Ecclesiastical Cases Relating to Parochial Clergy, Part 4

Ecclesiastical Cases Relating to Parochial Clergy · Part 4

p. 229OF THE MAINTENANCE OF THE PAROCHIAL CLERGY, BY LAW.

THE Subject I intend now to consider, is the Incouragement which the Parochial Clergy have by Law for the doing their Duties: Which are the Manse, the Oblations, and the Tithes.

I. The Manse, or House and Glebe. In the Canons of Egbert it is said, Can. 25.Baluz. ad Capit. 1148 That an entire Manse ought to belong to every Church, without any p. 230other than Ecclesiastical Service. By a Manse, Selden of Tithes, p. 53.Mr. Selden saith, in the old Charters the same is meant as a Casat or Hyde of Land. Bignon. ad Form. Marc. p. 980.Bignonius and Sirmondus say, So much Glebe as was an Imployment for an Husbandman and two Servants. Sirmond. ad Capit. p. 768.Spelman saith, It takes in the House too. Lyndw. f. 44. Extr. de Censib. c. 1.Lyndwood saith, As much Land as would Imploy a Yoke of Oxen; and so the Gloss on the Canon Law. But in another place the Gloss saith, The Manse is the original Endowment of the Church, C. 23. Q. 8. c. 24.without which it cannot be supplied: and without which it could not be consecrated.De Consecr. D…st. 1. c. 9. For the Endowment was first to be produced before the Building,C. 16. Q. 7. c. 26. Collatâ primitùs donatione solemni, are the Words of the Canon Law. And the same appears by Concil. Valent. 3. c. 9. Concil. Bracar. 2. c. 5. Vit. Udalrici c. 7. Regino l. 1. c. 23, 24. which is there explained to be a substantial Sustenance for those who were to attend the p. 231Service of that Church. And in the Acts of Consecration of a parochial Church in Baluzius, Baluz. Append. ad Reginon. p. 622.the Bishop in the first place declares himself satisfied with the Endowment, unde dignè domus Dei sustentaretur. And upon this the Original Right of Patronage was founded,Ent. de Eccles. aedific. c. ad Audientium. not upon the Soil, which gave no Title, where there was not a Church built and endowed with a competent Subsistence. So that all Advowsons or Rights of Presentation in private Patrons, were at first Appendant to Manors, and not in Gross; because the Right came from the Endowment out of the Manor: And the Name of Patron in the Sense of the Feudal Law, is the same with Lord of the Fee, and so Beneficium is a Feudal Term; and till the Feudal Law prevailed, the Name of Patrom is rarely used in this Sense. And when it came to be used, the Patrons in France would have brought p. 232those who had their Benefices to a kind of Feudal Service, and to have received Investiture from them. This Mr. Selden drives at,Seld. 85, 86. as though the Patrons had the Right of Investiture belonging to them, because some such Practice is often complained of in the French Canons, and as often condemned, not meerly by Ecclesiastical Canons, but by as good Laws as any were then made. It cannot be denied that bad Practices are the Occasion of making good Laws; but doth it follow that those Practices which were against Law, were the Law of that time? Yet this is Mr. Selden's way of Arguing; he grants,F. 89. That there were Laws made, but they were little obeyed. Must we therefore conclude those illegal Practices to have been the standing Law, and the Laws themselves to be illegal? There were two things aimed at by those Patrons. 1. To keep the Clergy p. 233in a sole Dependance on themselves, witout Regard to the Bishop's Authority. 2. To make such Bargains with them as they thought fit. Both these were thought necessary to be redressed by Laws, since the Canons were slighted by them. And if the Practice be good against Law in one case, why not in the other also? Why is not Simony justified, as well as the Patron's absolute Power over the Incumbents? but the Laws were severe against both. For in the time of Lud. Pius, A. D. 816. there was a solemn Assembly of the Estates of the Empire, where several Ecclesiastical Laws were passed, and among the rest, these two:Capit. 816. c. 9. 1. That no Presbyters should be put in, Capit. 1, 84, 141.or put out of Churches, without the Authority and Consent of the Bishops; and that the Bishops should not refuse those who were presented, if they were probabilis Vitae & Doctrinae, i.e. p. 234such as the Bishops could not object against either for Life or Learning. 2. That every Church should have an entire Manse belonging to it, free from any Feudal Service; but if they had other Estates of their own, for them they were to answer to the Lords of the Manor, as others did. And from hence this came into the Collections of Ivo, Ivo p. 3. c. 55, 174.Regino, Burchardus, and Gratian, and passed for a Law generally received.Regino l. 1. c. 24. As to the former, a new Sanction was added to it in another Assembly at Worms, Burch. l. 3. c. 52.A. D. 829. c. 1. and repeated in the Capitulars, C. 23. q. 8. c. 24. 25.l. 5. c. 98. Addit. 4. c. 95. and the like as to the latter, l. 5. c. 100. Capit. A. 829. c. 4.

But it seems there were some still continued obstinate in their former Practices, and therefore these Laws were reinforced in another Assembly, A. D. 869. in the time of Carolus Calvus, who mentions the Laws of p. 235his Father and Grandfather to the same purpose, c. 9. and there takes notice of the Contrivances made use of to defeat the Intention of those Laws; and the bottom of all is there said to be abominable Simony. Which shews, what it was which these Patrons aimed at, by claiming Investiture without the Bishop. And it was then judged necessary, that the Bishop's Consent was required to prevent this Mischief. But still some Patrons required Feudal Service for the Glebe they had given to the Church; but the Law commands them to restore it free from such Service, Capit l. 5. c. 100.Concil. Labb. T. 8. p. 1815. Addit. l. 4. c. 98, 163. And after much struggling, Hinomarus, who lived at that time, saith, That these Laws were observed. The Patron's Right by Virtue of the Endowment, was not disputed; but an Arbitrary Power, as to the Incumbents, was utterly denied them; and they were put under p. 236the Bishop's Care, who was to receive Complaints against them, and to proceed according to the Churches Canons. But I am apt to think that all this stir in France did not arise from the pretence of Original Donation and Endowment of Churches, but from the Infeodation of Church Lands and Titles, by Charles Martel (as an old MS. Filesaci Opus. p. 846, &c.in Filesacus saith) and others in France, whose Custom it was to give them in Recompence to their Souldiers, Fragment. de Majoribus Pal.who then looked on them as their own,Du Chesn. T. 1. and were hardly brought to any reasonable Allowance for the Clergy which supplied them. These were called Beneficia in the Capitulars, Capit. l. 1. 157.and they were to pay Nonae & Decimae, i.e. a Fifth Part out of them, which was obtained with much Difficulty, as appears by the many Laws made about them.Regin. l. 1. 43, 45, 46, 47. In the Council at Leptins, A.D. 743. Carolomannus, son to p. 237Charles Martel, owns the letting out some of the Church Lands sub Precario & Censu, upon a reserved Rent, Can. 2. Capit. l. 5. c. 3. but then it was barely for Life. But the consequence was, That it was very hard to recover either the Lands or the reserved Rents, and they put in Clergymen, and put them out as they pleased, because they held these Lands as Beneficiary Tenures from the Crown. So that it was the Work of more than an Age to put the Church there in any tolerable Condition. But this seems to be very much mistaken, when it is brought to prove the Right of Patronage from the Endowment, as to the Disposal of Benefices.

But the Right of Patronage by the first building and endowing the Church, is owned by the Civil Law in Iustinian's Novels, 123. c. 18. and Two Things were there required; 1. A sufficient Maintenance for the p. 238Clergy who were nominated. 2. The Bishop's Satisfaction as to their Fitness; about which he speaks in another Novel, 56. Tit. 12. c. 2. And he elsewhere requires, that before any Churches were built, the Bishop should see that there were sufficient Maintenance for those who were to officiate, Novel, 66. Tit. 22.

The same Right obtained here upon the same Grounds, as appears by the Barons Answer to Gregory IX. who affirm, That they had it ever since Christianity was founded here. They mean, ever since parochial Churches were endowed by their Ancestors; for there could be no such Right of Patronage before. And such Patrons were here called Advocati Ecclesiae, as appears by Ioh. Sarisbur. Ep. 6. 119. and the Ius Advocationis, as our Lawyers tell us,1 Inst. 17. b. is a Right which a Person hath to present to a vacant Benefice in his own p. 239Name; which is agreeable to what Bracton and Fleta had said long before.

But it doth not appear by them how the Names of Patron and Advocate came to be so applied. Among the Romans, saith Asconius Pedianus, the Patron was he that pleaded the cause of another; the Advocate, he that appeared in Court on his behalf. But this doth not reach to the Ius Advocationis which we are now about. In the Ninety seventh Canon of the African Code, an Allowance is made for the Churches to have Advocates to solicite their Causes at Court.Capit. l. 7. c. 392. From hence the greater Churches and Monasteries had their proper Advocates appointed them by the King,Bignon. in Marculph. l. 1. c. 21. as Bignonius observes; and in the old Charters of Aub. Miraeus, several such Advocates are appointed; and it appears to have been an honorary Title, and p. 240great Men were pleased with it. Miraeus faith,Aub. Mirae. Cod. Donat. l. 1. c. 136. it was accounted a considerable Honour at that time. And so by degrees the Founders of Parochial Churches came to have the Title of Patrons and Advocates of them; and the Right they injoyed, the Right of Advowson as well as Patronage (not as some ridiculously talk of Advocat se, P. Roverii Reomaus, p. 614.or Advocat alium) because the Trust and Care of those Churches, endowed by their Ancestors, was fallen to them, and they were bound to look after,De Foro Compet. f. 50. C. 56. q. 7. n. 32. and to defend the Rights of them; and so Lyndwood explains it.

