and a shoulder of every Buck kill'd in the Park, in discharge of all Tithes arising within the same in this case, though the Park be disparked, and no Deer left, Booth [...]y vers. Reynells. m. 20. Jac. B. R. m. 10. Jac. ro. 641. B. R. Hutton 57. Noy 146. yet the modus remains, and shall discharge the whole Tithes.

And it has been held a good modus to give a Buck and a Doe yearly to the Rector, [Page 216] &c. in discharge of all the Tithes arising within the Park, although they be ferae naturae.

If a Parson, Modus for Land. Hutton 58. &c. have had an Acre or piece of Meadow ground, time out of mind, in discharge of all the Tithe Hay arising upon such a Farm, this shall only discharge the Hay upon the antient Mea­dowing, and not the Hay of Ground con­verted from Pasture or Tillage to Mea­dowing.

But if one have a modus for all the de­mesn of his Mannor, Roll 1.651. E. 1. 2 Inst. 490. and erect a new Mill this shall be comprehended within the modus and shall not pay any Tithe.

But if a Man have a modus for all the Hay and Grass upon twenty Acres of Land, Roll 1.651. E. 2. and converts the same to Tillage, or into a Hop Yard, he shall pay Tithes thereof: Where a modus to the Vicar shall discharge against the Parson, and è converso. More 907. Cokes Select Cases 45.1. Cro. El. 137. Hutton 57 m. 10. Jac. r. 641. Modus to pay a rate to the Vicar for Tithes due to the Parson. So it appears a great difference where the modus goes to all manner of Tithes in general, and where to parti­cular Tithes.

Where a modus is alledged to pay a cer­tain Summ to the Vicar in discharge of any Tithes due the Parson, this being a dis­pute of the right between two Clergy Men ought to be determined in the Ecclesiasti­cal Court, but it seems to be a good modus as to the Parishioner, and so it was held in the case of Pool and Reynels in the Kings Bench. Mich. 10. Jac. But Mr. Ware reports a case to be adjudged H. 18. [Page 217] Jac. B. R. that it was no good modus, and that Henden vouched one Bankes Case to be adjudged accordingly. Ideo quaere. But it seems to me a good modus, for this being Originally a modus between the Parson and Parishioner, the Vicar might be indowed with the modus; but this must be intended also where the indow­ment is time out of mind, and not to be produced, or where the Vicar hath it spe­cially in his indowment.

But to pay a rate to the Parish Clerk is no good discharge of Tithes against the Parson or Vicar, Leonard 1.94. Croke El. 71. Bulst. 1.220. Wintel vers. Child m. 14. Jac. B. R. unless the Parson be bound by Custom to find the Parish Clerk, nor is a modus to the Parson a good discharge against the Vicar.

And so having shewed what Prescrip­tions de modo decimandi, and de non deci­mando are good and allowable at the Common Law, in the next place I shall shew how a modus decimandi or Prescription may be destroyed or lost.

CHAP. XVII. The Seventeenth Chapter shews how a modus decimandi or Prescrip­tion may be lost or destroyed.

IF a Man have a modus for a Mill which is removed of necessity to a new place because the water invito has changed its course, Roll 1.652. f. 2. What matter will destroy a Modus. here though the Mill be removed the modus remains.

But if the Owner of such a Mill shall of his own accord, and without any cause of necessity remove his Mill to a new place, in this case he shall lose his mo­dus.

If a Man have a modus decimandi for two Messuages and two Mills to pay twenty shillings per annum, Roll 1.652. f. 2. and he erects a new Mill in one of the Messuages the modus shall not extend to free the new Mill.

There have been Opinions that Unity of Possession, Stepney vers. Warren P. 41. El. B. R. that is, to have fee-simple in the Rectory, and likewise in the Land to which the modus is annexed, should de­stroy a Prescription or modus deciman­di.

But if a Man have four Water Corn Mills for which he hath time out of mind paid a modus of four shillings per annum, Sir John Hol­lys Case. T. 9. Jac. B. R. and pulls down one of them, yet the modus remains, and he shall still pay the four shillings.

CHAP. XVIII. The Eighteenth Chapter shews, by what Conveyances, and by what names, Tithes may be granted, con­veyed, demised, &c. and what De­mises Parsons and Vicars may make of their Glebe and Tithes.

REgularly Tithes at this day cannot be granted or demised but by Deed in Writing under Hand and Seal, Stiles 261. By what Con­veyances Tithes will pass▪ Hungerford vers. Haml. T. 36. El. ro. 506. per Ow­en. Cro. El. 814. or by matter of a higher nature, as Fines, Reco­veries, &c. But in such cases as they are become Lay-see they may be devised by will in writing as Lands may, but they cannot be granted by Copy of Court Roll, because they cannot be parcel of a Mannor.

But Tithes cannot be conveyed or de­mised by any paroll agreement, Brettyman vers. Wood­ward. P. 31. Eliz. 10.17. B. R. B. Noy. 89. Hetley 3. Hughes 373. Bellamy vers. Bapthorp in 2 Car. 10.179. B. R. Co. 4.35 a⸪ unless it be to the Owner of the Land for one year by way of retainer.

Tithes impropriate are at this day by the several Statutes of dissolution become Lay-fee, and will pass by the name of Hereditaments, but by the grant of a por­tion of Tithes, the Tithes belonging to a Rectory will not pass.

Tithes impropriate may be past from one to another by Deeds of Bargain and Sale, St. 32 H. 8. cap. 7. inrolled according to the Statute of 27 H. 8. they may be transferred in use upon good consideration by Deeds of Co­venant to stand seized, or by Fines or common Recoveries, and may be sued for by Writs of Assise of novel disseisine, Writs of Entry, Writs of Right or other real Actions, or by ejectione fir­mae.

But upon a Lease for Lives of Tithes, no Rent can be reserved to be recovered at, or by the Common Law, for no Action of debt will lie, or distress can be taken, & ubi non est remedium, ibi non est jus.

But upon a demise of Tithes for Years, a Rent may be reserved, because an Action of debt will lye upon such Lease upon the Contract.

CHAP. XIX. The Nineteenth Chapter shews, what barren Lands are free from the payment of Tithes within the Sta­tute of 2 E. 6. cap. 13.

IN the Statute of 2 E. 6. 2 E. 6. cap. 13. there is a Pro­viso to this effect.

That all such barren Heath or wast Ground, other than such as be discharged from the payment of Tithes by Act of Par­liament, which before this time have lain barren and paid no Tithes by reason of the same barrenness, and now be, or hereafter shall be improved and converted into arable ground or meadow, shall from henceforth after the end and term of seven years next after such Improvement fully ended and determined, pay Tithe of Corn and Hay growing upon the same, any thing in this Act to the contrary in any wise notwith­standing.

This Clause was added for the Incou­ragement of Tillage and Improvement of lands by water or otherwise, and there­fore though here be no words of dis­charge of the payment of Tithes, during the first seven years, yet by a reasonable [Page 222]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 [Page 224]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 [Page 225]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.

But it seems some of the Canonists and Civilians are of opinion, that all Com­positions between the Lay and Clergy to be discharged wholely of payment of Tithes, or to pay less in recompence than the full value are invalid, but otherwise between Clergy-men, but by the com­mon Law which must govern here, there is no such difference allowed, but all re­al Compositions made as aforesaid are good and valid.

But note, Hob. 176⸪ that no Composition made by parol or word of mouth only, and not reduced into writing under hand and seal, is binding at all, unless it be upon Re­cord as by Fine, &c.

But I conceive at this day no real Com­position can be made to bind the Succes­sor of the Parson or Vicar that makes the same, for they are now restrained by the Stat. of 13 El. 13 El. cap. 10. to make any Grants o­ther than for twenty one years, or for three Lives with the other qualifications mentio­ned in the said Act.

So that it seems clear to me, that Par­sons and Vicars at this day, notwithstan­ding the confirmation of the Patron and Ordinary, cannot charge their Benefices or any thing belonging to them, other than for twenty one years, or three Lives as a­foresaid, and that only by Leases confir­med by Patron and Ordinary of things usually demised; whereupon the accu­stomed yearly Rent or more is reser­ved.

So that what has been said concerning real Compositions is only to be intended of such as were made before that and other later Statutes, for I take it a real Composition at this day will only bind the Parson himself, whilst he is Parson Re­sident, and serving the Cure, quod nota.

CHAP. XXI. The One and Twentieth Chapter shews, what Monastery Lands are, or may be, free from the Payment of Tithes.

IT is without Dispute, Jones 373⸪ 188⸫; Stat. 27 H. 8. cap. 28. What Monaste­ry Lands shall be freed from payment of Tithes. that none of the Abby Priory Lands, that came to the Crown by the Statute of 27 H. 8. or before, are freed or discharged of the payment of Tithes by the Statute of 31 H. 8. c. 8. or by any other Law or Act of Parliament.

But in the Statute of 27 H. 8. there was a Proviso, that notwithstanding that Act the King might by his Letters Patents under the great Seal of England continue any of the said Monasteries, and that Pro­viso is left out of all the modern Prints, only Rastal in his abridging of that Sta­tute makes some mention of it.

Now the Reader must observe once for all, that all Monasteries under two hundred pounds per annum were to have been dissolved by the Statute of 27 H. 8. and are therefore usually called the smal­ler Abbeys, and those of two hundred pounds a year and upwards were not dis­solved till the 31 year of H. 8. and are [Page 230]commonly called the great Abbeys.

And upon these two Statutes this Case lately happened in the Exchequer Cham­ber between Walklate Farmer of the Re­ctory of Ʋttoxater in the County of Staff. to the Dean of Windsor, and Wilshau Ow­ner of a Farm in that Parish, that was parcel of the possessions of the Abbey of Croxden in the same County, which was one of the small Abbeys, and of the Ci­stertian Order, which was freed of the payment of Tithes, as shall be shewed hereafter, and this Abbey was discovered by the Defendant Wilshau to be continu­ed by Letters Patents under the great Seal of England, 31 H. 8. c. 13. and so not dissolved till the Statute of 31 H. 8. whereupon the Defendant was dismissed, and discharged of payment of Tithes by the Stat. of 31 H. I mention this Case at large for the singularity not for any nicety in the Lear­ning of it.

By the Statute of 31 H. 31 H. 8. c. 8. 8. before men­tioned, there is a Clause to this effect.

That the King and his Patentees, The Clause of 31 H. 8. that frees Abbey Lands. which then had, or then after should have, any Mo­nasteries, Abbathies, Priories, Nunneries, Colledges, Hospitals, Houses of Fryars, &c. or any Mannors, Lands, &c. which did belong to them, should have, hold, retain, keep and enjoy the said Mannors, &c. accor­ding to their Estates and Titles discharged and acquitted of the payment of Tithes as [Page 231]freely, and in as large and ample manner as the said Abbots, &c. or any of them had held, occupied, possessed, used, retained, or enjoyed the same, or any part thereof at the days of their dissolution.

