I Am of Councell for two, one as claiming right to an Advouson; the other as being a late Purchaser of Fee-Farm Rents issuing out of Tithes appropriated and distinct from Impropriacions: That of Tithes in general is a large & copious field, it would tire your paci­ence too much for me to speak as the subject matter deser­veth or affordeth, yet it stands so much in my way that I cannot pass it by, (the interposition of it causing an Eclipse to my intended Plea to Advousons and Fee-Farms) [Page 2]if not removed. I shall therefore crave leave to speak a word or two to it. First, I conceive that by the Law of God and Reason, that a maintenance is due to the Dispen­sers of the Word of God, for what Souldier is there in this Common-wealth that does fight without his Pay? Who planteth a Vineyard and eateth not the fruit there­of? or who feedeth a flock, and eateth not of the milk of the flock? Is not the common Labourer worthy of his hire? ae fortiori, then the Dispensers of the Word of God ought to have a Compensation and Maintenance for his Labour, pains, and sweat of his brows, in holding forth the precious things of Jesus Christ. I shall make a further step, and hold, that the maintenance of the Ministers or Dispensers of the Word of God ought to be in this in di­vidual and numerical way of decimal parts, or Tenths, or Tithings.

First by Ʋsage under the Law, for the Tribe of Levy they had their 48 Cittyes with their territories round about; they had their Tythes also, the first born, and the first fruits of every thing the Earth brought forth for the use of man. Vnder the Gospell though they had not Tythes actually payd them, (because they were as it were in theyr mocion to the Land of Rest) yet it appeares by Origen and many other ancient Authors, that they were continually claymed as their due and right, and this continuall claym, Mr. Littleton telleth us preserveth a right, nay it prevents discents que tollent entries; wee may deduce and draw Tithes down from all Ages, and Nacions in the Christian world, and that is one Argument that Wol­lebius, and all Divines in Christendom useth to proov the Bible divine, because it is used, received, and beleived, of all Nacions: And certainly there must be digitus Dei in it, that all Nacions ab origine before they heard of oneanother, that they should all fix upon one way of the Ministers mayntenance by Tythings.

They are not only due by Ʋsage under the Law, and [Page 5]the Gospel, and the Concurrence, and Concord of all Na­cions in Christendom; but I shall make a further step, and proove them to be due by the Common Law of the Land, and that I shall proov by the writ of waste in the Register, which is the ancientest Book of the Common Law, for the Book Case of 26 Ed: 3 Lib. Assizes Pl. 24. proves that Originall Writs have been long before the Conquest, nay time out of memory of man, the beginning whereof cannot be known either by Reading or Record. For if a­ny one cut up the Parsons Trees, or do any other waste, he may by the Common Law of this Land have a writ of waste against him, and say in his writ that such a one cut up his Trees ad exheridacionem ipsius vel Ecclesiae; and both wayes are good, as it is adjudged in Hen: the 7 fol: by his bringing of this writ it appeareth that the Parson hath not only a Free-hold but a fee-simple and good inheritance in his Tithes, or gleabe, for of a lesser estate then a fee-simple or fee-tayl a writ of waste will not ly; therefore in my Lord Cooks fift Report fol: saith that if there be Tennant for Life, Remainder for life; and Tennant for Life commit Wast, Remainder for Life cannot bring an action of Wast; the writ of Wast alwaies concludeth ab Exheridacionem ipsius, and Remainder for Life hath but a Free-hold and no Inheritance, so Cook in his first Institutes Fol: saith that if Tennant in tayl Special make a Lease for Life, and Lessee for Life commit Wast, and then Tennant in tayl bring­eth a writ of Wast, and pending the writ, he becometh Tennant in Tayl apres Possibility of Issue extinct: now this Wast is dispunishable, for he is now become but Ten­nant for Life, he hath but a Free-hold, he hath no Inheri­tance, and the words of the Writ must be observed, because penall ad Exheridacionem ipsius: The tenth part severed from nine parts, was alwayes suable at Common Law; for Trespass lies if taken away; Brook title Tythes. Ma­ny other Authorityes I may add upon this Head, but I hasten to that I first propounded of Advousons, and Fee-Farmes.

