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
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
c. be not present or had no notice given him to be present yet this had been a good setting forth before this Statute but it is a fair and just way to do it in the presence of the Parson Vicar c. And note this Act is warily penned in the singular number thaâ—â—he party himself his Agent or Servant may come to see the Tithes set forth but must not come with a greater number And note that the Parson Vicar Impropriator or Farmer cannot come himself and set forth the Tithes without the Licence and consent of the owner of the Corn Hay c. for if the Parson Vicar c. shall of his own head Tithe the Corn Hay c. of any Landholder within his Parish c. and carry it away he is a Trespassor and an Action will lye against him for it But a Parson Vicar c. may de communi jure after the Tithes are set forth come himself or his Servants and spread abroad dry and stack his Corn Hay c. in any convenient place or places upon the ground where the same grew till the same be sufficiently weathered and fit to be carried into the Barn c. but the Parson Vicar c. must not take a longer time for the doing thereof than what is convenient and necessary and what shall be said a convenient and necessary time the Law doth not nor can define for the quantity of Hay 1 z E. 4.6 a. Roll 1.643 x. 2. Corn c. and the weather in this case is to be considered and what shall in this and all other cases of like nature be said a reasonable and convenient time is to be determined by the Jury if the point come in issue triable by a Jury but if it come to be determined upon a demurrer or other matter of Law the Judges of the Court where the Cause depends are to resolve the same And if the Parson Vicar c. shall exceed a convenient and necessary time in the drying ordering and carrying away their Tithes Hughes Rep. 329. Styles 342. and the Parishioner shall receive dammage thereby an Action of the Case will lye against them for their negligence in this behalf But no Action will lye against the Parson Vicar c. in such a case Stiles 342. Lampen vers Woodnet P. 8. Car. 1. B.R. per Latch unless the Parishioner have duly set forth his Tithe and given notice thereof to the Parson Vicar c. And the Parson Vicar c. Halsey vers Halsey H. 6. Car. 1. B. R. Roll 1.643 â— 3. may carry his Tithes from the ground where they grew either by the Common way or any such way as the owner of the Land useth to carry away his nine parts But if the owner of the Soyl after he has duly set forth his Tithes will stop up the wayes and not suffer the Parson Vicar c. to carry away his Tithes or to spread dry and stack them upon the Land this is no good setting forth of his Tithes without fraud within the Statute of 2 E. 6. but that the Parson Vicar c. or other Owner or Farmer may have an action upon the said Statute and may recover the treble value or may have an Action of the Case for such disturbance Bulst 1.108 as I conceive or he may if he will break open the Gate fence c. which hinders him and carry away his Tithes but in that he must be cautious that he commit no Riot nor break any Gate Rails Lock Hedges more than necessarily he must for his passage And note that the Parson Vicar c. when he comes with his Carts Teams or other Carriages to carry away his Tithes must not suffer his Horses Oxen c. to eat and depasture the Grass growing in the grounds where the Tithes arise much less the Corn there growing or cut but if his Cattle as cannot be avoided do in their passage against the Will of the Drivers here and there snatch some of the Grass c. in their passage this is excusable CHAP. XV. The Fifteenth Chapter shews to what Charges the Glebe lands belonging to a Rectory the Tithes are Subject SIR Edward Coke tells us a Inst 641. What Charges Tithes and Churchlands are subject to Quod nullus pro decimis quae sunt Spirituales de aliqua reparatione pontis seu aliquibus oneribus temporalibus onerari debet That Tithes being Spiritual were not subject to temporal Charges at the Common Law And upon a doubt of Mr. P. 5. Car. 1. Justice Yelverton who was Justice of Assise in the Bishoprick of Durham as Sir Nicholas Hyde heretofore Chief Justice of the Kings Bench has reported it was resolved by all the Judges of England that Tithes are at this day chargeable with all charges imposed by any Act of Parliament wherein they are not excepted as upon the Statute of 43 Eliz. to the poor and to maimed Souldiers Kings Bench Marshalsey Bridges c. But they are not Subject to any Charges Temporal at or by the Common Law But Tithes at this day are Subject to pay first fruits or Annates First Fruits in Latine Primitiae which are the first years profits of every spiritual Benefice at a new Incumbents Entry into his Living they were antiently exacted by the Popes of Rome when they had small revenues to support the publick charge of his place And Polydore Virgil tells us Polid Virgil. De Inventione rerum l. 1. c. 2. p. 498. Caeterum nullum inventum majores Romano Pontifici cumulavit opes quà m annatum quas vocant usus qui omnino multo antiquior est quam recentiores quidam Scriptores suspicantur Et Annates more suo appellant primos fructus unius anni Sacerdotii vacantis aut dimidiam eorum partem And Polydore Virgil tells us that Pope Boniface the Ninth first introduced them though others ascribe them to John the 22th These were often complained of as a great oppression upon the Clergy as Henricus Hostiensis who lived in the time of Pope Alexander the Fourth witnesseth but however upon the abolishing of the Popes Usurpations here in England the poor Clergy were not acquit of this exaction but the same was by the Stat. of 26 H. St. 26 H. 8. c. 3. 8. settled upon the then King and his Successors The first fruits are not here in England rated at the full and utmost value of the Living they are to be paid for but according to valuation taken and made in the said 26 year of King H. 8. and now used in the first fruits Office And these first fruits are by a Statute made 1 Eliz. not to be paid all at once 1 El. cap. 4. but one quarter of them is to be paid at the end of six months from the time of the Induction Collation c. another fourth Part at the end of twelve months another fourth part at the end of
and in all cases to hold plea for the subtraction and withholding of Tithes and confirmed by several Acts of Parliament 35 H. 6.39 38 H. 6.22 per Fortescue Where the Spiritual Court may determine the Right of Tithes To the first if a dispute happen between two Parsons to which of them the Tithes belong whether to the one by parochial right or the other as a portion belonging to his Rectory by prescription and both Parsons claim by presentation under the same Title so that the right of Patronage comes not in dispute the right of these Tithes shall be determined in the Ecclesiastical Court and no Prohibition or Judicavit shall hinder it and this suit in the Ecclesiastical Court is called a spoliation And this Jurisdiction is so peculiar and annexed to the Spiritual Courts 38 H. 6.21 5 H. 5.40 14 H. 4.17 a. b. Where the Temporal Courts have not Jurisdiction of Tithes That if the one Parson should bring an Action of Trespass at Common Law against the other Parson for the taking and carrying away Corn or other things set out for Tithe the Defendant may by way of plea shew that the Goods in question were Tithes set forth and severed from the nine parts and that he is Parson of Dale and that he and all his predecessors time out of mind have had these Tithes as a portion which belonged to his Church and that the Plaintiff being Rector of the Parish where they grew claims them as his Tithes and demand Judgment if the Kings Court will hold plea by such plea the Kings Court shall be ousted of Jurisdiction 5 H. 6.10 50 E. 3.20 38 E. 3.6 39 E. 3.23 5 H. 5.10 1 H. 6.5 44 E. 3.39 20 H. 6.17 2 H. 4.15 31 H. 6.11 2 E. 4.15 but if the dispute in such Action fall out in pleading to be about the bounds of the Parishes then the King's Court shall not be ousted of Jurisdiction And so it is if the question be between the Farmer Bayly or Servant of the one Parson and the Farmer Bayly c. of the other or the other Person himself in such cases though the dispute does appear to be concerning the right of Tithes between the Persons yet the Court shall not be ousted of the Jurisdiction because they are not both Clergy Men. But in all these cases where the right of Tithes is in dispute between one Parson and another in whose names soever the Suit is in the Spiritual Court I conceive no prohibition lies if both Parsons come in by the same Title of patronage so that the right of patronage come not in dispute And I take the Law to be the same where the question arises between the Parson who is patron 40 E. 3.28 35 H. 6.39 and the Vicar whether Tithes belong to the Parson or Vicar But where the right of Tithes is controverted between two Clergy Men which come into their Churches by several patrons West 2. c. 5. Circumspecte Agatis Articuli Cleri cap. 2. Where the Spiritual Court cannot determine the right of Tithes there in that cave the Spiritual Court hath not Jurisdiction to determine the right of the Tithes if they amount to the fourth part of the yearly value of the Church but the Title is to be determined by writ of right of Advowson of Tithes as shall be shewed more at large when I shall come to shew in what cases the right of Tithes is determinable in the Kings Court But in that case if the Tithes in question do not amount to the fourth part of the value of the Church the Ecclesiastical Court may determine the right in a spoliation F.N.B. 37. E. But the Jurisdiction of the Ecclesiastical Courts to hold plea for the subtraction and withholding of Tithes Spiritual Jurisdiction confirmed by several Acts of Parliament as the same hath been very antient so it hath been confirmed by several Acts of Parliament as I shall shew the first of which is that of circumspecte agatis made in the ninth Year of E. 1. by which it is enacted That By the Statute de circumspecte Agatis Si Rector petat versus parochianos oblationes decimas debitas consuetas vel si Rector petat versus Rectorem de decimis majoribus vel minoribus dummodo non petatur quarta pars valoris Ecclesiae Item si Rector petat mortuarium in partibus ubi mortuarium dari consuevit Item si praelatus alicujus Ecclesiae vel advocatus petat à Rectore pensionem sibi debitam omnes hujusmodi petitiones sunt faciendae in Foro Ecclesiastico c. and concludes In omnibus praedictis casibus habet Judex Ecclesiasticus cognoscere Regia prohibitione non obstante There hath been some question made whether this were an Act of Parliament or not That it is an Act of Parliament 2 Inst 487⸪ Seld. hist decim 424. but it is proved by Sir Edward Coke by many unanswerable reasons to be an Act of Parliament and so agreed by Mr. Selden and almost all others Secondly And extends to all England admitting it to be an Act of Parliament it hath been doubted whether it extended further than to the Diocess of Norwich it seeming to be appropriated by the penning to that Diocess alone 2 Inst 487⸪ but by the general opinion of the learned it extends to all other Diocesses and Norwich is only put by way of example And the prudent penning of this Law by our Ancestors deserves the Reader 's observation Observations in the penning of it how careful they were to preserve their own rights and avoid the incroachments of the Clergy who were in those days very powerful for first they would not give way to the Canons to destroy their Customs and Prescriptions allowed by the Common Law and therefore give the Spiritual Judg Jurisdiction of Tithes and Oblations debitas consuetas only 2. They would not expose their rights of Patronage to the determination of the Spiritual Judg and therefore this condition is annexed Dummodo non petatur quarta pars valoris Ecclesiae Lastly they would not subject themselves to pay Mortuaries according to the Canon Law but ubi dari consuevit so that if any Suit were sued for Tithes Offerings Mortuaries not due as well by Custom as Common Law a Prohibition lay and doth lye at this day The second Statute concerning the Jurisdiction of the Spiritual Courts in cases of Tithes is the Statute of Articuli Cleri but I shall pass it by here till I come to speak of the Writ of Judicavit The next Statute I meet with that concerns this matter 18 E. 3 c. 7. is the Statute of 18 E. 3. cap. 7. which I shall pass by also till I come to speak of the determination of the right of Tithes by scire facias There was another Statute made 1 R. 2. 1 R. 2. c. 13. it is Cap. 13. for the punishing of such as
