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AN ARGUMENT In Defence of the Right of Patrons to Advouſons. And incidently of the Right of TYTHES in generall.

As it was delivered to the Committee for Tythes, on Wedneſday the 14 of September 1653 and taken exactly by one that hath ſkill in Ta­chygraphy or the Art of Short-writing

LONDON, Printed for Edward Blackmore at the Angell in Pauls Church-yard, 1653


An ARGUMENT In Defence of the Right of Patrons to Advouſons. And incidently of the Right of TYTHES in generallAs it was delivered to the Committee for Tythes, on Wedneſday the 14 of September 1653 and taken exactly by one that hath ſkill in Ta­chygraphy or the Art of Short-writing

May it pleaſe you, Sir,

I Am of Councell for two, one as claiming right to an Advouſon; the other as being a late Purchaſer of Fee-Farm Rents iſſuing out of Tithes appropriated and diſtinct from Impropriacions: That of Tithes in general is a large & copious field, it would tire your paci­ence too much for me to ſpeak as the ſubject matter deſer­veth or affordeth, yet it ſtands ſo much in my way that I cannot paſs it by, (the interpoſition of it cauſing an Eclipſe to my intended Plea to Advouſons and Fee-Farms)2 if not removed. I ſhall therefore crave leave to ſpeak a word or two to it. Firſt, I conceive that by the Law of God and Reaſon, that a maintenance is due to the Diſpen­ſers of the Word of God, for what Souldier is there in this Common-wealth that does fight without his Pay? Who planteth a Vineyard and eateth not the fruit there­of? or who feedeth a flock, and eateth not of the milk of the flock? Is not the common Labourer worthy of his hire? ae fortiori, then the Diſpenſers of the Word of God ought to have a Compenſation and Maintenance for his Labour, pains, and ſweat of his brows, in holding forth the precious things of Jeſus Chriſt. I ſhall make a further ſtep, and hold, that the maintenance of the Miniſters or Diſpenſers of the Word of God ought to be in this in di­vidual and numerical way of decimal parts, or Tenths, or Tithings.

Firſt by Ʋſage under the Law, for the Tribe of Levy they had their 48 Cittyes with their territories round about; they had their Tythes alſo, the firſt born, and the firſt fruits of every thing the Earth brought forth for the uſe of man. Vnder the Goſpell though they had not Tythes actually payd them, (becauſe they were as it were in theyr mocion to the Land of Reſt) yet it appeares by Origen and many other ancient Authors, that they were continually claymed as their due and right, and this continuall claym, Mr. Littleton telleth us preſerveth a right, nay it prevents diſcents que tollent entries; wee may deduce and draw Tithes down from all Ages, and Nacions in the Chriſtian world, and that is one Argument that Wol­lebius, and all Divines in Chriſtendom uſeth to proov the Bible divine, becauſe it is uſed, received, and beleived, of all Nacions: And certainly there muſt be digitus Dei in it, that all Nacions ab origine before they heard of oneanother, that they ſhould all fix upon one way of the Miniſters mayntenance by Tythings.

