But it seems some of the Canonists and Civilians are of opinion that all Compositions between the Lay and Clergy to be discharged wholely of payment of Tithes or to pay less in recompence than the full value are invalid but otherwise between Clergy-men but by the common Law which must govern here there is no such difference allowed but all real Compositions made as aforesaid are good and valid But note Hob. 176⸪ that no Composition made by parol or word of mouth only and not reduced into writing under hand and seal is binding at all unless it be upon Record as by Fine c. But I conceive at this day no real Composition can be made to bind the Successor of the Parson or Vicar that makes the same for they are now restrained by the Stat. of 13 El. 13 El. cap. 10. to make any Grants other than for twenty one years or for three Lives with the other qualifications mentioned in the said Act. So that it seems clear to me that Parsons and Vicars at this day notwithstanding the confirmation of the Patron and Ordinary cannot charge their Benefices or any thing belonging to them other than for twenty one years or three Lives as aforesaid and that only by Leases confirmed by Patron and Ordinary of things usually demised whereupon the accustomed yearly Rent or more is reserved So that what has been said concerning real Compositions is only to be intended of such as were made before that and other later Statutes for I take it a real Composition at this day will only bind the Parson himself whilst he is Parson Resident and serving the Cure quod nota CHAP. XXI The One and Twentieth Chapter shews what Monastery Lands are or may be free from the Payment of Tithes IT is without Dispute Jones 373⸪ 188⸫ Stat. 27 H. 8. cap. 28. What Monastery Lands shall be freed from payment of Tithes that none of the Abby Priory Lands that came to the Crown by the Statute of 27 H. 8. or before are freed or discharged of the payment of Tithes by the Statute of 31 H. 8. c. 8. or by any other Law or Act of Parliament But in the Statute of 27 H. 8. there was a Proviso that notwithstanding that Act the King might by his Letters Patents under the great Seal of England continue any of the said Monasteries and that Proviso is left out of all the modern Prints only Rastal in his abridging of that Statute makes some mention of it Now the Reader must observe once for all that all Monasteries under two hundred pounds per annum were to have been dissolved by the Statute of 27 H. 8. and are therefore usually called the smaller Abbeys and those of two hundred pounds a year and upwards were not dissolved till the 31 year of H. 8. and are commonly called the great Abbeys And upon these two Statutes this Case lately happened in the Exchequer Chamber between Walklate Farmer of the Rectory of Vttoxater in the County of Staff to the Dean of Windsor and Wilshau Owner of a Farm in that Parish that was parcel of the possessions of the Abbey of Croxden in the same County which was one of the small Abbeys and of the Cistertian Order which was freed of the payment of Tithes as shall be shewed hereafter and this Abbey was discovered by the Defendant Wilshau to be continued by Letters Patents under the great Seal of England 31 H. 8. c. 13. and so not dissolved till the Statute of 31 H. 8. whereupon the Defendant was dismissed and discharged of payment of Tithes by the Stat. of 31 H. I mention this Case at large for the singularity not for any nicety in the Learning of it By the Statute of 31 H. 31 H. 8. c. 8. 8. before mentioned there is a Clause to this effect That the King and his Patentees The Clause of 31 H. 8. that frees Abbey Lands which then had or then after should have any Monasteries Abbathies Priories Nunneries Colledges Hospitals Houses of Fryars c. or any Mannors Lands c. which did belong to them should have hold retain keep and enjoy the said Mannors c. according to their Estates and Titles discharged and acquitted of the payment of Tithes as freely and in as large and ample manner as the said Abbots c. or any of them had held occupied possessed used retained or enjoyed the same or any part thereof at the days of their dissolution And the Reader is to observe that the Abbots c. at the time of their dissolution held their Lands discharged four manner of legal and regular ways which were allowed by the Laws of this Realm to wit 1. By the Bulls of Popes 2. By real Compositions with the Parson c. Patron and Ordinary 3. By Prescription And 4. By Order But there is another sort of discharge though not a Legal one has been allowed in this Case to make a 5. sort of discharge and that is perpetual unity where the Abbot has had the Rectory of any Church and Lands in the same Parish time out of mind which have been held free from the payment of Tithes by all the time of memory and of these several discharges I will speak in order