indicted those that sued in the Spiritual Courts for substraction of Tithes or compelled them to desist by Bonds or otherwise but that Law being now become obsolete and besides my purpose I shall proceed to the Statute of 27 H. 8. by which it is enacted That every Subject of England 27 H. 8. c. 20. Ireland Wales Callais and the Marches of the same should according to the Ecclesiastical Laws and Ordinances of the Church of England and after the laudable Vsages and Customs of the Parishes or other places where he dwells or occupies shall yield and pay his Tithes and offerings and other duties of holy Church And that for subtraction of such Tithes c. may by due process of the King 's Ecclesiastical Laws consent the Person c. so offending before his Ordinary or other competent Judg c. having Authority to hear and determine the right Tithes c. And to compel the paâ—â—â— offending to do and yield their duties in that behalf And in case the Ordinary c. for any contempt contumacy disobedience or other misdemeanour of the Party Defendant shall make information to any of the Kings most Honourable Councel or to the Justices of the Peace of the Shire where the Offender dwellâ— to assist and aid the Ordinary c. and to order and reform any such Person in any Cause before rehearsed that then be of the Kings Councel or such two Justices of the Peace whereof one to be of the Quorum to whom such information or request shall be made shall have power to attach or cause to be attached the Person or c. against whom such information shall he made and to commit the same Persons to Ward there to remain without Bail or Mainprise untill he c. shall have found sufficient Surety to be bound by Recognisance or otherwise before the Kings Counsellor or c. or any other like Counsellors or Justices c. to the use of the King to give due obedience to the Process and Proceedings Decrees and Sentences of the Ecclesiastical Court wherein such Suit c. shall depend or be And further gives power to the said Counsellor or to two Justices of the Peace whereof one to be of the Quorum to take receive and Record such Recognizance and Bonds There is a Proviso in this Act that it shall not extend to London And another Proviso that the Party sued may have all legal Defences Appeals and Prohibitions And it is to be observed that this Law extends to all sort of Tithes Observations upon this Law mixt and Personal as well as Predial Next he that will have the benefit of this Law must sue for the single value and not for the double value upon the Statute of 2 E. 6. Thirdly the Plaintiff in the Ecclesiastical Court may proceed upon this Act for contempt contumacy or misdemeanour as well before as after Sentence Fourthly The security upon this Act may as well be by Bond as Recognizance Lastly observe the wary penning of this Act they must pay their Tithes and other Church Duties according to the Ecclesiastical Laws and laudable Customs and usages of the place next if it be demanded before whom Suit upon this Statute shall be made it is answered by the Statute it self it must be before such Judg as hath Jurisdiction of the Cause so that it creates or enlarges no Jurisdiction The next Act of Parliament concerning this matter is the Statute of 32 H. 8. 32 H. 8 c. 7. by which it is enacted that all and singular persons c. shall fully truly and effectually divide set out yield or pay all and singular Tithes and Offerings according to the lawful Customs and Vsages of the Parishes and Places where c. and in case any person c. to detain or with-hold any of the said Tithes or Offerings or any part or parcel thereof that then the person lay or c. shall and may convent the person or c. before the Ordinary c. according to the Ecclesiastical Laws c. and so proceed to Sentence according to the Process and course of the Ecclesiastical Laws And that if any Party appeal against the Judges Sentence he shall then assess the Costs of his Suit therein before expended and shall compel the Appellant to pay the said costs by the compulsory Process and Censures of the said Laws taking security of the said Party to whom the said costs shall be paid to repay the same if the Appeal be adjudged against him And if any Person after sentence definitive given against him shall obstinately and wilfully refuse to pay their Tithes or the sum adjudged that then two Justices of the Peace whereof one shall be of the Quorum shall c. upon Information Certificate or complaint to them made by writing by the said Ecclesiastical Judg c. cause the party refusing to be attached and committed to the next Goal there to remain till he c. have found sufficient sureties to be bound by Recognizance or otherwise before the same Justices to the use of the King to perform the said definitive sentence Provided that no Person or c. to be sued or otherwise compelled to yield give or pay any manner of Tithes for any Mannor Lands c. which by the Laws or Statutes of this Realm are discharged or not chargeable with c. Tithes Provided that this Act shall not extend or be expounded to give any remedy cause of Action or Suit in the Courts Temperal against any Person c. which shall refuse or deny to set out his or their Tithes or which shall detain with-hold or refuse to pay his Tithes or Offerings or any parcel thereof but that in all such Cases the person or persons being Ecclesiastical or Lay Persons having cause to demand or have the said tihes or Offerings or thereby wronged or grieved shall take and have their remedy for their said Tithes and Offerings in every such Case in the Spiritual Courts according to the Ordinance in the former Part of the said Act mentioned and not otherwise any thing c. 1. Observations upon this Statute It appears by the Preamble of this Law that this Act was particularly designed for the relief of Impropriators who before this Act were not capacitated to sue in the Spiritual Courts for the subtraction of Tithes and were hard put to it to find any other relief 2. Where by the former Act the Party for Contumacy c. might be compelled to give security before Sentence in this Case of the Lay Impropriators the Party cannot be compelled to give security till after definitive Sentence 3. Upon this Law there must be two Sureties at least upon the former one sufficed 4. The security in this as the former may be by Bond or Recognizance 5. Whosoever will have the benefit of this Act must sue particularly upon this Law for the single value and not for the double value upon the
Stat. of 2 E. 6. 6. This Law extends as the former did to all manner of Tithes and Offerings 7. London is excepted out of this Act as it was in the former 8. This Law only extends to customary Tithes and not for Tithes due by Canon and Ecclesiastical Laws 9. This Act only extends to such as shall obstinately and wilfully refuse to perform the Sentence of the Ecclesiastical Judge and for no other contempt or neglect 10. Lastly this Act restrains the Suit to the Ecclesiastical Court upon this Statute otherwise an Action as should seem might have been brought at Common Law upon this statute for not setting forth c. of their Tithes But diverse defects appearing in this Law especially to the Lay Impropriators they obtained a more effectual Law for their purpose in the 2 E. 6. by which it is enacted That if any Person carry away his Corn or Hay Stat. 2. E. 6. cap. 13. or other predial Tithes before the Tithe thereof be set forth or willingly withdraw his Tithes of the same c. that then upon due proof thereof made before the Spiritual Judge or any other Judge to whom heretofore he might have made complaint the Party so carrying away withdrawing letting or stopping shall pay double the value of the Tenth or Tithe so taken lost withdrawn or carried away over and besides the costs charges and expences of the Suit in the same the same to be recovered before the Ecclesiastical Judge according to the Ecclesiastical Laws There is a Proviso in this Act that gives occasion of many Prohibitions to this effect That no person shall be sued or otherwise compelled to yield give or pay any manner of Tithes for any Mannors Lands Tenements or Hereditaments which by the Laws and Statutes of this Realm or by any Priviledg or Prescription are not chargeable with the payment of such Tithes or that be discharged by any Composition real Extends only to Predial Tithes This Paragraph of this statute as to the double value extends only to predial Tithes as Corn Hay Wood Flax Hemp Fruit c. but for mixt and personal Tithes there is a Provision after in this Act. There is also another Proviso in this Statute as in the former Sole Jurisdiction to the Spiritual Courts which restrains all Suits for Subtraction of Tithes to be sued in the Ecclesiastical Court and that it shall not be lawful to sue any with-holder of Tithes obventions c. in any other Court and that if the Ecclesiastical Judge shall give Sentence no Prohibition or Appeal depending and the Party condemned do not obey the Sentence that then such Judge may excommunicate the Party and if he wilfully stand excommunicated by the space of forty days next after publication thereof in the Parish Church or the Place or Parish Excommunicato capiendo given where the Party excommunicated is dwelling or most abiding then the Judge Ecclesiastical may certifie the King in Chancery and require Process of Excommunicato capiendo This Clause extends to all manner of Tithes Offerings c. but this gives no double damages for them as the former Clause doth for Predial Tithes There is another Clause in this Act that gives ground likewise for many Prohibitions which is to this effect That the aforesaid Clause shall not extend to give any Judge Ecclesiastical Jurisdiction to hold Plea of any matter cause or thing repugnant to or against the effect intent or meaning of the Stat. of Westm the second cap. 5. the Stat. of Articuli Cleri circumspecte Agatis sylvae coeduae the Treatise de Regia Prohibitione Stat. 1. E. 3. cap. 10. or any of them or to hold Plea in any matter wherein the Kings Court ought to have Jurisdiction any thing therein c. Note that by these three Statutes before mentioned the Jurisdiction of Tithes is confirmed and restrained to the Ecclesiastical Courts That by the Stat. of 27 H. 8. Observations upon all the Statutes Process for contempt is given before Sentence By that of 32 H. 8. Process for contempt is given after Sentence definitive but observe the different penning And by this last statute a Writ of Excommunicato capiendo is given if the Party continue obstinate by the space of forty days after an Excommunication published against him so that a man would think here were as good remedies provided for the Recovery of Tithes in the Ecclesiastical Court as could be imagined but the Interruptions that are frequently given by Prohibitions as shall be shewed hereafter in due place very much frustrate the effect of the proceedings in those Courts And note 2 Inst 490⸫ that a modus decimandi is properly to be sued for in the Ecclesiastical Courts And so having said so much concerning the Ecclesiastical Jurisdiction for the determining the right of Tithes and relief against subtraction of Tithes I shall in the next place shew in what Courts in what Cases and in what manner they are determinable in the Temporal Courts Mr. Selden 422. In what Cases the Temporal Courts have and may determine the Right of Tithes Selden in his History of Tithes reckons up five manner of ways whereby the Right of Tithes may be determined in the Temporal Courts 1. In Prohibitions whereby the Spiritual Courts are forbidden to hold Plea where matters happen which are only triable in the Kings Court or where those Courts proceed against any statute or the Common Law c. 2. By Writs of Right of Advowson whereunto may be annexed the Writ of Judicavit 3. By Scire facias 4. By Process mandatory to command the payment of Tithes 5. By Suits and Actions upon the before mentioned Statute of 27 H. 8. 32 H. 8. and of 2 E. 6. to which may be added the Trials at Common Law by Actions of Trespass Assise c. And of these in order And first of Prohibitions In what Cases Prohibitions use to be granted which are frequently obtained out of the Courts at Westminster Courts of great Sessions in Wales and the County Palatines c. upon these grounds following First upon a modus decimandi Hob. 286. 42⸫ 247⸪ 2 Inst 610⸪ Co. Entr. 459. d. 460. b. Co. 2.44 Dyer 74. p 49. Modus decimandi where the Defendant in the Spiritual Court suggests that he and all those whose Estate he hath in the Lands c. in which c. have time out of mind paid so much yearly in money or giving some other recompence in satisfaction of all the Tithes arising upon the Lands or of all the Tithe Hay or Corn c. this manner of Tithing being by Prescription which is only and properly tryable at Common Law if pleaded in the spiritual Court or not pleaded or allowed or not allowed as a good Plea there is a ground of a Prohibition and what Prescriptions and modus decimandi are in this Case approved of by the Common Law I must refer the Reader to the proper
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
in what cases Deans Prehends c. are restrained by 13 Eliz. 97. Parsons and Vicars restrained by it 98. where upon a concurrent lease the former must determine within three years 98 but not so for Bishops 99. where a Parsons lease shall be void by non residence 99 100 110 whether void against himself ibid. houses in Corporations how to be leased 100. not in reversion 101. what by Bishops and Archbishops 103. by Deans Prebends and Colledges where good 105. from what time leases must commence 105. a Parson leases and resigns 112 Parson leases which is confirmed and then becomes non-resident 112. Bonds and Covenants for leases where void 99. and Promises 101 113. of Colledges and Hospitals where good 114. where a lease shall be good a former in being 115. Surrender enter sealing and delivery ibid. L. Litigious where a Church shall be said to be so 11. where by a Jure patronatus 12. where after a Jure patronatus 12. The Bishop may admit either Clerk without a Jure patronatus at his peril 14. London How Tithes are to be paid 256. M. Marriage of Priests forbid by Canons presented and by whom and how 122. Jo. de Lerma who prosecuted it taken in bed with a whore 123. how forbidden by the Apost Canons 123. made Felony to use their Wives or company 127. after mitigated ibid. to affirm a Priest might Marry made Heresie and Treason 128. all Laws against their Marriage repealed and their Children legitimated 128. that Act repealed and after revived ibid. Mast vide Seed Milk vide Calves Modus vide Prescription Monastery Lands where freed of Tithes 230. how many ways they may be discharged 231. what orders were free from payment of Tithes 233. in what Cases the lesser Abbies may be free 235. not of Lands purchased after 1215.237 Mortuaries what and how and where due 251. N. Notice of Resignation Deprivation where requisite and how to be given 9. 10. O. Oblations and Offerings what and in what Cases due 247. Ordinary vide Bishops P. Parliament 22. Pardon of Simony the effect 54. Parson what he is to do at before and after Institution and Induction 159. he must be a Priest ibid. he must subscribe and have a Certificate ibid. he must read the 39. Articles and how 60. he must declare his assent and the form 60. the danger of failing in any of these 61. they must be repeated upon taking a new Living 61. good advice to the Parsons ibid. what age a Parson must be 64. of a Living of 30. pounds per annum who may be 64. he must be conformable 65. when and how oft he must use the Common Prayer 65. before every Lecture 66. the penalty for using other Forms 66. he must maintain no Doctrine Repugnant to the 39. Articles 67. who may be a Parson 1. 2. 