II. The next thing to be considered, is the Oblations of the People, which in those elder times were so free and large, that (which may seem incredible now) there were Persons who would build Churches on their own Land to have a Share p. 241in the Oblations, as is affirmed in one of the Spanish Councils,Concil. Brac. 3. c. 6. and there forbidden with great Severity. It was not,De Consecr. 1. c. 10. as the Gloss on the Canon Law understands it, to make a Bargain for the Right of Patronage, but it is expressed to have an equal Share with the Clergy in the Oblations of the People.

It is observed by Agabardus, Agabard. de Dispens. c. 20.That the Devotion of Persons in the first Ages was so great, that there was no need to make Laws or Canons for the Supplies of Churches, since they were so amply provided for by the Liberality of the People. Thence we read of the Deposita pietatis in Tertullian, Tertul. Apolog. c. 39.which were voluntary Oblations; and out of which were made Divisiones Mensurnae in S. Cyprian, Cypr. Ep. 34.and the Sportulae, which were the Allowances made to the Clergy out of the common Stock; and they who received them, and not those who gave them (as Mr. p. 242Selden fancies) were called Sportulantes Fratres; and the Allowances were then stiled Stipes & Oblationes, Ep. 66.which were so considerable, that St. Cyprian blamed some for their setting their Hearts too much upon them;Ep. 64. Stipes, Oblationes, Lucra desiderant, quibus prius insatiabiles incubabant; which could not be said of any meer necessary Subsistence; these they received tanquam Decimas ex fructibus, as St. Cyprian speaks, in lieu of Tithes at that time, when the most of the Christian Church inhabited the Cities, and gave out of their Stock to maintain the Church, and those who attended upon the Service of it. But when Christianity came to spread into the Countries, then a more fixed and settled Maintenance was required, but so as to retain somewhat of the Ancient Custom in voluntary Oblations.

p. 243No sooner was Christianity settled in France, but we read of Lands given to the Church by Clodovaeus after his Conversion; these are owned by the first Council of Orleans called in his time, A. D. 511. and were put into the Bishop's Hands, and to be distributed by him for Repairs of Churches, Maintenance of the Clergy, and other pious Uses, Can. 5. 14, 15. But besides these, we read still of Oblations made by the people on the Altar, both in the Mother-Church, and in Parochial Churches. If in the Mother-Church one Moiety went to the Bishop, the other to the Clergy; if in the other, only the third Part to the Bishop.

In the second Council of Mascon, Can. 4. we find it required, That all the People make an Oblation of Bread and Wine at the Altar; and this was A. D. 585. but besides, the next Canon insists on the Payment of Tithes, as founded on the Law of God, and p. 244the Ancient Custom of the Church, which is thereby reinforced; unde statuimus & decernimus ut mos antiquus reparetur; which Words are not fairly left out by Mr. Selden, Selden of Tithes, c. 5. n. 5. p. 58.because they shew that there was only in this Canon a renewing of an Ancient Custom, which had obtained, but was now growing into Disuse. For this Council of Mascon was called on purpose to restore what they found too much declining, as to Religion; and they begin with the Observation of the Lord's Day, and after, add this, wherein they complain of the Neglect of that which their Predecessors observed, as founded on the Law of God. So that there can be no doubt of the Custom of paying Tithes in France, from the time of receiving Christianity; and that this Custom declined as their Religion did. In the Council of Nantz, about A. D. 658. Oblations and Tithes are mentioned p. 245together, c. 10. as making up the Churches Stock, which was to be divided into Four Parts, to the Bishop, and to the Clergy, and to Repairs, and to the Poor.

But besides the Oblations of the Living, it was then common to make Oblations at their Death; and these were called Oblationes defunctorum, and severe Canons were made against the Detainers of them, Concil. Vas. I. c. 4. Agath. c. 4, 13. Q. 2, 9, 10, 11. And so much appears by those Canons which forbid Exactions at Funerals, Concil. Tribur. c. 16. Nannet. c. 6. where an Exception is made as to voluntary Gifts, either by the Parties deceased, or by the Executors. But here, in the Saxon times there was a Funeral Duty to be paid, called Pecunia sepulchralis & Symbolum Animae, and a Saxon Soulshot; this is required by the Council at Aenham, Spelm. Con. p. 517.and inforced by the Laws p. 246of Canutus, c. 14. and was due to the Church the Party deceased belonged to, whether he were there buried or not. Some take this for the Foundation of Mortuaries; but then the Money must be turned into Goods. For in Glanvil's time,Glanvil. l. 7. c. 5. a Freeholder is allowed to make his Will of other things, provided that he give his first best thing to his Lord, and his second to the Church. And this was not originally pro Animâ defuncti, as Lyndwood thinks, from the Modern Canonists De Consecrat. c. 12. but it was a Right of the Church settled on the Decease of a Member of it, as appears by the Law of Canutus. Others have said, That it was in lieu of Tithes substracted, and Oblations not duly made. So Simon Langham in his Constitution about Mortuaries, which was made to explain a former Constitution of Robert Winchelsee, because the People were observed p. 247not to pay their Tithes and Oblations as they ought. But he did not go about to settle a Right which had not been before, but to prevent Suits about that which was to be taken for a Mortuary; and he declares, That where there was a choice of Three or more, the Second was to be for the Mortuary, De Sepult. f. 93. b. So that R. Winchelsee supposes it to be an ancient Right. Indeed in the Cotton MS. Spelm. Concil. II. p. 433.of the Council of Merton, where this Constitution is extant, the Reason is given, That it was required by way of Compensation for the Neglect of Tithes and Oblations. In the Synod of Winchester, in his time, a Constitution is made for the Uniform Payment of Mortuaries in that Diocess, the second best of the Goods or Chattels was to be paid in lieu of Tithes unpaid.P. 453. In the Synod of Exeter of Pet. Quivil, 15 E. 1.P. 391. the Reason is given for p. 248the Neglect of all parochial Duties; but there it is said, That some pleaded Custom against the Payment of them, and others, as to the Manner; and although this Council endeavoured to settle an Uniform Payment, yet the Statute of Circumspectè agatis, leaves the whole Matter to Custom, ubi Mortuarium dari consuevit. 2 Inst. 491.From whence my Lord Coke inferrs, That there is no Mortuary due by Law, but only by Custom. The true Inference was, That the contrary Custom had altered the Law from what it was in the times of Canutus and Glanvil. But that the prevailing Custom became the standing Law, as to Mortuaries, appears by the Statute of 21 H. 8. c. 6. which limits the Payment where the Custom continued, but allows Liberty for Free Oblations: And this Free Oblation was then called Cors presentè, and was distinct from the Mortuary in p. 249lieu of Tithes, as appears by the Instances in Sir W. Dugdale. Warwickshire, p. 470, &c.But I return to other Oblations, which Lyndwood distinguisheth into those by way of Gift, and such as became due. For these latter, he insists on c. Omnis christianus in the Canon Law, De Consecr. D. 1. c. 69. which requires that every one who approaches the Altar, make some Oblation. Where the Gloss saith, it is but Counsel at other times, but a Command on the Festivals. For this 16 Q. 1. c. 55. is produced, quas populus dare debet; but it is there interpreted of the case of Necessity: Hostiensis thinks all are obliged on great Festivals, and that the general Custom lays an Obligation; but Lyndwood thinks the Custom of particular Churches is to be observed.

In the Synod of Exter beforementioned,Spelm. II. p. 393. Oblations are said to be of Divine Right, and that every Parishioner is obliged to make them; p. 250but the Time is limited to Christmas, Easter, the Saints-day of the Church and the Dedication, or All-Saints. So that four times in the Year they were required to make Oblations after the Age of Fourteen. And so Giles, Bishop of Sarum, P. 303.debent offerre ex debito quater in anno.

In the Synod of Winchester, none were so obliged till Eighteen,P. 452. and having Goods of their own.

But I observe, that in the ancient Canons here, by the Oblations, such things were then understood, as were for the Support of the Clergy: Thence several Canons were made against those who turned them another way. So in the Council of London under Archbishop Stratford, P. 410.Oblations are declared to belong only to Ecclesiastical Persons. P. 585.And so Lyndwood saith,Lyndw. f. 12. The Goods of the Church are called Oblations. And in case the Mother-Church were appropriated, p. 251the Oblations and Obventions made in the Chapel of Ease,Spelm. II. p. 393. did not belong to the Convent, but to the Persons who officiated there. These were called by the Name of the Altarage, and were generally expressed under that Name in the Endowment of Vicarages; but when these were too small for the Maintenance of the Vicar, those small Tithes which were joyned with them, were comprehended under that Name; and so it hath been resolved in the Courts of Law upon a solemn Hearing.Spel. Gloss. c. Altarage.

Iohn de Burgo, in his Pupilla Oculi, speaking of Oblations, saith, That persons may be bound to them four Ways:

1. By Contract upon the Foundation of the Church, which amounts only to a Pension upon Endowment.

p. 2522. By Promise either living or dying.

3. By Necessity, when the parochial Minister cannot be supported without it.

4. By Custom,Ioh. de Burgo Pupill. Oculi, f. 118. b. in the greater Solemnities; but he saith, the Proportion and Kind are left to Discretion; which made Oblations sink so low, that the parochial Clergy must have starved, if they had nothing else to support them.

