AN ARGUMENT In Defence of the Right of Patrons to Advousons'. And incidently of the Right of TITHES in general.  
As it was delivered to the Committee for Tithes, on Wednesday the 14 of September 1653 and taken exactly by one that hath skill in Tachygraphy or the Art of Shortwriting  
LONDON, Printed for Edward Blackmore at the Angel in Paul's Churchyard, 1653   

An ARGUMENT In Defence of the Right of Patrons to Advousons'. And incidently of the Right of TITHES in general  
As it was delivered to the Committee for Tithes, on Wednesday the 14 of September 1653 and taken exactly by one that hath skill in Tachygraphy or the Art of Shortwriting  
May it please you, Sir,  
I Am of Council 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 Impropriations: That of Tithes in general is a large & copious field, it would tyre your patience 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) 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 Dispenser's of the Word of God, for what Soldier is there in this Commonwealth 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, than the Dispenser's 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 Dispenser's of the Word of God ought to be in this in dividual and numerical way of decimal parts, or Tenths, or Tithings.  
First by Usage under the Law, for the Tribe of Levy they had their 48 Cities with their territories round about; they had their Tithes also, the first born, and the first fruits of every thing the Earth brought forth for the use of man. Under the Gospel though they had not Tithes actually paid them, (because they were as it were in their motion to the Land of Rest) yet it appears by Origen and many other ancient Authors, that they were continually claimed as their due and right, and this continual claim, Mr. Littleton telleth us preserveth a right, nay it prevents descents que tollent entries; we may deduce and draw Tithes down from all Ages, and Nations 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 believed, of all Nations: And certainly there must be digitus Dei in it, that all Nations ab origine before they heard of oneanother, that they should all fix upon one way of the Ministers maintenance by tithings.  
They are not only due by Usage under the Law, and the Gospel, and the Concurrence, and Concord of all Nations in Christendom; but I shall make a further step, and prove 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 Original 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 Parson's 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 ways 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  but a fee-simple and good inheritance in his Tithes, or glebe, for of a lesser estate than a fee-simple or fee-tail a writ of waste will not lie; therefore in my Lord Cooks fift Report fol: saith that if there be Tenant for Life, Remainder for life; and Tenant for Life commit Waste, Remainder for Life cannot bring an action of Waste; the writ of Waste always concludeth ab Exheridacionem ipsius, and Remainder for Life hath but a  and no Inheritance, so Cook in his first Institutes Folly: saith that if Tenant in tail Special make a Lease for Life, and Lessee for Life commit Waste, and then Tenant in tail bringeth a writ of Waste, and pending the writ, he becometh Tenant in  apres Possibility of Issue extinct: now this Wast is dispunishable, for he is now become but Tenant for Life, he hath but a , he hath no Inheritance, and the words of the Writ must be observed, because penal ad Exheridacionem ipsius: The tenth part severed from nine parts, was always suable at Common Law; for Trespass lies if taken away; Brook title Tithes. 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 Usage under the Law of God, and Gospel, and Concurrence of all Nations, and by the Common Law of the Land; but it is due by the Custom law of this Nation, 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 Copyhold Estate, the essence and being of it is secundum consuetudinem Manerij; it cannot be entailed 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 Books, for it is obvious to every man's sight and experience, that some Parsons hath Tithe of Furz by Custom, and others Tithe-Pigeons, 
Upon 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 Rabbits 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 he saith, that a Parson by Custom may have Tithes of such things as are not Tythable of Common Right.  
