THE acknowledged learning of the Reverend Author of the Directions to Church-wardens, is a sufficient recommendation of the Work. The notes and, observations, it is hoped will be found to be useful. The Compendium of the Law of Tithes, contains much useful information on that subject.
G. C.
Grays Inn Square,
6 Nov. 1804.
MY WORTHY BRETHREN,
The ignorance of Church-wardens as to the duties of their office,
which they have been sworn to, making Visitations in a manner ineffectual, and also
frequently causing great differences and disturbances at home among their neighbours,
through the errors and, mistakes which they run into, about the repairs of Churches,
and the levying of rates for the same; I have thought it necessary to draw up
these directions for the preventing of the like mischiefs and inconveniencies for
the future; and if you will join your endeavours with me so far, as out of this
paper every year to inform and instruct your Church-wardens, that they may the
better know their duty both in presenting such
And I am,
Your affectionate Brother and Servant,
HUMPHREY PRIDEAUX.
CHURCH-WARDENS are officers of the parish in ecclesiastical
affairs, as the constables are in civil, and the main branches of their duty are
to present what is presentable by the ecclesiastical Jaws of this realm, and repair
the Church It was not till about the year 700, that the Saxons in large districts,
founded Churches for themselves and their tenants; and those were the original
of parish churches. Seld. de Dec. 259. c. 9. s. 4. Within these districts other Churches were afterwards erected,
which in process of time have obtained tithes, burials and baptism, and thereby
become Parish-Churches. Id. 262. c. 9. a. 4. D. of Plu. 92. And therefore every Church having burial, baptism and tithes, is
now esteemed a Parish Church. Id. 265. c. 9. s. 4. And so if a place has not a Church, Church-wardens and
Sacramentalia, it is not properly a parish. So it shall not be a parish by reputation within Stat.
43. El. 2. if it had not a Parochial Chapel, Chapelwardens and sacramentalia,
at the time of Statute. Although it had a distinct overseer and maintained its own poor,
Sal. 501. And though it had also a Chapelwarden by whom rates are collected there,
and paid to another parish. Ibid. A Church built within the precinct of a Parish Church, to which
burial and sacraments belong, is a chapel of ease. 2 Rol. 310. Churchwards, are lay persons, though ecclesiastical officers. Hard.
379 (see 2 Rol. 71. 1 Sal. 166. 5 Mod. 326.)
For the better information of Church-wardens as to those particulars,
which they are to present, The book of Articles delivered to them for their direction, are for the
most part founded on the book of Canons made in 1603, and the Rubricks of the
Common Prayer.
They are obliged twice every year, i. e. at the visitations of the Bishop, Arch-Deacon, or other Ordinary, to make their presentments, according to the said articles, of all such things as are amiss in their parishes, and may, if they think fit, do it oftener, as there shall be an occasion, but cannot be forced thereto, unless only when the Bishop visits, Can. 116, 117.
They are bound to present not only from their own knowledge,
but also from common fame This discretion should be exercised with great circumspection.
Common fame, as the adage has it, is (sometimes) a common liar, and it is presumed, that no one will present, till, by his own enquiries,
he is satisfied, that common fame speaks the truth.
In case the Church-wardens omit to present any of those particulars,
of which there is such a common fame in their parish, they may be forced to do it
by the Ordinary in his visitations, on his having notice of the thing; and, it they
refuse so to do, be proceeded against as wilful breakers of their oath, and in
the interim be barred the communion by the Minister of the parish, Can. 26.
117 By They may present as often as they please, and shall not be obliged
above once a year when it hath been so used, and not above twice any where, except
at the Bishop’s visitation. Can. 116, 117. The Minister may present, if the Churchwardens neglect. Can. 113. But such presentment
ought to be upon oath. 2 Vent. 42. For the presentment of any Church or Chapel for one year, the
register shall have only 4d: Can. 116, 117.
It is the duty of Ministers to admonish Churchwardens of these particulars, and therefore they
As it is the duty of the Minister, so also it is of every good Christian, to advise the Church-wardens of what is amiss in their respective parishes; and to admonish and excite them to present the same; and every parishioner hath a right so to do, that so every scandal, which gives them offence, may be removed. And the Church-wardens are bound to have regard hereto, and present whatever upon any such informations or advices, either of the minister or parishioners, they shall find to be of ill fame in their parishes; and if they refuse or neglect so to do, they are liable to the same penalty, as when they refuse to do it on the admonition of the Ordinary; that is, are to he proceeded against as wilful breakers of their oath, and in the interim be barred the Communion by the Minister of the Parish, Can. 26. 116.
But here the Church-wardens must be advised to have a care, that
they do not turn the groundless calumnies,. and base slanders, which wicked and
The Church-wardens are also to present all such as come not to
Church, (Can. 90. 5to & 6to Edw. 6. c. 1. 1 Eliz.
c. 2. 3 Jac. 1. c. 1.) Nor doth the
Act of Toleration at all supersede this part of their office. But since all such,
who frequent any other assembly for God’s worship tolerated by the said act, must
on their pleading the same, and making proof thereof, be discharged; the governors
of the Church do not now require, that the Churchwardens should give any trouble
to such, who, they are well satisfied, do constantly resort to any of the said assemblies:
But where they are not well assured of this, they are earnestly desired still to
present the said absentors, least by their neglect herein, the said Act of Toleration,
which was intended only for the case of tender consciences, become a shelter and
encouragement to the atheism and profaneness of such, who would gladly be at liberty
to worship God no way at all. Nor need the Church-wardens be afraid of any trouble
to themselves, from their thus discharging their duty in this particular, because
the absence alone of any such from Church, will sufficiently justify their presenting
of them; And that they have been at any other assembly tolerated by the said act,
doth not lye on the said Church-wardens to take notice of, but on them to make proof
of it, before they can have the benefit of the same. But where the Church-wardens
have not good reason to believe they have been absent from all such assemblies,
as well as from Church, The worthy and learned Dean seems by this expression to have been
sensible, that there was danger to be apprehended, from Church-wardens
who might be officious intermedlers in other mens concerns. To admonish,
to recommend, to advice, is certainly right. But some doubt
has been entertained of the policy of compelling men to attend divine
worship. Certainly the most acceptable. offerings are those made with a free
will.
But all this is to be understood upon supposal, that such dissenters
have qualified themselves according to the said Act of Toleration, to partake of
the benefit of it; that is, have at the Quarter-Sessions taken. the oaths I A. B. do solemnly declare, in the presence of Almighty God,
that I am a Christian and a Protestant, and as such, that I believe that the Scriptures
of the old and new Testament, as commonly received among protestant Churches, do
contain the revealed will of God; and that I do receive the same as the rule of
my doctrine and practice. It has been held that German Lutherans are within the protection
of the Toleration Act. Peake’s Cases, 132. This is the Act of Toleration, and was by the 19 G. 3.
c.
44. declared to be a public act.
And the said Church-wardens are bound not only to observe, who
are thus absent from the Church, but also to see and take care, that all that resort
thereto, do in time of divine service and. sermon behave themselves orderly, soberly,
and reverently, kneeling at the prayers, standing at the belief, and sitting or
standing quietly and attentively at the reading of the scriptures, and the preaching
of God’s Word, (Can. 18 & 111.) That none walk, talk, or make any
noise in the Church to disturb duty, which is there performing, Can. 18 & 111.)
That none sit there with their hats on And therefore it has been resolved, that they may take off the
hat of any one who wears it in the Church at the time of divine service, without
a prosecution in the Spiritual Court. 1 Saund. 1 Lev. 196. 1 Sid. 301. This statute enacts, that if any person shall, by words only,
quarrel, chide. or brawl, in any Church or Church-yard, the Ordinary (on proof of
two witnesses) may suspend every layman being an offender, ab ingressa ecclesiæ.
(i. e. from entering into the Church) and every clergyman from the ministration
of his office, so long as he shall think meet, s. 1. And, if any shall smite, or
lay any violent hands on another in any Church or Church-yard, he shall be deemed
ipso facto excommunicate, and be excluded from the
fellowship and company of Christ’s
congregation. s. 2. But Church-wardens, or perhaps private persons, who whip boys for
playing in the Church, or pull off the hats of those who obstinately refuse to take them off themselves, or gently lay their hands
on those who disturb the performance of any part of divine service, .a turn them
cut of Church, are not within the meaning of this Statute. 1 Hawk. 139. Although the statute says he shall be ipso facto excommunicate;
yet in this and other like cases there ought either to be a precedent conviction
at law, which must be transmitted to the Ordinary, or else the excommunication must be declared in the Spiritual Court upon
a proper proof of the offence there; for it is implied in every penal law, that
no one shall incur the penalty thereof; ’till he be found guilty upon a lawful trial.
1 Hawk. 139. And the offender shall not excuse himself by chewing that the other
assaulted him. ibid. Or that it was in his own defence. Noy 171. But if any shall maliciously strike another with any weapon,
in any Church or Church-yard, or shall there draw any weapon with intent to
strike, and shall be convicted thereof by verdict of 12 men, or confession,
or by two witnesses, before the judges of Assize, or Justices of the Peace in their
Sessions, he shall be adjudged to have one of his ears cut off; and if he
have no ears, he shall be burned in the cheek with a hot iron, having the letter
F, whereby he may be known and taken for a fray maker and fighter; and he shall
stand ipso facto excommunicate. 5 & 6. Edw. 6. c. 4. s. 3. And in the case
of Bilson v. Chapman, Hil. 9 G. 2. Cas. T. Hardw. 190. it was held,
that the Ecclesiastical Court has jurisdiction to give sentence of excommunication;
and that there must be a sentence declaratory at least, for striking in a Church-yard.
And that this may be done without any previous conviction. Unless on the third clause
of striking with, or drawing a weapon, and there a temporal punishment (the loss
of an ear) being inflicted, and the excommunication an accumulated punishment,
a prior conviction is requisite.
And because such times as are devoted to the service and worship
of God, ought not to be prophaned by being employed to any other work, but all ought
then to exercise themselves in the duties of piety and religion both publicly and
privately, the Church-wardens are to see, that all such times be duly observed,
especially the Lord’s Day, which hath by God himself been consecrated to his, worship
from the beginning of the world, and make all such pay their legal forfeitures,
who are defective herein: For if any one shall do any worldly work or business
on that day (works of charity and necessity only excepted) he shall forfeit five
shillings. If one shall then publicly cry Only one penalty can be incurred in one day. Cowp. 640.
And because many, instead of employing the Lord’s Day in the duties for which it is set apart, are apt to mis-spend it in idleness and looseness, at ale-houses, taverns, and other public places of debauchery; for the preventing hereof the Church-wardens ought frequently on the said Lord’s Days to visit such houses, both in time of divine service, and also out of it, and if they find any tipling in the said houses, they are to make them pay three shillings and four-pence for the same, and the owner of the house ten shillings for entertaining them, and also five shillings more for using his trade on the Lord’s Day; and if it be in time of divine service, they may make every one of them pay also one shilling for being absent from Church. All which forfeitures are to be levied and disposed of in the same manner as the last above-mentioned (1 Jac. 1. c. 9. 4 Jac. 1. c. 5. 1 Car. 1. c. 14.) And none of the said statutes, which are here quoted either in this article or the last, do supersede the jurisdiction of the ecclesiastical courts, but leave the said offenders fully in their power, to be corrected by ecclesiastical censures for their said offences; in order to which, they are by the said Church-wardens at the next visitation to be presented for the same.
The Church-wardens are also to take care, that none dissenting
from the Church of England within their parish keep school, either publicly, A more enlightened policy than that which guided men in the
times of our author, has since corrected the asperity of their well meant zeal. And a
more liberal system has been adopted. See the Statute 19 G. 3. c. 44. No
dissenting minister, nor any other protestant dissenting from the Church of England,
who shall take the oaths, and make and subscribe the declaration against
Papery, and the declaration mentioned in that Statute, shall be prosecuted in any Court
whatsoever, for teaching and instructing youth as a tutor or schoolmaster.
But this was not to extend to enable dissenters to hold the mastership of any college
or school of royal foundation, or of any other endowed college or school for the
education of youth, unless founded since the 1 W. and M, far the immediate use and
benefit of protestant dissenters. Masters of Grammar Schools may
be licensed by the Ordinary,
who may examine the party applying for the licence, as to his learning, morality,
and religion. R. v. the Archbishop of York, M. 36. G. 3. 6 T. Rep, 490.
The Church-wardens are to take care, that no stranger be admitted
to preach in their Church, of whom they are not well satisfied, that he is in orders, and licensed to preach by the Bishop of the Diocese (Can. 28). And
if any such disorder should be there committed against their will, or if
But it is proper here to subjoin, that tho’ the law requires
full service from the minister of every parish, that is, both fore-noon and afternoon every Lord’s Day, yet
this
The Church-wardens are also to take care, that none be permitted
to serve the Church as a Curate, who hath not been first approved of and licensed
by the Bishop for that purpose, Can. 48. And moreover, that the Church with
all its chapels, isles, and parts, be wholly kept for those sacred uses to which
it is consecrated No fairs nor markets shall be kept in Church-yards, 13 Ed. 1. St.
2. c. 6. Clergymen shall not be arrested, and drawn out of any Church
or Church-yard, whilst they attend to divine service; on pain of imprisonment
of the offender, and ransom at the King’s will and satisfaction to the party arrested,
59 Ed. 3. c 5. 1 R. 2. c. 15. Also it is said, that arrests in civil cases ought not to be
of persons going to or coming from Church; but that a warrant from a justice of
peace for the King may be executed in such cases, Cro. Car. 602. Cro. Jac. 321.
2 Bulst. 72. But altho’ the officer may be punished for the same either in the
spiritual or temporal courts, yet the arrest (if not on a Sunday)is good in law,
Watson, c. 34. p. 344.
If any one shall either by word or deed unlawfully interrupt,
disturb, or abuse any minister in any Church or Chapel, while he is there in the
performance of any of the duties .of his ministry, he is by the 2d and 3d
of Edw. 6. chap. 1. to forfeit for the first offence ten pounds, or,
if that be not paid within six weeks after conviction, to suffer three months
imprisonment; and for the second offence he is to forfeit twenty pounds, or if
that be not paid within six weeks after conviction, to stiffer six months
imprisonment; and for the third offence he is to forfeit all his goods and chattels, and be imprisoned during
life: By the first of Mar. 1. Stat. 2. ch. 3. he is to be committed
to goal for three months, and from thence till the next Quarter-Sessions, when he
is to be released, or continued in prison, as the court shall see cause. By the 1st of
Eliz. c. 1. he is to forfeit for the first offence an hundred marks,
and if that be not paid within six weeks after conviction, to suffer six
months imprisonment; and for the second offence to forfeit four hundred marks, and
if that be not paid within six weeks after conviction, to suffer imprisonment for
one whole year: And for the third offence to forfeit all his goods and chattels,
and be imprisoned during life. And by the First of W. and M. c.
18. every such offender is to forfeit twenty pounds toties quoties.
i. e. as
often as it shall happen. And whenever any such offence is committed, it is
the duty of the Church-wardens to see that the law be executed upon all that offend
herein, that so the service of God may be secured from all such affronts and disturbances.
And they
No Church-wardens are to be vexed with actions or suits at law
for their presentments, or any other acts which they shall do in the discharge of
their office For neglect of duty, they may be sued in the spiritual court 3 Com. Dig.
614. As if they take bells out of the Church, 1 Sid. 281, 2. Or an action
lies against them by their successors, 1 Sid. 282. But not a suit in the spiritual
court, Godb. 279. So an indictment lies, if they take money &c.
corrupte,
colore officii, and do not account for it. 1 Sid. 301. See also Stat. 7 J. c. 5. They shall not only have double costs in case
of a verdict, hut also in case the plantiff be nonsuited or discontinue his
action. They may also plead the general issue, and give the special matter
in evidence. And they may be removed for misbehaviour, and others chosen before the year expires.
Lamb. Off. Ch. s. 3. See Kerchival’s case, Mich. S Car. An action was brought
against the Church-wardens for a presentment upon common fame of incontinency. Upon
not guilty pleaded, it was found for the Church-wardens, and moved that they might
have double costs; but it was resolved, that this being merely ecclesiastical, it
is not within this statute; for that the statute was never intended, but where
they shall be vexed concerning temporal matters, which they shall do by virtue of
their office, and not for presentments concerning matters of fame, 3 Cro. 285, 286.
The Church-wardens were anciently the sole overseers of the poor, and it lay
wholly on them, under the direction of the minister, to take care of all such as
were in want in their parish, and provide far their relief; in order whereto
they had the charity of well disposed persons, the liberal contributions of the clergy and the religious, and the poor-man’s-box entrusted to them. But when on the
dissolution of religious houses, and the alienating
of tithes to the laity, the contributions of the clergy and the religious failed (which was the main
fund, on which all the poor of the realm had
hitherto been maintained) and the government was
thereon necessitated by act of parliament (Anno 43 Ch. 2. s. 1. In M. 15. Car. 2. a Church-warden was committed by the two
next Justices as Church-warden, for refusing to account for money received
and disbursed by him; but on an habeas corpus he was discharged; because
by the
warrant of commitment ought to appear that he was overseer of the poor, for by
the Stat. 43 Eliz. that is annexed to his office of Church-warden, and the Justices
have no jurisdiction over him as Church-warden, but as Overseer. Dalt. 186.