And the Reader is to observe, that the Abbots, &c. at the time of their dissolu­tion held their Lands discharged four manner of legal and regular ways, which were allowed by the Laws of this Realm, to wit.

1. By the Bulls of Popes. 2. By real Compositions with the Parson &c. Pa­tron and Ordinary. 3. By Prescription: And 4. By Order.

But there is another sort of discharge, though not a Legal one, has been allowed in this Case to make a 5. sort of discharge, and that is perpetual unity, where the Ab­bot has had the Rectory of any Church and Lands in the same Parish time out of mind, which have been held free from the payment of Tithes by all the time of memory, and of these several discharges I will speak in order.

And first of discharges by the Popes Bulls: it is to be understood, Bulls. that when the Pope usurped a power over the Cler­gy here in England, he did at his pleasure grant Exemptions to this or that Abbey, or to whom else he pleased to be freed from the payment of Tithes, which was allowed as a good discharge against the [Page 232]Parsons and Vicars, who in many places suffer by these Bulls to this day, these Bulls being turned into Prescriptions, &c.

The second sort of discharges was by real Compositions between the Parson or Vicar, Real Composi­tions. and the Abbots, Priors, &c. confir­med by the Patron and Ordinary; of these we have spoken at large before in the twentieth Chapter, and therefore shall not repeat it, but pass to the third sort of discharges.

The third sort of Discharges is by Pre­scription, of which we have likewise spo­ken at large before in the sixteenth Chap­ter, to which I shall refer the Reader.

I shall only observe to the Reader a­gain in this place, That the Abbots, Pri­ors and other religious persons might prescribe generally to be free from the payment, or to be discharged of the pay­ment of Tithes without any recompence to the Parson, &c. but a Layman could not prescribe absolutely to be free from payment of Tithes, but sub modo that is paying or doing something to, or for, the Parson, Vicar, &c. in recompence and sa­tisfaction of the Tithes as you may at large see in the Chapter here before.

And it is to be observed, that no Abbot, Prior, &c. could make any such Prescrip­tion by the Common Law, that was not founded before the time of memory, that [Page 233]is before the first year of R. 1. 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 [Page 234]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 [Page 235]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 [Page 236]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 6 [...]7. Hob. 6 [...]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 [Page 237]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 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 [Page 239]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 [Page 240]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 [Page 241]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 [Page 242]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 shews, what Personal Tithes are, and in what manner they are payable.

THE Canonists define personal Tithes thus. Lindwood cap. Quoniam prop­ter verb. deci­mae personales. What personal Tithes are, and where payable.

Decimae personales sic dictae quia potius in respectu personae solvuntur quàm rei, ut puta de artificio, negotiatione & militia. And by the Canon.

Decimae personales solvantur de artifi­cibus & mercatoribus, The Canon. scilicet de lucro ne­gotiationis, similiter de carpentariis, fabris, caementariis, Textoribus, pandoxatricibus, & omnibus aliis operariis, stipendiariis, ut vide­licet dent decimas de stipendiis suis, nisi stipendiarii ipsi aliquid certum velint dare ad opus vel ad lumen Ecclesiae, si Rectori ipsius Ecclesiae placuerit. And Mr. Verbo nego­tiationis. Linwood in his Gloss adds,

Et scias quod in istis decimis mere per­sonalibus quae considerantur ex solo lucro deducuntur expensae tam in re quam circae rem & extra rem factae. Et nota quod de solo lucro debetur haec decima, unde si emens mercem eam non vendat sed donet vel sibi retineat, non tenetur decimare quia non lu­cratur.

So that it appears by the Canon Law, that every one ought to pay for a perso­nal Tithe, a tenth part of all his clear gains, deducting all his charges and ex­pences for a personal Tithe; but if a man buy Merchandizes, and do not sell them to profit, or give them, or make use of them himself, no Tithe is to be paid, because there is no gain made of them.

Now let us see, 2 E. 6. c. 13. what the Statute of 2 E. 6. says to us, concerning personal Tithes; and by that Stat. it is enacted.

That every Person exercising, The Statute for personal Tithes. merchandi­zing, bargaining and selling, cloathing, han­dicraft, or other art or faculty, being such kind of persons, as then before within for­ty years had accustomably used to pay such personal Tithes, or of right ought to pay (other than such as be common day Labou­rers) shall yearly pay for his personal Tithes the tenth part of his clear gains, his charges deducted.

And where handycraft men have used to pay their Tithes within this forty years, the same Custom of Tithes is to be observed; and if any Person refuse to pay his personal Tithes, &c. It shall be lawful to the Ordi­nary of the same Diocess to call the same Party before him, and by his discretion to examine him by all lawful and reasonable means, other than by the Parties own cor­poral Oath concerning the true payment of the said Tithes.

This Act of Parliament restrains the Canon Law in two things; first, where the Canon was general, that all persons in all places should pay their personal Tithes, the Act restrains it to such kind of persons only, as have accustomably u­sed to pay the same, within forty years before the making of the Act. Secondly, Whereas by the Ecclesiastical Laws they might before this Act have examined the Party upon his Oath concerning his gain; this Act restrains that course, so that the Party cannot be examined upon Oath; and by this Act the day labourer is freed of the payment of his personal Tithes.

It cannot be intended upon this Act, that if such Tithes have been sometimes paid within forty years, that they are therefore due, but they must have been accustomably, that is constantly, paid for forty years next before the Act.

And if it be demanded how such pay­ment must now be proved forty years be­fore the making of the said Act, I an­swer, as in other like Cases à posteriore by what has been done all the time of memory since the Act.

There has been some question amongst the School-men and Canonists, whether personal Tithes ought to be paid of un­lawful gain, to which you shall hear what a great Schoolman and Doctor says.

Quod si aliqua male acquiruntur du­pliciter uno modo, Tho. Aqu. Sum. 2. 2ae. q. 87. art. 20. Whether due of ill gotten profit. quia ipsa acquisitio est injusta, puta quae acquiruntur per rapi­nam, furtum seu usuram, quae homo tene­tur restituere, non autem de eis decimam da­re, tamen si aliquis ager sit emptus de usura, de fructu ejus tenetur usurarius decimas da­re, quia fructus illi non sunt de usura, sed ex Dei munere: quaedam vero dicuntur ma­le acquisitae, quia acquiruntur ex turpi causa sicut de meretricio & histrionatu, & aliis hujusmodi, quae non tenentur restituere unde de talibus tenentur decimas dare, se­cundum modum aliarum personalium de­cimarum, tamen Ecclesia non debet eas re­cipere, quamdiu sunt in peccato, ne videa­tur eorum peccatis communicare, sed post­quam poenituerint possunt ab eis de his reci­pi decimae.

So that by this great Doctors opinion, it seems, that of ill gotten gain, of which restitution ought to be made, no personal Tithe is due, and yet if by ill gotten gain, a field be purchased, Tithe ought to be paid of the fruits thereof, but of ill gotten gain, where no Restitution is to be made, there Tithes ought to be paid, but not received by the Church, till the sinner have repented him of the evil, and after such repentance the Church may re­ceive them.

These personal Tithes are accompted amongst the offerings, of which we are [Page 247]to speak next, and ought by the Parishi­oner to be offered to the Church where due; but I am of the opinion of him, that said.

Hae decimae personales magis difficultate & subtilitate quàm utilitate existunt.

It hath been resolved, Roll 1.646. a. 1. that Servants in Husbandry shall not pay any personal Tithe.

CHAP. XXIII. The Twenty Third Chapter shews, what Oblations, Offerings, &c. are, and where due.

OFferings are defined by the Canonists to be, Oblations and Offerings what and where due.

Quaecunque à piis, fidelibus Christianis offeruntur Deo & Sanctae Ecclesiae, sive res soli, sive mobiles sint, nec refert an legan­tur Testamento, aut aliter donen­tur.

It should seem, that in the time of Po­pery, there was an expectation, that e­very one present at Mass should offer something; for St. Gregory tells us, Greg. 78. ha­betur de Conse­crat. div. 1. Quod omnis Christianus procuret ad missarum so­lennia [Page 248]aliquid Deo offerre.

But Becanus a learned Jesuite is more moderate; Becan. Sum. Theo. l. 3. q. 86. for he tells us, Quod nemo te­netur ad illas Oblationes, nisi vel necessa­riae sint ad sustentationem ministrorum, vel consuetudo ad eas alicubi obliget.

And these Offerings belonged proper­ly to the Priest or Minister of the Church or Place where they were made; for so is the Canon of Pope Damasus.

Quod Oblationes quae intra sanctam Ec­clesiam offeruntur, Can. Damas. Pap. Et habe­tur 10. q. 1. tantummodo Sacerdoti­bus qui quotidiè servire videntur, licet comedere & habere, &c.

But it should seem, that private Chap­pels carried away many of the offerings belonging to the Mother Churches, to a­void which Othobon the Popes Legate here made a Canon to remedy that mischief to this purpose,

Quod Capellani ministrantes in Capel­lis hujusmodi, Cap. De Obla­tionibus. quae salvo jure matricis Ec­clesiae sunt concessae, universas Oblationes & caetera quae ipsis non recipientibus ad Ec­clesiam matricem provenire deberent, ipsius Ecclesiae Rectori sine difficultate restituant, cum illud tanquam alienum juste neque­ant retinere. Si quis autem restituere con­tempserit, suspensionis vinculo quousque re­stituerit se noverit innodatum.

So that it seems by this Canon, that Chappels that had parochial Rights, the Chaplains of them might retain the offe­rings, [Page 249]but where the parochial Rights were saved to the Mother Church, the Chap­lains of such Chappels were to accompt to the Rector of the mother Church: for the offerings made at such Chap­pels.

There was another Canon made by Simon Mepham Archbishop of Canterbu­ry, and his Clergy in the year of our Lord 1328. reciting.

Quia quidam maledictionis filii in nu­bentium solenniis, Cap. Quia qui­dam maledicti­onis, &c. purificationibus mulie­rum, mortuorum exequiis, & aliis, in qui­bus ipse dominus in ministrorum suorum personis solebat oblationum libamine popu­lariter honorari, ad unius Denarii, vel al­terius modicae quantitatis oblationem, popu­li devotionem restringere sunt moliti, resi­duum oblationis fidelium suis, pro libito, vel alienis usibus multoties applicantes. Praesentis declaratione Consilii declaramus & pronunciamus, omnes & singulos in prae­missis, vel eorum aliquos imposterum delin­quentes, vinculo majoris excommunicationit involvi.

So that upon the whole matter it ap­pears, there were some offerings free and voluntary, which the Parishioners or o­thers were not bound to perform, but ad libitum. There were others by Custom certain and obligatory, as those for Marriages, Christnings, Churching of Women, Burials, &c. and that these were [Page 250]all due, and belonged to the Parish Priest or Minister, that officiated at the Mother Church or Chappels, that had parochial Rights, the other Chappels that had not parochial Rights were to accompt to the Rector for the Parish Church: now let us see, what the Statute of 2 E. 6. says, by which it is enacted.