They are not only due by Ʋſage under the Law, and5 the Goſpel, and the Concurrence, and Concord of all Na­cions in Chriſtendom; but I ſhall make a further ſtep, and proove them to be due by the Common Law of the Land, and that I ſhall proov by the writ of waſte in the Regiſter, which is the ancienteſt Book of the Common Law, for the Book Caſe of 26 Ed: 3 Lib. Aſſizes Pl. 24. proves that Originall Writs have been long before the Conqueſt, nay time out of memory of man, the beginning whereof cannot be known either by Reading or Record. For if a­ny one cut up the Parſons Trees, or do any other waſte, he may by the Common Law of this Land have a writ of waſte againſt him, and ſay in his writ that ſuch a one cut up his Trees ad exheridacionem ipſius vel Eccleſiae; and both wayes are good, as it is adjudged in Hen: the 7 fol: by his bringing of this writ it appeareth that the Parſon hath not only a Free-hold but a fee-ſimple and good inheritance in his Tithes, or gleabe, for of a leſſer eſtate then a fee-ſimple or fee-tayl a writ of waſte will not ly; therefore in my Lord Cooks fift Report fol: ſaith that if there be Tennant for Life, Remainder for life; and Tennant for Life commit Waſt, Remainder for Life cannot bring an action of Waſt; the writ of Waſt alwaies concludeth ab Exheridacionem ipſius, and Remainder for Life hath but a Free-hold and no Inheritance, ſo Cook in his firſt Inſtitutes Fol: ſaith that if Tennant in tayl Special make a Leaſe for Life, and Leſſee for Life commit Waſt, and then Tennant in tayl bring­eth a writ of Waſt, and pending the writ, he becometh Tennant in Tayl apres Poſſibility of Iſſue extinct: now this Waſt is diſpuniſhable, for he is now become but Ten­nant for Life, he hath but a Free-hold, he hath no Inheri­tance, and the words of the Writ muſt be obſerved, becauſe penall ad Exheridacionem ipſius: The tenth part ſevered from nine parts, was alwayes ſuable at Common Law; for Treſpaſs lies if taken away; Brook title Tythes. Ma­ny other Authorityes I may add upon this Head, but I haſten to that I firſt propounded of Advouſons, and Fee-Farmes.


Thirdly, it is not only due by Ʋſage under the Law of God, and Goſpel, and Concurrence of all Nacions, and by the Common Law of the Land; but it is due by the Cuſtom law of this Nacion, which is ſuperintendent to the Common Law; Mr. Littleton telleth us that Conſuetudo privat Communem Legom; for Cuſtom is of that puiſſance and nature, that it muſt be time out of the memory of man, and therefore a Copy-hold Eſtate, the eſſence and being of it is ſecundum conſuetudinem Manerij; it cannot be in­tayled for the Statute of Weſtminſter the 2 de Donis of in­tayling Eſtates though in the 13 of Edward the firſts time, yet it is extant of Record, & therefore ſaid to be within the memory of man; for Littera Scripta manet, this need not be proved by the Authorityes of our Bookes, for it is obvi­ous to every mans ſight and experience, that ſome Parſons hath Tythe of Furz by Cuſtom, and others Tithe-Pige­ons,Vpon this a Committee-man quibbled, & ſaid the Gentleman did ſay true in Tythe-Ale, and that is the reaſon why Parſons have commonly ſuch fiery Faces. if ſold by Cuſtom: and ſome Parſons have Tithe Rab­bets by Cuſtom, and ſome Parſons have Tithe-Ale by Cuſtom: But to ſatisfy you for the Authorities of the Law in this point, ſee Cook ſecond Report, fol. 44. Doctor and Student 2d. cap. 5. See Cook ſecond Inſtitutes, fol. 664 where hee ſayth, that a Parſon by Cuſtom may have Tythes of ſuch things as are not Tythable of Common Right.

Fourthly, I ſhall proov that Tythes are not only due by Ʋſage under the Law and Goſpel, by the Concurrence of all Nacions, by the Common Law, by the Cuſtom Law of the Land, but they are alſo due by Statute-Law, and the Spirituall right of them as it were waved and made Tem­porall, by ſeverall Acts of Parlament: To begin with Mag­na-Charta, the begining and Fountain of all our Lawes, the Birth-right of the Free-born people of England, the pale and bounder of the people from the Tiranny of Kings, and Uſerpers; and therfore it was always ſtrugled by the people to be confirmed by all Kings, and ſo it was 32 ſeverall times: This MagnaCharta, being ſo many ſeverall times confirm­ed7 by ſo many wiſe Parlements, that my Lord Cook in his ſe­cond Inſtitutes upon this ſaith, that all Statutes made a­gainſt it are voyd, and this Statute, this Magna-Charta, the good people of Englands Birth-right, this doth eſtabliſh Tythes: other Statutes have been made, as the 28 of Ed: the Firſt cap. 13. Statutes ſince the bleſſed Reformacion, and caſting off of the Popiſh yoak, Tythes were made Temporal and Recoverable in Common Law Courts, by 27 of Hen: 8. the 31 & 32 Sta: of Hen: the 8. the firſt of Ed: the 6. Ch: the 2 of Ed: the 6. Ch: the 13. and the Statutes in the Late Parlament. Thus you ſee how all Parliaments have been tender of Tythes, nay do ſo much favour Tythes, that they give them better Remedy then other Free-holds, or Inheritances; they give them Treble dammages

Objection. But ſome will ſay, that we will pay no Tyths; they are ſuperſticious.

