then c. And in an action of debt brought upon this Bond the Defendant pleaded non requisivit which was found against him and in arrest of Judgment it was moved that this Bond was made for the performance of a Symoniacal contract and therefore void but notwithstanding the Court gave Judgment for the Plaintiff and two reasons are given for the Judgment the first was because there was no averment of the Symony second that it was not material as to the Bond because that Statute did not make the Bond or Contracts void but only the presentation c. for this I clearly infer from the conclusion of the case But I confess the sense of the Court was that in truth if a man be preparing a Son for the Clergy and have a Living in his disposal which falls void before his Son be ready he may lawfully take a bond of such person as he shall present to resign when his Son is become capable of such Living and I have nothing to say against that opinion but it is very just and reasonable nature obliging that every one should take care for his posterity but if a Patron take a Bond absolutely to resign upon request without any such cause as the preferment of a Son or to avoid pluralities or non-residence or such reasonable cause but only to a corrupt end and purpose to exact Money by this Bond from the Incumbent or attempt it though perhaps the Bond may be good against the Person that entred into it yet I am clear of opinion for my own part that the said Bond makes the Church void and gives the presentation to the King and it should seem in Jones and Laurence's case that if Symony had been averred it would have been left to a Jury to have adjudged what the intention of the corrupt Patron was The other Case upon which these subtil Simonists build Cro. Car. 180. Hur. in Jones 220. was between Babbington and Wood 5 Car. 1. B. R. where the Case was likewise in debt upon an Obligation with a Condition that whereas the Plaintiff intended to present the Defendant to such a Living that if the Defendant upon request after his admission should resign that then the Bond to be void c. Upon Oyer of this Bond and Condition the Defendant demurred and Judgment was given for the Plaintiff But all the Court conceived that if the Defendant had averred that the Obligation had been made with intent to exact money make a Lease c. which in it self had been Simony then upon such a Plea peradventure it might have appeared to have been Simony and then it might have been a question whether the Bond had been good or no but upon this Demur it did not appear there was any Simoniacal Contract and such a Bond might be made upon a good and lawful design as the preferment of a Son as in Jone's and Laurence's Case before to avoid non-Residence Pluralities c. So that it appears by both these Cases that Bonds taken upon prudent and just ends to resign are non-Simoniacal but where such Bonds are taken upon corrupt designs and it be made appear by any subsequent practice or action it is clearly Simony as if the Bond had been expresly to pay money for what difference is there between a Bond expresly to pay money and a Bond to resign which is to pay money if the Patron say either pay me so much or resign when all the world knows in such a Case the Parson must pay the money or resign and be undone And the world shall never perswade me that those reverend Judges that gave these Judgments ever intended further and I hope that those reverend Judges that now supply their places will discountenance and discourage such practices that tend so much to the ruine of the Church and Religion for I know no Law that tends more to the advancement of learned and religious men than this Law doth and therefore ought to have a benign construction to the end it was designed I find a Case reported Noy 22. T. 15 Jac. ro 2051. C. B. I cannot say that is by an Authentick hand but such as it is I will give it the Reader it was between Sir John Pascall and one Clerk in the 15 year of King James upon evidence to a Jury it was held that such a Bond was Simoniacal but the Circumstances not appearing in the book the Case can be of no great Authority But before I shake hands with these Bonds for Resignation it will be convenient I give my young Clergy-man some cautions against them for it is an old saying the Resetter is worse than the Thief for without Resetters there would be sew theeves And 1. Advice against Bonds for Resignation I hold it a great disreputation for any Clergy-man to give any such bond which may have the least tincture of Simony nor do I believe any man of worth will do it unless it be upon such reasons as aforesaid 2. If such Bond carry with it a Simonaical corrupt design it makes the Clerk no less guilty of Simony than the corrupt Patron and then the Clerk not only loses his Living by this Statute and is for ever incapacitated to have it by any suture Presentation and by the Canon-Law is to be degraded and incapacitated to all other Lastly if he do not resign upon request 3 Inst 153. Margine Noy 72. he is subject to the whole penalty of the bond for Simoniacal Bonds Contracts c. are not made void by this Act but only the Presentment c. And so you may observe a difference between malum in se and malum prohibitum by the Statute or by the Canon-Law whereof the Judges at Common Law take no notice It is now to be considered What Covenants and agreements are within this Law what Covenants or Agreements shall be said to be Simoniacal within this Law If a Father-in-Law upon the marriage of his Daughter covenant with his Son-in-Law without any consideration Cro. â—ar 425. but voluntarily that when such a Church falls void which is in his gift that he will present him to it this is no Simony within this Law but it should seem that such Covenant in consideration of marriage or any other consideration had made it Simoniacal So where the Patron took a bond from the Presentee to pay 10 l. Noy 142. Baker vers Mountford yearly towards maintainance of his Predecessor's Son whilst he remained in the University unpreferred was held no Simony And in that Case it was said by Foster Justice that it was adjudged in the Earl of Sussex's case where the Patron took a Bond of the Incumbent to pay 5 l. per annum to the Widow of his Predecessor it was not Simony these were good charitable Resolutions sed quaere rationem inde and Foster said that notwithstanding great opposition in that Case the Parson enjoyed the Living at that time In the
