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him to pay his Tythes, notwithstanding this Toleration : nor only Tythes, but all other Dues ; for so says the Statute, viz. Notbing berein contained Mall exempt any Persons from paying Tythes, or any other Duties to tbe Church or Minister : Therefore not from Offer. ings due upon Churching Women ; for if those only who are actually Church'd must pay,
then the Church is a Lofer, by Womens being left to their Difcretion in this particular, as before they were not.
Justices of Peace that love the Church and Clergy, have great Opportunity given them of doing them right, by Stat. 7,8
W. III.c.6. being an Act for the more easy Recovery of small Tytbes: (which is perpetuated by an Aět of Her late Majesty.) ThoTytbe only is mention'd in the Title, yet in the Body of the Act, Oblations, offerings, 8c. are provided for. An adinirable Law, if well executed. See Appendix
The like Remedy is to be used against Quakers, for any sort of Church Duties not exceed. ing 101. and for any Term of Years past, but this last is a Temporary Act, to continue eleven Years from the making of it, which was, 13 W.III. This is made perpetual by iG.6. 8.
'Tis not necessary that the Incuinbent do demand his Tythes or Satisfaction for them before he commence his Suit, except he proceed before the Justices of Peace. I have indeed heard, that the lait D. of the Arches and Vicar-General
, would not permit process for Tythes till a De mand was first made; but in this, I suppose, liis Judginent was fingular. However, 'tis certain
fach Demand is not neceffary for him that sues in the Excbequer.
The Clergy of London can sue only before the Lord Mayor for their Tythes, 8c. but if the Lord Mayor neglect,' or refuse to do his Office, the Lord Chancellor, or Barons of the Excbe: quer are to interpose ; 22, 23 Car. II.
Of the separate Rights of Parson and Vicar. DEZure Communi, all the Tyrbes and Profits
of the Church belong to the Parson; what the Vicar claims, must be either by Endowment or Prescription.
The Endowment is the Original Agreement betwixt the Monastery, or other Religious Body to which the Church of old belong'd, and the Vicar; made by Consent or Appointment of the Bishop,and sometimes called the Ordination of the Vicarage. If that Religious Body be now in being, as all the old Cathedrals are; or if the Impropriation were, at the Dissolution of the Monastery, given to any Cathedral or Collegiate Church that now is, the inost probable Place to find the Endowment of it, is in the Archives of that Church; if not, you may consult the Augmentation Office. But inost Endowments are now loft, at least to us, by being carried to Rome at the Diffolution of Monasteries,
And therefore if a Vicar cannot produce an Endowment, yet if he prove conftant Usage, and Payments, that is fufficient. Watf. s. 39. P 304, 305.
And if the Endowment do appear, and do not mention any Glebe, or Tythe belonging to the Vicar, yet if the Vicar by constant Ulage hath enjoy'd them, he shall not be concluded by their not being mention'd in the Endowment: For it Shall be presum'd, that some Composition has been fince made, or that the Bishop, by his Power, has since augmented the Vicarage. Wats. Ibid. p. 305;
The Diftin&tion of great and small Tythes, does no great Service in determining the Rights of Parfon and Vicar : For the Vicar, in most Places, has some great Tythes, as Hay, or Wood, and (perhaps) fome Portion of Corn. Tythes; and on the other side, the Parson of. ten has some of those Reputed small Tythes ; as Hops, Flax, and in some parts of the Parish, and sometimes thro' the whole Parish, all manner of Tythes: Only, if the Parson cannot prove that he, and his Predecessors have, time out of mind, receiv'd any small Tythes, or the Tythe which is in difpute, it shall, if it be a fmall Tythe, be presumed to be the Vicar's: Or, if it do appear, that the Vicar be Endow'd wiib all fmall Tythes, then the Parson can have no other Tythes but those of Corn, Hay, and Wood: For I do not find, that any others are by any Law reckon'd great Tythes.
Watfon 'indeed 1ays, that Hops in Kent, have ever been adjudged great Tythes, when planted in a large Quantity of Land; but he ar
gues against the Justice of the thing; and to prove, that the Quantity alters not the Property, thews that a Field of forty Acres of Saffron, has been adjudged small Tythe, Ibid. 306. And I am farther assured, that Hops in Kent, have been adjudged small Tythes by the Barons of the Exchequer, whose Decree was likewise affirmed by the House of Lords, 2do Annæ.
And if finall Tythes be, by the Endowment, granted to the Vicar, and the Parson doth by Cufom or Prescription take the same, yet the Vicar may recover his small Tythes at Common Law, For 'tis a settled Rule, that the Parfon cannot prescribe against the Endowment : lbid. p. 307
Altaragium, a Word frequently used in Endowments, imports not only what is now calld Oferings, but sometimes all fmall Tyrbes commonly paid to the Vicar: Wats, c. 39. P. 307,
The Tythes of Clover-grass, or such like, Thall go to him that hath Tythes of Hay: Ib. p. 307.
Woad, Saffron, Wield, are all small Tythes, and go to the Vicar, if he, by Endowment, or Prescription, have all the small Tythes: Watf.
If only finallTythes be mention'd in the En. lowment or Composition, and yet the Vicar have time out of Mind, had Tythe-Wood, it hall continue to the Vicar, tho’Wood be commonly accounted a great Tythe: Watf.c. 39.
305. If a Vicar have used, time out of Mind, to lave all Tythes, except Tythe of Corn, and fterwards Rapé-seed is sown in the fame Paif, he shall have Tythe of that too: Watf.
No Tythe of Glebe-Land shall be paid of common Right by the Parson to the Vicar, or by the Vicar to the Parson; for Ecclefia non solvit Ecclefiæ, (but then it must be ancient Glebe,) Wais. 6.47. p.404. and yet by specialCustom it may be otherwise, and Tythe may be paid by either to the other : See Godol. c. 33. G. And if the Vicar let out his Glebe, it shall pay great Tythe to the Parson, and if the Parson let out his Glebe, it shall pay Vicarage Tythes to the Vicar. Ibid.
By this last Cafe, it ihould appear, that the Glebe of those impropriated Parlonages, the Fee of which is in any Ecclefiaftical Person, or Body, ought to pay Tythe to the Vicar, when leased out, as all or most such Parsonages are.
When there is a Controversy between the Parfon and Vicar, the most proper Court is the Spir ritual; and in this case, 'is allow'd, on all hands, that no Prohibition lies; and sometimes there are Terriers in the Ecclefiaftical Court, which are Accounts of the Glebe, and Tythes given in tothose Courts of old time by the ChurchiWardens and other Parishioners, and thefe Aca counts are often very just as to the Vicar's Rights, and may do him good Service, and are of greater Authority in these Courts, than in the Temporal ones, where Courts Ecclefiaftical are not allow'd to be Courts of Record; and yet even in Tempo, ral Courts these Terriers are of some Weight, when duly attested by the Register : But the Misfortune is, that when a Clergyman has car. ried his Cause in the Bishop's Court, he is lia: ble to be appeal'd to the Arches, &c, or the Parfon may again begin his Suit againit the Vicar de novog in the Temporal Court; Yet Lay