3. Personal Tithes quid and where due 243. Piggs vide Calves Pluralities quid 19. Canons against them 19. the mischief of them 20. acceptance of a second Living makes the first void 21. as to the Patron without sentence ibid. but not as to lapse ibid. Act of Parliament against it 22. which shall be said a Living of 8 pounds per annum c. 23. a Parson not qualified may have a plurality 24. who are qualified by service to have them 24. who by birth 25. who by degree ibid. he that takes a plurality must have a Testimonial 26. how to proceed in the taking of them 27. the first void by institution into the second 27. which Chaplains where above the number is retained 28. the Master dies before preferment 28. the Mistress Marries before 29. becomes a Widow again ibid. Marries under her degree ibid. what Livings and preferments do not make a plurality 22. none has a double capacity to qualifie cap. 30. Chaplains retain per filium in vita prioris 30. Master discharges Chaplain after he is preferred 30. retains a greater number than he ought which shall be qualified 30. is instituted before a dispensation 31. the King cannot dispence with this Law 31. inducted in a second Living and does not read the 39. Articles and 31. a Clerk qualified is made a Bishop his qualification ceases 31. plurality by union 32. a Vicar is made Parson of the same Church 32. two Rectories in one Church but one Curate 32. the effect of taking the power of dispensation from the Pope and putting it in the Nobility 33. the prejudice introduced 19. how many qualifications there are in England 33. in Margin of what Livings at first ibid. Pope several Acts of Parliament to restrain his usurpations 21. and 22. a damnable Custom alledged to be in his Court of Rome to exact undue Fees 22. Priests who may be and at what age 64. Prescription and modus decimandi qd and why Ecclesiastical Courts reject customs and modus decimandi 203. how they differ from customs and justified by reason 204. confirmed by Parliament 204. who may prescribe in non decimando 206. who in modo decimandi 208. a modus to do two things and one fails 209. for Houses 209. which Prescriptions de modo decimandi are good 210. for Wool and Lamb ibid. for Corn 211. for Wood 212. for Calves and Milk ibid. Eggs ibid. for Lands in lieu of Tithes 213. for Head lands Balks c. 213. Bees 214. Herbage ibid. for fewel 215. for Parks ibid. to the Vicar for Parsons Tithes 216. how it may be lost 218. from what time 232 c. Presentation the form thereof 4. how to proceed upon it 5. what time the Patron has to present 8. and 9. where his Clerk is refused for just cause ibid. Priviledges what the Clergy have at this day in England may not be compelled to serve temporal Offices 129. 133. not to appear at the Sheriffs turn 132. not to be arrested in what cases upon a Statute 131. not to be disturbed 130. pay no toll 132. nor pontage murage c. ibid. sue in the Spiritual Court for battery 133. Collector of Tenthes may not disturb them 133. in criminal causes 133. freed from purveyance 134. amerced for their Church livings no execution on the Goods of the Church ibid. confirmed by several Acts of Parliament 135. Procurations qd where due and how 201. Prohibitions granted sur modus decimandi 279. to try the bounds 279. for Monastery Lands ibid. quia suit for Tithes of things not Tithable 28. quia matter triable at Law ibid. because they proceed against Law or reason 280 must present a Copy of the libel 281. where the suggestion must be drawn up 281. where peremtory 282. how to be prosecuted and defended 283. where grantable after Consultation 284 286. Consultation special ibid. must prove the suggestion within six months 281. how they must be accompted 285. the benefit and damage by them 287. R. Real Composition qd and the effect 226. Recovery in what Courts antiently 263. where the Spiritual Court may determine the right of Tithes 264. and where not
266. in what cases the Temporal Courts may 278. and where not 265. the Spiritual Jurisdiction confirmed by Acts of Parliament 267 268 276. the remedy where the Spiritual Court is not obeyed before Sentence 269. where after Sentence 271. 2 E. 6. extends only to predial Tithes 275. Residence jure divino 20.68 non residence of 700 years not dispensed with in the Western Church 68. an Act of Parliament against it 69. the end of that Law 70. who may be non-resident 71. a Pluralist Master dyes he may not be non resident 72. Bishop how to be compelled to residence 73. where it shall avoid the Parsons Lease 99. where he may demise and be non resident 100. the penalty for non-residence and how to be recovered 102. S. Seeds fruit mast bees how to be Tithed 177. Scire facias in what cases the right of Tithes is determinable therein how taken away 291. Simony qd 35. Canons against 36. the little effect of them and the reason 37. distinction inter Simoniace Simoniacus ibid. Act of Parliament against 38. the Penalty of the corrupt Patron 41. where he shall lose his Presentment 42. where the Clerk not privy shall be disabled 42. what Contracts shall amount to Simony 45. bonds for resignation 47. examinable in the Spiritual Court 56. c. advise against such bonds 51. what covenants and agreements amount to Simony 51. who may take advantage of it 53. in giving above the Fees for Institution 55. for resignations and exchanges 56. by corrupt giving Orders or License to preach 57. how the forfeitures are to be recovered 58. Pardon inde qd valet 54. Synodals what and where due and to whom 202. T. Tenths what where and to whom due 200. and what remedy for the Successor for arrears incurred in the time of his Predecessor 207. Tithes qd and quotuplex 141 c. Majores qd 144. Minores qd ibid. quo jure debito 145. to whom due 146. the parochial right when and how it commenced 147. who is capable of them in pernancy 149. due to the Rector prima facie 150. extra-parochial to whom due 151. Portions in another Parish 151. to whom due in particular cases 152. in the vacation 153. if Vicars and Parsons shall pay to each other 153. may belong to a Chappel 153. of what things due 154. of what things not due 184. what priviledg in the Lands where c. 191. V. Voidance when a Church shall be said void by taking or giving above the usual Fees for admittance 55. W. Wood Canon for it 157. complaints against the Canons in Parliament ibid. limited by Statute 158. declaration of the Common Law ibid. questioned if an Act and answered 159. Silva caedua qd 160. what shall be said great Wood 160. of what Tithe shall be paid 161. Nurseries ibid. Toppings ibid. 162. Bark ibid. Dotards ibid. great and small Wood mixed 163. by whom to be paid ibid. Prescription in not Tithing where good ibid. how to be paid 164. THE Parson's COUNSELLOR CHAP. I. The First Chapter shews Who may or may not be a Parson Vicar c. HAVING taken upon me to shew how to make a compleat Parson Vicar c. Who may be a Parson or Vicar It will be necessary in the first place to shew who is capable of being so And in the first place He that is to be a Parson must regularly be of free Condition competently learned skilled in the Language the People speak or understand where he is to be Parson Vicar c. Next he must be twenty four years of Age conformable to the Government and Doctrine of the Church of England and not criminous outlawed excommunicate 5 H. 7.20 a. Co. 5.58 aâ— Lindwood c. â—os qui de non c. Ibid. 14 H. 7.28 b. Jew or miscreant and must be free from Symony And a man that is a Bastard is not capable to be a Priest nor by Consequence a Parson but in this Case Dispensations are frequently granted So a man that is not of free Condition but a Villain or a Miscreant that believes not the Truth an Infidel that resists the Truth a Jew Schismatick or Heretick that do not believe aright cannot be Parsons c. So if a man be criminous Dyer 293. p 3. 38 E. 3.2 a. that is guilty of murder manslaughter perjury forgery or other foul Crime that is malum in se cap. Imprimis infra Lindwood is not capable to be a Priest Parson Vicar c. And the Bishop may refuse to accept such Parson if presented to a Living and it matters not whether the Party be convict of this Crime or not So that the Ordinary have certain knowledg of the truth thereof But for a man to be guilty of haunting of Ale-houses or Taverns Co. 5.58 a⸪ or a player at unlawful Games which are only malum prohibitum and not malum in se it is no Impediment to his being a Parson Vicar c. So if a Man be illiterate Dyer 293. b. p. 1 2 3. 254. b. p. 2. Albany vers Evesque Lich. M. 26 27 Eliz. C B. 10.20 â—3 Lucas vers Evesque Bath p. 3. El. C. B. per Bendloes Stat. 14 Car. 2. cap. 14. and cannot speak a Language his Parishioners understand he ought not to be admitted to be Parson of such Parish but may be rejected by the Bishop c. For it is all one not to be able to instruct his Parishioners in the truth by reason of Ignorance as not to be understood for when the blind leads the blind both fall into the ditch At this day no man may be a Parson before he be a Priest in Orders nor can he * Stat. 13. El. cap. 12. be a Priest before he is twenty four years of age and so by consequence no man can be a Parson regularly till he be past twenty four years of Age. And for this reason a Bishop c. 1 Leonard 130. may refuse a Clerk because he is not in orders but he cannot refuse him because he wants a Testimonial Neither can any man be Parson of that Church Vide postea cap. 5. for the obtaining whereof he hath been guilty of Symony as shall be shewed more at large in the Chapter of Symony And regularly all things that are causes of Deprivation are just causes to make a man incapable of a Living and for which the Bishop c. may refuse to admit such Clerk And note Lindwood c. cum à jure inhibitum c. the Son is made incapable to succeed his Father by several Canons CHAP. II. The Second Chapter shews how one that is fitly qualified to be a Parson ought to behave himself in obtaining a Living A Person so qualified as the Law requires must without any corrupt or Symoniacal Contract obtain a Presentation from the right and undoubted Patron of the Church whereof he designs to be Parson which may be in this Form Reverendo in
full number of Chaplains and after one or more above his number that in that case the Supernumerary Chaplains that were retained after such Lord or other Person had retained his full number allowed by the Statute are not qualified by this Law to have pluralities of Livings although the supernumerary Chaplains be preferred before the other that were first retained but if a Chaplain qualified within this Law be legally inducted into a second Living with a dispensation as he ought Dyer 312. p. 88. although his Master be attainted degraded or removed from his Office yet he shall retain his Plurality during his life But if one be retained Chaplain to any Lord or other Person The Master dyes c. before preserment Co. 4 17 b. whose Chaplains are qualified within this Law and his Master dies is attaint degraded or displac'd before his Chaplain be preferred to a second Living or if such Lord or other Person discharge such a Chaplain as he may in all these cases the Chaplain loses his qualification to have plurality of Livings incompatible But if a Dutchess Marchioness Co. 4.118 B. The Mrs. marries Countess or Baroness do retain a Chaplain and after marries this shall not take away the qualification of such a Chaplain but that he may have plurality of Livings incompatible within this Law as he might have done before And if such Dutchess c. Cc 4.119 a. retains Chaplains and after marries and after becomes a Widdow again yet the first retainer stands good and was not Countermanded by the Marriage or death of the Husband And note that there is a Proviso in this Act that though a Dutchess Marchioness Countess or Baroness do Marry a Husband under the degree of a Noble Man or Baron that yet nevertheless she may retain two Chaplains which shall be qualified within this Law And it is declared by this Act What preferments are not within this Law that Deanaries Arch Deaconrics Chancellorships Treasurerships Chaunterships or Praebendaries in any Cathedral or Collegiate Church or any Parsonage that hath a Vicar indowed or any Benefice perpetually impropriated are not to be esteemed Benefices with cure of Souls within this Act. And if any Duke Lord or other Person whose Chaplains are qualified within this Law shall have a double capacy to qualifie his Chaplains as if a Duke c. be made Lord Warden of the Cinque Ports Co. 4.118 a. or a Baron Master of the Rolls Knight of the Garter or c. in all these cases such Duke Baron c. can but qualifie his number of Chaplains according to his best qualification only And if the Eldest Son of a Duke Chapl. returned in the life of the Father Co. 4 902⸪ Marquess c. retain Chaplains in the Life time of his Father who after dies and the honour descends upon such Son yet this retainer will not qualifie his Chaplains to have pluralities within this Statute because at the time of the retainer he was not capable to qualifie them Et quod ab initio non valet tractu temporis non convalescit If a Duke Lord discharges Chaplains after they are prefer'd Co 4.90 a ⸪ Marquess c. retain his full number of Chaplains which are advanced and then discharge them yet he cannot during their Lives qualifie any other within this Statute But if a Duke A greater number of Chapl. retained together Co. 490 a⸪ Dyer 312. p. 88. Marquess c. that has power within this Act to qualifie Chaplains at one instance of time retain double his number of Chaplains or any supernumerary Chaplains in that case those only shall have the benefit of qualification that are first prefer'd Quia in equali jure melius est conditio possidentis If one that is qualified within this Statute take a second Living incompatible Co. 4 79. B. Dyer 312. p. 88. and be instituted or inducted into the same before he have obtained a dispensation the first is void though Dyer makes a quaere of it And note that it hath been resolved This Law is not dispensable Dyer 351. B⸪ Co. 4.90 B. ⸫ Dyer 377. B. Co. 5. 102. B⸫ Hob. 168. Apluralist neglects to read the 39. Art the first Living is not void Hob. 157 ⸫ that the King himself cannot dispence with this Law But if one that is not qualified within this Law to have two Livings incompatible shall obtain a second Living and be inducted into the same and after neglects to read the Articles of Religion within the time limited or doth any other Act that makes the latter void ab initio in such case the first Living shall not be void within this Law And if a Parson c. that is qualified within this Statute to have plurality of Livings incompatible be made a Bishop his qualification ceases so that after he cannot take two Benefices incompatible by force of such qualification but if he had two Livings before he was made Bishop by qualification and dispensation within this Statute he may retain them by Commendam and although he were the King's Chaplain it alters not the case for by the acceptance of a Bishoprick he ceases to be the King's Chaplain within this Law And if a Parson have one Living incompatible Parson's Law l. 2.14 15. Vniting a Living is a Plurality he cannot obtain another with Cure to be united unless he be qualified and have a Dispensation but that the first will be void Mr. Parson and Vic. of the same Church si c. Hughes in his Parsons Law puts two Cases which he is of opinion are out of danger of this Law The first is where there is a Parsonage and Vicarage indowed and the Parson without Dispensation or Qualification accepts the Vicarage and he conceives that notwithstanding that these are two several Advowsons and Benefices and that several Quare Impedits may be brought of them and that several actions are maintainable by the Parson and Vicar concerning their possessions that yet nevertheless the presenting of one person to both is no Plurality within this Statute or the Canon because the Parson and Vicar have both but one Cure of Souls besides there is a Proviso in the Act that no Parsonage with a Vicarage endowed shall be accounted a Benefice with cure of Souls within that Act. But his other Case seems more doubtful 2. Rectories in one Church and it is put where a Church has two Rectories and each has cure of Souls per se and are incompatible and one person obtains both these Livings without qualificaton or dispensation This Case he conceives to be both out of the danger of this Act and the Canon 1. Because it is not in pluribus Ecclesiis 2. When there is several Advowsons in one Church neither Parson hath the whole cure of Souls and the words of the Statute are having one Benefice with cure of Souls of the value of eight pounds takes and accepts another
