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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A37445	The parson's counsellor with the law of tithes or tithing in two books : the first sheweth the order every parson, vicar, &c. ought to observe in obtaining a spiritual preferment, and what duties are incumbent upon him ... : the second shews in what manner all sorts of tithes, offerings, mortuaries, and other church-duties are to be paid ... / written by Sir Simon Degge, Kt.	Degge, Simon, Sir, 1612-1704.	1676 (1676)	Wing D852; ESTC R8884	170,893	368

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

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 6●7 Hob. 6●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

eighteen months and the last quarter part thereof at the end of two years And by a Statute made 1 Eliz. all Vicarages not exceeding ten pounds 1 Eliz cap. 4. and all Parsonages not exceeding ten Marks according to the valuation in the first fruits Office are discharged from the payment of first fruits And if an Incumbent die or be legally removed out of his Living without fraud then after such death or removal the remaining half yearly payments of the first fruits which were not become due are discharged by the said Statute of 1. Eliz. And by that Statute the Dean and Canons of Windsor are discharged of the payment of first fruits And by the Statute made in the 26th St 26 H. 8. c. 3. When the first Fruits are to be paid year of H. 8. before mentioned It is enacted That every Archbishop Bishop Dean Prebendary Archdeacon Parson Vicar c. before he have any actual or real possession or medling with the profits of his Living this must be between Institution Collation and Induction must pay or compound for or give security for the payment of his first fruits in the first fruits Office And that an Obligation taken for the same should be of the force of a Statute of the Staple and that if any such presume to enter into his Living before such payment or security given or composition made he is to forfeit double the value But his Majesty and his Royal Predecessors have not been severe in this Case to take the penalty but upon faileur their Officers of the Exchequer have sent our Process to the Sheriff to put the negligent Parsons Vicars c. in mind of this duty and upon coming in and paying the charge of the Process and paying or giving security for the first fruits they are discharged But the Parsons Vicars c. must be careful to pay in their half yearly payments as the same become due and take up their bonds or else new Process will issue to the increase of their charge Perhaps some may be so curious Why Vicarages are charged higher in the first fruits Office than Parsonages and desire to know why Vicarages not exceeding ten pound should be freed of this charge and Parsonages of ten marks should pay them now the reason of that was that the Vicarages in time of Popery and when the Valuation was taken had a great income by voluntary Offerings which falling to little or nothing upon the dissolution of Monasteries this favour was afforded them in their first fruits The next charge Parsons and Vicars are subject to are the Tenths Tenths that is a tenth part of the yearly value of all their Church Livings this payment was first exacted from the Clergy by the Pope about the twentieth year of E. 1. 2 Inst 628⸫ and a Valuation was then made by his authority of all Church Livings at which rate the Pope was answered his Tenths but he never had any Tenths of such Land as was given to the Church after that time these payments as appears by our Histories the Popes of Rome sometimes granted to Kings of England when the Kings pleased him or rather when he seared their power but upon the abolishing the Popes power which was in the 25th Stat. 25. H. 8. cap. year of H. 8. these Tenths were given to the King the year following by the aforesaid Statute of 26. H. 8. Stat. 26 H. 8. cap. 3. and to be paid at Christmas yearly and the Bishop of the Diocess is to collect them and they are to be paid according to the valuation taken the same year and now in the first fruits Office and are not paid that year the first fruits are paid but are allowed out of them because 't is intended that the King has the whole years profit But immediately upon the Reformation many Clergy men scrupled and denyed to pay these Tenths to the King being a duty properly due to the Pope and therefore the refusal or neglect to pay them to