almost penned in the same words for the double value would make a man at a stand what the meaning of the Parliament was and it was forty years when almost all that were at the making of this Act were dead before it was found out 2 Inst 650⸫ that an Action of Debt lay upon this Clause at Common Law for the treble damages To wit Pasch 29. Eliz In the Exchequer in an Information by the Queens Attorney against one Wood for the treble value as forfeited to the Queen In which Cause it was resolved that an Action of Debt lay at the Common Law for the treble damage for not setting forth of Tithes for wheresoever an Act of Parliament gives a forfeiture against him that doth dispossess c. the Owner of his property as here he doth of his Tithes there the forfeiture is given to the Party grieved or dispossessed since which resolution Actions of Debt have been frequently brought in all the Courts of Westminster by Parsons Vicars Propriators Owners and Farmers of Tithes as well Lay as Spiritual upon this Statute but being so long before it was found out that an Action lay at Common Law upon this Statute the Plaintiffs in the recital of the Statute alledged it to be made the fourth of February 2 E. 6. whereas in truth the Parliament begun the 1 of E. 6. and was held by Prorogation the fourth of February 2 E. 6. And this being discovered in an Action between Oliver and Colier P. 6. Jac. B. R. brought upon this Statute wherein the Statute was misrecited as aforesaid and exception taken to it in arrest of Judgment 1 Brownlow 100. Yelver 126. Dyer 171. p. 6. Stile 122. the Court upon good advisement overruled the exception by reason of the multitude of Presidents and affirmed the Rule that multitudo errantium parit errori Patrocinium Now considering that this is become a very frequent Action in use I conceive it will not be improper to the present occasion to communicate to the Reader what I have observed and learned in this kind of Actions not only concerning the Forms of Declarations Pleadings Verdicts and Judgments but likewise what evidence is necessary upon the general Issues of non culpa and nil debet for the Plaintiff and Defendant and in the first Case consider in what Cases and by whom and against whom this Action may be brought If two be Joynt Tenants Hutton 121⸪ 122⸫ By whom and against whom Actions lye in this Statute and they enter and occupy jointly the Action must be brought against them joyntly but if one only enter and occupie them the Action must be brought against him that only occupies alone But if there be two Tenants in Common and one of them sets out his Tithe and the other carries it all away there the Action shall be brought against him that carries it all away alone If the Husband and Wife in the right of the Wife be intitled to Tithes Noy 3.136 1 Brown 86. Yelv. 63. Cro. Jac. 68. they shall joyn in this Action because the damage is to survive but a Parson and a Vicar cannot joyn but if they joyn in a Lease to a third person their Farmer may sue for all in one Action but in the first Case I see no reason but that the Husband may bring the Action alone and so I have known it often done In an Action brought upon this Statute The Form of the Declar. Bellet vers Henworth P. 1657 B. R. the Severance was alledged before the sowing and exception taken after Verdict but the Exception was disallowed because the shewing of the sowing was superfluous and so aided by the Verdict The taking was alledged after the Plaintiffs Term was ended Cro. Car. 324. and yet held good M. More 911. 40 and 41 Eliz. A Judgment was arrested because the Suit was brought ad respondend tam Domino Regi quam Parti but this Case I very much doubt for being against a Statute Law it is a contempt finable though the Plaintiff have the forfeit as upon the Statute of Huy and Cry Hetley 121. c. And I take the Case inter Luvered and Owen M. 4. Jac. C. B. for the better Law where it was held good Upon an Action brought by two upon this Statute Cro. El. 170. who made their Title by a Lease from a Patentee of the King and exception was taken because they did not shew the Patent but disallowed 1. Because the Letters Patents did not belong to the Plaintiffs 2. Because the Plaintiffs did not demand the Tithes themselves but damages for a tort another Exception was taken to the Declaration because the Plaintiff alledged the Defendant did not agree with them and did not say or either of them but held good by Intendment And it hath been adjudged 2 Bulst 65.228.183 1 Brown 86. Noy 3. Yelv. 63. Cro. Jac. 68.361 that in this Action the Plaintiff needs not to shew his Title especially but it is enough for him to alledg that he is Propriator Farmer or Rector generally without shewing how And it hath been held good 2 Brown 70 71. though the Plaintiff in his Declaration do not express the quantities or loads of the Corn or Hay carried away 2 Inst 650. And so it is though you do not express in your Declaration the kinds of the Grain carried away Where a man alledged Coke vers Smith H. 7. Car. 1.10 587. B. R. per Lat. that he was Farmer of all the Tithe Corn arising c. upon sixty Acres of Land in D. and did not alledg which they were in certain and yet allowed for good 2. The Plaintiff alledged the Defendants Occupiers but did not say whether joyntly or in common and yet held good 3. The Plaintiff had alledged no time of the carrying away but having alledged the time of the severance and the carrying away coming in with a Conjunction Copulative it was held well enough In an Action brought upon this Statute Cto Jac. 324. 