As to the repairs of the Church and Church-yard And therefore, the Parson alone may give a license for burying in
the Church. 2 Cro. 367. Noy 104. So he may make a lease of the Church and Church-yard. 2 Rol.
337. 1. 10 And shall have the fees in the Church-yard for the repair of the Church.
3 Com. Dig. 614. Sal. 165. Or, if there be a perpetual Vicar, it belongs to him. Holt. 1 Sal. 165. Lind. 53.
Anciently both the Church and Church-yard
were repaired out of the revenues of the Church,
and a fourth part of them, according to the primitive and well-known division of them, was always
set apart for this purpose. And hence it is that the
canon-law still enjoins it, and by virtue thereof
in most other parts of Christendom, even to this
day, where the minister receives the whole revenues of the Church, he is bound out of them to
provide for the repair both of Church and Church-yard, and all other buildings belonging to them, as
far as a fourth part of the said revenues will reach;
and where he doth not receive the whole revenues,
there he pays his share according to what he receives
in equal proportion with those who have the rest.
And on the first settling of the Christian Church
here among the Saxons, this being then the order
of the Romish Church, Pope Gregory recommended it to Austin to establish it here also, (Bedæ
Hist. lib. 1. c. 27.) And accordingly it was for
some time observed in this realm. But since that,
it did, not many years after, by a special custom
The Church-wardens are therefore bound in behalf of the parish
to take care that the body of the Church So of a public Chapel annexed to a Church. 2 Inst. 489. And the inhabitants
of a Chapelry, who anciently repaired the Church, shall not be exempted by disusage. 1 Sal. 164.
They are also to see, that the gates, stiles, and doors leading
into the said Church-yard be kept in due repair, as also the ways leading through
it to the Church, for all these are parts or appurtenances belonging thereto. But
if any one hath a private door leading into the said Church-yard The right to a Churchway may be claimed and maintained by a libel in the spiritual
court, see the case 2 Rol. Abr. 287.
The Church-wardens are also to see, that the Church-ways be
well kept and repaired, and that no one do any thing to obstruct or annoy the same,
that so the parishioners may at all times without impediment or inconvenience resort
to the Church, as often as any part of the divine service shall be there performed.
The said ways must be broad enough not only for the passage of single persons,
but also for the carrying of a corps through the same to be buried, as often
as there shall be an occasion for it. And the stiles are to be so made, that
persons of all ages may well be able to go over them. If these ways be in the
repair of the parish, the Church-wardens must take care that they be well
repaired at the parish-charge: But if they be in the repair of any other, either
by custom or otherwise, they are by due course of law to compell
As the soil and seed of the Church-yard is the Minister’s, so also are the trees growing therein; but he is not to cut them down, unless for the necessary repair of the chancel; or else that he shall think fit out of charity, and kindness to allow them to the parishioners for the repair of the body of the Church; but where they used to be topped, the toppings belong to the Minister. Stat. 35. Ed. 1.
The repairs of the Church It is said, if a church fall down, the parishioner, are not
bound to re-build it. Read. Ch. Service 1 Vent. 367. But if a church is
to much out of repair, that it is necessary to pull it down, or so small, that it
needs to be enlarged, the major part of the parishioners may make a rate for new
building or enlarging as there shall be occasion; This was declared in the 29 Car.
2. by all the three courts successively; notwithstanding the cause was laboured
by a great number of quakers, who opposed the rate. Gibs. 221.
Whatsoever is fixed to the freehold, is reckoned of the fabric
of the Church, and the parts necessarily required thereto are such, as either the
law, or else the nature of the things themselves make necessary in every Church,
and such are the walls, windows, doors, roof, floor, font, pulpit, reading-desk,
seats, tower, &c. to which for greater ornament and decency are added in many Churches,
What are not fixed to the freehold of the Church, but are of
the moveable goods belonging thereto, are called the utensils of the church: And
these also are such, as either the law, or else the nature of the things themselves,
make necessary in every Church, as the communion table with the carpet, and linen
covering belonging thereto, the chalice, paten, communion flaggon, bible, common-prayer-book,
the book of homilies, the surplice, poor-man’s box, register-book, &c. or else are
added only for the better and more decent administration of the divine offices,
as a decent pulpit cloth, a pulpit cushion, a cloth for the reading desk, organs Church-wardens, with consent of the Ordinary and Parishioners,
may ornament a Church at the public expence. Vide p. 31, 34, and 1 Str. 576. And for ornaments a parishioner is liable only in respect to
his personal estate. 2 Rol. 291. 1. 5.
The inventory of utensils, while this land was under popery,
was very large in every parish; the vestments, images, vessels, and other implements
necessary for the carrying on of that superstition being very many, and of great
expence to the people in the constant repair, as well as in the first providing
of them, from which they are now released by the reformation. A large catalogue
of those popish utensils may he seen in Lindwood, De
But here it must be observed of the seats in the Church, that when I reckon them of the parts of the fabric, it is upon supposition that they are fixed into the ground, as mostly they are; for if they be not fixed into the ground, but are loose and moveable, they are not then to be reckoned as parts of the fabrick, but are of the moveable goods or utensils of the Church: And from this difference have arisen the different determinations of laws which have been made concerning them.
And with all these things are the Church-wardens charged, that
is, to look to the Church Inhabitants of a chapelry are liable to the repairs of the
mother Church, unless exempt from custom; but not where there is only a late erection.
1 Salk 164. The inclosure of the Church-yard belongs to the
parishioners.
2 Com, Dig. 169. Churchwardens are a corporation, and morally competent is assent
to a reasonable agreement beneficial to the parish, and may therefore bind the
parishioners and their successors, and the succeeding; Churchwardens. See Martin
v. Nutkin, 2 P. Wms. 266. 2 Eq. Ca. Abr. 21 pl. 22. The case of Martin and Wife v. Nutkin and another, was this: This
Plaintiff’s house being so near the Church that the five o’clock bell rung in the
morning and disturbed the plaintiff, and he came to an agreement in writing with
the Church-wardens and inhabitants at a vestry, that the plaintiff would erect a
cupola and clock at the Church, and in consideration thereof the five o’clock bell
should not be rung in the morning. It was declared that here was a meritorious consideration executed on the plaintiff’s side; and that the Church-wardens might toll the bells
or silence them. And the Court of Chancery decreed an injunction against the ringing
of the five o’clock bell.
But if they will act without any such advice, they have by
virtue of their office full power and authority so to do; and although they
should be so indiscreet
.But this must be understood only of those particulars, which
are the necessary parts of the fabrick, Church-yard, or utensils, or else have
before by the consent of the parish, and the authority of the Ordinary, (where
it is needful) been added to them. For to the care and repair of all these particulars
doth their office extend, and they can charge the parish with whatever sums they
lay out herein. But if they .add any thing new, either to the fabrick, Church-yard,
or utensils, which was not before, they must have the consent of the major part
of the parish, or eke the parishioners may refuse to allow the disbursements in
their account; for to such expences they cannot be charged without their consent Parishioners cannot be charged with new ornaments, without
their consent, as well as that of the Ordinary. But a new erection, as an organ,
may he made and maintained by voluntary subscription, without their consent.
Vide p. 34. in not.
But it is not necessary for the Church-wardens to
ask every man’s consent in particular to such
matters; for the legal method is, that when any
such thing is to be proposed to the parishioners, the
Church-wardens with the consent of the Minister
call a meeting of the parish, which is to be done in
this manner. The Sunday before, public proclamation “The inhabitants and renters of this parish are desired to take notice that a
public vestry will be held on —— next, the —— instant, at ——
at four o’clock in the afternoon of that day, in order to take into consideration the propriety of erecting an
additional toilers in the parish Church.” A select meeting or vestry does not bind the parish, without immemorial usage. 4 Burr. Mans, 1689. 5. “At a
public vestry of this parish, holden this day in pursuance
of public notice for that purpose given, it is resolved, that it will be
proper to erect a new galley on the south side of the parish Church, and
the Church-wardens are desired to cause the same to be immediately done.”
And if the new-added particulars be in the Church, the licence
of the Ordinary is also necessary, as well as the consent of the parish, before
they can be legally and justifiably added, or new erected there. For the Ordinary
having the ordering and disposing of all things in the Church, nothing must
be new erected there, without his licence, under any pretence of order or decency
whatsoever, because neither the parishioners, nor the Church-wardens are the legal
Judges of what is best for order and decency in this case, but the The case of Butterworth & Barker v. Walker & Waterhouse, Ea. T. 5 G. 3.
B. R. reported by Burrow, vol. 4. p. 1689. discusses some interesting
points on the subject of consent of parishioners and of the validity of customs,
and goes to shew, that a faculty may be obtained for an ornament to a Church which
shall be erected and maintained at a private expence, without first obtaining the
consent of the major part of the parish. The case was this: An application was made
to the Court of King’s Bench for a prohibition to stop the prerogative Court
of York from proceeding to grant a faculty for an organ in the Church of
Halifax. It appeared, that the cause below was for obtaining a faculty for it;
and there was a citation of the parishioners and inhabitants to appear, and “shew
cause why an organ should not be erected in their Parish Church.” They did so; arid
their objection was, that the plaintiffs below had not the consent of the
parish. The answer was, “but we have the consent of the Church-wardens: and there
is also so large a subscription for erecting and maintaining it, that it will never
be chargeable to the parish.” And they also alledge the consent of a select
meeting
or vestry. The other side deny that the parish in general is bound by the consent
of this select meeting or vestry, whereupon the applicants for the faculty alledge
“that for 20, 30, or 40 years, it has been usual to collect
the sense and consent of the parishioners about all parochial matters at such select
meetings or vestries; and that the whole parish are, and for all the time allegate,
have been bound by the acts and consent of such select meeting or vestries. Upon which the parishioner’s which
opposed the organ moved for a prohibition. The Court, observed that the very ground of
applying for the faculty is “that the parish are not to be burthened with the expence
of this organ;” the very condition of praying it is, “that it is to be maintained
by a subscription.” Mr. Wechlerburne, who was for the prohibition said,
that no matter of splendor or ornament in the Church can be dune without
the consent of the parish. Mr. Justice Wilmot asked him what authority he
had for this position. He said he knew no such doctrine. It was then observed, that
if the Ecclesiastical Courts allow the evidence pf 10, 20, 30, or 40 years to be
a
proof of a custom, the alledging an usage for such a time only, without alledging
it to be immemorially, would be only an artifice to elude prohibitions to
hinder them from trying immemorial customs. And if ornaments can he imposed upon
the Parish by the Ordinaries, without the consent of the parish, the parish will be bound to maintain them. Mr. Justice
Wilmot
thought they were proceeding below upon a mistake. The citation those be
intended to have been issued, for the parishioners to shew “whether they have
any temporal rights that will be injured by setting up au organ.” But the consent
of the whole parish cannot be essentially necessary to the Ordinaries setting
up an organ, nor would the parish be bound to repair it when set up. Now if the consent of the parish is
not necessary, then all these proceedings below
are nugatory. It seems as if they did think such consent to be necessary,
and I own that if the consent of the parish were necessary, I should
think the prohibition ought to go, because the consent of the vestry cannot
bind the whole parish without immemorial usage. Mr. Justice
Yates
also thought that a prohibition ought to go, if there were any temporal right
to be determined. For an usage of 30 or 40 years is not sufficient: it
can be no valid custom unless it has been time out of mind. This suit he
said below, seems to me to be totally nugatory. Parishioners cannot be charged with new ornaments their consent as well
as that of the Ordinary. The citation might be intended only to prevent injury
being done to the property of their private seats in the Church. Both sides here seem to have thought the consent of the parish necessary;
which it is not. Mr. Justice Aston, If proper trial of the custom is eluded by alledging the usage of 40, 30, or 20 years, I should take the
observation to
be right. The parish may be used to meet and consider of necessary repairs,
but they cannot preclude the ecclesiastical court from ordering an organ or
any thing else within their cognizance, This organ is stated to be provided
by voluntary contribution. The citation was issued in order to receive reasons
against injuries that might happen to the private property of the parishioners;
but the ecclesiastical courtdoes not encroach upon or interrupt the meetings of the Church-wardens about such things as belong to
them; nor draw the cognizance of
them into a different from. Lord Mansfield. The ground we go upon is, that
a prohibition will not be material. A rate cannot be made to reimburse a Church-warden. Cas. Temp.
Hardw. 381. And. 11. 2 Ld. Raym. 1009.
But if the new erection be in the chancel, the leave of the Parson is also necessary, because the chancel belongs to him, and is as part of his glebe; and therefore if the Church-wardens set up any new scat in the chancel, or place rails there at the altar, they must have not only the consent of the parish, but also the leave of the Parson as well as the licence of the Ordinary, before it can be legally done.
Whenever any thing is thus legally added to fabrick of the Church, utensils, Church-yard, or appurtenances, by such consent and licence as are requisite thereto, it thenceforth becomes the charge of the Church-wardens to take care of it, and they are obliged to repair, amend, and renew it, as need shall be, in the same manner as other particulars belonging to the said Church.
If any of the particulars of the fabrick, utensils, Church-yard, or appurtenances,
which either the
But if any of the particulars omitted or let down be not of
those parts of the fabric, utensils, Church-yard, or appurtenances, which either
the law, or the nature of the things themselves make necessary to every Church,
but are only such as have been added by the, consent of parishioners, or other licence
requisite, for the more decent and orderly administration of the divine offices,
or greater ornament of the Church, or only for the benefit, convenience, or curiosity
of the parishioners, if they have been out of use for above forty years, the Church-wardens
have no more any authority to restore them, nor can any ecclesiastical jurisdiction
enjoin it on them, or legally require it to be done, but they become then of the
same nature in law, as if they had never been in the Church at all. For there being
no law or absolute necessity for those particulars, the Church can have no other
right to them but by prescription and former usage; but the utmost limit of ecclesiastical
prescription being forty years, (Coke 2 Inst. 653. Extra’ de Præscriptionibus
C. ad Aures nostras; where it is decreed, Quadragenalis Præscriptio omnem prorsus actionem tollit,
i. e.
A forty years prescription takes away all action.) after they have been disused
so long, the Church has lost its claim to them by the same
And therefore for example, the rails at the altar being not required by any law, or of themselves absolutely necessary in any Church, as they cannot be first erected without the consent of the parish and Parson, and the licence of the Ordinary first had thereto, so neither after forty years disuse can they be again restored without the same consent and licence to authorize the Church-wardens to do the thing, and levy a rate upon the parish for it. And therefore tho’ it be very decent and fitting that there should he rails in every Church to keep the communion table, at which the highest mystery of our holy religion useth to be celebrated, from that profanation, which it may otherwise be exposed to (and which is all that is intended by them) yet since this is a matter which often raiseth great contests and disturbances in parishes among weak and scrupulous persons, it is proper that Church-wardens have this advice given them, that they enter on no such attempt, unless in such a legal way, as may justify them in the doing of it.
But here it is to be observed, that the consent of
the parish is not required as necessary to authorize
the thing, but only to oblige them to pay for the
doing of it. Whether it be fitting to be done or
no, belongs only to the Ordinary to judge; but
whether the parish will pay any thing towards it,
being wholly in their power, this is all the report
that makes their consent requisite to the thing,
And therefore if the Parson with the licence of the
The Church-wardens, in order to make the said repairs, are authorized by law to make a rate, and levy it upon the inhabitants and owners of the parish, 5 Coke, 67. Popham, 197. 1 Bulst. 20. Noy, 41, Latch, 203. Hetl. 61. 130. Degge, P. 1. ch. 12. Sheppard Abr. Title Church-wardens.) But before they can do this, they must be legally chosen and legally sworn into the said office.
The Church-wardens are to be chosen every year in Easter
week, (by Canon 90.) on the day which the Minister shall appoint, and
give public notice of it in the Church the Sunday before, (unless where there is
an immemorial custom for another day.) And at the time appointed, the Minister and
parishioners being met together The Parson or Vicar cannot adjourn the vestry, but the majority of the parishioners
may. Fort. 168, Str. 1045. Of common right the parishioners shall chuse one and the Parson
the other. Stra. 1246. Cro. Jac. 532. Cro. Car. 551. Noy 31. 1 Vent. 267. A Curate stands in the place of the Parson; for the purpose of
nominating one Church-warden, and a Curate may make presentment. Stra. 1246. and
2 Vent. 41. If the Parson and parishioners neglect to appoint Church-wardens,
yet the Ordinary has no jurisdiction; Stutter v. Freston, Str. 52. and
if the Bishop or Ecclesiastical Court make an order that a select vestry shall choose,
this does not exclude the other parishioners if they will be present at the vestry. Lane 21. But by custom the election may be by a select vestry and not
by the whole parish. Hard. 379. And where there is a custom for chusing Church-wardens,
and it cannot take place, they must resort to the Canon. Stra.145. But if chosen by parishioners they ought to be chosen by all the parishioners
assembled. Lane 2l. And the Court of King’s Bench will not grant a Mandamus
commanding a vestry to be called for the election of Church-wardens. Str. 686.