That all and every Person or Persons which by the Laws and Custome of this Realm ought to make or pay their offerings, 2 E. 6. c. 13. The Statute for Offerings. shall yearly from thenceforth, well and truly content and pay, his or their offerings to the Parson, &c. of the Parish, or Pa­rish where it shall fortune or hap­pen, him or them, to dwell or abide, &c.

Those offerings which were free and voluntary are now vanished, and are not comprehended within this Law; but those that were customary and certain, as for Communicants, Marriages, Christe­nings, Churching of Women and Burials, are confirmed to the Parish Priest, Vi­cars and Curates of the Parishes where the parties live that ought to pay the same, and they are only recoverable in the Spiritual Court, or an Action I con­ceive may be formed upon this Statute at Common Law.

CHAP. XXIV. The Twenty Fourth Chapter shews, what Mortuaries are, and in what Cases they are due at this day, and how much is to be paid for the same.

BY a Provincial Canon made by Si­mon Laugham Arch-Bishop of Can­terbury and his Clergy, Where, and what is due for Mortua­ries. in the Year of our Lord 1378. It was decreed.

Quod si decedens tria vel plura cujus­cun (que) generis in bonis suis habuerit ani­malia, Cap. Statutum & infra, &c. The Canon. optimo cui debitum de jure fuerit reservato; Ecclesiae suae, à qua Sacramenta recepit, dum viveret, sine dolo, fraude seu contradictione qualibet pro recompensatio­ne subtractionis decimarum personalium, nec non & oblationum secundum melius animal reservetur post obitum pro salute animae suae Ecclesiae suae bujusmodi libe­randum: quod si duo tantum in bonis de­cedentis extiterint animalia, de mansuetu­dine Ecclesiae exactio quaelibet nomine mor­tuarii remittatur; quodque si Mulier viro superstite obierit, ad solutionem mortuarii minime coerceatur. Sed si post obitum mariti, in domo cum familiae regimine vi­dua per annum supervixerit, juxta formam [Page 252]superius scriptam, ad mortuarium oblige­tur: Hac autem interpretatione, consue­tudini laudabili super mortuariis in nostra provincia aliter observare nolumus, prae­judicium generari; quin si decedens nu­merum hujusmodi animalium habuerit seu non habuerit, virve aut uxor prius vel post decesserit, super praestatione Mortuarii consuetudo Ecclesiastica observetur: ad so­lutionem autem debiti de jure vel consue­tudine mortuarii renuentes, volumus per ordinarios locorum censura Ecclesiastica coarctari.

How far this Canon was obeyed in England I can give no accompt, but I have not found the English willing to have their Estates taken from them by Canons, nor have found that any pro­hibitions have been granted in case of Mortuaries; nor have I observed any com­plaints in Parliament against them (save that 2 R. 2. It is pray'd that Parsons and Vicars might not require Mortuaries of the Armour of any Man, but that it might remain to their Executors) till the 21 H. 8. and then they were setled by Sta­tute as follows. Stat. 21 H. 8. cap. 6. The Statute for Mortuaries.

1. That no Man should pay a Mor­tuary unless he died possessed of Goods to the value of ten Marks, that is, six pounds thirteen shillings and four pence.

2. That no Mortuary should be paid or demanded, but in such places where they [Page 253]have used to be paid or given.

3. That they should be paid but in one place, and that at the partie's most usual dwelling and habitation, and there but one Mortuary, and that after the rate follow­ing, that is to say.

4. That if the decedent at the time of his death, had in moveable Goods to the value of ten Marks clearly, his debts first paid and under the sum of thirty pounds, then he should pay three shillings and four pence and no more, and this must be in moveables, and not in Chattels as Leases for Years, &c.

5. That if the decedent died possessed of moveables of the value of thirty pounds, and under the value of forty pounds, to pay six shillings and eight pence for a Mortua­ry.

6. If the Decedents Goods be of the value of forty pounds or upwards, then to pay ten shillings for a Mortua­ry.

7. That no married Woman, Child, or Person not keeping House should pay any mortuary, nor a wayfaring Man, or other that was not resident where he died, but those to pay where they were last resi­dent.

8. The Parson or Vicar are not by this Act barred of any Legacy given, or offering to be made to them.

[Page 254]9. No Mortuary to be paid in Wales, Callis or Barwick, or in the Marches of Wales, but where accustomed.

10. It is provided that the four Welch Bishops, and the Arch-Deacon of Chester may, notwithstanding this Act, take their accustomed Mortuaries.

11. That where less hath accustomably been taken for Mortuaries than is limited by the Act, there no more than is due by the Custom shall be taken.

Sir Edward Coke is of opinion that there were no Mortuaries due before this Act, 2 Inst. 491⸫; Mortuaries due only by Custom. by any Law, but by Custom only; by reason of the words in the Statute of Circumspecte Agatis which are, ubi mor­tuarium dari consuevit, &c.

This duty was formerly only suable for in the Court Christian, but now I conceive an Action of debt will lye at Common Law upon this Statute, for though this Statute is only negative, that they shall not take above such rates, yet it implies affirmative, as the Statute of 2 E. 6. for barren Grounds, and the Sta­tute for the Sheriff's Fees, and dues, other Statutes.

For those Mortuaries that Prelates an­tiently paid to the Kings of this Realm, Mortuaries to the King by Bishops. I shall not trouble the Reader with, but refer those that are curious to inform themselves, to Sir Edward Coke's Com­mentary upon Magna Charta. 2 Inst. 491..

In the Tenth of H. 4. 10 H. 4. 1. b⸪ A Vicar claimed a Mortuary by Custom, and not by the Canon, or any other Law, quod nota.

These Mortuaries are in some places called coarse presents, Their names. or coarse presen­tees, as Doctor Cowel says, because where due, they used to pay before the Coarse was buried, when it was brought to be buried.

The Bishop of Chester claimed by Cu­stom upon the death of any Priest, Cro. Car. 237, 238. Bishop of Che­ster his demand as Archdeacon of Chester. dying within the Archdeaconry of Chester for a Mortuary, his best Horse or Mare, Saddle, Bridle and Spurs, his best Gown, a Cloak, his upper Garment, next it his best Hat, his Tipper, his best Signet or Ring, and this Custom was denyed by the Plaintiff in a Prohibition, but what the Success was I have not heard, but the Mortuaries due to the ARchdeacon of Chester are ex­cepted: And the Bishop of Chester holds that Archdeaconry, as I have been in­formed, in the nature of a Commendam, and executes it by a Deputy.

CHAP. XXV. The Five and Twentieth Chapter shews, how Tithes are to be paid in London.

THE Livelyhood of the Clergy in London, Tithes in Lon­don, how to be paid. I mean the secular Clergy, consisted heretofore chiefly in voluntary offerings and Personal Tithes, which little differ from voluntary offerings. For though a great Doctor tells us that,

In praecipuis festivitatibus tenetur quis offerre, Hostiensis c. Omnis Christi­anus. & cogi potest, maxime cum sit quasi generalis consuetudo ubique terrarum, &c.

And if you ask him which are those Feasts at which the People are bound to offer, Idem de Paroc. Sect. In quibus, &c. he tells you, Dies dominicos, & dies festivos.

But there being no Canon or Law that prescribes any certainty in the quantity, value, or things to be offered. I can give them no properer name than voluntary or free-will offerings. But no sooner was Popery abolished in this Nation, but these voluntary offerings and personal Tithes soon came to little. And notwithstand­ing it was enacted by the Statute of 2 E. 6. [Page 257]That all that by Law or Custom were bound to make their offerings should thenceforth pay them to the Parson, &c. yet that did not much amend the matter, so that the maintainance of the secular Clergy in London was brought to a very low ebb, there being no Tithe as hath been said, chargeable upon houses, unless by way of a modus decimandi, whereupon the Cler­gy of London in the 37th. Stat. 37 H. 8. c. 12. year of the Reign of King H. 8. made their applicati­on to the Parliament, and obtained an Act of Parliament for the confirming a Decree made by the Archbishop of Can­terbury and divers other great Lords of the Kingdom, to settle the matter, the effect whereof follows, which is printed amongst the other Acts of Parlia­ment.

1. The Decree. That the Citizens of London from thenceforth for ever, should pay yearly with­out fraud or guil to their Parsons, &c. for the time being; for every ten shillings rent of all houses, shops, warehouses, cellars and stables within the said City of London, and the Liberties of the same 16 d. ob. and for every 20 s. rent, 2 s. 9 d. and so ascending for every ten shillings rent.

2. That if any dwelling houses, shops, &c. should be leased by fraud or covin, re­serving less Rent than hath been accustomed; or shall by reason of Fine, or by fraud or covin, make any Lease without reserving a­ny [Page 258]Rent, then the Farmer or Tenant shall pay after the same Rate, the said house, &c. was last let for without Covin; but note, that if the house, &c. be let at as great a Rent as the same was set at, at the time of the making of the said Statute, then no fraud can be averred, although a Fine or In-come was given for the said Lease.

3. 2 Inst. 659.. That if a house, &c. be leased, and no Rent at all reserved, then such house, &c. shall pay such rate as the same was let for at the time of the making of the said Sta­tute; but where greater Rent is reserved, it is to pay according to the best improved value.

But where Houses had been always held by the Owners, 2 Inst. 660⸫; and, by consequence, no Rent paid, that is casus omissus in this Statute, and such houses will be freed of payment of Tithes by this Law.

But if it were a house, that yielded Rent at the time of the making of the De­cree, and be now let without Rent, it shall pay Tithe according to the Rate it was set for at the making of the Decree, although no Fine at all were paid for such Lease.

5. The Tithes upon this Decree cannot be sued for in the Ecclesiastical Court, be­cause the Act it self declares how they shall be recovered.

6. That if the Owners held the houses themselves, then they shall pay Tithe after the rate the same were set for at the time of the Decree.

[Page 259]7. That if any person take any house, &c. by Lease, and he and his Executors, &c. live in part of it, and set out part, the principal Farmer or Taker, his Executors, &c. shall pay their Tithes for his and their Parts after the rate aforesaid, and of such part as is farmed out according to the rate it is set at. And in the same manner Tithes are to be paid, where one takes a Lease of several houses, and lets out part, and holds any part himself.

8. That if any Farmer, or his Assigns shall farm all the houses, &c. so farmed to one or divers Tenants, the Tenants shall pay Tithes according to the Rent reserved.

9. That if dwelling houses shall be con­verted into Ware-houses, or è converso, yet they shall pay Tithe according to the Rate aforesaid.

10. That if a Dye-house or Brew-house be let with the Implements, then a third penny of the Tithes after the rate abovesaid to be abated.

11. That where a mansion house with shops, stables, wharfs, with Cranes, Timber­yard or Gardens belonging to the same, and occupied together shall afterwards be seve­red, or were severed within 8 years before the Decree, that then the Farmers of the shops, stables, &c. shall pay Tithes accord­ing to the rate abovesaid.