2 Bulst 114. the Plaintiff averred in his Declaration that he was subditus dictii Domini Regis having recited the Statute and it was held nought because it must necessarily be intended E. 6. and not of the present King In an Action upon this Stat. Pleas in this Action Porter vers Rochester Hill 9 Jac. B. R. the Defendant pleaded a Recovery in the Ecclesiastical Court but it was held no good Plea at Common Law but I conceive it would be a good evidence upon nil debet pleaded otherwise the Parishioner were in an ill Condition In this Action non culpa and nil debet have been both held good Issues Wortley vers Empringham P. 42. El. B. R. Hob. 218. Cro. El. 766. Cro. Jac. 361. but it is no good Plea to plead that the Plaintiff sowed the Corn and sold it to the Defendant because this matter will not excuse the payment of Tithes Now having
brought the cause to issue upon nil debet or non culpa we will shew in the next place what will be good and material evidence as well for the Plaintiff as Defendant First What Evidence is necessary in this Action ex parte quere If the Plaintiff be a Parson Vicar or other Ecclesiastick and have not been some considerable time in possession of his Living in which I have not observed any constant rule amongst the Judges in their practice but ten years quiet possession for the most part is allowed by the Judges for an evidence of the Plaintiffs Title unless some material objection be made against it to draw it into question but if the Plaintiff have been but for some short time in possession or the possession litigious then the Judges usually put the Plaintiff to prove his institution and induction and now he must prove that he was in Episcopal Orders at the time of his institution otherwise his institution is void by the late Act of Uniformity he must produce a Certificate under the Hand and Seal of the Bishop c. that instituted him that he subscribed the declaration mentioned in the Act 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
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
peradventure of the party that names them And though they make a false return or no return at all it shall excuse the Bishop and the party grieved is left to his accord against the Commissioners And Verdict does not bind 21 H. 6.45 a. as has been said the verdict in a jure patronatus does not bind the adverse partie 's Title though it may be some evidence for him whose Title is found to be the best 34 H. 6.38 b. CHAP. IV. Shews how the Law stood concerning pluralities before the Statute of 21 H. 8. cap. 13. Who are qualified within that Law to have pluralities and how qualified persons ought to behave themselves in taking the second livings so that the former may not be void A Plurality is where one and the same person obtains two or more spiritual preferments with cure of Souls What a Plurality is against which there have been several Canons and they have been alwayes discountenanced at the Common Law Co. 4.90 b⸫ Co mag ch 626⸪ vide the Records there cited and several Complaints have been made against them in Parliament yet the Pope held them up by his dispensations How agreeable these dispensations were to God's service nay how prejudicial they have been to the advance of the Christian-Religion and are I leave others to judge it being no part of my undertaking Hob. 149. Concil tom 4.221 cap. 29. And though I find a great Judg of this Nation defending of them yet I find a Canon in the general Council of Lateran against them in the Year 1215. in these words Canon against Pluralities Statutum est quod quicunque receperit aliquod beneficium habens curam animarum anexam si prius tale beneficium obtinebat eo sit jure ipso privatus si forte illud retinere contenderit alio etiam spolietur Is quoque ad quem prioris speciat donatio illud post receptionem alterius conferat cui merito viderit conferendum And now let me tell you the fruits of Pluralities out of another Counsel Tom. 5.368 cap. 64. which is delivered in these words Res ipsa loquitur The effect of Plural plura beneficia potissimum quibus cura animarum submissa est non sine gravi Ecclesiarum damno ab uno obtineri cum unus in pluribus Ecclesiis rite officia persolvere aut rebus earum necessariam curam impendere nequeat I might enlarge much more upon this Subject but it being collateral to what I design this last shall serve And if any body desire further satisfaction upon this Subject Confil. Trident 496. I commend him to the History of the Councel of Trent where he will find that by the greater and better opinion of that Councel Residence by him that hath a preferment in the Church with cure of Souls is of Divine right and that therefore the Pope had no power to dispense with non-Residence the consequence of which is that it is against Divine right for any to take more Benefices than one with cure of Souls because the same person cannot be resident in two places at one and the same time But as the Pope by stratagem made the endeavours of all the good men in that Councel ineffectual so by his frequent dispensations to take Pluralities without number or measure He made the Canons of the Church of no other effect than to increase his own