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.
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
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
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
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
Year of that King where he made more severe Canons against the Married Clergy in the presence of the King and Nobility Hollingshed 34. b. 10. to give them greater Authority which he prosecuted with great zeal but did not live to effect what he desired I do not find that his Successor Rodolphus troubled himself much in this concern of the eight Years that he Governed the Church of Canterbury but his Successor William Corbet followed the steps of Anselm who for this and his other good works was Canonized a Saint at Rome and in the Year 1126 called a Council or Convocation at Westminster against the Married Priests wherein one John de Crema the Pope's Legate sent to manage this business being a learned Man made an Eloquent Oration in commendation of Chastity and a single life and inveighed violently against the Married Clergy H. Huntingd. l. 7. Hoveden in H. 5. Speed 461. a. c. Bish Goodwins Catalo of Bish 83. and as divers Authors of good credit affirm the great Orator was the same night taken in bed with a Woman which made him to return with shame enough howsoever as Bishop Goodwyn tells us that in that Convocation the Canons were renewed against the Married Clergy but the Arch-Bishop finding himself too weak to deal with so stubborn a Clergy commendeded the care of this business to the King who taking advantage of the Canons squeezed some Money out of the Married Clergy by way of Commutation I find no more of this matter till after the death both of this Arch-Bishop and H. 1. But I find there was a Convocation held at London Decemb. 13. 1138. Good win 84. Fullers Eccl. Hist 27⸪ by the Command of Albert Cardinal Bishop of Hostia where this matter was again violently prosecuted and I find no more after of it till in a Convocation or Council held under Rich. Wethershead Arch-Bishop of Canterbury 1229. in which it is decreed Lindw Si qui Clerici Qui autem in Subdiaconatu vel supra ad matrimonium convolaverint mulieres renitentes invitas relinquant But it should seem notwithstanding all this persecution that for some Years after some Married Men held their Livings for in a Synod or Council held by Otho the Pope's Legate at Saint Paul's in London in the Year 1237. Cap. de uxoratis a beneficiis amovendis there is a Canon to this effect Innotuit nobis pluribus referentibus fide dignis quod multi propriae salutis immemores Matrimoniis contraciis claudestine retinere cum uxoribus Ecclesias Ecclesiastica Beneficia adipisci de novo promoveri ad sacros ordines contra statuta sacrorum Canonum non formidant c. and then proceeds Quod si repertum fuerit aliquos taliter contraxisse ab Ecclesiis Ecclesiasticis Beneficiis quibus tam eos quam quoslibet alios uxoratos fore decernimus ipso jure privatos removeantur omnino c. This nail being thus at length driven to the head the secular Clergy lay about 300 Years under this Bondage and though if they would be at the cost they might have dispensations to keep Concubines yet for the credit of holiness there was great care taken they should not do it publickly or scandalously to which purpose there is a Canon in the same Council I last mentioned to this effect Statuimus statuendo praecipimus Cap. de Concubinis Clerieorum removendis * Nota. Canons against Concubines ut ubi Clerici maxime in sacris ordinibus constituti qui in demibus suis alienis detinent publice Concubinas eas à se prorsus removeant infra mensem illas vel alias de caetero nullatenus detenturi c. There was another Canon much like this made in another Council held under Stephen Langton Arch-Bishop of Canterbury at Oxford not long before in the Year 1222. to this effect Cap. Clericalis Ordinis * Nota. Quod Clerici Beneficiati aut in sacris ordinibus constituti in Hospitiis suis publicè tenere Concubinas non audeant nec etiam alibi cum scandalo accessum publicum non habeant ad eas So that it appears clearly by these Canons that Clerks were not in those days positively and absolutely forbidden to keep Concubines but it must not be done publicè nec cum scandalo nor must they have publicum accessum And it appears by