12. That these Tithes shall be paid quar­terly at Easter, Midsummer, Michaelmas and Christmas.

[Page 260]13. That any Housholder, that holds a house of 10 s. Rent, or above, shall be acquit of his Offerings; but his Wife, Children, and Servants shall pay 2 d. yearly for their four Offering days, receiving at Ea­ster.

14. That if any house of 10 s. Rent or above, shall be let by parcels under 10 s. Rent, then the Owner, if he live in any part of the house, or the chief Tenant, shall pay the Tithe after the rate as the same house was accustomably letten before such Division, and the Sub-Tenants, that hold less than 10 s. per annum, without fraud or covin shall pay 2 d. yearly for their Offe­rings.

15. That no Tithes shall be paid for any Gardens belonging to any Mansion house, and which are held for pleasure; but if such Garden contain half an Acre of ground or more, and shall make any yearly profit by Sale, then the same to be paid for, accord­ing to the rate abovesaid.

16. This Act is not to extend to the houses of Noblemen or Noblewomen whilst they are kept in their own hands, and not lett for Rent, and which formerly paid no Tithe, so long as the same continue unletten, nor to the Halls of any Craft or Companies so long as the same are unletten, and in times past paid no Tithes.

17. That Shedds, Stables, Cellars, Tim­ber-yards and Tenter-yards, which were [Page 261]never parcell of, or belonging to any dwell­ing House, and which has not been used to pay Tithes, shall be acquit of the pay­ment of Tithes, as hath been accusto­med.

18. But if by Custom any lesser rate have been paid than after the rate of two shil­lings and nine pence in the pound, then the accustomed rate only to be paid.

19. The Lord Major of the City of London, by the advice of Councel is Au­thorized by the said Act, to hear and de­termine all differences arising upon this De­cree, and give costs according to the intent thereof.

20. That if the Major do not make an end of such differences within two Months after complaint; or if any Person find him­self agrieved by his Decree, then the Lord Chancellor within three Months after com­plaint to him made, shall make on end of the differences with costs, &c.

21. That if Rents fall by reason of de­cay or burning, to less than they were accusto­mably letten, that then the Tithes during such Term, shall be paid according to the Rent reserved.

This is a short abstract of that great Decree which I have inserted here for the use of the Clergy of that City, I shall only add some other resolutions upon this Decree, and conclude this Chap­ter.

In a Case between Dr. Noy. 130. Where Suits for Tithes in London shall be determined. Meadhouse and Dr. Tayler, it was resolved, that Suits for Tithes upon this Decree should be before the Maior in writing, and not by Pa­rol.

2. That a Reservation by a Leasor for life upon a Lease by him made for years, shall not bind him in reversion to pay Tithes according to that rate.

3. That a Rent for half a year, and after for another half year is a yearly Rent within this Decree.

It hath been resolved, Cro. El. 276. that Abbey Lands within the City of London, and the liberties thereof are not freed from the payment of Tithes within the Statute of 31 H. 8. because the Statute and De­cree for the payment of Tithes within the City and Liberties of London was made after the Statute of 31 H. 8. and their Priviledges are not reserved.

And it hath been resolved, 2 Inst. 660.. that if any Suit be brought in the Ecclesiastical Court, or any other Court than is dire­cted by the Act, a Prohibition lyes.

Lastly, 2 Inst. 690⸫; where the Decree says (where no Rent is reserved by reason of any fine or income paid before hand) that is put only for Example, for if no Rent be re­served for this, or any other cause or con­sideration, it is within the meaning of this Clause.

CHAP. XXVI. The Twenty Sixth Chapter shews, in what Courts the Right of Tithes is determinable, and how, and in what manner to be recovered, and in what Cases Prohibitions are usu­ally granted, and how prosecuted and defended.

THat Tithes were antiently determi­nable in the County and Hundred Courts, 2 Inst. 661⸫; Seld. hist. de­cim. 412⸫; Lamb. Saxon Laws 45. is asserted both by Sir Edward Coke and Mr. Selden: And the same ap­pears by the Laws of King Ethelstan long before the conquest; and Mr. Selden is of opinion, that the Bishops consistory here in England was not setled till the time of William the Conqueror, who by his Charter commands, Seld. 414. ut nullus Episcopus vel Archidiaconus de legibus Episcopalibus amplius in Hundredo placita teneant, nec causam quae ad regimen animarum pertinet ad judicium secularium hominum addu­cant, sed quicunque secundum leges Epis­copales de quacunque causa vel culpa inter­pellatus fuerit, ad locum, quem ad hoc E­piscopus elegerit & nominaverit, veniat, i­bique [Page 264]de causa sua respondeat, & non se­cundum Hundret. sed secundum Canones & Leges Episcopales rectum Deo & Epis­copo suo faciat. And closes thus, Hoc eti­am defendo, ut nullus Laicus homo de legi­bus, quae ad Episcopum pertinent se intro­mittat; yet notwithstanding as Mr. Sel­den observes, Seld. 414. &c. the Jurisdiction of Tithes was not so settled in the Bishop and Ec­clesiastical Courts, but there were Suits for Tithes as well in the Temporal as Ec­clesiastical Courts, whereof he gives some Instances. And amongst the Laws of King H. Leg. H. 1. c. 11. Lamb. 182. 1. I find this Clause, Si quis rectam decimam superteneat, vadat praeposi­tus Regis & Episcopi & terrae domini cum presbytero, & ingratis auferant; & Eccle­siae eui pertinebit, reddant, & novam paertem relinquant ei qui decimam dari nolue­rit.

But the Law hath been now long set­led that the Ecclesiastical Courts have in some cases the power to determine the right of Tithes, and in all cases to hold plea for the subtraction and withholding of Tithes, and confirmed by several Acts of Parliament. 35 H. 6.39. 38 H. 6.22. per Fortescue. Where the Spi­ritual Court may determine the Right of Tithes.

To the first, if a dispute happen between two Parsons, to which of them the Tithes belong, whether to the one by parochial right, or the other as a portion belonging to his Rectory by prescription, and both Parsons claim by presentation under the [Page 265]same Title, so that the right of Patrona­ge comes not in dispute, the right of these Tithes shall be determined in the Eccle­siastical Court, and no Prohibition or Judicavit shall hinder it, and this suit in the Ecclesiastical Court is called a spoli­ation.

And this Jurisdiction is so peculiar and annexed to the Spiritual Courts, 38 H. 6.21. 5 H. 5.40. 14 H. 4.17. a. b. Where the Tem­poral Courts have not Juris­diction of Tithes. That if the one Parson should bring an Action of Trespass at Common Law against the o­ther Parson, for the taking and carrying away Corn or other things set out for Tithe, the Defendant may by way of plea shew, that the Goods in question were Tithes set forth and severed from the nine parts, and that he is Parson of Dale, and that he and all his predecessors time out of mind have had these Tithes as a portion which belonged to his Church, and that the Plaintiff being Rector of the Parish where they grew, claims them as his Tithes, and demand Judgment, if the Kings Court will hold plea, by such plea the Kings Court shall be ousted of Juris­diction, 5 H. 6.10. 50 E. 3.20. 38 E. 3.6. 39 E. 3.23. 5 H. 5.10. 1 H. 6.5. 44 E. 3.39. 20 H. 6.17. 2 H. 4.15. 31 H. 6.11. 2 E. 4.15. but if the dispute in such Action fall out in pleading to be about the bounds of the Parishes, then the King's Court shall not be ousted of Jurisdicti­on.

And so it is if the question be between the Farmer, Bayly, or Servant of the one Parson, and the Farmer, Bayly, &c. [Page 266]of the other, or the other Person himself in such cases, though the dispute does ap­pear to be concerning the right of Tithes between the Persons yet the Court shall not be ousted of the Jurisdiction because they are not both Clergy Men.

But in all these cases where the right of Tithes is in dispute between one Parson and another, in whose names soever the Suit is in the Spiritual Court, I conceive no prohibition lies, if both Parsons come in by the same Title of patronage, so that the right of patronage come not in dis­pute.

And I take the Law to be the same where the question arises between the Par­son who is patron, 40 E. 3.28. 35 H. 6.39. and the Vicar: whe­ther Tithes belong to the Parson or Vi­car?

But where the right of Tithes is con­troverted between two Clergy Men which come into their Churches by seve­ral patrons, West. 2. c. 5. Circumspecte Agatis, Articuli Cleri: cap. 2. Where the Spi­ritual Court cannot deter­mine the right of Tithes. there in that cave the Spiri­tual Court hath not Jurisdiction to deter­mine the right of the Tithes, if they a­mount to the fourth part of the yearly va­lue of the Church; but the Title is to be determined by writ of right, of Advow­son of Tithes as shall be shewed more at large, when I shall come to shew in what cases the right of Tithes is determi­nable in the Kings Court. But in that [Page 267]case if the Tithes in question do not a­mount to the fourth part of the value of the Church, the Ecclesiastical Court may determine the right in a spoliati­on. F.N.B. 37. E.

But the Jurisdiction of the Ecclesiasti­cal Courts to hold plea for the subtracti­on and withholding of Tithes, Spiritual Ju­risdiction con­firmed by seve­ral Acts of Parliament. as the same hath been very antient, so it hath been confirmed by several Acts of Parlia­ment as I shall shew, the first of which is that of circumspecte agatis, made in the ninth Year of E. 1. by which it is enacted, That, By the Statute de circum­specte Agatis. Si Rector petat versus parochianos ob­lationes & decimas debitas & consuetas; vel si Rector petat versus Rectorem de deci­mis majoribus vel minoribus, dummodo non petatur quarta pars valoris Ecclesiae; Item si Rector petat mortuarium in partibus ubi mortuarium dari consuevit; Item si praelatus alicujus Ecclesiae vel advocatus petat à Rectore pensionem sibi debitam, omnes hu­jusmodi petitiones sunt faciendae in Foro Ecclesiastico, &c. and concludes, In om­nibus praedictis casibus habet Judex Eccle­siasticus cognoscere, Regia prohibitione non obstante.

There hath been some question made whether this were an Act of Parliament or not, That it is an Act of Parlia­ment. 2 Inst. 487⸪ Seld. hist. de­cim 424. but it is proved by Sir Edward Coke by many unanswerable reasons to be an Act of Parliament, and so agreed by Mr. Selden, and almost all others.

Secondly, And extends to all England. admitting it to be an Act of Parliament, it hath been doubted whe­ther it extended further than to the Diocess of Norwich, it seeming to be ap­propriated by the penning to that Diocess alone; 2 Inst. 487⸪ but by the general opinion of the learned it extends to all other Diocesses, and Norwich is only put by way of exam­ple.

And the prudent penning of this Law by our Ancestors deserves the Reader's observation, Observations in the penning of it. how careful they were to preserve their own rights and avoid the incroachments of the Clergy, who were in those days very powerful, for first, they would not give way to the Canons to de­stroy their Customs and Prescriptions al­lowed by the Common Law, and there­fore give the Spiritual Judg Jurisdiction of Tithes and Oblations (debitas & consue­tas) only.