Revenue by dispensations More 119. But it should seem the Councel of Lateran was received and approved as to that point in this Kingdom Acceptance of a second Living makes the first void and the Law was always taken that he that had one Living with cure of Souls and without dispensation accepted another with cure of Souls made the first void So that the Patron of the first Church might present a new Clerk and needed not to stay till the former Clerk should be legally deprived But in this case the Church doth not lapse till the the end of six Months to be accounted from the time the Patron had legal notice of the vacancy from the Bishop but after induction the Patron as it should seem Co. 4.95 b. 44 E 3.22 a. 9 E. 3.22 a. 10 E. 3.1 14 H. 7 28. b. 14 H. 8.17 a. F N B. 34. L. 15 E. 3.9 11 H. 4.37 Cro. Car. 357. Several acts to restrain the Pope is bound to take notice at his peril And as to all others but the Patron the Church remained full till induction into the second Living and so are all the Books that seem prima facie to differ reconciled But the Parliament of England that in all Ages made bold with his Holiness and to restrain the exorbitances of the Pope and Court of Rome as the Reader may see 27 E. 3. cap. 1. 3 R. 2. cap. 3. 7 R. 2. cap. 12. 2 H. 4 cap. 4. 38 E. 3. cap. 1. 16 R. 2. cap. 5. 6 H. 4. cap. 1. 25 E. 3. and Provisoes and 27 E. 3. cap. 1. if he pleases to satisfy himself by the several Acts of Parliament mentioned in the margent against Provisions suing at Rome impeaching judgments given at the Common Law Aliens being beneficed within this Realm priviledging religious orders from payment of Tithes and many other things and I cannot forbear to observe to the Reader the boldness of the Parliament in the sixth Year of H. 4. with his Holyness where they restrain the giving of exorbitant and just fees for the investures of Bishops The act begins thus Whereas thereis a damnable custom in the Court of Rome to take more for the investure of Bishops c. Certainly these brave Parliamenteers never expected his Holinesse's indulgence or Pardon this seeming a sin as high as that against the Holy Ghost to charge the Holy Father with a damnable custom in his Court The Act against Pluralities 21 H. 8. cap. 13. Co. 4.79 b. to use extortion and symony I say the Parliament to prevent the mischiefs of these dispensations made a Law in the twenty first Year of H. 8. That if any Person or Persons having that is being instituted one Benefice with cure of Souls being of the yearly value of eight pounds or above shall accept and take any other with cure of Souls and be instituted and inducted into the possession of the same that then immediately after such possession had thereof the first Benefit should be void And that it should be lawful to every Patron having the advowson thereof to present another and the Presentee to have the benefit of the same as though the Incumbent bad died or resigned and that any licence union or other dispensation contrary to that act should be void If this act had gone no further it had been an excellent Law But there is so many qualifications in this Law that wholly defeat the benefit of it since the Nobility are grown so numerous as they are at this day so that the grievance is now
unless the Clerk be de facto presented or collated upon such corrupt Contract And it matters not whether the Incumbent that comes in by a Symoniacal contract were privy thereunto or not Clerk not Privy to the Symony as to making the Church void but the great question is whether the Clerk that is presented upon a Symoniacal contract to which he is neither party nor privy be disabled for that turn to be presented by the King to that Church I have seen the Report of a Case in the latter end of the Reign of King James Fowler vers Lapthorn P. 17. Jac. B. R. where it was adjudged that if a Clerk were presented upon a Symoniacal Contract to which he was not party or privy that yet notwithstanding it was a perpetual disability upon that Clerk as to that Living And in the Case of Baker and Rogers Cro. El. 788. M. 42 and 43 El. B.R. The case was Baker agreed the Church being void to give the Patron 180 l. for the Presentation who presented his Brother who knew nothing of the corrupt Contract till after Induction and though it was clear that the grant of the Presentation during the vacancy was merely void and that Baker presented as an Usurper that yet notwithstanding the Clerk was in by the corrupt Contract because it was not to be intended that the Patron would have suffered the Usurpation had it not been forthe corrupt Contract and there it should seem by Mr. Justice Warburton that the Clerk was disabled quoad hanc And in a Cause between the King and the Bishop of Norwich Cole and Sair Cro. Jac. 385. Bulst 3.92 Sir George Crook who was a Counsel in the Cause reports that Sir Edward Cook affirmed it had been adjudged that if a Church be void and a stranger contracts for a Sum of Money to present one who is not privy to the agreement that notwithstanding the Incumbent coming in by the Symoniacal Contract is a person disabled to enjoy that Benefice although he obtain a new Presentation from the King for the Statute as to that Living has disabled him during Life I must acknowledg if the Law be so taken it is very severe but let us hear Sir Edward Cook himself speak 3 Inst 154⸫ and he in his Comment upon this Statute says that it was adjudged in the before mentioned Case of Baker and Rogers that where the Presentee is not privy nor consenting to any such corrupt Contract as is forbidden by this Statute because it is no Symony in him there the Presentee shall not be adjudged a disabled person within this act for the words of the Statute are And the