benefice with cure of Souls c. But here the Church is one and the same and the cure of Souls the same and therefore as he conceives neither within the danger of the Statute or Canon but in a private report that I have this very point came in question in the latter end of the Queen's time and the Reporter says Cooper vers Beauchampe P. 37. El. C.B. that Walmesly and Beaumont were of opinion that this Case was within the Stat. but Anderson doubted and seemed to incline to the contrary Ideo quaere inde By the Resolutions of the several Cases before mentioned it is worth Observation There is now a 1000 qualififications at least in England by Service besides the Chaplains of the King Queen Princes of the blood and Dowagers and probably as many more by birth and dignities and there is about 4300 Livings in England of 10 pound per annnm in the King's books and upwards and it is not the least Livings the Pluralists catch at though at first they crept into the Church where Livings were so small they were not able to maintain a Minister and if the 41 Canon of King James was observed many mischiefs in this Case might be prevented how the Judges of the Common Law have endeavoured to advance this Law and restrain the qualifications And yet when all is done this Law produces little more effect than the transferring the power of Dispensations in this case from the Pope and scattering it amongst the Nobility and others and how many Pluralists is there in England that hardly see either of their Livings in a year so that generally the best Livings in the Kingdom are served with poor Curates and no hospitality kept A thing worth the Consideration of a Parliament CHAP. V. The fifth Chapter shews what Symony is and who shall be said to be guilty of it and what are the dangers ensuing thereupon HAving shewed my Clerk how to obtain a Benefice and likewise those which are qualified how to take a second Living It rests that I should shew them what is to be done after Induction to confirm them in their benefices But because Symony is not only scandalous to the Clerk that is guilty of it but also very dangerous and I told my Clerk in the second Chapter that he must obtain his Presentation without any corrupt or Symoniacal Contract I thought it fit by the way to let my Clerk know not only what Symony is but likewise the danger that attends it What Symony is Papormit c. Nemo extra eo c. Tho. Aq. 2o 2ae q. 100. Art 1. Cro. El. 789. Tho. Aq. 2o 2ae q. 100 Art 4o Symony by the Canonist and School-men is defined to be Studiosa voluntas emendi vel vendendi aliquid spirituale aut spirituali annexum epere subsecuto And Thomas Aquinà s says Quod Simonia dioi videtur à Simone Mago qui donum Spiritus sancti emere voluit ut ex venditione Signorum quae per eum fierent multiplicatam pecuniam lueraretur sic illi qui spiritualia vendunt conformantur Simoni Mago in intentione in actu vero illi qui emere volunt Illi autem qui vendunt in aciu imitantur Giezi discipulum Helisaei de quo legitur 4 Reg. cap. 5. quod accepit pecuniam à leproso mundato unde venditores Spiritualium possunt dici non solum Simonaici sed etiam Giezitae And St. Gregory says In Registro hab 1. q. 10. Canon Quicunque Quicunque sacros ordines vendunt aut emunt Sacerdotes esse non possunt ut scriptum est Anathema danti Anathema accipienti haec est Simonaica haeresis Quomodo ergo si anathematicati sunt sancii non sunt sanctificare alios possunt Et cum in Christi corpore non sunt quomodo Christi corpus tradere vel accipere possunt qui maledicius benedicere quomodo potest And the same Holy Father farther says Ibid. Canon Presbyter Si Presbyter per pecuniam Ecclesiam obtinuerit non solum Ecclesiam privetur sed etiam Sacerdotii honore spolietur And it appears clearly that the very intention to buy Spiritual gifts or preferments carries with it the guilt of Simony as well as the act it self And therefore the Holy Apostle said to Simon Magus Act. Apost c. 8. v. Cor enim tuum non est rectum coram Deo poenitentiam itaque age ab hac nequitiatua roga Deum si forte remittatur tibi haec cogitatio cordis tui But this is in foro conscientiae only and not punishable by any humane Laws unless it proceed to the Act. Symony by the Canonist is distinguished into Simoniace Simoniacus Division Canons against Symony The first is where the Clerk comes in by Symony whereunto he is not party or privy Simonaicus is he which obtains a spiritual preferment by a corrupt and Symoniacal Contract to which he is party or privy and consenting Against this Corruption in the Church many Canons have been made amongst which I shall instance only two and those provincial ones of our own Nation The first was made in the year of our Lord 1229 in the time of Richard Wethershead Archbishop of Canterbury and is as follows Lindwood c. Nalâ—i liceat Ecclesiam c. Nulli liceat Ecclesiam nomine dotalitatis ad aliquem transferre vel pro praesentatione alicujus personae pecuniam vel aliquid aliud emolumentum pacio interveniente recipere quod si quis fecerit in jure convictus vel confessus fuerit ipsam tam Regia quam nostra freti authoritate patronatu ejusdem Ecclesiae imperpetuum privari statuimus but it was not sufficient by a Canon to deprive a man of his Freehold or inheritance be the word imperpetuum taken for life or for ever as it imports neither was this Canon ever put in execution or attempted so to be that I find The other Canon I made mention of I find amongst the Canons of Othobonus the Popes Legate here in England which is to this effect Quia plerumque evenire didicimus quod Chap. Quia plerumque cum ad vacantem Ecclesiam fuit praesentatio facienda is qui praesentandus est prius cum patrono de certa Summa de bonis Ecclesiae sibi annuatim solvenda pasciscitur sic pactus ad Ecclesiam praesentatur § Nos huic actui tam Simoniae vitium quam Ecclesiae dispendium ingerenti occurrere intendentes universas promissiones pactiones hujusmodi penitus revocamus eas imposterum fieri districtiùs inhibemus Et si factae fuerint vires aliquas decernimus non habere But this Canon was of as little effect as the other as to the making the Contracts void which were only determinable at the Common Law where this Canon could not be pleaded in Bar. I have mentioned these two Canons not for the validity or use so much as to satisfie the Reader
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
ordained or made a minister or giving any order or license to preach c. but is more severe upon the Clergy-man than the Officer for the Officer only forfeits forty shillings but the Clergy forfeits ten pounds and all the Livings he shall take within seven years are made void by this Law after Induction so that for seven years an Incapacity lyes upon the Clerk how careful ought Clergy-men to be what Fees they give for their Orders And note the manner of the penning of this paragraph that the Church shall not be void till after Induction The first Paragraph makes the presentation institution and induction and all void So that the Church in that case is never full The second Paragraph makes it void not till after the corrupt admission institution installation induction investure or placing and this not till after induction by which means the Grantee of the next avoidance that presents such Clerks cannot present again and so it is where the Patrons present by turn Co. 8 102.a⸪ the presenting such a Clerk will satisfy a turn if inducted Lastly How the forf are to be recovered observe all pecuniary forfeitures and penalties within this Statute are given to the King and Informer and are to be recovered by Bill Plaint Action of Debt or Information in any of his Majestie 's Courts of Record that is the Chauncery King's Bench Commonpleas and Exchequer at Westminster but not in any inferior Court of Record and no essoin priviledg protection or wager of Law is to be allowed but I conceive the priviledg or protection of Parliament are not intended in these general words but the common protections and priviledg of Officers and Courts Quaere Ideo quaere inde It is not proper for this discourse to examine by what Authority any thing at all is taken for giving Orders See a Canon against it and what Fâ—es shall be taken by the Clerks Lindwood c. saeva miseratis Mat. 10. v. 8. Admissions Institutions c. Since our Saviour says Gratis accepistis gratis date But he that has a mind to satisfy himself therein let him read that most excellent History of the Council of Trent Pag 492 493 494 c. which is faithfully translated by Sir Nathaniel Brent where this point is excellently discussed Pro. and Con. where I will leave my Reader and conclude this Chapter and in the next place shew my Parson Vicar c. what he is to do before at and after his Admission Institution and Induction CHAP. VI. The Sixth Chapter shews what a Clerk is to do before at and after his admission institution and induction to make him a complete Parson NO Man at this day is capable to be Parson Vicar c. Every Parson and Vicar must be a Priest before he is a Priest in Orders which he cannot be before he is four and twenty years of Age as has been said and if any Person shall be admitted instituted and inducted into any Living before he is in Holy Orders his admission institution and induction are void by the late Act of Uniformity Stat. 14. Car. 2. cap. 4. Subscription and Certificate Secondly he must make his Subscription according to the said Act and have a Certificate from the Bishop or c. under his Hand and Seal that he hath so done and then within two Months after he is inducted he must upon some Sunday or Lord's-day during Divine Service that is Read Prayers after some part of the Divine Service of the Church for that day appointed is read Read the Articles and before the whole is finished read the nine and thirty Articles of Religion in the Parish Church c. Stat. Supra into which he shall be inducted and declare his unfeigned assent and consent to all that is therein contained and he must likewise within two Months after actual possession of such Benefice c. which is intended within two Months after induction or installation c. read the Book of Common Prayer that is the whole Service of the Church appointed for that day as it is there appointed and likewise declare his assent and consent to all the matters and things therein contained in these words St. t. supra I. A. B. do declare my unfeigned assent and consent to all and every thing contained and prescribed in and by the Book intituled Declaration The Book of Common Prayer and Administration of the Sacraments and other Rites and Ceremonies of the Church according to the use of the Church of England together with the Psalter or Psalms of David pointed as they are to be sung or said in Churches and the form or manner of making Ordaining and Consecrating of Bishops Priests and Deacons And if any Parson Vicar c. fail in the doing of any of these things before-mentioned or any of these things be neglected the Church becomes void and the Clerk that makes such failure in case he shall sue for his Tithes or any other Church duty or other thing belonging to his Church if the Defendant insist upon it must prove the doing of all these things But usually the Judges in favour of the Clergy after they have been in possession of their Livings ten or twenty Years or any considerable time will presume all these things regularly done and will not put the Parsons c. to the precise proof of them And it is to be observed that the Parsons Vicars c. must upon the acceptance of every new Living or Ecclesiastical preferment within this Law repeat all these things for the performance of all these things upon the taking of one Living will not satisfy for any other I shall give my reverent Clergy Men therefore this caution Advice to the Clergy that if any of them have accepted any Ecclesiastical preferments and have negligently omitted any of these things and that thereby may be lapsed to the King that they obtain presentations from the King ad Corroborandum and that thereupon they perfect all their former neglects And for the future I advise them that they first have some credible Witnesses present when they make their Subscriptions before the Bishop and that they attest the Bishop's Certificate and that they get two Books of Articles and that when they read the thirty nine Articles they give one of those Books of Articles to some credible Parishioners to read with them and then attest the Book that they were present and heard the Clerk read the said thirty nine Articles during the time of Common Prayer and declared his unfeigned assent and consent to all the matters and things therein contained by subscribing their names thereunto and that the Clergy Man keep safely the said Book of Articles with this attestation And I advise that when he reads the Book of Common Prayer which must as above is said be read Morning and Evening in all things which is prescribed therein within two Months
