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         Title: Directions to Church-Wardens for the Faithful Discharge of Their
                Duty.
    Creator(s): Prideaux, Humphrey (1648-1724)
        Rights: Public Domain
 CCEL Subjects: All
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DIRECTIONS

    TO

                                 CHURCH-WARDENS

    FOR THE

FAITHFUL DISCHARGE OF THEIR DUTY.
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BY HUMPHREY PRIDEAUX,

    Head Arch-Deacon of Suffolk.
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    WITH

  NOTES AND OBSERVATIONS, AND A COPIOUS INDEX.

  NEW EDITION, BEING THE SEVENTH.

TO WHICH IS ADDED,

A COMPENDIUM OF THE LAW OF TITHES,

ALPHABETICALLY ARRANGED.
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  London.

  PRINTED FOR J. WALKER, PATERNOSTER-ROW;

  By J. & E. Hodson, Cross-Street, Hatton-Garden.
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1805.
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   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.
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  TO THE

REVEREND THE CLERGY

  OF THE

ARCH-DEACONRY OF SUFFOLK.

   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 things as are
   amiss in your respective parishes, and also in repairing your Churches,
   I would then hope that sin might be more effectually corrected, and
   Churches so repaired, that the worship of God might be performed in
   them with that decency which is fitting, without making this matter a
   fire-brand of contention among you (as it too often happens) to the
   wasting of that Christian charity among your people, which it is one of
   the main duties of your Ministry to support and maintain among them. I
   pray God bless us all in our endeavours to promote his honour and glory
   in that holy function which he hath called us to;

   And I am,

   Your affectionate Brother and Servant,

   HUMPHREY PRIDEAUX.
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DIRECTIONS

    TO

                              CHURCH-WARDENS, &c.

   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 [1] .

   For the better information of Church-wardens as to those particulars,
   which they are to present, [2] articles are to be given them extracted
   out of the laws of the Church, according to which they are to make
   their presentments, Can. 119.

   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 [3] ; so that if there be a common fame in the parish
   of any one, that he lives incontinently, is a common swearer, or in any
   other particular contained in the articles, is a breaker of the laws of
   the Church, the Churchwardens are bound to present him at the next
   visitation, that enquiry may be made thereinto; and they are guilty of
   the breach of their oath, whenever they omit it, Can. 113, 117.

   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 [4] .

   It is the duty of Ministers to admonish Churchwardens of these
   particulars, and therefore they would do well, some time before every
   visitation; to cause them to read over their Articles in their
   presence, and instruct them in the meaning of them; and direct them how
   to make their presentments thereon, so as they may best discharge their
   duty to the honour of God, the good of the Church, and the safety of
   their own souls, in avoiding the heinous sin of perjury in the breach
   of their oath, which otherwise they may become guilty of, Can. 26.

   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 malicious persons are too often apt to raise of their neighbours,
   into formal accusations against them; but take heed that they present
   no other ill fame of any one, but such only, as there is that just
   ground for, as may make it credited and believed by honest and good
   men.

   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, it is our desire, [5]
   that they should be vexatious to no one herein.

   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 [6] , which are by an Act of Parliament made in the
   first year of King William and Queen Mary [7] appointed to be taken
   instead of the oaths of allegiance and supremacy; and also have made
   and subscribed the declaration mentioned in a statute made in the
   thirtieth year of King Charles II. entituled, An Act to prevent Papists
   from sitting in either House of Parliament. Or else, (if they be of
   that sect of Dissenters, who scruple and refuse to take any oath) have
   produced two witnesses to testify upon oath, that they believe them to
   be Protestant Dissenters; or a certificate witnessing the same under
   the hands of four Protestants, who are conformable to the Church of
   England; or have taken the oaths and subscribed the declaration
   aforesaid; and besides the said two witnesses, or certificate, have
   also produced another certificate under the hands and seals of six or
   more of the congregation to which they belong, owning them to be of
   them; and on their doing of either of them in manner as aforesaid, have
   (being thereto required) at the Quarter-Sessions made the declaration
   of fidelity, and subscribed the form and profession of the Christian
   Belief, which are in the said Act of Toleration mentioned and required
   to be made and subscribed by them in this case. For if any shall
   without qualifying themselves in this manner, as aforesaid, resort to
   any assembly or meeting for divine worship dissenting from the Church
   of England, they can have no benefit of the said act of Toleration, or
   of any of the indulgences granted by it, but are liable to all the
   pains and penalties of law, not only for being absent from Church, but
   also for being present at the said dissenting meeting, in the same
   manner, as if the said act had never been made, and are by the
   Church-wardens to be presented for the same: And the same is to be
   said, if the said assembly or meeting shall be held in an house not
   legally registered and allowed for it; or if they shall meet there with
   the doors locked, barred, or bolted upon them. For in both these cases,
   as well as in the former, all that are present at any of the said
   assemblies or meetings dissenting from the Church of England, are
   excluded by the said Act of Toleration from receiving the benefit of
   it, and therefore are liable to be prosecuted thereupon, and must be
   presented by the Church-wardens in order to it, in the same manner as
   if the said act had never been made, (1 W. & M. c. 18.) And it is to be
   here observed, That if any dissenting Minister, not being in orders
   according to the Church of England, shall administer the Sacrament of
   the Lord's Supper in an unlicensed house, or without qualifying himself
   as the said Act of Toleration requires, he is not within the benefit of
   the said Act, and consequently is liable to the penalty of 100l.
   forfeiture for every time he shall so administer the said Sacrament, 13
   & 14 Car. 2. cap. 4.