And yet in the above case of Stutter v. Freston, in C. B. it was said
that the proper way was by Mandamus. Sed q. because it is not known to whom it should
be directed, Str. 686. Having mentioned the writ of Mandamus it may be proper
to make a remark or two upon the law as it relates to the return of a Mandamus,
and the first observation is, that the return of a Mandamus shall he
made by those to whom the writ is directed. And then as to what shall or shall not
be a good return of a Mandamus to admit or swear Church-wardens, in the case
of Rex v. Harwood, it was held, that a return that the party was not elected a Church-warden, was a good return. 2 Ld. Raym. 1405. So, also
that he was removeable ad libitum, without other cause, when this is
warranted by custom or charter. Ray. 188. 1 Sid. 461. 1 Vent. 77. And this without
shewing any summons to the party, or hearing him in his defence, or that the
office is filled up. Str. 115. N.B. This last was not the case of a Churchwarden,
but of a Sexton, yet the rule applies. See also Cowp. 413. et post p. 46.
in not. If a return to a Mandamus, for swearing Churchwardens
elected by the parishioners according to the custom, says. that a suit pending in
the ecclesiastical court concerning the custom is undecided, it is bad; for the
ecclesiastical court cannot try the custom. Ray. 140. So, If the return be that the Bishop inhibited the Archdeacon,
it is ill, for the Archdeacon is but a Ministerial officer, and is obliged to do
the act. Str. 610. The Court will not grant a quo warranto information to try
the
validity of an election to the office of Church-warden; for it is not
an usurpation on the rights or prerogatives of the crown, for which
only the old writ of quo warranto lies; and an information, in nature
of a quo warranto can only be granted in such cases.
The court, therefore were of opinion, that they ought not to listen to such
an
application; it was destitute of every legal principle, and
that in this case, even a rule to shew cause ought not to be granted, lest it
should hereafter be drawn into a precedent. The King v. Shepherd et al. 32 G.
3. B. R. 4 T. Rep. 381. Mandamus directed to Morgan Rice he being Archdeacon of A.
to swear I. S. who was chosen Church-warden by the parishioners of B. to this he
returned that I. S. is a dairyman and a servant, and unable and unfit
for the said office, and exception taken as to the uncertainly of the return,
but not much taken notice of, because by the opinion of the court, the Archdeacon
hath no power to refuse, for the parish have the right of election and are judges
of the qualifications of the party by them elected; and if they choose an ignorant
or beggarly fellow, it is at their peril, and a Church-warden’s office is a temporal
office, and a corporation by law, and it cannot be supposed that the Archdeacon
should have more care of the parish, than they of themselves, and a peremptory mandamus
awarded. Morgan Rice’s case 8 W. 3. B. R. MS.
But here let it be noted once for all, that no custom or prescription doth supersede the law of the Church in this realm, but only common-law, custom, or prescription, that is, which is beyond, the memory of man; and nothing is accounted to be so by the law of this land, which can by any sufficient evidence be proved to have been otherwise since the first year of king Richard I. i. e. Anno 1189.
Several persons are by the law of the land excused from bearing
the office of a Church-warden, as 1. All Peers of the realm, by reason of
their dignity. 2. All Clergymen in holy orders, by reason And the first assignee of the certificate. See 3 Burn 77. An Attorney may have a writ of privilege to excuse him; and
if it be not obeyed by the Spiritual Court a prohibition. 2 Rol. 368. So, it any who has privilege he chosen, a writ goes to the Ecclesiastical
Court, that he be not sworn. Pal. 392
But whosoever is legally chosen, must be an inhabitant of the parish, for no out-setter, who occupieth lands in the parish, but doth not dwell or inhabit there, is capable of being chosen Church-warden of the said parish. For by the duty of his office he is obliged to be present in the Parish-Church of which he is Church-warden on all Sundays and holy-days, to take notice of the absence of such parishioners as do not come to the said Church, in order to present them for the same, and also to take care, that no disorder be committed in the said Church or Church-yard during divine service and sermon, but that all things be kept in order and quiet, which he is incapable of duly performing, as long as he lives out of the parish.
At the next visitation, which shall be held after the said
choice by the Bishop or the Arch-Deacon, or other ordinary, within whose jurisdiction the
parish shall be, the new elected Church-wardens
must appear in order to be sworn into the said
office The Church-warden being chosen, cannot be refused by the Arch-deacon
or Spiritual Court, on pretence of poverty or other inability. 1 Sal. 166. 5 Mod.
326. et ante p. 41. And the right of naming Church-wardens cannot he tried in Court
Christian. 1 Bl. Rep. 28. Nor can the Bishop’s Court try the legality of votes for a Church-warden. 3 Burr. Mans. 1420. 1 Bl. Rep. 430. And if he be refused, a mandamus lies for swearing him. Mar. 22, 66. 1 Vent. 115. 267. Raym. 439. 1 Lev. 73 Pal. 51. 2 Rol. 234. 1. 15.
Mod. Church-wardens shall continue in office ’till the new ones
are Sworn. Can. 118. And for misbehaviour it is said, the parishioners may discharge them, and chuse
others. Lamb. ch. s. 3.
If any scruple to take the oath, he hath liberty allowed him by the Act of Toleration to offer a deputy to be sworn into the said office in his stead, and execute it for him; which deputy must be of the parish, and of such sufficiency to discharge the said office, as shall he allowed and approved of by the Ordinary, 1 W. & M. c. 18.
The oath to he taken A person chosen Church-warden, refusing to take his office and
oath, may be excommunicated for refusal; and no prohibition will lie. Gibs. Codex
243. And he may be required by the Spiritual Court to take an oath.
3 Com. Dig.
611. But no oath shall be required of them except in general to execute the office.
Hard. 364. Nor can a fee be demanded for swearing them, or taking their
presentments. 1 Sal. 330. This oath is said to have been agreed upon, at a mutual consultation between
the civilians and common lawyers. In large parishes there are officers called Sidesmen
(antiently Synodsmen) or questmen, (properly inquest-men)
to assist the Church-wardens in their inquiries and presentment of offenders. They
shall be chosen yearly in Easter Week, by the Minister and the parishioners, if
they can agree; and if not; by the Bishop. Can 90. The Sidesman’s oath is, You shall swear that you will be assistant to the Church-wardens,
in the execution of their office, so far as by law you are bound: So help you God. Gibs. 242.
If any Arch-deacon, or other ecclesiastical Governor having
authority in this behalf, shall refuse to swear a Church-warden into his office,
who is legally chosen into the same, there is a writ The writ here referred to is a mandamus, and it has
been held that lis pendens is not a good return to this writ, tho’ accompanied
with very special circumstances. 3 Burr. 1420: 1 Black. Rep. 430. vide ante p
40.
As soon as the Church-wardens are sworn, they are then in the
full power of their office, and that which they are first to do, is to survey the
Church, Church-yard, and utensils, and having taken an account of what repairs they
want, and estimated as near as they can the charges which the said repairs may amount
to, they are to levy an equal rate upon the parishioners Libel in the spiritual Court against Catesby, who had
land within the parish but did not inhabit there, for a rate made for
new melting the bells; and upon motion a prohibition was granted; for though
inhabitants, are rateable towards ornaments as bells were held to be, yet
land holders not resident are only rateable to the necessary repairs, and not to
ornaments, East. 9 W 3. B. R. Catesby v. Carter. M.S. If any refuse to pay the rates being demanded by the Church-wardens, they
are to be sued for in the ecclesiastical courts, and not elsewhere. Gibs. 219.
Degge 171. The Court of Chancery will not permit parties to come into
that court for a discovery in aid to the ecclesiastical jurisdiction. The plaintiff
cannot, because the Court of Chancery will not be ancillary to that: nor does the
defendant there want it, because he may exhibit articles in that Court and have
an answer on oath 1 Atk. 288. 2Ves. 451. Church-wardens have authority throughout the parish, altho’
it extends into different hundreds and counties, being, tho’ temporal officers,
employed in ecclesiastical affairs, and must therefore follow the ecclesiastical
division of the kingdom. Shaw. P. L. 86.
The rates must he made with the consent of the major
At the common law, every parishioner who paid to the church rates,
and no other a right to vote. Shaw. 56. And those that pay no church rate
shall have no vote in affairs relating to it, except it be the rector or vicar.
Wood. b: 1. c. 7. A mandamus will not lie to Church-wardens to make a
rate, it being a subject of ecclesiastical jurisdiction. 5. T. Rep. 364. The
King v. Thelford. By custom there may be select vestries of a certain number of
persons elected yearly to make rates, and manage the concerns of the parish for
that year: and such custom is a good custom. Real Ch . Service. Gibs. 246.
Stra. 428. All persons who have a vote in the vestry have an equal right,
and neither the Ministers nor Church-wardens without special custom, ran adjourn
the vestry; but this can only be done by a majority of the whole assembly. Stra.
1047. If a parish consists of several villages, and there is a custom
to levy rates in certain proportions, they must pursue it. Andr. 32. For they, and not the parishioners, are to be cited and punished, in
defect of repairs. Gibs. 220. But otherwise a rate made by the Church-wardens only is not sufficient. 1 Salk. 165. When the Church-wardens and parishioners are met, they are to
consider what sum of money it will be necessary to raise for such repairs as shall
then be needful; and after they have agreed what sum is fit, they are to make
an equal levy. Degge. 171. It is most convenient, that every parish act be entered
in the parish book, and that every man’s hand consenting to it, be set thereto.
Shaw. 53.
No Parson or Vicar can be charged to the repair of the Church
in any parish by reason of their tithes or glebes therein, because out of them they
are bound to repair the chancel; but if they have any other estate in the parish,
they are chargeable for that as well as other parishioners. And although one of
them only repairs the chancel, and the other be exempt, yet in that either of them
doth it, both are discharged all rates to the Church, because the repair
of the chancel An impropriator, tho’ bound to repair the chancel, is also
bound to contribute to the reparations of the church, if he hath lands in the parish,
which are not parcel of the parsonage. Gibs. 221.
All such who are so poor as to be excused from paying to the poor’s rate by reason of their poverty, ought also to be excused from paying to the Church-rate for the same reason. And all those who being thus excused and pay nothing to the Church, ought not to have any vote in any affairs relating to it; that is, in chusing the Church-wardens, making Church-rates, allowing Church-wardens accounts, &c. it being most reasonable, that they only who pay to the rates, should make the rates, and chuse officers who are entrusted with the levying and disposing of them, and take their accounts afterwards. But this must not be understood of the Minister, though he be not charged to those rates, because as having the freehold of the Church, he hath a special right in it, and as Minister of it he hath a special duty upon him to see, that it be well and duly repaired, and that rates be made to enable the Church-wardens to do it, and he must be responsible to the Bishop for his care herein, (Vide Jokan. de Athon in Othob. Improbam quorundun, verb. ad hoc tenentur. Lindwood de Officio Archidiaconi, C. Archidiaconi, verb. Reparatione.) And therefore in every parish meeting he presides for the regulating and directing of this matter. And this equally holds whether he be Rector or Vicar.
If the Church-wardens defer to make or gather their rate, till
they are out of their office (as is through mistake or negligence too often done)
they are then deprived of all legal authority of doing either, and therefore
they ought to take care, after having well surveyed and computed the repairs, to
make and gather their rate as soon as conveniently they can, and within the time
of their office prosecute
According to the ecclesiastical law, that hath obtained in this
realm, the laying of the Church rate ought to be according to the lands and the
stock, which the parishioners have within the parish, so say John of Athon,
and Lindwood, the ancientest and the best of our English Canonists.
For the words of the latter of them, as taken out of the former, are,
Unusquisque
Parochianus tenetur ad reparationem Ecclesiæ juxta portionem terræ, quam possidet
infra Parochiam, & secundum numerum animalium, quæ tenet & nutrit ibidem.
i. e. Every parishioner is obliged to pay towards the repair of the Church, according to the portion
of the Land, which he occupies in the parish, and the number of animals which
he hath and feeds there, (Lindwood De Ecclesiis ædificandis, C. licit Parochiani,
verb. reficiendarum Ecclesiarum. Et de, Officio Archidiaconi, C. Archidiaconi,
verb. Reparatione. Johannes de Athon in Othob. C. Improbam, verb. ad hoc tenentur) But this is not to be understood, as if any one were to
be layed for both
land and stock. They who make the rate may lay him according to either of the
two, and even for the best of them, but not for both. (See the judgement of Doctors
Commons in Godulphin’s Appendix, sect. 31.) But the general usage now
is to make a rate according to the value of the lands By an equal pound rate. But a man shall not
be charged to the repairs of the Church in respect of a light-house. Bunb. 81.
But concerning the lands which are occupied by out-setters, that
is, by such as live out of the parish, there is some difficulty and difference
of opinions. For there are many who hold that out-setters are not parishioners,
and therefore ought not to be charged towards the utensils, clerks wages, sacramental bread and wine, and other incidental charges of the Church, because the parishioners
only have any benefit of these, and those who are rot parishioners none at all;
and to be charged to expences where they receive no benefit, they say, is hard
and unreasonable; and consequently, according to this doctrine, two rates ought
in every parish to be made, one for the repair of the body, of the Church and the
Church-yard with them appurtenances, to which all are to be charged that have lands
within the parish, whether out-Setters or in-setters; and the other for the utensils
and incidental charges of the Church, to which only the in-setters are to he charged,
because they only have the benefit of them, (1 Bulst. 20. 2 Roll.
291. 2 Rolls Rep. 270. Godolphin’s Repertorium, c. 12. sect.
29, 34, 41. Degge, p. 1. c. 12.) But there are others, who are of a different
opinion concerning this matter. The former opinion went chiefly upon this supposition,
that out-setters were no parishioners, and therefore ought not to pay to that, whereof
parishioners. only had the. benefit. But these say, that But a man shall not
be charged for a stand in a market in the same parish,
when he inhabits in another parish. 2 Rol. 2890. 1. 35.
When therefore a Church-rate Church rates depend upon prescription alone. 4 T. Rep. 669. Or rated for more than he has, or that the rate was needless. Wood. b.
1. c. If any one finds himself aggrieved at the inequality of the assessment,
his appeal must be to the ecclesiastical judge. Degge 172.
If any quaker Also a quaker, refusing to pay Church rates,
may be sued as other parishioners
in the ecclesiastical court.
If any plead a prescription to be exempt front those rates
in respect of any of their lands or houses, it cannot be good without a special
cause shown for the discharge. The Parson of the parish, as also. the Vicar, are
exempted for their tithes and glebes, because out of them the chancel is repaired,
(as hath been already said.) A patron, as in the right of the founder, may prescribe
not to pay to the repairs of the church by reason of the foundation, and if he
hath
on this account been immemorially freed, it will be a good reason for the discharge (Degge, part 1. c. 12) . And so if an hamlet, having a chapel of
ease A Church built within the precinct of a Parish-Church, to which burial and
sacraments belong, is a chapel of ease. 2 Rol. 340. l. 50. And it belongs to the Parish-Church and the Parson of it. 2 Rol. 341. 1. 2. And therefore a Parish-Church cannot be a Chapel. 2 Rol. 340. 1. 55. The Parson of a Parish-Church ought to find a Chaplain for a Chapel
of Ease within his precinct. 3. Com. Dig. 609. But he may officiate there himself. Ib. If a Chapel has parochial rights, as Clerk, Wardens, &c. rights
of divine service, as baptism, sepulture, &c. and the inhabitants have a right
to them there and not elsewhere, and the curate has small tythes and surplice
fees, and an augmentation; it is a perpetual curacy, and the curate is not removeable
at pleasure. Attorney N. Nomination to a perpetual curacy, may be by parol, as well as presentation to a Church. In
the case alluded to, they had burial in the Mother-Church. 3 Mod. 264. see also 2 Rol. 289, 1. 50. Hob. 66.
When two Churches are consolidated, the rates and repairs are still to be separate as before, Hob. p. 67. And therefore though one of the Parish-Churches be demolished, and the parishioners constantly make use of the other, and have seats in yet they cannot be charged to any of its repairs, or other expellees; which is to be understood only of country parishes consolidated by virtue of the statute. of the 37th of Henry VIII. c. 21. For as to such parishes in cities and towns corporate, which have been, or shall be consolidated by virtue of the-statute of the 17th of Charles II. c. 3. remedy hath. been provided hereto by a late act of parliament, 4 & 5 W. & M. c.. 12. whereby it is ordained, that in all such consolidations, if one of the Churches is or shall be demolished, the parishioners of the demolished Church shall pay to the repair of-the other, according to the proportion which the Bishop of the Diocese shall direct, and till such directions be given, shall bear one third part of the charges. It would have been well if the same had-extended to all other consolidations also; for want of it many parishes, who have their own Churches demolished, enjoy the whole right and benefit of Churches in other places, and pay no Church-rates, at all.
But although consolidations by the Statute cannot
But as to other things, which are not of all ecclesiastical nature,
the Bishop having no jurisdiction or power over them, his consolidation, cannot
reach unto them. And therefore as to the, Constables, Overseers of the poor, Surveyors
of the high-ways, and all other matters which belong to the civil jurisdiction,
the parishes, notwithstanding the Bishop’s consolidation, must still remain distinct,
as they were before, unless they have been united also as to these by the civil
jurisdiction, as well as they have been by the ecclesiastical as to the other.