could make no Lease to bind the Successor without the confirmation of the Bishop and Patron till the Stat. of 13. Eliz. which we shall speak of hereafter And note that it hath been held Co. 8 70. b. Lease for years determinable upon Lives that a Lease for ninety nine years if one two or three Lives so long live hath been held good within this Statute But this Act as appears by what hath been said conferred a new power upon single Corporations but did not in any thing restrain their antient power in making long Leases and Alienations of their very Scites Demesns c. with confirmations as aforesaid which was a great prejudice to the Church in general a means of Dilapidations and a great hindrance of hospitality and therefore In the first Year of Queen Eliz. 1 Eliz. c 19. More 107. Bishops restraned it was enacted that all Gifts Grants Feoffments Fines and other Conveyances and Estates from the first day of that present Parliament to be had made done or suffered by any Arch-Bishop or Bishop of any Honors Castles Mannors Lands Tenements or other Hereditaments being part of the possessions of his Arch-Bishoprick or Bishoprick or united appertaining or belonging to any the same Arch-Bishopricks or Bishopricks to any Person or Persons bodies politick or incorporate other than the Queens Majesty her Heirs and Successors whereby any Estate or Estates should or might pass from the said Arch-Bishops or Bishops or any of them other than for the term of twenty one years or three Lives from any such time as any such Lease Grant or assurance shall begin and whereupon the old accustomed yearly Rent or more shall be reserved and payable yearly during the said term of twenty one years or three Lives shall be utterly void and of no effect to all intents constructions and purposes any Law eustom or usage to the contrary thereof in any wise notwithstanding Note the exception 1 Jacobi c. 3. which gives or rather reserves the power to grant c. to the Queen c. was made void by a Statute made 1 Jac. And note also Leases in other Forms not void but voidable Small wood Sale vers le Evesq Lich. alios P◠31. El. ro 21 65. Co. 3.59 that though this Statute enacts that all Leases made in any other form shall be void and of none effect to all intents and purposes yet it has been adjudged that is only to be intended as against the Successors and that Leases made in other forms shall be good notwithstanding against the party himself that makes them Cro. Jac. 95. and may be affirmed by the Successor by the receipt of the Rent reserved thereupon And note 1 Eliz. A private Act. Co. 4.76 Co. 5.2 b⸫ Cro. El. 874. this is a private Act of Parliament that must in all cases be pleaded and cannot be given in evidence And note also that though this Statute do not restrain demising of any Lands not formerly demised yet it does it by implication for the accustomable Rent must be reserved and unless accustomable let there cannot be an accustomable Rent and Leases within this Statute must have all the restrictions in that of 32. H. 8. before-mentioned And it must be of things manurable Of what things such Leases may be made Co 5.3 a. as hath been said out of which a Rent may be reserved but some are of opinion that Tithes or things not manurable may be demised for twenty one years because an Action of debt will lye upon the Contract More 778. Sir Timothy Tourneur Serjeant le Roy. and so it was adjudged as a learned Serjeant at Law inform'd me in the case of the Precentor of Paul's about 17. Jacobi and that the Successor shall have an Action of debt upon this Contract by the Stat. of 21 H. 8. cap. 28. Upon this Statute and the former it hath been held 1 Inst 45. a⸫ Concurrent Leases that Arch-Bishops and Bishops may with confirmation of the Dean and Chapter make concurrent Leases that is notwithstanding there be a Lease in being for twenty one years they may make a new Lease of the same Lands to another for twenty one years from the making thereof and this being confirmed as aforesaid shall bind the Successor the other things being observed in it And Sir Edward Cook is of opinion 1 Inst 45. a⸫ that like concurrent Leases may be made by Deans Prebends c. with confirmation but some learned men are not satisfied herein because by these concurrent Leases the Successor loses his remedy for his Rent by distress during the former term and the Tenant may be insolvent as to an Action of debt The next restrictive Law is that of 13. 13 El. cap. 10. The Restrictive Law against Leases of Deans Prebends c. Eliz. whereby it is enacted That from thenceforth all Leases Gifts Grants Feoffments Conveyances or Estates to be made had done or suffered by the Masters and Fellows of any Colledge Dean and Chapter of any Cathedral or Collegiate Church Master or Guardian of any Hospital Parson Vicar or any other having a Spiritual or Ecclesiastical Living or any Houses Lands Tithes Tenements or other Hereditaments being any part of the possessions of any such Colledge c. or any wise appertaining or belonging to the same or any of them to any Person or Persons Bodies c. other than for the term of twenty one Years or three Lives from the time as any such Lease or Grant shall be made or granted whereupon the accustomed yearly Rent or more shall be reserved and payable during the said term shall be utterly void c. The penning of this Act Co. 5.14 b⸫ and that of 1 Eliz. beforementioned being in effect the same in substance the construction is the same in effect but in this Act there was no saving of Grants to the King and therefore this Act being for the publick good had restrained other Grants to him not warranted by this Stat. though 1 Jac. cap. 3. had never been made And here note Parsons and Vicars restrained by this Law that as the Parsons and Vicars had not their power any wise inlarged by the Stat. of 32 H. 8. So they had no restriction upon them till this act but from henceforth they are restrained from making any Lease or Grants other then for twenty one years or three Lives with the qualifications above mentioned in the Statutes and such Leases must be confirmed by the Patron and Ordinary because excepted in the inabling Statute of 32 H. 8. before And whereas after the making of this Statute Heads of Colledges Deans Prebends c. might have made concurrent Leases as well as Bishops might there is a Proviso in the Statute of 18 Eliz. 18 Eliz. c. 11. No concurrent Lease but within three years before the former ends That all Leases then after to be made by any the aforesaid Ecclesiastical Spiritual or
239. pl. 42 F. N. B. c. which have the inheritance in Fee-simple in them make a Lease for lives or years not warranted by the Statutes before mentioned not being absolute void by their deaths but only voidable by the entry of the Successor if the Successor accept the Rent before Entry be it for lives or years Rollsi 476. d. he affirms the lease for his Life If a Bishop make a Lease not warranted by the Statutes rendring Rent and die and his Successor appoints his Bayliff to collect his Rents of that Mannor who amongst the rest receives the Rent reserved upon this Demise and accounts to the Bishop's Successor for it this is a good Acceptance and shall bind the Bishop for his time 11 E. 3. F. Abbot 9. Dyer 139. p. 42. So if a Parson lease for life not warranted nor confirmed reserving Rent if his Successor receive Fealty of this Tenant upon this lease he has thereby affirmed the lease for his time 2 H. 4.2 a. the like it will be if the Successor bring an Action of waste But if a Bishop make a lease of Tithes or other things not manurable for life or lives Cro. Jac. 1.73 rendring Rent and dies and his Successor accepts this Rent it will not affirm the lease But whether such acceptance upon a lease for years of Tithes c. will bind the Successor Quaere I must leave it a Quaere not finding that point any where resolved I having now held the Reader long upon this subject shall now leave them and proceed to examine what Leases or Farms they may with safety take or not take By a Statute made in the twenty first year of King H. 8. Stat. 21 H. 8. cap. 13. Parsons c. must not take Farms It is amongst other things enacted That no Spiritual Person shall in his own name or in the name of any other take to farm any Mannors Lands Tenements or Hereditaments upon the penalty of ten pounds for every Month that he holds the same nor by himself nor any other shall buy Cattle Corn Lead Tynn Hydes Leather Tallow Fish Wool Wood or any manner of Victuals or Merchandizes upon pain to forfeit the treble value of things so bought But a Spiritual Parson may buy such things for his own use Where he may and if they do not fit him he may sell the same again and so where he hath not sufficient Glebe he may take grounds for the maintainance of his Family And it is further enacted by the same Statute Shall not farm anothers Parsonage c. That no spiritual Person beneficed with Cure of Souls shall farm the Parsonage or Vicarage of another to take any Rent or Profit out of such Farm upon the penalty of fourty shillings a week and ten times the value of the Rent or Profit he shall take out of such Farm And it is further enacted by the same Statute Must not keep a Tan-house or Brew-house That no spiritual Person shall have or keep by himself or any other any Tan-house or Brew-house other than for his own Family upon pain to forfeit ten pounds per mensem All which Penalties are given to the King and Informer to be recovered in any of his Majesties Courts of Record at Westminster by Action of debt Penalties how to be recovered Bill Plaint or Information wherein no essoine protection or wager of Law is to be admitted 5 Eliz. cap. 5. Where he may license the cating of flesh c. By the Stat. of 5 Eliz. there is authority given to the Bishop of the Diocess Parson Vicar or Curate of the Parish to license any sick person to eat flesh during his sickness and if his Sickness continue above eight days after the granting of such license than the same is to be registred in the Church-book c. and that license to endure during the sickness and no longer And if any Parson Penalty if needless Vicar or Curate grant any License to any person or persons other than such as evidently appears to have need thereof by reason of sickness the Parson Vicar or Curate that granted such license shall forfeit five Marks for every such License 25 H. 8. cap. and the License to be void In the 25 year of H. Sheep 8. There was a Statute made against the excessive number of sheep wherein there is a Proviso that it might be lawful to all spiritual Persons and every of them to keep such and so many sheep upon their own Lands and after such form and manner and not otherwise as they might have done before the making of the said Act. There is several Acts of Parliament for punishing incontinent Priests Incontinence which though since the blessed Reformation I do not mean the last pretended reformation but that in the time of E. 6. and Queen Elizabeth are become absolute and useless yet since I have promised them all the Statutes they may fall in the danger of these are not to be omitted but before I come to those particular Laws I will beg the Reader 's pardon for giving him a short Historical account of the Restriction of the Marriage of Priests which gave the occasion of these Laws Bellarmine in his disputations endeavours to make the single life of Priests to be Jure Divino but if not so De Clerici◠cap. yet he goes about to prove that it has been enjoyned by Canons as high as the Apostles time and to that purpose vouches the Canons of the Apostles which though they may be antient yet no rational Man that peruses them will believe they were made by the Apostles or very near their time in which I must confess I find a Canon that by implication forbids Priests to Marry but not Married Men to be Priests and 't is to this effect Canon 25. Ex his qui coelibes in clerum pervenerunt jubemus ut Lectores tantum cantores si velint nuptias contrahant Canon 5. Canons against the marriage of Priests But if he had lookt a little back in those Canons he would have found another manner of Prohibition in these words Episcopus aut Presbyter aut Diaconus uxorem suam praetextu Religionis non abjicito si abjicit se gregator à Communione si perseverat deponitor But however it cannot be denied but there were Antient Canons against the Marriage of Priests but never received or put in practice in England though practised in Italy France c. but the Priests here Married till Anselme Arch-Bishop of Canterbury a Burgundian a powerful and busie Praelate in a Synod or National Councel held at Westminster made a severe Canon against it Hollingshed 30. b. 10. but he meeting with an obstinate Clergy that were unwilling to change their Wives for Concubines to speak in the softest word were not obedient whereupon as my Author tells me he called a second Council in the ninth