Thirdly, it is not only due by Ʋsage under the Law of God, and Gospel, and Concurrence of all Nacions, and by the Common Law of the Land; but it is due by the Custom law of this Nacion, which is superintendent to the Common Law; Mr. Littleton telleth us that Consuetudo privat Communem Legom; for Custom is of that puissance and nature, that it must be time out of the memory of man, and therefore a Copy-hold Estate, the essence and being of it is secundum consuetudinem Manerij; it cannot be in­tayled for the Statute of Westminster the 2 de Donis of in­tayling Estates though in the 13 of Edward the firsts time, yet it is extant of Record, & therefore said to be within the memory of man; for Littera Scripta manet, this need not be proved by the Authorityes of our Bookes, for it is obvi­ous to every mans sight and experience, that some Parsons hath Tythe of Furz by Custom, and others Tithe-Pige­ons, Vpon this a Committee-man quibbled, & said the Gentleman did say true in Tythe-Ale, and that is the reason why Parsons have commonly such fiery Faces. if sold by Custom: and some Parsons have Tithe Rab­bets by Custom, and some Parsons have Tithe-Ale by Custom: But to satisfy you for the Authorities of the Law in this point, see Cook second Report, fol. 44. Doctor and Student 2d. cap. 5. See Cook second Institutes, fol. 664 where hee sayth, that a Parson by Custom may have Tythes of such things as are not Tythable of Common Right.

Fourthly, I shall proov that Tythes are not only due by Ʋsage under the Law and Gospel, by the Concurrence of all Nacions, by the Common Law, by the Custom Law of the Land, but they are also due by Statute-Law, and the Spirituall right of them as it were waved and made Tem­porall, by severall Acts of Parlament: To begin with Mag­na-Charta, the begining and Fountain of all our Lawes, the Birth-right of the Free-born people of England, the pale and bounder of the people from the Tiranny of Kings, and Userpers; and therfore it was always strugled by the people to be confirmed by all Kings, and so it was 32 severall times: This MagnaCharta, being so many severall times confirm­ed [Page 7]by so many wise Parlements, that my Lord Cook in his se­cond Institutes upon this saith, that all Statutes made a­gainst it are voyd, and this Statute, this Magna-Charta, the good people of Englands Birth-right, this doth establish Tythes: other Statutes have been made, as the 28 of Ed: the First cap. 13. Statutes since the blessed Reformacion, and casting off of the Popish yoak, Tythes were made Temporal and Recoverable in Common Law Courts, by 27 of Hen: 8. the 31 & 32 Sta: of Hen: the 8. the first of Ed: the 6. Ch: the 2 of Ed: the 6. Ch: the 13. and the Statutes in the Late Parlament. Thus you see how all Parliaments have been tender of Tythes, nay do so much favour Tythes, that they give them better Remedy then other Free-holds, or Inheritances; they give them Treble dammages

Objection. But some will say, that we will pay no Tyths; they are supersticious.

Answer. It will receive this Answer, that the Statutes made since Hen: the 8. and the casting off the Popish yoak, and all su­persticious uses forfeited to the King, yet these Tythes of the parson stood firm, and adjudged not supersticious; as appeareth in the Bish: of Canterberies case, and the Bish: of Winchesters case, in Cooks second Report: I need not put you in mind of the severall Acts of the late Parliament, being so fresh in your memories.

Others will object that Tythes are chargeable, we will have them by stipends.

Truly I think they cannot be lesse, for they are com­monly but 50, 100 or 200 Pounds per annum.

The Clergy of Holland whose Apes wee seem to be in this of Stipends, allow as much, nay and their Wives and Chil­dren provided for to boot; but I may say that the people of England payeth no Tythes at all, for Cook in his first Institutes 58 saith that all the Lands in England were the Kings Demesnes, and I have seen an ancient Record that Ethelwolph the second Monarch of the Saxon Race (his Father Egbert beeing the first that brought the former [Page 8] Heptarchy under one sole Prince) conferd the Tythes of all the Kingdom upon the Church, by his royall Charter, or which thus Ingulph Abbot of Crowland, and old Saxon writer, King Ethelwolph with the consent of his Prelats and Princes, which ruled in England under him in their severall Provinces, did first enrich the Church of England, with the Tythes of all his Lands, by his Charter Royall.

