mm Ml-- INN ARCHWAY, jl UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LBRARY THE PARSON'S COUNSELLOR WITH THE LAW OF TITHES OR TITHING. IN TWO BOOKS. The First shows the Order every Parson, Vicar, &c. ought to observe in obtain- uig a spuitual Preferment, and what Duties are incumbent upon him after taking the same ; and many other Things necessary for every Clergyman to know and observe. The Second shows in what Manner all Sorts of Tithes, OfFerings, Mortuaries, and other Church Duties are to be paid, as well in London as elsewhere, and as well by tlie Canon as Common and Statute Laws ; and in what Courts and Manner they may be recovered, what Charges they are subject to, and many other Tilings concerning die same necessary for Clergymen and all others to know. ^_^^ BY SIR SIMON DEGGE, KT. TRE SEVENTH EDITION, WITH GREAT ADDITIONS, BY CHARLES ELLIS, ESQ. OF Lincoln's -INN, barrister at law. LONDON: PRINTED FOR CHARLES HUNTER, LAW BOOKSELLER, 26, BELL-YARD, LIXCOLn's-INX. 1820. T D3t35 182.0 f 5 ADVERTISEMENT TO THE SEVENTH EDITION. THE Parson's Counsellor, after having passed through six editions, has not been republished since 1703 ; other productions of a similar na- ture have since made their appearance, most of which have borrowed from this work, or re- ferred to it as an authority : these have in their turn become obsolete ; and, with the exception of the more voluminous work of Dr. Burn, there is at present no modern book affording a combined view of the law on ecclesiastical subjects. Of the merits of this compilation it may be sufficient to say, that it is collected from the best sources, comprehends much in a single volume, and points out, as its title page de- b 793373 VI ADVERTISEMENT. clares, " things necessary for all clergymen to know and observe." Under this impression the editor thought that a republication of it, with the addition of the subsequent decisions and statutes, and a notice where any alteration may have been effected by them, would not be useless either to the clerical profession or his own. In making these additions he has endeavoured to preserve what he conceived to be the in- tention of the author, by inserting what is likely to be generally useful in practice, in preference to minuter and more special points, while at the same time he has, by giving one or more re- ferences, pointed out those sources where ampler information may be obtained. He has collected and arranged the most material cases on the subject of dilapidations ; he has added the statutory law relative to Queen Anne's bounty, and the recent acts concerning the clergy, together with those relative to briefs, parochial registers, and marriage. He has been enabled to give some original information on points of ecclesiastical cogni- ADVERTISEMENT. Vil zance, by the aid of Dr. Phillimore's Reports, a work which promises to supply a deficiency long felt in legal literature ; and in the second part he has annexed the material additions, and noticed the alterations of the law upon the subject of Tithes. He has introduced this supplemental matter by way of notes rather than insertion into the text, in order that the identity of the old and new editions might be preserved for purposes of reference ; and to prevent the interruptions caused by their frequent recurrence, he has, in some instances, consolidated many together, where, but for that reason, they might seem more pertinent if dispersed. How far he has succeeded in this attempt it is for the public to decide. For those errors which may be discovered, he has to solicit the indulgence of tlie professions for whose use it is designed. Where the materials, as in this instance, are frequently scanty, and generally dispersed, a compiler is not often satisfied with his own performance, he can still less hope to satisfy others, unless a consideration of these b ^ viil ADVERTISEMENT. circumstances accompany them in their perusal of it. Experientia mentis Paullatim docuit pedetentim progredientes. Sic unum quicquid paullatim protrahit aetas In medium, ratioque in luminis eruit oras. Lucr. Lib. 5. 2, Stone Buildings, Lincoln's Inn, December 1, 1819. TO THE RIGHT HONOURABLE AMD RIGHT REVEREND FATHER IN GOD, THOMAS, LORD BISHOP OF LICHFIELD AND COVENTRY. MY LORD, I THOUGHT to have sent this trifle into the world without patron or author's name to it, but it is well known how scandalous it is to that child whose parent is ashamed to own it ; I therefore resolved to run the censure of a critical world; and then observing how an- cient dedications have been, both by Greek and Latin authors, and that they are continued to this day throughout all Christendom, I re- solved not to be singular. And considering that this little undertaking was performed at the request of some reverend clergymen of your lordship's diocess, and that it was nursed up to what it is now presented to your lordship X DEDICATION. there likewise, I conceived it could not chal- lenge the patronage of any other more properly than of your lordship ; and therefore, such as it is, I here humbly present it to your lordship. My lord, at first I designed no more but the second part of what it now is j but observing your lordship's dihgent and great care, at your lordship's primary visitation at Derby, against simony, dilapidations, and non-residence, the three great pests in the church, I added three chapters upon those subjects ; and after adding one thing after another, it came to make a distinct part of this work alone. My lord, — Your lordship has had many ho- nourable and worthy predecessors, and I cannot forbear to mention to your lordship your im- mediate predecessor, my Lord Bishop Hacket ; with what indefatigable industry did he repair, or rather re-edify, the church at Lichfield, which he happily lived to finish ! A work that could hardly have been performed by any other. How circumspectly, prudently, and diligently did he govern his church, never absenting himself unless in his Majesty's and country's service ! How constantly did he DEDICATION. Xi visit and preach through his diocess ! A re- ligious pattern for all his clergy. What great insight had he both in the civil, canon, and common laws that related to the church go- vernment ! How oft did he sit in his consistory to see justice done ! Nay, what did he neglect that became a worthy prelate to do ! And for his deep and profound learning in his function, certainly few exceeded him, if I have any judgment. My lord, I have observed three things perpetuate men's memory to posterity ; children, learned writings, and public and emi- nent buildings ; — he was fortunate in them all : he has left a worthy son to inherit his name, virtue, and temporal estate ; he has left many learned works for the benefit of posterity, whereof some are already made public ; and he has made himself no less eminent by his public buildings, witness his cathedral church at Lich- field, and Trinity-College in Cambridge, where he had his education ; besides many other works of piety and cliarity in those few years he was bishop. My lord, God hath not yet blest you with children, but may in good time, to preserve xii DEDICATION. your name: and I have heard, your lordship intends some eminent works for the public ; and that your lordship hath resolved to go on, where your predecessor left, in building a palace for yourself and successors ; I have great reason to believe, having heard your lordship so often declare you would do it ; and having laid your hand to the plough in preparing some materials towards it, I know you will not look back : I have heard your lordship declare how much you delight in hospitality, which can never be so splendid as in a palace of your own building : and hereby your lordship will make yourself as eminent in the next age, as your worthy predecessor is in the present, than which nothing can be greater satisfaction to all, but chiefly to. My honoured good lord, Your lordship*s most dutiful son. And most obedient servant, S. DEGGE. TO THE PARSONS, VICARS, AND THE REST OF THE REVEREND CLERGY OF THE CHURCH OF ENGLAND. YOUR kind acceptance of the former impres- sions of this book has encouraged me this sixth time to appear in public. The first was hurried to the press so hastily, that I had not time seriously to peruse it, whereby some things were slipt in the copy; and my being far from the press occasioned many mistakes by the printer. In this, and the latter, something more care has been taken. The only essential oversight in the first impression (which I have yet discovered) was in the sixth chapter of the first book, which I must still desire may be corrected by this. I added many things to the second, third, and fourth editions, with three whole chapters ; and many things to this. Your continued kind acceptance makes me think my labour well bestowed. Et sic Valete. S. D. CONTENTS. PART I. Chap. I. — Who may, or may not be a Parson, Vicar, &c. who may be a Page 1 parson. Chap, II. — How one that is a Person fitly qualified to be a jj^^ ^e must Parson, Vicar, &c. ought to proceed in obtaining and proceed in tak- accepting of a Benefice - - - . 7 >"g^ ^ S- Chap, III. — In what cases it is necessary for the Bishop to Jurepatronatus. have a Jure Patronatus, and how to proceed in the same, and what is the force and effect thereof - 13 Chap, IV. — How the Law stood concerning Pluralities be- pluralities, fore the Statute of 21 H. 8. who are qualified within that Law to have Pluralities, and how they ought to behave themselves in taking second Livings, so that the first may not be made void - - - 24 Chap. V. — What Simony is, and who shall be said to be simony, guilty of it, and what are the dangers ensuing there- upon - - - - - - 43 Chap, VI. — What one is to do before, and at Institution, What he !•> to and after Induction, to make himself a complete Par- and^afteriusfl- son __«__- (jg tution and in- Chap. VII. — What is required further of Parsons, ^c. after -, ., 1 . \t • ^ • Non-residence. Induction, and what Non-residence is, and the dangers incurred thereby, and what matters will excuse the same - • - - - - 75 Chap. VIIL — What shall be said to be Dilapidations, and Dilapidation*, how the same are remedied and punished - 134 Chap. IX, — For what cause a Parson, Vicar, &c. may be Deprivation, deprived, according to the Rules of the Common Laws - - - - - - 146 XVI Leases. Farms. Privileges of the clergy. Churclies, clia- pels, church- yards, seats, burials, and tombs. Parsonages, vicarages, sine curas, and dona- tives. llcsignatioii, permutation, union, and consolidation. CONTENTS. Chap. X. — What Leases a Parson, Vicar, &c. may make of his Glebe and Tithes, and what Farms he may, or may not take, and within the danger of what other Statutes they may fall . - - - Page 152 Chap. XI, — What Privileges are allowed to the Clergy by the Statute and Common Laws of this Realm, and what are pretended to by the Ecclesiastical Laws 187 Chap. XIL — How the Law stands concerning Churdlies, Chapels, and Churchyards, in whom the Freehold is, and how the Churches and Chapels are to be repaired, and concerning the Seats, Burials, Tombs, Coats of Arms, and other Ensigns of Honour, in memory of the Dead; and of the Church Ornaments, and at whose charge to be provided ; and what remedy for Trespasses in the Church, Churchyard, or in breaking up of Tombs, taking, carrying away, or embezzling any of the Goods or Ornaments of the Church, &c. - - 200 Chap. XHL — Of Parsonages, Vicarages, Sine Curas, and Donatives, and of the Endowments of Vicarages, and how, and in what Cases a Parsonage and the Vicarage are to be re-united, and many other things relating to Parsonages, Vicarages, Donatives, and Sine Curas 241 Chap. XIV. — What Resignations and Permutations are, in what manner they rnay be made, and other matters re- lating to them, and of Unions and Consolidations 248 PART II. Qiiid,quotaplex, ct quomodo debet. By wliom, and to whom due. What things are tithable, corn, hay, &c. Chap. I. — What Tithes are, the several sorts and kinds thereof, and how they become due - Page 23 1 Chap. II. — By whom, and to whom Tithes ought to be paid - - - - - - 285 Chap. III. — Of what things Tithes are due to be paid, and in what manner the Tithes of Corn, Hay, &c. are to be paid - - - - - - 311 CONTENTS. xvii Chap. IV. — Where and in what cases the Tithes of Wood Wood, ought to be paid - - - Page 3l6 Chap. V. — "Where Tithes are due for Herbage or Agistment Herbage. of Cattle, and who is to pay it - - - 324 Chap. VI. — Where and in what manner the Tithes of Calves, milk, Calves, Milk, Cheese, Wool, Lambs, Pigs, &c. are cheese, wool * ' ' ' ' c ' Jambs, pigs, «c, payable _ . . - - 330 Chap. VII. — In what manner the Tithes of Seeds, Fruit, Seeds, fruit, Mast, Bees, &c. are to be paid - - 340 "'^'^' ^^^^' ' ' r honey. Chap. VIII. — Where and in what manner the Tithes of Things ferae Pigeons, Conies, Fish, Deer, and other Birds and "^tur^- Beasts ferae naturae, are tithable - - 313 Chap. IX. — Of what nature the Tithes of Mills are, and in Mills. what cases payable - - _ - 345 Chap. X.— Of Tithes of Hawking, Hunting, Fishing, Fowl- Personal tithes, , , ., ° ° hunting, hawk- ing, &c. and other personal Tithes - - 3^9 ing, fishing, fowling, &c. Chap, XI. — Of Tithes of Ducks, Geese, Swans, Turkeys, ^^^ . , , and other domestic Fowls and Birds - - 340 Chap. XII. — Of what things Tithes are not due by the Com- Of what things mon Law 350 t't'"^« jre not payable. Chap. XIII. — What force Customs have in the form and Customs. manner of Tithing, and in discharging the payment thereof, and the difference between Custom and Pre- scription _ . _ , - 352 Chap. XIV. — "N^^at Privileges th» Parson, Vicar, &c. have interest in the in the Grounds where Tithes arise, for drying, making, lands. and carrying away the same . - . 356 Chap. XV. — To what charges the Glebe and Tithes are sub- Xo what charge ject ---.-. 3Q1 subject. Chap. XVI,— How far Prescription will prevail in the man- Modus deci- ner of Tithing, and in what cases a Modus decimandi ma'idi. will bind the Parson, &c. - - - 380 Chap. XVII. — How a Modus decimandi may be destroyed How to be de- 395 »f<)yed. Chap. XVIII. — By what Conveyances and Names Tithes ^^^ to be con- may be granted, demised, &c. and what Demises and veyed. Leases made by Parsons, Vicars, and other Ecclesiastics, ^* Leases. &c. are good - - - - - 397 xvin CONTENTS. Barren ground. Heal coroposi- tions. ]\Ionastery lands. Personal tithes. Obhtions. Mortuaries. London. How recovera- ble. Prohibitions, Chap. XIX. — What barren Lands are freed from payment of Tithes within the Statute of 2 E. 6. c. ]3. Page 400 Chap. XX. — What a real Composition is, and in what cases Lands shall be freed from the payment of Tithes thereby . _ - _ _ 404 Chap. XXL— What Monastery Lands are, or may be freed from payment of Tithes . . _ 407 Chap. XXIL — What personal Tithes are, and in what cases due and payable - - - - 417 Chap. XXIIL — What Oblations, Offerings, &c. are, and where due and payable . _ - 420 Chap. XXIV. — What Mortuaries are, and in what cases they are due and payable - _ - 423 Chap. XXV, — How Tithes are to be paid in London, and several Resolutions upon the Statute made for the pay- ment thereof - - _ - _ 427 Chap. XXVL — In what Courts and in what Manner Tithes may be sued for, and in what cases Prohibitions lie for staying the Suits for Tithes in the Ecclesiastical Courts, and how to proceed therein - _ _ 444 Catalogue of Dissolved Monasteries - - 487 APPENDIX. No. L — Form of the Grant of a perpetual Advowson 497 No. II. — Grant of a next Avoidance - - 499 No. III. — Form of a Presentation . - _ 500 No. IV. — Form of a Nomination to a Chapel of Ease, or Perpetual Curacy _ _ _ _ 501 No. V. — Form of a Nomination to a Chapel, augmented by Queen Anne's Bounty - - - ib. No. VI. — Form of a Donation . - _ 5Q2 No. VII. — Another Form - . - . 503 No. VIII. — The Form of a Deed ofGift of Money to Queen Anne's Bounty, to be executed by the Donor : as the CONTENTS. xix same has been settled and generally used since the Mortmain Act, 9 G. 2. c. 36. - - Page 503 No. IX. — Form of an Instrument usually executed by the Governors of Queen Anne's Bounty, when a Benefactor desires it - - - - - 504 No. X. — Nomination of a Curate - - - ib. No. XI. — Form which may be used as a Title for Orders 505 No. XII. — Form of a Testimonial for Deacon's Orders if from a College - - - - ib. No. XIII.— If not from a College - - - 506 No. XIV. — Form of a Testimonial for Priest's Orders ib. No. XV. — Another Testimonial for Orders, either Priest's or Deacon's, according to Dr. Grey - - 507 No. XVI.— Another Form - - - - ib. No. XVII. — Form of appointing a domestic Chaplain 508 No. XVIII. — Form of dismissing a domestic Chaplain ib. No. XIX. — Certificate of the Values and Distances of Livings for the Purpose of obtaining a Dispensation - 509 No. XX. — Form of a Testimonial for procuring a Dispensa- tion for a Plurality ... - 510 No. XXI. — Form of a Dispensation to hold two Livings ib. No. XXII. — Form of a Petition for a Licence of Non-re- sidence under 57 G. 3. c. 99. - - - 512 No. XXIII. — Form of Notification of Non-residence by reason of Residence on another Benefice - ib. No. XXIV. — Form of Notification of Non-residence in the Cases enumerated in the 10th Section of the 5/ G. 3. or under the Provisions of any Act not repealed by that Act .--.-. 5i3 No. XXV. — Form of a Conveyance under Stat. 58 G. 3. c. 45. - - - - - - ib. No. XXVI.— Form of a Lease of Tithes - - 514 Index .----- 517 ADDENDUM. By 59 Geo. 3. c. 134. s. 14. a clause is added to the act for building new churches, to the following effect: that it shall be lawful for the churchwardens of any parish, with the consent of the vestry, or persons pos- sessing the power of vestry, and with the consent of the bishop and incumbent, to borrow, upon the credit of the church rates, or of any rate made under the said recited act, or of any such parish, such sums of money as shall be necessary for defraying the expense of repairing any churches or chapels ; and they are required, in any case in which such money shall have been borrowed, to raise by a rate a sum sufficient, from time to time, to pay the interest of the money so borrowed, and not less than ten per cent, of the principal simi borrowed out of the produce of such rates, until the whole of the money so borrowed shall be repaid. THE PARSON S COUNSELLOR. PART I. CHAPTER I. Who may, or who may not, be a Parson, Vicar, S^c. Having taken upon me to be the Parson's Counsellor, it is necessary, in the first place, to shew who may be a parson, vicar, &c. By a statute made in the 14th year of King Charles 14 Car. 2. c 4. the Second, all are made incapable of being admitted to any parsonage or vicarage, benefice or other eccle- siastical promotion, preferment or dignity whatsoever. Promotion, unless such person have episcopal ordination; and if any shall presume to be admitted, not having such ordination, or shall presume to administer the Sacra- ment of the Lord's Supper, not being so ordained, he is to forfeit an hundred pounds. By divers ancient canons of the church, no man was ^ f, ^*^ , to be a deacon berore he was twenty-hve years or age. Can. i.Concil, nor a priest before he should attain the ajre of thirty Const, cap 4. & , . , T 1 •'IS. Concil. years; but notwithstandmg the canons, they were fre- Neocsesar, cap. quently dispensed with. 3^';,. , T -^ r Calhs Lect. 253. And by a statute made in the 13th year of Queen Vid. Co. 2 Inst. Elizabeth, it is enacted. That none shall be made jseu^ <. 12 minister or admitted to preach or administer the sacra- ments, being under the age of twenty-four years ; nor unless he first bring to the bishop of that diocess, from men known to the bishop to be of sound religion, a B o THE PARSONS COUNSELLOR, [part i. By implication testimonial both of his honest life, and of his professing this statute ai- the doctiine expressed in the thirty-nine articles ; and made' a priest at Unless he be able to answer and render to the ordinary twenty-lour, jj^ account of liis faith in Latin, according to the said rano'iwherauid articles, or have a special gift and ability to be a not be a priest preacher : nor shall be admitted to the order of deacon yea'rTof a^J. or ministry, unless he shall first subscribe to the said articles. And all dispensations in tliis case are made void by the same statute. So that, upon the whole matter, none can be a priest before he is four and twenty years of age, nor none can be a parson before he is a priest (1). (1) By the 44 Geo. 3. c. 43. it is enacted, that no person shall be admitted a deacon before he shall have attained tlie age of three and twenty years complete, and that no person shall be admitted a priest before he shall have attained the age of four and twenty years complete : and in case any person shall, from and after the passing of this act, be ad- mitted a deacon before he shall have attained the age of three and twenty years complete, or be admitted a priest before he shall have attained the age of four and twenty years complete, that then, and in every such case, the ad- mission of every such person, as deacon or priest respect! vel}', shall be merely void in law as if such admission had not been made ; and the person so admitted shall be wholly incapable of having, holding, or enjoying, or being admitted to any parsonage, vicarage, benefice, or other ecclesiastical pro- motion or dignity whatsoever, in virtue of such his ad- mission as deacon or priest respectively, or of any qualifica- tion derived, or supposed to be derived, therefrom : provided always, that no title to confer or present by lapse shall accrue by any avoidance or deprivation, ipsojacto, by virtue of this statute, but after six montlis notice of such avoidance or deprivation given by the ordinary to the patron, s. 1. But nothing herein contained shall extend, or be con- strued to extend, to take away any right of granting faculties heretofore lawfully exercised, and which now are lawfully exercised by the archbishops of Canterbury and Armagh. CHAP. I.] THE PARSON'S COUNSELLOR. 3 And by divers ancient canons, and by canons of our Can. jac. 33. di- own, none oueht to be ordained a priest before he have tl""^** ''^' ^^P* . 1 , . * . Nenime. a title, that is, a presentment to a parsonage, vicarage, or a curacy. And by another provincial canon of our own, those I ^ } . that have been guihy of homicide, or that have been Cor2'li!st!'632. advocates in causa sanguinis ; those that are guilty of simony, or makers or solicitors of simoniacal contracts, witchcraft, burners of churches, cannot be priests with- out special dispensation, nor by consequence parsons or vicars. And by another provincial canon of our own, those Cap. cum quan- that are guilty of simony, homicide, persons excom- ta. ,0. -1 • • 1- • Co. 2 Inst. 632. municated,* usurers, sacrilegious persons, incendiaries, # Disiinctio vel t falsarios, may not be admitted into holy orders, 47. Co. 5. 58. a. J L 'J J f + Perjury, for- and by consequence may not be parsons, vicars, &c. gery, dist. so. And by a canon in'the council of Nice, a man that *' Episcopus. 38 £ 3 2 a. voluntarily castrated himself might not be a priest ; but if it were done by enemies, or by the advice of physicians for health's sake, it was no disability. Bastards cannot be priests without dispensation, nor q^^^ ^^^ ^^i dg by consequence parsons ;{: (2). non. Dyer 293. o 11. I • Z\), ^ 14 H. 7. 28. b. ~~" 15H. 7. 7. b. 5 H. 7. 20. a. (2) Though this is classed in the books among the causes Co. 5. 5S.*a. ' of refusal, no one need apprehend that his preferment would Bro. Present. 54. be impeded in these times by any demerit but his own. Black. ^ Hlst^457. Com. I. 389. See note 25. 29 E. 3. Fizh. And these exceptions, in general, may be now considered S"' J?,^' ^^^'^ . . ° "^ Bro. Clergy, 22. obsolete ; the requisites for obtaining orders, so far as they Co. 2 Inst. 632. concern a man's capacity, learning, piety, and virtue, are Swinb. of Wills, included in the following directions in the preface to the form of ordaining deacons, which is in some degree an en- largement of the restrictions mentioned in the text, viz. the bishop knowing, either by himself or by sufficient testimony, any man to be a person of virtuous conversation, and with- out crime ; and, after examination and trial, finding him learned in the Latin tongue, and sufficiently instructed in holy Scripture, may admit him a deacon. B 2 4 THE PARSON'S COUNSELLOR, [paht r, Co. 2 Inst. 632. A villain cannot be a parson, and if he be presented to a living, the bishop may refuse him. A miscreant that does not believe the truth, an infidel that does not believe at all, a Jew, schismatic or heretic,, that do not believe aright, ought not to be parsons, and if indicted, ought to be deprived ; and so if the party And by Can, 34. the direction is this: No bishop shall admit any person into sacred orders except he hath taken some degree of school in either of the two universities, or at the least except he be able to yield an account of his faith in Latin, according to the thirty-nine articles. And with respect to priests orders in particular, it is thus directed by the statute of the 13 EI. c. 12. None shall be made minister unless it appear to the bishop that he is of honest life, and professeth the doctrine expressed in the thirty-nine articles ; nor unless he be able to answer and render to the ordinary an account of his faith in Latin, according to the said articles, or have special gift, or ability to be a preacher. So that if these requisites be observed, the others are not now required, further than they agree with these. And the ordinary way by which all this nmst appear to the bishop must be by a written testimonial, concerning which it is directed by Can. 34. aforesaid, with respect both to deacon's and priest's orders, that no bishop shall admit any person into sacred orders except he shall then exhibit letters testimonial of his good life and conversation, under the seal of some college of Oxford or Cambridge, where before he remained, or of three or four grave ministers, together with the subscription and testimony of other credi- ble persons, who have known his life and behaviour for the space of three years next before. And with respect to priest's orders in particular, it is enacted by the aforesaid statute of the 13 El. c. 12. that none shall be made minister, unless he first bring to the bishop of that diocese, from men known to the bishop to be of sound religion, a testimonial both of his honest life, and of his professing the doctrine expressed in the thirty-nine articles. 3 Burn's Eccl, Law, 32. 3. CHAP. I.] THE PARSON'S COUNSELLOR. j be irreligious or illiterate, so if the party presented be mere laicus or outlawed. And the bishop may refuse a clerk quia criminosus, for any of the crimes aforesaid, though the party be not convict, so the bishop be certain of the truth tliereof. And all things that are just causes to deprive a [ ^ 1 clerk, are just causes to refuse a clerk when presented. Reguia. * iStillingfl. Eccles. Cases, 73. But it is no good cause to refuse a clerk, because he Ibid. Exceptio. is a player at unlawful games, or a haunter of taverns : because these are not malum in se, but malum prohi- bitum. And the son cannot, without a dispensation, be par- Co. 4 Inst. 337. son of the same church that his father was incumbent Lmwood, cap. Cum a jure iii- of the next before him. hibUum. Conc. A man that cannot speak such language as the ^j'*^'"^"- Can. parishioners understand, ought not to be admitted par- Albany vers, son of such a parish, but may be refused by the bishop : ^^26 & 27^El for to be illiterate, and not to be understood, is all one C B. rot. 2023. to the parishioners: and when the blind leads the blind, Lucas^v' ^*^' both fall into the pit (3). Evesque Bath. The bishop cannot refuse a clerk, because he wants Beujloes ''^^ a testimonial. See Stillingfl. Eccles. Cases, 74, 75 (4). (3) A cause of refusal was, that the presentee could not speak Welsh, the service of the church being in that tongue, and it was held a good cause. Cro. EI. i ig. (4) The case of Palmer and the Bishop of Peterborough, T. 33 El. upon the autUority of which this statement seems to be made, was decided upon the pleadings in that cause, in which the bishop charged, that the person refused did not bring letters testifying his abilities, which the court seems to have understood as of his ability in learning, which the bishop might have judged of by examination: the bishop ought to have set forth, that he did not produce letters missive or testimonial of his good life and behaviour. 1 Durn's Eccl. Law, 154—5. 6 THE PARSON'S COUNSELLOR, [paht i. . T .000 But it seems that if the bishop does admit and in- 4 Inst. 338. . . ^- • , 1- -, c 1 Leonard, 130. stitute any person into a living that lies under any 01 mIcIi' 16^& 17 ^hese incapacities, the church is full de facto till sentence El. per Harper, of deprivation, nullity, &c. as the case requires, and no lapse incurs. 4 Inst. 338. An alien born at this day cannot be a parson, vicar, Stat. 3 R. 2. C.3. gj^g^ jjQy jg capable of any spiritual preferment, without 5K2. nu. 91. ' the king's special licence, and the bishop may deny to 6 R. 2. nu. 31. admit and institute him, as Sir Edward Coke conceives. 10R.2. nu. 20. • 1 I- 1 1 c T 1 iH. 5. cap. 7. ijy a canon in the third council or Liateran, under Can. 23. Alexander the Third, it was decreed that none should be parson of a parish under twenty-five years of age. [ 5 ] Outlawry and laity are disabilities. Co. 2 Inst. 632. Vide Levit. cap. 21. ver. 17, 18, 19, 20, and 21, what bodily blemishes disabled priesthood under the law. Where the right of nominating is in A. and of presenting in B., B. is to judge of the qualification of the person nomi- nated in the same manner as a bishop does ; but if the per- son presenting object to the nominee on the ground of im- morality, that must be tried by a jury. 3 T. R. 64Q. cHAiMi.J THE PARSON'S COUNSELLOR. CHAPTER IL How one qualified to be a Parson, ought to behave himself in oblaininrr a, Litins:. A Parson qualified as the law requires, must, with- out any corrupt or simoniacal contract, obtain a pre- sentation from the right and undoubted patron of the church, whereof he designs to be parson ; which may be in this form : " Reverendo in Christo patri et domino T. divina Theformofa permissione L. et C. episcopo, ejusve vicario in spiritu- serolherforms aiibus generali A. B» armiger, indubiiatus patronus of presentations. ccclesiae parochiahs de C. in comitatu D. salutem in sg'^p'" °"^' domino sempiternam. Ad ecclesiam de C. praidictam vestraB diocesios, modo per mortem," (if void by tiie death of the last incumbent; but if it be by resigna- tion, then you must say, " modo per resignationem ;" but if the church be void by the last incumbent's being made a bishop, or by taking a second living, not being qualitied, then you may say, " per cessionem," or as the special matter is; or if by deprivation, then you must say, " per deprivationem," and then proceed,) " E. F. ultimi incumbentis ibidem jam vacantem, et ad meam donationem pleno jure spectantem, dilectum mihi in [ e ] Christo G. H. clericum in artibus magistrum, pater- nitati vestraj praesento, humiliter supplicans, quatenus prjcfatum G. H. ad dictam ecclesiam admittere, eumque rectorem ejusdem ecclesiai instituere cum suis juribus et pertinentiis universis, cajteraque expedire et peragere, quae vestro in hac parte incumbunt officio pastoraJi, dignemini cum favore. In cujus rei testimonium his praesentibus sigillum meum apposui: datum primo die M. anno regni domiai uostii Caroli Sccundi, Dei 8 THE PARSON'S COUNSELLOR, [part i. gratia, Angliae, Scotiae, Francise, et Hibernise, regis, fidei defensoris, etc. vicesimo octavo, annoque Domini 1G75." ilnst. 120. b. And note, that the king, or any other patron, may Q"- Imp. 60. pi-gggjjt ^y word of mouth, or by letter, and it is as good and effectual as one in form (5). How to proceed As soon as a clerk has obtained such presentation, it sentetion.^'^^" bchoves him with all convenient speed, and within six 22 H. 6. '29. b. months after the church became void by death, creation, 1. 2. c. 31. ^^ cession of the last incumbent, of which avoidances the Dyer, 327. p. 7. patron is at his peril to take notice, or within six months Rol.2.364.b.f. '. .• 1 II • ^ .1 \ I a J- What time the alter noticc legally given to the patron by the ordinary bishop may take of the church becoming void by deprivation or resigna- to examine a . i i • • i i • i c i clerk. tion, to tender his presentation to the bisiiop or that Liudw. chap. dioccss within which the church is, or to his vicar- Cum secundum i • i • i i • i • i r- apostolum. general, or in tlie vacation, when there is no bishop or 3 H. 7. 9. b. such diocess, to the guardians of the spiritualties, to (5) But since the statute of frauds, 2Q Car. 2. c. 23. it is necessary that all presentations should be in writing; and by the several stamp acts, it is implied that they should be in writing, and not otherwise; for thereby it is enacted, *' That for every skin, or piece of vellum, or parchment, or sheet of paper, upon which any presentation or donation, which shall pass the great seal of England, or upon which any collation to be made by any archbishop, or other bishop, or any presentation or donation to be made by any patron whatsoever, of or to any benefice, dignity, or ecclesiastical promotion, shall be ingrossed or written, shall be paid 20/. stamp duty : provided that such benefice, dignity, or pro- motion be of the yearly value of ]0/. or above in the king's books ; but if under that, it is only 10/." — In 2 Ves. 429. Attorney-General v. Brereton, is a dictum of Lord Hardwicke to the contrary, " a presentation to a church need not be in writing, but may be by parol. 1 Sid. 426. Co. Lit. 120." It may be observed that both the authorities cited by his lordship are antecedent in time to the statute of frauds. Presentations are now made out in English, by analogy pro- bably to proceedings in law, regulated by 4 Geo. 2. c. 26. CHAP. II.] THE PARSON'S COUNSELLOR. 9 whom the law allows a reasonable time to examine the abilities of the clerk : for the ordinary is not bound as soon as a clerk tenders his presentation to despatch his [ "^ ] business;* but if he be busy about the affairs of his * Hob. 31 7. church, he may make the clerk to stay till he hath done, ^^ '^" '^' or may appoint him a convenient time to attend him for his approbation. *f- By the ancient canons, the bishop had two months t Canon 05. time to consider of the ability and disability of the aii,^„!s^"vvo ^"^ clerk ; but by a canon made in the time of King James, montiis, but the .1 , ,• • 1 1 • 4. 1 i i.1 common law, that time is aobreviated to one month. ^1,1^,^ -^^ ^^n Then if the ordinary, 8cc., upon the examination of these cases. is to the clerk, find him fit in all points, as above in the first aUow^s only con- chapter is directed, then he admits him in these words, venient time. " Admitto te habilem," &,c. And thereupon the ordi- institution. nary institutes him in these words, " Instituo te rectorem Co. 4. 79. a. f . 1 • 1- J /-. 1 / ■ .-52 H. 6. 28. b. ecclesiae parochiahs de C et habere curam animarum : 33 h. 6. 24. a. et accipe curam tiiam et meam." And this the bishop ssH.e. 15. a. J^iiowlcs versus may do as well out of his diocese as within it; for as to Dobbins, P. this matter, it is not local, but follows the person of the ^i Jac. C. B. bishop whithersoever he goes. When the bishop has 27E1. C. B. instituted the clerk, the ordinary, or, &c. makes a i^J'°^.j™n^ ""^^^ mandate under seal to the Jarchdeacon of the place,§ j Selden oct. & Stud. and rightful title to the same, and by consequence knows not which clerk to admit. And I take it, the church is not less litigious, though they both present the same person ; because when the bishop admits him as the clerk of the one, he puts the other out of posses- sion, and consequently to his action; and the bishop [ 12 ] becomes a disturber, if he who is put out of possession prove to have a better title (8). Now the bishop, in this case, to secure himself ought Where a jure to award a jure patronatus to inquire of the risht: pafonatusis , . , . *', ^. „ ^ V ^ ^ . necessary, and whicn is merely an mquest or omce in nature or a writ how tobepro- de proprietate probanda, and does not at all * bind the j^^'^'^^g"' title or right of the party. * 34 H. 6. 38. b. But it seems a question in our books, whether the 35H. 6. 18. b. bishop is bound to sue the jure patronatus at his own cost and peril, or only at the prayer, and at the cost of the party that prays it, or of both parties ? But the better opinion seems to be, and so is the practice, that the same is to be sued at the prayer, and at the cost of one of the parties that prays it, or of both the parties if they join. (8) If the right of nomination be in one and of presenta- tion in another, and either impede the other in his right, quare impedit lies. Cross v. Salter. 3 T. R. 640. 14 34 H. 5. 11. a. Hob. 317. 34 H. 6. as. 5 H. 7. 22. a. it israade a quaere. Callis Read. 3. 21 H. 6. 44.a. quaere. [ 13 ] 41 II. G. 45. a. 21 H. 6. 44. Callis reading 29. Hob. 318. • 34 H. 6. 44. a Hob. 317. THE PARSON'S COUNSELLOR, [part i. Now whereas the church may become Htigious by double or plural presentations, so it may become more litigious by the jure patronatus; for if two patrons present, and each of them prays a jure patronatus by himself (as they may) and the one jury gives a verdict for the one's title, and the other for the other's title ; here the bishop receives no direction at all, but the church still remains litigious. But here arises another great question, whether the bishop in this case may let the church lapse and collate, or whether he be not bound to admit one of the clerks at his election, or at his peril. Mr. Serjeant Callis, in his reading, was of opinion, he might refuse both clerks in this case, and suffer the church to lapse; and so is the book in 21 H. 6. by Newton and Paston. Tamen inde quaere. And as a church may become litigious by a jure patronatus; so it may become litigious after a jure pa- tronatus, and a verdict given for one of the parties; for if a jure patronatus be awarded, and a verdict given for one of the parties, and before the patron presents, for whom the verdict was given, and prays admittance of his clerk (as he ought to do, before the bi.shop is bound to admit his clerk) another presents ; here the church is become litigious de novo, and the bishop in this case, as it seems, may award a new jure patronatus to de- termine the right of patronage between the new and the old patron, for whom the title was found in the former. But some have thought, that though the church be not litigious by double or plural presentations, yet the bishop, if he doubt of the patron's title that presents, may award a jure patronatus, and inquire of such pa- tron's title, and by that means prevent the surprise that- may happen to other pretenders by sudden admission of the clerk; and in case the right of patronage be ■ found for * a sti^anger, the bishop may admit his clerk. CHAP. III.] THE PARSON'S COUNSELLOR. J5 But it seems, that if the bishop admit the clerk that is presented before the church becomes litigious by a second presentation, the bishop acquits himself thereby from being a disturber ; but by this means the bishop may do great wrong in surprising other patrons that have right : and the law doth not so hasten the bishop's [ u ] proceeding, but that, as hath been said, he may take convenient time to examine the clerk, that other pre- tenders may take notice of the vacancy. But though the church, by any of the means above- Hob. 317. said, be become litigious, yet I think there is no doubt, but that the bishop may admit either clerk without a jure patronatus; but then he doth it at a double peril; for if the patron, whose clerk he admits, have not a good title, or having a good title, do not make it out in a quare impedit, or other action brought for the church, the bishop will be made a disturber. And the bishop may thereby do great wrong to the true patron, by putting him out of possession of his church, and forcing him to an action that may turn much to his charge and trouble, besides great damage to his clerk, and oft to the loss of the advowson ; there- fore bishops ought in this case to be very tender to proceed according to justice. But if the patron fear any foul play from the bishop, and be not resolved of his clerk, he may enter a caveat with the bishop, not Rolls 2. 36i. to admit the clerk of any other; and though this do ™' ^' not so bind up the bishop, that he cannot * admit the *^^°"traPopi.. clerk of another person, yet if the bishop will presume to do it without a jure patronatus, he may be punished by his superior. But in case the bishop delay to admit the true Seiomor. patron's clerk, he may sue a duplex querela out of the 1°''''^ ""'T A, 1 1 1 • 1 , . . Evcsqiic Feter- rches, to command the bishop to admit his clerk; borough &ai., and then if the bishop do not admit the clerk within T. 38 eHz.b.r. nine days, or the space assigned by the duplex querela, ^ ^^ ^ or return a legal cause why he does it not, the metro- politan may admit the clerk ia the oidiuaiy's default. 2 Koll. 293 M. 10 16 THE PARSONS COUNSELLOR, [part i. Bendl 2 9.93 ^^ ^^^^ aiclibishop institute in the bishop's default, M. 10. and the bishop appeal after induction, a prohibition lies. But the bishop may return, if the truth be so, that the church is litigious, and that he cannot admit the clerk till the right be determined in a jure patronatus, which will excuse him. F. N.B.37. f. But the surest and safest way in this case is, if the bishop delay the true patron, immediately to sue a quare impedit, and thereupon a ne admittas to the bishop, and then, if the bishop, after the receipt of such writ, admit the clerk of any other person without a ver- N. B. 4. 8. g.h. diet in a jure patronatus, the true patron may have a 3 '^ writ called quare incumbravit against the bishop, and may therein recover the presentment with damages. F.N. B.48. h. And it should seem this writ lies, in case the bishop admit the clerk of the adverse patron, notwithstanding he hath obtained a verdict in a jure patronatus ; but this must be intended, I conceive, where such patron is defendant in the quare impedit. Cr. Jac.4G3. ^""^ note, that a caveat entered in the life of the former incumbent, is of no force. Can. 95. -And note, that by a canon made in the time of King James, tiie patron or clerk cannot have a duplex querela till twenty-eight days are expired from the time the clerk was presented. r j5 T And it seems likewise, that the bishop is not so bound How far the bi- by the vcrdict in a jure patronatus, but that he may by'a verdict in admit the Contrary clerk, if he see cause, or be satisfied a jure patron- he has the better title; but this seems to be against 34 H. 6. 11. b. justice, and the true intent of the law. Hob. 318, ^ijjI sij. Henry Hobart was of opinion, that an action of the case lies against the bishop by the patron that is so disturbed, if in a quare impedit he prove to have the better title, and recover his damages by reason of the delay and trouble the bishop hath thereby put the patron to; but then the bishop must not be made a Qu.-ero. defendant in the quare impedit: but of this quaere. CHAP. III.] THE PARSON'S COUNSELLOR. 17 Now the manner and form of proceeding in a jure Tiie manner of patronatus, is thus : The bishop issues forth a commis- P'"°'^^^^i"g \" ^ r ' r jure patronatus. sion under his seal to his chancellor, or some other persons, whom he pleases, that are expert in the canon and ecclesiastical laws. In which commission (since the title of patronages is determinable at the common law) it were not amiss to join some common lawyer of eminent learning and integrity; and these commissioners are by him authorised to summon a jure patronatus, and to proceed to the determination thereof, and then the commissioner or commissioners so authorised issue out a mandate to some officer of their own to summon a jury, which must be one half clerks, and the other 22H. 6. 29. b. half laymen; and if they refuse, being duly summoned, to appear, the commissioners may proceed against the clergymen by sequestration, and the laymen by eccle- [ •" ] siastical censures to compel an appearance. When a full jury of clergymen and laicks appear, which must be six of each at least, the commissioners are to swear first a clergyman, and then a layman, till twelve be sworn at least of the jury. But the commis- sioners may swear a greater number than twelve of the jury, if they please, or see cause, so always that there be an equal number of laymen and clergymen sworn in the whole. The points inquirable by this commission are five : 1. Si ecclesia vacat, et quomodo vacavit? 2. Quis patronus ultimo prsesentavit .^ 3. Quis est verus et indubitatus patronus? 4. Quis praesentare debet ad ecclesiam nunc va- cantem ? 5. De idoneitate personas praesentatae. But the civilians vary in their articles at pleasure. But the main and chief points are the third and fourth ; the last resting wholly in the judgment of the bishoo. Callis Read. 29. The points in- quirable in a jure patronatus. Vide Lindwood per nostram provinciam verbo inquisi- tionem. 21 H. 6. 45. a. 18 THE PARSON^S COUNSELLOR. [part i. After the jury is sworn and charged, the counsel and advocates of botii parties are to shew their respective cUent's titles, and produce their evidences to prove the same. And after the evidence is given on both sides, and counsel fully heard, the jury may give their verdicts forthwith, or the commissioners may give them [ 18 ] time to consider of their evidence, and may assign them another time and place for the giving their verdict, as 22H. 6.29. b. in Other inquests of office; but I like much better (to avoid being tampered with) that they give their verdicts forthwith before they part, unless new evidence be ex- pected. Tiie effect cf a The effect of this suit is no more but for the bishop's jure patronatus. security, that he may avoid being a disturber; for the verdict of this jury is a sufficient warrant for the bishop to admit and institute his clerk, for whose title the verdict is given, and the bishop for so doing shall never be made a disturber, though the other patron against whom the verdict is given, shall after recover in a quare imped it, or other action. What is to be ^^^ supposc the jury will not agree of their verdict, done if the jury and the onc half be for the one patron, and the other verdict. '' ^^^^f fo^' the Other patron ; or, that they refuse to give any 35 H. 6. 18. b. verdict at all; or if they find a special verdict, as I sup- pose they may; the bishop in all these cases is left to proceed at his peril, as though no jure patronatus had issued at all; or perhaps in this case he may discharge the jury, and summon a new jure patronatus. 34 H. 6. 12. a. And it is to be observed, that after a verdict found in Callis Read. 29. j^ j^.g pationatus for the patron, the patron must again request the bishop to admit his clerk; otherwise, ii the church lapse after six months, the bishop may collate (9). J. g , But if two coparceners present several clerks by the What is to be same title, this doth not make the church litigious, but done where co- parceners, joint nantsinc*ommon (9) ^^ should scem from the authority cited, that the clerk, present seve- instead of the patron, is to make this request. rally. CHAP. III.] THE PARSON'S COUNSELLOR. 19 the bishop is bound to admit the clerk of the elder Doct. and Stud. sister. But this is to be intended where the eldest sister ^^t'''. o-o C.l Inst. 243.3. presents alone, and not jointly with any other of the 21 H. 6. 45. a. co-heirs (10). _ PJ-'-Jo. But if two joint tenants or tenants in common pre- 5 H. 7, 8. causa, sent several clerks, that makes not the church litigious; randuni est!*' ^' for the bishop may admit the clerk of which he pleases, n H. 4. .'js. ... . 33 H 6 3'2 Or if they do not agree and join in presenting a clerk j if,st. 186. h. within the six months, the bishop may collate. Doct. and Stud. Parceners made partition to present by turn, and Kite v. E\ esque usurpation was made in the turn of them, the court in- Bristol. . . P. 7 Jac. C. 13, clined that it should put all out of possession (11). 1 inst. ise.'b.* , 6 Ed. 4. 10. b. ^ . .31 H. 6.40. b. (10) The privilege of an elder sister to present first in Ubi supra. turn not only descends to her heir, but goes to her assignee. Buller V. the Bishop of Exeter. M. 1749. 1 Ves. 340. Where there are several cestui que trusts of a presenta- tion, they must all agree, or there can be no nomination ; so in case of joint tenants before severance, but where parceners in an advowson cannot agree, the Court of Chancer}' will, in a partition case, direct the parceners to draw lots who shall have the first presentation. Seymour v. Bennett, M. 1742. 2 Atk. 482. A. B. and C., three sisters, are coparceners of an advow- son, A. marries D. on whom A.'s third is settled; B. marries E., and C. dies, having devised her third to F., the son of B. and E. D. E. and F. being thus intitled, under or in right of the several original coparceners, a quare impedit is brought by G. a stranger, against D. and E. E. dies pending the writ, and the share of B. (previously deceased) thereupon descends to F. in addition to the share devised to him by C. D. suffers judgment by default. This judg- ment against D. is a bar to a quare impedit brought by D. and F. (in which D, is summoned and severed,) to recover the same presentation ; but is not a bar to F.'s right to re- cover on the next avoidance in his turn. Barker v. Bishop of London, 1 H. Blackstone, 412. (11) By the statute 7 Anne, c. IS. no usurpation shall displace the estate or interest of the patron, or turn it to a mere right ; but that llic true patron may present upon the c 2 20 THE PARSON'S COUNSELLOR. [part r. Pasch. 35. Car. 2. C. B, 2 Vcntr. 39. If the commis- sioners neglect their duties. n H. C. 30. a. Verdict does not bind. 21 H. 6. [20] 34 H. 6. 38. b Supra 12. 22 E. 4. 66. ISH. 8. 12. 35 H. 6. 62. And note, that the bishop needs not to make commis- sioners to inquire de jure patronatus ; but he may, if he pleases, do the same himself: and therefore, if his com- missioners neglect to do their duties, it shall not excuse him, because it was his folly to name such commis- sioners. But the opinion of the civilians seems other- wise: for they say, that the party shall name the com- missioners ; and if they neglect their duties, it shall be at the peradventure of the party that names them. And though they make a false return, or no return at all, it shall excuse the bishop ; and the party grieved is left to his action against the commissioners. And, as has been said, the verdict in a jure patrona- tus does not bind the adverse party's title, though it may be some evidence for him whose title is found to be the best. If there be three jointenants of an advovvson, the church whereof becomes void, it has been a question, if two of the jointenants may present a third, Dyer, 304. b. 14 H. 82. Moor, p. 14. Bendl. 34 (12). next avoidance. But that act is not retrospective. Attor- ney-General V. Bishop of Litchfield. E. 1801. 5 Ves. jun. 828. (12^) As the writ of quare impedit is now the only action used in case of the disturbance of patronage, it may not be improper to describe it in the clear language of Blackstone. " The writ of the quare impedit commands the disturbers, the bishop, the pseudo-patron and his clerk, to permit the plaintiff to present a proper person (without specifying the particular clerk) to such a vacant church, which pertains to his patronage ; and which the defendants, as he alleges, do obstruct ; and unless they so do, then that they appear in court to shew the reason why they hinder him. " Immediately on the suing out of the quare impedit, if the plaintiff suspects that the bishop will admit the defend- ant's or any other clerk, pending the suit, he may have a prohibitory writ, called a ne admittas ; which recites the con- tention begun in the king's courts, and forbids the bishop to CHAP. III.] THE PxVRSON'S COUNSELLOR. -21 admit any clerk whatsoever till such contention be deter- mined. And if the bishop doth, after the receipt of this writ, admit any person, even though the patron's right may have been found in a jure patronatus, then the plaintiff, after he has obtained judgment in the quare impedit, may remove the incumbent, if the clerk of a stranger, by writ of scire facias ; and shall have a special action against the bishop, called a quare incumbravit ; to recover the presentation, and also satisfaction in damages for the injury done him by in- cumbering the church witli a clerk, pending the suit, and after the ne admittas received. But if the bishop has in- cumbered the church by instituting the clerk, before the ne admittas issued, no quare incumbravit lies; for the bishop hath no legal notice till the writ of ne admittas is served upon him. The patron is therefore left to his quare impedit merely, which, as was before observed, now lies (since the statute of West. 2.) as well upon a recent usurpation within six months past, as upon a disturbance without any usurpa- tion had. " In the proceedings upon a quare impedit, the plaintiff must set out his title at length, and prove at least one pre- sentation in himself, his ancestors, or those under whom he claims; for he must recover by the strength of his own right, and not by the weakness of the defendants : and he must also shew a disturbance before the action brought. Upon this the bishop and the clerk usually disclaim all title : save cnl}', the one as ordinary, to admit and institute; and the other as presentee of the patron, who is left to defend his own right. And, upon failure of the plaintiff in making out his own title, the defendant is put upon the proof of his, ia order to obtain judgment for himself, if needful. But if the right be found for the plaintiff, on the trial, three farther points are also to be inquired: — I. If the church be full; and if full, then of whose presentation: for if it be of the de- fendant's presentation, then the clerk is removeable by writ brought in due time. 2. Of what value the living is: and this in order to assess the damages which are directed to be given by the statute of Westm. 2. 3. In case of plenarty upon an usurpation ; whether six calendar months have passed between the avoidance and the time of bringing the action: for then it would not be within the statute, which 22 THE PARSON'S COUNSELLOR. [part r; permits an usurpation to be devested by a quare impcdit, brought infra tempus semestre. So that plenarty is still a sufiBcient bar in an action of quare impedit, brought above six months after the vacancy happens, as it was universally by the common law, however early the action was com- menced. " If it be found that the plaintiff hath the right, and hath commenced his action in due time, then he shall have judg- ment to recover the presentation ; and if the church be full by institution of any clerk, to remove him : unless it were filled pendente lite by lapse to the ordinary, he not being party to the suit ; in which case the plaintiff loses his pre- sentation pro hac vice, but shall recover two years' full value of the church from the defendant the pretended patron, as a satisfaction for the turn lost by his disturbance ; or in case of insolvency the defendant shall be imprisoned for two years. But if the church remains still void at the end of the suit, then whichever party the presentation is found to belong to, whether plaintiff or defendant, shall have a writ directed to the bishop ad admittendum clericum, reciting the judgment of the court, and ordering him to admit and institute the clerk of the prevailing party ; and, if upon this order he does not admit him, the patron may sue the bishop in a writ of quare non admisit, and recover ample satisfaction in da- mages." — 3 Bla. Com. 247- et seq. There must be a disturbance to maintain this action : in a quare impedit, the patron declared on a disturbance of him to present Nov. 1 ; the incumbent pleaded, that. May i next after, the presentation devolved on the queen by lapse, and she presented him to the church, &c. and on the de- murrer the plea was held ill; because the defendant had not confessed and avoided, nor traversed the disturbance set forth in the declaration ; and though by the demurrer the queen's title was confessed, it appearing that it was already executed, and the defendant having lost his incumbency by ill pleading, the writ shall not be awarded to the bishop for the queen to present again, but for the patron. 1 Leon. ]Q4. It is a rule proper to be adopted in equity, that a quare im- pedit cannot issue after six months, where a parson has been presented to a living by one who has not a right, because it is the general one, that equity follows the law, whether originally cHAr. HI.] THE PARSON'S COUNSELLOR. ' -23 a resolution of the common law, or introduced by statute. The statute of Westminster 2. (13 Ed. 1. c, 5.) was intended to secure the peace of the church, and being considered as a statute of limitation, it is a bar of an equitable as well as a legal right, and therefore a plea of a plenarty of six months and upwards will be allowed. S. C, et vide Gardener v. Griffith, 2 P. W. 404. Trustees had an advowson, with directions to present in a certain time. This is directory only, and they may do it afterwards, but they must join in the presentation. General disusage is evidence of a consent to lay aside that part of their constitution, which arose by consent. Attorney-Ge- neral V. Scott, 1 Ves. 415. Where trustees have a power to elect a vicar, they must all join or the bishop may refuse their nominee, and he shall not, by quare impedit, be compelled to institute him. So election as well as presentation being requisite on the part of the trustees, they shall give notice of their meet- ing ; and if the election be not fair, the court will not then compel all the trustees to join in the presentation. Wilson v. Dennison, Ambl. 82. Where by neglect the num- ber of trustees to present to a living was not filled up at the time of an avoidance, the court would not by an injunction prevent the effect of a presentation, under the legal title of tiie heir of the surviving trustee, without special ground, but the court will take care that the trust shall be properly filled up in future. S. C. Where the trust of an advowson is to present some fit person, such as the inhabitants and parishioners, or the major part of the chiefest and discreetest of them, should nominate, the right of election is in the inhabitants, above the age of twenty-one, paying the church and poor rates, and a popular election by a majority of such voters, and others not so qualified, was in this case established. Fearon V. Webb, 14 Ves. 13, A bill was filed to have a presentation to a living on the next avoidance delivered up, charging the defendant with gross misconduct in obtaining it, and otherwise while a pri- vate tutor in the family. General demurrer to the bill was allowed, for the court said no bishop will ever institute such a clergyman, Macnamara v. , 5 Ves. jun. 82'i, 24 THE PARSON'S COUNSELLOR. [part i. CHAPTER IV. Hoz0 the Law stood concerning Pluralities before the Statute of 21 H. S. cap. 13. If ho are qualifed within that law to have Pluralities ; and how qualijied persons ousht to behave themselves in takins^ the second Livins;s, so that the former may not be void. What a plu- rality is. Co. 4. 90. b. Co. Mas. Chart. 626. Vide the records there cited. [ 21 ] Hob. 149. Concil. torn. 4. S21. ca. 2.9. Concil. Lat. 4. 1215. cap. 29. Concil. Lat. 3. 1180. ca. 13. Canon against pluralities. Co. 4. 79. a, Clement tit. a. cap. 3. gloss. Beneficia quee requirunt resi- dentiam sunt incapabilia. * Can. 5. Note, Those livings are said to be incompati- ble that have cure of souls, or A PLURALITY is, whcie one and the same person obtains two or more spiritual preferments with cure of souls, or without ; against which there have been se- veral canons, and they have been always discounte- nanced at the common law, and several complaints have been made against them in parliament; yet the Pope held them up by his dispensations. How agreeable these dispensations were to God's service; nay, how prejudicial they have been to the advance of the christian religion, and are, I leave others to judge; it being no part of my undertaking. And though I find a great judge of this nation defending of them ; yet I find a canon in the general council of Lateran against them, in the year 1215, in these words: " Statutum est quod, quicunque receperit aliquod beneficium habens curam animarum anncxam, si prius tale beneficium obtinebat, eo sit jure ipso })rivatus, et si forte illud re- tinere contenderit, alio etiam spolietur. Is quoque, ad quem prioris spectat donatio, illud post receptioneiu alterius conferat cui merito viderit conferendum." And by another council there held under Leo the 10th, anno Dom. 1 123, it is further decreed, that " dis- pensationes autem ad plura *incompatibilia ultra duo, nisi qualificatis juxta formam juris communis non con- cedantur, nisi ex magna et urgente causa." are forbid to be held together by some caiioii. CHAP. IV.] THE PARSON'S COUNSELLOR. 25 And now let me tell you the fruits of pluralities out Tom. 5. 368. of another council, which is delivered in these words : ^^^ ^^^^^ ^^ " Res ipsa loquitur, plura beneficia, potissimum quibus pluralities. cura animarum submissa est, non sine gravi ecclesiarum Qe^; Jtf i ''g damno ab uno obtineri ; cum unus in pluribus ecclesiis tit. 2. ca. 3. . X rr> • 1 .1 • „ Gratian. causa rite officia persolvere, aut rebus earum necessariam 21. q. i. Mag. curam impendere, nequeat." Yet the canonists allow of pluralities in six cases: 1. When the churches are so poor, that either by it- self will not maintain a minister. 2. In such cases as the bishop dispenses with them. 3. Where there is a scarcity of clerks. 4. Where the clerk has one by title, and the other by [ 22 ] commendam. 5. By grant from the Pope. 6. Where two churches are united, or depend the one upon another. Which Hostiens. renders thus : Ecclesias plures nullus de jure tenebit. Dependens, tenuis, rarus, vel gratia Papa?. Utilitas urgens, et commendatio justa. But, as I take it, the council of Lateran reduces all Couc Lateran. these qualifications to the Pope's dispensations. The j^jso. '^^' * canon is as follows : " Cum fuit in hoc concilio prohibitum ut nullus di- ^=?"- ~^- . , . . , . Vide decretals versas dignitates ecclesuisticas, et plures ecclesias pa- Gregor.de rochiales reciperet contra sacrorum canonum instituta. F!Ebeiidis,&c. Hoc idem in personalibus decernimus observandum, cap. ad haec. addentes, ut in eadem ecclesia nullus plures dignitates habere praesumat, aut personatus, etiamsi curam non habeaiit animarum. Circa sublimes tamen et literatas personas, qua? majoribus sunt beneficiis honorandae (cum ratio postulaverit) per sedem apostolicam poterit dispensari, 8cc." And upon this canon, Goodman, dean of Wells, was Dyer, 273. p. deprived of his deanery, because he had accepted the prebend of Wiveliscome in the same church, in the 26 THE PARSON'S COUNSELLOR. [part i. time of E. 6. x\nd note, These presentments were not within the statute of pluralities, but are left as tliey were upon the canon law ; for the statute only extends to livings with cure of souls (13). [ 23 ] I might enlarge much more upon this subject; but it being collateral to what I design, this taste shall serve. And if any body desire further satisfaction upon this subject, I commend him to the history of the Cone. Trident, council of Trent ; where he will find, that by the greater "*^^" and better opinion of that council, residence b}^ him that hath a preferment in the church with cure of souls is of divine right; and that therefore the Pope had no power to dispense with non-residence, the consequence of which is, that it is against divine right for any to take more benefices than one with cure of souls, be- cause the same person cannot be resident in two places at one and the same time, to discharge his duty ; which requires a constant attendance. More, 119. But as the Pope by stratagem made the endeavours of all the good men in that council ineffectual, so by his frequent dispensations to take pluralities without (13) It may not be inapplicable to give some account of the canon law. The canons of l603, which relate to clandestine marriages, are the 62J, lOlst, I02d, 103d, and 104th; but none of them affect the parties contracting, ex- cept the last clause of the I04th, which relates to persons married by colour of false pretences : the court, however, held in this case, that the canons of 1603 not being confirmed by parliament do not proprio vigore bind the laity; and there is no canon since l603, which can bind a layman, though made in full convocation. Yet canons that have been allowed by general consent within the realm, and are not repugnant to the laws, shall still be in force as the king's ecclesiastical laws. The necessity of parliamentary confirmation to bind the laity has existed ever since the reformation . Middleton V. Crofts. 2 Atk. 650. (Append.) Ca. Temp. Hardw. 57. 2 Str. 1056. 2 Kel. 148. CHAP. IV.] THE PARSON'S COUNSELLOR. 27 number or measure, he made the canons of the church of no other effect than to increase his own revenue by dispensations. And it should seem the council of Lateran was re- Acceptance of a ceived and approved (as to that point) in this kingdom, second living rt ^ I 1 I 1 makes the first and the law was always taken, that he that had one void. living with cure of souls, and without dispensation ac- cepted another with cure of souls, made the first void : 24 E. i. 29. b. ' . . <> , ^ , , • , 25 E. 3. 49. a. so that the patron of the first church might present 55 b. a new clerk, and needed not to stay till the former clerk ^ 1 H. 4. 60. a. ' . •' per Hill. should be legally deprived. 14 H. 8. i7. a. But in this case the church doth not lapse till the C '-^^ 1 end of six months, to be accounted from the time the Co. 4. ')o. b. patron hath legal notice of the vacancy from the bishop ; 9 -^ 3 22, a. ' but after induction, the patron, as it should seem, is 10 E. 3.1. bound to take notice at his peril. And as to all others, i^yC.i. ss! b. but the patron, the church remained full till induction F. N. B.34. L. 1 15 E. .3. .0. into the second living; and so are all the books, that n h. 4. 37. seem prima facie to differ, reconciled. Cro. Car. 357. But the parliament of England, that in all ages made Several acts to 1 1 1 • 1 1 • 1 1 ■ 1 "^ • 1 1 • ^ restrain the bold With his holiness, and to restrain the exorbitances p^pg of the Pope and court of Rome, as the reader may 27E. 3. cap. l. ... S • r , • in I 1 . r- 3 1^- 2. cap. 3. see, ir he please to satisiy himseir by the several acts or 7 r. <2. cap. 12. parliament mentioned in the margin against provisions "„H; ^A ^''P' *; ^ . ^ ^ . , 38 E. 3. cap. 1. suing at Rome, impeaching judgments given at the i6R. 2. cap. 5. common law, aliens beine; beneficed within this realm, ^^^4^'^^^: '• . . 25 E. 3. of pro- privileging religious orders from payment of tithes, visions; and and many other things ; and I cannot forbear to ob- g\f '/'ca^^ll* serve to the reader the boldness of the parliament in the sixth year of H. 4. with his holiness, where they restrain the giving of exorbitant and unjust fees for the investi* tures of bishops. The act begins thus : " Wliereas there is a damnable custom in the court of Rome, to take more for the investiture of bishops," &c. Certainly these brave parliamenteers never expected his holiness's indulgence or pardon, this seeming a siu as high as that against the Holy Ghost, to charge their 28 [ 25 ] Can. 8. * Nola. The act against pitinilitics. 21 H. 8. c. 13. Co. 4. 79. b. This is a con- linnation of the canon v\'lieie the living is above eight pounds per aimum, but does not annul the canon law in other cases ; so that the eiiect of this law is, tliat it takes away dispensa- tions in this case, but leaves the smaller livings, as they were before. [26 \ THE PARSON'S COUNSELLOR. [part i. holy father with a damnable custom in his court, to use extortion and simony. And the council of Lateran, under Leo the 10th, anno Dom. 1523, dealt almost as plainly with his hoH- ness, speaking of simony ; that council has it, " LTt ne- fariaj simoniae labes et pestis non solum *a Romana curia, sed etiam ab omni christiana ditione, in perpe- tuum dejiciatur, constitutiones per antecessores nostros etiam in sacris conciliis nostris editas contra hujusmodi simoniacos, innovamus; easque inviolabiliter observari prajcipimus." But to return : The parliament, to prevent the mis- chiefs of these dispensations, made a law in the twenty- first year of H. 8. " That if any person or persons, having (that is, being instituted) one benefice with cure of souls, being of the yearly value of eight pounds or above, shall accept and take any other with cure of souls, and be instituted and inducted into the possession of the same, that then, immediately after such posses- sion had thereof, the first benefice should be void. " And that it should be lawful to every patron having the advowson thereof to present another, and the pre- sentee to have the benefit of the same, as though the incumbent had died or resigned, and that any license, union, or other dispensation contrary to that act should be void." If this act had gone no further, it had been an ex- cellent law. But there are so many qualifications in this law that wholly defeat the benefit of it, since the nobility are grown so numerous as they are at this day ; so that the grievance is now become as great as ever, if not greater, and deserves a new and stricter reforma- tion ; for almost all the greatest and best livings of the kingdom are now held b}' pluralists, and served by mean curates. But now let me return to the act, and observe; CHAP. IV.] THE PARSON'S COUNSELLOR. 29 Tliat this act has only provided a remedy, where the stiliingfl. Ecd. first Hving is of the yearly value of eight pounds or ^^o! 6^ c*a. 45. above, which must be understood according to the p. ipjac. C.B. valuation taken in the twenty-ninth year of King Ed- JamT E?"sque ward the First, till the twenty-sixth of Henry the Peterborough. Eighth ; and after that time, according to the valuation g^^and Handiy then returned into the exchequer, and now made use of T. , ,. r • r.' ^T> r ■ • 44 El. B. R. in the first-fruits office. * But many former opinions j^^^ ^g^^ and books have been, that the valuation ought to be The court was ,. , , T 1 divided. according to the true value. Ideo quaere. * c^er, 237. This point was moved in Shute and Higden's case, p- '-^9- tr ^ . 1 , • • Cro. Eliz. 853. Vaughan 130, but was not settled, so it remams a quaere Qua-re. still. Vide Vaughan, Shute v. Higden. Bushy v Smith. '-' . . T. 40 Eliz. But in case the first living be under the yearly Kot. i23. value of eight pounds, or a sine cura, then the party Noy, 38. may accept a second, as he might have done before this act, with a dispensation, which he needs not now to go to Rome for, although he be not qualified within [ 27 j this law. But I conceive, if an incumbent of a living undeiv iy^'^'^ '^ the value, take a second living without a dispensa-^^^ ♦^^y^^';;,^^! tion, that the first living is void by the canon law, though it be not so by the statute (14). (14) And if an incumbent of a church, with cure, under eight pounds a year, take a second benefice with cure, in which he is also instituted and inducted (no dispensation be- ing obtained for the holding of them both) by which the first is void against the patron, so that he may present; but before the patron presents upon such avoidance, the archbishop, by force of this statute, grants to the clerk a license perinde valere, to hold the first with the second benefice ; this is not a good license (although confirmed according to the statute) to take away the patron's presentment, though his church was only void by force of a canon and not by statute : for by the canon the first benefice was so void, that the patron might have presented before any deprivation ; and after the patron hath once a title to present, this title cannot be taken away 30 THE PARSON'S COUNSELLOR. [part r. Who are quail- But by this act there are several persons qualified fied to have jq j^j^^g g^j^^j retain plurahties ; and those are of three plurahties. ^ sorts : 1. By service. 2. By their birth. And, 3. By dignities. And first of those that are quahfied by service. QuaUficaiions, 1- -All the king's chaplains, (which are not of liis council), and of the queen, prince, princess, and brethren and sisters, uncles and aunts of the king. 2. Eight chaplains of every archbishop. 3. Six chaplains of every duke. 4. Five chaplains of every marquis and earl. 5. Six chaplains of every bishop. 6. Four chaplains of every viscount. from him by a subsequent license, unless such a license could make a void church full. Wats. C. 2, 3 Burn's E. L, 96. If an incumbent in possession of above eight pounds per annum, in the king's books, accepts a second living under that value, and takes a second without a dispensation, the first is absolutely void; if being in possession of a living under eight pounds, he accept a second without a dispensa- tion, the first is voidable at the election of the patron. 3 Atk. 455. 1 Bla. Com. 392. note 33. A perpetual curacy is not an ecclesiastical benefice, but is tenable with any other benefice : by the ecclesiastical law the acceptance of an ecclesiastical benefice of ever so small value, makes a former benefice void, Weldon v. Green, 1772, from a MS. note of Serjeant Hill communicated by Sir W. Scott. But now by stat. 36 Geo. 3. perpetual curacies, augmented by Queen Anne's bounty, are made benefices presentative, and a license to them shall render other livings voidable, in the same manner as institution to pi'esentative benefices. CHAP. IV.] THE PARSON'S COUNSELLOR. 31 7« Three chaplains of the lord chancellor, and of every knight of the garter and baron. 8. Two chaplains of every duchess, marchioness, countess, and baroness, being widows. 9. Two chaplains of the treasurer and comptroller [ 2s ] of the king's house ; the king's secretary, the king's almoner, clerk of the closet, and master of the rolls. 10. One chaplain of the chief justice of the King's Bench, and warden of the cinque ports for the time being. All these, in respect of their services, may purchase license or dispensations, and take, receive, and keep two parsonages or benefices with cure of souls, notwitii- standing this act. But those of the king's chaplains, that are sworn of the king's council, may purchase license or dispensa- tions, and take, receive, and keep three parsonages, or, Sec. with cure of souls. S. The second qualification is by birth ; that is, the Qualification by brothers and sons of all temporal lords and of knights, "^^ ' born in wedlock, may purchase license or dispensations, and take, receive, and keep two parsonages, &c. with cure of souls. In which qualification it is to be observed, that no provision is made for bastards, nor for the sons of bishops, abbots, priors, 8vC. And note, in this case the sons and brothers of knights have greater privilege than the sons and bro- thers of baronets. 3. The third qualification is of certain persons dig- [ 29 ] nified in the universities: and of that sort are all doctors Q"'''.'''*^»tion by ... ilignity. and bachelors of divinity, doctors and bachelors of the canon laws, which shall be admitted to any of those degrees by any of the universities of this realm, and not by grace only. All which may purchase licenses 32 Proviso, That above the num- ber shall not be aflvancfd. Proviso, That they must have testimonials. Roy versus Saveacre. T. 28 El. C. B. Rot. 1130. Hughes, p. 41. Roy V. Evesque Lincoln et alios. [30] T. 31 EI. Rot. 725. C. B. THE PARSON'S COUNSELLOR, [paht r. or dispensations, and take, receive, and keep two par- sonages, 8cc. with cure of souls (15). And in this act there is a negative proviso to this effect, that no person or persons to whom any number of chaplains, or any chaplain by the provisions afore- said is limited, shall in any wise, by colour of the same provisions, advance any spiritual person or persons above the number to them appointed, to receive or keep any more benefices with cure of souls, than is above limited. There is another proviso, that the chaplains so purchasing, taking, receiving, and keeping benefices with cure of souls, as aforesaid, shall be bound to have and exhibit, where need shall be, letters under the sign and seal of the king, or other their lord or master, testifying whose chaplains they be, or else not to enjoy any plurality of benefices by being such chaplains. Upon this clause some question has been made, whe- ther a chaplain can be retained within the meaning of this law by parol ; and it seems he may, so that they have such testimonial, when they pray their dispensa- tion ; but the safest way is to have it in writing, and it must be under hand and seal. How to proceed in the taking of a second living. Now having shewed what persons are qualified within this statute, I will in the next place show how the clerk, that would have the benefit of his qualification within this law, ought to proceed in the taking a second living, so that the first may not be void, which is in this manner : The parson that falls within any of the qualifications (15) Henry 8th, in the 27th year of his reign, issued a mandate to the University of Cambridge, that no one in future should take a degree in the canon law. Both uni- versities have since discontinued that kind of degree. Vide 1 Bla. Com. 392. Mr. Christian's note. CHAP. IV.] THE PARSON'S COUNSELLOR. 33 within this law, which makes him capable of a plurality, and having obtained a presentation to a second living, must carry his testimonial or retainer under the hand it should seem and seal of his lord or master, to the master of the fa- that the king . . might dispense culties, who is to make out his dispensation or license with a plurality to accept the second benefice ; which being obtained, ,^'^^"'4 ""J**^" he must next have it confirmed under the great seal of Stat. 25 h. 8. England : and after he hath thus obtained his dispensa- "P" ^'" tion, and has it confirmed under the great seal, then, and not before, he is to apply himself to the bishop of the diocess where the living lies, for his admission and institution. But these things taking some time in the doing, I advise the clerk immediately to enter a caveat with the bishop and his vicar-general, and carry his presentation to the bishop, and acquaint him with it, and with the reason of this delay, lest he should be surprised. Though by the letter of the act, the first living is not . f ^i void until induction into the second living; the words by instltudon" whereof are as follow : " If the party be instituted and i"'" the second, inducted in possession of the second living, that then the first shall be void." Yet to avoid the great incon- Co 4 79 b venience that otherwise would ensue, it has been held Hob. 166. that the first living is void upon the bare institution into the second living; and so it should seem the law was before the making of this act, where the party had no dispensation. And it is to be observed upon this law, that in case \\Tiich chap- any lord, or other person, whose chaplains are qualified Jains shall be .,.,., , ,. . . . qualified, where Within this law to have two or more livings mcompati- above the num. ble, do retain his full mimber of chanlains, and after, ber is retuined. ' 1 , • , 1 '• 1 , More, 561. one or more above liis number; that in that case the Co. 4. 50. a. supernumerary char)lains, that were retained after such ??'^ '!,?• *• .^ I ' . . , K. V. Lvcsquc lord, or other person, had retained his full number Glouc.and allowed by the statute, are not qualified by this law to ^.'i^''J''cre. ... ... , , Anderson, 200. have pluralities of livings, although flic supernumerary i) 34 THE PARSONS COUNSELLOR. [part i. tliaplaius be piei'eried before the other that were first retained. Dyer. 512. But if a chaplain qualified within this law be legally y *^ inducted into a second living with a dispensation, as he ought, although his master be attainted, degraded, or removed from his office, yet he shall retain his plurality during his life. [ 52 ] But if one be retained chaplain to any lord or other The master dies, .,grson, whose chaplains are qualified within this law, &C. before pre- ' ' ,• • • i i- i lerment. Co. 4. and his master dies, is attamt, degraded or displaced "^' '' before his chaplain be preferred to a second living : or if such lord or other person discharge such a chap- lain (as he ma}'), in all these cases the chaplain loses his qualification to have plurality of livings incom- patible. Co. 4. ns. b. gm- if jj duchess, marchioness, countess, or baroness the mistress . i . ■ i r • i • i n marries. do rctam a chaplain, and arter marries, this shall not take away the qualification of such a chaplain, but that That is, having he may have pluralit}' of livings incompatible within this law, as he might have done before. Co. 4. 119 a. And if such duchess, &.c. retains chaplains, and after marries, and after becomes a widow 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 duchess, marchioness, countess or baroness do marry an husband under the degree of a nobleman or baron, that 3'et, nevertheless, she may retain two chaplains, which shall be qualified within this law. What prefer- And it is declared by this act, that deaneries, arch- mentsareiu.t deaconrics, chancelloiships, treasurerships, chaunter- wuhin this law. ' , t- > , 1 , n • ships or prebendaries in any cathedral or collegiate r 33 T church, or any parsonage that hath a vicar endowed, or any benefice perpetually impropriated, are not to be esteemed benefices with cure of souls within this act. And if an}' duke, lord, or other person, whose chap- lains are qualified within this law, shall h^ve a double CHAP. IV.] THE PARSON'S COUNSELLOR. 35 capacity to qualify his chaplains ; as if a duke, &c. be made lord-warden of the cinque ports, or a baron, Co. 4. lis. a. master of the rolls, knight of the garter, &c. In all these cases such duke, baron, &c. can but qualify his number of chaplains, according to his best qualification only. And if the eldest son of a duke, marquis, &c. retain Chaplains re- chaplains in the lifetime of his father, who after dies, liVe of the lather, and the honour descends upon such son; yet this re- Co. 4. 90. tainer will not qualify his chaplains to have pluralities within this statute, because at the time of the retainer he was not capable to qualify them. " Etquod ab initio non valet, tractu temporis non convalescit." If a duke, marquess, &c. retain his full number of Lord djschargej chaplains which are advanced, and then discharge them ; tj,ey areV^- yet he cannot, during their lives, qualify any other furred, within this statute. But if a duke, marquess, &c. that has power within a great number this act to qualify chaplains, at one instant of time °f chapiams re- ,. Ill 1 ri !• talned together. retain his double number or chaplains, or any super- Co. 4. 90. a, numerary chaplains ; in that case, those only shall have Dyer.^is.p.ss. the benefit of qualification that are first preferred. [ 34 ] " Quia in sequali jure melius est conditio possidentis." If one that is qualified within this statute take a second ^°" '^'^,^' ^' „ . . . , . , Dyer,312.p. S8. living incompatible, and be instituted or inducted into the same before he have obtained a dispensation, the first is void, though Dyer makes a quajre of it. And note, that it hath been resolved, that the king jhis law is not himself cannot dispense with this law. Dyer 351. p. 2. dispt^nsable, 327. 2, p. 4. Trin, IS El. C. B. Coxe's Case. If a parson have a living under the value of eight Vaughan's pound, and take another without dispensation, the first I^^P' '^u- , is void ; and if he do not read the thirty-nine articles, or do not do the other things prescribed in the sixth chapter of the first book, whereby the second living is d2 36 THE PARSON'S COUXSELLOR. [p^rt j. void; yet that helps not, but that the fust liv'm, but since the bill of rights, 1 Will. 3. Sess. 2. c. 2. the power of suspending laws by regal authority, without the consent of parliament, has been declared illegal. Gibs. gil. 3 Burn's E. L. 105. In the common pleas ; in a quait3 impedit on the presenta- tion to the rectory of Adderley, St. Peter, in the county of Salop, being a benefice of above eight pounds value in the king's books; the declaration stated, that Clive, being in- cumbent of Adderley, had accepted the vicarage of Clan, at more than thirty miles distance from Adderley, whereby the latter became void. Clive pleads a dispensation under the great seal, and denies that the livings are more than thirty miles distant : and upon that, issue is joined. On the trial it was proved, by an actual admeasurement along the turnpike road, that the distance from church to church was forty-eight miles, from parish to parish forty-three miles; that the direct horizontal distance from church to church was forty-two miles, from parish to parish thirty- eight miles; but that by computation in the country, the two livings were but twenty-nine miles distant, and this was the usual method of computing distances upon such dispensations. Of which opinion was the judge who tried the cause, and a special jury, who found a verdict for the defendant. It was moved for a new trial, alleging that the measured distance was the only one the law could take notice of; and the stat. 35 El. c. (5. was cited, wherein a mile is declared to contain eight furlongs, each furlong forty poles, and each pole sixteen feet and a half. On shewing cause against a new trial, it was argued, that the distance of the parishes is a matter merely regulated by the canons of the church, which may be directory in such cases to the archbishop, but is not taken notice of in the statute of dis- pensations, nor ever called in question in the king's temporal courts, therefore the issue is immaterial; but if material, the ecclesiastical laws must be the rule in this case, and there the uniform practice has been to go by computed miles. And the court were clearly of opinion, that by the temporal law, the distance of the cb.urches is immaterial ; and they dis- charged the rule for a new trial. The King v. Clive, Bla. Rep. 968. 3 Burn's E. L. 105. 42 THE PARSON'S COUNSELLOR. [vart u By 48 Geo. 3. c. 14y. For every skin or piece of vellum or parchment, or sheet or piece of paper on which any dis- pensation to hold two ecclesiastical dignities or benefices, or both a dignity and a benefice, shall be ingrossed or written, there shall be paid a stamp duty of thirty pounds, where either of them shall be above the yearly value of ten pounds in the king's books, and in all other cases twenty pounds. By the 1 Will. 3. c. 26. If the universities shall present or nominate to any benefice with cure, prebend, or other ecclesiastical living (the presentation or nomination to which is in a popish recusant convict), any person who shall then have any other benefice with cure of souls, such presenta- tion shall be void. CHAP, v.] THE PARSON'S COUNSELLOR. 43 CHAPTER V. [ s9 ] What Simony is, and who shall he said to be guilty (yfity and what are the Dangers ensuing thereupoyi. 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 simony 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 simoniacal contract; 1 thought it fit by the wa}' to let my clerk know, not only what simony is, but likewise the danger that attends it. Simony, by the canonists and schoolmen, is defined What siraony is. to be, " Studiosa voluntas emendi vol vendendi aliquid Koiuo c\tra\-o, spirituale aut spiriluaii annexum opere subsecuto." ^^• And Thomas Aquinas says, " Quod simonia dici Tho.Aq.'2o.'ix. videtur -ASimone May-o.qui donum spiritus sancti emere 1- ^'^^^- '"'^- '• , . 1. . ° \ ^ ,. Cro. El. 7S3. voluit, ut ex venditione signorum quai per eum herent Tho.Aq. ibid. multiplicatam pecuniam lucraretur; et sic illi spiritualia ''^'^^^^• vendunt, conformantur Simoni Mago in intentione, in Hovenden in hi* acui vero illi qui emere volunt : illi autem qui vendunt History ot H. i.'. ,^. .... TT I- • mentions a cariua m actu imitantur Giezi discipuium Hehsaei, de quo made by Rich- legitur 4 Keg. c. 5. quod accepit pecuniam k leproso aj:\\- bcnedlcere quomodo potest .'" And the same lioly father shoddlot'eTiT' ^'""^her says, " Si presbyter per pecuniara ecclesiam ob- patronace {«r tinuerit, non solum ecclesia privetur, sed etiam sacerdotii cor. Hoveden, i r 4. . " H '> p sio honorc spolietur. Speed, 503. a. And it appears clearly, that the very intention to buy \\2i ^T^ spiritual gifts or preferments, carries with it the guilt of simony, as well as the aet itself: and therefore the holy apostle said to Simon Magus, " Cor enim tunm non est rectum coram Deo; pcenitentiam itaque age ab hac nequitia tua, et roga ]!)eum si forte remittatur tibi ha?c cogitatio cordis tui." But tliis is in foro conscientiae only, and not punishable by any human laws, unless it proceed to the act. Division. Simony by the canonist is distinguished into simoniace Canons against siuioniacus: the first is where the clerk comes in bv siniony. - simony, whereunto he is not party or privy: simoniacus is he which obtains a spiritual preferment by a corrupt 141] and simoniacal contract, to which he is party or privy, and consenting. Selling of tithes is called simony in some passages of popes about A. Dom. 1095. Selden de Dec. I3j. Against this corruption in the church many church canons have been made, amongst which I shall instance onl}' two, and those provincial ones of our own nation. Vide Hoveden, The first was made in the time of Henry the Second, p. 310. \^y Richard, archbishop of Canterbury, and is as follows : Lindw. c. NuUi " JNulli liccat ccclcsiam nomine dotalitatis ad aliqucui liceatEccle- transferre, vel pro prjesentatione alicuius personal pe- siam, &c. 1 I- • T T , 1 .) i . « fol. 152. a. cuniam vel aliquid aliud emolumentum pacto inter- VidetheAp- yeniente recipere: quod siquis fecerit, et in jure con- jiendix 1. to , , . tiiis chapter. victus vcl confcssus fucrit, ipsum tarn regia quam nostra iVeti authoritatc i)atronatu eiusdem ecclesia^ in perpe- Vide Stillin-fl. '. „ t> . •. . a; • V Eccles. Cases, tuum privari statuimus. But it was not surticieni by page 85. ^ caiioH, to dcprivc a man of his freehold or inhcritdnce,! Lindw. 77. a. ' ].i'2. a. CHAP, v.] THE PARSON'S COUNSELLOR. 45 be the word in perpetuum taken for life, or for ever, as it imports; neither was this canon ever put in execu- tion, or attempted so to be, that I find. The other canon I made mention of, I find among Cap. Quia the canons of Othobonus, the pope's legate here in pl'^r'»«'qiie, England ; which is to this effect : *' Quia plerumque evenire didicimus, quod, cum ad vacantem ecclesiam fait praesentatio facienda, is qui praesentandus est prius cum patrono de certa summa de bonis ecclesiae sibi annuatim solvenda paciscitur, et sic pactus ad ecclesiam praesentatur. § Nos huic actui tarn j^ 4.2 j simoniae vitium quam ecclesiic dispendium ingerenti occurrere intendenies, universas promissiones et pac- tiones hujusmodi penitus revocamus, et eas imposterum fieri districtius inhiberaus : et si facti 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 de- terminable at the common law, where this canon could not be pleaded in bar. I have mentioned these two canons, not for the va- Cro. El. 788, lidity or use, so much, as to satisfy the reader what pro- Je^vVarburton. vincial canons we have against simony, and to how little effect they were before the statute of 31 Eliz. But there were some general canons of the church of * PerBuliam greater force, whereby simoniace is punished by de- tur i'p^o'faao de privation, and simoniacus, b\' deprivation and perpetual omnibus digni- disability, * not only as to the church he was presented ^^^-^ officiis, et to upon a simoniacal contract, but also to all others : and efficitur inha- , . , . . ,. 11-111 bills ad (minia. bemg malum m se, it is not dispensable either by the 3 j^^t 154 kine or any other. Stillingfl. Eccl. Cases, 85. Rol. 1. Tho. Aq.2o.2». T» ^ . q- 100. Art. I. Rep. 237. (19). la. 2. (19) Simony is the more odious (says Lord Coke) because it is ever accompanied with perjury; for the presentee is *\rorn to commit no simony. 3 Inst. 1.^6. Vide the oath 46 THE PARSON'S COUNSELLOR. [part i. s. Aug. de iiip- And it has been held by some of the fathers to be lesibus in prin- g, hciesy, if not the sin against the Holy Ghost: but s.G^reg. in Reg. neither the greatness of the sin, nor the severity of the hab. 1. q. 1, &i. canons, were sufficient to restrain this evil in the church, till the parliament of England took it into their care, and in the 3 1 of Eliz. it was enacted : r *3 ] L That if any person or persons, for any sum of Stat. 31E1. c.f.. 1 -f. C. u C ]• .1 Statute against moncy, rcward, girt, proht or beneht, directly or in- simony. directly, 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, • Relates to directly or indirectly, shall* present ort collate any ^Th■"s^s to hi- person to any benefice with cure of souls, dignity, pre- shops. bend, or living ecclesiastical, See. or J give or bestow J onatives. ^.^^^ same for or in respect of any such corrupt cause or consideration, that then every such presentation, colla- Hishops. tion, gift and bestowing, and every admission, investi- ture and induction thereupon shall be utterly void, &c. And that the queen, her heirs and successors, to pre- sent, collate, &.C. for that one turn only. Penalty. And that every parson, 8cc. 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 year's 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. Agiiinst pre( 1- 2. And further, that if any person shall for any sum oHnsti^tution'"" ^^ money, reward, 8cc. (ut supra) directly or indirectly fee. ' — administered according to canon 40, to every person ad- mitted to any ecclesiastical preferment whatsoever. 3 Burn's Eccl. Law, 347. In the case of R. v. Lewes, M. 4 G. an information was moved for against a clergyman for perjury at his admission to a living, upon an affidavit that the presentation was simoniacal ; but the court refused to grant it till he had been conyicted of the simony. Str. 70. CHAP, v.] THE PARSON'S COUNSELLOR. 47 (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 year's profit of such benefice, 8lc. and that the said benefice, &c. shall [ 44 j be eftsoon void, Sec. 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. And if any incumbent of any benefice with cure Against corrupt •^ 1 • 1 1 resignations and of souls, do or shall corruptly resign or exchange the exchanges. same, or corruptly take for or in respect of the resign- ing or exchanging of the same, directly or indirectly, any pension, sum of money, or benefit whatsoever; that then the giver and taker of any such sura, 8cc. cor- ruptly, 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 majesty's courts of record, in which no . essoign, &c. 4. Provided, that this act shall not restrain any cen- Ecclesiastical sures ecclesiastical, &c. '''''''''' '""'^• 5. And further it is provided, that if any person shall simony in or- receive or take any money, fee, reward, or any other Naming and J >" '' , giving orders t» profit directly or indirectly; or shall take any promise, preach, agreement, covenant, bond, or other assurance, to re- ceive or have any money, fee, 8cc. directly or indirectly, to him or themselves, or any 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. 48 THE PARSON'S COUNSELLOR, [part i. [ 45 ] " And that if such minister, within seven years next after such corrupt entering into the ministr}', &c., shall except or take any benefice, living or promotion, eccle- siastical, the same living, after induction, &c. to be void. " And that the patron may present, Sec. as if the part}"^ 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.)" Canons aeainst ^^^ ^ ^^ "°^ observe, that the corrupt patrons were law. in danger to sufi'er by any law or canon before this law was made ; for, as I said before, his right could not be taken awa}"^ by a mere canon not confirmed by parlia- ment; and before this law was made, the incumbent that came in by simon}?" held the living which he ob- tained by simony, until he was legally and judicially deprived by sentence ecclesiastical, wherein he often escaped for want of such proof as Uie spiritual law re- quired. 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. Hob. 161 3 Inst. 154. 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 : not according to the valua- tion in the king's books in the first fruit office, but [ 46 ] according to the true and utmost value of the church. 3 Inst. 153. l^ut if one that has no right to present shall, by means of a corrupt and simoniacal agreement, present a clerk, who is by his presentation admitted, instituted and inducted into a church; yet this shall not entitle the king to present. For though the act of parliament makes all void, yet an usurper cannot forfeit the righl of another in whom there is no fault. CHAP, v.] THE PARSONS COUNSELLOR. 49 Note, That the patron shall lose his presentation Co. 12. 74. within this law, although the clerk be not privy to the corrupt contract. And it seems by the penning of this act, that the forfeiture of the double value of the church is incurred by the corrupt contract only; but the presentation is not forfeited to the king, unless the clerk de facto is presented or collated upon such corrupt contract. And it matters not whether the incumbent, that Clerk not privy comes in by simoniacal contract, were privy thereunto to the simony. or not, as to making the church void. But the greater question is. How the canon Whether the clerk that is presented upon a simo- [aw stands m _ r ^ r ^ this case, see niacal contract, to which he is neither party nor privy, Gratian. Causa, be disabled for that turn, to be presented by the king Q^^on'sDe- tO that church? cretals, deSimo- nia. 1619. I have seen the report of a case in the latter end of [ 47 ] the reign of King James, where it was adjudged, that th^oTn^*^ " ^' if a clerk were presented upon a simoniacal contract, P. i7Jac.B. R. to which he was not party or privy, that yet notwith- standing it was a perpetual disability upon that clerk, as to that living. And in the case of Baker and Rogers, M. 42 and Cro. El. 78n. 43 El. B. R. The case was. Baker agreed, the church ])eing void, to give the patron 180/. 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 fgr the corrupt contract: and there it should seem by Mr. Justice Wnrburton, that the clerk was disabled quoad banc. E 50 THE PARSON'S COUNSELLOR, [part i. Cro. Jac. 385. And in a cause between the king and the Bisliop of Bulst. 392. Norwich, Cole, and Sair, Sir George Croke, who was a counsel in the cause, reports, That Sir Edward Coke 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 notwith- standing the incumbent coming in by the simoniacal contract, is a person disabled to enjoy that benefice, [ 48 ] although he obtain a new presentation from the king; for the statute, as to that living, has disabled him during life. I must acknowledge, if the law be so taken, it is very severe, n Inst. 154. But let us hear Sir Edward Coke himself speak, 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 con- senting to any such corrupt contract, as is forbidden by this statute, (because it is no simony 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. Co. 12. 101. And Sir Edward Coke, in that book that goes under 3 Inst. 154. ^^Q name of his Tw^elfth Report, and without doubt was his own, reports, that it was so adjudged in the case of Dr. Hutchinson, parson of Kenne, in Devon- shire, 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, admission, and induction are all void within the letter of the statute. For the law intendeth to inflict punish- ment upon the patron, being the author of this cor- ruption, by the loss of his presentation; and upon the incumbent, who came in by such a corrupt patron, by [ 49 ] the loss of his living, although he never knew of the CHAP, v.] THE PARSON'S COUNSELLOR. 51 corrupt contract; but if the presentee were not coo;- nizant of the corruption, then he is not within the clause of disabihty within the same statute; and so (says he) was the opinion of all the judges of Serjeant' s-Inn, in Fleet-street, M. 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 persons so corruptly j^ si,ouid seem taking, procuring, seeking or accepting, shall, 8cc. from that by the ca- thenceforth be adjudged a disabled person in law, to i""hiioniac^ pro- have or enjoy, &c. And though the incumbent in this moted, may case take and accept the benefice upon the corrupt con- re's^gnatbn b^^ tract, yet as to him it is not corruptly taking. dispensed with And that this agrees with the canon law, St. Gregory's livin^ asjain. Decretals, lib. 1. tit. 7. cap. 59. p. 210. si alicuius; Greg. Decret. , , , , It AT • • , '' de translatione where the gloss puts the case, " Aliquis est m prelatum Episcop. tit. 7. alicujus ecclesiae electus per simoniam eo tamen igno- ^ ''^- ''• *'^' ^• rante nee ratum habente : talis electio propterea repro- bata est, quaeritur utrum episcopus, cum illo poterit dispensare ut iterum ad eandem prelaturam elegatur. Respondetur, quod episcopus ilia vice cum illo dispen- sare non potest, sed cum illo qui ignoranter simplex beneficium per simoniam est adeptus post hberam re- signationem potest episcopus dispensare." So that it seems the canon law makes a difference, where the in- cumbent voluntarily resigns, and where he is deprived. But this being a point thus controverted, I shall not Qujere. take upon me to determine, but leave it to the judg- ment of the more learned. I shall in the next place shew, what contracts have [ 50 ] been held simoniacal within the meanino- of this law. What contract In a cause between Dr. Graunt and one Bowden, it simoniacal. was held (upon an evidence to a jury), that where two nil. 16 Jac. parsons agreed to change their livings, and the one pro- '^°'* ^^'^' ^' ^ mised 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 E 2 52 THE PARSON'S COUNSELLOR. [part r. More, 9\('>. Cm. El. 685. Smith V. Shel- burne. Winch, 63. Sheldon v. Brett. Hob. 165. [ •'»l ] was held simony, although the other was not privy to the contract, he making the lease after. The father in the presence of his son, being a clerk, purchased the next advowson of a church, 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 simony within this statute: but if this had been done in the absence of his son, it had not been simony, because the father is bound to provide for his son. Quaere of the diflerence. And by Hutton it w^as held simony to purchase the next advowson, 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 cliurch should be void, and for the better assurance took a grant of the next avoidance to friends in trust: the incumbent died, Say was presented; and this was held simony within this law (20). (20) It has been since determined, that the purchase of an advowson in fee, when the incumbent was upon his death- bed, without anj' privity of the clerk who was afterwards presented, was not simoniacal, and would not vacate the next presentation. In this case De Grey, C. J. who de- livered the opinion of the court, observed, " The present case is the purchase of an advowson in fee. No privity of the clerk appears. The church is not actually void, but in great probabiHty of a vacancy; which, however, is by no means equivalent to a certainty. We should go beyond every resolution of our predecessors to determine this to be simony. Suppose this had been the purchase of a manor with the advowson appendant, and the incumbent lying in extremis. What must be done if the present case be simony? Must we have declared the appendancy to be severed, or that the whole manor was purchased corruptly for the sake of the advowson ?'' 2 Rla. Rep. 1052. CHAP, v.] THE PARSON'S COUNSELLOR. 63 To sell an advowson ea intentione that J. S. shall he presented is simony, 2 Ventr. 39- There is of late time a practice introduced by corrupt Bonds for re- patrons, that, if not nipt early in the budding, will ^'K"*'**"- 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 Croke's Reports. The first was between Jones and Laurence, 8 Jac. ^™' ^'^'^' ^^^* But in the case of Grey v. Hesketh, Lord Hardwicke ob- served, that the sale of an advowson during a vacancy is not within the statute of simony, as the sale of the next presentation is, but it is void by the common law, Ambl. 268. and the grantee cannot have the benefit of the next pre- sentation. Cro. El. 811. 3 Bur. 1510. If during the avoid- ance of a church the patron die, the right to that presenta- tion passes to his executor or personal representative, unless it be a donative, in which case the right of donation descends to the heir. 2 Wils. 150. For a clerk to bargain for the next presentation, the incumbent being sick, and about to die, was simony even before the stat. of Queen Anne. Hob. 165. An agreement entered into by a clergyman, by which he is restrained during his incumbency from asserting a claim to tithes by due course of law, and which, as furnishing- evi- dence against his successors, if it is the consideration of his being appointed or presented, is simoniacal. The King v, the Bishop of Oxford. 7 East. Rep. 600. If a contract be, when a church is full, to give a sum of money for a presentation to it when it shall become void, this is a simoniacal contract. 2 Brownl. 7. And buying when a church is fulh with intent to present a certain person, and the presenting that person when the living becomes void, is simony. Lane, 102. Noy. 25. Although it be lawful, except in the cases excepted, to purchase the next avoidance when a church is full, there is great danger of being guilty in foro conscientiai of this offence, and it is right it should be so. New Abr. 46p. Jac. Law Diet, title Simony. 54 THE PARSON'S COUNSELLOR, [part i. The case was thus : Jones had a son which he intended to be a clergyman, and having obtained a presentation from Queen Elizabeth for the church of Streetham, agreed with the defendant that he should be presented, so that he would resign when Jones's son was qualified for the living; whereupon the defendant entered into a bond for 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 then, &c. And in an action of debt brought upon this bond, the defendant pleaded non requisivit, which was found against him; and in arrest of judgment it was moved, that this bond was made for the performance of a simoniacal contract, and therefore void; but notwith- Cro. ubi supra, standing the court gave judgment for the plaintiff: and two reasons are given for the judgment ; the first |- 52 ] was, because there was no averment of the simony; the second, that it was not material as to the bond, because that statute did not make the bond or contract void, but only the presentation, &c. for this I clearly infer from the conclusion of the case. But 1 confess the sense of the court vi^as, that, in truth, if a man be preparing a son for the clergy, and have a living in his disposal, which falls void before his son be ready, he may lawfully take a bond of such person as he shall present, to resign, when his son is become capable of such living : and I have nothing to say against that opinion, but it is very just and reason- able, nature obliging that every one should take care for his posterity. But if a patron take a bond absolutely to resign upon request, without any such cause as the preferment of a son, or to avoid pluralities, or non-residence, or such reasonable cause, but only to a corrupt end and purpose to exact money by this bond from the incumbent, or attem[)l it, though perhaps the bund may be good I CHAP, v.] THE PARSON'S COUNSELLOR. 55 against the person that entered into it : yet I am clear of opinion, for my own part, that the said bond makes the church void, and gives the presentation to the king; and it should seem in Jones and Laurence's case, that if simony had been averred, it would have been left to a jury to have adjudged what the intention of the cor- rupt patron was. The other case upon which these subtil simonists Cro.Car. iso. build, was between Babington and Wood, 5 Car. 1. B.R, 220. ' where the case was likewise in debt upon an obligation with a condition, that whereas the plaintiff intended to [ 53 ] present the defendant to such a living, that if the de- fendant upon request after his admission should resign, that then the bond to be void, Scc. Upon oyer of this bond and condition, the defendant demurred, and judgment was given for the plaintiff: but all the court conceived, that if the defendant had averred, that the obligation had been made, with intent to exact money, make a lease, &c. which in itself had been simon}', then upon such a plea peradventure it might have appeared to have been simony; and then it might have been a question, whether the bond had been good or no? But upon this demurrer it did not appear there was any simoniacal contract ; and such a bond might be made upon a good and lawful design, as the preferment of a son, as in Jones and Laurence's case before, to avoid non-residence, pluralities, &c. So that it appears by both these cases, that bonds taken upon prudent and just ends to resign, are not simoniacal; but where such bonds are taken upon cor- rupt designs, and it be made appear by any subsequent practice or action, it is clearly simony, as if the bond had been expressly to pay money; for what difference is there between a bond expressly to pay money, and a bond to resign, which is to pay money, if the patron say, cither pay me so much money, or resign ; when all the world knows, in such a case the parson must pay the money, or resign and be undone ? 56 THE PARSON'S COUNSELLOR, [pakx r. [ 54 ] And the world shall never persuade me, that those reverend judges that gave these judgments ever in- tended further: and I hope that the reverend judges that now supply their places, will discountenance and discourage such practices that tend so much to the ruin of the church and religion; for I know no law that tends more to the advancement of learned and religious men than this law doth, and therefore ought to have a benign construction to the end it was designed. Noy, 2-2. T. 15. J j\y^^ ^ ^.y^gg reported, I cannot say that it is by an Jac. rot. 1031. ^ , . , . \ , . . ^ .,, . . "^ , C. B. authentic hand, but such as it is, 1 will give it the • Vis infra in reader: it was between Sir John Pascal and one Clerk, Uie catalogue ot . , ' „ , f- tz- t -j law books. in the nrteenth year or King James, upon evidence to a Stiiiingflect's j^j-y jj. ^g^g held, that such a bond was simoniacal : but Bonds of Re- *',. --iiii signac'. 81. the circuuistances not appearing in the book, the case can be of no great authority (21). (21) A bond of resignation is a bond given by the person intended to be presented to a benefice, with condition to resign the same, and is special or general. The condition of a special one is, to resign the benefice in favour of some certain person, as a son, relation, or friend of the patron, when he shall be capable of taking the same. By a general bond, the incumbent is bound to resign on the request of the patron. 4 New Abr. 470. Special bonds of resignation are still held legal. Cro. Jac. 248. 2 Bla. Com. 279. 4 Term Rep. 78. 4 Term Rep. 359. General bonds were so held formerly, 2 Bla. Com. 280. but they are now held illegal since the case of the Bishop of London v. Ffytche, It was then determined by the house of lords, that a general bond of resignation is simoniacal and illegal. The circum- stances of that case were briefly these: Mr. F., the patron, presented Mr. Eyre, his clerk, to the Bishop of London for institution ; the bishop refused to admit tlie presentation, because Mr. Eyre had given a general bond of resignation. Upon this Mr. Ffytche brought a quare impedit against the bishop, to which the bishop pleaded that the presentation was simoniacal and void, by reason of the bond of resignation: and to this pica Mr. Flylchc demurred. From a scries of CHAP, v.] THE PARSON'S COUNSELLOR. 57 But before I shake hands with these bonds of resigna- tion, it will be convenient I give my young clergyman judicial decisions, the court of Common Pleas thought them- selves bound to determine in his favour; and that judgment was affirmed by the court of King's Bench : but this judg- ment was aftewards reversed by the house of lords. The principal question was this, viz. Whether such a bond was a reward, gift, profit or benefit to the patron under stat. 31 Eliz. c. 6. ? If it were so, the statute had declared the presentation to be simoniacal and'void. Such a bond is so manifestly intended by the parties to be a benefit to the patron, that it seems surprising that it should have been ever argued and decided that it was not a benefit within the meaning of the statute ; and many learned men have ex- 'pressed themselves dissatisfied with this determination. It is understood, however, that the lords, to preserve a con- sistency in their judgments, will not allow a question once decided to be debated again in their house. 2 Bla. Com. 280. in notis. et vide, this case reported in 3 Burn's Eccl. Law, 356. In subsequent cases it has been determined, that a bond given by an incumbent to the patron on presentation to reside on the living, or to resign if he did not return to it after notice, and also not to commit waste, &c. on the par- sonage house, was good. 4 Term Rep, /S. A question has arisen, whether the ordinary is obliged to accept a resignation on such a bond. Wats. 24. An or- dinary is not obliged to accept a resignation on such a bond, unless there be just cause to turn the incumbent out of the benefice. Chanc. Prec. 513. and in the case of Marquis of Rockingham v. Griffith, E. 27 Geo. 2. This among others was made a question in the cause, but no decree was made as to this point. The ordinary, however, did afterwards accept the resignation, Lord Hardwicke having once or twice intimated that he ought so to do. But whatever doubt might arise as to the ordinary's being obliged to accept a resignation on such a bond, two points were determined — that the patron could not present again till he had accepted it; and that whether he did or not, the obligor was liable to the penalty of the bond, if he undcrlook, as is usually done, for the acccplance oltlie ordinary. 