I shall not therefore stuff this present Discourse with the Arguments of any side but shall leave the learned to their own Conceits it serving my purpose that they be due by any Law divine humane or Ecclesiastical My next examination shall be to whom they are due CHAP. II. The second Chapter shews to whom Tithes are due and by whom to be paid HAving shewed in the former Chapter what Tithes are To whom Tithes are due to be paid and the several kinds thereof I shall in the next place shew to whom the same are due to be paid That there were Infeudations of Tithes before the parochial Rights were settled both in this and other Countries is without dispute both here in England and in other Christian Kingdoms and Common-wealths Seldens hist decim 178 c. Tho. Aq. Sum. 20. 2ae q. 88. art 3. concluisione in which particular the curious may satisfie themselves in Mr. Selden's History of Tithes and other Authors And it is more clear that before the time that the parochial Rights of Tithes were setled that the Owners of Lands might grant their Tithes to any Ecclesiastical or Religious persons a multitude of Precedents whereof the Reader for his satisfaction may find in the Monasticon Anglicanum of Mr. Dugdale so that by this means the whole Tithes of some Parishes and divers great portions out of other Parishes were granted to Abbots Priors c. and some to the Parsons and Rectors of other Parishes which is the reason that at this day there is several portions of Tithes held from the Parish Churches by Impropriators and the Rectors of other Parish Churches When the parochial Right of Tithes was first settled When the Parochial Right of Tithes first begun there hath been as should seem a vulgar Error for 't is frequently said in our Common Law Books that before the general Council of Lateran 10 H. 7.18 a. 43 E. 3 5⸫ Doct. Stud. l. c. 55. Co. 2. 44. b. Dyer 84 c. which was held 1179. That every one was at liberty to give his Tithes to what Spiritual Ecclesiastical or religious Person he pleased but that by that Council the parochial Right of them was settled Neither was this an Error of the Common Lawyers only for Mr. Lindwood a learned Doctor of the Civil and Canon Laws that lived in the time of H. 5. about two hundred and fifty years ago tells us that Bene potuerunt Laici decimas infeudum retinere Lind wood c. locat conduct verb. portion eas alteri Ecclesiae dare ante concilium Latarenense non tamen post c. But there is no Canon in that Council to be found whereby the parochial right of Tithes was settled nor was the parochial Right of Tithes settled till the year 1200 and then not by any Canon but by a decretal Epistle of Pope Innocent the third Selden hist Decun 231. 2 Inst 641. a Brief of which Epistle here follows as I find it in Mr. Seldens History of Tithes and in Sir Edward Cooks Institutes Pervenit ad audientiam nostram Innocent 3. Epist decret l. 2. p 457. Edit colen quod multi in Diocesi tua Decimas suas integras vel duas partes ipsarum non illis Ecclesus in quarum Parochiis babitant vel ubi praedia habent à quibus Ecclesiastica percipiunt Sacramenta persolvunt sed eas aliis pro sua distribuunt voluntate Cum igitur inconveniens esse videatur a ratione dissimile ut Ecclesiae quae Spiritualia seminant metere non debeant a suis Parochianis temporalia habere Fraternitati tuae being directed to the Archbishop of Canterbury authoritate praesentium indulgemus ut liceat tibi super hoc non obstante contradictione vel appellatione cujuslibet seu consuetudine hactenus observata quod canonicum fuerit ordinare facere quod statueris per Censuram Ecclesiasticam firmiter observari Nulli ergo c. Confirmationis c. Datum Lateran 2 Nonas Julii I must acknowledg I give the Reader this a little imperfect for want of the Original and it was Sir Edward Cooks Case also for I perceive the borrowed his from Mr. Selden But some have fancied and perhaps not without reason for this seems not to be a general Decree but a particular Instruction to the Arch-bishop of Canterbury that the parochial Right of Tithes was not generally settled of long after that is by a Canon made in the Council of Lyons which was in the year of our Lord 1274. in which Council there is a Canon for the settling the parochial Right of Tithes But whether that were the Original or a Confirmation of some other Decree or Council I dare not take upon me to judge but certain it is that about this Century the parochial Right of Tithes was settled in general But though this decretal Epistle of Pope Innocent the third be not general yet it was obligatory as to the Province of Canterbury so that in that Province the parochial Right of Tithes may take its date from the time of that decretal Epistle which was as above is said in the year 1200. But after the Parochial Right of Tithes was settled it is clear that no Lay-man was capable of Tithes in pernancy but in particular Cases till the Statutes Selden hist decim 398. and in his Review 478⸫ by which the Monasteries and religious Houses were dissolved enabled them but in some special Cases Lay-men were capable of Tithes in pernancy Co. 2.44 a. Lay-men capable of Tithes in Pernancy Co. 2.45 a⸪ as in the Case of Pigot and Heron cited in the Bishop of Winchester's Case where the Case is put that the Lord of a Mannor and all those whose Estate he had in the Mannor time out of mind had paid to the Parson of D. in which Parish the Mannor lay for the time being for the maintainance of Divine Service in contentation of all Tithes arising within the said Mannor and that in consideration thereof he and all those whose Estates he had in the said Mannor by the time aforesaid had and enjoyed all the Tithes arising in the said Mannor and in this Case it was adjudged that the Lord of the Mannor might have these Tithes in pernancy and sue for the same in the Spiritual Court but a man cannot claim Tithes generally as part of or belonging to a Mannor But since the several Statutes made for the dissolution of Monasteries Lay-men capable of Tithes in Pernancy by the Statutes of the dissolution of Abbeys those Tithes which were appropriated to the religious houses so dissolved are become Lay-Fee and any Lay-man by the Laws of this Realm are capable of them in pernancy and may sue for the same in the Spiritual Courts But since the parochial Right of Tithes was settled prima facie All Tithes belong to the Rector prima facie Portions by Prescription All Tithes not appropriated belong
of several houses and le ts out part and holds any part himself 8. That if any Farmer or his Assigns shall farm all the houses c. so farmed to one or divers Tenants the Tenants shall pay Tithes according to the Rent reserved 9. That if dwelling houses shall be converted into Ware-houses or è converso yet they shall pay Tithe according to the Rate aforesaid 10. That if a Dye-house or Brew-house be let with the Implements then a third penny of the Tithes after the rate abovesaid to be abated 11. That where a mansion house with shops stables wharfs with Cranes Timber-yard or Gardens belonging to the same and occupied together shall afterwards be severed or were severed within 8 years before the Decree that then the Farmers of the shops stables c. shall pay Tithes according to the rate abovesaid 12. That these Tithes shall be paid quarterly at Easter Midsummer Michaelmas and Christmas 13. That any Housholder that holds a house of 10 s. Rent or above shall be acquit of his Offerings but his Wife Children and Servants shall pay 2 d. yearly for their four Offering days receiving at Easter 14. That if any house of 10 s. Rent or above shall be let by parcels under 10 s. Rent then the Owner if he live in any part of the house or the chief Tenant shall pay the Tithe after the rate as the same house was accustomably letten before such Division and the Sub-Tenants that hold less than 10 s. per annum without fraud or covin shall pay 2 d. yearly for their Offerings 15. That no Tithes shall be paid for any Gardens belonging to any Mansion house and which are held for pleasure but if such Garden contain half an Acre of ground or more and shall make any yearly profit by Sale then the same to be paid for according to the rate abovesaid 16. This Act is not to extend to the houses of Noblemen or Noblewomen whilst they are kept in their own hands and not lett for Rent and which formerly paid no Tithe so long as the same continue unletten nor to the Halls of any Craft or Companies so long as the same are unletten and in times past paid no Tithes 17. That Shedds Stables Cellars Timber-yards and Tenter-yards which were never parcell of or belonging to any dwelling House and which has not been used to pay Tithes shall be acquit of the payment of Tithes as hath been accustomed 18. But if by Custom any lesser rate have been paid than after the rate of two shillings and nine pence in the pound then the accustomed rate only to be paid 19. The Lord Major of the City of London by the advice of Councel is Authorized by the said Act to hear and determine all differences arising upon this Decree and give costs according to the intent thereof 20. That if the Major do not make an end of such differences within two Months after complaint or if any Person find himself agrieved by his Decree then the Lord Chancellor within three Months after complaint to him made shall make on end of the differences with costs c. 21. That if Rents fall by reason of decay or burning to less than they were accustomably letten that then the Tithes during such Term shall be paid according to the Rent reserved This is a short abstract of that great Decree which I have inserted here for the use of the Clergy of that City I shall only add some other resolutions upon this Decree and conclude this Chapter In a Case between Dr. Noy 130. Where Suits for Tithes in London shall be determined Meadhouse and Dr. Tayler it was resolved that Suits for Tithes upon this Decree should be before the Maior in writing and not by Parol 2. That a Reservation by a Leasor for life upon a Lease by him made for years shall not bind him in reversion to pay Tithes according to that rate 3. That a Rent for half a year and after for another half year is a yearly Rent within this Decree It hath been resolved Cro. El. 276. that Abbey Lands within the City of London and the liberties thereof are not freed from the payment of Tithes within the Statute of 31 H. 8. because the Statute and Decree for the payment of Tithes within the City and Liberties of London was made after the Statute of 31 H. 8. and their Priviledges are not reserved And it hath been resolved 2 Inst 660. that if any Suit be brought in the Ecclesiastical Court or any other Court than is directed by the Act a Prohibition lyes Lastly 2 Inst 690⸫ where the Decree says where no Rent is reserved by reason of any fine or income paid before hand that is put only for Example for if no Rent be reserved for this or any other cause or consideration it is within the meaning of this Clause CHAP. XXVI The Twenty Sixth Chapter shews in what Courts the Right of Tithes is determinable and how and in what manner to be recovered and in what Cases Prohibitions are usually granted and how prosecuted and defended THat Tithes were antiently determinable in the County and Hundred Courts 2 Inst 661⸫ Seld. hist decim 412⸫ Lamb. Saxon Laws 45. is asserted both by Sir Edward Coke and Mr. Selden And the same appears by the Laws of King Ethelstan long before the conquest and Mr. Selden is of opinion that the Bishops consistory here in England was not setled till the time of William the Conqueror who by his Charter commands Seld. 414. ut nullus Episcopus vel Archidiaconus de legibus Episcopalibus amplius in Hundredo placita teneant nec causam quae ad regimen animarum pertinet ad judicium secularium hominum adducant sed quicunque secundum leges Episcopales de quacunque causa vel culpa interpellatus fuerit ad locum quem ad hoc Episcopus elegerit nominaverit veniat ibique de causa sua respondeat non secundum Hundret sed secundum Canones Leges Episcopales rectum Deo Episcopo suo faciat And closes thus Hoc etiam defendo ut nullus Laicus homo de legibus quae ad Episcopum pertinent se intromittat yet notwithstanding as Mr. Selden observes Seld. 414. c. the Jurisdiction of Tithes was not so settled in the Bishop and Ecclesiastical Courts but there were Suits for Tithes as well in the Temporal as Ecclesiastical Courts whereof he gives some Instances And amongst the Laws of King H. Leg. H. 1. c. 11. Lamb. 182. 1. I find this Clause Si quis rectam decimam superteneat vadat praepositus Regis Episcopi terrae domini cum presbytero ingratis auferant Ecclesiae eui pertinebit reddant novam paertem relinquant ei qui decimam dari noluerit But the Law hath been now long setled that the Ecclesiastical Courts have in some cases the power to determine the right of Tithes
Chapter before Cap. 16. antea 2. Bounds of the Parish Co. 7.44 b⸪ Roll 2 29â— l. c. Cro. El. 228⸪ If the Bounds of a Parish come in dispute whether the place where the Tithes arise be in this or that Parish this is a matter tryable by Jury and therefore upon the suggestion of this matter a Prohibition will be granted 3. Monastery Lands discharged of Tithes Co. Ent 450. C. 453. d. Porter vers Rechester m. 6. Jac. C.B. If Lands be pretended to be discharged of Tiches by the Statute of 31 H. 8. or any other Statute a Prohibition lyes because it properly belongs to the Judges of the Common Law to expound all Statutes c. so if the suggestion be grounded upon the Stat. of 2 E. 6. for barren grounds c. 4. Roll 2.307 v. 13. Suits for things not Tithable If one sues in the spiritual Courts for the Tithes of things not Tithable by the Common Law for which see cap. 12. before or for the Tithes of great Woods above twenty years growth it is a ground for a Prohibition 5. Roll 2.286 f. 4. For matters determinable at Common Law If a Suit be brought in the Spiritual Court for the taking and carrying away of Tithes after the Tithes are set forth and divided from the nine parts by the Parishioner unless the Suit be between two Ecclesiastical Persons in their proper Rights a Prohibition lyes because 't is matter triable at Common Law 6. Cro. El. 228.642 Rolls 2.302 q. 19. 23 24. v. 16. For irregular Proceeding of the Spiritual Courts If the Spiritual Court will not admit a Legal defence as a Release an accord with satisfaction an award c. or if the Spiritual Judge refuse to admit the Defendant to traverse the Plaintiffs Title that he is not Parson Vicar c. a Prohibition will be granted but if the Defendant in the Spiritual Court alledg such matter against the Plaintiff there which is properly triable in that Court as Simony c. in such Case no Prohibition will be granted 7. Cro. El. 666. Roll 2.300 q. 6 8 9.301 q. 〈◊〉 15. 〈…〉 proof 〈◊〉 witness If the Spiritual Court shall disallow the proof of the setting forth of the Tithes by one witness Prohibitions have been granted Contra Co. 12 65⸪ Ideo quaere There are many more Cases wherein Prohibitions have been granted but these are the most frequent and may serve for a taste And indeed Prohibitions are granted in all Cases where they exceed their Jurisdiction By the Statute of 2 E. 6. It is enacted 2 E. 6. cap. 13. Must produce a Copy of the Libel that no Prohibition shall be granted in matters of Tithes in any of the Kings Courts unless the Party that requires the same bring and deliver to some of the Court where he prays such Prohibition a true Copy of the Libel subscribed by the hand of the Party and the suggestion underwritten and that if he do not prove that suggestion by two honest substantial witnesses in the same Court within six Months after the Prohibition granted and awarded then the Party delayed shall have a Consultation without delay Must prove the Suggestion within six Months and double Costs to be assessed by the Court whâ—re the Consultation is so granted to be recovered in an Action of Debt c. wherein no essoine c. shall be allowed This clause of this Statute seems to give the Parson Vicar c. Observations upon this Clause Hoskins vers Stroade T. 5. Car. 10. 