Anſwer. It will receive this Anſwer, that the Statutes made ſince Hen: the 8. and the caſting off the Popiſh yoak, and all ſu­perſticious uſes forfeited to the King, yet theſe Tythes of the parſon ſtood firm, and adjudged not ſuperſticious; as appeareth in the Biſh: of Canterberies caſe, and the Biſh: of Wincheſters caſe, in Cooks ſecond Report: I need not put you in mind of the ſeverall Acts of the late Parliament, being ſo freſh in your memories.

Others will object that Tythes are chargeable, we will have them by ſtipends.

Truly I think they cannot be leſſe, for they are com­monly but 50, 100 or 200 Pounds per annum.

The Clergy of Holland whoſe Apes wee ſeem to be in this of Stipends, allow as much, nay and their Wives and Chil­dren provided for to boot; but I may ſay that the people of England payeth no Tythes at all, for Cook in his firſt Inſtitutes 58 ſaith that all the Lands in England were the Kings Demeſnes, and I have ſeen an ancient Record that Ethelwolph the ſecond Monarch of the Saxon Race (his Father Egbert beeing the firſt that brought the former8 Heptarchy under one ſole Prince) conferd the Tythes of all the Kingdom upon the Church, by his royall Charter, or which thus Ingulph Abbot of Crowland, and old Saxon writer, King Ethelwolph with the conſent of his Prelats and Princes, which ruled in England under him in their ſeverall Provinces, did firſt enrich the Church of England, with the Tythes of all his Lands, by his Charter Royall.

You may ſee by this, that they are of a Temporall conſtitution with the conſent of his Prelats and Princes. And that the Caſe is no more then this; Iohn Aſtiles graunts a Rent charge out of his Land, and then ſelleth me the Land: I hope you will all ſay, that I cannot be ſaid to pay the Rent Charge, for I conſidered it in my Purchaſe. Therefore thus you ſee the people grumble and complain to pay Tythes, and to be eaſed of this great Burden: when as indeed they pay none at all

Some will ſay they are Burdenſom to pay them in ſpecie; we will pay them by Stipends, which is more preporciona­ble and more eaſie.

This Objection will receive this Anſwer; that Tythes are more eaſie, Firſt to the Pariſhoner in generall, for now they pay it in specie, then they will pay it in nummis numeratis, and I know that the Country-man generally had rather pay twelve pence in Free-quarter or in ſpecie, then ſi penc in Money; beſides now the honeſt Parſon liv­ing at home with him, can take it at his beſt convenience, but the Collector he is reſponcible to the Treaſurer, who expects a ſtrict account; therefore the Collector being thus a ſtranger muſt aſk and have, or elſe diſtrain and uſe violence.

I am ſure it will not be proporcionable nor eaſie to the Pariſhioner in particular, for thoſe who are many hun­dreds, that have a modus decimandi, as having purchaſed9 Abbey Lands, which by order of Ceſterciens, Hoſpitallers, are free from paying of Tithes; or by the Statute of the 31 of Hen. 8. of unity of Poſſeſſion pay no Tithes, or by real compoſition pay but ſix pence for 3 hundred pounds per annum, will by an alteration of Tithing to a Stipend pay twenty pounds per annum, or more; thus you ſee theſe men undoubtedly injured by this alteration of Tithes into Stipends.