You may see by this, that they are of a Temporall constitution with the consent of his Prelats and Princes. And that the Case is no more then this; Iohn Astiles graunts a Rent charge out of his Land, and then selleth me the Land: I hope you will all say, that I cannot be said to pay the Rent Charge, for I considered it in my Purchase. Therefore thus you see the people grumble and complain to pay Tythes, and to be eased of this great Burden: when as indeed they pay none at all

Some will say they are Burdensom to pay them in specie; we will pay them by Stipends, which is more preporciona­ble and more easie.

This Objection will receive this Answer; that Tythes are more easie, First to the Parishoner in generall, for now they pay it in specie, then they will pay it in nummis numeratis, and I know that the Country-man generally had rather pay twelve pence in Free-quarter or in specie, then si penc in Money; besides now the honest Parson liv­ing at home with him, can take it at his best convenience, but the Collector he is responcible to the Treasurer, who expects a strict account; therefore the Collector being thus a stranger must ask and have, or else distrain and use violence.

I am sure it will not be proporcionable nor easie to the Parishioner in particular, for those who are many hun­dreds, that have a modus decimandi, as having purchased [Page 9]Abbey Lands, which by order of Cesterciens, Hospitallers, are free from paying of Tithes; or by the Statute of the 31 of Hen. 8. of unity of Possession pay no Tithes, or by real composition pay but six pence for 3 hundred pounds per annum, will by an alteration of Tithing to a Stipend pay twenty pounds per annum, or more; thus you see these men undoubtedly injured by this alteration of Tithes into Stipends.

The Parson I am perswaded will not consent to the al­teration of Tithes into Stipends, for now he hath his Tithes at home, and paid himself, he can keep as much of them as will keep his house without sending to the Market, the rest he may let his Neighbour have a good bargain in, and so maintain a love and correspondency with his Neigh­bour, and receive his money at home when his Neighbour can best spare him it; but if he have his maintenance in Stipends, and receive it of Treasurers, he must often be in­terrupted in his Studies, in making many journeys to him, and many of them will prove bootless, for the Treasurers will say, I am busie, or Money is not come in, or his Betters must be paid before him, with many other Delays, which none but those that are acquainted with receiving Moneys of publick Treasuries can imagine. Some I know have been compounded out of half their Pay, because they have not Moneys to stay in Town for their Pay, or because their present occasions necessitates them to it.

But I have been too much transported with my zeal in speaking too long of the Justice in right of Tithes, I shall make you amends in speaking less of the right of Advou­sons and Fee-Farms, issuing out of appropriated Tithes, having made the Porch bigger than the House.

First, for Advousons, I shall maintain that if Tithes be taken away the Patron will lose his Right of Presenting, and his Right in Tithe: and that he hath as good an Estate in it as any other man hath in his other Lands and Posses­rions; and in this I speak but my Lord Cook's words in his [Page 10]first Institutes, fol. 17. b. my Lord Cook doth ground himself upon very many good Authorities in the Law, as 7 Ed. 3.63. 24 Ed. 3. fol. 34. H. 6.34. 19 Ed. 3. Quare impedit. 154. Mirrour cap. 3. Sect. 17. Dyer. 83. I shall prove it also by Writ out of the Register, A rescriptis valet ar­gumentum, as first the Writ of Right of Advouson, when the Patron loseth by default this is a Writ of a higher nature, that he may try it again, there is a Juris Vtrum, there is a quare impedit, a Darrein Presentment, a quare non admisit, a quare incumbravit, a vi Laica amovenda. Thus you see the Law like a wise Physician prescribeth these several Remedies for the several Obstructions which may happen in the Patrons right in Advousons.

I may draw an Argument from the Topick of good pleading, for Mr Littleton and my Lord Cook in his Book of Entries saith, that such a one is seised of his Advouson, Vt de feodo & de jure, as of his fee, and of right.