Concerning common-law consolidations,
Church-wardens being appointed for the repair of the Church,
can have no power or authority to deface or demolish any thing in it; but if there should be any superstitious
pictures, or paintings in the windows, or on the walls, or elsewhere, which
tray give just cause of offence, or any thing else, which may either be an hindrance
to the due performing of any of the divine offices, or be inconvenient to
the parishioners in their attendance on them, the licence of the Ordinary must
be first had, before they can be legally removed,. (2 Croke 366. Noy 104.) But the monuments, coats of arms
As the Church-wardens have the care of the Church, so also have they of all the seats therein, and not only to repair them, but also to see that good order be preserved in them, and no disturbance or contention be made about them in the house of God, but that every man regularly take that seat, and that place in it which he hath a right to, whether it be by prescription, or that he hath been placed there by the order of the Bishop or by themselves.
For if the Lord of a Manor, or any other gentleman of the
parish, having an estate and an ancient messuage therein, have immemorially, they
and their ancestors, sate in an isle Now usually spelt aisle. 2. An aisle in a Church, which hath time out of mind belonged to a particular
house, and hath been maintained and repaired by the owner of that house, is
part of his frank tenement, and the Ordinary cannot dispose of it, or intermeddle
with it. Gibs. 221. But if an aisle of a Church be always repaired at the common
charge of the parish, the Ordinary may dispose of the seats there. 2 Cro. 366.
And upon the same reason, should now any gentleman, having an house in the parish, by the like consent of Minister, Patron, and Ordinary, build a new isle, and have a faculty from the Bishop to hold the same to the use of him and his family to bury their dead in the said isle, and also to sit there for the hearing of divine service, on condition constantly to repair it, this faculty would give him a good title to the said isle.
But no such title can be good, either upon prescription, or any
new grant by a faculty as aforesaid, to a man and his heirs T. Rep, 432. For the seat doth not belong to the person, but to the inhabitant. Gibs. 221. For no one can claim a seat in a Church by prescription as appendant
or belonging to land; but it must be laid as belonging to a house, in respect to
the inhabitants thereof. Wood, b. I. c. 7.
And in like manner may the Lord of the Manor, or any other inhabitant
of the parish dwelling in an ancient messuage within the same, prescribe to a
seat Or priority in a seat. Gibs. 221.
As to all other seats in the body of the Church There cannot be a gift of a pew to a man without a faculty. Rogers
v. Brooks. 1 T. Rep. 431. n. Possession alone of a pew in a Church, though for above
60
years, is not a sufficient title to maintain an action on the case, even against
a wrong doer, for disturbance in the enjoyment of it: but the plaintiff must prove
a prescriptive right, or faculty, and should claim it in his declaration as appurtenant to a messuage in the parish, Stocks v. Booth
But a possession even for 36 years, where the pew is claimed
as appurtenant
to a messuage, is a good presumptive evidence of a faculty. Rogers v. Brooks et
Ux. So uninterrupted possession of a pew
in the chancel for 30 years, unexplained, is presumptive evidence of a prescriptive
right to the pew in an action against a wrong-doer. 5. T. Rep. 297. But that presumption may be rebutted by proof that prior to that
time, the pew had no existence. Ibid. And in this case it seemed, that the declaration
ought to state repairs; but that the want of it would be cured by a verdict. See
I Lev. 71, and 1 Sid. 201. S. C. If a faculty be annexed to a messuage, it may be transferred with a Messuage
to another person. 1 T. Rep. 431. There may be a faculty for exchanging seats in the Church. Ibid. If a man be disturbed by the Parson, Ordinary, or Church-wardens
by suit in the Spiritual Court, he may have a prohibition. 2 Cro. 366. Godb. 200. Yet to intitle him to a prohibition, he ought to suggest some
ground for such a prescription; as that he has repaired. Hob. 69. 2 Cro. 366. Noy
104. 1 Sid. 89. Or, for a seat in the Chancel, that he has the rectory impropriate; for the
Rector ought to repair the chancel. Noy 133.
But it must be taken notice of, that how much soever it may have
been the usage in any place for the Church-wardens to dispose of the seats in the
Church, it can never amount to a prescription to exclude the Bishop The disposal of all seats
in nave ecclesia belongs to the Ordinary. B. H. 7.
12. Godb. 200. 2 Bal. 150. As therefore the disposal of the pews is prima facie in the Ordinary, so, in case of any disturbance in the enjoyment of the pew,
the Plaintiff must make out his title either against the Ordinary, or against a
wrong-doer, by showing his title by prescription to the pew as appurtenant to a
messuage, or under a faculty from the Ordinary. 2 T. Rep. 428. But there seems to
be this difference; that where the action is again a stranger for a disturbance,
the plaintiff need not state, nor prove repairs: it is sufficient to lay his title
generally, as appurtenant to a messuage. But where the action is
against the Ordinary he should shew both prescription as appurtenant to a
messuage and repairs; for where the plaintiff declared on his right to the
pew, as appurtenant to an ancient messuage, and that he and those &c. had used to
repair it, hut no repairs were proved; the first was held to be sufficient, the
defendant being a stranger. 1. Wils. 326. See also 1 Sid. 88. 203. 3 Lev. 73. 2
Jon. 3. It is said that an action of trespass will not lie for
entering a pew; because the party has not the exclusive possession; the possession
of the Church being in the present parson. 1 T. Rep. 430. But an action on the
case will lie. 1 Gilb. Ev. 547. In trespass for taking down a pew the evidence was that
the pew was fastened to the pillar of the Church with a chain; this is no
evidence to prove the declaration: otherwise it is if it had been fixed to the
pillar by a nail: for in the one case it is not fixed to the freehold;
but in the other it is: for whatever is fixed to a Church or House, is reckoned
part of the Church or House in which it is fixed; for the Church is an house that
consists of its frame and building, of several distinct materials fixed one in another:
whatever therefore is fixed to the Church or House is a part of it; but if
it be fixed to another thing, which is fixed to the Church or House, it may then
belong to another; for not being immediately fixed to the frame of the house or
Church, it cannot be reckoned a part of it. Wood’s Inst. b. 11. Ch. 6. p. 33. Buller’s
N. P. 34.
But whether the seats in the Church be repaired by the parish
in general, or by such particular persons, who prescribe to them, care is to be
taken, that they be not so built, as to be an hindrance to the Divine Service, or
to any particular person from
Although the seats in the body of the Church be fixed to the freehold,
which is the Minister’s, yet the materials do not therefore become his, when taken
down again, but belong to the parishioners. For they having a right to put them
there, because of the common use which they have of that part of the Church, have
a right to take them away again. And therefore when any seat in the body or the
Church, which is in the common repair of the parish, is pulled down either to be
new built, or for any other reason, all the materials are to go to the Church-wardens
for the use of the parishioners, and are to be disposed of accordingly in the same
manner, as are the old materials a the roof, or any other part of the Church, which
they are bound to maintain. But if the seat be illegally set up by any private person,
and be therefore ordered to be pulled down again, in this case the materials do
certainly belong to the Minister, in that they have been fixed to his freehold.
The Church-wardens cannot claim: them for the parish, because they did not put them
there; and the private person, who built the seat; having had no right to put them
there, he can have no right, after having fixed them to the freehold, again
to take them away; and therefore neither he nor the Church-wardens can have any
thing to
But although the Bishop’s right to the disposal of the seats in the body of the Church be undoubted, yet some
dispute there is about it in respect of the chancel A person may prescribe for a pew in the chancel of a Church. Griffiths v.
Matthews. T. 33 G. 111. 5 T. Rep. 297. Gibs. 223, 224.
But although the freehold of the Church and Church-yard be in
the Minister, yet as he can hinder no parishioner from having a place in the body
of the Church for the hearing of divine service, so neither can he hinder any such
from having a place in the Church-yard for the burial of his dead But by
usage in London, the Church-wardens take the money for
burying in the Church or Church-yard, and the Parson has nothing but in the chancel,
2 Sho. 184. Vide p. 82, 83.
But if the burial be in an isle, which the owner doth prescribe to, and which be constantly repairs, there no fee is due for breaking the soil, either to the Parson or to the Church-wardens, because neither of them is to make good the pavement, but he alone who owns the isle; only if there be a customary payment in this case to the Minister, as it is reasonable there should, it will be supposed to have been reserved in the original grant in consideration of that part of the Church-yard, which was taken in to build the isle upon, and then the Minister will have as good a right to that payment, as the. other to the isle.
Although the parish stands in several counties, yet the authority
of the Church-wardens is the same in every part of it, as if it had stood all in the same county. That it is otherwise as to Constables, Overseers of the Poor, and other Parish-officers, is from the difference, which is between
the civil and the ecclesiastical jurisdiction. For
they being Officers of the Civil Jurisdiction, must
follow the divisions of that, which is into counties,
hundreds, and tithings. And therefore, where there
are different tithings, different hundreds, and different
As the Church-wardens are thus charged with all repairs belonging
to the Church, Church-yard, or utensils, so also are they with the custody of all
the Church goods, whether they be the said utensils, or else money, bonds, bills,
indentures, or other writings, goods, or chattels appertaining to the said
Church, in respect of which they are corporation (as hath been afore observed,)
and can sue or be sued as such; but they being a corporation for the benefit of
the parish, and not to the prejudice of it, they cannot dispose of any of the
Church foods without the consent of the parish, and the licence of the Ordinary;
not without the consent of the parish, because they are their goods; and not
without the licence of the Ordinary, because See note p. 34.
But altho’ the Church-wardens are a corporation Church-wardens being sworn are so far incorporate by law,
as to be enabled to sue for the goods of the Church, and to bring an action
of trespass or other possessory action for them; and also to purchase
goods for the use of the parish: but they are not a corporation in such sort as
to purchase lands, or take by grant, except in London by custom. Canons of 1603.
241.
11 H. 4. 12. a. 12 H. 7. 29. a. 1 Rol. 57. And this action of trespass will lie altho’ another parishioner, or the Vicar
himself takes them. 11 H. 4. 12. a. And a suit for them by the Parson in the Spiritual Court shall be prohibited.
1 Rol. 57. And the succeeding Church-wardens may maintain trespass for goods taken in the time of their predecessors.
12 H. 7. 28 a. Cro. 145, 179 1 Lev. 177. But it was doubted in Dal. 105. And if one releases, it does not bar his companion. 2 Cro. 234. Yelv. 173. So if goods are given to a parish or Church, the Church-wardens
may take them; for they are a corporation for such purposes. 12 H. 7. 29. a. And the successors may have account for them against their predecessors. 8 Ed.
4. 6. b. 1 Vent. 89. So, if goods are put into the Church to be there used; for that is a gift. Lamb.
Ch. s. 2. So, Church-wardens may have trespass against any one who defaces a monument,
&c. Godb. 279. But they cannot mantain trespass for breaking the windows, walls,
&c. of the Church, or cutting down trees in the Church-yard. 3 Com. Dig. 613. So they cannot sue for a legacy, or a thing never in their possession, by action
at common law. Ibid. Nor can they commence a suit after their year is expired. Str. 852. So they cannot
dispose of the goods of the Church. 13 H. 7. 10. a. 2 Cro. 234. Yelv. 173. 1 Rol. 392. l. 20. 1 Rol. 426. Yet a disposition by them, with the consent of the parish is good. 1 Rol. 393. 1. 26. Or, the sending a bell, with consent to be cast, shall be a discharge upon account, tho’ no bar to an action. 1 Vent. 89. Churchwardens de facto may maintain an action against
a former Churchwarden for money received by him for the use of the parish, tho’
the validity of the plaintiff’s election to this office be doubtful, and tho’ they
be not the immediate successors of the defendant. 2 H. Black. 559. Vide p. 93.
And here I cannot forbear observing, that when
any such lands are given to the repair of the Church,
the Minister hath wrong done him, if it be not
But whereas it is above said, that Church-wardens are a corporation only for goods to the use of the Church, and not for lands, the city of London is in this to be excepted. For there by special custom the Church-wardens with the Minister make a corporation for lands, as well. as for goods,. and may as such hold, purchase, and take lands for the use of the Church, and sue, and be sued on the account thereof, as well as for goods and chattels.. And this is alledged as a reason for that other custom, which hath also obtained in London, for the parishioners. there to chuse both Church-wardens exclusive of the Minister. For, say they, if the Minister should there chuse one of the Church-wardens according to the Canon, he, with the said Church-warden, as the major part of the corporation, may dispose of their lands to the damage of the parish, and therefore it is not safe there to ledge so great a trust in him. But there being no such, custom ill any other part of the kingdom, every where else the Church-wardens only make the corporation for the use of the Church, and are such only for the goods. belonging to the same, and not for lands. (2 Cro. 532. 3 Cro. 551, 552. 1 Inst. 3. a. Lane 21. 1 Roll. Abr. p. 393.)
And therefore if any one break the Church-windows, cut down the seats in the Church, demolisheth any part of the walls, either of the Church or Church-yard, or any other way damnifieth the Church in such particulars, as are not of the goods of the Church, but are either parts or appurtenances of the freehold; in ibis case the Church-wardens cannot sue in their own names for reparations to be made for these damages, but must bring the action in the name of the Minister, to whom the freehold belongs, (10 H. 4, 9. Kitchin, Tit. Wardens of Churches, p. 367, 388. 2 Roll. Abr. p. 337.)
But if the damages be done to any of the utensils or goods Churchwardens are a corporation for the purpose of taking care
of the goods and property of the Church, and maintain actions for money withholden
from the parish: and the actions are maintainable by the Church-wardens
de facto,
who are admitted and sworn into the office, tho’ there may be a doubt as to
whether legally appointed or not; and an action may be maintained by the Church-wardens
de facto, against any former Church-wardens for money of the parish received
by them and not accounted for, and that tho’ the plaintiffs are not their immediate
successors. 2 H. Black. 559. Turner and others, v. Baynes.
When any such damage is done, the Church-wardens may seek remedy in the ecclesiastical court, as well as at common law; but with this difference, that only the restitution of the thing taken away can be sued for in the. ecclesiastical court, but damages can be recovered no where, but at common law. As for example, should any one carry away a bell out of the Church, he may be cited into the ecclesiastical court, and there admonished to restore the same; and on the refusal be excommunicated till he shall comply to do right herein. But if the bell be broken, and the metal disposed of, and the parish would have damages for the same, there is no other way for the recovery of them, but by an action at common law. And the case is the same, if any an one takes away the Church Bible, Common Prayer Book, Surplice, or any other goods of the Church, or doth injury or damage to any of them (as by breaking a bell, tearing the books, &c.) And therefore if the parish will have reparation made them for these damages, they must seek it at common law. For the ecclesiastical courts can give them no help in this matter, (Coke’s 2 Instit. p. 492. Danvers Abr. Title Churchwardens, p. 787. under the letter (b) in the Margin. Watson, c. 39. p. 303. 1 Siderfin, 281, 282.)
Church-wardens can have no action at common law for goods, of
which neither they, nor their predecessors ever had possession. And therefore, if
a legacy be given to the Church, or that be any He who steals goods belonging to a parish Church, may be indicted for
stealing
the goods of the parishioners. 1 Hawk. 94.
If any person doth in the night-time break up the Church, and
enter into it, he is guilty of burglary.
At the Easter-Visitation, when the Church-wardens go out of their
Office, they must take care to make their presentments of what is amiss in their
parishes, before the new Church-wardens are sworn. (Can. 118.) For after
the new ones are sworn, the old ones are out of their office, and therefore can
then have no right to present as Church-wardens. But if they neglect to make the
said presentments, this is no reason to hinder the new ones from being sworn. Where-ever
there is such a neglect, it is to be punished; but notwithstanding that, the new
Church-wardens are to be admitted to their office, and the old ones are to be discharged,
and there is nothing in the canon that can be interpreted to intend otherwise. And
on their being discharged, The Canon 1 Jac. 89. says, they shall in a month
after the
end of the year, give account of all monies received and disbursed, and deliver
up to the parishioners what is in their hands.
If any dispute ariseth about the account, it is to be decided
before the Ordinary The Spiritual Court has no jurisdiction to settle a Church-warden’s accounts.
Adams and Rush. Str. 1133. But altho’ the Court cannot decide on the propriety of the
charges, yet it can compel there to deliver in their accounts. And if it take any
steps after the accounts are delivered in, it is an excess of jurisdiction, for
which a prohibition will be granted, even after sentence. 3 T. Rep. 3. And to a suit in the Spiritual Court to compel them to an account, after
the account allowed by the Minister and parishioners, a prohibition lies. 2 Rol. 71. And no suit shall be against them by their successors for a
thing done ratione officii Godb. 279. But this must mean a suit in the eccelesiastical
court, for an action at common law lies against them by their successors. 1 Sid. 282.
The exceptions against a Church-warden’s account may be, 1st, as to the particulars on which the disbursements are made, and 2dly, as to the justness and truth of the disbursements themselves.