   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 [8] , or in any other indecent or
   irreverent manner, (1 Eliz. c. 2. Sect. 14. & Can. 18.) That none
   contend or quarrel about place, or upon any other occasion make any
   broil or brawling there, 5to & 6to Edw. 6. c. 4.) [9] That no idle
   person abide in the Church-porch, or Church-yard during divine service
   or sermon, but that they either come in, or depart, (Can. 19.) That no
   excommunicated person come into the Church, (Can. 85.) or any other
   disturbance or indecent behaviour be there permitted; but that every
   thing be kept in peace, and quiet, and due order, and all behave
   themselves with that decency, reverence, and devotion, which is
   suitable to the duty they are then upon, and none depart out of the
   Church, unless upon a necessary occasion, till the divine service and
   sermon, or other service of God, which they are then upon, be fully
   ended, (Can. 18.) And if any boys shall there behave themselves rudely
   and disorderly, or shall make any noise, or other disturbance, the said
   Church-wardens may chastise them for it; and if any person shall
   irreverently keep his hat on, they may take off the same (Hall versus
   Flanner, 2 Keble, p. 124. 1 Sander. 13. 1 Sidersin, p. 301.) And for
   this, or any other irreverend, or disorderly behaviour, present them at
   the next visitation, and also bring them before a Justice of the Peace,
   and make them pay to the use of the poor of the parish, the sum of one
   shilling for every time they shall so offend herein, according to the
   Statute, (1 Eliz. c. 2. Sect. 14.) which enjoineth, That every person
   shall resort to their Parish-Church or Chapel upon every Sunday, and
   other days ordained to be kept holy, and then and there abide orderly
   and soberly, during the time of Common- Prayer, Preaching, or other
   Service, of God there to be used, and ministred, upon pain of
   punishment by the censures of the Church, and also upon pain, that
   every person so offending, shall forfeit for every such, offence twelve
   pence, to be levied by the Church-wardens of the parish where such
   offence shall be done, to the use of the poor of the same parish, of
   the goods, lauds, and tenements of such offender by way of distress.
   Where observe, that there are three offences mentioned in this statute,
   for which the said mulct of one shilling is to be imposed for every
   time they are committed. 1st, For absenting from Church. 2dly, For not
   abiding there till divine service and sermons be ended. And 3dly, For
   not behaving themselves orderly and soberly while there. And also, that
   over and above the said mulct, the offenders are to be punished by the
   censures of the Church; and therefore, notwithstanding they have paid
   the said mulct, they must also be presented for the same at the next
   visitation.

   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 [10] or expose
   to sale any wares, he shall forfeit the said wares. If any carrier,
   carter, wain-man, carman, drover, horse-courser, waggoner, butcher,
   higler, or their servants, shall travel on the said Lord's Day, every
   one of them so offending shall forfeit twenty shillings. If any person
   shall on the Lord's Day, use, employ, or travel with, any boat, wherry,
   barge, or lighter, unless upon extraordinary occasions to be allowed by
   a Justice of Peace, he shall forfeit five shillings (excepting such
   wherries as are allowed to ply every Lord's Day between Lime-House and
   Vaux-hall, on the river Thames, by the 11th and 12th of Will. 3. c.
   21.) If any butcher shall on the said Lord's Day kill or sell any
   victuals, he shall forfeit six shillings and eight pence. And if any
   then meet at bull-baitings, bear-baitings, interludes, common plays, or
   any other sport or pastime whatsoever, every one so offending, shall
   forfeit three shillings and four-pence. All which forfeitures the said
   Church-wardens are by a warrant from a Justice of the Peace, or Chief
   Magistrate of the place, to levy on the offenders by distress and sale
   of their goods, and apply them to the relief of the poor of the parish
   where the said offences shall be committed: and where no distress is to
   be had, to put the offenders in the stocks, (1 Car. 1. c. 1. 3 Car. 1.
   c. 29 Car. 2. c. 7. Can. 13.)

   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, or
   in any private family. For altho' the Government hath indulged them a
   toleration to worship God their own way in separation from the Church,
   it never intended that they should poison [11] posterity with their
   errors; and therefore it hath left all the laws as to this particular
   in their full force against them, in the same manner, as they were
   before the said toleration was granted. And by these laws all the
   strictest care possible is taken, that none should be entrusted with
   the education of youth, but such as will bring them up in a thorough
   conformity to the Church, as by law established. For it is enacted by
   the 23d of Queen Elizabeth, c. 1. sect. 6. That no corporation, or any
   person or persons whatsoever, shall keep or maintain any school-master
   which shall not be licensed by the Bishop of the diocese, and
   constantly repair to church in such manner, as is by the Act of
   Uniformity in the first year of the said Queen, c. 2. enacted and
   required (i. e. on every Sunday and holy-day) on the penalty of ten
   pounds a month upon those who shall so keep and maintain him, and of a
   year's imprisonment upon the person who shall presume to teach school
   contrary to the tenor of the said act, and also of being disabled any
   more to be a teacher of youth ever after: And by the first of King
   James I. c. 4. That no person shall keep any school, or be a
   school-master in any public school, or in any private family either of
   the nobility or gentry, or in any other place out of our universities
   and colleges of this realm, except he be first licensed by the
   Ordinary, upon pain, that as well the schoolmaster, as the party that
   retains, or maintains him, shall each of them for everyday, in which
   they shall so wittingly offend, forfeit the sum of forty shillings: And
   by the 77th of the Canons of the said King it is ordained, that all who
   are allowed or licensed by the Ordinary to teach school, shall
   subscribe to the first and third article, and to the two first clauses
   of the second article, which are contained in the 36th of the said
   Canons: And by the 79th of the said Canons, that all, who are thus
   licensed to be school-masters, shall instruct the children committed to
   their care in the Church-Catechism, and shall bring them to the
   Parish-Church on all Sundays and Holy-days, as often as there shall be
   any sermon preached, and at all other times shall train them up in such
   knowledge of the scriptures, as shall be most expedient to induce them
   to godliness, on penalty of suspension from teaching school any longer,
   whenever they offend by omitting their duty herein. And by the Act of
   Uniformity (14 Car. 2. c. 4.) it is enacted, that every school-master,
   keeping any public or private school, and every person instructing or
   teaching any youth in any house, or private family, as a tutor or
   school-master, shall subscribe the declaration in that act contained,
   i. e. That he will conform to the Liturgy of the Church of England, as
   it is by law established. And that if any person shall take upon him to
   instruct, or teach any youth as a tutor, or school-master, either
   publicly, or in a private family, unless he be first licensed by the
   Ordinary, and hath subscribed [12] the said declaration, he shall for
   the first offence suffer three months imprisonment, and for every
   offence afterwards, beside the said three months imprisonment, shall
   forfeit five pounds to the King, that is, for every day, in which he
   shall continue to keep school, or instruct, or teach any youth, as
   aforesaid, without qualifying himself for it by making the said
   declaration, and taking the said licence of the Ordinary, in manner as
   is by this act required. The sum is, no one is to teach or instruct
   youth either publickly, or in any private family, unless he hath
   subscribed the articles, and made and subscribed the declaration
   above-mentioned, and thereon taken a licence of the Ordinary to teach,
   and constantly comes to Church. And therefore, if any one without
   performing all this, takes upon him in any parish to teach, and
   instruct youth in manner as aforesaid, he is to be presented for the
   same. And it being a matter of great moment to secure youth from being
   corrupted with ill principles in their education, it becomes
   Church-wardens, and also Church-governors, with their utmost care to do
   their duty herein.