988 B. R. Cockeram vers Davyes Hill 22. Jac. Pop. 159. Jones 231. Cro. Car. 308. a double remedy where the suggestion is not proved within six Months that is a consultation and secondly double costs but in both these they are in some measure frustrated in their expectations for as to the first after such consultation a new prohibition may be obtained and besides there are several cases wherein the party cannot or needs not prove his succession notwithstanding this Statute 2 Inst 662. as where the suggestion is in the negative which regularly cannot be proved secondly if the suggestion be grounded upon any matter of Law as in case the Suit be for things not Tithable great Wood things ferae naturae 2 Inst 662⸪ c. this appearing in the libel a prohibition lies and there needs no proof of the suggestion To the second here is double costs to be awarded for want of proving the suggestion and no execution given but an Action of debt to recover it which is but a bad remedy in this case when the party shall only recover the costs and have no costs allowed him in the second Suit So upon the whole matter here 's a plausible clause in an Act of Parliament and little benefit by it It is to be observed that some prohibitions are in themselves peremptory In what Case Prohibitions are Peremptory in themselves as where there is a Suit in the Spiritual Court for things not Tithable and appearing so in the Libel in which cases a consultation shall never be granted and so it is if the Suit be for carrying away Tithes after they are set forth unless it be between Clergy Men in their own rights and so it is where the matter is determinable at Common Law and the same appearing in the Libel But where a modus decimandi Where ex post facto a Custom of not Tithing a priviledg within the Statute of 31 H. 8. for Abbey Lands and in such other cases where the suggestion is grounded upon matter of fact which is doubtful to the Court those prohibitions are not peren ptory till the matter of fact be tried and found true by verdict The manner of proceeding in the obtaining How to prosecute and defend Prohibitions prosecuting and defending of prohibitions is in this manner The party that is sued in the Spiritual Court and desires a prohibition moves the Court and for the most part makes his suggestion ore tenus at Bar if the suggestion be such upon which a prohibition cannot be denied the Court usually gives rule that the party shall at a certain day come to shew cause why a prohibition should not be granted and that in the interim proceedings in the Spiritual Court should be staid upon serving this rule in due time and oath made of it if the Plaintiff in the Spiritual Court do not appear at the day and shew good cause to the contrary the prohibition is awarded and the rule made peremptory but if the Court be doubtful whether the matter be sufficient to ground a prohibition or no then or at the prayer of the Defendant the Court will order the Plaintiff to draw up his suggestion into form and then the Court will consider of the matter or the Defendant may demur to it and the matter argued by learned Counsel and then the Court as they see cause will either award
the prohibition or discharge the rule But if the matter suggested be a good ground for a prohibition but is in it self false or doubtful the Defendant in the prohibition may demand a declaration of the Plaintiffs Attorny which is grounded upon a supposed attachment for not obeying the prohibition to which the Defendant may plead as Councel shall advise him and Traverse and put in issue the matter of the said suggestion or such other matter as Councel shall advise which is to be tryed by a Jury of the Country if it pass with the Plaintiff then is the prohibition become peremptory but if the Verdict pass for the Defendant regularly a consultation is awarded that is a Writ directed to the Judg of the Spiritual Court authorising him to proceed notwithstanding the prohibition Now by a Statute made in the 50 E. Stat. 50 E. 3. cap. 4. Where a Prohibition was be had after Consultation 3. it is enacted That where a consultation is once duly granted upon a prohibition made to the Judg of Holy Church that the same Judg may proceed in the Cause by virtue of the same consultation notwithstanding any other prohibition thereupon to be delivered provided always that the matter in the Libel of the said Cause be not ingrossed enlarged otherwise changed But this Statute has been several times held to extend to such Causes only where consultations are judicially granted upon examination of the Cause Jones 231. Cro. Car. 208. Poph. 159 c. and not where they pass of course as for want of proof of a suggestion or upon non suit for want of prosecution or such like Sometimes the Court grants a consultation sub modo Co. 5.68 a⸫ Co. 12. Rep. 44⸫ Consultations sub modo as where the matter of the Libel is in the disjunctive and as to one part the Court has Jurisdiction and to the other not there the Court may grant a consultation as to that part that the Spiritual Court has Jurisdiction of and let the prohibition stand as to the other Or a consultation may be granted Sommers vers Sir Rich. Bulkeley T. 32 El. B.R. Poph. 58. Hob. 179. How the sin Months to prove a Suggestion is to be accounted Co 5.68 a⸫ Where no Consultation shall be granted upon a Verdict for the Defendant Hob 300⸪ so that the Spiritual Court allow such plea or such proof Note that the six Months for the proof of the suggestion is according to the Kalender and not twenty eight days to the Month. And note in the cases before put the prohibition shall be general and the consultation special quoad c. And it is taken for a rule in Sir Henry Hobarts reports that if a prohibition be faulty yet the Defendant shall never have a consultation if it appear to the Court that the suit in the Ecclesiastical Court was not well grounded And therefore where one sued for the Tithe Corn of sixty Acres of Land Dyer 171. p. 5 6. and the Defendant suggested it was barren Ground and paid no Tithe and prayd and had a prohibition and the Jury found that thirty Acres of it were so and that the other thirty were barren but had paid Tithe Wool and Lamb and a consultation denied because it appeared the Plaintiff had no cause to sue for Tithe Corn. So in a prohibition it was suggested More 911 Austen vers Pigot Cro. El. 736. that the Person had twenty Acres of Land and ten Acres of Wood in discharge of all Tithes and the proof was that he had twenty Acres of Land only and a consultation denied because it appeared he had no cause of suit Regularly a prohibition ought not to be granted after sentence Prohibition after Sentence Hob. 97. Noy 70. Winch 8. Cro. El 595. unless it appear the sentence were obtained in the vacation or by surprise so that the party had not time to pray it sooner or upon matter arising after the sentence Hob. 67⸫ and the granting or not granting rests much in the discretion of the Court. And so sometimes upon new matter arising after a consultation a prohibition may be granted After Consultation notwithstanding the aforesaid Statute of 50 E. 3. as where the Spiritual Court after consultation proceeds to try matter determinable only at Law Hob. 286⸪ or if after a consultation the Spiritual Court will make an unjust decree as to award treble damages Hughes 245. Hill 11. Jac. C.B. Baldum vers Geery and so in all cases if the Spiritual Judg will proceed illegally and against the Common Law after consultation a new prohibition may thereupon be obtained but not upon any matter alledged in the Libel Prohibitions of themselves are excellent things The virtue and vices of Prohibitions where they are used upon just legal and true grounds and have often avoided the usurpations of the Popes and Spiritual Courts but by the corruption of these later times they are grown very grievous to the Clergy being too oft granted upon feigned and untrue suggestions which it is impossible the Judges should foresee without the Spirit of Prophecy And I think I may presume to say that where one was granted before Queen Elizabeths time there have been a hundred granted in this last Age and they are a very great delay and charge to the Clergy and it were well in my poor Judgment if the Reverend Judges would think of some way to restrain them or to make them pay well for their delay by making the Plaintiff enter into recognizance to pay such costs as the Court out of which they issue should award in case they should not prove their suggestion in convenient time or some such other course as they in their great wisdom shall think just and meet And so having done with the first manner of determining the right of Tithes at the Common Law I shall proceed to the second which is by Writ of Right of Advowson to which likewise belongs the Writ of Judicavit which in it self is no other but a meer prohibition to the Ecclesiastical Judg and first of the Judicavit There have been some opinions that the Writ of Judicavit is grounded upon the Statute of Circumspecte Agatis Judicavit at Common Law and Articuli Cleri cap. 2. But it is very clear this Writ lay at Common Law and it appears in our Books that it was the opinion of some learned Judges that it lay in all cases where the right of Patronage might come in dispute 38 H 6.20 a. per mode 4 E. 3.27 b. per Markham 2 Inst 364. Lay for any Tithes Bracton l. 5. c. 4.402 b⸪ and of this opinion Sir Edward Coke seems to be And Bracton a Learned Judg who wrote in the time of H. 3. hath the very Writ in his Book which was long before the Statutes abovementioned and he fays that this Writ lies si contentio fuerit inter Rectores de aliquibus decimis quae
estimari possunt usque ad quartam quintam vel sextam partem advocationis Et ultra quam partem non extenditur prohibitio For a Sixth Part. prout sibi videtur But whatsoever the Common Law was it is now setled by the Statute of Circumspecte Agatis and Articuli Cleri cap. 2. That unless at least the Tithes in demand be of the fourth part of the value of the Church this Writ lyeth not the Statute of Articuli Cleri cap. 2. is Articuli Cleri c. 2. si sit contentio de jure decimarum originem habens de jure patronatus earundem decimarum quantitas ascendat ad quartam partem bonorum Ecclesiae locum habeat Regia prohibitio that is to say a Writ of Judicavit And this Writ lies as hath been said where one Parson demands Tithes against another Parson to the fourth part of the value of the Church or more 2 Inst 491 ◠Where the Judicavit lyes which come into their Churches by several Patrons for if the Incumbents come in both by one Patron the right of the Advowson cannot come in question and by consequence this Writ lies not And it is to be observed that this Writ doth not lye before Libel F. N. B. 45. b. c. 12 E. 4.13 When. nor after definitive sentence for the party that prays this Writ must shew a Copy of the Libel in the Court of Chancery before he can have it And though the Law be restrained at this day to a fourth part of the value of the Church 2 Inst 3.64 .. The Form of the Writ not altered by the Statutes where before it was at large Yet the form of the Writ remains and if the thing in demand be under the fourth part of the value it must be shewed in pleading by the other side And this Writ lyes as well for offerings F. N. B. 45. b. Lyes of Offerings as for Tithes When such Writ is sued and served and the proceeding in the Spiritual Court stopt then the Plaintiff there is to sue his Writ of right of Advowson of such a portion of Tithes as the case requires and this is given by the Statute of West 2. cap. Westm 2. c. 5. 5. in these words Et cum per breve de Judicavit impeditur Rector alicujus Ecclesiae ad petendas decimas invicina parochia habeat patronus Rectorisic impedito breve ad petendam advocationem decimarum petitarum but this must be intended where the Patron has the Fee-simple of the Advowson And the Judicavit is to be brought in the name of the Patron and his Clerk against the other Incumbent that sues in the Ecclesiastical Court and his Patron By whom F.N.B. 45. b. But where the same Person is Patron and Incumbent su solem 12 E. 4 13. b. 7. but the Writ of right of Advowson is to be sued by the one Patron against the other and the Patron demandant shall alledg examples taken by his Incumbent of great and small Tithes But if the Patron against whom the Judicavit is sued F.N.B. 30. b. The relief of Tenant in tail Purveyance c. 2 Inst 364⸪ be but Tenant in Tail Tenant for Life or Years then he cannot maintain a Writ of right but must demand and appear to a Declaration upon an attachment and plead his Title which must be proceeded in as in other prohibitions and when the Title of the Patronage is determined at Common Law then the cause must be remitted to the Ecclesiastical Court where Sentence must be given according as the Law has determined the Right and this appears by the Form of the Judicavit The Proceeding remitted which is special Vobis praecipimus ne placitum illud teneatis Regist 36. a⸫ 35. b⸪ donec discussum fuerit in Curia nostra ad quem illorum pertineat ejusdem Ecclesiae advocatio And there is a note in the Register that this Writ lyes of a Vicarage Prebend aliis similibus as well as of a Rectory and the Form of the Writ is thus Praecipe A. quod reddat B. advocationem decimarum quartae partis vel medietatis Ecclesiae F.N.B. 30. E. c. But these Writs as well as other real Actions are grown obsolete and seldom put in practice and therefore thus much shall suffice of the nature and proceeding in them The third manner of proceeding for the determining the Right of Tithes at Common Law was by Scire facias Scire facia◠18 E. 3. c 7. which was grounded either upon Letters Patents Fines or other Judicial Records Seldens hist decim 439. c. Co. Inst 2.640 2 Inst 640 c. Writs mandatory of which Mr. Selden instances several Presidents but this manner of Trial being taken away by the Stat. of 18 E. 3. c. 7. I shall say no more of it The fourth sort of determining the Right of Tithes at Common Law mentioned by Mr. Selden is Writs Mandatory commanding the payment thereof whereof he gives some few Instances but these having never been frequent and for long time discontinued and grown out of use I will not trouble the Reader with them but refer the curious Reader to Mr. Selden 444. c. Seldens History of Tithes and proceed to the fifth manner of determining the Right of Tithes at the Common Law which is grounded upon the late Statutes For the Statute of 27 H. 8. there hath been sufficient said already for that of 32 H. 8. that concerns the Temporal Jurisdiction I shall leave till the last and proceed to shew what Authority is given to the Temporal Courts by the Statute of 2 E. 6. cap. 13. being the first Law that ever gave the Temporal Courts Jurisdiction for the Parson against the Parishioners for Subtraction of Tithes in which there is a Clause to this effect 2 E. 6. c. 13. And it is enacted by that Statute after it has confirmed the former Statutes of 27 H. Treble Value 8. c. 20. and 32 H. 8. c. 7. That every of the Kings Subjects should from thenceforth truly and justly without fraud or guile set out yield and pay all manner of their predial Tithes in their proper kinds as they arise and happen in such manner and form as hath been of Right yielded and paid within forty years next before c. or of Right or Custom ought to have been paid and that no person thenceforth should take or carry away such or like Tithes which had been yielded or paid within the said forty years or of right ought to have been paid in the place or places Tithable of the same before he hath justly divided or set forth for the Tithes thereof the tenth part of the same or otherwise agreed for the same Tithes with the Parson c. under the pain of the forfeiture of the treble value of the Tithes so taken and carried away This Clause being compared with the former Clause