the King being certified by the Bishop that had the Collection of them is made a Cause of Deprivation not only of the Living St. 26. H. 8. c. 3. for which they refused to pay their Tenths but also of all their spiritual Preferments But by the Stat. St. 2 3 E. 6. c. 20. of 2 and 3 E. 6. that severity was moderated so that now the refusal or neglect to pay them and so certified by the Bishop makes only that Living void for which the Tenths shall be so refused But his Majesty and his Royal Predecessors have rarely put the severity of this Law in Execution but make out Process in the Exchequer to compel the payment however since the penalty is so great every Clergy man ought to be very careful to avoid the danger There is a Provision made by an Act of Parliament in the 27 Year of H. St. 27 H. 8. c. 8. The remedy where the Successor pays Tenths due by his Predecessor 8. for those Incumbents that shall be forced to pay the Tenthes due in the time of their Predecessors that they may levy the same upon any Goods they can find of their Predecessors upon the Church Living and if they be not redeemed within twelve days after they shall be distrained that then the same shall be praised by two or three indifferent Persons to be sworn and so many of them sold as will satisfy the arrear with cost and if no such Goods can be found then the Successor to take his remedy against his Predecessor his Executors or Administrators or others to whom his Goods shall come by hill in Chancery or an Action of Debt at Common Law There is another charge Procreation●● to which the Parsons Vicars c. are subject for their Church Livings Sir John Davies Rep. 1 2 3. which is called Procreations or Proxies and these are duties due and payable to the Bishops and Arch-Deacons at the time of their visitations which are not paid by any certain Rule but by some antient Taxation for antiently the Religious Houses and Clergy-Men at their own charge entertained the Bishops and Arch-Deacons in their visitations See more of this matter Lind. cap. ut singula Ecclesiastica That by a Canon made by Steph. Langton about 1222 the Archdeacons were to bring but seven horses in their Trains and stay but one day and to invite no body but at length their attendants were so many and their trains so great that the Clergy and Religious Houses were horribly oppressed with entertaining of them to avoid which the Clergy and Religious Houses came to this composition every one to pay such a proportion to their visitors to be freed of that great oppession and therefore the Canonists define them to be Exhibitio sumptuum necessariorum facta praelatis qui Diocaeses peragrando Ecclesias subjectas visitant and this payment is continued to this day not only of those Livings

Clergy Man may prescribe for himself and Tenants Years and Will and his Copyholders have been free from the payment of Tithes the reason alledged is because it might commence by a real composition for the whole Mannor Rolls 1.653 H. 4. Co. 2.45 a⸫ and in all cases where a Spiritual Person prescribes in non decimando his Tenants and Farmers shall take the benefit thereof But if any of the Abbots Priors c. Stat. 27. H. 8. cap. that came to the Crown by the Statute of 27 H. 8. were discharged of the payment of Tithes by prescription de non decimando Rolls 1.654.1 1. contra Hob. 309⸪ yet the Patentees of these Lands shall not have the benefit of such prescriptions but shall pay Tithes Neither can the Kings Patentee be freed from the payment of Tithes of those Lands which the King whilst he had them in his own hands prescribed to be freed from the payment of Tithes Rolls 1.655.1.2 Patenter del Roy. because it is a Personal discharge in the King for the question arising upon Lands disafforrested there might be several reasons why he paid no Tithes first because the grounds were depastured with Beasts ferae naturae for which no Tithes were due Cro. Car. Dubitatur Ideo quaere or for that the King was not bound by the decretal Epistle of Pope Innocent the third who setled the Parochial right of Tithes or by reason the King being a mixt Person might prescribe in non decimando But the King's Patentees of those Abby Lands that came to the Crown by the Statute of 31. H. 8. may take advantage of a prescription de non decimando in the Abbot Prior or other Religious Person by the force of that Statute and the enjoyment of the Lands since the dissolution freed from the payment of Tithes during memory is a good proof à posterior