And first of discharges by the Popes Bulls it is to be understood Bulls that when the Pope usurped a power over the Clergy here in England he did at his pleasure grant Exemptions to this or that Abbey or to whom else he pleased to be freed from the payment of Tithes which was allowed as a good discharge against the Parsons and Vicars who in many places suffer by these Bulls to this day these Bulls being turned into Prescriptions c. The second sort of discharges was by real Compositions between the Parson or Vicar Real Compositions and the Abbots Priors c. confirmed by the Patron and Ordinary of these we have spoken at large before in the twentieth Chapter and therefore shall not repeat it but pass to the third sort of discharges The third sort of Discharges is by Prescription of which we have likewise spoken at large before in the sixteenth Chapter to which I shall refer the Reader I shall only observe to the Reader again in this place That the Abbots Priors and other religious persons might prescribe generally to be free from the payment or to be discharged of the payment of Tithes without any recompence to the Parson c. but a Layman could not prescribe absolutely to be free from payment of Tithes but sub modo that is paying or doing something to or for the Parson Vicar c. in recompence and satisfaction of the Tithes as you may at large see in the Chapter here before And it is to be observed that no Abbot Prior c. could make any such Prescription by the Common Law that was not founded before the time of memory that is before the first year of R. 1.
what Provincial Canons we have against Symony and to how little effect they were before the Statute of 31. Cro. El. 788 789⸫ Per Warburton Eliz. But there were some general Canons of the Church of greater force whereby Simoniace is punished by Deprivation and Simoniacus by Deprivation and perpetual disability * Per Bullam Sixtinam privatur ipso facto de omnibus dignitatibus beneficiis officiis efficitur inhabilis ad omnia 3 Inst 1654 Tho. Aqu. 2o 2ae q. â—00 art 1 Sect. 2 St. Aust de hâ—eresibus in principio St. Greg. in Reg. hab 1. q. 1. c. d. l. Stat. 31. Eliz. cap. 6. Stat. Against Symony not only as to the Church he was presented to upon a Symoniacal Contract but also to all others and being malum in se it is not dispensable either by the King or any other And it has been held by some of the Fathers to be a Heresie if not the Sin against the holy Ghost but neither the greatness of the sin nor the severity of the Canons were sufficient to restrain this evil in the Church till the Parliament of England took it into their Care and in the 31. Eliz. it was inacted 1. That if any person or persons for any Sum of money reward gift profit or benesit directly or indirectly or for or by reason of any promise agreement grant bond Covenant or other Assurance for any Sum of Money reward gift profit or benefit whatsoever directly or indirectly shall * Relates to Patrons present or †This to Bishops collate any person to any Benefice with Cure of Souls Dignity Prehend or Living Ecclesiastical c. or ‖ Donatives give or bestow the same for or in respect of any such corrupt couse or consideration that then every such Presentation Collation gift and bestowing and every admission investure and induction thereupon shall be utterly void c. And that the Queen her Heirs and Successors to present collate c. for that one Turn only And that every Person c. Penalty that shall give or take any such Sum of Money c. or that shall take or make any such Promise c. shall forfeit and lose the double value of one years profit of every such Benefice And the person so corruptly taking any such Benefice shall thereupon and from thenceforth be adjudged a disabled person in Law to have and enjoy the same Benefice c. 2. And further Against Precipitate admission or Institution c. that if any Person shall for any sum of money reward c. ut supra directly or indirectly other than for small and lawful fees or for or by reason of any promise c. admit institute install induct invest or place any Person in or to any Benefice with cure c. That then every Person so offending shall forfeit and lose the double value of one years profit of such Benefice c. and that the said Benefice c. shall be eft soon void c. And that the Patron or person to whom the advowson c. shall and may by virtue of this Act present or collate c. as if the person were naturally dead but no lapse hereby to incur till six Months after notice 3. Against corrupt resignations and Exchanges And if any Incumbent of any Benefice with cure of Souls do or shall corruptly resign or exchange the same or corruptly take for or in respect of the resigning or exchanging of the the same directly or indirectly any pension sum of Money or benefit whatsoever that then the giver and taker of any such sum c. corruptly