A Tithing Table, Legal text 2
Of Compoſition, Tranſaction, Cuſtom, Preſcription, Priviledge: and how they prevail in Tything.
Of Compoſition.
COmpoſition (by the Cannon lawes) holdeth or faileth diverſly reſpected: and it is firſt to be conſidered of as it hath been made & had inter Clericos, i. Betwixt Clerks themſelves; and then it hath tended either Transferendis decimis, i. To the tranſlating of Tithes from one Church to another: Vt quae uni Eccleſiae decimae debentur, alia recipiat, i. That one Church receive tithes which be due to another. And the compoſition herein holdeth ac. 2. d. tranſ c. dilecti. co., and the reaſon is, Non refert quae Eccleſia decimas habeat, modo Eccleſiae perſoluantur, i. It forceth not of Tithes (ſo the Church enjoyeth them) what Church receiveth them bc. 3. eod.. Howbeit, the nature and kind of the Tythes thus tranſlated, muſt be conſidered, namely, whether they be perſonal or predial tithes; if they be perſonal, the compoſition that tranſlated them holdeth not, and the reaſon is, Ne occaſio tribuatur avagandi & divina extra parochiam audiendi, i. Leaſt occaſion ſhould be given to the people of wandring, and hearing of divine ſervice from their own pariſh Churches cc. 2. ſup. ti. … Rebuff in q. 13. nu. 17. de decim..
2 If they be predial, the Compoſition holdeth, Inita cum authoritate Epiſcopi, i. The authority and approbation of the Biſhop of the dioceſſe thereunto had; which compoſition ſhall binde both the Clerk and his ſucceſſors dc. 2. &c venieus. de tranſ: otherwiſe without the Biſhops confirmation, it ſhall not onelyonly binde the Clerk that yeelded thereunto, and not touch his ſucceſſours at all ec. veniens. … praeal..
3 Or the compoſition hath tended Remittendis decimis, i. To the remitting of Tithes, Ʋt tota decima clerico remittatur, namely, That to a Clerk Tythes ſhould be intirely remitted, this compoſition holdeth not fRebuff. q 1 nu. 27. de decim., and the reaſon is, Decima omnino tolli non poteſt, i. Tithe may not wholly be taken away gq. nu. prae. Rebuff..
4. Secondly, compoſition muſt be conſidered, as it hath been ſaid inter Laicos, & Rectorem, i. Betwixt Laymen and Clerks, which compoſition alſo muſt be reſpected thus, namely, whether it be De praeteritis decimis, Of Tythes forepaſſed, or de futuris decimis, i. Of tithes to come. In the firſt caſe, this compoſition alſo holdeth, yea though it be Gratuita, i. Without conſideration or allowance at all hc. ſuper. de reb. eccle non alien.In the ſecond caſe if the compoſition be, Vt Aliquas decimas non ſolvant, i. That tithes be not paid at all, Non eſt admittenda, iRebuff. q. 13. praeal.Not to be admitted i. If the compoſition be, Vt integra decima non ſolvatur, i. That tithe be not wholly paid, but in part, it holdeth: howbeit not otherwiſe but confirmed by authority ſupream: for the Biſhops confirmation herein ſufficeth not, for none could exempt from tithing, nor diminiſh the quantity of the ſame, but the Supream power kText in cavenerabilis de conſef, & ibi Pan., as it followeth in Priviledge.
Of Tranſaction.
1 TRanſaction and compoſition doe differ in this, the one is Gratuita conventio, i. A voluntary, franck and free agreement of things not contēded for, which is ſaid to be compoſition: the other, De re dubia & lite incerta (aliquo dato vel retento) pactio, i. A forced covenant or agreement (for ſomewhat given or received) of things litigious, incertain, and doubtful in controverſie l1. fi. de tranſ. C. e. c. ſuper eo..
