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
Christâ— 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 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 Liâ—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 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 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 't is 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
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 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 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 Aquinà s 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 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. Nalâ—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 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 the validity or use so much as to satisfie the Reader
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 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 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 Vniversities 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 Church-yard 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 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. 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
vel amplius herein I perceive the Canonists and Common Lawyers agree that a Custom to be free from payment of any 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 't is 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 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
c. be not present or had no notice given him to be present yet this had been a good setting forth before this Statute 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 thaâ—â—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 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 â— 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 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 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 quà m 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
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
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 Vniformity 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 Vniversities 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 Vniformity 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 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 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. â—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 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
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