   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 the Church be not in all other respects regularly served
   according to the good rule and orders of the Church of England now by
   law established, that is, if there be not on all Sundays morning and
   evening prayers duly and devoutly read, and on all Holy-days morning
   prayers at least, where a congregation can be gotten together for the
   same, (Can. 14) If there be not a sermon at least once every Sunday,
   and catechizing of youth on the other part of the day, (Can. 45. 59.
   Rubrick to the Communion-Office, and to the Catechism) If the sick be
   not duly visited; the dead regularly buried, recusants frequently
   conferred with, and the Sacraments faithfully administered, i. e. the
   Sacrament of the Lord's Supper, at least three times every year, and
   that of Baptism as often as there shall he occasion for the same, (Can.
   66, 67, 68, 69, 21.) Or if the minister be not, according to law,
   constantly resident in the parish for his due attendance on these
   duties, (21 Hen. 8. c. 13. Can. 41; 45, 47) Or if he marry any one
   clandestinely, be an haunter of taverns or ale-houses, lives
   incontinently, or under the fame of it, be a sower of discord among his
   neighbours, or in any other respect leads a disorderly and irregular
   life, and gives thereby an ill example to the prejudice of religion,
   the dishonour of God, and the scandal of good and religious people, all
   these particulars are to be presented; so that whensoever a minister
   offends in any of them, he may by the censures of the Church be
   corrected and amended, or else, if incorrigible, be removed, and
   another put in his place, Can. 62, 75, 122, &c.

   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 but where the benefice is a
   competent maintenance: Where the living is sufficient fully to maintain
   the minister, there it is reasonable, that the people should fully have
   his ministry; but where they can but half maintain him, they must be
   content with half his service, and allow him to employ the other half
   in serving some other cure, thereby to help out the other part of his
   subsistence, Con. 48.

   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 [13] ; and that therefore
   no interludes, plays, feasts, banquets, suppers, church-ales,
   drinkings, musters, markets, fairs, temporal courts or leets, lay
   juries, or any other profane usage be permitted or allowed therein, or
   in the Church-yard belonging thereto, (Can. Eliz. An. 1571. De: Ædituis
   Sparrow's Collection, p. 236. Can. Jac. 88. Degge. p. 1. c. 12) And on
   Sacrament days they are to provide bread and wine for the holy
   Communion at the charge of the parish, and also observe who they are
   that absent themselves from it, and present them for the same at the
   next visitation, (Can. 20, 91. Rubrick at the end of the Communion
   service.)

   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 have the choice of any one of
   those statutes to prosecute them upon. The statute of the first of W. &
   M. cap. 18. provides, that the penalty of twenty pounds shall be
   inflicted also on those who shall disturb any dissenting congregation
   allowed by law, but as to this the Church-wardens are not concerned

   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 [14] , (Can. 115.) And in case any should,
   and upon trial of the cause obtain verdict on their side, by virtue of
   the statute, (21 Jac. 1. c. 12.) [15] they are to have double costs.
   But the common lawyers would exclude them the benefit of this statute
   in all cases, where they act in ecclesiastical matters, and will allow
   it them only where they act in temporal matters as in the executing of
   the warrants of justices of the peace directed to them, in the making
   of poor's rates, and such-like matters. For say they, [16] the
   law-makers never intended to give double costs, but where the officers
   were sued for temporal matters done by them in the execution of their
   office, (3. Croke, 285. 1 Jones, 530.) But there is nothing in the
   statute, that can warrant this distinction, or give the least colour
   for it: For Church-wardens are named in it, and put within the full
   benefit of it, without any limitation as to temporal or spiritual
   matters, but in such general words as plainly include both. And
   therefore the determination of the common lawyers in this matter seems
   plainly to be a perverting of the statute to the prejudice of the
   ecclesiastical jurisdiction. However this may be of use to caution
   Church-wardens not to make their presentments out of spight or malice,
   meerly to vex and trouble their neighbour, (for an action for this may
   justly be brought against them;) but for such matters, and such only,
   whereof there is such certain evidence, or such a certain and notorious
   fame, as will justify their presenting of them, and then there will be
   no handle for an action against them.

   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 Eliz. [17] ) to lay a tax upon the nation for their
   support [18] : The overseers, which are in that act super-added for the
   levying arid disposing of the said tax, have in a manner superseded the
   Church-wardens care in this particular. However the Church-wardens are
   still by the common-law overseers of the poor in every parish; and the
   said act joins them in equal power with the other overseers appointed
   by that act, both for the levying and distributing of the said tax, and
   all other duties of the said office; and by several acts of parliament,
   whereby forfeitures are inflicted to the use of the poor, the said
   Church-wardens are entrusted with the receiving and disposing of the
   said forfeitures to the use aforesaid. But they having other business
   beside, i. e. to take care of the Church, and the other matters
   belonging thereto, the whole care of the poor is now usually left to
   the new overseers, which are superadded to them by the statute, and the
   said Church-wardens by the custom of most parishes, are allowed no
   farther to be troubled herewith, than of their good-will and liking
   they shall think fit.