4 New Abr. AJS. 58 THE PARSON'S COUNSELLOR, [parti. some cautions against them : for it is an old saying, The resetter is worse than the thief; for without re- setters there would be few thieves. And, Advice against j^ J j-jQifj jj- ^ rrreal disreputation for any clertrvman bonds for re- . ° . J OJ _ bigiwtioi). to give any such bond, which may have the least tinc- ture of simony; nor do I believe any man of worth will do it, unless it be upon such reasons as aforesaid, r 55 1 2. If such bond carry with it a simoniacal corrupt design, it makes the clerk no less guilty of simony than the corrupt patron ; and then the clerk not only loses his living by this statute, but is for ever incapacitated Concil. Ueiiions. to liavc it by any future presentation, and by the canon M qms vcndide- j.^^^ jg j.^ ^^ degraded and incapacitated to all other, lit. 3 Inst. 15 J. " . ' Alarginc JMoy, C. 1. q. 1. Presbyter si, See. '*" Lastl}^, If he do not resign upon request, he is subject to the whole penal t}' of the bond ; for simoniacal bonds, contracts, Sec. arc not made void by this act, but only the presentment, &e. And so 3'ou may observe a dill'er- ence between malum in se, and malum prohibitum, by the statute. These bonds for resignation are become so frequent, that hardly a living passes, unless by persons of honour, without them, and very ill use is maile of them. There is a poor vicar in my neighbourhood that has a vicarage but of forty pounds per annum, and was forced into one of these bonds to obtain it, and his patron takes from him tithes of half the value of the church, and he dares not question him for them; opus es medico. It is time for the clergy to prefer a bill in parliament, not only to make all such bonds void, but likewise all bonds, bills, covenants, promises, judgments, statutes and recognizances, made or entered into upon any si- moniacal contract. Certainly no good man would op- pose it ; a fit undertaking for my lords the bishops. [ ^6 ] It is now to be considered, what covenants or agree- What covenants ^ 1 11 1 • 1 . i_ • • 1 -..i • ..1 • 1 and agreements mcuts shall l)e said to be simoniacal witnin this law. are niiliin this |f a fathci-in-law, upoii the marriage of his daughter, Cro. Car. 4'26. Covenant with his son-in-law without any consideration. CHAP, v.] THE PARSON'S COUNSELLOR. 59 but voluntarily, that when such a church falls void, which is in his gift, that he will present him to it; this is no simony within this law : but it should seem, that such covenant in consideration of marriage, or any other consideration had, made it simoniacal. So where the patron took a bond from the presentee Noy, i42. to pay ten pounds yearly towards maintenance of his |^|i'|t'''v.Mouiit. predecessor's son, wliilst he remained in the imiversity unpreferred, was held no simony : and in that case it was said by Foster, Justice, that it was adjudged in the Earl of Sussex's case, where the patron took a bond of the incumbent to pay five pounds per annum to the widov/ of his predecessor, it was no simony: these were good charitable resolutions; sed qusere rationem inde. And Foster said, that notwithstanding great opposition in that case, the parson enjoyed the living at that time (22). In the next place it will be fit to consider, what church preferments are within this law ; the statute only names benefices with cure of souls, dignities in the churcl), prebends and livings ecclesiastical. The word (22) A bond was given by a father to secure an annuity to his son until he should be in possession of a living of a certain value, and an agreement of even date was executed, reciting the bond, and declaring that the son would forthwith enter into holy orders, and accept the living. The Lord Chancellor expressed great doubts as to the validity of this bond, connected as it was with a corrupt agreement for taking holy orders. The policy of the ecclesiastical con- stitution of this country requires that a man should take orders without any reference to considerations of a pecuniary nature. This case, however, was decided upon the ground thab the son had not complied with the condition, having received the annuity nine years, and being still only in dea- con's orders, and that therefore the annuity was determin- able by the father or his representatives. Kircudbright v. Kircudbright, 8 Ves. 53. (iO THE PARSON'S COUNSELLOR, [part i. benefices with cure of souls, seems chiefly aimed at 3 Tnst. 155. parsoiis and vicars in churches parochial : dignities com- [ 57 ] prehend archbishops, bishops, archdeacons, deans, chan- ut" l^ica'r vcX t;ellors, treasurers, chanters, precantors, officials, &c. diput. Duary- Por dignities ecclesiastical are defined by the civilians KccUs/Miiltr. to be, " administratio cum jurisdictione aliqua con- et Bcueficiis, juUCta." Liiidw.cap.Esu- ^^^ Lindwood tells us, " Dignitas cognoscitur altero ritntcs avaritise ^q tribus Hiodis, primo Quaudo beneficium habet ad- verb. Digiiitate. ... i • ^- • • i- mmistrationem rerum ecclesiasticarum cum jurisdic- tione: secundoex eo quod habet nomen dignitatis cum prierogativa in choro et capitulo : tertio quando con- stitutio vel consuetudo ecclesise habet, quod beneficium habeatur et reputetur pro dignitate." Cap. lit Clori- And in another place speaking of dignities, he says, calls verb. Dig- « Pfoprie loqucndo de dignitate ordo episcopalis dicitur nitat. 15ut for autliori- diguitas ; sic abbates, priores conventuales, et officiales i' w wbkh"shail cpiscopi, dicuntur dignitates, et in inferioribus episcopo be diiiiiities. jus Hon impouit nomcn dignitatis, nisi archidiaconis et •'5^' 3 4U archipresbyteris, propter jurisdictionem, et praeminen- Br. nosnie 25. tiam, quas habent super alios : imo licet (says he) archi- 1 1 H 4. 40. diaconi nullam haberent jurisdictionem ex consuetudine, u H. 6. 14. tanien ratione nominis sonat in dignitatem, '^ &c. ^7 h' 8. 10. Prebends are particularly named, and livings eccle- Fietiher v. siastical are words of a large extent, and draw in do- T.'7.Car.i 15.11. ii'itives within the penalty of this law, as hath been adjudged, though they have no cure of souls (23). Having held the reader something long in my dis- course upon the matters relating to the first paragraph (23) By 36 Geo, 3. c. 83. all churches and chapels aug- mented by Queen Anne's bounty, shall be considered as presentative benefices, and the license to tliem shall render other livings voidable in the same manner as institution to presentative benefices ; but yet every clergyman shall con- tinue in quiet possession of any benefices which he held in conjunction witli such cures before the passing this act, viz. May 14, 179'3. CHAP, v.] THE PARSON'S COUNSELLOR. gj of this statute, I shall, after some general observations upon it, draw to a conclusion. And first it is to be observed, that where any clerk [ 58 ] is in by simony, or any other dio^nified person, everv "^^''^ "^^y ^''^ic •' nil- 1 1 advantage of Stranger as well as tlie king, ma}- take advantage of it: simony, quod and therefore if the parson, vicar, or other dignified "°*^' person, shall bring any action for the tithes, or other things belonging to his church; the defendant may SirJo. Rowse avoid the action, by proving that the plaintiff obtained p ^^"s^'^- his preferment by a simoniacal contract (24). 167, les. 177. Note, in case of simony, the presentation vests in the king without office, 2 Vent. 213. And note, that a simoniacal contract, where the party Contract not is not presented in pursuance of it, is not within the executed, penalty of this law; but it should seem, that if one that has no right present a clerk upon a simoniacal con- tt , tract, he is within the penalty, though an usurper; but not, as hath been said, to give the king the presenta- tion. It hath been a question, if the clerk which comes in simonistdies by simony die in possession of the church, whether the possessed, if the king should lose his presentation? But it hath been re- tunf. ^'"^ solved, that he shall not; for the statute makes the pre- ^"^- "^*^- sentation, admission, institution, and all void; so that the church was never full of an incumbent, et nullum tempus occurrit regi. But if the king suffer an usurpa- tion by the patron, or any other, presenting another clerk, who is instituted and inducted, and after dies in- cumbent, in such case the king loses his presentment; and so it should seem, if the incumbent resign, or be deprived, the church having been once full. And note, there may be a simony and neither patron r 9 i nor clerk consent or he privy to it; and yet the church Simony, and for that turn is by statute given to the king : if the clerk SeTk'Ivee'^ (24) In an action by the incumbent;, for the use and occupation of his glebe, the defendant cannot give in evi- dence the simoniacal presentation of the plaintiff'. 5 T. R. 4. Bath V. Porter, P. 7 Jac. B. R. 02 THE PARSON'S COUNSELLOR, [part i. be presented by the means of such corrupt contract, though neither patron nor clerk were privy or consent- ing to it; so the king, though he himself cannot be guilty of simony, may present upon a simoniacal con- tract between others, and such presentation is void by this act. Pardon of m- Suppose a clerk be presented upon a simoniacal con- mony iiie effect, jj-g^gt- ^j^^j tj^pjj {[^q I-ing or parliament, that is, the kins; Lea V. Smith, . > . , , ri ■ i i i M. 40 & 41 El. in parliament, witli the assent or his lords and commons, C. B. contra. pardons all simony by express or general words, though Hob 167. ^^^^ ^^'''^y Pardon the penalties, yet the church remains void. Dc ministeriisct hab. 1. q. 1. (laiion mill ordinar. I shall now conclude this paragraph with the saying of a holy father of the church, viz. St. Ambrose, upon this subject; " Cum ordinaretur episcopus, quid dedit? Aurumfuit: quid perdidit? Anima suafuit: cum alium ordinaret, quid accepit ? Aurum fuit: quid dedit? Lepra fuit." 4Tnst. 135. The reason of the paragrapli against precipi- tate admissions. [ (^0] I am now come to the second paragraph of this statute, which Sir Edward Coke (who was a member of this parliament) tells us, was added to avoid hasty and precipitate admissions, institutions, and inductions, &c. to the prejudice of those that have right to present, and thereby putting them to their actions to recover their rights, and there are seldom bribes (as I may say) in this case given, where the patron has a good and sure title. The taking or giving above the usual fees in this case, is as well dangerous to the clerk as the officer ; for the church shall be void, so that the patron that has right to present, may present again ; and the usurper and officer that takes more than his fees for such ex- pedition, forfeits double the value of the benefice for a year, not according to the rate in the First-fruits office, but according to the very true value: but upon this clause no disability rests upon the incumbent, but that (HAP. v.] THE PARSON'S COUNSELLOR. 63 lie may b}' the true patron be presented again; nor lapse, till after six months from the time of notice, given by the bishop, Sec. And observe the penning of this clause; it is not When the that the church shall be ipso facto void, or that the in- voTd'^^ stitution, &.C. should be void; but that it should be eftsoons void, and that the patron shall present, as if the person were naturally dead : so that it should seem the church is once full by this institution and induction ; and hence there may some doubts arise, whether the church shall be void ipso facto, or whether it must be avoided by ecclesiastical sentence of deprivation. But it seems to me, that the patron may present imme- diately, without any sentence ecclesiastical. 3. The third paragraph of this statute is made against Resignation and such as shall corruptly for money, pension, or other «">;c'ianges si- benefit, resign or exchange their livings with any other: in that case, as well the giver as the taker forfeits r ca ] double the sum of mone}^, &c. given and received ; but this clause works no avoidance or disability in the per- son that is guilty. The fourth paragraph preserves the ecclesiastical jhe ecclesiastW jurisdiction, that they may proceed judicially to censure cai jurisdiction the parties for their corruption in buying and selling- church preferments : wherein, as should seem, the eccle- siastical laws in some circumstances are more severe cvo. El. 788 than this statute; for by that law, as I take it, he that ^'^^^ is convicted of simony, is after incapacitated not only to that living, but to all other church preferments : but of this be informed by the canonist. But I know no reason, why those corrupt patrons that take bonds for resignation without any reasonable cause apparent, may not be called to an account before the ordinary, and punished by ecclesiastical censures, if it appear they were taken to any corrupt end, or if afterwards he shall endeavour to exact money b}' colour of any such bonds. 64 THE PARSON'S COUNSELLOR, [parti. Corrupt giving orders and li- censes to preach. [ 62 ] Co. 5. 102. a. I am now come to llie last paragraph of this statute, which is also a two-edged law, that punishes as well the giver as taker of greater fee or reward, than the ordinary and just fees for, or for procuring any person to he ordained or made a minister, or giving any order or licence to preach, &c. but this is more severe upon the clergyman, than the officer: for the officer only forfeits forty shillings, but the clergyman forfeits ten pounds, and all the livings he shall take within seven years are made void b}' this law after induction; so that for seven years an incapacity lies upon the clerk : how careful ought clergymen to be, what fees the}' 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, institu- tion, 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, investiture 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, the presenting such a clerk will satisfy a turn, if inducted. How the for- feitures are to be recovered. Gregory's case, Co. 6. I'O. Dyer, 236. Cro. Kliz. 737. Cro. Car. 112. 146. Mo. 421. contr. Co. 12. 99. 4 Inst. le-l. Hale's PI. of the Crown, IGl. Quaere. Lastly, Observe all pecuniary forfeitures and penalties within this statute are given the king and informer, and are to be recovered by bill, plaint, action of debt, or information in any of his majesty's courts of record; that is, the Chancery, King's Bench, Common Pleas, and Exchequer at Westminster; but not in any inferior court of record, and no essoign, privilege, protection or wager of law is to be allowed : but I conceive the privilege or protection of parliament are not intended in these general words, but the common protections and privileges of ofiicc/' and courts. Ideo quirre inde. CHAP, v.] THE PARSON'S COUNSELLOR. 65 It is not proper for this discourse to examine by [ r.s ] what authority any thing at all is taken for giving 3^^,^^^^°°°^^ orders, admissions, institutions, Sec, since our Saviour wliat fees shall says, " Gratis accepistis, gratis date:" however, since it Jig^k]"^" ^^ *® is a thing (I douht) too much practised, use has made Lindw. csaeva it seem lawful, by which means it is swallowed as a Ji^t'Yol'sr* due fee without examination of the matter; I shall therefore put them that are concerned in mind of two other canons, and then leave the matter to further con- sideration, and amongst those canons that are called the canons of the apostles, I find one to this effect: " Si quis episcopus, aut presbyter, aut diaconus, per Can. 30. pecuniam banc obtinuerit dignitatem, dejiciatur, et ipse ordinator ejus a communione omnibus modis abscin- datur." And in the council of Chalcedon to the same effect, which follows : " Si quis episcopus per pecuniam ordinationem Fecerit, et pretium redegerit Spiritus Sancti gratiam quae vendi non potest, ordinaveritque per pecuniam, presbyterum, aut diaconum, vel quemlibet de hiis, qui cognominantur in clero, promoverit, et dispensatorem aut defensorem, vel quemlibet qui subjectus est regulge, pro sui turpissimi lucri commodo, is qui hoc attentare probatus fuerit, proprii gradus periculo subjacebit, et qui ordinatus est, nihil ex hac ordinatione, vel promotione qua3 est pro negatione facta proficiat, sed sit alienus a dignitate, vel solicitudine, quam pecuniis acquisivit, &c. Concil. Ca- [ 64 ] bilonense, c. 16. ad eandem sententiam." But it may be it will be said, that these canons are against selling of orders, but not against ancient and just fees; to which hear what the council of Orleans says : " Ne quis episcopus quibuslibet causis vel episco- Can. 3. porum ordinationibus cajterorumque clericorum ahquid accipere praisumat,qina sacerdotem nefas est cupiditatis venalitate corrumpi." And the council of Lateran under Pope Irmocent the Can. 63. F 06 Cap. saiva et niiserabilis. THE PARSON'S COUNSELLOR, [paht i. Third, decreed, " Ne pro consecrationibiis episcoporum, aut benedictionibus, aut ordinibus, aliquid accipiatur." And to the Hke effect is the council of Braga, cap. 4. And our own canons are to the same effect, and hmit the clerk's fees to tvvelvepence for letters of institution and collation, and sixpence for letters of orders : but he that has a mind to satisfy himself herein further, let him read that most excellent history of the council of Trent, 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 (25). Hoved. 310. b. See Stillingfleet's In the former impressions of this book, ch. 5, page 35, ' " I mentioned a canon to be made anno 1229, in the time of Richard Wethershead, archbishop of Canterbury, [ 65 '^ therein following the error of the learned Lindwood ; which in truth was made in the time of another Richard archbishop of Canterbury, who lived in the time of Henry II., at a synod held at London, 1175, in the presence of two kings, viz. Henry II. and his son that was crowned in his father's life-time, and confirmed the same, which made that no more than a cation, which I do affirm could not deprive any body of his freehold or inheritance. And my Lord Hobart, in his argument of Winchcombc's case against the Bishop of Winchester and Puleson, affirms as much, that if the statute had not given the presentation to the king, where the church was void by simony, the patron ought to have presented; which proves he had not lost his patronage. And as to the canon of jOthobon, which I vouch in Hobart, 167. 31 El. cap. 6. (25) Vide a table ol" fees in Burn*s E. L. 266. and Ayl. parerg. 551. CHAP, v.] THE PARSON'S COUNSELLOR. 67 the next page, which makes all simoniacal contracts void, I affirm it to be of as little force as the former, as to making a simoniacal contract void : and of the same opinion was my Lord Hobart, who says, that a si- Hobart, I67. moniacal contract is, " Contractus ex turpi causa et contra bonos mores," and so is against the law, and void by the statute, not by the canon. Since this book was last printed, in the first of W. ThatiW. &M. and M. there was an act made, that after the death of a J^^'^^ ^ ^, person simoniacally presented, the offence or contract moniacs. of simony should neither by way of title in pleading, or ^^' ' in evidence to a jury, or otherwise, hereafter be alleged or pleaded to the prejudice of any other patron innocent of simony, or of his clerk, by him presented or promoted [ 65 1 upon pretence of lapse to the crown, metropolitan or otherwise, unless the person simoniac or simoniacally presented, or his patron, was convicted of such offence at the common law, or some ecclesiastical court, in the life-time of theperson simoniac or simoniacally promoted or presented, any law, statute, &c. And by the same act it is further provided, that no lease or leases really and bona fide made, or then after to be made by any person as aforesaid, simoniac or simoniacall}'^ promoted to any deanerj^, prebend or par- sonage, or other ecclesiastical benefice or dignity, for good and valuable consideration to any tenant or person, not being privy unto, or having notice of such simony ; but shall be good and effectual in the law, the said simony notwithstanding. See the statute at large, for confirming leases made by simoniacs (26). (26) By the 12 Ann. st. 2. c. 12. it is enacted, that whereas some of the clergy have procured preferments for themselves by buying ecclesiastical livings, and others have been thereby discouraged ; if any person shall for any sum F 2 68 THE PARSON'S COUNSELLOR, [part i. of money, reward, gift, profit or advantage, directly or in- directly, or for, or by reason of any promise, agreement, grant, bond, covenant, or other assurance of or for any sum of money, reward, gift, profit or benefit whatsoever, directly or indirectly, in his own name, or in the name of any other person, take, procure or accept the next avoidance of or presentation to any benefice with cure of souls, dignity, prebend, or living ecclesiastical, and shall be presented or collated thereupon ; every such presentation or collation, and every admission, institution, investiture and induction upon the same shall be utterly void, frustrate, and of none effect in law, and such agreement shall be deemed a si- moniacal contract ; and it shall be lawful for the queen, her heirs and successors, to present or collate unto, or give, or bestow every such benefice, dignity, prebend and living ecclesiastical, for that one time and turn only ; and the per- son so corruptly taking, procuring or accepting any such benefice, dignity, prebend or living, shall thereupon, and from thenceforth, be adjudged a disabled person in law to have and enjoy the same, and shall also be subject to any punishment, pain or penalty, limited, prescribed or inflicted by the laws ecclesiastical, in like manner as if such corrupt agreement had been made after such benefice, dignity, pre- bend or living ecclesiastical had become vacant ; any law or statute to the contrary in any wise notwithstanding. This statute having been understood as only prohibiting clergymen from purchasing livings for themselves, the in- tention thereof may be easily frustrated by employing others to purchase for them ; but surely this falls within the oath required by canon 40. 3 Burn's E. L. 371. CHAP. VI.] THE PARSON'S COUNSELLOR. ^ 69 CHAPTER VI. [ 67 ] fVhat 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 before he is a priest in orders, which he cannot be be- beV'^Mt™^** fore he is four and twenty years of age, as has been said ; and if any person shall be admitted, instituted and inducted into any hving before he is in holy orders, his admission, institution and induction are void by the stat. UCar. 2, late act of uniformity. '^^P- ^• Secondly, he must make his subscription according Subscriptiouand to the said act, and have a certificate from the bishop, certificate, or, 8cc. under his hand and seal, that he hath so done ; and then within two months after he is inducted, he must, during divine service (that is, after some part of the divine service of the church for that day appointed Read prajers. is read, and before the whole is finished), read the nine and thirty articles of religion in the parish church, &c. ^^t^fg^^* into which he shall be inducted, and declare his un- feigned assent and consent to all that is therein con- stat. supra. tained; and in default herein, the church is ipso facto Co. 6. 29. b. void without any sentence declaratory; and it is not enough for him to declare his assent to tliem so far as f ^^ 1 they are agreeable to the word of God, or with any 4 inst. 324. qualification, but positively. And he must likewise upon some Sunday or Lord's day, within two months after actual possession of such benefice, &,c. (wliich is intended within two months after induction or installation, &c.) read the book of Common Prayer (i. e. the whole service of the church Stat, supra. appointed for that day, as it is there appointed) and 70 THE PARSON'S COUNSELLOR, [part i. in like manner declare his assent and consent to all the Declaration. matters and things therein contained, in these words : I, A. B. do declare my unfeigned assentand consent to all and every thing contained and prescribed in and by the book, intituled, The Book of Common Prayer and Administra- tion 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 conse- crating of Bishops, Priests, and Deacons. Stat, 14 Car. 2. And such parson, vicar, &c. must within three months ^' * after his institution, upon some Lord's day, during divine service (that is, as hath been said, after some part of it be read, and before all be read) publicly and openly read his certificate from the bishop, &,c. of his subscription to the declaration following ; and he must at the same time read the declaration or acknowledg- ment itself in the church where he is to officiate, before the congregation there assembled. The declaration - follows : This part is re- I, A. B. declare, [that it is notlawfulupon any pretence SatSemade by whatsoever, to take arms against the king: and that I K. William and do abhor that treasonable position of taking arms by day of April' ^ his authority against his person, or against those that 1683. are commissionated by him:] and that I will conform to the liturgy of the church of England, as it is now by This part is ex- law estabhshcd. [And I do declare, that I do hold, pired. there lies no obligation upon me, or on any other per- son, from the oath commonl3'^ called, the solemn league and covenant, to endeavour an}-^ change or alteration of government, either in church or state ; and that the same was in itself an unlawful oath, and imposed on the subjects of this realm against the known Jaws and liberties of this kingdom.] If any parson, vicar. See. fail in the doing of any of these things before-mentioned, or any of these things CHAP. VI.] THE PARSON'S COUNSELLOR. 71 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 belong- ing to his church, if the defendant insist upon it, must Dyer, 346. p. 7. 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 (27). And it is observed, that the parsons, vicars, &.c. must Advice to the upon the acceptance of every new living or ecclesiastical ^ ^'^^^' preferment within this law, repeat all these things ; for [ 70 ] the performance of all these things upon the taking of one living, will not satisfy for any other. I shall give my reverend clergymen therefore this caution, that if any of them have accepted an}' eccle- siastical preferments, and have negligently omitted any of these things, and that thereby they may be lapsed to the king, that they obtain presentations from the king ad corroborandum ; and that thereupon they per- Rastal's Entries. feet all their former neglects ; or they may obtain letters ^"'"^^22™Fb ' patents of confirmation, which may be pleaded in bar 528. b. of any quare impedit after brought by the king. ^^^ '^q'^" ** And for the future I advise them, that they first have Dy. 392. p. 70. some credible witnesses present, when they make their ^5 g' ;5" 47^ ^j subscriptions before the bishop; and that they attest Plo. 528. b. the bishop's certificate; and that they get two books of q^J^^^.^ i"^"^^' articles; and that when they read the thirty-nine articles, in Roy, 22. they give one of those books of articles to some credible (27) In the case of Woodcock and Smith, T. 17 18, it was declared by the whole court of exchequer, that although at law they hold a parson or vicar to the proof of his admission, institution and induction, and reading the articles, yet they never do in equity. Bunb. 25, et vide Powell v. Milbank, Black. Rep. 851. 72 THE PARSON'S COUNSELLOR, [part i. 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 declare his unfeigned assent and consent to all the matters and things therein contained, by sub- scribing their names thereunto; and that the clergyman keep safely the said book of articles with this attestation. And I advise, that when he reads the book of com- mon prayer, which must (as above is said) be read morn- [ ''' ] ing and evening, in all things which is prescribed therein, within two months after induction ; that he likewise make some^ intelligent parishioners to read with him, and give them a copy of the declaration aforesaid, and at the foot of it make an attestation under their hands, of liis reading the said book of common prayer and declaration, which may be done in this form : First in a fair legible hand write the declaration aforesaid; then write under to this effect: Memorandum, That upon Sunday the day of in the year of our Lord A. B. parson of D. in the county of D. read common prayers in the parish church of D. aforesaid, both in the forenoon and afternoon of the same day, according to the form and order prescribed and directed by the book, intituled. The Book of Com- mon 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, the form or manner of making, ordaining and consecrating of Bishops, Priests and Deacons : And immediately after reading the same, make a declaration of his unfeigned assent and con- sent, to all the matters and things therein contained in the form and words above written. And then let the witnesses hereunto subscribe the same certificate; which the clerk is to keep carefully with his juistitutioflji in^ CHAP. VI.] THE PARSON'S COUNSELLOR. f$ duction and certificate, with the book of articles attested, as is before directed. And in these things I advise all t '2 j the clergymen to be very tender and careful (28). There was an act made in the thirteenth year of isei. cap. 12. Queen Elizabeth, that none should be admitted to any What age a par- , ^ 1 , , 1 ^ son ought to be benehce, unless he were three and twenty years or age, of. and a deacon at least, and should subscribe the thirty- nine articles before he should be admitted ; and that none should be admitted to preach or administer the sacraments, unless such persons were twenty-four years of age at least. But this law is in part altered by the before-mentioned new Statute of Uniformity; for now none can be admitted to any lining till he is a priest in holy orders, which he cannot be by this statute, till he is tvvent3'-four years of age. And by the same statute it is enacted, that none shall yr^^^ ^ye be admitted to any" benefice with cure of souls, of the admitted to a , r 1 ■ 1 1 • 1 I • 5 1 1 benefice of 301. value oi thnty pounds or upwards m the kings books, per annum in unless he be a batchelor of divinity at least, or a preacher the king's booki. licensed by some bishop, or one of the universities of this kingdom; and if not so qualified, his institution to be void. (28) Finally, he shall, within six months after his admission, take the oaths of allegiance, supremacy and abjuration, in one of the courts at Westminster, or at the general quarter sessions of the peace, on pain of being incapacitated to hold the benefice, and of being disabled to sue in any action, or to be guardian, or executor, or administrator, or capable of any legacy or deed of gift, or to bear any office, or to vote at any election for members of parliament, and of forfeiting 500/. 1 G. A. 2, c. 13. and 9 G. 2. c. 26. By 6 G. 3. c. 53. the form of the oath of abjuration is altered. 1 Burn's E. L. 184. By Stat. 23 G. 2. c. 28. an indulgence is granted as to the time of reading the articles, and making the declaration, in cases of sickness or other lawful impediment. Vide Part 1, Chap. 4, Note 16. 74 THE PARSONS COUNSELLOR, [part i. Otley V. Shep- I^ O"^ ^^ instituted into a benefice under the age of herd, circa twentj-thrce years, whereby it is made void within the inQu. Imp. * Statute of 13 Eiiz. yet no lapse shall incur, because the presentment is not made void. It may be a question, whether parsons, vicars, &c. are within the late act for preventing dangers which may happen from popish recusants ; therefore it is a safe way to receive the sacrament, take the oaths, and make the subscriptions prescribed by that act; cautela abundans non nocet. CHAP. VII.] THE PARSON'S COUNSELLOR. 75 CHAPTER Vn. [ 73 ] The Duty of the Parson, Vicar, $;c. after Induction, and the former Ceremonies performed ; and treats of Non^ residence, and the Penalties thereof, and for what Reasons the same may be excused. He that has orderly, as aforesaid, obtained an ecclesi- parsous, &c. astical preferment in the church of England, must be ™^^^ ^^ «»"- conformable to the government and orders thereof, and Stat. 1 Eliz. c 2. must not use any other public form of prayer than what is prescribed by the book of Common Prayer before- mentioned, neither must he administer the sacraments of Baptism and the Lord's Supper in any other manner or form, than what is therein and thereby directed and prescribed. And if an}^ incumbent be resident upon his living St. 1 4 Car. 2. c. 4, (as he ought to be), and keep a curate, he is bound by When, and how °,, ^^ .^ . '^ ' , -^ oft he must read the act or Unirormity once every month at least, to the common read the common prayers of the church, according as P'^^J'^''"- they are directed by the book of common prayer, in his parish church in his own person, or he forfeits five pounds for every time he fails therein. See the statute how he is to be convicted, and the penalty to be levied. And the common prayer by that statute is to be read Before every before every lecture; and it is not sufficient to read a lecture. piece here, and a piece there, where the party pleases ; r 74 i but they must read the whole appointed for the day orderly, as it is appointed, with all the circumstances and ceremonies of kneeling and standing, as is pre- scribed, otherwise it is no reading of common prayers within this law; quod nota. And note, that by the late statute of Uniformity, the st.I4Car.2.c.4. former statutes of Unilbrmity and penalties tlierein, are 76 THE PARSON'S COUNSELLOR, [part i. extended to this book of common prayer now lately established. St. 2 Eliz. c. 2. ^jj(j ]^y j-j^g Statute of 1 Eliz. it is enacted, that if any minister that ought or should sing or say common prayer, &,c. refuse to use the same common pra^'ers, or to administer the sacraments, &c. in such order and form as they are mentioned and set forth in the Common Prayer book, or shall wilfully or obstinately standing in the same, use any other rite, ceremony, order, form Sgmheiforms ^^' manner of celebrating the Lord's Supper, or other of prayer, &c. open prayers, or shall preach, declare or speak any thing in derogation or depraving of the same book, or any thing therein contained, 8cc. upon conviction, the party guilty of any of these offences forfeits the profits of all his living and spiritual promotions for a year, and is to suffer imprisonment for six months without bail or mainprise; and upon a second conviction for the like oflence, he is to suffer imprisonment for a whole year, and be deprived ipso facto of all his spiritual promo- tions ; and upon a third conviction for the like offence shall be imprisoned during his life, and lose all his spiritual promotions, if he have any: and if such person have no spiritual promotions, then for the first offence he is to be imprisoned for a year, for the second during life without bail or mainprise. [ "IS ] I have been the briefer in these matters upon the statutes of Uniformity, because they are printed at large before the book of Common Prayer, to which I refer the reader for his fuller satisfaction ; and they are so plain and full, that they need no comment, but to advise all clergymen to read and observe them cautiously. I shall only give the reader this further caution, that '13 Eliz. c. 12. .- •' ° . „ , ,, . . , . it any parson, vicar, &c. shall maintain any doctrine, contrary to the thirty-nine articles of religion, it is cause of deprivation ; or if he administers the sacra- ■ ments in any other form than is prescribed by the book ^ of Common Prayer, he forfeits 100/. by a statute made CHAP, vii.] THE PARSON'S COUNSELLOR. 77 in the 13th year of Queen Elizabeth. And by the ne\V statute of Uniformity this penalty is extended to such as do it contrary to the present book of Common Prayer now used. The next duty incumbent upon the parsons, vicars, &c. is, that they be resident upoii their cures, a duty incumbent upon every one that hath the cure of souls in the church of Clnist: for, as Padre Paulo in his Page2i7,inthe most excellent History of the Council of Trent observes, ^Jj^|j^'' ^^'^^' that in the first 700 years after Christ there was not any such thing known in the western church, that any Non-residence, man should have an office or title in the church, and into the church, not do the duty; and many canons and decrees have been made against non-residence: and in the Council The same hist. of Trent it was held by much the greater and better ^"^ 509 &c. ' number of the prelates and fathers in that council, that 4y6. residence was jure divino, and undoubtedly liad been [ 76 ] so decreed, if the pope had not used all his old stratagems J^^sidence jure ^, } , ^ flivino. 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 bishoprics, SeldendeDe-^ abbies, priories, &c. were enjoyed (I mean the profits ^'™**' '^^j '07. of them) by foreigners, that never saw them, or took any care of their duties .? I should be glad if it were much better now. The commons of England often complained against The exact pluralities and non-residence, and in the parliament held abridgment of TT 1 1 1 11 1 1 records, nu. 50. 2 ri. 4. the commons prayed, that all such as procured from Rome (for in those days they came from Rome) any bulls for pluralities or non-residence, should incur the pain of provisoes; except the chaplains of arch- bishops and bishops, and scholars ; and those that had any bulls should cancel them. And in the parliament held 8 H. 4. the commons ibid. h. 4. petitioned, that the king might have a moiety of the num. 113. 78 THE PARSON'S COUNSELLOR, [part i. Ibid. 9 H, num. 70. Ibid. 4 H num. 38. [77 ] Ibid. 4 H. 6. Dumt 31. profits of all benefices where the incumbent was non- resident. The like was prayed in the parliament in 9 H. 4. In the parliament 4 H. 6. it was prayed by the com- mons, that all parsons and vicars, and others having cures, and not being resident thereupon, should forfeit their benefices, the one half to the king, and the other half to the patron. In the parliament held the same year, the commons prayed, that for the non-residence of the incumbent, the patron might present a new clerk ; and great reason in my judgment, and very agreeable to the rules of the common law, where a temporal officer loses his office for non-user: and I know no reason why it should not be so in spiritual offices, where the souls of a many poor people are neglected. But these had none of them the good fortune to be reduced into laws; but I pre- sume these complaints in parliament so awakened the pope and clergy, that there was some reformation ; for I find no more complaints in parliament concerning this matter, till the 21 H. 8. In which parliament it was enacted ; «i H.s.cap. 13. That as well eveiy spiritual person then being pro- Act against non- jnoted to any archdeaconry, deanery or dignity in any monastery or cathedral, or other church conventual, or collegiate, or being beneficed with any parsonage or vicarage ; as all and every spiritual person, 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, Sec. 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 ab- senting himself should forfeit ten pounds for every such residence. CHAP. VI I.] THE PARSON'S COUNSELLOR. 79 default, the one half to the king, the other half to the [ 78 ] informer, to be recovered, as is expressed in the act (29). And by the same act, there is a proviso worth men- tioning, 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 qualify chaplains to have plurali- ties had not been grown so numerous, that there are 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; nay, I doubt I may say, that we are now in a far worse condition than before the making of this act: for dispensations from Rome (as all other things there) were costly, came slowly, being far to fetch ; that I presume there's ten dispensations for pluralities now, for one then ; and few of those dispensed with were non-residents upon both livings, as now they be: two great parishes in many [ 79] places being left to the care of two boys that came but the other day from school, and perhaps fitter to be there still, whilst the shepherd that takes the fleece, either feasts it out in his lord's family, or takes his ease upon a prebend or deanery. (29) This act is now repealed, and new penalties for non- residence are substituted by 57 G. 3. c. 99. given at length in this chapter, note 3 1 . 80 THE PARSON'S COUNSELLOR, [parti. The end of this This good law principally aimed at three ends or ^^"^- effects : To do their 1. That every clergyman might attend his duty in "tiej. reading the public prayers of the church, administering 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 clergyman can expect his dues from his parishioners, that does not perform his duty in the first place. To avoid dilapi- 2. The sccond end of this good law, is to avoid dila- dations. pidations in the buildings belonging to their livings : for you shall seldom see a non-resident, but he is also a dilapidator, and it is no wonder that he that neglects the flock, lets the sheepfold go to ruin. To maintain 3. The third end of this good law, was to maintain hospuahty. hospitality: and I woidd wish every clergyman to re- fit 4 H. 4. c. 12! member, that the poor have a share in the tithes with him. Pope Sylvester, in the beginning of the fourth century, decreed, that the revenues of the church should Can. 4. be divided into four parts : " Quarum una cedat pontifici t ^h ''end" f"' ^^ ^"' sustentationem ; altera presbyteris et diaconis, this chapter. et omni clero : tertia templorum et ecclesiarum repa- '- J rationi; quarta pauperibus et infirmis, et peregrinis." Can. 24. -And by a canon of our own, made in the time of king Lamb. 132. Alfred, it is decreed, that the tithes should be delivered to the priest, who should divide them into three parts : ^ " Unam partem ad ecclesias reparationem ; alteram pauperibus erogandam ; tertiam vero ministris Dei qui ecclesiam ibi curant." Cap, in decirais. ^^^ ^J '^ provincial canon of our own, it is ordered,- " Quod religiosi beneficia ecclesiastica obtinentes, se- cundum hujusmodibeneficiorumfacultates annis singulis pauperibus parochianis beneficiorura eorundem certam eleemosynae quantitatem,ordinariorum ipsorum locorum moderandam arbitrio, per ipsos episcopos distribaere CHAP. VII.] THE PARSON'S COUNSELLOR. 81 compellantur, Sic. By all which it appears, that origi- nally the poor had a share la the tithes (30). And to this end the statute enjoins the clergyman 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; but imprisonment without fraud, ^o. 6. 21 b. or removing for health* without fraud, or not having More, 540. du- a house upon his glebe, excuses his residence for the *'£^n^*^^ 57. b. time; for the words of the statute are, " that he that accord, wilfully absents himself." . So if any parson, vicar, &c. shall be in the king's ser- fBut by the V- J • 1 • 1 11 -.U 4. Stat, of 28 H. 8. vice beyond sea, or m any pilgrimage, or shall without ^ 13. this law is *f- fraud abide in any university within this realm to restrained to study, or is a chaplain qualified within this statute, to under 40 years have plurality of benefices, or the chaplains of any of of age, and do — ■ tliG exercises 01 the judges of the King's Bench or Common Pleas, the university, chancellor or chief baron of the Exchequer, of the [ 81 ] king's attorney and solicitor, and the chaplains of the non-residents. (30) If ail tithes were in the possession of the incumbents of their respective parishes, the distribution above alluded to might be fair and useful ; but when it is recollected, that a large part of the great tithes throughout the kingdom are impropriated in lay hands, or appropriated to ecclesiastical or eleemosynary corporations, and that vicarages are endowed with a small comparative share, it can no longer be con- sidered a duty on incumbents in general to expend the fourth part of their incomes in charity and hospitality. The residence of the clergy has been regulated by several recent statutes, the 43 G. 3. c. 84. 54 G. 3. c. 54. 54 G. 3. c. 175. continued by 50 G. 3. c 123. and 5/ G. 3. c. 99. which embraces and repeals the rest. As they are of con- siderable length, the editor has thought it more advisable to place them at the end of this chapter, in the order of their dates. He has given a short abstract of the repealed sta- tutes, as in some degree affording a history of ecclesiastical affairs for a few preceding years, and he has set out the statute 57 G. 3. c. 99., as being an important one, at full length. Vide note 31. 82 THE PARSON'S COUNSELLOR, [part i. 25 H. s. c. 16. chancellor of the Duchy of Lancaster, of the augmenta- 33 H. 8. c. 28. ^JQjjs^ first-fruits and tenths ; of the master of tlie wards, the surve^^or general ; of the treasurer of the chamber and augmentations, and groom of the stole, whilst such chaplains abide and are attendant in the households of their masters ; and the master of the Rolls, the dean of 2iH. 8. c. 13. the arches, and ihe chancellors and commissaries of archbishops and bishops, and the twelve masters of the Chancery, so long as they shall continue in their places, 33H. 8. c. 28. maybe non-resident: but the chaplains of the chan- cellor of the duchy, augmentations, first-fruits, master of the wards, surveyor general, treasurer of the chamber and augmentations, and groom of the stole, are to be 9E. 2. c. 8. 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. And any ecclesiastical 2iH. 8. c. 13. person, to attend any suit in the Chancery or Star Chamber without fraud, may be non-resident for so long time. Sic. Master dies, &c. There is another proviso in this statute that enables Co.6.21.' ' the king to give his chaplains as many livings as he pleases, and to dispense with their own residence. 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 licence, with a non obstante. [ 82 ] And here I must not omit an ancient prerogative of Reg^st. Ong. j|jg kings of England, practised in the height of Popeiy, F.N. B. 44. g. that where any clergymen were employed in the king's service, he might dispense with their non-residence; and if the spiritual judges went about to censure or punish them by ecclesiastical censures for such non- residence, the kings of England have sent their writs mandatoiy, commanding them to surcease. Concil. gener. But bishops and archbishops are not within this law, Const. Can. 80. j^^ j^q^ c.xempt from this duty; there being several CHAP, vir.] THE PARSON'S COUNSELLOR. 83 canons that require it. And bishops may be compelled Condi. Sardi. hereunto by ecclesiastical censures by their superiors; othmi^Ouid'^^' and the king may compel them by seizing their tern- ad venerabiles POl-alities. Shops' resi- A notable precedent whereof we have in the time of dence requira- Henry III. when Popery was at highest, and the king 2inst 625 not looked upon as head of the church; yet that king sent his writ mandatory to the bishop of Hereford, to be attendant upon his bishopric, otherwise he would seize of all his temporalities. Which writ, as well for the rarity as also for the religious grounds upon which it was granted, will not be ungrateful to the reader to see, and for whose satisfaction I shall give it him as I find it recorded by Sir Edward Coke, and wish there were no cause to make use of it in these days. " Rex episcopo H. salutem. Pastores gregibus prae- ponuntur, ut diei, noctisque vigilias exercendo, oves famelicas in fertilitatis pascua introducant: Errantes [ 83 ] vero per verbum salutis, et virgam correctionis in unius ovilis conservare studeant indissolubilem unitatem. Sed sunt nonnulli qui banc doctrinam damnabiliter con- temnentes, et sua ab aliis pecora distinguere nescientes, lac et lanam toUunt, qualiter dominicus grex alatur non curantes, temporalia rapiunt. Et quis in parochia fame pereat, aut periclitetur in moribus, non attendunt; qui non pastores, sed mercenarii potius dici promerentur. Hoc siquidem dum hiis diebus ad disponendum de regni nostri praesidiis in partes marchiae nos transferemus in ecclesia vestra, (dolenter referimus) nos invenisse, quam adeo invenimus pastoris solatio destitutam ut nedum episcopum, sed nee officialem haberet, vicariam aut diaconam qui quicquam spiritualitatis exercere possit in eadem. Sed ecclesia ipsa qua? olim deliciis affluere consuevit, et canonicis qui ibidem nocturnis et diurnis officiis vacare, et opera charitatis exercere deberent, earn deserentibus et longe degentibus in remotis, stola jucunditatis exuta ceciditin terram, viduitatis suae detri- G 2 84 THE PARSON'S COUNSELLOR, [part i. mentadeplorans, nee est qui consoletur earn ex omnibus curis ejus. Sane dum hicc vidimus, et consideiamus diligenter, pietatis, aculeus viscera nostra commovit, et compassionis gladius intima cordis nostri acrius vulne- ravit, ut tantam ecclesia,' matris nostras injuriam ulterius dissimulare non possimus, nee pertransire incorrectam. Quapropter vobis mandamus firmiler injungentes, qua- tenus ad ecclesiam vestram prajdictam, occasionibus quibuscunque postpositis, cum ea qua poteritis celeri- tate vos transferri curetis, commissum vobis in eadem cura pastorali officium personaliter executor, etc. Alio- [ 84 ] qui scire vos volumus pro constanti, quod si istue fieri non curaveritis, bona temporalia, et omnia qua^. ad baroniam ipsius ecclesise pertinent, quae donatione constat eideni fuisse collata, et quae hactenus colligi et salvo custodire preecipimus in commodum et utilita- tem ipsius ecclesiaj convertenda, cessante jam causa in manu nostra totaliter capiemus, nee ulterius sustine- bimus, quod temporalia metat, qui spiritualia ad quas ex officii sui debito tenetur, irreverenter subtrahere non formidat, aut quod emolumenta percipiat, qui incum- bentia ejusdem onera subire recusal, Scc. Teste," &,c. This writ was sent by Henry the Third, to Peter de Egueblanke, a Savoyard, then bishop of Hereford, who, as the history of those times relate, had never a good, but many bad qualities, that constantly attend men that are negligent of their duties to God and man in this kind; how little care soever he took of duty, you hear, lac et lanam sustulit, temporalia rapuit, by which means he was grown intolerable rich; and mark what came of his wealth: the rebellious barons seized on him in his cathedral church at Hereford, and took all his goods and treasure, and divided it amongst their soldiers. Even so may it fare with all such bishops ! Now my hand's in, I will beg the reader's patience, to inform him what Pope Damasus, one of the better CHAP, vii.] THE PARSON'S COUNSELLOR. 85 sorts of popes, said in an epistle of liis to such bishops ; and it was thus : " Primum quod curam sibi commissam negligent, [ 85 ] cum Doniinus dicat ; bonus pastor animain suani ponit pro ovibus suis, mercenarius autem videt lupum venien- teui, et demittit oves, et fugit, etc. Secundo, illi epis- copi qui talia preesumunt, videntur mihi (ait) esse mere- tricibus similes, quae statim ut pariunt, infantes suos aliis nutricibus tradunt educandos, ut suam citius libi- dinem explere valeant. Sic et isti infantes suos, id est, populos sibi commissos aliis educandos tradunt, ut suas libidines expleant, id est, pro suo libitu szecularibus curis inhient, et quod unicuique visum fuerit, liberius agunt. Pro talibus enim animai negliguntur, oves per- eunt, morbi crescunt, hiereses et schismata prodeunt, ecclesiae destruuntur, sacerdotes vitiantur, et reliqua mala proveniunt. Non taliter Dominus docuit, nee apostoli instituerunt, sed ipsi qui curam suscipiunt, ipsi peragant el ipsi proprios manipulos Domino repre- sentant. Nam ipse ovem perditam diligenter qusesivit, ipse invenit, ipse propriis humeris reportavit, nosque ad ipsum facere perdocuit. Si ipse pro ovibus tantam cu- ram habuit, quid nos miseri dicturi sumus, qui etiam pro ovibus nostris commissis curam impendere neglige- mus, et aliis eas educandas tradimus? Corrigantur hcec (fratres) necesse est, quia, qui plus laborat, majo- rein mercedem accipiet." And now I have done with non-residence, one of the pests of the church : 1 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. Whereas in the former impressions of this book, [ 86 ] Chap. 7. page 67. I cite a canon of Pope Sylvester, whereby it is decreed, that the revenues of the church should be distributed into four parts, one to the bishop. 86 THE PARSON'S COUNSELLOR, [part i. a second to the clergy, a third to the repairs of the church, and a fourth to the poor, and to the infirm, and pilgrims. There is a learned person that has published a book in defence of pluralities, but is en- dowed with so much modesty, that he is ashamed to tell his name; yet is not ashamed to reflect upon me for writing against them, who in the beginning of his third chapter, page 155, says, " It remains in the third place to be manifested, that the use of pluralities, as now practised, is not inconvenient to the church. ** These inconveniences, as they are urged and exagge- rated by the oppugners of pluralities, may be reduced to these four heads." And after he has named the four heads, page 158. he charges, " That the author first named (meaning me) hath affirmed many things which are downright false, in other things hath betrayed a gross ignorance. The other author is a person of too great worth and learning, to be guilty either of fraud or ignorance; but only has suffered himself to be herein transported with too much heat and zeal before he well considered the case ; so that wheresoever in the follow- ing answer I shall charge fraud or ignorance upon the objections, I desire it may be referred to the first ob- jector," [ 87 ] So you see this nameless author hath done me the credit to place me in honourable company ; but charges me to have affirmed many things that are downright false, and in other things to have betrayed a gross ig- norance, but charges nothing in particular that is false. But page 166. he saith, " That it is something shameful for a professor of law to cite the decrees of Pope Sylvester as genuine, which were forged almost 500 years after his death." This learned gentleman might have done well to have made some proof of this assertion, for the better information of my ignorance. Pope Sylvester is re- ported to have been a very good man, and lived about the end of the third century. And Caranza, a famous CHAP. VII.] THE PARSON'S COUNSELLOR. 87 canonist, mentions this canon to be made by a council of'275 bishops, held intra ThermasDomitianas at Rome, and confirmed by Constantine the emperor, and the empress Helena his mother. And that good pope Sylvester, and Padre Paulo the In his treatise author of the history of the council of Trent, does fidarL^le.*^"^' affirm, that such a division of the church revenues was made in the year 470; but concludes, that some do attribute this devotion to pope Sylvester, who was 150 years before that time: but why any body should forge this canon 500 years after Sylvester's death, which must be in the end of the eighth century, I know no reason, the matter being, 300 years before that time, settled first by a decretal epistle of pope Simplicius to Floren- [ 88 ] tinus, Equitius and Severus, bishops, which lived about ^e Redi^ibus the latter end of the fifth century; who says, " De reditibus ecclesiae vel oblatione fidelium quid deceat nescient! nihil licere permittat, sed solo episcopo ex his una portio remittatur: duse ecclesiasticis fabricis et erogationi peregrinorum et pauperum profuturse a Bonargro presbytero sub periculo sui ordinis mini- strentur; ultima inter se clericis pro singulorum meritis dividatur." And Gregor}'^ the First, in his answer to the first De Epiit. lib. question made to him by Augustine, first archbishop i^. of Canterbury, about the end of the fifth century, tells him, " Mos est apostolica; sedis ordinalis episcopis praiceptum tradere, quod de omni stipendio quod accedit quatuor fieri debeant portiones, una videlicet episcopo et famulffi ejus propter hospitalitatem et susceptionem, alia clero, tertia vero pauperibus, quarta ecclesiis re- parandis." So that upon the whole matter it appears, by what is now and heretofore said, there was no need in the eighth century to forge a canon for this purpose in Sylvester's name ; nor is there any doubt, but that by the canon law the poor ought to have a share in the revenues of g8 THE PARSON'S COUNSELLOR, [part i, the church. Which was all I endeavoured to prove (31). (3l) Several actions having been brought for penalties incurred under statute 21 Hen. 8. for non-residence, pro- ceedings under it were from time to time stayed by statutes 41 G. 3. c. 102. and 42 G. 3. c. 30. 86. At length the statute 43 G. 3. c. 84. was passed, by which incumbents were permitted to be absent three months without any penalty. If they were absent between three and six months, they forfeited one third of the annual value of the benefice after all deductions except the curate's stipend; between six and eight months one half; between eight and twelve months two thirds, and the whole year three fourths to any one who would sue : sinecure rectories were excepted. All who were exempted from non-residence before were still to be exempted : and the statute extended the exemption to se- veral others therein specified, to all public officers in either university, and to tutors and public officers in any college. Students in the university were exempted till they were thirty years old only. The person of the incumbent was not to be taken in exe- cution if the penalties could be raised by sequestration. The bishop's certificate to be evidence of the annual value. No person was to have the benefit of an exemption unless he made a notification of it every year, within six weeks from the 1st of January, to the archbishop or bishop of the diocese. The bishop might at his discretion grant a licence for non- residence, for the illness or infirmity of the incumbent, his wife or child ; and where there was not a fit house of re- sidence (if the unfitness was not caused by the incumbent's own neglect), if he lived in his own or any relation's house in the parish; if he served another church as curate or preacher, or if he was master or usher of an endowed school, and licensed by the bishop, these and some other were grounds of the grant of a licence, and if the bishop refused, the incumbent might have applied to the archbishop. The bishop might grant licences for causes not enumerated in the statute, but they were afterwards to be allowed by the arch- CHAP. VII.] THE PARSONS COUNSELLOR. 89t bishop. Licences might be revoked, and if not revoked were in force only for two years. A list of all exemptions and licences for non-residence was to be transmitted every year to the king in council, and lists of the exemptions and licences were to be kept by the register of each diocese ; any person might inspect them by paying two shillings. The bishop might compel residence by a monition and censure in his court, but not unless the non-residence exceeded three months in one year. If an action for the penalties was commenced, and the bishop issued his monition before the commencement of the action, it was a bar to the action. If the bishop's monition to reside was not complied with within thirty days, he might sequester the profits of his living till it was complied with. The profits sequestered might be applied by the bishop to the improvement of the parsonage house, or to the fund of Queen Anne's bounty. Vicars were no longer to take an oath that they would reside. If an in- cumbent was called into residence by the bishop, and there was any tenant residing in the parsonage house, a copy of the order was to be served upon the tenant by one of the churchwardens, and if he did not quit the premises on the day specified in the order, he was to forfeit forty shillings for everyday he continued afterwards on the premises; all con- tracts with the incumbent were to be void. The king's prero- gative to grant dispensations for non-residence was not affected. This act gave occasion to many vexatious prosecutions against the clergy at the suit of a common informer, in con- sequence of which the statutes 54 G. 3. c. 6. and 54 G. 3. c. 44. to stay proceedings, and 54 G. 3. c. 54. to discontinue proceedings in certain actions already commenced, and to continue stat. 54 G. 3. c. 44. were passed. Then followed the statute 54 G. 3. c. 175. to explain and amend several acts relating to spiritual persons holding farms, and for enforcing the residence of such persons on their benefices, in England, for one year, and from thence until six weeks after the meeting of the then next session of par- liament. At length the statute 5/ G. 3. c. 99. was passed, entitled an act to consolidate and amend the laws relating to spiritual persons holding of farms, and for enforcing the residence of spiritual persons on their benefices, and for the support and 90 THE PARSON'S COUNSELLOR. [part i. maintenance of stipendiary curates in England. This act comprises the provisions of 43 Geo. 3. c. 84. as to non- residence, consolidates the enactments of several statutes upon the subject of spiritual persons holding farms, and the maintenance of curates, introduces some new provisions, and repeals the former statutes on those subjects: as it is therefore very important and useful, it is here given verbatim. " An act to consolidate and amend the laws relating to spiritual persons holding of farms ; and for enforcing the residence of spiritual persons on their benefices; and for the support and maintenance of stipendiary curates in England. []Oth July, 1817-] 21 H. 3. c. 13. *' Whereas an act passed in the twenty-first year of the reign of his majesty King Henry the Eighth, intituled * An act against pluralities of benefices, taking of farms by spiritual men, and for residence:' and whereas another act passed in 28 H. 8. c. 13. the twenty-eighth year of the reign of his said majesty King Henry the Eighth, intituled ' An act for compelling spiritual persons to keep residence upon their benefices :' and whereas 13 E!iz. c. 20. another act was passed in the thirteenth year of the reign of her majesty Queen Elizabeth, intituled ' An act touching leases of benefices, and ecclesiastical livings with cure:' 14Eliz. c. 11. tirid whereas three several acts passed in the fourteenth, iSEliz. c. 11. eighteenth and forty-third 3'ears respectively of the reign of her said majesty Queen Elizabeth, for explaining and amend- ing the said recited act of the thirteenth year aforesaid; and 3 C. I.e. 4. which were made perpetual by an act passed in the third year of the reign of his majesty King Charles the First, intituled ' An act for the continuance and repeal of divers 43 G. 3. c. 84. statutes :' and whereas another act was passed in the forty- third year of the reign of his present majesty, intituled •' An act to amend the laws relating to spiritual persons holding of farms, and for enforcing the residence of spiritual persons on their benefices in England :' and whereas another act 43G.3. c. 109. passed in the forty-third year of the reign of his present majesty, intituled ' An act to rectify a mistake in an act made in this present session of parliament, intituled ' An act to amend the laws relating to spiritual persons holding of farms, and for enforcing the residence of spiritual persons CHAP, vn.] THE PARSON'S COUNSELLOR. 91 on their benefices in England, and to remove a doubt re- specting the title of the statute of the twenty-first year of King Henry the Eighth therein mentioned:' and whereas an act was passed in the twelfth year of the reign of her late ^ ^g""' ^^^^' majesty Queen Anne, intituled 'An act for the better main- tenance of the curates within the church of England, and for preventing any ecclesiastical persons from buying the next avoidance of any church preferment :' and whereas an act was passed in the thirty-sixth year of the reign of his "^^ ^' ^' ^- °^' present majesty, intituled ' An act for the further support and maintenance of curates within the church of England, and for making certain regulations respecting the appoint- ment of such curates, and the admission of persons to cures augmented by Queen Anne's bounty, with respect to the avoidance of other benefices:' and whereas another act passed in the fifty-third year of the reign of his present 53 G. 3. c. 149. majesty, intituled ' An act for the further support and maintenance of stipendiary curates:' and whereas doubts have arisen upon the construction of some of the provisions of the said acts ; and it is therefore necessary that such pro- visions of the said acts should be explained, and other pro- visions made, and that the several laws relating to spiritual persons holding of farms, and to buying and selling, and for enforcing of residence and the maintenance of stipendiary curates, should be consolidated in one act:' may it there- fore please your majesty that it may be enacted; and be it enacted by the king's most excellent majest}', by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that from and after the passing of Recited acts re- this act, so much of the said several recited acts passed in P'^^ the reign of his majesty King Henry the Eighth, and so much of the said acts of the reign of her majesty Queen Elizabeth, and of the said recited act of his majesty King Charles the First, as relates to spiritual persons holding of farms, and to leases of benefices and livings, and to buying and selling, and to residence of spiritual persons on their benefices ; and also so much of the said recited act of her majesty Queen Anne, and of the said recited act of the thirty-sixth year of the reign of his present majesty, as relates to the maintenance of curates within the church of |)2 THE PARSON'S COUNSELLOR, [iart i. England, and making provision for appointing stipends for such curates, and all the said several other recited acts passed in the reign of his present majesty, shall be and the same are respectively hereby repealed. Spiritual per- " IL And be it further enacted, that from and after the sons taking to passing of this act it shall not be lawful for any spiritual farm for occu- r- n ,,,. ^• ■ ^ ■, pation above person having or holding any dignity, prebend, canonry, eighty acres benefice or any stipendiary curacy, or lectureship, to take to of bishop. farm, for occupation by himself, by lease, grant, words or otherwise, for term of life or term of years, or at will, any lands, exceeding in amount in the whole eighty acres, for the pur- pose of occupying or using or cultivating the same, without the consent in writing of the bishop of the diocese in which such dignity, canonry, prebend, benefice, stipendiary curacy or lectureship shall be locally situate, specially given for What such con- ^j^^j. pm-pose ; and every such permission to any spiritual sent IS to ex- r i ' j i j r press, person to take to farm, for the purpose or occupying the same, any greater quantity of land than eighty acres, shall specify the number of years, not exceeding seven, for which the permission is given ; and every such spiritual person as aforesaid who shall, without such permission as aforesaid, take to farm any greater quantity of land than eighty acres, shall forfeit for every acre of land above the quantity of Penalty. eighty acres so taken to farm, the sum of forty shillings for each and every year during or in which he shall so occupy, use, cultivate or farm such land contrary to the provisions of this act, to be recovered by and to the use of any person who may inform and sue for the same. Spiritual person " HL And be it further enacted, that no spiritual person bene ce , or having or holding any dignity, prebend, canonry, benefice, clesiastical duty, Stipendiary curacy or lectureship, shall by himself, or by engaging in ^^y other for him or to his use, engage in or carry on any ' ' trade or dealing for gain or profit, or deal in any goods, wares or merchandize, by buying and selling for lucre, gain or profit, in any market, fair or other place, upon pain of Penalty, forfeiting the value of the goods, wares and merchandizes, by him or by any to his use, bargained and bought to sell again contrary to the provisions of this actj and that every bargain and contract so made by him, or by any to his use, in any such trade or dealing, contrary to this act shall be void. utterly void and of none effect; and the one half of every CHAP. VII.] THE PARSON'S COUNSELLOR. 03 such forfeiture shall go to his majesty, and the other half to him that will sue for the same. " IV. And be it further enacted, that nothing in this act Proviso for contained in relation to being engaged in trade or dealing, ^^^'"'"j'jPf"""' or buying or selling, shall extend or be construed to extend keeping schools, to, or to subject to any penalty or forfeiture, any spiritual P"" ^^ tutors, &c. ' /.,. ,1 • • in respect of any person for keeping a school or semmary, or actmg as a thins; done, or schoolmaster or tutor or instructor, or being in any manner any buying or J 1 ••••,. i.- J i* c selling in such concerned or engaged \n givnig mstruction or education tor g^pio„njent- profit or reward, or for buying or selling, or doing any other and for selling act, matter or thinsr in the conduct of, or carrying on, or in ^"y |l"ng bona ' '^ 1 • fi^*^ bouglit for relation to the management of any such school, seminary or the use of the employment; or to any spiritual person whatever, for the family; or buying of any goods, wares or merchandizes, or articles or °iebe,'^Stc things of any description, which shall, without fraud or covin, be bought, to the intent and purpose, at the buying thereof, to be used and employed by the spiritual person buying the same for his family or in his household, and after the buying of any such goods, wares or merchandizes, or articles or things, the selling the same again, or any parts thereof, which such person may not want or choose to keep, although the same shall be sold at any advanced price beyond that which may have been given for the same ; or for any buying or selling again for any lucre, gain or profit of any manner of cattle or corn, or other matters or things whatever, ne- cessary, proper or convenient to be bought, sold, kept or maintained by any spiritual person, or any other person for him, or to his use, for the occupation, manuring, improving, pasturage or profit of any glebe, demesne, farms, lands, tenements or hereditaments, which may be lawfully held and occupied, possessed or enjoyed by such spiritual person, or any other for him or to his use : provided always, that nothing herein contained shall extend or be construed to extend to authorize any such spiritual person to sell any cattle or corn, or other matters or things as aforesaid, in person, in any market, fair, or place of public sale, " V, And be it further enacted, that from and after the Non-residence, passing of this act every spiritual person holding any benefice, who shall, without any such licence or exemption as is in this act allowed for that purpose, wilfully absent himself therefrom for any period exceeding the space of three 94 THE PARSONS COUNSELLOR. [part k months together, or to be accounted at several times in any one. year, and make his residence and abiding at any other place or places except at some other benefice, donative, perpetual curacy, or parochial chapelry of which he may be possessed, shall, when such absence shall exceed such period Penalties ac- as aforesaid, and not exceed six months, forfeit and pay one cording to time, jj^j^d of the annual value (deducting therefrom all outgoings, except any stipend paid to any curate) of the benefice, do- native, perpetual curacy, or parochial chapelry from which he shall so absent himself as aforesaid ; and when such ab- sence shall exceed six months and not exceed eight months, one half of such annual value; and when such absence shall exceed eight months, two thirds of such annual value ; and ' when such absence shall have been for the whole of the year, three fourths of such annual value, to be recovered by action of debt, bill, plaint, or information in any of his majesty's courts of record at Westminster, or the courts of great ses- sions in Wales, wherein no essoign, privilege, protection or wager of law, or more than one imparlance, shall be allowed ; and the whole of every such penalty or forfeiture shall go and be paid to the person or persons who shall inform and sue for the same, together with such costs of suit as shall be allowed, according to the practice of the court in which such action shall be brought. Where no house " VL And be it further enacted, that every spiritual per- belonging to be- ^^^ having any benefice, and who shall not have any house nence. ccc. re- o j ■> j sidence within of residence thereon, and who shall have resided nine months limits of parish, jn jhc year within the limits of his benefice, or within the sidence. " limits of the city, town, place or parish in which his benefice may be situated, provided such last mentioned residence be within the distance of two miles fi'om the church or chapel of his benefice, shall not be liable to any penalties on account of non-residence, nor be obliged to take out any licence in respect thereof, but that the same shall be deemed a legal residence to all the intents and purposes of this act; and in all returns made by the bishops, persons so residing shall be returned as resident. In what case " VII. * And whereas the governors of Queen Anne's houses purchas- jjQunty have in some instances purchased and may hereafter ed by governors •' . . . . , • \ c i-i of Queen Anne's purchase houses not Situate withm the parishes for which bounty to be ^^gy a^e purchased, but so contiguous as to be sufficiently deemed re- "^ sidences. CHAP. VII.] THE PARSON'S COUNSELLOR. 95 convenient and suitable for the residence of the officiating ministers thereof;' Be it therefore enacted, that such houses, having been previously approved by the bishop by writing under his hand and seal, and duly registered in the registry of the diocese, shall be deemed houses of residence appertaining to such benefices to all intents and purposes whatsoever. " VIU. And be it further enacted, that in all cases of rectories having vicarages endowed, the residence of the Rectories hav- vicar in the rectory house shall be deemed a legal residence mg ^'carages It • 1 1 -Til. endowed. to all intents and purposes whatever; provided that the vicarage house be kept in proper repair, to the satisfaction of the bishop. " IX. And be it further enacted, that it shall be lawful for the bishop, in every case in which there shall not be a Power in bishop house of residence belonging to any benefice within his ^° ^"°^^' ^"^ ^^ J. „ 1 T 1 f 1 • 1 • t ,. . house belonging diocese, to allow and adjudge any nt house within the limits to the prefer- of such benefice and belonging thereto, or any fit house be- "J*^"*^ to be a longing thereto, not within the limits, but so contiguous as j^jX^cc to be sufficiently convenient for the purpose, to be the house of residence thereof; and such allowance and adjudication in writing under the hand and seal of such bishop shall there- upon be registered in the registry of the diocese from time Such allowance to time; and such house shall thenceforth be deemed the to be registered. house of residence for the time being to all intents and pur- poses whatsoever. «' X. And be it further enacted, that no spiritual person, In whatcasethe being chancellor, vice-chancellor, or commissary of either of fo""^^''"g ?^^- • • • sons cxciiiDtcd the universities of Oxford or Cambridge, or being warden, from penalties dean, provost, president, rector, principal, master, or other fo"" uon-re- head ruler of any college or hall within the said universities, ^f'^"'^*^',, « . . . ' ° , ' Cnaiicellor, &c. and no spiritual person having or holding any j)rofessorship in the univer- or any public readership in either of the said universities, ^'^'^"* ' being actually resident within the precincts of the university and reading lectures therein ; and no scholar under the age of thirty years, abiding for study without fraud at either of the said universities ; and no chaplain of the king's or Royal chap- queen's most excellent majesty, or of any of the king's or ''*'"^ ' queen's children, brethren or sisters, during so long as he shall actually attend in the discharge of his duty as such chaplain in the household to which he shall belong ; and no chaplain of any archbishop or bishop, or of any temporal Chaplains oi peers, &c.j 96 THE PARSON'S COUNSELLOR, [part i. Chaplain of the house of com- mons ; Clerk of the closet J Chaplains in the forces and dock- yards; Chaplains of ambassadors, &c. abroad ; Archdeacons ; Minor canons, &c. ; Dean, &c. at St. James's or Whitehall; Reader in the king's private chapels; Preacher in inns of court or the rolls ; Bursars, &c. of college ; Public librarian, &c. in the uni- versities ; lord of parliament, or of any other person or persons authorised by law to appoint any chaplain or chaplains, during so long as such chaplain or chaplains shall abide and dwell and daily attend in the actual performance of his duty as such chaplain in the household to which he shall so be- long; and no spiritual person actually serving as a chaplain of the house of commons, or as clerk of his majesty's closet, or as a deputy clerk thereof, or a clerk of the closet of the heir apparent, or as a deputy clerk thereof, or as a chaplain ge- neral of his majesty's forces by sea or land, or chaplain of his majesty's dock-yards, while such spiritual person shall be actually attending and performing the duties of such office respectively; or as a chaplain in the household of any British ambassador residing abroad, during the time of his perform- ing the duties of such his office ; or as chancellor or vicar general, or as commissary, whilst exercising the duties of their offices respectively; or as an archdeacon, while upon visitations or otherwise engaged in the exercise of his func- tions ; and no spiritual person being a minor canon or vicar choral, or priest vicar, or any such other public officer, in any cathedral or collegiate church, during the times for which such spiritual person shall actually reside within the precincts of the cathedral or collegiate church to which he shall belong, or within the city or town in which the said cathedral or collegiate church is situate or the suburbs thereof, and shall actually perform the duties of his office ; or as a dean or subdean, or priest or reader, in any of his majesty's royal chapels at Saint James's or Whitehall, or as a reader in his majesty's private chapels at Windsor or else- where, whilst residing and actually performing the duty of any such office respectively; or as a preacher in any of the inns of court or at the Rolls; or as bursar, treasurer, dean, vice president, subdean or public tutor or chaplain, or other such public officer in any college or hall in either of the uni- versities of Oxford or Cambridge, during the period for which he may respectively be required, by reason of any such office, to reside and perform the duties of any such office, and actually shall reside and perform the duties of the same; or as public librarian or public registrar or proctor, or public orator, or other such public officer, in either of the said uni- versities, during the period for which he may respectively be cHAi'. VII.] THE PARSON'S COUNSELLOR. 97 required by reason thereof to reside and perform the duties of any such office, and actually shall reside and perform the duties of the same; or as fellow of any college in either of the Fellows of col- universities, during the time for which he may be required '■^S*^^'> to reside by any charter or statute, and shall actually reside therein ; or as warden, provost, or fellow of Eton or Win- Warden, &c. of Chester college, or the master of the Charterhouse, during j^Ej^^^^^'^d the time for which he may be required so to reside and shall Wincliester; actually reside therein respectively; or within the city or Master of the town, or suburbs of the city or town within or near to which ' the said colleges are respectively situate ; or as a master or usher in the said colleges of Eton or Winchester, or as a master or usher of Westminster school, or as principal or professor of the East India college ; or who shall be specially Principal, &c. of exempt from residence under the provisions of any act or the East India acts of parliament not repealed by this act, shall be liable to any of the pains, penalties, or forfeitures in this act con- tained, for or on account of any non-residence, during any such period as aforesaid, on any benefice ; but every such spiritual person shall, with respect to residence under this act, be entitled to account such period as if he had legally resided on some other benefice ; any thing in this act con- tained to the contrary notwithstanding. " XL And be it further enacted, that it shall be lawful Proviso for dig- t- • -^ 1 u • J J • L x- u nitaries residinc for any spiritual person being dean, during such time as he ^^ cathedral shall reside upon his deanery, or being prebendary or canon, churches, &,c. or holding: any other dignity or dignities in any cathedral or ""■ certam o J o J o ^j ^ periods. collegiate church or churches, who shall reside any period not exceeding four months altogether within the year upon such dignity or dignities, to account such residence as if he had legally resided on some benefice : Provided always, that Cases in which it shall be lawful for any spiritual person having or holding the year of re- , I ,. . . Ill 1 sidenceatca- any prebend, canonry, or dignity m any cathedral or col- thedrals com- legiate church, in which the year for the purposes of re- mences at anj sidence is accounted to commence at any other period than °/ '^^r'^'^i°t f the first of January, and who may keep the periods of re- January. sidence required for two successive years at such cathedral or collegiate church, in whole or in part, between the first of January and the thirty-first of December in any one year, to account such residence, although exceeding four months in the year, as reckoned from the first of January to tlie H 98 THE PARSON'S COUNSELLOR. [part r- Bishop may licence for a longer period, if the duties of a cathedral or collegiate churcii require it. Proviso for pre- bendaries, &.C. appointed be- fore this act. Persons having house of re- sidence on their benefice, and not keeping it in repair, Penalty. thirty-first of December, as if he had legally resided on some benefice ; any thing in this act contained to the contrary notwithstanding. ♦' Xn. And be it further enacted, that it shall be lawful for the bishop of the diocese in which any benefice shall be locally situate to licence any longer period of non-residence upon any such benefice of any prebendary, canon, or other person holding any dignitj^ in any cathedral or collegiate church, in any case in which it shall appear to such bishop, from his own knowledge, if such cathedral or collegiate church is locally situate within his own diocese, or if not, by the certificate of the bishop of the diocese in which the cathedral or collegiate church shall be locally situate, to be required for the performance of any duties in any such cathedral or collegiate church ; provided that every such spiritual person shall during such period reside on such pre- bend, canonry, or dignity. " Xin. Provided always, and be it further enacted, that no spiritual person appointed to any prebend, canonry, or dignity in any cathedral or collegiate church before the passing of this act, shall be subject to any penalty or for- feiture for non-residence upon any benefice during the period of his actually residing upon such prebend, canonry, or dignity. " XIV. And be it further enacted, that ever}^ spiritual person having any house of residence upon his benefice, who shall not reside thereon, shall, during such period or periods of non-residence, whether the same shall be for the whole or part of any year, keep such house of residence in good and sufficient repair ; and that every such spiritual person who shall not keep such house of residence in repair, and who shall not, upon monition issued by the bishop of the diocese in which the same shall be locally situate, put the same in repair, according to the requisition of such moni- tion, within the time specified therein, to the satisfaction of the bishop of the diocese, and to be certified to the bishop upon such survey and report as shall be required by the bishop in that behalf, shall be liable to all penalties for non- residence, notwithstanding any exemption or licence, during the period of such house of residence remaining out of re- pair, and until the same shall have been put in good and CHAP, vn.] THE PARSON'S COUNSELLOR. 99 sufficient repair, to the satisfaction of the bishop of the diocese. " XV. And be it further enacted, that from and after the Bishop may passing of this act it shall be lawful for any bishop, upon g^ant licences application made for that purpose, by petition in writing, by sideuce in'cer- any spiritual person, or by any fit and proper person on tain cases enu- behalf of any spiritual person, having or holding any bene- ™^"^^"' fice locally situated within his diocese, upon such proofs as to any facts stated in any such petition as any such bishop may think necessary, and shall require by affidavit made be- fore any ecclesiastical judge or his surrogate, or any justice of the peace or magistrate, or any master extraordinary in Chancery (which oath any such ecclesiastical judge or sur- rogate or justice of the peace or magistrate, or master extra- ordinary in Chancery, is hereby authorized and required to administer), to grant in such cases as are in this act enume- rated, in which, upon due consideration of all the circum- stances stated in any such application, and verified to the satisfaction of the bishop as aforesaid, such bishop shall in his discretion think it fit to grant the same, a licence in writ- ing under his hand, expressing the cause of granting the same to such spiritual person to reside out of the parish, or out of the proper house of residence of his benefice, for the purpose of exempting such person from any pecuniary pe- nalty or forfeiture in respect of any non-residence thereon ; (that is to say), to any spiritual person who shall be pre- vented from residing in the proper house of residence, or in the parish, by any actual illness or infirmity of body of him- self, or of his wife or child, making part of and residing with him as part of his family ; and also to any spiritual person having or holding any benefice whereupon or wherein there shall be no house of residence, or where the house of re- sidence shall be unfit for the residence of such spiritual per- son, such unfitness not being occasioned by any negligence, default or other misconduct of such spiritual person, and such spiritual person keeping such house of residence in re- pair to the satisfaction of the bishop ; and also to any spi- ritual person having or holding any benefice, and occupying in the parish of the same respectively any mansion or mes- suage, to reside in such mansion or messuage, such spiritual person keeping the house of residence, and other buildings H 2 100 THE PARSON'S COUNSELLOR. [part i. belonging thereto, in good and sufficient repair and condi- tion, and producing to the bishop proof to his satisfaction, at the time of granting and renewing any such licence, of such good and sufficient state of repair; and also to any spiritual person having or holding any benefice of small value, and serving as a licensed stipendiary curate elsewhere, and providing for the serving of such his benefice, to the satisfaction of such bishop ; and also to any master or usher of any endowed school duly licensed by the bishop, and actually employed in teaching therein ; and also to any master or preacher of any hospital or incorporated charitable foundation during the period for which he may be required to reside by any charter or statute of any such hospital or incorporated charitable foundation, or by any other lawful authority in the same, and shall actually reside and perform his duties therein ; or to any person holding any endowed lectureship, or endowed chapelry, or endowed preachership, and performing and executing the duties thereof respectively, with the licence of the bishop in whose diocese he shall so officiate ; or to any spiritual person having or holding any benefice of small value, and serving as preacher in any pro- prietary chapel, in any city or town, with the licence of the bishop in whose diocese he shall so officiate ; or to any spiritual person actually serving as chaplain in any of his majesty's garrisons, or as chaplain to the royal military asylum at Chelsea, or royal military college at Sandhurst, or as teacher of the royal military academy at Woolwich, or as chaplain at either of the royal hospitals at Greenwich or Chelsea, or as chaplain to either of the royal hospitals for seamen at Haslar or Plymouth, or as chaplain to the naval asylum, or in his majesty's navy, or as chaplain of his ma- jesty's gaol of Newgate, or of the penitentiary at Milbank, or as chaplain of any British factory, or as principal sur- rogate or official in any ecclesiastical court of any diocese, or as a librarian of the British Museum, or of Sion college, or as one of the trustees of Lord Crewe's charity, during the time of personal attendance on the duties of such office re- Fee for licences, spectively : Provided always, that the spiritual person ob- taining any such licence shall pay to the secretary or officer of the bishop the sum often shillings, exclusive of and over and above the stamp duty chargeable thereon, and no more: cHAr. VII.] THE PARSON'S COUNSELLOR. 101 Provided also, that if any spiritual person applying to any Appeal to arch- bishop for any such licence shall think himself aggrieved by bishop on re- the refusal thereof, it shall be lawful for such spiritual person ^"'p' ^^ ^''^°P "^ ' 01 licence. to appeal to the archbishop of the province, who shall forth- with, either by himself, or some commissioner or commis- sioners, appointed from among the other bishops of his pro- vince, under his hand, make or cause to be made inquiry into the same, and by writing signed by himself confirm such refusal^ or grant a licence under this act, as shall seem just and proper: Provided always that in every such case the Security on ap- spiritual person so appealinti^ shall give security to the bishop P^^' *"!^ ^^^' J,, ' /•, ,, . ,, mentofex- lor the payment oi such reasonable expences occasioned by pence*. the appeal as the archbishop or his commissioner or commis- sioners shall award. " XVL And be it further enacted, that it shall be lawful in cases not for any such bishop as aforesaid, in any cases not hereinbe- hereinbefore fore enumerated, in which under all the circumstances of K?c'>,'"f'^^*^ ' oisnops may any such case such bishop shall think it expedient to grant grant licences to any spiritual person possessed of any benefice a licence . assign sala- ■ , n , -I ,-1 , f '■"^^ *° curates to reside out or the pan!«li, or out oi the proper house oi re- emploved, as sidence, as the case may be, or as the case may appear to ^^^y ^*^^" think such bishop to require, and to assign in any case in which a stipendiary curate may be employed to do the duty of such spiritual person, such salary as he shall judge fit to appoint, due respect being had to the value of such benefice^ and to all other circumstances of the case : And it shall also be lawful for any bishop, in case of the absence from the realm of any spiritual person, to grant any such licence without any application made for that purpose, and from time to time in any such case to renew any such licence as he shall think fit, and in every such case to appoint a stipendiar}' curate in case no curate duly licensed shall be then employed in serving such benefice, and to assign a salary to such curate ; or if any curate shall have been and be then so em- ployed, to assign any additional salary to such curate ; and in every and any of such ca^es to cause such salaries to be paid by sequestration of the profits of the benefice : Provided Reaso„s f^^ always, that in every such case respectively, the nature and granting such special circumstances thereof, and the reasons that liave in- ''^'-'n^'^s 'o br 1 1 1 . • 1 11- £• • 1 1 11 fansnmted to duced such bishop to grant such licence as aforesaid, shall the archbishop be forthwith transmitted to the archbishop of the province ^°^ examination and allowance. 102 THE PARSON'S COUNSELLOR. [part i. No such licence good until so allowed. In what case only licences void b}' death, &c. of grantor. Application for licence to be in writing and signed, and to state certain particulars. to which such bishop shall belong, who shall forthwith by himself, or by some commissioner or commissioners ap- pointed for that purpose from among the bishops of such province, by writing under his hand, which commissioner or commissioners is and are thereupon authorized to take upon himself or themselves the execution of the said commission, examine into such case, and make such inquiries as to any particulars relating thereto, as such archbishop or commis- sioner or commissioners so appointed as aforesaid may think necessary; and after such inquiries made by himself, or where the same shall be made by such commissioner or com- missioners, after a return of the substance thereof in writing to such archbishop, such archbishop shall thereupon allow or disallow such licence in the whole or in part, or make any alteration therein as to the period for which the same may have been granted or otherwise, and likewise as to the stipend assigned to the curate, as to such archbishop shall seem fit ; and no such licence shall be good, valid, or ef- fectual under this act, for any purpose whatever, unless it shall have been so allowed and approved by such arch- bishop, such allowance thereof being signified by the signing thereof by such archbishop: Provided always, that it shall not be necessary in such licence to specify the cause of granting the same. " XVn. And be it further enacted, that no licence granted under this act shall be made void by the death or removal of the bishop granting the same, but the same shall be and remain good and valid notwithstanding any such death or removal, unless the same shall be revoked by the next or any succeeding bishop, as the case may require. " XVIII. And be it further enacted, that every applica- tion made by or in behalf of any spiritual person holding any benefice, donative, perpetual curacy, or parochial chapelry, to the bishop of the diocese, for any licence for non-re- sidence, shall be in writing, and shall be signed by the person making the same, and shall state whether such spiritual person intends to perform the duty himself, and if he does, where and at what distance he intends to reside; or if he intends to employ a curate, the application shall state what salary he proposes to give to his curate, and whether the curate proposes to reside or not to reside in the parish ; and CHAP. VII.] THE PARSON'S COUNSELLOR. 103 if the curate intends to reside, then whether in the parsonage house ; and if he does not intend to reside in the parish, then the application shall state at what distance therefrom, and at what place such curate intends to reside; and whether such curate serves any other parish as curate or incumbent, or has any ecclesiastical preferment, or holds any donative, per- petual curacy or parochial chapelry, or officiates in any other church or chapel ; and such application shall also state the gross annual value of the benefice in respect of which any licence for non-residence shall be applied for; and it shall Otherwise bi- not be lawful for the bishop to grant any such licence, unless ^''"P "°' f°,. 1 ... , ,, *. ^ n y , grant such li- the application snail contam a statement or the several par- cence. ticulars aforesaid ; and all such applications and specifications shall be kept and filed by the registrar of the diocese in a separate book, which shall be kept and preserved for that purpose; and such book shall not be open to public in- spection, or disclosed, or copies thereof made, except with the leave in writing of the bishop of the diocese. " XIX. And be it further enacted, that during the vacancy of any see, the power of granting licences under this act, Bv wliom li- subject to the regulations therein contained, shall be exercised cences may be by the vicar general of the diocese; or in case such circum- feels^acant ^Di- stances shall arise as shall disable the bishop from exercising bishop disabled, in person the functions of his office, it shall be exercised by such person or persons as is or are lawfully empowered to exercise his general jurisdiction in the diocese. " XX. And be it further enacted, that it shall be lawful for any bishop who shall have granted any licence for non- Licences may be residence as aforesaid, or for any successor or successors of revolted. any such bishop, to revoke any such licence in any case in which it may appear to him or them proper and expedient to revoke the same : provided, that any spiritual person mav appeal against any such revocation by the bishop in like manner as is hereinbefore directed in case of any refusal of any licence : provided also, that it shall be lawful for any archbishop to whom such appeal shall be made, to order and direct such reasonable \'eQi, and charges to be paid by any p^ps ^^ ^e spiritual person appealing as aforesaid, in respect of any such ordered to be proceedings as aforesaid, as he shall in his discretion think |^^' ^ ^PPt^'- fit: provided also, that no licence for non-residence granted £;„,](;, .u aforesaid in the year ending on the last day of December time of licences- 104 THE PARSONS COUNSELLOR, [part i. under this act shall continue in force for more than three years from the granting thereof, or after the thirty-first day of December in the second year after the year in which such licence is granted. Cupies of li- <' XXI. And be it further enacted, that every bishop who cTt^ons to be " shall grant or revoke any licence for non-residence under filed in the re- this act shall and he is hereby required, within one month gistry of the after the grant or revocation of such licence, to cause a copy diocese, and a it • i ^i i • i • list kept for in- of every such licence or revocation to be hied in the registry spcction. of his diocese ; and an alphabetical list of such licences and revocations shall be made out by the registrar of such diocese, and entered in a book, and kept for the inspection of all t'ee. persons, upon payment of the sum of three shillings and no Copies transmit- more ; and a copy of every such licence with respect to any wardens ""^ ' benefice shall be transmitted by the spiritual person to whom the licence is granted, to the churchwardens of the parish, township or place to which the same relates, within one month after the grant of such licence ; and every bishop re- voking any licence shall cause such revocation to be trans- mitted to the churchwardens of the parish, township or place to which it relates, which copies shall be by them deposited Registrar ne- [„ i\^q parish chest ; and every registrar who shall neglect to ^ *^ ' ^' enter the same shall forfeit for every neglect of entering any Penalty .51. such licence or revocation in any such list the sum of five pounds, to be recovered by and for the use of any person who shall sue for the same in like manner as any penalty may be recovered under the provisions of this act ; and a Copy publicly Copy of every such licence or revocation shall likewise be read at the first produced by the churchwarden, and publicly read by the registrar or other officer at the visitation of the ecclesiastical district within which the benefice in respect whereof the licence shall have been granted, or revocation made, shall be locally situate, immediately next succeeding the granting or revocation thereof. A list of licences " XXIL And be it further enacted, that every archbishop allowed by the ^y\^Q shall in his own diocese grant any licence, or who shall LT-antedTn his allow or approve, in manner directed by this act, any licence own diocese, or licences in any case or cases not enumerated in this act, tlLtimit'Tto'^ shall annually on or before the thirty-first day of January in his majesty in cach year transmit to his majesty in council a list of all such council, who licences so granted or allowed or approved respectively a$ may revoke li- * » i / eenccs, iS:c. CHAP. VII.] THE PARSON'S COUNSELLOR. 105 preceding such thirty-first day of January, and shall in every such list specify the reasons which have induced him to grant, allow or approve the said licences, together with the reasons transmitted to him by the bishops for granting any such licences in their respective dioceses ; and it shall be lawful for his majesty in council, by an order made for that purpose, to revoke and annul any such licence; and if his Proceedings on majesty in council shall think fit so to do, such order shall be ■""''^^' ■'evocation. transmitted to the archbishop who shall have granted or allowed or approved such licence, who shall thereupon cause a copy of every such order, made in relation to any licence so allowed or approved, to be transmitted to the bishop of the diocese in which such licence shall have been granted; and such bishop shall cause a copy of the mandatory part of the order to be filed in the registry of such diocese, and a like copy to be delivered to the churchwardens of the parish to which the same relates, in manner hereinbefore directed as to revocation of licences under this act ; and every such archbishop shall cause a cop)' of the mandatory part of every such oi;der, made in relation to any such licence as aforesaid granted by him in his own diocese, to be in like manner filed in the registry of his diocese, and a like copy also to be delivered to the churchwarden of the parish to which such licence shall relate, in manner before mentioned : provided Lij-^pcc al- always, that after such licence shall have been so revoked though revoked, by his majesty in council, the same shall nevertheless, in all *^?.'l \^ deemed .,,,,, . ~ . vahd between questions that shall have arisen or may thereafter arise touch- the grant and ing the non-residence of the spiritual person to whom the levocation. same shall have been granted, between the period at which the same was granted or allowed or approved, and the time at which the same shall be so revoked as aforesaid, be deemed and taken to be and to have been valid and effectual to all the intents and purposes of this act. *' XXIIL And be it further enacted, that on or before the ,^ . r , ' Un or beiore twenty-fifth day of March in every year a return or returns 2jth March an- shall be made to his majesty in council by every bishop, of nia"y. a return . <. , r ■ ^ ■ ^ ■ ^^ , . <" 'je made by the names or every benefice within Ins diocese, or subject to bishon to his his jurisdiction by virtue of this act, and the names of the "i^ucsty in several spiritual persons holding the same respectively who Ji'eneficc" with shall have resided, and also the names of the several spiritual names of re- persons respectively who shall not have resided thereon by *e']|'rfent^°&"°''' 106 THE PARSON'S COUNSELLOR, [pakt i. Non-residents bj exemption without licence shall yearly no- tify to the bishop of the diocese within a certain period. Persons neglect- ing to notif_y cause of ex- emption, penalty 2(»1. Power of miti- gation or remit- ting by bishop. reason of any exemption under or by virtue of this act, or by reason of any licence granted by such bishop for any and what cause enumerated by this act, and also of all spiritual persons not having any such exemption or licence, who shall not have resided on their respective benefices, so far as the bishop is informed thereof; and also the names of all curates licensed to serve any benefice on which the incumbent is not resident, and whether the gross annual value of such benefice amounts to or exceeds three hundred pounds per annum or not, the amount of the curate's salary and the place of his residence; and every spiritual person who shall be non- resident in any year subsequent to the passing of this act, by reason of residence on any other benefice, or of any exemption under this act and to entitle him to which it is not necessary to obtain any licence under this act, shall, within six weeks from and after the first day of January in every following year, notify the same in writing under his hand to the bishop of the diocese to whose jurisdiction he is si;bject by this act, or otherwise, in respect of-such benefice, specifying the nature of such exemption, and whether the gross annual value of the benefice on which he is non-resident amounts to or exceeds three hundred pounds per annum or not ; and every spiritual person who shall have more than one benefice, and who shall reside on one of them, or who shall reside during any period of the year on any dignity, or in the performance of the duties of any office in any cathedral or collegiate church, or who shall be non-resident for any period of the year on account of any of the causes of tem- porary exemption specified in this act, shall in like manner, and within the like period in each year, notify the same. " XXIV. And be it further enacted, that every spiritual person who shall neglect to make such notification as by this act is directed within such period of six weeks as aforesaid, shall forfeit and pay for every such offence the sum of twenty pounds, to be levied, by order of the bishop of the diocese, by sequestration, if not otherwise paid, after monition to pay the same, out of the profits of the benefice in respect of which he shall neglect to make such notification, by the bishop of the diocese to whom the notification ought to be made, to be applied, as such bishop may direct, to useful and charitable purposes: provided always, that it shall be CHAP. VII.] THE PARSON'S COUNSELLOR. 107 lawful for such bishop to remit or order the repayment of any part of any such penalt}^ in like manner as is allowed by this act in cases of non-compliance with an order for residence. " XXV. And be it further enacted, that nothing in this Act not to ex- act contained shall extend or be construed to extend to ex- t'upt irom ccn- ... 1 r. . , sure for iion-re- empt any spiritual person or persons rrom any canonical or sidence without ecclesiastical censures, or affect any proceeding that shall licence. hereafter be instituted in any ecclesiastical court in order to cause the same to be inflicted, in relation to the non-re- sidence of any spiritual person having or holding any benefice, who shall not have obtained a licence according to the pro- visions of this act, to be absent therefrom, nor have any other lawful cause of absence : provided always, that no pro- Censure for non- ceeding be admitted in any ecclesiastical court against any residence not to spiritual person for non- residence not exceeding three months proceedings ad- in any one year, at the suit or instance of any person or mitted, except persons other than the bishop only of the diocese within ^t suit of bishop. which the benefice in respect whereof such non-residence shall have taken place shall be locally situated ; any thing in any law or laws, or ecclesiastical canon or canons, to the contrary thereof notwithstanding. *' XXVL And be it further enacted, that in every case in If any unli- which it shall appear to any such bishop as aforesaid, that *;^"s^'^ person any spiritual person, having or holding any benefice, and ficiently reside, not being licensed according to this act to be absent there- *^'^' bishop m;iy P 1 • 1 x- 1 p \ n 1 issue a monition. from, nor having any lawtul cause or absence from the same, does not sufficiently reside on the same respectively, it shall be lawful for such bishop to issue or cause to be issued a monition to such spiritual person forthwith to proceed to and reside thereon, and perform the duties thereof; and to Return to h make a return to such monition within a certain number of monition and days after the issuing thereof, so as that in every such case .°'''^'' P'"""^'^- there shall be thirty days between the time of delivering such monition to such spiritual person or leaving the same at his then usual or last place of abode, or if not there to be found, with the officiating minister or one of the church- wardens, and also a copy thereof at the house of residence (if any such there be) belonging to such benefice, to which any such spiritual person shall be required by such monition to proceed and reside thereon, and the time specified in X08 THE PARSON'S COUNSELLOR, [part i. C V filed ami *'-'*-"'^ nioiiition for the return thereto; and a copy of every may be inspect- such monition shall immediately on the issuing thereof be ^^' filed in the registry of such bishop's court, and shall be open Fee. for inspection on the payment of three shillings and no more ; and the spiritual person to whom any such monition shall be sent under this act shall, within the time specified for that purpose, make a return thereto into such registry. Returns to be to be there filed; and it shall be lawful for the bishop to made to mom- whom any such return shall be made, to require such return tions, wliichinay ~ . , , . , •/• i • . i r- be required to or any fact contamed therein to be venhed by the oath ot be upon oath, such spiritual person or others, to be taken before some surrogate or justice of the peace, or master extraordinary in chancery, which oath any such surrogate or justice of the peace, or master extraordinary in chancery, is hereby au- thorized and required to administer, on application being Whpre return made for that purpose ; and in every case where no such re- shall not be j-yj-jj gj^jjii [jg made, or where such return shall not state such made, or shall i n ■ i ^ ■ c- i i • i not be saiisfac- reasons as shall be deemed satisfactory by such bishop for tory, bishop may the non-residence of the spiritual person to whom such mo- andlfdisobcved' ii'tion shall have been sent as aforesaid, or where the same may sequester or any of the facts contained therein shall not be so verified the profits of the ^^ aforesaid when the same shall have been required, then benefice, and . . -^ . direct an appH- and in such case it shall be lawful for such bishop to issue an cation of the order in writing under his hand and seal, to require such ^ ' person to proceed to and reside as aforesaid, within thirty days after such order in writing, or a copy thereof, shall have been delivered or left in like manner as is hereinbefore required as to monitions; and in case of non-compliance, it shall be lawful for such bishop to sequester the profits of such benefice of such spiritual person as aforesaid, until such order shall be complied with, or such sufficient reasons for non-residence stated and proved as aforesaid ; and to direct, by any order to be made for that purpose under his hand, and filed as aforesaid, the application of such profits, after deducting the necessary expences of serving the cure, either in the whole or in such proportion as he shall think fit, in the first place, to the payment of such reasonable expences as shall have been incurred in relation to such monition and sequestration, and in the next place towards the augmenta- tion or improvement of any such benefice, or the house of residence thereof, or any of the buildings and appurtenance* CHAP. VII.] THE PARSON'S COUNSELLOR. 109 thereof, or towards the improvement of anj^ of the glebe or demesne lands thereof, or to order and direct the same or any portion thereof to be paid to the governors of the bounty of Queen Anne, for the augmentation of the maintenance of the poor clergy, to be applied for the purposes of such aug- mentation as such bishop shall in his discretion under all circumstances think fit and expedient; and it shall also be Bishop may lawful for any such bishop, within six months after such "'t'"n the time •' . .... 1 r lierein mention- Order for sequestration, or wtthm six months after any mone}' ed remit part shall have been actually levied by such sequestration, to remit of sequestered to any such spiritual person any part or proportion of such " sequestered profits, or cause the same or any part thereof that shall have been paid or directed to be paid to the go- vernors of Queen Anne's bounty to be repaid to such spiritual person, which repayment the said governors are hereby au- thorized and required, upon an order under the hand of any such bishop, to make out of any money then in their hands, or if no money shall then be in their hands, out of the next money that shall come to their hands, in any case in which, by reason of the subsequent obedience of any such spiritual person to any such monition or order, or the stating and proving such sufficient reasons as aforesaid, such bishop shall think the same proper : provided always, that when any such Appeal agaiiifi spiritual person shall think himself aggrieved by reason of sequestration t» any such sequestration issued by any bishop, it shall be law- ^^^ '* °P" ful for such spiritual person, within one month after the making any order for any such sequestration as aforesaid, to appeal to the archbishop of the province to which such bishop shall belong, who shall forthwith, either by himself or some commissioner or commissioners appointed from among the bishops of his province for that purpose under his hand and seal, make or cause to be made due inquiry into the same, and make such order therein or relating thereto, or to the profits that shall be so sequestered as aforesaid, for the return to such spiritual person of the same or any part thereof, or otherwise, as shall under all the circumstances of the case appear to such archbishop (after such inquiry made by him- self or by his commissioner or commissioners, and in the latter case, after the substance of such inquiry shall have been returned in writing to the said archbishop) to be just Appellant to and proper : provided always, that the party so appealing ?'^^ security expenres. 