Fourthly, I shall proov that Tithes are not only due by Usage under the Law and Gospel, by the Concurrence of all Nations, by the Common Law, by the Custom Law of the Land, but they are also due by Statute-Law, and the Spiritual right of them as it were waved and made Temporal, by several Acts of Parliament: To begin with Magna-Charta, the beginning and Fountain of all our Laws, the Birthright of the Freeborn people of England, the pale and bounder of the people from the Tyranny of Kings, and Userpers; and therefore it was always struggled by the people to be confirmed by all Kings, and so it was 32 several times: This MagnaCharta, being so many several times confirmed by so many wise Parlements, that my Lord Cook in his second Institutes upon this saith, that all Statutes made against it are void, and this Statute, this Magna-Charta, the good people of England's Birthright, this doth establish Tithes: other Statutes have been made, as the 28 of Ed: the First cap. 13. Statutes since the blessed Reformation, and casting off of the Popish yoke, Tithes 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 Parliament. Thus you see how all Parliaments have been tender of Tithes, nay do so much favour Tithes, that they give them better Remedy than other Free-holds, or Inheritances; they give them Triple damages  
Objection. But some will say, that we will pay no Tyths; they are superstitious.  
Answer. It will receive this Answer, that the Statutes made since Hen: the 8. and the casting off the Popish yoke, and all superstitious uses forfeited to the King, yet these Tithes of the parson stood firm, and adjudged not superstitious; as appeareth in the Bish: of Canterberies case, and the Bish: of Winchester's case, in Cooks second Report: I need not put you in mind of the several Acts of the late Parliament, being so fresh in your memories.  
Others will object that Tithes are chargeable, we will have them by stipends.  
Truly I think they cannot be less, for they are commonly but 50, 100 or 200 Pounds per annum.  
The Clergy of Holland whose Apes we 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 Tithes at all, for Cook in his first Institutes 58 saith that all the Lands in England were the King's Demesnes, and I have seen an ancient Record that Ethelwolph the second Monarch of the Saxon Race (his Father Egbert being the first that brought the former Heptarchy under one sole Prince) conferred the Tithes of all the Kingdom upon the Church, by his royal Charter, or which thus Ingulph Abbot of Crowland, and old Saxon writer, King Ethelwolph with the consent of his Prelates and Princes, which ruled in England under him in their several Provinces, did first enrich the Church of England, with the Tithes of all his Lands, by his Charter Royal.  
You may see by this, that they are of a Temporal constitution with the consent of his Prelates and Princes. And that the Case is no more than this; john Astiles grants a Rend 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 Rend Charge, for I considered it in my Purchase. Therefore thus you see the people grumble and complain to pay Tithes, and to be eased of this great Burden: when as indeed they pay none at all  
Some will say they are Burdensome to pay them in specie; we will pay them by Stipends, which is more preporcionable and more easy.  
This Objection will receive this Answer; that Tithes are more easy, First to the Parishoner in general, for now they pay it in specie, than they will pay it in nummis numeratis, and I know that the Countryman generally had rather pay twelve pence in Freequarter 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 easy to the Parishioner in particular, for those who are many hundreds, that have a modus decimandi, as having purchased 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 persuaded 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 busy, 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 public 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 his 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. Mirror 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 Patron's 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 seized of his Advouson,  de feodo & de jure, as of his fee, and of right.  
The original of Advouson came either as they were Founders or Benefactors to them, as appeareth in Cook in his first Institutes, fol. 17. b. or else by Purchase from the Crown upon valuable consideration: I must confess that no Patron can take money for presenting to a Benefice, it were Simony 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 Author 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 portion, 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 Damages 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 scyrpo ●uerere, or to light a Candle at the noonday.  
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 principal: 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, than 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, than 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 joint Estate in the Glebe with the Parson; the Patron and Parson by this you may see are more seized Per my & per tout, of the Glebe than Jointenants are of any other Estate, for Jointenant have Moities in judgement of Law, which may be extended, or a Fine or Partition 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, than those Purchasers of those Rents which are many hundreds in this Commonwealth must lose their Bargains upon valuable considerations, which the Law did then allow them to make. Likewise there are many others which have extended Parson's 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, when 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 Vcaligon, 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 Custom Law will be infringed; thus the Statute Law and Magna Charta will be violated, the right and fee of modus decimandi, will be entrenched 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 Commonwealth with moneys will be extinct, former Purchasers also of Rents out of the Parson's Glebe will be merged also: these with many other inconveniences which the frailty of man cannot conceive at present, only 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.  
FINIS.