But besides these, he mentions Occasional Oblations upon particular Services, as at Marriages, Christenings, Funerals, &c. concerning which we have several Constitutions against those who went about to hinder them,Spelm. II. 495, 410. or to reduce them to a small Quantity. The Easter-Offerings are none of these Voluntary Oblations,Pupilla Oculi, Part. 5. c. 21. but a Composition for Personal Tithes payable at that time; of which I may have occasion to speak more afterwards. But in p. 253the Saxon times here were other sorts of Oblations; As (1) the Cyrycsceat or First-fruits of Corn payable at S. Martin's day, Ina LL. 4. 62. Edmund. c. 2. and is often mentioned in Doomsday-book, and in Fleta l. 2. c. 47. Malmsb. l. 2. c. 11. and the Oblation of Poultrey at Christmas is mentioned in Doomsday, under that Title. (2.) There was here another kind of Oblation called Plow-Alms, which was a Peny for every Plow between Easter and Whitsontide. This is mentioned in the Laws of King Ethelred, Spel. Concil. … 517, 527.and required to be paid Fifteen days after Easter, although it be called Eleemosyna Aratralis. In the Endowment of the Vicarage of S. Ives, Plow-Alms is mentioned besides the Altarage and Obventions.Mon. I. 256.

But all these Oblations made a very poor Subsistence for the Parochial Clergy.

p. 254III. And therefore I come to the main Legal Support of the Parochial Clergy, which is in Tithes. Concerning which I shall proceed in this Method;

I. To consider the Foundation in Law which they stand upon.

II. The Rules of Law which are to be observed about them.

I. As to the Foundation they stand upon in point of Law. My Lord Coke not only saith, …. Inst. 642.That the Parochial Right of Tithes is established by divers Acts of Parliament; but he mentions the Saxon Laws before the Conquest for the Payment of Tithes of Edward and Gathrun, Ethelstan, Edmund, Edgar, Canutus, and King Edward's, confirmed by William I.Hob. R. 296. Hobart saith, That Tithes are things of common Right, and do of Right belong to the Church. And since Parishes were erected, they p. 255are due to the Parson (except in spiritual regular Cases) or Vicar of the Parish.

In the Register of Writs, a Book of great Authority, Regist. f. 46.there is a Writ of Consultation for Tithes, wherein they are owned to be of common Right, as well as immemorial Custom, due to the Rector within the Limits of his Parish.

Lord Chief Justice Dyer saith, Moor. f. 50.That Tithes can never be extinguished, because they are of common Right.

The same is affirmed by Justice Dodderidge in the Case of Fosse and Parker.Bustrod. 3. 243.

In Pieddle and Napper's Case,11 R. 13. Tithes are said to be an Ecclesiastical Inheritance collateral to the Estate in Land, and of their own Nature due to an Ecclesiastical Person: And, That all Lands of common Right are to pay Tithes. Therefore it is said by Hobart in Slade's Case,Hob. 298. 44. p. 256That no Land can be discharged of Tithes, although it may be discharged of the actual Payment.

In Popham's Reports we read,Rolls R. 2. 174. That it is a Maxim in Law, that all Persons ought to pay Tithes, Poph. R. 156.and all Lands shall be charged with them of common Right. So that if the Judgment of some of the greatest Men of the Profession may be taken, nothing can be more clear and evident than the Legal Right of Tithes. But it falls out unhappily among us, that nothing hath been the Occasion of so much Difference and Contention between the Incumbents and their Parishioners, than the Point of the Payment of Tithes. So that some have wished them changed into some other way of Maintenance; but I cannot see any Reason why so ancient, so legal, so just a Maintenance should be changed into any other, which would less answer the End, p. 257and be liable to as many Difficulties, if not far more; but every Change of this kind, where we cannot be secured of the Event, is very dangerous, especially when it proceeds from Want of Judgment or Ill-will to the Profession; both which are to be suspected in this case. If the ill Humours of some People could be changed, it would signifie far more to the Quiet of the Clergy, than altering their legal Maintenance.

Therefore the best way is to enquire into the Reasons of this Dissatisfaction, that we may find out the proper Methods to remove it, and thereby to prevent the troublesom and vexatious Suits about them, which make the parochial Clergy so uneasie, and their Labour often unsuccessful with the People.

And there is a twofold Dissatisfaction which lies at the bottom of most of these Contentions about Tithes.

p. 2581. In Point of Conscience.

2. In Point of Law.

1. In Point of Conscience. There is a sort of People among us, who are very obstinate in this Matter, and will rather chuse to go to Prison and lie there, than pay their Tithes. I have often thought whence such a Stiffness should arise in a matter of Legal Right. If they had opposed all Determinations of Property by Law, they had been more consistent with themselves; but to allow the Law to determine the Right as to Nine Parts, and not as to the Tenth, is not to be reconciled. For if the Question be concerning the other parts, to whom they do belong, may not Men as well dispute the matter of Dominion and Property in them? May they not say, that the Seed is our own, and the Labour and Charges p. 259our own; why then shall I answer to another for the Profit which arises from my Pains and Expence? If it be replied, That the Law hath given the Property of the Land to one, and the Use to another, why may they not pretend this to be an unreasonable Law to separate one from the other, since Land was given for the Use; and the Original Right of Dominion was from what was necessary for Use; therefore the separating Right and Use, is an Incroachment on the Natural Rights of Mankind. And there seems to be more Colour for this, than for any to allow the Laws to determine the Right of Nine Parts to belong to the Lord of the Soil, but the Tenth by no means to go that way, which the Law of the Land hath long since determined it. So that the Lord of the Soil either by Descent or Purchase, can claim no Right to p. 260it; for neither did his Ancestors enjoy it, nor those who sold the Land to a Purchaser consider it as his own, for then he would have had the Value of it. The Tenth Part then is set aside in Valuation of Estates, as already disposed of; and the Question is, Whether the same Law which settled the Right to the other, shall determine this likewise? Is it not a part of natural Injustice to detain that which by Law belongs to another? And is not the Law the Measure of Right in Cases of Difference between Man and Man; Why then should not the Law fairly and equally determine this matter, to whom the Tenth of the Profits belongs?

But still they say, It is against their Conscience, and they cannot do it. Is it against their Conscience to do Acts of Natural Justice, not to detain that from another, which of Right p. 261belongs to him? But it is in vain to argue with people, who do not judge of things by the common light of Reason and Justice, but by an unaccountable Light within them, which none can judge of but themselves; and in matter of Interest Men are the worst Judges in their own Case.

2. Therefore I come to those who are capable of being argued with; such, I mean, who are unsatisfied in the Point of Law, not in general, but in particular Cases, from whence Suits arise, and those are often from these Causes:

1. Not duly considering the just Measure and Extent of the Rules of Law for the Payment of Tithes.

2. Not attending to the Exemptions, or Discharges by Law from the Payment of Tithes.

The best way I know to prevent troublesome Suits about Tithes, is to p. 262enquire diligently into these two Things:

1. The Rules of Law for the Payment of Tithes. One might have justly expected, that in a matter of common Right and daily Practice, and wherein the Peace and Quiet of the People is so much concerned, as well as of the Clergy, the Rules of Law should have been plain, and clear, and liable to as few Exceptions as possible; but instead of this, there is not one general Rule in this matter, but hath several Exceptions; and different Opinions have been about them by the great Men of the Law, which hath given too much occasion to the Multitudes of Suits which have been in the matter of Tithes; so that the Clergy are not so much to blame, if they are unavoidably involved in Suits by the Perplexity of the Law, and the different Resolutions which have been made p. 263about the Cases reported by them.

This I shall make appear by examining some of the most general Rules of Law, and comparing them with the Resolutions which have been made in particular Cases.

1. One of the most standing Rules of the Law, Law of Tithes, c. 12. p. 214.is, That Tithes are only to be paid of things which do annually increase, ex annuatis renovantibus simul & semel.

But is this Rule allowed in all Cases?