the centum gravamina that were presented to the Pope about the Year 1521. Dispensations for Concubinage Hist H. 8. by my Lord Cherbery p. 131. art 74. Art 91. by the German Princes that it was one of the grievances of that Nation that the Pope permitted Clerks Religious and secular Persons to live publickly with their Harlots and get Children and that in most places the Bishops and their Officials not only tolerated Concubinage upon paying Money in the more dissolute sort of Monks but also exacted it of the most continent saying it was then at their choice whether they would have them or no. So upon the whole matter it seems it was no offence in a Clergy-Man that had a dispensation to keep a Concubine St. Calvins Inst lib. 4. c. 12. Sect. 23. privately in a nooke without scandal and go to her in the dark but to keep a Wife of his own was a sin against the Holy Ghost Dyer 133. p. 1. 2 H 4.16 a⸫ Cap. de uxoratisa beneficiis amovendis ubi supra he must be deprived he must be deposed And therefore I cannot blame the German and French Laity that they were so solicitous in the Council of Trent to have their Priests Married being loth as should seem to trust their Wives and Daughters at confession with Priests that had not Wives of their own And it was no less a Religious than prudent expression of Pope Pius the Second that though there was many weighty reasons why Priests should be restrained from Marriage yet the reasons for restoring them their Wives were the more weighty Having given the Reader this Historical account concerning the restraint of the Marriage of Priests and the success of it I will in the next place shew what Acts of Parliament have been made relating to this matter and which are in force at this day In the first Tear of H. 1 H 7. cap 4. Statute that the Bishops should imprison Priests for Incontinence 7. there was an Act made that it should be Lawful to all Arch-Bishops and Bishops and other Ordinaries having Episcopal Jurisdiction to punish and chastise such Priests and Clerks and Religious Men being within the bounds of their Jurisdiction that should be convicted before them by examination and other Lawful proofs requisite by the Law of the Church of Advowtry Fornication and Incest or any other fleshly incontinency by committing them to Ward and Prison there to abide for such time as shall be thought to their discretions convenient for the quality and quantity of their trespass And
or of the stubble of Corn But if the Meadowing be so rich that there is two crops of Hay got in one Year or two crops of Woad c. there the Parson shall have Tithe as well of the later as of the former Crop If a Man gather green pease to spend in his House Rolls 1.647 a. 11 12. Green Pease and there spend them in his Family no Tithes shall be paid for the same but if he gather them to fell or to feed Hogs there Tithes shall be paid for them Neither shall Tith Hay be paid for the Grass growing upon head-Lands Headlands Roll 1.646 z. 19. which are only large enough for the turning of the plow But Tithe shall be paid of the Hay and Corn growing in Orchards 2 Inst 652⸫ Orchards though the Tith of the fruit growing in them were paid the same Year be it Apples Pears Cherries c. There hath been some question about fodder gotten in the feen Lands in Cambridgshire and elsewhere More 683. Cro Jac. 47⸪ Fodder and spent upon beasts of the Plow and Pail whether it should pay Tithes or no but it hath been resolved that Tithes shall as well be paid of this Fodder as of other Hay spent upon the Beasts of the Plow and Pail But it has been resolved Grass out in Meadows for Beasts of the Plow Wells vers Crawly T. 1. Car. 1. B.R. Tares Vetches cut green Cro. Car. 393. Jones 357⸪ that for Grass cut in Meadows to feed the Beasts of the Plow and not made into Hay that Tithes should not be paid thereof It hath been resolved that Tares Vetches c. cut green for the feeding Beasts of the Plow by Custom may be freed from the payment of Tithes but not without Custom CHAP. IV. The Fourth Chapter sets forth where and in what Cases and in what manner the Tithes of Wood are to be paid IN the time of Stratford Arch-Bishop of Canterbury How and where Tithe Wood is to be paid in or about the 17th Year of the Raign of E. 3. 