110 THE PARSON'S COUNSELLOR, [part r. shall give security to the bishop for the payment of such reasonable expencea occasioned by the appeal, as the arch- bishop or his commissioner or commissioners shall award : provided also, that no such order for any sequestration shall be put in force during such appeal as aforesaid, and until the same shall be determined. Persons wlio " XXVH. And be it further enacted, that every spiritual shall return to person to whom any such monition or order in writinsr shall residence on . . monition to pay ^^ ^ent as aforesaid under this act, who shall be at the time costs. of the issuing thereof absent from residence in or upon his benefice contrary to the provisions of this act, but who shall in obedience to such monition or order forthwith return to due residence, and the profits of whose benefice shall by reason of such return not be sequestered, shall nevertheless pay all costs, charges and expences incurred by reason of the issuing and serving such monition or order, to be levied as any costs may be levied upon any spiritual person by any bishop under any of the provisions of this act. If any person " XXVIII. And, to the intent effectually to enforce bona returning to re- gjg residence accordinjT to the intent and meaninor of such sidence on rao- .. '^ • ^ , • r i ii nition shall, be- monition and order as aforesaid, be it further enacted, that fore six months jf jj^y spiritual person not licensed under this act to be absent sent himself the f^'om his benefice, nor having other lawful cause of absence bishop may, from the same, who, after any such monition or order as without mom- aforesaid, requirina; his residence, and before or after any tion, sequester ^ . •^ \ • t the profits of the such sequestration as aforesaid, shall in obedience to any benefice. such monition or order have begun to reside upon his benefice, shall afterwards, and before the expiration of six months next after the commencement of such residence, without the leave of such bishop, wilfully in the judgment of such bishop absent himself from such benefice, it shall be lawful for such bishop, without issuing any other monition or making any other order, again to sequester and apply the profits of such benefice as before directed by this act, for the purpose of enforcing the residence of such spiritual person, according to the true intent of the original monition issued by such bishop as aforesaid; and it shall be lawful for the bishop so to proceed in like cases from time to time as often as oc- casion may require ; provided that in each and every of such cases such spiritual person shall be entitled to appeal against such sequestration, in such manner and upon such terms as CHAP. VII.] THE PARSON'S COUNSELLOR. HI hereinbefore is and are mentioned touching appeals respect- ing sequestration, but nevertheless the same shall be in force during such appeal. " ' XXIX. And whereas it is expedient that bishops should be empowered summarily to punish past non-residence, as well as to compel residence in future ;' be it therefore en- Bishops em- acted, that in all cases in which any spiritual person shall powered to , , , . ^ ,^ p p -^ p punish past non- nave become subject to any penalty or lorteiture ror any J-esidence. non-residence, it shall be lawful for the bishop within whose diocese such penalty or forfeiture shall have arisen, to pro- ceed against such spiritual person for such past non-re- sidence, and to levy the penalties incurred thereby by moni- tion and sequestration, and to direct the application thereof in like manner and subject to the same regulations, and with like powers of remitting or ordering the repayment of any part of such penalties, as is directed or allowed in cases of non-compliance with any order for residence. " XXX. And be it further enacted, that in every case in Penalties, for which any archbishop or bishop shall think proper, under all the recovery of ., . ^ /. T u V r ^1 which monition the Circumstances, alter proceedmg by monition tor the re- has been issued covery of any penalty under this act of more than one third may be remitted of the value of any benefice, for any non-residence exceed- ^y}"^ bishop; •' , •' and special re- ing six months in the year, to remit the whole or any part of turns made to any such penalty, such archbishop shall forthwith transmit archbishop of , . . . ., , 1 1 • 1 1 11 . the reasons for to his majesty in council, and such bishop shall transmit to ^uch remission. the archbishop of the province to which he belongs, a list of such cases as have occurred in his or their respective dio- ceses, specifying the nature and special circumstances of each case, and the reasons for the said remission, in the same manner as is directed in relation to the licences for non- residence granted in non-enumerated cases ; and it shall thereupon be lawful for his majesty in council, or for the said archbishop, as the case may be, to allow or disallow such remission in whole or in part, in the same manner as is provided in this act with relation to the allowance or the disallowance of licences for non-residence : provided always, that the decision of the said archbishop, with respect to cases transmitted to him from any such bishop, shall be final. " XXXL And be it further enacted, that if the benefice rr • • . ... -PI If any spiritual ei any spiritual person shall continue for the space of two person shall years under any sequestration made under the provisions of continue under scquestrution 112 THE PvVRSON'S COUNSELLOR, [part i. two years, or this act for disobedience to the bishop's monition requiring incur three such Spiritual person to reside on his benefice, or shall under rseqiiestratioiis ..„,. . , , .. within that the provisions of this act incur three such sequestrations in period, benefice the said Space of two years, the spiritual person not being to become void. i- i ■ i «. » t- i ,. ,.■ rehevedwith respect to any ot such sequestrations upon ap- peal, the benefice in relation to non-residence upon which such sequestration shall have been made shall become ipso facto void; and the bishop of the diocese shall thereupon give notice tliereof to the patron or person entitled to pre- sent, who shall thereupon present or nominate some clerk thereto other than the spiritual person whose benefice shall have so continued under such sequestration, or who shall have incurred such sequestrations as aforesaid, as if the same had been avoided by the natural death or resignation of such spiritual person. Contracts for " XXXII. And be it further enacted, that all contracts or letting houses agreements made for the letting of the house of residence, spirituaiVersons ^^ ^^'^ buildings, gardens, orchards, and appurtenances ne- shall by order cessary for the convenient occupation of the same, belonging of the bishop be ^^ benefice, to which house of residence any spiritual required to re- •' . . •' '^ side, shall be person shall be required by order of the bishop as aforesaid ^°"*' to proceed and to reside therein, or which shall be assigned or appointed as a residence to any curate by the bishop, shall, upon a cop}' of such order, assignment, or appointment being served upon the occupier thereof, or left at the house, be null and void ; and a copy of every such order, assign- ment, or appointment, shall immediately on the issuing thereof be transmitted to one of the churchwardens of the parish, or such other person as the bishop shall think fit, and be by him forthwith served on the occupier of sucli Holding pes- house of residence, or left at the same : And any person session after the continuing to hold any such house of residence, or any such foYresidence building, garden, orchard, or appurtenances, after the day on which the said spiritual person shall be directed by such order to reside in such house of residence, or which shall be specified in any such assignment or appointment, and after service of such copy as aforesaid, or the same being so left as Penalty. aforesaid, shall forfeit the sum of forty shillings for every day he shall, without the permission of the bishop in writing for that purpose obtained, wilfully continue to hold any such house, building, garden, orchard, or appurtenances, together CHAP. VII.] THE PARSON'S COUNSELLOR. 113 with the expence of serving such order, in case it shall have been deemed necessary specially to serve such order, to be allowed by the bishop issuing the order, or making such assignment or appointment as aforesaid, and to be recovered and applied in like manner as the penalties for non-residence are directed to be recovered and applied by the provisions of this act ; and it shall also be lawful for the spiritual person so directed to reside as aforesaid, or curate to whom any such residence is assigned, to apply to any justice of the peace or magistrate of the county, riding, province, city, or place. And spiritual for a warrant for the takinir possession thereof; and the p-rson ession '" J '' may thereupon be taken of such house under such warrant at any time in the day time, by entering the same by force, if necessar}', without any other proceeding by ejectment or otherwise ; any thing in any act or acts of parliament or law or laws to the contrary notwithstanding. " XXXin. Provided always, and be it further enacted, Not liable to that no spiritual person shall be liable to any penalties for P''""'^-V "'"'"^ . } . ^ , . . tlie tenant ^iiall not residing in any such house of residence, during such conunue to time as such tenant shall continue to occupy such house of "occupy. residence or other buildings necessary to the occupation of the same. " XXXIV. And be it further enacted, that from and after i\o oatli relating the passing of this act, no oath shall be required of or taken ^'^ residence re- , . . , . ., ,• . quired of vicar, by any vicar in relation to residence on his vicarage; any ^ law, custom, constitution, or usage to the contrary thereof notwithstanding. " XXXV. And be it further enacted, that no penalty or Penalties not forfeiture shall be recovered by any proceeding or action recoverable for against any spiritual person under the provisions of this act, other or further than those which such spiritual person may have incurred during the year ending on the thirty-first day of December immediately preceding the commencement of such proceeding or action. " XXXVL And be it further enacted, that every penalty What penalties for non-residence under this act, in respect of vihich no pro- not levied under ]• I 11 1 1 1 1 < • • 1 ,. 1 ,- 1 monition may ceeaing shall have been had by monition before the first day i,^ recovered by of April next after the year in which the same shall have action. 114 THE PxiRSON'S COUNSELLOR, [part i. When actions for penalties may be coai- menced. Commencement and conclusion of the year. Calendar montlis to be taken for tlie purposes of this act. No action to be commenced for any penalty until after one calendar month's notice given to the de- fendant and bishop of diocese. What notice to contain, and how endorsed. been incurred, may be recovered by action or suit in the manner by this act directed. " XXXVII. And be it further enacted, that no action of debt, bill, plaint, or information against any spiritual person, for the recovery of any penalties and forfeitures under this act, shall be commenced or tiled in any of his majesty's courts of record at Westminster, or the court of great sessions in Wales, until the first day of May after the ex- piration of the year in which the alleged offence shall have taken {)lace. " XXXVIII. And be it further enacted, that for all the purposes of this act the year shall be deemed to commence on the first day of January, and be reckoned therefrom to the thirty-first day of December, both inclusive. " XXXiX. And be it further enacted, that for all the purposes of this act the months therein named shall be taken to be calendar months, except in any case in which any month or months are to be made up of different periods less than a month, and in every such case thirty days shall be deemed a month. *' XL. ' And whereas, notwithstanding the regrulations contained in this act, spiritual persons may through inad- vertence, and in many cases from unavoidable circumstances and causes, become subject to penalties and forfeitures and vexatious prosecutions, unless provision is made for the pre- vention thereof;' be it therefore enacted, that from and after the passing of this act, no writ shall be sued out against nor any copy of any process at the suit of any informer be served upon any spiritual person, for any penalty or for- feiture incurred under any of the provisions of this act, until a notice in writing of such intended writ or process shall have been delivered to him or left at the usual or last place of his abode, and also to the bishop of the diocese, by leaving the same at the registry of his diocese, by the attorney or agent for the party who intends to sue or cause the same to be sued out, or served one calendar month at the least before the suing out or serving the same; in which notice shall be clearly and explicitly contained the cause of action which such party hath or claimeth to have, and the penalty or penalties for which such person intends to sue, and on the back of which notices respectively shall be endorsed the I CHAP. VII.] THE PARSON'S COUNSELLOR. 11.3 name of such attorney or agent, together with the place of his abode ; and no such notice shall be given before the first day of April in the year next after any such penalty or pe- nalties shall have been incurred. " XLL And be it further enacted, that no plaintiff shall Plaintiff not to J. ^ . ^ • •.. 1 c recover without recover any verdict against any spiritual person tor any ^^^j- ^^^^ ^^^^^ penalty or forfeiture under the provisions of this act, unless such notices it is proved upon the trial of such action that such notices were given. were respectively given as aforesaid ; but in default thereof such spiritual person shall recover a verdict with double costs. " XLIL And be it further enacted, that no evidence shall No evidence of be permitted to be given by the plaintiff, on the trial of any ^u'tTuch 'as con- such action as aforesaid, of any cause of action, except such taiued in notices. as is contained in the notices hereby directed to be given. " XLin. And be it further enacted, that it shall be lawful Spiritual person for any spiritual person against whom any action shall be ™^"^. \ ^'^'^^ •'I r e ^ J ^ pav into court brought for any penalty or forfeiture under the provisions of beiore issue this act, by leave of the court in which such actions shall j'^med, such J , . , „ . ... . sum lie shall depend, at any time beiore issue joined, to pay into court thiuk fit. such sum of money as he shall see fit; whereupon such pro- ceedings, orders, and judgments shall be had, made, and given in and by such court, as in other actions where the defendant is allowed to pay money into court. ** XLIV. And be it further enacted, that the court in The court in which any action, bill, plaint or information shall be depend- which any ac- ^^ ,, f. ^. o r •. n tion shall be de- mg tor the recovery of any penalty or forfeiture for non-re- pending, may sidence under this act, may and shall, upon application made require the dio- for that purpose, require, by rule or order of the said court "^^" ^'^ *^*'"'v ^ ' ' -1 ^ J the repeated an- or any judge thereof, the bishop of the diocese within the nual value of limits of which the benefice shall be locally situate, or to benefices, &c. whom the same shall be subject according to the provisions of this act, for or by reason of non-residence in, at or upon which the penalties and forfeitures shall be sought to be recovered by such action, bill, or information, to certify in writing under his hand to the said court, and also to the party for that purpose named in the said rule or order, the reputed annual value of such benefice ; and upon such rule or order being left with such bishop or the registrar of such bishop, such bishop shall accordingly certify such reputed 1 2 116 THE PARSON'S COUNSELLOR, [i'art i. How far certifi- ^"""^1 value; and such certificate shall, in all subsequent cate evidence of proceedings upon such action, bill, plaint, or information, be annual value. received and taken as evidence of the annual value of such benefice, for the purposes of this act; without prejudice nevertheless to the admissibility or effect of any such other evidence as may be ottered or given respecting the actual value thereof. Licence may be " XLV. And be it further enacted, that it shall be lawful pleaded in bar ^^^ ^ spiritual person to whom any licence for non-re- ot action; and j i r j ^ in case of non- sidence shall have been granted, and against whom an}' action suit, &c. full shall be brought for any penalty or forfeiture by reason of costs. . f -^ ^ •" , . , y , any non-residence, or any matter or thing relating whereto any such licence under this act has been granted, to plead • such licence in bar of any such action ; and if the plaintifl' in such suit or action shall discontinue any such suit or action after any plea of licence shall have been pleaded thereto under this act, then and in such case the defendant In case of ver- in such suit or action shall have full costs of suit ; and if in diet for defend- ^ g^^^]^ g^^^jj, ^^ action a verdict shall be given for the de- ant, double •' . . '^ costs. fendant, or the plaintiff" shall become nonsuit, the defendant shall have double costs, and have the like remedy for the same as any defendant hath in other cases to recover costs Judge may by law ; and it shall be lawful for the court, or any judge of order plaintiff ^^^q court in which any suit or action shall be commenced, to give security •' . , ,/. ^ ^• for costs. upon any application made in that behalf, to order and direct, if such court or judge shall deem it expedient so to do, that the plaintiff" in any such suit or action shall give security for the payment of such costs, and that all proceedings in any such suit or action shall be staid until such security shall be given as to the court or judge to whom any such application shall be made shall seem fit. If at the time of " XLVL Provided always, and be it further enacted, that filing any mo- -^^ ^^ ^^^ ^ji^g ^£ filing any monition requiring any spiritual nition nu notice ,.,,> .i- of action shall person to reside on his benefice, or to recover the penalties have been given, incurred by past non-residence, no notice of any action for be afterwards ^"7 ^"^^ penalty or forfeiture shall have been already given brought, &c. in manner aforesaid, then and in such case no such action, suit, bill, plaint, or information shall be afterwards brought for any penalty or forfeiture incurred by reason of any non- residence of such spiritual person before the issuing of such CHAP. VII.] THE PARSONS COUNSELLOR. 117 monition, or during any proceedincs that may be had under such monition; and if any such action or suit shall be so it such acii- n commenced, the defendant therein may plead in bar thereof, be then com- that such a monition as aforesaid lias issued in respect of the ™'^"'^'^ • same benefice; and such defendant, unless upon application Proceedings. to the court the same shall be dispensed with, shall, upon pleading such matter, file or cause to be filed an affidavit in the said court, thereby stating the period specified in such monition, and that, according to the belief of the defendant, the bishop who has issued or caused such monition to be issued is proceeding upon the said monition, to the intent to make the same effectual to the intents and purposes of this act, otherwise such plea shall not be good or available in the law. " XLVIL And be it further enacted, that no penalty or Nu penalty to costs incurred by any spiritual person by reason of any non- .^ evied aganiit residence on his benefice, shall be levied by execution against it can be leco- the body of any such person, whilst he shall hold the same ^^'^'^'^ '7 *^" or any other benefice out of the profits of which the same within three can be levied by sequestration within the term of three years; years. and in case the body of any such spiritual person shall be taken in execution for the same, the court in which the same was recovered, or any judge thereof, may and shall, upon application made for that purpose, discharge the party from 3^,1, such execution, in case it shall be made to appear to the be discharged. satisfaction of such court or judge that such penalty and costs can be levied as aforesaid. " XLVIII. And be it further enacted, that if any spiritual Non-resident person holding any benefice, who does not or shall not '"t^^""^^""^ («''^- * . . cf plioii; negltct- actually reside thereon nine months in each year (unless ing to a|>|)oint such person shall do the duty of the same, having a legal cuiates, bishop '^ . „ ., '',. . ° ° to aijooiat and exemption trom residence, or a licence to reside out of the license. same, or to reside out of the parsonage house or vicarage house, or other usual house of residence belonging to the .same), shall for a period exceeding three months absent himself from his benefice, without leaving a curate duly licensed or other spiritual person to perform, and who shall duly perform the ecclesiastical duties of such benefice, or shall for the period of three months after the death, resigna- tion or removal of any curate who has served his church or chapel, neglect to notify such death, resignation or removal 118 THE PAKSON'S COUNSELLOR. [part i. Whiit sucli li- cence Uj specify. Curate to reside on all benefices above 3001. a year, and po- pulation 300 persons and upwards. Proviso ibr special circum- stances. If duty inade- quately per- formed, the bi- to the bishop of the diocese, or to nominate to the bishop of the diocese a proper curate, then and in every such case, and in every case in which no curate shall be nominated to the bishop for the purpose of being licensed by him within such period as aforesaid, the bishop is hereby authorized to appoint and licence a proper curate, with such salary as by this act is allowed and directed, to serve the church or chapel of the parish or place in respect of which such neglect or default shall have occurred : provided always, that the li- cence shall in every case specify whether the curate is re- quired to reside within the parish or place or not ; and if the curate is permitted by the bishop granting the licence to reside out of the parish or place, the grounds upon which the curate is so permitted to reside out of the parish or place shall be specified in the said licence, and the distance of the residence of any curate from any church or chapel which he shall be licenced to serve shall not exceed five statute miles, except in cases of necessity, to be approved by the bishop, and specified in the licences. " XLIX. And be it further enacted, that in every case where a curate is appointed to serve a benefice upon which the incumbent is non-resident for more than three months in the year from exemption, licence or otherwise, such curate shall be required by the bishop to reside within the parish J provided the gross value of such benefice amounts to three hundred pounds a year or upwards, and the popula- tion amounts to three hundred persons or upwards, or pro- vided the population amounts to one thousand persons or upwards, whatever may be the value of such benefice : pro- vided always, that whenever it shall be made out to the satis- faction of such bishop, that from special and peculiar cir- cumstances great inconvenience would arise from such curate bein"- compelled to reside wiihin the parish, it shall be lawful for the bishop to allow such curate to reside in some near and convenient place : provided also, that the licence to be granted to such curate shall specify the special circumstances which have induced the bishop to allow such residence out of the parish, and shall be entered and filed in the registry of the diocese. " L. And be it further enacted, that whenever it shall appear to the satisfaction of any bishop, either of his own CHAP. VII.] THE TARSONS COUNSELLOR. 119 knowledge, or upon proof by affidavit laid before him, that shop may re- bv reason of the number of churches or chapeJs belonging q^^'re inca.nbent ■^ 1 ^'^ appoint to any benefice locally situate within his diocese, or the curate, and on distance of such churches or chapels from each other, or the neglect, mav distance of the residence of the spiritual person serving the ^ curate, same from such churches or chapels, or any or either of them, or the negligence of the spiritual person holding the same, that the ecclesiastical duties of such benefice are in- adequately performed, such bishop may by writing under his hand require the spiritual person holding such benefice to nominate to him a fit person or persons, with sufficient stipend or stipends, to be licenced by him to perform or to assist in performing such duties, specifying therein the grounds of such proceeding; and if such spiritual person shall neglect or omit to make such nomination for the space of three months after such req^uisition so made as aforesaid, then and in every such case it shall be lawful for such bishop to appoint a curate or curates, as the case shall appear to such bishop to require, with such stipend or stipends as such bishop shall think fit to appoint, not exceeding in any case in the whole the stipends allowed to curates by this act, nor, Amount of sti- except in the case of negligence, exceeding one half of the pend in such gross annual value of the benefice, although the spiritual *^^*^' person to whom such churches or chapels shall belong shall actually reside or serve the same : provided always, that such requisition, and any affidavit made to found the same, shall be forthwith filed by the bishop in the registry of his court: provided also, that it shall be lawful for any such spiritual person, who shall think himself aggrieved by any \'^f^ t"to"*" such appointment of such curate or curates, to appeal to the archbishop. archbishop of the province to which such bishop shall belong, in such and the like manner, and under such provisions and directions, as are allowed to any spiritual person thinking himself aggrieved by any sequestration issued by any bishop, " LL And be it further enacted, that in all cases where -n- i ' _ Bisliops may en- the bishop of the diocese shall deem it proper to enforce the force periorm- performance of morning and evening service on Sundays, or '^"^f °* morning . -Ill- • 1 1 ' '*°" evening any other service required by law in any parish church or service, parochial chapel, or the chapel of any extra parochial place, it shall be lawful for such bishop to enforce the same by 120 THE PARSON'S COUNSELLOR. [part i. monition and sequestration, to be issued in the manner by this act provided. Statement of " £n. And be it furtlier enacted, that ever)» bishop to cessarv to be whom any application shall be made for any licence for a gUeu by persons curate to serve for any person not duly residing upon his app vmg era benefice, shall, before he shall errant such licence, require a licence tor noil- ' . ® . . » rtsidence. statement of all the particulars by this act required to be stated by any person applying for a licence for non-residence ; and it shall not be lawful for any bishop to grant a licence to any curate to serve the church or chapel of any person as aforesaid, upon any such application as aforesaid, until a statement of all such particulars as aforesaid shall have been delivered to him ; and such statement shall be kept and filed and preserved from public inspection, and disclosed only in like manner and in such cases as is before directed as to atatements of persons applying for licences for non-residence. Bisliops to ap- '* LIIl. And be it further enacted, that it shall be lawful point salaries to foj. tj^e bishop, and he is hereby required, subject to the several provisions and restrictions in this act contained, to appoint to every curate such salary as is allowed and specified in this act ; and every licence to be granted to a stipendiary curate under this act shall contain and specify the amount of Licence, or copy the salary allowed by tlie bishop to the curate; and such ol registry licence, or any copy of the resjister thereof, signed by the tliereoi, evi- ' „ , .. -^ , • i i n i • i dence of amount registrar of tne diocese or his deputy, shall be evidence or of salary. j-j^g amount of the salary so appointed to any curate in all courts of law or equity; and in case any difference shall arise between any rector or vicar or person holding any benefice, and his curate, touching such stipend or allowance, or the Bisliops may payment thereof, or of the arrears thereof, the bishop, on siiniman y e- complaint to him made, may and shall summarily hear and terninie diiier- ^ . . . . euces respecting determine the same; and in case of wilful neglect or refusal stipend. j^j pgy such stipend, salary or allowance, or the arrears thereof, he shall be and is hereby empowered to proceed by monition and sequestration to sequester the profits of the benefice for and until payment of such stipend or allowance or the arrears thereof: provided always, that the curate obtaining any such licence shall pay to the secretary or officer ^J""'^^ '" ,1'^" of the bishop the sum of one pound, exclusive of any stamp of fees lor li- , • , , , , . . . • , • , /• ccnce &c. duty winch may be chargeable thereon ; which said sum ol I CHAP. VII.] THE PAUSON'S COUNSELLOR. 121 one pound shall be in remuneration of all and every fee or fees now demandable by the said secretary or officer for obtaining such licence, or for th.e signature of any declara- tion by the said curate in consequence of such licence, or of any certificate of such curate having signed such declaration ; and provided also, that from and after the passing of this act, as often as any person shall be licenced to two or more curacies within the same diocese at one and the same time, it shall be sufficient for such person to sign one declaration only, appointed to be signed by an act intituled ' An act of 13 & 14 Car. 2. uniformity' {/i) ; and also that it shall be sufficient for such '^' "*" ^ '^' person to produce one certificate only of his having so signed such declaration before the bishop of the diocese. (a) [There does not appear to be any act intituled, ' An act of uniformity.' The act above referred to is taken to be 13 & 14 Car. 2. c. 4.] " LIV. And be it further enacted, that it shall be lawful Stipends to for the bishop to appoint for the curate any stipend or allow- curates ot'in- ance not exceeding seventy-five pounds per annum, and also jy" 2o'*i8l3'^^ the use of the house of residence, with the gardens and stables not to exceed belonging thereto, or a further sum of fifteen pounds in lieu certain rates. of the use of the rectory or vicarage house, or other houses of residence, in case there shall be no house, or it shall not appear to the bishop convenient to allot or assign the house to the curate, in respect of any benefice to which the spiritual person holding the same was instituted or appointed before the twentieth day of July one thousand eight hundred and thirteen ; but it shall not be lawful for the bishop to assign Execution any greater stipend or allowance than aforesaid, in respect of any such benefice, during the incumbency of any such spiritual person as aforesaid, unless with the consent of the spiritual person holding the benefice, or in case of neglect to appoint or to nominate to the bishop a proper curate. *' LV. And be it further enacted, that in every case in ^, ... -.1 I 11 1 1 r 1 . , 1 lie salaries pay- which any spiritual person shall have been, after the twentieth able to curates day of July one thousand eight hundred and thirteen, or shall ^p be in propor- hereafter be instituted or inducted, or nominated or appointed !3 popuLti^n*^ to, or otherwise become incumbent or possessed of any of the benefices. benefice, and shall not duly reside thereon, unless such per- son shall do the duty of the same, having a legal exemption from residence, or a licence to reside out of the same, or to ]22 THE PARSON'S COUNSELLOR, [part i. reside out of the parsonage or vicarage, or other usual house of residence belonging to the same, the bishop shall appoint for the curate licensed to serve such benefice of such non- resident incumbent or person as aforesaid, in his absence, such salary as is hereinafter next mentioned; (that is to say), such salary shall in no case be less than eighty pounds per annum, or than the annual value of the benefice, if the gross value thereof shall not amount to eighty pounds per annum; and such salary shall not be less than one hundred pounds per annum, or than the whole value as aforesaid, if the said value shall not amount to one hundred pounds per annum in any parish or place where the population, accord- ing to the returns then last made in pursuance of any act or acts of parliament, shall amount to or exceed three hundred persons ; and such salary shall not be less than one hundred and twenty pounds per annum, or the whole value as afore- said, if the said value shall not amount to one hundred and twenty pounds per annum, in any parish or place where the population shall appear as aforesaid to amount to or to ex- ceed five hundred persons ; and such salary shall not be less than one hundred and fifty pounds per annum, or than the whole value as aforesaid, if the said value shall not amount to one hundred and fifty pounds per annum, in any parish or place where the population shall appear as aforesaid to How die value amount to or to exceed one thousand persons : provided of benefices always, that the annual value of all benefices of which the under laOl. per y^j^p estimated as is herein provided, does not amount to annum, esli- ' '^ i n i • i mated. one hundred and fifty pounds per annum, shall be estimated from the returns made by the bishops of the several dioceses to the governors of Queen Anne's bounty; or from any future returns which may be made by the said bishops to the said governors respecting parishes or places omitted in the said returns, or respecting parishes or places in the actual income of which it shall be made appear to the bishops that any con- siderable variation has taken place, either by augmentation made by the said governors or otherwise. Where the be- ^, j^yj ^^^ ^^ j^. f^^ther enacted, that in any parish or iience exceeds _ • c • c i i.- i. 4001. an allow- place where it shall appear to the satisfaction or the bishop ance may be ^.j^^^j. ^j^g actual annual income of the benefice, clear of all of 1001. per an- deductions, exceeds the sum of four hundred pounds per num or more, annum, it shall be lawful for the bishop to assign to the curate as herein men- tioned. CHAP. VII.] THE PARSON'S COUNSELLOR. 123 of such parish or place, being resident within the same, and serving no other cure, a salary or allowance of one hundred pounds per annum, notwithstanding the population of such parish or place may not appear as aforesaid to amount to three hundred persons ; and that in any parish or place where the actual annual income shall appear to exceed four hundred pounds as aforesaid, and where the population shall also ap- pear as aforesaid to amount to or exceed five hundred per- sons, it shall be lawful for the bishop to assign to the curate of such parish or place, being resident within the same, and serving no other cure, any larger stipend or allowance, so that the same shall not exceed by more than fifty pounds per annum the amount of the stipend or allowance herein- before respectively required to be assigned to any such curate. *' LVn, And be it further enacted, that in every case in Smaller salaries which it shall be made out to the satisfaction of the bishop *° ^! allowed to i^ curates in cer- of any diocese, that any spiritual person holding any benefice tain cases. is or has become non-resident or incapable of performing the duties thereof from age, sickness or othe;* unavoidable cause, and that from these or from any other special and peculiar circumstances of the case great hardship or inconvenience would arise if the full amount of salary specified in this act should be allowed to the curate, then and in such case it shall be lawful for such bishop to assign to the curate any such salary less than the said full amount in this act .specified, as shall under all the circumstances appear to him just and reasonable : provided always, that in the licence granted in ^1,3^ ^^^ jj, every such case it shall be stated, that for special reasons cence is to state. the bishop hath not thought proper to assign to the curate the full amount of salary allowed or required to be assigned by this act : provided also, that such special reasons shall be Special reasons entered fully and at large in a separate book to be kept for *" ^^ entered. that purpose, and to be deposited in the registry of the diocese, which hook shall not be open to inspection unless with the leave of the bishop or by other proper authority, as in the cases of application for licences for non-residence. " LVIIL And be it further enacted, that if any incumbent Salary of curate of two or more benefices, residing bona fide, in different 5'"S:'g«l to serve ' o 1 interchangeably proportions of each and every year, on some one or other of at different such benefices, the full period specified by this act, shall P'="'^'^ i)clonging to the same in- cumbent. 124 Spiritual persons not to serve more than two churches in one day, except in certain case?, and with special licence for that purpose from the bishop. Reasons for granting such licence to be stated hy the bishop. How salaries ad- justed where curate is per- mitted to serve in an adjoining parish. THE PARSON'S COUNSELLOR, [part r. employ a curate to perform ecclesiastical duty interchange- ably from time to time upon such of the benefices from which he shall be absent during his own actual residence upon any other thereof, then and in such case it shall be lawful for the bishop to assign to any such curate any salary not exeeding such salary as would be allowed under this act for the largest of such benefices, nor less than would be allowed for the smallest, as to the bishop shall under all the circumstances appear just and reasonable : provided always, that if any such incumbent shall employ a curate or curates for the whole year upon each or any of such benefices, such incumbent so residing bon^ fide as aforesaid, then and in such case it shall be lawful for the bishop to assign to either or each of such curates any such salary less than the amount specified in this act, as he shall think fit. " LIX. And be it further enacted, that from and after the passing of this act no spiritual person shall serve more than two churches in one day, or two chapels, or one church and one chapel, in one day, unless from the local situation of the churches or chapels, or from the value of the benefices to which they belong, or other special causes, it maj' in the judgment of the bishop be expedient or necessary, for the performance of ecclesiastical duties in such places, to grant licence to any spiritual person to serve three churches or chapels, then and in such case it shall be lawful for the bishop to grant such licence to any spiritual person to serve three churches or chapels, not being distant from each other more than four measured miles : provided always, that in every such case the reasons for granting such licence shall be stated by the bishop in the licence granted for serving the third of such churches or chapels held by such spiritual persons, and such licence shall not be valid or effectual unless the reasons for granting the same are inserted therein as aforesaid : provided always, that the residence of such curate or spiritual person shall be so placed as that it shall not be necessary for him to travel more than sixteen mea- sured miles in one day for the performance of the duties of such churches or chapels. " LX. And be it further enacted, that in every such case where any bishop shall find it necessary or expedient, for the obtaining any proper performance of ecclesiastical duties. 1 CHAP. VII.] THE PARSON'S COUNSELLOR. 125 to license any person holding any benefice to serve as curate of any adjoining or other parish or place, it shall be lawful for such bishop to appoint^ for such spiritual person so licensed, a salary less by a sum not exceeding tliirty pounds per annum than the salary which in the several cases in this act specified the bishop is required to assign and appoint ; and in every case where the bisliop shall find it necessary or expedient as aforesaid to license one and the same person to serve as curate for more than one parish or place, it shall be lawful for such bishop to direct, that during such time as such curate shall serve such churches or chapels, the salary to be received by him for serving each of the said churches or chapels shall be less by a sum not exceeding thirty pounds per annum than the salary which in the several cases herein- before mentioned the bishop is required by this act to assign and appoint. " LXL And be it further enacted, that all agreements Agreements for and contracts made or to be made between persons holdin"; *^ '"^"^^ '° *^"" r . o rnles contrary benefices and their curates, in fraud or derogation of the to this act, void, provisions of this act, and all agreements and contracts whereby any curate shall undertake or in any manner bind himself to accept or be content with any stipend or salary less than that which shall be stated to be allowed in an}' licence of such curate, shall be void to all intents and pur- poses in the law whatsoever, and shall not be set up, pleaded, or given in evidence in any court of law or equity; and notwithstanding the payment and acceptance, in pursuance notwithstanding 01 any such contract or agreement, ot any sum less than the acceptance of sum specified in the licence of such curate, or any receipt, less sunt iIkhi discharge or acquittance that may be given in cases of such ™p""o"^'' '" & -1 J o ^ licence. payment and acceptance, the curate or his personal repre- sentatives shall be and remain entitled to the full amount of what shall remain unpaid of the stipend, salary or allowance specified in his licence ; and the payment of what shall so „ ^ . • 1 1 11 1 -1 11 z' ravment may l)e remam unpaid shall, together with treble costs oi recover- enforced by mo- ing the same, be enforced by monition, on proof of what niiinn, "itli tre- shall so remain unpaid to ihe satisfaction of the bishop, and ^'*^"*^*- by sequestration of profits of the benefice, to be issued by the bishop for that purpose: provided that the a|)|)lication of ijniiiaiion of the curate shall in every such case be made to the bishop application to within twelve months after he shall have quitted his curacy, "^ '"'*' 126 THE PARSON'S COUNSELLOR, [part i. or by the representative of any curate within twelve months after his death ; and provided also, that no sequestration shall by virtue of this act affect the profits of any benefice beyond the time during which the benefice shall be held by the person liable to make the payment in respect of which such profits shall be sequestered. Curate's salary, " LXIL And be it further enacted, that in every case in ifof valueof be- ^vhich any bishop shall appoint for any curate a salary equal certaii'i charges, to the whole annual value of such benefice, such salary shall be subject to deduction in respect of all such charges and outgoings as may legally affect the value of such benefice, and to any loss or diminution which may lessen such value, without the wilful default or neglect of the spiritual person holding the benefice. The bishop to " LXIIL And be it further enacted, that it shall be lawful allow rector, &c. for the bishop upon the application of any rector, vicar or clirate's salary, spiritual person holding any benefice, the whole profit or for repairs, to a income of which shall have been allotted to the curate, to Iiii)Ue( amount ^jj^^^ g^.], rector, vicar or spiritual person to deduct and III certain cases. _ . retain therefrom, in any or each year, so much money, not exceeding in any case one fourth part of such profits or income, or of the salary assigned to the curate, as shall have been actually laid out and expended during the year in the repair of the chancel, parsonage, vicarage or other house of residence, and premises and appurtenances thereto belong- ing, in respect of which such rector, vicar or person as afore- said, or his executors, administrators or assigns, would be liable for dilapidations to the successors; and it shall also be lawful for the bishop, in like manner, to allow any rector, vicar or spiritual person aforesaid, having or holding any benefice the profits or income of which shall not exceed one hundred and fifty pounds per annum, to deduct and retain from the salary allotted to the curate, in each or any year, so much money as shall have been actually laid out and ex- pended in such repairs as aforesaid over and above the amount of the surplus remaining of such profits or income after payment of the salary allotted to the curate, so that the sum so deducted, after laying out such surplus, shall not in any year exceed one fourth part of the salary allotted to the curate. The bishop may " LXIV. And be it further enacted, that it shall be lawful allot parsonage CHAP, vii.] THE PARSON'S COUNSELLOR. 127 for the bishop who shall grant any licence to any curate to i.ouse for re- serve any church or chapel where the rector or vicar or per- sidenceot curate „ -tec , . Ill case of iiun- son holding any benefice is not resident for tour months in residence of in- each year, to allot, if he shall think fit, for the residence of cumbents. such curate, the parsonage or vicarage house, or usual house of residence of the person holding the benefice, with the offices, stables, gardens and appurtenances thereto belong- ing, if there shall be any such house of residence belonging thereto, or any part or parts thereof, during the time of such curate's serving the cure, or during the non-residence of such rector or vicar or spiritual person ; and it shall be lawful Sequestration of for tlie bishop assisrnins: any such house or residence to any P'^^'^fs^ion not i o o . ^ J delivered. curate, to sequester the profits of the benefice to which the house shall belong, in any case in which possession shall not be given up to the curate, and until such possession shall be given, and to apply or direct the application of the profits arising from such sequestration, or to remit the same or any part thereof, as the bishop shall in his discretion think fit. " LXV. And be it further enacted, that in every case Curates to pay where the bishop shall appoint, for the curate licensed to taxes, &c. of serve any benefice, a salary not less than the whole gross h^[,s*^°^i|'i'(;ertain annual value of the same, and shall, in addition to such cases. salary, direct that such curate shall reside in the parsonage or vicarage house, or usual house of residence of the spiritual person holding such benefice, such curate shall be liable during his serving such cure, to the same taxes and parochial rates and assessments, in respect of such house and the ap- pendages thereof of which he may so be in occupation, as if he had been instituted or inducted or nominated or appointed to the said benefice, " LXVI. And be it further enacted, that it shall be lawful j],g bishop may for the bishop at any time, upon three months' notice in direct curate to writing, to direct any such curate to deliver up any suth '^•"'^ 'T i'"^^"" ° _ •' I / "- sioM ol parson- parsonage or vicarage house or usual house of residence, age. and the office, stables, gardens and appurtenances thereto belonging, and such curate shall thereupon peaceably deliver up the possession of the said premises, pursuant to such notice ; and in case any such curate shall refuse to deliver Xot civin-' up, up such premises, he shall forfeit and pay to the rector or penalty. vicar, or spiritual person holding the benefice, the sum of forty shillings for every day of such wrongful possession to 128 THE PARSON'S COUNSELLOR, [part i. Rector, &c. not to dispossess cu- rate of house witliont ordiT of tlie bishop, and and three montlis' notice. Curate to quit in three montlis afier institution to a vacant be- nefice, on one month's notice. Curate not with- out leave of ])ishop to quit curacv wiiliout tliree months' notice to incum- bent and bishop Pcnahv. Bishop may li- cense curates employed with- out nomination, may revoke li- cence and re- move curate. be recovered by such rector or vicar or spiritual person by action of debt in any court of record at Westminster^ as any penalties may be recovered for non-residence under this act. *' LXVIL And be it further enacted, that it shall not be lawful for the rector or vicar or other person holding any benefice, in any case in which the parsonage or vicarage, or usual house of residence shall have been assigned to the curate as a residence, to dispossess such curate, or take possession thereof, until the permission of the bishop shall have been given in writing for that purpose, and three months' notice of such his intention to the curate, who shall thereupon quit the same according to such notice ; and every curate who shall reside in the house of residence of any benefice which shall become vacant, shall quit such liouse of residence within three months after the institution or ap- pointment of any spiritual person thereto, upon being re- quired so to do by the spiritual person instituted or appointed, and having one month's previous notice at the least given to him to quit such house of residence. " LXVllI. And be it further enacted, that no curate shall quit any benefice to which he shall be licensed, until after three months' notice of his intention to quit given to the person holding such benefice, and to the bishop of the diocese, unless with the consent of the bishop of the diocese, upon pain of forfeiting to the spiritual person holding the benefice a sum not exceeding the amount of his stipend for six months, at the discretion of the bishop, which sum may in such case be retained out of the stipend, if the harae or any part thereof shall remain unpaid ; or if the same cannot be retained out of the stipend, may be recovered by the spiritual person holding the benefice, as any penalty or fof- feiture under this act may be recovered. " LXIX. And be it further enacted, that it shall be lawful for the bishop of the diocese to license any curate who is or shall be actually emj)loyed by the rector, vicar or other in- cumbent of any church or chapel, although no express nomination of such curate shall have been made to such bishop b}' the said rector, vicar or other incumbent; and that the bishop shall have power to revoke summarily and without process any licence granted to any curate employed CHAP, vii.] THE PARSON'S COUNSELLOR. 129 in his diocese, or subject to his jurisdiction by virtue of this act, and to remove such curate for any cause which shall Appeal to arch- appear to such bishop to be good and reasonable ; subject bishop, nevertheless to an appeal to the archbishop of the province, and to be determined in a summary manner. " LXX. And be it further enacted, that every bishop who Licence to cn- shall grant or revoke any licence to any curate under this rates, and re- ,,,,,.,, . , PI vocations of such act shall and he is hereby required to cause a copy ot such licences, to be h'cence or revocation to be entered in the registry of the entered in the diocese within which the benefice in respect whereof any ^^^^l^J^ ° such licence shall be granted or revocation made shall be locally situate ; and an alphabetical list of such licences and revocations shall be made out by the registrar of each diocese, and entered in a book, and kept for the inspection of all vge for inspec- persons, upon payment of the sum of three shillings and no tion. more ; and a copy of every such licence and revocation with respect to any benefice shall be transmitted by the said registrar to the churchwardens or chapelwardens of the parish, township or place to which the same relates, within one month after the grant of such licence or revocation thereof, to be by them deposited in the parish chest ; and Registrar refus- every registrar who shall refuse or negrlect or omit to make 1"?'"^^. to make JO o such entry or any such entry, or to transmit any such copy, shall forfeit transmit copy, for every such offence or neglect the sum of five pounds, to penalty 51. be recovered as any penalty or forfeiture may be recovered under this act : provided always, that every such registrar p • ^ shall, for every such copy transmitted to such churchwardens for copy trans- or chapelwardens as aforesaid, be entitled to demand and ™'"^<^' have from such churchwardens or chapelwardens a fee of ten shillings and no more ; and such fee shall be allowed in the accounts of such churchwardens or chapelwardens, " LXXL And be it further enacted, that all the powers. Clauses relating authorities, provisions, regulations, penalties, forfeitures, to bishops to clauses, matters and things in this act contained in relation bu^K^ps" '"^'^ to bishops in their dioceses, shall extend and be construed to extend to the archbishops in the respective dioceses of which they are bishops, and also in their own peculiar juris- dictions, as fully and effectually as if the archbishops were named with the bishops in every such case. " LXXn. And be it further enacted, that in all cases Definition of the wherein the term benefice is used in this act, the said terra term benefice, K 130 THE PARSON'S COUNSELLOR, [part r. Power of arch- bishops and bi- shops as to bene- fices,&c exempt or peculiar, locally .situate within their pro- vinces; and also as 10 benefices, &c. situate in more than one province or be- tween the limits of two provinces. Peculiars sub- ject to arch- bishop or bishop to whom they belong. In every case in which jurisdic- tion is given to bishop, &c. all concurrentjuris- diction to cease. sliall be understood and taken to mean benefices with cure, and no others, and to comprehend therein, for the purposes of this act^ all donatives^, perpetual curacies and parochial chapelries. " LXXllI. And be it further enacted, that every arcli- bishop and bishop, within the limits of whose province or diocese respectively any benefice, respectively, exempt or peculiar, shall be locally situate, shall have, use and exercise all the powers and authorities necessary for the due execution by them respectively of the provisions and purposes of this act, and for enforcing the same with regard thereto re- spectively, as such archbishop and bishop respectively would have used and exercised if the same were not exempt or peculiar, but were subject in all respects to the jurisdiction of such archbishop or bishop ; and where any benefice, ex- empt or peculiar, shall be locally situate within the limits of more than one province or diocese, or where the same or any of them shall be locally situate between the limits of the two provinces, or between the limits of any two or more such dioceses, the archbishop or bishop of the cathedral church, to whose province or diocese the parish church of the same respectively shall be nearest in local situation, shall have, use and exercise all the powers and authorities which are necessar}' for the due execution of the provisions of this act, and enforcing the same with regard thereto respectively, as such archbishop or bishop could have used if the same were not exempt or peculiar, but were subject in all respects to the jurisdictions of such archbishop or bishop respectively, and the same, for all the purposes of this act, shall be deemed and taken to be within the limits of the province or diocese of such archbishop or bishop ; provided that the peculiars belonging to any archbishoprick or bishoprick, though locally situate in another diocese, shall continue subject to the arch- bishop or bishop to whom they belong, as well for the pur- poses of this act as for all other purposes of ecclesiastical jurisdiction. " LXXIV. And be it further enacted, that in every case in which jurisdiction is given to the bishop of the diocese, or to any archbishop, under the provisions of this act, and for the purposes thereof, and the enforcing the due execution of the provisions thereof, all other and concurrent jurisdictior CHAP. VII.] THE PARSON'S COUNSELLOR. ]31 in respect thereof shall wholly cease, and no other jurisdiction in relation to the provisions of this act shall be used, exer- cised or enforced, save and except such jurisdiction of the bishop and archbishop under this act ; any thing in any act or acts of parliament, or law or laws, or usage or custom to the contrary notwithstanding. " LXXV. And be it further enacted, that in all cases Issuing and serv- where proceedings under this act are directed by monition '"S monitions. or sequestration, such monition shall issue under the hand and seal of the bishop, and being duly served shall be re- turned, with a certificate of service, into the registry of the consistorial court of such bishop ; and thereupon it shall be Cause may be competent for the party monished to shew cause by affidavit ^^'ewn against , . , . • .^ ^L ■ sequestration. or otherwise, as the case may require, against the sequestra- tion issuing; and unless sufficient cause be shown to [the contrary, the sequestration shall issue under the seal of the said consistorial court, and in such form as is commonly used on that behalf. " LXXVL And be it further enacted, that it shall be Penalties to be lawful for the bishop of any diocese in which any spiritual r^'co^ered bj person shall hold any dignity or benefice, or shall serve as sequestration, stipendiary curate, to recover any penalt}'^ incurred under this act, in a summary way, by monition and sequestration, to be issued in the manner by this act directed, with the like powers and authorities, and subject to the like restrictions in respect to the remission and repayment of such penalty, as are by this act particularly provided in respect to penalties for non-residence: provided always, that no spiritual person pyt p^rty against whom any such proceeding shall have been had by against whom any bishop for the recovery of any penalty, shall thereafter ^'^^^ lu'.rs'uVert be subject to any action at law by any informer or other to action at law. person for the recovery of any penalty for the same offence in respect of which such proceeding shall have been so had by the bishop as aforesaid. " LXXVIL And be it further enacted, that any fees. Recovery of charges, costs or expenses incurred or directed to be paid fees, &c. by any spiritual person under the provisions of this act, which shall remain unpaid for the period of twenty-one days after demand thereof in writing delivered to or left at the usual or last place of abode of the spiritual person liable to the payment thereof, may be recovered by monition and K 2 132 THE PARSON'S COUNSELLOR, [part i. Proviso for li- cences before 3 1 St December how far not to require any li- cence before that lime. Commission to administer oaths not to be subject to stamp duty. Proviso for his majesty's pre- rogative in granting dis- pensations. What parsonage not deemed a benefice. Archbisliop or bishop not liable to penalties for non-residence. Proviso for powers of arch- bishops and bishops ; sequestration, to be issued in the manner directed by this act. *' LXXVIir. Provided always, and be it further enacted, that none of the provisions of this act shall extend or be construed to extend to render void or invalid, before the thirty-first day of December next, any licence or exemption which would have been otherwise valid and effectual, nor to require any licence to be taken before the said thirty-first day of December next, which would not have been required b}' law before the passing of this act. " LXXIX. And be it further enacted, that no commission issued by any bishop to any commissary or commissaries ap- pointed to administer the oaths required to be taken by any curate for the purpose of any licence or licences granted under the provisions of this act shall be subject to any stamp duty; any thing coTitained in any act or acts of parliament to the contrary notwithstanding. " LXXX. And be it further enacted, that nothing in this act contained shall extend or be construed to extend to alter or affect his majesty's royal prerogative in tlie granting of dispensations for non-residence upon benefices, as the same now exists by law. " LXXXI. And be it further enacted, that no parsonage that hath a vicar endowed, or that hath a perpetual curate, and having no cure of souls, shall be deemed or taken to be a benefice within the intent and meaning of this act. " LXXXIL And be it further enacted, that no archbishop or bishop having or who shall have an)' benefice shall by reason of non-residence upon the same be subject or liable to any penalties or forfeitures : provided always, that any archbishop or bishop who shall hold any benefice in com- mendam with his archbishoprick or bishoprick, shall nominate and appoint a resident curate, according to the provisions of this act. " LXXXIIL And be it further enacted, that nothing in this act contained shall be deemed, construed or taken to derogate from, diminish, prejudice, alter or affect, otherwise than is expressly provided, any powers, authorities, rights or jurisdiction already vested in or belonging to any arch- bishop or bishop under or by virtue of any statute, canon, usage or otherwise howsoever. CHAP. VII.] THE PARSON'S COUNSELLOR. 133 " LXXXIV. And be it further enacted, that nothing in a„d f^r the due this act contained shall extend or be construed to extend to celebration of repeal or alter the provisions contained in any act of par- '^""^ "trvce. liament, or any other provision of law, for the due celebra- tion of divine service in any church or chapel, or for the dis- charge of any other duty of any rector or vicar, or person holding any benefice, by himself or his curate. " LXXXV. And be it further enacted, that no provision Act not to e\- in this act contained shall extend or be construed to extend tend to Ireland. to that part of the united kingdom called Ireland." 134 THE PARSON'S COUNSELLOR, [iakt i. [ 89] CHAPTER VIIL JVhal Dilapidation is, and in what manner punishable, and what Remedies the Successor hath. Dilapidations, what? r^^ Canon against dilapidation. Lindw. chap. Si rector alicuj us ecclesicE. [90] Vide canon Othnbon do do- mibus ecclesia- rum reficiendis, in the appendix in the twelfth chapter ol' this hook, liic in fine. A DILAPIDATION is the pulling down or destroying in any manner any of the houses or buildings belonging to a spiritual living, or the chancel, 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 clergyman, 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 have 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 myself to our own provincials: and I find in a provincial council or synod held under Edmund archbishop 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 alicuj us ecclesiae; decedens domos ecclesiae deliquerit dirutas, de bonis suis ecclesiasticis tanta portio deducatur, quae sufficiat ad reparandam haec, et alios defectus ecclesiae supplendos. Item statuimus circa illos vicarios, qui solvendo modicam pensionem omnes ecclesiae habent proventus : Nam cum ad prasmissa teneatur talis portio deducta, satis poterit et debet inter debita computari : Semper tamen rationabilis consider- atio sit habenda ad facultates ccclesize, cum portio fuit habenda." CHAP. VIII.] THE PARSON'S COUNSELLOR. 135 Now if it be demanded what houses are meant wiihin this canon, the gloss tells you, " Ut puta mansum rec- toriaB, vicaiiae et alia edificia qurecunque, quorum edi- ficatio sive reparatio spectat ad ipsum rectorem." By the letter of this canon the rector is to repair the ^"- ^; '.'• "• whole church ; but by the custom of England the owners Not lo repair of the houses and lands in every parish are bound to *''*^ thurcii, but •' ' chancel. repair the body of the church, and the rector only the chancel; 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 o ij,^t. 533. common law being here to be preferred, annuls that part of the canon. And the gloss upon the word defect' ecclesifle adds, ^ ^»""" I'"" ,, J, 1. '.,,..,, p ., , . relief atiaiiist hisec iitera potest mtelligi de derectibus ecclesia?, diUipidaiions. quffi pertinent ad curatum ipsius ecclesije in solidum, sic quod non pertineant ad alios, ut puta, in cancella, et aliis ad onus rectoris de jure vel consuetudine spectan- tibus." But this canon seems only to affect the ecclesiastical goods : and what those might be, deserves the judgment of the gloss, which tells you they are such as "jure et [ 91 ] nomine ecclesiae obvenientibus ; talia enim bona sunt Vorh. ecclesia- per viam tacitae hypothecae ad reparationem hujusmodi faciendum obligate." And if the goods of the church shall not suffice, then tiie gloss tells us, " Si rector bona ecclesiastica expen- derit in meliorationem patrimonii sui, vel si propter nimiam diligcntiam propriorum negotiorum neglexerii negotia ecclesiae procurare, et sic ecclesia sit damnum passa, tenetur satisfacere de bonis suis j)atronalibus, si quae habuerit." But there has been made a further question, whether satisfaction for dilapidations should be preferred in pay- ment before debts and legacies? And as the common law prefers the payment of debts before damage for dilapidations; so the ecclesiastical law prefers the da- mage for dilapidations, before the jjayinent of legacies : 136 THE PARSON'S COUNSELLOR, [part i. Verbo reparand. liaec. to which hear what the gloss sa3rs j " Si legatarii tan- quain credi tores petant legata sibi relicta, et proelatus petat sumptus reparalionis edificiorum ecclesize ; talis praelatus debet praeferri czeteris legatariis :" and gives this reason, " Nam legata solvi non debent nisi prius deducto jere 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, what repairs are re- quirable in this case, which is answered by the gloss : " Et intellige hanc reparationem fieri debere secundum exigent' et qualitatem rei reparandit," &,c. [ 92 ] Waste by bishops. Co. 11.49. a. Cause of depri- vation. M. 23. Ei inter adjudicat coram rege. Hunts. 83. * Or in the King's Bench, Bulstr. 3, 158. More, 917. Rot. Pat. 14 H. 3. m. 8. Bulstr. 2. 279. Thus far I have followed the canon, and gloss there- upon : 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, 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, for waste and destruction of the woods belonging to his bishopric, by gift, sale and otherwise, 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, " Inhibitur pei breve de cancellaria episcopo et ministris suis, ne faciant vastum de contentis in petitione." By which it appears, that if a bishop, or any other clergyman, 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 setatem et in custodia domini regis, qui tenetur jura et hzereditates ejusdem manu tenere et defendere." And the archbishop of Dublin was fined 300 marks for the disafforesting a forest belonging to his arch- bishopric. CHAP, viii.] THE PARSONS COUNSELLOR. 137 And William, abbot of Westminster, in the 15th Hollbgsh. isi. year of King John, anno 1213, was deprived, because ^* ^^• he had wasted the revenue of his church or abbey. And it seems by several books of the * common ^ C ^^ ] •^ 20 H. C. 46 a law, t and by the canons of the church likewise, that in 3 Inst. 204. case a bishop, abbot, prior, &.c. waste the lands, woods q^'A' ^' ''', or houses of his church, he may be deposed or deprived 29 E. 3. 16. a. by his superior (32): so that it appears clearly, that ^c !; "lo ^'2 the fault in this case lies heavy upon those that have si quis casus, the visitation and superiority, that do not take care -^^ frequently brought, both anciently and of later times, /c if^t^- "^'ff ' '^^'^ damages recovered. ^"^c/(-A/(' J/^y . See this matter debated, and curious learning ihere- ^^*^.^-^^^^;^ipon. 3 Levins 268. />'--c^^ >^ ^^..^-.(l^y /t. ^,/fii, (33) RadcIifFe v. Doyley, 2 T. R. 650. Young v. Munby, 4. Maule Sx. Sclwyn's Rep. 183. CHAP. VIII.] THE PARSON'S COUNSELLOR. ' 139 And note, that by a statute made in the fourteenth year [ 95 J of Queen Elizabeth, it is expressly enacted, That all the monies and damages that shall be recovered for dilapida- tions, are to be expended and laid out, in, and about the repair of the houses, &c. dilapidated, wherein the visitors of those churches ought to take care (34). It will not be altogether improper to conclude this chapter with the statute of 35 E. 1. intituled, '^ Ne 35 E. i. rectores prosternant arbores in caemeterio;" whereby it is enacted, or rather the common law declared in these words : We do prohibit the parsons of the church, that they Against cuuing the trees in tiie do not presume to fell them (viz. the trees in the church- churchyard. yard) down unadvisedly, but when the chancel of the church wants necessary reparations: neither shall they be converted to any other use, unless the body of the church do want repair; in which case the parsons of their charity shall do well to relieve the parishioners with bestowing upon them the same trees, which we will not command to be done, but we will commend it when it is done. By this law it appears, that the churchyard and the soil thereof is in the parson, and by consequence the trees are in the parson or rector, that grow therein. But because the trees that grow there are for the most part planted there for the shelter and ornament of the church from tempest and storms ; therefore the parlia- (34) The words of the act are, '* All sums of money to be recovered for or in the name of dilapidations, by sentence, composition or otherwise, shall, within two years after such receipt, be truly employed upon the buildings and repara- tions, in respect whereof such money for dilapidations shall be paid, on pain that every person so receiving and not em- ploying as aforesaid, shall forfeit double as much as shall be so by him received and not employed ; which forfeiture shall be to the use of the queen's majesty, her heirs and suc- cessors." ^18. 140 THE PARSON'S COUNSELLOR, [part i. ment has granted a prohibition in this case against the rectors and parsons of churches, that they should not r p6 ] cut down these trees for any other use, but the necessary repairs of the church and chancel, which in truth was no more than what the common law enjoined : for if the rector had gone about to have cut them down for any other use, the patron might have had a prohibition ; but now 1 conceive the rector or impropriator, that cuts down any trees growing in the churchyard for any other cause, than for the repair of the church or chancel, may be indicted and fined upon this statute at the com- 3 Inst. 203 vaon law; for whatsoever may be prohibited before it is done, may be punished after it is done. If the bishops and archdeacons in their visitations would take care, these dilapidations might easily be avoided, which are a great dishonour to the clergy, and cannot be pleasing to God Almighty or good men : and the canon enjoins the archdeacons and other officials, Can. Archidia- " Ut in visitationibus ecclesiarum faciendis diligentem coui et infra. exhibcant considerationem ad fabricam ecclesise et maxime cancellus, si forte indigeant reparatione, et si quos invenerint defectus hujusmodi, certum sub poena prjefigant terminum infra quem emendentur vel sup- pleantur," &c. (35) (35) As the patron only can prevent a rector or vicar, so a bishop can only be prevented by prohibition, or by in- junction at the suit of the crown, by its attorney-general, from exercising the right of cutting timber; Jefferson v. Bishop of Durham, 1 Bos. and Pull. 120. 129. 3 Merivale's Rep. 427. And the patron has the same right against a rector, which the crown, or the metropolitan, may exercise in the case of a bishop. Knight v. Mosely, Ambl. 176. If a bishop cuts and sells trees, and does not employ them for reparations, a prohibition ought to lie out of B. R. Mich. 12 Jac. B. K. Stockman v. Wither. But it seems that the right to cut timber for the purpose of repairs, extends to selling timber, and applying the produce ; per Lord Eldon. Wither v. Dean, CHAP. VIII.] THE PARSON'S COUNSELLOR. 141 &c. of Winchester, 3 Merlvale's Rep. 428. A bishop is only to fell timber for building, for fuel, and other necessary occasions. The woods are called the dower of the church, per Coke, C. J. 2 Bulstr. 279. A rector may cut down timber for the repairs of the parsonage or the chancel, but not for any common purpose; and this he may be justified in doing under the statute of 35 Ed. 1. stat. 2. intitled, '< Ne rector prosternat arbores in coemeterio." If it is the custom of the country, he may cut down under- wood for any purpose ; but if be grubs it up, it is waste. He may cut down timber likewise for repairing any old pews that belong to the rectory, and he is also entitled to botes for repairing barns and outhouses belonging to the parsonage. Strachy v. Francis, 2 Atk. 21/. The patron of a living may obtain an injunction against the incumbent to stay waste for digging stones on the glebe, other than what are necessary for repairing and im- proving the rectory; and in this case Lord Hardwicke ob- served, •' The parson has a fee-simple qualified and under restrictions in right of the church, but he cannot do every thing that a private owner of the inheritance can. He can- not commit waste, nor open mines, but he may work those already opened : even a bishop cannot. Talbot, bishop of Durham, applied to parliament to enable him to open mines, but was rejected. Parsons may fell timber, or dig stone to repair, and they have been indulged in selling such timber or stone when the money has been applied in repairs. In- junction has been granted even against bishops to restrain from felling large quantities of timber, at the instance of the attorney-general, the patron of bishoprics." (3 Bulstr. 158. Knowl v. Harvey, Roll's Abr. 2. 813.) In the same case his lordship observed, " The patron is not entitled to an account, because the patron cannot have any profit from the living." Knight V. Mosely, Ambl. 176. But it has been held, that new mines might be opened. Maynard moved for a pro- hibition to a parson for digging new mines of coal in his glebe, and also for felling trees; but the court held, that it lay not for mines, for if so, no mines in any glebe should now be opened. Countess of Rutland's case, 1 Lev. 10/. Lord Rutland v. Greene, l Keble, 557. -|42 THE PARSON'S COUNSELLOR, [part i. Dr. Sands, a prebendary residentiary of the church of Wells, brought a suit in the spiritual court for dilapidations against the executor of Dr. Pierce, his predecessor; and they on the other side shewed, that in that church there are eight residentiary prebendaries, to which, to encourage them to residence, there are eight houses belonging; that to each prebend there is a house belonging, but not any house in certain, the bishop having the privilege of appoint- ing what house he thinks fit to each prebendary, but he must appoint one. They hence inferred, that this house goes not in succession, nor is it part of the prebend, for that he is prebendary and hath one house allotted him, and so was Dr. Sands ; and afterwards upon the death of another pre- bendary another house. But Jones, J. answered, " It is true here are eight houses belonging to eight residentiary pre- bendaries, whereof each prebendary, de jure, is to have one; that no one house is ascertained to any particular prebend, but ought to be assigned to some particular prebend ; and when the bishop doth so assign by virtue of his power, and not by virtue of any estate he had in him, then it is part of the prebend, and shall be liable to a suit for dilapidations ; therefore there ought not to be a prohibition." Viner's Abr. Dilapidations, 35 Car. 2. B. R. Dr. Sands's case. An action on the case for dilapidations of a prebend house may be maintained by a succeeding prebendary against his predecessor; but when by the statutes of the church the materials are to be supplied out of the church funds, the successor shall recover only the amount of the workmanship necessary for making the repairs. Radcliffe v. D'Oyley, 2 T. R. 630. If a prebendary waste the trees of his prebend the patron can have prohibition. Co. 11. Liford's case. An action was brought by a vicar successor against his predecessor for dilapidations, who by taking a second benefice with cure, &c. had lost this vicarage, and the plaintiff had judgment. Carth. 224. E. 4 W. & M. in B. R. Jones v. Hill, Viner's Abr. Dilap. And the successor may have separate actions against the executor of the late rector for dilapidations to different parts of the rectory. Young v. Munby, 4 Maule and Selwyn's Rep. 183, Pending a quare impedit if an incum- oiAP. viii.] THE PARSON'S COUNSELLOR. 14' bent cuts trees on the glebe, and on the lands of cop_yholders of a manor, parcel of the rectory, a prohibition lies. 2 Roll's Abr. 813. Hobart's Rep. 51. In order to prevent dilapidations it is enacted by the 1/ G. 3. c. 53. as follows: Where the parson, vicar or other incumbent of any eccle- siastical living, parochial benefice, chapelry or perpetual curacy, being under the jurisdiction of the bishop or other ecclesiastical ordinary, is desirous to build or improve the buildings belonging to his benefice, which one year's neat income will not be sufficient to put in due repair, he must first procure a certificate from an experienced workman, ^ containing a state of the buildings, the value of the timber, and other materials fit to be employed in building, or repair- ing, or to be sold ; and also a plan or estimate of the work, which must be verified upon oath before a justice of the peace or master in chancery, ordinary or extraordinary; he must also make out in writing, to be signed and verified by him on oath as aforesaid, a particular account of the annual profits of the living. These must be laid before the ordinary and patron, in order to obtain their consent to such proposed buildings or iepairs. But the ordinary before he gives his consent, shall cause an inquiry to be made of the state and condition of the build- ings at the time when the incumbents entered, how long he hath enjoyed the living, what he hath received for dilapida- tions, and how the same hath been laid out : and if it shall appear that the incumbent hath by wilful negligence suffered the buildings to go out of repair, he shall pay down so much as the damages thereby occasioned shall amount unto, before the/ ordinary shall give his consent. If the patron is a minor, idiot, lunatic or feme covert, the guardian, committee or husband respectively may act for them. If the several parties shall declare their consent by writ- ing under their hands, the incumbent may borrow at interest such sum as the said estimate shall amount unto, after de- ducting the value of the timber or other materials which may be thought proper to be sold, not exceeding two years value of the living, after deducting all outgoings, except only the salaries to assistant curates where necessary ; and as a se- 144 THE PARSON'S COUNSELLOR, [part i. curity for the money so borrowed, lie may mortgage the glebe, tithes and other profits of the living for twenty-five years, or until the principal interests and costs shall be paid. And the mortgagee shall execute a counter-part of the mortgage, to be kept by the incumbent^ and a copy thereof shall be deposited in the bishop's registry; and on failure of payment of principal and interest for forty days after the same shall become due, the mortgagee may distrain in like manner as rents may be recovered by landlords from their tenants. And a proper person shall be appointed by the ordinary, patron and incumbent, to receive the money borrowed, who shall give bond to appl}' the same for the purposes intended, and shall make contracts, pay the workmen; and when finished render a due account to be entered in the registry aforesaid. Where new buildings are necessary, the ordinary, patron and incumbent may purchase any building within one mile of the church, and land not exceeding two acres, if the living is under lOOl. a year; if above, then not exceeding two acres for every lOOl. a year; and the purchase money may be raised by sale or exchange of some part of the glebe or tithes. And every such incumbent shall annually at his own ex>- pense, from the time such buildings shall be completed^ insure at one of the offices in London or Westminster the said house against accidents by fire, at such sum as the ordinary, patron and incumbent shall agree upon; and on neglect of such insurance, the ordinary may sequester the profits till such insurance shall be made. And every incumbent successively shall pay the interest (of the principal money due upon such mortgage, yearly, as the same shall become due, or within one month after, and also 5I. per centum of the money originally advanced upon such mortgage; 21 G. 3. c. 06.) and if such incumbent shall not reside twenty weeks within each year, computing from the date of the mortgage deed, he shall instead of 5l. pay loK per centum yearly, such payments to be made till the whole princi- pal and interest shall be discharged : and in default of such payment, the ordinary may sequester the profits as aforesaid. And where there shall be no house, or a very mean one, on a living worth above lOOl. a year, and the incumbent CHAP. VIII.] THE PARSON'S COUNSELLOR. 145 shall not reside in the parish twenty weeks within any year ; and he shall not think fit to lay out one year's income where the same may be sufficient, nor to apply in manner aforesaid for two years income, the ordinary, with consent of the patron, may procure such plan, estimate and certificate as aforesaid, and proceed in the execution of the purposes of this act as if the incumbent had consented, and the mortgage executed by the ordinary shall be binding on the incumbent and his successors. And the governors of Queen Anne's bounty may lend money not exceeding lOOl. in respect of a living not exceed- ing 50l. a year without interest; and where the annual value exceeds 501., they may lend any sum not exceeding two years income, at the interest of 4 per cent. And colleges and other corporate bodies having the patronage of livings, may lend money for the purposes afore- said without interest. For the forms of the instrument, vide 17 G. 3. c. 53. and 21 G. 3. c. 66. Money given by will to erect a parsonage-house at the end of the garden of the former parsonage-house, is not within the statute of mortmain, no land being to be pur- chased. Brodie v, Duke of Chandos, I Br. 444. 2 Burn's Eccl. Law, 155, 156. Dr. Burn, in vol. 2, 151. has suggested a doubt whether the statute of 13 Eliz. c. 10. is now in force, because it was not together with other statutes continued by 10 C. c. 4. There seems, however, to be little room for such a doubt : upon the face of the statute of Elizabeth there is no appear- ance of its being temporary, but under an erroneous supposition that it was so, it was continued by statutes ] Jac. c. 25. and 21 Jac. c. 28. The error being then probably discovered, it was not continued further. At all events, this statute stands in the statute books, and never was expresslj'^ repealed ; and the law is liberal in the construction of statutes, ut res magis valeat quam pereat. I Bla. Com. 89. It is not therefore a reasonable conclusion, that a continuation of a statute made under an erroneous view of it, can by any implication amount to a repeal. 146 THE PARSON'S COUNSELLOR, [part r. [97] CHAPTER IX. For zchat Causes a Parson, Vicar , Sfc. may he deprived hy any Statute IjOzv; and zchat matters are allowed for good Causes of Deprivation at the Common Law. Deprivation and deposition, wliat. Where deter- minable. [ 98 ] 2 Brownl. 37. 1 Brown!. 70. Can. Apost. 42. Mortimer v. Parker, 10 Jac. Simony cause of deprivation. Deprivation or deposition is, where a man by any statute law, or by any judicial sentence ecclesiastical, that hath proper jurisdiction, is made incapable to hold or enjoy his parsonage, vicarage, or other spiritual pro- motion or dignity: and the causes of such deprivation or deposition, are properly and naturally determinable by the ecclesiastical laws of this realm. But because generally there are estates of freehold dependant upon these promotions and dignities, and annexed to them inseparably, which rest at the sole determination of the common law; the courts of com- mon law do sometimes inspect and regulate the pro- ceedings of the ecclesiastical courts; and where they proceed against the rules of common law, they frequently prohibit them. I have therefore thought fit to shew, what causes of deprivation or deposition have been allowed and ap- proved of by tlie judges and courts of the common law, or by any of the statutes of this realm. But there are many more causes of deprivation by the canons and laws ecclesiastical, which being out of my profession, I shall not presume to discourse of. 1. If a parson, vicar, &c. be a common drunkard, it is a just cause to deprive him of his church preferment. 2. The clerk that obtains any preferment in the church by any simoniacal contract or agreement may CHAP. IX.] THE PARSON'S COUNSELLOR. 14^ be deprived b}' his ordinary, &c. as it appears at large in the fifth chapter here before upon that subject. Supra 45. 3. Tiiat if any parson, &.c. shall refuse to use the i El. c. 2. stat. book of Common Prayer, or administer the sacraments ^^^^^^I'^^l^^^^' in the order there prescribed, or shall wilfully and ob- forms of prayer, stinately, standing in the same, use any other rite or ^^^^^^" ° '^'^'^^* ceremony, order, form or manner of celebrating the Lord's Supper, or other open prayers, or shall preach, declare or speak any thing in derogation thereof, or depraving the same, or any thing therein contained, and having formerly been convicted for the like offence, shall upon his second conviction be deprived ipso facto (36). 4. If any parson, vicar, &c. shall not within two St. 1 4 Car. 2. c. 4. months next after induction, upon some Lord's day, ^^d Driers' openly, publicly and solemnly read the morning and within two evening prayers appointed to be i-ead the same day, Induction .'^"^ according to the book of Common Prayer; and after [ 99 ] such reading, shall not openly and publicly, before the congregation there assembled, declare his unfeigned assent and consent to the use of all the things therein contained, in such manner as is directed before here in (36) In a suit in the Arches court, promoted against a vicar, because (among other articles of charge) he had left out portions of holy scripture appointed to be read, ac- knowledged that he had done so, and declared that he would do so again ; and specific instances were adduced of his having done so. And because in the administration of the sacra- ment he had made use of offensive language to a communi- cant, the court suspended him from the ministration of his office for a fortnight, decreed a monition against him to refrain in future from offending in the manner charged in the articles, and condemned him in costs. Newbery v. Goodwin 1 Phillimore's Eccl. Rep. 282. l2 148 THE PARSON'S COUNSELLOR, [part i. the seventh chapter; and if tliere be aii}' lawful ini- pedimetit, then if lie do not do the same within one month after the impediment removed, such parson, vicar. Sec. shall be deprived ipso facto (37). i3Eliz. c. 12. 5. If an}' parson, which shall have any ecclesiastical doc"rineWinsf Preferment, shall advisedl}' maintain or affirm directly tiie 39 articles of any doctrinc contrary or repugnant to the thirty-nine 5^ r! 2" tit. Trial articles of religion, and being convented before the 54- bishop of the diocess or ordinary, or before the high Miscreants, in- . . in • i • i i i • fidels, sciiisma- Commissioners, snaii persist therein, and not revoke his tics and heretics eiTor ; or after such revocation shall eftsoon affirm such deprived, f. 3. ^ i • i i i • i untrue doctrine, he may be deprived. * A misbeliever. t An atheist, &c. G. If any person shall obtain a pr-eferment in the Uy. 8. p 954 church, which is a * miscreant, f infidel, schismatic or Co. 5. 58. a. heretic, he may be deprived. Dj. 293. p. 1,2. -^ ^ Slave, villain, illiterate and 7. So if One be made a parson, vicar, &c. that is not criminous per- p r ■>• ■ i -n- i ••ii- i son may be de- °' ^^"^^ Condition, but a villain, or that is illiterate and prived. not able to perform his duty, or that is guilty of an}' mJ-J^^^^ heinous crime, as murder,* manslaughter, perjury, Roll. 2. Abr. forgery, or that is mere laicus, and not in holy orders, *^*- he may be deprived (38). (3/) By 23 G. 2. c. 28. the ordinary may allow of any lawful impediment for not reading the articles, and making the declaration, within the time limited. The statute 13 and 14 Car. 2. c. 4. contains a provision to the same effect as to reading the morning and evening prayers. (38) Before the stat. 13 and 14 Car. 2. c. 4. if a layman was presented, instituted and inducted, he was parson de facto ; and acts done by him as parson were valid, Cro. Eliz. 775. But by the above statute, no person is capable of being admitted to a benefice who is not ordained priest; and his ecclesiastical promotions are void, as if he were naturally dead. CHAP. IX.] THE PARSONS COUNSELLOR. 149 8. A parson, vicar, &c. ma}' be deprived for being And so is the disobedient and incorrigible to their ordinary, &c. •5*'^' "^""o" "'" ° ""the Apostles, express. 9. And it was resolved by all the iudses of Eneland, ^^"^" J- ^^^' 2 Jac. that non-con rormity was a good cause or de- b. R. Cro. Jac. privation : and it was declared by them all, that in case ^'- ^"""q"' any canons were made by the clergy for the good go- nota. vernment of the church, and approved and confirmed by the king, (as they ought) that the obstinate disobey- ing of them was a just cause of dejjrivation. 10. If any parson, vicar, &c. have one benefice with n H. 4. 37. cure of souls, and take another incompatible without a ijeneficet *^*^"" faculty and dispensation, it is a just cause of depriva- Quaere Stilling. Eccl. Cases, 99, tion. iQO, H. In the time of popery it was cause of deprivation Dyer, ]33. p. i. for a priest to marry; but not to have two or three vvaTcaute^oTde- concubines, as the}' called them : but more of this here- privation. after. 12. Dilapidating the church and buildings, destroy- siilli"g- Keel. * . . ° . "^ Cases 86. iiig the woods, or alienating the lands belonging to the f, inst. '204. church by any bishop, abbot, prior, parson, vicar, &,c. Co. 11.93. b. have been held and adjudged just causes of deprivation; 9 e. 4. 34. and it were very fit the canons in this case were put in ^^^ j?'.^',^^' - execution (39). q. 4. Quicunque. [ 101 ] There may be a question started, what shall be in- Deprivation ipso tended by the words, deprived ipso facto; whether by facto. See those words the church shall immediately become void DuV. 475,"&;c. by the fact done, or not till conviction or sentence de- 1 Vemris, U6. claratory. The words ipso facto are of late time crept into acts of parliament; as that ibr striking with a weapon in a churchyard, the parly shall ipso facto be excommunicate: and in that case it is made a quaere Dy.273.b.p.48 Quare (39) Vide Part l. Chapter 8. 150 THE PARSON'S COUNSELLOR. [part i. Co. 6. 2i». b. in Dyer. But in Green's case it is resolved, that the Cap Quia m- church in this case shall be void without any sentence continentias, r i- b. ipso facto, declaratory, and that avoidances by acts or parliament ver need no sentence declaratory. But in that case by the canonists, " requiritur sententia declaratoria." And Rolls 2. 282. f. 5. note, that after induction the spiritual court cannot de- Rolls2.305.$3. prive for any error in his institution. So if a clerk- commits homicide, and hath his clergy, he shall not afterwards be deprived for this offence. And a man ujay be deprived by reason of degradation (40). I must confess, in this chapter I may seem to trans- gress upon the canonists and civilians, as well as in some other; but I have gone no further upon this sub- ject, than what I have met with in our own books : and I must agree, that the ecclesiastical courts must have the sole jurisdiction in all causes of deprivation, depo- sitions, resignations, &c. And yet the judges of the [ 102 ] common law have power to correct their proceedings, if they shall proceed against the rules of the common law, which is the reason we meet with these things in our books, and it may be some advantage to the civilians to know how far the common law approves of their proceedings. (^0) Although the 21 H. 8. c. 13. declares the first benefice void in law by induction to a second ; and the 13 Eliz. and 13 and 14 Car. 2. declare, that persons offending against them shall be ipso facto deprived ; and the 3 1 Eliz. makes inductions contrary to it utterly void: yet if the per- sons instituted and inducted continue to act as incumbents, contrary to the provisions of those statutes, the ordinary may examine the matter, and declare the church void by sentence in the ecclesiastical court. Wats. c. 5 and 6. Cro. Eliz. 252 and 686. And such declaratory sentence is pro- per, if not necessary, where the bishop means to take the benefit of the lapse under 13 El. c. 12. though not necessary to the patron or parishioner resisting the plenarty. 2 Burn's E. L, 144, ct vide 4 Blac. Com. 62. CHAP. IX.] THE PARSON'S COUNSELLOR. 151 There are by the canon law divers other causes of deprivation ; but it is out of my province, and would be too long for this discourse to reckon them all up. And having said what I have to say upon this subject, I shall proceed next to shew, what leases parsons, vicars, and other ecclesiastics may make at this day of the glebes, tithes, farms, &c. and within the danger of what statutes they may fall. After induction a man cannot be deprived for any Roils q. 282. fault in his institution. " "^ ^* Deprivation for incontinency, Croke Eliz. 789.41. (41). Deprivation for adultery, Co. 6. Rep. I3.b. Hob. 243. (41) Sentence of deprivation must be pronounced by the bishop; but suspension ab ingressu ecclesia; may be pro- nounced by the ecclesiastical judge. Ov.'en v. Fleming, Arches C. 1733-4, cited in Watson v. Thorp, 1 Phillimore's Rep. 275. In Powlett v. Head, the clergyman was sus- pended ab officio et beneficio by sentence of the bishop in person. Ibid. A rector was suspended three years by sen- tence of the ecclesiastical court for incontinency, and im- jnoral conduct. Watson v. Thorp, 1 Phillimore's Rep. 273. 152 THE PARSON'S COUNSELLOR, [i-art i. [ 103 ] CHAPTER X. What Leases Parsons, Vicars, and other Ecclesiastical Persons may make of their Glebe, Tijthes, Farms, S^x. and within the danger of what Statutes they may fall. What leases clcrgjfmen may make. [ 104 ] Having undertaken this work chiefly in favour of the parsons and vicars, I designed to have meddled with no other orders of the church but those only; but having in many other things been enforced to intermingle the concerns of other orders with those of the parsons and vicars, I shall beg the reader's pardon, that in this chapter, where I am to treat of the leases which may be made by parsons and vicars, I likewise take in all other orders of the church with the colleges ; the learn- ing concerning leases being of use, and necessary for all people to know, and which I shall in this chapter put into as good a method as the subject matter will permit. And because the learning of these leases will depend upon several statutes, it will not be amiss, first, to examine what leases or alienations the several persons we have to do with in this chapter, might have made at common law before the statutes, and then to consider where, or in what manner, the several statutes have en- larged, abridged, or restrained their power at common law. At common law, 1 Inst. 45. a. The enabling act of 32 H. 8. cap. 28. And first, at the common law, no bishop, abbot, prior, dean, prebend, or other single corporation, could make any alienation or lease to bind their successors, without the confirmation of their chapter, convent, &.c. The first statute that made any alteration in these CHAP. X.] THE PARSON'S COUNSELLOR. 153 cases, was the statute of 32 H. 8. which is commonly called the enabling statute; whereby it is enacted, That all leases then after to be made of any manors, lands, tenements or hereditaments, by writing under hand and seal, for term of years, or for term of life, by any person or persons of the full age of twenty-one years, having any estate of inheritance either in fee- simple or fee-tail, in their own rights, or in the right of their churches, &,c. shall be good and effectual in the laws against the lessors, their wives, heirs and successors. Provided that that act shall not extend to any lease of any manors, &c. where any old lease should be in being, unless the same expire, be surrendered or ended within one year after the making of such new lease, nor shall extend to any grant to be made of any reversion of any manors, &-c. nor to any lease of any manors, &c. which have not most commonly been letten to farm, or occupied by the farmers thereof, by the space of twenty [ J05 ] years next before such lease thereof made, nor to any lease to be made without impeachment of waste, or to any lease to be made above the number of three lives, or twenty-one years at the most, from the day of the making thereof; and that upon the making of every such lease there be reserved yearly, during the said lease, due and payable to the said lessors, their heirs and successors, to whom the reversion shall appertain, &c. so much yearly farm or rent, or more, as hath most accustomably been yielded and paid for the said manors, &c. so to be letten within twenty years next before the lease thereof made, &c. Provided this act should not extend to give any liberty or power to any parson, vicar, 8cc. to make any lease, or grant of any of their messuages, lands, tithes, &,c. or in any other manner than they should or might have done before the making of the said act. So now, where before the making of this act, no 154 THE PARSON'S COUNSELLOR, [parti. archbishop, bishop, archdeacon, dean or prebend, could have made any lease to have bound his successors with- out the confirmation and consent of their chapters, 8cc. What qualities as aforcsaid : now by this act they are enabled to make such leases may jgages for three lives, or one and twenty years, without any confirmation at all, with these qualifications : ,, t 1^^ 1 . 1. Such lease must be made by writins; indented, and Must be in writ- •' ^ ' ing indented. not by parol or deed poll. Must begin from 2. It must be made to begin from the making, or the making, or , - , , . ^ , , day of making, day ot the makmg or such lease. Old lease must 3. If there be any old lease in being at the time of year.*^ ^' '" '^ the making of such lease, it must expire, be surrendered Co. 5. a. b, or ended within a vear after the making of such new Co. 1 Inst. 44. b. , 111 .111 1 lease; and such surrender must be absolute, and not upon condition. Must not be a 4. There must not be a double lease in being at one double lease. ^^^ ^j^^ ^^^^ ^-^^^^ ^j^^ ^^^ j^^^^. yg^rs, and the other for lives. Of what things 5, Such Icasc must be of lands manurable or cor- ^uc eacmay p^j.^^]^ which are necessary to be letten, and out of Co. 5. 3. a. which a rent may be reserved, and not of things that Talentinev. he merely in grant; as fairs, markets, tithes, tolls, Denton. franchises, advowsons, &c. H. 2 Jac. B. R. ' ' Of lands usually 6. Such lease must be of lands, &.c. which have most ^ "' commonly been letten to farm ; or occupied by the farmers thereof for the more part of twenty years before the making of such lease : so if they have been so let for eleven years within twenty years next before the making of the new lease, it suffices : and a letting to [ 107 ] faim by copy of court-roll, is a sufficient letting to farm Co. 6. 37. within this statute, to enable the making of such new lease. CHAP. X.] THE PARSON'S COUNSELLOR. 155 7. There must be reserved upon ever}' such lease, The accustomed and payable durino: the continuance thereof to the rent must be re- r •/ o served lessor, his successors, 8cc. so much farm or rent as hath most accustomably been yielded and paid for the land so demised within twenty years next before such lease made : so that it sufficeth, if the yearly rent or farm be reserved, though heriots and other casual services be omitted ; so if a greater rent than formerly be reserved, Co. 6. 37. b. it sufficeth. But if the lessor reserve a less rent than jbid.Co 5. 6. a. the ancient, during his life, and after the full rent, yet it is naught, because it must be reserved during the whole term: so if lauds usually letten be demised with Co. i Inst. 44. b. any other lands, Stc. though a rent be reserved that ex- vid,' Co. s! 70. ceeds the value of those lands and the old rent ; yet b. &c. , , . , . , . , . , . What reserva- such lease is not good agamst the successor withm this tions are good, law. But if the rent were formerly reserved to be paid Co. 5. 37. b. at four several days, and by the new lease be reserved to be paid all at one, so the whole rent be reserved yearly, it is well enough. If a bishop, &c. have two distinct manors, that have Trin. 26 Car. 2. anciently been demised together, and one entire rent needie^^nnam. reserved for both manors ; and these being out of lease, the bishop, &c. may demise them severally, reserving several rents amounting to the whole ratably : and these have been adjudged lately in the Common Pleas to be good, and affirmed in error in the King's Bench; and [ 108 ] by same reason, if a termor for life should lease part ^'j^ This case for years, and then surrender and accept a new lease, is put in the Mo- rendering the ancient rent, it would be a good lease, butlmperfectly tamen quaere: for of that part leased by the termor, reported, ideo there would be two leases on foot together ; but if the *1"*'"^* new lease were only of the lands not demised by the termor, then it seems good. 8. Lastly, Such lease must not be without impeach- Such lease must ment of waste: and therefore a lease to one for life, not be without . , 1 ,. I-,- -1 ^ ,1 • 1 r impcacliment of remamder to another lor lite, remainder to a third lor ,,j^^^^. life, is not good against the successor, though but for 156 THE PARSON'S COUNSELLOR, [pakt i. Parsons and vi- cars excepted. Co. 8. 70. b. three lives, because the remainders make the present tenants dispunisliable for waste for the time (42). But parsons and vicars being excepted in this enabling law, are left as they were at the common law; so that they could make no lease to bind the successor without the confirmation of the bishop and patron, till the statute of 13 Eliz. which we shall speak of hereafter. And a lease for ninety-nine years, if three lives live so long, is not good within this statute. [ 109 ] 1 Eliz. c. I More, 107. Bishops re- strained. But this act, as appears by what hath been said, con- ferred a new power upon single corporations; but did not in any thing restrain their ancient power in making long leases and alienations of their very sites, demesnes, Sec. with confirmations as aforesaid, which was a great prejudice to the church in general, a means of dila- pidations, and a great hindrance of hospitality: and therefore. In the first year of Queen Elizabeth it was enacted. That all gifts, grants, feoifments, fines and other con- veyances and estates from the first day of that present parliament, to be had, made, done or suffered by any archbishop or bishop of any honours, castles, manors, lands, tenements, or other hereditaments, being part of the possessions of his archbishopric or bishopric, or united, appertaining or belonging to any the same arch- bishoprics or bishoprics, to any person or persons, bodies politic or incorporate (other than the queen's majesty, her heirs and successors) whereby any estate or estates should or might pass from the said archbishop 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 (42) Co. Litt. 45. a. CHAP. X.] THE PARSON'S COUNSELLOR. 157 void and of none effect, to all intents, constructions and purposes; any law, custom or usage to the contrary thereof in any wise notwithstanding. Note, the exception, which gives, or rather reserves i Jac. c. 3. the power to grant, &c. to the queen, &c. was made void by a statute made 1 Jac. And note also, that though this statute enacts, that [ '.^0 j all leases made in any otVier form shall be void and of forins not void, none effect to all intent and purposes; yet it has been but avoidable. ,.,,, .. , ,. ,1 . , Smalwood and adjudged, that it is only to be intended as against the Sale v. I'Evesque successors, and that leases made in other forms shall be ^^'^^- ^ ^''°*- , ' . , ,. . , 1 • ir- I P. 3lEl.rot.21. good notwithstanding against the party himselt that 65. Co. 3. 59. makes them, and may be affirmed by the successor by i Inst. 45. a. I • r" 1 II Cro, Jac. 95. the receipt or the rent reserved thereupon. And note, this is a private act of parliament, that i Eliz. a private must in all cases be pleaded, and cannot be given in qI\ ^ 2 b. ' evidence. Cro. El. 874. 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 accustomably 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 inanurable, as hath been Of what things said, out of which a rent may be reserved : but some bTmade*^* ™"^ are of opinion, that tithes or tilings not manurable may Co. 5. 3. a. be demised for twenty-one years, because an action of debt will lie upon the contract : and so it was adjudged. More, 778. as a Serjeant at law informed me, in the case of the Xoura^ur^^r- precentor of Paul's about 17 Jac. and that the successor jeant le roj. shall have an action of debt upon this contract, and is good within the statute of 32 H. 8. cap. 28. And I See the case, f „ • , , *^ • , ^ Palmer, 104. nave seen a report or a case in the 20 Jac. in the Com- [ in ] mon Pleas, that it was so adjudged ; and see Ley's Rep. 76. That Yelverton, Williams and Tanfield were of Cro. Jac. 1 12. the .same opinion, that it was good for years (43). (43) By the statute 5 Geo. 3. c. 17. reciting, that it was 158 THE PARSON'S COUNSELLOR, [part i. 1 Inst. 45. 8. Concurrent leases. More, f>G. 1 Inst. 45. a. 1 Inst. 45. a. More, 953. Cro.Eliz. 141. Upon this statute, and the former, it has been held, that archbishops 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: but Sir Edward Coke excepts the concurrent leases, as to those other things. And Sir Edward Coke is of opinion, that like con- current leases may be made by deans, prebends, &,c. with confirmation : but some learned men are not satis- fied concerning concurrent leases, 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 : but a con- current lease for lives is not good, because upon such lease the lessor would have no remedy for his rent. 13Eliz. ca. 10. The restrictive law against leases cf deans, prebends, &c. [ 112] The next restrictive law is that of 13 Eliz. whereby it is enacted. That from thenceforth all leases, gifts, grants, feofl^ments, conveyances or estates to be made, had, done or suffered by the masters and fellows of any college, 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 doubtful whether the lessors thereinafter mentioned had power of leasing tithes, because there was no place to distrain for them, the same power of bringing actions of debt, which by a former law, 8 Ann. c. 14. s. 4. had been granted to lessors against tenants for life as to proper rents, was extended to sole and aggregate corporations, heads and fellows of colleges, and others having power of leasing, to recover rent reserved on tithes and incorporeal hereditaments, although leased for life or lives. Vide Toller on Tithes, 30. Parsons and vicars restrained CHAP. X.] THE PARSON'S COUNSELLOR. 159 hereditaments, being any part of the possessions of any such college, 8cc. or anywise 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, and that of 1 Eliz. before- Co. 5. u. b. mentioned, being in effect the same in substance, the iiCo. 73. b, 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 public good, had restrained other grants to him not warranted by this statute, though 1 Jac. cap. 3. had never been made. And here note, that as the parsons and vicars had not their power anywise enlarged by the statute of bj this law. 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 than for twenty-one years or three lives, with the qualifications above-men- tioned in the statutes, and such leases must be confirmed [ il3 ] by the patron and ordinary, because excepted in the enabling statute of 32 H. 8. before. And whereas after the making of this statute, heads of colleges, deans, prebends, Sec. might have made con- current leases, as well as bishops might: there is a proviso in the statute of 18 Eliz. That all leases then after to be made by any the isEHz. c. ii. aforesaid ecclesiastical, spiritual or collegiate persons, ^'asrbutwUWn or others, of any of their ecclesiastical, &c. lands, £cc. three years be- whereof any former lease for years is in being and not gndi'. "^ ^^"^^^ expired, surrendered or ended within three years next after the making of any such new lease, should be utterly void, frustrate, and of none effect, any law, &c. 160 Bishops not in this act. [ 114 ] Which bonds and covenants shall be void. THE PARSON'S COUNSELLOR, [paht t. By this proviso, it should seem, the parliament was of opinion, that concurrent leases might be made; but has by this proviso so restrained them that they cannot be made but within three years before the determina- tion of the former. But bishops are conceived not to be comprehended within this proviso ; for though the words are general enough, yet the particulars mentioned before the general words being of an inferior rank, the general words can- not draw in the more worthy. And there is a provision in this act of 18 Eliz. That all bonds and covenants then after made for the making or renewing any lease contrary to the intent of that statute, or of the statute of 13 Eliz. c. 10. should be utterly void. 13 Eliz. c. 20. Leases of par- sons to be void by non-re- sidence. These words within the [ ] are repealed by 14 Eliz. c. 11. Charging par- sonages, void. In the 13th year of Queen Elizabeth, there is an act of parliament made, whereby it is enacted. That no lease made after the 15th day of May following, of any benefice or ecclesiastical promotion with cure of any part thereof, and not being impropriated, should endure any longer, than while the lessor should be ordinarily resident and serving the cure of such benefice without absence above fourscore days in any one year; but that every such lease [so soon as it, or any part thereof, should come to any possession above forbidden, or] immediately upon such absence shall cease and be void, and the incumbent so offending shall, 8cc. lose one 3'ear's profit of his said benefice, to be distributed by the ordinary to the poor of the parish (44). And by the same statute it is further enacted. That all chargins: of such benefices with cure then after with any pension, or with any profit out of the same to be (44) By sy Geo. 3. c. 99. all the statutes which vacate leases by reason of non-residence are repealed. CHAP. X.] THE PARSON'S COUNSELLOR. 161 yielded or taken, other than rents reserved upon leases, should be void. But where any parson should be qualilied to have Where a parson ... , 1 • 1 I- I I 1 may demise, and two livings, he may demise the one or them, where he be non-resident. is not ordinarily resident, to his curate only, that shall there serve the cure. And such lease shall endure no [ "5 ] longer than during such curate's residence without ab- sence above forty days in any one year. And by 14 Eliz. it is enacted. That all leases, bonds, '* ^i. c. ii, , r I • 1 /» Leases, bonds promises and covenants, ot and concerning benehces and covenants, and ecclesiastical livings with cure to be made by any ^>^ ^'^ ^'<"'^- curate, shall be of no other or better force, validity or continuance, than if the same had been made by the beneficed person himself, that shall demise the same to such curate. And by the same statute it is enacted, That the re- Houses, incorpo. strictive statute of 13 Eliz. c. 10. before, shall not extend [f bTieatS!""' to any grant, assurance, or lease of any houses belong- ing to any the persons. Sec. in the said stat. of 13 El. nor to any grounds to any such houses appertaining, &c. in any city, borough, town corporate, or market town, or the suburbs of any of them; but that all such houses and grounds may be granted, demised and assured, as they might have been before the making of the said act, so always as such house be not the capital, or dwelling-house used for the habitation of the parsons, &c. nor have above ten acres to the same. Provided, that no lease be made by virtue of this act Not to lease in in reversion, nor without reserving the accustomed yearly' '"'^v*'''^'""- rent at least, nor for a longer term than forty years at most, charging the lessee with repairs, and no aliena- tion in fee, unless lands of as good yearly value be [ tl6 ] settled, &,c. in lieu thereof There is likewise another proviso in this act, that all Bonds,cont!acts, ' ' covenants, pro- bonds, contracts, promises and covenants, to be made mises, where to for the sufiering or permitting any person to enjoy an}' ''^ ^°"^' benefice or ecclesiastical promotion with cure, or to M 162 THE PARSON'S COUNSELLOR, [part i. take the profits or fruits thereof, other than such bonds and covenants as shall be made for assurance of any lease heretofore made, shall be of no other force than leases made by the same person. 18 Eliz. c. 11. And by another statute made in the 18th year of the same Queen Elizabeth it is enacted, That after com- plaint made to the ordinary, and sentence given upon any offence committed by the incumbent against the statute of 13 Eliz. c. 20. whereby he shall or ought to lose a yearns profit of his benefice, &,c. That then the ordinary within two months after such sentence and request made by the churchwardens of the parish, where, &c. or one of them, shall grant the sequestration of such profits to such inhabitant or inhabitants within the same parish, Sec. as to him shall seem meet, &c. Every parishion- And that upon default of the ordinary, it shall be vantage ^'^^ ^ ' ^^wful for every parishioner, &,c. to retain, 8tc. his tithes, and for the churchwardens to enter upon the glebe-land rents and duties of every such benefice to be employed to the use of the poor, &,c. until such time as sequestra- [ '17 ] tion shall be committed, by the ordinary, and then the churchwardens and parishioners to account to such to whom the sequestration shall be committed, who is to employ the whole profits according to the act, upon pain to forfeit the double value of the profits withholden, to be recovered in the ecclesiastical court by the poor of the parish. Having thus for the reader's satisfaction given him an abstract of all the statutes concerning the leases of ecclesiastics of all kinds, I shall briefly sum them all up, and proceed to take a view of such other statutes as the parsons, vicars, &c. are in any manner in danger of (45). (45) Et vide, 2 Bla. Com, 3l6. where these statutes are clearly and succinctly explained, or Part 2. Cha, 18. of this book. CHAP. X.] THE PARSON'S COUNSELLOR. 