shall lose double the value of the sum so given taken or had the one half to the Queen c. and the other Moiety to him that will sue for the same c. in any of her Majestie 's Courts of Record in which no essoine c. 4. Ecclesiastical Censuressaved Provided that this Act shall not restrain any censures Ecclesiastical c. 5. Symony in ordaining and giving Orders to preach And further it is provided that if any Person shall receive or take any Money Fee reward or any other profit directly or indirectly or shall take any promise agreement Covenant Bond or other assurance to receive or have any Money Fee c. direcily or indirectly to him or themselves or any other of their c. Friends all lawful and ordinary Fees excepted for or to procure the ordaining or making of any Minister c. giving any Order and License to preach shall lose forty pounds and the Minister so made ten pounds And that if such Minister within seven years next after such corrupt entring into the Ministry c. shall accept or take any Benefice Living or promotion Ecclesiastical the same Living after induction c. to be void And that the Patron may present c. as if the party so inducted were naturally dead the one half of the said forfeitures to be to the Queen c. and the other half to the Informer to be recovered ut supra And I do not observe that the corrupt Patrons were in danger to suffer by any Law or Canon before this Law was made Canons against Law for as I said before his right could not be taken away by a mere Canon not confirmed by Parliament and before this Law was made the Incumbent that came in by Symony held the Living which he obtained by Symony untill he was legally and judicially deprived by Sentence Ecclesiastical wherein he often escaped for want of such proof as the Spiritual Laws required but this Statute strikes at the root and makes as well the presentation as the admission institution and induction void So that if this Statute had not given the presentation to the Queen the true Patron might have presented a new Clerk or in his default the Church would have lapsed But by this Act the corrupt Patron does not only lose the presentation to the King pro hac vice but also two years value of the Church 3 Inst 154⸫ not according to the valuation in the King's Books in the the first-fruit Office but according to the true and utmost value of the Church But if one that has no right to present shall by means of a corrupt and Symoniacal agreement present a Clerk 3 Inst 153⸪ who is by his presentation admitted instituted and inducted into a Church yet this shall not intitle the King to present for the Act of Parliament makes all void but a Usurper cannot forfeit the right of another in whom there is no fault Note that the Patron shall lose his presentation within this Law Co. 12 74⸫ although the Clerk be not privy to the corrupt Contract And it should seem by the penning of this Act that the forfeiture of the double value of the Church is incurred by the corrupt contract only but the presentation is not forfeited to the King
become almost if not altogether as great as ever and deserves a new and stricter reformation for almost all the greatest and best Livings of the Kingdom are now held by pluralists and served by mean Curates But now let me return to the Act and let me observe That this Act has only provided a Remedy where the first Living is of the Yearly value of eight pounds or above Cro. cap. 456⸪ Pig Jac. C. B Evesque Durham vers Evesque Peterburrough which must be understood according to the valuation taken in the twenty ninth Year of King E. 1. till the twenty sixth of H. 8. And after that time according to the valuation then returned into the Exchequer Dyer 237. p. 29. Cro. Eliz. 853. Quaere and now made use of in the first fruits office But many former Opinions and Books have been that the valuation ought to be according to the true value Ideo quaere But in case the first Living be under the yearly value of eight pounds or a sine cura then the party may accept a second as he might have done before this act with a dispensation which he needs not now go to Rome for although he be not qualified within this Law But by this good Act there are several persons qualified to have and retain Pluralities Who are qualified to have Pluralities and those are of three sorts 1. by Service 2. by their Birth and the 3. by Dignities And first of those that are qualified by service 1. Qualification 1 All the King's Chaplains which are not of his Councel and of the Queen Prince Princess and Brethren and Sisters Uncles and Aunts of the King 2. Eight Chaplains of every Arch-Bishop 3. Six Chaplains of every Duke 4. Five Chaplains of every Marquess and Earl 5. Six Chaplains of every Bishop 6. Four Chaplains of every Viscount 7. Three Chaplains of the Lord Chancellor and of every Knight of the Garter and Baron 8. Two