1. From hence Coke concludes, That no Tithes are to be paid of Minerals, 2 Inst. 651. Select …. 16.or of what is of the Substance of the Earth; and so Stone, Turff, Tinn, Lead, Coals, Chalk, Pots of Earth, are denied to be titheable. But I find, 5 H. 4. n. 65. a Petition of the Commons was denied about being sued in the Ecclesiastical Courts for Tithes of Stone and Slat taken out of their Quarries. The Petition was renewed, 8 H. 4. p. 264and then the King's Answer was, That the former Custom should continue. And so about Tithes for Sea-Coals, 51 E. 3. n. 57. From whence it appears, that these things might be tithed by ancient Custom, and that was not thought fit to be altered. But, 34 Eliz. it was resolved in the Kings-Bench,Moor 908. That no Tithes are due of Quarries of Slat or Stone, in the Case of Lysle and Wats. …. El. 277.Here was no Regard to Custom, and a Reason is given, which deserves to be considered, viz. That he may have Tithes of the Grass or Corn which groweth upon the Surface of the Land where the Quarry is. But how if there be none? As Lands where Quarries are, seldom afford Tithes. But the Note on the Register saith,…. That if Corn do grow there, Tithe of it would be due however. So that here we have a Rule against an ancient Custom and Rule too. But it cannot be denied, p. 265that Fitz-Herbert and Brook say,F. N. B. 53. B. 241. That there is no Tithe of Quarries, or Coals, or such things; and it was so adjudged, 11 Iac. and 14 Iac. and in other Cases since.Rolls 637. And yet after all, Rolls yields,March 58▪ That a Custom in these cases is to be allowed; so that the general Rule is to be understood so, as there be no Custom to the contrary. And as to Minerals, it is determined by a late Writer,Law of Tithes▪ 214. That by Custom Tithes may be due of them, although they do not annually increase. And my Lord Coke mentions King Iohn's Grant to the Bishop of Exeter of the Tithe of his Tinn-Farm. 4 Inst. 232. 1 Rolls, 637.And a good Author assures us, That in Places of Lead-Mines, Cosin's Apo…. p. 38.the Tithe of Lead is the chief Part of the Ministers Maintenance. Therefore my Lord Coke concludes his Discourse of Tithes with this general Rule, That by Custom a Parson may have Tithes of such things as are not titheable of common Right. p. 2662 Inst. 664.2. From hence it is concluded, That no Tithe can be due for Houses, because they have no annual Increase. This was solemnly debated in Dr. Grant's Case,11 R. 15, 16. Rolls 1. 636. 11 Iac. and that there was no Tithe due, was proved by the Counsel from the Register, Fitz. H. N. B. Brook, &c. But it was resolved by the Court, That although Houses of themselves were not titheable, yet there might be a Modus decimandi on the Ground on which the Houses stood, and the Houses did not take away the Right before; and in most ancient Cities and Burroughs there was such a Modus for the Maintenance of their Minister. I grant that there was a certain Modus decimandi upon Houses, but not upon the Account of the Ground they stood upon; but there was a customary Duty upon Houses in lieu of Tithes, and were accounted a sort of Praedial Tithes, although they were p. 267called Oblationes de Domibus, Lyndw. de Decimis. c. Sanct c. Negotiat.as Lyndwood saith, and were distinct from Personal Tithes, for the Iews were bound to pay Tithes of Houses, but not personal. Such was the Rate on Houses in London: But in Dr. Layfield's Case it was denied,Selden of Tithes, 244. that there could be a Prescription of Tithes upon Houses, because they are to be paid only for the Increase of things.Cr. Car. 596. What is now become of the former Modus decimandi, when a Prescription was here insisted upon and denied?Hob. 1. 11. So that here were different Opinions, a special Custom was allowed upon good Reason; and here a Prescription disallowed upon such a Reason as would have overthrown the former Custom, and yet the Law was the same still.

3. From hence it would follow, That if this Rule hold, things which have not an annual Increase would not be titheable: Then no Tithe of p. 268Saffron would be due, whose Heads are gathered but once in three years, nor of Sylva caedua, under twenty years; and yet this was allowed in Parliament at Sarum, Regist. 49.saith the Register, notwithstanding it was not renewed every year.Rolls 1. 640. And Rolls saith, That Tithes shall be paid of Beeches, Hazle, Willows, Holly, Alder, Maple, even after twenty Years, because they are not Timber. But what if Willows be used for Timber? Then Hobart saith,Hob. 219. they ought to be excepted. If young Trees grow in a Nursery,Cr. Car. 526. and be sold,Rolls 1. 637. it is allowed that Tithes shall be paid of them,Iones 416. and these are not renewed every year.Hardres 381. And what becomes now of this General Rule, when so many Exceptions are made to it?

4. If this Rule hold, there can be no Tithes of After-pasture, for the Rule is simul & semel. And my Lord Coke saith, 2 Inst. 652.It was adjudged, p. 2698 Iac. That a Parson shall not have two Tithes of Land in one year; and he instances in the Hay and After-pasture, &c.And yet Rolls affirms, Rolls 1. 640.That it is due by Law, unless there be a Prescription to the contrary; and he saith, the Iudgment was given upon the Prescription. And therefore he resolves it into a Modus decimandi.648. But he mentions several Judgments, that no Tithe is due for After-pasture, where Tithe-Hay hath been paid before; which must be where there was no Custom to the contrary, or else he must contradict himself. Yelv. 86.And so Yelverton saith in the Case of Green and Austen, That of common Right, Tithe-Hay discharges the Tithe of the After-pasture. But Crook saith, Cr. Iac. 116.That in that case the Court went upon the Prescription, and allowed it to be good. How could it go upon both? And Sir S. Degge is positive, Law of Tithes, 190. c. 3.that if a Meadow affords two Crops, the Parson shall have Tithe p. 270of both. How can these things consist? Or what Authority may we rely upon in such Difference of Opinions?

2. Another Rule in Law is, That things which are ferae Naturae,2 Inst. 651. Law of Tithes c. 8. are not tithable. But here we are to seek what things are ferae Naturae? Whether such things as may be tamed and kept under Custody, and become a Man's Property, are ferae Naturae? Is it not Felony to steal Rabbets or Pigeons? if it be, they must be some Man's Property; and if they be a Man's proper Goods, how can they be said to be ferae Naturae? For the meaning was, That no Man was to pay Tithes for that which was not his own. Are not Bees ferae Naturae, as much as Pigeons and Rabbets? But the Tithe of Bees is allowed to be paid by the Tenth of the Honey and Wax.Cr. Car. 559. But Rolls saith,Iones, 447. F. N. B. 51. Rolls. 1. 651. That it was doubted whether a Tenth Swarm p. 271were a good Modus for the Tithe of Bees, because they are ferae Naturae. The Reason is, because they are left wild, and under no Custody; but if they went into several Hives belonging to the Proprietor, they might be tithable by the Hives. And so for Pigeons under Custody in a Dove-house, they are a Man's Property, and therefore tithable: As it hath been several times resolved in Courts of Law, 14 Iac. in Whately and Fanbor's Case,Rolls, 1. 635. in Iones and Gastrill's Case, a Prohibition was denied; and Justice Dodderidge declared, to whom the Court assented, that Tithe was due both of young Pigeons and Conies.Rolls, R. 2. 2. But the prevailing Opinion hath been, That if they are consumed in the House, Hetley, 147.they are not tithable, Littleton, 3. n. 40.but if sold, they are. Rolls, 1. 644.But are they not ferae Naturae as well when they are sold at Market, as when they are eaten at home? Why then are they tithable in one p. 272Case, and not in the other? If they are tithable at all, they are so whereever they are spent; for in tithing, the Nature of the thing is to be considered, and not the Place of spending it. For upon the same Reason there would be no Tithe of Corn spent at home, or Pigs, Calves, &c. and therefore I look on the Reason as of worse Consequence, than the total denying the Payment. For who can tell how far this Reason may be carried in other Cases?

But it is resolved in many Cases,March, 56. that though they are ferae Naturae, Hetley, 13.yet by Custom they may be tithed;Rolls, 1. 635, 636. and so for Fish. Custom it seems hath the Power of reducing things ferae Naturae to the same Condition with other things.Palmer, 527. But as far as I can find, these things by our old Constitutions,Cr. Car. 264, 339. were as tithable as other things; but the notion of their being ferae Naturae being started,Lyndw. 101. Spel. II. 503. served as a Plea p. 273against them, where the Custom was not continued; and where it was beyond all Dispute,Hardr. 188. then they said, they were not tithable in themselves,Kebl. 2. 452. but only by Custom;1 Inst. 115. 6. 244. or not by Law, but by Custom; and yet such Customs make a part of our Law.

In several ancient Appropriations,Monast. I. 577. 646. 1002. Fish, and Pigeons, and Rabbets are expresly mentioned, as given together with other Tithes; so that in those times both Law and Custom went together.II. 4. 658. For the Lords of Manors were not wont to give Tithes which were not otherwise due.

3. But what is to be done with those Lands which might afford Tithe, if the Increase of Grass were suffered but the Owners feed Cattel upon it, and so there can be no Tithes, what Remedy doth the Law afford in this case?

p. 2741. It is agreed that no Tithe is due,Lynd. f. 99. if no other Cattel be fed,F. N. B. 53. but such as the Owner pays Tithe for,2 Inst. 651. or are imployed in plowing, or any other way which is for the Benefit of the Incumbent of that Parish where they are fed. For otherwise they are but as barren Cattel to him.

2. That there is a certain Rate due for the Agistment of barren Cattel,Hardres, 184. Iure communi, and so delivered by Hales then Chief Baron, according to the Value of the Land, unless Custom hath determined otherwise. And so for Guest-Horses, &c. unless the Inn-keeper had paid Tithe-Hay,Poph. 142. say some, or the Custom be otherwise:Rolls, 1. 641, 650. But none for Saddle-Horses for the Use of the Owner.Bulst. 1. 171. One of the Judges dissenting,Rolls, 1. 641. because not intended for Husbandry.Poph. 126, 197. But for unprofitable Cattel the tenth part of the Bargain is due, or according to the Value of the Land, and the Owner p. 275of the Cattel is compellable to pay.Hardr. 184.

3. If profitable and unprofitable be mixed, so as the latter be the greater Number, then Herbage must be paid for them, and Tithe in kind for the profitable;Law of Tithes 200. but if the profitable be the greater Number, it is questioned whether the other are not excused; but no Law or Precedent is produced for it: And there seems to be no Reason, if Pasturage be due for unprofitable Cattel, why they should be excused because there are more profitable, unless their Number be inconsiderable.

