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 And by the same Act there is a Proviso worth mentioning though now out of date to this effect That if any Person should procure any Dispensation from Rome or elsewhere to be non-resident the Party guilty should forfeit twenty pounds By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 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 't is no wonder that he that neglects the Flock le ts 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 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
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 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 Vsages 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
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 Vsages 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. having Authority to hear and determine the right Tithes c. And to compel the paâ—â—â— 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 dwellâ— 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 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 Vsages 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. 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 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
Lord ordained that they that preach the Gospel should live of the Gospel what effect this Doctrine wrought amongst the Primitive Christians you may read in the fourth Chapter of the Acts of the Apostles where it is said that as many as were possessors of Houses or Lands sold them and brought the prices of things that were sold and laid them down at the Apostles feet and distribution was made to every man according as he had need But the Christians of this present Age are so far from selling their Houses and Lands and laying the price at the Apostles feet that they will rather detain that from the Clergy which by Law and right is due to them But certainly had the sincerity of the Primitive Christians continued I should never have needed to have set pen to the paper upon this subject I am now about which is the Law of Tithes or Tithing a duty established by the Laws of this as of other Nations for the maintainance of the secular Clergy and for their sake it is that I have undertaken this work There was a Tithing Table published many years ago By a Batchelor of Laws wherein he has learnedly set forth the manner of Tithing by the Canon and Ecclesiastical Laws but those Laws and the Common Laws of this Realm differing in many things wherein the Common Law is to be preferred that Tithing Table has often led both Parson and Parishioners into many errors besides the several discharges from payment of Tithes either absolutely or sub modo of divers Lands in England by the Statutes or Common Laws makes great alteration here from the Canon Laws to rectifie which and as near as may be to reconcile the Canon and Common Laws I did by the perswasion of some Reverend Divines first make some Animadversions upon that Tithing Table but when I had done that considering there were many more things in relation to Tithing than I could conveniently apply to that Text concerning Prescriptions Customs Compositions and other priviledges besides the Laws concerning Offerings Mortuaries and other Church duties fit for all men to know as well Lay as Clergy I adventured upon this larger work which I the rather did because I do not find any other that hath published any compleat work in this kind or to reconcile the Common and Canon Laws that kind of learning lying dispersed in our Law Books I have therefore in favour of the Parsons and Vicars taken up a former resolution and adventured to expose my self to the publick censure And though I cannot promise any perfection in this work yet I dare presume to say it is the most perfect work of this nature yet extant though I can pretend to nothing of it but the errors and mistakes which I will be thankful to any body that will friendly correct that I may make it more exact in a second Edition if I have encouragement The hindrance of conversing with the learned by reason of my confinement to the Country and publick Libraries hath hindred me of some helps I might have had thereby Perhaps it may not be so acceptable to those in whose favour I have writ it because it comes from the pen of one who professes himself a common Lawyer But in my Judgment in this Nation wherein the common Laws and customs of the Country prevail against the Canon and Ecclesiastical Laws this subject is not altogether improper if not most proper for a common Lawyer And truly I have through this discourse dealt with as impartial an hand as the matter would admit And though the Clergy may think it to their prejudice that I have at large set forth the several discharges by which lands are freed from the payment of Tithes yet in that I have given them a clear light which lands cannot be so priviledged and what Prescriptions and modus decimandi is not good being well assured that there are more Lands at this day escape payment of Tithes upon pretence of some priviledg to which they have no Right than those that pay Tithes and might legally be discharged But when I have done my best endeavour to serve the Reverend Clergy I cannot give them Incouragement to depend upon their own Judgments grounded upon any thing here writ for though this may suffice to give them some light what shall be due to them yet I cannot hope by any thing I can write to make them complete Lawyers for many Quaere's will arise that no foresight of mine could give an Answer to but this benefit I hope they will receive by my labours that they may put their Case and make their doubts known more pertinently to the learned I had no sooner finished this little Tract concerning Tithes but I considered there were many other things almost as useful for a Clergyman to know as the Law of Tithes And though Mr. Hughes of Graves-Inn many years since published a learned Tract which he intitled the Parson's Law yet there are many more things necessary for a Clergyman to know that are there only briefly or not at all touched upon and of such force that they must either be performed and observed to make a man a compleat Parson or to make him none though never so exactly instituted and inducted if omitted I have therefore in the first place before I come to the Law of Tithes shewed what Simony is and what danger those run themselves into that are guilty of it what things every Parson Vicar c. is to do before at and after his Institution and Induction to make him a compleat Parson c. what Dilapidations are and how punishable what priviledges the Clergy have at this day by the Laws of England what charges and payments their Tithes and Church-livings are subject unto what Causes of Deprivation have been allowed of by the Laws of England what Leases they may take or set and what Statutes they may fall in danger of and of pluralities and who is qualified to have them and in what manner to be accepted Non-residence and many other things necessary for every Clergy-man to know I have divided the whole into Two Books and them again into several Chapters and Paragraphs and added a short Table for the more ready finding of any thing in either I have likewise added a List or Catalogue of all the Abbeys and Priories that were valued in the Kings Books at 200 l. per annum or upwards and which were dissolved by the Statute of 31 H. 8. the Lands of which can only pretend to any priviledg to be discharged of the payment of Tithes in which I have rather chosen to write after Mr. Dugdale being a sure Author than Mr. Speed in whom I have observed many Mistakes I must beg the Readers Patience to correct the Mistakes of the Printer which are too many by reason of my absence from the Press by the Errata annexed and for my own I shall take it kindly from any body that will in a friendly
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 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 Fâ—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 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 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
Deprivation or Deposition 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 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 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 non-conformity 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 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 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
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 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 Câ—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 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 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 Church-land 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 Gloria Deo Omnipotenti Amen FINIS THE Second Part BEING THE LAW OF TITHES or TITHING Shewing in what manner all manner of Tithes Offerings Mortuaries and all other Church Duties are to be paid and in what Courts and manner they may be recovered and to what charges they are Subject With many other things fit for all People but especially all Clergy-men to know Written by Sir SYMON DEGGE Kt. LONDON Printed Anno Domini MDCLXXVI To his Worthy and Reverend Son in Law Mr. Anthony Trollop Rector of Norbury in Derbyshire Dear Son IT is now above thirty years since the Tithing Table published many years agoe came to my hand and upon perusal thereof finding that the Common Laws and Canon-Laws differed in many things I thought it would be a Work grateful to the
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 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 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 't is 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 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 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 Procreationâ—â— 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
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 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 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 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 Clergy-men and sometimes Assises have been brought at Common Law for Tithes