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
Cures a Duty Incumbent upon every one that hath the cure of Souls in the Church of Christ Page 217. in the English Translation for as Padre Paulo in his most excellent History of the Council of Trent observes that in the first 700 years after Christ Non-Residence when it came into the Church there was not any such thing known in the Western Church that any man should have an Office or Title in the Church and not do the duty and many Canons and Decrees have been made against non-Residence And in the Council of Trent it was held by much the greater and better number of the Prelates and Fathers in that Council The same hist p. 217. c. 486 c. 509 c. 496⸪ Residence Jure divino that Residence was Jure divino and undoubtedly had been so decreed if the Pope had not used all his old stratagems against it but whilst the Pope had power to dispense with residence all the Canons and Decrees of that Church were of little greater effect than to fill his Coffers with money for in this Kingdom how many Bishopricks Abbies Priories c. were enjoyed I mean the profits of them by Forraigners that never saw them or took any care of their duties I should be glad it were much better now But the Parliament of England which has ever been the best Guardian of the Church made bold with his Holiness and in 21 year of King H. 8. made an Act of Parliament to this effect That as well every Spiritual Person then being promoted to any Arch-deaconry 21 H. 8. cap. 13. Act against non-Residence Deanry or Dignity in any Monastery or Cathedral or other Church conventual or Collegiate or being benefieed with any Parsonage or Vicarage as all and every spiritual Persons which then after should be promoted to any of the said Dignities or Benefices with any Parsonage or Vicarage from the Feast of St. Michael then next following should be personally resident and abiding in at or upon his said Dignity Prebend or Benefice or one of them at the least and that if any such person wilfully absented himself from his said Benefice c. by the space of a Month at one time or two Months at several times in any one year to be accounted at several times that such Person so absenting should forfeit ten pounds for every such default the one half to the King the other half to the Informer to be recovered as is expressed in the Act. And by the same Act there is a Proviso worth mentioning though now out of date to this effect That if any Person should procure any Dispensation from Rome or elsewhere to be non-resident the Party guilty should forfeit twenty pounds By this and other Statutes mentioned in this book it is evident that the Parliaments of England even when the Pope was in full power often made bold with his Holiness to correct his and his Court's corruption Certainly this was an excellent Law if there had been no more in it but the dispensing with such persons as by the same Law are qualified to have two Livings and the persons capable to qualifie Chaplains to have pluralities had not been grown so numerous that there is but few of the best Livings but they are held by Pluralists and they either by colour of attending their Lords their Deanries or Prebends find an excuse to be non-Resident which has made this Law of little effect The ends of this Law To do their duties This good Law principally aimed at three ends or effects 1. That every Clergy-man might attend his duty in reading the publick prayers of the Church administring the Sacraments preaching inspecting the behaviour of his flock and performing all sacred and divine Offices like a good and faithful Shepherd and I do wonder with what Conscience any Clergy-man can expect his dues from his Parishioner that does not perform his duty in the first place 2. The second end of this good Law to avoid Dilapidations is to avoid Dilapidations in the Buildings belonging to their Livings for you shall seldom see a Non-resident but he is also a Dilapidator and 't is no wonder that he that neglects the Flock le ts the Sheepfold go to ruine 3. To maintain hospitality Stat. 15. B. 2. cap. 6. and 4 H. 4 cap. 12. The third end of this good Law was to maintain hospitality and I would wish every Clergy-Man to remember that the poor have a share in the Tithes with him And to this end the Statute enjoyns the Clergy-man to be resident in and upon his Living that is his Parsonage or Vicarage House if he have any and not at any other House in the Parish Co. 6 21.b⸪ but Imprisonment without fraud or removing for health without fraud or not having a House upon his glebe excuses his residence for the time for the words of the Statute are That he that wilfully absents himself So if any Parson Vicar c. shall be in the King's service beyond Sea or in any Pilgrimage or shall without fraud abide in any University within this Realm to study Who may be non-Residents or is a Chaplain qualified within this Stat. to have Plurality of Benefices 25 H. 8. cap. 16. or the Chaplains of any of the Judges of the King's Bench or Common Pleas Chancellor or chief Baron of the Exchequer of the King's Attorney and Solicitor and the Chaplains of the Chancellor of the Dutchy of Lancaster 33 H. 8. cap. 28. of the Augmentations First-fruit and Tenths of the Master of the Wards the Surveyer general of the Treasurer of the Chamber and Augmentations and Groome of the Stool whilst such Chaplains abide and are attendant in the Households of their Masters and the Master of the Rolls 21 H. 8. cap. 13. the Dean of the Archer and the Chancellor and Commissaries of Arch-Bishops and Bishops and the twelve Masters of the Chancery so long as they shall continue in their places may be non-resident but the Chaplains of the Chancellor of the Dutchy Augmentations 33 H. 8. cap. 28. First-fruits Master of the Wards Surveyer General Treasurer of the Chamber and Augmentations and Groom of the Stool 9 E. 2. cap. 8. are to be resident twice in a year at least eight days at each time And the King may give License to any of his own Chaplains to be non-resident 21 H. 8. cap. 13. And any Ecclesiastical Person to attend any Suit in the Chancery or Star-Chamber without fraud may be non-resident for so long time c. Masters die c. Co. 4.119 a⸫ But if a Chaplain be qualified in respect of his Service to have a plurality and his Lord or Master die be attaint of Treason Felony or removed from his place it will not serve the Chaplain's turn to be resident upon one of his Livings without the King 's special License with a non obstante But Bishops
and Arch-Bishops are not within this Law but not exempt from this duty there being several Canons that require it Bishops residence requirable and Bishops may be compelled hereunto by Ecclesiastical censures by their Superiors and the King may compel them by seizing their temporalites a notable precedent whereof we have in the the time of H. 3. 1 Inst 25⸪ When Popery was at highest and the King not lookt upon as head of the Church yet that King sent his Writ Mandatory to the Bishop of Hereford to be attendant upon his Bishoprick otherwise he would seize of all his Temporalties And now I have done with non-residence one of the Pests of the Church I will in the next place shew what Dilapidations are and the several ways the same are punishable this being often the effect and fruit of Non-residence CHAP. VIII Shews what Dilapidation is and in what manner punishable and what remedies the Successor hath A Dilapidation is the pulling down or destroying in any manner any of the Houses or Buildings belonging to a Spiritual Living Dilapidations what or the Chauncel or suffering them to run into ruin or decay or wasting and destroying the Woods of the Church or committing or suffering any wilful waste in or upon the inheritance of the Church And certainly there can be nothing worse becoming the dignity of a Clergy-Man than non-residence and dilapidations which for the most part go hand in hand I wish our Church had not too much reason to complain of both There hath been divers Canons of the Church made against this crime as I may justly call it but as in others so in this I shall confine my self to our own Provincials and I find in a Provintial Council or Synod held under Edmund Arch-Bishop of Canterbury in the Year of our Lord 1234. which was as I take it about the 18th Year of H. 3. a Canon to this effect Si Rector alicujus Ecclesiae decedens domus Ecclesiae deliquerit dirutas Canon against Dilapidation Lindwood Chap. Si Rector alieujus Ecclesiae de bonis suis Ecclesiasticis tanta portio deducatur quae sufficiat ad reparandum haec alios defectus Ecclesiae supplendos Idem statuimus circa illos Vicarios qui solvendo modicam pensionem omnes Ecclesiae habent proventus nam cum ad praemissa teneatur talis portio deducta satis poterit debet inter debita computari Semper tamen rationabilis consideratio sit habenda ad facultates Ecclesiae cum haec portio fuerit habenda Now if it be demanded what Houses are meant within this Canon the Gloss tells you ut puta mansum Rectoriae vicariae alia Edificia quaecunque quorum Edificatio sive reparatio spectat ad ipsum Rectorem By the Letter of this Canon the Rector is to repair the whole Church Co. 5 6 7. Cro. Eliz. 659. Not to repair the Church but Chauncel but by the Custom of England the Owners of the Houses and Lands in every Parish are bound to repair the Body of the Church and the Rector only the Chauncel unless by particular custom it hath been otherwise And in this point the Common Law is kinder to the Parsons Vicars c. than the Canon-Law and the Common Law being here to be preferred annuls that part of the Canon 2 Inst 653⸪ and the Gloss upon the words defec◠' Ecclesiae add A Canon for relief against Dilapidatient Haec litera potestintelligi de defectibus Ecclesiae quae pertinent ad curatum ipsius Ecclesiae in solidum sic quod non pertineant ad alios ut puta in Cancella aliis ad onus Rectoris de jure vel consuetudine spectantibus But this Canon seems only to affect the Ecclesiastical goods Verbo Ecclesiasticis and what those might be deserves the judgment of the Gloss which tells you they are such as jure nomine Ecclesiae obvenientibus talia enim bona sunt per viam tacitae hypothecae ad reparationem hujusmodi faciendam obligata And if the goods of the Church shall not suffice then the Gloss tells us Si Rector bona Ecclesiastica expenderit in meliorationem patrimonii sui vel si propter nimiam diligentiam propriorum negotiorum neglexerit negotia Ecclesiae procurare Et sic Ecclesia sit dampnum passa tenetur satisfacerc de bonis suis patronalibus si quae habuerit But there has been made a further question whether satisfaction for dilapidations should be preferred in payment before Debts and Legacies And as the Common Law prefers the payment of Debts before dammage for Dilapidations So the Ecclesiastical Law prefers the dammage for Dilapidations before the payment of Legacies to which hear what the Gloss says Si Legatarii tanquam Creditores petant legata sibi relicta Praelatus petat sumptus reparationis Edificiorum Ecclesiae talis Praelatus debet praeferre caeteris Legatariis and gives this reason Nam Legata solvi non debent nisi prius deducto aere alieno So that the Ecclesiastical Law agrees with the Common Law in this that Debts are to be preferred before Legacies The next thing considerable is Verbo reparand haec what repairs are requirable in this case which is answered by the Gloss Et intellige hanc reparationem fieri debere secundum exigentiam qualitatem rei reparandae c. Thus far I have followed the Canon and Gloss thereupon Now in the next place we will shew you what we have relating to this matter amongst the Laws and Statutes of this Realm And first Waste by Bishops I find that at a Parliament at Carlisle in the 35th Year of Edward the first a great complaint was made against Anthony then Bishop of Durham Co 11 49.2⸪ for waste and destruction of the woods belonging to his Bishoprick by gift sale and otherwise Cause of deprivation and for erecting forges of Iron and Lead and making Charcoals of the Wood to be spent in their Iron and Lead works to the disinheritance and impoverishing of his Church and in prejudice of the King and his Crown and of the Chapter of Durham To which the answer is Inhibetur per Breve de Cancellaria Episcopo ministris suis ne faciant vastum de contentis in petitione By which it appears M. 23. Ei inter adjudicat coram Rege Huntsf 83. that if a Bishop or any other Clergy-Man do waste upon the Woods or Lands of his Church that a prohibition may be sued in Chancery to prohibit him for Ecclesia est infra aetatem in custodia Domini Regis qui tenetur jura haereditates ejusdem manu tenere defendere And the Arch-Bishop of Dublyn was fined 300. Rot. Patrum 14 H. 3. m. 8. Marks for the disaforresting a Forrest belonging to his Arch-Bishoprick And it seems by several Books of the Common Law that in case a Bishop Abbot Prior c. waste