person so corruptly giving So as he shall not be disabled unless he be privy to the Contract and so says he there it was resolved M. 13. Jac. And Sir Edward Cook in that Book Co. 12.101 that goes under the name of his twelfth Report and without doubt was his own reports that it was so adjudged in the case of Doctor Hutchinson Parson of Kenne in Devonshire by the whole Court that if a Clerk be presented upon a corrupt contract within this Statute although the Clerk be not privy thereunto yet the presentation admisson and induction are all void within the Letter of the Statute for the Law intended to inflict punishment upon the Patron being the Author of this corruption by the loss of his presentation and upon the Incumbent who came in by such a corrupt Patron by the loss of his Living although he never knew of the corrupt Contract but if the Presentee were not cognizant of the corruption then he 's not within the clause of disability within the same Statute and so says he was the opinion of all the Judges of Sarjeant-Inn in Fleet-street Mich. 8. Jac. And it seems to me upon the penning of the Statute that this opinion is more rational than the former for the words of the Statute are That the Person so corruptly taking procuring seeking or accepting shall c. from thenceforth be adjuged a disabled Person in Law to have or enjoy c. And though the Incumbent in this case take and accept the Benefice upon the corrupt contract yet as to him it is not corrupt But this being a point thus controverted Quaere I shall not take upon me to determine but leave it to the Judgment of the more learned I shall in the next place shew what Contracts have been held Simoniacal within the meaning of this Law What Contracts shall be said Symonical In a Cause between Doctor Graunt and one Bowden Hill 16. Jac. ro 667. C. B. it was held upon an Evidence to a Jury that where two Parsons agreed to change their Livings and the one promised his Patron that if he would present the other with whom he was to exchange that he should make the Patron a Lease of his Tithes at such a Rent and this was held Symony although the other was not privy to the Contract he making the the Lease after The Father in the presence of his Son being a Clerk purchased the next advowson of a Church More 916. Cro. El. 685. Smith vers Shelburne the present Incumbent of the Church being sick and not likely to live who soon after died and he presented his Son and this was held Symony within this Statute but if this had been done in the absence of his Son it had not been Symony because the Father is bound to provide for his Son quaere of the difference And by Hutton it was held Symony to purchase the next Advowson Winch 63. Sheldon vers Brett Hob. 165. the Incumbent being sick In the case of one Winchcombe against the Bishop of Winchester and Puleston the case was one Say bargained with the Patron the Incumbent being sick for ninety pounds to present him when the Church should be void and for the better assurance take a Grant of the next avoidance to Friends in trust the Incumbent died Say was presenred and this was held Symony within this Law There is of late time a practice introduced by corrupt Patrons that Bonds for Resignation if not nipt early in the budding will make this good Law of no effect I mean the taking Bonds for resignation And this practice took its rise from two cases in Sir George Crook's Reports The first was between Jones and Laurence 8. Jac. The Case was thus Cro. Jac. 248.274 Jones had a Son which he intended to be a Clergy Man and having obtained a Presentation from Queen Eliz. for the Church of Streetham agreed with the Defendant that he should be presented so that he would resign when Jones his Son was qualified for the Living whereupon the Defendant entred into a Bond of a thousand Marks penalty to the Plaintiff upon this condition having first recited the agreement that if the Defendant within three Months after request should absolutely resign his said Benefice that
to the Rector of the Parish Church wherein they arise yet notwithstanding the Parson of one Parish may prescribe to have a Portion of Tithes in the Parish of another 14 H. 4.17 a 44 Ass p. 25. Roll 1.657 o. and so might Abbot Priors and other religious persons prescribe to have portions of Tithes in Parishes How Prescriptiont are to be proved Seld. hist decim 364⸪ 290⸪ whereof they had not the Advowsons and by consequence the Patentees from the Crown and the Impropriators may claim the same by prescriptions in the Abbots Priors c. and the usage since the dissolution will serve to prove the prescription and usage in the Abbots c. that they held the same so time out of mind As for extra-parochial Tithes Extra-parechial Tithes 7 E. 3. there has been some differing Opinions Sir William Herle was of opinion that they belonged to the Bishop of the Diocess as general Parson of his whole Diocess grounding his opinion as it should seem Seld. hist decim 108. upon the Canon Law But there was never any such Canon received or approved in this Kingdom But it hath been resolved both in Parliament 21 Ass 75. 