A Country may prescribe in non decimando Lib. Inst tit prohibit Co. 2.44 b. Doct. St. l. 2. c. 55. f. 166 167. b. 174. b⸫ Roll 1.653 H. 10 11 12 13. Who may prescribe de modo decimandi Co. 2.44 a⸪ b ⸫ Cro. El. 599.758.784 that the Abbots Priors c. held the same discharged from the payment of Tithes The inhabitants of a County Hundred or Country as the wilds of Kent and Sussex may prescribe not to pay Tithes of Wood Milk or any other particular thing so there be a competent Livelyhood for the Clergy besides But every Lay Man may prescribe de modo decimandi That is that such a Man being Lord of such a Mannor and all those whose Estate he hath in the said Mannor have from the time whereof the memory of Man is not to the contrary have had and enjoyed to his and their own uses all the Tithes arising c. Co. 2.44 a⸪ b⸫ Cro. El. 599.758.784 within the said Mannor paying so much yearly to the Parson of D. And a Lord of a Mannor may prescribe for himself and his Copyholders Cro. El. 784. Noy 132. for they are part of the Demesns of the Mannor or the Copyholder may prescribe in the name of his Lord. If a modus decimandi be to pay two things as two shillings for a Park Hob. 43⸫ A modus to pay two things and one fails and a shoulder of every Buck kil'd in the Park and all the Deer die or are kil'd up yet notwithstanding the Prescription holds good for the two shillings But every Prescription and modus must have a Continuance Hob. 43⸫ Prescriptions must not sleep for it cannot be good at one time and asleep at another neither can a wilful denial destroy a modus decimandi And it is taken for a Rule in Dr. Leyfield and Tisdale's Case Hob. 11⸫ Modus for houses that where no Tithes are regularly and legally due as for a house c. there can be no modus decimandi alledged And yet it hath been held Co. 11.162 .. Hob. 11⸫ Quaere Roll 1.640 b. 5. Hob. 107. Roll 1.651 d. 16 17 18 19. Cro El. 446. Co. S●lect Cases 45⸪ More 454. that a Tithe by prescription may be paid for a house because it might be due for the land before the house was built Ideo quaere A modus to pay Tithes without the view of the Parson is not good because it conduces to fraud and is now against an Act of Parliament So a modus that you have paid your Tithe of your Cows you have been freed of the Tithes of Oxen Steers Heyfers c. is not good That is to pay your Tithes in kind of one thing thereby to free another Tithe And it hath been held a void prescription to pay a Load of Hay yearly in discharge of all his Tithe Hay Cumberland per Roll. P. 13. Jac. B.R. What Prescriptions de modo decimandi 2 Leo 70. are good that is to pay a part in discharge of the whole So for a Parishioner to prescribe that he c. has time out of mind repaired the Church and by reason thereof hath been discharged of the payment of Tithes is no good Prescription for the Parson not being bound to repair the Church has no recompence but if it had been that he had repaired the Chauncel Roll 1.649 d. 8 9. and in consideration thereof had been freed of the payment of Tithes that had been a good modus ratio patet It hath been held a good Prescription Wool and Lamb. Roll 1.648 c. 1.649 d. 7. that the Parishioner hath time out of mind paid the Tithe Wool of all the Sheep he has shorn though never so lately bought in and in consideration thereof hath been freed of the payment of the Tithes of those he has sold before Sheer-day It hath been held a good Prescription Roll 1.648 c. 4. to have paid the Tenth Fleece or Pound of Wool so there were any allowance for the odd Fleeces or odd weight It hath been adjudged a good modus Roll 1.649 d. 5. that in consideration the Parishioner hath shorn and wound the Wool to be free of paying Tithes of the neckings and birlings without fraud It is a good prescription Roll 1.652 g. 1. that the Parishioner hath time out of mind paid a half penny for every Lamb sold before Mayday but if the Parishioner sell his Lambs fraudulently a few days before Mayday on purpose to defraud the Parson c. it is no good discharge A Prescription to pay wool in kind Marsh 79⸪ if kept till Clipping day but if sold before to pay a half penny a fleece as Mr. Marsh reports was held no good Prescription tamen quaere It hath been held a good modus For Corn. More 454. that in consideration that the Parishioner hath mowed reaped and shockt the Corn and paid his Tithe in the shock that he hath been freed of the payment of any Tithes of the Rakings but as Sir Edward Coke says there needs no modus