163 Upon tlie whole matter it appears, that archbishops what leases may and bishops may make leases for twenty-one years, or be made by bi- P ' , T -ii ^^ r • ^ r shops and arch- lor one, two or three Jives, with the quahhcations berore- bishops. mentioned without any confirmations at all: and they may make concurrent leases for twenty-one years, upon leases for twenty-one years from the making, with con- firmation of the dean and chapter, with such qualifica- tions as is aforesaid, though there be above three years in being of the old lease ac the time of the making the new ; and where the bishop has two chapters, there the concurrent lease must be confirmed by both chapters; unless it be as it was in the bishop of Waterford's case, which was thus: The bishop of Waterford had long ago the bishopric [ us ] of Lismore, and the chapter united to that of Water- ford: and in all grants made of the lands belonging to Co. 12. 71. a. Lismore that chapter only confirmed, and all grants made of the lands anciently belonging to the bishopric of Waterford, the chapter of Waterford only confirmed: and because the union was not extant, all the judges held the confirmation of the one in manner aforesaid was good; for it shall be intended, that it was so pro- vided for upon the consolidation: but otherwise all the judges held, that both chapters ought to have confirmed. Dy. 232, p. 26. But if a bishop had two chapters, and one of them u^j^^ surrenders, is suspended or dissolved, the confirmation of the other suffices. There is a case in Mr. Justice Harpur's Reports, M. 14&15EI. where the case is put, that a bishop made a lease dated 2 die Maij, confirmed the third day, and sealed the fourth day of May, and held a good lease and well confirmed. But a confirmation by the dean and chapter after the Harpur's Rep. death of the bishop, comes too late, by Cataline, South- * ' * coate and Windham against Wray. But if a bishop make several concurrent leases, and T. 6. El.Mo. 66. the latter is first confirmed, and after the first is con- firmed ; in this case the first lease shall be preferred, M 2 164 THE PARSON'S COUNSELLOR, [part i- [ H9] T. 8. Jac. Scac. Sir Edw. Di- mock's case. Rolls 1 . 477. h. 7. Cro.El. 141. More, 253. because nothing passes by the confirmation in point of interest, but a mere consent. If a bisliop make a grant to the king, which is con- firmed by the dean and chapter before the grant is inrolled; this is well enough. But note, that a bishop cannot make a concurrent lease for life, though upon a precedent lease for years ; nor a concurrent lease for years, where there is a lease for life in being. Leases by deans, prebends, col- leges, &c. 18 Eliz. c. 10. 13 Eliz. c. 10. [ 120 ] Concurrent leases, and who is to confirra leases. Deans, prebendaries, heads of colleges, masters of hospitals, and other ecclesiastical persons mentioned in the Stat, of 13 Eliz. c. 10. may make leases for twenty- one years, or any lesser number of years, or for one, two or three lives in possession, according to the qualifica- tions abovementioned ; and they may make concurrent leases as bishops may with confirmations; but they must be within three years of the determination of the former term by expiration, surrender, or otherwise : so that in this point the bishop has the advantage. And though the enabling statute of 32 H. 8. gives power to make leases, to hold from the making or day of the making; yet the restrictive statute of 13 Eliz. makes them void, if they be not made to hold from the making, and not from the day of the making; quod nota : but the leases of bishops and archbishops are not within that act; but the act of primo of the queen is, That all leases should be void, other than for twenty- one years or three lives from the time of the commence- ment. Note the different pennings (46). And forasmuch as all concurrent leases of a bishop, dean, prebend and archdeacon are to be confirmed, it is (46) Vide 2 Bla. Com. 319. Mr. Christian's note, by which it appears that Lord Mansfield decided that " from the day'' might either be inclusive or exclusive of the day. Pugh V. Duke of Leeds, Cowp. 714, CHAP. X.] THE PARSON'S COUNSELLOR. 165 convenient to let the reader know who is to confirm the 3 Rolls 481 same ; therefore for the reader's satisfaction, he is to P- «!• ■■• know that the leases of bishops and archbishops are 337" p. 42^'^^" to be confirmed by the dean and chapter, or deans and P'""'- -528. chapters, if there be several chapters. Ctf.^s! si.a. ' Grants made by a prebend, are to be confirmed by Who are to con- the bishop, dean and chapter. fi™ ^^^s"- The grants made by deans, are to be confirmed by the bishop and chapter. The grants made by the archdeacon, by the bishop, dean and chapter. The grants of parsons and vicars, with their patrons and ordinaries. And grants by the incumbent of a donative, by the patron alone. But if a parson make a lease, which is confirmed by the bishop only, who is patron, without the dean and chapter, which ougiit to have joined, it shall bind the successor during the lives of the bishop and incumbent, although the bishop be translated. But grants by parsons, vicars, prebends, &c. before induction or installations, 8vC. although confirmed, are not binding to the successor. But if the king be patron of a prebend, then the king and dean and chapter, and not the bishop, ought to confirm the grant. A lease made by a prebcndar}' parson, vicar, 8ic. [ 121 ] may be confirmed for part of the term, if it be for D^er* 72. a. b. years, that is, confirm the land to the lessee for so many Cro. El. 472. years of the term ; but if the term be confirmed for part 338. K ' of the term, it were absurd and repugnant, and should ^^^- Lit. §524. be good for the whole term : and as such lease may be confirmed for part of the term, so it may be for part of the land. If a parson, 8cc. make a grant, which is confirmed by 1 RoIIs 476. the patron and ordinary, and after be deprived; yet the *• '» 2« grant is good. Ibid. n. 4. Cro. Car. 582. 1^" THE PARSON'S COUNSELLOR, [part i. 1 Rolls 479. n.i. -^ husband seised in the right of his wife of an ad- vowson, the parson makes a lease warranted by the statutes before-mentioned, and the bishop and husband confirm it; this shall not bind the right of the wife but during the husband's life, but that the successor after his death will avoid it, that comes in by the presentation of the wife. lb. 480. n. 2, 3. go if tenant in tail, being patron, confirm the grant of the parson with the bishop, this shall not bind the incumbent of the issue in tail. If an usurper present, and confirm the lease of his incumbent with the bishop, and after is removed by quare impedit, 8cc. this shall not bind the clerk of the true patron. If the true patron grant the next avoidance, and then 1 Rolls 480. confirm the grant of the parson, who after dies; the incumbent presented b}'^ him that had the next avoid- Co. 1 Inst. 46. a. i 1 1 • i i i i i • i ance shall avoid the lease, and his very entry upon the r j2i2 ] lessee avoids the lease for ever. do. El. 430. If a parson makes a lease to a patron, which is con- Co. 5. 15. a. firmed by the bishop, this is not good ; but if the patron grants it over, it amounts to a confirmation. 1 Roll. 481. p. 1. If .^ prebend, parson or vicar make a lease, and the bishop being patron, confirms it without the dean and chapter; yet this shall bind the bishop and all the pre- bends, parsons, &c. which he shall collate. If a parson had made a lease for above twenty-one years before the statutes of 13 and 14 Eliz. which had been confirmed after; this had been good, and not within the restriction of those laws. 1 Leon. 233. If a parson leases where there are two patrons, both Quaere. , ^ i i i ought to confirm, as should seem. Cro. Car. 38. If the patron and a succeeding bishop confirm the lease of the parson, it is good enough. Qusre ' ^' " ' A prebend made a lease, reciting that it was with the consent of the bishop, who signed and sealed the lease to the lessee, but was no party to the deed, quaere if good. Cro. El. 18. CHAP. X.] THE PARSON'S COUNSELLOR. 167 And having said thus much of confirmations, let us see what leases a parson or vicar may make at this day, considering all the above-mentioned statutes. And first, it is to be observed, that at and by the Leases by par- 1 • • 1 .^ 1 ..1 sons and vicars, common law a parson or vicar might have granted or charged his glebe in fee-simple, with the confirmation of the patron and bishop ; but being excepted out of the enabling statute of 32 H. 8. he could never make (. i^s ] 32 H. 8 c 28 any lease or grant to bind their successors, without such confirmation; then by the statute of 13 Eliz. parsons i3Elk. c. lO. and vicars are restrained : so that they cannot grant but for twenty-one years, or three lives from the making of such lease, and not from the da}' of the making, as is before observed ; and these leases and grants must be with the confirmation of the patron and ordinary, with all the qualifications expressed in the beginning of this chapter. And it should seem, they may make concurrent leases, as deans, prebends, &,c. may do within three years of the end of the former leases. It has been a question, whether a parson or vicar at this day can make any lease at all to bind his successor? For by the statute of 13 Eliz. cap. 20. it is enacted, 13 El. cap. 20. That leases of parsons, vicars, &c. that have cure of souls, shall endure no longer than they shall be ordinarily resident and serve the cure ; and that if such parson, &,c. shall be absent from their cure above eighty days in one year, that tlien such lease shall cease and be void. Now when a parson dies, and eighty days incur, and this being a law for the advancement of religion and hospitality, to avoid dilapidations, it shall have an equitable construction for the preferring these ends: therefore some have held, that the death of the parson, vicar, &c. after eighty days have incurred from their r 124 ] deaths, shall make all their leases and grants void, though never so sufficiently confirmed ; and rely very 168 THE PARSON'S COUNSELLOR, [part i. Parson leases, which is con- firmed, and dies. Cro. El. 127. More, 270. Bayley v. Munnes, T. 24 Car. 2. B. R. Quaere. Dy. 372. p. II, much upon the preamble ot" the statute, which begins, That the livings appointed for ecclesiastical ministers, may not b}' corrupt and indirect dealings be transferred to other uses; be it enacted, &c. But by these leases it is apparent the profits are converted to other uses, &c. But others have held the contrary opinion, because such absence is not voluntar}', but by the act of God, and regularly these cannot be said absent that are not in esse. And though Croke report Mott and Hale's case ad- judged in point, that their leases are void by death ; yet More reporting the same case, says. As to the matter in law the judges were divided two against two, and that the judgment was given upon a misrecital of the statute. And this point, as I am informed, came lately in question in the King's Bench, and was adjudged, that death doth not avoid such leases. Ideo quaere inde. When parsons leases shall be void by uon-rc- sidence. There is a qutere in Dyer, whether such leases shall be void upon eighty days absence ab initio, or but from the time of absence by eighty days ; but it seems to me with some clearness, that it shall only be void from eighty days absence, and not ab initio. For first, the words of the statute are, That such lease shall endure no longer than the lessor shall be ordinarily resident, &c. So that till then it is to endure; and the Dy. 177. p. 31. statute closes, That upon such absence the term shall Quare. cease, which it could not do, if it had not a being be- fore; for a thing cannot cease to be, that has not been. [ "25 ] Whether void But another quisre may be started in this case, upon against t e par- ^j^^ rcason in Liucolu collcee case, whether such lease son lumsell. _ _ . Co.3.59.b.60.a. shall be void against the present incumbent that made it, or only against his successors.' But it seems to me with some clearness, that the intent of the makers of this act was to make such lease void against the lessor himself upon such absence : for, And there has been some latf opinions, as I have hcaitl, CHAP. X.] THE PARSON'S COUNSELLOR. 169 as before is said, the statute says, it shall endure no against the re- longer, which is a term of limitation, and that im- solution in Dn- , , , , , , 1 11 1 coin college case. mediately upon such absence the lease shall cease and be void; and it cannot cease immediately upon the absence, and yet be good during the life of the in- cumbent. But in the case of Revel v. Hart, H. 43 Eliz. B. R. Dy.372.p. ii. the court held the contrary, as my reporter says. Ideo ^^^'^^' quaere. If any parson, vicar, &c. be suspended, inhibited, or Dobbins v. Ger- disabled to serve the cure by the space of eighty days in b.'^r,^" a year; this shall not make such lease void, for the not serving the cure must be voluntary. And it has been held, that if a parson be resident, and do not serve the cure, or serve the cure and be absent by eighty daj's, that in both these cases it will make such lease void. Though this statute upon eighty da3's absence makes [ 126 ] such lease void made by parsons and vicars, and says nothing of confirmation; yet a confirmation of the patron and ordinary in this case seems not to amend the matter ; for if the lease be void, the confirmation is of no avail (47). At the common law, if a parson, vicar, &,c. had made St.ssH. s.cii. a lease and resigned, the next incumbent might have and resigns. entered immediately upon the lessee. But by a statute made in the 28th year of H. 8. The lessee may hold on his term for six years, if the parson that made his lease so long live, and the term were made for so long lime; but upon such lease there must be so much rent reserved within forty shillings as such (47) The reasoning upon this subject will no longer avail ; the statute 43 G. 3. and subsequently the 5" Geo. 3. c. 99. having, as before observed, repealed all those statutes which vacate leases by reason of non-residence. 170 THE PARSONS COUNSELLOR, [part i. benefice is valued at in the king's book. See the statute at large. And by the same statute, If a parson make a lease and resign and dies, the tenant shall hold out his lease for the year that was commenced at the time of his death, if the term were to have had so long continuance, if the parson had not died. But this seems only of such lands as are ploughed ; for the succeeding parson is to have the parsonage- house and glebe, which is not sowed within a month after he is inducted, allowing a reasonable deduction for the rent reserved upon such lease. [ 127 ] But in both cases the lessee must pay the reserved rent to the succeeding incumbent, who is enabled to sue or distrain for the same. And such lease must be in writing under hand and seal, and not by parol. 13 Eliz. c. 20. But it should seem the statute of 13 Eliz. before has made this law of none effect. And having now done with tliese statutes as to leases, let us next consider what bonds, covenants, promises, 18 Eliz. c. 11. 8cc. are void within the statute of 18 Eliz. before-men- tioned. Hob. 269. Covenants, bonds, Sec. made for the enjoying houses Covenants, withlii cities, corporations, 8cc. are not void within this bonds, winch . . good. law; for this law makes no bonds, covenants, &c. void, which are not against the intent of this statute and the statute of 13 Eliz. cap. 10. but leases of houses and lands in cities, &c. b}^ the statute of 14 Eliz. cap. 11. are exempted out of 13 Eliz. cap. 10. and are not within the statute of 18 Eliz. before. -More, 641. A paison made a bond to resign upon request, and afterwards a lease to his patron of part of the glebe for twenty-one years : in an action brought upon this bond, the incumbent pleaded the statute of 18 Eliz. and averred, that this bond was made to secure this CHAP, X.] THE PARSON'S COUNSELLOR. 171 lease, and to compel the incumbent to reside, and ad- judged a good plea, and an apt averment (48). A parson made a lease, and in the lease covenanted, cro. El. 489. not to be absent by the space of eighty days in any one Noy, 66. year, and gave bond for the performance, and after be- came non-resident for eighty days ; and resolved, that the bonds and covenants were both void. A parson made a lease, and covenanted neither to Oliver's case, J ' ., . J ' 1,11 M.4.Jac.B.R. do, or sutler to be done, any matter whereby the lease should become void, and after became non-resident by the space of eighty days in a year; and this was held a good covenant; and a covenant, that the parson should be resident, was held not to be against this law, by Popham, Tanfield and Clench, against Williams. Ideo Quaere. quaere. And having now done with leases to be made by Leases of col- ecclesiastics of every kind, and having therein exceeded ^f^^^' ""^' ^'' my bounds beyond parsons and vicars to all other ecclesiastics, since the leases of colleges and hospitals come in my way, I will give the reader what satisfac- tion I can concerning them: and as to them, It is to be observed, that they are not comprehended in the enabling statute of 32 H. 8. nor in any other statute that I find, till the restrictive statute of 13 Eliz. whereby (amongst the rest) the masters and fellows of y^ ^^^^^ ^ jq_ colleges, and the masters and guardians of hospitals, are disabled to make any grants or conveyances of anj' of their possessions, other than for twenty-one years, or three lives, from the making of such lease, and not p .og -i from the day of the date, or from the date, as has been said: and this must be of lands usually demised, and the accustomed rent, or more, must be reserved with all (48) General bonds of resignation, as in this case, are now decided to be illegal. Bishop of London v. Ffytche, 1 Bro. Cha. Ca. 96. 172 THE PARSON'S COUNSELLOR, [part i. the other quaUfications mentioned in the beginning of this chapter. Stat. 18 Eliz. But there is a restriction upon colleges by the statute ^^' ' of 18 EHz. that upon all college leases, a third part of the ancient rent shall be reserved in wheat and malt, after the rate of 6s. and 8d. a quarter of wheat, and 5s. a quarter of malt, to be delivered at the colleges ; and in default of the delivery to pay for the wheat and barley, after the rate the best wheat and malt shall be sold the next market-day before the rent should liave been paid, and for default of such reservation the lease to be void ; and the markets that are to set the prices are, Oxford for Oxford, Cambridge for Cambridge, Windsor for Eaton, Winchester for Winchester. iREliz. c. II. And by the statute of 18 Eliz. they are restrained to make any concurrent leases till within three years of the end of the former terms that are in being (49). (49) " The memory of Sir Thomas Smith (says Dr. Kennet) is highly to be honoured for promoting this act, which provideth that a third part of the rent be reserved in corn, payable either in kind or money^ after the rate of the best prices in the market. For if a certain rate thereof had been fixed in money instead of corn, it would have been highly prejudicial to the colleges, the value of money abat- ing as the value of land and of the produce thereof advanceth. This worthy knight is said to have been engaged in this service by the advice of Mr. Henry Robinson, soon after provost of Queen's college in Oxford, and from that station advanced to the see of Carlisle." Ken. Par. Antiq. 605. The statute 39 and 40 Geo. 3. c. 41. recites, that whereas doubts have arisen whether archbishops, bishops, masters and fellows of colleges, deans and chapters of cathedral and collegiate churches, masters and guardians of hospitals, and others having any spiritual or ecclesiastical living or pro- motion, who are by several acts passed in the reigns of their late majesties King Henry the Eighth and Queen Elizabeth, restrained from granting any leases of their estates whereon the accustomed yearly rent is not reserved, can lawfully CHAP. X.] THE PARSON'S COUNSELLOR. 173 grant separate leases of parts of lands or tenements which have usually been demised by one lease and under one rent, reserving on the several parts so demised less than the rent anciently reserved on the demise of the whole, though the aggregate amount of the rents so reserved on such separate demises should be equal to or exceed the amount of the annual accustomed rent for the whole : and whereas many such separate leases have been granted, and great incon- venience may arise to persons claiming under such leases, if such leases should not be deemed valid and effectual, in case the amount of the rent anciently reserved on demises of the whole shall appear to have been reserved on the separate demises of the different parts ; and the power of dividing tenements anciently so demised in one parcel at one rent, may in many cases tend to improve the value of the estates belonging to such ecclesiastical persons and bodies re- spectively, as well as to the benefit of their lessees and the public : it is therefore enacted, that where any honours, castles, manors, messuages, lands, tithes, tenements or other hereditaments, being parcel of the possessions of any arch- bishop, bishop, master and fellows, dean and chapter, master or guardian of any hospital, or any other persons, or body or bodies politic or corporate, having any spiritual or eccle- siastical living or promotion, and having been anciently or accustomably demised by one lease under one rent, or divers rents issuing out of the whole, now are or shall hereafter be demised by several leases to one or several persons under an apportioned or several rents, or where a part only of such honours, manors, messuages, lands, tithes, tenements or other hereditaments as last mentioned, are or shall be demised by a separate lease or leases, under a less rent or less rents than was or were accustomably reserved for the whole by such former lease, and the residue thereof is or shall be retained in the possession or occupation of the lessor or lessors, the several and the distinct rents reserved on the separate demises of the several specific parts thereof, comprised in and de- mised by such several leases, shall be deemed and taken to be the ancient and accustomed rents for such specific parts respectively, s. 1. But where the whole of any such honours, castles, manors, messuages, lands, tithes, tenements or other hereditaments 174 THE PARSON'S COUNSELLOR. [part i. accustomably demised by one lease shall be demised in parts by several leases after the passing of this act, the aggregate amount of the several rents which shall be reserved by such separate leases be not less than the old accustomed rent or rents theretofore reserved by such entire lease ; and that where a part only shall be so demised by any such separate lease, and the residue shall be retained in the possession of the lessor or lessors, the rent or rents to be reserved by such separate lease or leases shall not be less in proportion to the fine or fines to be received on granting such lease or leases than the rent or rents accustomed to be reserved for the whole of the said premises was in proportion to the fine received on granting the last entire lease, s. 3. Provided that no greater proportion of the accustomed rent be reserved by any separate lease hereby confirmed or allowed to be granted than the part of the premises thereby severally demised will reasonably bear and afford a com- petent security for, s. 4. Provided also, that where any specific thing incapable of division or appointment shall have been reserved or made payable to the lessor or lessors, his or their heirs or successors, the same may be wholly reserved and made payable out of a competent part of such lands or tenements demised by any such several lease as aforesaid, s. 5. But nothing herein contained shall extend to authorise or confirm any lease whereon no annual rent is or shall be re- served to the lessor or lessors, his or their successors or assigns, or to authorise the reservation of any rent on any such lease made by any master, &c. of any college in the universities, &c. in any other manner than is required by 18 Eliz. s. 6, 7. • Where any such accustomably entire leases as aforesaid shall have usually contained covenants on the part of the lessee or lessees for the payment or delivery, or shall have in any other manner subjected or charged such lessee or lessees to or with the payment or delivery of any sum or sums of money, stipend, augmentation or other thing, to or for the use of any vicar, curate, schoolmaster, or other person or persons other than and besides the lessor or lessors, and his or their heirs and successors, all or any such leases as shall hereafter be granted of the same lands or tenements in CHAP. X,] THE PARSON'S COUNSELLOR. 176 I shall now shew the reader what things are demisable within these several statutes, and what reservations are good, and in what case the acceptance of rent by the ^'hat leases successor will make a lease good, that was voidable ' within these laws, and the several qualifications men- tioned in the beginning of this chapter. One Small being possessed of the manor of Padding- [ ^^O ] ton, by a lease from a bishop for a term of years, the M.4Jac. b!r. bishop made a lease to another for three lives, and be- Formerm being, fore livery the tenant surrendered his former term ; and it was held that the surrender was* made in due time, and the second lease good. A prebend had usually been leased (excepting the Cro. Jac. 458. ,/ , 1 , . a u 1 1 1 3 Bulster. 290. crabtrees,) and that the prebendary make a new lease Moreinthencw without excepting the crabtrees, reservino; the ancient leases, than in . . y ^ . 1 1 • 1 the old. rent, witli other due circumstances; and this lease was held void against the successor, by reason of the adding of the crabtrees. It hath been adjudged, that a bishop, dean, Sec can- Co. 5 i5. a. not grant the next avoidance of an advowson, nor any ^^ext avoidance o . ' .' not demisable. rent-charge out of the possessions of the church; but Co. lO. 60. b. the same is void within the restrictive acts before- mentioned, though these cannot be said any of the pos- sessions of their church. And it hath been held, that where a bishop demised Davenant v. r T 1 1 T I Evesq. Sanimk a rectory tor lives, and covenanted to discharge same rl 24 Car. 2. harmless, and indemnify the lessee, &,c. from all pensions, ^■^•. 1 • J- J r 11 .1 r 2 Levins, 6&. procurations, subsidies, and irom all other payments or any sum of money, demands and duties whatsoever, severalty as aforesaid, shall and may lawfully provide for the future payment and delivery of such sura or suras of money, stipends, augmentations or other things by and out of any part or parts of the lands or tenements accustomably charged therewith, not being of less annual value than three times the amount of the payment so to be charged thereon, ex- clusive of the proportion of rent or other annual payments to be reserved to the lessor or lessors, s. 8. 176 THE PARSON'S COUNSELLOR, [part r. [ 131 ] 2 Levins, G8. 3 Keeble, 69, Co. 10. 61. b. T. 30 Eliz. Bolton's case, 10 Co. 60. Co. ib. b. ordinary or extraordinary, which shall be due and issuing out of the premises ; that this covenant would not bind the successor, unless it had been in the ancient leases. And the Lord Chief Justice Hale was of opinion, that such covenant, though it had been in former leases, should not bind the successor for the royal aid, or any new charge by act of parliament. But a bishop may grant an ancient office with the ancient fee (if it be a necessary office, for the life of the officer:) but the bishops cannot grant such office to two, or in reversion. And a bishop cannot grant an annuity, pro consilio impenso et impendendo, to bind his successor, though it be confirmed by the dean and chapter. And it hath been resolved, tliat a bisiiop of late erection may grant an ofiice of necessity to one in possession for life, with a reasonable fee. But these grants must be all confirmed by the dean and chapter, because they are not good within the statute of 32 H. 8. Co. 10. 62. a. Cro. Car. 555. Evesq. Chich. V. Freed land, Ley's Rep. 72. [ 132] Colljns and Jones's case, Ley, 80. Co. 5. 15. a. Charges void. But where offices have anciently been granted ia reversion, they may still be granted in reversion with confirmation. If a bishop grant an ancient ofiice with the ancient fee and more, and the grant be entire, (as where the ancient fee was five marks, and the new five pounds,) it is void for all. But if it be several, (as five marks, and pasture for two horses,) it is good for the ancient fee, and void for the other, per Hutton and Yelvcrton V. Crook and Harvey. If a copyhold escheator be forfeited, the bishop ma}- grant it in fee by copy of court-roll, notwithstanding the statute of 1 Eliz. It was also resolved, that where an archdeacon made a lease for three lives, warranted by the statutes before- mentioned, and the lessee granted a rent-charge for an CHAP. X.] THE PARSON'S COUNSELLOR. 177 hundred years, which was confirmed by the bishop, dean and chapter; that notwithstanding the same was void against the successor within be statute ol" 13 Ehz. cap. 10. If a writ of annuity should be brought against a par- Co. 5. 14. b. son, &c. pretending the same due by prescription; and although the parson pray in aid of the patron and ordinary, and upon a plea pleaded by them, the plaintiff obtains verdict and judgment, and all this by practice and fraud to charge the glebe, it is void against the successor: for these statutes being made for the benefit of the church, advance of religion and hospitality, and to avoid dilapidations, shall always have a favourable 19 Ass, p. 9. construction. It is regularly true, that where the wife, issue in tail, Acceptance of or successor, accepts the rent after the death of the bus- ^1,311 bind. band, tenant in tail, or a predecessor, upon a void lease made by the husband, tenant in tail, or predecessor, that such acceptance will not affirm the lease. But this rule must be understood of such a lease as [ 133 ] is void ipso facto, without entry or any other ceremony; and therefore if a parson, vicar or prebend, 8cc. make a Hetley, 88. lease not warrantable by the statutes for twentv-one Co. 3. r.5. a. J . , J . , -^ ,, 33 H. 6. 3 & 4. years, rendering rent, and dies; here no acceptance or n e. 3. Fitz. rent by the successor, Sec. will affirm this lease, because Abbot, 9. . . 8 H. 5. 19. the same was void without entry or other ceremony. But if a parson, vicar or prebend, make a lease not warrantable within the before-mentioned statutes for life or lives, reserving rent, and die, and the successor before entry accept tlie rent; this lease shall bind him for the time: for this being an estate of freehold, could not be void before entry. But if a bishop, abbot or prior, which have the in- p... 339. p. 42. heritance in fee-simple in them, make a lease for lives, F. N. B. 50. c. or years not warranted by the statutes before-mentioned, not being absolutely void by their deaths; but only voidable by the entry of the successor, if the successor N 178 THE PARSON'S COUNSELLOR. [part r. accept the rent before entry, be it for lives or years, he affirms the lease for his life. 1 Rolls, 476. d. If a bishop make a lease not warranted by the statutes, rendering rent, and die, and his successor appoints his bailiff to collect his rents of that manor, 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. [ 134 ] So if a parson lease for life not warranted nor con- b\'^o ^' ^"'^''' firmed, reserving rent, if his successor receive fealty of Dy. 239. p. 42. his tenant upon this lease, he has thereby affirmed the 2 H. 4. 2. a. lease for his time : the like it will be, if the successor bring an action of v/aste. Cro. Jac. 273. But if a bishop make a lease of tithes or other things not manurable, for life or lives, rendering 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; I must leave it a Qimre. quaere, not finding that point any where resolved. I having now held the reader long upon this subject, I shall now leave them, and proceed to examine, what leases or farms they may with safety take, or not take. St.2iH.8. C.13. By a statute made in the twenty-first year of King musfnot fake Henry the Eighth, it is amongst other things enacted, farms. That no spiritual person shall in his own name, or in the name of any other, take to farm any manors, 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, tin, hides, leather, tallow, fish, wool, wood, or any manner of victuals or merchandizes, to sell again for gain, upon pain to forfeit the treble value of things so bought. [ 135 ] But a spiritual person may buy such things for his Where he may, q^j, use, 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 maintenance of his family. CHAP. X.] THE PARSONS COUNSELLOR. |79 And it is further enacted by the same statute, Tliat shall not farm no spiritual person beneficed with cure of souls, shall another's par- farm the parsonage or vicarage of another to fake any ° rent or profit out of such farm, upon the penalty of forty shillings a week, and ten times the value of the rent, or profit he shall take out of his farm. And it is further enacted by the same statute, That no Must not keep a spiritual person shall have or keep by himself, or any lirew iiouse. 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 in- Penalties, how former, to be recovered in any of his majesty's courts ^° ^'^ recovered. of record at Westminster, by action of debt, bill, plaint, or information, wherein no essoin, protection, or wager of law is to be admitted, &c. (50). M. 4 Car. 1 Scaccario, it was adjudged, that a spiritual Cragge v. person, not beneficed, was not within this statute. ^^^Pl^^' t' > ' M. 4 Car. (50) By Stat. 57 G. 3. c gg. (given at length in Part 1. Chap. 7. in notis). So much of the acts of 21 Henry 8. c. 1. and 28 H. 8. c. 13. of the acts of Queen Elizabeth, 13 El. c. 20. 14 El. c. 11. 18 Eliz. c. U. 43 El. c. Q. and of the act 3 Car. 1. c. 4. as relates to spiritual persons holding farms, and to leases of benefices and livings, and to buying and selling, and to residence of spiritual persons on their benefices, as well as some other acts therein mentioned, are repealed ; and by that statute it is enacted, that no spiritual person holding any preferment shall take to farm lands ex- ceeding in amount eighty acres without the consent of the bishop of the diocese, under the penalty of forty shillings per annum for each acre. s. 2. Nor shall any spiritual person holding any preferment carry on any trade or dealing, on pain of forfeiting the value of the goods bought to sell again, the one half to go to the crown, the other to him who shall sue for the same, s. 3. But he may buy and sell things proper for the occupation of his glebe or other land which may be lawfully held by him. s. 4. N 2 180 THE PARSON'S COUNSELLOR, [part t. 5 Eliz. cap. 5. Where lie may license the eat- iii"; of flesh. r 136] Penalty, it" needless. Sheep. Stat. 25 H. cap. 13. Incontinence. [137 ] De Clericis, cap. 18, 19. By the statute of 5 Eliz. there is " authority given to the bishop of the diocess, parson, vicar, or curate of the parish, to hcense any sick person to eat flesh during his sickness; and if his sickness continue above eight days after the granting of such license, then the same is to be registered in the church book, &c. and that license to endure during the sickness, and no longer. " And if any parson, vicar, or curate, grant any license to any person or persons, other than such as evidently appears to have need thereof b}' reason of sickness, the parson, vicar, or curate, that granted such license, shall forfeit five marks for every such license, and the license to be void." In the 25th year of Henry the Eighth 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 are several acts of parliament for punishing incontinent priests, which though since the blessed re- formation (I do not mean the last pretended reforma- tion, but that in the time of Edward the Sixth and Queen Elizabeth) are become obsolete 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 marriages of priests, which gave the occasion of these laws. Bellarmin in his disputations endeavours to make the single life of priests to be jure divino; but if not so, yet he goes about to prove that it has been enjoined by canons as high as the apostles' time : and to that pur- pose vouches the canons of the apostles (which tiiough they may be ancient, yet no rational man that peruses them will believe they were made by the apostles, or CHAP. X.] THE PARSONS COUNSELLOR. ' 181 very near their time) in wbieli I must confess I find a canon that by implication forbids priests to marry, but not married men to be priests ; and 'tis to this effect : Ex his qui coehbes in clerum pervenerunt, jubemus, ut Canon 25. lectores tautum et cantores (si velint) nuptias contra- hant. But if he had looked a little back in those canons, he would have found another manner of prohibition in these words : Episcopus aut presbyter, aut diaconus, Canon 5. 1. . • , .. . . ■■ Canons against uxoreni suam praetextu religionis non abjicito: si ab- the marriage of jicit, segregatora communione, si perseverat, deponitur. priests. But however it cannot be denied, but there were an- cient canons against the marriage of priests; but those only forbid priests to marry, but did not restrain married men from being priests : and so it continued for many hundred years after Christ's time, and for some time they might have married* with the license of the * Condi. An- bishop ; but never received or put in practice in Eng- ^ '' ' land, though practised in Italy, France, &c. But the priests here married, till Anselme, archbishop of Can- terbury, a Burgundian, a powerful and busy prelate, in a synod or national council held at Westminster, made [ J38 ] . . , , . . , , HoUingshead, a severe canon agamst it; but he meeting with an ob- 30. b.'io. slinate clergy, that Vv^ere 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 year of that king, v.'here he made more severe canons against the married clergy in the presence of the king and nobility, Ibid. 34. b. 10. to give them greater authority ; which he prosecuted with great zeal, but did not live to effect what he desired. I do not find that his successor, Rodolphus, troubled himself much in this concern of the eight years that he governed the church of Canterbury ; but his successor, William Corbet, followed the steps of Anselme, who for this, and his other good works, was canonized a saint at Rome: and in the year 1126, called a convo- i^fi THE PARSON'S COUNSELLOR, [part t. cation at Westminster against the mairied priests, wherein one John de Crenia, or Cremensis, the Pope's legate, sent to manage this business, being a learned man, made an eloquent oration in commendation of chastit}' and a single life, and inveighed violently Hovedonin against the married clergy; and as divers authors of ?■ ''i^It'. cood credit affirm, the sjreat orator was the same nis:ht Speed, 461. a. 15 . ' ~ . o &:c. taken in bed with a woman, which made him to return with shame enough. Howsoever, as bishop Godwyn tells us, that in that convocation the canons were re- newed against the married clergy ; but the archbishop [ 139 ] finding himself too weak to deal with so stubborn a Catal'*c1^lBish ^^^^'SJ' Commended the case of this business to the king, 83. Mat. Paris, wlio takinc; advantao-e of the canons, squeezed some T "YY . with Hm-'eden Hion^y out of the married clergy by way of commuta- and sajs, tion. " Quod ipse cum die ilia Corpus Christi consecrasset post vesperam fuit iii meritricio interceptus: Res ipsa notissima negari non potest, duui magnum decus id summum dedecus com- mutavit. I find no more of this matter, till after the death both of this archbishop and Henry I. But I find there Goodwin, 84. was a Convocation held at London, December 13, 1 1 38, Hbt^'av^'^*^' ^y ^^^ command of Albert, cardinal, bishop of Hostia, where this matter was again violently prosecuted ; and I find no more after of it, till in a convocation or council held under Richard Wethershead, archbishop Lindw. si qui of Canterbury, 1229, in which it is decreed, " qui autem ^'^"*^'- in subdiaconatu vel supra ad matrimonium convolave- rint, mulieres renitentes et invitas relinquant." BuL it should seem, notwithstanding all this perse- cution, that for some years after some married men held their livings: for in a synod or council held by Otho, the Pope's legate, at St. PauFs, in London, in Cap. Deuxora- t^i^ y^'-^^' 1237, there is a canon to this effect: " Inno- tis k beneiiciis tuit nobis, pluribus referentibus fide dignis, quod multi amovendis. .... ... . propria,' saiutis immemores, matrimoniis contractis, clandestine, retinerc cum uxoribus ecclesias, et eccle- siastica heneficia adipisci dc novo, el pronioveri ad CHAP. X.] THE PARSON'S COUNSELLOR. 183 sacros ordiues contra statiita sacrorum canonum, non formidant," &c. And then proceeds : "quod si repertum fuerit aliquos [ 140 ] taliter contraxisse, ab ecclesiis et ecclesiasticis beneficiis (quibus tarn eos quam quoslibet alios uxoratos fore de- cernimus ipso jure privatos) removeantur omnino," See This nail being thus at length driven to the head, the secular clerg}' lay about three hundred years under this bondage, and though, if they would be at the cost, they might have dispensations to keep concubines; yet, for the credit of hi^ holiness, there was a great care taken they should not do it publicly or scandalously. To which pur[)Ose there is a canon in the same council I last mentioned, to this effect : " statuimus et statuendo Cap. de concu- praecipimus, et ubi clerici, et maxime in sacris ordinibus *""'* clencomm . . • • 1 -1 • 1- • 1 • removendis. constituti, qui m doinibus suis et alienis detment publice * Nota. concubinas, eas illas vel alias de catero nullatenus de- Canons against concubines. tenturi, ' &,c. There was another canon much like this, made in another council held under Stephen Langton, arch- bishop of Canterbury, at Oxford, not long before, in the year 1222, to this effect: " quod clerici beneficiati Cap. clericalb. aut in sacris ordinibus constituti in hospitiis suis publice * ^'^'*' tenere concubinas non audeant, nee etiam alibi cum scandalo accessum publicum non habeant ad cas." So that it appears clearly by these canons, that clerks were not in those days positively and absolutely for- bidden to keep concubines: but it must not be done, publice nee cum scandalo, nor must they have publicum accessum. And it appears by the centum gravamina that were r ui ] presented to the Pope about the year 1521, by the l^'spcnsatioas \^ . , . ,.,.'' for concubinage, German princes, that it was one or the grievances of hibt. H. bv my that nation, that the Pope permitted clerks, reliuious, ^'"'^ Cherbury, . " p. l.'il. and secular persons to live publicly with their harlots Art. 74. and get children; and that in most places the bishops '^'■'•'^*- and their officials not only tolerated concubinage upon amovendis, ubi supra 184 THE PARSON'S COUNSELLOR, [part i. paying money in the more dissolute sort of monks; but also exacted it of the most continent, saying, "it was then at tlueir choice, whether they would have them or no." Calvin's Inst. So upon the whole matter, it seems, it was no offence 1.4. c. 12. §23. j„ ,^ clerg3'man, that had a dispensation to keep a con- cubine privately in a nook without scandal, and go to her in the dark; but to keep a wife of his own was a sin against the Holy Ghost, he must be deprived, he must be deposed. Dyer, 133. p. 1. And therefore he cannot blame the German and Cap. de uxora- F'encli lait}', that they were so solicitous in the council tis a beneficiis of Trent to have their priests married, being loath (as should seem) to trust their wives and daughters at con- fession with priests that had not wives of their own. And it was no less a religious than prudent expression of Pope Pius II. * that though there were many weighty reasons why priests should be restrained from marriage, yet the reasons for restoring them their wives were the more weighty.' [ 142 ] I would not have the reader to think, that I speak this to reproach the church of Rome with this matter, as any of the allowed doctrines of that church ; for I know there are many very severe canons against the incontinence of priests ; and not so only, but that for- bids them to keep any women in their houses, but mothers, sisters, and other near relations, to avoid scandal and temptations. But 1 write this, to shew the corruption of the court of Rome; for whilst the Pope has the power to dispense with the canons of the church, money will make the best ineffectual there. 1 H. 7. cap. 4. Having given the reader this historical account con- Statiite, Uiat cernine; the restraint of the marriage of priests, and the the Dishops ■•• r -u • 1 II I should imprison succcss of It, I Will m the ncxt puicc shcw what acts of priests tor m- parliament iiave been made rclatimr to this matter, and continence. ' . , ^ which are m force al this day. CHAP. X.] THE PARSON'S COUNSELLOR. 185 In the first year of H. 7. there was an act made, vid. Bro. Abr. " That it shall be lawful to all archbishops and bishops, Tit. Cost. lo. and other ordinaries, having episcopal jurisdiction, to asTo tbe custom punish and chastise such priests and clerks, and reli- of London. gious men, being within the bounds of their jurisdiction, that should be convicted before them, by examination and other lawful proofs requisite by the law of the church, of avowtry, fornication, and incest, or any other fleshly incontinency, by committing them to ward and prison, there to abide for such time as shall be thought to their discretions convenient for the quality and quantity of their trespass. And that none of the [ 143 ] said archbishops, &c. be thereof charofeable, of, to, or It seems a canon . ' -. , r 1 • . would notjusti- upon any action, or false or wrongrul miprisonments, fy an imprison- but that they be utterly thereof discharged in any of the ™®°^- cases aforesaid, by virtue of this act." This law, for ought I know, stands still in force : but 31 h. 8. c. 14. there was a severe law made in the 31st of H. 8. Made felony to whereby it was made " felony for a priest carnally to „iyes. use a woman, to whom he had been married or con- tracted ; or if he kept company or familiarity with her, or if any priest kept a concubine, as by paying for her board, maintaining her with money, or other gifts or means, to the evil example of others, he should forfeit all his goods, chattels, and spiritual promotions, and be put in prison for the first offence, and the second of- fence to be felony." But this seeming too severe, was the next year re- 33 h s c. 14. pealed ; and it was enacted, " that such offender should mitigated, for the first offence lose all his goods, chattels, and debts, and lose the profits of all liis ecclesiastical pro- motions, but only for his life : for the second offence to forfeit his goods, chattels, and debts, and the profits of all his lands, and of his spiritual benefices, promo- tions and dignities, for his life : and for the third offence heresy. 186 THE PARSON'S COUNSELLOR, [pakt i. should make the like forfeiture, and be imprisoned during life." [ 144 ] By an act of parliament made in the 13th of H. 8. 31H.8. C.14. which is commonly called the act of the six bloody The SIX articles •, i ,,.,•, • , , , . make the mar- articles, by the third article it was decreed, " that priests, nage of priests ^f^g,. jj^gy have received orders, might not marry, and to affirm the contrary thereof, vv^as made heresy and treason by that act." But this bloody act was repealed by 1 E. 6. cap. 12. AUlaws against Bj ^hc Statute of 2 and 3 Ed. 6. cap. 21. "All laws, marriage of statutes, cauons, Ordinances, and constitutions made priests mane . , . /• ■ i n i null and void, agauist the maiTiage or priests, are made null and void." Children legiti- -^"^ t)y another statute made 5 and 6 E. 6. cap. 12. mate. it is adjudged and declared, " that the marriage of priests is lawful, and legitimates their children, and makes them capable to endow their wiv^s, and to be tenants by the curtesy." But these laws were repealed by the statute of 1 Mar. cap. 1 . 1 Jac. cap. 25. Howcvcr it came to pass 1 know not, but for ought [ can find these acts lay repealed all Queen Elizabeth's See 2 Inst. CS6. time, till 1 Jac. then the latter act was made perpetual, and their children made legitimate. See 2 Inst. 683. So that upon the whole matter, all acts of parliament, canons, constitutions, &lc. that restrain the marriage of priests, or that illegitimate their children, are made null and void ; but the canons and acts of parliament that punish their incontinency stand in force. Next let us see what privilege the clergy have right to at this day (51). (51) V^ide in Part I. chap. ix. note 41. some modern cases of clergymen suspended for incontinence and immoral con- duct. CHAP. XI.] THE PARSON'S COUNSELLOR. 187 CHAPTER XL [ i45 ] What Privileges belong to the Clergy at this day, by the Common and Statute Laws of this Realm, a?id like- Tcise by the Laws Ecclesiastical. The laws of this realm have allowed the clergy in The privilege of holy orders many great privileges : the clergy. First, in their persons, they are not compellable to 4 °i Lev 303. serve in any temporal office, as sheriff", constable, over- May not be of- seer of the poor, &c. " Neither can they be prest to ^^Er^^'c^s!^ ' serve in the wars; neither may they be arrested in the ^ ^- 2- c. \5. church or church-yard, when they are attendant on Must not be' divine service, upon pain of imprisonment, and ransom arrested in , , . , , , , . , . , church or at the kmg s pleasure, and likewise to make agreement churchyard. with the party.'* Grot, de Jure ^ ^ Belli, 1. 1. c. 2. § 10. 9. And b3' a statute made 1 Mariac, it is enacted, Co. 2lnst. 5S. *' That if any person, Sec. of their own power and iM.Sess. 2.0.3. authority at any time, 8cc. shall or do willindy or of Must not be •' , •' , , ,. 11 disturbed pray- purpose, by open and overt word, ract, act, or deed, ing or preach- maliciously or contemptuously molest, let, disturb, vex, '"8- or trouble, or by any other unlawful way or means, dis- quiet or misuse any preacher or preachers, 8Cc. licensed, |- 14Q j allowed or authorised to preach by the queen, or by any archbishop or bishop of this realm, or by any other lawful ordinary, or by either of the two universities, &c. or otherwise lawfully authorised or charged by reason of his or their cure, benefice, or other spiritual promotion or charge, in any of his or their sermon or collation in any church, chapel, or church-yard, or in any other place appointed to be preached in. " Or if any person, &,c. shall maliciously, willingly, or' of purpose, molest, let, disturb, vex, disquiet, or 188 THE PARSON'S COUNSELLOR, [part i. otherwise trouble, any parson, vicar, parish-priest, or curate, &,c. saying, doing, singing, ministering or cele- brating mass, or other divine service, sacranaents, &c, that at any time then after shall be allowed, set forth, or authorised by the queen's majesty. " That the offender, upon conviction before two justices of the peace, shall by them be committed to the gaol without bail or mainprize for three months, and after to the next quarter sessions ; where, if he re- pent and be reconciled, then to be discharged of his imprisonment, finding sureties for his good behaviour; and if he fail therein, to be continued till the next quarter sessions." [ 147 1 14 Car. 2. c. 4. Must not be •rrested. 2 lust. 4. llegist. 147. Privilege in their goods. Co. 2lnst. 3. Regist. 2G0. a. Free from tolls. This act, tliough made in the time of popery, is still in force, and may be executed upon such as disturb the present ministers, parsons, vicars, and curates, &,c. And though it refer to such church- service as then after should be settled by the queen, yet I conceive it extends to her successors ; and a settlement by act of parliament, is a settlement by the king in the most superlative manner. And the late act for uniformity declares and enacts, " that all former acts for uniformitj^ of common-prayer shall be of force, and extend to the Book of Common Prayer." The bodies of clergymen cannot be arrested upon any capias sued forth upon any statute-staple or sta- tute-merchant; for the processes are made out con- ditionally, si laicus fuerit: and if the sheriff or any other officer arrest a clergyman upon any such con- ditional process, I conceive an action of false imprison- ment lies against him that does it, or he may have a special supersedeas out of the chancery, (that is, the cursi tor's office.) And every parson, vicar, 8cc. is by the common laws of England free from the payment of tolls in all fairs and markets, not only for all the goods and merchan- CHAP. XI.] THE PARSON'S COUNSELLOR. 189 dizes gotten upon their church livings; but also for all Vid. Diversity, goods and merchandizes by them bought to be spent Jj|f„''' °3.'™P°"* upon their rectories and church livings. And they are quit of pontage, murage, and other like Pontage, charges; and if they be distrained for any of these, Sr^Inst. 4. thev may have a writ out of the chancery, as afore- See the ancient J J . . *^ . law, Selden in said, made of course without petition or motion, under Drayton's Poly- the great seal of England, directed to the party that °'^'p°'j^^|^^ distrains or disturbs them for any of these things, com- vide, Ezra. c. T, manding them to desist : and if such writ be not obeyed, '• ^-i- ad idem, the cursitor of course will make out an alias and plu- ries ; and if none of those will be obeyed, an attach- ment to arrest the party, and detain him till he obey : and this writ is called, a writ de essendi quietum de Regist. 260. a, toioneo, which you may see in the register, or in the *-N. 13,227. natura brevium. But clergymen are liable to all public charges im- posed by act of parliament, and in particular for re- paration of highways. 1 Ventris, 273. (52). They are not bound to appear or do suit at the Not bound to sheriff's turn, or any leet or law day; and if they shall !)||d^s'ileriff^s^'* be distrained so to do, they may have a writ of course turn. in the chancery directed to the lord of the leet, com- ^^f^^^ "^' manding him to forbear distraining them for any such F. N. B. 160. c cause, with like process as in the last for his contempt. And by the statute of circumspecte agatis, it is enacted, " de violenta etiam manuum iniectione in cle- Stat. 13 E. i. 1 i- .• • 1 •. . 1 •. • 2 Inst. 491, ricum, et in causa deiamationis placitum tenebitur in ^gg 493^ curia christianitatis, dummodo ad coriectionem peccati agatur ; et non petatur pecunia. (52) And clergymen are now held liable to all charges by act of parliament, unless they are specially exempted. 3 Burn's Eccl. Law. 204. There is no special exemption in the yeai-ly mutiny acts for clergymen, in respect of soldiers' carriages. 190 THE PARSON'S COUNSELLOR, [part i. Co. Inst. 96. a. Kegist. Orig. 187. b. F.N. B. 173. b. Not to be bai- liffs, reeves, &c. [ 149 ] Reglst. Orig. 188. a. F.N. B. 176. a. Musi not be disturbed by collector of tenths. Harwood v. Palyn. 24 Car. l.B.R. perB. 2 Inst. 633, 634, 635. The privilege of clergy in crimi- nal cases. * Lindwood, cap. clerici pro suis criminibus detent, gloss. verb, pro con- victis. West. I . cap. 2. Marlbr. c. 27. 25 E. 3. cap. 4. and 5. 4 H. 4. c. 3. 4H. 7. c. 13. [ 150] And if a clergymaii have lands by the tenure of which he is subject to be baihff, reeve, or beadle, and be chosen into any such office by reason thereof, he has a cursory writ out of the chancery to discharge himself. A writ of privilege was granted to excuse the arch- deacon of Rochester from being an expenditor in the level in Romney Marsh, in Kent. 1 Mod. Rep. 282. 1 Vent. 105. 1 Lev. 303. So if the sheriff or collector of the tenths or fifteenths will disturb them in the lands belonging to their churches, &c. they may have the like writ for their discharge, and like process for disobeying it, ut supra. But it hath been held, that tythes may be extended upon an elegit for the debt of the parson, quod mirum: but the elegit being given by a statute in which tythes are not excepted, it will draw in tythes. Anciently if a clergyman had been convicted of any murder, robbery, burglary, &c. he was upon the demand of his ordinary to be delivered over to him, where he was to make his purgation according to the rules of the ecclesiastical laws ; and if he cleared himself, he was acquit * without an}^ regard to his conviction at common law; but if they adjudged him guilty, then he was to be degraded and kept in prison : and this was confirmed to them by several acts of parliament. But this privilege was never allowed to them in this kingdom in treason, petit treason, or sacrilege. And a delinquent might have had his clergy ad in- finitum, till the statute of 4 H. 7. And though this privilege of the clergy be taken totally away in many cases by several statutes, and in other cases laymen have it in common with the clergy, if they can read as a clergyman ; and though the de- livery of them over to the ordinary be totally abolished ; yet the clergy that are in holy orders at this day retain some of their ancient privileges, which the laymen are not capable of. CHAP. XI.] THE PARSON'S COUNSELLOR. 191 For if a clerk in holy orders be convicted (that is, Co. 5. 30, found guilty by the petit jury) of a crime for which the ^""^ C°'- ^n. benefit of the clergy is allowable, at this day he shall not Hob. 294. upon the allowance thereof be burned in the hand (as a layman shall) upon the producing of his orders; and if i he have not them with him, the court may, ex gratia, give him time to produce them till any other assize or sessions. And a clerk in holy orders at this day shall have his co. 2 Inst. 637. clergy ad infinitum, from time to time, which no lay- St. 4 H. 7. 13. ^^ , , -^ 28 H. 8. cap. 1. man can have above once (53). i e. 6. cap. 12. The goods of clerg3'men were by several statutes ex- See Co. Inst. 3. empted and freed from the king's purveyance; but his j^'^ 3^'^'^* majesty having by act of parliament graciously re- 13E. 3.c.4. leased this dut}', the laity hath the same privilege. Purveyance' A clergyman shall not be amerced the higher in re- 2 inst. 267. spect of his church living or benefice. Masf. Chart. Not amerced , . i-. ^ T ^^ fo"" the church c. 14. Co. 2 Inst. 29. laud. Nor shall any execution be executed upon the goods I^egist. Orig. of his church, nor any distress taken in the ancient fee F. N. B. 29. thereof; but otherwise it is of lands of late purchase: Noexecution 1 -r 1 f I .1 u I • upon the goods and ir lie rear any such tnmg, he may have a protection of the churches, in chancery cum clausula, (quia nolumus.) If an action of trespass, debt, account, or other ac- [ 151 ] tion, wherein process of capias lies, be brou2;ht asfainst 2 Inst. 4. . t^ . 00 ]\Jo capias a clerk in holy orders, and the sherifFupon the original against a clerk. return, tliat the defendant is clericus beneficiatus nul- L^^^o'^?x . 24 E. 3. 44. lum habens laicum feodum ubi summoneri potest; in this case the plaintiff cannot have a capias to arrest his body, but a writ to the bishop to compel him to ap- pear (54). (53) Vide 1 Bla. Com. 377. note 2. (54) If a person be bound in a recognizance in Chancery, or another court, and he pay not the sum at the day : by the common law, if the person had nothing but ecclesiasti- cal goods, the recognizee could not have had a levari facias 192 THE PARSON'S COUNSELLOR, [part r. 50 E. 3. c. 5. And by a statute made in the fiftieth year of Edward the Tliird, it is recited, " that as well divers priests bearing the sweet body oK our Lord Jesus Christ to sick people, and their clerks with them, as otherwise divers other persons of holy church, whilst they attend to divine services in churches, churchyards, and other places dedicated to God, be sundry times taken and arrested by authority royal, and commandment of other temporal lords, in offence of God and holy church, and also in disturbance of such divine services: the king wills, and grants, and defends upon grievous forfeiture, that none do the same from henceforth ; so as collusion or feigned cause be not found in any of the said persons of holy church in this behalf." 1 R. 2. cap. 15. Ih the first year of R. 2. there was another statute made to the like effect, with this added, " that the party convicted should be imprisoned, ransomed, and made agree with the party so arrested." [ 152 ] So that if any parson, vicar, or priest be arrested in Co. i2Rep.99. going, staying, or returning to do divine service, ac- cording to his duty, he may have an action upon this Cro. Jac. 321. Statute, and recover damages, and have the party fined and imprisoned that made the arrest, and the clerk that is assistant may have the benefit of these laws. Privilege of the And note, that all the privileges of the church of clergy confirmed Endand are confirmed by the statute of Magna Cliarta : by several par- ^ ^ i i • i- liaments. and SO they were for tlie most part at the openmg of to the sheriff to levy the same of these goods, but the writ ought to be directed to the bishop of the diocese to levy the same on his ecclesiastical goods. 2 Inst. 4. And an at- tachment will go against the chancellor for not returning it. 1 Wils, 332. It has been likewise decided, that the as- signees under an insolvent act are not entitled to demand and receive the profits of an ecclesiastical benefice, which have accrued subsequent to the assignment, nor can they maintain an action for the same, though included in the schedule of the insolvent. 3 Bos, and Pull. 321. GHAP. XI.] THE PARSON'S COUNSELLOR. 193 every other parliament after, till the beginning of the reign of Henry the Fifth. How it came then to be discontinued by the negligence of the clergy, or for what otlier cause, I know not. And so having thus briefly mentioned many of the privileges of the clergy, whereof the common law takes notice, and to which they have right at this day, by the laws and statutes of this realm ; next I will shew the reader what privileges they pretend unto, at, and by the canon and civil law, which Mr. Lindwood reckons up in fourteen particulars : Primo, in hoc quod non conveniantur coram judice Cap. Item sta- 1 • ir-j /-~' MA .1 • oo tuiraus verb. seculari. Vide Concil. Agathi, canon 23. Ciericaiiprm- legio. Concil. But this privilege has not been allowed to them here ^''r ^53*-] in England; and this was resolved in the 7th year of Vid. Stillingfl, Henry the Eighth, in the case of one Dr. Horsey, Commission, 24. chancellor of the Bishop of London, of which case, for Irenicum, 43. I •Till 1 1 • <• 1 • Kelway, 182. the rarity, 1 will give the reader a brier account, and it &c. was thus : " One John Hunn, a merchant of London, had pro- secuted Horsey in a praemunire; whereupon Horsey caused Hunn to be arrested for suspicion of heresy, and committed him to Lollards' Tower, being the bishop of London's prison, and in a morning soon after, the prisoner Hunn was found dead and hanged in prison: and it was given forth, that he had hanged himself in his girdle; but notwithstanding it was believed that Horsey and the gaoler had murdered liim. " This coming to the gaoler's ear, he took sanctuary at Westminster; upon which and other great circum- stances. Horsey and the gaoler were, by a coroner's in- quest in London upon view of the body, found guilty of the murder; and Horsey, as should seem, being it\ o 194 THE PARSON'S COUNSELLOR. [part i. orders, (I dare not say holy) stood upon this privilege, not to be tried before temporal judges. " And this being a dispute between the king's pre- rogative and the privilege of the church; the king, at the request of the temporal lords and many of the com- mons in parliament, called before him at the Black- [ 154 ] friars, divers of his spiritual council, divines and ca- nonists; where the clergy had one of their counsel argued for their privilege, and Dr. Standish, a learned divine, argued for the king : but the great offence taken was against the abbot of Winchcomb, who in his ser- mon preached at Paul's Cross, in the time of the par- 4 H. 8. c. 2. liaraent, had affirmed, that the act made 4 H. 8. (which took away clergy from laicks in many capital offences, but not from clerks in holy orders) was against the law of God, and privilege of the clergy, and that the makers of the said act had incurred the censures of the church. " Soon after Dr. Standish, who had argued for the king, was cited before the convocation, and there charged with matters of heresy, arising from matters which had passed in his argument; whereupon he made his application to the king, who being satisfied of the justness of his cause by Dr. Veisey, dean of his chapel, assembled all his judges and counsel spiritual and temporal, and divers of the parliament men: and after hearing of divines, &c. the judges declared, that those of the convocation-house, that were at the awarding of thecitation againstDr.Standish,were in a praimunire. " And Fineaux, chief justice, did declare, in the name of all the judges, that the convention of clerks before temporal judges had been maintained by many [ 155 ] good and religious kings of this realm, and many good and holy fathers of the church had been obedient to it, and content with the law of the land in this point, &c. CHAP. XI.] THE PARSON'S COUNSELLOR. 195 "And Dr. Veisey save the reason, "because the Seiden de Dec. . -^ ^ . , ,, J . in Pret. 5, Re- canon in that point was never received or allowed in view, 478. England. " But the clergy not being satisfied, the two arch- bishops (who affirmed, that they were bound by oath Nota. to maintain the privileges of the church) moved the king, that to avoid the censures of the church, he would Nota. refer the matter to the pope. "But Henry the Eighth stoutly answered, that he, SeWen's Titles by the decree and sufferance of God, was king of Eng- *^' Honour, 19. land, and the kings of England in time past had no superior but God only; and therefore know, that he would maintain the right of his crown and his temporal jurisdiction, as well in this point as in all other. " And after Horsey (that all this while had been pro- tected in the archbishop's house at Lambeth, the bishops having made his peace with the king) appeared privately in the King's Bench, and pleaded not guilty to the in- quisition; and Erneley the king's attorney confessed the plea, whereby Horsey was discharged (the more pity,) and the bishops promised to dismiss Standish : and so this point was settled against the church, as it was very good reason." I sliall make no comment upon the case, though there r ... n are many things in it worth observation ; and those that are not satisfied with this short account of this case, may read it at large in Kel way's Reports, with all the circumstances, and the reader will not think his time ill spent, but with me praise God, that the king and nation are freed of the popish bondage and clergy. 2. The second privilege mentioned by Lindwood, is, " Quod verherans clericum incidit in canonem." This privilege is confirmed to the clergy by the o 2 196 THE PARSON'S COUNSELLOR, [part i. statute of Circumspecte Agatis, that the spiritual court Co. 2 Inst. 4 y 2. should have jurisdiction, de violenta manuum injectione in clericuni; but the end of such suit in the spiritual court is only, pro salute aniraae, by excommunication or penance. And if a clerk sliould sue in tiie spiritual court in • point of damage, he runs himself in danger of a prae- munire; for the ecclesiastical judge may proceed only ex officio to correct the sin (55). But if the clerk will in this recover damages, he must bring his action at common law. And note, that such suit in the spiritual court can only be sued by one in holy orders. [ 157 j 3. T'he third privilege, Lindwood mentions, is, " Quod non vocantur ad onera secularia." This privilege the common law allows; but it must be intended of such charges as were at common law, but not of new charges by statute law; in which the clergy are not exempted, as hath been said before in the beginning of this chapter. And yet note, that the clergy, till the late rebellion, granted all their subsidies in their convocations; but in the late acts of parliament are taxed promiscuously. (55) A prohibition having been granted, where a clerk libelled against another in the spiritual court, for that he beat him, or at leastwise assaulted him with a bill, and would have stricken him, and called him opprobrious names ; the court held, that the prohibition did well lie : for although for the laying violent hands on a clerk, the suit ought to be in the spiritual court, yet for an assault only, the suit ought to be at the common law. Cro. EL 753. So also where a prohibition was granted to stay process in the spiritual court, against one who seeing an assault made upon his servant by a clerk, came in aid of his servant, and laid his hands peaceably upon the clerk, Gawdy, C. J. held, that the case was out of these statutes, because the party had good cause to beat the clerk, and the prohibition stood. Cro. El. 655. I CHAP. XI.] THE PARSON'S COUNSELLORf. 197 4. The fourth privilege Lindvvood mentions, is, "Quod possunt facere collegium ubi hoc laicis non licet." It is true, that before the reformation the clergy have Vid. Dyer, 267. erected colleges, abbies, priories, and other spiritual ^j^* ^ ^'- *• and religious corporations by the licence of the pope, Co. 4. i07. b. or the bishop; but generally confirmed by the king's- But without licence of the bishop of the diocess, it Conc. Agatha. was forbid to erect any such by several canons: and by ^*"' '^; ,. _,., , •' Cone. Aurelian. such licence, I take it, a lay-person as well as a clergy- Can. is. q. 2. man, might have erected a college, &c. But here in ^rf V ,^ . England, the clergy never had greater privilege than Dyer, 8i. p. 64, the laity in this matter; for no such corporation could Co^4'u^^^ ever be erected here but by the royal authority. 5. The fifth privilege reckoned by Linduood, is, [ 158 ] " Quod possunt vendicare rem concessam ecclesiw ante deliberationem." This privilege is of no use here in England, because 2 Inst. 492. the spiritual courts have not power to determine the right or property of lands or goods. 6. The sixth privilege is, " Quod eodem |)rivilegio gaudent persona et familia." This privilege holds no further here in England, than in such particulars as are mentioned in the former part of this chapter. 7. The seventh privilege by Lindvvood mentioned, is, " Quod facientes statuta contra clericos sunt ipso facto excommunicati." He that would attempt to put this privilege in exe- cution, would endanger to run himself in a great prae- munire; and many statutes have been made against the clergy in the height of popery, as the reader may find in many parts of this book. 8. The eighth privilege is, " Quod soli cierici possunt beneficium ecclesiasticum obtinere." 198 THE PARSON'S COUNSELLOR, [part i. This is allowed without dispute. 9. The ninth is, " Quod per literas impetratas contra laicum, cum clausula generali non potest clericum con- veniri." I must leave this to the civilians to determine; for I must ingenuously acknowledge, I do not understand the meaning of this, nor the next ; which is, 10. "Quod in civili nomina sportularum non tenentur dare nisi qaatuor siliquas." " Hsec tanien de jure canonum non debentur," says the author ; and then proceeds, [ 159 ] 11." Quod de acquisitis licet sint in potestate patris possunt testari." This, and the next privileges, are in the spiritual law and courts, and not opposed by the common law. 12. " Quod sine consensu patris agere possunt pro rebus suis recuperandis." 13. The thirteenth I must leave it as I find it; and it is, " Quod non pignorari." 14. The last is, " Quod si sciente domino servus efficiatur clericus liberatur A domini potestate." I do not find any such privilege allowed in England, but it may be reasonable enough ; these four last are only known to the civilians, to whom I leave them. And so much for the privilege of the clergy by the canon and civil laws : but I conceive they receive more benefit by those the common law allows to them (56). (56) The dress of the clergy has frequently been a subject of canonical animadversion. The following part of a canon of Archbishop Stratford, 1343, may be considered a curious specimen. " Though the behaviour of the clergy ought to CHAP. XI.] THE PARSON'S COUNSELLOR. 199 be the instruction of the laity, yet the prevailing excesses of the clergy, as to tonsure, garments and trappings, give abominable scandal to the people; because such as have dignities, parsonages, honourable prebends, and benefices with cure, and even men in holy orders, scorn the tonsure, (which is the mark of perfection and of the heavenly king- dom,) and distinguish themselves with hair hanging down to their shoulders in an effeminate manner; and apparel themselves like soldiers rather than clerks, with an upper jump remarkably short, with excessive wide or long sleeves, not covering the elbows, but hanging down: their hair curled and powdered, and caps with tippets of a wonderful length, with long beards, and rings on theirfingers, girt with girdles exceed- ingly large and costly, having purses enajpelled with figures and various sculptures gilt, hanging with knives (like swords) in open view; their shoes chequered with red and green, exceeding long, and variously indented ; with croppers to their saddles, and horns hanging at the necks of their horses, and cloaks furred at the edges, contrary to the canonical sanctions." The canon then goes on to ordain, that the clergy shall not wear a short and close upper garment, with long sleeves, not covering the elbow, but hanging down ; hair undipped and long beards, with rings on their fingers (except those of honour and dignity) upon pain of sus- pension from their office, Lind. 122. Johns, Stralf. As dress is fluctuating in its nature, it is impossible to lay down rules for apparel in one age, which will not appear ridiculous in the next. In such case the general rule can only be, that clergymen shall appear in habit and dress such as shall com- port with gravity and decency, without effeminacy or af- fectation. 3 Burn's Eccl. Law, 204. 200 THE PARSON'S COUNSELLOR. [paht s. [ «60] CHAPTER Xn. IIoi& the Law stands concerning Churches, Chapels^ and Churchyards, in nhom the Freehold is, and hoiv to he repaired, and concerning Seats, Burials, Tombs, Coats of Arms, and other Ensig7is of Honour in memory of the Dead, and of Church Ornaments, and at zvhose Charge to be provided, and what Remedy against those that shall commit any Trespass in the Church, Church- yard, or in breaking up Tombs, taking, carrying away, or embezzling any of the Goods or Ornaments of the Church, &,-€. Church unde dicitur. The several ac- ceptations. [ 161 ] The material .church, quid. Distinctio 1. I^eipoecclesiani, The word church is taken from the Saxon. word cipc, or cipic, which name is still retained in the north parts of England, and in Scotland, by changing the C into K, as was usual with the English Saxons ; in Latin ecclesia, or basilica from the Greeks; and it hath in the Holy Scriptures several acceptations; for sometimes it is taken for one family of the faithful people of God, as 1 Cor. 16. 19. Rom. 16. 4, 5. Sometimes for the Christian people of one country or province, Rom. 6. 23. Sometimes a council or synod is taken for the church, Mat. 18. 17. and sometimes, " pro universa fidelium per totum terrarum orbem difFusorum multi- tudine:" and sometimes for the material church, as 1 Cor. 11. 18. and 14. 34. And that is the church of which I am now to dis- course, that is, a building made of stone, brick, timber, and other materials, for the meeting of Christians to hear the word of God read and preached, and to join in prayer and other religious duties ; built by the licence of that bishop in whose diocess the same is erected, and by him consecrated to that service, an office CHAP. XII.] THE PARSON'S COUNSELLOR. 201 peculiarly belonging to the office and dignity of the bishop. See the several acceptations of the word church, in King's Enquiry of the Constitution, &c. of the Primitive Church, L. i. c. 1. § 1, 2, 3, &c. The ancient manner of founding churches, was, after The manner of the founders had made their applications to the bishop fo""'^'ng of 1 1 1 1 • 1 • • I 1 • churches. of the diocess, and had his licence, the bishop, or his Ridley's View, comtliissioners, set up a cross, and set forth the*church- '^' yard where the church was to be built, and then the q^unqug q. 3. founders might proceed in the building of the church; Lat. Concil. and when the church was finished, the bishop was to Can.'^4. °° consecrate it; but not till it was endowed, and before * Ut major ec- the sacraments were not to be administered in it. See cuitum4oVassus Stillingfl. Eccl. Cases, 238. habeat. Capella ° vero vel minoris Ecciesise, 30. c. 17. q. 4. de consecratione distinct. I. nemo Ecclesiam. See Sir Tho, Ridley's View of the Civil and Ecclesiastical Laws, 191. more of this matter. But by the common law and custom of England, any [ 162 ] good christian may build a church without the licence wh 'ma^^b ild of the bishop, which was confirmed by the pope at the a church. request of King John, with this quahfication, so that it were with the bishop's consent, and not prejudicial to any ancient churches: but however the law takes no notice of them as churches, nor have they any privilege, 3 inst. 203. a. till they be consecrated by the bishop. And in some cases, though a church have been Where a church consecrated, it must be re-consecrated ; as in case any secrated.'^"*^""" homicide, adultery, or fornication shall be committed in Cone. Nlcire it, or the church burned: but the re-building of the Ecclesiis semel. walls, if the altar (that is, the communion table) were l^id. Simotum. not removed, requires no new consecration, nor churches consecrated by heretics, " In fide Sanctze Trinitatis in j^jj forma ecciesise," are not again to be consecrated. The church consists of three principal parts, that is. Division. the belfry or steeple, the body of the church with the aisles, and public chapels, and the chancel. 202 THE PARSON'S COUNSELLOR, [part i. In whom the The freehold of the whole church, and churchyard, freehold is. . ^ , i i c i iiH. 4. 12. a. ^rs 111 the parson or rector, and thereh)re tlie parson 21 11-7.21. b. may have an action of trespass against any body that 8 H. 6. 9. shall do any trespassable act in the church, or church- ^^H^r'^o y^^^' as in breaking seats annexed to the church, in 15 h! 1. 8. breaking the windows, cutting the trees, or taking away W h' 7* 8^^ ^^^ leads, or any of the materials of the church, or for Noj, 104. breaking windows, the party may be indicted and fined, and bound to his good behaviour. „„ U^^ ^ . The body of the church, the belfiT, and all public Whois to repair •' ... ,. . . , , , churches. and common chapels, withm or adjoming to the church, 2 Inst. 653. gj.g |^„ ^.j^^ |g^g ^^^ custom of England, to be re-ediiied, Coke,5.b7. b. . -^ . J , . ] , , ^ c ^ • t • Stath. tit. Ac- maintained and repaned,at the charge or the parishioners compt. ^j-jjj land-holders within the parish ; and herein the com- mon law and custom of England Is kinder to the clergy, than in other countries where the whole charge lies upon the rector. How churciies Anciently the bishops had a third part of the tithes vjerc anciently i rr • • i • ^ j • repaired. ^^^d oilerings, in some places a moiety, and in some places a fourth part, and in consideration thereof were C. 10. q. 5. bound to the repair of the whole church ; but upon a lacuiTut nullus release of this interest to the rectors, they were acquitted Cone. Braga. of the repairs of the churches, and had only two shillings Cathedraicum ^°^ ^^^^ honour of the bishop's chair, in lieu thereof, how it came due, called cathedraicum, which duty (as I take it) was never paid in England; and the reason might be, because the bishops here were never charged with the repair of the churches, and had therefore no share in the offerings ; tamen inde quaere. [ 164 ] The churchwardens are to raise the money for the money for Tiir ^^V^^^ of the church, and are to make the repairs; and repair of the for the raising monies to that purpose, they are to make church. ^.j^g-j. jeyjgj. jjj tjjjj. manner: The mariner to j^g Sunday before the churchwardens design to make a levy for •' o the church. CHAP. XII.] THE PARSON'S COUNSELLOR. 203 make a levy, tbey are to give public notice in the parish church, immediately after common prayer, of the time Co. 5. 67. b. and place designed for making the intended levy; and then at the place and time appointed, the churchwardens and the parishioners, there met, are to consider what sum of money will be necessary to be raised for such repairs as shall be then needful; and after they, or the major part of the parishioners, there met, have agreed what sum is lit to be raised, then they, or the major part there present, are to proceed, and make an equal levy upon all the parishioners and landholders within How it is to be the parish; and if any of the parishioners refuse to pay '■^covered. their rales, being demanded by the churchwardens, they 3'^^.^^ ^Jg"™,^ are to be sued for, and to be recovered in the eccle- 13E. 1, siastical court, and not elsewhere. Brifon".^i. c".*'. But in case the bounds of the parish come in dispute Prohibition lies in the ecclesiastical court, that is, if the party assessed bounds of the aver that the land for which he is assessed lies in another parish are con- parish, and not in the parish where it is assessed, if the ^'^-^l^i^ 29i. party be contentious he may have a prohibition, and 1. 1.5. 4. try it at common law (57)- {57) By the 17 Geo. 2. c. 3/. where there shall be any dispute in what parish or place, improved wastes, and drained and improved marsh lands lie, and ought to be rated, the occupiers of such lands or houses built thereon, tithes arising therefrom, mines therein, and saleable underwoods, shall be rated to this and all other parish rates within such parish and place as lies nearest to such lands; and if on application to the officers of such parish or place to have them rated as aforesaid, any dispute shall arise, the justices of the peace at the next sessions after such application made, and after notice given to the officers of the several parishes and places adjoining to such lands, and to all other interested therein, may hear and determine the same on the appeal of any persons interested, and may cause the same to be equally assessed, whose determination therein shall be final. But this shall not determine the boundaries of any parish or 204 ^ ^ THE PARSON'S COUNSELLOR, [parti. [ 165 ] '^d if the parishioners, when they come tosrether at What to be , .- C I . * • • • i • i done, if the such meeting, reruse or neglect to jom in makmg such parishioners will assessment, or refuse to meet, I conceive the church- not make a levy. i i • • , r i Cap. Archidiac. Wardens, having just cause tor such assessment, may verb. Subpoena, proceed alone. For if the churchwardens shall neglect to make the repairs when duly admonished by those that have the power to visit, within a certain time the ordinary or other visitors shall limit, they may proceed against the churchwardens by ecclesiastical censures, to compel them to do it: and the law never compels any body to do a thing, they have not means to effect. And it should seem in this case, that the parishioners are likewise punishable b}-- the ecclesiastical judge, for their neglect in this kind. Hetley,6i. But some are of opinion, that the churchwardens cannot proceed alone, but must compel the parishioners to do it by ecclesiastical censures : Ideo quaere. 1 Mod. Rep. 97. 194. 236. 1 Ventris 367. 2 Rolls, 308. V. 20. And it should seem, that by custom lands in a foreign parish may be charged to the repair of the church. How to be re- lieved against unequal assess- ments. 2 R«ll. 289. H.6.3. 67. a. And if any person find himself aggrieved at the in- place, other than for the purpose of rating such lands to the parochial rates as aforesaid. And the church rate charged upon quakers is recoverable before the justices of the peace in like manner as arelheir tithes. If the churchwardens defer to make or collect their rate until they are out of their office, they are deprived of all legal authority of doing either; but they may present the persons in arrear at the Easter visitation when they go out of their office, and the judge will cause justice to be done therein, or their successors may prosecute for the same. 1 Bac. Abr. 3"6. CHAP. XII.] THE PARSON'S COUNSELLOR. 205 equality of any such assessment, his appeal is to the ecclesiastical judge, who is to see right done. Every one that holds any lands within the parish, is [ K^^ ] 1 . r- t ■ I • 1 11 1 • Landlords not in judgment or law a parishioner, chargeable to this taxable for their tax ; but the landlord, in respect of the rent he receives, reots. is not chargeable to the repair of the church; nor in that respect can be said a parishioner. And these levies are not chargeable upon the land; These taxes are but upon the person in respect of the land, for th6 more Jfres^ect^oTthe equality and indiffeiency. land. But there has been some question made, where one Who is charge- that holds lands in one parish, and resides in another, able to the oma- ' ' . ' ments. may be charged to the ornaments of the parish church where he doth not reside ? And some opinions have been, Rolls, 2t'i. k. t'hat foreigners are only chargeable to the shell of the ^'^■ , , f , ,/ ° 2Brownl. 10. church ; but not to bells, seats, or ornaments. But I conceive the law to be clear otherwise, and landlords that the foreigner that holds lands in the parish, is as much obliged to pay towards the bells, seats and orna- ments, as to the repair of the church; otherwise there Landholders would be great confusion in making several levies, the so^L one for the repair of the church, the other for the orna- ments, which 1 have never observed to be practised within my knowledge. Secondly, It is possible that all, or the greatest part of the land in a parish, may be held by foreigners, and it were unreasonable in such case to lay the whole charge upon the inhabitants, which may be but a poor [ 157 ] shepherd. Thirdly, The reason alleged against this charge upon the foreigners, is chiefly because the foreigner has no benefit by the bells, seats and ornaments. Which receives an answer in JeoHerie's case ; for Co. 5. 67. b. 206 THE PARSON'S COUNSELLOR, [part i. there it is resolved, that landholders, that live in a foreign parish, are in judgment of law inhabitants and parishioners, as well in the parish where they hold lands, as where they reside; and may come to the parish meetings, and have votes there as well as others. Lindw. Cap. Licet paro- chiani. Authorities. 1 Bulstr. 20. Quere. For authorities in the case, it is clear by the canon, that all landholders " in ipsis degentes, vel alibi, ad quaevis onera parochianos ipsos ipsam ecclesiam et ornamenta ejusdem concernentia, et eis in his de jure vel consuetudine incumbentia, consideratis possessionum et redituura hujusniodi quantitatibus, cum caeteris paro- chianis ecclesiarum praedictarura, quoties opus fuerit, coniribuere teneantur." And I have seen a report under the hand of Mr. Latch, that it was resolved in Willmot's case, H. 6. Jac. B. R. and in Chester's case, 10 Jac. that a foreigner that held lands in another parish wherein he did not reside, was as much chargeable to the ancient orna- ments of the church, as bells, seats, &,c. as those that lived in the parisli ; but that such landholders could not be charged to new bells, organs, &.c. And Mr. Bulstrode reports a case about the same time, that the Chief Justice Fleming, and Mr. Justice Williams, were of the same opinion, and gave this rea- son, that the foreigner might come to church if he pleased. And having said thus much to this matter, I must leave it u quaere amongst these diversities of opinions (58). (58) T. 1. W. Woodward and Makepeace. Woodward, who lived in the diocese of Lichfield and Coventry, but occupied lands in the parish of D. in the diocese of Peter- borough, was in the said parish of D. taxed in respect of his land as an inhabitant, towards a rate for new casting the bells; and because he refused to pay, was cited into the court of the bishop of Peterborough, and libelled against for CHAP. XII.] THE PARSON'S COUNSELLOR. 207 It hath been resolved, that the major part of the 2Rolis,Q9i.k.4, parishioners may make a levy for new bells or organs. ,97 ' " "^ But if in the making a levy for the repair of the If some should church, some of the parishioners or landholders are i^^y omitted, if the churchwardens shall sue upon such a 2Holis, 291. k. 1 1 •, • • 1- ■ 1 2- contra. levy, a prohibition lies in tlie case; tamen qusere. Ibid. 290. H. 10, -^ Though generally all the parishioners and landholders -<^^,>^ ^.Z^.^^ within a parish ought to be taxed towards the repairs// "^'^j.j ^,^^, of the church, as has been said; yet that rule admits-/^ ^■ some exceptions. For, first, the rectory or vicarage which is derived Who may be out of it are not chargeable to the repair of the body i^vks/^Cap,^*^ of the church, steeple, public chapels or ornaments, Licet parochiani. being at the whole charge of repairing the chancel. ^j^.^^^. Secondly, The founder of the church may prescribe, The founder. •^ H.S.Car.l.B.R. per Henden. this matter. And b}- the court, This is not a citing out of the diocese within the statute 32 H. 8. c. 9. for he is an in- habitant where he occupies the land, as well as where he personally resides. Secondly, altiiough he doth not per- sonally live in the parish, yet by having lands in his hands he is taxable ; and whereas it was pretended that the bells were but ornaments, it was held, that they were more than mere ornaments ; that they were as necessary as the steeple, which is of no use without the bells ; and Holt, C. J. said. If he be an inhabitant as to the church, which is confessed, how can he not be an inhabitant as to the ornament of the church? 1 Salk. 164. An impropriator of a rectory or par- sonage, though bound to repair the chancel, is also bound to contribute to the reparations of the church, in case he hath lands in the parish which arc not parcel of the rectory. This was adjudged by the whole court in Serjeant Davie's case, without any question made of it. Gibs. 197' The inhabitants of a precinct where there is a chapel, though it is a parochial chapel, and though they do repair that chapel, are nevertheless of common right contributory to the repairs of the mother church. Gibs. IQ/. 208 THE PARSON'S COUNSELLOR, [part i. that in respect of the foundation, he and his tenants have been freed from the cl)arge of repairing the church. QY^a e\T Thirdly, It hath been resolved, that the inhabitants Hob. 67. of a chapelry may prescribe, that in consideration that f &V'^^*^ ' ^^^^y ^^^^^ ^^™^ ^^^ ^^ mind paid three shillings and fourpence, to the repair of the mother church, or at their own charge repaired a certain part of the mother church, they have been freed from all other charges about the repair thereof. Noy, 41. contra. But a prescription by the inhabitants of a chapelry, Ib^ 311^ a 1 ' ^^^^^ because they have time out of mind repaired some Marsh. 91. part of the fence of the churchyard, they have been ■ ' freed from ihe repair of the mother church, has been disallowed. H^7''& s^cont. -^"^ y^*- tli^J'e hath been some resolutions, that the Bulst. 1.16, I7y inhabitants of a chapelry may prescribe, that in con- Tt'^was resolved, sidcration tliey have repaired their own chapel time P. 42 El. B. R. out of mind at their own charge, that they have been chapelry oi Cox- ffccd from the charge of repairing the mother-church; well and church but there being opinions to the contrary, I must leave of Faringdon in . ^ i i • • • i Berkshire. It ^s ^ quaere: uut the better opinion seems against such Qusre. prescription. 2 Rolls, 589. ' . ' . H. 5. Andrews If a petit chapman take a standing weekly in the V, Hutton, market to sell his wares, he shall not for this be charged H. 4. Car. 1. . , • t- i i i Hetley, 133. ^ to tlie repair or the church. '^ S-^ /^^-^ ^'' ^ prescription, tliat the arable lands within a parish ^'^f ^C^^'^il^y'^had time out of mind been only charged to the repair of the church, has been disallowed ; for the houses are as well chargeable as the land. [ 170 ] If two churches be united, at the common law, the Churches unit- repairs of the several churches shall be made as before ed, hovT to be the Uuion. repaired. g^^. |^^ ^j^^ ^^^^.^ ^ ^^^ 5 W. & M. c. 12. the pa- rishioners of the church united are made contributory to the repairs and ornaments of the church to whom the union is made. Vide stat. And so much concerning the repair of parish churches CHAP. XII.] THE PARSON'S COUNSELLOR. 209 and public chapels annexed to them; and as for the repair of other chapels, I shall defer till I come to speak of chapels. I did purposely omit, in the former edition of this book, to speak of the repair of chancels, lest I should have raised a question I could not determine; but the point has lately come in question judicially, and I shall tell the reader now what I have learned on this subject. Regularly, the repair of the chancel, both by the canon law and custom of England, is to be made by the rector or parson of the parish, which he is com- pellable to do by ecclesiastical censure, suspension and sequestration. But the great question in this case is, where there is an impropriator, how to compel him to do it, the rec- tories and tithes in that case being become lay-fee: but this point coming lately in question in the Common P. 29 Car. 2. Pleas, between Walwin and Awbry, it was agreed to J""'- 3"2. C. B. both by the counsel that argued on both sides, and the whole court. First, That the impropriators are chargeable with the repairs of the chancels. Secondly, That they may in the ecclesiastical courts r ,71 1 be compelled by ecclesiastical censures to repair them. But ihe great question was, whether the bishop might sequester the tithes, they being now become lay-fee? Which point, by reason of some miscarriage in the pleadings, did not receive a determination. Many precedents were shewed in point, that impro- priate tithe had been sequestered by the ecclesiastical judge in this case, both before and since the war; and the better opinion seemed to be for the sequestration, it being agreed that the ecclesiastical court has jurisdiction of the cause, and that being one of the ordinary pro- cesses of court (59). (59) Vide I Burn's Eccl. Law, 352. Lay impropriators are generally under the same obligation of repairing the P 210 THE PARSON'S COUNSELLOK. [part r. Seats in churches. By whom to be repaired. In what manner tu be built. Who may build seats. [ 172 ] Dantrie's case, T. 2 Jac. C. B. 11 H. 412. a. Cro. Jac. 667. 21 H.7. 21. b. Seats cut or pulled down, who shall iiave the materials. The next thing to be spoken of is the seats in churches, built for the ease of the parishioners to sit, kneel, and stand in, for the hearing the word of God read and preached, and joining in prayers, and other religious duties, with the other parishioners. These are to be built and repaired as the church is to be, at the general charge of the parishioners, unless any particular person be chargeable to do the same by pre- scription. The seats ought to be regular, and of a moderate height, that the behaviour of the parishioners may the better be observed ; and if any body of their own heads shall presume to build any seat in the church without the licence of the ordinary, or consent of the minister and churchwardens, or in any inconvenient place, or too high, it may be pulled down by order from the bishop, or his archdeacon, or by the churchwardens, by the consent of the parson ; for the freehold of the church, and all things annexed to it, are in the parson: and therefore if any one presume to cut or pull down chancel, as spiritual rectors ; but impropriate tithes cannot be on this account sequestered. 1 Mod. 258. 2 Mod. 254. But for such neglect lay impropriators are amenable to the ecclesiastical tribunal. A distinction, however, must be ob- served between impropriations and appropriations; the former are such parsonages as, having belonged to the religious houses, by the statutes for dissolving those bodies came to the king, and from him to his patentees, and are now vested in lay hands ; but an appropriation is, where such a parsonage or other church preferment belongs to and is in the pos- session of some ecclesiastical corporation, sole or aggregate, and their successors. And as to such of them as never were the property of religious houses, and were never made tem- poral fees, there appears no ground to exempt them from sequestration for neglecting the repairs of the chancel, more especially as corporations aggregate (the more frequent owners of them), are not capable of being excommunicated. 2 Mod. 254. Toller on Tithes, 36. CHAP. XII.] THE PARSON'S COUNSELLOR. 211 any seat annexed to the chnrcli, he may have an action of trespass against the misdoer (though he formerly set it up) if he do it without his consent or order from the ordinary; hut if the seat he set loose, he that huilt it ^ ^- '^ ^'^• may remove it at his pleasure, as I conceive (60). (60) In Tattersall v. Knight, Arches' Court, 1 Phillimore's Rep. 233. a faculty for the erection of a gallery in a church was granted, notwithstanding the opposition of the vicar; and Sir John Nicholl, in giving judgment, made these ob- servations: ♦' Now it is to be observed, that the incumbent has no authority in the seating and arranging the parishioners beyond that of an individual member of the vestry, and that which his station and influence in the parish naturally gives him. He may properly object to a plan which is generally inconvenient, which diminishes the accommodation in the church, which disfigures the building, which renders it dark and incommodious. In any case of this description, it is very proper that he should make a representation to the ordinary; but as to the mere arrangement of seats, if the parishioners can settle that among themselves, and to their own satisfoction, and can agree about the expense, there seems but little necessity for the interference of the incum" bent: the expense is that of the parishioners. The church- wardens are bound to repair with the consent of the vestry. It is not the vicar but the vestry which appropriates seats ; the general superintendance and authority in allotting them rests with the ordinary. " Great inconvenience has been found to arise from an- nexing pews to houses; the bouses become dilapidated, the inhabitants of them fail in their circumstances, new bouses are erected, and the occupiers of them want pews. It is very desirable that after due time has been given as en- couragement to those who build them, that seats should return to the disposition of the ordinary; the form of the grant should be ' as long as they continue inhabitants of the parish;' or ' as long as they continue inhabitants of the parish, and occupiers of the messuages stated.' The former of these is more usual, as it gives no notion of annexing houses." Et vide Bulwer v. Hase, 3 East's Rep. 21 7. p £ 212 THE PARSON'S COUNSELLOR, [part i. In liutterworth and Barker v. Walker and Watcrhouse, the Court of K. B. seems to have been of opinion, that the consent of the parish is not necesj-ary to the ordinary's order- ing an organ to be erected in a church ; but the parish can- not, without their consent, be charged with the expense of erecting or repairing it, or adding new ornaments: nor can the consent of the vestry bind the parish without immemorial usages. In this case, the organ being provided for by voluntary contribution, a prohibition was denied. 3 Burr. 1C89. Where a person set up a possessory right in a pew, that his grandfather had the estate and pew for twenty years, and that he succeeded to it : that right was held good against a 2 Roll's Abr. mere disturber. And, observed Sir John Nicholl, " by the -^^- general law and of common right, all pews belong to the Ken. Par. Ant. parishioners at large for their use and accommodation ; but fi-iS. the distribution of seats among them rests with the ordinary: the churchwardens are the officers of the ordinary. They are to place the parishioners according to their rank and station ; but they are subject to the control of the ordinary, if any complaint should be made against them. The vestry, as such, has no authority whatever on the subject ; the churchwardens are not bound to follow their directions : at the same time the sense and opinion of the vestry ought to have weight with them." 1 Phillimore's Rep. 323. Pettman V, Bridger. Possession for thirty-six years was holden to be pre- ^umptive evidence of a prescriptive right, in a case where the church had been rebuilt about forty years. 1 Term Rep. 431. Rogers v. Brooke. But in a later case it appear- ing that the seat itself was built thirty-five years ago, for the accommodation of the plaintiff, and to put an end to a dispute between two families, this proof was holden to rebut the pre- sumption which would otherwise arise from so long a pos- session. Griffith v. Matthews, 5 T. R. 296. It was said by Lord Kenyon, that a pew might be annexed ' to a house by a faculty, as well as by prescription which supposes a faculty, and in that case might be transferred with the messuage. And his lordship said he had seen a faculty for exchanging seats in a church which were annexed to houses. 1 Term IJep. 431. CHAP. XII.] THE PARSON'S COUNSELLOR. "213 But though the freehold of the church be in the par- Whatthe parson son, yet he cannot pull down any of the seats anciently ^"^Jrch" '" ' * erected, or of late erected, but by licence from the bishop, or by the consent of the churchwardens. If any seats annexed to the church be pulled down, Nov, los. the property of the materials is in the parson, and he may make use of them if tliey were placed in the church by any one of his own head, without legal authority ; but for the seats erected by the parisiiioners, by good authority, I take it, the property of the materials upon removal is in the parishioners. The churchwardens, with the approbation of the par- who may dis- son, may by custom dispose of the common seats, built P'^^e of the seats. , ^ . , . , '-^ Rolls, 288. at the charge of the parish, and place the parishioners g. i,2. therein, according to their degrees and qualities, but no gp^ l^^^X such custom can exclude the bishop from a temporary Hob. 69. disposition of such seats: but the bishop cannot grant v Btardesre seats to a man and his heirs, because they must be at- H 30&3iCar. tendant to the houses. 28^g^3^^°"'' But the bishop has no power to dispose of the seats Parson's Law, in any private chapel next to the church, that is not • o • • maintained and repaired at the parish charge. The seats in the chancel are properly in the disposal Holt v. Eiiyj, of the rector or parson ; but it should seem that a °^' ^^^' parishioner may prescribe for a seat there. As a seat in a church, so priority in a seat may be pre- scribed for. E. 2 Cha. Noy, 78. In some places where the parson repairs the chancel, the vicar, by prescription, claims a right of a seat for his famil}', and of giving leave to bury there, and a fee upon the burial of any corpse. As to the right of a seat in the chancel, it was originally inherent in every vicar ; for before the re- formation, part of the service was to be there performed by him. 1 Burn's Eccl, Law, 363. 214 THE PARSON'S COUNSELLOR, [part i. And note, that all that has been said before of seats, must be intended of such seats as noparticularparishioner has a right to by prescription ; for wheresoever any parishioner is owner of an ancient messuage, to which any seat has been used by prescription time out of mind ; there the ordinary, parson or churchwardens, have nothing to do in the disposing of such seats. jro. Jac. 667. About prescriptions for seats in churches, the law has Co. 12. 106. , ^ . J r • •. I 1 . 1 , , been controverted; tor sometimes it has been held, that the owner of an ancient messuage might prescribe to have a seat in the aisle of a church, which himself re- 3 Inst. 202. paired : after it went further for a seat in the body of Noy, 129. jijg church, wbich was repaired by him that prescribed to have it. [ 174 ] But the law is now settled in this case, that a man that is owner of an ancient messuage might prescribe for a seat in an}'^ part of the parish church, within which parish such messuage stands, although he have not used to repair it. Buxton V. Bate- And this was resolved in an action of the case brought B*R t 463 * ^y I^uxton against one Bateman, for disturbing him in a quire, in the body of YeJgreave church in Derbyshire, which Buxton claimed by prescription to his house, by all the judges of the King's Bench, and after affirmed Vide Syderfin, in ^ writ of eiTor in the Exchequer Chamber, so that 88,89,209. fhig point is now settled by all the judges in England. port. See i Keble, 754. how prescription to a seat ought to be pleaded (61). (6l) But if a person prescribe to have a seat in the nave of the church generally, without the consideration of repair- ing the seat, the ordinary may displace him, 2 Roll's Abr. 288. Reparation of a pew is strong evidence to support a prescription. In Pittman v. Bridger, 1 Phillimore's Rep, 325. Sir John Nicholl observed, <' A presumptive right must be clearly proved, the facts must not be left equivocal, and they must be such as are not inconsistent with the general right. " In the first place it is necessary to shew, that use and oc- CHAP. XII.] THE PARSON'S COUNSELLOR. 215 And as a man may prescribe for a whole seat in a CaWeton v. church, aisle or quire; so he may prescribe for the first, 'i"o''.J^oy.78. second, or other sitting or place in a seat. And in all these cases of prescriptions, the ordinary has nothing to do ; but the matter is solely determinable at common law. And as a man may prescribe to have a quire, aisle or Co. Ent. 8. b. seat in a church; so he may prescribe to an ancient Pre cHpiion for messuage, to have the sole burial of the dead, in such ° aisle, quire, or place in the church. Anciently none were admitted to be buried in the who may be church but priests, and those that were of clear life and ^'"■'*^',' '"^•'^ ' ciuircli. conversation. Spelm. Cone. 590. n. 9.451. — 11. 29, 545. cupation of the seat has been from time immemorial ap- purtenant to a certain messuage, not to lands ; the ordinary himself cannot grant a seat appurtenant to lands. " Secondly, It must be shewn that if any acts have been done by the inhabitants of such messuage, they maintained and upheld the right. At all events, if any repairs have been required within memory, it must be proved that they have been made at the expense of the party getting up the pre- scriptive right. The onus and beneficium are supposed to go together; mere occupancy does not prove that right. What might be the effect of long occupancy where no re- pairs have been necessary, I am not called upon to say. It is a common error to suppose that by mere occupancy pews become annexed to particular houses ; in country parishes tlie same families occupy the same pews for a long time, but I apprehend they still belong to the parish at large. If, how- ever, it is shewn that the inhabitants of a particular parish have repaired, that fact establishes that the burthen and benefit have gone together, and is inconsistent with the right of the parish still to claim the benefit, and is evidence of the annexation of the pew. Thus the uniform and exclusive possession of the inhabitants of a particular messuage, con- nected with the burthen of maintaining and repairing the seat, is evidence sufficient to establish a prescriptive right." 216 THE PARSON'S COUNSELLOR, [parti. [ 175] There was likewise anciently a payment due for Pavmentfor tliose that weie buried, called symboliim animae, or burials. pecunia sepulchralis ; and this was paid though the body was buried in another parish. Nothing to be But by the canon law, " Interdictum est omnibus Cone "xribu^ ^ Christianis terram mortuis vendere et debitam sepul- riensis. Can. 16. turam denesfare." But this must be intended in the '*"■ ■ churchyard ; for by another canon in the same council it is expressly decreed, " Quod nullus laicus in ecclesia sepelialur nisi in ceemiterio." Where one shall And by the Same council it is decreed, that " ubi Can""! decimas persolvebat vivus, sepeliatur mortuus." No churchyards Anciently there were no churchyards in cities, nor J!? *^'V"' f P^'"' burying of the dead; so that the archbishop of Can- terbury could not be buried in his own cathedral, till Cuthbert archbishop of Canterbury obtained licence from the king, that the archbishops might be buried in the cathedral at Canterbury. 2 Inst. 489. The churchyards are of common right to be fenced Co. c. 67. -^y ^j^p parishioners. Who may be By the custom of England, every person (except buried in the sucli as are afterwards excepted) may at this day be 13. q. 2. quEEsta buried in the churchyard of the parish where he dies, & tribus, & without payino; any thins; for breakin» the soil. sepelieudum. i j o ^ o o t.'''^ ] And by the custom of England, every parishioner church. (except as hereafter is excepted) may be buried in any common part of the church or chancel, paying the ac- customed fee to the parson for breaking the soil, which S Ira Concil ^^^ ^^^ most part is three shillings and fourpence in the 564. leges Ca- church, and six shillings and eightpence in the chancel ; nuti,cap. 20. ^^^ ^j^lg j^ ^^^j^ ^-^j. b,.gjii-i„g. ^f ^jj^ floQ,.^ and that is the reason that in some places the churchwardens have the fee for breaking up the church, though of common right it belongs to the parson ; and in this the custom must be observed. CHAP, xri.] THE PARSON'S COUNSELLOR. 217 Sir Edward Coke is of opinion, that any person may Who may set erect a tomb or monument for the dead in the chiirch, 3'ins^202. chancel, public chapels, or churchyards, in a convenient place; (but, I conceive, it must be intended by licence of the bishop, or consent of the parson and church- wardens :) and that if any body break it, the party that What remedj if set it there may have an action against those that break '^'■°''*^"- or pull it up, or deface it: and after the death of those More, 878. that set it, the heir shall have the action. ^^"'^' ^^^* Some persons are denied Christian burial, and there- Who may not be fore such persons are excepted in what is said before, ^"■''^'J ■" *'^*= r _ _ r ' church, or and may not be buried in the church or churchyard, churchyard, without special licence from the bishop. &\ld?'faten-''' dura, & ibid. That is, such persons as murder themselves, die ex- ^^^ ^\rj,j -. communicated; those that die in any mortal sin, sacri- legious persons and usurers; but of usurers the canon holds not in England. For gravestones, winding-sheets, coats of arms, penons, Gravestones, or other ensigns of honour, hanired up, laid or placed in *J^- SeeGraevii. ° , , . '^ ' . . , Rom. Ant. Vol, memory or the dead, the property remains m the ex- 12. p. 1316. ecutors, and they mav have actions against such as ^^°J^' ^,\^- -' -' " <=> 9 L. 4. 14. a. break, deface, or carry them away, or an appeal of Co. 12. 113. felony. See Co. 1 Inst. 18. b. The heir shall have the l^^'^'' "^'^ action, and b}' some the wife, or executors, that erected them against those that deface them in their time. The property of the bells, books, and other orna- Whose the bells, ments of the church, is in the parishioners, and in the jo^'^y 07 k custody of the churchwardens, who may maintain an o7H. 6. 32. action of trespass against such as shall wrongfully take jqh,4 p, them away, and the successors ma}' sue this action for Who may have the taking away in the time of their predecessors, and taktnK'i'hem. the damages recovered shall be to the use of the pa- rishioners; but they may declare ad damnum ipsorum, Cro. El. 179. or damnum parochianorum, and either way good, and • • b- • the release of one churchwarden shall not bar his com- Cro. Jac. 23. 218 THE PARSONS COUNSELLOR, [part i, panion ; or they may have an appeal of robbery, for stealing the goods of the church ((jl*). Property By the laws of England, in the time of popery, if a offermcjt^^ Stranger had taken my goods, and offered them to an 34 H.6. 10. imaffe in a consecrated church : this had made as eood °' * ■ "* a change of the property of my goods, as though I had [ 178 ] sold them in a market overt; but if I found the goods after in the wrong doer's possession, I might take them again. (6l*) Since this work went to the press, a decision has been made at nisi prius, which it may be useful to introduce here. Kent Lent assizes, March 17, I8I9. Cramp and another v. Bayley, clerk. This was an action of trover by the plaintiffs, churchwardens of the parish of St. John the Baptist, Margate, against the defendant as rector of that parish, to recover the value of certain black cloth which had been put up in the church in respect to the memory of the late Princess Charlotte, but which the defendant, the rector, had converted to his own use, by having it made up into coats, waistcoats, and other articles of apparel. After hearing the evidence, which only went to the alleged fact, Bayley, J. in his address to the jury, laid it down as the rule of law, that no person had a right to hang up what are called ornaments in the church without leave of the rector, because the freehold of the church was in him, and he might make his own terms for that leave. In general, where private individuals hung black cloth in the parish church, with the concurrence of the rector, there was a kind of understanding between them, that the cloth became the property of the rector. In the present case, however, there was no bargain between the plaintiffs and the defendant with respect to the terms upon which the cloth was to be hung in the church, and consequently the latter had no right to take any portion of the cloth, because by law he was not entitled to take such a property unless by matter of agreement between the parties to whom it belonged. Under these circumstances, that the plaintiffs were entitled to a verdict for the value of the cloth. Verdict for the plaintiffs, damages lol. CHAP. XII.] THE PARSON'S COUNSELLOR. 