   As to the repairs of the Church and Church-yard [19] , tho' they both
   are of the free-hold of the minister, whether he be Rector or Vicar,
   (11 H. 4. 12. 21. H. 7. 21. 2 Cro. 367. Hobart, 69. Kitchin Title
   Wardens of Churches. Degge, part 1. c. 12.) Yet since the parishioners
   have the use of the body of the Church to hear divine service, in, and
   of the Church-yard for the burial of their dead, they are bound to the
   repair of both, (Can. 85. Coke 2 Inst. 489. 653. Shepherd Abr. Tit.
   Church-wardens. Johan de Athon in Othob. C. Improbam, verb, Cancellos,
   & verb. ad hoc tenentur. Lindwood De Officio Archidiaconi C.
   Archidiaconi, verb. Reparatione, & de Ecclesiis ædificandis C. si
   Rector, verb. Defectus Ecclesiæ.) But the repair of the chancel still
   lies upon the parson, whether appropriator, irnpropriator or instituted
   rector (2 Inst. 489. Rolls 2 Rep. p. 211. Degge, p. 1. c. 12. [20] )
   [21] Except in the city of London, where by immemorial custom the
   parishioners repair the chancel as well as the body of the Church,
   (Lindwood De Ecclesiis ædificandis, C. ut Parochiani, verb. ad quos
   pertinent, & de Officio Archidiaconi, C. Archidiaconi, verb.
   Reparatione. Watson, c. 39. p. 301. [22] ) Which same custom is also in
   the city of Norwich, and most other cities and large towns in England,
   where there are no tithes to be charged with this repair, or to be
   sequestred for it, if neglected. And except also in some Churches,
   where the Vicar is by special composition bound to this repair,
   (Lindwood De Ecclesiis ædificandis, C. ut Parochiam verb. & Vicariis)
   And then the Vicar hath the freehold of the chancel, as well as of the
   body of the Church, and the Church-yard; the former by virtue of this
   composition, and the latter by virtue of his induction. For every
   Vicar, when he is inducted into the Church, takes possession of the
   body of the Church and the Church-yard, as of his freehold, and is then
   as it were by livery and seisin admitted thereto, as the Rector is by
   like induction to the whole Church. (See Watson, c. 39. p. 304.) But
   tho' the Church-wardens be not charged with the repair of the chancel,
   yet they are with the supervisal both of that and the minister's house,
   to see that neither of them be permitted to dilapidate, and fall into
   decay; and when any such dilapidations shall happen in either of them,
   if no care be taken to repair them, they are to make presentment hereof
   at the next visitation.

   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 obtain
   throughout this land, that the burden of repairing the body of the
   Church and the Church-yard, was wholly cast upon the people, because of
   their use of them; and the repair of the chancel and parsonage house
   only is left to the minister. When and upon what occasion this custom
   was here first introduced, is not any where said, but it is certainly
   very ancient: For among the laws of king Canutus, who reigned here 700
   years since, there is one, which lays the reparation of Churches upon
   the people; for the words of it are, Ad refectionem Ecclesiæ debet
   omnis populus secundum legem subvenire; i. e. to the repair of the
   Church all the people (i. e. of the parish) ought to contribute
   according to the law, (Brompton, col. 929.) Where observe, this is not
   here first enacted by a new law, but commanded to be observed according
   to law; which plainly implies, that there had been a law established in
   this realm, and fully settled in it, concerning this matter, before
   Canutus's time; how long before is uncertain. But whensoever this
   custom had its beginning, it hath ever since been continued in this
   land, and by virtue hereof the parishoners, since they have the use of
   the body of the Church to hear divine service in, and the use of the
   Church-yard for the burial of their dead, hale also upon them the
   burden of repairing both, and the Church-wardens are officers appointed
   to act for them in this matter.

   The Church-wardens are therefore bound in behalf of the parish to take
   care that the body of the Church [23] and the Church-yard be kept in
   good order and repair. And first as to the Church-yard, it is their
   duty to see that it he kept in decent and fitting manner; that it be
   cleared of all rubbish, muck, thorns, briars, shrubs, and every thing
   else that may annoy the parishioners when they come. into it, or be any
   hindrance to them in the burying of their dead, when there shall be an
   occasion for it. That no sinks or gutters be made through it, or any
   thing else be there permitted, which may be unbecoming the place, which
   is consecrated and set apart to be a repository for the bodies of the
   faithful, which were once the temples of the Holy Ghost; and that for
   the preservation of the said bodies, and the graves in which they lie,
   the said Church-yard be well fenced, (2 Inst. 489. 653. Lind. de Off.
   Archid. 53. Can. 85. Degge; Part 1. c. 12) For by the ecclesiastical
   law of this realm, this ought to be done at the charges of the parish.
   But if there be in any parish a custom to the contrary, and the
   minister or any other having lands, yards, or gardens abutting upon the
   sail Church-yard, have immemorially repaired that part Of the fence
   which lies next them, the custom must take place; and they that
   immemorially repaired the said fence, are bound to do so still
   (Godolphin's Repertorium, c. 13.. Sect. 15. 2 Rolls Rep. f. 287.)

   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 [24] , or a private way through it, the parish is not
   to be put to charge about these, they must be repaired by him that hath
   the use of them. But here it is to be observed, that no one can make
   any such private door into the Church-yard, or any such private way
   through it without the consent of the Minister, Whose free-hold the
   Church-yard is, and a faculty also from the Bishop for the same. But if
   the inhabitants of any ancient messuage next adjoining upon the
   Church-yard have immemorially, they and their ancestors, had a way
   through the said Church-yard, and constantly have repaired the same,
   they can prescribe thereto in respect of the said messuage. And so if
   the owners of any lands adjoining to the Church-yard have immemorially,
   they and their ancestors, had a way thereto through the said
   Church-yard, and constantly have repaired the same, with the gates and
   stiles leading into it, they can also prescribe thereto in respect of
   the said land, 2 Rolls Abr. p. 265.

   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 all such to do what they are obliged to in this particular,
   that all may have a free and convenient passage to the Church, where
   God is to be worshipped by them, and none be obstructed or incommoded
   herein.

   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 [25] are either of the fabrick or the
   utensils, and both these contain such things as are necessarily
   required, or else are only added either by way of ornament and decency
   for the more orderly and decent administration of the divine offices,
   or for the convenience and benefit only of the parishioners.

   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,paintings,
   altar-pieces, rails at the altar, &c. And for the benefit and
   conveniency of the parishioners, a clock, a dial, chimes, a superfluous
   number of bells, &c.