2. They would not expose their rights of Patronage to the determination of the Spiritual Judg, and therefore this condition is annexed, Dummodo non petatur quarta pars valoris Eccle­siae.

Lastly, they would not subject them­selves to pay Mortuaries according to the Canon Law, but ubi dari consuevit, so that if any Suit were sued for Tithes, Offerings, Mortuaries, not due as well by Custom as Common Law, a Prohibition lay, and doth lye at this day.

The second Statute concerning the Ju­risdiction of the Spiritual Courts in cases of Tithes, is the Statute of Articuli Cle­ri, but I shall pass it by here till I come to speak of the Writ of Judicavit.

The next Statute I meet with that con­cerns this matter, 18 E. 3 c. 7. is the Statute of 18 E. 3. cap. 7. which I shall pass by also till I come to speak of the determina­tion of the right of Tithes by scire faci­as.

There was another Statute made 1 R. 2. 1 R. 2. c. 13. it is Cap. 13. for the punishing of such as indicted those that sued in the Spiritual Courts for substraction of Tithes, or compelled them to desist by Bonds or o­therwise, but that Law being now become obsolete, and besides my purpose, I shall proceed to the Statute of 27 H. 8. by which it is enacted,

That every Subject of England, 27 H. 8. c. 20. Ire­land, Wales, Callais, and the Marches of the same, should according to the Eccle­siastical Laws and Ordinances of the Church of England, and after the laudable Ʋsa­ges and Customs of the Parishes or other places where he dwells or occupies, shall yield and pay his Tithes and offerings, and other duties of holy Church: And that for subtraction of such Tithes, &c. may by due process of the King's Ecclesiastical Laws consent the Person, &c. so offending, before his Ordinary or other competent Judg, &c. [Page 270] having Authority to hear and determine the right, Tithes, &c. And to compel the pa [...] offending to do and yield their duties in that behalf. And in case the Ordinary, &c. for any contempt, contumacy, disobe­dience or other misdemeanour of the Party Defendant, shall make information to any of the Kings most Honourable Councel, or to the Justices of the Peace of the Shire where the Offender dwell [...] to assist and aid the Ordinary, &c. and to order and re­form any such Person, in any Cause before rehearsed, that then be of the Kings Coun­cel, or such two Justices of the Peace, whereof one to be of the Quorum, to whom such information or request shall be made, shall have power to attach, or cause to be at­tached the Person, or, &c. against whom such information shall he made, and to com­mit the same Persons to Ward, there to re­main without Bail or Mainprise untill he, &c. shall have found sufficient Surety to be bound by Recognisance or otherwise, before the Kings Counsellor, or, &c. or any other like Counsellors, or Justices, &c. to the use of the King, to give due obedience to the Process and Proceedings, Decrees and Sentences of the Ecclesiastical Court wherein such Suit, &c. shall depend or be. And further gives power to the said Counsellor, or to two Justices of the Peace, whereof one to be of the Quorum, to take, receive, and Record such Recognizance and Bonds.

There is a Proviso in this Act, that it shall not extend to London.

And another Proviso that the Party sued may have all legal Defences, Appeals and Prohibitions.

And it is to be observed that this Law extends to all sort of Tithes, Observations upon this Law. mixt and Personal, as well as Predial.

Next, he that will have the benefit of this Law must sue for the single value, and not for the double value upon the Statute of 2 E. 6.

Thirdly, the Plaintiff in the Ecclesi­astical Court may proceed upon this Act for contempt, contumacy, or misde­meanour, as well before as after Sen­tence.

Fourthly, The security upon this Act, may as well be by Bond as Recog­nizance.

Lastly, observe the wary penning of this Act, they must pay their Tithes and other Church Duties, according to the Ecclesiastical Laws and laudable Customs and usages of the place, next, if it be de­manded before whom Suit upon this Sta­tute shall be made, it is answered by the Statute it self, it must be before such Judg as hath Jurisdiction of the Cause, so that it creates or enlarges no Jurisdicti­on.

The next Act of Parliament concerning this matter, is the Statute of 32 H. 8. 32 H. 8 c. 7. by [Page 272]which it is enacted, that all and singular persons, &c. shall fully, truly and effectual­ly divide, set out, yield or pay all and sin­gular Tithes and Offerings, according to the lawful Customs and Ʋsages of the Pa­rishes and Places where, &c. and in case a­ny person, &c. to detain or with-hold any of the said Tithes or Offerings, or any part or parcel thereof, that then the person lay or, &c. shall and may convent the person or, &c. before the Ordinary, &c. according to the Ecclesiastical Laws, &c. and so proceed to Sentence according to the Process and course of the Ecclesiastical Laws.

And that if any Party appeal against the Judges Sentence, he shall then assess the Costs of his Suit therein before expen­ded, and shall compel the Appellant to pay the said costs by the compulsory Process and Censures of the said Laws, taking security of the said Party, to whom the said costs shall be paid, to repay the same if the Ap­peal be adjudged against him.

And if any Person after sentence defi­nitive given against him, shall obstinately and wilfully refuse to pay their Tithes, or the sum adjudged, that then two Justices of the Peace, whereof one shall be of the Quorum, shall, &c. upon Information, Certificate, or complaint to them made by writing by the said Ecclesiastical Judg, &c. cause the party refusing to be attached and committed to the next Goal, there to remain till he, &c. [Page 273] have found sufficient sureties to be bound by Recognizance. or otherwise before the same Justices to the use of the King to per­form the said definitive sentence.

Provided that no Person or, &c. to be sued or otherwise compelled, to yield, give or pay any manner of Tithes for any Mannor, Lands, &c. which by the Laws or Statutes of this Realm are discharged, or not char­geable with, &c. Tithes.

Provided that this Act shall not extend, or be expounded to give any remedy, cause of Action, or Suit in the Courts Temperal against any Person, &c. which shall re­fuse or deny to set out his or their Tithes, or which shall detain, with-hold or refuse to pay his Tithes or Offerings, or any parcel thereof; but that in all such Cases the per­son or persons, being Ecclesiastical or Lay Per­sons, having cause to demand or have the said tihes or Offerings, or thereby wronged or grie­ved shall take and have their remedy for their said Tithes and Offerings in every such Case in the Spiritual Courts, according to the Ordinance in the former Part of the said Act mentioned, and not otherwise, any thing, &c.

1. Observations upon this Statute. It appears by the Preamble of this Law, that this Act was particularly de­signed for the relief of Impropriators, who before this Act were not capacitated to sue in the Spiritual Courts for the sub­traction of Tithes, and were hard put to it to find any other relief.

[Page 274]2. Where by the former Act the Par­ty for Contumacy, &c. might be com­pelled to give security before Sentence, in this Case of the Lay Impropriators, the Party cannot be compelled to give secu­rity till after definitive Sentence.

3. Upon this Law there must be two Sureties at least, upon the former one sufficed.

4. The security in this, as the former, may be by Bond or Recognizance.

5. Whosoever will have the benefit of this Act must sue particularly upon this Law, for the single value, and not for the double value upon the 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 [Page 276]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 [Page 277]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 Chapter be­fore. Cap. 16. antea.

2. Bounds of the Parish. Co. 7.44. b⸪ Roll 2 29 [...] l. &c. Cro. El. 228⸪ If the Bounds of a Parish come in dispute, whether the place where the Tithes arise be in this, or that Parish, this is a matter tryable by Jury, and therefore upon the suggestion of this matter a Pro­hibition will be granted.

3. Monastery — Lands dischar­ged of Tithes. Co. Ent 450. C. 453. d. Por­ter vers. Re­chester. m. 6. Jac. C.B. If Lands be pretended to be dis­charged of Tiches by the Statute of 31 H. 8. or any other Statute, a Prohibition lyes because it properly belongs to the Judges of the Common Law to expound all Statutes, &c. so if the suggestion be grounded upon the Stat. of 2 E. 6. for bar­ren grounds, &c.

[Page 280]4. Roll 2.307. v. 13. Suits for things not Ti­thable. If one sues in the spiritual Courts for the Tithes of things not Tithable by the Common Law, for which see cap. 12. before, or for the Tithes of great Woods above twenty years growth, it is a ground for a Prohibition.

5. Roll 2.286. f. 4. For matters determinable at Common Law. If a Suit be brought in the Spiri­tual Court for the taking and carrying a­way of Tithes, after the Tithes are set forth and divided from the nine parts by the Parishioner, unless the Suit be between two Ecclesiastical Persons in their proper Rights, a Prohibition lyes, because 'tis matter triable at Common Law.

6. Cro. El. 228.642. Rolls 2.302. q. 19. 23, 24. v. 16. For irregular Proceeding of the Spiritual Courts. If the Spiritual Court will not ad­mit a Legal defence, as a Release, an ac­cord with satisfaction, an award, &c. or if the Spiritual Judge refuse to admit the Defendant to traverse the Plaintiffs Title, that he is not Parson, Vicar, &c. a Prohi­bition will be granted, but if the Defen­dant in the Spiritual Court alledg such matter against the Plaintiff there, which is properly triable in that Court, as Simo­ny, &c. in such Case no Prohibition will be granted.

7. Cro. El. 666. Roll 2.300. q. 6 8, 9.301. q. [...] 15. [...] proof [...] witness. If the Spiritual Court shall disallow the proof of the setting forth of the Tithes by one witness, Prohibitions have been granted. Contra Co. 12.65⸪ Ideo quae­re.

There are many more Cases, wherein Prohibitions have been granted, but these [Page 281]are the most frequent, and may serve for a taste. And indeed Prohibitions are gran­ted in all Cases, where they exceed their Jurisdiction.

By the Statute of 2 E. 6. It is enacted, 2 E. 6. cap. 13. Must produce a Copy of the Libel. that no Prohibition shall be granted in mat­ters of Tithes in any of the Kings Courts, unless the Party that requires the same bring and deliver to some of the Court, where he prays such Prohibition, a true Co­py of the Libel subscribed by the hand of the Party, and the suggestion underwrit­ten, and that if he do not prove that sug­gestion by two honest, substantial witnesses in the same Court within six Months after the Prohibition granted and awarded, then the Party delayed shall have a Consultation without delay, Must prove the Suggestion within six Months. and double Costs to be asses­sed by the Court, wh [...]re the Consultation is so granted, to be recovered in an Action of Debt, &c. wherein no essoine, &c. shall be al­lowed.

This clause of this Statute seems to give the Parson, Vicar, &c. Observations upon this Clause. Hoskins vers. Stroade. T. 5. Car. 10. 988 B. R. Cockeram vers. Davyes. Hill. 22. Jac. Pop. 159. Jones 231. Cro. Car. 308. a double remedy where the suggestion is not pro­ved within six Months, that is a consul­tation, and secondly, double costs; but in both these they are in some measure frustrated in their expectations, for as to the first, after such consultation a new pro­hibition may be obtained, and besides, there are several cases wherein the party cannot, or needs not prove his succession [Page 282]notwithstanding this Statute, 2 Inst. 662.. as where the suggestion is in the negative, which regularly cannot be proved: secondly, if the suggestion be grounded upon any matter of Law, as in case the Suit be for things not Tithable, great Wood, things ferae naturae, 2 Inst. 662⸪ &c. this appearing in the libel a prohibition lies, and there needs no proof of the suggestion.