These things I have only briefly touched at, that you may the better govern your selves in Disputes of this Nature; and as you are not to lose the just Rights of the Church, so neither is it for your Interest or Honour to be engaged in them, where the Law will not bear you out.

p. 276II. The next thing necessary to be considered, is, the legal Discharges from the Payment of Tithes. For, although the Reason of the Payment of them be founded on the Law of God, and the Settlement of Tithes among us hath been by ancient and unquestionable Laws of the Land, yet the Recovery of Tithes when unjustly detained, can be no otherwise than by the Law of the Land, as it is now in force. And if these do allow several Discharges and Exemptions not to be found in the ancient Laws or Practice, we shall but involve our selves in fruitless-Contentions, if we dispute those Limitations which the Law hath put upon the Payment of Tithes. And therefore our Business is to enquire and satisfie our selves, as well as we can, about the Nature and Extent of these Limitations.

p. 277Now there are four sorts of Discharges of the Payment of Tithes allowed.

1. By Appropriations to Monasteries.

2. By Privileges of particular Orders.

3. By Prescription and real Compositions.

4. By Unity and Possession.

Of these I shall discourse in order, so as to clear the greatest Difficulties, with respect to them.

1. As to Appropriations. By the Statute of Dissolution, 31 H. 8. 13. the new Possessors are to enjoy their Parsonages appropriated, Tithes, Pensions, and Portions, and all other Lands belonging to them, discharged and acquitted of the Payment of Tithes, as freely, and in as ample a p. 278manner as they were enjoyed before.

32 H. 8. 7. It is Enacted, That no persons shall be compelled, or otherwise sued to yield, give or pay any manner of Tithes for any Mannors, Lands, Tenements, or other Hereditaments, which by Laws or Statutes of this Realm are discharged, or not chargeable with the payment of any such Tithes. So that we must enquire into the State of Parsonages appropriated before the Dissolution, and how the payment of Tithes stood then.

I will not deny that there were Churches appropriated to Monasteries in the Saxon times; but if Mr. Selden's Doctrine hold good, as to the Arbitrary Consecration of Tithes till the Twelfth Century, those Churches cannot carry the Tithes along with them, but only such Glebe and Oblations as belonged to them. For how could p. 279the Tithes pass with the Churches, if they were not then annexed to them? But he confesses,Hist. of Tithes, 370. That the mention of Tithes with Churches in Appropriations, was rare, or not at all till after the Normans. The Reason might be, that the Separation of Tithes from the Churches, was not known till the Norman times. For the Norman Nobility took little notice of the Saxon Laws about Tithes; but finding Tithes paid out of the Lands within their Manors, they thought they did well, if they gave the whole Tithes, or a Portion and Share of them, as they thought fit, to some Monastery either abroad or at home. And this I take to be the true Account of the beginning of Appropriations among us. It were endless to give an Account of the Appropriations made by the Normans, M…n. 1. 31…punc;for the Monasticon is full of them. William I. gave several Churches with their p. 280Tithes to Battle-Abbey. William Rufus added more. H. 1. to the Monastery of Reading, several Churches in like-manner;417. and H. 2. more. Hugh Earl of Chester, gave the Tithes of several Manors to the Monastery of St.202. Werburg, in the time of William I. Of which kind the Instances are too many to be mentioned; instead thereof, I shall set down the State of the parochial Clergy under these Appropriations, which was very mean, and intended so to be, being supplied by the English Clergy.

1. Where the Churches and Tithes were appropriated to a Monastery, the Vicar had only such a Competency as the Bishop thought fit to allow, till Vicarages came to be endowed: For right understanding this matter of Appropriations, as it stood here in England, these things are to be considered.

p. 2811. That there was a parochial Right of Tithes settled in the Saxon times: Which I infer from the Laws of Edgar and Canutus, where the Tithes are required to be paid to the Mother-Church;L. L. Saxon. and if the Lord of a Manor have a Church on his own Free-land,Wh. p. 62. he may retain a third part of the Tithes for the Use of it.Spelm. Concil. 444. These Laws are so plain and clear,L. L. Canut. c. 8, 10, 11. that Mr. Selden does not deny them;Seld of Tithes, p. 262. and he confesses, the first Limitation of Profits to be contained in them. But what is to be understood by the Mother-Church to which the Tithes were given? Mr. Selden would have it the Monastery or Mother-Church; but afterwards he grants,P. 264. That a Parochial Right to Incumbents was hereby settled; Which is the first legal Settlement of Tithes in a parochial Manner: But these Laws of Edgar and Canutus were so solemnly Enacted, that, as Mr. Selden observes,P. 224. they were particularly p. 282called, Leges Anglicae, the old English Laws in the old Latin MSS. It is a commonly received Opinion among the Lawyers of the best Rank,2 R. 44. That before the Lateran Council there was no Parochial Settlement of Tithes here. 2 Inst. 641.My Lord Coke found no such Decree of the Lateran Council under Alexander 3. 5 H. Dyer, 84.2. A. D. Brook, 241.1179.Cr. Car. 422. and therefore he refers it to a Decretal of Innocent 3.Palmer, 220. As to the Lateran Selden, 293.Council which Lyndwood mentions,Lyndw. 81. b. it plainly speaks of Feudal Tithes, which a person enjoyed by the Churches Grant, and such might before that Council, be given to what Church the person pleased. But is there no Difference between Feudal and Parochial Tithes? And what Proof is there of any Ancient Infeodations of Tithes here?Selden, 404. Mr. Selden himself thinks Lyndwood applies the Custom of other Countries to his own. But as to the parochial Right of p. 283Tithes among us, it stands thus: By the Saxon Laws the parochial was settled. After the Norman Invasion these Laws were neglected and slighted by the Normans; H. I. by his Charter restored them, H. 1. c. 11. and the very Words of the Laws of Edgar and Canutus are repeated. The Normans went on notwithstanding, and so these Laws were discontinued in Practice. But Hadrian 4. who was an Englishman by Birth, observing the disorderly Payments of Tithes here, published a Constitution to require the parochial Payment of them, as is observed by P. Pithaeus, a very learned and impartial Man. After him Alexander 3. in a Decretal directed to the Archbishop of Canterbury and his Suffragans,Not. in Decret. l. 3. c. 30. n. 4. complains, That whereas the Parishioners had formerly paid their Tithes entirely where they ought to pay them, the contrary Custom had obtained; and some withdrew p. 284the Tithe of Wooll, Fish, and Mills; therefore he requires the strict Payment of them to the Churches to which they were due. The latter part only is in the Canon Law, but the former is added from the Ancient Copies by Pithaeus.

As to the Decretal of Innocent III. to which my Lord Coke refers, and Mr. Selden thinks was mistaken for the Lateran Council, being brought into England with it; Innocent. 3.there is such an Epistle extant in the Collection of his Epistles,Epist. 2. c. 114. but not put into the Canon Law, and was nothing but an Inforcement of the former Laws, and a declaring the contrary Custom void, which had too much obtained since the Norman times. But in a Decretal extant in the Canon Law, De Decim. c. 29. he acknowledges the parochial payment of Tithes to be due by common Right, Cum perceptio Decimarum ad Paroeciales Ecclesias de p. 285Iure communi pertineat. Can any thing be plainer than that the parochial Right could not depend upon his Decretal Epistle, when himself confesses that they were due by common Right?

We do not deny that he inforced the payment which had been so grosly neglected in the Norman times, and the most they would be brought to in many places, was to pay only a third part to the Parish-Priest who officiated, and gave the rest to Monasteries, and often appropriated the whole Tithes to them, either at home or abroad, as will abundantly appear by the Monasticon; from whence it is plain, that they looked on Tithes in general, as due to the Church, as appears by very many of their Ancient Charters;Monast. I. 112, 114, 201, 202, 327, 590, 436. but they thought they did very well when they appropriated them to Monasteries of their own Erection,II. 50, 81. or others, as they p. 286thought fit. But this Humour took so much among the Norman Nobility, and served so many Purposes of Honour and Devotion, as they thought (besides Reason of State) that the parochial Clergy were reduced to so poor a Condition, that Alexander IV. Du Fresn. e. Appropr.complained of it as the Bane of Religion, and Destruction of the Church, and as a Poison which had spread over the whole Nation. And it must be very scandalous indeed, when the Pope complained of it: For the Monks that were able, generally got their Appropriations confirmed in the Court of Rome.

2. There was a Competency to be settled on the parochial Clergy by the Bishops Consent, which was required in order to the confirming an Appropriation;Monast. I. 369, 399. as may be seen in Multitudes of them in the Monasticon, II. 58, 208, 656, 881.besides those which are preserved in the Churches Registers.III. 32, 36. Sometimes p. 287the Endowment is expressed, and at other times it is reserved in the Bishop's power to do it as he sees Cause. But the Bishops were either so remiss in those Times, or the Monks so powerful at Rome, that the poor Vicars fared so hardly, that in the time of H. 2. Alexander III. Extr. de Praeb. c. De Monachis.sent a Reprimand to the Bishops for favouring the Monks too much, and the Clergy too little; and therefore requires the Bishops to take care that the Vicar had a competent Subsistence, so as to be able to bear the Burden of his Place, and to keep Hospitality. This was directed to the Bishop of Worcester; for it seems so long since the poor Vicars here were hardly provided for. And yet I have seen several Forms of Appropriations made by the Bishops here, after the Conquest, wherein there is a twofold Salvo; one for the Bishop's Right, and another for a sufficient Maintenance p. 288for the Curate, although the Church were appropriated ad communem usum Monachorum, as of Wolstan, Roger, and of William in the time of Hen. II. when Alexander III. lived, and of Walter de Grey, Sylvester, &c. But it seems where a competent Subsistence had been decreed,Ext. de Praeb. c. Avar. the Monks took the first Opportunity to lessen it; which occasioned another Decretal in the Canon Law, wherein any such thing is forbidden, without the Bishop's Consent.Ext. de Praeb. c. Extirp. In other Places they pleaded Custom for it; thence came another Decree of the Lateran Council, to void all such Customs by whomsoever introduced, where there was not a competent Subsistence for him that served the Cure.