   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 [26] , silver basons for the offertory,
   branches for lights, candlesticks, and other such things, as we find in
   some more wealthy parishes to be provided by the parishioners, over and
   above what either the law, or the absolute necessity of the things
   themselves require.

   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 Ecclesiis ædificandis, C. ut Parochiani,
   and in Staveley's History of the Church of England, ch. 12. And it is
   remarkable, that the parochial Church of Yarmouth in Norfolk had in the
   times of popery so many goods and utensils belonging to it, that in the
   beginning of the reformation, Anno Dom. 1548. such of them as were then
   thought superfluous being sold towards the repair of their pier, the
   money raised thereby, as appears by their town-books, amounted to nine
   hundred and seventy seven pounds, six shillings and eight pence; which
   was a vast sum in those days, when money was at above three times the
   value that it now bears.

   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 [27] , Churchyard, its fences [28] , and other
   appurtenances, and to restore and repair every part thereof, in which
   there shall be any failure or decay, as often as need shall require,
   (excepting only where any particular persons are by immemorial custom
   obliged to repair the same, as all are the isles and seats to which
   they prescribe.) And they are also to take the custody of the
   Church-goods (in respect of which they are a corporation, and capable
   of suing and being sued) and to repair, amend, and renew them; as often
   as they shall find them to be impaired or decayed; and for their
   discharging themselves herein, they are fully empowered both by the
   parish, and Ordinary, when regularly chosen, and regularly admitted
   into their office; so that they need not the advice, consent, or
   authority of either, in order to the repairing, amending, or renewing
   any of the said particulars, which belong either to the fabric,
   Church-yard, or utensils of the Church, of which they are made
   Church-wardens, but are themselves sole judges of what is needful to be
   done herein, as being invested with the authority of the Ordinary, and
   the whole trust of the parish for this purpose on their first entering
   on the said Office [29] . However it is adviseable for the greater
   content and satisfaction of the parish, that they do not enter on any
   great and chargeable repairs without first taking the advice of their
   neighbours, who are to bear the charges of them. See I Vent. 367.

   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 as to make repairs where there is no occasion
   for them, or so improvident as to lavish away more of the parish's
   money therein than need, vet if they have truly and honestly laid out
   the money, they must be reimbursed again, and the parishioners can have
   no remedy herein. Fraud and deceit, if any such be proved against them,
   must at all times be redressed; but if they have only been indiscreet,
   or improvident managers for them, they should have chosen wiser men;
   this will not be any just exception against their account to hinder the
   allowing of it. For they being to the parish as a Proctor to his
   principal, the act of the one, as long as he keepeth within the verge
   of his commission, is looked on in law as the act of the other, and
   what is reputed a man's own act, he can have no remedy against; and
   therefore if the money hath been really and truly laid out without
   fraud, covin, deceit, or gratifying any by-end of their own, how
   foolishly and needlesly sower it hath been done, in that it hath been
   done by those whom they have appointed to be their stewards and agents
   in their stead in this matter, it is done as by themselves, and there
   can be no help for them; which is necessary to be here said, that the
   parishioners may be warned how they trust such men in this office, who
   are not fit for it; or if they do, not fruitlesly to commence suit
   against them afterwards or that, where they can have no redress. If
   their improvidence, indiscretion, or negligence be such as to waste the
   Church-goods in their custody, or otherwise much damnify the parish,
   they may on proof hereof, by the authority of the Ordinary, at any time
   be removed, and others chosen in their stead, (8 Edw. 4. 6. Finch. lib.
   2. c. 17. 13 Coke, 70.) But as long as they are in the office, the
   trust of the parish, as well as of the Ordinary, is invested in them
   for all the acts and duties of it, and they must be allowed whatever
   money they layout herein, provided they act not fraudulently or falsely
   in the expending of it.

   .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 [30] , nor will the law in this case, allow any rate to be
   good, that shall be made in order to it.

   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 [31] is to be made, either in the Church after divine
   service is ended, or else at the Church door, as the parishioners come
   out from the same, both for the calling of the said meeting, and also
   for the appointing of the time and place for the assembling of it. And
   it will be fairest then also to declare for what business the said
   meeting is to be held, that no one may be surprized with any matter
   that shall then he proposed at it, but that all may have full time
   before to consider of the same. And that none way be mistaken as to the
   time appointed for the said meeting, it is usual, and also very
   convenient, that for half an hour before it begins, one of the Church
   bells be tolled, to give the parishioners notice for their assembling
   together. [32] And at every such meeting all those have a right to
   come, and a right to vote, who pay to the Church rates, and none other.
   And when they, who are thus qualified, are assembled together in manner
   as aforesaid, at the time and place appointed, the present include the
   absent, and the major part of the present include all the rest. For
   those, who absent themselves after such public notice given, do it
   voluntarily, and therefore do thereby devolve their votes upon those
   who are present, and every act of the major part of the present in all
   such meetings, is in construction of law the act of the whole parish.
   And therefore the consent of the major part at all such meetings,
   legally called and legally assembled at the time and place appointed,
   is all that is necessary to justify what the Church-wardens shall do in
   such matters conformable to the said consent. And to make this consent
   more authentic, it will be convenient that every such parish act be
   entered in the parish book of accounts [33] , and that every man's hand
   consenting to it be set thereto; for then it will be a fixed and
   apparent rule for the Church-wardens to act by, and also by which the
   parishioners may judge, when they take their accounts; whether what
   they have done be according to their commission or no. And when all
   this is regularly done, it will be in vain for any particular
   parishioner, whether present at the same meeting or absent from it,
   afterwards to make any exceptions against what shall he then agreed on,
   because he being involved in the major part present, every act of
   theirs is in construction of law his act also, and against his own act
   no man can ever hate a remedy. (See Jeffreys's case, 5 Coke, p. 66, 67.
   St. Saviours Parish case, Lane 21. and Hetl. 61. Litt. 263. Popham,
   137. 1 Mod. 194, and 236. 2 Mod. 222. 1 Vent. 167. Wats. ch. 39.)