For if a Church-warden hath of his own head laid out the parish-money, where he hath no authority by his office so to do, that is, on new erections, or other such particulars, where the consent of the parish, or licence of the Ordinary, or both, ought first to be had, the parish may refuse to allow it him in his accounts: And he may be further punished by the Ordinary for the contempt put upon his authority herein, if it he in a particular where his. licence was requisite forth doing of it.
And although his disbursements be within the limits and power
of his office, yet if not fairly stated, there lies a just exception against the
account; and if it appears that he hath not dealt justly and fairly with the parish
herein, but hath either charged to them more than he hath laid out, or falsely and
fraudulently expended more than need for by-ends of his own, altho’ there be no
remedy against a foolish and indiscreet Church-warden (as is afore
And it will be a strong argument against Church-wardens of their guilt in this particular, if they accept of any entertainment from the workmen they employ, or the persons of whom they buy the materials; or if they make use of any materials of their own, unless they call some principal inhabitants of the parish, and fairly agree with them the price, before they convert them to the use intended; or if they employ such workmen, or buy the ma-Aerials of such persons as are in their debt, and set it off by the money they were to pay them, or make use of any other practice, wherein they have a by-end and self interest of their own, which men are too apt to prefer before the public: And whenever any such fraud is detected, it will be a just reason to condemn that particular in the account in which it is committed, or at least defalcate it to the value of the fraud which shall be discovered in it. And whenever any Church-warden hath his account condemned for any such fraud, he must be condemned too in the charges of the suit which shall be occasioned about it.
Would Church-wardens consider the oath they
have taken, when they first enter on their office,
and the obligation which then they take upon them
of well and truly discharging themselves in this, as
.weil as in all other branches of their office, that is,
to the best of their care, skill, and fidelity, they
would discharge themselves with a better conscience,
At the same time when the Church-wardens thus pass their
accounts to the parish, of all money received and expended during their office,
they must also give an account of the Church-goods committed to their charge and custody, which must be
then brought forth, called over, and examined before the parishioners, and after that they are to be
delivered over to their successors by bill indented,
as must also the keys of the parish chest, wherein
are kept what public evidences belong to the parish,
to which are usually three keys, of which the
Minister is to keep one, and the Church-wardens
the other two; and when they have faithfully accounted
For when the old Church-wardens have thus fairly accounted If they refuse to account, they may be presented at the next
visitation by the new Church-wardens; or any of the parish that are interested may
by process call them to account before the Ordinary; or the succeeding Church-wardens
may have a writ of account at common law. And if they have disbursed more than they have
received, the succeeding Church-wardens shall pay what is due to them, and account
it among their disbursements. 1 Roll. Abr. 121. The allowance of the account may be by entering it in the Church-book of accounts, and having it signed by those in the vestry who
allow the accounts. Barl. 105. The Church-wardens were cited to the Court of Litchfield
to account. They pleaded that they had accounted at the vestry according to
law, which plea was rejected; and therefore a prohibition was granted: for the Ordinary is not to take the account, he can only give
a judgment that they do account. Stra. 974, 1133. E. 7. G. S. Wainright and Bagshaw. If the Church-wardens waste the goods of the Church, the new
Church-wardens may call them to an account before the Bishop, or, bring their
action at common law. Read. Ch. Service. And in such action the evidence of
parishioners, other than such as shall receive alms, shall he taken and admitted.
9 W. c. 11. s. 12.
But this must he understood only of the money, which the parishioners
pay to the Church-rates. For as to the Church goods, they being in an especial manner
under the care of the Ordinary, as is before expressed, altho’ all the parish have
allowed the account, yet as to these, if the Ordinary be dissatisfied, he may call
them ex officio to account before him too; and also punish them, if he finds
they have disposed of any of any of them on what account soever, although they have the
consent of every inhabitant of the parish for it, unless they have his consent too.
For otherwise the parishioners may all combine, for the saving of their purses to
the Church-rates, to sell all the Church goods and utensils, to bear the parish-charges
(as we find sometimes done) and so leave the Church without
Although it be the properest method to bring the Church-wardens
to account before the Ordinary The Spiritual court may compel the Church-wardens to deliver
in their account, but cannot decide on the propriety of the charges. And when they have delivered in their account, they have
done every thing which that, court had a power of enforcing, and there is an end
of their jurisdictions, it is functus officio, and if they take any
step afterwards, it is an excess of jurisdiction, for which a prohibition will be granted even after
sentence. Leman v. Goulty and another. Hil. 29. G. 3. B. R. 3 T. Rep. 3.
Among other particulars of the Church goods, which the Church-wardens have the custody of, and are to deliver over to their successors at the end of the year, are the terriers of the glebe lands, and the parish Register-book, both which are carefully to be kept and preserved in every parish.
The terrier is to contain an exact account of all the glebe-lands,
meadows, gardens, orchards, houses and tenements, with their abuttals and dimensions,
and of all portions of tithes lying out of the parish, and of all stock, implements,
and all other lands, rights, goods, or chattels whatsoever, which are belonging to
the parsonage or vicarage, and are from one Minister to another to go with the same.
This being carefully taken by
The parish-register is a parchment book, in which
all the christenings, marriages, and burials of the
parish are recorded. This was first ordered by the
Lord Vicegerent Cromwell, in the 30th year of
King Henry the 8th, Anno Dom. 1538. (Cowell’s
Interpreter, verb. Register. Spelman’s Glossary, p. 482.) And from thence all parish-registers have
their beginning. King Edward the 6th, and
By the same Canon it is also required, that every year within a month after Lady-day, a copy be made out of the said book of all registrations therein entered in the year foregoing, and that being subscribed by the Minister and Church-wardens, it be transmitted to the registry of the Bishop of the diocese, to the end that the same may be there faithfully preserved. And this is the foundation, on which, bills indented of all christenings, marriages, and burials, are given in at every Easter visitation by the old Church-wardens, on their going out of their office, although through the neglect of the Officers, whose duty it is to take care hereof, the said bills are never sent into the Bishop’s registry, but usually after the visitation is over, are thrown by, and no more taken care of, whereby the intent of the canon is wholly defeated, which was, that a register should he kept in general for the whole diocese in the Bishop’s registry, in the same manner as is in every particular Church for the parish belonging thereto.
I cannot pass over this head, without cautioning Ministers, as
well as Church-wardens, not to suffer any to be entered, and recorded in the said
parish-register,
As the bells are of the appurtenances of the
Church, that are under the Church-wardens care,
so doth it belong to them to govern and regulate the
use of them; and especially they are to take care,
that they be not rung on superstitious or factious
occasions, nor at unseasonable times, or on any other
times or occasions (excepting such only for which
their ordinary use is ordained) but what shall be
Another branch of the Church-wardens office is, to have the sequestration
and care of the benefice during its vacancy,. whether the avoydance happen by death
or otherwise; and therefore as soon as there shall be any such avoydance, the said
Church-wardens are to apply to the Chancellor of the diocese for the sequestration,
and having taken out an instrument for it under the seal of the office, are thenceforth
to take the whole benefice under their care, and are to manage all the profits and
expenses of it for the benefit of him that shall next succeed. Which they are to
do with the best of their care and skill, and with the same fidelity and good husbandry
as if they were their own; that is, according as the season of the year shall require,
they are to plow and sow his glebes, take in the crop from off them, gather in his
tithes, thresh out and dress his corn, and dispose of it at the best market they
are able. And they are also to repair his houses, make up his fences, pay his tenths, synodals, and procurations, and discharge all other burdens of the living, which
shall be incumbent on it while it is under their trust, and do every thing else
which may be best for his advantage. And principally they are to take care, that
during the vacancy the Church be well and
As soon as a new Minister is instituted, the said
Church-wardens, or other Sequestrators, are to
account to him for all the profits of the benefice
which they have received during the vacancy. For
all these belong to him from the death of the
Predecessor, how long soever the vacancy may have been. (28 Henry 8. c.
11.) And if he be satisfied
And sometimes livings are sequestred on other occasions than on vacancies. For on a suspension there must be a sequestration for the serving of the cure, and in case of dilapidations, either in the chancel, or the Minister’s house, a sequestration is often necessary for repairing of them, and sometimes a sequestration is commanded by the King’s writ for the payment of the Minister’s debts. In all which cases the Church-wardens are necessarily obliged to be the sequestrators, unless the Ordinary finds others willing to undertake it, whom he judgeth proper to be entrusted with it. In all which sequestrations there must be the like management, and the like account given, as is above-mentioned. And to oblige the sequestrators the more hereto, the Ordinary usually binds them to it by a bond, especially when the profits sequestred are like to amount to any considerable value: Which bond may he sued at common law, if the sequestrators cannot otherwise be brought to give a true and faithful account of their trust.
In all sequestrations the Church-wardens, or other sequestrators,
are to take care, that they meddle not with any timber, trees, wood, or underwood
standing upon the glebes of the living,
In larger parishes Side-men are also added to the Church-wardens, to be their assistants in that part of their office, which obligeth them to inspect the manners of the parishioners, and to present what they shall find presentable among them at the next visitation. And these are they, who in the canon law are called Testes Synodales, because their business anciently was to attend Diocesan Synods, as now they do at visitations, and there visit and present whatsoever they found amiss within their respective districts.
And here I cannot omit taking notice, that till
the rebellion, Anno 1641, these diocesan synods
were kept up in the diocese of Norwich, and all the
clergy of the diocese constantly met at them every
year, that is, the clergy of Suffolk at Ipswich, and
the clergy of Norfolk at Norwich. In which Synods
the Deans Rural, having presented whatsoever
they had found defective, either in the manners
and duties of the clergy, or in the reparation of the
There are several other duties incumbent on Church-wardens, in
respect to the Civil Government They are to provide for such bastards, fur whose sustenance
the parish have made no provision. Hays v. Bryant, Trin. 29 G. 3 in C. P.—They are
to collect charity money upon briefs. Stat. 4. Ann. c. 14—They are to apply
to Magistrates to convict offenders for not burying in woollen. Stat. 30. Car. 2
c. 3.—The penalties for reforming abuses as to butter and cheese, are payable to
them. Stat. 13 and 14 Car. 2. c. 26—They are under a justice’s warrant to levy
the penalties as to conventicles. Stat. 22 Car. 2. c. 1.—They are to receive the
penalties under Stat. 1 Jac. 1. c. for destroying game; and under the stat. 4 G
1. c. 5. 21 G. 2. c. 7. and 1 Jac. 1. c. 9. against drunkenness.—They are to sign
the certificate of out-pensioners of Greenwich Hospital, under stat. 3 G. 3.
c. 16. To apprehend hawkers and pedlars, and receive the penalties. Stat. 9 and
10 W. 3. c. 27. and 9 G. 2. c. 23. They are to provide a book with proper
stamps for entries of registers of births, burials, marriages and christenings.
Stat. 23 G. 3.c. 67. They and the Overseers may compel persons to take apprentices.
43 Elia. c. 4. s. 35. stat. 8 and 9. W. 8. c. 30. s. 5. and 18 G. 3. c. 47. And
they may compel certain persons under age to be bound apprentices, and on refusal
may commit them. Stat. 5, Eliz. c. 4. s. 35. and may put out poor boys apprentice
to the sea service. Stat. 2 and 3 Ann. c. 6. and 4 Ann. c. 19. They and the Overseers,
with the consent of two Justices, may bind certain boys of 8 years old or upwards,
under certain regulations, to be apprentices to chimney sweeper. Stat 28 G. 3.
c. 48. They or the Overseers must pity the county rate and may appeal against
it. Stat. 12. G. 2 c. 29. They shall receive the penalties for servants, labourers, apprentices
or journeymen gaming in public houses. 30 G. 2. c. 24. and for servants carelessly
firing houses, 6 Ann. c. 81. They (or the Overseers) shall receive the penalty
for selling corn by a wrong measure. 22 Car. 2. c. 8. They shall levy the
penalties relating to weights and measures. 16 Car. c. 19. 22.
Reviewed, Corrected, and Enlarged in the
Month of September, Anno 1712.
HUMPHREY PRIDEAUX,
Arch-Deacon of Suffolk.
My Worthy Brethren,
This Letter is founded upon an opinion, in which all men do
not agree, which is, that men, if not willing, should forced to
be religious; or, at least, to put on a religious appearance. The letter contains
however an excellent display of the zeal of the learned author, and of his indignation
against evil doers. The Editor.
1. That the said act of indulgence gives no liberty for irreligion and prophaneness, or extends any further than the granting a toleration to protestant dissenters, such as are commonly known by the names of presbyterians, independents, anabaptists, and quakers, of worshiping God their own way.
That all such as are not members of some of the said tolerated assemblies, and constantly resort to them at all times of public worship, are still under all the penalties of the law, whenever they absent from Church, in the same manner as before the said act of indulgence was granted. For the words of the act are as follow;
Provided always, and it is the true intent and meaning of this act, that all the laws made and provided for the frequenting of Divine Service on the Lord’s Day, commonly called Sunday, shalt be still in force, and executed against all persons that offend against the said laws, except such persons come to some congregation or assembly of religious worship, allowed or permitted by this act.
3. That therefore, if the said officers of your parishes know
any who absent themselves from their Parish-Church in time of public worship, who
are not members of some of the said tolerated assemblies, and constantly resort
unto them every Lord’s Day, they are bound still by their oath to present them in
the same manner as before the said act was made, that is, the Constables to the
Sessions, and the Church-wardens to the ecclesiastical Court. For although I have
nothing to do with the Constables, yet it will very well become both you to
4. That the said Church-wardens, whenever they omit their duty herein, and either neglect or refuse to present such persons as they know to be thus presentable, do thereby desperately and irreligiously Incur the horrible crime of perjury, and are to be corrected for it with the highest censures of the Church; and to convince them hereof, I desire you would read unto them the 26th and 117th canons of King James the first, and also to take notice therein, what is your duty in this ease to be performed.
That the duty of Church-wardens obligeth them to present, not
only upon certain knowledge, but also upon common fame, (Can. 115.) and
therefore if any shall answer concerning these prophane apostates from
God’s worship. (as I foresee many will) how know they, but that they resort
to some other assembly now by law tolerated? I desire that in reply hereto,
you would tell them, that none of their parishes are so large, but that usually
every one therein knows what every man doth in a thing of so public a nature,
and that therefore, although they know it not upon their own particular observation,
yet at least they may by the common report of neighbours, and that this is a
sufficient ground for a presentment. However there will be no danger of doing
any injury hereby, because whenever any so presented by them, shall but send
into my court a certificate from am; tolerated assembly, attesting them to be
Members of it, and that they constantly resort thither every
I am sufficiently sensible, that it will be no easy
task for you, now a lawless license in matters of
religion is so much affected, either to convince those
men of their duty in this particular, or prevail with
them to do it; however, that is no argument to
excuse us from the discharging of ours. And
therefore I earnestly beseech you, that you would
employ your hearty endeavour herein, and if they
will not present any of those prophane absenters
from God’s worship, that you would have them,
in this case the 113th Canon impowers you to
do it, and the 114th, as I take it, necessarily
enjoins it on you, as often as they absent from the
sacrament of the Lord’s Supper. That you have
already made particular application to all such irreligious wretches in your parishes (if you have any
such there) by your exhortations and admonitions
to reduce them to a sense of that duty and worship
which they owe unto their God, I cannot but suppose, it being so obvious a part of your duty, vowed
at your ordination, enjoyned by the Canons of our
Church, and so often inculcated into you by your
superiors. And therefore where doctrine hath been
ineffectual, our next course must be to have recourse
to discipline, that. we may leave no means of our
Ministry un-attempted, if possible, to save those
whom God hath committed to our charge. And
that you may be assured I will not be wanting to
execute that part which belongs to me in this particular, I do promise you I will, by God’s help,
employ my utmost care herein, as far as the law
I do foresee here will be two objections made to what I propose; First, That I put you upon an odious work, the prosecution of your people; and the second, That this prosecution may become a means to drive them to the conventicler, because, when they see a necessity put upon them of either going to Church or to the Conventicle, it is most likely, that out of spite to us, who put this necessity upon theta, they will rather chuse the latter, and so the numbers of those be increased who are enemies to our Church.
As to the first objection, my answer is, That
nothing is more contrary to my intentions, than the
putting of any thing upon my brethren, which may
draw the least odium upon them from their people.
With such as are their people, I would rather desire them to proceed with the spirit of gentleness
and meekness, as best becoming them, especially in these times, and leave the odious part to those
who are under their oaths to execute it. But can
these wicked apostates from God’s Worship be
reckoned of your people? certainly it any, these
ought to be cast out from among us, and cut off
from the society of all Christian people till reformed.
For men that have erring consciences something
may be said, but I never yet heard of any to have
pleaded for such as have none at all; nor do I think
you need ever fear, that your denying a toleration
to the atheistical and irreligious, will ever be called
a persecution. For these are such, whose cause is
too bad for any one to countenance; but all that
own the name of God, must ever have in utter
As to the second objection, if any so prosecuted
for their irreligious neglect of God’s worship, do
I earnestly beseech you (my dear brethren) that
you would not be wanting to your diligence in any
part of your duty, now in these times of falling
away, if possible, to keep your flock together with
you. Atheism and irreligion are wickednesses of
If any tell you, that I make too much haste in
pressing you with these particulars, and that the
time is not seasonable, that it is properer to tarry
till their Majesties being freed from the present
pressures, may be at leisure to back us with their
authority in these proceedings; objections which I
have often heard; my answer is, That when such
iniquities begin to grow upon us, as atheism and
irreligion, we cannot too soon endeavour to put a
stop to so great a mischief. The first beginnings of
a thing of this nature ought not to be neglected.