1343. there was a Provincial Canon or Declaration made to this effect Declaramus provisiône concilii sylvam coeduam illam fore Canon Lindwood c. Quanquam ex solventibus c. quae cujuscunque existens generis arborum in hoc habetur ut caedatur quae etiam succisa rursus exstirpibus aut radicibus renascatur ac ex ea decimam ut pote realem praedialem parochialibus seu matricibus Ecclesiis persolvendam nec non Sylvarum possessores hujusmodi ad praestationem decimarum Liguorum ipsorum Excisorum in eis sicut faeni bladorum omni censura Ecclesiastica fore Canonicè compellendos But in or about the same Year there was a Petition in Parliament Exact Abridgment p. 40. nu 51. ibid. 80. num 37. that no Man should be impleaded in Court Christian for the Tithes of Woods or under-Woods but in places accustomed which was answered As heretofore the same shall be The like Petition was in the 25th Year of E. 3. and other Parliaments till at the length in the 45th Year of the same King an Act of Parliament was made to this effect reciting That whereas they sell their great Wood of the age of twenty years or of greater age to Merchants to their own profit St. 45. E. 3. c. 3. Statute not to be paid of great Wood. and in aid of the King in his Wars Parsons and Vicars of Holy Church do implead and draw the said Marchants in Suit in the Spiritual Court for the Tithes of the said Wood by the Name of Sylva caedua whereby they cannot sell their Woods to the very value to the great dammage of them and the Realm It is therefore by that Law ordained and established that a Prohibition in this case shall be granted and upon the same an Attachment as hath been used before this time By which it appeareth that this Act of Parliament was but a Declaration of the Common Law Prohibitions and Attachments thereupon in such case having been formerly used 9 H. 6.56 a⸫ T. 27 E. â—0 28 a. Prohibition in Point 50 E. 3 10.a⸪ and so was Paston's opinion 9 H. 6. This Act of Parliament was after questioned by the Clergy pretending it did not pass as an Act of Parliament but only as an Ordinance and so not binding And thereupon the Commons in the next Parliament petitioned Exact Abridg. 118 nu 21. that it might be enacted that for Wood above twenty Years growth no Tithes should be due and that in all such cases a Prohibition might be granted To which was answered that such Prohibition should be granted as then before had been used But Sir Edward Cook in his Commentary upon Magna Charta does sufficiently prove it was an Act of Parliament 1. Because it is entred upon the Parliament Roll amongst other Acts of Parliament 2. 2 Inst 643⸪ 644⸫ It is under the Title in that Roll of Statutes of E. 3. Anno regni sui 45. 3. It was proclaimed with the rest of the Acts of that Parliament 4. It is penned in the form of an Act of Parliament viz. it is ordained and established 5. It hath the consent of the Lords and Commons 6. There hath been infinite Prohibitions upon it To which let me add that in the Parliament of 8 R. 2. 8 R. 2. Exact Abridgment of Records nu 21. It was owned for an Act of Parliament in which Parliament 't is like many of the Persons were present that were at the making of the said Act. And in 9 H. 6. 9 H. 6.56 a⸫ Exception was taken to the Prohibition because it was not grounded upon this Statute And in the 11 H. 4. 11 H. 4.9 a. it was affirmed by Thirming to be an Act of Parliament and in force Seld. hist decim 236. 2 Inst 643⸪ 644⸫ Roll 1 637⸪ 638 639. But whosoever desires more satisfaction in this point I refer them to Mr. Selden's History of Tithes and the other places mentioned in the margent Notwithstanding this Act many questions were startled what was Sylva caedua and many Petitions in Parliament to have it declared to which I find no positive answers but sometimes referred to usage and sometimes the King took time to advise But Belknap a learned Judg Sylva caedua quid 50 E. 3.10 b⸫ 50 E. 3. declares that Sylva caedua is to be intended every manner of Wood that may be cut and will grow again which all manner of Wood will do as he there says if it be preserved from Cattel and therefore the Defendant in the Prohibition in that case was put to Traverse that he sued not in the Spiritual Court for the Tithes of gross Woods So that the question at this day chiefly is what shall be said gross Woods To which question The Judges of the Common Law have resolved 2 Inst 643⸫ What shall be said great Wood.