219 A man at this daj' may give or dedicate goods to q^^^^ ^„y ^^ God's service in such a church, and deliver tlieni into given to the the custody of the churchwardens, and thereby the pro- i|"h 4 jr.. perty is immediately changed, and the churchwardens Cro. Car. 343. may have an action for the taking them away. There has always been great reverence given to Reverence to churches and churchyards, and other places conse- ti'e church and ~ . ^ churchyards. crated to God's service; and anciently churches and churchyards were sanctuaries for traitors, murderers, robbers, thieves, and other malefactors ; and many laws were made for the regulation of them, and restraining that privilege, till at last sanctuaries, with great reason, were totally taken away; for they were not used like Numb. 35. v. n. the cities of refuge under the law, for those that un- awares killed others, but for all people, be the crime never so horrid. In the 26th of H. 8. sanctuaries were taken away in Where sanctua- high treason ; in the 27th of H. 8. they were taken avvay •"'cswere taken ^ o ' J J away. in wilful murder, rape, burglary, robbery in the high- Stat. 26 H. 8. way, or in any house, or in any * church or chapel, and ^^P; !£'„ ^ in wilful burning any house or barn witli corn. c. 12. * Fi'ustra ini- plorat ecclc>i.T auxillura qui in ipsam doliquit, c. 17. q. 4. Ad episcopos. But by a statute made in the 21st year of King [ 179 ] James they were finally taken away and abolished, they Sanctut^rL''*^^' having too long continued for the protection of the finally taken greatest malefactors, a thing unfit for hallowed places- ^^^''^' But that churches and churchyards should not be profanely used, is evident from the example of our Saviour, who cast out those that bought and sold in Mark ii.t. 15. the temple, and overthrew the tables of the money- changers, and the seats of them that sold doves : telling them, " my house shall be called of all nations the house of prayer, but you have made it a den of thieves." 220 THE PARSON'S COUNSELLOR, [part r. Courts not to be kept in churclics or churchwards. Can. 40. See Chamber- leu's Justice, 475, * Churcliyards. Fairs and mar- kets not to be in churches or churchyards. Can. 76. Can. 89. Stat. Winton. Cone. Cabilo- nensis, Can. 1 7. No fighting, &c. in churches and churchyards. [ 180 ] 5 Ed. 6. caj). 4. And in the council of Mentz it i.s forbid, " ut in ecclesiis aut in domibus ccclesiaruni vel * atriis placita seculaiia mininie fiant." And by a canon made in the sixth general synod at Constantinople, buying and selling is forbidden in churches and churchyards, wherewith a canon of our own, made in the time of King James, agrees. And by a statute made in the 13th 3'ear of EdvvJird the First it is enacted, " that fairs or markets should not be kept in churches or churchyards, for the honour of the church." There is a canon to this effect, " quod nullus secula- rium, nee in ecclesia, nee infra atrium ipsius ecclesia;, qualecunque scandalum, aut simultates excitare prae- sumat, nee arma trahere, aut quemcunque ad vulneran- dum, aut interficiendum appetere, quod si fecerit a com- munione privetur." And to the same effect there was a statute made in the fifth year of Edward the Sixth, " that if any parson, &.C. should by words openly quarrel, chide, or brawl, in any church or churchyard; that then it should be lawful for the ordinary of the place, the matter of fact being proved by two witnesses, to suspend a lay-person, ab ingressu ecclesise, and a clerk from the exercise of his office as long as he shall think fit, according to the quality of the offence. " And that if any person shall smite or lay violent hands upon any other in the church or churchyard, then, ipso facto, every such person shall be deemed ex- communicate. Chamberlcn's " And if any person, &,c. malicious>ly strike another Justice, 473. Jn any church or churchyard, with any weapon, or No striking or , ,, , . • • , , drawing shall draw any weapon m any church or cl)urch- weapons in the yard, to tlie intent to strike any other therewith ; churcby"ard. the party thereof convicted by verdict, or two lawful CHAP. XII.] THE PARSON'S COUNSELLOR. 221 witnesses, bef(jie the justices of assize, oyer and ter- miner, or justices of the peace in their sessions, shall have one of his ears cut off; and if he have no ears, then to be marked in tiie cheek with an hot iron, with the letter F. and ipso facto excommunicate" (62). It may be a question, what the meaning^ of these ,,. T 'si ] . ■ r ■ • , • 1 T, , Vi. Dy. 96. words, ipso tacto excommunicate, in tins act snail be p. 48. understood: whether it shall be without sentence de- ^''°^'i''i"* ,„ clarator}', or no? which is made a quaere in Dyer; but Lind wood, cap. by tlie canonists there must be a sentence declaratory, Q"»V"'^"""' •' •' iientiae, verb. or conviction. Cro. El. 919. See the same book, ipso facto, page GSO. See also 3 Inst. 177. and 6 Rep. 29. b. contra (63). And the law so abhors violence and force to be used in churches and churchyards, that it will not admit a De sun assault man to strike ajjain in his own defence in a church or |^"'«.*"^' °«* o plea in a churchyard ; and therefore the plea of de son assault churcii, &c. demesne, is not allowed for a good plea in that case. '^"' ^^' (62) By statute 2/ G. 3. c. 44. no suit sliall be brought in any ecclesiastical court for striking or brawling in any church or churchyard after the expiration of eight calendar months from the time when such offence shall have been committed. And it has been holden under the words of the act, " lay any violent hands,'' that churchwardens, or perha|)s private person.*, who whip boys for playing in a churcli, or pull off the hats of those who obstinately refuse to take them otf themselves, or gently lay their hands on those dii^turbing divine service, and turn them out of the church, are not within the meaning of this statute. I Hawk. 139. If a person steal a dead body from a church or churchyard with the shroud, it is felony. 2 Bla. Com. 429. And to steal a » body merely, is indictable as a misdemeanour. 2 T. R. 733. (03) There ought to be a precedent conviction at law, or else the excommunication must be declared in the spiritual court upon a proper proof of the offence there. 1 Haw. 139. Bilson v. Chapman, Cas. Hardwicke, 1(10. 222 THE PARSON'S COUNSELLOR, [part i. Arrest in churches, kc, punisliable. Cro. Car. 602. Ways through churches, &c. 18 E. 4. 8. a. 2 E. 6. cap. 4. Clergy taken away in sacri- lege. And to make an arrest in a church or churchyard, immediately after divine service, when it may be done elsewhere, is indictable and finable. And yet it hath been iield, that there may be a v/ay through a church or churchyard. By the statute of 1 E. 6. the benefit of the clergy is taken away from such as steal any goods out of any church or chapel. For the punishment of such as disturb the minister in the church, whilst he is reading divine service, or ar- resting the minister whilst he is attending divine service, see in the 1 1th chapter before, and stat. 50 E. 3. cap. 5. and 1 R. 2. cap. 15. And so much for the privileges of churches and churchyards. [ 182] Officers of the church. Kitchin, 194. De clericis, lib. 1. cap. 13.- Diilinct. 23. c. Quorundam Clericorum et dist. 25. per- lectus. Ostiarius may be taken for a clerk or sexton. The last thing I have to speak relating to churches, is the officers belonging to the same, which in time of poperj^ were many : as ostiarii, lectores, exorcistae, acolythi, psalmistse, cantores, &.c. He that minds to know the several duties of all these officers, or orders, may satisfy himself in Bellarmin's disputations, or in Gratian, with the manner of their ordinations (64). Amongst these the churchw^ardens and parish clerk or se.xton, w^io perform several of these offices, are not reckoned, and those are now the only officers of the church of England, and of whom 1 am now to speak. Churchwardens' office. Doct, and Stud. 118. 8H. 5.4. The office of the churchwardens is to take care of the repair of the church, and has the ordering of the bells and seats, and is to provide all books and orna- ment belonging to the church, and in his custody, and in their charge are all the goods of the church, and they are to provide bread and wine for the communion, (64) Vide 1 Burn's Eccl. Law, 375. eiiAP. XII.] THE PARSON'S COUNSELLOR. 223 and to see there be a decent communion table, with a table-cloth and carpet, and flagon, plate, and bowl of silver, gold, or pewter, for the service of the church, when the communion is administered ; they are to make levies, and raise money for the doing of all this in such manner as is before directed ; and at the end of their office they are to give an account of their receipts and disbursements to the parishioners, and what remains in ^t ^^^ ^ their hands upon such account, with all the goods or the church in their custodies, they are to deliver over to their successors. There are many things more belong to their office, but so well known, I need not mention them. These officers, b}' a canon made in the time of king By whom to be James the First, are to be chosen by the minister and ^^'^^.'^^gg, parishioners ; but if they cannot agree of the persons, then the parson, vicar, or curate, is to choose one, and the parishioners the other; but where the custom has 26 H. 8. 6. been to choose them all by the parishioners, without the jr ^y "' minister, the custom must be observed, notwithstanding the canon. By Hale Ch. Bar. (Hardres, 3790 every parish of common right ought to choose their own churchwardens, but because the manner of election varies, a custom may be alleged (65). (65) But such customs are to be construed strictly; for if through disagreement of the electors, or other circum- stances, the customary method of election cannot be fol- lowed, the custom is thereby laid out of the case, and the parish must elect according to the canon, i Nolan's Poor Laws, 41. Where the right of appointing exists in the parishioners, they are all upon an equal footing, and all power therefore resides in the majority. Staughton v. Reynolds, 2 Str. 1045. and the bishop's court cannot try the legality of the votes. R. v. Harris. 3 Burr. J 422. No person who lives out of the parish is eligible as church- 224 THE PARSON'S COUNSELLOR, [part i. warden, although he occupies land within it, and many re- sidents are exempted from serving the office by the common law; such as peers, members of parliament, and clergymen, attorneys, and clerks of the King's Bench. Others are pri- vileged by statute, as apothecaries, freemen of the surgeons' corporation in London, dissenters, those who prosecute a felon to conviction, Roman catholic ministers taking the oath and conforming to the regulations specified 3 Geo. 3 c. 32. Sergeants, corporals, drummers, and privates in the militia from their enrolment until their discharge. Churchwardens must be sworn into the office before they can take its duties upon them. The archdeacon is to ad- minister the oath, and his function is altogether ministerial, so that whatever reasons there may be to doubt of the party's qualification for the office, or the validity of his elec- tion, he cannot inquire into these matters, nor refuse to swear him on these accounts. By the can. i Jac. 89. church- wardens shall continue in office but one year, except chosen again in like manner. But this refers only to the period at which others should be appointed in their stead, for when once sworn in they continue in office, until those who are chosen to succeed them are in the same manner sworn in. If those persons who ought to choose churchwardens ne- glect to do so at the proper season, they may be compelled by writ of mandamus. In the same manner may the arch- deacon be compelled to administer the oath. 1 Nolan's P. L. 41, 42. By 9 Geo. l. c. 7. the churchwardens, with consent of the major part of the parishioners or inhabitants in vestry, may purchase houses to lodge and employ the poor in. Every churchwarden is an overseer of the poor by stat. 43 El. c. 2. As churchwardens may present in the tem- poral, so they may libel in the spiritual courts. 2 W. and M. 1 Burn's Eccl. Law, 409. Churchwardens are so far incorporated by law as to sue for the goods of the church, and to bring an action of tres- pass for them ; and also to purchase goods for the use of the parish: but they are not a corporation in such sort to purchase lands or to take by grant, except in London, where they are a corporation for those purposes only. Gibs. 215. And therefore if any one give land to the parish, for the CHAP. XII.] THE PARSON'S COUNSELLOR. 225 There were other officers called side-men, but they are side-men their almost laid aside: their office is to assist the church- office. , . , . , , , Cau. Jac. 90. wardens in doing duties, and tliey were to take care that nobody should loiter or talk in the churchyard or church-porch, and to see that the parishioners frequented the church, &c. The clerk or sexton is to be chosen by the parson or The clerk's vicar, or in their absence by the minister, who the p*'^% „. Sunday after such election, is by him that makes the election to be declared, who is elected. Use of the church, it must not be to the churchwardens and their successors ; hut it should be to feoffees in trust to the use intended ; which must be renewed from time to time, as the trustees die away. Gibs. 215. And church- wardens cannot bring actions in right of their office, after their office is expired, but their successors must do it. 1 Burn's Eccl. Law, 413. By 17 G. 2. c. 38. the churchwardens and overseers of the poor shall, every year, within fourteen days after the appointment of new overseers, deliver in to such overseers an account in writing of all sums of money received, and assessed, and not received; and of all goods to be wrought by the poor, arid of all monies paid ; and shall pay over all sums of money, &c. in their hands to the succeeding over- seers. Such account to be verified upon oath, or in case of quakers, upon affirmation before a magistrate, which oath, &c. such justice is authorised to administer, and to sign the caption at the foot of the account. And the said book is to be preserved by the churchwardens, • q"' this kingdom, for tlie maintenance of the minister tliat hath the cure of souls within the parish where he is rector, or patron, and properly comprehends, Integra Speiman'sGhss. ecclesia parochialis, cum omnibus suis juribus praediis, verbo rector, 12. decimis, aliisque proventuum speciebus: alias vulgo dictum beneficium. And sometimes it is taken pro mansione, seu domicilio rectoris. And though properly a rectory or parsonage doth KtH. 7. 8. a. consist of glebe land and tithes with the offerings; yet |',|"/^;/s,"rrei, it may be a rectory, though it have no glebe but the m. .s Car. b. R. church and churchyard; and in some places, as in London, and other great towns and cities, there may neither be glebe nor tithes; but annual payments and ibid. offerings in lieu tliereof, and b}' the djrant of a rectory [ 191 ] all the glebe, tithes, and offtriugs will pass. A vicarage is a cantel or poi tioii of the rectory set Cap. qnoniiim out by the patron, parson, and ordinary, for the main- q"',u'^rcarum.^ tenance of a perpetual vicar, who, as vicegerent of tiie parson, hath the cure of the souls within the parish where he is vicar. But a vicarage may consist of land or tithes alone, or of glebe, tithe, and offerings, or in an annual pensiou without glebe or tithes; and such pcn- 242 THE PARSON'S COUNSELLOR, [part i. Indowments be- fore and within memory. See infra, 193. [ >92] How to be ex- pounded. 2 Rolls, 3:J3.7. Ibid. 335. 8. Reynells v. Green, M. 10 Jac. B R. Hetlev,70.135. sions have been limited by several canons, first to five marks, after it was extended to si.\ marks, and lastly to eight. A vicar can have tithes but by gift, composition, or prescription; for all tithes de jure do appertain to the parson. March. Rep. iL Generally vicarages are indowed with glebe a,nd tithes. Of indowments, some are beyond all lime of me- mory, that is, so long ago, that it is not known in what lime or age the same was made, and in such case it shall be presumed, that the vicar was indowed with such share of the rectory, tithes, and offerings, as the vicar and his predecessors have enjoyed by all the time of the memory of any man. But if the indowment itself be extant, then the vicar must be content with such part of the rectory as he is thereby indowed with. But if these indowments be ancient they shall be ex- pounded according to the usage since. And therefore if a vicar were anciently in the time of Henry the Third, or before, indowed de decimis garbarum, arising in such a village, hamlet, or place, and have by colour of this indowment, as long as any body can remember, had the tithe hay as well as tithe corn of the same villages, hamlets and places, it shall be presumed that in those days hay past by that name. So if a vicar were anciently indowed de ininutis de- cimis, and have by colour of this indowment, by all the time of memory, had the tithe of some small parcel of wood ; although tithe of wood in its own nature be accompted a great tithe, yet the vicar shall enjoy the tithe of this wood by reason of the usage. If a vicarage were anciently indowed de altaragio, which properly signifies the offerings at the altar; yet if the vicar, by colour of this indowment, by all the time of memory have enjoyed the small tithes, he shall have them still. CHAP. XIII.] THE PARSON'S COUNSELLOR. 243 If a vicar be indowed of all the tithes arising in the 2 Rolls, 234. 7. parish (except corn), and certain fields or srrounds in ^i'^*" . I ^ -11 -I Owen, 74. the parish, have time out oi mind been sown with corn, till of late they have been planted with hops, or sown with saffron, wood, rape, &,c. the vicar shall have the tithe and not the parson. And if the vicar be indowed of all the white tithes, [ 193 ] ,, . , . . . „ . , . , • I 2 Rolls, 335. or small tithes ai ismg, renewing, &,c. within the parish, and 3 Cro. he shall not by this indowment have the small tithes ^''2- ^78. arising upon the glebe lands of the rectory, though they Hetley,335. should afterwards be severed from the rectory. Wmch. 70. And it hath been resolved, that upon a general in- Vicars shall not dowment of a vicarage, the vicar shall not pay the tithes Pj'/j,g'_ of his glebe land to the parson. crompton's case. P.7Car. l.B.R. If the vicar be indowed of all the small tithes, and M^itter upon ^ , , , , , . , J indowinents. atter lands that have been sown with corn, or mowed 2 Rolls, 335. 5. for hay, time out of mind, whereof the parson hath had the tithe, and these lands are since converted to hop yards, or sown with saffron, wood, rape, &c. the vicar shall have the tithes, and not the parson : for the in- dowment goes not to the lands, but the tithes. A vicar enjoyed a tithe time out of mind, which was Hardress, 323. not in his indowment; and adjudged srood, and shall ^^^ , . ' . , , T ^ee supra, 191. be intended an augmentation made by the parson. If a vicar be indowed of all the tithes arising upon a > HoIIs. 23j. 6. manor, he shall by such indowment have not only the tithes of the demesne and tenements, but also of the freeholders' lands within the manor. The parsonage of Luffenham, in Leicestershire, the [ 194 j 22d of Edward the Fourth, was appropriated to the abbey of Sully, upon condition that a vicarage should be indowed, A vicar from time to time ever since was R 2 'i44 THE PARSON'S COUNSELLOR, [part r. presented and paid first-fVuiis, hut no indowment now extant, it shall now be intended that it was indowed. The indowments of vicarages have been alwa3's fa- voured at law, the vicars for the most part having the cure of souls. Upon what oc- Indowments of vicarages were for the most part made casion vicarages ypQ,;, jJ-k^ appropi iatinsT of churches to reliffious houses, were indowecl. ' . . . Seiden de Deci- &.C. and upon the appropriation they did usually assign mis, 371, j/5( some small portion of the rectory to maintain a perpe- tual vicar to serve the cure, and took the rest of the rectory to the use of abbeys, &c. But in process of time the abbots, &c. grew better husbands, and took the whole rectories to themselves, without indowing of any vicar, and served the cures by their own monks and friars ; by which means hospi- tality was neglected, the churches and rectory houses dilapidated, the minister often wanting; whereupon the i5R. 2 cap. 6. statute of 1.5 R. 2. and 4 H. 4. were made, for the 4 H. 4. cap. 18. , . • i i • • i • i makmg void such appropriations as were made without Bretton v. competent indowment of vicarages, and likewise against M. i7jac B. R. the appropriating of vicarages ; but vicarages indowed before those statutes, might notwithstanding those sta- tutes have been appropriated. [ 193 ] But though for the most part vicarages were indosved Sine curas how yp^p appropriations; yet sometimes the parsons, pa- trons, and ordinaries did indow vicarages without any appropriation of the parsonage. And if the vicar were charged upon such indowment with the cure, as for the most part they were, then the parsonage became a sine cura; of which more hereafter. How an impro- The parson, or appropriator, is patron of the vicar- resTored.'"^^ ^ ^8^ ''^y coDimon right; yet nevertheless a layman 17E. 3. 5i.b. mijjht have been patron of a vicarajre as well as the SPE.'s 3.3 a parson, and so might the king; and the advowson of a 19 E. 2. quare vicarage may be appendant to a manor by prescription, impedit. 178. CHAP, xiii.] THE PARSON'S COUNSELLOR. 245 and it shall be intended it was granted by tlie parson 2Roll$, 33(.. E. 5. U E, 3. 8. 16. beibre the time of meinory. it should s( em that at the common law, before the Fiveiiold of the statute of 14 E. 3. the freehold of the vicaraee remained I'u^"^^' '" in the parson, and that the nrseeipe was to be brought '' E. ,). .50. ». against the parson; and before that statute the vicar y e' 3" g \, could not have had a juris utrum, and he shall still have aid of the patron, parson, and ordinary. And as the vicarage was parr, and taken out of the parsonage, so it may be again re-united. For if the profits of the parsonage or vicarage fall How a vicarage into such decay, that either of thein by itself is not suf- ^^nL-iL ficient to maintain a parson and vicar, they oueht again ^' H.6. I4 a. , . J ' - ^ ° 40 E. 3. 28. I., to be re-united. And the parson atid ordinary, in the time of the va- ^ [ '^'j j cation of the vicarage, may re-unite the vicarage to the h. 1. parsonage. And if a vicarage so fall into decay, that the same is Where a vicar- m, . ■ • • I a"e may be en- cient, competently to maintain a vicar, the lurked, and how. bishop may judicially compel the parson lo enlarge the ii^'''- '>-'2- vicarage or a[)propriator; but by Catisby. '22 E. 4. 24. b. 22 E. 4. 24, b. such augmentation must be made by the bishop, patron, P^''' ^'«"sbj-. and ordinary (70). It haih been resolved, that where there is a j)arsonage How a vicarage and vicarage indowed, that the bishop in the vacation '"!'•'' ^^ dis- sulv6d. may dissolve the vicarage. But if the parsonage be i'^rry v Banck*. impropriated, the bishop cannot dissolve the vicaraee : ''■^ Jac. Scar. ,. 1- 1 • I , . , Palmer, 219. ror upon a dissolution liie cure must revert, which it cannot into lay hands: for where there is a parsonage (70) It may seem doubtful how far such an invasion of private property would now be considered to be law ; in all events, the institution of Queen Anne's bounty, Jmd the par- liamentary grants for the augmentation of small livings, have removed a pretext for making an attempt to put such a lav-' into. execution. 246 THE PARSON'S COUNSELLOR, [iart i. and vicarage, they both have the cure; the parson habituahter, the vicar actualiter; per N05'. Howthe rectory If an Impropriator or appropriator, patron of a vicar- n"av brre-^*^ ^S^> ^Y agieement between him and the ordinary, pre- unitcd. sents to the parsonage, by this they are re-united; and sn/ttss^ '•' seems that a bare presentation, without any agree- 11 H. 6. 18. b. ment at all, disappropriates the parsonage, and re-unites the vicarage. [ 197 ] If any ciiarge fall upon the vicarage, it ought to be ScTJ:'X 'epaired by the parson, is to free it And SO much of parsonages and vicarages. SI H. 6. 11. a. A donative, A donative is a spiritual preferment in the church, q"id- chapel or vicaraee, which is in the free n'lh or collation More, 765. „ f ° ,' , . '^ . , Cro. Jac. 6a. (^' the pation, without making any m-esep-tation to the Yelv. 60. bishop^*y /^.'< ^ . > with coii- (. Chapel J •' I Licence J sent of •< ^ ^'^^i" \ this day of in i. (juardians ) •' the year r Rector"^ by me J. J. < Vicar > LCurate J A B This marriage was solemnized between ua ^ rj' in the pre- c E. F. sence or p ^ ** XVL And be it further enacted by the authority afore- persons con- said, that if any person shall, Iroin and after the twenty-fitth victcd of making day of March, in the year one thousand seven hundred and a 'alse entry m •' > J r 1 • I ^"^ ''^"^ register, fifty-four, with intent to elude the force of this act, know- ingly and wilfully insert, or cause to be inserted in the re- gister book of such parish or chapelry as aforesaid, any false entry of any matter or thing relating to any marriage ; or falsely make, alter, forge, or counterfeit, or cause or procure ^^ of forging. to be falsely made, altered, forged, or counterfeited, or act &c. any such or assist in falsely making, altering, forging, or counterfeit- *^""'^'' ing any such entry in such register; or falsely make, alter, or of forging. forge, or counterfeit, or cause or procure to be falsely made, &:c. any licence, altered, forged, or counterfeited, or assist in falsely making, altering, forging, or counterfeiting any such licence of mar- riage as aforesaid ; or utter or publish as true any such false, 262 THE PARSON'S COUNSELLOR, [part i. altered, forged, or counterfeited register as aforesaid, or a copy thereof, or any such false, altered, forged, or counter- feited licence of marriage, knowing such register or licence of marriage respectively to be false, altered, forged, or or of destroying Counterfeited ; or if any person shall, from and after the with an ill in- said twenty-fifth day of March, wilfully destroy, or cause or ■ jg^ ' procure to be destroyed, any register book of marriages, or any part of such register book, with intent to avoid any marriage, or to subject any person to any of the penalties of this act; every person so offending, and being thereof law- fully convicted, shall be deemed and adjudged to be guilty to suffer death, of felony, and shall suffer death as a felon, without benefit of clergy. Marriages of the «< XVII. Provided always. That this act, or any thing roya amiy, therein contained, shall not extend to the marriages of any of the royal family, and of Quakeri " XVIII. Provided likewise. That nothing in this act con- and Jews, and tained shall extend to that part of Great Britain called Scot- Scoihnd" Vr" be- '^"^> "O"" ^'^ ^"y marriages amongst the people called Quakers, yond the seas, or amongst the persons professing the Jewish religion, where excepted. jj^^j^ ^j^g parties to any such marriage shall be of the people called Quakers, or persons professing the Jewish religion respectively , nor to any marriages solemnized beyond the seas. This act to be " XIX. And be it further enacted by the authority afore- read in all parish gaid, That this act shall be publicly read in all parish churches pubHc chapels. ^"^ public chapels, by the parson, vicar, minister or curate of the respective parishes or chapelries, on some Sunday immediately after morning prayer, or immediately after even- ing prayer, if there shall be no morning service on that day, in each of the months of September, October, November and December, in the year of our Lord one thousand seven hundred and fifty-three, and afterwards at the same times, on four several Sundays in each year, (that is to say,) the Sundays next before the twenty-fifth day of March, twenty- fourth dajf of June, twenty-ninth day of September, and twenty-fifth day of December respectively, for two years, to be computed from and immediately after the first day of January in the said year one thousand seven hundred and fifty-four." I CHAP, xiv.] THE PARSON'S COUNSELLOR. 263 An act for the better regulating and preserving parish and other registers of births, baptisms, marriages, and burials, in England. [28th July, 1812.] " Whereas the amending the manner and form of keeping and of preserving registers of baptisms, marriages, and burials, of his majesty's subjects in the several parishes and places in England, will greatly facilitate the proof of pedigrees of per- sons claiming to be entitled to real or personal estates, and be otherwise of great public benefit and advantage; Be it therefore enacted by the king's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that, from and after the Officiating mi- thirty-first day of December one thousand eight hundred "etisters^nf^^** and twelve, registers of public and private baptisms, marriages, public and pri- and burials, solemnized according to the rites of the united "^^te baptisms of church of England and Ireland, within all parishes or burials. chapelries in England, whether subject to the ordinary or peculiar, or other jurisdiction, shall be made and kept by the rector, vicar, curate or officiating minister of every parish, (or of any chapelry where the ceremonies of baptism, mar- riage and burial liave been usually and may according to law be performed) for the time being, in books of parchment, or of good and durable paper, to be provided by his majesty's printer as occasion may require, at the expense of the re- Parishes to pro- spective parishes or chapelries; whereon shall be printed, vide suitable upon each side of every leaf, the heads of information herein purpose, required to be entered in the registers of baptisms, marriages, and burials respectivel)', and every such entry shall be num- bered progressively from the beginning to the end of each book, the first entry to be distinguished by number one; and every such entry shall be divided from the entry next follow- ing by a printed line, according to the forms contained in the schedules (A.) (B.) (C.) hereto annexed; and every page of every such book shall be numbered with progressive numbers, the first page being marked with tlie number 1, in the middle of the upper part of such page, and every sub- sequent page being marked in like manner with progressive numbers, from number 1. to the end of the book. 264 THE PARSON'S COUNSELLOR. [paht i. King's printer to " IL And, for better ensuring the regularity and uni- trausmit to each formitv of sucli repister books, be it further enacted, That a parish a prnited , •' p ' , ' copy of act, and printed copy of this act, together with one book so prepared register booivs jig aforesaid, and adapted to the form of the register of adapted to forms , . -i i • i i i i ^ . , , ■ t prescribed. ba[)tisms prescribed m the schedule (A.) to this act annexed ; and also one other book so prepared as aforesaid, and adapted to the form prescribed for the register of marriages in the schedule (B.) to this act annexed ; and also one other book so prepared as aforesaid, and adapted to the form prescribed for the register of burials in the schedule (C ) to this act annexed, shall, as soon as conveniently may be after the passing of this act, be provided and transmitted by his ma- jesty's printer to the officiating ministers of the several parishes and chapelries in England respectively, who are hereby required to use and apply the same in and to the purposes of this act; and such books respectively shall be proportioned to the population of the several parishes and chapelries, according to the last returns of such population made under the authority of parliament ; and other books of like form and quality shall for the like purposes be furnished from time to time by the churchwardens or chapelvvardens of every parish or chapelry, at tlie expense of the said parish or chapelry, whenever they shall be required by the rector, vicar, curate, or officiating minister to provide the same; and all such books shall be of paper, unless required to be of parchment by such chtu'chwardens or chapelwardens re- spectively. Reelsters in " ^^^' ^^"*^ ^^ ^^ further enacted. That such registers shall separate register be kept in such separate books aforesaid, and that every '""'"• such rector, vicar, curate, or officiating minister shall as soon as possible after the solemnization of every baptism, whether private or public, or burial respectively, record and enter in a fair and legible handwriting, in the proper register book to be provided, made, and kept as aforesaid, the several par- ticulars described in the several schedules hereinbefore men- tioned, and sign the same ; and in no case, unless prevented by sickness, or other unavoidable impediment, later than within seven days after the ceremony of any such baptism or burial shall have taken place. Certificate of " ^^* "^"^ ^^ '^ further enacted. That whenever the baptism, &c. CHAP. XIV.] THE PARSON'S COUNSELLOR. 265 ceremony of baptism or burial shall be performed in any when performed other place than the parish church or churchyard of any i" other place 111/. 11 -I t'""^ parish parish (or the chapel or chapelyard of any chapelry, provid- church, &c. ac- ioff its own distinct registers) and such ceremony shall be cording to c- . u • • . . u • .1 ; • schedule (D.) performed by any mmister not being the rector, vicar, Entry of bap- minister or curate of such parish or chapelry, the minister lism, &c. who shall perform such ceremony of baptism or burial shall, d'stingmshed ^ "^ . , accordingly, on the same or on the next day, transmit to the rector, vicar, or other minister of such parish or chapelry, or his curate, a certificate of such baptism or burial in the form contained in the schedule (D.) to this act annexed; and the rector, vicar, minister, or curute of such parish or chapelry, shall thereupon enter such baptism or burial according to 5uch certificate in the book kept pursuant to this act for such purpose ; and shall add to such entry the following words, ' According to the certificate of the reverend transmitted to me on the day of ** V. And be it further enacted. That the several books Register books wherein such entries shall respectively be made, and all kept in custody register books heretofore in use, shall be deemed to belong " .". '^'''V"? s> . mnnsterin iron to every such parish or chapelry respectively, and shall be cliest, provided kept by and remain in the power and custody of the rector, ^^ expense of • , m • • • • £-1 • parish. Vicar, curate, or other orhciating minister or each respective parish or chapelry as aforesaid, and shall be by him safely and securely kept in a dry well-painted iron chest, to be provided and repaired as occasion may require, at the ex- pense of the parish or chapelry, and which said chest con- taining the said books shall be constantly kept locked in some dry, safe, and secure place within the usual place of residence of such rector, vicar, curate, or other officiating minister, if resident within the parish or chapelry, or in the parish church or chapel ; and the said books shall not, nor shall any of them, be taken or removed from or out of the said chest, at any time or for any cause whatever, except for the purpose of making such entries therein as aforesaid, or for the inspection of persons desirous to make search therein, or to obtain copies from or out of the same, or to be pro- duced as evidence in some court of law or equity, or to be inspected as to the state and condition thereof, or for some of the purposes of this act ; and that immediately after making such respective entries, or producing the said books re- 266 THE PARSON'S COUNSELLOR, [part i. spectively for the purposes aforesaid, the said books shall forthwith again be safely and securely deposited in the said chest. Annual copies of « VI. And be it further enacted, That at the expiration registers made; ^^ ^^^ months after the thirty-first day of December one and verined by . . officiating mini- thousand eight hundred and thirteen, and at the expiration *'*^'"' of two months after the end of every subsequent year, fair copies of all the entries of the several baptisms, marriages, and burials, wliich shall have been solemnized or shall have taken place within the year preceding, shall be made by the rector, vicar, curate, or other resident or officiating minister, (or by the churchwardens, chapelwardens, clerk, or other person duly appointed for the purpose, under and by the direction of such rector, vicar, curate, or other resident or officiating minister) on parchment, in the same form as pre- scribed in the schedules hereunto annexed (to be provided by the respective parishes); and the contents of such copies shall be verified and signed in the form following, by the rector, vicar, curate, or officiating minister of the parish or chapelry to which such respective register book shall ap- pertain. " ' I A. B. rector [or, as the case may be] of the parish of C. [or, of the chapelry of D.] in the county of E. do hereby solemnly declare, that the several writings hereto annexed, purporting to be copies of the several entries contained in the several register books of baptisms, marriages and burials, of the parish or chapelry aforesaid, from the day of to the day of are true copies of all the several entries in the said several register books re- spectively from the said day of to the said day of ; and that no other entry during such period is contained in any of such books respectively, are truly made according to the best of my knowledge and belief. Signed A. B.' Which declaration shall be fairly written, without any stamp, on the said copy immediately after the last entry therein ; and the signature to such declaration shall be attested by the churchwardens or chapelwardens, or one of them, of the parish or chapelry to which such register books shall belong. Annual copies of «' VII. And be it further enacted, That copies of the said [rSsmitt'edto register books, verified and attested as aforesaid, shall. CHAP. XIV.] THE PARSON'S COUNSELLOR. 267 whether such parish or chapelry shall be subject to the registrar of dio- ordinary, peculiar or other jurisdiction, be transmitted by *^"^* such churchwardens or chapelwardens, after they, or one of them, shall have signed the same, by the post, to the re- gistrars of each diocese in England within which the church or chapel shall be situated, on or before the first day of June one thousand eight hundred and fourteen, and on or before the first day of June in every subsequent year. " VIIL And be it further enacted. That the registrar of Registrars to every diocese in England shall, on or before the first day of make reports to July one thousand eight hundred and fourteen, and on or copies* h'aveleen before the first day of July in every subsequent year, make a sent in. report to the bishop of such diocese, whether the copies of the registers of the baptisms, marriages, and burials, in the several parishes and places within such diocese, have been sent to such registrar, in the manner and within the time herein required ; and in the event of any failure of the trans- mission of the copies of the registers as herein required, by the churchwardens and chapelwardens of any parish or chapelry in England, the registrar shall state the deftiult of the parish or chapelry, specially in his report to the bishop. *' IX. And be it further enacted. That in case the rector, „_ . . ,„..... „ . , Officiating nii- vicar, or other omciatmg minister or curate or any parish or nister neglecting chapelry shall neglect or refuse to verify and sign such to verify copies copies of such several register books, and such declaration as cliu^chwarii*'ens*' aforesaid, so that the churchw-ardens or chapelwardens shall to certify default. not be able to transmit the same, as required by this act, such churchwardens or chapelwardens shall, within the time required by this act for the transmission thereof, certify such default to the registrar of the diocese within which such parish or chapelry shall be, who shall specially state the same in his report to the bishop of such diocese. " X. And, for the obtaining of returns and registers of places where no baptisms and burials in extra-parochial places in England, church, &c. where there is no church or chapel, be it further enacted, J!,*'^;"""'^^"' °^ That in all cases of the baptism of any child, or the burial of delivered to any person in any extra-parochial place in England,'according "fficaung nuni- to the rites of the established church, where there is no parish, church or chapel, it shall be lawful for the officiating minister, within one month after such baptism or burial, to deliver to 268 THE PARSON'S COUNSELLOR, [part i. the rector, vicar, or curate of such parish immediately adjoin- ing to the place in which such baptism or burial shall take place, as the ordinary shall direct, a memorandum of such baptism or burial, signed by such parent of the child baptized, or a memorandum of such burial, signed by the person employed about the same, together with two of the perspns attending the same, accord mg as the nature of the case may respectively require ; and every such memorandum re- spectively shall contain all such particulars as are herein- before required ; and every such memorandum delivered to the rector, vicar, or curate of any such adjoining parish or chapek)', shall be entered in the register of his parish, and form a part thereof. Letters, &c. " XJ. And be it further enacted. That the superscriptic-t.i containing an- upon all letters and packets containing the copies of such nual copies ol '■ . ' . ° * register books parish or Other registers, to be transmitted by the post to the free of postage, several offices of the said registrars as aforesaid, shall be indorsed and signed by the churchwardens or chapelwardeus of every respective parish and chapelry in England, in the form contained in schedule (E) ; and that all such letters and packets shall be carried and conveyed by means of his majesty's post office to, and be delivered at, the offices of the said registrars, without postage or other charge being paid or payable for the same. Annual copies of " XIL And be it further enacted, That when and so often register books ^^ ^j^g copies of the said register books of baptisms, marriages, ■when transmit- .' . ° • • c- \ • \ ted to resiistrars, and burials as aforesaid, and also the said lists of births, kepttromda- baptisms, marriages or burials as aforesaid, shall be trans- " ' mitted to the office of the said registrars respectively, as aforesaid, pursuant to the directions hereinbefore contained for that purpose, the said registrars shall respectively cause all the said books and lists to be safely and securely de- posited, kept, and preserved from damage or destruction by fire or otherwise, and to be carefull}' arranged for the pur- pose of being resorted to as occasion may require ; and the Alphabetical said registrars respectively shall also cause correct alphabetical '''*^*- lists to be made andkept in books suitable tothepurpdse,ofthe names of all persons and places mentioned in such books and lists as shall have been transmitted to the said registrars re- spectively, which alphabetical lists and books, and also the GHAP. XIV.] THE PARSON'S COUNSELLOR. 269 copies of registers and lists so transmitted to the said re- gistrars as aforesaid, shall be open to public search at all reasonable times on payment of the ubual fees. XIII. " ' And whereas in many dioceses the places wherein the copies oftheparochial registers of baptisms, marriages, and burials, as well as the original wills proved within the same respectively are kept, are insufficient for their being pre- served with due care ; for which a remedy should be applied in those dioceses where it shall be found necessary;' Be it Report 'to privy further enacted. That, in order to a due examination thereof, •^"" "=''"» ""■ ' ' ' betore 1st the bishop, together with the custodes rotulorum of the March, I813, several counties within each diocese, and the chancellor '"especting thereof, shall, before the first day of February one thousand for preservation eight hundred and thirteen, cause a careful survey to be ol' copies of re- made of the several places in which the parochial registers, fjpij^g,. °'rjLt„ai and the wills proved within the diocese, are kept; and shall wills in each make a report to his majesty's niost honourable privy council, 'j'ocessj 3"" ' , f, , r \ f '"'" remuneration or the state of the same, on or before the first day of March of registrars' following, setting forth in each case whether the buildings "tticers. are in all respects fit and proper for the preservation of" papers of the above description, as well with respect to space as to security from fire, and to protection from damp, and if not, at what probable expense they can be made so; and where the instruments and papers before mentioned are kept in dwelling-houses or other places, which cannot be made fit and secure for the due preservation thereof, then and in such case the persons before named shall enquire and report in like manner at what expense proper buildings may be provided, and in what places, so as to have one place within each diocese for the due preservation of all such registers and wills; together with their opinion upon the most suitable mode of remunerating the officers employed in each registry, for their additional trouble and expense in carrying the pro- visions of this act into execution. " XIV. And be it further enacted, That if any person p^igg cities or shall knowingly and wilfully insert, or cause or permit to be laise copies of inserted in any such register book of such baptisms, burials, ^^""■'f > <"" alter- •' *^. , . iiii.', &c. register or marriages as aforesaid, or in any such copy of any such book, register so directed to be transmitted to the registrars as aforesaid, or in any such lists or declarations also directed to be transmitted to such registrars as aforesaid, any false entry 270 THE PARSON'^ COUNSELLOR. [part i. Transportation. Persons commit- ting accidental errors not af- fected, if duly corrected ac- cording 10 truth of case. Fees heretofore payable ; of any matter or thing relating to any baptism, burial, or marriage, or shall falsely make, alter, forge or counterfeit, or cause or procure, or wilfully permit to be falsely made, altered, forged or counterfeited, any part of any such register, list, or declaration, or of any such copy of any such register ; or shall wilfully destroy, deface, or injure, or cause or pro- cure or permit to be destroyed, defaced, or injured, an)' such register book, or any part thereof; or shall knowingly and wilfully sign, or certify any cop)'^ of any such register hereby required to be transmitted as aforesaid, which shall be false in any part thereof, knowing the same to be false ; every person so offending, and being thereof lawfully convicted, shall be deemed and adjudged to be guilty of felony, and shall be transported for the term of fourteen years. " XV. Provided always, and be it enacted. That no rector, vicar, curate, or officiating minister of any parish or chapel, who shall discover any error to have been committed in the form or substance of the entry in the register book of any such baptism, burial, or marriage, respectively by him solemnized, shall be liable to all or any of the penalties herein mentioned, if he shall within one calendar month after the discovery of such error, in the presence of the parent or parents of the child whose baptism may have been entered in such register, or of the parties married, or in the presence of two persons who shall have attended at any burial, or in case of the death or absence of the respective parties aforesaid, then in the presence of the churchwardens or chapelwardens, (who shall respectively attest the same) alter and correct the entry which shall have been found erroneous, according to the truth of the case, by entry in the margin of the book wherein such erroneous entry shall have been made, without any alteration or obliteration of the original entry, and shall sign such entry in the margin, and add to such signature the day of the month and year when such cor- rection shall be made : Provided also, that in the fair copy of the registers respectively which shall be transmitted to the registrars of the dioceses, the said rector, vicar, curate, or officiating minister shall certify the alterations so made by him as aforesaid. " XVL Provided always, That nothing in this act con- tained shall in any manner diminish or increase the fees CHAP. XIV.] THE PARSON'S COUNSELLOR. 271 heretofore payable or of right due to any minister for the performance of any of the before mentioned duties, or to ^'■°^'i'° '"'■• any minister or registrar, for giving copies of such registra- tions, but that all due legal and accustomed fees on such occasions, and all powers and remedies for recovery thereof, shall be and remain as though this act had not been made. " XVn. Provided also, and be it enacted, That no dupli- Copy of register cate or copy of any register of baptism, marriage, or burial, P"'> snot sub- made under the directions and for the purposes of this act, duty. shall be chargeable with any stamp duty thereon ; any act . now in force to the contrary thereof in any wise notwith- standing. *' XVIII. And be it further enacted. That one half of the Application cf amount of all fines or penalties to be levied in pursuance of penalties, this act shall go to the person who shall inform or sue for the same j and the remainder of such fines as shall be im- posed on any churchwarden or chapelwarden shall go to the poor of the parish or place for which such churchwarden or chapelwarden shall serve ; and the remainder of such fines as shall be imposed on any rector, vicar, minister, or curate or registrar, shall be paid and applied to such charitable pur- poses, in the county within which the parish or place shall be, as shall be appointed and directed by the bishop of the diocese. " XIX. And be it further enacted. That the rector, vicar, List of extant curate, or officiating minister of every parish and chapelry in register books England, whether subject to the ordinary, peculiar, or other reXTa"btfSe jurisdiction, shall transmit to the registrar of the diocese in isTjune, 1813. which the parish or chapelry shall be situated, before the first day of June one thousand eight hundred and thirteen, a list of all registers which now are in such parish or chapelry respectively, stating the periods at which they respectively commence and terminate, the periods (if any) for which they are deficient, and the places where they are deposited. " XX. And be it further enacted. That all and every the ... , ,, , « . Act to extend provisions in this act shall extend, so tar as circumstances ,o churches and will permit, to cathedral and collegiate churches, and chapels chapels not of colleges or hospitals, and the burying grounds belonging ^^'^"'^ '^ • thereto ; and to the ministers who shall officiate in such cathedral or collegiate churches and chapels of colleges or hospitals, and burying grounds respectively, and shall baptize, 272 THE PARSON'S COUNSELLOR, [pary r. Marriage act, 26 G. 2. c. 33. Proviso for. marry, or bury anyperson or persons, although such cathedral or collegiate churches or chapels of colleges or hospitals, or the burying grounds belonging thereto, may not be parochial, or the ministers officiating therein may not be, as such, pa- rochial ministers, and there shall be no churchwarden or churchwardens thereof; and in all such cases, the books hereinbefore directed to be provided, shall be provided at the expense of the body having right to appoint the officiat- ing minister in every such cathedral or collegiate church or chapel of a college or hospital ; and copies thereof shall be transmitted to the registrar of the diocese within which such cathedral or collegiate church or chapel of a college or hospital shall be, by the officiating minister of such church, in like manner as is herein directed with respect to parochial ministers, and shall be attested b}' two of the officers of such church, college, or hospital, as the copies of parochial re- gisters are herein directed to be attested by churchwardens : Provided always, that nothing in this act contained shall extend to repeal any provision contained in an act passed in the twenty-sixth year of the reign of his late majesty King George the Second, intituled An Act for better preventing^ Clandestine Marriages.*' :iiAp. XIV.] THE PARSON'S COUNSELLOR. 273 4-1 ^S 2 3 = — rS ,0 c l^ii a O KU »• >^ «? . u "3 s S o %. t'. «-> H S ,c CQ (4-. O- o o ,5 s O *J oJ cu «3 u.i: o J3 o:S S "a ■< Ph • TS • -a E o S 2 C z rs "fee CO c .2 1 "§ — ; 03 .-3 N 1 "1 "5 3 .£| x: O ^ 3 ffi § n3 "^ 0) .E2 "c S E a C4-1 C Cm *© — C3 •^ .2 to C ^ CO o _'2 3 ^ o -i 'O cr; H Ph — ■ < « . 3 2^ "0 CO c3 G S a ._» ^1 -rs cs $ CO "" C '^ c Z ^ i 274 THE PARSON'S COUNSELLOR. SCHEDULE (B.) [part I. 1. MARRIAGES solemnized in the Parish of St. A. in the County of B. in the Year One thousand eight hundred and thirteen. were mar this A-B.of {;|;fJParish and C. D. of | [[j? } Parish • J- ^i.- r Church "> , r Banns ") •., . c f Parents ned m this { ^j^^^^i j by | ^.^^^^^^ | with consent of | ^^^^dians Day of in the Year {Rector Vicar Curate This Marriage was solemnized between us ] p' pv" In the presence of •] p" u } SCHEDULE (C.) BURIALS in the Parish of A. in the County of B. in the Year One thousand eight hundred and thirteen. Name. Abode. John Wilson No. 1. Duke Street, Westminster. When Buried. 1813. 1st May. Age. 62 By whom the Ceremony was performed. SCHEDULE (D.) I do hereby certify, that I did on the da}' of baptize according to the rites of the united church o: England and Ireland, son (or daughter) of and ' his wife, by the name of To the rector [or, as the case may be] of CHAP. XIV.] THE PARSON'S COUNSELLOR. I do hereby certify, that on the day of A. B. of aged was buried in [stating the place of burial], and that the ceremony of burial was performed according to the rites of the united church of Eng- land and Ireland, by me. To the rector [or, as the case may be] of 275 SCHEDULE (E.) To the Registrar of the Diocese of at . Ti ^ Churchwardens (or chapelwardens) of the parish (or c' D r chapelry) of ■J [or such other description as the case shall require.] t2 THE PARSONS COUNSELLOR. PART II. ^ THli LAW OF TITHES OR TITHING. I TO HIS WORTHY AND REVEREND SON-IN-LAW, MR. ANTHONY TROLLOP, RECTOR OF NORBURY, IN DERBYSHIRE. DEAR SON, It is now above thirty years since the Tithing Table, published many years ago, came to my hand ; and upon perusal thereof finding that the common laws and canon laws differed in many things, I thought it would be a work grateful to the clergy, and useful to others, to publish something in order to the reconciling of them : to which end I gathered together some materials ; but the war coming imme- diately on, and after that the ecclesiastical courts being laid aside, and other courses found out for the recovery of tithes, I desisted the farther prosecution of that design, until it was revived at your request, seconded by some other reverend divines ; whereupon looking up 280 my old notes, and adding such judgments and resolutions that I have since come to the know- ledge of, the whole is reduced to the form I here present it to you. You have most right to it, and I heartily wish it may be of as great service and advantage to you, and all the reve- rend clergy, as is desired by him that is Your affectionate Loving father, S. D. THE PARSON S COUNSELLOR. PxlRT II. THE LAW OF TITHES OR TITHING. CHAPTER I. What Tithes are, the several sorts and kinds thereof, and in ichat mariner due. Having in the former part of this discourse shewed the worthy and reverend clergymen in what manner they may lawfully and justifiably attain to such prefer- ments in the church as they are capable of, and in what manner they may avoid all the perils and dangers that attend the beneficed clergymen : it rests now that I shew them what profits they may justl}' challenge to belong to their church preferments, and in what manner to be paid, and how to be recovered, if need require. r 214 i And first of tithes, which the canonists define tithes to be, A tenth part or portion of increase, commanded to be Defiuition. paid to the sons of Levi for their ministry, wherein they served in the tabernacle. Or, as some others define them they are, " Omnium .bonorum licite quacsitorura quota pars Deo divina in- s.titutione debita." But the common lawyers define them to be, An ecclesiastical inheritance collateral to the estate Co. 11.13. b, of the land, and of their own proper nature due only to -an ecclesiastical person, by the ecclesiastical laws. 282 THE PARSON'S COUNSELLOR, [part ii. 4 Leon. 47. Division. Doct. & Siud. 1. 2. c. 55. p. 168. b. [215 ] Linwood, c. Quoniam prop- ter verbis divi- dend, est deci- 2 Inst. eJ'J. Roll, 1. 635. a. Linwood, c. Quoniam prop- ter verbis tall- bus decimis. And for that reason no unity of possession can extinct or suspend them ; but they, notwithstanding such unity, remain in esse, and may be demised or granted, not- withstanding such unity: but may more properly, in my judgment, be defined to be, A tenth part, or some other thing in lieu thereof, of all the increase yearly arising forth of the profits of the lands and stocks, or raised by the industry of the parishioner, and properly due to the clergy that have the cure of the souls in the parish where they arise. And by some canonists tithes have been divided only into two kinds, that is, predial and personal: and in this manner of division they comprehend all manner of tithes that arise either immediately or mediately from the land, under the name of predial tithes; which they again distinguish into predial, mediate, and immediate; under which they comprehend the tithes of corn, hay, wood, herbs, and all other things that either come from the ground by manurance, or of its own nature; and under the name of tithes predial mediate, is compre- hended tlie tithes of all manner of cattle and other things that receive their nourishment from the ground. But tithes by the common lawyers (and which division 1 shall observe in my discourse) are divided into predial, mixt, and personal: and according to this division all tithes that arise from the ground, as before is said, im- mediately, are only accounted to be predial ; and those that arise from cattle and other things, that receive their nourishment immediately from the ground, they call mixt; and those that arise from the labour and industry of man alone, personal. Tithes again both by the common lawyers and canonists are divided into great tithes, in Latin majores, seu grossae decimae; and into small tithes, in Latin mi- nores, or minutae decimae. And in this division, corn, hay, and wood are all accounted gross or great tithes. But there has been some question, whether tithe wood should be accounted a great or minute tithe ; and re- CHAP. I.] THE PARSON'S COUNSELLOR. 283 solved that if a vicar be onl}' indowed with the small Roils, 1.643. tithes, and have by reason thereof always had tithe wood, that in such case it shall be accounted a small tithe, otherwise it is to be accounted amongst the great 2Bulst. 27. tithes. And wood has been twice adjudged to be a ^i^J^ Rep. 244. small tithe, as Littleton reports. But all manner of tithes of gardens, herbs, roots, Cro. El. 467. fruit, saffron, woad, whether sowed in fields or gardens, ^^"°"' '^l' Till 11 1 *-^''°" • ^ • flax, hemp, hops, rape, and all other predial personal Rolls, 1.643. and mixt tithes are accounted inter minutas decimas ; ^" ''• but in Udal's and Tindal's case, Hutton, 77- in some Palmer, 2i9. cases hops, woad, Sec. may be great tithes in places where they are much sowed (73). And herein the custom of England is kind to the Linwood, c. poor vicars, making many things to be allowed for Sr^y'rb' talXs minute tithes that are not so in others. dedmis. I have been the longer in this division of tithes, gpeim. Gloss. between great tithes and small tithes, because many 28.Cro.Ei.37S. vicarages are endowed with the small tithes only; and wmd'i. 70.* in some old endowments you will find the word altar- Quo jure debit, agium, which by custom may as well comprehend the small tithes, as such profits as arise from the altar. Now perhaps it may be expected 1 should say some- thing to satisfy the reader by what law tithes became due under the gospel. But in that point I find so great a difference between the canonists, school men, and divines, that it would be a great presumption in me to take upon me to determine the point; the rather because 1 am informed by a reverend, learned, and grave divine, that the learned Selden retracted his opinion therein; Heylin's Hist, of and what it was you may see in the places noted in the SeTd. Hbt^'d^-' margin. cim. c.5.sect. 4. ... 7 This retraction of Selden's is also published in Dr. '^' ' (73) Hops have been ranked with hemp, saffron, and tobacco, and it is declared that all such new things shall be miiiuta; decimae. Wallis v. Payne, Gwill. 1557. 6 Bac. Abr. 733. 284 THE PARSON'S COUNSELLOR, [part h. ( 217 3 Comber's preface, to the first part of his History of Tithes. But Mr. Wood (Athenae Oxon. part 3. f. 108.) says he was forced to do it. Which seems plain by these two passages of Mr. Selden. " Cum Richardus Montacutius (postea Episcopus Norvvicensis) in se recepisset Historiae Decimarum, rege annuente, confutationem, rex mihi acrius interdicens response aliquo, mihi dixit, si aut tu ipse aut quis ami- corum in confutationem illam (quse paulo post furore plenissimo Anghce exiit) scripseritis, in vincula te con- jiciam. Quod confutationis futuraj, puto, non exigua per se confutationis instar fuit. Vindiciae de Scriptione Maris Claus. 19." " Sed adjiciendi plura de homine (speaking of Dr. Montague) locus hie non est; uti nee plura aperiendi de lite ilia decimarum acriter nimis, non dico quam feliciter, a compluribus contra nos, manum interea de tabul.'i, non sine jussu principali, cui libentissime pare- bamus, secure retinentes disputata. Numerosus sane est libellorum, quos ea occupat, cumulus ; sed diu est quod annosa satis, et satis vexata, prudenter, puto, sopita est. De dis syris (Edit. Amstel.) p. 285, 286." And in the end But SO far as I havc observed, they all agree in this, ^e'JeE'Vhe that tithes quoad sustentationem cleri vel ministrorum question. Dei are Jure divino: so that the sole question amongst all these learned men is about the quantity, or quota pars. But be they due jure divino, jure ecclesiastic©, or jure humano, I conceive the difference cannot be great, since, as it must necessarily be confessed, they have [ 218 ] been given and consecrated Deo et sanctai ecclesiaB ; Pre 55^M64 ^"•^ ^° being dedicated to God and his service (in my b. 165. e. poor judgment) the taking them away from the proper use and end, cannot be less sacrilegious, than if they were without dispute jure divino. I shall not therefore stuff this present discourse with the argyments of any side, but shall leave the learned to their own conceits, it serving my purpose that they be due by any law, divine, human, or ecclesiastical. My next examination shall be to whom they are due. CHAP, n.] THE PARSON'S COUNSELLOK. 285 CHAPTER n. I 218 ] To whom Tithes are due, and by nhom to be paid. Having shewed in the former chapter vvliat tithes are, and the several kinds thereof, I shall in the next place shew to whom the same are due. That there were infeudations of tithes before the To whom tithes parochial rights were settled, is without dispute both pg^^j"*^*" here in England, and in other Christian kingdoms and selden's Hist. commonwealths : in which particular the curious may decira. 178, &c, satisfy themselves in Mr. Selden's History of Tithes, ^o.^sse. q. ss!* and other authors. And it is more clear, that before art. 3. conclu- the time that the parochial right of tithes were settled, that the owners of lands might grant their tithes to ecclesiastical or religious persons (a multitude of pre- [ 219 ] cedents 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. Sec. and some to the parsons and rectors of other parishes ; which is the reason why at this day there are several portions of tithes held from the parish churches by impropriators and rectors of other parish churches. When the parochial right of tithes was first settled, ^vhen the there hath been (as should seem) a vulgar error. For rochiai right of it is frequently said in our common law books, that ^q [[ -J^'^g^a^"' before the general council of Lateran, which was held 43E. 3. 5. 1179, that every one was at liberty to give his tithes 1. s^c. 53" to what spiritual, ecclesiastical, or religious })erson he Co. 2.44. b. 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. Linwood, a learned 286 THE PARSON'S COUNSELLOR, [part ii. 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 Linwood, c. a ggjjg notucrunt laici decimas in feudum retinere, Jocai.et conduct. r ... ^ verb, portion. et cas alter! ecclesiae dare ante concilium Lateranense, non tamen post," &c. Selden's Hist. But there is no canon in that council to be found, 2^InTt.64i. whereby the parochial right of tithes was settled, nor SeldendeDec. was the parochial right of tithes settled till the year 289.4 . 1200, and then not by any canon, but by a decretal epistle of Pope Innocent the Third, a brief of which [ 220 ] epistle here follows, as I find it in Mr. Selden's History Decr'eU.^^p'^' ^'^ Tithes, and in Sir Edward Coke's Institutes. 45'2.Edit.Colen. " Pervenit ad audientiam nostram, quod multi in Selden's Hist, of ^ • .. j ■ • .. i i . • Tillies 231. diocesi tua decimas suas integras veJ duas partes ipsarum non illis ecclesiis, in quarum parochiis habitant, vel ubi praedia habent, et a quibus ecclesiastica percipiunt sa- cramenta, persolvunt; sed eas aliis pro sua distribuunt voluntate: cum igitur inconveniens esse videatur eta Innocents, tells rationc dissimilc, ut ecclesiae, quae spiritualia seminant, us in his Epistles, j^^etcrc iiou debcaut a suis parochianis temporalia, et that tithes are . . / 1 ■ i • i i i i • i due to the parish habere, tratemitati tuae (being directed to the archbisho|> priest de com- ^f Canterbury) authoritate praesentium indulsiemus, ut mum jure. Vid. -i • i i t • i Decretal. Greg, liceat tibi super hoc, non obstante contradictione vel 1. 3. de decirais appellationc cuiiislibet sen consuetudine hactenus ob- c. 3. Cum ui r r J ... tua dioces. et servata, quod canonicum fuerit ordinare, et facere quod statueris per censuram ecclesiasticam firmiter observari : nulli ergo, 8cc. Confirmaiionis, &c. Datum Lateran. 2 Nonas Julii." I must acknowledge I give the reader this a little imperfect for want of the original; and it was Sir Edward Coke's case also ; for I perceive he 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 archbishop of Canterbury) that the parochial right of tithes was not generally settled of long after, that is, by a canon made in the ibid. c. 29. Cum conlingat. CHAP. II.] THE PARSON'S COUNSELLOR. 287 council of Lyons, which was in the year of our Lord Vide Selden's 1274, under Gregory the Tenth, in which council, it is 147. ** ' "' said, there is a canon for the settHng the parochial [ 221 ] right of tithes, but not found among the canons of that council. But whether that were the original, or a con- firmation of some other decree or council, I dare not take u[ion 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 Godolph. Rep. 1 . r ^^ ^ i • i Can. !J53. as to the province or Canterbury; so that in that pro- vince 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. Mr. Doctor Godolphin in his Repertorium Canoni- cum seems not satisfied, that it is a vulgar error in our books, that before the council of Lateran, every one P^g^ 358. was at liberty to give his tithes to what spiritual or religious person he pleased; and to prove a settlement of a parochial right of tithes by a council of Lateran, he cites a canon made by Innocent the Third in the second council of Lateran held in the year of our Lord 1 120, sixty years before the council held under Alexander the Third, 1179, or as some have it 1180, where he Linwood.si. b. says it was decreed that the religious persons, viz. the ^^'f '^^ ^^ ^^*^* Cistertians, Hospitallers, Templars, and those of St. John of Jerusalem, which by the Popes Paschal and Adrian were exempted from payment of tithes, should pay the same to the parochial incumbent, whereby a parochial right of tithes was settled by a Lateran council, as he concludes. But I wonder the doctor should mistake himself so p ^22 i much; for first, there was no Lateran council in the year 1 120, and he himself in his catalogue of the councils mentions none to be held that year, but assigns the second Lateran council to be held in the year 1131, Page6i6. wherein the doctor is again mistaken ; for the second Lateran council that is not reckoned among the general 288 THE PARSON'S COUNSELLOR, [part fr. councils, was held under Paschal the Second, 1112. And the second general council held in the Lateiran was held under Innocent the Second, anno 1 139, but of neither of these councils are any acts to be produced ; besides, Pope Innocent the Third entered not upon the papacy till 1 199, and so could hold no council 1120. But I presume the doctor meant the council of Lateran held under Innocent the Third, 1215, where there is a canon something like that the doctor men- tions; for by that council it is decreed, that the Cister- tians, and all other orders privileged from the payment of tithes (without enumerating any more of the orders) should pay tithes of such lands as they should purchase after that council, although they held them in their own Decret. Greg. proper hands; " Ecclesiis quibus ratione praediorum 1. 3. tit. 30. antea solvebantur, nisi cum ipsis ecclesiis aliter duxerint Ccip. 34. ' componendum :" but this can settle no parochial right, for it is only that the tithes shall be paid to the churches, cjuibus antea .solvebantur. And that the parochial right r 223 1 of tithes was settled before that council, appears clearly SeldendeDec. by the very ncxt canon of that council; for there being Can! 35. complaints made in that council that divers clerks, as well regular as secular, upon grants and leases of their lands, took covenants of their grantees and tenants to pay their tithes to the grantors in prejudice of the parish priests, it was therefore decreed, " Quod quicquid fuerit occasione hujusmodi pacti praeceptum ecclesiae paro- chiali reddatur;" this word reddatur proves sufficiently that the parochial right was settled before that time; Greg. Dicrct. and Pope Innocent the Third, in several of his epistles, c so.'^Cumtua declares that they are due to the parish priests de com- Dioces. & ibid, muni j urc. tTngat.*^"™ *^°"' ^^^^ l^^^l the parochial right of tithes was not settled by any general council, but by a papal constitution, SeldendeDec. appears clearly by what Sir Robert Parning says, who ^^*' lived within an hundred 3'ears of this time, and was after 7E, 3.5. a. chief justice of the Common Pleas, who could not be ignorant how the parochial right cf tithes was settled; CHAP. II.] THE PARSON'S COUNSELLOR. 289 and he says, that in ancient time before a new con- stitution made by the pope, the patron of a church might grant tithes within liis parish to another parish. But whether the parochial right of tithes was settled the one way or the other, it seems that all former grants were nullified, or otherwise the constitution had wrought small effect to the end it was designed, the greatest part of the tithes being before that time granted to monasteries, as may be observed in the Monasticon C 2^* I Anglicanum. But notwithstanding this constitution, many of the abbots held out against the parish priests, who durst not, or were not able to contest them, and after claimed the tithes by prescription, that is to say, by forty years possession, which is a prescription allowed by the eccle- siastical courts ; and that is the reason that many por- tions of tithes are at this day held by impropriators that had been gained by the abbots by such prescriptions, and not by their ancient grants, and b}' this means they got their prescription de non decimando : for the canon law does allow one clergyman to prescribe against an- other, but not a layman by any means to the prejudice of the church. But if a clergyman, secular or regular, Seld. de Dec. continue to have the possession of a portion of tithes in '^'' another parish quietly forty years, this shall make him a good title against the proper incumbent, and the same law holds de non decimando: for if a clergyman re- Greg. Decret. licrious, secular, or regular, hold any land forty years '• 2- '"tscc 6. ° . 1 1 11 1 1 1 • 1 . ad aures nostras. together tithe free, he shall hold tithe free for ever; but if a layman hold lands tithe free a thousand years, it Ibid. c. 7. cau- avails him nothing by that law. *^™ *^"*' ^' But after the parochial right of tithes was settled, it Selden's Hist. is clear, that no layman was capable of tithes in per- j'eci'n. 398. and nancy, but in particular cases, till the statutes by which 478. the monasteries and religious houses were dissolved. ^ i V.^ ^ ,.11 I • -1 1 ' Co. 2. 44. a. enabled them: but in some special cases Jaymen were Laymen capable capable of tithes in pernancy, as in the case of Pigot °^ "'''" '" ^"' and Heron cited in the bishop of Winchester's case, Co. ^i'. 45. a. u 290 THE PARSON'S COUNSELLOR. [part ii. More, 599. Laymen capable of titties in per- nancy by tbe statutes of the dissolution of abbeys. All the tithes belonging to the rector prima facie. Portions by pre- scription. Greg. Deer prescip. 14 H. 4. 17. a. 44. Ass. p. 25. Rolls, 1.657.0. [ 226 ■) Selden's Hist, of Tithes, 161. How prescrip- tions are to be proved. Seidell's Hist, decim. 364.209. Selden,399. Extra parochial tithes. 7 E. 3. where the case is put, that the lord of a manor, and all those whose estates he had in the manor time out of mind, had paid to the parson of D. (in whicli parish the manor lay) for the time being, a certain sum for the mamtenance of divine service in contentation of all tithes arising within the said manor, and that in con- sideration thereof he, and all those whose estates he had in the said manor b}' the time aforesaid, had and enjoyed all the tithes arising in the said manor: and in this case it was adjudged, that the lord of the manor 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 manor. But since the several statutes made for the dissolution of monasteries, those tithes which were appropriated to the religious houses so dissolved are become lay- fee, and any laymen 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 not appropriated belong to the rector of the parish church wherein they arise; yet not- withstanding the parson of one parish may prescribe to have a portion of tithes in the parish of another; and so might abbots, priors, and other religious persons prescribe to have portions of tithes in parishes whereof they had not the advowsons, and by consequence the patentees from the crown, and tlie impropriators may claim the same by prescriptions in the abbots, priors, &c. and the usage since tlie dissolution will serve to prove the prescription and usage in the abbots, &c. that they held the same so time out of mind. But no layman at this day is capable of liihes in pernancy but under the statutes of dissohition, unless by a grant by the bishop, parson and patron made before the disabling statutes. As for extra-parochial tithes, there have been some differing opinions. Sir William Herle was of opinion, CHAP. II.] THE PARSON'S COUNSELLOR. 291 that they belonged to the bishop of the diocess, as general parson of his whole diocess, grounding his opinion, as it should seem, upon the canon law; but there was never any such canon received or approved in this kingdom. Mr. Selden is of opinion, that tithes of increase of Selden's Hist. lands not limited to any parish maybe disposed of arbi- ^^'^'™- ^'^^• trarily in like manner as other tithes might before the parochial right of payment was established. Selden de Decimis, 365. But it hath been resolved both in parliament and by 21 Ass. 75. several judo-ments at common law, that all extra-pa- t^?,^^'^V:^ '' ~ . . . ' Kolls, 1.657.0. rochial tithes belong to the king, who is a mixt person, 10 H. 7. 18. a. and capable of tithes at the common law in pernancy. 5. part 128. Now having shewed in general who are capable of tithes in pernancy at this day, and to whom of common j. J ?^^ ^ right they belong, I shall proceed to shew to whom cords, 50. they are due in some particular cases. If a parson lease his glebe lands, and do not also In particular grant the tithes thereof, the tenant shall pav the parson ^i^ses to whom . , ^T 1-1 tithes are due. tithes. iSay, though the parson lease his lands " cum Cro. El. iGi. omnibus proficuis et commoditatibus eidem spectanti- ■'^gf "^^ ^h^ par- ' . . r son s own lease. bus," renderinq; rent, " pro omnibus exactionibus et Owen, 39. demandis quibuscunque;" yet notwithstanding the ten- m"^3T&3"'e1' ant shall pay the parson the tithes arising upon these B.R. Co. ii. lands. 13^b.D,eM3. p. 22. est quare. The like law it is, if an impropriator, vicar, &c. make Hetly, 31. u 1 o Against his such lease, &C. feoffment. And as the parson shall have tithe of his own tenant, Co. I. in. a. • C 1 1 13 b SO he shall have of his feoffee: and if a parson hath Cro. El. 26i'. lands in ihe same parish whereof he is jjarson, and de- mises his tithes, he shall pay tithes to his farmer. If a parson sow his ground, and then sell the emble- Dyer, 43. p 21. ments (I mean the corn growing upon the ground) the Moyie v. Ewre, buyer of the corn shall pay the tithe of it to the parson Roils, 655. k. r. that sowed and sold the corn. So if a parson sow his glebe land, and then lease the u 2 292 THE PARSON'S COUNSELLOR, [part ii. C. 10. 88. b. 21 H. 6. 30. a, Uphaven v. Humphries, 40. El. per Poph. & Gawdy V. Fenner. [ 228 ] Br. Embl. y. ace. 2. contra. To whom the tithes in the va- cation belong. Stilt. 28 H. 8. c. 11. Rolls, (jr,5, k. 3. C. L. .5,S. 6. Cap. Nuiius Recior verb, decesserint. Whether tlie vi- car and parson shall pay to each other. More, .910,457. Crompton's case p.V.Car.l.B.R. Hetiv, 133. Cro."El. SIS. Winch. 70. Tithes may he- long to a chapel. More, 437. 910. Hetlv, 135. Winch. 701. 1.3 Ass p. 2. Dyer, 87. East. Ent, Tresp. in dismes 4. &c Praemunire in Rome 4. land, the tenant shall pay his parson landlord tithe of this corn. There have been some opinions, that if the parishioner sow his lands, and before severance the parson die, that in this case the parson's executors and not his successor should have the tithes. Br. Einb. L>. cont. And there have been some opinions, that if the parson sow his glebe and die before severance, that his ex- ecutors sliould not pay tithes of liis corn. Br. Emble- ments. But both these cases, if they had been law, are put out of doubt by the statute 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 in- cumbent, which hath taken away all pretence the ex- ecutors 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 lifetime, as the executors of other tenants for life have by the law. And so it is settled by the statute of 28 H. 8. before- mentioned ; but if the parson, vicar, &.c. sow the land and be deprived, resign or accept another living, the successor shall have the tithe (74). It hath been held, that the vicar upon a general en- dowment shall not pay tithes of his glebe to the parson, or the fruits that arise from the same, " Quid decimas ecclesia ecclesiae reddere non debet," without special words. 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 by prescription may be appendant to an ancient chapel. (74) Where there has been no incumbency for several years, the successor is intitled to the tithes of the whole interval. Hard. 329, CHAP. II.] THE PARSON'S COUNSELLOR. 293 And note, that bv the canon law, personal tithes are Decret. Greg, to be paid where the party communicates, but predial su*^„tGlo'^s.verbo to the parson within whose parish the land lies, Lind- diversa. wood, cap. Sancta Ecclesia. De decimis, in the gloss [''229"^ verbo nesrotionum. By an act of parliament made in the seventeenth A law for the re- year of the reign of King Charles IL it is enacted. That ptSr'^ every owner or proprietor, owners or proprietors of any p?rish churches, impropriation, tithes or portions of tithes in any parish or chapelry within the kingdom of England, or dominion of Wales, is, are, or shall be, by virtue of this act enabled and empowered to give and bestow, unite and annex the same, or any part thereof, unto the parsonage or vicarage of the said church or chapel where the same do lie or arise, or settle the same in trust for the benefit of the same parsonage or vicarage, or of the curate or curates there successively, where the parsonage is im- propriate, or no vicar entiowed, according to his or their respective estates, without any licence of mortmain, any law or statute to the contrary notwithstanding. And it is farther enacted by the same act. That if the settled maintenance of such parsonages, vicarages, churches and chapels so united, or of any parsonage or vicarage with cure, in the kingdom of England or do- minion of Wales, shall not amount to the full sum of one hundred pounds per annum, clear and above re- prises, that then it shall and may be lawful for the par- son, vicar or incumbent of the same and his successors, to take, receive and purchase to him and his successors, lands, tenements, rents, titlies or other hereditaments, without an)' licence of mortmain, any law or statute to r 230 ] the contrary' notwithstanding. This is an excellent law, which I hope inay turn 29 Car. 2. cap. very much to the benefit of the church, and there is An act for the 1 1 r • 1 1 ,-1 I I 1-1 ^rv.i confirniing and anothei benehcial Jaw ior the church, made in tlie 29tn coiithmance of year of the reign of the late King Charles the Second, augmentaiioui. that relates. Whereas divers archbishops, bishops, deans and chapters, and other ecclesiastical persons, in obedi- 294 THE PARSON'S COUNSELLOK. [part ii. ence to his majesty's letters, bearing date the first of June in the twelfth year of his majesty's reign, and out of a pious care to improve poor vicarages and curacies, \vhere the endowments thereof were found too small to afford a competent maintenance to those that serve the cure, have, since his majesty's happy return, upon the renewing" of leases of rectories of tithes im- propriate or appropriate, made, or may hereafter make, divers reservations beyond the ancient rent, to the intent the same should or might become payable to the said vicars or curates, in augmentation of their endowments, which have been for the most part enjoyed accordingly. But in regard such reservations were not made to the vicars or curates, or if they were, no convenient remedy could be had by such vicars or curates, for the recovery, thereof, and they were not at the time thereof capable of taking any to their own use, whereupon the provision will depend upon the good pleasure of tiie successor, and may in time be disappointed. For establishing [ 231 ] whereof, it is enacted, that all and every augmentation of what nature soever, granted, reserved or agreed to be made payable since the first day of June in the twelfth year of his said majesty's reign, which shall at any time hereafter be granted, reserved or made pviyable to any vicar or curate, or reserved by way of increase of rent to the lessor, but intended to be to and for the use or behoof of any vicar or curate, or h}' any arch- bishop, bishop, dean, provost, dean and chapter, arch- deacon, prebendary, or other ecclesiastical corporation, person or persons whatsoever, so making the said re- servation, out of any rectory impropriate or portion of tithes belonging to any archbishop, bishop, dean, provost, dean and chapter, or other ecclesiastical cor- poration, person or persons, shall be deemed and ad- judged to continue and remain, as well during the con- tinuance of the estate or term upon which the said augmentations wer^ granted, reserved or agreed to be made payable, as afterwards in whose hands soever the CHAP. ii.J THE PARSON'S COUNSELLOR. 295 said rectory or portion of tithes shall be chargeable therewith, whether the same be reserved again or not. And the said vicars and curates respectively are hereby adjudged to be in the actual possession thereof, for the use of themselves and their successors, and the same shall for ever hereafter be taken, received and enjoyed b}' the said vicars and curates, and their successors, as well during the continuance of the term and estate on which the said augmentations were granted, reserved or agreed to be made payable as afterwards: and the gaid C -^- ] vicars and curates shall have remedy for the same, either by distress upon the rectory impropriate, or por- tions of tithes charged therewith, or by action of debt against that person who ought to have paid the same, his executors or administrators, any disability in the person or persons, bodies politic or corporate so grant- ing, or anj' disability or incapacity in the vicars or curates to whom or for whose use or benefit the same were granted or intended to be granted, the statute of mortmain or an^' other law, custom, or other matter or thing whatsoever to the contrary notwithstanding. I'rovided always, that no future augmentation be None to be con- confirmed by virtue of this act, which shall exceed one ''''""^'i '^'•'ch . '' exceed one moiety oi the clear yearly value, above all reprise, of m-.iety of the the rectory impropriate out of w hich the same shall be ''^'^'"O'' "^c. granted or reserved. And to the end the said vicars and curates may the better make appear the certainty of the said augmenta- tions; be it enacted, &c. that every archbishop, bishop, dean and chapter respectively, on or before the 29ili day of September next coming, shall cause every lease or grant wherein any augmentation is made, to be fairly entered into a book of parchment, to be kept by their respective registers for tliat purpose. And every dean, archdeacon, prebendary or other ecclesiastical person respectively, shall cause every lease or grant whereupon such augmentation hath been made, by himself, his r 233 i predecessor or predecessors, to be entered in the said 298 THE PARSON'S COUNSELLOR, [part ir. book to be kept by the register of the bishop of the diocess, for entering whereof no fee shall be paid, nor any thing demanded, save only a reasonable reward to the clerk for the entering the same, not exceeding 5s. which said entry being examined by the respective archbishop, bishop or dean, and by ihera respectively attested in the same book to be a true copy of the original lease or grant, and the augmentation in the same was intended for such use, shall be as a record, a true copy whereof proved by witnesses to be a true copy, shall be deemed, taken, adjudged and expounded to be good and sufficient evidence in the law, wherein the said vicars and curates respectively shall and may by virtue of this act from time to time recover the benefit of such augmentation. Augmentations And be it further enacted, that where any archbishop, though not ex- bishop, dean and chapter, or any other ecclesiastical prest iu any new corporation or person whatsoever, upon the renewing or granting any lease or estate, have made any agree- ment for an augmentation for the vicar or curate, and the said augmentation hath for any time been accord- ingly paid, although the said agreement is not expressed or mentioned in the said lease or grant, every such ecclesiastical person shall cause the substance of such agreement to be entered in the said book, to remain for a memorial of it to perpetuity, r 234 ] -^^^ ^^ 's further enacted, that such auginentation so entered shall likewise continue and be for ever hereafter good and available in the law, for the benefit of the vicar or curate for whom it was intended, and their successors, as well against the archbishop, bishop or ecclesiastical corporation or person who agreed for the same, and his and their successors, as against every other person enjoying the said rectories or portions of tithes intended to be charged therewith in the same manner, and for which they shall have the same remedy as they should or ought to have by virtue of this act, as CHAP. II.] THE PARSON'S COUNSELLOR. 297' if the same had been mentioned and reserved in and by the lease. And if any question shall hereafter arise concerning Such reserva- the validity of such grants, or any other matter or thiiifr t'ons shall have , . . , I . , , -, , , favourable con- in this act mentioned and contained, such lavourable structions. constructions, and such further remedy if need be, shall , , , , , 1 r I , ^ ,. , . , And rehevable be had and made lor the beneht or such vicars and by commission- curates as heretofore have been had and made, or may ers for charitable uses. be had for other charitable Uses. And it h further enacted, that if upon the surrender, j^ases made, expiration or other determination of any lease wherein wherein the such augmentation as aforesaid, hath or shall be granted, shalh'iotlje" ' any new lease of the premises or any part thereof be mentioned, to made without express continuance of the said augmenta- tion, every such new lease shall be utterly void to all intents and purposes (75). (75) And by the 2 and 3 An. c. 11. it shall be lawful for po^^erto esia- the queen, by her letters patent under the great seal, to blish a corpora- incorporate such persons as slie shall therein nominate or tj""> anf^ settle .' 1 1 1 !• • 1 , thereon the hrst apponit, to be one body politic and corporate, to have a fruit and tenths. common seal and perpetual succession ; and also at her ma- jest3''s will and pleasure, by the same or any other letters patents, to grant, limit or settle to or upon the said corpora- tion and their successors for ever, all the revenue of first fruits and yearly perpetual tenths of all dignities, offices, benefices and promotion spiritual, to be applied and dis- posed of for the augmentation of the maintenance of such parsons, vicars, curates and ministers officiating in any church or chapel where the liturgy and rites of the church of Eng- land, as now by law estabUshed, shall be used and observed; with such lawful powers, authorities, directions, limitations and appointments, and under such rules and restrictions, and in such manner and form as shall be therein expressed, s. 1. But this shall not affect any grant, exchange, alienation or incumbrance heretofore made of or upon the said revenues of first fruits and tenths ; but the same, during the continu- ance of such grant, exchange, alienation or incumbrance, shall remain in such force as if this act had not been made. «. 3. •298 THE PARSON'S COUNSELLOR, [part ii. Power to settle the said corpo- ration. And by the said statute of the 2 and 3 An. c. 11. every person having in his own right any estate or interest in pos- session, reversion or contingency in any lands or property in any goods, shall have power by deed enrolled in such manner and within such time as is directed by the 2/ II. 8. c. l(j. for inroUnient of bargains and sales ; or by his last will or testa- ment in writing, to give and grant to, and vest in the said corporation and their successors, all such his estate, interest or property, or any part thereof, towards the augmentation of the maintenance of such ministers as aforesaid officiating in such church or chapel, where the liturgy and rites of the said church shall be so used or observed as aforesaid, and having no settled competent provision belonging to the same, and to be for that purpose applied according to the direction of the said benefactor by such deed or will; and in default of such direction, in such manner as by her majesty's letters patents shall be appointed as aforesaid ; and such corporation and their successors shall have full capacity and ability to purchase, receive, take, hold and enjoy for the purposes aforesaid, as well from such persons as shall be so charitably disposed to give the same, as from all other persons as shall be willing to sell or aliene to the said corporation any manors, lands, tenements, goods or chattels, without any licence or writ of ad quod damnum, the statute of mortmain, or any- other statute or law notwithstanding. But this is not to enable any person within age, or of non-sane memory, or woman covert (without her husband), to make such alienation, s. 4, 5. But by 9 G. 2. c, 36. from and after June 24, 1736, no manors, lands, tenements, rents, advowsons, nor other here- ditaments, corporeal or incorporeal, nor any sum of money, goods, chattels, stocks in the public funds, securities for money, or any other personal estate, to be laid out or dis- posed of in the purchase of any lands, tenements, or here- ditaments, shall be given, granted, aliened, limited or released, transferred, assigned or appointed, or any ways conveyed or settled, to or upon any person, body politic or corporate, or otherwise, for any estate or interest whatsoever, or any ways charged or incumbered by any person in trust, or for the benefit of any charitable uses, unless such gift, conveyance, appointment or settlement of such lands, tenements or here- CHAP. II.] THE PARSON'S COUNSELLOR. 299 ditaments, sums of money, or personal estate (other than by stocks in the public funds), be and be made by deed in- dented, sealed and delivered, in the presence of two or more credil)Ie witnesses, twelve calendar months at least before the death of such donor or grantor, and be inrolled in the cliancery within six calendar months next after the execu- tion thereof; and unless such stocks be transferred in the public books usually kept for the transfer of stocks, six calendar months at least before the death of such donor or grantor, and unless the same be made to take effect in pos- session for the charitable use intended, immediately from the making thereof, and be without any power of revocation, reservation, trust, condition, limitation, clause or agreement whatsoever, for the benefit of the donor or grantor, or of any person claiming under him. S. 1. Btit by 43 G. 3. c. 10/. it is enacted, that so much of the act of 2 and 3 Anne, c. 11. as relates to deeds and wills made for granting and bequeathing lands, tenements, here- ditaments, goods and chattels, to the governors of the bounty of Queen Anne, for the purposes in the said act mentioned, shall remain in full force and effect notwithstanding, g Geo. 2 c. 36. s. 1. In pursuance whereof the queen by letters patent, bearing date November 3d, in the third year of her reign, incor- porated the archbishops, bishops, deans, speaker of the house of commons, master of the rolls, privy councillors, lieutenants and custodes rotulorum of the counties, the judges, the queen's Serjeants at law, attorney and solicitor general, advo- cate general, chancellors and vicechancellors of the two universities, mayor and aldermen of London, and mayors of the respective cities for the time being, according to the purport of the said statute (unto whom, by a supplemental charter, bearing date March 5th, in the twelfth year of her majesty's reign, were added the officers of the board of green cloth, the queen's counsel learned in the law, and the four clerks of the privy council), to be a body corporate by the name of " the governors of the bounty of Queen Anne, for the augmentation of the maintenance of the poor clergyj" and thereby granted to them the said revenue of the first fruits and tenths for the purposes aforesaid, under the rules and directions to be established pursuant to the said letters 300 THE PARSONS COUNSELLOR, [part ii. patent, together with these following directions; that is to say, that they shall keep four general courts at least in every year, at some convenient place within London and West- minster (notice being in that behalf first given in the gazette, or otherwise, fourteen days before), the said courts to be in the monllis of March, June, September and December : that the said governors, or so many of them as shall assemble, not less than seven in number at any one meeting (whereof by the aforesaid supplemental charter, a privy councillor, bishop, judge, or one of the queen's counsel, to be one), shall be a general court, and dispatch business by majority of votes, with power to appoint committees, for the easier dispatch of business. And to draw up rules and orders for the better rale and government of the said corporation and members thereof; and receiving, accounting for, and managing the said re- venues, and for disposing of the same, and of such other gifts and benevolences as shall be given to them for the pur- poses aforesaid ; which being approved, altered or amended by the crown, or so signified under the great seal, to be the rules whereby the governors shall manage the said revenue, and such other gifts and benevolences, whereof the donors shall not particularly direct the application. And that they shall inform themselves of the true yearly value of the maintenance of every such parson, vicar, curate and minister officiating in any such church or chapel as afore- said, for whom a maintenance of the yearly value of 80l. is not sufficiently provided ; and the distances of such churches and chapels from London, and which of them are in towns corporate or market towns, and which not ; and how they are supplied with preaching ministers, and where the in- cumbents have more than one living. And that they shall have a secretary and treasurer, and such inferior officers, substitutes and servants as they shall think fit, to be chosen by a majority of votes at a general court, and to continue during the pleasure of the said go- vernors ; the secretary and treasurer to be first sworn at a general court, for the due and faithful execution of their offices ; and the treasurer to give security for his faithful accounting for the monies he shall receive, by virtue of the 5aid office. CHAP, n.] THE PARSON'S COUNSELLOR. 301 And with the power to admit into their said corporation all such persons who shall be piously disposed to contribute towards such augmentation as the said governors, in a ge- neral court, shall think fit. And that they shall cause to be entered, in a book to be kept for that purpose, the names of all the contributors, with their several contributions, to the end a perpetual memorial may be had thereof, and wiiereby the treasurer may be charged with more certainty in his account. And by the 1 G. st. 2. c- 10. the courts and committees of the said governors shall have power to administer an oath to such persons as shall give them information, or be examined concerning any thing relating to the execution of their trust. S. 19. And in pursuance of the said letters patent^ the following rules and orders have been established, viz. 1. That the augmentation to be made by the said corpora- j^uigs and tion shiill be by the way of purchase, and not by the way onieis in pur- „r„« • suanceofihe 01 pension. . , , ., ^ ^ said letters 2. That the stated sum to be allowed to each cure which patent, shall be augmented be 200l. to be invested in a purchase at the expense of the corporation. 3. That as soon as all the cures not exceeding lol. per annum, which are fitly qualified, shall have received our bounty of 200l., the governors shall then proceed to aug- ment those cures that do not exceed 20l. per annum, and augment no other till those have all received our bounty of 2C0l. except in the cases and according to the limitations hereafter named ; and that from and after such time as all the cures not exceeding lOl. a year which are fill}' qualified shall have received our bounty of 200l. the like rules, orders and directions shall be from thenceforth by the governors observed and kept, in relation to cures not exceeding 20l. a year, as are now in force, and ought to be by them observed and kept in relation to cures not exceeding lOl. a year. 4. That in order to encourage benefactions from others, and thereby the sooner to complete the good intended by our bounty, the governors may give the sum of 200l. to cures not exceeding 40l. a year, where any persons will give the same or a greater sum, or the value thereof, in lands, tithes, or rent charges. 302 THE PARSON'S COUNSELLOR, [part ii- 5. That the governors shall every year, between Christmas and Easter, cause the account of what mone}' they have to distribute that year to be audited ; and when they know the sum, public notice shall be given in the gazette, or such other way as shall be judged proper, that the)'^ have such a sum to distribute in so many shares, and that they will be ready to apply those shares to such cures as want the same, and are by the rules of the corporation qualified to receive them, where any persons will add the like or greater sum to it, or the value in land or tithes for any such particular cure. 6. That if several benefactors offer themselves, the go- vernors shall first comply with those that offer most. 7. Where the sums offered by other benefactors are equal, the governors shall always prefer the poorer living. ' 8. Where the cures to be augmented are of equal value, and the benefactions offered by others are equal, there they shall be preferred that first ofier. 9. Provided nevertheless, that the preference shall be so far given to cures not exceeding 20l. a year, that the go- vernors shall not apply above one third part of the money they have to distribute that year, to cures exceeding that value. 10. Where the governors have expected till'Michaelmas what benefactors will offer themselves, then no more pro- posals shall be received for that year; but if any money re- main after that to be disposed of, in the first place two or more of the cures in the gift of the crown, not exceeding lol. a year, shall be chosen by lot, to be augmented preferably to all others; the precise number of these to be settled by a general court, when an exact list of them shall be brought in to the governor. 11. As for what shall remain of the money to be disposed of after that, a list shall be taken of all the cures in the church of England, not exceeding lOl. a year, and so many of them be chosen by lot as there shall remain sums of 2C0l. for their augmentation. 12. Provided that when all the cures not exceeding 20I. a year which are fitly qualified shall be so augmented, the governors shall then proceed to augment those of greater value, according to such rules as shall at any time hereafter be proposed by them, and approved by us, our heirs or suc- ces.sors, under our or their sign manual. CHAP. II.] THE PARSON'S COUNSELLOR. 303 13. Thatall charitable gifts, in real or personal estates, made to the corporation, sliall be strictly applied according to the particular direction of the donor or donors thereof, where the donor shall give particular direction for the disposition thereof; and where the gift shall be generally to the cor- poration without any such particular direction, the same shall be applied as the rest of the fund or stock of the corporation is to be applied. 14. That a book shall be kept wherein shall be entered all the subscriptions, contributions, gifts, devises or appoint- ments made or given of any monies, or of any real or personal estate whatsoever, to the charity mentioned in the charter, and the names of the donors thereof, with the particulars of the matters so given, the same book to be kept by the secretary of the corporation. 15. That a memorial of the benefactions and augmenta- tions made to such cure, shall, at the charge of the corpora- tion, be set up in writing on a stone to be fixed in the church of the cure so to be increased, there to remain in perpetual memory thereof. 16. When the treasurer shall have received any sum of money for the use of the corporation, he shall at the next general court to be holden after such receipt, lay an account thereof before the governors, who may order and direct the same to be placed out for the improvement thereof upon some public fund or other security, till they have an op- portunity of laying it out in proper purchases for the aug- mentation of cures. 17. That the treasurer do account annually before such a committee of the governors as shall be appointed by a general court of the said corporation, who shall audit and state the same ; and the said account shall be entered in a book to be kept for that purpose, and shall be laid before the next ge- neral court after such stating; the same to be there re- examined and determined, 18. The persons whose cures shall be augmented, shall pay no manner of fee or gratification to any of the officers or servants of this corporation. And by the 1 G. st. 2. c. 10. it is enacted, that all such rules and orders as shall from time to time be by the go- vernors agreed upon, prepared and proposed to the king. 304 THE PARSON'S COUNSELLOR, [pakt ir. Ascertaining the valuation of ihe livings to be aui^inented. Agreements with benefactors for the nomina- tion. according to the true intent of the said letters patent, and by him approved under his sign manual, shall be as good as if they were established under the great seal, S. 3. 5- By the 5 An. c. 24. all benefices with cure of souls, not exceeding the clear improved yearly value of 50l. (as hath been said) are discharged from first fruits and tenths; and the bishops and guardians of the spiritualties, sede vacante, were to inform themselves of the values of all such benefices. And by the 1 G. st. 2. c. 10. the bishops of every diocese, and the guardians of the spiritualties, sede vacante, are em- powered and required, from time to time, as they shall see occasion, as well by the oath of two or more witnesses (which they or otiiers commissioned by them, under their hands and seals, are impowered to administer) as by all other law- ful ways and means, to inform themselves of the clear im- proved yearly value of every benefice with cure of souls, living and curacy within their several dioceses, or witliin any peculiars or places of exempt jurisdiction, within the limits of their respective dioceses, or adjoining and contiguous thereunto, although the same be exempt from the jurisdiction of any bishop in other cases, and how much 3'carly values arise with the other circumstances thereof; and the same, or such of them, whereof they shall have fully informed themselves, from time to time, with all convenient speed, to certify under their hands and seals, or seals of their respective offices, to the governors of the bounty. S. 1. Provided, that where by certificates returned into the exchequer by the 5 An. c. 24. the yearly value of any livings not exceeding the clear yearly value of 50l. are particularly and duly expressed and specified, such certificates shall ascertain the yearly value of such livings, in order to their being augmented, and no new or different valuation thereof shall be returned to the said governors by this act. S. 2. 6. All agreements with benefactors, with the consent and approbation of the governors, touching the patronage or right of presentation or nomination to such augmented cure, made for the benefit of such benefactor, his heirs or suc- cessors by the king, under his sign manual, or by any person of the age of twenty-one years, having an estate of inherit- ance in fee simple or fee tail in his own right, or in the right of his church, or of his wife, or jointly with his wife made CHAP. II.] THE PARSON'S COUNSELLOR. 305 before coverture or after, or having an estate for life or for years determinable upon his own life, with remainder in fee simple or fee tail to any issue of his own body in such patron- age or right of presentation, or nomination in possession, reversion or remainder, shall be good and effectual in the law ; and the advowson, patronage, and right of presentation and nomination to such augmented churches and chapels shall be vested in such benefactors, their heirs and successors, or the said bodies politic or corporate, and their successors, or the said respective persons as aforesaid, as fully as if the same had been granted by the king under his great seal, and as if such bodies politic or corporate had been free from any restraint, and as if such other person so agreeing had been sole seized in their own right of such advowson, patronage, right of presentation, and nomination in fee simple, and had granted the same to such benefactors, their heirs and suc- cessors respectively, according to such agreements. 1 G. St. 2. c. 10. s. 8. And the agreements of guardians on the behalf of infants or idiots, shall be as effectual as if the said infants or idiots had been of full age and sound mind, and had themselves entered into such agreements. S. g. But in case of such agreement by any parson or vicar, the same shall be with the consent and approbation of his patron and ordinary. S. 10. And in case of such agreement made by any person seized in right of his wife, the wife shall be a party to the agree- ment, and seal and execute the same. S. 11. And such agreements with benefactors so made as afore- said, shall be as effectual for the supplying cures vacant at the time of such augmentation made or proposed as for the advowson or nomination to future vacancies. S. 12. 7. And where it shall fall to the lot of any donative, curacy Acreements or chapelry, to receive an augmentation according to the ^^"'' pao'ons rules established or to be established, it shall be lawftd for stipend in case the governors, before they make the augmentation, to treat ot auiimenution and agree with the patron of any donative, impropriator of ^ " * any rectory impropriated without endowment of any vicar- age or parson, or vicar of any mother church, for a perpetual, yearly, or other payment or allowance to the minister or curate of such augmented donative curacy or chapelry, and X 306 THE PARSON'S COUNSELLOR, [part ii. his successors; and for charging with, and subjecting the impropriate rectory, or the mother church or vicarage there- unto, in such manner and with such remedies as shall be thought fit ; and such agreements made with the king, under his sign manual, or with any bodies politic or corporate, or any other person having any estate or interest in possession, reversion, or remainder, in any such impropriate rectory in his own right, or in the right of his church or his wife, or with the guardian of any person having such estate or interest, or with any parson or vicar of any mother church, shall be as effectual with respect to such charges as agreements made with the king, or with the same persons, or bodies politic or corporate, touching the patronage or right of presentation or nomination. And if such impropriator other than the king, and such parson or vicar will not or shall not make such agreement with the said governors, the said governors may refuse such augmentation, and apply the money arising from the bounty which ought to have been employed therein for the augmenting some other cure according to the rules then in force. S. l6. Capaciiy of mi- 8. And whereas the augmentation is intended for the nisters lor re- maintenance not only of parsons and vicars, but also of cciviiig the aug- ^.yi-afgg q^^ other ministers officiating in churches or chapels ; mentation. ^ , • r. .. i i i • i . therefore for the preventmg of all doubts toucbmg the capacity of such ministers who are to receive the benefit of such, augmentation, it is enacted, that when any part or portion of the first fruits or tenths shall be annually or otherwise applied or disposed of, towards the maintenance of any mini- ster officiating in any church or chapel as aforesaid, such part or portion shall from thenceforth for ever be in the like manner continuad to the minister from time to time so officiating in the same church or chapel; and every such minister, whether parson, vicar, curate, or other minister for the time being, so officiating in such church or chapel, shall enjoy the same for ever. 5 An. c. 24. s. 4. g. And to the end that churches and chapels may at all times be capable of receiving augmentations, if the governors shall by any deed or instrument in writing, under their com- mon seal, allot or apply to any church or chapel any lands, tithes or hereditaments arising from the said bounty, or from private contribution or benefaction, and shall declare that Augmentation of benefices vacant. CHAP. II.] THE PARSON'S COUNSELLOR. 307 the same shall be for ever annexed to such church or chapel, then such lands, tithes and hereditaments shall from thence- forth be held and enjoyed, and go in succession with such church and chapel for ever; and such augmentation so made shall be good and effectual to all intents and purposes, whether such church or chapel for which such augmentation is in- tended be then full or vacant of nn incumbent or minister, provided such deed or instrument be inrolled in the chancery within six months after the day of the date thereof 1 G, St. 2. c. 10. s. 12. 10. And all churches, curacies or chapels which shall be Benefices ang- augmented by the governors of the bounty, shall be from niented shall be ,. f., ^,- ^1 jir? perpetual cures. the time or such augmentation perpetual cures and benehces, and the ministers duly nominated and licensed thereunto, and their successors respectively, shall be in law bodies politic and corporate, and shall have perpetual succession by such name and names as in the grant of such augmentation shall be mentioned, and shall have a legal capacity, and be enabled to take in perpetuity to them and their successors, all such lands, tenements, tithes and hereditaments as shall be granted unto or purchased for them respectively by the said governors or other persons contributing with the said governors as benefactors ; and the impropriators or patrons of any augmented churches or donatives for the time being, and their heirs, and the rectors and vicars of the mother churches, whereto any such augmented curacy or chapel doth appertain; and their successors shall be utterly ex- cluded from having or receiving, directly or indirectly, any profit or benefit by such augmentation, and shall pay and dllow to the ministers officiating in any such augmented church and chapel respectively, such annual and other pensions, salaries and allowances which by ancient custom or otherwise of right and not of bounty, ought to be by them respectively paid and allowed, and which they might, by due course of law, before the making of this act, have been com- pelled to pay or allow, and such other yearly sum or allow- ance as shall be agreed upon (if any shall be) between the said governors and such patron or impropriator upon making the augmentation, and the same shall be perfectly vested in the ministers officiating in such augmented church or chapei respectively, and their successors. 