The Monks were still refractary in this matter;Extr. de Monachis, ubi supra. and because the Bishops had Power to refuse any person presented by the Monks, unless they did consent to such a reasonable p. 289Allowance as the Bishop thought fit; therefore they grew sullen, and would not present;Ext. de Supplend. Neglig. Prael. Sicut nobis. in which Case another Decretal was made to give the Bishop Power to present.

And after all, Clement V. De Iure Patron. c. 1. reinforced the former Decretals, and injoyned the Diocesans in the strictest manner, not to admit any person presented to a Cure, where the Church was appropriated, unless sufficient Allowance were made by the Bishop's Consent and Approbation, and all Custom and Privileges to the contrary are declared to be void.

But how far doth this hold among us now, since the Appropriations are become Lay-Fees, and the Bishop's Power is not mentioned in the Statute of Dissolution? To this I shall give a clear Answer, but I doubt not satisfactory, to all Parties concerned. For as Necessity and Power, so some p. 290Mens Interest and Reason live very near one another.

1. The Statute of Dissolution leaves all matters of Right as to persons interested just as they were before. For by the Surrender the King was to have the Monasteries and Tithes in as large and ample a manner as the Abbots then had them in Right of their Houses, and in the same State and Condition as they then were, or of Right ought to have been: And so res transit cum suo onere. But this is not all: For there is an Express Salvo for all Rights, Claims, Interests, &c. of all Persons and Bodies Politick. So that if by the Law of England there was such an Antecedent Right in the Vicar to his Allowance, and in the Bishop to assign it, it is not taken away by this Statute, nor any other.

2. By the Law of England the Bishop had a Right to provide a competent p. 291Maintenance for supplying the Cure upon an Appropriation. We are told by an unquestionable Authority in point of Law, that 9 Car. 1. this Point was brought before the Kings Bench, Rolls, 2. 337.in the Case of Thornburgh and Hitchcot. The Vicar complained, that the Church was appropriated, and that he wanted a competent Maintenance; a Prohibition was prayed, but denied upon this Reason, That the Vicar had Reason for his Suit, and that the Ordinary might compel the Impropriator to make it greater; because in all Appropriations that Power was reserved to the Ordinary. And so in the Year-Books it is allowed, That the Ordinary may increase or diminish the Vicar's Portion, 40 E. 3. Cas. 15. f. 28. Pro. Const. de Offic. Vic. c. quoniam.By our Provincial Constitutions, the Bishop is to take care that the Vicar have a competent Allowance; which at that time was set p. 292at Five Marks; but Lyndwood observes, that as the Price of things rose, so the Allowance was increased, and in Stipendiaries it was then advanced to Eight or Ten Marks; which, according to Sir H. Spelman's Computation,Of Tithes, p. 153. comes to above Sixty Pounds per Annum. But some have told us, That by some old Statutes, Miscel Parl. 183.even beneficed Persons were not by Law to have above Six Marks per Annum; for this was the Sum allowed to Parish Priests; which is so gross a Mistake in any that pretend to Law or Antiquity, that it is to be wondred how they could fall into it.

The Truth of the Case was this; the parochial Chaplains or Priests were complained of, 36 E. 3. n. 23. that they could not be gotten to attend after the Plague,Birchington, l. 42. but at excessive Rates; upon this a Provincial Constitution was made, extant in the Parliament Rolls, wherein they are p. 293obliged to demand no more than Six Marks.Lyndw. f. 32. Sacerdos Parochialis opposed to Beneficiatus. But who were these Parish-Priests? Not such as had the legal Endowments, but those who depended on the Good-Will of the Parson or People, and were hired to officiate in Chapels of Ease, or to perform Offices for the Dead, which were so frequent at that time. And these were called Annual Chaplains, or Masse Chaplains, and were distinguished from Domestick Chaplains who officiated in great Mens Houses in their private Oratories,Lyndw. f. 1 and from Beneficed Persons, as appears by many Constitutions. But whatever was understood by the Act of Parliament then, it was repealed 21 Iac. 1. 28.

3. The Law of England, as to a competent Subsistence for the Vicars or Curates in appropriated Churches, is founded on very good Reason. For the Tithes were originally given for p. 294the Service of the Church, and not for the Use of Monasteries. And this was a hard Point for the Monks to get over, since the Tithes were given for the Maintenance of the Clergy, and they were none of the Clergy, how they came to have a Right to the Tithes. It is certain, that the State of the Clergy and the Monastick State were different; and the Offices of the Clergy and of the Monks were inconsistent, if they held to their Rules; how then came the Monks to take the Maintenance which belonged to the Clergy for other Offices, as though they were originally intended for them? For which there is no Colour or Pretence. This Point was debated between two Great Men of their times, S. Bernard and Petrus Cluniacensis: The former a Cistertian Monk, declared himself unsatisfied with the Monks taking the Maintenance of the parochial Clergy from p. 295them, which was given on purpose to attend the Cure of Souls. But, said Petrus Cluniacensis, Petr. Cluniac. Ep. l. 1. 21.do we not pray for their Souls? But the Cure of Souls is another thing; and by the Canons of the Church the Monks were forbidden to meddle in parochial Offices of Preaching, D. 55. c. 1. C. 16. Q. 1. c. 4, 5, 6, 8, 10, 11.Baptizing, Visiting the Sick. So that it might bear a Question in Law, Whether a Monastery were capable of an Appropriation, since by the Ecclesiastical Law, they are not an Ecclesiastical Body? and for that Reason Hobart saith, a Nunnery is not; and the same Reason will hold for the other.

The Cistertian Order was at first very scrupulous in this matter, when they came hither,Mon. I. 699. and pretended to live only on their own Lands, and disliked Appropriations, Rolls, R. 2. 480.as great Injuries to the Clergy, and called it Sacrilege to take their Tithes away from them. This was wisely done of them at first p. 296to ingratiate themselves with the Clergy, and to get as good Lands as they could. But after a while they abated their Zeal, and then they pretended to do nothing without the Bishops Consent;Mon. I. 736. till at last they were as ready as any, and got as large Privileges to exempt their Lands from Payment of Tithes, under which the Clergy suffer to this day.

But to return to the Beginning of Appropriations among us.

After the Normans coming, they stood upon no Niceties of Law, or Original Grants, but they took Possessions of the Tithes of their Manors, and disposed them as they pleased. The poor parochial Clergy were English, whom they hated, and cared not how poor they were; the Bishops were Normans, as fast as they could make them; and the business of the Great Men, was to incourage the p. 297Norman Monks that came over, and to build and endow Monasteries for them to pray for their Souls, which they minded so little themselves; and this I take to be the true Account of the Beginning and Increase of Appropriations in England, which at first were only permitted, but are confirmed by the Law since the Statute of Dissolution.

II. In some Appropriations there were Vicarages endowed, and here the Difficulty lies in distinguishing the Tithes which belong to one from the other. Before the Statutes for Endowment of Vicarages, in case of Appropriations, 15 R. 2. 6. 4 H. 4. 12. there were Endowments made, where the Bishops took care of it; but they were generally so remiss in it, that those Statutes were thought very necessary; and one, it… seems, was not sufficient. For they eluded p. 298the former by appointing Vicars out of their own Body; but the latter Statute requires, That the Vicar shall be a Secular Person, and made Spiritual Vicar, and have such an Endowment as the Ordinary should think fit, otherwise the Appropriation to be void.

The Scandal of the Appropriations was made so great by the Greediness of the Monks, and Easiness of the Bishops, that I find in the Parliament Rolls 2 H. 4. 51. a Petition of the Commons, that no Appropriations should be made for the future; but afterwards they came to that Temper which is expressed in the Statute 4 H. 4.

And that before those Statutes, there was no Necessity of the Endowment of a Vicarage, is plain from the Occasion of making them; and so it hath been agreed in the Courts of Law in the Case of Britton p. 299Rolls, R. 2. 99. Cr. 2. 518.and Ward. But the main Difficulty is, to state the Tithes which belonged to the Vicarage and to the Appropriation; because there was no certain Limitation either as to Quantity or Kind, although generally the great Tithes of Corn and Hay went with the Parsonage, and the small Tithes and Obventions, and Altarage with the Vicarage.

The best Rules I can find to be satisfied in this matter,Yelv. 86. are the Endowment, or Prescription. And where the Endowment is found, yet there may be a Prescription for Tithes not mentioned; because the Bishop had a Power reserved to increase the Allowance: As in the Case of the Vicar of Gillingham, who sued for customary Tithes not mentioned in the Endowment; and he recovered them on this Presumption,Hardr. 328. That the Vicarage might be augmented with those Tithes; and in case of long p. 300Possession, it is there said to have been often so held and ruled. Sometimes there is a Difficulty in the Sense of the Words of the Endowment, as in the Case of Barksdale and Smith, whether Decima Garbarum in W. implied Tithe-Hay;Cr. El. 633. but it was resolved, that although Garba seems to relate to Corn, de omni Annonâ decima Garba Deo reddenda est. L. Edw. Confess. c. 8. at least, to something bound up; and so Lyndwood applies it to Faggots; yet the Custom was thought sufficient to extend it to Tithe-Hay; and for Tithe-Wood in Renoulds and Green's Case.Bulstr. 2. 27. But the greatest Difficulty hath been about small Tithes, which is the common Endowment of Vicarages. In the Case of Ward and Britton, one Point was,Palmer, 219. Cr. …ac. 516. Whether Lambs were small Tithes or not. Noy pleaded Custom for it. The Councel on the other side said, That small Tithes were such p. 301as grew in Gardens; but Lambs were a sort of Praedial Tithes; however, it was yielded, that Custom might bring them under small Tithes.