2 It muſt be conſidered of Tranſaction as before it hath been ſaid of compoſition betwixt Lay-men and Clerks. Look compoſition four. Tranſaction (if it be of tithes forepaſſed) holdeth; yea though the conſideration had, be of things meer temporal: and the reaſon is Fructus decimarum ſunt temporales, i. The profit and fruits of tithes be reputed temporal mc. veſtra. de loca.. Tranſaction, if it be of tithes to come, muſt be reſpected according to the time and term it is made for, namely, whether it be made in tempus modicum, i. For a ſhort and limitted time, or in perpetuum, i. (without limitation) for ever, In the firſt caſe it holdeth with the Biſhops approbation and authority nArg. c: 2. & 3. ſup. de iis quae fiunta capit.in the other caſe it holdeth alſo if the right and intereſt of the Church be doubtful, as where the Pariſhoner pleadeth againſt the Church, Exemption or Priviledge. But where the right of the Church is Liquidum, i. Where the Churches right is clear, Tranſaction holdeth not otherwiſe then by conſent and authority ſupream oNot. ca. a nobis eod. Pan. c, ſtatuimus de tranſ.. Tranſaction is often taken for compoſition, and one for another pc. venien. e..
Of Cuſtome.
1 CUſtome by the Canon Lawes holdeth or faileth, diverſly reſpected: if it be De transferendis decimis predialibus, i. Of tranſlating of tyths predial (as afore hath been ſpoken in compoſition) it holdeth qc cum ſine homines. & c, ad apoſtolice. eod..
2 If of perſonal tithes, as alſo before hath been ſaid in compoſition, it holdeth not rc. praeal..
3 Cuſtome De non ſolvendis decimis, i. Of not yeelding of Tythes at all, holdeth not, and the reaſon is: Juri naturae & divino contraria eſt, i. Such a cuſtome is contrary both to the Law of Nature, and the Law of GOD ſDD. id c. fi. de conſuetud..
4 Cuſtome De minori quantitatate ſolvenda, i. Of yeelding leſſe than the tenth in quantity, holdeth in Perſonalibus, i. In perſonal tithes only after the opinions of ſome tc. in aliquibus. & ibi inno pan & alii. eod., but of others in predial alſo uRebuff. q. 13. na 46.; and practiſe alſo ſheweth the ſame.
5 Cuſtome De loco, i. Of place where Tythes ought to be left, holdeth xHoſt in ſum Sect. ſin eod..
6 Cuſtome De tempore, i. Of the time of Tythes to be yeelded, holdeth yDD in c. ad apoſtolice praeal..
7 Cuſtome De modo, i. Of the manner and form of yeelding of Tythes, holdeth zRebuff. q. 13. praeal nu. 40. 50. 52..
Tythe what it is, and of how many ſorts.
TYthe of the Latine, Decima, is a tenth part or portion of increaſe, commanded unto Moſes by whom it was delivered (at the appointment of God) to bee paid to the ſons of Levi, for their miniſtery wherein they ſerved in the Tabernacle aNu. c. 18.: in Law defined thus; viz. Omnium honorum licite quaeſitorum quota pars Deo, divina conſtitutione debita, i. Of all lawful increaſe and gain a certain part (by conſtitution divine) due, and appertaining to God bCard. conſil 26. pro evidentia. c. tua c, ſin eod.. And they be either predial, as that which doth ariſe and grow by reaſon and vertue of the grounds, viz. Fruits, and increaſe of Beasts, Fiſhes, Fowles cc. pervenit. praeal. eo c. non eſt. 22. c., &c. Or they be perſonal, as that which ariſeth by reaſon and vertue of lawful and honeſt commoditie, ſo recovered and procured by art, ſcience, or manual Occupation of ſome perſon dc. ad apoſtolice. prae.. It is alſo to be noted, that tithes, ſome of them comprehended under theſe titles, Praedial and perſonal, be called be the name of mixt tythes, of which ſort be ſuch as do riſe and grow partly by the grounds eca. commiſſum praeal., and partly by the care, keeping, labour, and induſtry of ſome perſon fc. apoſtolice. e paſtoralis. eod:; as of Cattel ſubject to the Fox, Woolfe, and ſuch devouring beaſts, ſuppoſed to be partly of the grounds where they be bred and fed gl. cum quidam ff de fun. inſtruct., even as a tree is ſuppoſed to be alſo partly of that place where the roots do grow, by the which it is nouriſhed hl. ſi plures, in ſin. ff arb. furt. caeſ.: ſo they be maintained by the grounds, but defended by the ſhepherds. Look more of mixt tithes in the twelfe queſtion. Some of them by the name of greater Tythes, In Latine Majores ſive groſſae decimae (as we term them) Great tythes: ſuch be of Corn and Pulſe ic. ex multiplici de dec.. Some of them be termed Minores or Minutae decimae (in our common ſpeech) Small tithes, ſuch be ſeeds, Hearbs; Egges kGlo. & DD. in c. cum ex tua. &c. ex multiplici. praeal. eod., &c. mentioned in the ninth and fourteenth queſtions, 1.