1 G. st. 2. c. 10. s. 4 3v 2 308 THE PARSON'S COUNSELLOR, [part ii. And lapse thereof ii>aj incur. Donativei, how affected bj the ftugrnentation. Exchanging of lands settled by the augmenta- tion. Provided, that no such rector or vicar of such mother church, or any other ecclesiastical person having cure of souls within the parish or place where such augmented church or chapel shall be situate, shall hereby be devested or dis- charged from the same ; but the cure of souls, with all other parochial rites and duties (such augmentation and allowances to the augmented church or chapel as aforesaid only ex- cepted), shall remain in the same state, plight and manner as before the making of this act. S. 5. 11. And if such augmented cures be suffered to remain void for six months, without a nomination within that time of a fit person to serve the same (by the person having right of nomination) to be licensed for that purpose, the same shall lapse to the bishop or other ordinary, and from him to the metropolitan, and from the metropolitan to the crown, according to the course of law used in cases of presentative livings ; and the right of nomination to such augmented cure may be granted or recovered, and the incumbency thereof shall cease, and be determined in like manner as in a vicarage presentative. 1 G. st. 2. c 10. s. 6. Provided that if the person intitled to nominate in such augmented cure shall suffer lapse to incur, but shall nominate before advantage taken thereof, such nomination shall be as effectual as if made within six months, although so much time be elapsed as that the title of lapse be vested in the crown. S. 7. 12. All donatives exempt from ecclesiastical jurisdiction, and augmented by virtue of the powers given by this act, s!)all be subjected to the visitation and jurisdiction of the bishop of the diocese. I G. st. 2. c. 10- s. 14. But no donative shall be augmented without the consent of the patron in writing, under his hand and seal. S. 15. 13. It shall be lawful, with the concurrence of the go- vernors and the incumbent, patron and ordinary of any aug- mented living or cure, to exchange all or any part of the estate settled for the augmentation thereof, for any other estate in lands or tithes of equal or greater value, to be con- veyed to the same uses. 1 G. st. 2. 10. s. 13. By 43 Geo. 3, c. 107. it is enacted, that the said power shall be extended to all the messuages, buildings and lands belonging to every such augmented living or cure. S. 2. CHAP, u.] THE PARSON'S COUNSELLOR. 309 And be it further enacted, that where a living shall have been, or shall be augmented by the said governors, either by way of lot or benefaction, and there is no parsonage house suitable for the residence of the minister, it shall and may be lawful for the said governors, and they are hereby em- powered, from time to time, in order to promote the re- sidence of the clergy on their benefices, to apply and dispose of the money appropriated for such augmentation, and re- maining in their hands, or any part thereof, in such manner as they shall deem most advisable, in or towards the build- ing, rebuilding or purchasing a house, and other proper erections within the parish, convenient and suitable for the residence of the minister thereof, which house shall for ever thereafter be deemed the parsonage house appertaining to such living, to all intents and purposes whatsoever, anything in any act or acts, or the rules of the said governors, con- tained to the contrary notwithstanding. S. 3. 1-4. By the 1 G. st. 2. c. 10. all the augmentations, car- RegWtrj to be tificates, agreements and exchanges to be made by virtue of '^"^P*^ "^^", . ,. , ,, , ,. „ ? 1 1 1 • .1 matters relating this act, shall be caretully exammed and entered m a book totheaugmenta- to be provided and kept by the governors for that purpose ; tion. which said entries being approved at a court of the said go- vernors, and attested by the governors then present, shall be taken to be as records ; and the true copies thereof, or of the said entries, being proved by one witness, shall be suf- ficient evidence in law, touching the matters contained therein or relating thereto. S. 20. The number of livings capable of augmentation hath been certified as follows: IO71 livings not exceeding lOl. a year, which may be augmented (by the bounty alone) six times, pursuant to the present rules of the governors, which will make 6426 augmentations; 14U7 livings above lOl. and not exceeding 20i. a year, may be augmented four times each, which will make 5868 augmentations ; 1 126 livings above 20l. and not exceeding 30l. a year, may be augmented three times each, which will make 3378 augmentations ; 104y livings above 30l. and not exceeding 40l. a year, may be augmented twice each, which will make 2098 augmentations; 884 livings above 40l. and not exceeding 50l. a year, may be each once augmented, which will make 884 augmentations. So that in the whole there are 55g7 livings certified under 310 THE PARSON'S COUNSELLOR, [part ii. 50l. a year, which will require (by the bounty alone) 18,654 augmentations before they will be advanced to 50l. a year each ; and thereupon, computing the clear amount of the bounty to make 55 augmentations yearly, it will be 339 years from the year 17 M (which was the first year in which any augmentations were made) before all the said livings can exceed 50). a year. And if it be computed that half of such augmentations may be made in conjunction with other bene- factors (which is improbable), it will require 226 years before all the livings already certified will exceed 50l. a year- 2 Burn's Eccl. Law, 283. et seq. Vide Mr. Christian's note on this subject. 1 Blac. Com. 285. For the forms of deeds which may be used by a donor and governor of the bounty, vide 2 Burn's Eccl. Law, 205. By the 45 G. 3. c. 84. it may be lawful for any person or persons, having in his, her or their own right, any money, goods, chattels or other personal effects at his, her or their W'ill and pleasure, to give, or grant to, or vest in the said governors of the bounty of Queen Anne, all or any of such money, &c. without any deed or deeds enrolled or not en- rolled in any manner as he, she or they can or might have done, either by deed or deeds enrolled or otherwise, before the passing of this act, s. 3. ; but this not to affect the law now in force relative to lands, tenements and hereditaments. S. 4. By 46 G. 3. c. 133. a donation of 6000I. a year was granted for the augmentation of small livings not exceeding 150l. a year ; for by that statute all such livings may be discharged from the payment of the land-tax, without any consideration for it, provided the whole annual amount shall not exceed 6OOOI. CHAP. III.] THE PARSON'S COUNSELLOR. 311 CHAPTER III. [235] Of what tilings Tithes are due, and in what manner Tithes of Hay and Corn are to be paid. Tithes regularly are to be paid of all things annually Of '*^^' t*^"'"?* „ ? j-ir.i 1 LI tithes are to be arising ironi the groundj either or themselves, or by the paid. culture and industry of the parishioner, without any ^'o. ii,i60. . . ' . F. N, B. 33 E. deduction of charge in their proper kinds, as soon as ' ' ' the same may be separated and divided from the nine Linwood, c. Ill T» 1 I Quoniarn prop- parts, in sheaves, garbs or heaps, cut the manner and ter verb, non form of the payment of tithes is for the most part go- fieductisex- verned by the custom of the place : and therefore if by How tithes of custom the tenth part of corn or hay hath been mea- com are to be sured forth growing upon the lands, as it 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, in such manner it still ought to be paid; and therefore where tithe corn hath been paid stat. 27 H. 8.c. time out of 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. And it seems that the parishioner of common right j^joj-e, 913, ought to bind his corn in sheaves. See Rolls 1. 644. y-5. Quaere if the parson must have notice of the setting forth of tithes. 2 Ventr. 48. (76). (76) Notice may be requisite by means of a special custom for that purpose, and (as Lord Mansfield thought) so in- trinsically proper, that very slight evidence would be suf- ficient to prove a custom, Burr. 1891. but want of certainty in the custom is a fatal objection to it, Bunb. 333. It is indispensably necessary that the tithes be set out. In an 312 ^'HE PARSON'S COUNSELLOR, [part ii. If corn be standing, the vendee shall pay the tithes, but if" he set it after severance the vendor must. Hardies, 38L(77). And where the custom was that the parson should have the tenth land from the hedge, and the parishioner neglects to sosv the tenth land, the parson shall not have his tithe in kind, but a special action on this case for not sowing it. How the titlie of So for the tithe of hay, if the parishioners have used ISb'^So*''^'*''^* to make it into haycocks before they have set forth their Koiis, 1. 644. y. tithes, they must do so still, but where there is no such ' '■' ' custom, they may set it forth in grasscocks (78). action in the court of C. P. for not setting out the tithes of wheat, it was said by the court, " The tithe must be so set out, and the nine parts left so long, that the parson may have an opportunity of judging by the view, whether the tithe is fairly set out or not." Halliwell v. Trappes, 2 Taunt. 55, [yy) And if nursery plants are sold standing, the vendee must pay the tithe; but if the owner pulls up the plants and sells i\\eva, such vendor is liable to pay the tithe. Gwill. 515. Grant v. Hedding. Where a man sold the toppings and loppings of oak, ash and elm, standing and uncut, the vendee cut them, and the parson sued the vendor for his tithes ; the suit as against the latter was dismissed. Gwill. 537. Taswell v. Athill. But if a parishioner severs his grass, and makes it into reeks or cocks, and then sells it, no suit can be main- tained against the vendee for the tithes. 2 Rol. R. 78. (7s) It should seem, that where by the usual mode of husbandry, clover hay is not made into cocks at all, the tithe may be set out in the swathe ; but the fair and legal way of tithing clover like other hay, is when it is put into cocks. Collier V. Howes, Anstr. 481. It has been a doubt, whether the tithe of hops was to be set out by the tenth hill, as soon as the binds were severed from the ground, or by the tenth measure after the hops were picked. Sid. 283. Ledger v. Langley. But it has since been determined by numerous cases, that the tithe of hops is to be set out by the tenth measure after they are CHAP. III.] THE PARSON'S COUNSELLOR. 313 The same order ought to be observed in all other things arising from the ground, as rape, saffron, &.c. and other fruit. But no tithes are to be paid for the rakings of corn, Raking?. unless the parishioner fraudulently scatter his corn Cj."^El 6 o to cozen the parson of his tithes. Roll 1. 644. y. 5. More, 278. Littleton, 31. Cro.Jac.42. Neither are tithes to be paid of the after-maths of Yelverton, 86. meadows, nor of balks in cornfields, or of the stubble of rqH^'i. 645 corn : but if the meadows be so rich, that there are two 2- n. 12& 13. r I ^ • . r 1 o . Aftermaths. crops or nay got m one year, or two crops or woacl, ik.c. r 237 i there the parson shall have tithe as well of the latter as B Still. Eccl. c I c Cases, 269. or the rormer crop. If a man gather green })eas to spend in his house, and Rdis 1.647. a. there spend them in his family, no tithes shall be paid ^'' ^^• for the same; but if he gather them to sell or to feed hogs, there tithes shall be paid for them. Iseiiher shall tithe-hay be paid for the grass growing Infra 383. upon head lands, which are only large enough for the i^^j^j^ Toie turning the plough. Z. 19. But tithe shall be paid of the hay and corn growing Orchards * in orchards, though the tithe of the fruit growing in them were paid the same year, be it apples, pears, cherries, &c. There hath been some question about fodder gotten More, 683. in the fen lands in Cambrid or birds fers same reason, is any tithe due or deer, conies, &c. but ir „atur!e. due b}' custom it must be paid. ^""o- Car. 264. And if a man keep pheasants, or other wild fowl March, 87. within limits, by clipping their wings, yet no tithes ??^'J'*'>'' ^^' shall be paid of their eggs or young not being reclaim- c. 4, 6, 7. ed, for as much as if their winu;s were not cut, they ^''"y'J^^' .„ , ° ' -' St. '2 E. 6. c. 13. would fly away. Rolls, 1.635. Ferrets, hawks, popinjays, are not tithable. Fulb. ^- ^- Direct. 58. b. 59. a. Reports, 26. But of young pigeons in dovecotes or in pigeon- I^^'s-'-^^fi. holes about a man's house, tithes shall be paid if they Sei Mod. Rep. be sold; but if they be spent in the family, no tithe '^^^^J''^^^^ shall be paid for them. Rolls, 1. 644. It is said in Houghton and Prince's case in Morc's ^■j*r/'399 Reports, that no tithes shall be paid of tame turkies, pheasants, or partridges, nor their eggs, ([uia ferae naturae ; but I believe the book is misprinted, for after [ 26I ] they are reclaimed, they cannot be said to be feraj naturae (90). (90) Turkeys are now considered to be tame like other poultry, and must therefore pay tithes, Gwil. 676- Carleton V. Briglitwcll. And in a suit in the exchequer, it bus been 344 THE PARSON'S COUNSELLOR, [part ii. The custom of tithing fish is confirmed by stat. 2 and 3 Edvv. 6. cup. 13. And Bishop Stillingfleet is o(" opinion, that by the old constitutions fish are as tithable as other things. Still. Eccl. Cases, 272. (91). See a review of this chapter in Stillingfleet's Eccles. Cases, 270. decided, that no modus could extend to turkeys, because they have been lately introduced into England. Bunb. 307 marg. Gwil. 71 1. Brinklow v. Edwards. (91) It seems that fish are not tithable without a special custom to that effect. Gwil. 691. Gwavas v. Kelynack, Gwil. 616. Nicholas V. Elliott. CHAP. IX.] THE PARSON'S COUNSELLOR. 345 CHAPTER IX. JVhat Tithes are to be paid for Mills, and what kind and nature they be of, and of zchat things Tithes are not payable. The canon is, "Cap. Quoniam propter. De pro- Whether tithes ventibus autem molendinorum volumus quod decimas toU1s° and'how! fideliter et integre solvantur." And Articuli Cleri, cap. 5. is to this purpose, " Si quis in fundo suo molendinum erexit de novo, et postea a rectore loci exigatur decima de eodem, ex- hibetur regia prohibitio sub hac forma. Quia de tali molendino hactenus non fuerunt solutae, prohibemus, &c. Et sententiam cxcommunicationis, si qucim hac occasione promulgaveritis, revocetis omnino. Re- spousio : in tah casu nunquam exivit regia prohibitio de principis voluntate, qui et decernit talem perpetuum non ex ire." It is made a question first, whether any tithes are due [ 262 ] i'or mills or not ? which Sir Edward Coke, in his second Litti* Rep*' Institutes, says, was never judicially determined, that he knows of: and it was held in the case of a fulling- mill no tithe was due; for of profits that come only by the labour and industry' of man no tithe is to be paid, and the same reason holds for corn-mills. Cro. Car. bi2. The next question is, admitting that tithes are due for mills, whether the same be predial or personal? Sir Edward Coke is of o|)inion, that in case any liiiie be due, it is only a personal tithe, being acquireil by the labour and industry of the miller; and takes no in- 2A. 346 THE PARSON'S COUNSELLOR, [part h. crease from the ground to make it predial. And the statute of 'i E. 6. is, " that every person shall justly set forth, yield and pay all predial tithes in their proper kinds, as they arise and happen," which cannot be ap- plied to the miller's taking of the toll-dish, nor to fulling- mills, iron-mills, paper-mills, &c. which are all compre- hended under the word mill, and no tithe can be paid in specie; for if the parson should have every tenth toll-dish, then it would often happen, that he should have twice tithe of the same corn, which is against the law; and such tithe as the tenth toll-dish has never been paid in any place that I have known or heard of (92). (92) All corn-mills not erected before the stat. 9 Ed. 2. St. 1 . c. 5. are tithable. But because many mills since erected may be to us ancient, and their first erection not known, the rule of their discharge seems to be, that all such mills whose first erection was before time of memory, and is not otherwise known by matter of record, and have not been subject to the payment of tithes, shall be intended to be erected before the statute, and so to be tithe free. But as to mills for which tithes have been paid and new mills, tithes must be paid for them. Boh. 127- In Newte v. Chamberlayne it was decreed in the house of Lords, on an appeal from the court of Exchequer, that the tithes of a mill are personal tithes ; and that in conse- quence of their being personal tithes, not the tenth of the toll or the tenth dish of the corn ground belongs to the parson, but the tenth part of the clear profits, after the charges of erecting the mill and the other charges of servants, horses, and other expenses are deducted. Vin. Abr. Dismes. M. a. 3 Burn's Eccl. Law, 516. In the case of Hall v. Machet, C. B. Macdonald said, that the tithe of the clear profit only being due, the rent is to be deducted ; and in the case of a new mill occupied by the owner, a yearly value in the nature of a rent is to be set upon it and deducted. 4 w 146O. CHAP. IX.] THE PARSON'S COUNSELLOR. 347 And if it be a personal tithe, as there is great reason Bulst. 3. 212. that it can be no other, then it must be paid with the deduction of the expenses and charges, and it is not [ 263 ] payable but in such places where personal tithes are payable by custom. See more hereof in the twenty- second chapter. But the canonists hold, that the tenth toll-dish shall ^^P- Q"""'^™ . . . f, propter verbo be paid as a predial tithe, without deduction of ex- iutegre. In the same case the Chief Baron observed, that the tithe of mills was to be considered as a praedial tithe, so far as regards its locality and the person to whom it is payable ; but in the mode of accounting it is to be treated as a per- sonal tithe. If there is a modus in lieu of all tithes issuing out of a messuage and an ancient water-mill for corn, and a new water-mill for corn is erected within the said messuage, or if the stream on which an ancient mill stood is diverted by the owner (and not by the act of God) and a new mill erected upon the same stream, they shall not be discharged by virtue of any former modus. Roll's Abr. 641. And where new stones are added to ancient mills, these are to all intents and purposes two mills, and the former cannot be covered by a modus protecting the latter. 3 Atk. ly. But if there hath been an ancient corn-mill, for which a modus hath been paid for time immemorial, and afterwards by continuance of time the mill-stream changeth its course and goeth in a place a little distant from the ancient stream, and thereupon the owner of the mill pulleth it down and re- buildeth it in the new place where the stream now runneth, this shall be discharged of tithes by force of the ancient modus, for this cometh by the act of God and not by the act of the party. 1 Roll's Abr. 641. It has been holden, that copper-mills, fulling-mills, shaving-mills, glass-houses, tin or lead mines, paper-mills, and such like, pay no tithe, be- cause the profits arise from the labour and industry of man. 2 Cro. 523. Gwill. 354. Johnson v. Uaredridge. Unless perhaps there be a special custom to support it. 3 Atk. 19. 348 THE PARSON'S COUNSELLOR, [part ii. penses; which doth not agree with the common huv, and is therefore not binding. But in many places there is a rate tithe paid for mills, which is good by custom. But there are great diversity of opinions as to tithe ot mills, for which the reader may further consult Cro. Jac. 429. Selden de Dec. 423. 2 Inst. 621. March. Reports, 15. For windmills, see Decret. hb. 3. Tit. 3. cap. 23. fol. 450. I CHAP. X.] THE PARSON'S COUNSELLOR. 349 CHAPTER X. Whether Tithes ought to be paid of Hawking, Hunting, Fishingf Fowling, 8^r. These are all comprehended under personal tithe, Tithe of hawk- for that these things being obtained by the labour and Ifsling"' fow^ii,,g, industry of the party, and the things obtained are ferse if due. naturae, and not of their own nature tithable in their proper kind, unless the particular custom of the place require it, and therefore I shall refer these to the twenty- second chapter, where I shall speak of personal tithes. [ 264 ] CHAPTER XL Of Tithes of Ducks, Geese, Hens, Swans, and other domestic Fowls and Birds. The tithe of all tame and domestic fowl is to be paid Of the tithes of in their eggs or young in their proper kind, according g^J^w^ ^"^^^ to the custom of the place. Geese, ducks, and swans are usually paid in their kind, but of hens and turkies, commonly in eggs, but therein the custom of the place is to be observed. But note, that where they pay tithe of the eggs, there is no tithe of the young, nor e con- verso tithe eggs paid, where they have the tithe of the young. 350 THE PARSON'S COUNSELLOR, [part ii. CHAPTER XIL Of what things Tithes shall 7iot be paid. Calthorp's Re- ports, 108. Of what things tithes shall not be paid. Co. 11. 16. a. [ 265 ] Hob. 11. Calthorp's Re- ports, 108, 110. Things of plea- sure. 11 H. 3. 4. b. 2 Inst. 65 1 . Calthorp's Re- ports, 109. Tilings that in- crease not. Rolls, 1. 636. d. 1. Doct. and Stud, 171. 1 Mod. Rep. 35. 2 Mod. Rep. 77. More, 908. Cro. El. 277. 2 Inst. 651. Rolls, 1 . 637. e. 1. Doct. and Stud. 174. Baxter V. Hope. H. 8 Jac. C. B. Rot. 1. 109. Tithes regularly are not due of dwelling-houses, and yet a modus may be due for a house as well as for land ; and it shall be intended, that it was a modus for the land before the house was built. No tithes shall be paid for hounds, apes, popinjays, et similia, because they are things only of pleasure. Neither shall any tithes be paid of those things which do not increase from, year to year ; and therefore no tithes shall be paid for stone got out of quarries, pit- coals, turfs, slates, bricks, quarrels, tiles, earthen pots, nor of any thing made of earth, nor of marie or lime got for the improvement of the ground ; nor of tin, lead, copper, or other metal gotten out of the ground, but by custom titiies of such things may be due and payable. Stillingfleet's Eccl. Cases, 0.65. Servants in husbandry shall not pay personal tithes, neither shall any tithes be paid of marriage goods. No tithes shall be paid of aftermaths, stubbles, or rakings of corn without fraud. Stillingfleet's Eccl. Cases, 269. Semb. contra (93). (93) Tithes of aftermowth, that is the second mowth, shall be paid de jure without a special prescription to be discharged by payment of tithes out of the first mowth, and then it shall be discharged. 1 Roll's Abr. 640. And the author observes, p. 2. c. 3. " But if the meadow be so rich, that there are two crops of hay got in one year, &c. there the parson shall have tithes as well of the latter as of the former crop." Vide in chap. 19. what barren lands are exempted from payment of tithes by stat. E. 6. c. 13. CHAP. XII.] THE PARSON'S COUNSELLOR. 35X No tithes shall he paid of birds or beasts that are st.2E. s.c. i3. ferae naturas, &c. unless they be sold. j^"[j^' j ^^^ Tithes shall not be paid of broom or gorse used for q- 12,13, 16, fuel within the parish. 2 Inst 65J. No tithes shall be paid of cravel and chalk. 1 Mod. Lit. Rep. 311. T? o - T- • J More, 909. Kep. So. per 1 wisden. ' 352 THE PARSON'S COUNSELLOR, [part ii. [ 266 ] CHAPTER XIIL What force custom has, as well in the form and manner of Tithing, as in the discharge oft/te payment thereof; and wherein custom and prescription differ. St.2E.6.c. 13. What force custom has in the manner of tithing. And this is con- firmed by the Stat, of 2 E. 6. cap. 13. [ 267 ] Sclden de De- cimis, 285, 286. Tithe ale. Rolls, 1.642, By the statute of 2 E. 6. it is enacted, " that every of the king's subjects should from thenceforth trul}'^ and justly, without fraud or guile, divide, set out, yield, and pay all manner of their predial tithes in their proper kinds, as they should arise and happen in such manner and form as had been of right yielded and paid within forty years next before the making of the said act, or which of right or of custom ought to have been paid." In this act there are three qualifications. 1. It enjoins the payment of such tithes as had for forty years then past been of right yielded and paid. 2. Such as of right ought to have been paid. 3. Such as by custom ought to have been paid. Tithes due by custom are of two kinds. 1. Where there is a modus decimandi, and by custom money, or some other thing, is paid in lieu of tithes. 2. Where tithe hath by custom been paid of things not tithable, as of lead in Derbyshire, tin in Devonshire and Cornwall, fishing in the sea, as in South Wales, where the custom is, that if the parishioner of one parish land his fish in another, the tithes are divided between the parson of the parish where the fisher lives, and the other where he landed his fish; but if the parishioner land his fish in the parish where he himself dwells, then the rector of that parish has the whole tithes. And I have heard that in some countries they pay tithe ale, and tithe of limekilns, &c. which in their own CHAP. XIII.] THE PARSON'S COUNSELLOR. 353 natures are not tithable. Tithe ale is said to be paid at Market-rising, in Lincobishire. And as by custom things may be made tithable, 2 Inst. fi64, which in their own natures are not so : or one thinsr S^iden de De- , . , . . ^ . ,. , ° cim. pref. 8,9. may by custom be paid in satisfaction or discharge ot Hob. 230. another; so custom hath a great influence upon the form and manner of tithing, for the direction of the time, place, and order of payment of tithes. And as custom may make things tithable, which of Custom of not their own nature are not tithable ; so a custom of a t't'"ng. where province, county, or hundred may discharge the pa^^- ment of tithe of a thing which in its own nature is tithable, so there be a competency for the maintenance of the ministry beside. And therefore in the wilds of Kent and Sussex they Hob. 2G6. do pretend by custom to be free from the payment of J^^'^tr. 2. 245. . ' , -^ , . . , . p . , . , D'^ct. and Stud. tithe wood, or any thing in Jieu or it ; and so in several cap. ult. countries they pay no tithes of their milk, Dunton v. I^oUs 1.642. b. •n/T I T- I -i-i- i.andp.5,6,8. Moyle, rinch, 36 Liiz. Co. 11.I6. a. And as custom may prevail in not tithing; so it ma}-^, [ 268 ] as has been said, make things tithable which in their 9"^^°™ ^^ P^y . , , ,^ , ^ , tithes of things own natures are not tithable, as the rent or houses, not tithable. pigeons eaten in the house, wood spent in the house. And by custom tithe may be paid of salt, brick, lime, ^ „ 11-1 J 1 1 ■ -111 I^o"s. 1-642. ale, chickens, and other things not tithable. s. 7. Now the difference between a custom and a prescrip- Difference be- tion is this ; every custom must have dimension, and t^'^^i custom alleged to be within some certain province, county, city, t^n/*^""'^ hundred, &,c. for if it be a general custom of England, it is common law, and such custom must be common to all within such limits; but if it be confined to one certain person, house, land, or other thing, ihere it be- comes a prescription, which is a younger daughter to custom, and therefore when a man comes to plead a custom, the manner of pleading is to allege that within such a county, hundred, or town, there is, and from the time whereof the memory of man is not to the contrary, there hath been such a custom used and approved in A A 354 THE PARSON'S COUNSELLOR, [part ii. How to plead a prescription. [ 269 ] Wlierein custom and prescription differ. llnst. 114. b. 2 Inst. 653. 2 Inst. 654. How the eccle- siastical laws look upon cus- toms and pre- scriptions. In what they differ from the common law in thia matter. [ 270 ] 9 Inst. 653. the same, that is to say, that, Sec. alleging the custom as it is. But when you come to plead a prescription, you only allege that you, and all those whose estate you have in such lands, have time out of mind paid so much an- nually to the parson of D. in full satisfaction and exo- neration of all the tithes arising upon the said lands, &c. So that custom and prescription differ in these things, that custom must be limited and confined to some cer- tain place ; prescription is at large ; custom is common to all the persons and lands within the limits wherein it is alleged, but prescription is confined to certain per- sons or things. But in this they agree, that they must be constant without interruption, and perpetual from the time whereof the memory of man is not to the con- trary; for if there have been frequent interruptions, there can be no custom or prescription obtained ; but after a custom or prescription is once duly obtained, a disturbance for ten or twenty years shall not destroy ; for multiplex interruptio non tollit praescriptionem semel obtentam. But I must here observe to the reader, that though the civil and ecclesiastical laws do in some cases take notice of custom and prescription ; yet in this they diflfer from the common law, that they allow a usage for forty years to be a good proof of a custom or pre- scription, grounding their judgments upon a decretal epistle of Pope Alexander the Third, anno dom. 1180. But this kingdom never allowed of that epistle, or yielded any obedience thereunto; so that as well in spiritual as temporal prescriptions and customs, if they come to be tried at common law, as all prescriptions concerning tithes must be, they must be proved to have been used beyond the memory of any man to the con- trary ; for if any man living, or any authentic record, or other evidence, prove it was otherwise at any time since the first year of Richard the First, which was anno dom. 1189; the custom or prescription fails. CHAP. XIII.] THE PARSON'S COUNSELLOR. 355 And the influence custom and prescription have in What influence the manner of tithing, is confirmed by three several acts scriptTon'havr' of parliament. in the manner First, by the statute of 27 H. 8. whereby it is enacted, 27 H. 8.%. 20. " That every subject of England, 8cc. according to the ecclesiastical laws and ordinances of the church of England, and after the laudable usages and customs of the parish, or other place where he dwelleth or oc- cupieth, shall yield and pay his tithes, offerings, and other duties of holy church, &c." By this statute the ecclesiastical laws and canons are affirmed for the payment of tithes ; but in such cases as they are contrary to the common law or customs of the place, they do not bind. Next, this act confirms and allows all usages and customs of the place where the tithes arise, which are to be preferred before all canons and constitutions in manner of tithing. The next statute is that of 32 H. 8. whereby it is 33H. 8. c 7, enacted, " that every person, &c. shall fully, truly, and * effectually set out, yield and pay all and singular tithes and oflFerings aforesaid, according to the lawful customs and usages of the parishes and places where such tithes or duties should grow, arise, come, or be due." This act seems only to extend to customary tithes, and so doth the statute of 2 E. 6. which is, 2E. 6. c. is. " That every of the king's subjects should from [ 271 ] thenceforth, truly and justly, without fraud or guile, divide, set out, yield and pay all manner of their predial tithes in their proper kind as they arise and happen, in such manner and form as hath been of right yielded and paid within forty years next before the making of the said act, or of right or custom ought to have been paid." But more of these statutes in their proper place. I shall now proceed to show what liberty and privilege the parson, vicar, &c. hath in the grounds where the tithes arise, for the drying, ordering, and carrying away their tithes. A A 2 356 THE PARSON'S COUNSELLOR, [part ii. CHAPTER XIV. What Privilege and Liberty the Parson, Vicar, S)C. hath m the Ground where the Tithes arise, for the drt/ing makings ordering, and carrying aicay the same. 2 E. 6. cap. 13. By the statute of 2 E. 6. it is enacted, " that at the What privilege tithing time of predial tithes, it should be lawful for the parson, &c. " , . , i i • i hath in the lands cvcry party to whom any tithes ought to be paid, or where the tithes jjjg deputy or servant, to see the said tithes to be set forth and severed from the nine parts, and the same quietly to take and carry away." This statute, as to the taking and carrying away, [ 272 ] seems only declarative of the common law. But as to coming upon the lands to see the tithes set forth, seems to me to be a new authority given by this law, for the owners of the land are de jure bound to set forth their tithes duly and rightly; and if they fail therein, the Rolls, 2. 302. parson, vicar, Sec. have their remedies; and if the pa- **■ ' rishioner do justly and truly set forth his tithes, although the parson, vicar, &,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, that the 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, 8cc. shall of his own head tithe the corn, hay, &c. of any land-holder CHAP, xrv.] THE PARSON'S COUNSELLOR. 357 within his parish, &c. and cany it away, he is a tres- passer, and an action will lie against him for it. Jones, 90. But a parson, vicar, &c. may de communi jure, after Liuwood, c. the tithes are set forth, come himself or his servants, Q<"aquideni 1111 11- lo ^"" *^*P* ^forii and spread abroad, dry, and stack his corn, hay, &c. damnabilis. in any convenient place or places upon the ground where the same grew, till the same be sufficiently wea- thered, and fit to be carried into the barn, &,c. But the t 273 ] 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 l^^'t't',1' , ' , , . , . . '^ Rolls, 1. 643. hay, corn, Sec. and the weather in this case is to be x. 2. 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 (y4<). (94) If a tenant cut down corn and before carrying it off his term expire, yet he must set out the tithes. 1 Brownl. 123. Gvvil. 258. Kipping v. Swayn. For he still remained owner of the corn, and if corn be cut down and a stranger take it away before severance of the tenth part from the nine, an action on the statute will lie against him. 2 Rol. R. 440. Gwyn V. Merryweather, and vide Sir S. Toller's Treatise on Tithes, 08. Wlierc a defendant by his answer alleged that after cut- ting his corn, the fences being bad, he removed the whole crop into the adjoining field for greater security, and then (after notice given in church) he tithed it, and no one com- ing to receive the tithe he took care of it for four or five days, after which such tithe perished on the ground ; and insisted that such removal was not done with a fraudulent in- tention, still the court were of opinion that the removal was unlawful. Gwil. ygO. Thomas v. Rees. And in Small- cross v. Towle, 13 East, T. R. 26I, Lord Ellenborough 358 THE PARSON'S COUNSELLOR, [part ii. And if the parson, vicar, &c. shall exceed a conve- nient and necessary time in the drying, ordering, and carrying away their tithes ; and the parishioner shall receive damage thereby ; an action of the case will lie 329. against them for their negligence in this behalf. Styles, 342. gyt jjo action will lie against the parson, vicar, &c. Lampen v. in such a casc, unless the parishioner have duly set forth Wooduer, p. |j|g tithe, and given notice thereof to the parson, vicar, per Latch. cCC Haisey v^^ ^j^^j the parson, vicar, &c. may carry his tithes from 6Car. i.B. R. the ground where they grew, either by the common Rolls, 1. 643. ^yjjy^ QY j^^y gy^.^ ^jjy yg j-^g Qwucr of thc ^nd useth to ^^r^«/ '-^(^'/^/cany away his nine parts (95). ^^^^^''yi" '^^^^^ - observed in his judgment, " corn must be tithed in the first convenient state in which the tithe can be collected after the corn is cut, which is in sheaves; and if the farmer adopt any mode of tithing which excludes or abridges the due means of the parson's comparing the tenth sheaf with the other nine, it is bad." But whatever the owner is obliged to do of common right, the custom of every place is to be observed ; and therefore (if the custom be to measure out the tenth part of the grass standing for the tithe thereof, and that the parson cut and make it, this is good) and in this and all other cases, when the tithe of the grass is set forth, and the owner is not bound to make the parson's tithe into hay ; the parson de jure may make the grass into hay upon the land on which it grew, although the usage time out of mind hath been to the con- trary ; and it is needless for the parson to allege a custom for the doing it. Wats. 49. Nevertheless the validity of the custom of measuring out a tenth part of the grass standing may now be doubted, Gwil. I56l. Knight v, Haisey, (95) It was observed by Sir J. Mansfield, C. J, in the case of Cobb, elk, v. Selby, 2 Bos. and Pull. N. R. 466. that *' the general rule is confined to the close in which the tithes arise. It does not follow that the rector is entitled to go over any other lands of the farmer which are used by him as a road. Thc parson cannot maintain this point, that CHAP. XIV.] THE PARSON'S COUNSELLOR. 359 But if the owner of the soil, after he has duly set forth his tithes, will stop up the ways, and not suffer the parson, vicar, 8cc. to carry away his tithes, or to C ^74 ] 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. G. 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, as I conceive ; or he may, if he will, break open the gate, fence, &c. which hindeis him, and carry away his BuUt. 1.108. 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. this is excusable. And if the parishioner duly set forth his tithe of hay Rol's, 2. 2S4. or corn, and will not permit the parson, vicar, &c. to ' * make the hay, or spread and dry the corn, as he ought, it amounts to a subtraction of tlie tithes, and the parson whatever road the farmer uses for his own convenience and occupation of his farm, though not the usual road from the close in question, the parson may use also," and by Cham- bre, J. in the same case, " a farmer often uses ways in a variety of directions leading to the public road. If the par- son is entitled to any of them, it may occasion great incon- venience, I think that the rule goes no farther than this, that the tithe-owner is entitled to make use of the road ordinarily used for the ordinary occupation of the close in which the tithe is taken." 860 THE PARSON'S COUNSELLOR, [part ii. may sue for the subtraction of such tithes in the spi- ritual court, and no prohibition hes in this case (96). (96) Upon the trial of an action on the stat. 2 and 3 Edw, 6. for not setting out the tithes of hay amongst other things, at the York spring assizes, ISOQ^ before Lawrence J. the evidence as to the hay was, that on the day on which it was cut the owner tedded it abroad, and on collecting it to- gether again, into what were in that country called lap-cocks or foot-cocks, he set out every tenth cock. It was admitted that the grass in that state was not fit to put into stack ; it was neither hay nor grass ; and when the defendant's hay was again spread out, there was not room for the plaintiff to spread out his tithe to dry without treading on the defend- ant's hay ; as much space was left however for spreading out the tithe as the ground that the tithe had grown upon. Lawrence, J. was of opinion, that the tithe of hay was pro- perly set out, and the court of Common Pleas confirmed his decision, Halliwell, Clk. v. Trappes. 2 Taunt. 55. CHAP, XV.] THE PARSON'S COUNSELLOR. 361 CHAPTER XV. [ 275 ] To what Charges the Glebe Lands belonging to a RedorT/, and the Tithes are subject. Sir Edward Coke tells us, " Quod nullus pro decimis, 2 Inst. 64i. . . 1 J 1- ^- .- What charges quae sunt spintuales, de aliqua reparatione pontis, seu ^5^,^^^ ^^^ * aliquibus oneribus temporalibus onerari debet." church lands are That tithes being spiritual, were not subject to tem- ^" ■'^*^ poral charges at the common law. And Sir Edward Coke is of opinion, that at this da}-, 2 Inst. 64i. if tithes be in the hands of temporal men, they are by reason of them contributory to temporal charges. And upon a doubt of Mr. Justice Yelverton, who p 3 Car. i. was justice of assize in the bishopric of Durham, as Sir Callis 132. Nicholas Hide, heretofore chief justice of the King's 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 soldiers. King's Bench, Marshalsea, bridges, &c. But they are not subject to styles, 162. per any charges temporal, or by the common law. VmWs. And so it was lately held by my Lord Chief Justice Webb v. Hales and the court of King's Bench, for watch and S'^^'^i.'rl*^''' „ o ^ j^ , 16/5. 13. 1. ward and repair of the highways : and this case then per Hunt. vouched by the chief justice. f ^"'^ ^ But tithes at this day are subject to pay first fruits j-irst fruits. or annates, in Latin primitiee, which are the first year's See mere of this r^ c • • ^ \ r X ■> matter and pronts or every spiritual benefice at a new incumbent s tenths, 4 Inst, entry into his living; they were anciently exacted by 120,121. ^1 f -D 111 11 Cowel verbo tne pope ot Kome, when he had small revenues to sup- Annates. port the public charge of his place. And Polydore How these differ Virgil tells us, " Caeterum nullum inventum majorcs Ro- fmits under the 362 THE PARSON'S COUNSELLOR, [part ii. law. Vide mano pontifici cumulavit opes quam annatum quas Tho. Aquinas, ^^^cailt " go, 2ffi, 786. ^OCdiiL. Art. 4. Polyd. And Polydore Virgil tells us, that Pope Boniface the ▼entione rerum Ninth first introduced them, though others ascribe them 1. 1. c.2.p.4'j8. to John the Twenty-second. See Platina in the Life of Boniface the Ninth. But some are of an opinion (and not without reason) that annates were much ancienter than Pope Boniface the Ninth, who entered upon the papacy in the year 1389, and John the Twenty-second, not till the year 1410. But it appears by our parliament rolls (which are infallible evidence) that this payment had reached England, in the 25 th year of the reign of E. 3. which was in the year of our Lord, 1351, in which year there was a complaint made by the commons in parlia- ment, that the pope had reserved to his own collation as well the abbies and priories, as also other the great benefices, whereof any ecclesiastical or religious persons had the patronage ; and that he had lately reserved all the [ 277 ] dignities in England, and the provenders* in cathedral ♦Prebends, I churches, by which means the pope had the first fruits suppose. ^£ ^jj ^1^^ ^^.^ benefices. By this complaint it should seem the pope had yet got in but one leg, that is, to have the first fruits of those livings, to which he himself collated : a pretty piece of simony. Anno 1376. In the 50th year of the same king, the commons Rot. Pari. . . '' . *" n. 100. and rencw then- complamt agam, and amongst many griev- 6 H. 4. nu. 21. auces from the court of Rome there complained of, one iK. 2.nu.66. is, that the pope's collector that year (a thing never 4 R, 2. nu. 44. before done) had taken the first fruits of every benefice, whereof he made provision or collation, whereas he was used to take first fruits only of benefices vacant in the court of Rome. And 9 H. 4. cap. 8. not in the print, there is a statute expressly against payment of them upon the pain in the statute of provisors, which is a premunire. Hist.Wals. p. And ifWalsingham says true, " Summus Pontifex *°^" (Anno 1316) reservavit camerae suaj, primes fructus CHAP. XV.] THE PARSON'S COUNSELLOR. 363 beneficiorum omnium in Anglia, per triennium va- cantium." So tliat it is apparent, that in some cases first fruits were paid long before Boniface the Ninth, or John the Twenty-second ; but perhaps the pope before them had not made it an universal payment (97). 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 pope's usurpa- [ 278 ] tions here in England, the poor clergy were not ac- quit of this exaction, but the same was by the statute of 26 H. 8. settled upon the then king, and his sue- St. 26H. 8.c.3. cessors. 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 the valuation taken and made in (97) These were originally a part of the papal usurpations over the clergy of this kingdom, first introduced by Pandulph the pope's legate, during the reigns of King John and Henry the Third, in the see of Norwich, and afterwards attempted to be made universal by the Popes Clement V. and John XXn. about the beginning of the fourteenth century. The first fruits, primitise or annates, were the first year's whole profits of the spiritual preferment, according lo a rate or valor made under the direction of Pope Innocent IV. by Walter, Bishop of Norwich, in 38 Henry III., and afterwards advanced in value by commission from Pope Nicholas III. A. D. 1292. 20 Ed. I. wliich valuation of Pope Nicholas is still preserved in the exchequer. The tenths, or decimoe, were the tenth part of the annual profit of each living by the same valuation, which was also claimed by the holy see, under no better pretence than a strange misapplication of that precept of the levitical law, which directs, that the Levites should offer the tenth part of their tithes as a heave offering to the Lord, and give it to Aaron the high priest. 1 Bla. Com. 283. 364 THE PARSON'S COUNSELLOR, [part ii. the said 26th 3^ear of king H. 8. and now used in the first fruits office. 1 El. cap. 4. And these first fruits are by a statute made 1 EHz. not to be paid all at once ; but one quarter of them is to be paid at the end of six months from the time of the induction, collation, &,c. another fourth part at the end of twelve months, another fourth part at the end of eighteen months, and the last quarter part thereof at the end of two years. 1 El. cap. 4. And by a statute made 1 Eliz. all vicarages not ex- ceeding ten pounds, and all parsonages not exceeding ten marks, according to the valuation in the first fruits office, are discharged from the payment of first fruits (98). And if an incumbent die, or be legally removed out of his living without fraud, then after such death or re- moval, the remaining half yearly payments of the first fruits, which were not become due, are discharged by the said statute of 1 Eliz. St. 26H.8. C.3. And by that statute the dean and canons of Windsor ZiVre'to bl are discharged of the payment of first fruits. paid. And by the statute made in the 26th year of H. 8. '■ ^^^ -^ beforementioned, it is enacted, that every archbishop, bishop, dean, prebendary, archdeacon, parson;^ vicar, &c. before he have any actual or real possession or meddling with the profits of his living (this must be between in- stitution, collation and induction) must pay or com- pound for, and give security for the payment of his first fruits in the first fruits office : and that an obliga- tion taken for the same should be of the force of a statute of the staple, and that if any such presume to enter into his living before such payment or security given, or composition made, he is to forfeit double the value. (98) By the 5 An. c. 24. all ecclesiastical benefices with cure of souls, not exceeding the clear yearly value of 5ol. by the improved valuation of the same, shall be discharged for ever from the first fruits and tenths. S. 1. CHAP. XV.] THE PARSON'S COUNSELLOR. 365 But his majesty and his royal predecessors have not been severe in this case to take the penalty, but upon failure their officers of the exchequer have sent out process to the sheriff, to put the negligent parsons, vicars, &c. in mind of this duty, and upon coming in and paying the charge of the process, and paying or giving security for the first fruits, they are discharged. But the parsons, vicars, Sec. must be careful to pay in their half yearly payments, as the same become due, and take up their bonds, or else new process will issue to the increase of their charge. Perhaps some may be so curious that they will desire Why vicarages to know, why vicarages not exceeding ten pounds should J[l^gr^Tthe be freed of this charge, and parsonages of ten marks first fruit office should pay them: now the reason of that was, that the than parsonages. vicarages in time of popery, and when the valuation [ 2S0 1 was taken, had a great income by voluntary offerings, which falling to little or nothing upon the dissolution of monasteries, this favour was afforded them in their first fruits. The next charge parsons and vicars are subject to. Tenths. are the tenths, that is, a tenth part of the yearly value of all their church livings; this payment was first exacted jt should seem from the clergy by the pope, about the 20th year of tiiese were im- E. 1. and a valuation was then made by his authority, fa°ce"the^8th°to* of all church livings, at which rate the pope was an- maintahi his swered his tenths, but he never had any tenths of such Extravag."com. land as was given to the church after that time. These l. 3. p. '269. payments (as appears by our histories) the pope of Rome sometimes granted to the kings of England, when the kings pleased them, or rather when they feared their power; but upon the abolishing the pope's power, which was in the 25th year of H. 8. these tenths were g^ 05 h. s. given to the king the year following by the aforesaid statute of 26 H. 8. and to be paid at Christmas yearly, St. 26 H. 8. c. 3» and the bishop of the dioccss is to collect them, and they are to be paid according to the valuation taken the same year, and now in the first fruits office, and are 366 THE PARSON'S COUNSELLOR, [part ii. not paid that year the first fruits are paid, but are allowed out of them, because it is intended that the king has the whole year's profit. But immediately upon the reformation many clergy- r 281 I men scrupled and denied to pay these tenths to the king, being a duty properly due to the pope, and there- fore the refusal or neglect to pay them to the king, St 26 H 8 c 3. being certified by the bishop that had the collection of them, is made a cause of deprivation, not only of the living for which they refused to pay their tenths, but also of all their spiritual preferments. St. 3 & 3 E. 6. But by the statute of 2 and 3 E. 6. that severity was cap. 20. moderated; so that now the refusal or neglect to pay them, and so certified by the bishop, makes only that living void, for which the tenths shall be so refused. But his majesty and his royal predecessors have rarely put the severity of this law in execution, but make out process in the exchequer to compel the payment; how- ever since the penalty is so great, every clergyman ought to be very careful to avoid the danger. An apparitor came to a parson newly inducted, and told him he must pay his tenths to such a person, naming More, 541. him, at such a day and place, four miles off; and this Dyer, 11 6. p. 69. ^^^ adjudged no good demand to make his living void within the statute, but such demand which will make a living void within the statute, must be positive by one that has power to demand and receive it. And note, that the bishop's certificate is not per- emptory; but may be traversed, and the party that demands the tenths must be sufficiently authorized. See Cro. Eliz. 80. r 282 ] There is a provision made by an act of parliament in St.2TH.8.c. 8. the 27th year of H. 8. for those incumbents that shall ■ where^tiu! sue- ^^ forced to pay the tenths due in the time of their pre- cessor pays dcccssors, that they may levy the same upon any goods his pred«;es"sor. they can find of their predecessors upon the church liv- ing; and if they be not redeemed within twelve days after they shall be distrained, then the same shall be praised CHAP. XV.] THE PARSON'S COUNSELLOR. 367 by two or three indifferent persons to be sworn, and so many of them sold as will satisfy the arrear with cost ; and if no such goods can be found, then the successor to take his remedy against his predecessor, his executors or administrators, or others to whom his goods shall come, by bill in chancery, or in action of debt at com- mon law (99). There is another charge to which the parsons, vicars, Procurations. &c. are subject for their church livings, which is called procurations or proxies; and these are duties due and Sir John Davies payable to the archdeacons at the time of their visita- P- » > • tions, which are not paid by any certain rule, but by some ancient taxation ; for anciently the religious houses and clergymen at their own charge entertained the bishops and archdeacons in their visitations, but at See more of this length their attendants were so many, and their trains ^ap^'^ut singda so great, that the clergy and religious houses were Ecciesiastica. horribly oppressed with entertaining of them ; to avoid ^^^^ bvVteph! which, the clergy and religious houses came to this Langton about ^'' . u .• . .u • 1222, the arch. composition, every one to pay such a proportion to their deacons were to visitors to be freed from that great oppression; and ^""8 but seven- therefore the canonists define them to be, " Exhibitio trains, and to sumptuum necessariorura facta praelatis qui diocaeses stay but one day, , 1 . , . r . Mil- and to invUe peragrando ecclesias subjectas visitant, and this pay- nobody. ment is continued to this day, not only of those livings t -^^^ 3 which are still enjoyed by the clerg}', but also of the impropriations being saved by the statute of 31 H. 8. 3i II. 8. cap. 13, (99) " At length the piety of Queen Anne restored to the church what had been thus indirectly taken from it. This she did, not by remitting the tenths and fii-st fruits entirely, but in a spirit of the truest equity, by applying these superfluities of the larger benefices to make up the deficiencies of the smaller. And to this end she granted her royal charter, which was confirmed by the statute 2 An. c. 11. whereby all the revenue of first fruits and tenths is vested in trustees for ever, to form a perpetual fund for the augmenta- tion of poor livings," 1 Bla. Cora. 285. 368 THE PARSON'S COUNSELLOR, [paut ii. Cap. Quoniam autem verb, una tantutn. Cap. Quamvis lex naturae. Synodals. St, Jerome in his Epistle to Evagrius, says Diaconi elegant de se quem in- dustrium nove- rint, et archi- adiaconum vo- cant. C 2r,4 ] Dugdale's War. 126. b. and confirmed by the statute of 34 H. 8. and remed}' given for them with costs, both in the spiritual court and at common law. And note, that if there be a parsonage and a vicarage endowed, there is but one of them to pay procurations, but which of them must pay, is to be directed by custom or the indowment, if extant. Note likewise, that donatives are not to pay pro- curations, because they are not within the visitation of the ordinary; and so for free chapels, for the same reason. And if there be a parsonage which has a chapel de- pending on it, that is, where both are in the parson's cure, no procurations are to be paid for the chapel. Synodals is another charge upon the parsons, vicars, &c. and is likewise paid to the archdeacon, not by any certain rule, but by some ancient taxation; so that some pay more, and some less. I must confess I cannot find how this payment first became due, but by the name it should seem to be a contribution to the archdeacon's charge in the synods, they being anciently elected by the deacons themselves as their representative. But it should seem, that the archdeacons claim these synodals for their Easter visitation : and the bisho})s have laid some claim to them, but as my author con- ceives, without any just reason, the archdeacon and his officers performing the labour, and undergoing the charge. Since my first publishing of this book, a learned and worthy divine sent me a book, written by a learned and ingenious person, amongst other things concerning synodals, whereby he expected I might receive some satisfaction concerning the original and growth of them, at whose candle I should thankfully have lighted mine own, if it had given a clear light; but when I came to read the book, I found the author endeavour to prove them one and the same with the cathedraical dutj', CHAP. XV.] THE PARSON'S COUNSELLOR. 369 whose reasons to that purpose I can by no means sub- scribe to. First, because Mr. Linwood, a verj' learned civilian Cap. Quon-am and canonist, reckoning up the onera ecclesiastica, tells one^r™j;ccLi- us, " Qua^dain enim sunt quae dicuntur episcopalia, et astica. inter haec continentur synodaicum, cathedraicum," &c. so that it appears he conceived them two several and distinct charges. Secondly, the cathedraicum is by the canons restrained Causa lo. q. 3. not to exceed two shillings, whereas ancientl}" the bishops piacuiMnnulIus had a third part of the offerings, and in consideration et Concil. Braca. thereof were to repair the churches, and they had this "^" payment in consideration of the third part of the offer- ings, and were acquitted of the repair of the churches. But I could never learn that the cathedraicum was ever [ 285 ] paid in England, and the reason may be, because the churches in England have always been repaired by the parishioners by custom. Now the cathedraicum being limited to two shillings, and finding upon inquir}^ that the synodals are not confined to any certain sum, but for the most part more than two shillings ; it is very improbable that they are one and the same. Thirdly, the cathedraicum is annexed to the bishop's chair, and in recompense of a duty not transferred to any other ; but for aught I could ever learn the synodals have been always paid to the archdeacons ; and there- fore for these reasons I take them for several and distinct duties, as Linwood seems to take them. The same author gives an account of some difference that has been moved between the archdeacons and the clergy, whether procurations are due to the archdeacons when the bishop visits: in which case the same author has given his verdict clearly for the archdeacons, and grounded his opinion upon reason, custom and authority. First, his chief and only reason is, because the arch- deacon pays his tenths as well for that year the bishop visits, as for the other two; and therefore he concludes B B 370 THE PARSON'S COUNSELLOR, [part ii. it very reasonable he should have that for which he pays tenihs. But I conceive there is a great mistake in this argu- [ ?86 ] ment, for I am not satisfied the archdeacons pay any tenths for their procurations, but for the crops annexed to their archdeaconries and their jurisdiction; ibr it were against reason to charge them to pay tenths for that they eat and drink in their visitations; and the tenths ought to be of the clear profit; but where the procurations are paid in money it should seem tenths are due. But admitting upon the valuation in the 26 H. 8. the procurations were valued (for in that of 20 E. 1. they could not be valued, not being then reduced into money, nor of long after) then the argument runs no farther, Vide extra. than that, because the archdeacon pays a tenth part com. de decimis . t r ^ i i i i 29fi. agamst reason, thererore the clergy must pay the wlioie. But the reason against the archdeacons in my judg- ment is much stronger. I shall not take upon me to examine whether their jurisdiction be ordinary or de- legated. I will admit custom has made it in some measure ordinary, though much might be said against it; I will let that point pass unquestioned, but from the beginning it was not so. But let that be as it will, it is clear there was nojurisdiction annexed to archdeaconries originally; the first step was over the deacons, as shall be showed hereafter: it is without all doubt, that originally all jurisdiction over the clergy was in the bishops, and they in their own persons visited the churches within their diocesses, for the first 600 years after Christ, r 287 ] But in the fourth council of Toledo, which was held 4 Concil, Tola- about the 630th year after Christ's birth under Hono- tan. cap. 35. . ^ . i i ^t n • » ]• 2 Concil. Braca. JJ"S L, It was decreed, Episcopum per cunctas dio- cap. 1- cajses parochiasque suas per singulos annos ire oportet ;" what to do? not only to eat and drink, but " ut ex- quirat quo unaquaeque basilica in reparatione sui in- CHAP. XV.] THE PARSON'S COUNSELLOR. 37I digeat." But " si ipse aut languore aut aliis occiipationi- bus implicatus id explere nequiverit, presbyteros proba- biles aut diaconos mittat, qui et reditus basilicarura et reparationes et ministrantium vitam inqiiiiant." This is the first commission that I can find for bishops to make substitutes to inquire, but the jurisdiction still reserved to the bishop to a(hnonish, examine and punish; but here is no news of archdeacons as yet in power. The first news I hear of any thing tending to any Distinct. 25. jurisdictionem was over the deacons; for Gratian tells P'^'"''^^"^' us, " Archidiaconus, subdiaconis et levitis ad quern ista pertinet ministeria. Et ad ipsum nunciat episcopum excessus diaconorum :" so that it seems the petit juris- diction the archdeacons begun with, was to inspect the behaviour of their brother deacons, and to give the bishop an account of their miscarriages in the nature of a monitor only. The next news I hear of them is a complaint against Distinct. 94. them, " Quod in plerisque locis ipsi super presbyteros '^"'°"- quandam exerceant dominationem :" but staid not tliere, but *' ab eis censum exigunt," (which the bishops could [ 288 ] not do) whereupon it is commanded, " quod sint con- tenti regularibus disciplinis, et teneant propriam men- suram quam ab episcopis eis injungitur; banc per parochias suas exercere studeant, nihil per cupiditatem et avaritiam prsesumentes." Here it appears that they had gained some employment under the bishop over some certain parishes, but with a limited jurisdiction ; they must keep their measures, must not exceed their bounds. By this it appears that the archdeacons are merely Hob, 16. substitutes to the bishop, and what authority they have is derived from him, his chief olHce being to visit and inquire, et episcopo nuntiare: and therefore the bishop ','',, , . . , Err;o dicuntur takes vviiat causes he pleases to lus own cognizance, ana oculi episcopi. leaves some petit business to the determination of the B B 2 372 THE PEARSON'S COUNSELLOR, [paiit h. Cap. ut singula ecclesiastica. [ 289 ] Verbo visita- tione. Cap. Quamvis lex iiaiuriE, Ibidem verb, ratioue visita- tioais. archdeacon. This being granted, which cannot be justly denied, it is against all the reason in the world, that the bishop by easing of himself by appointing a deputy vicar or vicegerent should double the charge upon his clergy. As for the custom alleged for this duty, before I. give an answer to it, it will be necessary to examine how the canon law stands in the point. And by our own provincial canons I find it is especially provided, that the archdeacons should receive no pro- curations, " nisi illo die quo personaliter visitant eccle- siam procurantem ;" and it goes farther, " nee redemp- tionem pro visitatione prsesumant." What can be more clear? and what can this redemption mean, but pro- curations in money, as is now used ? And the gloss, to make still more clear, tells you, " forsan quia episcopus eodem anno visitavit et sus- pendebat jurisdictionem archidiaconi, et sic archidia- conus vult ab eis aliquid loco procurationis exigere quod non licet ut hie, ubi non visitavit." And by another canon made by John Stratford, arch- bishop of Canterbury, and his clergy, about the yearl 345, it is forbidden, " JNe quis procurationem ratione visita- tionis solvendam ab aliqua prassumat recipere ecclesia, nisi visitationis officium diligenter eidem impenderit, scrutatis personaliter, et inspectis per ipsum cum effectu quae fuerint indaganda. Vide 4 Concil. Later, sub Innocent 3. ca. 33." to the same purpose. By this canon likewise there are no procurations to be paid without personal visitation. But for the better understanding of this canon I must observe to the reader that there are two other sorts of procurations, the one by pact or covenant, the other by custom, that are no ways related to visitations, and therefore the canon well distinguishes, ratione visitationis. And after that canon has taken care for moderating the excessive charge of the visitors in their visitations, it leaves it to the choice of the visited. " An in pecunia CHAP. XV.] THE PARSON'S COUNSELLOR. 373 quantitatis solitae, vel in victualibus visitantes eosdem voluerint procurare, optionem reservamus." And Mr. Linwood tells us, in those days it was a [ 290 ] ^ common use in England, that the archdeacon received in money, nomine procurationis, seven shillings and six- pence, that is, eighteen pence for himself and his horse, and six shillings for his six attendants and their horses. There is by the same canon provision made, that where there is a church and a chapel depending of it, which is not presentable, but within the charge and cure of the parson, that in that case there shall be but one procuration for both, and that he that shall take more, shall ipso facto be suspended ab officio et bene- ficio, till he has paid double the sum received to the cathedral church of that diocess. Lastly, this canon concludes with the duty of the archdeacon and other ordinaries in their visitations, tiiat " tani in ecclesiis quam ornamentis eorum, coemite- riorum clausuris et mansorum domibus reperientes de- fectus, iissub pecuniariis poenis pr8ecipiuntreparare,"&c. So it appears by these canons, that there are no pro- curations due to the archdeacons, unless they visit per- sonaliter; and if it be demanded, why in person, and why ecclesiatim ? the close of this canon tells you. Now you shall hear what Othobon, the pope's legate, ggg ^ausa lo. in a national synod held in St. Paul's, London, in May q- 1- Relatato , ^^o 1 • ti /-\ / 1 \ • the same pur- 1268, says to tins matter, ' Cum autem (says he) ratione pose_ visitationis procuratio debeatur, si quid exequatur vel recipiatur hujusmodi ratione cessante, jam male recepti [ 291 ] et indebiti nomen subiit. Cum igitur intellexerimus quod plerique pra'lati procurationes a subditis exigunt, licet visitationis officium non impendant; nos tarn eccle- siarum indemnitati quam* prajlalorum saluti consultius •Nota. providentes, districtius inhibemus, ne quis eorum procu- rationem, quae ratione visitationis debetur, ab ecclesia quacunque recipiat, nisi cum eidem visitationis officium impendit; qui vero receperit, donee restituerit, ab in- gressu ecclesiae sit suspensus." 374 THE PARSON'S COUNSELLOR, [part ii. So that it appears by these canons, the archdeacon, when the bishop visits, ought not to have procurations, but is expressly forbid to exact them. JSow how far a Concil Later, custoin shall prevail against a canon (I mean such 4. sub Innocent cListom as the ccclesiastical courts allow of forty years Accordsf continuance) belongs to the determination of the ca- Gregor^'s De- nonists. And the author tells us, page 25, from them, nostram'^audr- that that custom is said to be rationabilis, and by con- entiamde con- sequence inviolabilis, that is, binding, " Quae nee divino suetudine causa . . , j- -^ i • ^ • "• • ^•<. .- " lO.q. 1.— relata. J"*' contradicit, nec obviat canonicis mstitutis. I could say much more to this purpose, but it belongs to the canonists, to whom I leave it. But if the author intend such custom as is allowable at common law, when he says canons cannot be of such force as to annihilate and overthrow n.'itional laws and customs, I must grant he is therein ver\^ right. But in this case there can be no such custom; for [ 292 ] every custom allowable at the common law must have its commencement before the first year of R. 1 . which Vas electionis was anno Dom. 1 189, but the decree of Pope Benedict extravagan. XIL wliicli first gavc wav to commutinff procurations li. 5. de ceiisi- _ . or bus, &c. into money volentibus, was about the year 1337, and money payments in lieu thereof were not settled here in England of long time after; and therefore they cannot be claimed by any custom or prescription at common law. For the case of proxies in Ireland, which he vouches forth of Sir John Davies Irish reports, I conceive makes nothing at all to this question ; for it is not at all moved in that case, whether there were a double proxy due, the one to the bishop when he visits, and another to the archdeacon that sits still: but I presume the author makes use of that case to prove, that procurations may be due ratione visitationis, when there is no visitation : and I will agree they may by act of parliament; and in that case, there are two acts of parliament for them. But Sir William Capel's case, vouched in Lutterel's case, may be conceived to make something to this pur- CHAP. XV.] THE PARSON'S COUNSELLOR. 375 pose, where the case shortly is, that one held his land inter alia by the rent of five shillings pro wardo castri, and upon avowry for this rent, the tenant pleaded that the castle was down, and therefore no rent due, and upon demurrer adjudged against the tenant; and very great reason, for the rent was reserved in respect of the land, and not in respect of the castle, for the reservation of r 293 ] the rent is reddendum inde, that is, for the land five shillings annuatim pro wardo castri ; and the saying the castle is down does not answer the debet : but if the land for which the duty arises be evicted by a. more ancient title, the rent is gone ; so that this case being rightly understood, makes against the archdeacons ra- ther than for them ; for in their case the annual pay- ment is paid for procurations. Procurations are due, ratione visitationis: then when the bishop that has the Decet. Greg. . , ...,.,.,., ^ , , lib. 2. cap. 16. ancienter right to visit, inhibits his deputy, and does cum ex officii, the work himself, to whom do the wages belong.? And note, that by the canon law no man may pre- scribe to be free from procurations ratione visitationis. Here I could willingly end my discourse, for I doubt I have said enough to displease some; but no good man ought, nor I hope will take any offence at what has been said, or at what I am about to say; and there- fore I shall add a v/ord or two concerning the arch- deacons and tlieir visitations (100). It appears by what has been said, that for the first Concil. Toietan. six hundred years after Christ, the bishops in their own *• ^ap- 35. & . . , ,, ,. , . Braca. ca. 7. persons visited cunctas diocaeses parochiasque suas singulis annis," and they had seven deacons in every city, that is, diocess, to assist them. After that they had authority in case of sickness, or other public con- cerns, to delegate priests or deacons to assist them ; and (lOO) Procurations are suable only in the spiritual court, and are merely an ecclesiastical duty. Lord Raym. 450. And may be levied by sequestration or other ecclesiastical process. Gibs. 1546. 376 [ 294 ] Dist. 94. dic- tum est. Cum Apostolus Sub. Alex. 3. 1179. c. 4. Ut singula ec- clesiastica. Cap. cum Apo- stolu.s. 5 Council of Lat. 1176, sub Alex. 3. cap. 2. Quamvis lex naturae. [ 295 ] THE PARSON'S COUNSELLOR, [part ii- thereupon, as should seem, they cantonized their great diocesses into archdeaconries, and gave tiiem com- missions to visit and inquire, and to give them an ac- count of all at the end of their visitations, as is before related; and the bishops reserved the third year to themselves to visit their churches, and thereby to in- form themselves how the archdeacons, their substitutes, performed their duties, how they domineered over the clergy, and were reduced to their true measures. You have heard after upon complaint of the oppression, they and others used in their visitations by their excessive numbers of attendants, in one of the councils of Lateran the number of their attendants was limited, and by canons of our own several restrictions have been made against the exorbitances of visitors. By one canon in the time of Archbishop Langton, they are commanded that in their visitations their at- tendants shall not exceed the number limited in the general council of Lateran (whereby an archbishop in his visitation is allowed forty or fifty men and horses, a bishop twenty or thirty, archdeacons five or seven, an archpriest two): and further restrained the visitors, that they should invite nobody to their visitation enter- tainments. But this did not do the work intended in easing the clergy; therefore after in the time of Stratford arch- bishop, by the canon before remembered it is farther provided, that if any " plures visitare voliierit ecclesias una die, procuratione unica in victual! bus vel pecunia, ad quam omnes et singulas sic die unico visitatas pro- portionabiliter facial coniribuere; prout tradunt canones, sit contentus. Et si nocte praecedente visitationem in quavis ecclesia faciendam ad sumptus rectoris seu vicarii visitandi, seu die visitationis in prandio steterit, cum eisdem veram astiinationem sumptuum hujusmodi in procuratione, si earn in pecunia visitans licite duxerit exigendam, computare, seu allocare, vel pro ea in toto studeat compensare. Ita quod nee ultra sumptus hujus- CHAP. XV.] THE PARSON'S COUNSELLOR. 377 modi solidam procurationem in pecunia, nee amplius quam deductis eisdem sumptibus de procuratione in pecunia exsolvenda supererit, praesumat recipere vel exigerequovismodo. Si quis autem aliter fecerit, donee indebite recepta restituerit, ab ingressu ecclesiaj noverit se suspensum." And by the before-mentioned decree of Othobon it Naturalis dis- is ordered, that bishops and other inferior officers in P"*"'°"'*- their visitations, " in superflua comitiva seu evictionum numero, vel ahas in expensis gravare subditos non prae- sumant uhra quantitatem et numeruni determinatum in constitutione Innocentii papae quarti, ne," &c. But Pope Benedict XII. good man, made an edict Vas electionis or constitution decretal, whereby he settled what every "bi supra. 1 o I 1 1 1 c ■ Fxiravag 1. 5. clergyman, &c. should pay by way ot commutation de censibus. in lieu of their procurations, and this was about the year 1337. But the good pope left in the election of the visited, whether they would pay their procurations in money or victuals ; but it was long after, as should seem, r 206 ] belbie this decree was generally received in England ; (which makes me believe the archdeacons were more moderate here than elsewhere). For when Linwood published his Provincial Canons, which was about the year 1423, it was not generally received in England; which was almost an hundred years after. But the certain time that procurations here in England were turned into rent, 1 cannot find out: but the effect of ihis innovation was, that when procurations were re- duced to an annual rent, the visitations were degene- rated into an audit of receipts, and called a visitation, where the parson draws up a thing called a presentment containing (omnia bene), whicli by the churchwardens is delivered to the visitor or his deputy, and procurations paid, and the visitation is ended; when for the most part nothing is well, or as it should be: the churclies kept like swine-sties (I beg pardon for the comparison, 1 wish it were not too true) the floors broken up, the windows broken down, the church and buildings belong 378 THE PARSON'S COUNSELLOR, [part ii. [ 297 J Causa 10. q. 1 Relata est. ing to the parsonage and vicarage houses dilapidated, the parson non-resident, pews in the church buih so high and disorderly, that the behaviour of the people therein cannot be observed, books and ornaments of the church wanting or embezzled; and it is not likely the parson and churchwardens should present these things, when themselves are commonly most in fault; and besides the churches, the churchyards how are they used, their fences neglected, swine rooting in them, muck-heaps thrown in them, and profane gaming and other debaucheries used in them, shame to see or hear of? There was complaint in the council of Toledo, " Quod quidam episcopi negligebant suas parochias visitare singulis annis ad praedicandum et ad confirmandos pueros, procurationes tamen exigebani, ac si ecclesias visitarent: quod ex avaritia et negligentia procedat." There it was decreed in that council, " ut hoc de czetero non faciant episcopi, sed solicite et diligenter greges visitent, cupiditatem vitantes, et negligentiam dimit- tentes." Certainly if there was cause of such complaint in those days, there is much more now. I do not speak this, as though it were now a duty incumbent upon the reverend bishops to visit in person ecclesiatim; their age and great employments, and the canon gives leave to do it by their substitutes the arch- deacons : but if their lordships would be pleased to they are" to visit enjoin their archdeacons to visit every third year eccle- every year. Can. giatim, when their lordships hold their triennial visita- tions, and give their lordships a personal account how they found all things, it would work a great reformation in the miscarriages before mentioned ; and the arch- deacons would certainly be ready to obey such a com- mand, " Ne magis videantur lucris pecuniariis inhiare, quam ecclesiarum velle conservare statum, et salutem animarum quaerere:" and then it were reason they should have their procurations that year also. By tlie canons of King James Othobon, cap Naturalis dis- positionis. CHAP. XV.] THE PARSON'S COUNSELLOR. 379 The same worthy author that has brought me into [298 ] this discourse, tells us of another charge bj' the name Hitt. of ihhes, of Pentecostals or Whitsunday farthings; these are but 2i9,22'2,&224. H charge upon some particular churches, where by custom they have been paid, and seem to be of the nature of offerings : but I have never met with any thing more of them, than what I have received from that learned author. Lastly, 1 will conclude with an accidental, but a 4 Condi. Tolet, grateful charge, which is, that if the founder or bene- ^- ^^• factor to a church, or their posterity, becomes neces- sitous, they are from the same church to receive relief. " Si enim omnibus aliis (says the canon) necessitatem sustinentibus pro solo religionis intuitu in usum res ecclesia3 largiuntur, quanto magis consulendum est, quibus retributio debeturr" All these charges and more the secular clergy un- dergo, which take away a considerable part of their revenues. 380 THE PARSON'S COUNSELLOR, [part ii. [ 299 ] CHAPTER XVL JIoio far prescription will prevail in the maimer of tithing, and in ichat cases the parson, vicar, S^c. shall be hound by a modus decimandi. The force of a modus deci- mandi in tithing. Linwood, ca. Quoniam piop- ter verbo re- demptioneni. Co. Select Cases, 46. D^er, 79. p. 49. Common law and canon differ concerning cus- toms, &c. Tho. Aq. Sum. 2. Sae. p. 87. art. 1. 2 Inst. 652. [ 300 ] St. '25 H. 8. Cap. 19. Fine. 1 Inst. 344. a. The diflerence between custom and prescrip- tion. The canonists, and those that are of opinion that tithes are due jure divino, decry all customs and pre- scriptions that either diminish the tenth part, or acquit the whole; for in truth, no custom or prescription can be good which is positively against the law of God. And that is the reason why it is frequently said in our law books, that the ecclesiastical courts will not allow a modus decimandi. But the common lawyers allow tithes to be due jure divino secundum quid, that is, quoad sustentationem cleri, but not quoad decimam aut aliquam aliam certam partem ; and tlierefore they allow of a manner of tithing which diminisheth the quantum, or a custom of nut tithing for this or that particular thing, so there be a sufficient maintenance for the clergy besides: and of the same o[)inion are some of the most eminent school- men. And in this, as in all other things where the common law, and canon, or ecclesiastical laws differ, the common law is to be preferred ; fur no canons are of force in England, which are contrary or repugnant to the laws, statutes, and customs of this realm, or to the damage or hurt of the king's prerogative royal; but all other canons provincial still remain in force, and are confirmed by a statute made in the 25th year of H. 8. which statute is declaratory of the common law. Co. 2 Inst. 658. The difference between custom and prescription I have showed before in the thirteenth chapter. CHAP. XVI.] THE PARSON'S COUNSELLOR. 381 But before I proceed upon this subject, I must beg Tliecommonlaw 1 ,.1 1 ^1 • • ■ 1- vindicated. leave or the reader to say something more m vmdica- tion of the common law, wliich in this point I conceive does not differ materially from the ecclesiastical and civil law; for if 1 do not very much mistake the ca- Linwood, c. nonists and civilians, thev do at this day allow of real Q""'"«™ P^P- , . , . ter verb. Ke- compositions in discharge of tithes, that is, where the dempiionem. parson, patron, and ordinary do by deed agree to ac- cept of a certain sum of money yearly, or so much land or other profit in discharge of the tithes growing and ' arising upon such lands as they agree for. Now what is this but a modus decimandi? and a prescription to sE. 4. 13. b. maintain this modus, is no more than a supply to prove ^c- a real composition, which was made beyond all memory and lost; and it were against all justice and reason, that if a man should be plundered of, or lose his deeds, that he should thereby lose his estate. And it must neces- sarily be intended, that every modus decimandi that Seld. Hist. De- has continued time out of mind, must have a reasonable *^""r oni -i and legal commencement, and must be intended that it began b}' a real composition. A rent-charge cannot be created but by deed, and yet it may be claimed by prescription, supposing a deed preceded, the like law is of all commons, &.c. Sir Thomas Ridley, a learned civilian, in his view of p. isi. the civil and ecclesiastical laws, inveighs against pro- hibitions, and the common law in case de modo deci- mandi ; and endeavours to insinuate to the reader, that the spiritual courts allow prescriptions de modo deci- mandi, and that the common lawyers do the spiritual Linwood, cap. courts great wrong to affirm the contrary. But he Q^o"'^'" prop- yl o .7 >• •■^ ter verbo re- himself in the next precedent section tells the reader, dcmptioncm. that a prescription to pay less than a full tenth part, is p"j|JJcTipTio "^'^ both against the canon law, and against the law of God juvat laico* itself. Now in every prescription de modo decimandi, prstcribendum it is to be intended the rate tithe was the full value of ^cl retinendum. the tithe at the time of the original composition; for audivimu"s'verb' it cannot be presumed that the bishop, patron, and consuetudine lo- forum quod laici 382 THE PARSON'S COUNSELLOR, [part ir. miiius solvant ordinary, would make a composition to the prejudice non poieTt""™-' '^^^ the church ; and if the rate lithe do not now reach suetuiiine iiitio- the value, it is to be intended that either the tithes are duci, quia esset • i i .1 .. • 1 c i contra jus divi- Hiiprovecl, or else that money is now become or less n'ji">- vahje, which makes the present inequahty. Co. 13. 132. pyt ti^g case then, that in the time of H. 1. (for the purpose) tlie lord of the manor of Dale made a real [ 302 ] composition with the parson of D. that he and his heirs for ever, then after would |:»ay to the parson and his successors, five pounds yearly, for the tithes of his de- mesnes; and this composition was confirmed by the patron and bishop as it ought, and five pounds was the full value of the tithes at that time. I think it will not be denied me but this was a good real composition, and that if afterwards the tithes had become of less yearly value, the lord of the manor had been bound by the composition to pay the five pounds per annum. Then suppose on the oiher hand, that the lord of the manor after this composition being thereby encouraged, made great improvement of his demesnes, by which the tithes are become of much greater yearly value, or that money by the discovery of the West Indies (as the -truth is) be become of less value : is there not then the same reason to bind the parson as to bind the lord in the other case.'' which being granted, as in all justice and reason it must, and the lord having no other evi- dence to make good his bargain but his composition, and that in the late wars was plundered, or his house by accident burnt, mislaid, or embezzled; shall he therefore lose his composition which he must now be forced to claim by prescription (his composition being lost) because the tithes are of greater yearlj'^ value than five pounds, as the civilians would have him, or shall he be admitted to maintain his right by the common [ 303 ] I'l.w, I appeal to the judicious and indifferent reader which is more just.'' ]\ow the judges of the common law, well knowing what the judges of the ecclesiastical courts will do in this case, and likewise that at this day CHAP. XVI.] THE PARSON'S COUNSELLOR. 383 there is no rate tithe can come near the true value of the tithe wheat about the time these compositions were made, not being perhaps above twelve pence or two shillings the quarter, and now tor the most part twenty times as much (not because wheat is of greater value than it was, but because money is of less) they do in this case frequently grant prohibitions to try whether there be such a custom or no; and if they find there is no such custom, they send the cause back by consultation to the ecclesiastical court, to be there determined ; but if they find there be such a custom, they will not trust the ecclesiastical judge any more with it, but leave the party to take his remedy for the modus in the eccle- siastical court. And for the very same reason prohi- bitions are granted upon real compositions. And by the ecclesiastical law tithes are due of minerals, turfs, fishing in the sea, &.c. which the common law denies, and therefore if suits be in the ecclesiastical courts for any of these things which are due by the spiritual, but not by the common law, the judges of the common law do grant prohibitions to stay their proceedings. And St. German in the Doctor and Student puts this Lib. 2. cap. 55. case, that if it were ordained for a law, that all pay- ments of tithes from thenceforth should cease, and that [ 304 ] every curate should have a certain portion of land assigned to him, or a rent or annuity which should be sufficient for his maintenance and those that served under him, or that every householder should give a certain sum to that use, that this were a good law, and grounded his opinion upon this saying of Doctor Gerson, a great doctor in divinity, "soluiio dccimarutn sacerdotibus est de jure divino quatenus inde sustente- tur; sed quoad tarn banc vel illam assignare, aut alios in alios redditus commutare positivi juris exislet." And this commuting tithes into annual salaries is Selden de De- frequently practised in the protestant churches beyond cimis, kh, i77, T , ^ ■ r 1 188, 194. and sea, as 1 nave been mtormcd. Prefat. 21. 384 THE PARSON'S COUNSELLOR, [part ir. Prescriptions And these prescriptions de modo decimandi are not are confirmed 1 it i i .1 • ^ 1 /• 1 • 1 by parliament. "v ii'lowed by the ancient common Jaws or this leahn, but confirmed by act of parliament. St. 2 E. 6. c. 13. For by the statute of 2 E. 6. it is enacted, " that no person shall he sued or otherwise compelled to yield, give, or pay any manner of tithes, for any manors, lands, tenements. Sic. which by the laws and statutes of this realm, or by any privilege or prescription are not chargeable with the payment of any such tithes, or that be dis;,-haiged by any composition real." And liaving said thus much in vindication of the common law, I shall proceed to shew wliat prescrip- tions and customs, de modo decimandi vel de non de- cimando, are good and allowed at common law. [ 305 ] First, no layman can prescribe in non decimando, Jle^scrr/irnon ^'^^^ '^' ^^ ^^ discharged absolutely of the payment of decimando. tithcs, and to pa^' nothing in lieu thereof, unless he St-ld. Hi>t. de- i • i • ... ... i • ^- i cim 409. begin Ills prescription in a religious or ecclesiastical Kolis, 1. 653. person, and derive a title to it by act of parliament. Who may pre- ^^^ ^^^ spiritual and religious persons, as bishops, scribe in non abbots, priois, dcans, prebends, parsons, vicars, &c. may decimando, -i • i • i i i • <• Winch. 65. prescribe in non decimando, and their larmers may Browni. 1. 31. make use of such prescriptions to free themselves from Co. 2. Evesnue , r ■ \ Winchester's the payment of tithes. £*^f- And hence it is, that the parson or vicar of one Rolls, 1. 653. . , , , ' ,.,•,. 1 ■ • , H. 3. 5. parish, that hath part or his glebe lying in another Rolls, 1.653. parish, may prescribe in non decimando for it, that is, as hath been said, to be free from the payment of any manner of tithe for it. Churchwardens But churchwardens who have land belonging to their ""*• churches cannot prescribe in non decimando, because they are neither rehgious nor spiritual persons. A parish or particular town cannot prescribe in non decimando. March. Rep. 26. Rolls, 1. 653. Ij_ i^ath been held that a bishop may prescribe that he Aclergyman and his tenants for life, years, and will, and his copy- may prescribe holders have been freed from the payment of tithes; for himself and ^ •' tenants. CHAP. XVI.] THE PARSON'S COUNSELLOR. 385 the reason alleged is, because it might commence b}' a real composition for the whole manor. And in all Rolls, i. 653. . . . . . H. 4. cases where a spiritual person prescribes m non deci- c. 2. 45.a. mando his tenants and farmers shall take the benetit thereof. But if any of the abbies, priors, &c. that came to the [ 306 ] Si" '•'7 H 8 crown by the statute of 27 H. 8. were discharged of (..28. the payment of tithes by prescription de non decimando, R""*- ^- 65^- yet the patentees of these lands shall not have the be- Hob. 309. nefit of such prescriptions, but shall pay tithes. ]N either can the king's patentee be freed from the Rolls, 1.635. payment of tithes of those lands which the king, whilst patentee del he had them in his own hand, prescribed to be freed Roy. from the payment of tithes, because it is a personal Cro.'car. 94. ' discharge in the kins:, for the question arising- upon dubitatur. 1 J J- rr 11 • 1.1 1 1 Brownl. 1.31. lands disattorested, there might be several reasons why contra. he paid no tithes ; first, because the grounds were de- pastured with beasts ferai naturae for which no tithes were due, or for that the king was not bound by the Cro. Car. 94. decretal epistle of Pope Innocent the Thud, who set- ideoqucer'e. tied the parochial riijht of tithes, or by reason the kin^ vid. Seidende , . . . ^ . , • 1 • 1 • 1 *^ Decimis. being a mixed person, might prescribe in non decimando. RqH^ 2. 655. But if the king prescribe in non decimando for lands, Hardres, 315. and grants them over, the presentee shall not by such prescription be discharged, nor shall the king be dis- charged if the same lands come to him again (101). (101) This privilege, although, generally speaking, per- sonal in the king, extends to his lessee for years or at will, for the possession of such tenant is in point of law the pos- session of the landlord ; and therefore such lessee of the crown may also be discharged from tithes by a prescription de non decimando in the king and his farmers. If the law were different this royal privilege would in a great measure be nugatory, since the king cannot cultivate his lands him- self; but it extends to such lessee for years or at will only. Toller on Tithes, 168. 9. c c 386 THE PARSON'S COUNSELLOR, [part ii. But the king's patentees of those abbey lands that came to the crown by the statute of 3 1 H. 8. may take advantage of a prescription de non decimando in the abbot, prior, or other religious person by the force of that statute, and the enjoyment of the lands since the dissolution freed from the payment of tithes during [ 307 ] memory, is a good proof a posteriore, that the abbots, priors, &c. held the same discharged from the payment of tithes. A country may The inhabitants of a county, hundred, or country, prescribe in noa j^g j_|-jg ^yilds of Kent and Sussex, may prescribe not to decimando. i • i i • Lib. Intr. tit, pay tithes or wood, milk, or any other particular thing, Prohibit. gQ ti^ere be a competent livelihood for the clere-y be- Co. 2. 44. b. _ ■• "•' Doct. and Stud. sideS. 1. 2. c. 55. f. 166, 167. b. 174" b. Roll. 1. 653. H. 10, 11, 12, 13. Hundred may prescribe in non decim. for it is the custom of the county which is the best law that ever was. M.irch Rep. 25. Who may pre- But every layman may prescribe de modo decimandi, scribe de modo ^^^j. jg^ ^.^g^j. g^^.^ ^ man being lord of such a manor, Co. 2. 44. a. b. and all those whose estate he hath in the said manor, S'foSo."^^^* have from the time whereof the memory of man is not '738. 784. . y to the contrary, had and enjoyed to his and their own uses all the tithes arising, &c. within the said manor, paying so much yearly to the parson of D. Cro. El. 784. And a lord of a manor may prescribe for himself, Noy, 132. and his copyholders, for they are part of the demesnes to the manor; or the copyholder may prescribe in the name of his lord. Hob. 40, 41. If a modus decimandi be to pay two things, as two A modus to pay gyiiingrg for a park, and a shoulder of every buck killed two things, and o i n i i t i -n i one fails, in the park, and all the deer die or are killed up, yet notwithstanding the prescription holds good for the two shillings. jj^^ ^3 But every prescription or modus must have a con- Prescriptions tinuance, for it cannot be good at one time, and asleep must not sleep. ^^ another, neither can a wilful denial destroy a modus [ 308 ] decimandi : and it is taken for a rule in Dr. Leyfield CHAP. XVI.] THE PARSON'S COUNSELLOR. 387 and Tisdale's case, that where no tithes are reofularlv Hob. ii. AT H f and legally due, as for a house, &c. there can be no houses ""^ modus decimandi alleged. And yet it hath been held, that a tithe by prescrip- Co. 11.162. tion may be paid for a house, because it might be due n^^^j.^ ' for the land before the house was built. Ideo qusere. Rolls, 1. uo. A modus to pay tithes without the view of the jJqi," jq^^ parson is not G;ood, because it conduces to fraud, and is Rolls, 1. 65i.d. now agamst an act or parliament. ^,-0 jri ^^g So a modus that because you have paid your tithe Co. Select Cases, of your cows, you have been freed of tiie tithes of oxen. More, 454. steers, heifers, &c. is not good ; that is, to pay your tithes in kind of one thing, thereby to free another tithe. But where tithe is only due by custom, as for fish Noy, los. taken in the sea, there less than a tenth part may be good. And it hath been held a void prescription to pay a 5Co. 117. a. load of hay yearly in discharge of all his tithe hay, that Cumberlaiid's is, to pay a part in discharcre of the whole. case, perRol. P I 'i Tar "R "R So for a parishioner to prescribe that he, &c. has what prescrip-' time out of mind repaired the church, and by reason tions de mode , fill Ti ipi r ■ t decimandi are thereor hath been discharged or tlie pa3-ment or tithes, good. is no good prescription, for the parson not being bound ^ ^'^°' '^^• to repair the church has no recompense: but if it had Rolls, 1. g49. 1. been, that he had repaired the chancel, and in consi- " ' " deration thereof had been freed of the payment of tithes, that had been a good modus, ratio patet (lOG). (102) To make a good and sufficient modus the following rules must be observed: first. It must be certain and inva- riable, for payment of different suras will prove it to be no modus, that is, no original real composition ; because that must have been one and the same, from its first original to the present time. Secondly, The thing given in lieu of tithes must be beneficial to the parson, and not for the emolument of third persons only : thus a modus to repair the church in lieu of tithes is not good, because that is an advantage to c c 2 388 THE PARSON'S COUNSELLOR, [part ii. [ 309 ] It hath been held a good prescription, that the Roll's TeX'' panshioner hath time out of mind paid the tithe wool c. 1.649. d, 7. of all the sheep he has shorn, though never so lately bou2;ht in, and in consideration thereof hath been freed of the payment of the tithe of those he had sold before sheer-day. Rolls, 1.648. It hath been held a good prescription, to have paid <=•"*• the tenth fleece or pound of wool, so" there were any allowance for the odd fleeces or odd weight. Rolls, 1.649. It hath been adjudged a good modus that in con- T-» 1 • C"""- E'- ^^'^' ports a case to be adjudged H. 18 Jac. ±5. K. that it was Hutton, 57. no good modus, and that Henden vouched one Bank's 10 Jac. 1. 641, 1 1-11 T 1 Ti -r» • Modus to pay a case to be adjudged accordingly. Ideo quaere. But it rate to the vicar seems a srood modus, for this beino; orii>;inally a modus lo'" t'li'^s due to '^ . . '^ ^ . -^ the parson. between the parson and parishioner, the vicar might be endowed with the modus; but this must be intended also where the endowment is time out of mind, and not to be produced, or where the vicar hath it specially in his en- dowment. A payment to the parson by custom may be oood Yelverton, 86. . , ■ y-,^^. contra Bulstr. against the vicar (105). 3 020. (105) By another authority, however, it seems that although a parishioner ought to pay so much to the rector, it is no excuse for tithes due to the vicar. Cro. El. 71. 276- 7 Com. Dig. Dismes. A modus decimandi is not good where the thing alleged to be paid is not ancient, as a modus cannot be alleged for tithes of hops. Gee v. Pearch, Gwill. J557. Nor of turkies. Bunb. 307- But in Wood v. Harrison, Ambl. 563. a modus was laid for clover and objected to, the introduction of clover being of a modern date ; but the court said it was a species of grass, and would be covered by a modus of grass made into hay, and directed an issue accordingly. 394 THE PARSON'S COUNSELLOR, [part ii. Leonard, 1. 94. ^ut to pay a rate to the parish clerk is no good dis- Cro. El. 71. charsre of tithes against the parson or vicar, unless the Bulstr. 1. 220. * , , , ° r i i • i i i Wintelv. Child, parson DC Dound by custom to nnd the parisli clerk, nor M. i4Jac. B.R. is a modus to the parson a good discharge against the vicar. Secus if there he a recompense. Cro. El. 136. And so having shewed what prescriptions de modo decimandi, and de non decimando, are good and allowa- ble at the common law, in the next place I shall shew how a modus decimandi or prescription may be de- stroyed or lost. I CHAP.xvn.] THE PARSON'S COUNSELLOR. 395 CHAPTER XVII. [ 316 ] How a Modus Decimmidi or Prescription may be lost or destroyed. If a man have a modus for a mill, which is removed I^o"s, 1.652. . . f. I 2. of necessity to a new place, because the water invito what matter has changed its course, here though the mill be removed, ^^'" destroy a , , . modus. the modus remains. But if the owner of such a mill shall of his own accord, and without any cause of necessity, remove his mill to a new place, in this case he shall loose his modus. If a man have a modus decimandi for two messuajjes Rolls, 1. 653. ^' f 2 and two mills to pay twenty shillings per annum, and * * he erects a new mill in one of the messuages, the modus shall not extend to free the new mill. There have been opinions that unity of possession, Stepney v. . . . . Warren. that is, to have fee-simple in the rectory, and likewise p, 41 ej. b. R. in the land to which the modus is annexed, should de- stroy a prescription or modus decimandi (106). (106) But it is now decided that unity of possession does not destroy a modus; thus in a case in which a prescription was alleged, that the queen, and all those whose estate she hath had, used to pay to the rector of Kingswood two shillings and four-pence yearly, in satisfaction of all the tithes of cer- tain lands in Kingswood ; and it appeared in evidence, that the queen had the estate of the abbot of Kingswood, who was owner of the land, and rector in fee in right of his abbey, whence it was inferred that the prescription was void, inas- much as the abbot could not pay himself, nor could the queen, who has now the estate of the abbot ; but that the prescription ought to have been stated,, that when the queen demised the land, the occupier had used to pay the modus, 396 THE PARSON'S COUNSELLOR, [part ii. Sir John Hollis' ^^"^ '^ ^ ™^" '^^'^^ ^"""^ Water corn-tnills, for which Case, T, 9 Jac. he hath time out of mind paid a modus of four shillings per annum, and pulls down one of them, yet the modus remains, and he shall still pay the four shillings (107). B. R. the court were clearly of opinion, that unity of possession is not a perpetual discharge of tithes, nor of the recompense in lieu of them; and consequently, that the retainer might be regarded in the light of a payment to himself. Chambers v. Hanbury. Gwill. 208. Moore, 52/. (107) Where land is converted to other uses, so where the prescription is for hay and grass specially, in so many acres of land ; if the land is converted into a hop-garden or tillage, the prescription is gone. 3 Burn's Eccl. Law, 454. But a modus shall not be destroyed by a payment of tithes in specie for twenty years. 2 Inst. 653. If parishioners, without consent of parson, divide and in- close a common which was covered by a modus, the modus is destroyed; but if the parson is a party to an act of parlia- ment passed, by which it is agreed that all shall enjoy their rights of severalty as they did their rights of common before, it is not destroyed. Stockwell v. Terry, Gwill. 823. 1 Ves. 115. CHAP. XVIII.] THE PARSON'S COUNSELLOR. 397 CHAPTER XVIIL [ 317 ] By zchat Conveyances, and hy what Names Tithes may be granted^ conveyed, demised, &(c. and what Demises Parsons and Vicars may make of their Glebe and Tithes. Regularly tithes at this day cannot be granted or Stiles, 261. demised but by deed in writing under hand and seal, I^y^^"^*^^"- ^ » ^ _ " veyances tithes or by matter of" a higher nature, as fines, recoveries, &,c. will pass. But in such cases, as they are become lay-fee they may n^l'Xnd'^ ^' be devised by will in writing as lands may; but they T. 36 El. 10. cannot be granted by copy of a court-roll, because they q^^' ^^siT"' cannot be parcel of a manor. But tithes cannot be conveyed or demised hy any Brettymanv. parol agreement, unless it be to the owner of the land Woodward. for one 3'ear by way of retainer: *and some opinions eI. ro. 17. b. have been, that it is arood for more years. Ideo quaere ^/ ^' „ . ° "^ ^ Noy, 89. (1(J8;. Cm. Jac. 137. Hetly, 3. Hnglies, 233. Bellamy v. Bapthorp. M. 2 Car. ro. 1 79. B. R. Co. 4. 35. a. Latch. 175. Noy, 81. 121. *Yelvertoii, 94, 95. Brown, 2. 11. Ideo quaere. Tithes impropriate are at this day, by the several statutes of dissolution, become lay-fee, and will pass by the name of hereditaments ; but by the grant of a por- tion of tithes, the tithes belonging to a rectory will r 313 i not pass. (108) If a tithe owner agree with another to suffer him to take tlie tithes of corn and hay for six years, and he suffer him accordingly, though such an agreement be not a good lease, nor does any interest pass by the same in the tithes, yet it is good ground to/ound an action to recover the pay- ment stipulated for in return. 2 Show. 30/. Eaton v. Sherwin. * cap. 7. 398 THE PARSON'S COUNSELLOR, [part ii. There have been some opinions that a man may without deed sell his tithes to the landholder for more years than one, but not lease them without deed (109). Tithes impropriate may be passed from one to another by deeds of bargain and sale, enrolled according to the Stat. 32 H. 8. Statute of 27 H. 8. they may be transferred in use upon good consideration by deeds of covenant to stand seised, or by fines or common recoveries, and may be sued for by writs of assize, of novel disseisin, writs of entrj^, writs of right, or other real actions, or by ejectione firmae. But upon a lease for lives of tithes, no rent can be reserved to be recovered at or by the common law, for no action of debt will lie, or distress can be taken, et ubi non est remedium, ibi non est jus. But upon a demise of tithes for years, a rent may be reserved, because an action of debt will lie upon such lease upon the contract (110). (109) ^y the statute of frauds, 29 Car. 2. c. 3. all greater interests in lands and hereditaments than for a term of three years must be created by writing. (110) By the statute 5 G. 3. c, 17. the same power of bringing actions for debt, which by a former statute, 8 Anne c. 12. s. 4. had been granted to lessors against tenants for life as to proper rents, is extended to sole and aggregate ecclesiastical corporations, heads and fellows of colleges, and others having power of leasing, to recover rent reserved on tithes and incorporeal hereditaments, although leased for life or lives. It may not be improper here to take a review of the laws affecting the leases of ecclesiastical corporations, sole and aggregate. " From laying all which together," says Black- stone, " we may collect that all colleges, cathedrals, and other ecclesiastical or eleemosynary corporations, and all parsons and vicars are restrained from making any leases of their lands, unless under the following regulations: First, They must not exceed twenty-one years, or three lives from the making. Secondly, The accustomed rent, or more, must be yearly reserved thereon. Thirdly, Where there is an old CHAP, xviii.] THE PARSON'S COUNSELLOR. 399 lease in being no concurrent lease shall be made, unless where the old one will expire within three years. Fourthly, No lease (by the equity of the statute) shall be made without impeachment of waste. Fifthly^ All bonds and covenants tending to frustrate the provisions of the statutes of 13 and 18 Eliz. shall be void. " Concerning these restrictive statutes there are two ob- servations to be made. First, that they do not by any con- struction enable any persons to make such leases as they were by common law disabled to make. Therefore a parson or vicar, though he is restrained from making longer leases than for twenty-one years or three lives, even with the con- sent of patron and ordinary, yet is not enabled to make any lease at all so as to bind his successor without obtaining such consent. Secondly, That though leases contrary to these acts are declared void, yet they are good against the lessor during his life, if he be a sole corporation; and are also good against an aggregate corporation so long as the head of it lives, who is presumed to be the most concerned in in- terest. For the act was intended for the benefit of the suc- cessor only; and no man shall make an advantage of his own wrong." 2 Bla. Com, 320, 1. 400 THE PARSON'S COUNSELLOR, [part ii. [ 319 ] CHAPTER XIX. JVhat barren Lands are free from the payment of Tithes within the Statute of 2 E. 6. cap. 13. 2Ed. 6. ca. 13. In the statute of 2 E. 6. there is a proviso to this effect : " That all such barren heath <5r waste ground, other than such as be discharged from tlie paN-nient of tithes by act of parliament, which before this time have lain barren and paid no tithes by reason of the same barren- ness, and now be, or hereafter shall be improved and converted into arable ground or meadow, shall from henceforth after the end and term of seven years next after such improvement fully ended and determined, pay tithe of corn and hay growing upon the same, any thing in this act to the contrary in any wise notwith- standing." This clause was added for the encouragement of tillage and improvement of lands by water or otherwise; and therefore thougli here be no w^ords of discharge of the payment of tithes, during the first seven years, yet by a reasonable intendment, the same shall be discharged from the payment of corn and hay, for the first seven years after the improvement ; and that is proved by the subsequent clause, whereby it is provided, 2 Inst. 656. Djer, no. b. P. 3. [ 320 ] Plowd. 204. a. S96. b. " That if any such barren waste or heath ground hath before this time been charged with the payment of any tithes, and that the same be hereafter improved and converted into arable or meadow, that then the owner or owners thereof shall during the seven years next fol- lowing from and after the same improvement, pay such CHAP. XIX.] THE PARSON'S COUNSELLOR. 401 kind of tithes as was paid for the same before the said improvement, any thing in this act," 8cc. So that it appears plainly by this proviso, that it was the intent of the makers of this law only to free these improved lands from the payment of such tithes as were produced by the improvement, which must be hay or corn and no other. Next, suppose a man have barren lands within this Jaw, wliich are free from the payment of tithes by pre- scription, real composition, &c. It should seem by the penning of the aforesaid proviso, that he should pay tithes for the same after the seven years, this proviso only providing for such lands as are freed by act of parliament. But that doubt seems cleared by the next precedent proviso in this very act, whereby it is provided, *' That no person shall be sued or otherwise compelled to yield, give, or pay any manner of tithes for any manors, lands, tenements, or hereditaments, which by the laws and statutes of this realm, or by any privilege or prescription, are not chargeable with the payment of any such tithes, or that be discharged by any compo- r 321 ] sition real." So that this proviso preserves all former legal dis- charges. But the great question upon this law is, what shall be said to be barren heath or waste ground within this law, and Sir Edward Coke defines barren lands in these words : "Terra sterilis est terra infoicunda nullum ferens 2 Inst 6 j5, f.56. fructum." But that definition will not hold in this case, for it does appear by the second proviso, that such barren lands are intended that are barren quoad agriculturam, that is, such barren heath or waste ground Dyer, iTO. p. 5. that of its own nature, without improvement by lime, 453 ^"^" ^'~'^' marl, manure, Sec. will not bring forth corn or hay. D D 402 THE PARSON'S COUNSELLOR, [part ii. 6 E. 6. per Bendloes. 2 Inst. 656. HilI.9jac.C.B. ex inotione Houghton. 2 Inst. 656. More, 909. [ 322 ] Co, 10. 86. b. Co. 6. 18. a. Blore, 433. 3 Balst. Ih5. 2 Inst. 656. But if the ground be not fit for tillage, j^t if it be not suapte natura barren, it is not within this law. As if a wood be stubbed and grubbed up, and made fit for the plough, and reduced to tillage, it shall pay tithes presently; for wood-ground is terra fertilis et foecunda. So if marsh, meadow, or other land, by neglecting to scour the trenches or sewers, or by sudden inundation be drowned ; or if by ill husbandry or negligence fertile land be overrun with gorse, whins, broom, fern, bushes, briers, Sec. yet they shall not have the benefit of this proviso, because, of their own natures, they are fertile and apt for tillage, and the parson, vicar, &c. shall not lose his tithe by the ill husbandry of the parishioner. If lands were barren heath or waste ground at the time of the making of this act, and were improved, and had or might have had the benefit of this law, and after return to their barrenness, the owner of such lands, shall not have the benefit of this law a second time upon a second improvement; but I take the law to be otherwise, if the lands had been improved before the time of the making this law, and were then become barren again, for there I take it, upon a new improve- ment the owner of such lands shall have the benefit of this law. Marsh lands new gained from the seas, and fen lands gained from the fresh waters by draining, banking, Sec. are not within the meaning of this law to be freed from the payment of tithes, during the first seven years after the gaining. But the determination of this point, which is or which is not barren land within this statute, commonly falls out to be determined by common jurors, which, notwithstanding the direction of the judge, are seldom so favourable to the church as they ought (HI). (ill) But courts of equity, on the facts appearing before them, have frequently decided whether lands were barren or not, in the sense of the statute, without the intervention of CHAP. XIX.] THE PARSON'S COUNSELLOR. 403 This proviso only charges the payment of corn and 27H. s. c. 20. hay after the seven years ; and the second proviso pro- confirmea*^by the vides only for the paj'ment of such like tithes as were statute of 2 £.6. formerly paid before the improvement, for the first seven vinci!!l^ ca^p." years after the improvement, and makes no provision Quia quid ma- for the payment of other tithes, save corn and hay, Erroris'damr^' after the seven years : so that it may seem to imply a "abiiis, discharge of all tithes, but corn and hay after the seven propter, cap. years: but to this I answer, that there being several Quoniam ut au- laws both statute and canon, made formerly for the due [ 323 ] payment of tithes, and no negative words in this act, it shall not abrogate those laws to the prejudice of the church by implication. a jury. Gwill. 823. Stockvvell v. Terry, 1336. Jones v. Le David. In Stockwell v. Terry, Gwill. 823. Lord Hardwicke thus expresses himself on this subject: " Land, if in its own nature it is fit for tillage, but by reason of wood, or other accidental circumstance, it was not turned into tillage before, upon the taking away of that accidental circumstance it shall pay tithes presently on being turned into tillage ; for the act does not consider the expense, but that you may by possibility be paid, as by the timber, underwood, Sec. But if afterwards thislandwillnot produce, unless dungedor chalked, the court has considered this as evidence of its being barren in its own nature, and not proper for corn, without additional improvement." And where defendants set up, to a bill for tithes, a claim of exemption under the 2d and 3d Edw. 6th. c. 13. and produced much evidence of the land in question requiring to be cleared and levelled, and that gave more than usual trouble in ploughing, and cost more than the customary expense in manuring it with lime, the court ordered an issue to try whether the lands, of which the tithes were demanded, " were of sucli a nature as (exclusive of the labour and expense of clearing tlie same from furze or whins, and preparing the same for ploughing), necessarily required extraordinary expense of kniing, and manuring, or labour, to bring them into a proper state of cultivation." Kingsmill v. Biliingsley, 3 Price, 4(j5. D d2 404 THE PARSON'S COUNSELLOR, [part it. CHAPTER XX. What a real Composition is, and in zchat Cases Lands shall be freed of the Payment of Tithes hy such Com- position real. Where tithes That which vve Call a real composition is, where the shall be dis- present inciunhent of any church, together with his charged by a • ijji i-.j real composition, patron and orduiary, do agree by deed under their hands and what It is. ^^^ seals, or by fine in the king's court, that such lands shall be freed and discharged of the payment of all manner of tithes for ever, paying some annual pay- ment, or doing some other thing to the ease, profit, or advantage of the parson or vicar. Sec. to whom the Co. 4. 