   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 Ordinary only. And
   therefore, though the major part of the parish be consenting to the new
   addition, and hereby the Church-wardens may be impowered, as far as in
   the parishioners lieth, to make and levy a rate for the reimbursing
   themselves of the charges, yet if any one person in the parish dissents
   from it, and refuseth payment, they can have no remedy against him,
   because the thing being illegally done without that authority, which
   the law requires to warrant it, no rate will be judged legal, which
   shall be made for it. And therefore it the Church-wardens would set up
   a new seat where there was none before, make a new gallery, or add any
   thing else to the Church, they cannot legally do it, unless they have
   first the consent of the major part of the parish [34] , and next the
   licence of the Ordinary to justify them in it. The consent of the
   parish is made necessary to secure their estates from unjust taxations;
   and the licence of the Bishop is required to secure the Church from
   having any nuisance or unfitting incumbrance erected in it, whereby the
   decent performance of the divine offices may be impeded, or the people
   any way hindered from fully partaking of the benefits of them. But if
   the thing that is added be not in the Church, nor is added to the
   fabrick or its appurtenances for any religious use,. but only for the
   benefit, convenience, or curiosity of the parishioners, as a clock, a
   dial, chimes, a supernumerary bell, &c. in this case the licence of the
   Ordinary is not requisite, but it will be sufficient if the major part
   of the parish be consenting thereto.

   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 law, or the nature of the things
   themselves make necessary to every Church; have been omitted 6r let
   down for any time; the Church-wardens are empowered to restore them,
   how many Years soever may have been past, since they were last in use,
   without any consent of the parishioners, or licence of the Ordinary to
   authorize them thereto; because the duty of their office always
   obligeth them to this, and they are guilty of the breach of it as long
   as they omit it.

   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 prescription
   against them, by which it first gained a right to them; and therefore
   they cannot after this time elapsed, be again restored without the
   consent of the parishioners, and other licence requisite, in the same
   manner as if they had never belonged to the Church at all.

   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 Ordinary, or any other person
   with the consent of the Parson and the licence of the Ordinary, have a
   desire to set up rails at the altar at their own proper cost and
   charges, without concerning the parish to give any thing towards it,
   the parish is no way concerned either to give or deny their consent
   thereto.

   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 [35] , the Church-wardens
   shall be chosen by the joint consent of both [36] ; but if they cannot
   agree, the canon directs, that the Minister shall name one, and the
   parishioners the other, (Can. of 1603. 89.) But where there hath been
   an immemorial custom for the parishioners to chose both of the
   Church-wardens, there the custom shall take place of the canon, and
   they shall continue to chuse both still, (3 Cro. 532. 3 Cro. 551, 552.
   Noy, 31, 139. 2 Rol. 234. Degge, P. 1. c. 12. Gibs. Codex, 242.) [37]
   And accordingly by virtue of this custom, the parishioners of most, if
   not of all the parishes in London, do there chuse both the
   Church-wardens, (2 Cro. 532. 3 Cro. 551, 552.) But in all the
   new-erected parishes of that city, it's clear, the canon must take
   place, unless it be provided otherwise in the Acts of Parliament, by
   which they are erected. For in them no custom can be pleaded, the very
   being of those parishes being of too late a date for the founding of
   any custom in them.

   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 of their
   order. 3. All Parliament-men, and all in the king's service in
   ordinary, by reason of their privilege. 4. All Lawyers, Attorneys, and
   Clerks of Chancery, King's-Bench, Common-Pleas, and Exchequer, by
   reason of their attendance in the said courts every term, 2 Rolls Abr.
   272. 5. Physicians and Chirurgeons in the city of London, and suburbs,
   by the statute of the 5th. of King Henry the 8th, c. 6. and the 32d of
   King Henry the 8th, c. 40. because of their obligation to attend the
   sick. 6. Apothecaries all England over for the same reason, by the
   Statute of the 6th of King William III. c. 4. The first of Queen Anne,
   chap. 11. and the 10th of Queen chap. 14. 7. All preachers and teachers
   of dissenting congregations, by the statute of the first of King
   William and Queen Mary, c. 18. provided they have qualified themselves
   according to the said Statute. 8. All registered. seamen, although not
   actually in service, by the statute of the 7th and 8th of King William
   the 3d, c. 21. 9. All persons that have prosecuted any felon to
   conviction, by the statute of the 10th and 11th of King William the 3d,
   c. 33. which excuseth them [38] from this, as well as from all other
   parochial or ward offices in the parish or ward where the felony was
   committed. 10. Freemen of the corporation of Surgeons in London, 18 G.
   2. c. 15. 11. Roman Catholic Ministers, conforming to the Statute, 31
   G. 3. c. 32. s. 8. 12. Serjeants, corporals, drummers of the militia,
   and private men, from the time of their inrollment, until their
   discharge, 26 G. 3. c. 107. s. 130. All these persons being exempt by
   law from bearing the said office of Church-warden, they are not to be
   chosen into it, unless they are content voluntarily to bear the same.
   But excepting these, all others are eligible, and must serve in the
   said office, when legally chosen into it as aforesaid [39] .

   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 [40] , (Can. 118.) For
   until they are thus sworn, they can do no legal act as Church-wardens,
   nor can they have any authority, whatever money they lay out on the
   Church account, to make or levy any rate, or take any other method
   again to reimburse themselves; but whatever they do of this kind, while
   unsworn, is all to their own wrong, and if the parish refuseth to pay
   them, they can have no remedy in law to force them to it. And although
   they served the office the former year, and were then sworn into it,
   yet if they are chosen again, they must be sworn again, or else the
   case is the same. For they are chosen but for one year, and sworn but
   for one year, and therefore, when that one year is expired, their
   office and their oath are out together [41] , and consequently they
   must be chosen again, and sworn again, before they can legally serve
   again in the said office for the year ensuing, (Can. 1. Jac. 89.) And
   where there are others fit to be chosen, it is not so well for the
   parish to chuse the same again. For hereby often the making of a just
   account is baffled for want of new Church-wardens to take it; and other
   inconveniencies sometimes follow: For the preventing of which, it would
   be best every year to dismiss the old Church-wardens, and chuse new
   ones in their stead, according to the statute of the 27th of Henry the
   8th, c. 25. which positively forbids any Church-warden to continue in
   his office above one whole year.