Of Preſcription.
PReſcription is not much differing from cuſtome, as before is ſpecified of Tranſaction and compoſion: but the one oftentimes is taken for the other aDom. ca. 2. col. ult de preb. in 6. barb. conſil. 35. ſapientur. col. 6. in 2. vol.. Howbeit herein they differ, Conſuetudo proprie dicitur quando jus acquiritur in communi et publico, i. It is properly ſaid to be cuſtome where a right to many is procured in common and publike. Praeſcriptio vero quando privato, i. Preſcription when privately to one bPan. in ca. cum eccleſia. col. 8. nu. 45. de cauſ. poſ..
Of Priviledge.
PRIVILEDGE or exemption is derived from authority ſupream, by the which ex juſta cauſa, i. upon cauſe and good conſideration, ſometimes the perſons themſelves, as the order called Ciſtercienſes, and other Religious perſons were priviledged and exempted from tithes cc. a nobis de decim.; ſometimes the places, as grounds belonging to Religions perſons dc. ex parte eod.. For example, Monaſteries, Priories, Nunries, Colledges, &c. or other Eccleſiaſtical houſes, &c. or any Manors, Meſuages, Parſonages appropriate, &c. or other Hereditaments which belonged unto the ſaid Monaſteries, Priories, &c. which were diſcharged of and for the payment of Tythes, being in the hands of Abbots, Priors, or other Eccleſiaſtical Governors. Concerning theſe poſſeſſions in religious perſons, there hath been five ſeveral times obſerved eRebuff. q: 14. nu. 37, 38, 39, 40, 42.: but leaving thoſe times I referre the readers onelyonly to the ſtatute viz. Theſe Monaſteries, &c. and every perſon and perſons, their Heirs and Aſſignes, having &c. ſhall be according to their eſtates and titles diſcharged of payment of tythes, in as ample manner as any of the ſaid Abbots, &c. at the daies of their diſſolution. 31. H. 8. 13.
Summaries of the Statutes of Tything.
EVery of the kings ſubjects ſhall truly and juſtly without fraud or guile divide, ſet out, yeeld and pay all manner of their predial tithes, in their proper kind, as they riſe and happen in ſuch manner and form as hath been of right yeelded and paid within fourty years before the making of this Act (being 4. November Anno 1548) or of right or cuſtome ought to have been paid. And no perſon ſhall take or carry away any ſuch or like tithes, &c. before he hath juſtly ſet forth for the tythe thereof the tenth part of the ſame, or otherwiſe agreed for the ſame Tythes with the Parſon, &c. under the pain of forfeiture of treble value of the Tithes ſo taken or carried away, 2. Ed. 6. 13.
At all times whenſoever the ſaid praedial tithes ſhall be due at the tything time of the ſame, it ſhall be lawfull to every party to whom any of them ought to be paid, or his deputy or ſervant to ſee their ſaid tithe to be truly ſet forth, and ſevered from the nine parts, and the ſame quietly to take and carry away, 2. Ed. 6. 13.
If any perſon carry away his corne or hay, or his other praedial tithes, before tithe thereof be ſet forth, or willingly withdraw his tithes of the ſame, or ofDouble value of the tenth beſides coſts. ſuch other things whereof predial tithes ought to be paid, or do ſtop or let the Parſon, Vicar, &c. or other their deputies, to view, take and carry away their tithes, by reaſon whereof their ſaid tithe or tenth is loſt or hurt: then upon due proof thereof, &c. the party ſo carrying away, &c. ſhall pay the double value of the tenth, &c. beſides the coſts, charges and expences of the ſuit in the ſame, &c. to be recovered before the Eccleſiaſtical Judge, according to the Kings Eccleſiaſtical Lawes, 2. Ed. 6. 13.