To the second here is double costs to be awarded for want of proving the sug­gestion, and no execution given but an Action of debt to recover it, which is but a bad remedy in this case when the party shall only recover the costs, and have no costs allowed him in the second Suit.

So upon the whole matter here's a plausible clause in an Act of Parliament, and little benefit by it.

It is to be observed that some prohibi­tions are in themselves peremptory; In what Case Prohibitions are Peremptory in themselves. as where there is a Suit in the Spiritual Court for things not Tithable, and ap­pearing so in the Libel, in which cases a consultation shall never be granted; and so it is if the Suit be for carrying away Tithes after they are set forth, unless it be between Clergy Men in their own rights, and so it is where the matter is determinable at Common Law, and the same appearing in the Libel.

But where a modus decimandi, Where ex post facto. a Custom of not Tithing, a priviledg within the Statute of 31 H. 8. for Abbey Lands, and in such other cases where the suggestion is grounded upon matter of fact, which is doubtful to the Court, those prohibi­tions are not peren ptory till the matter of fact be tried and found true by ver­dict.

The manner of proceeding in the ob­taining, How to prose­cute and de­fend Prohibiti­ons. prosecuting and defending of pro­hibitions is in this manner.

The party that is sued in the Spiritual Court and desires a prohibition, moves the Court, and for the most part makes his suggestion ore tenus at Bar, if the sug­gestion be such upon which a prohibition cannot be denied, the Court usually gives rule that the party shall at a certain day come to shew cause why a prohibition should not be granted, and that in the interim proceedings in the Spiritual Court should be staid upon serving this rule in due time, and oath made of it if the Plaintiff in the Spiritual Court do not ap­pear at the day and shew good cause to the contrary, the prohibition is awarded, and the rule made peremptory; but if the Court be doubtful whether the matter be sufficient to ground a prohibition or no, then, or at the prayer of the Defendant the Court will order the Plaintiff to draw up his suggestion into form, and then the [Page 284]Court will consider of the matter, or the Defendant may demur to it and the mat­ter argued by learned Counsel, and then the Court as they see cause, will either award the prohibition, or discharge the rule. But if the matter suggested be a good ground for a prohibition, but is in it self false or doubtful, the Defendant in the prohibition may demand a declaration of the Plaintiffs Attorny which is ground­ed upon a supposed attachment for not obeying the prohibition, to which the De­fendant may plead as Councel shall advise him, and Traverse, and put in issue the matter of the said suggestion or such other matter as Councel shall advise which is to be tryed by a Jury of the Country; if it pass with the Plaintiff, then is the prohi­bition become peremptory; but if the Ver­dict pass for the Defendant regularly a consultation is awarded, that is, a Writ directed to the Judg of the Spiritual Court; authorising him to proceed not­withstanding the prohibition.

Now by a Statute made in the 50 E. Stat. 50 E. 3. cap. 4. Where a Prohi­bition was be had after Con­sultation. 3. it is enacted, That where a consultation is once duly granted upon a prohibition made to the Judg of Holy Church, that the same Judg may proceed in the Cause by virtue of the same consultation not­withstanding any other prohibition thereupon to be delivered; provided al­ways that the matter in the Libel of the [Page 285]said Cause be not ingrossed, enlarged other­wise changed.

But this Statute has been several times held to extend to such Causes only where consultations are judicially granted upon examination of the Cause, Jones 231. Cro. Car. 208. Poph. 159, &c. and not where they pass of course as for want of proof of a suggestion, or upon non suit for want of prosecution or such like.

Sometimes the Court grants a consul­tation sub modo, Co. 5.68. a⸫; Co. 12. Rep. 44⸫; Consultations sub modo. as where the matter of the Libel is in the disjunctive, and as to one part the Court has Jurisdiction, and to the other not, there the Court may grant a consultation as to that part that the Spi­ritual Court has Jurisdiction of, and let the prohibition stand as to the o­ther.

Or a consultation may be granted, Sommers vers. Sir Rich. Bulkeley. T. 32 El. B.R. Poph. 58. Hob. 179. How the sin Months to prove a Sug­gestion is to be accounted. Co 5.68. a⸫; Where no Consultation shall be gran­ted upon a Verdict for the Defendant. Hob 300⸪ so that the Spiritual Court allow such plea, or such proof.

Note that the six Months for the proof of the suggestion is according to the Ka­lender, and not twenty eight days to the Month.

And note in the cases before put the prohibition shall be general and the con­sultation special, quoad, &c.

And it is taken for a rule in Sir Henry Hobarts reports, that if a prohibition be faulty, yet the Defendant shall never have a consultation, if it appear to the Court that the suit in the Ecclesiastical Court was not well grounded.

And therefore where one sued for the Tithe Corn of sixty Acres of Land, Dyer 171. p. 5, 6. and the Defendant suggested, it was barren Ground, and paid no Tithe, and prayd and had a prohibition, and the Jury found that thirty Acres of it were so, and that the other thirty were barren, but had paid Tithe, Wool, and Lamb, and a consul­tation denied because it appeared the Plaintiff had no cause to sue for Tithe Corn.

So in a prohibition it was suggested, More 911 Au­sten vers. Pi­got Cro. El. 736. that the Person had twenty Acres of Land, and ten Acres of Wood in discharge of all Tithes, and the proof was that he had twenty Acres of Land only, and a con­sultation denied, because it appeared he had no cause of suit.

Regularly a prohibition ought not to be granted after sentence, Prohibition af­ter Sentence. Hob. 97.. Noy 70. Winch 8. Cro. El 595. unless it appear the sentence were obtained in the vaca­tion, or by surprise, so that the party had not time to pray it sooner, or upon mat­ter arising after the sentence, Hob. 67⸫; and the granting or not granting rests much in the discretion of the Court.

And so sometimes upon new matter arising after a consultation a prohibition may be granted, After Consul­tation. notwithstanding the a­foresaid Statute of 50 E. 3. as where the Spiritual Court after consultation pro­ceeds to try matter determinable only at Law, Hob. 286⸪ or if after a consultation the Spiri­tual [Page 287]Court will make an unjust decree as to award treble damages; Hughes 245. Hill. 11. Jac. C.B. Baldum vers. Geery. and so in all cases if the Spiritual Judg will proceed illegally, and against the Common Law, after con­sultation a new prohibition may there­upon be obtained, but not upon any mat­ter alledged in the Libel.

Prohibitions of themselves are excel­lent things, The virtue and vices of Prohi­bitions. where they are used upon just, legal, and true grounds, and have often avoided the usurpations of the Popes and Spiritual Courts: but by the corrup­tion of these later times they are grown very grievous to the Clergy, being too oft granted upon feigned and untrue sug­gestions, which it is impossible the Judges should foresee without the Spirit of Pro­phecy. And I think I may presume to say that where one was granted before Queen Elizabeths time, there have been a hundred granted in this last Age; and they are a very great delay and charge to the Clergy; and it were well, in my poor Judgment, if the Reverend Judges would think of some way to restrain them, or to make them pay well for their delay by making the Plaintiff enter into recogni­zance, to pay such costs as the Court out of which they issue, should award, in case they should not prove their suggestion in convenient time, or some such other course as they in their great wisdom shall think just and meet.

And so having done with the first man­ner of determining the right of Tithes at the Common Law. I shall proceed to the second, which is by Writ of Right of Advowson, to which likewise belongs the Writ of Judicavit, which in it self is no other but a meer prohibition to the Ecclesiastical Judg, and first of the Judi­cavit.

There have been some opinions that the Writ of Judicavit is grounded up­on the Statute of Circumspecte Agatis, Judicavit at Common Law. and Articuli Cleri. cap. 2. But it is very clear this Writ lay at Common Law; and it appears in our Books that it was the opi­nion of some learned Judges that it lay in all cases where the right of Patronage might come in dispute, 38 H 6.20. a. per mode. 4 E. 3.27. b. per Markham. 2 Inst. 364.. Lay for any Tithes. Bracton l. 5. c. 4.402. b⸪ and of this o­pinion Sir Edward Coke seems to be.

And Bracton a Learned Judg who wrote in the time of H. 3. hath the ve­ry Writ in his Book, which was long be­fore the Statutes abovementioned; and he fays that this Writ lies si contentio fue­rit inter Rectores de aliquibus decimis; quae estimari possunt usque ad quartam, quin­tam vel sextam partem advocationis. Et ultra quam partem non extenditur pro­hibitio, For a Sixth Part. prout sibi videtur.

But whatsoever the Common Law was, it is now setled by the Statute of Circumspecte Agatis, and Articuli Cleri. [Page 289]cap. 2. That unless at least the Tithes in demand be of the fourth part of the value of the Church, this Writ lyeth not, the Statute of Articuli Cleri. cap. 2. is, Articuli Cleri c. 2. si sit contentio de jure decimarum originem ha­bens de jure patronatus, & earundem deci­marum quantitas ascendat ad quartam par­tem bonorum Ecclesiae, locum habeat Regia prohibitio, that is to say a Writ of Judi­cavit.

And this Writ lies as hath been said where one Parson demands Tithes against another Parson to the fourth part of the value of the Church or more, 2 Inst. 491 [...] Where the Ju­dicavit lyes. which come into their Churches by several Pa­trons, for if the Incumbents come in both by one Patron the right of the Advowson cannot come in question, and by conse­quence this Writ lies not.

And it is to be observed that this Writ doth not lye before Libel, F. N. B. 45. b. c. 12 E. 4.13. When. nor after defi­nitive sentence, for the party that prays this Writ must shew a Copy of the Li­bel in the Court of Chancery before he can have it.

And though the Law be restrained at this day to a fourth part of the value of the Church, 2 Inst. 3.64.. The Form of the Writ not altered by the Statutes. where before it was at large. Yet the form of the Writ remains, and if the thing in demand be under the fourth part of the value, it must be shewed in pleading by the other side.

And this Writ lyes as well for offerings, F. N. B. 45. b. Lyes of Offe­rings. as for Tithes: When such Writ is sued and served, and the proceeding in the Spiritual Court stopt, then the Plaintiff there is to sue his Writ of right of Advowson of such a portion of Tithes as the case requires, and this is given by the Statute of West. 2. cap. Westm. 2. c. 5. 5. in these words, Et cum per breve de Judicavit impeditur Rector alicujus Ec­clesiae ad petendas decimas invicina parochia, habeat patronus Rectorisic impedito breve ad petendam advocationem decimarum petita­rum: but this must be intended where the Patron has the Fee-simple of the Advow­son. And the Judicavit is to be brought in the name of the Patron and his Clerk against the other Incumbent that sues in the Ecclesiastical Court and his Patron; By whom. F.N.B. 45. b. But where the same Person is Patron and Incumbent, su. solem. 12 E. 4 13. b. 7. but the Writ of right of Advowson is to be sued by the one Patron against the o­ther, and the Patron demandant shall al­ledg examples taken by his Incumbent of great and small Tithes.