44. a. tithes did belong. And these real compositions have 2 Inst. 655. gygj. been held and allowed here in England to be a DoctanH Stud. , ,. , ,. , r • u i r 1. 2. cap. 55. f. good discharge or the payment or tithes : and from "''• J. , these real compositions it is intended all prescriptions de modo decimandi first took their rise and beginning, though I doubt most at this day have grown up from the negligence and carelessness of the clergy themselves (112). (112) The difference between a modus decimandi and a composition real seems to be this^, that a modus must have existed beyond time of memory, and nothing but immemorial usage is required to prove it; whereas a composition real must have commenced within time of memory, and its com- mencement must be shown. Gwill. 1397- Sawbridge v. Benton, and 2 Gwill. 6i2. yet the actual deeds under which the composition took place need not be shown, ibid, but proof must be made that they once actually existed, 3 Bro. 217, CHAP. XX.] THE PARSON'S COUNSELLOR. 405 And such compositions may be made by the pa- Vide Linw. rishioner alone without the patron and ordinary, but it propter"verbo then binds only for the life of the incumbent, and will rederaptionem, be avoided by his resignation, deprivation, or being ^^""er. '* absent eighty days in a year from his cure, if he have cure of souls (113). But it seems some of the canonists and civilians are of opinion, that all compositions between the lay and clergy to be discharged w holly of payment of tithes, or to pay less in recompense than the full value, are invalid, but otherw^ise between clergymen; but by the common law, which must govern here, there is no such diifer- ence allowed, but all real compositions made as afore- said are good and valid. But note, that no composition made by parol or word Hob, 176. of mouth only, and not reduced into writing under hand and seal, is binding at all, unless it be upon record as by fine, &c. But I conceive at this day no real composition can be made to bind the successor of the parson or vicar that makes the same, for they are now restrained by the statute of 13 Eliz. to make any grants other than for 13EI. cap. lo. twenty-one years, or for three lives, with the other qualifications mentioned in the said act. So that it seems clear to me, that parsons and vicars [ 325 ] at this day, notwithstanding the confirmation of the patron and ordinary, cannot charge their benefices or any thing belonging to them, other than for twenty- one years or three lives as aforesaid, and that only by leases confirmed by patron and ordinary of things (113) By statute 43 G. 3. and subsequently by 5"] Geo. 3. c. 99. the statute 13 Eliz. c. 20. with all explanations, &c. made by several statutes in tlie 14th, 18th, and 43d years of her said majesty, by which it was enacted, that no lease made of any benefice, &c. shall endure any longer than when the lessor shall be resident without absence above fourscore days in any one year, is repealed. 406 More, 915. Linwood, c. Quoniam prop- ter verbo re- deniptionem. Greg. Decret. 1. 1.445. C. 2. Statuimus. THE PARSON'S COUNSELLOR, [part h. usually demised ; whereupon the accustoraed yearly rent or more is reserved. So that what has been said concerning real compo- sitions is only to be intended of sucii as were made be- fore that and other latter statutes; for I take it a real composition at this day will only bind the parson him- self, whilst he is a parson resident, and serving the cure, quod nota (114). And it hath been held, that if there be two proprietors or farmers of tithes, that an agreement with the one shall bind his companion. The canon law allows a composition with laymen for tithes received, but not for tithes to come. See a decretal of Alexander IH. whereby the pope confirms compositions betwixt clergymen. (114) Such a composition, made since the 13th Eliz. though confirmed b}' a decree of the court of chancery, is not binding upon the succeeding incumbent. 2 Woodd. 107. 4 CHAP. XXI.] THE PARSON'S COUNSELLOR. 407 CHAPTER XXL [ 326 ] What Monaster!/ La?ids are, or may be free from the Payment of Tithes. It is without dispute, that none of the abbey and Jones, 317. , , , 1 11 r 188. Stat. 27 H. pnory lands, that came to the crown by the statute 01 g. c. 28. WTiat 27 H. 8. or before, are freed or dischare^ed of the pay- monastery lands . shall be freed ment of tithes by the statute of 31 H. 8. cap. 8. or by from payment any other law or act of parliament. of tubes. But in the statute of 27 H. 8. there was a proviso, that notwithstanding that act the king might by his letters patent, under the great seal of England, continue any of the said monasteries, and that proviso is left out of all the modern prints, only Rastal in his abridging of that statute makes some mention of it. Now the reader must observe once for all, that all monasteries under two hundred pounds per annum were to have been dissolved by the statute of 27 H. 8. and are therefore usually called the smaller abbeys, and those of two hundred pounds a year and upwards were not dissolved till the 31st year of H. 8. and are commonly called the great abbeys. And upon these two statutes this case lately happened/;j»*""' ^^^^y^ in the exchequer chamber between Walklate, farmer o^f/'^^'y^" the rectory of Uttoxeter, in the county of Stafford, to the dean of Windsor, and Wilshaw, owner of the farm r 337 -i in that parish, that was parcel of the possessions of the abbey of Croxden in the same county, which w'as one of the small abbeys, and of the Cistertian order; which order was freed of the payment of tithes, as shall be showed hereafter, and this abbey was discovered by the defendant Wilshaw to be continued by letters patent under the great seal of England, and so not dissolved 408 THE PARSON'S COUNSELLOR, [part ir. 31H. 8. c. 13. till the statute of 31 H. 8. whereupon the defendant was dismissed, and the court clearly held the lands dis- charged of pa^'ment of tithes by the statute of 31 H. 8. I mention this case for the singularity, not for any nicety in the learning of it (115). 31 11. 8. c. s. By the statute of 3 1 H. 8. before mentioned, there is a clause to this effect : The clause of " That the king and his patentees, which then had, 31 II. 8. that ^jj. ^j^gj^ after should have any monasteries, abbathies, frees abbey . . -' _ ' _ . lands. priories, nunneries, colleges, hospitals, houses of friars, &c. or any manors, lands, Slc. which did belong to them, should have, hold, retain, keep and enjoy the said manors, &c. according to their estates and titles, discharged and acquitted of the payment of tithes, as freely and in as large and ample manner as the said abbots, &c. or any of them had, held, occupied, possessed, used, retained, or enjoyed the same, or any part thereof at the days of their dissolution." And the reader is to observe, that the abbots, &;c. at the time of their dissolution held their lands discharged four manner of legal and regular ways, which were allowed by the laws of this realm, to wit, r 328 ] ^* -^3' ^^^^ bulls of popes. 2. B}-^ real compositions Hob.297. 296. with the parson, &.c. patron, and ordinary. 3. By pre- scription. And 4. By order. But there is another sort of discharge, though not a legal one, has been allowed in this case to make a fifth sort of discharge, and that is perpetual unity, where the abbot has had the rectory of any church and lands in the same parish time out of mind, which have been held free from the payment of tithes by all the time of memory; and of these several discharges I will speak in order. And first, of discharges by the popes' bulls, it is to be understood, that when the pope usurped a power over (115) Cited in Tate v. Skelton, Gvvill. 1304. CHAP. XXI.] THE PARSON'S COUNSELLOR. 409 the clergy here in England, he did at his pleasure grant exemptions to this or that abbe}% or to whom else he pleased, to be freed from the payment of tithes, whicli w.is allowed as a good discharge against the parsons and vicars, who in many places siift'er by these bulls to this day, these bulls being turned into prescriptions, &.c. The second sort of discharges was by real coraposi- lieai composi- tions between the parson or vicar, and the abbots, priors, Sec. confirmed by patron and ordinary; of these we have spoken at large before in the twentieth chapter, and therefore shall not repeat it, but pass to the third sort of discharges. The third sort of discharges is by prescription, of which we have likewise spoken at large before in the sixteenth chapter, to which I shall refer the reader. I shall only observe to the reader again in this place, [ 329 ] that the abbots, priors, and other religious persons might prescribe generally to be free from the payment, or to be discharged of the payment of tithes without any re- compense to the parson, &,c. but a layman could not prescribe absolutely to be free from payment of tithes, but sub modo, that is, paying or doing something to or for the parson, vicar, &.c. in recompense and satisfaction of the tithes, as you may at large see in the chapter here before. And it is to be observed, that no abbot, prior, &c. could make any such prescription by the common law, that was not founded before the time of memory, that is before the first 3'ear of R. 1. which is the time of the limitation of all prcscrij^tions at the common law, which 2 Inst. 65«. reiccts the practice of the canon law, which, as should seem, allows the limitation of a prescription or custom to forty j'tais. But quere of this, for the 2 Inst, here cited refers to Coke on Lit. § I/O. where Littleton cites this opinion and another opinion after, wliich last, according to my Lord Coke's I'ref. to his 1 Inst. p. 3. a. is Littleton's own law. Yet Littleton makes a quere on it, and seems 410 THE PARSON'S COUNSELLOR, [part h. 7^" ' V Stat. 2 c. 4. to prefer the opinion here set down. See Tyrel's Bibl. Polii. 591, 59'2. It may reasonably be demanded, how this manner of discharge can be made out at this day, since there is now no person living that can prove how the abbots held and enjoyed their lands ? to which I answer, that [ 330 ] what was done before the dissolution of abbeys must .X^^.^V^ now be proved by what has been done since; for if '"^^^''^^y^monasterj^ lands have been held all the time of memory since the dissolution, freed from the payment of tithes, it shall be intended, that they were so held before; and therefore they have not paid or been questioned since. The fourth sort of discharge is by order, and this dis- charge also for the most part depends upon popes' bulls or grants, who at pleasure granted exemption to what orders they pleased. About the year''of our Lord 1150, the most religious orders then in being were discharged of the payment of tithes ; but about that time Pope Adrian IV. re- duced them to Cistertians, Hospitallers, and Templars; and about the year 1215, Pope Innocent III. added the Praemonstratenses. But the privileges granted to these orders extended only to the lands these orders held in their own manurance, and not to any which was held by their tenants or farmers (116). But about the beginning of the reign of H. 4. the Cistertians attempted to have enlarged their privilege to their tenants and farmers, which tending to the ruin of many poor parsons and vicars that had cure of souls, was complained of in a parliament held in the second year of H. 4. Whereupon it was enacted, that not only the Cistertians, but all other orders that put any Discharge by order. Causa 16. q. 1. decimas. 2 Inst. G52. Seld. Hist, de- cim. 120. Decrct.Gregorii ex parte tua de decimis. Seld. dedecim. 406. Dyer, 277, 27S. 4 Concil. Lat. Can. 56. Causa ]6.q. 1. c. 2. Decim. et ibi questi sunt. li. 4. (ll6) The bull of Innocent III. not having been received and allowed in England, did not exempt the order of Prae- monstratenses from paying- tithes, and therefore a title to hold lands free from tithes cannot be derived under this order. Townley v Tonilinson, Gwill. 1004. CHAP. XXI.] THE PARSON'S COUNSELLOR. 411 bulls in executlorA for the discharging any of their lands [ 33i ] from the payment of tithes in the hands of their tenants and farmers, shall incur a premunire, that is, forfeit all their goods and the profits of their lands during life, and be likewise imprisoned during the offender's life ; which gave such a check to that proceeding, that I do not find any thing of that nature after attempted. The Templars after, in the council of Vienna, which The Templars, was held in the year of our Lord 1311, and in the fourth ^ l"st. 43'2. year of E. 2. were condemned for heresy, and all their possessions by act of parliament made in the seventeenth ^tat. 17 E. 2. c. year of the same king, were transferred to the Hospitallers or knights of St. John of Jerusalem, who enjoyed them till the thirty-second year of the reign of King Henry 8. 32 H. 8. c. 24. at which time by act of parliament they were setth.d upon the crown- But where it is said in Kelway, that the Templars Kelway, n4. a. were condemned of heresy in the eighth year of E. il. and their lands given the same year to the Hospitaliersj, it is a great error; for it is clear, that the council of Vienna was held in the fourth year of that king, and chiefly called against the Templars; and it is as clear that their lands were not here in England settled upon the Hospitallers till the seventeenth year of the sam(' king. And though the lands of the lesser monasteries be where the iewer not within the benefit of the statute of 31 H. 8. to be abbess may be freed of the payment of tithes; yet they ought to enjoy all such privileges as are annexed to the land, and [ 332 ] therefore such lands, in whose hands soever they come, shall be freed of the payment of tithes, by real com- positions and prescriptions de modo decimandi, but not jones, 3, 312, by prcscri[)tions de non decimando, unity of possession, ^''■^• order or bulls of popes: but in all those cases the par- sons and vicars have the advantage by the dissolution of all those abbeys that were dissolved by the statute of 27 H. 8. For the parsons and vicars shall in such cases be restored to their tithes again, which in all justice 412 THE PARSON'S COUNSELLOR, [part ii. they ought in all other cases, if the pailiament had been pleased. The lesser monasteries, that is, which were under 200l. per annum, of the orders of Cistertians and Pree- monstratenses, were, as hath been said, dissolved by the statute of 27 H. 8. have lost the privilege of being dis- charged of the payment of tithes, unless they were con- tinued as the abbey of Croxden was; but those mona- steries of those orders that came to the crown by the statute 31 H. 8. retain the privilege of those orders in not paying tithes. But this is to be understood only Butitmnstbe lor such time as the owners hold them in their own owners 111 tee- nianurance; for if they let them out to tenants, they siiiiple or ice- ' _•' _ ' j tail, and not shall have no more privilege than the tenants of those teimnts lor iivca .^|g,.g ^f tj^g Cistcrtians and Praemonstratenses had, or years. ' Hardres, 174. wliich was none at all. Jones 2, 3, &c. But note, that if the king after the dissolution of the Hob 306. lesser monasteries (which had been of any of the orders that were discharged of the payment of tithes) had [ :j33 ] granted any of their lands to any of the greater mona- less'er* abbeys stcrics which wcrc notfdissolved till the statute of 3 1 H. 8. granted to the yet tliosc shal! not retain the privileges the abbots had iggerno rec . ^^ ^^ xw^lq of the former dissolution; the right im- mediately reverting by the dissolution to the parsons s.nd vicars to whom the tithes of right did belong, the rreater abbeys could not hold them legally discharged at the time of the second dissolution : so that there is a manifest difference between this and the case of Walk- late and Wilshaw before remembered, for in that case the monastery was continued, and not dissolved till the statute of :U H. 8. Lands purchased And it is to be observed, that no lands acquired by after the piivi- jmy of the monasteries of those orders which were so '^^TfreeT'^*^ freed from payment of tithes after the council of Lateran, Cone. later. 4. vvhich was in the year of our Lord 1215, and by conse- S^de^n's Hist, of quence none that were founded after that council, are Tithes, 121. discharged of the payment of tithes, either in their own or their tenants' hands, for by that council the privilege CHAP. XXI.] THE PARSON'S COUNSELLOR. 413 was limited to such lands as these orders had at the time of that council. And although any abbey lands, of the great abbeys Dver, 277. b. which were of the Cistertian and Pramonstratensian [^ "'^ , . . ^ Cro. Jac. 559. orders were in the hands of tenants for years at the time of the dissolution, yet the king and his patentees after the leases determined shall hold tliem discharged, whilst the patentees and owners hold them in their own hands, but the king's tenants shall hold them dis- [ 334 j charged because of the royal prerogative of his person, not being intended fit for husbandry. Having now said thus much of the four legal manner 5 Perpetual of discliarges before mentioned, I shall proceed to that Co. 24". b. &c. of perpetual unity, which cannot be said to be a legal Co. 11. 14. b. 1- , ' r I £• • 1 I ^ Dyer,349.p.l6. ciiscnarge or the payment or tithes: yet because the More, 52s. abbots, priors, Sec. at the time of the dissolution held Hob.3ii.:i06. the lands discharged of the payment of tithes, though oiiist. 6.55. not legally discharged of tithes, it hath been resolved ^^"''^' *^' '*"• , -J 1 111 .•• J J- Cro. Jac. 608, by many judgments and settled, that this is a good dis- charge within the meaninsr of the aforesaid clause of 31 H. 8. Now that which we call a perpetual unity, is, as hath been said, where an abbot, prior, 8cc. time D(^.f,nitioii. out of mind hath been seised of the lands out of which the tithes arise, and the rectory within which j)arish the lands lie. And it is to be observed that every perpetual unity, that shall discharge the lands from the payment of tithes, must have these four qualities : First, It must be justa, that is, by good and lawful title. Secondly, It must be perpetual, that is, the abbey Co. u.44. b. must be founded and endowed with the land and rectory Hob. 300. before the time of memory, which by the rules of the common law, as has been said, must be before the first year of R. 1. for if by any records, deeds, or other legal and good evidence it can be made appear, that either the land or rectory came to the abbey since the said r 33^, i first year of R. 1. the union is not perpetual; and yet 414 THE PARSON'S COUNSELLOR, [part ii. if the appropriation be ancient, as in the time of E. 4. or before, though the lands cannot be discharged upon the score of perpetual unity; yet they may by prescrip- tion, if in truth the lands were held discharged of the payment of tithe. Cro. Jac. 454. Thirdly, Such unity as shall discharge lands of the Co. 2. 48. a. payment of tithes within this law, must be aequalis, that is, the abbots, priors, 8<.c. must be seised in fee-simple, as well of the lands upon which, &c. as of the rectory. Lastly, Such unity must be libera, that is, free from the payment of any manner of tithes, for if their farmers at will, years, &c. have paid any manner of tithes to the abbots, priors, &,c. or their farmers of the rectories, the perpetual unity will not serve. i\nd therefore where such perpetual unity is pleaded in discharge of tithes, the adverse party may reply, that the tenants or farmers before the dissolution paid some sort of tithes, and so avoid the perpetual unity. Having first given the reader satisfaction that all the lands that came to the crown by the stat. of 27 H. 8. and before, can have no benefit of the discharge given by the statute of 31 H. 8. and having also showed how many ways lands may be discharged from payment of tithes that came to the crown by the said statute of [ 336 ] 31 H. 8., it rests now that I should say something of those lands that have since come to the crown by the statutes of 32 H. 8. cap. 24. 37 H. 8. cap. 4. and 1 E. 6. cap. l-i. Co 2. 47, a. It is a rule taken in the Archbishop of Canterbury's How otiur lands ^, jj^^^j. neither the letter nor the meaning of the staiiil Unit came ' ^ not to the crown Statute of 31 H. 8. extended to free or discharge any by 31 H. 8. laQtls from the payment of tithes, save those that came to the crown by that act; for as that book says, it is absurd that the branch of the statute of 31 Ii. 8. con- cerning tithes, should be extended to a future act, that the makers of the statute of 3 I H. 8. without the spirit of prophesy, could not have the prescience of. More, 9\3. ^f-jj j^s to thosc that Came to the crown by the statute Cro. Jac. .07. "^ Hill. ■2 Jac. CHAP, xxi] THE PARSON'S COUMSELLOR. 415 of 32 H. 8. c. 2 !•. it was adjudged in the case of Spurling and Quarles, that they aie not discharged of the pay- ment of tithes. And after, in the case between Urry and Bowyer, 8 Jacobi in the Common Pleas, this point was moved again, and the court was divided. But there is a hitter judgment that seems to oppose Jones, 192, &c. these former resolutions; it was between one Witton H^ngi'es '3.92. and Sir Richard Weston, that was afterwards lord Bridgm. 32, treasurer, Trin. 14 Car. 1. B. R. and the question was, whether those lands of the Hospitaliers that came to the crown by the statute of 32 H. 8. cap. 24. were discharged of the payment of tithes by that statute of 32 H. 8. or by the former statute of 31. and in that case Dodridge and Jones,justices,held that they were discharged within [ 337 ] the statute of 31 H. 8. and they did in effect deny the books before cited to be law; the Chief Justice Hide was of opinion, that they were not discharged by the statute of 31 H. 8. but by that of 32. So that by their three opinions, the defendant Sir Richard Weston had judgment; but VVhitlock wasof opinion, that those lands were not discharged of the payment of tithes by the one statute or the other: now, upon the wliole matter, I shall submit to the judicious reader's judgment, whether this latter resolution be of any weight to shake the former resolutions; since, in this case, though there were three for giving judgment for the defendant, yet to the point controverted upon the statute of 31 H. 8. there were two against two, and tliat they were not dis- charged by the statute of 32. there were tiiree against the Cl)ief Justice Hide. So that I conceive the law- remains according to the former resolutions, that there are no lands freed from the j)ayment of tithes by any statute, but those that come to tiie crown by the statute of 31 H. 8. tamen inde quaere (117). (117) But it seems now to be determined, by numerous cases, that the possessions of the ordcrofSt. John of Jerusalem, 416 THE PARSON'S COUNSELLOR, [part ii. Syderfin, 320. If ail ubbot, piior, &.C. that by order, prescription, 8cc. beld his land discharged of the payment of tithes, had granted away his h\nd to a college, &,c. the college should not hold them discharged. I must confess I have met with no judgments upon those lands which came to the crown by tlie statute of [ 338 ] 37 H. 8. but those being the same with those that came to the crown by the statute of 1 E. 6. c. 14. 1 conceive neither those that came to the crown by either of those latter statutes have any privilege at all ; and it is agreed in that ver}' case of Witton and Weston, that those Jones, 185. lands that came to the crown by 1 E. 6. could not have any benefit by the clause of discharge in the statute of 31 H. 8. So that I shall conclude, that there is no land can have any privilege at this day to be discharged of tithes that belonged to the abbots, priors, &,c. but such only as came to the crown by the statute of 31 H. 8. cap, 13. which came to the crown by statute 32 H. 8. c. 24. are exempt from tithes in the hands of the king and his grantees by force of the 21st section of the statute 31 H. 8. c. 13. Gelo, Eq. Rep. 225. Gwill. 663. Urrey v. Bovvjer, Gwill. 250. The Serjeant's case, Gwill. 281. Fosset v. Franklin, Sir Thomas Raymond, 225. Gwill. 15/9. Whitton v. Weston, Gwill. 410. Co. 2. 47. a. CHAP. XXII.] THE PARSON'S COUNSELLOR. 417 CHAPTER XXIL What personal Tithes are, and in what Manner they are payable. The canonists define personal tithes thus : Linwood, cap. ,, -r\ • 1 • 1- • • • Quoniamprop- " JJecimiE personales sic dicta, quia potius in respectu terverb. deci- personae solvuntui- quam rei, iit puta de artificio, negotia- ™fe personales. tione et militia." And by the canon, tithes are, and " Decimae personales solvantur de artificibus et mer- Z}^"^ payable. ... ... ■ -i. 1 he canon. catonbus, scihcet de lucro negotiationis, similiter de carpentariis, fabris coementariis, textoribus, pandoxa- [ 339 ] tricibus, et omnibus aliis operariis stipendiariis, iit vide- licet dent decimas de stipendiis suis, nisi stipendiarii ipsi aliquid certum velint dare ad opus vel ad lumen ecclesiae, si rectori ipsius ecclesiae placuerit." And Mr. Y^"".''" "egotia- Linwood in his Gloss adds, " Et scias quod in istis decimis mere personalibus, quae considerantur ex solo lucro, deducuntur expenses tam in re quam circa rem et extra rem factas. Et nota, quod de solo lucro dcbetur ha^c decima; unde si emens mercem earn non vendat, sed donet vel sibi retineat, non tenetur decimare, quia non lucratur." So that it appears by the canon law, that every one ought to pay for a personal tithe a tenth part of all his clear gains, deducting his charges and expenses for a personal titlie; but if a man buy merclumdizes, and do not sell them to profit, or give them, or make use of them himself, no tithe is to be paid, because there is no gain made of them. Now let us see what the statute of 2 E, 6. says to us 2 E. 6. c. 13, concerning personal tithes; and by that statute it is enacted, " That every person exercising merchandizing, bar- The statute for gaining and selling, clothing, handicraft, or other art or personal tUhe>, faculty, being such kind of persons, as then before vvithiu E E 418 THE PARSON'S COUNSELLOR, [part ii. forty years had accustomably used to pay such personal tithes, or of right ought to pay (other than such as be common day-labourers) shall 3'early pay for his personal tithes, the tenth part of his clear gains, his charges deducted. [ 340' ] " And where handicraft men have used to pay their tithes within this forty years, the same custom of tithes is to be observed; and if any person refuse to pay his personal tithes, &.c. it shall be lawful to the ordinary of the same diocess to call the same party before him, and by his discretion to examine him by all lawful and reasonable means, other than by the parties own corporal oath concerning the true payment of the said tithes," This act of parliament restrains the canon law in two things ; first, where the canon was general, that all persons in all places should pay their personal tithes, the act restrains it to such kind of persons only as have accustomably used to pay the same within forty years before the making of the act. Secondly, whereas by the ecclesiastical laws they might before this act have examined the party upon his oath concerning his gain j this act restrains that course, so that the party cannot be examined upon oath ; and by this act the day-labourer is freed of the payment of his personal tithes. It cannot be intended upon this act, that if such tithes have been sometimes paid within forty years, that they are therefore due, but they must have been accustom- ably, that is, constantly paid for forty years, next before the act. And if it be demanded how such payment must now be proved forty years before the making of the said act ^ I answer, as in other like cases, a posteriore, by what f 341 ) has been done all the time of memory since the act. Selden, de Dec. There has been some question amongst the school- ** ' ■ men and canonists, whether personal tithes ought to be paid of unlawful gain, to which you shall hear what a great schoolman and doctor says. Tho. Aquinas, " Quod si aliqua male acquiruntur dupliciter uno Sum, 2. 2. ie. ■ GHAP.xxii.] THE PARSON'S COUNSELLOR. 419 modo, quia ipsa acquisitio est injusta, puta quag ac- q. 87. art. 20. r . I WTiether due of quiruntur per rapinam, rurtum, seu usuram, quse homo iu.gotten profit. tenetur lestituere, non autetn de eis decimam dare, tamen si aliqiiis ager sit emptus de usura, de fructu ejus tenetur usurarius decimas dare, quia fructus illi noti sunt de usura, sed ex Dei munere: qusedaoi vero di- cuntur male acquisita, quia acquiruntur ex turpi causa, sicut de meretricio et histrionatu, et aliis liujusmodi, qua3 non tenentur restituere unde de talibus tenentur decimas dare, secundum modum aliarum personalium decimarum, tamen ecclesia non debet eas recipere, quamdiu sunt in peccato, ne videatur eorum peccatis communicare, sed postquam poenituerint, possunt ab eis de his recipi decimas." So that by this great doctor's opinion it seems, that Linwood, cap. of ill-gotten gain, of which restitution ousrht to be Quoniam prop- 1 1 • 1 • 1 1 -r-i -1, ter verb, injuste made, no personal tithe is due; and yet ir by ill-gotten acquisit. In the Q-ain a field be purchased, tithe oudit to be paid of the gloss, et Greg. ^ . , „ I „ ... ' ° , ^ . decret. cap. ex iruits thereor : but ot ill-gotten gam, where no restitu- transmissa in tion is to be made, there tithes ouffht to be paid, but the gloss verbo . . iniuste. not received by the church till the sinner have repented him of the evil, and after such repentance the church may receive them. These personal tithes are accounted amongst the |_ 342 ] offerings, of which we are to speak next, and ought by the parishioner to be offered to the church where due ; but I am of the opinion of him that said, " Hae decimae personales magis difhcultate et subtilitate quam utilitate existunt." It hath been resolved, that servants in husbandry RqHj^ j. g46. shall not pay any personal tithe. ^- ^* Hawking, hunting, fishing, fowling, &c. fall under these rules of personal tithes. Of Jews, Linwood, 12. a. Of Jews and Saracens, Selden, de Dec. 152. (118). (118) Vide chap. 8 and 9. concerning tithes of fish and mills, the only species of personal tithes perhaps now payable. Toller on Tithes, p. 44. E E 2 420 THE PARSON'S COUNSELLOR, [part n. CHAPTER XXIIL What Oblations, Offerings, ^t. are, and where due. Oblations and offerings what, and where due. Greg. 78. habe- tur de conse- crat. div. 1. can. 4. [ 343 ] Becan. Sam. Theol. 3. q. 86. Can. Damas. Pap. Et liabe- tur, 10. q. 1. Offerings are defined by the canonists to be, " Quaacunque a piis, fidelibus Christianis offeruntur Deo et sancta; ecclesise, sive res soli, sive mobiles sint, nee refert an legantur testament©, aiit aliter donentur." It seems that in the time of popery there was an ex- pectation, that every one present at mass should offer something ; for St. Gregory tells us, *' Quod omnis Christianus procuret ad missarum solennia aliquid Deo offerre." And by a canon in the council Matisc. it is decreed, " Ut omnibus dominieis diebus altaris oblaiio ab omni- bus viris et mulieribus offeratur, tarn panis quam vini, ut per has immolationes," &-c. But Becanus, a learned Jesuit, is more moderate ; for he tells us, " Quod nemo tenetur ad illas oblationes, nisi vel necessariae sint ad sustentationem ministrorum, vel consuetudo ad eas alicubi obliget." And these offerings belonged properly to the priest or minister of the church or place where they were made; for so is the canon of Pope Damasus. " Quod oblationes quze intra sanctam ecclesiam offe- runtur, tantummodo sacerdotibus qui quotidie servire videntur, licet comedere et habere," &c. But it seems that private chapels carried away many of the offerings belonging to the mother churches ; to avoid which Othobon, the pope's legate here, made a canon to remedy that mischief to this purpose, Cap. deObla- " Quod capellani ministrantes in capelhs hujusmodi, tionibus. quge sulvo jure matricis ecclesise sunt concessa?, universas CHAP. XXIII.] THE PARSON'S COUNSELLOR. 421 oblationes et caetera quae ipsis non recipientibus ad ecclesiam matricem provenire deberent, ipsius ecclesiae rectori sine difficultate lestltuant, cum illud tanquam alienum, juste nequeant retinere. Si quis autem resti- tuere contempserit, suspensionis vinculo, quousque re- stituerit, se noverit innodatum." So that it seems by this canon, that chapels that had C ^'*'* 3 parochial rights, the chaplains of them miglit retain the offerings ; but where the parochial rights were saved to the mother church, the chaplains of such chapels were to account to the rector of the mother church for the offerings made at such chapels. There was another canon made by Simon Mepham Cap. Quia qui- archbishop of Canterbury, and his clergy, in the year of t^i^^c^*''" our Lord 1328, reciting, " Quia quidam maledictionis filii in nubentium sollen- niis, purificationibus mulierum, mortuorum exequiis, et aliis, in quibus ipse Dominus in ministrorum suorum personis solebat oblationum libamine populariter ho- norari, ad unius denarii, vel alterius modicaj quantitatis oblationem, populi devotionem restringere sunt moliti, residuum oblationis fidelium suis pro libito, vel alienis usibus multoties applicantes: preesentis declaratione consilii declaramus et pronunciamus, omnes et singulos in prajmissis, vel eorum aliquo imposterum delinquentes, vinculo majoris excommunicationis involvi." So that upon the whole matter it appears, there were some offerings free and voluntary, which the parishioners or others were not bound to perform, but ad libitum. There were others by custom certain and obligatory ; as those for marriages, christenings, churching of wo- men, burials, 8cc. and that these were all due, and be- longed to the parish priest or minister, that officiated at the mother church or chapel, that had parochial rights; [ 345 ] the other chapels that had not parochial rights, were to account to the rector for the parish church: now let us * 422 ^ THE PARSON'S COUNSELLOR, [part ii. see what the statute of 2 E. 6. says, by which it is enacted, 2 E. 6. c. 13, " That all and every person and persons, which by the ■^^^ f^^g"^^ ^*^'" laws and customs of this realm ought to make or pay their offerings, shall yearly' from thenceforth well and truly content or pay his or their offerings to the parson, &c. of the parish or parishes, where it shall fortune or happen him or them to dwell or abide," 8cc. These offerings, which were free and voluntary, are now vanished, and are not comprehended within this law; but those that were customary and certain, as for communicants, marriages, christenings, churching of women and burials, are confirmed to the parish priest, vicars and curates of the parishes, where the parties live that ought to pay the same ; and they are only re- coverable in the spiritual court; or an action (I con- ceive) may be formed upon this statute at common law. See StiUinfl. Eccl. Cases, 240, &c. (119). (lip) Oblations established by custom might be recovered under stat. / and 8 W. c. 36. as small tithes before two justices of the peace to the amount of 40s,; now, by the Stat. 53 Geo. 3. c. \T] . they may be recovered in a similar manner to the amount of lOl. Offerings are due by the common law at the rate of two-pence a head. Bunb. I73. By the stat. 37 H. 8. c. 12. s. 12. every householder in London, paying 10s. rent or above, shall be discharged of offerings; but his wife and children, or others, taking the rites of the church at Easter, shall pay two-pence for their offerings yearly, London is excepted out of the 27 Hen. 8. c. 20. by s. 2., out of 2 and 3 Ed. 6. c. 13. by s. 12., out of 7 and & Will. 3. c. 6. by s, 5. ; and as the stat. 53 G. 3. c. 127- only extends to the same cases, and is subject to the same provisions as the 7 and 8 of Will, it consequently will not extend to London. t CHAP. XXIV.] THE PARSON'S COUNSELLOR. 423 CHAPTER XXIV. What Mortuaries are, and in what Cases they are due [ 346 ] at this Day, and how much is to be paid for the Same. By a provincial canon made by Simon Langham, Where, and archbishop of Canterbury, and his clergy, in the year ;;|;jt„if,3' ^°' of our Lord 1378, it was decreed, *' Quod si decedens tria vel plura cujuscunque Cap. statutum generis in bonis suis habuerit animalia, optimo cui ^he'cauon. * debitum de jure fuerit reservato, ecclesiii^ suae, a qua sacranienta recepit, dum viverit, sine dolo, fraude, seu contradictione qualibet pro recompensatione subtrac- tionis decimarum personalium, nee non et oblationum, secundum melius animal reservetur post obitum pro salute animie sua? ecclesiae suae hujusmodi liberandum : quod si duo tantum in bonis decedentis extiterint ani- malia, demansuetudine ecclesiae exactioquaeli bet nomine mortuarii remittatur: quodque si mulier viro superstite obierit, ad solutionem mortuarii minime coerceatur ; sed si post obitum raariti, in domo cum familia.- regimine vidua per annum supervixerit, juxta formam supcrius scriptam ad mortuarium obligetur: hac autem inter- pretatione, consuetudini laudabili super mortuariis in nostra provincia aliter observarc nolumus prayudicium generali ; quin si decedens numerum hujusmodi ani- maliura habuerit seu non habuerit virve aut uxor prius [ 347 ] vel post decesserit, super praestatione mortuarii con- suetudo ecclesiastica observetur ; ad solutionem autom debiti de jure vel consuetudine mortuarii renuentes, volumus per ordinarios locorum censura ecclesiastica coarctari." How far this canon was obeyed in England I can give no account, but I have not found the English T|ic statute of mortuarks. 424 THE PARSON'S COUNSELLOR, [part n. willing to have their estates taken from them by canons, nor have found that any prohibitions have been granted in case of mortuaries; nor have I observed any com- plaints in parliament against them (save that in the time of 2 R. 2. it is prayed, that parsons and vicars , might not require mortuaries of the armour of any man ; but that it might remain to their executors) till the 21 H. 8. and then they were settled by the statute as follows : St. 21 H. S.C.6, 1. "That no man shall pay a mortuary unless he died possessed of goods to the value of ten marks, that is, six pounds thirteen shillings and four-pence. 2. " That no mortuary should be paid or demanded, but in such places where they have used to be paid or given. 3. " That they should be paid but in one place, and that at the parties most usual dwelling and habitation, and there but one mortuary, and that after the rate following: that is to say, 4. " That if the decedent at the time of his death, had in moveable goods to the value of ten marks clearly, [ 348 ] his debts first paid, and under the sum of thirty pounds, then he should pay three shillings and four-pence and no more, and this must be in moveables, and not in chattels, as leases for years. Sec. 5. " That if the decedent died possessed of moveables of the value of thirty pounds, and under the value of forty pounds, to pay six shillings and eight-pence for a mortuary- 6. " If the decedent's goods be of the value of forty pounds or upwards, then to pay ten shillings for a mortuar}'. 1. " That no married woman, child or person, not keeping house, should pay any mortuary, nor a wa}'- faring man, or other that was not resident where he died, but those to pay where they were last resident. 8. " The parson or vicar are not by this act barred of any legacy given, or olfcring to be made to tlicm. CHAP. XXIV.] THE PARSONS COUNSELLOR. 425 9. " No mortuary to be paid in Wales, Calais or Berwick, or in the marches of Wales, but where ac- customed. 10. " It is provided, that the four Welsh bishops, and the archdeacon of Chester, may, notwithstanding this act, take their accustomed mortuaries. 11. " That where less hath accustomably been taken for mortuaries than is limited by the act, there no more than is due by the custom shall be taken." Sir Edward Coke is of opinion, that there were no 2 Inst. 491. mortuaries due before this act by any law, but by custom on°7bj custom. only; by reason of the words in the statute of circum- See for this specte agatis, which are, ubi mortuarium dare con- Ca^es 2 8. suevit," &.C. This dut}^ was formerly only suable for in the court [ 349 ] christian, but now I conceive an action of debt will lie 11*5 ""^ntr" at common law upon this statute, for though this statute is only negative, that they shall not take above such rates, yet it implies an affirmative, as the statute of Sanders, de ob- 2 E. G. for barren grounds, and the statute for the sheriffs' pr^iect. 6. § 18. fees, and other statutes. M- 167, contra. But if a suit be commenced for a mortuary in the jeoffries v. spiritual court, no prohibition shall be srranted to stay ^^j"*?:^,'"'!^' ^ ' • ^ •' and '23 Car. 2. their proceeding there, unless the}' proceed contrary to b. R. the statute (120). For those mortuaries that prelates anciently paid to Mortuaries to the kings of this realm, I shall not trouble the reader, the king by but refer those that are curious to inform themselves, to Sir Edward Coke's Commentary upon Magna Charta, 2 lust. 491. and his Jurisdiction of Courts. ns . . . (120) If the custom be denied, and the spiritual court will not admit that plea, a prohibition will go, and they shall not try the custom there. Cro. El. 151. But where the custom of paying a mortuary was ov\ ncd, and the only question in the spiritual court was, whether it belonged to the vicar or impropriator, a prohibition in such case hath been denied. 1 Keb. 919. 426 THE PARSON'S COUNSELLOR, [part ir. 10 H. 4. 1. b. Their names. Cro. Car. 25' 233. Bisliop of Ches- [ 350 ] In the 10th of H. -t. a vicar claimed a mortuary by custom, and not by the canon, or any other law, quod nota. These mortuaries are in some places called corse pre- sents, or corse presentees, as Doctor Cowel says, because where due, the}^ used to pay them before the corse was buried, when it was brought to be buried. The bishop of Chester claimed by custom upon the death of any priest, dying within the archdeaconry of ter, his demand Chester for a mortuary, his best horse or mare, saddle, as archdeacon of ■,■-,, ■, i • i i i i ■ Chester. bridle and spurs, his best gown, a cloak, his upper garment next it, his best hat, his tippet, his best signet or ring, and this custom was denied by the plaintiff in a proliibition, but what the success was I have not heard ; but the mortuaries due to the archdeacon of Chester are excepted; and the bishop of Chester holds that archdeaconry, as I have been informed, in the nature of a commendam, and executes it by a deputy (l'-21). Mr. Swinborn is of opinion, that these mortuaries are to be paid out of the decedent's part of the personal estate where the wife and children are to have their reasonable part; the reason he gives is, because mor- tuaries are of the nature of legacies. But I must con- fess I am not of his opinion; for I look upon it as a debt, or duty, to which the personal estate is subject. See Stillingfleet's Eccl. Cases, 246. Office of ex- ecutor. Lib. 6. § 16. (121) By Stat. 28 G. 2. c. 6. the clause in 21 H. 8. c 6. by which it was made lawful for the archdeacon of Cliester to take such mortuaries of the priests within his diocese and jurisdiction, as he had been accustomed to, was repealed, and the living of Wareton was annexed to the see of Chester in compensation of such mortuaries. 2 Burn's Eccl. Law, 565. By the 13th of Eliz. c. 5. all alienations of lands or goods to defraud creditors and others of their just dehts, damages, penalties, forfeitures, heriots, mortuaries and reliefs, shall (as against such claimants) be utterly void, and of non-effect. CHAP. XXV.] THE PARSON'S COUNSELLOR. 427 CHAPTER XXV. How Tithes are to be paid in London. The livelihood of the secular clergy in Lojidon con- Tithes in Lon- sisted heretofore chiefly in voluntary offerings and per- ^^^ sonal tithes, which little differ from voluntary offerings. For though a great doctor tells us that, " In pra2cipuis festivitatibus tenetur quis offerre, et Hostiensis, c- cogi potest, maxime cum sit quasi generalis consuetudo ^™°»sCmsua. ubique terrarnm," &c. And if you ask him which are those feasts at which [ 351 ] the people are bound to offer, he tells you, " dies Domi- g^^[" lu qulbus nicos, et dies festivos." &.c. But there being no canon or law that prescribes any vid. Selden de certainty in the quantity, value, or things to be offered, Dec. 1 can give them no properer a name than voluntary or free-will offerings. But no sooner was popery abo- lished in this nation, but these voluntary olferings and personal tithes soon came to little. And notwithstand- ing it was enacted by the statute of 2 E. 6. that all that by law or custom were bound to make their offerings should thenceforth pay them to the parson, &c. yet that did not much amend the matter, so that the main- tenance of the secular clergy in London was brought to a very low ebb, there being no tithe, as hath been said, chargeable upon houses, unless by way of a modus de- cimandi, whereupon the clergy of London in the 37th year of the reign of King H. 8. made their application stat, 37 n, 8. to the parliament, and obtained an act of parliament for *^' •'^• the confirming a decree made by the archbishop of Can- terbury, and divers other great lords of the kingdom, to settle the matter, the effect whereof follows, which is printed amongst the other acts of parliament. 428 THE PARSON'S COUNSELLOR, [part ii. The decree ^' " That the citizens of London from thenceforth for ever, shall pay yearly without fraud or guile to their parsons, 8cc. for the time being, for every ten shillings r 352 1 ^^^^ of all houses, shops, warehouses, cellars, and stables, within the said city of London, and the liberiies of the same, IGcL ob. and for every twenty shillings rent, two shillings and nine-pence, and so ascending for every ten shillings rent. 2. " That if any dwelling-houses, shops, 8cc. should be leased by fraud or covin, reserving less rent than hath been accustomed ; or shall by reason of fine, or by fraud or covin, make any lease without reserving an}"- rent, then the farmer or tenant shall pay after the same rate, the said house, &,c. was last let for without covin ; but note, that if the house, 6cc. be let at as great a rent, as the same was set at the time of the making of the said statute, then no fraud can be aver- red, although a fine or income was given for the said lease. 2 Inst. 659. 3. " That if a house, &c. be leased, and no rent at all reserved, then such house, 8ic. shall pay such rate as the same was let for at the time of the making of the said statute; but where greater rent is reserved, it is to pay according to the best improved value. 2 Inst. 660. "But where houses had been always held by the ib. ^^ owners, and, by consequence, no rent paid, that is casus omissus in this statute, and such houses will be freed of payment of tithes by this law (122.) (J22) By the decision of Sir W. Grant, M. R. in Antro- bus v, the East India Company, 15 Ves. jun. Q, the law is now held to be otherwise ; his honour observing, " that to principle and authorities there was nothing to be opposed but a dictum of Lord Coke, for it was not in point in the cause, that where houses have never been let, that is a casus omissus and no tithe is payable : a proposition which can by no means be supported." Where an act ol' parliament charges every house generally CHAP. XXV.] THE PARSON'S COUNSELLOR. 429 " But if it were a house that yielded rent at the time Lit. Rep. ubi. of the making the decree, and be now let without rent, ''"P'^^" it shall pay tithe according to the rate it was set for at the making of the decree, although no fine at all were paid for such lease. 5. " The tithes upon this decree cannot be sued for [ 353 ] in the ecclesiastical court, because the act itself declares how they shall be recovered. 6. " That if the owners held the houses themselves, then they shall pay tithe after the rate the same were set for at the time of the decree. 7. " That if any person take any house, 8cc. by lease, and he and his executors, &,c. live in part of it, and set out part, the principal farmer or taker, his executors, 8cc. shall pay their tithes for his and their parts after the rate aforesaid, and of such part as is farmed out according to the rate it is set at. And in the same manner tithes are to be paid, where one takes a lease of several houses, and lets out part, and holds any part himself. 8. " That if any farmer, or his assigns, shall farm all the houses, Sec. 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 warehouses, or e converse, yet they shall pay tithe ac- cording to the rate aforesaid. 10. " That if a dyehouse or brewhouse 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, sta- in the parish, and does not expressly discharge the dean, it was held, that he was liable to pay tithes in respect of his deanery ; and, a fortiori, premises which being once chargea- ble, have become since part of his deanery, and according to the improved value. Warden of St. Paul's v. Dean, 4 Pri. ']']. 430 THE PARSON'S COUNSELLOR, [part ii. bles, wharfs with crane, timber-yard, or gardens belong- ing to the same, and occupied together, shall afterwards be severed, or were severed within eight years before the decree, that then the farmers of the shops, stables, &c. shall pay tithes according to the rate abovesaid. [ 354 ] 12. " That these tithes shall be paid quarterly, at Easter, Midsummer, Michaelmas, and Christmas. 13. " That any householder, that holds an house of ten shillings rent, or above, shall be acquit of his offer- ings; but his wife, children, and servants shall pay two- pence yearly for their four offering days receiving at Easter. 14. " That if any house often shillings rent or above, shall be let by parcels under ten shillings 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 ten shillings per annum, without fraud or covin, shall pay two-pence yearly for their offerings. 15. " That no tithe 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 noble- men or noblewomen, whilst they are kept in their own hands, and not let 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 sheds, stables, cellars, timber-yards, and tenter-yards, which never were parcel of, or belonging to any dwelling-house, and which have not been used [ 356 ] to pay tithes, sliall be acquit of the payment of tithes, as hath been accustomed. CHAP, XXV.] THE PARSON'S COUNSELLOR. 431 18. " But if by custom any lesser rate have been paid than the rate of two shillings and nine-pence in the pound, then the accustomed rate only to be paid. 19. " The Lord Mayor of the city of London, by the advice of counsel, is authorised 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 Mayor do not make an end of such differences within two months after complaint; or if any person find himself aggrieved by his decree, then the Lord Chancellor, within three months after com- plaint to him made, shall make an end of the differences with costs, &c. 21. " That if rents fall, by reason of decay or burn- ing, 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 liere 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. Meadhouse and Dr. Taylor, it Noy, 130, was resolved, that suits for tithes upon this decree tith'eJiaLondon should be before the Mayor in writing, and not by shall be de- , 1 termlued. parol. 2. That a reservation by a lessor for life upon a lease by him made for years, shall not bind him in reversion to pay tithes according to that rate. 3. A rent for half a year, and after for another half [ 3^6 ] year, is a yearly rent within this decree. It hath been resolved, that abbey lands within the Cro. El. 276. city of London and the liberties thereof, are not freed Mo". 9'2. 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 privileges are not re- served. It hath been resolved, that if the rents be continued ^'^"- Scuda- 432 THE PARSON'S COUNSELLOR, [part ii. 5 Jac. c. B. as they were at the time of the making of the statute, though upon new fines, that the tithes shall be paid ac- cordingly. But if upon new fines less rent be reserved, it shall pay tithes as it did before. And if no rent be reserved, nor fine paid ; the parson shall have his tithes according to the rent at the time of the decree. But if a house have always been held by the owners, and no rent paid, it shall pay no tithes within the de- cree (123). The decree was enrolled, 5 Martii, 38 H. 8. although the inrollment cannot be found. And it was resolved, that if the Mayor of London shall make any decree against law, a prohibition lies; Infra, [382.] for the exposition of all acts of parliament belongs to the judges of the common law. [ 357 ] And it hath been resolved, that though a house in (123) Vide note 122, relative to houses which never have been let. It has been decided, that the rate ordered by the decree and statute to be paid out of the rent of houses in London in lieu of tithes, is assessable on the improved rent of such houses. Sheffield v. Pierce, Gvvill. 503. Joatt v. Warren, ibid. 1054. But in general the defendant in such case is at liberty to set up a customary payment to protect himself against tlie claim of tithe under the statute. Bennet v. Trespass, Gwill. 633. The Warden and INIinor Canons of St. Paul's v. Morris, g Ves. jun. 155. and the Warden, &c. of St. Paul's V. Kettle, and e contra, 2 Ves. and Beam. I. It is held to be no defence to a demand for tithe of a house in London, that it stood on the site of old houses which never paid any tithe. If it had been shown that a less rate had been paid for them, it would have been a defence to that extent ; but an entire exemption shall not prevail. Toller on Tithes, 246. Bramston v. Heron, Gwill. 1314. Semble, in all cases of buildings the tithes must be calcu- lated upon the improved annual value, and even for build- ings on the sites of houses which never paid rent. Kynaston V. E. I. com. cited 4 Price, 84. in notis. CHAP. XXV.] THE PARSON'S COUNSELLOR. 433 London stand void without any tenant at all, that yet Dr- Burgess, • 1 1- •, 1 n ^-.1 ^ .1 parson of St. notwithstanding it shalJ answer tithes to the parson. Magnus, v. And it hath been resolved, that if any suit be brought Sjmonds. Scaccar M in the ecclesiastical court, or any other court than is 4 Car. i. per directed by the act, a prohibition lies (124). Henden. Til u J /I . ■ 2 Inst. 6fi0. Lastly, where the decree says (where no rent is re- o irved 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. But if any tithes in London be due by custom, they Lit, Rep. I02. may be sued for in the Exchequer, notwithstanding tlie statute. And it was held by the Court of Exchequer, that Hardre?, 116. that court has jurisdiction for tithes in London upon this statute, because there is no negative restrictive words in the statute. I cannot tell by what improvidence I missed, in all my An act of parlia- former editions of this book, takinij notice of an act of n>ent for settling T 1- iir>T'- ^11 maintenance parliament made in the 22d and 23d ot King Charles upon ministers the Second, for the better settlement of the maintenance °/'*"-' churches or the parsons, vicars, and curates in the parishes or the in London. city of London, burnt by the late dreadful fire there, which is a law very necessary to be known, by which it is enacted, " That the annual certain tithes of all and every parish and parishes within the said city of Lon- (124) In tlie case of the Warden and Minor Canons of St. Paul's v. Crickett, 2 Ves, jun. 563. Lord Loughborough observed, with reference to the case of Skidniore and Eire here alluded to by the learned auUior, that it was an unhand- some struggle for jurisdiction, and that the prohibition was carried further than in just reason it ought. If the Lord Mayor refuse his warrant for levying sums due by the assessment of 168I, the Court of Chancery has jurisdiction to inquire whether the Lord Mayor has done right in so doing, and can issue its warrant to levy the sums assessed. Ex parte Croxall, 3 Atk. 63Q. Gwill. 812. F F 434 THE PARSON'S COUNSELLOR, [part ii. [ 358 ] don, and the liberties thereof, whose churches have been demoHshed or in part consumed by the late fire, and which parishes by virtue an act of this present parlia- ment, intituled, * An additional act for the rebuilding the city of London, uniting of parishes, and rebuilding of the cathedral and parochial churches within the city of London, remain and continue single as heretofore they were or are by the said act annexed or united into one parish respectively,' shall be as follows, that is to say, the annual certain tithes or sums of mone}' in lieu of tithes. Of the Parish of AUhallows, Lombard-street Of St. Bartholomew, Exchange Of St. Bridget alias Brides Of St. Bennet Finck Of St. Michael, Crooked-lane Of St. Christopher Of St. Dion is Back-church Of St. Dunstan in the East Of St. James, Garlick-hithe Of St. Michael, Cornhill Of St. Michael Bassishaw Of St. Margaret, Lothbury Of St. Mary, Aldernianbur}' Of St. Martin, Ludgate Of St. Peter, Cornhill Of St. Stephen, Coleman-street Of St. Sepulchre Of AUhallows, Bread-street, and St. John Evangelist Of AUhallows the Great, and AUhallows the Less 200 r 359 ] Of St. Alban, Wood-street, and St. Olave, Silver-street Of St. Ann and Agnes, and St. John Zachary Of St. Augustin and St. Faith Of St. Andrew Wardrobe, and St. Anne, Black friars - - - 140 =£110 100 120 100 100 120 120 200 100 140 132 11 100 150 160 110 110 200 140 ss200 170 140 172 CHAP. XXV.] THE PARSON'S COUNSELLOR. 435 Of St. Antholin and St. John Baptist - c£l20 Of St. Bennet Gracechurch, and St. Leonard, Eastcheap _ _ _ 140 Of St. Bennet, Paul's-Whaif, and St. Peter's, Paul's- Wharf - - - 100 Of Christ-church and St. Leonard, Foster-]ane 200 Of St. Edmond the King and St. Nicholas Aeons - - _ 180 Of St. George, Botolph-lane, and St. Botolph, Billingsgate - - - ISO Of St. Lawrence Jury, and St. Magdalen, Milk-street - ' - - 120 Of St. Magnus and St. Margaret's, New Fish- street . - - . 170 Of St. Michael Royal and St. Martin Vintry 140 Of St. Matthew, Friday-street, and St. Peter Cheap - - - 150 Of St. Margaret Pattens, and St. Gabriel Fenchurch - - - 120 Of St. Mary at Hill and St. Andrew Hubbard 200 Of St. Mary Woolnoth, and St. Mary Wool- church - - - - 160 Of St. Clement Eastcheap, and St. Martin's Orgars - - - - 140 Of St. Mary Abchurch, and St. Lawrence r ^qq i Pountney - - - 120 Of St. Mary Aldermary, and St. Thomas Apostle - - - - 150 Of St. Mary-le-bow, St. Pancras, Soper-lane, and Allhallows, Honey-lane - - 200 Of St. Mildred, Poultry, and St. Mary Cole- church - - - 170 Of St. Michael, Wood-street, and St. Mary Staining . - _ ]00 Of St. Mildred, Bread-street, and St. Mar- garet Moses - - - ISO Of St. Michael, Queenhithe, and Trinity - 160 F F 2 no ISO 120 100 140 436 THE PARSON'S COUNSELLOR, [part ii. Of St. Magdalen, Old Fish-street, and St. Gregory - - - cflSO Of St. Mary Somerset, and St. Mary Mountshaw _ _ _ Of St. Nicholas Coleabbey, and St. Nicholas Olives _ _ _ Of St. Olive Jewry, and St. Martin, Iron- monger-lane _ - > Of St. Stephen, Walbrook, and St. Bennet Sherehog _ _ _ Of St. Svvithin and St. Mary Bothaw Of St. Vedast, alias Fosters, and St. Michael Quern - - - 160 " Which respective suras of money to be paid in lieu of tithes within the said respective parishes, and assessed as hereinafter is directed, shall be and continue to be esteemed, deemed, and taken to all intents and purposes [ S6l ] to be the respective certain annual maintenance (over and above glebes and perquisites, gifts and bequests to the respective parson, vicar, and curate of any parish for the time being, or to his or their respective succes- sors, or to other persons for his or their use) of the said respective parsons, vicars, and curates, who shall be legally instituted, inducted, and admitted into the re- spective parishes aforesaid. By whom and " And that the said several sums of money for tithes 'MessnfenTsh II ^^^ ^^ morc equally assessed upon the several houses, be made. buildings, and all other hereditaments whatsoever, within all the said respective parishes, be it enacted, &c. That the alderman of such respective ward or wards within the said city, wherein any of the said parishes lie, and his and their deputy or deputies, and the com- mon-councilmen of such respective ward or wards, with the churchwardens and one or more of the parishioners of such respective parish wherein the maintenance afore- said is respective!}' to be assessed, to be nominated by CHAP. XXV.] THE PARSON'S COUNSELLOR.' 437 such respective alderman, deputy, common-councilmen, and churchwardens, or any five of them, whereof the alderman or his deputy to be one, shall at some con- venient and seasonable time before the twentieth day of May, in the year of our Lord one thousand six hun- dred and seventy-one, assemble and meet together in some convenient place within every of the respective parishes, in such respective ward wherein the mainte- nance aforesaid is to be assessed, and they, or the major part of them so assembled, shall proportionably assess upon all houses, shops, warehouses and cellars, wharfs, quays, cranes, water-houses (which water-houses shall [ 362 ] pay in their respective parishes where they stand and not elsewhere) and tofts of ground (remaining unbuilt) and all other hereditaments whatsoever (except parsonage and vicarage houses) the whole respective sum by this act appointed, or so much of it as is more than what each impropriator is by this act enjoined respectively, to allow in the most equal way that the said assessors, according to the best of their judgments can make it, which said assessments shall be made and finished be- fore the 24th day of July then next ensuing. " And be it further enacted, by the authority afore- How unequal said, that if any variance or doubt shall happen to arise ""essraents ' -^ . ^ 1 shall be rehcved. about any sum so assessed as aforesaid, or that any parishioner or parishioners, owner or owners of any house, shop, warehouse or cellar, wharf, quay, crane, water-house, toft of ground, or other hereditament, within any of the said parishes, shall find himself or themselves aggrieved by the assessing of any sum or sums of money in manner and form aforesaid, that then upon complaint made by the party or parties aggrieved, to the Lord Mayor or court of aldermen of the said city, within fourteen days after notice given to the party or parties assessed, of such assessment made, 10 the said Lord Mayor and court of aldermen, summoning as well the party or parties aggrieved as the alderman and such other as made the said assessment, shall hear and 438 THE PARSON'S COUNSELLOR, [parx u. determine the same in a summary way, and the judg- ment by them given shall be final, and without ap- peal. The assessment " Provided that any assessment or rate to be made *°YJ'^J^™^^^ or laid by virtue of this act, shall and may in all or any and laid again. -' _ _ ... . [ 363 ] of the parishes aforesaid, in hke manner be reviewed or altered or laid again within three months after the twenty-fourth day of June, 1674, according to the aforesaid rides, and any such assessment or rate shall or may be again reviewed or re-assessed within three months after the twenty-fourth day of June, in the year of our Lord 1G81. And that all and every such new assessment and rate shall be liable to the like appeals as aforesaid, and shall be collected, levied, and paid as an}' other assessment or rate mentioned in this act may or ought to be. How unequal " And if the said alderman, deputy, common-council- assessrnent shall j^q^ ^^^ parishioner or parishioners so appointed as be relieved in ' ^ ' ^ ^ ' * default of the aforesaid, shall, after summons and request made in LordMayorand ^i^^^ ^j^j^^ip ^^^^ ^|_,g^ . ^j^^ j;^^^.^ j^/j . ^,j^ ^^^^^.^ court of alder- _ ' •' »' _ men. of aldermen, or the incumbent or incumbents of any of the said respective parish or parishes, refuse and neglect to meet and make such assessments, as aforesaid, then it shall and may be lawful to and for such person and persons as shall be thereunto authorised and required by the said Lord Mayor and court of aldermen to make such assessment as by the said alderman, deputy, com- mon-councilmen, churchwardens, parishioner, or pa- rishioners, aforesaid, should, or ought to have been made. There shall be " ^^^ ^^ ''' ^u'^ther enacted, &.C. that the said assessors three several within ten days after such assessment made, and the tl^ass'essments, respective appeals (if any be) determined, shall make and how to be three transcripts thereof in parchment, containing the ^° ■ respective sums to be payable or appointed to be paid [ 364 ] out of all and every the premises within such respective parish, and subscribe the same under their hands, within twenty days after such subscription, as aforesaid, one of CHAP XXV.] THE PARSON'S COUNSELLOR. 439 the said transcripts shall be returned to the Lord Mayor of the city of London, to be kept and preserved by the said Lord Mayor, in and amongst the records of the said cit}^ for a perpetual memorial thereof, and another of the said transcripts shall be returned into the registry of the Lord Bishop of London, to be kept and reserved as aforesaid, and the other of the said transcripts shall remain and be kept in the vestry of such respective parish, for a perpetual memorial, as aforesaid. " And for the surer and better payment of the said Where and to respective sums of money, so to be assessed and taxed monies a^sesLd towards the raising of the said maintenance of their re- shall be paid, spective parsons, vicars, and curates of the said re- spective parishes, as aforesaid, Be it enacted, &c. that all and ever}' such respective sum and sums of money, so to be assessed and taxed as aforesaid, towards the raising of the said maintenance of the said respective parsons, vicars, and curates of the said respective pa- rishes, shall be paid to the said respective parsons, vicars, and curates, and their successors respectively, at the four most usual feasts, (that is to say) at the an- nunciation of the blessed Virgin Mary, the Nativity of St. John Baptist, the feast of St. Michael the Arch- angel, and the Nativity of our blessed Saviour, or within fourteen days after each of the feasts aforesaid, by equal payments ; the respective payments thereof to begin and commence only from such time and times as the in- cumbent or incumbents of such respective parish shall begin to officiate or preach as incumbent or parson in [ 355 ] the respective church belonging to such respective parish, or in some other convenient place or j)laces in such respective parish or parishes, to be nominated or appointed by the Lord Bishop of London for the time being, or by the Archbishop of Canterbury in any place within his peculiars. " And in any parish or parishes where any impropria- wiiat impro- tions be, be it enacted, &c. that all and every the im- pr'ato" s^aii • • ' c r I • I ■ 1 P^y towards proprjalor or impropriators or any ot the said parishes, this charge. 440 THE PARSON'S COUNSELLOR, [part ii. shall pay and allow what really and bona fide they have used, and ought to pay and satisfy to the respective in- cumbent of such respective parish, at any time before the late fire, and the same shall be esteemed and com- puted as part of the maintenance of such incumbent; notwithstanding this act, or any clause, or matter, or thing therein contained. The sums as- « And be it further enacted, 8cc. that if any of the sessed how to be . , , . . r. ■ . . , . , recovered upon mhabitants in any or the respective parish or parishes refusal, &c. as aforesaid, shall, or do refuse or neglect to pay to the respective incumbents aforesaid, of any of the respective parishes, any sum or sums of money to him respectively payable, or appointed to be paid by this act, or any part thereof, contrary to the true intent and meaning of this act, (being lawfully demanded at the house or houses, wharf, quay, crane, cellar, or other premises whereout the same is payable) that then it shall and may be lawful to and for the Lord Mayor of the city of London for the time being, upon oath to be made before him of such refusal or neglect, to give and grant out warrants for the officer or person appointed to col- [ 366 ] lect the same, with the assistance of a constable in the day time, to levy the same tithe or sums of money so due, and in arrear and unpaid, by distress and sale of the goods of the party or parties so refusing or neglect- ing to pay, restoring to the owner or owners the over- plus of such goods over and above the said arrear of the said monies so due and unpaid, and the reasonable charges of making such distress, which he is to deduct out of the monies raised by sale of such goods. What remedy if " Provided always, &c. that in case the Lord Mayor the Lord Mayor or court of aldermen shall refuse or neglect to execute me*n"eo"ector' ♦ioy of the respective powers to them by this act grant- refuse to do their ed, or to perform all and every such thing related either to the assessing or levying of the respective sums afore- said, as they are by this act authorised and required to perform, that then it shall and may be lawful for the said Lord Chancellor, or lord keeper of the great seal CHAP. XXV.] THE PARSON'S COUNSELLOR. 441 of England for the time being, or any two or more of the barons of his Majesty's Court of Exchequer, by warrant or warrants under his or their respective hands and seals, to do and perform what the said Lord Mayor and court of aldermen, according to the true intent or meaning of this present act, might or ought to have done, and by such warrant either to empower any per- son or persons to make the respective assessments as aforesaid, or to authorise the respective officers or per- son or persons appointed to collect the sums aforesaid, to levy the same by distress and sale of the goods of any person or persons that shall refuse or neglect to pay the same in manner and form aforesaid. " Provided always, &.c. that where any of the parishes C ^67 ] . , . , • 1 • 1 • II ^111 Where one of withm the said city have, since the late hre, by death the incumbents or otherwise, become vacant, the surviving or remain- dies his fellow p , , •II • 1 shall have his ing incumbent ot the other parish thereto united, or part, therewith consolidated, shall have and enjoy, and have hke remedy to recover the tithes hereby settled to be paid, as if he had been actually presented, admitted, in- stituted, and inducted into both the said parishes since the union and consolidation thereof. " Provided, that no court or judge, ecclesiastical or These assess- temporal, shall hold plea of, or for any the sum or sums ^,ed foThi'an/ of money due and owing, or to be paid by virtue of other court. this act, or any part thereof, other than the persons hereby authorised to have cognizance thereof: nor shall it be lawful to or for an}' parson, vicar, curate, or in- cumbent to convent or sue any person or persons as- sessed as aforesaid, and refusing or neglecting to pay the same in any court or courts, or before any judge or judges, other than what are authorised and appointed by this act for the hearing and determining of the same in manner aforesaid. " Provided always, that it shall and may be lawful to The warden and and for the warden and minor canons of St. Paul's sf pLursTen-^ church, London, parson and proprietors of the rectory joy the rectory of the parish of St. Gregory aforesaid, to receive and ° '• Gregory. 442 THE PARSON'S COUNSELLOR, [part n. enjoy all tithes, oblations, and duties, arising or growing due within the said parish in as large and beneficial manner as fornieily they have or lawfully might have done, any thing therein to the contrary notwithstand- ing" (125). (125) By a local and personal act passed in the 44th of G. 3. c. 89. entitled " An act for the relief of certain incum- bents of livings in the city of London," the following new assessments in lieu of tithes were granted : St. Alban, Wood-street Allhallows, Bread-street Allhallows, Lombard-street Allhallows the Great and Allhallows the Less St. Andrew Wardrobe, and St. Anne - St. Anne, James, and St. John Zachary, Alders- gate - - - St. Anthony and St. John Baptist St. Austin and St. Faith St. Bartholomew, Exchange St. Benedict Finch St. Benedict Gracechurch, and St. Leonard, Eastcheap St. Benedict and St. Peter's, Paul's Wharf Christ Church and St. Leonard's, Foster-lane St. Clement Eastcheap, and St. Martin's Orgers 233 St. Dionis Backchurch - - - St. Dunstan, East . _ _ St. Edmund the King, and St. Nicholas Aeons St. George, Botolph-lane, and St. Botolph, Bil- lingsgate - _ _ St. James, Garlic-hithe - - - St. Lawrence Jury, and St. Magdalen, Milk- street - - - 200 St. Magnus, London Bridge, and St. Margaret, New Fish-street - - 383 6 4 St. INIargaret, Lothbury, ami St. Christopher - 36t) 13 8 St. Margaret Pattens, and St. Gabriel Fen- church, Rood-lane - - 2U0 £283 6 8 283 6 8 200 333 6 8 233 6 8 233 6 8 200 286 13 4 200 200 233 6 8 200 333 6 8 233 6 8 200 333 6 8 300 300 200 CHAP. XXV.] THE PARSON'S COUNSELLOR. 443 St. Martin, Ludgate - - -£260 13 4 St, Mary Abchurch, and St. Lawrence Pountney 200 St. Mary Aldermanbury St. Mary Aldermary, and St. Thomas Apostle St. Mary-le-Bow, St. Pancras, Soper-lane, and Allhallows, Honey-lane St. Mary Hill, and St. Andrew Hubbard St. Mary Magdalen, Old Fish-street, and St. Gregory _ ^ - St. Mary Somerset, and St. Mary Mountshaw St. Mary Woolnoth, and St. Mary VVoolchurch St. Matthew, Friday-street, and St. Peter Cheap - - .- St. Michael Bassishaw _ - - St. Michael, Cornhill _ - - St. Michael, Crooked-lane - - - St. Michael, Queenhithe, and Trinity St. Michael Royal, College-hill, and St. Martin, Vintry - - - St. Michael, Wood-street, and St. Mary Staining St. Mildred, Bread-street, and St. Margaret Moses - - - St. Mildred, Poultry, and St. Mary Colechurch St, Nicholas Coleabbey, and St. Nicholas Olaves St. Olave Jewry, and St. Martin, Ironmonger- lane - _ _ - St. Peter, Cornhill - - - St. Stephen, Coleraan-street St. Stephen, Walbrook, and St. Rennet Sherehog St. Swithin, London Stone, and St. Mary Bothaw St. Vedast Foster's, and St. Michael Quern - 266 13 4 Parishes without the city walls. St. Bride ..... 200 St. Sepulchre - . - . 333 Q q 250 250 333 333 6 8 200 200 266 13 4 250 220 18 4 233 6 8 200 266 13 4 233 6 8 200 216 13 4 283 6 8 216 13 4 200 200 200 200 233 6 8 444 THE PARSON'S COUNSELLOR, [part ii. [ 3fi8 ] CHAPTER XXVI. The Twenty-sixth Chapter shows, in what Court the Right of Tithes is determinable, and how, and in what Manner to be recovered ; and in what Cases Prohibi- tions are usually granted, and how prosecuted and de~ Jended. 2 Inst. 661.490. That tithes weie anciently determinable in the \ dm 412 Lamb, county and hundred courts, is asserted both by Sir Saxon Laws, 45. Edward Coke and Mr. Selden ; and the same appears by the laws of King Ethelstan long before the Con- Sclden, Jani An- quest; and Mr. Selden is of opinion, that the bishop's Dalton's Sheriff con^istory here in England was not settled till the time 410,411. of William the Conqueror, who by his charter cora- Seid, 41'J. mands, " Ut nullus episcopus vel archidiaconus de legibus episcopalibus amplius in hundredo placita te- neant, nee causam quae ad regimen animarum pertinet ad judicium secularium hominuni adducant, sed qui- cunque secundum leges episcopales de quacunque causa vel culpa interpellatus fuerit, ad locum, quern ad hoc episcopus elegerit et nominaverit, veniat, ibique de causa sua respondeat, et non secundum hudret. sed se- cundum canones et leges episcopales rectum Deo et episcopo suo faciat." And closes thus : " Hoc etiam defendo, ut nullus laicus homo de legibus, qu£B ad epis- Seld. 414, &c. copum pertinent sc intromittat;" yet notwithstanding, [ 369 ] as Mr. Selden observes, 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.I.I find this clause: Leg. H. I.e. II. " Si quis rectam decimam superteneat, vadat praepositus Larab, 182. regis ct cpiscopi, et terrae domini cum presbytero, et CHAP. XXVI.] THE PARSON'S COUNSELLOR. 445 ingratis auferant; et ecclesiae cui pertinebit, reddant, et nonam partem relinquant ei qui decimam dare noluerit." But the law hath been now long settled that the ec- clesiastical courts have in some cases the power to de- termine the right of tithes, and in all cases to hold plea for the subtraction and withholding of tithes, and con- firmed by several acts of parliament- To the first, if a dispute happen between two parsons, 35 H. 6. 3o. to which of them the tithes belong, whether to the one pg^ Forteicue. by parochial right, or the other as a portion belonging Where the spi- ^ I • L • t- 1 u iU 1 • ""ituil court may to his rectory by prescription, and both parsons claim determine the by presentation under the same title, so that the right "ght of tithes. of patronage comes not in dispute, the right of these tithes shall be determined in the ecclesiastical court, and no prohibition or indicavit shall hinder it, and this suit in the ecclesiastical court is called a spoliation. And this jurisdiction is so peculiar and annexed ^^„^* ^'- ^^* 3 H. 5. 40. to the spiritual courts, that if the one parson should 14U.4. i7.a.b. bring an action of trespass at the common law against wiiere the tem- " /• I 1 • poral courts the other parson, for the taking or carrying away corn havenojurisdic- or other things set out for tithe, the defendant may by . ^ 9V\ ^ ~ ' . . J J tion of titlies. way of plea show, 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 king's court will hold plea; by such plea the king's court shall be ousted of jurisdiction. But if the dispute in such action fall out in pleading to be about the hounds of the pa- rishes, then the king's courts shall not be ousted of jurisdiction. * And so it is, if the question be between the farmer, * 5 H. 6. lo. baile}', or servant, of the one parson, and the farmer, ^^ ^' '^' f^' bailey, &c. of the other, or the other parson himself; 39 E. 3. 13. in such cases, though the dispute does appear to be ^ {|" ^^' V^* concerning the right of tithes between the parsons, 3'et 44 li. 3.39. 446 THE PARSON'S COUNSELLOR, [part it. 20 H. 6. 17. the court shall not be ousted of the jurisdiction because 31 H. 6 li. '^^^y ^'^ "°'' ^o^^li clergymen. 8 E. 4. 15. 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, 1 perceive no prohibition lies, if both parsons come in by the same title of patronage, so that the right of patronage came not in dispute. J- 371 ] And I take the law to be the same where the question 40 E. 3. 28. arises between the parson who is patron, and the vicar, .35 H. 6. 3'.'. ,.,•,,, , Noy, 147. whether tithes belong to the parson or vicar. More, 907. p,,^ where the ris-ht of tithes is controverted between West 2. c. 5. ... Circu'ruspecte two clergymen, which come into their churches by Agatis, articuh ggyeral |)atrons, there in tliat case the spiritual court hath not jurisdiction to determine the right of the Where the spi- tithcs, if they amount to the fourth part of the 3a'arly cannltTter- valucof the church ; but the title is to be determined mine the right of hv writ of risiht of advowson of tithes, as shall be '^*" showed more at large, when 1 shall come to sliow in what cases the right of tithes is determinable in the king's court. But in that case, if the tithes in question do not amount to the fourth part of the yearly value of F N B 37 E ^^^^ church, the ecclesiastical court may determine the right in a spoliation. But it should seem that if they claim both by one patron there, though the whole tithes come in debate, the title shall be determined in the spiritual court by a suit in the nature of a spoliation. ^ . ., , • . But the jurisdiction of the ecclesiastical courts to Spiritual juris- -^ J diction coiitirm- hold plea for the subtraction and withholding of tithes, ed bv severa j g^^g jj^ji) \)qqx\ vcrv aucieut, SO it hath been con- acts ol parlia- J ' luent. firmed by several acts of parliament, as I shall show ; B tlie statute ^^^ ^^^^ of vvhich is that of circumspecte agatis, made de circumspecte hi the ninth year of E. 1. by which it is enacted, that, ^°^"*' " Si rector petat versus parochianos oblationes et de- . , cimas debitas et consuetas; vel si rector petat versus rectorem de decimis majoribus vel minoribus, dum- modo non petatur quarta pars valoris ecclesiae: item si CHAP, xxvi] THE PARSON'S COUNSELLOR. 447 rector petat mortuarium in paitibus ubi mortuarium dari consuevit: item si przelatus alicujus ecclesise vel advocatus petat ^ rectore pensionem sibi debitam, om- i nes hujusmodi petitiones sunt faciendje in foro eccle- siastico, &c." and concludes, " In omnibus prsedictis casibus babet judex ecclesiasticus cognoscere, regia probibitione non obstante." There hatb been some question made, "whether this That it is an act r !• .. ..I..'..' Ji of parliaineiu. were an act ot parhament or not; but it is proved by „ inst. 487. Sir Edward Coke, by many unanswerable reasons, to be Seld. Hist de- an act of parliament, and so agreed by jNIr. Selden, and almost all others. Secondly, Admitting it to be an act of parliament, it And e^ctends to hath been doubted, whether it extended farther than to 2 i„st^4S7.' the diocess of Norwich, it seeming to be appropriated Seld.Titiies, V U • . .u . J- 1 U ^ I *U 413 Plo. 36. b. by the penning to that diocess alone; but by the gc- ]i;.uon ofSta- neral opinion of the learned, it extends to all other dio- tufs. '3. i7. cesses, and Norwich is only put by way of example. ^J j i„st. 36r.. And the prudent pennino: of this law by our ancestors ^■ , i»i ^- 1 " r 1 ^ 0!)scrvations in deserves the readers observation, how careful they were iiie penning ot to preserve their own rights, and avoid the encroach- "• ments 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 al- lowed by the common law, and therefore give the spi- ritual judge jurisdiction of tithes and oblations (debitas et consuetas) only. 2. They would not expose their rights of patronage [ 373 ] to the determination of the spiritual judge, and there- fore this condition is annexed: " Dummodo non petatur quarta pars valoris ecclesite. 3. Lastly, They would not subject themselves to pay mortuaries according to the canon law, but ubi dare consuevit; so that if any suit were sued for tithes, of- ferings, mortuaries, not due as well by custom as com- mon law, a prohibition l:iy and doth lie at this day. The second statute concerning the jurisdiction of iIk- spiritual courts in case of tithes, is the statute of Arti- 448 THE PARSON'S COUNSELLOR, [part ii. culi Cleri, but I shall pass it by here till I come to speak of the writ of indicavit. 18 E. 3. cap. 7, The next statute I meet with that concerns this mat- ter, is the statute of 18 E. 3. cap. 7. which I shall pass by also till I come to the determination of the right of tithes by scire facias. 1 R. 2. cap. 13. There was another statute made 1 R. 2. : it is cap. IS. for the punishing of such as indicted those that sued in the spiritual courts for subtraction of tithes, or com- pelled them to desist by bonds or otherwise; but that law being now become obsolete, and beside my pur- pose, I shall proceed to the statute of 27 H. 8. by which it is enacted, '-7H. 8.C. 20. "That every subject of England, Ireland, Wales, Calais, and the marches of the same, should according to the ecclesiastical laws and ordinances of the church of England, and after the laudable usages and customs [ 374 ] of the parishes or other places where he dwells or occupies, yield and pay his tithes and offerings, and other duties of holy church ; and that for subtrac- tion of such tithes, &.c. may by due process of the king's ecclesiastical law, convent the person, &,c. so offending, before his ordinary or other competent judge, &c. hav- ing authority to hear and determine the right of tithes, &c. And compel the party offending to do and yield their duties in that behalf. And in case the ordinary, &c. for any contempt, contumacy, disobedience, or other misdemeanor of the party defendant, shall make information to any of the king's most honourable coun- sel, or the justices of the peace of the shire where the offender dwells, to assist and aid the ordinary, &c. and to order and reform any such person, in any cause be- fore rehearsed, that then he of the king's counsel, or such two justices of the peace, whereof one to be oi the quorum, to whom such information or request shall be made, shall have power to attach, or cause to be at- tached the person, or, &-c. against whom such informa- tion shall be made, and to commit the same persons to CHAP. XXVI.] THE PARSON'S COUNSELLOR. 449 ward, there to remain without bail or mainprise until he, &c. shall have found sufficient surety to be bound by recognizance or otherwise, before the king's coun- sellor, 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 sentence of the ecclesiastical court wherein such suit, 8cc. shall depend or be. And farther gives power to the said counsellor, [ 375 ] or to two justices of the peace, whereof one to be of the quorum, to take, I'eceive, 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 Observations sorts of tithes, mixed and personal, as well as predial. "P°" ' "* ''^^* Next he that will have the benefit of this law must sue for the single value, and not for the double value upon the stat. of 2 E. 6. Thirdly, the plaintiff in the ecclesiastical court may proceed upon this act for contempt, contumacy, or mis- demeanor, as well before as after sentence. Fourthly, the security upon this act may as well be by bond as recognizance. Lastl}', observe the wary penning of this act; tliey 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 an- swered by the statute itself, it must be before such judge 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 11. 8. by which it is enacted, " that all 32 H. 8. c 7. and singular persons, &.c. shall fully, truly, and effec- tually divide, set out, yield, or pay all and singular tithes and offerings, according to the lawful custom and [ 376 ] G G 450 THE PARSON'S COUNSELLOR, [part n. usages of the parishes and places where, 8cc. and in case any person, &c. do detain or withhold any of the said tithes or offerings, or any part or parcel thereof, that then the person lay, or, &c. shrdl or may convent the person, or, &c. before the ordinary, according to the ecclesiastical laws, &,c. and so proceed to sentence according to the process and course of the ecclesiastical laws. " And thatif any party appeal against the judge's sen- tence, 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, 8cc. upon information, certificate, or complaint to them made by writing by the said ecclesiastical judge, &.c. cause the party refusing to be attached and committed to the next gaol, 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 knig to perform the said definitive sentence. " Provided that no person, or, Scc. to be sued or other- wise compelled to yield, give, or pay an}'^ manner of tithes fox any manor, lands, &.c. which by the laws or statutes of this realm are discharged, or not chargeable with, &c. tithes. r 377 ] " Provided that this act shall not extend, or be ex- pounded to give an}' remedy, cause of action or suit, in the courts temporal against any person, &c. which shall refuse or deny to set out his or their tithes, or which shall detain, withhold, or refuse to pay his tithes or of- ferings, or any parcel thereof. But that in all such cases the person or persons, being ecclesiastical or lay CHAP. XXVI.] THE PARSON'S COUNSELLOR. 451 persons, having cause to demand or have the said tithes or offerings, or thereby wronged or grieved, shall take and have their remedy for their said tithes and offer- ings in every such case in the spiritual courts, accord- ing to the ordinance in the former part of the said act mentioned, and not otherwise, any thing," &c. 1. It appears by the preamble of this law, that this Observations act was particularly designed for the relief of impro- tllte? priators, 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, 8cc. might be compelled to give security before sen- tence, 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 [ 378 ] not for the double value upon the statute 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 ec- clesiastical judge, and for no other contempt or neglect. 10. Lastly, This act restrains the suit to the eccle- siastical court upon this statute ; otherwise an action, as should seem, might have been brought at common law upon this statute for not set setting forth, &c. of their tithes. But divers defects appearing in this law, especially G G 2 452 THE PARSON'S COUNSELLOR, [part ii. to the lay impropriators, they obtained a more effectual law for their purpose in 2 E. 6. by which it is enacted, St. 2 E. 6. c. 13. « That if any person carry away his corn or hay, or other predial tithes, before the tithe thereof be set forth, or willingly withdrawn his tithes of the same, 8cc. 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 awa}^, with- drawing, letting, or stopping, shall pay double the value of the tenth or tithe so taken, lost, withdrawn, or car- ried away, over and besides the costs, charges, and ex- ' penses of the suit in the same, the same to be recovered before the ecclesiastical judge according to the eccle- siastical laws." [ 379 ] There is a proviso in this act, that gives occasion of many prohibitions, to this effect : " That no person shall be sued, or otherwise com- pelled to yield, give, or pay any manner of tithes for any manors, lands, tenements, or hereditaments, which by the laws and statutes of this realm, or by any pri- vilege or prescription are not chargeable with the pay- ment of such tithes, or that be discharged by any com- position real." Extends only to This paragraph of this statute as to the double value, predial tithes, extends only to predial tithes, as corn, hay, wood, flax, hemp, fruit, &c. but for mixed and personal tithes, there is a provision after in this act. Sole jurisdiction There is also another proviso in this statute, as in to the spiritual ^|^ former, which restrains all suits for subtraction of courts. ' tithes to be sued in the ecclesiastical court, and that it shall not be lawful to sue any withholder of tithes, ob- ventions, &c. in any other court ; and that if the ec- clesiastical judge shall give sentence, no prohibition or appeal depending, and the party condemned do not obey the sentence, that then such judges may excom- municate the party, and if he wilfully stand excom- municated by the space of forty days next after publi- cation thereof, in the parish church of the place or CHAP. XXVI.] THE PARSON'S COUNSELLOR. 453 parish, where the party excommunicated is dwelling or most abiding, then the judge ecclesiastical may certify Excommunicato the king in the Chancery, and require process of ex- "P'*^° ° 8'^^°' com. capiend. This clause extends to all manner of tithes, offerings, &c. but this gives no double damages for them, as the former cause doth for predial tithes. There is another clause in this act, that gives ground t •^^'^ 3 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. 2. c. 5. the stat. of Articuli Cleri, circumspecte agatis, sylvae caeduai, the Treatise de Regia Prohibitione, Stat. 1 E. 3. c. 10. or any of them, or to hold plea in any matter, wherein the king's 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 statute of 27 H. 8. process for contempt Observations , /> upon all the IS given before sentence. statutes. 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 arc frequently given by pro- hibitions, as shall be shewed hereafter in due place, very much frustrate the effect of the proceedings in those courts. And note, That a modus dccimandi is properly to be C 38i ] ' 1 r J 2 Inst. 490. 454 THE PARSON'S COUNSELLOR, [part ii. Noy, 81. sued for in the ecclesiastical courts; but if the pre- Latcii' 210. scription be denied, it shall be tried in a prohibition. And so having said so much concerning the eccle- siastical jurisdiction for the determining the right of tithes, and relief against subtraction of tithes, 1 shall in the next place shew, in what courts, in what cases, and in what manner, they are determinable in the tem- poral courts. Selden, 422. Mr. Selden, in his history of tithes, reckons up five the^teumoraf manner of ways, whereby the right of tithes may be courts have and determined in the temporal courts, 1. In prohibitions, the^rioiit^oT '"^ wheicby the spiritual courts are forbidden to hold plea, tithes. where matters happen which are only triable at the king's court, or where those courts proceed against any statute or the common law, 8cc. 2. By writ of right of advowson ; whereunto may be annexed the writ of in- dicavit. 3. By scire facias. 4. By process mandatory to command the payment of tithes. 5. By suits and actions upon the beforementioned statute of 2? H. 8. 32 H. 8. and of 2 E. 6. to which may be added the trials at common law b}'^ actions of trespass, assize, &c. and the proceedings directed by the statutes 7 and 8 W. 3. c. 6. 10 and 11 W. 3. c. 15. and 1 and 8 W. 3. c. 34. And of these in order. In what cases And first of prohibitions, which are frequently ob- usTd't^o'be"^ tained out of the courts at Westminster, courts of great granted, sessions in Wales, and the count}' palatines, &,c. upon these grounds following. [ 382 ] 1. Upon a modus decimandi, where the defendant in Hob. 286. 42. ^jj^ spiritual court suggests, that he and all those whose 2 Inst, 6. 10. estate he hath in the lands, &c, in which, &c. have time d 46o'b *^^ ®"^ ^^ mind paid so much yearly in money, or given Co, 2. 44. some other recompense in satisfaction of ail the tithes Modus dm- arising upon the lands, or of all the tithe hay or corn, mandi. &,c. this manner of tithing being by prescription, which is only and properly triable at common law, if pleaded, in the spiritual court or not pleaded, or allowed or not CHAP. XXVI.] THE PARSON'S COUNSELLOR. 455 allowed as a good plea, there is a ground of a prohibi- tion ; and what prescriptions and modus decimandi are Cap. 6. antea in this case approved of by the common law, I must par^"h*Noy refer the reader to the proper chapter before. 147. 2. If the bounds of a parish come in dispute, whether i^oib's 29I. the place where the tithes arise be in this or that parish, J- 1- &c, this is a matter triable by jury, and therefore upon a cro. El. 228. suggestion of this matter a prohibition will be granted. Monastery lands 3. If lands be pretended to be discharged of tithes tithes. ° by the statute of 31 H. 8. or any other statute, a pro- Atkins of Chan- hibition lies, because it properly belongs to the judges Pref' to '4 Rep. of the common law to expound all statutes, &c. so if ^-^^ supra 336. , \ , r T^ Co.Ent.450.C. the suggestion be grounded upon the statute or 2 h. 6, 453. d. Porter for barren grounds, &,c. Iv^"*;^^^'^'"'^ Tn -1 • • 1 r ^ ■ ^ ^ ^^^ 6 Jac. C. B. 4. If one sues m the spiritual courts tor the tithes of Rolls 2. 307, v. thinsrs not tithable by the common law, for which see l^: ^ ,. c 1 • 1 [• ^""^ ""' things cap. 12. before, or for the tithes 01 great woods above not tithable. twenty years growth, it is a ground for a prohibition. ^ '^^^ ^ No tithes shall be paid of heads and balks in the Littl. Rep. 13. common fields, but shall be privileged by the corn. ^ ^' 5. If a suit be brought in the spiritual court for the Roll. 2.286. f. 4. taking and carrying away of tithes, after the tithes are terminable at set forth and divided from the ninth part by the pa- common law, 38 E 3 3 rishioner, unless the suit be between two ecclesiastical ^ -mW • 1 • -I 1 -1 • • 1- . Cro. El. 228. persons in their proper riglits, a prohibition lies, because 642. it is matter triable at common law. 6. If the spiritual court will not admit a legal defence. Roll. 2. 302. q. as a release, an accord with satisfaction, an award, &,c. '9' 23, 24. v. 16. .... . . , . , 1-11 ^'"" 'Tegular or 11 the spiritual judge refuse to admit the defendant proceedings of to traverse the plaintiff's title, that he is not parson, *''^ sp'ntual vicar, 8vC. a prohibition will be granted ; but if the de- fendant in tlie spiritual court allege such matter against the plaintiff there, which is properly triable in that court, as simony, See. in such case no prohibition will be granted. 7. If the spiritual court shall disallow the proof of Cro. El. 656. the setting forth of the tithes by one witness, prohi- 6,8,9.301.1! 14, 10! 456 THE PARSON'S COUNSELLOR, [part ii. More, 909. bitions have been granted. Contra, Co. 12. 65. Ideo Hetley, 87. qujere. Disallow proof n-«i i ■ i -i • • by one witness. llierc are many more cases wnerem 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 juris- diction. [ 384 ] 3y the statute of 2 E. 6. it is enacted, that no pro- 2 E. 6. c. 13. ... . , . . Must produce a hibition shall be granted in matters of tithes in any of copy of the libel, ^j^^ king's courts, unlcss the party that requires the same bring and deliver to some of the court where he praj's such prohibition, a true copy of the libel subscribed by the hand of the party, and the suggestion under-written, and that if he do not prove that suggestion by two honest Must prove the substantial witnesses, in the same court within six witMn'sb months after the prohibition granted and awarded, then mouths. the party delayed shall have a consultation without delay, and double costs to be assessed by the court where the consultation is so granted, to be recovered in an action of debt, &c. wherein no essoin, 8cc. shall be allowed. Observations This clause of this statute seems to give the parson, HoTkins v^ ''"^'^ vicar. Sic. a double remedy where the suggestion is not Stroade, T. 5. proved within six months, that is, a consultation, and B^R. Cockeram secondly, double costs; but in both these they are in V. Davyes. sotiic mcasurc frustrated in their expectations : for as Popii. 159. ' ^o ^^^ first, after such consultation a new prohibition Jones, 231. may be obtained: and besides, there are several cases Cro. Car. 308. . • i i , • 2 Inst. 662. Wherein the party cannot or need not prove his sugges- tion, notwithstanding this statute, as where the sugges- tion is in the negative, which regularly cannot be proved. 2 Inst. 6G3. 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, &c. this appearing in the libel, a prohibition lies, and there needs no proof of the suggestion. [ 385 ] If a suiijgestion contain two matters, and the one Cobbe v. Hunt, ^'^^ ' 5 Jac. B. R. CHAP. XXVI.] THE PARSON'S COUNSELLOR. 457 ought to be proved within six months, and the other here, though the party fail in proving that part that ought within this law to have been proved, yet no con- sultation shall in this case be granted. A slight proof will serve in this case; as to say, they j^o„ 33 have known it so, or that common fame is so. And if the suggestion be proved before a judge within Noy, 30, 44. the six months, though not recorded till after, it suffices. If a man make an insufficient proof of his suggestion Littl. Rep. 185. in a prohibition, it may be supplied at any time during the six months within the statute. 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. If a man have a prohibition, and do not prove the Noj, 81. suggestion within the six months, and the defendant takes issue upon it, which is found against him, in this case the defendant shall have no costs. So upon the whole matter here is a plausible clause in an act of parliament, and little benefit by it. It is to be observed tbat some prohibitions are in in what case themselves peremptory, as where there is a suit in the prohibitions are , PI- -111 1 • peremptory in spiritual court tor thnigs not tunable, and appearing so themselves. in the libel, in which cases a consultation shall never be r ^se 1 granted : and so it is, if the suit be for carrying away tithes after they are set forth, unless it be between clergymen in their own rights: and so it is where tiie matter is determinable at common law, and the same appearing in the libel. But where a modus decimandi,a custom of not tithing, where ex post a privilege 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 peremptory till the matter of fact be tried and found true by verdict. 458 THE PARSON'S COUNSELLOR, [part ii. More, 919. Hetley, 147. How to prose- cute and defend prohibitions. [ 387 ] And note, that the reversioner may have a prohibition upon a suit against his tenant. But it is a question whether two that are sued severally in the spiritual court ma}'^ be upon the same modus joined in a prohibition. The manner of proceeding in the obtaining, pro- secuting, 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 sug- gestion be such upon which a prohibition cannot be denied, the court usually gives rule, that the party shall at a certain day come to show cause why a prohibition should not be granted, and that in the interim proceed- ings in the spiritual court should be stayed. 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 show good cause to the contrary, the pro- hibition 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 pro- hibition, or discharge the rule. But if the matter sug- gested be a good ground for a prohibition, but is in itself false or doubtful, the defendant in the prohibition may demand a declaration of the plaintiff's attorney, which is grounded upon a supposed attachment, for not obeying the prohibition ; to which the defendant may plead as counsel shall advise him, and traverse, and put in issue the matter of the said suggestion, or such other matter as counsel shall advise, which is to be tried 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 CHAP. XXVI.] THE PARSON'S COUNSELLOR. 459 consultation is awarded, tha{ is, a writ directed to the judge of tire spiritual court, authorizing him to proceed, notwithstanding the prohibition. If a man be sued in the spiritual court for the tithes [ 388 ] 1,1 . J 1 i,- • J 1- Lml. Rep. 36r. of wood, herbage, bv.c. and a prohibition granted be- cause the wood was burnt in the house, or the cattle bred for the plough or pail, the defendant may plead, that.the wood or cattle were sold, and traverse the sug- gestion. It has been made a question, whether two that are Hetley, 147. sued severally in the spiritual court, may join in a pro- hibition upon the same modus. Now by a statute made in the 50 E. 3. it is enacted, St. 50E. 3. c.4. that where a consultation is once duly granted upon a bitionraaybe prohibition made to the judge of holy church, that the had after con- . , 1 • 1 1 • r I saltation. same judge may proceed in the cause by virtue or the same consultation, notwithstanding any other prohi- bition thereupon to be delivered ; provided always, that the matter in the libel of the said cause be not ingrossed, enlarged, or otherwise changed- But this statute has been several times held to extend J°"*^«' 231. , , , , . • !• • 11 Cro. Car, 208. to such causes onJy where consultations are judicially Proph. i:)9, &c. granted upon examination of the cause, and not where they pass of course, as for want of proof of a suggestion, or upon nonsuit for want of prosecution, or where the More, 917. first was granted for want of a copy of the libel, or such like. Sometimes the court grants a consultation sub modo, Co. 5. 68. a. as where the matter of the libel is in the disjunctive, ^°' '2-^5P-44. •^ ' Consultations and as to one part the court has jurisdiction, and to the sub modo. other not, there the court may grant a consultation as to that part the spiritual court has jurisdiction of, and [ 339 ] let the proliibition stand as to the other. Or a consultation may be granted, so that the spiritual Summers v. Sir . , 1 ^^ . r R- Bulkley, court allow such plea, or such proor. T. 32. El.B.R. Note, that the six months for the proof of the sue:- f,"?'''!^* 1 . I I Hob. 1/9. gestion IS according to the calendar, and not twenty- How the six eight days to tiie month. '"""^•^* '? P™^^ '^ *' a suggestion is to be accounted. 460 THE PARSON'S COUNSELLOR, [part ii. Co. 5. 68. a. -A^nd note, ill the cases before put, the prohibition shall be general, and the consultation special, quoad, &c. Where no con- And it is taken for a rule in Sir Henry Hobart's sultation shall be Rgports, that if a prohibition be faulty, yet the defend- granted upon a ' '^ .... verdict for the ant shall never have a consultaiion, if it appear to the xi^u^t^JH^' court that the suit in the ecclesiastical court was not Hob. 300. Dyer, 171. Well grounded. P" ^' ^' And therefore where one sued for the tithe corn of sixty acres of land, and the defendant suggested it was barren ground, and paid no tithe, and prayed and had a prohibition, and the jury found that thirty acres of it I 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. Nov, 28. So if one lay a modus for the whole town, and prove it for himself only, no consultation shall be granted. More 911 ^^ ^^ ^ prohibition it was suggested, that the parson Austen V. Pigot, had twenty acres of land, and ten acres of wood in dis- ''^' ■ ■ charge 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. r „„« -, Reeularly a prohibition ou2;ht not to be srranted after [ 390 ] & , • ., 1 . • 1 • Prohibition sentence, unless it appear the sentence were obtainea in Hob^ gT^"*^^' ^^^ vacation, or by surprise, so that the party had not Noy, 70. time to pray it sooner, or upon matter arising after the Cro"''Ei.%5. sentence, and the granting or not granting rests much Hob. 67. in the discretion of the court. After consulta- -^"d SO sometimes upon new matter arising, after a tion. consultation a prohibition may be granted, notwith- standing the aforesaid statute of 50 E. 3. as where the spiritual court after consultation proceeds to try matter determinable only at law, or if after a consultation the Hob. 286. . . , M, , J * J „ t, n.r spiritual court will make an uniust decree as to award Hughes, 245. ^ ~ -r \ • • i Hill, iiJac. treble damages: and so in all cases ir the spiritual Baldiimv Judg6 ^^^'^ piocccd illegally, and against the common Geory. * law, after consultation a new prohibition may thereupon CHAP. XXVI.] THE PARSON'S COUNSELLOR. 461 be obtained, but not upon any matter alleged in the libel (126). (126) After a consultation a prohibition may be granted, if there be any material additions inserted in the libel. Earl of Clanricard v. Lady Denton, Gvvill. 363. The general grounds for a prohibition to the ecclesiastical courts are either a defect of jurisdiction, or a defect in the mode of trial. If any fact be pleaded in the court below, and the parties are at issue, that court has no jurisdiction to try it, because it cannot proceed according to the rules of the common law, and in such a case a prohibition lies. Or where the spiritual court has no original jurisdiction, a prohibition may be granted even after sentence; but where it has juris- diction, and gives a wrong sentence, it is the subject matter of appeal and not of prohibition, per Lord Kenyon, 3 T. R. 4. The following is a short summary of the reasons of grant- ing and methods of proceeding upon prohibitions. The party aggrieved in the court below applies to the superior court, setting forth, in a suggestion upon record, the nature and cause of his complaint in being drawn ad aliud examen, by a jurisdiction or manner of process disallowed by the laws of the kingdom ; upon which, if the matter alleged ap- pears to the court to be sufficient, the writ of prohibition immediately issues, commanding the judge not to hold, and the party not to prosecute the plea. But sometimes the point may be too nice and doubtful to be decided merely upon a motion ; and then for the more solemn determination of the question, the party applying for the prohibition is directed by the court to declare a prohibition ; that is, to prosecute an action by filing a declaration against the other upon a supposition or fiction (which is not traversable) that he has pi'oceededin the suit below, notwithstanding the writ of prohibition; and if, upon demurrer and argument, the court shall finally be of opinion that the matter suggested is a good and sufficient ground of prohibition in point of law, then judgment, with nominal damages, shall be given for the party complaining ; and the defendant, and also the inferior court, shall be prohibited from proceeding any farther. On the other hand, if the superior court shall think it no competent 462 THE PARSON'S COUNSELLOR, [part ii. Tlie virtue and vices of prohi- bitions. [ 391 ] Indicavit at common law. Prohibitions of themselves are excellent things, 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 often 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 Elizabeth's time, there have been a hundred granted in this last age, and they are a very great delay and charge to the clerg3% 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 de- termining 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 indi- cavit, which in itself is no other but a mere prohibition to the ecclesiastical judge; and first of the indicavit. There have been some opinions, that the writ of in- dicavit is grounded upon the statute of Circumspecte Agatis and Articuli Cleri, cap. 2. But it is very clear this writ lay at common law ; and it appears in our ground for restraining the inferior jurisdiction, then judg- ment shall be given against him who applied for prohibition in the court above, and a writ of consultation shall be awarded; so called, because upon deliberation and consultation had, the judges find the prohibition to be ill-founded, and there- fore by this writ they return the cause to its original juris- diction, to be then determined in the inferior court, 3 Bla. Com. 113. i CHAP. XXVI.] THE PARSON'S COUNSELLOR. 463 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, and of this opinion Sir Edward Coke seems to be. And Bracton, a learned judge, who wrote in the time 33 H. 6. 20. a. of H. 3. hath the very writ in his book, which was lone ^.^J. ^°}}^\ 1 c I 1 • 111 ... ° 4 E. 3, 27. b. per betore the statutes above-mentioned ; and he saith, that Markham. this writ lies, " Si contentio fuerit inter rectores de ? ^"^5" ^^^' T • 1 , . . . . ij^y fur any aliquibus decimis ; quae aestiman possunt usque ad tithes. quartam, quintam vel sextam partem advocationis. Et ^ ^f''^^] \ ultra quam partem non extenditur prohibitio, prout sibi c. 4. 402. b. Videtur." For a sixth part. But whatsoever the common law was, it was now settled by the statute of Circumspecte Agatis, and Aruculi Cleri, 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 lieth not: the statute of Articuli Cleri, c. 1. is " Si sit contentio de jure decimarum originem habens de jure patronatus, et earundem decimarum quantitas ascendat ad quartam partem bonorum ecclesiee, locum habeat regia prohibitio," that is to say, a writ of indi- cavit. And this writ iies, as hath been said, where one par- 2 Inst. 491. son demands tithes against another parson to the fourth Where the nv "^ ^ . clicavit lies. part of the value or the church or more, which comes into their churches by several patrons; for if the in- cumbents come in both by one patron, the right of the advowson cannot come in question, and by consequence this writ lies not. Suppose there be a parson with a vicarage endowed, whereof the parson is patron ; and a suit be for tithes belonging to the parson, to the value of a fourdi part of the parsonage, but not to a fourth part of the parsonage and vicarage : it should seem in tliis case, though the vicarage were derived out of the parsonage, and may again be re-united to that, nevertheless by reason of the several patrons an indicavit will lie in this case. 464 THE PARSON'S COUNSELLOR, [part ii. [ 393 ] F. N.B.45.c.b. 12 E. 4. 13. When, 2 Inst. 364. The form of this writ not altered by the statute. F. N. B. 45. b. Lies of offerings. Westm. 2. c. 5. By whom. F. N. B. 45. b. But where the same parson is patron and in- cumbent. 12 E. 4. 13. b. [ 394 ] F. N. B. 30. b. The relief of tenant in tail, purveyances, &c. 2 Inst. 364. The proceeding remitted. Regist. 36. a. 33. b. And it is to be observed, that this writ doth not lie before hbel, nor after definitive sentence ; for the part}^ that prays this w^rit, must show a copy of the hbel 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, 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 showed in pleading by the other side. And this writ lies as well for 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 Westm. 2. cap. 5. in these words, " Et cum per breve de indicavit impeditur rector alicujus ecclesiae ad petendas decimas in vicina parochia, habeat patronus rectori sic impedito breve ad petendam advocationem decimarum petitarum :" but this must be intended where the patron has the fee-simple of the advowson. And the indicavit 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 ; but the writ of right of advowson is to be sued by the one patron against the other, and the patron demandant shall allege explees taken by his incumbent of great and small tithes. But if the patron against whom the indicavit is sued 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 pro- hibitions ; and when the title of the patronage is deter- mined at the common law, then the cause must be re- mitted 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 indicavit, which is special, " Vobis prsecipimus ne placitum illud teneatis, CHAP, xxvi] THE PARSON'S COUNSELLOR. 465 donee disciissiim fdcrit in curia nostra ad quern illorum pertineat ejusdem ecclesisc advocatio." And there is a note in the register, that this writ hes of a vicarage, prebend, et ah is siniilil^us as well as of a rectory: and the form of the writ is thus; " Praecipe F. N. B. 30. c. A. quod reddat B. advocalionem decimarum quartse partis vel medietatis ecclesis," 8cc. But these writs, as well as other real actions, are grown obsolete and seldom put in practice, and there- fore thus much shall suffice of the nature and proceed- ing in them. The third manner of proceeding for the determining Sciro facias. the right of tithes at common law was by scire facias, ^^ i^-3. c. 7. which was grounded cither upon letters patent, fines, or other judicial records, of which JNlr. Selden instances Seld. Hist, de- several precedents : but this manner of trial being taken ^"'- ^^°' ^^• .1 ,• T- Tin Co. 2 Inst. 640, away by the stat. or 18 b. 3. c. 7- 1 shall say no more ^c. of it. The fourth sort of determining the right of tithes at f ^^5 ] , 1 1 A/r o I I • • Writs iiianda- common law, mentioned by iVlr. belclen, is writs man- tory. datory, 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's History of Tithes, Scld. 444, &c. 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, 1 shall leave it till the last, and proceed to show what authority is given to the temporal courts by the statute of 2 E. 6. cap. 13. being the first 2 E. 6. c. 13. 