2 Inst 647⸫ Roll 1.657 o. p. Seld hist decim 365. and by several Judgments at Common Law that all extra-parochial Tithes belong to the King who is a mixt Person and capable of Tithes at the Common Law in pernancy Now having shewed in general who are capable of Tithes in pernancy at this day In Particular Cases to whom Tithes are due and to whom of Common right they belong I shall proceed to shew to whom they are due in some particular Cases If a Parson Lease his Glebe-Lands Cro. El. 161. Against the Parsons own Lease Portman vers Hind in 31 32 El. B. R. Co. 11.13 b⸪ Dyer 43. p. 22 est Quaere and do not also grant the Tithes thereof the Tenant shall pay the Parson Tithes nay though the Parson Lease his Lands cum omnibus proficuis commoditatibus eidem spectantibus rendering Rent pro omnibus exactionibus demandis quibuscunque Yet notwithstanding the Tenant shall pay the Parson the Tithes arising upon these Lands The like Law it is if an Impropriator Vicar c. make such Lease c. And as the Parson shall have Tithe of his own Tenant Against his Feoffment Co. 1.111 a⸪ Co. 11.13 b⸪ so he shall have of his Feoffee And if a Parson have Lands in the same Parish whereof he is Parson and demises his Tithes he shall pay Tithes to his Farmer If a Parson sow his ground Dyer 43. p. 21. Moyle ver Ewre Hill 1 Jac. B. R. Roll 655. k. 2. Lease Roll 655. k. 1. and then sell the emblements I mean the Corn growing upon the ground the buyer of the Corn shall pay the Tithe of it to the Parson that sowed and sold the Corn. So if a Parson sow his Glebe-Land and then Lease the Land the Tenant shall pay his Parson Landlord Tithe of this Corn. There has been some opinions Co. 10.88 b⸪ 21 H. 6.30 a. that if the Parishioner sow his Lands and before severance the Parson die that in this case the Parson's Executors Uphaven ver Humfries 40 El. per Poph. Gaudy vers Fenner and not his Successor should have the Tithes And there has been some Opinions that if the Parson sow his Glebe and die before severance that his Executors should not pay Tithes of this Corn. But both these Cases To whom the Tithes in the Vacation belong St. 28. H. 8. c. 11. if they had been Law are put out of doubt by the Stat. of 28 H. 8. which hath given all the Tithes and other profits belonging to the Rectory to the Successor from the death of the last Incumbent which hath taken away all pretence the Executors could have in such Cases But notwithstanding this Statute I take the Law to be clear that the Executor of the Parson shall have the Corn sown by his Testator in his life time Rolls 655. k. 3. as the Executors of other Tenants for life have by the Law It hath been held Whether the Vicar and Parson shall pay to each other Crompt Case P. 7. Car. 1. B. R. Cro. El. 578. that the Vicar upon a general indowment shall not pay Tithes of his Glebe to the Parson or the fruits that arise from the same Quia decimas Ecclesia Ecclesiae reddere non debet So if a Vicar be endowed of all the small Tithes arising within the Parish yet he shall not have the small Tithes arising upon the Glebe-Lands of the Parson Tithes may belong to a Chappel 13 Ass p. 2. Dyer 87. Tithes by prescription may be appendant to an antient Chappel CHAP. III. The third Chapter shews of what things Tithes are due and in what manner the Tithes of Hay and Corn are to be paid Tithes Regularly are to be paid of all things annually arising from the gound Of what things Tithes are to be paid Co. 11.160 F. N. B 53 E. either of themselves or by the Culture and Industry of the Parishioner without any deduction of Averg in their proper kinds as soon as the same may be separated and divided from the nine parts in Sheaves Garbs or Heaps Lind wood c. Quoniam propter verb. non deductis expensis But the manner and form of the payment of Tithes is for the most part governed by the Custom of the place and therefore if by Custom the tenth part How Tithes of Corn are to be paid of Corn or Hay hath been measured forth growing upon the Lands as 't is in some parts of Lincolnshire this manner of Tithing is to be observed for in what manner soever the Tithe hath been paid time out of mind St. 27 II 8. c. 20. 32 II. 8. cap. 7. in such manner it still ought to be paid and therefore where Tithe Corn hath used to be paid time out mind in Sheaves or Garbs bound up it is no good payment to leave it in bonds unbound as I have known some contentious Parishioners do So for the Tithe of Hay How the Tythe of Hay is to be paid if the Parishioner have used to make it into Hay-cocks before they have set forth their Tithes they must do so still Roll 1.644 y. 1256. but where there is no such Custom they may set it forth in Grass-cocks The same order ought to be observed in all other things arising from the Ground as Rape Saffron Apples c. and other fruit But no Tithes are to be paid for the Rakings of Corn Rakings 2 Inst 652⸫ Cro El. 660. More 278. Crok Jac. 42 Yelver 86. Hetley 133. Rolls 1.645 z. 11 12 13. Aftermaths unless the Parishioner fraudulently scatter his Corn to cozen the Parson of his Tithes Neither are Tithes to be paid of the aftermaths of Meadows nor of balks in Corn Fields
by Custom to be free from payment of Tithe Wood Hob. 266⸪ Bulst 2. 285. Doct. Stud. cap. ult Roll 1. 642. b. 1. p. 5 6 8. Co. 11.16 a⸪ Custom to pay Tithes of things not Tithable or any thing in lieu of it and so in several Countries they pay no Tithe of their Milk And as Custom may prevail in not Tithing so it may as has been said make things Tithable which in their own natures are not Tithable as the Rents of Houses Pigeons eaten in the House Wood spent in the House and by Custom Tithe may be paid of Salt Brick Lime Ale Chickens and other things not Tithable Now the difference between a Custom and a prescription is this Difference between Custom and Prescription every Custom must have dimension and alledged to be within some certain Province County City Hundred c. for if it be a general Custom of England it is Common Law and such Custom must be common to all within such limits but if it be confined to one certain Person House Land or other thing there it becomes a prescription which is a younger daughter to Custom and therefore when a Man comes to plead a Custom the manner of pleading is to alledg that within such a County Hundred or Town there is and from the time whereof in the memory of Man is not