Chaplains of every Dutchess Marchioness Countess and Baroness being Widows 9. Two Chaplains of the Treasurer and Controller of the King's House the King's Secretary the King's Almner Clerk of the Closet and Master of the Rolls 10. One Chaplain of the Chief Justice of the King's Bench and Warden of the Cinque Ports for the time being All these in respect of their Services may purchase license or dispensations and take receive and keep two Parsonages or Benefices with cure of Souls notwithstanding this Act. But those of the King's Chaplains that are sworn of the King's Councel may purchase license or dispensations and take receive and keep three Parsonages or c. with Cure of Souls 2. The second qualification is by Birth Qualification by Birth that is the Brothers and Sons of all Temporal Lords and of Knights born in Wedlock may purchase license or dispensations and take receive and keep two Parsonages c. with cure of Souls in which qualification it is to be observed that no provision is made for Bastards nor for the Sons of Bishops Abbots Priors c. and note in this case the Sons and Brothers of Knights have greater priviledg than the Sons and Brothers of Baronets 3. Qualification by dignity The third qualification is of certain persons dignified in the Universities and of that sort are all Doctors and Batchelors of Divinity Doctors and Batchelors of the Common Laws which shall be admitted to any of those degrees by any of the Universities of this Realm and not by grace only all which may purchase licenses or dispensations and take receive and keep two Parsonages c. with cure of Souls And in this act there is a negative proviso to this effect Proviso that above the number shall not be advanced That no person or persons to whom any number of Chaplains or any Chaplain by the provisions aforesaid is limited shall in any wise by colour of the same provisions advance any Spiritual person or persons above the number to them appointed to receive or keep any more Benefices with cure of Souls than is above limited There is another Proviso Proviso that they must have Testimonials that the Chaplains so purchasing taking receiving and keeping Benefices with cure of Souls as aforesaid shall be bound to have and exhibit where need shall be Letters under the sign and Seal of the King or other their Lord or Master testifying whose Chaplains they be Boy vers Saveacre T. 28 El. C. B. ro 1130. Hughes p. 41. Boy vers Evesque Lincoln alios T 31 El. ro 725. C. B. or else not to enjoy any plurality of Benefice by being such Chaplains Upon this clause some question has been made whether a Chaplain can be retained within the meaning of this Law by parol and it seems he may so that they have such Testimonial when they pray their dispensation but the safest way is to have it in writing and it must be under Hand and Seal Now having shewed what persons are qualified within this Statute I will in the next place shew how the Clerk that would have the benefit of his qualification within this Law ought to proceed in the taking a second Living so that the first may not be void which is in this manner The Person that falls within any of the qualifications within this Law which makes him capable of a plurality How to proceed in the taking of a second Living and having obtained a presentation to a second Living must carry his Testimonial or retainer under the Hand and Seal of his Lord or Master to the Master of the faculties who is to make out his dispensation or Licence to accept the second Benefice which being obtained he must next have it confirmed under the great Seal of England and after he has thus obtained his dispensation and has it confirmed under the great Seal then Stat. 25 H. 8. cap. 21. and not before he is to apply himself to the Bishop of the Diocess where the Living lies for his admission and institution for though by the Letter of the Act the first Living is not void untill induction into the second Living First Living void by institution into the Second the words whereof are as follows If the party be instituted and inducted in possession of the second Living that then the first shall be void Yet to avoid the great inconvenience that otherwise would ensue it has been held that the first Living is void upon the bare institution into the second Living Co. 4.79 b. Hob. 166⸫ and so it should seem the Law was before the making of this Act where the party had no dispensation And it is to be observed upon this Law Which Chaplâ—ins shall be qualified where above the number is retained More 561. Co. 4.90 a⸪ B. vers Evesque Glouc. Saveacre Anderson that in case any Lord or other Person whose Chaplains are qualified within this Law to have two or more Livings incompatible do retain his
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
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