   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 [42] by the Church-wardens is, That they will well
   and truly, [or truly and faithfully,] execute the office of a
   Church-warden in the parish where they are chosen for the ensuing year,
   and according to the best of their skill and knowledge present such
   persons and things as [43] are presentable by the ecclesiastical laws
   of this realm. Which oath binds them to be diligent and faithful, not
   only in making their presentments in the manner above directed, but
   also in the custody and care of the Church goods committed to their
   charge, in the well repairing of the Church, Church-yard, and utensils,
   in the well husbanding of the parish-money levied for this purpose, and
   the employing of it to the best advantage for the end intended, and in
   giving a just and faithful account of all at last; and they become
   guilty of the breach of their oath, and load their souls with the
   heinous guilt of perjury, whenever they wilfully fail in any of these
   particulars.

   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 [44] at common-law
   issuable out of the King's-Bench to command the swearing of him, (3
   Croke, 551, 589. 2 Rolls Rep. 106, 107. 2 Abr. 234. Shepphard Abr.
   Title Commandment or Mandat.)

   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 [45] for the defraying of it, (Degge,
   P. 1. c. 12.) And when they have got the rate confirmed by the
   Arch-deacon, or other Ordinary authorized thereto, they may then sue it
   upon all that shall refuse to pay their proportions to it. [46] But if
   any think themselves overcharged, or otherwise aggrieved in the said
   rate, there is still room left after its confirmation, for them to put
   in their exceptions against it, and be redressed in the same manner as
   there is in the poor's rate, after it hath been confirmed by the
   Justices of the Peace. For all such confirmations are only till cause
   shall be shewn to the contrary, but redress in this case is to be
   sought for only in the Ecclesiastical Courts [47] . For there only this
   matter is cognizable, (Stat. Circumspecte agatis, 13 Ed. 1. Coke 2
   Inst. p. 489.) unless the boundaries of the parish are called in
   question, and he that excepts against the rate, alledgeth, that the
   lands, in respect of which he is layed, are out of the parish. For then
   a prohibition Will lie. For to judge of the boundaries [48] of parishes
   is now engrossed wholly to the common-law courts, and the ordinary is
   absolutely excluded from all jurisdiction in this matter. (Degge, P. 1.
   c. 12.) But anciently it was otherwise. For as long as the division of
   parishes was only for spiritual matter, as the Bishops first made these
   parishes, so it belonged wholly to them, to determine all controversies
   about them, and set out the boundaries, by which they were parted each
   from other. But afterwards, when the limits of parishes were made the
   limits of temporal offices, as of constables, surveyors of high-ways,
   &c. which belong to the temporal jurisdiction, this drew the whole of
   this matter before the temporal Judges into the common-law courts, and
   there it hath been ever since. But to prevent the arising of any
   trouble from hence, the readiest way is for the Church-wardens to do
   their duty in taking care, that their annual perambulations be duly
   kept up at the usual time, and the boundaries of their parishes so
   carefully viewed and settled in them, as to leave no room for any doubt
   or contest about them. For this is part of their office, and it is a
   service of no small moment to their parish carefully to discharge
   themselves herein.

   The rates must he made with the consent of the major [49] part of the
   parish, and therefore when the Church-wardens purpose to make any such
   rate; they must call a meeting of the parish in manner as is above
   directed, and then whatsoever rate shall be made by the consent of the
   major part of these, who shall come to the said meeting, will be a good
   and legal rate. For those, who are absent in this case, devolving their
   right and votes upon those who are present, they who are present, how
   few soever they be, are in construction of law the whole parish (as
   hash been afore in another case fully shown). And therefore whatsoever
   rate is made with the consent of the major part of them at such a
   meeting, or by the Church-wardens alone [50] (if on the calling of such
   a meeting none else shall appear at it)) will be interpreted as made
   with the consent of the whole parish. For the absence of those, who do
   not come to the said meeting, being voluntary, it will imply, that they
   do thereby entrust those who are present with their interest; and if
   none appear, but the Church-wardens alone, it will imply a like trust
   of the whole parish voluntarily reposed in them in this case. And
   therefore every rate thus made will he good in law. (See Jeffereys's
   case, 5 Co. 67. Hetl. 61. Pop. 197. Lane 21. Degge, P. 1. c. 12. Watson
   c. 39. p. 302. 1 Vent. 367.) and when it is confirmed by the Ordinary,
   may be levied by due process of law in the ecclesiastical courts upon
   all such as shall refuse to pay the same, reserving still their
   exceptions to all those who shall think themselves unequally laid in
   the said rate as aforesaid, of which the ecclesiastical court is to
   judge.

   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
   [51] equally lies upon the whole tithes and glebes that are parted
   between them; and that one of them doth it, and the other is
   discharged, is wholly by composition between themselves: But if no such
   composition appears for the laying of it on the Vicar, of common right
   it belongs to the Parson to do it, the Vicar being looked on only as
   his stipendiary to serve the cure, and the portion which he hath of the
   revenues of the Church, no other than as his wages in order thereto.
   But if the glebes be out of the parish, (as sometimes they are) their
   being glebes in this case cannot exempt them from being charged to the
   repair of the Church in that parish where they lie. For in that parish
   no repairs of the dinned lie upon them, and therefore they are there on
   the same foot, as to this matter, with the other lands of the parish,
   and consequently must be charged equally with them to all the burdens
   of it. For no glebes are to he excused Church repairs, but such as
   belong to the Church that is to be repaired, not those which belong to
   another Church out of the parish, in which the said glebes lie,
   (Lindwood de Ecclesiis ædificandis, C. licet Parochiani.)

   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
   all such who refuse to pay what they are laid to it, or at least
   present them in their last presentment at the Easter Visitation, when
   they go out of their office. For by this presentment they will not only
   have the benefit of being attached of the action while in their office,
   but also make it a cause of office upon the Judge to do them justice
   herein, and therefore may afterwards pursue it when out of their
   office, till they recover the money, which otherwise they cannot
   lawfully do. For no officer can have any right of action by virtue of
   his office after he is discharged of it. But if it happen, that there
   be no such prosecution begun, or presentment made, before they were out
   of their office, they may then on their giving up of their account pass
   over their arrears with the rate on which they are due, to their
   successors, who have full authority to sue for, and recover the same,
   all such arrears being in truth a debt due to the parish, which they
   are by their office to take care to recover for them. But because this
   may be apt to make Church-wardens negligent in collecting the money due
   on their rates, and their successors may have just reason to complain,
   if the burden be turned over upon them of gathering their predecessors
   rates, as well as their own, the best way to prevent this, and adjust
   the whole matter between both will be, that the old Church-wardens on
   the going out of their office, do account all the rates, they have
   made, as received, and take a deputation or letter of attorney from
   their successors to demand and recover in their names, what is left in
   arrears for they cannot in this case do it in their own; and then
   predecessor and successor will equally bear the burden without casting
   off any part of it from the one upon the other.