to the contrary there hath been such a Custom used and approved in the same that is to say that c. alledging the Custom as it is But when you come to plead a prescription you only alledg that you and all those whose Estate you have in such Lands have time out of mind paid so much annually to the Parson of D. How to plead a Prescription in full satisfaction and exoncration of all the Tithes arising upon the said Lands c. So that Custom and prescription differ in these things Wherein Custom and Prescription differ that Custom must be limited and confined to some certain place prescription is at large Custom is common to all the Persons and Lands within the limits wherein it is alledged but Prescription is confined to certain Persons or things but in this they agree that they must be constant without interruption and perpetual from the time whereof the memory of Man is not to the contrary for if there have been frequent interruptions there can be no Custom or Prescription obtained but after a Custom or Prescription is once duly obtained a disturbance for ten or twenty Years shall not destroy it 1 Inst 114. b. 2 Inst 653⸪ 2 Inst 654⸫ for Multiplex interruptio non tollit praescriptionem semel obtentam But I must here observe to the Reader How the Ecclesiastical Laws look upon Customs and Prescriptions that though the Civil and Ecclesiastical Laws do in some cases take notice of Custom and Prescription yet in this they differ from the Common Law In what they differ from the Common Law in this matter that they allow a usage for forty Years to be a good proof of a Custom or Prescription grounding their judgments upon a decretal Epistle of Pope Alexander the third Anno Domini 1180. But this Kingdom never allowed of that Epistle or yielded any obedience thereunto so that as well in Spiritual as Temporal Prescriptions and Customs if they come to be tried at Common Law as all Prescriptions concerning Tithes must be they must be proved to have been used beyond the memory of any Man to the contrary for if any Man living or any authentick Record or other evidence prove it was otherwise at any time since the first Year of Richard the first which was Anno Domini 1189. 2 Inst 653. the Custom or Prescription fails And the Influence Custom What Influence Custom and Prescription have in the manner of Tithing 27 H. 8. c. 20. and Prescription have in the Manner of Tithing is confirmed by three several Acts of Parliament First by the Stat. of 27 H. 8. whereby it is enacted that every Subject of England c. according to the Ecclesiastical Laws and Ordinances of the Church of England and after the laudable Vsages and Customs of the Parish or other place where he dwelleth or occupieth shall yield and pay his Tithes Offerings and other duties of Holy Church c. By this Statute the Ecclesiastical Laws and Canons are affirmed for the payment of Tithes but in such cases as they are contrary to the Common-Law or Customs of the place they do not bind Next this Act confirms and allows all Usages and Customs of the place where the Tithes arise which are to be preferred before all Canons and constitutions in the manner of Tithing The next Statute is that of 32 H. 32 H. 8. c. 7. 8. whereby it is enacted That every Person c. shall fully truly and effectually set out yield or pay all and singular Tithes and offerings aforesaid according to the Lawful Customs and usages of the Parishes and places where such Tithes or duties should grow arise come or be due This Act seems only to extend to customary Tithes and so doth the Statute of 2 E. 6. which is That every of the King's Subjects should from thenceforth 2 E. 6. c. 13. truly and justly without fraud or guile divide set out yield and pay all manner of their predial Tithes in their proper kind as they arise and happen in such manner and form as hath been of right yielded and paid within forty Years next before the making of the said Act or of right or Custom ought to have been paid But more of these Statutes in their proper place I shall now proceed to shew what liberty and priviledg the Parson Vicar c. hath in the grounds where the Tithes arise for the drying ordering and carrying away their Tithes CHAP. XIV The Fourteenth Chapter shews what Priviledg and Liberty the Parson Vicar c. hath in the ground where the Tithes arise for the drying making ordering and carrying away the same BY the Stat. of 2 E. 6. It is enacted 2 E. 6. cap. 13. What Friviledg the Parson c. hath in the Lands where the Tithes grow that at the Tithing time of Predial Tithes it should be lawful for every party to whom any Tithes ought to be paid or his Deputy or Servant to see the said Tithes to be set forth and severed from the nine parts and the same quietly to take and carry away This Statute as to the taking and carrying away seems only declarative of the Common Law but as to comeing upon the Lands to see the Tithes set forth seems to me to be a new Authority given by this Law for the owners of the Land are de jure bound to set forth their Tithes duly and rightly and if they fail therein the Parson Vicar c. have their remedies and if the Parishioner do justly and truly set forth his Tithes although the Parson Vicar