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
which is the time of the limitation of all Prescriptions at the Common Law 2 Inst 653. which rejects the practice of the Civil Law which as should seem allows the limitation of a prescription or custom to forty years It may reasonably be demanded how this manner of discharge can be made out at this day since there is now no Person living that can prove how the Abbots held and enjoyed their Lands to which I answer that what was done before the dissolution of Abbeys must now be proved by what has been done since for if Monastery Lands have been held all the time of memory since the dissolution freed from the payment of Tithes it shall be intended that they were so held before and therefore they have not paid or been questioned since The fourth sort of discharge is by order Discharge by Order and this discharge also for the most part depends upon Popes Bulls or grants who at pleasure granted exemption to what orders they pleased About the Year of our Lord 1150. 2 Inst 652⸪ Seld. Hist decim 120. the most Religious orders then in being were discharged of the payment of Tithes but about that time Pope Adrian the fourth reduced them to Cistertians Hospitaliers and Templers and about the Year 1215. Seld. de decim 406. Pope Innocent the third added the Praemonstratenses But the Priviledges granted to these orders extended only to the Lands Dyer 277 278. these orders held in their own manurance and not to any which was held by their Tenants or Farmers But about the beginning of the Raign of H. 4. the Cistertians attempted to have enlarged their priviledg to their Tenants and Farmers which tending to the ruine of many poor Parsons and Vicars that had cure of Souls was complained of in a Parliament held in the second Year of H. 4. whereupon it was enacted that not only the Cistertians but all other orders that put any Bulls in execution for the discharging any of their Lands from the payment of Tithes in the Lands of their Tenants and Farmers shall incur a Premunire that is forfeit all their Goods and the profits of their Lands during life and be likewise imprisoned during the offenders life which gave such a check to that proceeding that I do not find any thing of that nature after attempted The Templers after in the Councel of Vienna The Templers 2 Inst 432⸫ which was held in the Year of our Lord 1311. and in the fourth Year of E. 2. were condemned for Heresy And all their possessions by Act of Parliament made in the seventeenth Year of the same King were transferred to the Hospitaliers or Knights of St. Stat. 17. E. 2. c. John of Jerusalem who enjoyed them till the thirty second Year of the Reign of King H. 8. at which time by Act of Parliament they were setled upon the Crown 32 H. 8. c. 24. But where it is said in Kelway that the Templers were condemned of heresie in the eight Year E. 2. and their Lands given the same year to the Hospitaliers it is a great error for it is clear that the Council of Vienna was held in the fourth year of that King and chiefly called against the Templers and it is as clear that their Lands were not here in England setled upon the Hospitaliers till the seventeenth of the same King And though the Lands of the lesser Monasteries be not within the benefit of the Statute of 31 H. 8. Where the lesser Abbeys may be freed of Tithes to be freed of the payment of Tithes yet they ought to enjoy all such priviledges as are annext to the Land and therefore such Lands in whose hands soever they come shall be freed of the payment of Tithes yet they ought to enjoy all such priviledges as are annext to the Land and therefore such Lands in whose hands soever they come shall be freed of the payment of Tithes by real compositions and prescriptions de modo decimandi Jones 3. but not by prescriptions de non decimando unity of possession order or Bulls of Popes but in all the cases the Parsons and Vicars have the advantage by the dissolution of all those Abbies that were dissolved by the Statute of twenty seven H. 8. and the Parsons and Vicars shall in such case be restored to their Tithes again which in all Justice they ought in all other cases if the Parliament had not seen reason to the contrary The lesser Monasteries that is which were under 200 l. per annum of the orders of Cistertians and Praemonstratenses were as has been said dissolved by the Statute of 27 H. 8. have lost the priviledg of being discharged of the payment of Tithes unless they were continued as the Abbey of Crouden was but those Monasteries of those orders that came to the Crown by the Statute of 31. H. 8. retain the priviledg of those orders in not paying Tithes but this is to be understood only for such time as the Owners hold them in their own manurance for if they let them out to Tenants they shall have no more priviledg than the Tenants of