The Parson or Vicar are not by this Act barred of any Legacy given or offering to be made to them 9. No Mortuary to be paid in Wales Callis or Barwick or in the Marches of Wales but where accustomed 10. It is provided that the four Welch Bishops and the Arch-Deacon of Chester may notwithstanding this Act take their accustomed Mortuaries 11. That where less hath accustomably been taken for Mortuaries than is limited by the Act there no more than is due by the Custom shall be taken Sir Edward Coke is of opinion that there were no Mortuaries due before this Act 2 Inst 491⸫ Mortuaries due only by Custom by any Law but by Custom only by reason of the words in the Statute of Circumspecte Agatis which are ubi mortuarium dari consuevit c. This duty was formerly only suable for in the Court Christian but now I conceive an Action of debt will lye at Common Law upon this Statute for though this Statute is only negative that they shall not take above such rates yet it implies affirmative as the Statute of 2 E. 6. for barren Grounds and the Statute for the Sheriff's Fees and dues other Statutes For those Mortuaries that Prelates antiently paid to the Kings of this Realm Mortuaries to the King by Bishops I shall not trouble the Reader with but refer those that are curious to inform themselves to Sir Edward Coke's Commentary upon Magna Charta 2 Inst 491. In the Tenth of H. 4. 10 H. 4. 1. b⸪ A Vicar claimed a Mortuary by Custom and not by the Canon or any other Law quod nota These Mortuaries are in some places called coarse presents Their names or coarse presentees as Doctor Cowel says because where due they used to pay before the Coarse was buried when it was brought to be buried The Bishop of Chester claimed by Custom upon the death of any Priest Cro. Car. 237 238. Bishop of Chester his demand as Archdeacon of Chester dying within the Archdeaconry of Chester for a Mortuary his best Horse or Mare Saddle Bridle and Spurs his best Gown a Cloak his upper Garment next it his best Hat his Tipper his best Signet or Ring and this Custom was denyed by the Plaintiff in a Prohibition but what the Success was I have not heard but the Mortuaries due to the ARchdeacon of Chester are excepted And the Bishop of Chester holds that Archdeaconry as I have been informed in the nature of a Commendam and executes it by a Deputy CHAP. XXV The Five and Twentieth Chapter shews how Tithes are to be paid in London THE Livelyhood of the Clergy in London Tithes in London how to be paid I mean the secular Clergy consisted heretofore chiefly in voluntary offerings and Personal Tithes which little differ from voluntary offerings For though a great Doctor tells us that In praecipuis festivitatibus tenetur quis offerre Hostiensis c. Omnis Christianus cogi potest maxime cum sit quasi generalis consuetudo ubique terrarum c. And if you ask him which are those Feasts at which the People are bound to offer Idem de Paroc Sect. In quibus c. he tells you Dies dominicos dies festivos But there being no Canon or Law that prescribes any certainty in the quantity value or things to be offered I can give them no properer name than voluntary or free-will offerings But no sooner was Popery abolished in this Nation but these voluntary offerings and personal Tithes soon came to little And notwithstanding it was enacted by the Statute of 2 E. 6. That all that by Law or Custom were bound to make their offerings should thenceforth pay them to the Parson c. yet that did not much amend the matter so that the maintainance of the secular Clergy in London was brought to a very low ebb there being no Tithe as hath been said chargeable upon houses unless by way of a modus decimandi whereupon the Clergy of London in the 37th Stat. 37 H. 8. c. 12. year of the Reign of King H. 8. made their application to the Parliament and obtained an Act of Parliament for the confirming a Decree made by the Archbishop of Canterbury and divers other great Lords of the Kingdom to settle the matter the effect whereof follows which is printed amongst the other Acts of Parliament 1. The Decree That the Citizens of London from thenceforth for ever should pay yearly without fraud or guil to their Parsons c. for the time being for every ten shillings rent of all houses shops warehouses cellars and stables within the said City of London and the Liberties of the same 16 d. ob and for every 20 s. rent 2 s. 9 d. and so ascending for every ten shillings rent 2. That if any dwelling houses shops c. should be leased by fraud or covin reserving less Rent than hath been accustomed or shall by reason of Fine or by fraud or covin make any Lease without reserving any Rent then the Farmer or Tenant shall pay after the same Rate the said house c. was last let for without Covin but note that if the house c. be let at as great a Rent as the same was set at at the time of the making of the said Statute then no fraud can be averred although a Fine or In-come was given for the said Lease 3. 2 Inst 659. That if a house c. be leased and no Rent at all reserved then such house c. shall pay such rate as the same was let for at the time of the making of the said Statute but where greater Rent is reserved it is to pay according to the best improved value But where Houses had been always held by the Owners 2 Inst 660⸫ and by consequence no Rent paid that is casus omissus in this Statute and such houses will be freed of payment of Tithes by this Law But if it were a house that yielded Rent at the time of the making of the Decree and be now let without Rent it shall pay Tithe according to the Rate it was set for at the making of the Decree although no Fine at all were paid for such Lease 5. The Tithes upon this Decree cannot be sued for in the Ecclesiastical Court because the Act it self declares how they shall be recovered 6. That if the Owners held the houses themselves then they shall pay Tithe after the rate the same were set for at the time of the Decree 7. That if any person take any house c. by Lease and he and his Executors c. live in part of it and set out part the principal Farmer or Taker his Executors c. shall pay their Tithes for his and their Parts after the rate aforesaid and of such part as is farmed out according to the rate it is set at And in the same manner Tithes are to be paid where one takes a Lease
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
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