For sin is of a very prolific nature, and if let alone
to spread itself, will soon grow to an head too hard,
to be mastered, and we become overpowered therewith. And as to the seasonableness of the time,
And I am,
Your most affectionate Brother and Servant,
HUMPHREY PRIDEAUX,
Arch-Deacon of Suffolk.
August 17th, 1692.
TITHES are a species of incorporeal hereditaments, and are defined to be “a tenth part of the increase yearly arising and renewing.” First, immediately from the soil; i. e. from the profits of the land. Secondly, mediately, i. e. from the increase of animals. Thirdly, by the labor and personal industry of man. The first species is usually called PREDIAL, as of corn, grass, hops and wood, including tithe for the agistment of cattle. The second, MIXED, as of wool, milk, pigs, &c. consisting of natural products, but matured and preserved in part by the care of man; and of these two sorts the tenth must be paid in gross: The third species, is usually termed, PERSONAL, as of manual occupations; trade, fisheries, and the like; and of these only the tenth part of the clear gains and profits is due. See 2 Bl. Com. 3.
Tithes are payable of common right of all things which annually increase, either spontaneously, or by the industry of the parishioner. 3. Com. Dig. 490.
Tithes are also divided into GREAT and SMALL. Great Tithes are chiefly corn, hay, and wood. Small Tithes are the predial tithes of other kinds, together with mixed and personal tithes.
Tithes by law are denominated great or small, according
to the nature of the thing, and not from
Thus the tithes of beans and pease whether sown in fields or gardens are great tithes, and do not fall under the denomination of tithes of gardens, technically called decima hortorum. 5 Bro. P. C. 586.
So potatoes are a small tithe, tho’ sown in great quantities. 3 Atk. 364. Com. Rep. 639.
When arable land is turned into pasture, it is an agistment tithe, and becomes a small one from a great one. id.
Predial great tithes are corn, grain, hay, clover grass when made into hay, wood, underwood and beans and pease.
Predial small tithes are flax, hemp, madder, hops, garden roots, and herbs, as potatoes, parsley, Cabbages, saffron; and the fruits of all kinds of trees, as apples, pears, acorns, &c. and all kinds of seeds.
Mixed tithes are natural products matured..
Personal tithes are only payable by special custom, and perhaps are paid no-where now in England, except for fish caught in the sea, and for corn mills.—3 Burn. Eccl. L. 473.
Great tithes generally belong to the Rector, and small tithes to the Vicar. Cro. Car. 20.
The Rector is prima facie intitled to ALL the Tithes of the parish, and nothing can be presumed in favor of the Vicar, without endowment or prescription. Yelv. 86. 1 Gwill. 226.
As a general rule, it may he observed, that tithe ought to be paid as soon as the tenth part can be severed from the whole, if there be no custom to the contrary; as, for corn and hay, as soon as made into shocks or cocks. 2 Gwill. 563.
A Freehold Lease of tithes cannot commence in futuro. Yelv. 131. 1 Gwill. 221.
A lease of tithes for all the time the lessor shall continue Vicar, is good, and passes a freehold. 4 Gwill. 1418.
A real composition is, when an agreement is made between the owner of the lands and the Parson or Vicar, with the consent of the Ordinary or Patron, that such lands shall be discharged from payment of tithes by reason of some land or other real recompense given to the Parson in lieu and satisfaction thereof. 2 Inst. 490. Regist. 38. 13 Rep. 40. And it cannot now be established without evidence of the actual existence of the deed by which it was created 3 Bro. C. R. 217.
With regard to compositions entered into between the tithe-owner and any parishioner for the latter to retain the tithe of his own estate, it has- been. decided, that they are analogous to leases from year to year between landlord and tenant; and, if they are paid without or beyond an agreement for a limited time, they cannot be put an end to without, six months notice before the time of payment; and the parishioner may avail himself of the defect of notice, at the same time that he controverts the: right of the incumbent to receive tithe in kind; an objection not permitted to a tenant, who deities the right of his landlord. 2 Bro. C. R. 161.
A Rector AGREES with a parishioner for his tithes for a certain
sum payable at Michaelmas, the Rector dies in the beginning of September, the
agreement determining by the death of the Parson,
A parole agreement by the Parson with a parishioner, to retain his tithes for three years is good. 2 Gwill. 611. 744. vide Hilton. v. Heath. 3 Gwill. 845.
An agreement or composition between an incumbent and his parishioners, for the acceptance of land in lieu of tithes, or for a certain pecuniary compensation, will not bind his successor, tho’ ratified by a decree in equity. 3 Gwill. 914. 1001. 1199.
But if the successor, on coming to the living, accept the composition, that will amount to a confirmation, and then he must give notice. 3 Gwill. 1001.
An agreement by deed between the Vicar and the Patron, with the consent of the Ordinary and the inhabitants of a ville within a parish, to pay 6l. in lieu of all tithes arising within the ville, tho’ acquiesced in for 100 years, is not binding on the successor of the Vicar. Id. 1060.
Where the lessee of tithes agreed with the owner of lands, for certain collateral considerations not to take tithes in kind from the tenants for 12 years, but to accept a reasonable compensation, not exceeding 3s. 6d. per annum, and thereto bound him and his successors. This agreement was held void, from the uncertainty of the sum to be paid, and the under-lessee who sued the tenant of the land for tithes in kind, had a decree. 4 Gwill. 1418.
To a libel in the Spiritual Court for tithes, the Occupier may
plead a parole agreement with the Parson’s agent for the purchase of them, and
a
As to NOTICES, it is, to be observed, that the Lord Chancellor seemed to think, that the rule between landlord and tenant, ought to be adopted with respect to notice of the determination of a composition. 4 Gwill. 1323.
A notice too late to determine a composition from year to year, will not serve for the succeeding year. Id. 1321.
A defendant may object to want of sufficient notice to determine a composition, though he insist upon it also as a modus. Id. 1412.
Notice given in the month of January is not sufficient to determine a composition running from Michaelmas to Michaelmas, so as to entitle the Parson to tithes in kind for the current year. 3 Gwill. 985.
A notice on the 8th September to determine a composition for tithes from year to year, as from the Michaelmas following, for the ensuing year, is not sufficient. Id. 1204.
When a composition is payable at Christmas, notice any time before Christmas for the succeeding year, is sufficient. Id. 1030.
If a composition for tithes be made by A. as proprietor, and he lease them to B. whose interest is afterwards put an end to by A. before any alteration is made in the composition, A. cannot determine it without 6 months notice. 4 Gwill. 1517.
Where a Parson entered into written agreement with his parishioners to compound for their tithes for three years, and after the expiration of the three years, continued to take the composition for several years, it was held, that notice given only three weeks before hop-picking time, that he should take the tithe in kind, was not sufficient. 2 Gwill. 612.
A CUSTOM to pay only part of the tithe, without substituting any thing in lieu or the remainder, is bad. But a custom to pay less than the whole tithe may he good, where something in lien of, and as a compensation for the rest, is paid to the Parson. 7 T. Rep. 93.
A modus is a composition time out of mind. 2 Gwill. 591.
A modus is a real composition founded on an agreement. 2 Gwill. 689.
The only difference between a modus and composition is, that the first is, time out of mind, and the last, only a late agreement. Id. 612. 4 Gwill. 1397.
A custom to pay 4d. an acre in lieu of the agistment tithe of barren cattle above a year old, if fed one month in the parish, is good. 3 Gwill. 1048.
A custom to pay 3d a head for sheep agisted between Candlemas and shearing day, and a fleece of every hundred every month for all sheep brought into the parish after the 2d of February, and shorn therein is bad. 3 Gwill. 1048.
To constitute a good MODUS, it seems necessary that it should be such as would have been a certain, fair, and reasonable equivalent or composition for the tithes in kind, before the year 1189; and, therefore no modus for hops, turkeys, or other things introduced into England since that time, can be good. Bunb. 307.
A modus of one penny for every sheep, and a halfpenny for every lamb brought into the parish after Candlemas, and sold out before shearing time, is not an agistment, but a wool modus, 4 Gwill. 1462. 1468..
It is a common opinion, that the parishioners are obliged to give the Parson notice of setting out their tithes; ’tis true the canon Iaw obliged them to do. so, but. it is otherwise by the common law, which prevails in this case; for if the parishioner sets out his tithes truly, he is not bound to give notice, either to the Parson himself, or any other general notice at the Church. But notice is sometimes required by special custom, in which case it is good, and must be complied with. And where the tithes are not removed in a reasonable time, notice must be given before an action can be maintained, or cattle turned in. 1 Rol. Abr. 643. pl. 1. 2 Vent. 48. 2 Alk. 603. 2 Bl. Rep. 968.
When custom, renders notice necessary, an hour’s notice is sufficient. 4 Gwill. 1438.
Where by the usual mode of husbandry, clover hay is not made into cocks at all, the tithe may be set out in the swathe. 2 Aust. 481.
By Stat. 2. and 3 Ed. 6. All manner of predial tithe shall be set out, divided and paid, justly without guile, in such manner as hath been of right used for 40 years past. And it shall be lawful for any to whom tithes are due to, or his servant, to see his tithes truly set forth, and severed from the nine parts, and the same to take and carry away.
For further particulars on this head, see the several articles in the following alphabetical arrangement.
By Stat. 2. and 3. Ed. G. 13. no person shall carry away predial
tithes before he hath justly set forth the tithes, or agreed for the same
with the
Evidence that land had always been remembered to be in pasture, and had never within living memory paid any tithe, was holden insufficient to defeat an action on this statute. 5 T. Rep. 260.
The action lies by an impropriator or his lessee, tho’ lay, as well as by an ecclesiastical person. 2 Instit. 650.
An action lies not on this statute for any other than predial tithes. 1 Browne. 31. 2 Inst. 649.
Remedy for subtraction of tithes lies either in the Spiritual or Temporal Courts. The remedy in Temporal Courts, may be pursued in the Hundred or County Court, before the Mayor of London, in the Courts of Westminster, or in a Court of Equity.
The Stat. of Limitation is not pleadable to a bill for tithes. 2 Gwill. 674. But under circumstances., length of time will be considered as a sufficient ground to refuse an account. 4 Gwill. 1352.
Mere non-payment of tithes, though for time immemorial, is no discharge from payment of tithes; without setting out, and establishing the exemption from one of the greater abbies. 3 Gwill. 904.
The lessee of lands cannot claim to hold discharged of tithes, under any covenant between his lessor and the lessee of tithes. 3 Gwill. 1418. Vide ante of Agreements as to Tithes, &c.
If the Parson dues not take away his tithes within
But to justify the parishioners in taking tithes, damage feasant, he ought to shew that the tithes continue a long time upon the land. 3 Bul. 336.
Tho’ the proprietor of tithes does not remove them in a convenient time, the owner of the land cannot put in his cattle and depasture them. 1 Ld.. Raym. 187. 8 T. Rep. 72.
The following alphabetical arrangement will furnish useful information on the subject of tithes.
Acorns.—Acorns, as they yearly increase, are liable to the payment of tithes; but this is where they are gathered and sold, and reduced to a certain profit: not when they drop, and the hogs eat them. 2 Inst. 643. Hetl. 27. They are a small tithe. Bunb. 640.
Aftermath shall pay tithes, but not after-pasture, except by custom. 2 Inst. 652. 2 Danv. Abr. 589. L. Raym. 243. But see Grass.
After-pasture vide Aftermath.
Agistment.—Tithe of agistment is a predial small tithe, (3
Anstr. 760.) and is usually the tenth part of the value of the herbage eaten
by cattle not titheable. 1 Anstr. 332. and is not within the Stat.
2 and 3 Ed. 6. c. 13. s. 3. Agistment of cattle upon pasture land, which
hath paid
no other tithes that year, pays tithe for the cattle. But where meadow grounds have
paid tithe of hay the same year, they are not liable to an agistment tithe for
cattle depastured on the after crop. 2 Gwill. 613. If a man breeds or buys barren unprofitable
cattle and sells them, he shall pay for the agistment; but, if he depastures his
land with his cattle, used in husbandry in the parish where depastured, he shall
Where the occupier sows turnips tho’ on fallow ground, and then agists the sheep of a stranger, or fattens his own and kills them, he shall pay tithes for the herbage or agistment.. 2 Gwill. 537.
Horses kept on one farm for its cultivation, and used occasionally on another farm in a different parish, shall not pay agistment tithe. Alitèr if habitually so used: 2 Anstr. 498.
Sheep kept principally for the sake of folding, if sold out of the parish before shearing time, shall pay agistment tithe. 2 Amstr. 500.
Agistment tithes are payable for sheep depastured after shearing time, and sold off or taken out of the parish, before the next shearing day, tho’ the sheep so sold or disposed of, be immediately succeeded by others, and the stock at the next shearing day consist of the same number it did at the last. 3 Gwill. 1048.
Where sheep are agisted part of a year on a common in one parish, appurtenant to a farm in another parish, an agistment tithe is not due to the Parson of the former, tho’ the sheep be all shorn in, and the tithe of the wool wholly paid to the Parson of the latter. 3 Gwill. 1022.
If a man holds a farm and lives in the parish of A. and holds other lands quite distinct from, and independent of his farm, and no way exempted in the parish of B. and depastures his sheep upon the lands in that parish, but shears them in A. the Parson of B.. shall have an agistment tithe. 3 Gwill. 1026. 1029 in not. 1030 in not.
The demand for agistment tithe, should be against the occupier, not against the owner of the beasts. 2 Gwill. 627 in not. 3 Gwill. 859. in not. 4 Gwill. 1584. See Cattle.
Alder-trees, Ash, Asp, Beech, &c. See, Trees.
Apples. Windfall Apples are titheable. 2 Gwill. 579.
Bark of Trees is not titheable, if the trees were timber. 11 Rep. 49. See Bunb. 98.
Barley and Oats are titheable in cocks and not in the swaith. 3 Gwill. 967.
Barren Land, that is land of which no profit ariseth or groweth, is not titheable;
and, by Stat. 2 and 3 Edw. VI. c. 13. s. 5. barren land improved, shall, for the first seven
years, be discharged of tithes;
Fenny-Land drained is not within the stat. of Edw. but shall pay tithes immediately. So land grubbed up and made meadow or arable. So land where wood grew, and is stocked up and converted into tillage. I Gwill. 166. 2 Gwill. 562, 563, 549, 714, 823.
Newly inclosed lands, which will not produce crops by the ordinary mode of culture, are entitled to exemption under the Stat. of Edw. 3. Gwill. 1197. 4 Gwill. 1594.
If land, after being grubbed up will produce nothing, without being dunged or chalked, it is within the statute; if it will produce one crop with only ploughing, it is not. 1 Vesey 115.
Lands inclosed with hedge and ditch, are not exempted as waste or heath. 3 Com. Dig. 501.
Beans.—See Pease.
Bees. Tithes are not payable of Bees, but for their honey and wax by the tenth measure and tenth pound. 1 Roll. Abr. 651. 3 Cro. 404, 559. F. N. B.402.
Bricks pay no tithe; for, they are of the substance of the earth, and of no annual increase. 1 Cro. 1.
Calves are titheable; and the tenth calf is due
when weaned, and the Parson is not obliged to take it before; but,
if in one year a person hath not ten calves, the Parson is not entitled to tithes in kind that year, without a special custom for it; though
he may take
it in the next year, throwing both
A single Calf is titheable, and the tithe is the tenth part of the value, when taken from the Cow to be sold or killed. 2 Gwill. 541.
Cattle. sold pay tithes; but not such as are kept. for plough or pail: but, if such cattle are sold before used, or if, being past labour, or barren, are fatted and sold, or are used in another parish, tithes are due; 3 Gwill. 1110. 2 Gwill. 558. but not if the owner kill and spend them in his house. 3 Gwill. 861. Agistment tithe is not due for saddle horses, or horses used for mere pleasure. 4 Gwill. 1571, 1582. Cattle feeding in large commons, where the bounds of parishes are not certainly known, shall pay tithes where the owner of them lives; and, if fed in several parishes, and they continue above a month in each parish, tithes shall be paid to the two parishes proportionably. 1 Roll. Abr. 635, 646, 647. Hardr. 35. Stat. 2 and 3 Edw. VI. c. sect.. 3. See Yearlings and Young Animals.
If a man depastures unprofitable cattle in his ground, he shalt pay tithes in proportion to the number of the cattle, and the value of the land, generally at the rate of 2s, in the pound, and the same proportion is to be observed if they are travelling cattle that come and go successively. Bunb. 1. Where the number or kind of cattle agisted could not be ascertained, a per centage in the pound on the rent was allowed. 2 Gwill. 660.
Cattle fed upon meadow ground after it is mowed, shall not pay tithes unless by custom. Bunb. 1.