those orders of the Cistertians and Praemonstratenses had which was none at all But note Jones 2 3 c. Cro. Jac 6â—7 Hob. 6â—8 Lands of the lesser Abbeys granted to the bieger not freed that if the King after the dissolution of the lesser Monasteries which had been of any of the orders that were discharged of the payment of Tithes had granted any of their Lands to any of the greater Monasteries which were not dissolved till the Statute of 31 H. 8. yet those shall not retain the priviledges the Abbots had at the time of the former dissolution the right immediately reverting by the dissolution to the Parsons and Vicars to whom the Tithes of right did belong the greater Abbyes could not hold them legally discharged at the time of the second dissolution So that there is a manifest difference between this and the case of Walkelate and Wilshaw before remembred for in that case the Monastery was continued and not dissolved till the Statute of 31 H. 8. And it is to be observed that no Lands acquired by any of the Monasteries of those orders which were so freed from payment of Tithes after the Councel of Lateran Lands purchased after the Friviledges granted not freed which was in the Year of our Lord 1215. and by consequence none that were founded after that Councel are discharged of the payment of Tithes either in their own Seldens hist of Tithes 121. or their Tenants hands for by that Councel the Priviledg was limited to such Lands as these orders had at the time of that Councel And although any Abbey Lands of the great Abbeys which were of the Cistertian and Praemonstratensian orders were in the hands of Tenants for years at the time of the dissolution Dyer 277 b⸪ p. 60. Cro. Jac. 559. yet the King and
of several houses and le ts out part and holds any part himself 8. That if any Farmer or his Assigns shall farm all the houses c. so farmed to one or divers Tenants the Tenants shall pay Tithes according to the Rent reserved 9. That if dwelling houses shall be converted into Ware-houses or è converso yet they shall pay Tithe according to the Rate aforesaid 10. That if a Dye-house or Brew-house be let with the Implements then a third penny of the Tithes after the rate abovesaid to be abated 11. That where a mansion house with shops stables wharfs with Cranes Timber-yard or Gardens belonging to the same and occupied together shall afterwards be severed or were severed within 8 years before the Decree that then the Farmers of the shops stables c. shall pay Tithes according to the rate abovesaid 12. That these Tithes shall be paid quarterly at Easter Midsummer Michaelmas and Christmas 13. That any Housholder that holds a house of 10 s. Rent or above shall be acquit of his Offerings but his Wife Children and Servants shall pay 2 d. yearly for their four Offering days receiving at Easter 14. That if any house of 10 s. Rent or above shall be let by parcels under 10 s. Rent then the Owner if he live in any part of the house or the chief Tenant shall pay the Tithe after the rate as the same house was accustomably letten before such Division and the Sub-Tenants that hold less than 10 s. per annum without fraud or covin shall pay 2 d. yearly for their Offerings 15. That no Tithes shall be paid for any Gardens belonging to any Mansion house and which are held for pleasure but if such Garden contain half an Acre of ground or more and shall make any yearly profit by Sale then the same to be paid for according to the rate abovesaid 16. This Act is not to extend to the houses of Noblemen or Noblewomen whilst they are kept in their own hands and not lett for Rent and which formerly paid no Tithe so long as the same continue unletten nor to the Halls of any Craft or Companies so long as the same are unletten and in times past paid no Tithes 17. That Shedds Stables Cellars Timber-yards and Tenter-yards which were never parcell of or belonging to any dwelling House and which has not been used to pay Tithes shall be acquit of the payment of Tithes as hath been accustomed 18. But if by Custom any lesser rate have been paid than after the rate of two shillings and nine pence in the pound then the accustomed rate only to be paid 19. The Lord Major of the City of London by the advice of Councel is Authorized by the said Act to hear and determine all differences arising upon this Decree and give costs according to the intent thereof 20. That if the Major do not make an end of such differences within two Months after complaint or if any Person find himself agrieved by his Decree then the Lord Chancellor within three Months after complaint to him made shall make on end of the differences with costs c. 21. That if Rents fall by reason of decay or burning to less than they were accustomably letten that then the Tithes during such Term shall be paid according to the Rent reserved This is a short abstract