his Patentees after the Leases determined shall hold them discharged whilst the Patentees and Owners hold them in their own hands but the Kings Tenants shall hold them discharged because of the Royal Prerogative of his Person not being intended fit for Husbandry Having now said thus much of the four legal manner of discharges beforementioned 5 Perpetual unity Co. 1.47 b⸪ c. Co. 11.14 b. Dyer 349. p. 16. More 528. Hob. 311⸪ 306 298⸫ 300⸫ 2 Inst 655⸫ More 46 47. Cro. Jac. 608. I shall proceed to that of perpetual unity which cannot be said to be a legal discharge of the payment of Tithes Yet because the Abbots Priors c. at the time of the dissolution held the Lands discharged of the payment of Tithes though not legally discharged of Tithes it hath been resolved by many Judgments and setled that this is a good discharge within the meaning of the aforesaid clause of 31 H. 8. Now that which we call a perpetual unity is as hath been said where an Abbot Definition Prior c. time out of mind have been seized of the Lands out of which the Tithes arise and the Rectory within which Parish the Lands lye And it is to be observed that every perpetual unity that shall discharge the Lands from the payment of Tithes must have these four qualities First Co. 11.44 b⸪ Hob. 300⸪ it must be justa that is by good and lawful Titles Secondly It must be perpetual that is the Abbey must be founded and indowed with the Land and Rectory before the time of memory which by the rules of the Common Law as has been said must be before the first Year of R. 1. for if by any Records Deeds or other legal and good evidence it can be made appear that either the Land or Rectory came to the Abbey since the said first Year of R. 1. the union is not perpetual and yet if the appropriation be antient as in the time of E. 4. or before though the Lands cannot be discharged upon the score of perpetual unity yet they may by prescription if in truth the Lands were held discharged of the payment of Tithes Thirdly such unity as shall discharge Lands of the payment of Tithes within this Law must be aequalis That is the Abbots Priors c. must be seized in fee-simple as well of the Lands upon which c. as of the Rectory Lastly such unity must be libera that is free from the payment of any manner of Tithes for if their Farmers at will years c. have paid any manner of Tithes to the Abbots Priors c. Cro. Jac. 454 482. or their Farmers of the Rectories the perpetual unity will not serve And therefore where such perpetual unity is pleaded in discharge of Tithes the adverse party may reply that the Tenants or Farmers before the dissolution paid some sort of Tithes and so avoid the perpetual unity Having first given the Reader satisfaction that all the Lands that came to the Crown by the Statute of 27 H. 8. and before can have no benefit of the discharge given by the Statute of 31 H. 8. and having also shewed how many ways Lands may be discharged from payment of Tithes that came to the Crown by the said Statute of 31 H. 8. It rests now that I should say something of those Lands that have since come to the Crown by the Statutes of 32 H. 8. cap. 24. 37 H. 8. cap. 4. and 1 E. Co. 2.47 a. How other Lands stand that came not to the Crown by 31 H 8. 6. cap. 14. It is a Rule taken in the Arch-Bishop of Canterburies Case that neither the Letter nor the meaning of the Statute of 31 H. 8. extended to free or discharge any Lands from the payment of Tithes save those that came to the Crown by that Act for as that Book says it is absurd that the branch of the Statute of 31 H. 8. concerning Tithes should be extended to a future Act that the makers of the Statute of 31 H. 8. without the Spirit of Prophesy could not have the prescience of And as to those that came to the Crown by the Statute of 32 H. More 913. Cro. Jac 57. Hill 2 Jac. 8. cap. 24. It was adjudged in the case of Spurling and Quarles that they are not discharged of the payment of Tithes Jones 182 c. Latch 89. Hughes 392. Bridgm. 32. But there is a later Judgment that seems to oppose these former resolutions it was between one Witton and Sir Richard Weston that was after Lord Treasurer Trin. 4. Car. 1. B. R. and the question was whether those Lands of the Hospitaliers that came to the Crown by the Statute of 3 H. cap. 24. were discharged of the payment of Tithes by that Statute of 32 H. 8. or by the former Statute of 31. and in that case Dodridg and Jones Justices held that they were discharged within the Statute of 31 H. 8. and they did in effect deny the Books before cited to be Law the chief Justice Hide was of opinion that they were not discharged by the Statute of 31 H. 8. but by that of 32. So that by their three opinions the defendant Sir Richard Weston had judgment but Whitlock was of opinion that those Lands were not discharged of the payment of Tithes by the one Statute or the other now upon the whole matter I shall submit to the Judicious Readers Judgment whether this later resolution be of any weight to shake the former resolutions since in this case though there were three for giving Judgment for the Defendant yet to the point controverted upon the Statute of 31 H. 8. they were two against two and that they were not discharged by the Statute of 32. there were three against the chief Justice Hide So that I conceive the Law remains according to the former resolutions that there are no Lands freed from the payment of Tithes by any Statute but those that came to the Crown by the Statute of 31 H. 8. I must confess I have met with no Judgments upon those Lands which came to the Crown by the Statute of 37 H. 8. but those being the same with those that came to the Crown by the Statute of 1 E. 6. cap. 14. I conceive neither those that came to the Crown by either of those later Statutes have any priviledg at all and it is agreed in that very case of Witton and Weston that those Lands that came to the Crown by 1 E. Jones 185. Cro. 2.470 .. Co. 2.47 a. 6. could not have any benefit by the clause of discharge in the Statute of 31 H. 8. So that I shall conclude that there is no Land can have any priviledg at this day to be discharged of Tithes that belonged to the Abbots Priors c. but such only as came to the Crown by the Statute of 31 H. 8. cap. 13. CHAP. XXII The Two and Twentieth Chapter