Another Point about small Tithes, was about Saffron growing in a Corn-Field,Cr. Eliz. 467. in the Case of Bedingfield and Freak, Moor, 909.and it was resolved to be small Tithes. Hutton, 78.But the Ground of that Resolution was questioned in the Case of Udal and Tyndal; Owen, 74,some said it was, because Saffron was small Tithes where-ever it grew: Others, That by the Endowment,Cr. Car. 28. the Parson had only reserved the Tithe of Corn and Hay.

But suppose whole Fields be planted with Woad, which grows in the Nature of an Herb, is this to be reckoned among small Tithes? Crook seems to deliver the Sense of the Court so, in the former Case; but Hutton reports it, that it might come to be majores Decimae and Praedial, Hutton▪ 78.if p. 302it came to be the main Profits of the Place. And the like may hold as to Hemp, Hops, Wooll and Lambs. It's there said, that all these new things, as Saffron, Hemp, Woad, Tobacco, &c. are to be reckoned among small Tithes, unless there be some material Circumstance to the contrary. But who is to be Judge of that? And what Proportion changes small Tithes into greater? But what if the Endowment be so expressed, that only Tithes of Corn and Hay be reserved to the Parson? Then Rolls thinks all the rest falls to the Vicar by Construction of Law.Rolls, A. 2. 331.

By the Word Altarage, it was resolved in the Exchequer, upon a solemn Hearing, 21 Eliz. and after confirmed in the Case of Wood and Greenwood, not meer Oblations are to be understood, but whatever Custom hath comprehended under it.Littleton, 244. Hetley, 135.And I find in the Settlement of the p. 303Altarage of Cockerington by Rob. Grosthead, Bishop of Lincoln, not only Oblations and Obventions, but the Tithes of Wooll and Lamb were comprehended under it.Mon. II. 604

II. The next Discharge of Tithes, is by the Privileges of particular Orders allowed by our Law. For it is, to be observed, that no Bulls of Popes make a legal Discharge; but in such Cases where the Law allows them, and my Lord Coke thinks it cannot be insisted upon without danger of a Praemunire. 2 Inst. 653.For when the Cistertians had procured new Bulls to inlarge their Privileges, as to their Lands in the Hands of Farmers, a Law was passed against it, 2 H. 4. c. 4. which was grounded on a Petition in Parliament shewing the Novelty and Mischief of it.Rot. Parl. 2 H. 4. 41.Mon. II. 511.

It was affirmed by our great Lawyers,Cr. 2. 578. that the Pope's Act in dissolving p. 304the Body of the Templars, which was done, 5 E. 2. had no Effect here till the 17 E. 2. when the Parliament gave their Lands to the Hospitallers.Palm. 222. Walsingh. 1325.

And that the Pope could not by his Bull dissolve a Vicarage after they were made perpetual by the Statute;Cr. 2. 517. Pal. 222. so that our own Law is to govern in this matter.

But what Orders had Exemption from Tithes by our Law? At first most of the Orders of Monks had it for Lands in their own Hands. This by Hadrian IV. was restrained to the Cistertians, Templars and Hospitallers, which is owned in the Canon Law by a Decretal of Alexander III. Extr. de De…imis. c. 10.who declares it not to be intended for Lands let out to farm.

Innocent III. restrains it to such Lands as they were then in possession of; but my Lord Coke makes the Grant to be from Innocent III.2 Inst. 652. in the p. 305Council of Lateran, 17 John; but he adds, That it extends only to the Lands which they had before; which was all that was done then. But he saith, That this Privilege was allowed by the general Consent of the Realm; however that were, it is certain that the Lateran Council made no Restriction to the three Orders.

But what shall we say to the Praemonstratenses, of whom he saith, That they were discharged by a Bull of Innocent III. This Point was disputed in the Case of Dickenson and Greenhow. Popham▪ …56.It was not denied, that they had obtained such a Bull, but it was denied that it was ever received here. On the other side, it was said, that their Bulls were confirmed; which doth not appear, nor that any Judgment was given in the Case. There is a Bull extant in the Collection of Innocent's Epistles, to exempt the Praemonstratenses from the Tithes of p. 306Lands in their own Hands; but this was granted in the first year of Innocent III. sometime before the Lateran Council,Innocent. 3. Epist. l. 1. Ep. 331. and they might enjoy the same Privileges with the Cistertians, if it could be proved, that they were as generally received, which hath not yet been done. As to the Cistertians themselves, there are considerable Limitations of their Privileges.

1. They must relate to Lands in their Possession before the Lateran Council, A. D. 1215. 17 of King Iohn. And in matters against common Right, the Proof in Reason ought to be on those who pretend to particular Privilege. But it's certain the Cistertian Order hath had many Lands in England since that time (and it were no hard matter to find them out.) But, suppose they were actually discharged at the Dissolution, and the Proprietaries p. 307were to enjoy them in the State they found them, is not this a sufficient Discharge? Yes, if it be a legal Discharge; for the Statute only puts them into the same legal Capacity they were in before; but if they were Lands given since the Lateran Council, they were not in a Capacity to be discharged by Law; for it was not otherwise received.

2. This Privilege doth not exclude ancient Compositions, as to their Demesn Lands. For these Privileges did not go down so easily, but where there were Rectors able to contest it, they brought even the Cistertians to Compositions. And the Pope himself appointed Commissioners here to compound the matter: As between the Monastery of Pipewel and Hugh Patesbul Rector of Eltyndon, which ended in a Composition of six Marks per Annum for the Tithes of their Demesns. And p. 308another between the Vicar of Dunchurch and the same Monastery; and between the Rector of Wynswick for the Tithes of Ten Yard-Lands in Colds-Abbey. All which I have perused in the Register of that Monastery MS.

3. The Privilege doth not hold where the Monasteries were under Value,Coke R. 2. 47. and came to the King by the Statute 27 H. 8. unless they were continued,Moor, 420. and came within the Statute of Dissolution,Cr. Car. 424. 31 H. 8. And it ought to be proved that they continued separate; for if their Lands were given to the greater Monasteries, they did not retain the Privilege upon Dissolution.

But there is a much harder point concerning the Hospitallers (who had the Lands of the Templers after 17 E. 2.) Their Lands were not given to the King by the Statute of Dissolution, 31 H. 8. but 32 H. 8. c. p. 30924. and the Clause of Exemption was left out of the Grant. Upon which a great Question hath risen, Whether their Lands are exempt or not? And Judgment was given against them in the Case of Cornwallis, Cr. 2. 58.or Quarles and Spurling. Moor, 913.But in the Case of Whiston and Weston, Iones, 186it was argued, That the King had the same Privileges which the Hospitallers had. But it was replied, That other Lands given to the King after that Act, had not those Privileges, as Chanteries, &c. It was said, that it was, because they were not regular Ecclesiastical Bodies: Bridgm. 33.Which was a strange Answer, considering what sort of Ecclesiastical Bodies the Hospitallers made,Latch. 89. when only the Grand Master and two Chaplains are bound to be Ecclesiasticks; Rolls. R. 2. 40▪and in Foreign Judicatures they were denied to be any part of the Clergy,Selden …Tithes, 12▪ being only an Order of Knights under some particular Regulations.

p. 310But suppose them capable of Appropriations of Tithes, yet when the Body is dissolved, the Appropriation falls of it self, unless continued by Act of Parliament, as those of the Templars were to them; and those of the Monasteries by 31 H. 8. but where there is no Clause to continue the Appropriation, it must be understood to be left to the natural Course of things, and so the Appropriation sinks.

III. The third legal Exemption is from Prescription, and ancient Compositions. This seems a difficult Case, because something less than the real Value is to be taken, and the Rule in Lyndwood is,Lynd. f. 101. non valet consuetudo, ut minus quam Decima solvatur; but in all such Prescriptions and Compositions there is less than the true Value.

To clear this matter, I shall shew,

p. 3111. That by our Ecclesiastical Law, all Compositions are not condemned.

2. That by the Common Law all Prescriptions are not allowed. And if these things be made out, it will follow, that where the Compositions and Prescriptions are legal, the Clergy may with good Conscience submit to them, as they do in other matters of Law.

1. As to the Ecclesiastical Law, Lyndwood himself makes these Limitations;

1. In case of personal Tithes.Lynd. f. 97. b. c. Consuc… f. 99. He grants that as to them, a Man may with a good Conscience observe the Custom although it be under the real Value. Now these are founded on the same Laws that Praedial and Mixt Tithes are; and by the Stat. 2 E. 6. c. 13. they are reduced to a customary Payment before Easter, p. 312as it had been used Forty Years before: But besides these there were Offerings to be compounded for, and the Easter Duties are a kind of Composition for personal Tithes.