of that great Decree which I have inserted here for the use of the Clergy of that City I shall only add some other resolutions upon this Decree and conclude this Chapter In a Case between Dr. Noy 130. Where Suits for Tithes in London shall be determined Meadhouse and Dr. Tayler it was resolved that Suits for Tithes upon this Decree should be before the Maior in writing and not by Parol 2. That a Reservation by a Leasor for life upon a Lease by him made for years shall not bind him in reversion to pay Tithes according to that rate 3. That a Rent for half a year and after for another half year is a yearly Rent within this Decree It hath been resolved Cro. El. 276. that Abbey Lands within the City of London and the liberties thereof are not freed from the payment of Tithes within the Statute of 31 H. 8. because the Statute and Decree for the payment of Tithes within the City and Liberties of London was made after the Statute of 31 H. 8. and their Priviledges are not reserved And it hath been resolved 2 Inst 660. that if any Suit be brought in the Ecclesiastical Court or any other Court than is directed by the Act a Prohibition lyes Lastly 2 Inst 690⸫ where the Decree says where no Rent is reserved by reason of any fine or income paid before hand that is put only for Example for if no Rent be reserved for this or any other cause or consideration it is within the meaning of this Clause CHAP. XXVI The Twenty Sixth Chapter shews in what Courts the Right of Tithes is determinable and how and in what manner to be recovered and in what Cases Prohibitions are usually granted and how prosecuted and defended THat Tithes were antiently determinable in the County and Hundred Courts 2 Inst 661⸫ Seld. hist decim 412⸫ Lamb. Saxon Laws 45. is asserted both by Sir Edward Coke and Mr. Selden And the same appears by the Laws of King Ethelstan long before the conquest and Mr. Selden is of opinion that the Bishops consistory here in England was not setled till the time of William the Conqueror who by his Charter commands Seld. 414. ut nullus Episcopus vel Archidiaconus de legibus Episcopalibus amplius in Hundredo placita teneant nec causam quae ad regimen animarum pertinet ad judicium secularium hominum adducant sed quicunque secundum leges Episcopales de quacunque causa vel culpa interpellatus fuerit ad locum quem ad hoc Episcopus elegerit nominaverit veniat ibique de causa sua respondeat non secundum Hundret sed secundum Canones Leges Episcopales rectum Deo Episcopo suo faciat And closes thus Hoc etiam defendo ut nullus Laicus homo de legibus quae ad Episcopum pertinent se intromittat yet notwithstanding as Mr. Selden observes Seld. 414. c. the Jurisdiction of Tithes was not so settled in the Bishop and Ecclesiastical Courts but there were Suits for Tithes as well in the Temporal as Ecclesiastical Courts whereof he gives some Instances And amongst the Laws of King H. Leg. H. 1. c. 11. Lamb. 182. 1. I find this Clause Si quis rectam decimam superteneat vadat praepositus Regis Episcopi terrae domini cum presbytero ingratis auferant Ecclesiae eui pertinebit reddant novam paertem relinquant ei qui decimam dari noluerit But the Law hath been now long setled that the Ecclesiastical Courts have in some cases the power to determine the right of Tithes
between lay Persons And it is held in the 25 H. 8. 25 H. 8. Br. Jurisdiction 95. that where the Lord of a Mannor claimed Tithes in consideration of finding a Chaplain at such a Chappel and the Parishioners claimed them likewise upon the same consideration that the right of these Tithes being between Lay Persons was triable at Common Law only And by the Statute of 32 H. 8. Stat. 32. H. 8. cap. 7. it is enacted that in all cases where any Person c. which then had or then after should have any Estate of Inheritance Free-hold c. in or to any Parsonage Vicarage Portion Pension Tithes Oblations and which then were or then after should be made Temporal or admitted to be abide and go to or in temporal hands and Lay uses and profits by the Law c. should then after fortune to be disseised deforced wronged or otherwise kept or put out from their Lawful Inheritance Estate Seisine Possession Occupation Term Right or Interest of in or to the same or c. by any other Person or c. claiming or pretending to have Interest or Title to the same that then and in every such case c. the Person c. so disseised c. the Heirs Wives c. shall and may have their remedy in the Kings Temporal Courts or other Temporal Courts as the Case shall require for the recovering c. such inheritance c. by Writs Original of quod ei deferat praecipe quod reddat Assise c. as the Case shall require c. So that since this Statute the Case is put out of all doubt that for such Tithes c. which are become Lay-fee the right Title and possession is become determinable at the Common Law and all manner of