Tithes for depasturing unprofitable cattle, ought to be paid by the: occupier, not by the agister. Bunb. 3
No tithes shall be paid for cattle depasturing that Are trespassers. 2 Gwill. 544.
Chalk and chalk-pits pay no tithes, nor do bricks, clay, coal, or mines, they being of the substance of the earth, and not annually increasing. 2 Inst. 651. Vide Gravel.
Cheese is a small tithe and pays tithe by custom, where tithe is not paid for the milk; but, if the milk pays a tithe, the cheese is discharged. 1 Roll. Abr. 651 See Milk.
Charcoal.—See Wood.
Cherries.—Wild Cherries are titheable. 2 Gwill. 530. 657.
Chickens are not titheable, if tithe is paid for the eggs. 1 Roll. Abr. 642.
Cinquefoil. The seed and stalk is to pay tithe as grass. 2 Gwill. 535.
Clay is not titheable. 3 Com. Dig. 500.
Clover.—Clover seed is a small tithe, and as such is due to the Vicar. Com. Rep. 633. Bunb. 344. S. C.
Clover Grass is titheable as hay. 2 Gwill. 830. Both the first and second crop are titheable. 2 Gwill. 584. To be set out in cocks. 4 Gwill. 1489.
Clover and Vetches cut green and given to cattle of husbandry, pay no tithes. 2 Gwill 679. But it was afterwards held that this depends upon the sufficiency of other seed. 4 Gwill. 1504.
Clover seed is not to pay tithe at the mill; but the tenth part of the stalk, &c. is to be set out in the field after it is severed from the ground. Id. 1615.
Coals pay no tithe of Common Right. 1 Rol. 637. 2 Inst. 651.
Coleseed, tho’ sown in fields in a large quantity, is a small tithe. 2 Gwill.533.
Colts pay tithes the same as calves. 1 Roll. Abr. 642.
Copper. pays no tithe of common right.
Conies are titheable only by custom, for those only that are sold. 2 Danv. Abr. 583.
Corn pays a predial tithe. It is tithed by the tenth cock, heap, or sheaf; which, if the owner do not set out, he may be sued under the stat, 2 and 3 Edw. IV. c. 13. And it must be set out before the farmer removes his nine parts. Bunb. 186. If corn be sold standing, the vendee shall pay the tithes; but, if sold after severance, the vendor must. Hard. 380, 381. 2 Gwill. 516. 537. If the proprietor of tithes leave them on the land more than a reasonable time after they are set out, and after he has notice thereof, the owner of the land cannot justify turning in his cattle upon the land to de-pasture it, in the usual course of husbandry, whereby the cattle consume the tithes; but his remedy is either to bring an action, or to distrain the tithes, as doing damage. 2 Vent. 48. 1 Sid. 283. L. Raym. 189. 8 T. Rep. 72. No tithes are due of stubbles of corn or fern, tho’ mowed and used as fodder or manure. 4 Gwill. 1438. 2 Inst. 261, 652. 1 Roll. Abr. 640. pl. 14. There are various opinions, whether rakings of corn involuntarily scattered, are titheable; but the better opinion seems to be, that such rakings are not. See I Roll. Abr. 645. pl. 11. Cro. Car. 278, 475. Freem. 335. Moor, 278. 12 Mod. 235. 2 Gwill. 477. But if left covinously, and are of great value, they are 2 Gwill. 447.
Deer are not titheable, being feræ naturæ, wild. by nature; though in parks, &c. they pay tithe by custom. Nor fawns. 2 Inst. 651.
Doves, if kept in a dove-house, and not spent in the owner’s house, but sold, are titheable. 1 Vent. 6. 12 Mod. 77. 1 Roll. Abr. 644., Z. pl. 5, 6.
Ducks. Tithes are not payable for a decoy of wild ducks, or other fowl taken in a decoy; nor for the eggs of tame ducks kept for the service of a decoy. 2 Gwill. 531.
Eggs pay tythes, where tithes are not paid for the young, except such as are wild by nature. 1 Roll. Abr. 636, 642. 2 P. Wins. 463. But no tithes are due of the eggs or young of any birds or fowls, which are kept only for pleasure. Bro. Dism. pl. 20.
Fallow Ground is not titheable for pasture in that year in which it lies fallow, unless it remains beyond the course of husbandry. 1 Roll. Abr. 642. 3 Com.. Dig. 491.
Fenns. drained and cultivated, pay tithes. 4 Roll. Rep. 354. They are not within the Stat. Edw. Vide barren land.
Feræ Naturæ.—Creatures of this kind are not titheable. 2 Roll. 458. 2 Inst. 651.
Fish, taken in the sea, or common or open rivers, or in a pond are titheable only by custom; even though they are in those rivers taken by one who has a several fishery; and the tithe is to be paid in money, and not the tenth fish; but fish in ponds and rivers, enclosed, ought to be set out as a tithe in kind. 2 Danu. Abr. 583, 4. Noy. 108. 1 Roll. Abr. 636. Cro. Cur. 332. 1 Lev. 179. 2 Gwill. 616.
Flags are not titheable. 2 Inst. 651.
Flax.—Every acre of hemp or flax sown shall pay yearly 5s. for tithe, and so proportionally, and no more. Stat. 11 and 12 W. III. c.16. s. 81. 1 G. 2. c. 26. Flax is a small tithe. ilk M. S. Rep. 72. b. Warton v. Lisle. Trin. 5. W. and M.
Forest-lands shall pay no tithes while in the hands of the king; but, in the hands of a subject they shall. 1 Roll. Abr. 655. 3 Cro. 94. 2. Gwill. 486, 501.
Fowls, as hens, geese, ducks, and turkeys, are to pay tithes in the eggs or the young, according to custom, but not both. 2. P. Wms. 463. The rule extends to all birds and fowls, except such as are wild by nature: Moor, 599. 1 Roll. Abr. 642, pl. 6. 2 P. Wms. 563. Or are kept only for pleasure. Bro. Dism. pl. 20. Of geese, ducks and swans, the tithes are usually paid in the young, if custom does not otherwise determine, and of turkeys and hens in the eggs. 3 Com. Dig. 497.
Fruit, as apples, pears, plumbs, cherries, &c. pay tithes in kind when gathered; and ought to be set out according to the statute. 2 Inst. 621. And (where custom requires it) notice shall be given to the Vicar when gathered; and, if it be spoiled by reason of his not fetching it away in due time, be must bear the loss. Cherries in hedgerow in Buckinghamshire are titheable. Bunb. 283.
Fruit-trees, cut down and sold, are not titheable, if they have paid tithe-fruit that year before cut. 2 Inst. 621. But tithe shall be paid for fruit-trees sold out of a nursery, tho’ the fruit pay tithes. 2 Gwill. 515.
Furzes, if sold, pay tithe; not if used for fuel in the house, or to make pens for sheep, or fences, &c. Wood’s Inst. 166. But furze cut in one parish is not exempted from tithe by being employed for the purposes of husbandry in another parish. 3. Gwill. 1028.
Gardens are titheable as lands, and therefore tithes, in kind are due for all herbs, plants, and seeds, sown in them; but money is generally paid by custom or agreement.
Grain.—If a Parson has tithes of all grain, he shall have the tithes of seed of clover, tho’ the Vicar has the tithes of the clover grass. Skin. 231.
Grass mown is titheable by payment of the tenth cock, or according to custom. The Parson may let it lie till made into hay. If grass be sold standing, the buyer pays the tithe; if sold after cut, the seller. I Str. 245. 1 Roll. Abr. 644, 5. 2 Gwill. 472. Tithe of hay is to be paid, although beasts of the plough or pail, or sheep, are to be foddered with such hay. Cro. Jac. 47. 1 Roll. Abr. 650. pl. 12 Mod. 497. But no tithe is due of hay grown upon the headlands of corn fields, provided that such headlands are not wider than is sufficient to turn the horses and plough upon. 1 Roll. Abr. 646. pl. 19. It is laid down in one old case, that, if a man cuts down grass, and, while it is in the swathes, carries it away and gives it to his plough cattle, not having sufficient sustenance for them otherwise, no tithe is due. 1 Roll. Abr. 645. 2 Anstr. 481. In one case the Court of Exchequer seemed to be of opinion, that no tithe is due of vetches or clover, cut green, and given to cattle in husbandry. Bunb. 279. But, in another case, it was afterwards held, that the right to tithe of hay accrues upon mowing the grass; and that the subsequent application of it, while in grass, or when made into hay, shall not, although beasts of the plough or pail are fed with it, take away the right. 12 Mod. 498—See Aftermath, ante.
Gravel pays no tithe of common right. Nor of common right are tithes payable for things parcel of the freehold: as quarries of stone. Nor coals, tin, chalk, lead, copper or other ore, clay, turf used for fire, flags, marle. 3 Com. Dig. 500. But a man may prescribe for tithes of some things for which no tithes are due of common right. 2 Inst. 664.
Hay is a predial great tithe. [See Grass.] The tenth cock, not the tenth swathe, is to be set out and paid, after made into hay, by the custom of most places; and by custom generally, but not of common right, the parishioners shall make the grass cocks into hay for the Parson’s tithe; but, if they are not obliged to make the tithe into hay, they may leave it in cocks, and the Parson must make it; for which purpose he may come on the ground, &c. 1 Roll. Abr. 643, 647, 650. 2 P. Wins. 523. 3 Esp. Rep. 31.
Headlands.—See Grass.
Hemp.—See Flax.
Herbage—-See Agistment.
Herbs in gardens are small tithes. 3 Com. Dig. 49.
Honey is a small tithe.—See Bees.
Hops are a small tithe; titheable after they are gathered from the bind, and should be measured in baskets before being dried; and every tenth basket set out for the tithes. Walton v. Tryon, 5 Bro. P. C. 99. And it seems that a custom to set out the tithes by the tenth row if equal, and by the tenth hill, where the rows are unequal, leaving the binds uncut, and the poles standing, cannot be supported. 7 T. Rep. 86. Where the Parson hath tithe of hops, it shall be looked upon as usage, and that at the time of the endowment they were looked upon as great tithes, and that the Vicar never was endowed thereof. MS. Rep. 72. Wharton v. Lisle per Eyre, Trin. 5. W. & M.
Horses. See Agistment.
Hot-houses.—Hil. 42 G. 3. decreed in Exchequer that fruits, &c. forced in hot-houses are not titheable.
Houses for dwelling are not properly titheable. A modus may be paid for houses in lieu of tithes of the land upon which they are built; and many cities and boroughs have a custom to pay a modus for their houses. 11 Rep. 16. 5 Inst. 659. 3 Gwill. 630.
Lambs and Kids are small tithes, and pay a tithe as calves; but, if lambs are weaned in one parish, and do not tarry there thirty days, no tithe is due to the Parson of that place. If there be a custom that the parishioners, having six lambs or under, shall pay so much for every lamb; and, if he have above that number, then to pay the seventh, it is good. 3 Cro. 403. Tithe of lambs is not due of common right unless there be ten. 1 L. Raym. 677. The usual time of tithing lambs is when they can live without the dam, and when the occupier weans his own lambs and not before. Bunb. 133. 2 Gwill. 530. The first of August and not the first of May, is the proper time to set forth tithe Lambs. 2 Gwill. 630.
Lead may pay tithes by custom, as it does in some counties; but a doth not without it. 2 Inst.. 651, Het. 14.
Lime and Limekilns are titheable only by custom. 1 Roll. 637, 642.
Lops and Tops.—Vide Trees.
Madder is now titheable in kind. It was liable for twenty-eight years, only to a modus of 5s. but the statutes for that purpose are now expired. Stat. 31 Geo. II. c. 12. 5 Geo. III. c. 2.
Marl is not titheable of Common Right. 2 Inst. 651.
Mast of oak and beech pays tithes, in the same circumstances as acorns..
Milk is a small tithe, and is titheable where no tithes are paid for cheese all the year round, except when custom over-rules; and it is payable by every tenth meal’s milk, and not the tenth of every meal’s milk. 2 Gwill. 527, 618, 826. And not the fifth meal of the evening, but the whole milk of the tenth day. 3 Gwill. 1101, 1110, 1200. And it was formerly held, that it was to be brought to the house of the Parson, &c. in which particular this tithe differs from all others, which must be fetched by the receiver. But this is only where there is a special custom; and it seems now decided, that the tithe of milk is by setting out every tenth morning and evening’s meal in clean vessels belonging to the owner of the milk, and leaving the same therein till the vessels are again wanted by the owner; and, if not fetched away by the Parson. prior to that time, the owner is at liberty to throw it on the ground; and in the intermediate time the owner is not answerable for any accident that may happen to it. Ambler 72. In some places they pay tithe-cheese for milk; and in others some small rate, according to custom.. Cro. Eliz. 609. 2. Danv. Abrid. 596.
Mills.—Tithes are payable of all mills
not as ancient as
9 Ed. 2. but such ancient mills are discharged by articuli cleri, c. 5.
1 Gwill. 130 in not. The court will presume mills to be ancient mills, if there
be no evidence of their corn having paid tithe. 1 Gwill. 644. A fulling mill, paper mill, iron mill, tin mill, &c. pay
no tithe, because they are things invented for the ease of man’s labor. 1
Gwill. 354, 357. Corn ground at a newly erected mill for the purpose
of distillation, by a person not resident in the parish where the mill is worked,
is not
Mines.—See Chalk.
Nurseries of trees, &c. shall pay tithes, if the owner digs them up and makes profit of them by selling them. 2 Danu. Abrid. 583. 1 Co. 32d. 2 Jon. 416. Gadb. 491. 2 Gwill. 504, 515. And if he pulls them up himself and sells them, he shall pay the tithe; but if he sells them altogether to another, the buyer shall pay the tithe. Hardres. 380. and if some yield fruit and others not, those which yield fruit, shall not exempt those which yield none, when they are all sold together. 2 Gwill. 515.
Oak-trees.—See Trees.
Orchards pay tithes, both for the fruit they produce, and the grass or grain, if any be sown or cut therein. 2 Inst. 652.
Ore. Tithe ore is not due, but by particular custom. 2 Gwill. 535.
Parks are titheable by custom for the deer and herbage; and, when disparked and converted into tillage, they shall pay tithes in kind. The tithes of parks may be part certain and part casual; and 2s. a year, and the third shoulder of every deer, hath been paid as tithe for a park. 1 Roll: Rep. 176. Hob. 37, 40.
Partridges and Pheasants, as they are they
Pease, if gathered to sell or feed hogs, pay tithes; but not green pease spent in the house. I Roll. Abr. 647. Tithes of beans and pease whether sown in the fields or gardens, are great tithes, and do not fall under the denomination of tithes of gardens, technically called, decima hortorum. 5 Bro. P. C. 493. The tithes of pease must be set out as soon as they come into proper divisions or parcels, so as to let the tenth be seen and judged of, and husbanded, 4 Gwill. 1504.
Pigeons pay tithes when sold; and this holds good if they lodge in holes about the house, as well as in a dove-house; and, if spent in the house, they may be titheable by custom, but not of common; 2 Danv. Abrid. 583, 1 Rol. 642. l. 43. The Vicar. is entitled to the tenth of the value if sold.
Pigs are titheable as calves. Ibid. And the tithe belongs to the Parson where the sow is kept, tho’ she farrows in another parish. 2 Gwill. 607.
Pollards.—See Trees,
Potatoes.—These being in their nature a small tithe, sowing of them in greater quantities makes no alteration. 2 Atk. 364. Com. Rep. 639. They must be tithed on the spot before they are removed. 3 Gwill. 1110.
Quarries of Stone, &c. are not subject to pay tithes, because they are part of the inheritance; and tithes ought to be collateral to the land, and distinct from it. 1 Roll. Abr. 644.
Rabbits.—See Conies.
Rakings of Corn.—See Corn.
Saffron pays. a predial and small tithe. 1 Cro. 467.
Salt is not titheable but by custom only. 1 Bunb. 10.
Seeds of clover, rye grass, saintfoin, and other grass seeds, herbs, hemp, &c., are small tithes. 3 Gwill. 926. But tithes shall not be paid of seeds of herbs and plants where it has been paid of the herbs or plants themselves; nor è contra. 3 Com. Dig. 498. As to the seed of Clover see Grain.
Sheep.—A tithe is paid for sheep, lambs, and wool; and therefore they pay no tithe for their feeding. [See Agistment.] If sheep are in the parish all the year, they are to pay tithe-wool to the Parson; but, if removed from one parish to another, (without fraud,) the Parson of each parish is to have tithe pro rata, where they remain thirty days in a parish; and, if they are fed in one parish, and brought into another to be shorn, the same tithing is to be observed. 1 Roll. Abr. 642, 647. 3 Cro. 237. It seems now the rule is, that tithe of wool shall be paid where the sheep are shorn, and agistment-tithes in other parishes; where they have been depastured. Shaw’s Law of Tithes. The time for paying tithes of sheep is at shearing; the tithe of wool is satisfaction for pasturage for the year past. Ambl. 149. If after shearing the occupier depastures sheep, and sell them before shearing time comes again, he must pay tithe for such pasturage. Ibid.