2. In small Tithes, the customary Payment is allowed. The Payment in Lyndwood's time, was 6 ob. for Six Lambs, because it was the Tenth of the Value at that time of a Lamb of a year old;Lynd. f. 98. the Seventh Lamb was to be paid in kind, for which 3 ob. were to be paid back, because three Lambs were wanting of the Number Ten. But can any one believe that 5 d. was the true Value then of a Lamb of a year old? And Lyndwood doth not suppose it be the exact Value; but it was such as the Provincial Constitution determined, and he allows Compositions super minutis Decimis.Lynd. f. 97. b.

3. Compositions were allowed with the Bishop's Consent with Lay-persons p. 313for their Tithes. As to what is past, there was no doubt; but for the future he saith, it doth not hold sine Iudicis auctoritate; which implies, that by his Consent it may. And if so, then a Modus decimandi so qualified, is allowed by the Ecclesiastical Law. Such Compositions as these were entred into the Bishop's Registries, and if they were then made upon a valuable Consideration at that time, I doubt the Force of Custom will get the better of the Reason that may be taken from the great Difference of Valuation of things.

2. Let us now consider what Prescriptions and Compositions are not allowable at Common Law.

1. No Prescription de non decimando, is allowed among Lay-persons, because none but spiritual Persons are by the Law capable of Tithes in their own Right. A Lay-man, saith Mr. Selden, cannot be discharged of all Payment p. 314by meer Prescription, Selden of Tithes, p. 409.unless he begin the Prescription in a Spiritual Person. And to the same purpose our great Lawyers speak.Coke R. 2. 44. But in the famous Case of Pigot and Hern, Cr. 2. 47.a Distinction was found out,Rolls, 653. which may prove of dangerous Consequence,Moor, 531, 425. viz. Hob. 297.That although the Lord of a Manor cannot prescribe for Tithes, because he is not capable of them by our Law, yet he may prescribe for a tenth Shock,Cr. El. 599. as a Profit apprendre, as a thing appurtenant to his Manor; and so he may have decimam garbam, but not Decimas garbarum. Upon which Resolution it is said in the Bishop of Winchester's Case,2 R. 45. That the Lord of a Manor may have Tithes as appurtenant to his Manor: For which there is no Foundation in our Ancient Laws or Customs, that I can find, and is inconsistent with what is before acknowledged, that none but Spiritual p. 315persons are capable of Tithes. But in plain Truth, this Case is not truly represented; and my Lord Chief Justice Hobart, Hob. 300.a person of great Judgment and Learning in the Law, hath told the World, That this famous Reporter hath sometimes given his own Opinion, and that sudden, instead of the Resolution of the Court, which must take much off from the Authority of his Reports; especially when the Case is differently reported by others; as it falls out in this Case. For Serjeant Moor, who was of Councel in that Case, saith, That the Defendant pleaded a Modus decimandi in Satisfaction for Tithes,Moor, 483. which was 6 s. per Annum: But as to the other point, Whether such an Ancient Modus being made with the Lord of a Manor, binds the Copyholders, it is out of our way; but surely there ought to be good Proof, that the Modus was made before the Copyholds p. 316holds were granted, which is not offered, but only that it might be so; which deserves no other Answer, but that it might not be so. And it is hard indeed, when Judgments are given upon Possibilities. And for the Distinction of decima Garba and Decimae Garbarum, Moor, 278.in a Composition for Tithes,Seld. p. 398. is the same thing. Mr. Selden, as to this Case of Pigot and Hern, saith, It was an Inheritance of Tithes from immemorial time, by Virtue of an Ancient Composition. And he would not understand the Judges in any other Sense: For no kind of Infeodation of Tithes is allowable here, he saith, so as to create in Lay-men a perpetual Right to them (except only by the Statute of Dissolution of Monasteries) unless it be derived from some Ancient Grant of Discharge from the Parson, Patron and Ordinary, with a Consideration of Recompence to the Parson; and that p. 317either from time immemorial, or Ancient Composition. And to the same purpose he speaks in another place,P. 285. where he owns, that by our Law every Parson had a common Right to the Tithes of all annual Increase (Praedial or Mixt) within the limits of his Parish; and any Title or Discharge must be specially pleaded.

2. Where a Prescription is pleaded de Modo decimandi, the actual Recompence by Composition must be shewed. For, as my Lord Coke saith, a Modus decimandi is intended as a yearly Sum in way of Satisfaction for the Tithes to the Parson;Select Cases, 43. which Rolls calls the Actual Recompence.

In the Register the Account of the Modus decimandi is thus set down: 1. There was a real Composition,Registr. 38. b. as Four Acres of Land for some small Tithes. 2. There was an Agreement in Writing, by the Consent of Ordinary and Patron.

p. 318But my Lord Coke saith, 2 Inst. 490.the Modus may as well be for a Sum of Money as for Land.

Suppose no Ancient Composition in Writing can be produced, how far doth a Prescription hold?

1. It must be immemorial, Bulst. 2. 238.or time out of mind. Here a great Point arises fit to be considered: Suppose the thing it self hath been within Memory, as Improvements by Hops, Fruit-trees, &c. doth not a Composition bind in this Case?

I answer, that we are to distinguish Personal Contracts from Real Compositions. March, 87.In the Case of Hitchcock and Hitchcock, there was a Contract between the Vicar and Parishioners, but it was denied to be a real Composition, although confirmed by the Ordinary, and affirmed not to be binding to the Successors.

A Composition by a meer verbal Agreement in the Case of Hawles andHob. 176. p. 319Bayfield was declared to be neither binding to the Party nor his Successors. But in the Case of Tanner and Small it was declared to hold for Years,Yelv. 94, 95. but not for Life.

My Lord Coke seems to be of Opinion, That if it be a Prescription, it must be time out of Memory of Man;2 Inst. 653. but that a real Composition may be either before,Select Cases, 40. or within Memory of Man; but then it must be by Parson,2 Inst. 655. Patron,Loon. 1. 151. and Ordinary.

It is well observed by Sir Simon Degge in his useful Book about these matters,Parson's Coun. that although real Compositions are supposed in Law to be the Foundation of Prescriptions de Modo decimandi, Part. 2. c. 20.where the Patron, Ordinary and Parson did consent to them; yet that the most of them have grown up by the Negligence and Carelesness of the Clergy themselves, which, I am afraid, is too true.

p. 320And he is of Opinion, That no real Composition can be made now to bind the Successor, since the Statute, 13 Eliz. c. 10. which restrains all binding Grants to One and twenty Years, or Three Lives; and if so, then the Consent of Patron and Ordinary cannot make it good.

2. It must be reasonable, and therefore it hath been rejected in these Cases:

1. If it be a Prescription to pay a certain Tithe without the Parson's View of the Nine Parts, because, saith Hobart, Hob. 107.it is against the Law of Partition,Rolls, 647. in the Case of Wilson and the Bishop of Carlisle.

2. If there be no Recompence to the Parson,Rolls, 649. as in the Case of Scory and Barber, Cr. El. 276.the Prescription was founded on the Parishioners finding Straw for the Body of the Church.March, 65.

3. If it be for paying only what was due in lieu of other Tithes; as p. 321in the Case of Ingoldsby and Iohnson, Cr. Eliz. 786.that they paid their other Tithes in lieu of Tithes of dry Cattel;C. Select Cases, 45. or in Case a Load of Hay be prescribed for in lieu of Tithe-Hay,Bulst. 2. 238. or Ten Sheafs of Corn for the Tithe of all the rest.

4. If it be not for something certain and durable.Hob. 40. For this, saith Hobart, shews an Original Weakness in the Composition; being of a thing certain and durable for that which is not so.

IV. The last Exemption or Discharge that is pleaded as to the payment of Tithes, is Unity of Possession: That is, where a Monastery had the Right of Tithes by Appropriation, and had other Lands which did not pay Tithes, because the owners were to receive them, these were actually free at the time of Dissolution; and the Question is, Whether p. 322they are legally so by Virtue of the Statute? It cannot be denied, that Unity of Possession is in it self no legal Discharge; but whether by the Words of the Statute the Judges were divided in Opinion.Moor, 47. But afterwards in the Case of Green and Bosekin the Judges allowed it,420. so it were not a meer Unity of Estate, but of Occupation.C. R. 2. 47. Hobart saith,Moor, 533. That after it had been long controverted,Mob. 298. it was received as the common Opinion. Coke, 11 R. 14.That where Unity of Possession gives a Discharge, the Title must be clear, the Non-payment general, and the Prescription time out of Memory; but if the Appropriation were made in the time of Ed. 4. H. 6. it could not be discharged by Unity; nor if it were a late Abby-prescription.

Thus I have endeavoured to lay this matter before you as briefly and clearly as I could, from the best p. 323Light I could get, that I might give you such Directions, that you may neither run into needless and vexatious Suits, nor be run down by frivolous Pretences. It is your great Advantage that you have the Law of your side, if you understand it a right; but have a care of being set on by such, whose Interest it is to promote Suits; and I am sure it is yours to prevent them, if it be possible, and as much as lies in you. The Church's Right is not to suffer by your Negligence; and you are not to make the Church to suffer by your Contentions. He that loves going to Law, seldom fails of having enough of it; he suffers in his Purse, in his Reputation, in his Interest, and the Church suffers by his Means. Endeavour to gain, as much as may be, the Love of your People by a kind, modest, courteous and peaceable Behaviour, which is the best p. 324way to prevent, or to compose Differences. If you are forced to sue for your Maintenance, let them see that you are forced to it, and that you are always willing to put an end to all such Disputes, if the Church's Right be secured, which you are bound to preserve.