The original of Advouson came either as they were Founders or Benefactours to them, as appeareth in Cook in his first Institutes, fol. 17. b. or else by Purchase from the Crown upon valuable consideracion: I must confess that no Patron can take money for presenting to a Benefice, it were Simonie if he should, and therefore Cook in his first Institute saith, that a Guardian in Soccage cannot present to a Benefice, because he cannot take money for it; and he ought by the Law to give an account to the Infant; but the same Authour saith, that the Patron may present his Son Si Persona idonea sit, and this will be a good provision of the Father for the younger Sons porcion, and therefore in an eye and respect to this the Law looketh upon an Advouson as Assets, Fleta lib. 2. c. 65. Britton 185. 5 H. 7.37. 32 H. 6. fol. 21. 33 Ed. 3. Garrante 102. there­fore the Law in an eye and respect to this giveth the Patron Dammages if he be disseised or outed of his Advouson, as appeareth by the Stat. 18 Ed. 1. But why go Lso far in this thing that is so plain, to add more were but nodum in scyrpo [...]uerere, or to light a Candle at the noon-day.

I come next to the Purchasers of fee-farm rents, for if the sub­ject be taken away the Adjunct must needs follow, Accessorium sequitur suum principale: if you take away Tithes from Parsons, as they having no right to them, these Rents which they have granted out of Tithes must fall to the ground, and vanish with them: if Tenant in tail infeoff his Son within age and the Son at full age granteth a Rent-charge out of the Land, and then Father Tenant in tail dieth, the Son is by this remitted, and the Estate out of which the Rent was granted, is gone, the Rent is gone also: Cook first Institutes, fol. 310.

M. Littl. Sect. 5 28. telleth us if a Parson of a Church charge the Glebe of the Church by his Deed, and after the Patron and Ordinary confirm the said Grant, then the Grant shall stand in its force, but in this Case it behoveth that the Patron hath a Fee-simple in the Advouson; for if he hath but an Estate for Life or in tail in the Advouson, then the Grant shall not stand, but during his Life and the Life of the Parson which granted: so that by this you may see that the Patron hath an individed and joynt Estate in the Glebe with the Parson; the Patron and Parson by this you may see are more seised Per my & per tout, of the Glebe than Jointenants are of any other Estate, for Jointenant have Moities in judgment of Law, which may be ex­tended, or a Fine or Particion sued of it: but Patron and Par­son hath such indistinct fee in the Glebe, as if Lands were given to Baron & Feme and their heirs, here is no Moities, for Hus­band and Wife are but one Person in Law: you may see also by this that the Parson, Patron, and Ordinary (concurrentibus his) may grant Rent-charges out of the Glebe, and if you will allow the Patron and Parson no right, then those Purchasers of those Rents which are many hundreds in this Common-wealth must lose their Bargains upon valuable considerations, which the Law did then allow them to make. Likewise there are many others which have extended Parsons Tithes upon Debts, and given money for Leases of them by way of Fine before hand, these will also be defrauded. I shall not mention Impropria­tions, but hint you of a Passage in the last Parliament, when [Page 12]Bishops were to be purged out of the House of Lords, one Lord stood up and said, Shall we agree to this Vote? we stand upon the same foundation with them, we shall be wounded through their sides, Et proximus ardet Ʋcaligon, our turn will be next, and so it proved: these inconveniences you see will follow. The Cords and Bonds of the usage under the Law and Gospel with the concurrence of all Nations will be broken, the Common Law and Custome Law will be infringed; thus the Statute Law and Magna Charta will be violated, the right and fee of modus decimandi, will be intrencht upon, the propriety that Patrons have in Advousons and in Tithes will be trampled upon, Fee-farm Rents which men have hazarded to buy, to assist this Common-wealth with moneys will be extinct, former Purchasers also of Rents out of the Parsons Glebe will be merged also: these with many other inconveniences which the frailty of man cannot conceive at present, onely the Midwife of time and expetience must bring forth, will follow if this Law of Tithes receive an alteration: and therefore Lycurgus when he altered any Law, he exercised it in his own Family twelve years first to see what inconvenience would happen upon it before he would command it to be obeyed abroad; I hope therefore that you seeing the right of Tithes and Patrons in Ad­vousons you will make a farther Law to strengthen them, and I hope Tithes seeming shattered like a broken Leg, you will unite them by a future Provision, that they will stand the firmer ever after.