But if the Patron against whom the Judicavit is sued, F.N.B. 30. b. The relief of Tenant in tail, Purveyance, &c. 2 Inst. 364⸪ be but Tenant in Tail, Tenant for Life or Years, then he cannot maintain a Writ of right, but must de­mand and appear to a Declaration, upon an attachment, and plead his Title, which must be proceeded in, as in other prohi­bitions; and when the Title of the Pa­tronage is determined at Common Law, then the cause must be remitted to the [Page 291]Ecclesiastical Court, where Sentence must be given according as the Law has deter­mined the Right, and this appears by the Form of the Judicavit, The Proceed­ing remitted. which is speci­al, Vobis praecipimus ne placitum illud te­neatis, Regist. 36. a⸫; 35. b⸪ donec discussum fuerit in Curia no­stra ad quem illorum pertineat ejusdem Ec­clesiae advocatio.

And there is a note in the Register, that this Writ lyes of a Vicarage, Pre­bend. & aliis similibus as well as of a Rectory, and the Form of the Writ is thus, Praecipe A. quod reddat B. advocatio­nem decimarum quartae partis vel medieta­tis Ecclesiae, F.N.B. 30. E. &c.

But these Writs as well as other real Actions, are grown obsolete and seldom put in practice, and therefore thus much shall suffice of the nature and proceeding in them.

The third manner of proceeding for the determining the Right of Tithes at Common Law was by Scire facias, Scire facia [...]. 18 E. 3. c 7. which was grounded either upon Letters Pa­tents, Fines, or other Judicial Records, Seldens hist. decim. 439. &c. Co. Inst. 2.640. 2 Inst. 640, &c. Writs manda­tory. of which Mr. Selden instances several Presi­dents; but this manner of Trial being taken away by the Stat. of 18 E. 3. c. 7. I shall say no more of it.

The fourth sort of determining the Right of Tithes at Common Law, men­tioned by Mr. Selden, is Writs Mandato­ry, commanding the payment thereof, [Page 292]whereof he gives some few Instances, but these having never been frequent, and for long time discontinued and grown out of use, I will not trouble the Reader with them, but refer the curious Reader to Mr. Selden 444. &c. Seldens History of Tithes, and pro­ceed to the fifth manner of determining the Right of Tithes at the Common Law, which is grounded upon the late Sta­tutes.

For the Statute of 27 H. 8. there hath been sufficient said already; for that of 32 H. 8. that concerns the Temporal Ju­risdiction I shall leave till the last, and proceed to shew what Authority is given to the Temporal Courts by the Statute of 2 E. 6. cap. 13. being the first Law that ever gave the Temporal Courts Jurisdi­ction for the Parson against the Parishio­ners for Subtraction of Tithes, in which there is a Clause to this ef­fect. 2 E. 6. c. 13.

And it is enacted by that Statute after it has confirmed the former Statutes of 27 H. Treble Value. 8. c. 20. and 32 H. 8. c. 7. That every of the Kings Subjects should from thence­forth truly and justly without fraud or guile set out, yield and pay all manner of their predial Tithes in their proper kinds, as they arise and happen in such manner and form as hath been of Right yielded and paid within forty years next before, &c. or of Right or Custom ought to have been [Page 293]paid, and that no person thenceforth should take or carry away such or like Tithes, which had been yielded or paid within the said forty years, or of right ought to have been paid in the place or places Tithable of the same, before he hath justly divided or set forth for the Tithes thereof, the tenth part of the same, or otherwise agreed for the same Tithes with the Parson, &c. under the pain of the forfeiture of the treble value of the Tithes so taken and carried away.

This Clause being compared with the former Clause, almost penned in the same words for the double value, would make a man at a stand what the meaning of the Parliament was, and it was forty years (when almost all that were at the ma­king of this Act were dead) before it was found out, 2 Inst. 650⸫; that an Action of Debt lay upon this Clause at Common Law for the treble damages: To wit Pasch. 29. E­liz. In the Exchequer in an Information by the Queens Attorney against one Wood for the treble value, as forfeited to the Queen. In which Cause it was resolved, that an Action of Debt lay at the Com­mon Law for the treble damage, for not setting forth of Tithes; for wheresoever an Act of Parliament gives a forfeiture a­gainst him, that doth dispossess, &c. the Owner of his property, as here he doth of his Tithes, there the forfeiture is gi­ven to the Party grieved or dispossessed, [Page 294]since which resolution Actions of Debt have been frequently brought in all the Courts of Westminster by Parsons, Vicars, Propriators, Owners and Farmers of Tithes, as well Lay as Spiritual upon this Statute, but being so long before it was found out, that an Action lay at Com­mon Law upon this Statute, the Plaintiffs in the recital of the Statute alledged it to be made the fourth of February 2 E. 6. whereas in truth the Parliament begun the 1 of E. 6. and was held by Proroga­tion the fourth of February 2 E. 6. And this being discovered in an Action be­tween Oliver and Colier. P. 6. Jac. B. R. brought upon this Statute, wherein the Statute was misrecited as aforesaid, and exception taken to it in arrest of Judg­ment, 1 Brownlow. 100. Yelver. 126. Dyer 171. p. 6. Stile 122. the Court upon good advisement overruled the exception by reason of the multitude of Presidents, and affirmed the Rule that multitudo errantium parit erro­ri Patrocinium.

Now considering, that this is become a very frequent Action in use, I conceive it will not be improper to the present oc­casion to communicate to the Reader, what I have observed and learned in this kind of Actions, not only concerning the Forms of Declarations, Pleadings, Verdicts and Judgments, but likewise what evi­dence is necessary upon the general Issues of non culpa and nil debet, for the Plain­tiff [Page 295]and Defendant, and in the first Case consider in what Cases, and by whom, and against whom this Action may be brought.

If two be Joynt Tenants, Hutton 121⸪ 122⸫; By whom, and against whom, Actions lye in this Statute. and they en­ter and occupy jointly, the Action must be brought against them joyntly, but if one only enter and occupie them, the A­ction must be brought against him, that only occupies alone.

But if there be two Tenants in Com­mon, and one of them sets out his Tithe, and the other carries it all away, there the Action shall be brought against him, that carries it all away alone.

If the Husband and Wife in the right of the Wife be intitled to Tithes, Noy 3.136. 1 Brown. 86. Yelv. 63. Cro. Jac. 68. they shall joyn in this Action, because the damage is to survive, but a Parson and a Vicar cannot joyn, but if they joyn in a Lease to a third person, their Farmer may sue for all in one Action; but in the first Case, I see no reason but that the Husband may bring the Action alone, and so I have known it often done.

In an Action brought upon this Statute, The Form of the Declar. Bellet vers. Henworth P. 1657 B. R. the Severance was alledged before the sowing, and exception taken after Ver­dict; but the Exception was disallowed, because the shewing of the sowing was superfluous, and so aided by the Ver­dict.

The taking was alledged after the Plaintiffs Term was ended, Cro. Car. 324. and yet held good.

M. More 911. 40, and 41 Eliz. A Judgment was arrested, because the Suit was brought ad respondend. tam Domino Regi quam Parti; but this Case I very much doubt, for be­ing against a Statute Law it is a contempt finable, though the Plaintiff have the forfeit, as upon the Statute of Huy and Cry, Hetley 121. &c. And I take the Case inter Lu­vered and Owen. M. 4. Jac. C. B. for the bet­ter Law, where it was held good.

Upon an Action brought by two upon this Statute, Cro. El. 170. who made their Title by a Lease from a Patentee of the King, and exception was taken, because they did not shew the Patent, but disallowed. 1. Be­cause the Letters Patents did not belong to the Plaintiffs. 2. Because the Plaintiffs did not demand the Tithes themselves, but damages for a tort; another Excep­tion was taken to the Declaration, because the Plaintiff alledged the Defendant did not agree with them, and did not say, or either of them, but held good by Intend­ment.

And it hath been adjudged, 2 Bulst. 65.228.183. 1 Brown. 86. Noy 3. Yelv. 63. Cro. Jac. 68.361. that in this Action, the Plaintiff needs not to shew his Title especially, but it is enough for him to alledg that he is Propriator, Far­mer or Rector, generally without shew­ing how.

And it hath been held good, 2 Brown. 70, 71. though the Plaintiff in his Declaration do not ex­press the quantities or loads of the Corn or Hay carried away. 2 Inst. 650.

And so it is, though you do not ex­press in your Declaration, the kinds of the Grain carried away.

Where a man alledged, Coke vers. Smith H. 7. Car. 1.10 587. B. R. per Lat. that he was Farmer of all the Tithe Corn arising, &c. upon sixty Acres of Land in D. and did not alledg which they were in certain, and yet allowed for good. 2. The Plaintiff al­ledged the Defendants Occupiers, but did not say, whether joyntly or in common, and yet held good. 3. The Plaintiff had alledged no time of the carrying away, but having alledged the time of the se­verance, and the carrying away, coming in with a Conjunction Copulative it was held well enough.

In an Action brought upon this Statute, Cto. Jac. 324. 2 Bulst. 114. the Plaintiff averred in his Declaration, that he was subditus dictii Domini Regis, having recited the Statute, and it was held nought, because it must necessarily be intended E. 6. and not of the present King.

In an Action upon this Stat. Pleas in this Action. Porter vers. Rochester Hill. 9 Jac. B. R. the Defen­dant pleaded a Recovery in the Ecclesi­astical Court; but it was held no good Plea at Common Law, but I conceive it would be a good evidence upon nil debet pleaded, otherwise the Parishioner were in an ill Condition.

In this Action non culpa and nil debet have been both held good Issues, Wortley vers. Empringham. P. 42. El. B. R. Hob. 218. Cro. El. 766. Cro. Jac. 361. but it is no good Plea to plead, that the Plaintiff sowed the Corn, and sold it to the Defen­dant, because this matter will not excuse the payment of Tithes.

Now having brought the cause to issue upon nil debet or non culpa. we will shew in the next place what will be good and material evidence, as well for the Plaintiff as Defendant.