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. And it is enacted by that statute, after it has con- firmed the former statutes of 27 H.S. c. 20. and 32 U. 8. TaO;'*^ ^•''»'^' H H 466 THE PARSON'S COUNSELLOR, [part it, c. 7. that every of the king's 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, 8cc. or custom ought to have been paid, and that no person thenceforth should [ 396 ] 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 titheable of the same, before he hath justly divided or set forth the tithes thereof, the tenth part of the same, or other- wise agreed for the same tithes with the parson, Sec. 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 4 Tush 650, it was found out, 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 queen's attorney against one Wood for the treble value, as forfeited to the queen. In which case 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, proprietors, owners and farmers of tithes, as well lay as spiritual upon this statute, but being so long be- r 397 ] fore it was found out, that an action lay at common law upon this statute, the plaintiffs in the recital of the statute alleged it to be made the fourth of February, CHAP. XXVI.] THE PARSON'S COUNSELLOR. 467 2 E. 6. whereas in truth the parliament begun the first Wasiiingtou's of E.G. and was held by prorogation the fburlli of ^''P- '^'^'• February, 2 E. 6. And this being discovered by 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 judg- ment, the court upon good advisement overruled the i Brownl. lOO. exception i)y reason of the multitude of precedents, and ^ J^'^'i^'i"*!' ,-, affirmed the rule, that " muliitudo errantium pariterrori Siiie, 122. patrocinium." Vide Hardres, 343. 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 joint tenants, and they enter and occupy ♦ iiuit. 121, jointly, the action must be brought against them jointly ; l,",^"„,|„„„ .^^^ but if one only enter and occupy, the action must be asainst whom brought aiiainst him that only occupies alone. actions lie huhis OS J r _ statute. JSota, that the action lies by executors, but not against r .jyg j executors. Syderf. 83. 181. 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 parson have two parts of the tithe, and the Nov, 3, vicar a third part, and one man farms all, he may sue for all in one action. If the husband and wife in the right of the wife be Noy, 136. entitled to tithes, they shall join in this action, because ^ Bmwn. 86, the damage is to survive: but a parson and a vicar cn.. jac. ss. cannot join, but if they join in a lease to a third per- Ww, 912. son, their farmer may sue for all in one action; but in H u 2 468 THE PARSON'S COUNSELLOR, [part n. the first case, I see no reason but that the husband may bring the action alone, and so I liave known it often done. The form of the In an action brought upon this statute, the severance Tfji^r*^"!!' ^^^ alleged before the sowing, and exception taken worth, p. 1657. after verdict ; but the exception was disallowed, because ^' ' the showing of the sowing was superfluous, and so aided b}^ the verdict. Cro. Jac. 324. The taking was alleged after the defendant's term was ended, and yet held good. More,9ii. M.40 and 41 Eliz. a judgment was arrested, because the suit was brought " ad respondendum 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 forfeiture, as upon the [ 399 ] statute of Hue and Cry, &c. and I take the case inter Hetley, 121. Luvered and Owen, M. 4. Jac. C. B. for the better law, where it was held good. Hardres, 173. In an action of debt, upon the statute of 2 E. 6. a parson sued for tithe in a foreign parish, without show- ing how he was entitled to them, which was moved in arrest of judgment after verdict, notwithstanding it was held good. Another exception was, that he had not Vid.Cro. Jac. alleged that the defendant was subdit. domini regis, but ^^' likewise overruled, because he was alleged to be an occupier of lands. Cro. El. no. Upon an action brought by two upon this statute, who made their title by a lease from a patentee of the king, and exception was taken, because they did not show the patent, but disallowed. First, because the letters patent did not belong to the plaintiffs. Secondly, because the plaintiffs did not demand the tithes them- selves, but damages for a tort. Another exception was taken to the declaration, because the plaintiff alleged the defendant did not agree with theni, and did not say, or either of them, but held good by intendment. 2 Bulst. 65, And it hath been adjudged, that in this action, the i^b' ^'^86 plaintiff needs not to show his title especially, but it is CHAP. XXVI.] THE PARSON'S COUNSELLOR. 469 enough for him to allege that he is proprietor, farmer Noy, 3. or rector, generally, without showing how. Yelvert. 63. And it liath been held good, though the plaintiff in sgi] his declaration do not express the quantities or loads of 2Brown.70,7i. the corn or hay carried away. And so it is, though you do not express in your ■ [ 400 ] declaration the kinds of the grain carried away. ^ °*'^* "^' Where a man alleged, that he was farmer of all the Coke v. Smith, ., .. o"^ . ^ c ^ A ■ T\ H.7. Car. 1. 10. tithe-corn arising. Sec. upon sixty acres or land in U. 537. b. R. per and did not allege which they were in certain, and yet Latcli. allowed for good. Secondly, the plaintiff alleged the defendants occupiers, but did not say, whether jointly or in common, and yet held good. Thirdly', the plaintiff had alleged no time of the carrying away, but having alleged no time of the severance, and the carrying away, coming in with a conjunction copulative, it was held well enough. In an action brouo-ht upon this statute, the plaintiff Cro. Jac. 324. ,.,■11., , , 1- r ..• SBulslr. 144. averred in his declaration, that he was subditus dicti domini regis, having recited the statute, and it was held naught, because it must necessarily be intended E. 6. and not of the present king. In an action upon this statute the defendant pleaded Pleas in this a recovery in the ecclesiastical court ; but it was held por""^ v. jio good plea at common law; but I conceive it would Rochester, , 11 1 ] 1 . 1 I 1 a • Hill,9jac.B.R. be a good evidence upon ml debet pleaded, otherwise the parishioner were in an ill condition. In this action non culp. and non debet have been both Wortley v. Em- held good issues, but it is no good plea to plead, that 42 h'^^b^'r' ihe plaintiff sowed the corn, and sold it to the defend- Hob. 218. ant, because this matter will not excuse the payment of Cm jac.'sGi tithes. More, 914. Now having brought the cause to issue upon nil [ ^^^ 1 debet or non culp. we will show in the next place, what will be good and material evidence, as well for the plaintiff as defendant. First, if the plauitill be a parson, vicar, or other Whatcvldence ecclesiastic, and have not been some considerable time thi's^actloii^e" in possession of his living, in which I have not observed parte quer. 470 THE PARSON'S COUNSELLOR, [part ii. 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 plaintiff's title, unless some material objection be made against it to draw it into question; but if the plaintiff have been put 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 j)rove, 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 Lord's day, during divine service, he read the thirty-nine articles of religion in the parish [ 402 ] 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 montlis after actual possession of his living, he read morning and evening prayer in his church upon some Lord's day, and openly and publicly before the congreofation declared his assent and consent to the use of all things therein contained and prescribed, in these words: " 1, A. B. do here declare my unfeigned assent and consent to all and every thing contained and pre- scribed in and by the book, intituled, Tne Book of Common Prayer and Administration of the Sacraments, and other Rites and Ceremonies of the Church, accord- ing 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 and manner of making, or ordaining and consecrating liishops, Priests and Deacons" (127). (127) In an action for subtraction of tithes, proof of the defendant's former acknowledgment of the i)laintifi 's title to CHAP. XXVI.] THE PARSON'S COUNSELLOR. 471 The parson, vicar, &c. liaving thus made himself a title, must proceed to prove the taking and carrying away the corn, hay, &c. and the value; and, if need he, that the land lies within the parish, &c. but this the judges put them to prove first of all commonly. But if the plaintiff he 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 con- troverted, the judges seldom put the plaintiflf to show any more title but his bare possession and enjoyment, [ 403 ] and that others pay him tithes. -And so having showed what is necessary the plaintiff should be prepared to prove, I will proceed to show^ what defence the defendant may make. The defendant upon the general issue of not guilty, Ex parte de- &c. may prove that he duly set forth his tithes; but if Brown, l! 34. 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, cuts and carries it away, the action lies against the first owner: the same law is, 2 Inst. 64.9. where the owner of the land privately sell his corn to another, who privately cuts and carries it away. If there be two farmers sue, and the defendant pleads ^^^'■'^> ^i^- nil debet, and upon the trial prove an agreement with one of them, this shall bind his companion. And the defendant may prove that another has a better title to whom he has paid his tithes, or com- pounded with him for them. the tithes is sufficient evidence as against the defendant a wrong-doer, Philipps's Ev. 181., and in a suit for tithes in the spiritual court, where the defendant pleaded that the plaintiff had not read the thirty-nine articles, the court put the de- fendant to prove the fact, though a negative ; upon which he naoved the court of King's Bench for a prohibition, but it was refused. Ibid. 158. Fifteen jears possession of a benefice was held to he prima facie evidence of a regular induction, and having read the thirty-nine articles. Chapman v. Beard, Gwill. 1482. 472 THE PARSON'S COUNSELLOR, [part u. Or he may prove, that the piusou came in by simony, uL the reporter reports it with a (juod mirum. Where the king's copyholder pleaded a modus, it Lane, 39. must be tried in the exchequer, and for this cause a prohibition was granted. It is evident in our books of law, that the right of 50E. 3. 20. tithes were frequently determined at common law in 2011.6.17. actions of trespass for taking away of tithes, unless both ' H. 6. 5. parlies were clergymen; and sometimes assizes have 44 Ass! p. '2.. been brought at common law for tithes between lav [ ^^'^ 1 ^' 3s K 3 5 persons. And it is held in the 25 H. S. that where the 22 E. 4 21. lord of a manor claimed tithes in consideration of find- 2,5 H. 8. I'.r. , , . . , , , , ... Jurisdiction, 95. ing a clui|)lain at such a chapeJ, and the parishioners claimed tlieiii likewise u[)on the same consideration, THE PARSON'S COUNSELLOR, [part ir. [ 407 ] that the right of these tithes being between hiy persons was triable at common law only. And at this day, if tithes be once set forth and divided from the nine parts by the owner of the corn, and any person that has not right to them carries them away; the suit for this trespass must be in the temporal, and not in the spiritual. And by the statute of 32 H. 8. it is enacted, that in all cases where any person, 8ic. which then had, or then after should have any estate of inheritance, freehold, &c. in or to any parsonage, vicarage, portion, pension, tithes, oblations, and wliich then were, or then after should be made temporal, or admitted to be, abide and go to, or in temporal hands and la}' 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, seisin, possession, oc- cupation, term, right or interest, of, in, or to the same, or, &,c. by any other person, or, &c. claiming or pre- tending to have interest or title to the same, that then, and in every such case, h,c. the person, &c. so disseised, &c. the heirs, wives, &c. shall and may have their remedy in the king's temporal courts, and other temporal courts, as the case shall require for the recovering, &c. such inheritance. Sec. by vvrits original of. Quod ei deforceat, praecipe quod reddat, assize, &c. as the case shall re- quire, &.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 de- terminable at the common law ; and all manner of real actions, ejectments, and other personal actions, are brought there as the case requires daily. There w-as a bill exhibited by a vicar in the exchequer, and the vicar who was plaintiff did not show how the tithes he sued for became due, whether by prescription or endowment, and cxceptii)n taken to it at the hearing; but because the defen(l;int had admitted the plaintiff vicar, and tliat the tithes were due and insisted upon CHAP, xxvi] THE PARSON'S COUNSELLOR. 475 ihe payment, the exception was overruled, but the book allows it to have been a good cause of demurrer. And vet H. 15. Car. 2. inter Stone and Ludlow, such Hardrcs, rJSi, a bill upon demurrer was held good. Ideo quajre. An English bill was exhibited in the Exchequer for Hardres, \32, the tithe of houses in London, to have a discovery of the improved rents, and the defendant alleged a modus, and exception taken to the answer because the de- [ ^3 ] fendant did not discover the rents ; but the court held that the modus being aHeged by way of answer, the defendant ought to answer all the bill, and discover the rents; but if he had alleged it by way of plea, he had not [)et'n bound to answer any other part of the bill ; and if the plea were overruled, then the defendant should answer interrogatories to the particulars. In a bill in the excheque\' for tithes, the plaintiff' Hardres, 190. did not allege, tliat he was content with the single value according to the common form, and for that cause was demurred to and overruled, because this court had jurisdiction before the stat. of 2 E. 1. was made (139). (129) In a bill, where the waiver of the double penalty was omitted altogether, and which only prayed an account of the single value of the tithes, the court held the omission to be immaterial, and that the waiver, though not express, was implied. Wools v. VValley, Gwill. 1383. The court will not dismiss the bill of a vicar who claims by it tithes throughout a whole parish, and only proves his claim in part of it, on that ground ; nor if the issues, directed as to the parts wherein he has not made out liis title, should be found against him on the trial. CunlifFe v. Taylor, 3 Price, 23 1 . Wood. B. dissentiente. But although a defendant may in equity insist on several species of defence, provided they be consistent, if he under- take to prove a general exemption, and prove merely one which is partial, he cannot have the benefit of the latter. Leigh v. Maudsley, Bunb. 29a. The difference of practice in suits for tithes between the courts of Exchequer and Chancery is, that in the former the 476 THE PARSON'S COUNSELLOR, [part ii. account is decreed up to the time of filing the bill, in the latter up to the time of the master's report. 3 Atk. 591* Bell V. Read, Gwill. 804. In order to sustain a bill for tithes, a layman need only state, that he is entitled to them, and need not state, that he is seised of the impropriate rectory. Lowther v. Bolton, Gwill. 1120. Crayhorne v. Taylor, 2 Gwill. 650. A rector claiming tithes out of his parish is bound to make out his case satisfactorily, for he is not standing on his com- , mon-law right; where, therefore, a money payment has been long acquiesced in, even alter a verdict obtained by a former rector in his favour, the court would only direct an issue, and not a commission, to asce; tain the boundaries of such extra- pisrochial lands, before there had been a previous in- quiry whether the piainlitf wa,', entitled to any. Sanders v. Longden, 4> Price, 1 If. A rf ctor seeking to reclaim tithes of which a vicar has been once endowed, is bound to make out his case by clear and j atisfactory evidence. Proof of payment of tithes of seeds to the rector will not alone affect the right of the vicar, on account of the prevailing erroneous notion that seeds are a great tiihe. Dorman v. Curry, 4 Price, lOp. And the rector coming to question his own grant is not entitled to an issue as matter of right. Ibid. Terriers are instruments frequently adduced as evidence in cases of tithes, and, as is observed by C. B. Macdonald, " are well known in the law. By the canons it is directed, that an inquiry shall be from time to time made of the tem- poral rights of the clergymen in every parish, and returned into the registry of the bishop, the proper guardian of those rights, for his informatiDU. That return is called a terrier, and has authenticity from being found in the proper place. Then this paper, purporting to be an instrument taken no- tice of in the law, must stand or fall according as it has the requisites of such instrument to render it authentic." Miller v. Foster, at Warwick Sum. Ass. 1794. The proper repository is the registry of the diocese, or a copy from the parish registry may be adnaitted, if the original cannot be iound. Atkins v. Matton, (}uill. 1406. A terrier from the archdeacon's registry is also admissible. Potts v. Durant, 4 Gwill. 1450. A paper purporting to be a terrier found in the charter chest of a college, which had property in the CHAP. XXVI.] THE PARSON'S COUNSELI-OR. 477 In a bill in the exchequer for tithes, the defendant Hardres, 322. pleaded that the lands out of which the tithes arose belonged to such a monastery, which was discharged from payment of tithes by their order, but did not sliow of what order the monastery was, and yet held good. Vide Stat. 1 and 8 W. 3. c. 6. 10 and 1 1 W. 3. c. 15. and 7 and 8 W. :i. c. Si^. And now having showed in how many courts, 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 herself when the huntsmen came, parish, was thought to be inadmissible to disprove a modus. 4 Gwill. 1406. In some cases a terrier has been admitted though not brought from one of the regular repositories. Thus a terrier found in the registry of the dean and chapterof Litchfield was admitted to be evidence against one of the prebendaries. Miller v. Foster, 4 Gwill. l^JOS. n. A terrier is strong evidence against the parson; but it is never ad- mitted for him unless it be signed by a churchwarden, or (if the churchwardens are nominated by him) by some of the substantial inhabitants of the parish. Earl v. Lewis, 4 Esp. N. P. C. A terrier, ihougli not signed by the impropriate rector, nor by any person for him, is evidence against him, as to tithes claimed by him in the parish. Potts v. Durant, Gwill. 1450. Old terriers, recording that tithe of hay is payable in kind, signed by the rector, churchwardens, overseers, and some of the resident parishioners, are good evidence to rebut a pre- sumption of a farm modus attempted to be estabhshed by proof of a money payment having been uniformly rendered within living memory, and the absence of any evidence, even of reputation, that the tithe had ever been taken in kind, and that although such terriers are not proved to have been signed by any person interested in the farm. Mytton V. Harris, 3 Price, \Q. Terriers are generally signed by the minister of the pa- rish ; but this does not appear to be essentially necessary. Ibid. 478 THE PARSON'S COUNSELLOR, [part n. 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 [ 409 ] their costs of suits at common law, where ihey might not be interrupted by prohibitions, and clashing of ju- risdictions, and tossed from one court to another, than all these ways 1 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 assize; but this I humbly submit, as I do all the rest, to better judgments (130). (130) A summary'method of recovering small tithes under the value of forty shillings, was given by statute 7 and 8 W. 3. c. 6. by complaint to two justices of the peace: and by another statute of the same year, the same remedy was ex- tended to all tithes withheld by quakers under the value of ten pounds. By the 7 and 8 W. 3. c, 6. it is enacted, " That all persons shall well and truly set out and pay all and sin- gular the tithes, commonly called small tithes, and compo- sitions, and agreements for the same, with all offerings, obla- tions, and obventions to the several rectors, vicars, and other persons to whom they shall be due in their several parishes, according to the rights, customs, and prescriptions, com- If small tithes monly used within the said parishes respectively : and if any are not paid person shall subtract or withdraw, or any way fail in tlie true within 20 days '^ ,. , n ■ ■ ,v • i i .• i after demand payment of such small tithes, ofienngs, oblations, obventions, or compositions by the space of twenty days at most after CHAP. XXVI.] THE PARSON'S COUNSELLOR. 479 demand thereof; it shall be lawful for the person to whom it shall be law- the same shall be due, to make his complaint in writing to ful to complam . , . , >^ to two justices two or more justices or the peace within that county, place, not interested. or division where the same shall grow due, neither of which justices is to be patron of the church or chapel whence the said tithes shall arise, nor any ways interested in such tithes, ofFt^r- ings, oblations, obventions, or compositions aforesaid. S. 1. " And on such complaint the said justices shall summon Who may sum- in writing under their hands and seals, by reasonable warn- mon the parties 1 . ^ 1 1 I • 4. I 11 complained of, ing, every such person aganitt whom such complamt shall and on default be made; and after his appearance, or, upon tiefault of ap- of appearance pearatice, the said warning or summons beintj proved before ^^''trniine the , , , •, • ■ . ,. , , , conipiamt and them upon oath, the said justices shall proceed to hear and give allowance determine the said complaint, and upon the proofs, evidences, "''^ costs not , . . , II,- 1 1 11 • • • exceeding 10s. and testimonies produced before them, shall, in writing un- der their hands and seals, adjudge the case, and give such reasonable allowance and com[)ensation for such tithes, ob- lations, and compositions so subtracted or withheld as they shall judge to be just and reasonable, and also such costs and charges, not exceeding ten shillings, as upon the merits of the case shall appear ju^-t. S. 2. " And if any person shall refuse or neglect, for the space On refusal to of ten days after notice given, to pay or satisfy any such P^^ '" ".^ "'^J^ "' o ' r J J J after notice, the sum of money, as upon such complaint and proceeding shall constables, &:c. by two such justices be adjudyed as aforesaid ; in every "''*.v fl'strain, , , , , 1 I " 1 1 ,1 -1 and after 3 days such case the constables and churchwardens or the said pa- sell the same, rish, or one of them, shall, by warrant under the hand and and satisfy the seals of the said justices to them directed, distrain the goods s"raa":'c''a'-S*'''' J . . * rendering the and chattels of the party so refusing or neglecting as afore- overplus. said : and after detaining them (not less than four days nor more than eight, 27 G. 2. c. 20.) in case the said sum so adjudged, together with reasonable charges of making and detaining the said distress, be not tendered or paid by the said party in the mean time, shall make public sale thereof, and pay to the party complaining so much of the money arising by such sale, as may satisfy the said sum so adjudged, re- taining to themselves such reasonable charges for making and keeping the said distress as the said justices shall think fit (and also deducting their reasonable charges of selling the said distress: returning the overplus, if any shall be, to the owner upon demand. 27 G. 2. c. 20.) S. 3. 480 THE PARSON'S COUNSELLOR, [part ii. J II slices to arl- " And the said justices shall have power to administer an iniiusteranoulli. nntU C a Not to extend to " Provided that this act shall not extend to any tithes, ob- Loiidon, or any lations, payments, or obventions, within the city of London ii'ace otherwise im ,• ^i r ^ .\ •,. .. settled bv act of ^^ liberties thereot ; nor to any other city or town corporate, l>arliament. where the same are settled by act of parliament. S. 5. No complaint to " -^"^^ "^ Complaint shall be heard and determined by the be heard unless said justices, unless the complaint shall be made within two made witliiii years next after the times that the same tithes, oblations, ob- iwo years. •' ventions, and compositions did become due. S. 6. Persons acfjricv- " Provided also, that any person findino himself aggrieved cd to appeal to by any judgment to be given, to two such justices, may ap- w'bo^are 't'o^de- P^^^ *^ *^^ rxGKt general quarter sessions for that county, or termine tlie Other division ; and the justices there shall proceed finally matter. j.^ j^g^r and determine the matter ; and to reverse the said If judgment be judgment if thc}^ shall see cause ; and if they shall find cause confirmed, jus- to Confirm the said judgment, they shall decree the same by co^ts order of sessions, and shall also proceed to give such costs against the appellant, to be levied by distress and sale of the goods and chattels of the said appellant, as to them shall seem No judEment to j"st and reasonable. And no proceedings or judgment had be removed un- by virtue of this act, shall be removed or superseded by any writ of certiorari, or other writs out of his majesty's courts at Westminster, or any other court, unless the title of such tithes, oblations, or obventions shall be in ques- tion. S.7- Persons com- " Provided that where any person complained of for sub- plained of in- tracting or withholding any small tithes or other duties afore- sistingonany j^ j j, ^^^ ^j justices to whom such complaint is composition, &c. ' ' J _ _ ' and giving se- made, insist upon any prescription, composition, or modus cunty to pay decimandi, agreement, or title, whereby he ought to be freed costs 111 slices ' o ' ' JO notiogivejudg- from payment of the said tithes, or other dues in question, nient. and deliver the same in writing to the said justices sub- scribed by him ; and shall then give to the party complaining reasonable and sufficient security, to the satisfaction of the said justices, to pay all such costs and damages as upon a trial at law to be had for that purpose in any of his majesty's courts having cognizance of that matter shall be given against him, in case the said prescription, composition, or modus decimandi shall not upon the said trial be allowed; in that case the said justices shall forbear to give any judg- less the title be in question. CHAP. XXVI.] THE PARSON'S COUNSELLOR. 481 ment in the matter; and tlien and in such case the party And complain. complaining shall be at liberty to prosecute such person for ant nuiy pro- his said subtraction in any other court where he mijiht have *^f""^ '" ^"J , . o other court, sued before the making of this act. S. 8. " And every person who shall by virtue of this act obtain Judgment to be any judgment, or atjainst whom any iudgment shall be ob- '"™'J"1 ^t ^^^ ^ ■ , ? r ■ ■ /• I -^ •> ^ . next sessions by tamed, before any justices or tlie peace out or sessions, for the clerk of tlie small tithes, oblations, obventions or compositions, shall F"ce, cause or procure the said judgment to be inrolled at the next general quarter session to be held for the said county or other division ; and the clerk of the peace shall upon the tender thereof inroll the same, and shall not receive for the inrollraent of any one judgment any fee or reward exceeding one shilling ; and the judgment so inrolled, and satisfaction made by paying the sum adjudged, shall be a good bar to ,, , 111-1 . * ' ° and to bar vicars conclude the said rectors, vicars, and other persons, from iVom any otiier any other remedy for the said small tithes, oblations, ob- "■'"I'^'^y' ventions or compositions, for which the said judgment was obtained. S. Q. *' And if any person against whom such judgment shall Persons remov- be had, shall remove out of the county or other division '"g'J^J'-i'cismay \ r 11- PI Til,.. , certitv tlicjiidg- betore the levying or the sum adjudged; the justices who ment, rind other made the judgment, or one of them, shall certify the same i'ls'i^^i's by war- under hand and seal to any justice of such other county or itl" sum^ad'^*^ place wherein the said person shall be an inhabitant; who judged, shall by warrant under his hand and seal, to be directed to the constables or churchwardens of the place, or one of them, levy the sum so adjudged to be levied upon the goods and chattels of such person as fully as the said other justices might have done. If he had not removed as aforesaid. S. 10. " And the justices who shall hear and determine any of Justices may the matters aforesaid, shall have power to give costs, not ^"''' *^','.'*^' "?' ' ' fc > exccednig \0f. exceeding ten shillings, to the party prosecuted, if they shall find the complaint to be false and vexatious, to be levied in manner and form aforesaid. S. 12. " And if any person shall be sued for any thing done in the if the plaintiS" execution of this act, and the plaiiuifi'in such suit shall dis- be nonsuit, per- continue his action, or be non-suit, or a verdict pass against double ws"!!^''^ him, such person shall recover double costs, S. 13. c •. r •• u . ' buits for tnhes " Provided that any clerk or other person, who shall begin not exceeding any suit for recovery of small tithes, oblations, or obven- ;^0s- to have no •' benefit bv this 1 I act. 482 THE PARSON'S COUNSELLOR, [part h. If quakers re- fuse to pay tithes, 6lc. justices, on stat- ing what is due, may compel them thereto if the sum be under 101. Persons ag- grieved may ap- peal to the quarter sessions, who are finally to determine. If judgmejit be confirmed, to give costs. No judgment to be superseded by certiorari. tions, not exceeding the value of forty shillings, in his ma- jesty's court of exchequer, or any of the ecclesiastical courts, shall have no benefit by this act for the same matter for which he hath so sued. S. 14, (made perpetual by 3 Ann. c. 18.) " By Stat. 7 and 8 W. 3. c. 34. whereas by reason of a pre- tended scruple of conscience, quakers do refuse to pay tithes and church rates; it is enacted, that where any quaker shall refuse to pay or compound for his great or small tithes, or to pay any church rates, it shall be lawful for the two next justices of the peace of the same county (other than such justice as is patron of the church or chapel whence the said tithes shall arise, or any ways interested in the said tithes), upon the complaint of any parson, vicar, farmer, or proprietor of tithes, churchwarden or churchwardens who ought to have, receive, or collect the same, by warrant under their hands and seals, to convene before them such quaker or quakers neglecting or refusing to pay or compound for the same, and to examine upon oath (or affirmation, in case of the examination of a quaker), the truth and justice of the said complaint, and to ascertain and state what is due and payable; and by order under their hands and seals, to direct and appoint the payment thereof, so as the sum ordered do not exceed ten pounds : and upon refusal to pay according to such order, it shall be lawful for an)' one of the said justices, by warrant under his hand and seal, to levy the same by distress and sale of the goods of such offender, his executors or administrators, rendering only the overplus to him or them, the necessary charges of distraining being thereout first deducted and allowed by the said justice. " And any person finding himself aggrieved by any judg- ment given by such two justices, may appeal to the next general quarter sessions to be held for the county, riding, city, liberty, or town corporate, and the justices there shall proceed finally to hear and determine the matter, and to re- verse the said judgment, if they see cause ; and if they shall find cause to continue the said judgment, they shall then decree the same by order of sessions, and shall also proceed to give such costs against appellant, to be levied by distress and sale of the goods and chattels of the said appellant, us to them shall seem just and reasonable. And no proceedings CHAP. XXVI.] THE PARSON'S COUNSELLOR. 483 or judgment had by virtue of this act shall be removed or superseded by any writ of certiorari, or other writ, out of his majesty's courts at Westminster, or any other court whatso- ever, unless the title of such tithes shall be in question. S, 4. " Provided, that in case anj-^ such appeal be made as Xo distress till aforesaid, no warrant of distress shall be granted until after appeal be deter* such appeal be determined. S. 5. mmed. "And by the 1 G. 1. st. 2. c .(). the like remedy shall be had Clause extend- against any quaker or quakers for the recovery of any tithes '"" '^° ^^^^^' * ■* ^ J J (jygj Qp pay- or rates, or any customary or other rights, dues, or pay- ments belonging ments, belonging to any church or chapel, which of right by '» ^"y cimrcli law and custom ought to be paid for the stipend or mainten- '^ '^^^ ' ance of any minister or curate officiating in any church or chapel ; and any two or more justices of the peace of the same county or place (other than such justice as is patron of any such church or chapel, or any ways interested in the said tithes), upon complaint of any parson, vicar, curate, farmer, or proprietor of such tithes, or any churchwarden or chapel- wardens, or other person who ought to have, receive, or col- lect any such tithes, rates, dues, or payments as aforesaid, are authorised and required to summon, in writing under their hands and seals, by reasonable warning, such quaker or quakers against whom such complaint shall be made ; and after his or their appearance, or upon default of appear- ance, the said warning or summons being proved before them upon oath, to proceed to hear and determine the said complaint, and to make such order therein as in the afore- said act is limited ; and also to order such costs and charges as they shall think reasonable, not exceeding ten shillings, as upon the merits of the cause shall appear just; which order shall and may be so executed, and on such appeal may be reversed or affirmed by the general quarter sessions, with such costs and remedy for the same ; and shall not be re- moved into any other court, unless the titles of such tithes, dues, or payments, shall be in question in like manner as by the aforesaid act is limited and provided. S. 2. *' Now by 53 G. 3. c. 127. two or more justices of the Justices of ppaca peace are authorised and required to hear and determine all "i>y determine complaints touching tithes, oblations, and compositions sub- specUitl^tihes tracted or withheld, where the same shall not exceed ten not exceeding pounds in amount from any one person in all such cases, '*"''" 112 484 The conclusion of the whole. [ 410 ] THE PARSON'S COUNSELLOR, [part ii. I have now finished this small tract, whereb}' I wish the reverend clergy may receive as much satisfaction as I desire, 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 other- wise, that every clergyman may satisfy himself without farther inquiry, 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 from the payment of tithes. And in the list followins; 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 Provision as to quakers neglect- ing to pay tithes, &c. ex- tended to any sum not exceed- ing fifty pounds. and by all such means, and subject to all such provisions and remedies by appeal or otherwise, as contained in the stat. 7 and 8 W. 3. s, 1. touching small tithes, oblations, and compositions, not exceeding forty shillings, and one justice shall be competent to receive the original complaint and to summon the parties to appear before two or more jastices of the peace : and by the same statute, s. 6. the provisions of the Stat. 7 and 8 VV. 3. c. 34, s. 4. and stat. 1 Geo. 1. st. 2. c. 6. s. 2. are extended to any value not exceeding fifty pounds, and one justice is made competent to receive the original complaint, and to summon the parties to appear before two or more justices." In conclusion it mixy not he superfluous to make one ob- servation on tlie title of this work. The word " parson," although at first sight it may convey with it associations of a disrespectful nature, in consequence of a familiar, clownish, and indiscriminate use, (to adopt the language of Black- stone) is a synonymous word for " rector," and is the most legal, honourable, and beneficial title, that a parish priest can enjoy, because such a one, observes Sir Edward Coke, and he only, is said vicem seu personam ecclesite gerere. rHAP, XXVI.] THE PARSON'S COUNSELLOR. 485 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 privileged 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 reign 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 began to slack ; and in the ninth of H. 3. the Magna Charta. statute of mortmain v/as made, after which you will find but few religious houses (as they were called) founded. The Cistertian order came into England about the Dugdale, 145. year of our Lord 1128, and in the ensuing table you Stow's Survey , 11 I J ^1 4. • 1 . of London, 930. may see how well they prospered, that m so sliort a time there should be so many of the greater abbeys of that order; but it should seem this order began sooner. See Monasticon Angl. li. 1. p. 695. m. 1098. The black canons regular of St. Augustine first came [ 4il ] into England, as Mr. Stow says, in the year 1108, and were first placed in Trinity Church, within Aldgate, London. But I rather think he is mistaken in the time, for 1 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 mo- nasieries, especially those of privileged orders, tended very much to the prejudice of the secular clergy that had the cure of souls ; for besides the orders they were privileged, 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 488 THE PARSON'S COUNSELLOR, [part ii. Endowment of endowed no vicarages at all upon the appropriating vicarages. cliurches, or so nieanl}^ that the vicars could not live upon them, and no hospitality was 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 15R. 2, c. 26. the church, in the 15th year of the reign of King Richard the Second, made a law, " That the diocesan of the place where any church was to be appropriated, should take care the vicarage should be well and suf- Palraer'sRep. ficiently endowed, besides a portion to the poor." But 219- this act not having the effect was desired and expected, r 412 ] the bishops of those times being over-awed by his ho- liness's mandates, or participating too much of his qualities, a second good act was made in the 14th 14 H. 4. c. 12. year of King Henry the Fourth, whereby it is enacted, " That all those appropriations that were made since the former statute without such endowments, were de- clared to be void. And that no religious person (that is, monks and friars) should be made vicar in any church appropriated or to be appropriated by any means in time to come, and that no vicarage should be appropriated by these statutes, and divers other statutes cited in this work upon several occasions." It is easy to guess what opinion they had, even in the times of popery, of these people called religious men. 1 have now made too long a digression; and will therefore proceed to the catalogue I promised the reader. A CATALOGUE Of the several monasteries, that upon the general survey taken in the 26th year of H. 8. were returned to be of the annual value of 200l. per annum and upwards within England and Wales, and by consequence dis- solved by the statute of 31 H. 8. and by that means are capable of being discharged of the payment of tithes ; with the date of their foundations, as near as I can compute, with what orders they were of. In which observe, that A. stands for Abbey, P. for Priory, Ben. for Benedictines, Cist, for Cistertians, Preem. for Prajmonstratenses, Car. for Carthusians, C. S. A. for Canons of St. Austin, F. for founded, T. for Tempore ; and in the valuations I have re- jected all ob. and q. Berks. £. s. d. Reading, Ben. F. T. H. 1. - 1938 14. 3 Bushelham, A. C.S.A. F. 13 E. 3. - 285 11 Abingdon, A. Ben. F. 720. - - 1876 10 9 Bedford. Newnham, P. C.S.A. T.H.I. - 293 5 11 Elmestow, A. Ben. F. T. W. Conquest 284 12 11 Wardon, A. Cist. F. 4 Steph. 1138 - 389 16 6 Chicksand, P. White C. Gibertines, F. T. W. Ruf - - - 212 3 5 Dunstable, A. C.S.A. F.T. II. 1. - 3M 13 3 Woeburn, A. Cist. F. T. Johannis Regis 391 18 2 Bucks. Ashrugge, Coll. C.S.A. F.T. E. 1. 416 16 4 Noteley, A. C.S.A. F. T.H.I. 1112 437 6 8 Missenden, A. Ben. F. 1293 - - 261 14 6 488 THE PARSON'S COUNSELLOR. , Cantabr. £. s. (I. Thorney, A. Ben. 1^912 - - 411 12 11 Barnwel, P. C.S.A. F.T.H. 1.1092 256 11 10 Ely, P. Ben. ab. 970 - - 10S4 6 9^- Cestr. S. VVerburge, A. Ben. F. 1095 - 1003 5 11 Combermeere, A. Cist. F. 1134 - 225 9 7 CORNUB. Bodmin, P. C.S.A. F. 936 - - 270 Oil Launceston, A. C.S.A. T. W. Conquest 354 11 St. German's, A. C. S. A. F. T. Etbel- stani Regis. - - - 243 8 CUMBR. Carlisle, p. C.S.A. F. T. W. Ruf. - 418 3 4 Holmcoltrum, A. Cist. F. 1135 - 427 19 3 Derb. Darley, A. C.S.A. F. T. H. 2. - 258 14 5 Devon. Ford, A. Cist. F. 1133 - - 374 10 6 Newham, A. Cist. F. circa 1246 - 227 7 8 Dinkswcl, A. Cist. F. 1201 - - 294 18 6 Hertland, A. C. S. A. F. T. H. 2. - 306 3 2 Torre, A. Prsem. F. T. R. 1. - - 396 2 Buckfast, A. Cist. F. T. H. 2. - 466 11 11 Plimpton, A. Cist. F. T. K I. - 241 17 9 Tavestock, A. Ben. F. 961. - - 902 5 7 Exon, P. Cluna. F.T.H. 1. - - 502 12 9 Bockland Monachorum or Buckland, A. Cist. 1278 - - - 241 17 91 Valuation of Plimpton - - 912 12 8|. DORCET. Abbotsbury, Ben. F. circa 1016 - 390 19 2 Middleton, A. Ken. F. per R. Ethelstan 578 13 11 THE PARSON'S COUNSELLOR. 4S9 Tanent, A. Cist. F. per H. 3. Shafton, A. Ben. F. 941 Cerne, A. Ben. F. T. R. Edgari Sherborne, A. Ben. F. circa 370 DUNELM. St. Cuthbert, A. Ben. F. circa 824- - Tinmouth, P. Ben. F. - - Essex. Berking, A. Ben. F. 680 - Stratford Langthorn, A. Cist. F. 1135 Waliham, A. C.S.A. F. circa 1060 Walden, A. Ben. F. 1 1 36 St. Oswith, A. C.S.A. F. 1120 Colchester, A. C.S.A. T.H.I. Coggeshall, or Coxhall, Cist. 1142 Glouc. Bristol, A. C.S.A. F. circa T. H. 1. Hales, A. Cist. F. 1246 Winchcomb, A. Ben. F. 787 - Tewsbury, A. Ben. F. 715 Cirencester, A. C.S.A. F. T. H. 1. Kingswood, A. Cist. F. 1139 - Gloucester, A. Ben. F. 680 - Lanthony, P. juxta Glouc. C.S.A. F. 1136 Hants. St. Swithins Winton, A. Ben. F. 634 Hyde, A. Ben. F. per Regem Elfred Whervvel, A. Ben. F. T. Edgari Reg. Romsey, moniales, Ben. F. 907 Twinham, P. C.S.A. F. ante 1042 - Bello loco, A. Cist. F. 1204 - Southwick, P. C.S.A. F.T. H.L - Tichfield, A. PfEem. F. T. H. 3. £. s. d. 214 7 9 1166 8 9 515 17 10 682 14 7 1366 10 9 397 10 5 862 12 5 511 16 3 600 4 3 772 18 1 677 1 2 523 17 251 2 670 13 11 357 7 8 759 11 9 1598 1 2 1051 7 1 244 11 3 1946 5 9 648 19 11 1507 17 2 865 18 339 8 7 393 10 10 S12 7 326 13 2 257 4 4 249 16 1 490 THE PARSON'S COUNSELLOR. Hertford. £. s. d. St. Albans, A. Ben. F. 755 - - 2102 7 1 Hunts. St. Neots, A. Ben. F. circa T. H. 1. 241 11 4 Ramsey, A. Ben. F. 969 - - 1716 12 4 Kant. St. Austins prope Cant. A. Ben. F. 605. 1413 4 11 Led is, P. C.S.A. F. 1119 - - 362 7 7 Feversham, A. Clun. F. 1 147, per R. Steph. - - - 286 12 6 Boxley, A. Cist. F. 1144 - - 204. 4 1 1 Roffen, A. Ben. F. 600 - - 486 1 1 5 Mailing, A. Ben. per Regem Edm. - 218 4 2 Dertford, A. C S. A. F. 49 E. 3. per ips. R. 380 Canterbury, Ch. Ch. P. Ben. Ab. 600 2349 8 5|. Lanc. Whaliey, A. Cist. F. 1172 - - 321 9 1 Leic. Leicester, A. C.S.A. F. 1143 - 951 14 5 Croxden, A. Praein. circa T. R. 1. Reg. 385 10 Launda, A. C.S.A. F. T. W. Ruf. 399 3 3 Lincoln. Lincoln, St. Cath. P. Gilbert, F.T. H. 2. 202 5 Kirksteed, A. Cist. F. 1139 - - 286 2 7 Revesly, A. Cist. F. 1142 - - 287 2 4 Thornton, A. C.S.A. F. 1139 - 594 17 10 Bardney, A. Ben. F. 712. - - see Q \ Croyland, A. Ben. T. Reg. Ethelred,716 1803 15 10 Spalding, A. Ben. F. 1052 - - 761 8 11 Sempringham, A. Gilb. F.1148, 14Steph. 317 4 1 Epworth moniale, Carthus. 10 R. 2. fund. 237 15 2 Barlings, or Oxeney, A. Praem. 1154 252 5 llf I 1 £. s. d. 2385 12 8 653 15 478 6 6 262 19 318 8 5 3471 2 1731 8 4 642 4 418 8 5 736 2 7 5 347 1 3 THE PARSON'S COUNSELLOR. 491 London and Midd. St. John Jerusal. P. F. T. H. 1. II 00 St. Barthol. Sinithfield, C. S. A. F. 1 102 St. Mary Bishopsgate, Pr. F. IIS?, 9 R. 1. - Clerkenvvell, P. Ben. F. T. reg. Steph. London Minors, Ben. F\ T. E. 1. Westminster, A. Ben. F. T. Edgari. Sion, A. C. S. A. F. per reg. H. 5. - London, domus, Cart, f undat. T. E. 3. reg. 642 S. Clare extra Algate monial. F. 1292 St. Mary Charter-liouse, Carth. F. 1371 St. John's Holywell, monial. nigr. F. 1318 347 St. Mary East-Smithfield, A. Cist. F. 34 E. 3. - - - 602 11 10 Norfolk. Thetford, A. Clun. F. 1103 - - 312 14 4 Wymundham,A. Ben. F. 1139 - 211 16 6 Hulmo, A. Ben. F. per Canutum reg. 583 17 Westdreham, A. Pram. F. T. H. 2. 228 Walsingham, A. C. S. A. F. circa T. Steph. R. - - - 391 11 7 Castle Acre, A. Clun. F. 1090 - 306 11 4 West Acre, A. Clun. F. T. W. Ruf. 260 13 7 Norwich, P. Ben. 1100 - - 874 14 Q\ North'ton. Burgi St. Pet. A. Ben. F. per ro. fere R. Mer. - - - 1721 14 Pipewell, A. Cist. F. 1 143 - - 286 11 8 S. Andreas, P. Clun. F. 1067 - 263 7 1 Sulhy, A. Prajm. F. T. Steph. reg. - 258 8 5 NoTT. Lenton, p. Clun. fund. T.H.I. - 329 5 10 Thugarton, P. C. S. A. F. T. H. L - 259 9 4 5 10 12 2 10 2 13 7 4 8 12 492 THE PARSON'S COUNSELLOR. £, s. cL Welbeck,A. C. S. A. F. T. reg. Steph. 249 6 3 Warsop, P. C. S. A. fundat. - 239 10 5 Bella Valla, Pri. Carth. F. circa 16 E. 3. 227 8 8 Newsteed, P. C. S. A. F. T. E. 3. - 219 18 8 These two last are under value in Mr. Dugdale, but thus per Speed. NORTHUMBR. Tinmouth, a cell to St. Albans, a nunnery 511 4 1 OxoN. Godstow, A. Ben. F. T. Steph. reg. 274 Eynesham, A. Ben. F. T. Ethelred, reg. 441 Osney, A. C S. A. F.T. H.l. - 654 Thama, A. Cist. F. T. H. 1. per Speed 256 Oxford, P. per Speed, fund, ante Conq. '224 Dorcester, per eundeni A. C. S. A. F. 635 219 Salop. Hagmond, A. C. S. A. F. 1100 - 259 13 7 LiUeshul, A. C. S. A. F. Adelfleda, R. Merciae - - - 229 3 1 Wigmore,A. C. S. A. F, 1 172, per Speed 267 2 10 Wenlock, P. Chin. F. 1 181, vel antea 401 7 Salop, A. C. S. A. F. 1081, per Speed 615 4 3 Hales Owen, A. Pra;ai. fund. T. R. Joh. 337 15 6 Somerset. Glassenbury, A. Ben. circa 300 F. - 3311 7 4 Bruton, A. C. S. A. F. T. conquest - 439 6 8 Henton, P. Carth. F. T. H. 3. - 248 19 2 Witham, P. Cart. F. per H. 2. - 215 15 O Taunton, P. C. S. A. T. H. 1. - 286 8 10 Bathon, A. Ben. F. T. H. 3. - 617 2 3 Keynesham, A. C. S. A. F.T. H.l. 419 14 3 Michelney, A Ben. F. 740 - 447 4 11 Buckland, P. Cist. F. T. E. 1. -. 223 7 4 Athelney, P. Ben. 888 - - 209 3| Montacute, Clun. Temp. W. C. or H. 1. 456 14 3^ THE PARSON'S COUNSELLOR. 493 Staff. £. s. (1. Delacres, A. Cist. F. 1153 - 221 5 Burton, sup. Trent. A. Ben. F. T. Eadredi R. - - 267 14 3 Croxden, A. Cist. cont. Fundat. Suffolk. S. Edmundi Bury, A. Ben. F. 1020 Butley, A. C. S. A. F. 1171 - Sibeton, A. Cist. F, 1150 Ixworth, P. C. S. A. F.T. Conq. - Surrey. Merton, P. C.S. A. F. T.H.I. 1121 Shene, P. Carth. F. 14H Chertsey, A. Ben. F. GQQ - Newark, P. - - Sl. Maries Overs. A. C. S. A. F. 1 II. I, Bermundesey, A. C. S. A. F. 7 H. l. Sussex. Lewes, A. Clun. F. T. \V. R. - 920 4 6 Roberts-brige, A. Cist. F. T. H. 2. 248 10 6 Battayle, A. Black Monks. F. 1066 987 1 1 Warw. Combe, A. Cist. F. T. Steph. R. - 311 15 1 Kenelwortb, A. C. S. A. F. T. H. 1. - 53S \9 Merival, A. Cist. F. 1148 - - 254 1 8 Nuneaton monial, Ben. F. T. H. 2. - 253 14 5 Coventry, P. Ben. ab. 1043 - 5:J8 4 1659 13 11 318 17 2 250 15 7 2S0 9 5 957 19 5 777 12 659 15 8 258 11 ]1 G'24 6 6 474 14 4 Wilts. Malmesbury, A. Wen. F. circa 670 - 803 17 7 Bradenstock, P. C. S. A. F. T. Conq. 212 19 3 Edington, P. C. S. A. F. 1352 - 442 9 7 Ambresbury, A. Ben. F. 1 177 - 495 15 2 494 THE PARSON'S COUNSELLOR. £. s. d. Wilton, A. Ben. F. T. Ethelwolpi R. 601 1 1 Fareley, a cell to Lewes per Speed, F. 112.5, Cliin. - - - 217 4 Lacock, A. C. S. A. F. 1232, per Speed 203 12 3 WlGORN. Malverne, A. Ben. F. 10S3 - 308 1 5 Evesham, A. Ben. T. Offai. - 1183 12 9 Pershore, A. Cist. F. 1138 - 643 4 5 Halesowen, A. Pram. F. T. John reg. 282 13 4 Brodesly, A. Cist. F. 1138 - 388 9 10 Worcester, P. Ben. T.Edgar - 1229 12 8^ Eborum. St. MaryEborum, A. Ben. F.2VV. Riif. 1550 1 Selby, A. Ben. F. T. Conq. - 729 12 10 Kirkstal, A. Cist. F. 1147 - - 329 2 II De rupe, A. Cist. F. 1147 - - 224 2 5 Monks Burton, A. Clnn. F. circa 1 186 2039 3 6 Nostel, A. C. S. A. F. T. EL 1. - 492 18 2 Pomfrait, A. Clun. F. T. Conq. - 337 14 8 Gisborne, A. C. S. A. F. T. Steph. reg. 628 3 4 Whitby, A. Ben. F. T. Conq. - 437 2 9 Montegratia?, A. iCarth. F. circa 1396 323 2 10 Newburge, P. C* S. A. F. 1145 - 3067 8 3 Belland, A. Cist. F. 1134 - - 238 9 4 Kirkham, A. C. S. A. F. T.H.I. - 269 5 9 Melsa, A. Cist. F. 1136 - - 299 6 4 l^rilington, C. S. A. F. T. H. 1. - 547 6 11 Walton, a Gilbertines, F. T. Steph. reg. 360 16 10 Bolton in Craven, P. C.S. A. F.T.H. 1.212 3 4 Rival, A. Cist. F. 1132 - - 278 10 2 Jerval, A. Cist. F. T. Steph. Reg. - 234 18 5 Furnes,A. Cist. F. 1127 - - 805 16 5 De Fontibus, Cist. F. 1132 - - 91^8 6 8 Warter, P. C. S. A. F. T. H. 1. - 221 3 10 Riihal. per Speed - - - 351 14 6 THE PARSON'S COUNSELLOR. 495 £. s. d. Old Maulton, A. F. T. Steph. R. per Speed - - - 257 7 S. Michael juxta Hull, Carib. F. 1377 231 1? 3 Wallia. Valla de Sancta Cruce, Com. Denbigh, Cist. F. T. E. 1. - ^- 214 3 5 Strada Florida Cardigansh. Cist. Clun. F. T. Conq. - - - 1226 6 Gloria Deo Patri, Deo Filio, et Deo Spiritui Sanoto. Amen. APPENDIX No. I. Form of the Grant of a perpetual Advon'son. THIS indenture made the day of in the year of the reign of our sovereign lord of Great Britain and Ireland, kin$^, defender of the faith, and so forth, and in the year of our Lord Between A. B. of in the county of esquire, of the one part, and C. D. of in the county of gentleman, of the other part; Witnesseth, that the said A. B. for and in consideration of the sum of of lawful money of Great Britain, to him in hand paid at or before the sealing and delivery hereof, the receipt whereof he the said A. B. doth hereby acknowledge and himself therewith fully satisfied, and paid, and thereof and of every part thereof doth hereby acquit, release and for ever discharge the said C. D. his heirs, executors, and adminis- trators, and every of them by these presents; and also for divers other good causes and valuable considerations him the said A. B. thereunto moving, he the said A. B. hath given and granted, and by these presents doth fully, freely, and absolutely give and grant unto tlie said C. D. his heirs and assigns for ever, all that the advowson of the rectory or par- sonage of E. in the county of and all the estate, right, title, interest, property, claim, and demand whatsoever of him the said A. B, of, in, and to the said advowson, and to the donation, presentation, and free disposition, and right of pa- tronage of the said church: To have and to hold the said advowson and premises aforesaid hereby given and granted, or meant, mentioned, or intended to be hereby given and granted, with the appurtenances, unto him the said C. D. his K K 498 APPENDIX. heirs and assigns, to and for the sole and only proper use and behoof of the said C. D. his heirs and assigns for ever, and to and for no other use, intent, or purpose whatsoever. And the said A. B. hath granted, and by these presents doth grant for liimself and his heirs, that they will warrant to the said C. D. and his heirs the aforesaid advowson of the said church and premises aforesaid, and every of them, with the appurtenances, unto him the said C. D. his heirs and assigns, against him the said A. B. his heirs and assigns, and against all persons whatsoever claiming or to claim the same, or any right or title thereunto, by, from, or under him, them, or any of them. And the said A. B. doth hereby, for him- self, his heirs, executors, and administrators, covenant, pro- mise, grant, and agree to and with the said C. D. his heirs, executors, administrators, and assigns, and to and with every of them by these presents, in manner and form following; that is to say, that he the said A. B. is at the time of the sealing and delivery hereof, and until the execution of these presents, the true, right, and undoubted patron of the said church of E. and of the rectory aforesaid: and hath good right, full power, and lawful, and absolute authority, to grant and convey the same to the said C. D. his heirs and assigns in manner and form as aforesaid ; and that it shall and may be lawful to and for the said C. D. his heirs and assigns, from time to time, and at all times for ever hereafter, when- ever the said church shall or maj', by the death, resignation, deprivation, cession, or change of ail or any the rectors or incumbents thereof, or otlierwise happen to become vacant, to present some other honest, learned, and well qualified clerk to succeed in the said church as the rector or parson thereof, and to do all other acts which to the office of patron of the said rectory doth of right belong or appertain, as fully and amply as he the said A. B, his heirs or assigns, might or could do if these presents had not been made, without any let, suit, hindrance, molestation, interruption, or disturbance whatsoever of or from him the said A. B. his heirs or assiirns. or any other claiming under him, them, or any of them : And that he the said A. B. his heirs and assigns, and all other persons whatsoever, having or claiming any right or title to the said advowson under him or them, .shall and will from time to time, and at all times hereafter, upon the reasonable APPENDIX. 499 request, and at the proper cost and charges of the said C. D. his heirs and assigns, in the law make, do, levy, execute, and suffer all and every such further and other lawful and reason- able act and acts, grant and grants, conveyances and as- surances in the law whatsoever, for the farther, better, and more perfect and absolute granting, conveying, and assuring of the said advowson of the said church to the said C. D, his heirs and assigns, be it by grant, confirmation, fine, or recovery, or in any other manner as by the said C. D. his heirs and assigns, or his or their counsel learned in the law, shall be reasonably devised, advised, or required : All which further and other assurance and assurances so to be made of the said premises shall be and enure, and shall be adjudged, deemed, and taken to be and enure, and are hereby declared to be and enure to the sole, only, and pro- per use of the said C. D. his heirs and assigns for ever, and to and for no other use, intent, or purpose whatsoever. In witness whereof the parties abovesaid to these presents have interchangeably set their hands and seals, the day and year first abovewritten. 1 Burn's Eccl. Laxvy 48. No. II. Grant of a nej:t Avoidance. This indenture made the day of in the year of our Lord Between A. V>. of in the county of gen- tleman, of the one part, and C. D. of in the county of gentleman, of the other part; Witnesseth, that the said A. B. for divers good causes and considerations, him the said A. B. thereunto moving, hath given and granted, and doth by these presents give and grant unto the said C. D. his executors, adniini-strators, and as^igns, the first and next donation, nomination, presentation, and free disposition of the rectory or parsonage of the church of E. in the county of F. and that it siiail and may be lawful to and for the said C. D. his executors, administrators, and assigns, whensoever, liowsoever, and by whatsoever means, by death, resignation, privation, cession, permutation, or by any other ways or K K 2 500 APPENDIX. means whatsoever the aforesaid church of E. shall first or next happen to be void, to present any one fitting, honest, and learned man thereunto; and to do all other things which belong to the office and duty of a patron ; and to do for the fulfilling of such first and next vacation or avoidance only as fully and amply as he the said A. B. in that behalf might do, if these presents had not been made. And the said A. B. doth hereby for himself, his heirs, executors, ad- ministrators, and assigns, covenant, promise, and grant to and with the said C. D. his executors, administrators, and assigns, that he the said A. B. hath full power and lawful authority to give, grant, and dispose of the next presentation of and in the aforesaid rectory and church of E. to the said C. D. his executors, administrators, and assigns as aforesaid. And further, that he the said A. B. his heirs or assigns shall and will, from time to time, and at all times hereafter, at the reasonable requests, and costs, and charges of him the said C. D. his executors, administrators, and assigns, make, do, and execute, or cause to be made, done, and executed such further and other reasonable act and acts, thing and things, conveyance and assurance in the law whatsoever, for the further, better, and more absolute giving and granting of the said next presentation of, in, and to the aforesaid rectory and church of E. unto him the said C. D. his executors, ad- ministrators, and assigns, as by him the said C. D. his executors, administrators, and assigns, or his or their counsel learned in law, shall be reasonably devised or advised and required. In witness whereof the parties to these presents have hereunto interchangeably set their hands and seals the day and year first abovewritten. i Burn's EccL Law, 50. No. III. Form of a Presentation. To the most reverend father in God, R. by divine Pro- vidence lord archbishop of Canterbury, primate of all Eng- land and metropolitan ; (if it be to the archbishop of York, the word [all] must be omitted. If to any other bishop, APPENDIX. 501 then thus :) To the right reverend father in God, R. lord bishop of or in his absence to his vicar-general in spirituals, or to an}' other person having, or who shall have sufficient authority in this behalf: I, Sir W. P. baronet, true and undoubted patron of the rectory of the parish church of [or, of the vicarage of ] in the county of and in your diocese of now vacant by the death [or resigna- tion, or otherwise, as the case shall be] of A. B. the last in- cumbent there, do present unto you C. D. clerk, master of arts, humbly requesting that you will be pleased to admit the said C. D. to the said church, and to institute and cause him to be inducted into the same, with all its rights, members, and appurtenances, and to do and execute all other things in this behalf which shall belong to your episcopal office. In witness whereof, I have hereunto set my hand and seal, the day of in the year 1 Burn's Eccl. Late, 149. No. IV. Form of a Nomination to a Chapel of Ease, or Perpetual Curacy. To the right reverend father in God lord bishop of A. B. of &c, sendeth greeting : Whereas the curacy of in the county of and diocese of is now void by the death of C. D. last incumbent there, and doth of right belong to my nomination : These are humbly to certify your lordship, that I do nominate E. F. clerk to the curacy afore- said ; requesting your lordship to grant him your licence for serving the said cure. In witness whereof, 1 have hereunto set my hand and seal, the day of in the year of our Lord 2 Burn's Eccl. Law, 57- No. V. Form of a Nominatiori to a Chapel, augmented by Queen Aiine's Bounty. To the right reverend father in God, C. lord bishop of A. B. of gentleman, sendeth greeting. Whereas APPENDIX. the curacy of the chapel of in the county of and in your lordship's diocese of is augmented, or shortly intended to be augmented, by the governors of the bounty of the late Queen Anne, for the augmentation of tlie maintenance of the poor clergy 3 by reason whereof it is requisite, that a curate should be duly nominated and licensed to serve the said cure, pursuant to the statute in that case made ; I, the said A. B. do hereby nominate C. D. clerk (the person employed by me in serving the said cure) to be curate of the said chapel of and do humbly pray your lordship to grant him your licence to serve the said cure, and to perform all divine ofBces therein accordingly. In witness whereof, I liave hereunto set my hand and seal, the day of in the year of our Lord Ecton. 460. I No. VI. Form of a Donation. To all to whom these presents shall come. Know ye, that I, A. B. of in the county of esquire, have given and granted, and by these presents do give and grant to my be- loved in Christ C. D. clerk, the office or place of curate [or as the case shall be] of the chapel of in the county of now lawfully vacant, and to my donation and free dis- position in full right belonging, and by these presents do make, constitute, and appoint him the said C. D. curate of the said chapel ; to have, hold, and enjoy the said office or place of curate in the chapel aforesaid to him the said C. D. during his natural life, with all and every the salaries, stipends, rights, and appurtenances to the same office or place of curate aforesaid, in any wise belonging or apper- taining, as fully, freely, and perfectly, and in as ample manner and form as any other hath or ought to have held and enjoyed the same. In witness whereof, I have hereunto set ray hand and seal, the day of in the year of Qiir Lord Ecton. 459. APPENDIX. 503 No. VII. Another Foi^m. To all to whom iliese presents shall come. A. B. of in the county of esquire, lord of the manor of in the county of sendeth greeting. Whereas the chapel of in the county aforesaid, is now vacant, and to my donation in full right belongethj know ye, that 1 the aforesaid A. B. hare given and granted to my beloved in Christ C. D. clerk, the aforesaid chapel of with all its rights and ap- purtenances, and by the tenor of these presents do induct him the said C. D. into corporal possession of the said chapel, with all its appurtenances. In witness thereof, &c. Ecton. 461. No. Viil. The Form of a Deed of Gift of Money to Queen Anne*s Bounty, to be executed by the Donor : as the same has been settled and generally used since the Mortmain Act, 9 G. 2. c. 36. This indenture made the day of in the year of our Lord Between A. B. of C. in the county of D. of the one part, and the governors of the bounty of Queen Anne for the augmentation of the maintenance of the poor clergy of the other part; Witnesseth, that the said A. B. hath given and granted, and by these presents doth give and grant, unto the said governors, the sum of to be by them disposed of and laid out for a perpetual augmentation of the [vicarage] of E. in the county of F. and diocese of G. pur- suant to the rules and orders made and established under the great seal of Great Britain, for the disposition of the said bounty ; which said sum of tlie t^aid A. B. doth hereby covenant and promise to and with the said governors, to pay forthwith into the revenue of the said governors, to take effect in possession for the use and purpose aforesaid. APPENDIX. immediately from tlie making hereof. In witness, &c. * 2 Burti's Eccl. Lcav, 2g4. No. IX. Form of an Instrument usually executed bij the Governors of Queeti Anne^s Bounty, 'when a Benefactor desires it. Whereas A. B. of C. in the county of D. hath by his deed indented, bearing date the day of last past, duly attested and enrolled in his majesty's high court of Chancery, given and granted unto the governors of the bounty of Queen Anne for the augmentation of the maintenance of the poor clergy, the sum of ^200 for the augmentation of the [vicarage] of E. in the county of F. and diocese of G. Now the said governors do hereby promise to give the sum of ,£200 out of their revenue, to be added thereto: the whole to be disposed of and laid out for the perpetual augmenta- tion of the said [vicarage] of E. pursuant to the rules and orders made and established under the great seal of Great Britain, for the distribution of the said bounty. Provided always, that the said gift and grant be made complete and effectual, according to the statute made in the ninth year of the reign of his late majesty king George the Second, in- tituled, " an act to restrain the disposition of lands whereby the same become unalienable." In witness whereof, the said governors have caused their common seal to be here- unto affixed this day of in the year of our Lord 2 Bui-n's Eccl. Law, 295. No. X. Nomination of a Curate. To the right reverend father in God, Charles, lord bishop of These are to certify your lordship, that I, A. B. • This deed, when executed, must be acknowledged before a master or master extraordinary in Chancery, and afterwards inrolled in Chancery. APPENDIX. rector [or vicar] of in the county of and in your lordship's diocese of do hereby nominate and appoint C. D. to perform the office of a curate in my church of aforesaid; and do promise to allow him the yearly sum of for his maintenance in the same ; humbly beseeching your lordship to grant him your licence to serve the said cure. In witness whereof, I have hereunto set my hand and seal, the day of in the year of our Lord 2 Burn's Eccl, Law, 55. No. XI. Form which may he used as a Title for Orders. To the right reverend father in God, Richard, lord bishop of London. These are to certify your lordship that I, A. B. rector [or vicar] of in the county of and in your lordship's diocese of London, do hereby nominate and ap- point C. D. to perform the office of a curate in my church of aforesaid, and do promise to allow him the yearly sum of for his maintenance in the same, and to continue him to officiate in my said church until he shall be otherwise provided of some ecclesiastical preferment, unless by fault by him committed, he shall be lawfully removed from the same. And 1 do solemnly declare, that I do not fraudu- lently give this certificate only to entitle the said C. D. to receive holy orders, but with a real intention to employ him in my said church, according to what is before expressed. Witness my hand this day of in the year of our Lord 3 Burn's Eccl. Law, 54. No. XII. Form of a Testimonial for Deacon's Orders if from a College. We, the master and fellows of College, in do hereby testify, that A. B. whose life and behaviour we have APPENDIX, known for the space of three years now last past, is a person of good Hfe and conversation. Given under the seal of our college, the day of in the year of our Lord* 3 Durn^s EccL Latv, 54. No. XIII. If not from a College. We whose ntTmes and seals are hereunto set, do hereby testify, that A. B. whose liie and behaviour we have known for the space of three years now last past, is a person of good life and conversation. Given under our hands and seals, the day of in the year of our Lord ^Burn's EccL Laiv, 54. No. XIV. Form of a Testimonial for Pricsfs Orders. We, do hereby testify, that A. B. whose life and be- haviour we have known for the space of three years now last past, is a person of good and honest life and conversation, and professeth the doctrine expressed in the articles of religion agreed upon by the archbishops and bishops of both pro- vinces, and the whole clergy in the convocation holden at London in the year of our Lord one thousand fiye hundred and sixty-two. Given under, &c. 3 Bum's EccL Laiv, 54. * Five instruments ought to be transmitted to the bishop not less than twenty days before the time ol" ordination by every person desiring to be ordained. First, A signification of hh name, degree, and place of abode. Second, A certificate of publication having been made in the church of his design to enter into holy orders. Thirdly, Letters testimonial of his good life and behaviour. Fourthly, Certificate of his age. Fifthly, The title upon which he is to be ordained, and moreover, if he comes for priesfi orders, he must exhibit to the bishop his letters of orders of deacon. APPENDIX. 507 No. XV. Another Testimonial for Orders, either Priest's or Deacons, according to Dr. Grey. To the right reverend father in God, Richard, lord bishop of Lincoln. Whereas A. B. of college, in desiring to be admitted to the holy orders of deacon [or priest] hath requested our letters testimonial of his laudable life and in- tegrity of manners to be granted to him : We whose names are underwritten do testify by these presents, that the afore- said A. B. for three years last past of our personal know- ledge hath led his life piously, soberly, and honestly; hath diligently applied himself to the study of good learning, and hath not (so far as we know) held or published any thing but what the church of England approves of and maintains; and moreover, we think him worthy to be admitted to the holy order of deacon [or priest]. In witness whereof we have hereunto subscribed our names, the day of in the year of our Lord 3 Burns Eccl. Law, 55. No. XVI. Another Form. To the right reverend father in God, Charles, lord bishop of Carlisle. Whereas, our beloved in Christ, A. B. bachelor of arts, hath declared unto us his intention of offering him- self a candidate for the holy orders of deacon, and for that end hath requested our letters testimonial of his good and honest life and conversation, and other due qualifications to be granted to him : We whose names and seals are hereunto set do testify by these presents, that we have personally known the life and behaviour of the aforesaid A. B. for the space of three years now last past; and that he hath, during the said time, been a person of good and honest life and conversation, and that he professeth the doctrine expressed in the articles of religion agreed upon by the archbishops and bishops of both provinces and the whole clergy in the APPENDIX. convocation holden at London in the year of our Lord one thousand five hundred and sixty-two : and we do believe in our consciences, that the said A. B. is qualified to be ad- mitted (if it shall so please your lordship) to the holy order of deacon (or priest). Given under our hands and seals the day of , in the year of our Lord . 3 Burn's E. L. 56. No. XVII. Form of appointijig a domestic Chaplahi. Know all men by these presents, that I, the right honour- able A., lord , baron of , have admitted, constituted, and appointed the reverend B. C, clerk, my domestic chap- lain, to have, hold, and enjoy all and singular the benefits, privileges, liberties, and advantages due and of right granted to the chaplains of noblemen by the laws and statutes of this realm. Given under my hand and seal, the day of , in the year, &c, 3 Burns E. L. 101. No. XVIII. Form of dismissing a domestic Chaplain. Whereas I, the right honourable A. lord baron of by writing under my hand and seal, bearing date the day of , did admit, constitute, and appoint B. C. clerk, my domestic chaplain, to hold and enjoy all benefits, privileges, and advantages belonging to the same; now by these pre- sents, I, the said A, lord do, for divers good and lawful causes and considerations, dismiss and discharge the said B, C. from my service as domestic chaplain, and from all privi- leges and advantages to him granted as aforesaid. Given under my hand and seal the day of , in the year, &c. 3 Burns E. L. 101. APPENDIX, 509 No. XIX. Certificate of the Values and Distances of Livings for the Purpose of obtaining a Dispensation*. To the most reverend father in God, Thomas, by divine Providence, lord archbishop of Canterbury, primate of all England, and metropolitan. Whereas A. B. clerk, master of arts, vicar of E. in the county of D., and in my diocese of E., is presented to the rectory of F. in the county and diocese aforesaid ; these are therefore to certify your grace, that the said vicarage of C. is valued in the king's books at , is of the reputed yearly value of , and that they are distant from each other about miles. Witness my hand the day of 3 Burns E. L. 10/ . * The method which a presentee must pursue to obtain a dispensation is as follows: He must obtain of the bisliop, in whose diocese tin; livings are, tsvo cer- tificates of the values in tiie king's books, and the reputed values and distance of sucli livings ; one certificate for the archbisiiop, and the oilier for the lord chancellor. And if the livings lie in two dioceses, then two certificates as aforesaid are to be obtained from each bishop, each certifying the value in the king's books, and the reputed value of the living in his own diocese ; and both of them the reputed distance of the two livings. He must exhibit to the archbishop his presentation to the second living, and also bring with him two papers of testimonials from the neighbouring clergy concerning his be- liaviour and conversation: one for the archbishop, and the other fur the lord chancellor, vide App. No. 20. And he must in like manner exhibit to the archbishop his letters of orders of deacon and priest. And he must also exhibit to the archbishop a certificate of his having taken the degree of master of arts, at the least, in one of the universities of this realm, under the hand of the registrar of such university. And in case he be not doctor or bachelor of divinity, nor doctor of law, nor bachelor of canon law, he is to procure a qualification as chaplain to some nubleman, or to some other person empowered by law to grant ijuali- fications for pluralities (which is also to be duly registered in the faculty office) in order to be tendered to the archbishop according to the statute. And if he has taken any of the aforesaid degrees which the statute allows as qualifications, he is to procure a certificate thereof in manner before men- tioned, and to exhibit the same to the archbishop Erton, 444, and vide p. 33. 510 APPENDIX. No. XX. Form of a Testimonialjbr procuring a Dispensa- tioiijor a Flurality. To the most reverend father in God, Thomas, by divine providence, lord archbishop of Canterbury, primate of all England, and metropolitan. We whose names and seals are hereunto subscribed and set, do humbly certify your grace, that we have personally known the life and behaviour of A. B. clerk, master of arts, vicar of C, in the county of D., and diocese of £., for the space of three years now last past; that he hath during the said time been of good and honest life and conversation; a faithful and loyal subject to his majesty king Georg-e the third; and hath not, so far as we know, held, written, or taught any thing but what the church of England approves and maintains. In witness whereof v/e have hereunto set our hands and seals this day of in the year of our Lord . .3 Burn's E. L. I07. No. XXL Form of a DispensaHo7i to hold trco Livings. Thomas, by divine providence, archbishop of Canterbury, primate of all England and metropolitan, b}'^ authority of parliament lawfully empowered for the purpose herein written: To our beloved in Christ A. B. clerk, master of arts, of college, in the university of , and also chap- lain to the right honourable C, lord , health and grace. The greater progress men make in sacred learning, the greater encouragement they merit ; and the more their ne- cessities are in daily life, the more necessary supports of life they rrquire. Upon whicli considerations, and being moved by your supplications in this behalf, we do (by virtue and in pursuance of the power vested in us by the statutes of tliis realm), by these presents graciously dispense with you, that, APPENDIX. 511 together with the rectory of the parish church of , in the county of , and diocese of , which you now possess, the annual fruits whereof, according to the valuation made in the books of first fruits and tenths of ecclesiastical benefices remaining in the exchequer of our sovereign lord the king, do not exceed the sum of , you may freely and lawfully accept and hold, as long as you shall live, the rectory of the parish church of , in the county of , and diocese of , not distant from the former above miles, or there- abouts, the annual fruits whereof, according to the valuation aforesaid, do not exceed the sum of : provided always, that in each of the churches aforesaid, as well in that from which it shall happen tiiat you shall be for the greater part absent, as in the other on which you shall make perpetual and personal residence, you do preach thirteen sermons every year according to the ordinances of the church of Eng- land promulged in that behalf, and do therein sincerely, religiously and reverently handle the holy word of God ; and that in the benefice from which you shall happen to be most absent, you do, nevertheless, exercise hospitality' two months yearly ; and for that time, according to the fruits and profits thereof, as much as in you lieth, you do sppporc and relieve the inhabitants of that parish, especially the poor and needy. Provided also, that the cure of the souls of that church from which you shall be most absent, be in the mean time in all respects laudably served by an able minister, capable to ex- plain and interpret the principles of ti.e Christian religion, and to declare the word of God unto the people, in case the revenues of the said church can conveniently maintain such minister; and that a competent and sufficient salary be well and truly allowed and paid to the said minister, to be limited and allotted by the proper ordinary at his discretion, or by us or our successors, in case the diocesan bishop shall not take due care therein. Provided nevertheless, that these presents do not avail you any tiling, unless duly confirmed by the king's letters patent. Given under the seal of our office of faculties, this day of , &c. 3 Burn's E. L. 109. 512 APPENDIX. No. XXII. Form of a Petition for a Licence of Non-re- sidence under .57 G. S. c, 99. To the right reverend lord bishop of , the humble petition of the reverend A. B., rector of , in the county of Sbeweth, That your petitioner is desirous to obtain your lordship's licence of non-residence, on account of (here state the grounds for the hcence of non-residence), and your petitioner hereb}' states that the duties of the said are performed by his curate, tlie reverend CD., who is h'cenced, and to wliom he allow? the yearly stipend of pounds, with the surplice fees, and the use of the rectory house, wherein he resides, and the garden and offices. That his said curate does not serve any other ecclesiastical preferment, and does not hold any do- native, perpetual curacy, or parochial chapelry, and does not officiate in any other church or chapel ; and that the gross annual value of the said is pounds. Your petitioner therefore humbly prays your lordship to grant him a licence of non-residence. A. B. rector of Witness his hand, this day of No. XXIII. Form of Notification of Non-7'esidence hy reason of Residence on another Benefice. I, A. B., rector of , in the county of , and diocese of , do hereby, according to the 23d section of stat. 57 G. 3. c. 99. notify to the right reverend , lord bishop of , that during the 3'car (or as the case may be), during months in the year I was non-resident oii my said rectory of , by reason of my residence during that period on my vicarage, or (as the case may be) of , in the APPENDIX. 513 county of , and diocese of , and that the gross annual value of my said rectory of amounts to (or as the case may be, does not amount to) or exceeds, (or does not exceed) 3001. Dated this day of . A. B. rector of No. XXIV. Form of Notification of Non-residence in the Cases enumerated in the 10th Sectio?i of the 57 G* 3. or under the Provisions of any Act not repealed hy that Act. I, A. B., rector of , in the county of , and diocese of , do hereby notify to the right reverend , lord bishop of , that during the year (or as the case may be, during months in the year), I was non-resident on my said rectory of , being all that year exempt from re- sidence thereon, as (here state the grounds of exemption*), and that the gross annual value of my said rectory of amounts to (or as the case may be does not amount to) (or exceeds, or does not exceed) 3OOI. Dated this day of . A. B, rector of No. XXV. Form of a Conveyance under Stat. .58 G. 3. c. 45. I (or we) of , in consideration of the sum of to me (or us) paid, do hereby grant and release to all (describing the premises to be conveyed), and all my right, title, and interest to and in the same, and every part thereof, * If residence in any particular place, and performance of any particular duties, be necessary to give effect to the exemption, it must be stated that A. B. resided at sucli place, and performed sucli duties during all the period for which the exemption is claimed. L L 514 APPENDIX. to hold to the said , and their successors, and to be devoted when consecrated to ecclesiastical purposes for ever, by virtue and according- to the true intent and meaning of an act passed in the fifty-eighth year of the reign of his majesty king George the third, intituled (here set forth the title of this act). In witness whereof I have hereunto set my hand and seal this day of in the year of our Lord . No. XXVI. Foryn of a Lease of Tithes. This indenture, made the day of , in the year , between A. B., rector of the parish of , in the county of , of the one part, and C, D. of , in the parish of , and county of , yeoman, of the other part, witnesseth, that the said A. B. for and in consideration of the rent hereinafter reserved and contained, hath demised, granted, and to farm let, and by these presents doth demise, grant, and to farm let, unto the said C. D., his executors, administrators, and assigns, all and all manner of tithes of corn, grain, hay, and herbage, yearly growing, increasing, or happening within the said parish of , and all profits of what kind soever belonging to the parsonage or rectory there, to have, hold, receive, and take all and every the said tithes and profits unto the said C. D., his executors, ad- ministrators, and assigns, from the day of the date of these presents, for, and during, and unto the full end and term of twenty-one years from thence next ensuing, and fully to be completed, if he, the said A. B. shall so long continue rector of the said parish of , yielding and paying therefore yearly, and every year during the said term, unto the said A. B. and his assigns, the rent or sum of , at and upon the days by even and equal portions. Provided always, that if the said rent, or any part thereof, shall be behind and unpaid by the space of days after the days -and times ap- pointed and limited for the payment thereof, then this pre- sent demise, and every thing herein contained, shall cease, determine, and be void ; and the said C. D, doth for himself, APPENDIX. 515 his executors, administrators, and assigns, and for every of them, covenant, promise, and grant to, and with the said A. B., his executors and administrators, and to and with every of them by these presents, that he, the said C. D., his executors, administrators, or assigns, shall and will, from time to time, and at all times during the continuance of this demise, well and truly pay and satisfy the rent aforesaid, at the days and times aforesaid appointed for the payment thereof; and also shall and will pay and discharge all taxes which shall be imposed upon the said demised premises, or in respect thereof, by act of parliament or otherwise : and the said A. B. for himself, his executors, and administrators, and every of them, doth covenant, promise, and grant to, and with the said C. D. his executors, administrators, and assigns, and to and with every of them by these presents, that for and under the rents and covenants hereinbefore re- served and contained on the part of the said C. D., his exe- cutors, administrators, or assigns, to be paid and performed, he the said C. D., his executors, administrators, and assigns, shall and may have, hold, and enjoy the tithes and premises aforesaid, and every part and parcel thereof, during the said term hereby granted, without any let, trouble, molestation, interruption, or denial of him, the said A. B. or his assigns, or any other person or persons claiming, or to claim by, from, or under him. In witness whereof the parties to these presents have interchangeably set their hands and seals, the day and year first above written. Signed, sealed, and delivered (having A. B. been first duly stamped), in the presence C D. of E. F. G. H. 3 Burns E. L. 56Q. L L 2 INDEX. A. Acceptance of rent, where it shall afHrm lease, 177. Of rent by a parson, vicar, or prebendary, whether it shall affirm the lease of his predecessor, ib. Where a parson shall be bound by the acceptance of fealty, 178. By a bishop upon a lease for lives of tithes, ib. A lease for years of tithes, ib. Aftermath, tithe of, to be paid, 313. 350. Arrests in churches or churchyards, 222. Vide Church. Assessments for the repair of churches, 202. Vide Church. Archdeacons, 368. Vide Procurations. Articles, 6q. Vide Parson. Agistment tithe, who shall pay it, 324. Not for saddle horses, 325. Nor for beasts for the plough or pail, ib. Nor for beasts ferae natursa, ib. Pasture eaten with mixed cattle, 32fi. Agistment tithe not payable for the after-grass of a meadow which has the same year paid tithe hay, ib. n. Tares and vetches eaten green, 327- Of what cattle agistment tithe is due, 328. Cattle belonging to a stranger, ib. n. Coach horses, ib. n. Sheep, ib. n. Cattle feeding on commons, by 2 and 3 Ed. 6. c. 13. ib. n. Sheep fed on turnips, 829, n. Vide Wool and Lamb. Admission, in what manner to be made, g. Danger of precipitate admissions, 46. Perjury at admission, ib. n. Arms and ensigns of honour in churches, 217. Vide Church. Avoidance, 52. Vide Simony. Augmentation, 36o. Vide First Fruits. 518 INDEX. B. Barren Lands, what, shall be free from payment of tithes by stat. 2 and 3 Ed. 6. c. 13, 400. Courts of equity have decided the question of barrenness, 402. n. Distinction laid down, 403. n. Barley, 3l\. Vide Corn. Bees, what tithes are due for them, 340. Briefs regulated by stat. 4 An. c. 14. 153. n. How to be issued, ib. n. Proceedings on receipt of them, ib. n. Register to be kept of money raised on briefs, 254. n. Farming money on briefs, 235. n. Bishop, whom he may admit into holy orders, 4, 5. n. For forms of title and testimonials to orders, vide Appendix, Nos. 11, 12, 13, and 14. What time he has to examine a clerk previous to admitting him to a benefice, 8. If he admit a clerk before the church become litigious, 14. Not bound by a verdict in a jure patronatus, l6. Action on the case lies against him if he admit the contrary clerk, ib. Where coparceners present several clerks which he must admit, 18. Where joint tenants, or tenants in common present severally, 19- Though the church be litigious, he may admit either clerk, but at his peril, 15. What return he may make to the duplex querela, ib. Bishops' leases, lG3. Vide Dilapidations, Residence, Curate, Presentation, Resignation. Burying and hurying places, 215. 240. n. Vide Churches. C. Cathedraicum, what, 202, Caveat, the use of, l6. Calves, v.'ool, lambs, pigs, milk, how the tithes of them are to be paid, and the canon for payment of them, 300. The time when calyes, lambs, pigs, &:c. are to be paid, 336. Vide Milk, Lambs. Charges, to what, tithes and church lands are liable, 36l. Chapel, why so called, 220. The several kinds, 227- All given to the king, ib. INDEX. 519 Chapel, who may make a free chapel, ib. Free chapels, ib. Of ease, parochial and not parochial, ib. How to be repaired, 228. By whom the cure is to be performed, ib. The rector of the mother church shall have the oflerings made at chapels, 229. How a chapel may become a church, ib. Who shall repair chapels annexed to mother churches, ib. Distinction between church and chapel, 22g. n. When a chapel of ease is built, incumbent of the mother has a right to nominate, ib. n. Distinction between perpetual curacies and chapels of ease, 230. n. Impropriator has no right to nominate to every chapel ia the parish, ib. n. Private chapels, what, 230. Form of a nomination to a chapel of ease or perpetual curacy. Appendix, No. 4. Form of a nomination to a chapel augmented by Queen Ann's bounty. Appendix, No. 5. Chancel. Vide Church. Canons, how far binding, 2G. n. Against common law void, 48. Cheese, 332. Vide Milk. Cherries, 34 1 . Confirmation of leases of bishops, 1 63. Where there are two chapters, ib. Lease confirmed before sealing, ib. After the death of the bishop, ib. When a bishop makes several concurrent leases, and the latter is first confirmed, ib. Grant to the king confirmed before inrolment, lG4. Who is to confirm leases respectively, ib. The lease of a parson confirmed by the bishop who is patron alone, l65. The lease of parson before he is inducted, although con- firmed, is not binding on the successor, ib. A lease may be confirmed for part of the land or term, ib. Parson makes a lease which is confirmed, and he is after- wards deprived, ib. The bishop and husband of the patroness confirm, lfi6. The bishop and patron, being tenant in tail, confirm, ib. Patron usurper coufirms, ib. The lease of the parson, ib. 520 INDEX. Confirmation, a parson leases to his patron, which is confirmed by the bishop, and then assigned over by the patron, ib. The bishop, being patron, confirms without the dean and chapter, ib. Leases made before stat. 13 Ed. Confirmed after, ib. A prebendary leases, and recites that it is done by the bishop's consent, who is a witness, ib. Offices granted in reversion with confirmation, 17C. A parson leases, the lessee grants an annuity, and in a writ of annuity the bishop and patron are praj'ed in aid, and verdict and judgment, 177» Consolidation, or union, what, 231. Clover, 312. Vide Hay, Modu?. Consecration of churches, 201. Vide Church. Composition, real, what it is, 404. Distinction between a modus and composition real, ib. n. Such composition since stat. 13 El. not binding on the suc- cessor, 406. n. Corn, tithes of, how to be paid, 311. Notice of setting out tithes, ib. n. Rakings, 313. Preparing and carrying away, 357. What road is to be used, 35g. n. Copyhold, if it escheat to the bishop he may grant it in fee, I76, Custotn, what force it has in the manner of tithing, 332. 335. Of not tithing things titheable, 353. Of paying tithes of things not titheable, ib. Distinction between custom and prescription, 354. Customs confirmed by 27 H. 8. c. 20, 355. Vide Modus. Church, why so called, 200. The several acceptations, ib. The manner of founding them, 201. Who may build a church, ib. Where a church shall be re-consecrated, ib. The several parts whereof it is composed, ib. In whom the freehold of the church is, 2«2. Who is to repair churches, ib. How they were anciently repaired, ib. Who is to raise money for the repairs of the church, ib. The manner of making a levy for the church, ib. How to be recovered, ib. Where the bounds of the parish are controverted, 203. n. What to be done if the parisliioncrs will not make a levy, 204, INDEX. 521 Church, how to be relieved against unequal assessments, ib. Where churchwardens defer to collect the rate, ib. n. Landlords not taxable for their rents, 205. These taxes are upon the person in respect of the land, ib. Who is chargeable to the ornaments, ib. Landlords and landholders chargeable, and the reasons, ib. and eOO. n. Omission of any landholder in a tax toward the repair of the church, 207. The parson and vicar are exempt from these levies, ib. Not an impropriator in respect of land not parcel of the rectory, ib. n. Lihabiiants of a precinct where there is a parochial chapel, ib. n. The founder may be exempt by prescription, ib. ('hurches united, by whom to be repaired, ?08. Lay impropriators must repair the chancel, 2O9. and n. How to be compelled, 210. n. Seats in churches, ib. By whom to be repaired, ib. Li what manner to be built, ib. Who shall have the materials of seats cut or pulled down, ib. What authority the incumbent has concerning seats, 211. n. With respect to an organ, 212. n. Prescription fur seats, ib. n. What the parson may do in the church, 213. Who may dispose of the seats, ib. Priority in a seat may be prescribed for, ib. n. Vicar by prescription may claim a seat in the chancel, ib. n. lle[)aration of a pew, strong evidence to support prescription, 214. n. Prescription for burying, 215. W^ho may be buried in the church, ib. Nothing to be paid for burying in the churchyard, 2iG. Seals in the church and chancel, ib. Where one of common right shall be buried, ib. Who may set up tombs, 217. The remedy if broken, ib. Who may not be buried in a church or churchyard, ib. Gravestones, winding sheets, jiennons, arms, &c., in whom the property Is, ib. In whom the property of the bells and other ornaments of the church are, ib. and 218. n. Who shall have an action for the taking them away, 21?. Goods may be given to the church, 2iy. 622 INDEX. Church, reverence due to the church and churchyard, 21 9. Sanctuaries taken away, ib. Courts not to be kept in churches or churchyards, 220. Fairs nor markets, ib. Punishments for fighting or brawling therein, ib. For striking or drawing a weapon there, ib. How soon the suit must be instituted, 221. n. Construction of the act, ib. n. And, son assault demesne no good plea to a battery begun in a churchyard, ib. Stealing a dead body, ib. n. Arrest in churches punishable, 222. Ways through churches, ib. Clergy taken away in sacrilege, ib. Officers of the church, ib. Churchwarden's olfice, ib. By whom to be chosen, 223. Sidesmen, their office, 225. Sextons and clerks, ib. How to be elected, 226. Parishioners may choose clerk by custom, ib. Churchyards, 230. The freehold is in the parson, ib. The fences must be repaired by the parishioners, ib. Not to be put to any profane use, ib. New churches under stat. 58 G. 3. c. 45. Funds, how to be raised, ib. Commissioners for the execution of the act to be appointed, 232. Their duties, 233. The commissioners may grant money for building churches in certain cases, ib. Where there is not accommodation for more than a fourth of the parishioners, ib. Where there shall be a thousand persons resident more than a mile from the church, ib. How the commissioners are to select places for distribution of sums, and the order of priority to be observed, ib. A parish may be separated into two or more, with consent of patron, ib. Not to take place till after the death of the existing incum- bent, ib. Tithes of such divided parishes, 234. What such parishes shall be deemed, ib. Donations and perpetual curacies shall be subject to lapse, ib. INDEX. 523 Ckuich, spiritual persons not removable from them by the person appointing, ib. Commissioners may divide a parish into districts, ib. The form and mode of doing so, ib. Every church and chapel built thereon shall be deemed a perpetual curacy, ib. Such church or chapel not tenable with the original church or chapel, or chapel of any other district parish, 235. Acts relative to ecclesiastical duties shall apply to such district parishes, ib. Marriages, when they may be had in such district churches or chapels, ib. Glebe, tithe, ib., Poor and parochial rates, ib. Offerings and oblations, &c. Commissioners may accept sites for churches, &c. ib. Houses and lands for a spiritual person, ib. The commissioners of woods and forests may grant sites, ib. Form and mode of procuring sites, ib. Form of conveyance, 23(J. Vide Appendix, No. 25. Where parties cannot agree on terms of sale, the price shall be settled by a jury, ib. Commissioners may enter, upon poymenl or tender of pur- chase money, ib. Where money is awarded to a corporation, or person under disability, 237. Where less than 200/. ib. Where less than 20/. ib. When person entitled cannot make a title, or cannot be found, ib. Title to money, ib. Expenses, mortgages, resale of lands not wanted, ib. Sites where the aid of the commissioners is not wanted, ib. Commissioners may not take a private dwelling house, ib. May advance money to be repaid by instalments, ib. Sums paid for sites, how to be raised, 238. Money may be borrowed for the enlargement of a church or chapel, ib. Building by means of rales, what consent necessary, ib. Plan of churches, ib. For a form of a conveyance under stat. 38 G. 3. c. 45. vide Appendix, No. 25. Arrangement and rent of pews, ib. Stipends out of pew rents, ib. Free sittin^is not less than one fourth, ib. 524 INDEX. Church, where curate is provided for by subscription, 239. Patronage of district churches, ib. When a chapel is built by rates, ib. Reservation of rights, ib. Repairs of district churches, ib. Churchwardens of district churches, ib. How chosen and their duties, ib. Pews for minister, free seats not less than a fifth, ib. Pews and pew rents, ib. Vaults and graves, 240. Limitation of actions, reservation of rights. Curates, the bishop may appoint and license a curate where a non- resident incumbent neglects to appoint, 11 7. In what cases the curate must reside within the parish, 1 18. When duty is inadequately performed, the bishop may re- quire the incumbent to appoint a curate, or on neglect appoint one himself, 1 ig. Amount of stipend in such case, ib. What particulars must be stated by a person applying for a license for a curate, 120. Bishops may appoint salaries and summarily determine dif- ferences respecting stipend, ib. Stipends to curates of incumbents before July 20, 1813, are not to exceed certain rates, 121. 4 Salaries of curates are to be in proportion to the value and population of the benefices, ib. Smaller salaries to be allowed to curates in certain cases, 123. What shall be the salary of a curate engaged to serve in- terchangeably at difi"erent places belonging to the same incumbent, ib. Spiritual persons may not serve more than two churches in one day, except in certain cnses, 124. How salaries are to be adjusted when the curate is permitted to serve an adjoining jjarish, ib. Agreement for salaries to curates contrary to the act, are void, 125. The curate's salary, if of the value of the benefice, is liable to certain charges, ib. The bishop is to allow the rector to deduct from the curate's salary for repairs to a limited amount in certain cases, 126. The bishop may allot the parsonage-house to the curate'in case of non-residence of incumbent, 127. The curate to pay taxes of the parsonage-house in certain cases, ib. INDEX. 525 Curates, the bishop may direct curate to give up possession of par- sonage, 127. Rector may not dispossess the curate of the house without order from the bishop and certain notice, 128. Curate must quit three months after institution to a vacant benefice on one month's notice. The curate must not, without leave of the bishop, quit curacy without three months' notice to incumbent and bishop, penalty, ib. Bishops may license curates employed without nomination, and may revoke licence and remove curate, ib. Proceedings relative to curates' licences, I29. Form of nomination of a curate. Appendix, No. 10. Curacy perpetual, 30. n. D. Drained Lands, 402. Dehl, action of, by stat. 2. E. 6. 465. By and against whom it lies, 40? . Form of the declaration, 468. Evidence, 469. 471. n. Verdict, judgment, and costs, vide Leases, 472. Dean and Chapter, l63. Deprivation and Deposition, what, 146. In what courts determinable, ib. Simony no cause for deprivation, ib. Non-conformity, 147. Neglecting to read prayers within two months after induc- tion, ib. Maintaining any doctrine against the thirty-nine articles, 148. Being guilty of murder, manslaughter, perjury, or forgery, ib. Disobedience to the ordinary, 14g. Taking a second benefice, ib. For a priest to marry was cause, ib. Dilapidations, ib. Deprivation ipso facto, what, 150. Declaratory sentence in the ecclesiastical court when ne- cessary, ib. n. Deprivation for incontinence, 161. For adultery, ib. Deprivation must be pronounced by the bishop, 151. n. Suspension may be pronounced by the ecclesiastical judge, 151. n. Dilapidations, what, 134. Canon against them, ib. 526 INDEX. Dilapidations, By the law of England the rector is only bound to repair the chancel, 133. Waste by bishops is a cause of deprivation, 136. Statute against fraudulent conveyances made to defeat the successor of his recompense for dilapidations. 137- A bishop was suspended for dilapidation, and his revenues sequestered, 137. n. Suits for dilapidations upon the canon law are to be sued in the ecclesiastical courts, 138. Action upon the case at common law lies for dilapida- tions, ib. Statute against cutting trees in the church-yard, J39- Money recovered for dilapidations is to be expended in re- pairs, 130. n. Patron can prevent rector or vicar from cutting timber by prohibition or injunction, 140. n. So may the crown prevent a bishop, ib. The timber must be employed for reparations, ib. Seinble, it may be sold, and the proceeds applied for repara- tion, ib. Rector may cut down timber to repair the parsonage and chancel, 141. h. He may cut down underwood where it is the custom of the country, ib. n. But he must not grub up, ib. n. He may cut timber to repair pews belonging to the rec- tory, ib. n. And to repair barns, &c. belonging thereto, ib. n. But he must not dig stones beyond what is necessary for repairs and improvements, ib. n. He cannot open mines, ib. n. Case e contra, ib. Executor of predecessor is liable for dilapidations to the suc- cessor, although the house, the subject of them, does not go in succession but is assigned by the bishop, 142. n. But the expense of workmanship will only be allowed where the church funds are to supply materials, ib. n. Successor recovered damages for dilapidations against his pre- decessor where the latter lost his vicarrage by accepting a second benefice, ib. n. And successor may have separate actions for different parts of the rectory, ib. n. Prohibition lies where incumbent cuts trees on the glebe pending a quare impedit, 143. n. Stat. 17 G. 3. c. 53. to prevent dilapidations, 143. n. INDEX. 527 Dilapidations, money bequeathed to erect a parsonage house in the garden of a former parsonage, 145. Discharge, 407. Vide Monastery Lands. Dignities, ecclesiastical, what, 60. Donative, what, 246. A parish church may be a donative, ib. How a donative may be made presentative, 247. The king may found a donative or license a subject to do it, ib. A quare impedit lies of a donative, ib. Donatives are within the statutes of simony and pluralities, ib. To whom to be resigned, 249. Forms of donations. Appendix, Nos. 6, 7. Duplex querela, in what cases it lies, and what return is good upon it, 15. Within what time to be sued, ib. E. Exchange, 249. ^^de Permutation. Eggs, 349. Exchequer, court of, 473. Vide Jurisdiction. Equity, court of, 473. Vide Jurisdiction. Excommunication, 452. Endoivmenls, 242. Vide Vicarage. Exotics, 34 1 . Farms, spiritual persons taking to farm above eighty acres without consent of bishop liable to a penalty, 92. n. 179- "• Spiritual persons beneficed or performing duty engaging in trade liable to a penalty, ib. n. Proviso for persons engaged in keeping schools or as tutors, &c. 93. 179. n. Fees due by the canon for instituiinn and induction, 62. Dingers incurred by paying greater fees than are due by custom, G3. No fees due for orders, 67- Ferce naturcc, no tithes due for birds or beasts, 343. Fish, 343. Fire-ivood, 3ig. Fowls, domestic, what tithes to be paid of them, 349- Forced fruits, 34 1 . Fruits, 340. Vide Seeds. First fruits and tenths, what, 3()1. \^'hcn to be paid, 3(i4, 528 INDEX. First Jruils and tenths, why vicarages are charged higher in the first fruits office than parsonages, 365. AppHcation of them by 2 and 3 An. c. 11. called Queen Anne's bounty, 297. n. Power to establisli a corporation and settle thereon the first fruits and tenths, ib. n. Devises or bequests to the corporation, 298. Not affected by the statute of mortmain, ib. Deeds need not be inrolled, 310. Power to settle the corporation, 298. Letters patent, 299. Rules and orders in pursuance of the letters patent, 301. Ascertaining the value of livings to be augmented, 304. Agreements with benefactors for the nomination, ib. Agreements with patrons and others for a stipend in case of augmentation by lot, 305. Capacity of ministers for receiving augmentation, 306. Augmentation of benefices vacant, ib. Benefices augmented shall be perpetual cures and bene- fices, 307. And lapse thereof may incur, 308. Donatives how affected by augmentation, ib. Exchanging of lands settled by augmentation, ib. Registry to be kept of all matters relative to augmenta- tions, 309. Form of a deed of gift of money to the bounty. Appendix, No. 8. Of an instrument to be executed by the governors. Appen- dix, No. 9. G. Garden, 340. Gravestones, 217. Vide Church. Grass, 312. Vide Hay, Agistment. Geese, 34g. Vide Hay, Agistment. H. Hay, tithe of, how be paid, 312. Setting it out, 360. n. Clover hay, ib. n. Green food, 313. Headlands, ib. Hay in orchards, ib. Grass cut in meadows fi-r beasts of plough, ib. Vide Agist- ment, and 305. n. INDEX. 529 Hay, what privilege the parson has for prei)aririg and carrying his hay, 356. Measuring a tenth pari of the grass stanrling, 3o8. What way the par9 chaplains after they are preferred, ib. Where supernumerary chaplains are retained, ib. Where one qualified is instituted into a second living before dispensation, ib. This law is not dispensable, ib. Where a person is inducted into a second living, and does not read the articles, 36. Proviso for not reading the articles within two months, 36. n. When clerk qualified is made a bishop, his qualification ceases, ib. Where union makes a plurality, 37. The vicar made parson of the same church, or c converso, ib. Of another rectory in the same church, ib. In what cases the canonists allow of pluralities, 25. None may have two preferments in one church, ib. Archbishop cannot refuse dispensation without just cause, 39. n. The two livings must not be more than thirty miles asunder, 40. n. Dispensation to the contrary cannot be obtained, 41. n. Distance to be computed by the ecclesiastical law, ib. Stamp duties on pluralities, 42- n. Where one of the livings belongs to a popish recusant con- vict, ib. Form of appointing a domestic chaplain. Appendix, No. I7. ■ Form of dismissing a domestic chaplain. Appendix, No. 18. Form of certificate of the value and distances of livings for the purpose of obtaining a dispensation, Appendix, No. I9. Form of a testimonial for procuring a dispensation for a plurality. Appendix, No. 20. Form of a dispensation to hold two livings. Appendix, No. 21. Q- Quakers, tithes how to be recovered, 484. n. Quare imjicdit, what, 20. n. Proceedings upon, 21. n. What necessary to maintain it, £2. n. Limitation to the writ of, 22. n. * Q,uare incumhraint, where it lies, 16. Queen Anne's Bounty, 36l. Vide First Fruits and Tenths. 538 INDEX. R. Rankn^ss of modus, 387. Rahbils, 343. Registers regulated by stat. 52 G. 3. 263. Of baptisms, marriages, and burials to be kept, ib. Parishes to provide suitable books, ib. From whence they are to be obtained, 264. Of baptism, burial, and marriage, to be kept in separate books, ib. Form of entry, ib. Where the books are to be deposited, 265. Annual copies to be made, 266. To be transmitted to the registrar of the diocese, ib. Registrars to make reports whether copies have been sent in, 267. Where officiating minister neglects to verify the copies, ib. Places where there is no church or chapel, ib. Letters containing such copies to be free of postage, 268. How the registrars shall act, ib. Reports to the privy council, 269. False entries, false copies or alterations of register book, ib. Accidental errors, 270. Fees, ib. Stamp duty, ib. Penalties, ib. Act to extend to churches and chapels not parochial, ib. Schedule, 273. Registers of marriages, 260. Residence, non-residence not heard of in the western church for 700 years after Christ, 77. An act of parliament against non-residents, 78. This act repealed and another substituted, 7g. n. Who may be non-resident, g5. n. How bishops may be compelled to residence, 83. Penalties for non-residence, 94. n. How to be recovered, ib. The king may seize the temporalities of a bishop for non- resiilence, 85. Several statutes relative to non-residence repealed, 88. n. 90- n. What shall be deemed residence, where no parsonage-hooise , 94. In what cases houses purchased by Queen Anne's bounty to be deemed residence, ib. The bishop has power to allot a house for that purpose, 95. INDEX. 53^ Residence, penalties for not keeping a house of residence in repair, 98. ... Bishops may grant licences for non- residence in certam cases, 99. And may grant licences and assign salaries to curates em- ployed, 101. Reasons for granting such licences to be allowed by the arch- bishop, ib. In what manner application for licence is to be made, 102. Licences may be revoked, 103. Proceedings with respect to licences, 104. The king may revoke licences, ib. What returns are to be made to the king in council, 105. What notification is to be made by non-residents by ex-» emption without licence, IO6. Penalty, ib. Ecclesiastical censure saved, 107. Bishop's monition, ib. Proceedings upon such monition, ib. Bishops may punish past non-residence by monition an.d sequestration, 111. Where a benefice may become void by reason of sequestra- tions, 102. Contracts for letting the house of residence shall be void, i b. No oath of residence shall be required of a vicar, 113. Penalties not recoverable for more than a year, ib. Proceedings relative to penalties, ib. Form of a petition for a licence of non-residence. Append! ix. No. 22. Form of a notification of non-residence by reason of re- sidence on another living. Appendix, No. 23. Form of a notification of non-residence under 5? G. 3. c. 99. s. 10. Appendix, No. 24. Resignation, what, 24S. Notice, of, 12. To whom to be made, 248. To or by a proctor, ib. May be made to the king, ib. What acceptance is necessary to, ib. n. Words of, 249. To whom a donative is to be resigned, ib. May be made to a notary public, ib. May be upon condition, ib. Whether ordinary may refuse acceptance, ib. n. Corrui)t resignations, 47- Vide Simony. 540 INDEX. Recovery of Tithes, 446. et seq. Of small tithes before justices, 478- n- 483. u. Viclc Juris- diction. S. Small Tithes, 283. Vide Tithes. Setting out Tithes, 311. Vide Corn. Sheep, 331. Vide Lambs. Seeds, fruit, mast, how the tithe is to be paid, 340. 342. n. Potatoes, ib- n. Acorns, cherries, plums, &c. 341. n. Pine-apples and exotics, ib. n. Hops, 342. n. Seats in churches, 213. Vide Church. Scire facias, 405. Simony, what it is, 43. Canons against it, ib. The little effect of those canons, 45. The difference made by the canonists between simoniacus and simoniace, ib. Accompanied by perjury, 45. n. , The clerk must be convicted of simony before information will be granted, 46. n. Forbidden by stat. 31 El. c. 6. 46. Penalty upon the corrupt patron, 48. Where he shall lose his presentation, 49. The clerk not being privy, where he shall be disabled to be presented to the same church, ib. What contracts shall amount to simony, 51. To purchase a next avoidance, the incumbent being ill, is simony, 52. Not so to purchase an advowson, ib. n. Sale of an advowson during a vacancy not simony by the statute, but void by common law, 53. n. Where an agreement not to claim tithes is simoniacal, ib. Where a church is full, to pay money for a presentation, ib. Where it is intended to present to a particular person, and presenting him, ib. Bonds of rei-ignation, 53. 55. Special bonds of resignation are legal, 50. n. General bonds are not, ib. Bond given to reside on the living, or resign if the obligor does not return after notice, held good, 57. n. Semble, the ordinary is not obliged to accept a resignation on such a bond, 57. n. But the patron cannot present again till he has, ib. INDEX. 541 Simony, and the obligor is liable to the penalty of the bond if he undertake for the ordinary's acceptance, 57. n. Where a father-in-law, on the marriage of his daughter, covenants with his son-in-law to present him to a certain living, 58. Where patron takes a bond from the presentee to pay 10/. yearly to the predecessor's son, ib. To pay 5/. yearly to the predecessor's widow, ib. Bond given by a father to secure an annuity to his son until he should be in possession of a living, 59. n. What church preferments are within this statute, 59. Who may take advantage of simony, 6 1 . If simonist die possessed, whether the king lose his turn, 6\. There may be simony, though neither the patron nor the clerk are privy to it, ib. The eflfect of pardon of simony, 62. Taking or giving above the usual fees for admission, institu- tion, &c. is simony, ib. What resignations and exchanges are simoniacal, 63. Corrupt giving orders and licences to preach, 6"4. How the penalties are to be recovered, ib. Statute 1 W. and M. gives relief in case of leases made by simonists, 67. Statute 12 Anne, prohibiting the clergy to purchase presenta- tions, ib. n. Pardon of simony, the effect of, 0'3. Form of a grant of a perpetual advowson. Appendix, No. 1. Form of a grant of a next avoidance, Appendix, No. 2. Form of a presentation. Appendix, No. 3. Sinecure, what, 244. 247. Suspension, 151. Vide Deprivation. Synodals, 368. T. Trade, spiritual person engaged in, 177. Terrier, the nature of it, 476. n. How far It may be received in evidence, 477. n. Tenths, 361. Vide First Fruits. Tithes, definition of, 281. Great, 282. Small, 283. To whom due, 283. When the parochial right to tithes commenced, ib. Who is ca|)able of them in pernancy, 289. All tithes due to the rector prima facie, 290. 542 INDEX. Tithes, portion oftiilies, C9O. Extra parochial tithes, ib. To whom tithes are clue in particular cases, 29 1. To whom due during a vacancy, 292. If parsons and vicars shall pay to each other, ib. Tithes may belong to a chapel, ib. Of what things tithes are to be paid, 31 1, Of what not, 313. 350. What privilege the parson has in lands where they arise, 350. How to be recovered, 444. Tithes in London, 427. Vide London. Jurisdiction. Recovery. Ttmler,o\Q. Vide Wood. Turkeys, 34g. Turnips, 340. n. V. Vicarage, what, 241. Endowments before and within memory, 242. How lo be construed, ib. Endowed de altaragio, how construed, ib. Corn lands sown with saffron, woad, rape, &c. 243. Vicar shall not pay tithe of glebe to the rector nor e converso, ib. Construction of endowments, ib. When introduced, 244. Freehold of the vicarage in whom, 245. How a vicarage may be reunited, ib. How a vicarage may be dissolved, ib. How the rectory and vicarage may be reunited, 24f). If a charge fall on the vicar, ib. U. Underwood, 3l6. Vide Wood. Unity of Possession, 413. Vide Monasteries. Union, what, 251. Usurpation, ig. n. w. Wax, 340. Winding-sheets, 217. Vide Church. Wool and lambs, 331. Vide Lambs. Wood, tithe of, how and where to be paid, 3l6. Not of great wood or gros bois, ib. What shall he called great wood, 318. INDEX. Wood, burning bricks, 319- Nurseries, ib. Grubbed wood, 31 9. Loppings, 320. Germins, 321. n. Prescription of not tithing wood, 322. Who shall pay tithe of wood, ib. Manner of paying tithe wood, 323. 543 THE END. LONDON: FRINTED BT THOMAS DAVISON, WUITEFRIARS. SCHOOL OF LAW LIBRARY UNIVERSITY OF CALIFORNIA I.OS ANGELES AA 000 824 528 4