Stone in quarries pay no tithe of common right. 1 Roll. 637. l. 5. Cro. El. 277. 2 Inst. 651, 3 Seld. 1201. 2 Lev. 79.
Stubble.—Corn.
Tares, Vetches, Clover, &c. are titheable; but, if they are
cut down green, and given to, the cattle of the plough, where there is not a sufficient
pasture in the parish, no tithe shall be paid for
Teazles are small tithes. 2 Gwill. 564.
Tiles are no yearly increase, and not titheable. 2 Inst. 651. 2 Mod. 77.
Tin pays no tithe of common right. 1 Rol. 637. 1. 12. 2 Inst. 651.
Tobacco is a small tithe.,
Trees.—-Wood is, de jure
a great tithe. Timber-trees,
such as oaks, ashes, and elms, and in some places beech, &c. above the age of twenty
years, were discharged of tithes by the common law, before the Stat. 45
Edw. III. c. 3; and the reason is, because such trees are employed to build houses;
and houses, when built, are not only fixed to, but part of, the freehold. Loppings
of timber trees, which timber trees are above twenty years pay no tithes, for,
the branch is privileged as well as the body of the tree, although used for firing;
and the roots .\of such trees are exempted as parcel of the inheritance. Trees,
cut for plough-bote, cart-bote, &c. shall not pay tithes, although they are no timber;
but all trees, not fit for timber, and not put to those uses, pay tithes. 1
Roll. Abr. 650. Cro. Eliz. 447, 499. Coppice-wood, which has been
usually felled for firiug, of whatever age it is, is always titheable. Sid.
300. 1 Lev. 189. And all germins, which spring from the roots of trees
that have been felled, are titheable. Walton v. Tryon,. Mich. 25 Geo. II.
Godb. 175. Bro. Dism. pl. 14. 11 Rep. 4. when the wood of
coppice is felled, some trees growing therein, which are of the age of twenty years,
and have never been lopped, are lopped, and these loppings are promiscuously bound
up in faggots with the coppice-wood, tithe must be
Turfs used for fuel are part of the soil, and tithe-free. 2 Inst. 651. 1 Rol. 636. l. 10.
Turnips are reckoned among predial small tithes, and the tithes of them shall be paid as often as they are sowed, though twice or more on the same land and in the same year. So if eaten off the land by sheep or barren cattle. Bunb. 10. So if drawn and eaten by milch cows or sheep. Bunb. 314. 2 Gwill. 593, 606. And tho’ the sheep paid tithe of wool. 2 Gwill. 665. The tithe is also payable by the occupier of the land, and not by the owner of the beasts. 3 Gwill. 859. The tithe of turnips must be set out in heaps, where the quantity is sufficient to admit it. Id. 945. Tithe is due of turnips, tho’ sown after corn is cleared, and fed with sheep and barren cattle, and tythes of lambs and wool had been before rendered. Bunb. 314.
Turkeys.—See Fowls.
Underwood is titheable, though the tithe is not of annual payment; and is set out, while standing, by the tenth acre, pole, or perch; or, when cut down, by the tenth faggot or billet, as custom directs; and, if he who fells the wood does not set out the tithe, he is liable to treble damages by Stat. 2 and 3 Edw. VI. c. 13. But, if the underwood is used for firing in a house of husbandry, or to burn brick to repair the house, or for hedging and fencing the lands in the same parish, it may be discharged from tithe. 2 Inst. 642, 643, 652. Hob. 250. Danv. Abr. 597.
Warrens.—See Conies.
Waste Ground, whereon cattle feed, is liable to the payment of tithes. 2 Danv. Abrid.—Vide Barren Land.
Wax is a small tithe.—See Honey.
Wheat, is by the common law titheable in the sheaf. 3 Gwill. 966. 4 Gwill. 1504.
Woad, growing in the nature of a herb, is a predial small tithe. Hutt. 77. Cro. Car. 28.
Wood [See Trees] is generally esteemed to be a great tithe. If wood-grounds have likewise timber-trees growing on them, and consist for the most part of such trees, the timber-trees shall privilege the other wood; but, if the wood is the greatest part, then it must pay tithes for the whole. 13 Rep. 13. If wood be cut to make hop-poles, where the Parson hath tithe-hops, no tithe shall be paid. Hughes’ Abr. 689. Banb. 20, 73. Wood ought to be bound up by the occupier, before the tithe is set out. 2 Gwill. 581. Tithe wood must be set out by the owner or occupier upon the land, at the time of falling. 2 Gwill. 830.—Vide Trees.
Wool, is a mixed small tithe, paid when clipped; one fleece in
ten, or, in some places, one in seven, is given to the Parson. If there is under
10 pounds of wool at the shearing, a reasonable consideration shall be paid, because
the tithes are due of common right; and, if less than 10 fleeces, they shall be
divided into 10 parts, or an allowance be otherwise made. All sheep killed, and
sheep which die, pay tithe-wool; and neck-wool, cut off for the benefit of the
wool, but not if it is to preserve the sheep from vermin, brambles, &c. 1 Roll.
Abr. 645. pl. 14, 16. Also the wool of lambs shorn at Midsummer, though tithe
was paid for the lambs
Wax is a small tithe. 2 Inst. 649.
Yearlings. Tithes shall be paid for the agistment of yearlings, being a new increase. 2 Gwill. 629.
Young of animals are a small tithe, and no tithe is due for their pasture, where reared to be used for husbandry or the pail. Cro. Eliz. 476. But if such young beasts are sold before they come to such perfection as to be fit for husbandry, or to give milk, tithe is payable. Hetl. 86.
ABSENTEES, bound by majority at vestry, 32., 33, 49.
Account to be taken of Church Goods, 94.
Accounts, when to be rendered, 87, 88, and in not.
— disputes about, 88.
— exceptions to, 89.
— vouchers in support of, 89.
— as to Church Goods, 92, 94.
— of money once passed, cannot be controverted, except for fraud, 92.
— not so as to goods, 93.
— Spiritual Court, no jurisdiction to settle, 88, in not.
— may compel them to account, 94, in not.
— refusing to account, 92, in not.
— fraud in, 92.
— how allowed, 92, in not.
Actions, for the goods of the Church, in whose name to be brought, 78, 83, 84, 85.
— in what cases they will lie at the Church-warden’s suit, and where not. ibid, and 79, in not.
— limitation of, 37.
Additions, in the Church, by whose consent to be made, 31-36.
— in the Chancel, 36.
Agreements, made by Church-wardens, 29, and in not.
Arrests in Church or Church-Yard, 16, in not.
Aisle of the Church, 28, 68, in not.
— burial in, 76.
Altar Rails, 36, 38, 39.
Appeal against Church Rate, 57, 58, in not.
Articles, book of 1, in not.
Arms, coats of, 66.
Atchievements, 66, 7.
Behaviour at Church, 7, and in not. 27.
Bells, of the Church, 18, 27, 46.
— ringing, 98.
Benefice, sequestration of, 99, 101.
Bishop, the judge a what should be in the Church, 67.
— his power as to pews, 71.
Boundaries, of parishes, 47, 48.
Burial place, 75.
— in the Church, ibid. and 24, in not.
— in the aisle, ibid. and 76.
Burglary in the Church, 86.
Burying in the Church, 20, in not.
Chancel, 36, 70, in not. 74.
Chancery, how far it will aid the ecclesiastical jurisdiction, 47
Chapel of East, 23, in notis, and 58 in notis.
Chimes, 27, 36.
Chapelry, inhabitants of, liable to repairs of Mother Church, 2
Choice of Church-wardens, in whom, 39.
Churches, origin of, 1 in not. what 1 not.
— fabrick of, 28.
— freehold of the, 20.
— attendance at, 4, 10.
— behaviour at, 7, et in not.
— falling down, 26, in not.
— pulling down, 26, in not.
— profaning, 16.
— additions to, 31, 36.
— repairs of, 23, &c.
— goods of 85, 91.
— utensils of, 26 and 83.
— ornaments of, 27, 32, 34, 66.
— nuisance in, 36.
— trespasses in or against, 82, 83.
— damage done to, 82, &c.
— furniture of, damaged or removed, 84.
— legacies to, 85.
— vacancy of, 100.
— windows of; 67.
— seats, 68.
— lands of, 79, 82.
— what a Parish Church, 1, in not. and 59, in not.
— how privileged, 16, and in not.
— way, 24, 25.
— new ones in London, 41.
— consolidated, 60.
— by statute; 60.
— by common law, ibid.
— reasons for, 62.
— who may consolidate, 61.
Churches, union of, 60. Vide Consolidation of Churches.
Church-wardens, what, 1.
Church-wardens, who they must be, 43.
— exemptions, 41, 42, 43.
— how and when chosen 39, and in not 40.
— de facto, 83, in not.
— their oath, 45.
— refusing to swear, 45, in not.
— refusing to swear them, 45
— have no authority till sworn, 44.
— are lay persons, 1, in not.
— their duty as to civil governments, 194; in not.
— old ones remain ’till new ones chosen, 44, and. in not.
— Deputy, 45.
— indiscretion of, 30.
— punishment of, 18, in not. 44, in not. and 89 to 94, and in not.
— their indemnity, 19, 30.
— removal, 18, in not.
— how far a corporation, 29, 78, 82, 83.
— are overseers of the poor, 19.
— commitment of, 20, in not.
— accounting, 87, &c. to 94.
— action by, 78, and in not. 84, and in not. 85.
— action against, 18.
— fraud by, 90, 92, 93.
— in London, 82.
Church-ways, 24, 25.
Church-yard, 21, 24, 25, 26, 28, 29, 91, 36,
— soil of, 20, 26.
— pasture of, 26.
— private door into, 24.
— fences of, 28, and in not.
— trees of, 26.
— fairs and markets not to be kept in, 16.
Clergymen, their duty, 15.
— abusing, 17.
— their authority, 20, in not.
Clock, 36.
Coats of arms, 66.
Communion table, 36, 39.
Consent, of the parishioners, 32, 33, 38, 49.
Consolidation of Churches, 60.
— by statute, ibid.
— by common law, 61.
— reasons for, 62.
Consolidation of Churches, who may consolidate, 61.
Curate, 16.
— perpetual, 59, in not.
— Custom, as to choice of Church-wardens, 39, 40.
— as to collecting rates, 49, in not.
— how far it affects the affairs of the Church, 34 in not. and 41.
— as to making rates, 48, 59.
— of London, 21, 71, 82
Damages, to the Church, &c. 83-85.
Demeanour at Church, 9.
Deputy Church-warden, 45
Dial, 36.
Disbursements, by Church-wardens, 88, &c.
Disturbance in Churches, 7.
Dissenters, 5, 11.
Dissenting Ministers, 12.
— keeping school, 12.
Drunkenness, presentable, 2, in not.
Evidence of parishioners, 93, in not.
Exceptions to rate; 47, 57.
Excommunicated persons, 8.
Exemptions, from serving the office of Church-wardens, 41, 42, 43, and in not.
Exemptions from Rates, 58
Expenditures, by Churchwardens, 89.
Fabric, of the Church and Church-yard, 26-30.
Faculty, for pews, &c. 68-72.
— for ornaments, 34, in not.
— may be transferred with the messuage, 79 in not.
— for exchanging pews, 70, in not.
Fame, common, a caution concerning, 2, in not.
Fences, of the Church-yard, 28.
Fixtures, to the Church; 27, 28.
Frauds, by Church-wardens, 30, 90-93.
— Evidences of, 90, 91.
Furniture of the Church, damaged or removed, 83-85.
Gates of the Church-ways, 24.
Gallery, new, 34.
Glebes out of the parish, 50.
— exempt from rates, 50, 58.
Glebes, terriers of, 94.
Goods of the Church, 79, 82, 83, 85, 86, 91.
Hamlet, 59.
Hat, Church-wardens, may take it off in Church, 7, in not.
Hatchments, see Atchievements.
Impropriator, how far liable to rates, 50, in not.
Indemnity of Church-wardens, 19, 30.
Inventory of utensils, 27.
Isle of the Church, 28, 68.
Keys, of Church Chests, 91, 96, 97.
— indiscretion of Church-wardens, 30.
Lands, given to the use of the Church, 79, &c.
— to what such gifts extend, 81.
Lease of the Church yard, 20, in not.
Legacies, to the Church, 85.
Licence of the Ordinary, necessary for additions in the Church, 37, 66.
— of school-masters, 13.
Light house, not liable to rates, 64, in not.
Limitation, as to restoring things omitted or let down, 37.
— of actions, 37.
London, Customs of, vide customs.
Lord’s-day, 9, 10, 11.
Lutherans, German, within the toleration act, 5, in not.
Majority of votes, binds absentees, 32, 33.
Mandamus, in what cases it will lie, 40, in not. and 44, 48, in not.
—return of, ibid.
Memorandums. of resolutions at vestry, 33, and 49, in not.
Ministers, their duty, 2, 16.
— abusing, 17.
— may present, if Church-wardens neglect, 3, in not.
Minutes, of vestry resolutions, 33, 49, and in not.
Monuments, 66.
Mother-church, 58, 59, in notis.
Notice, of Vestries, how given, 31 and in not.
Oath of Church-wardens, 45.
— its obligation, ibid.
— caution as to, 90, 91.
Ordinary, see Bishop.
Organ, 34, in not.
Ornaments of the Church, 27, in not. 31, in not. 34, in not. 66.
— facility for, 34, in not.
— superstitious, 66.
Out-setter. cannot be a Church-warden, 43.
— how far chargeable to rates, 54.
Parish, what, 1, in not.
— in several counties, 47, 76.
Pasture of the Church-yard, 26.
Pennons, 67.
Perambulation of the parish, 47, 48.
Pews, 67, &c.
— by prescription, 68, 72.
— by faculty, 71.
— who has the ordering them, 71.
— in London, 75,
— how to be built, 72, 73.
— by whom to be repaired, 32, 72.
— to whom materials of, belong, 73.
— in the Chancel, 74, and in not.
— possession of, how far a title, 69, 70, in not.
— disturbance of enjoyment, 72, and in not.
Pictures, superstitious, 66.
Popish utensils, 27.
Preaching, 14, 15.
Presentments, 2.
— when to be made, 87.
— Register’s charge for, 3, in not.
— what to be presented, 14, 15.
Prescription, what, 37, 41.
— to be exempt from rates, 58.
— pews claimed by, 68-72.
Prohibition against suits in the spiritual court, 70, in not. 88, in not. 92, in not.
Quakers, 57, and in not.
Quest-men, what, 45, in not.
Rails to the Communion table, 36, 39.
Rate, Church-wardens, 46.
— how made, 48, 49, and in not.
— assessed, 53, 57.
— recovered, 47, and in not.
— not good to reimburse, 38, in not.
Rate, neglecting to make, 51.
— collect, 51, 52.
— customs relating to, 48, 59.
— exceptions to, 47, 57.
— exemptions, 58.
— a personal tax, 53.
— who liable, 57.
— out-setters, how far liable to, 34.
— Parson or Vicar, how far liable to, 50:
— impropriator, 50, in not.
— paupers excused from, 51.
— prescription of exemption, 58.
— arrears of, 52.
— how far not good, 58.
Receipts, for money laid out where necessary, 88.
Recusants presentabie, 6, in notis.
Register books, 95, &c.
— copy of, for the Bishop’s Registry, 97.
Repairs, of Church and Church-yard, 23, &c.
— how anciently done, 22.
— of pews, 72, in not.
Resolutions of vestrys, 33, and in not. and 49 in not.
Restoring things omitted or neglected, 36, 37.
Robbery of the Church, 86, and in not.
Schedule of utensils, 27.
School-masters, 12, 13.
Seats in the Church, see pews.
— if fixed, a part of the fabric, 30.
— repair of, 67.
— regulation of, 67.
Select Vestries, 32, in not. 48, in not.
Stiles, of Church-ways, 24, 25.
Sequestration of benefice, 99, 101.
Sequestrators, their duty, 99.
Sidesmen, 45, 102.
Superstitious decorations, 66.
Suspension, 102.
Striking in Church or Church-yard, 8, in not.
Synods, 104.
Soil of the Church-yard, 20, 26.
Spiritual court, its jurisdiction as to Church-wardens, 94.
Sunday, 9, 10, 11.
Terrier, 94.
Tipling, presentable, 2, in not.
Tithes, exempt from rates, 50, 58.
Toleration act, 4, &c. and in not.
Trees, growing in the Church-yard, 26.
Trespasses against, or in the Church, 83.
Vacancy of the Church, 99.
Vestries, how called, 31.
— who may vote at, 32, 49.
— resolutions of, 33, 49.
— adjournment of, by whom, 39, in not.
— Select, 32, in not. 48, in not.
— Vicar, perpetual, 24, in not.
Visitation, 3, in not.
Votes at Vestry, whose good, 32, 48, in not.
— what binding, 32, 49, and in not.
Vouchers, for money laid out, 88.
Union of Churches, 60.
Utensils of Churches, 26, &c. 83.
Way, Church, 24, 25.
— how claimed, 24.
Windows, of Churches, painted, 67.
Worship, divine, attendance at, 4, 10.
FINIS
Printed by J. & E. Hodson, Cross-Street, Hatton Garden.
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