First, What Evidence is necessary in this Action. ex parte quere. If the Plaintiff be a Parson, Vi­car or other Ecclesiastick, and have not been some considerable time in possession of his Living, in which I have not ob­served any constant rule amongst the Judges in their practice, but ten years quiet possession for the most part is allow­ed by the Judges for an evidence of the Plaintiffs Title, unless some material ob­jection be made against it to draw it into question, but if the Plaintiff have been but for some short time in possession, or the possession litigious, then the Judges u­sually put the Plaintiff to prove his insti­tution and induction, and now he must prove that he was in Episcopal Orders at the time of his institution, otherwise his institution is void by the late Act of Uni­formity, he must produce a Certificate under the Hand and Seal of the Bishop, &c. that instituted him, that he subscri­bed the declaration mentioned in the Act [Page 299]of Uniformity, and must prove he sub­scribed the same in the presence of the Bishop, or, &c. and he must prove that within two Months after he was inducted, upon some Sunday or Lords day during Divine Service, he read the thirty nine Articles of Religion in the Parish Church into which he was inducted, and that he did declare his unfeigned assent and con­sent to all things therein contained, and he must likewise prove that within two Months after actual possession of his Li­ving he read Morning and Evening Prayer in his Church upon some Lords day, and openly and publickly before the congre­gation declared his assent and consent to the use of all things therein contained and prescribed in these words, I A. B. do here declare my unfeigned assent and consent, to all and every thing contaiend and prescribed in and by the Book Intitled the Book of Com­mon Prayer and Administration of the Sa­craments, and other Rites and Ceremonies of the Church, according to the use of the Church of England, together with the Psalter or Psalms of David, pointed as they are to be sung or said in Churches, and the form or manner of making, or Ordaining, and Consecrating Bishops, Priests and Dea­cons.

The Parson, Vicar, &c. having thus made himself a Title, must proceed to prove the taking and carrying away [Page 300]the Corn, Hay, &c. and the value; and if need be that the Land lies within the Parish, &c. but this the Judges put them to prove, first of all commonly.

But if the Plaintiff be a Farmer or Patentee under the Crown he must prove his Title, but if he have been any consi­derable time in possession, and the Title not controverted, the Judges seldom put the Plaintiff to shew any more Title but his bare possession and enjoyment, and that others pay him Tithes.

And so having shewed what is necessa­ry the Plaintiff should be prepared to prove, I will proceed to shew what de­fence the Defendant may make.

The Defendant upon the general issue of not guilty, Ex Parte De­fendentis. Brown. 1. 34. &c. may prove that he duly set forth his Tithes, but if he after­wards carried them away it will not serve his turn; so if he sell his Corn privately to another, and after he has sold it pri­vately, 2 Inst. 649⸪ cuts and carries it away; the Action lies against the first Owner; the same Law is, where the Owner of the land privately sells his Corn to another who privately cuts and carries it a­way.

And the Defendant may prove that another has a better Title to whom he has paid his Tithes, or compounded with him for them.

Or he may prove that the Parson came in by Simony, or any other matter that makes his presentation, institution, or in­duction void, or any other defect in not reading the Articles, &c.

Or he may prove that he set forth his Tithes, and a Stranger carried them away, or may give in evidence, a Lease or Grant from the Plaintiff himself, or any other to whom he can make a good Title, but such Leases and Grants must be in writing unless for one year only, to the Owner of the Land, which hath been held good by way of retainer.

The Jury, if they find for the Plaintiff, Verdict. are to find how much of the debt de­manded by the declaration is due to the Plaintiff, which they are to do by treb­ling the value of the Tithe subtracted wherein they are usually assisted by the Court.

The judgment is always given for the debt found by the Jury without costs, Judgment. be­cause this Action is grounded upon a pe­nal Law, where no Action lay at Com­mon Law, neither shall the Defendant have any costs, if the Verdict pass for him; but if judgment be given for the Plaintiff in an Action brought upon this Statute by nihil dicit, non sum informatus, Cro. Jac. 361, 362. or demurrer, the Plaintiff shall have Judg­ment for the whole debt demanded by his declaration. And if an Action upon [Page 302]this Statute be brought against two or more, and Verdict only pass against one, or part of the Defendants, the Plaintiff shall have Judgment against those against whom the Verdict passes, Stiles 317, 318. though the others be acquitted, quod nota.

Note that this Statute as to the treble value and double value extends only to Predial Tithes, Nota. and not to Personal; mixt, or other Church duties.

The Exchequer likewise by English bill holds plea for the single value, Jurisdiction of the Exchequer. for subtraction of all manner of Tithes, Ob­lations, &c. of which great use hath been made since the late Wars, and there they decree the single value with costs, and the future payment, which is of great ad­vantage to the Plaintiffs, and these suits are not interrupted with prohibitions; but these suits are often very costly too, for if a modus decimandi, or the bounds of the Parish come in question, and the proof not very clear, they are frequently sent to Trials at Law, which gives delay and in­creases the charges very much, this Ju­risdiction I take it is much fortified since Tenths and first-fruits were annexed to the Crown, but Suits of this nature were early brought in this Court before the War, however there are some antient Books prove that this Court on the Law side has assumed Jurisdiction of Tithes, 38 Ass. p. 20. 44 E. 3.43, 44. but the reporter reports it with a quod mirum.

Lastly, 50 E. 3.20. 2 H. 4.15. 20 H. 6.17. 1 H. 6.5. 2 E. 4, 5. 44 Ass. p. 25. it is evident in our Books of Law, that the rights of Tithes were fre­quently determined at Common Law in Actions of Trespass for taking away of Tithes, unless both parties were Clergy­men; and sometimes Assises have been brought at Common Law for Tithes be­tween lay Persons. And it is held in the 25 H. 8. 25 H. 8. Br. Ju­risdiction 95. that where the Lord of a Man­nor claimed Tithes in consideration of finding a Chaplain at such a Chappel, and the Parishioners claimed them likewise upon the same consideration, that the right of these Tithes being between Lay Per­sons was triable at Common Law on­ly.

And by the Statute of 32 H. 8. Stat. 32. H. 8. cap. 7. it is enacted, that in all cases where any Per­son, &c. which then had, or then after should have any Estate of Inheritance, Free-hold, &c. in or to any Parsonage, Vicarage, Portion, Pension, Tithes, Ob­lations, and which then were, or then after should be made Temporal, or ad­mitted to be, abide, and go to, or in temporal hands, and Lay uses, and pro­fits by the Law, &c. should then after fortune to be disseised, deforced, wronged, or otherwise kept or put out from their Lawful Inheritance, Estate, Seisine, Possession, Occupation, Term, Right or Interest, of, in, or to the same, or, &c. by any other Person, or, &c. claiming [Page 304]or pretending to have Interest or Title to the same, that then, and in every such case, &c. the Person, &c. so disseised, &c. the Heirs, Wives, &c. shall and may have their remedy in the Kings Tem­poral Courts, or other Temporal Courts as the Case shall require for the recove­ring, &c. such inheritance, &c. by Writs Original of quod ei deferat praecipe quod reddat, Assise, &c. as the Case shall require, &c. So that since this Statute the Case is put out of all doubt, that for such Tithes, &c. which are become Lay­fee, the right, Title and possession is be­come determinable at the Common Law, and all manner of real Actions, Eject­ments and other personal Actions are brought of them, as the Case requires daily.

And now having shewed in how many Courts, Conclusion. and how many ways Tithes may be recovered, it calls to my mind the Fable of the Fox and the Cat who had but one way to shift for her self when the Hunts men came, but that one proved better and more secure than all the shifts the Fox had boasted of; for upon the whole matter it were much better for the Reverend Clergy if they had one ready way to recover single damages with their costs of Suits at Common Law where they might not be interrupted by Prohi­bitions, and clashing of Jurisdictions, and [Page 305]tost from one Court to another, than all these ways I have mentioned. And it is a wonder to me that there being hardly a Lord in Parliament, nor many of the House of Commons that have not some part of their Estates in impropriations, though they had no kindness to the Church, yet for their own interest and concerns have not to that purpose prefer­red some Law in Parliament before this time which might be done in a few lines by giving an Action of the Case at Com­mon Law for the subtraction of Tithes with costs, or if the Parliament should think fit the smaller sort of Tithes might be determined in a Summary way by the Justices of Peace with an appeal to the Judges of Assise, but this I humbly sub­mit as I do all the rest to better Judg­ments.

I have now finished this small Tract whereby I wish the Reverend Clergy may receive as much satisfaction as I desire, The conclusion of the whole. or they can expect. And I shall now con­clude all with a List of those Monasteries, the Lands of which are only capable to be discharged of the payment of Tithes, by Order, Bull, Prescription, real com­position or otherwise, that every Clergy man may satisfy himself without further enquiry whether such Monastery Lands as shall happen to be in his Parish, &c. may have the benefit of the Statute of 31 [Page 306] H. 8. to be freed of the payment of Tithes, and in the List following I have set down the times of the foundations of the several Monasteries, that being material to know, for if they were founded since the first year of R. 1. they cannot prescribe in non decimando. I have also for the most part set down what order the Houses were of, that the Reader may satisfy himself whether they were of any of those Or­ders that were priviledged from the pay­ment of Tithes for the valuations I have followed Mr. Dugdale, as being a sure Au­thor, having observed many Errors in that of Mr. Speed.

In the perusal of this Catalogue you will find how many Foundations were made of Monasteries in the first Century after the Conquest, and till the Raign of King John, that if they had continued at that rate, the greatest part, if not all the Land in England, had by this day been Monastery Land, but in King John's time they begun to slack, and in the ninth of H. Magna Charta. 3. the Statute of Mortmain was made, after which you will find but few Religious Houses (as they were called) founded.

The Cistertian order came into England about the year of our Lord 1128. and in the ensuing Table, you may see how well they prospered, that in so short a time there should be so many of the greater Ab­bies of that order.

The black Canons regular of St. Stows Survey of London. 930⸪ Au­gustine first came into England as Mr. Stow says in the Year 1108. and were first placed in Trinity Church within Algate London, but I rather think he is mistaken in the time, for I find some Mo­nasteries of that order before that time, however the ensuing Catalogue will in­form you of their increase.

And it is without dispute that the in­crease of Monasteries, especially those of priviledged Orders, tended very much to the prejudice of the Secular Clergy that had the Cure of Souls; for beside the orders that were priviledged they appro­priated all the Churches, they could ob­tain, and how ill they were served a Man may in some measure observe that peru­ses the Statute of 15 R. 2. and 4 H. 4. for it appears by them that they endowed no Vicarage at all upon the appropriating Churches, or so meanly, Endowment of Vicarages. that the Vicars could not live upon them, and not at all Hospitality practised. And therefore the Parliament of England which has always put a stop to the usurpations and exorbi­tances of Rome, and to prevent the Re­ligious Houses, destroying the Church in the 15. Year of the Raign of King Ri­chard the second made a Law, 15 R. 2. cap. 6. that the Diocesan of the place where any Church was to be appropriated, should take care the Vicarage should be well and sufficiently en­dowed [Page 308]besides a Portion to the poor. But this Act not having the effect was desired and expected, the Bishops of those times being overawed by his Holinesses mandates, or participating too much of his qualities, a second good Act was made in the 14. Year of King H. 4 H. 4. cap. 12. 4. whereby it was enacted, that all those appropriations that were made since the former Statute without such en­dowments, were declared to he void. And that no Religious Person (that is, Monks and Fryers) should be made Vicar in any Church appropriated, or to be appropria­ted by any means in time to come, and that no Vicarage should be appropriated by these Statutes, and divers other Statutes cited in this work upon several occasions. It is easy to guess what opinion they had, even in the times of Popery, of these Peo­ple called Religious Men.

I have now made too long a digressi­on. And will therefore proceed to the Catalogue I promised the Reader.