The Parſon I am perſwaded will not conſent to the al­teration of Tithes into Stipends, for now he hath his Tithes at home, and paid himſelf, he can keep as much of them as will keep his houſe without ſending to the Market, the reſt he may let his Neighbour have a good bargain in, and ſo maintain a love and correſpondency with his Neigh­bour, and receive his money at home when his Neighbour can beſt ſpare him it; but if he have his maintenance in Stipends, and receive it of Treaſurers, he muſt often be in­terrupted in his Studies, in making many journeys to him, and many of them will prove bootleſs, for the Treaſurers will ſay, I am buſie, or Money is not come in, or his Betters muſt be paid before him, with many other Delays, which none but thoſe that are acquainted with receiving Moneys of publick Treaſuries can imagine. Some I know have been compounded out of half their Pay, becauſe they have not Moneys to ſtay in Town for their Pay, or becauſe their preſent occaſions neceſſitates them to it.

But I have been too much tranſported with my zeal in ſpeaking too long of the Juſtice in right of Tithes, I ſhall make you amends in ſpeaking leſs of the right of Advou­ſons and Fee-Farms, iſſuing out of appropriated Tithes, having made the Porch bigger than the Houſe.

Firſt, for Advouſons, I ſhall maintain that if Tithes be taken away the Patron will loſe his Right of Preſenting, and his Right in Tithe: and that he hath as good an Eſtate in it as any other man hath in his other Lands and Poſſeſ­rions; and in this I ſpeak but my Lord Cook's words in his10 firſt Inſtitutes, fol. 17. b. my Lord Cook doth ground himſelf upon very many good Authorities in the Law, as 7 Ed. 3.63. 24 Ed. 3. fol. 34. H. 6.34. 19 Ed. 3. Quare impedit. 154. Mirrour cap. 3. Sect. 17. Dyer. 83. I ſhall prove it alſo by Writ out of the Regiſter, A reſcriptis valet ar­gumentum, as firſt the Writ of Right of Advouſon, when the Patron loſeth by default this is a Writ of a higher nature, that he may try it again, there is a Juris Vtrum, there is a quare impedit, a Darrein Preſentment, a quare non admiſit, a quare incumbravit, a vi Laica amovenda. Thus you ſee the Law like a wiſe Phyſician preſcribeth theſe ſeveral Remedies for the ſeveral Obſtructions which may happen in the Patrons right in Advouſons.

I may draw an Argument from the Topick of good pleading, for Mr Littleton and my Lord Cook in his Book of Entries ſaith, that ſuch a one is ſeiſed of his Advouſon, Vt de feodo & de jure, as of his fee, and of right.

The original of Advouſon came either as they were Founders or Benefactours to them, as appeareth in Cook in his firſt Inſtitutes, fol. 17. b. or elſe by Purchaſe from the Crown upon valuable conſideracion: I muſt confeſs that no Patron can take money for preſenting to a Benefice, it were Simonie if he ſhould, and therefore Cook in his firſt Inſtitute ſaith, that a Guardian in Soccage cannot preſent to a Benefice, becauſe he cannot take money for it; and he ought by the Law to give an account to the Infant; but the ſame Authour ſaith, that the Patron may preſent his Son Si Perſona idonea ſit, and this will be a good proviſion of the Father for the younger Sons porcion, and therefore in an eye and reſpect to this the Law looketh upon an Advouſon as Aſſets, Fleta lib. 2. c. 65. Britton 185. 5 H. 7.37. 32 H. 6. fol. 21. 33 Ed. 3. Garrante 102. there­fore the Law in an eye and reſpect to this giveth the Patron Dammages if he be diſſeiſed or outed of his Advouſon, as appeareth by the Stat. 18 Ed. 1. But why go Lſo far in this thing that is ſo plain, to add more were but nodum in ſcyrpouerere, or to light a Candle at the noon-day.


I come next to the Purchaſers of fee-farm rents, for if the ſub­ject be taken away the Adjunct muſt needs follow, Acceſſorium ſequitur ſuum principale: if you take away Tithes from Parſons, as they having no right to them, theſe Rents which they have granted out of Tithes muſt fall to the ground, and vaniſh with them: if Tenant in tail infeoff his Son within age and the Son at full age granteth a Rent-charge out of the Land, and then Father Tenant in tail dieth, the Son is by this remitted, and the Eſtate out of which the Rent was granted, is gone, the Rent is gone alſo: Cook firſt Inſtitutes, fol. 310.