real Actions Ejectments and other personal Actions are brought of them as the Case requires daily And now having shewed in how many Courts Conclusion and how many ways Tithes may be recovered it calls to my mind the Fable of the Fox and the Cat who had but one way to shift for her self when the Hunts men came but that one proved better and more secure than all the shifts the Fox had boasted of for upon the whole matter it were much better for the Reverend Clergy if they had one ready way to recover single damages with their costs of Suits at Common Law where they might not be interrupted by Prohibitions and clashing of Jurisdictions and tost from one Court to another than all these ways I have mentioned And it is a wonder to me that there being hardly a Lord in Parliament nor many of the House of Commons that have not some part of their Estates in impropriations though they had no kindness to the Church yet for their own interest and concerns have not to that purpose preferred some Law in Parliament before this time which might be done in a few lines by giving an Action of the Case at Common Law for the subtraction of Tithes with costs or if the Parliament should think fit the smaller sort of Tithes might be determined in a Summary way by the Justices of Peace with an appeal to the Judges of Assise but this I humbly submit as I do all the rest to better Judgments I have now finished this small Tract whereby I wish the Reverend Clergy may receive as much satisfaction as I desire The conclusion of the whole or they can expect And I shall now conclude all with a List of those Monasteries the Lands of which are only capable to be discharged of the payment of Tithes by Order Bull Prescription real composition or otherwise that every Clergy man may satisfy himself without further enquiry whether such Monastery Lands as shall happen to be in his Parish c. may have the benefit of the Statute of 31 H. 8. to be freed of the payment of Tithes and in the List following I have set down the times of the foundations of the several Monasteries that being material to know for if they were founded since the first year of R. 1. they cannot prescribe in non decimando I have also for the most part set down what order the Houses were of that the Reader may satisfy himself whether they were of any of those Orders that were priviledged from the payment of Tithes for the valuations I have followed Mr. Dugdale as being a sure Author having observed many Errors in that of Mr. Speed In the perusal of this Catalogue you will find how many Foundations were made of Monasteries in the first Century after the Conquest and till the Raign of King John that if they had continued at that rate the greatest part if not all the Land in England had by this day been Monastery Land but in King John's time they begun to slack and in the ninth of H. Magna Charta 3. the Statute of Mortmain was made after which you will find but few Religious Houses as they were called founded The Cistertian order came into England about the year of our Lord 1128. and in the ensuing Table you may see how well they prospered that in so short a time there should be so many of the greater Abbies of that order The black Canons regular of St. Stows Survey of London 930⸪ Augustine first came into England as Mr. Stow says in the Year 1108. and were first placed in Trinity Church within Algate London but I rather think he is mistaken in the time for I find some Monasteries of that order before that time however the ensuing Catalogue will inform you of their increase And it is without dispute that the increase of Monasteries especially those of priviledged Orders tended very much to the prejudice of the Secular Clergy that had the Cure of Souls for beside the orders that were priviledged they appropriated all the Churches they could obtain and how ill they were served a Man may in some measure observe that peruses the Statute of 15 R. 2. and 4 H. 4. for it appears by them that they endowed no Vicarage at all upon the appropriating Churches or so meanly Endowment of Vicarages that the Vicars could not live upon them and not at all Hospitality practised And therefore the Parliament of England which has always put a stop to the usurpations and exorbitances of Rome and to prevent the Religious Houses destroying the Church in the 15. Year of the Raign of King Richard the second made a Law 15 R. 2. cap. 6. that the Diocesan of the place where any Church was to be appropriated should take care the Vicarage should be well and sufficiently endowed besides a Portion to the poor But this Act not having the effect was desired and expected the Bishops of those times being overawed by his Holinesses mandates or participating too much of his qualities a second good Act was made in the 14. Year of King H. 4 H. 4. cap. 12. 4. whereby it was enacted that