Every perſon which ſhall have any beaſts or other cattel tithable, going or feeding in any waſte or commonWaſt ground not certainly known of what pariſh. ground, wherof the pariſh is not certainly known, ſhall pay his tithes for the increaſe of the ſaid cattel, to the parſon, Vicar, &c. of the pariſh, Hamlet, Town, or other place where the owner of the ſaid cattel dwelleth, 2 Ed. 6. 13.
All ſuch barren heath and waſt ground, &c. which before this time hath been barren and paid no tithes, by reaſon of ſuch barrenneſs, and ſhallWaſt ground improved that never paid tythe. be improved and converted into arable ground or Meddow, ſhall after the end of ſeven years next after ſuch improvement, pay tithe for the corn and Hay growing upon the ſame. But if ſuch barren, &c. &c. hath before, &c. been charged with the paymentWaſt ground improved that paid tithe before. of any tythes, and the ſame be after improved, and converted into arable ground or meddow, then the owner thereof ſhall, during ſeven years next following from and after the ſame improvement, pay ſuch kind of tithe as was paid for the ſame before the ſame improvement, 2. Ed. 6. 13.
Great wood of the age of twenty years or of greaterSilva Caedua. age ſold to marchants to their own profit, or in aid of the King in his Warres, is not Tithable nor comprehended under this word Silva Caedua, 45. Ed. 3. 3.
Every perſon exerciſing marchandiſe, bargayningPerſonal tithes. and ſelling, &c. or other art or faculty, being ſuch kind of perſons and in ſuch places as heretofore within theſe forty years have accuſtomably uſed to pay ſuch perſonal tithes, or of right ought to pay (other than ſuch as be common day-labourers) ſhall yearly, &c. pay for his parſonall Tithes, the tenth part of his clear gaines, his charges and expences, &c. deducted. But in all ſuch places where handicrafts men have uſed to pay their tithes, &c. the ſame cuſtome of payment of tithes ſhall be obſerved and continued, 2. Ed. 6. 13.Offerings.
Every perſon which ought to pay offerings, ſhall (yeerly) truly pay them to the Parſon, Vicar, &c. at ſuch four offering dayes, &c. as have been accuſtomed for the payment of the ſame; and in default thereof to pay for the ſaid offerings at Eaſter then next following, 2. Ed. 6. 13.
No tithes of marriage goods ſhall be required of anyWales. perſon within Wales, or the marches thereof. Neither ſhal any perſon be compelled to pay tithe for the lands or hereditaments, which by the laws and ſtatutes of this realm, or by any Priviledge, or Preſcription, are not chargeable with the payment thereof: or that be diſcharged by compoſition real, 2. Ed. 6. 13.Obſtinacie.
If any perſon after ſentence definitive given againſt him, obſtinately refuſe to pay his tithes, or ſhall otherwiſe contemn and diſobey the proceſſe and decrees of the Eccleſiaſtical Courts, &c. then upon informationContempt. given, &c. the ſame party ſhall be committed to ward, &c. 27. H. 8. 20. Look the ſtatute in all.
If any of the parties doe appeal, &c. then theAppeales. judge forthwith ſhall adjudge to the other party the reaſonable coſts of his ſuit therein before expended, and take ſurety of the other party, &c. to what effect, ſee the ſtatute in all, 32. H. 8. 7.
If any party, &c. do ſue for any prohibition, &c. underProhibition the coppy of the Libel ſhall be written the ſuggeſtion, wherefore the party ſo demandeth the ſaid prohibition: and in caſe the ſaid ſuggeſtion by two honeſt and ſufficient witneſſes at the leaſt, be not proved true in the court where the ſaid prohibion ſhal be ſo granted, within ſix moneths next following, &c. Then the party that is hindred of his ſuit in the Eccleſiaſtical court by ſuch prohibion, &c. ſhall have a conſultation granted, &c. and ſhall alſo recover double coſtsConſultation and dammages, 2. Ed. 6. 13. And the Judges before whom the cauſe was firſt brought in queſtion, ſhall proceed notwithſtanding the Kings Prohibition, 24. Ed. 1.
Theſe be Summarily (Chriſtian Reader) the ſpiritual and ſtatute Lawes of the Land for Tything: this is the work, take it in good part: the title but begun, may better be ſatisfied hereafter.
FINIS.
End of the text · William Crashaw, A Tithing Table (1658)