M. Littl. Sect. 5 28. telleth us if a Parſon of a Church charge the Glebe of the Church by his Deed, and after the Patron and Ordinary confirm the ſaid Grant, then the Grant ſhall ſtand in its force, but in this Caſe it behoveth that the Patron hath a Fee-ſimple in the Advouſon; for if he hath but an Eſtate for Life or in tail in the Advouſon, then the Grant ſhall not ſtand, but during his Life and the Life of the Parſon which granted: ſo that by this you may ſee that the Patron hath an individed and joynt Eſtate in the Glebe with the Parſon; the Patron and Parſon by this you may ſee are more ſeiſed Per my & per tout, of the Glebe than Jointenants are of any other Eſtate, for Jointenant have Moities in judgment of Law, which may be ex­tended, or a Fine or Particion ſued of it: but Patron and Par­ſon hath ſuch indiſtinct fee in the Glebe, as if Lands were given to Baron & Feme and their heirs, here is no Moities, for Huſ­band and Wife are but one Perſon in Law: you may ſee alſo by this that the Parſon, Patron, and Ordinary (concurrentibus his) may grant Rent-charges out of the Glebe, and if you will allow the Patron and Parſon no right, then thoſe Purchaſers of thoſe Rents which are many hundreds in this Common-wealth muſt loſe their Bargains upon valuable conſiderations, which the Law did then allow them to make. Likewiſe there are many others which have extended Parſons Tithes upon Debts, and given money for Leaſes of them by way of Fine before hand, theſe will alſo be defrauded. I ſhall not mention Impropria­tions, but hint you of a Paſſage in the laſt Parliament, when12 Biſhops were to be purged out of the Houſe of Lords, one Lord ſtood up and ſaid, Shall we agree to this Vote? we ſtand upon the ſame foundation with them, we ſhall be wounded through their ſides, Et proximus ardet Ʋcaligon, our turn will be next, and ſo it proved: theſe inconveniences you ſee will follow. The Cords and Bonds of the uſage under the Law and Goſpel with the concurrence of all Nations will be broken, the Common Law and Cuſtome Law will be infringed; thus the Statute Law and Magna Charta will be violated, the right and fee of modus decimandi, will be intrencht upon, the propriety that Patrons have in Advouſons and in Tithes will be trampled upon, Fee-farm Rents which men have hazarded to buy, to aſſiſt this Common-wealth with moneys will be extinct, former Purchaſers alſo of Rents out of the Parſons Glebe will be merged alſo: theſe with many other inconveniences which the frailty of man cannot conceive at preſent, onely the Midwife of time and expetience muſt bring forth, will follow if this Law of Tithes receive an alteration: and therefore Lycurgus when he altered any Law, he exerciſed it in his own Family twelve years firſt to ſee what inconvenience would happen upon it before he would command it to be obeyed abroad; I hope therefore that you ſeeing the right of Tithes and Patrons in Ad­vouſons you will make a farther Law to ſtrengthen them, and I hope Tithes ſeeming ſhattered like a broken Leg, you will unite them by a future Proviſion, that they will ſtand the firmer ever after.


About this transcription

TextAn argument in defence of the right of patrons to advousons. And incidently of the right of tythes in generall. As it was delivered to the committee for tythes, on Wednesday the 14 of September 1653 and taken exactly by one that hath skill in tachygraphy or the art of short-writing
AuthorNortcliffe, Counsellor..
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SeriesEarly English books online.
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Bibliographic informationAn argument in defence of the right of patrons to advousons. And incidently of the right of tythes in generall. As it was delivered to the committee for tythes, on Wednesday the 14 of September 1653 and taken exactly by one that hath skill in tachygraphy or the art of short-writing Nortcliffe, Counsellor.. 12 p. Printed for Edward Blackmore at the Angell in Pauls Church-yard.,London, :1653.. (Annotation on Thomason copy: "by Counsellor Nortcliffe:"; "Sept. 22".) (Reproduction of the original in the British Library.)
  • Advowson -- Early works to 1800.
  • Tithes -- Early works to 1800.

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