   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 [52] . However it is to be taken notice of, that this rate is
   only a personal, not a real charge; for it is not laid upon the lands,
   but only upon the persons in respect of the lands which they occupy
   within the parish, and for this reason the farmer or occupier, not the
   landlord, is to pay the same, 5 Coke, p. 67. 1 Bulstrod, 20. Degge, p.
   1. c. 12 Roll. 289. Sheppard Abr. Title Church-wardens) And what I here
   say of lands, is to be understood also of houses [53] , for both
   according to their value are chargeable to these rates, (Hetley, 130.)
   And in some places houses only, as in cities and large towns, where
   there are houses only, and no lands to be charged hereto.

   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 out-setters, by reason of the lands
   which they occupy in the parish, are as much parishioners as the
   in-setters, and may at their choice come to either Church for the
   hearing of divine service, as they shall think fit, and have a vote in
   the parish-meetings of both; and that therefore they ought to be
   charged to the utensils and incidental charges, as well as to the
   fabrick of the Church. And for the support of this opinion they urge
   the confusion and inconvenience which would follow from doing
   otherwise; for (say they) to make two rates cannot but prove a very
   confused, perplexed, and vexatious thing, and must necessarily
   embarrass the parish; with more difficulties than the thing is worth.
   And it is further objected, that it is possible that all that occupy
   lands in the parish may live out of it, and have none but servants,
   day-labourers, and poor shepherds in their farms; and to charge only
   these. poor people to the utensils and incidental charges, and
   discharge their rich masters, who own all the lands in the parish, from
   paying any thing towards them, would be very unreasonable, and unequal.
   And it must be acknowledged, that there is a constitution of John
   Stratford, Archbishop of Canterbury, made Anno Dom. 1342, which ordains
   agreeable to this opinion, That all who have lands in the parish,
   should be equally charged to the ornaments of the Church, as well as to
   the fabrick, whether they live within the parish or elsewhere. For the
   words of this Constitution are as followeth; Præsentis approbatione
   Concilii duximus statuendum, quod tam religiosi, quam alli quicunque
   possessiones aut prædia seu reditus, quæ de Gleba reficiendarum
   ecclesiarum, seu de dote non existunt, in quibuscunque parochiis nostræ
   provinciæ obtinentes, seu in posterum habituri, in ipsis degentes, vel
   alibi, ad quævis onera parochianos ipsos, ipsorum ecclesiam, ac
   ornamenta ejusdem concernentia, & eis in his de jure vel consuetudine
   incumbentia, consideratis possessionum et redituum hujusmodi
   quantitatibus, cum cæteris parochianis ecclesiarum prædictaram, quoties
   opus fuerit, contribuere teneantur; i. e. By the approbation of the
   present Synod we have thought fit to ordain, that as well the
   religious, as all others, that now have, or shall hereafter have,
   possessions, lands, or revenues (which are not of the glebe of the
   Churches to be repaired, or of the endowments that belong to them) in
   any parishes whatsoever of our province, whether they dwell in the said
   parishes, or elsewhere, shall be obliged to pay with the other
   parishioners towards all the charges, which are either of common right,
   or by custom incumbent on the parishioners for the repair of the
   Church, and the ornaments belonging thereto, according to the quantity
   of the possessions [54] , and the revenues which they have in the said
   parishes, as often as there shall be need for the same, same, (Lindwood
   De ecclesiis ædificandis, C. Licet parochiani.) And now the practice
   generally goes according to this opinion, and the ecclesiastical
   Judges, as well as the temporal, for the sake of the ease and
   convenience which accrues from the making of one levy for all give
   countenance hereto, and begin to treat the law to the contrary (if ever
   it were law) as obsolete and out of doors. Concerning this whole matter
   see 5 Co. 67. 2 Brownl. 10. 1 Blust. 20. 2 Rolls Abr. 291. Degge, p. 1.
   c. 12. Godolphin's Repertorinm, chap. 12. sect. 23, 26, 29, 34, 41.
   [and Shaw's Parish Law.]

   When therefore a Church-rate [55] is to be made, all that occupy any
   lands or houses within the parish, are to be laid to it according to
   the value of the said lands or houses, by an equal pound-rate, without
   grieving or over charging one, or sparing or easing , another, or
   leaving any out of the rate who ought to be charged to it. For if any
   be overcharged [56] , or others undercharged, the Ordinary will condemn
   the wrong done, whenever it comes before him. But if any one be left
   out, who ought to be charged to it, injury is hereby done to the whole
   parish by overcharging them so much, as those ought to pay who, are
   omitted. And this is a sufficient reason for the Ordinary, [57] when
   complaint is made to him hereof, to quash the whole rate, and send the
   Church-wardens to make a new one. In all these rates it will be fairest
   for the Church-wardens not to assess themselves, but to leave this to
   be done by the parishioners, who concur with them in making the said
   rate. But if there be a stated valuation of all the lands and houses in
   the parish justly and fairly made, and all be equally laid according
   hereto by a pound rate, there can be no error or injustice in, this
   matter.

   If any quaker [58] refuseth to pay the Church rate which is laid upon
   him (as mostly those of that sect perversely do) complaint must be made
   to the two next Justices of the Peace, who by the statute of the 7th
   and 8th of King William the third, cap. 34. have full power hereon to
   convene the person before them, and hear the said complaint, and on
   having examined upon oath into the truth and justice thereof, to judge
   and ascertain the sum that is due, and make an order under their hands
   and seals for the payment of it. And if any quaker shall, after such
   order made, refuse to obey the same in paying the said sum, then any
   one of the said Justices, who made the said order, shall and may, by
   warrant under his hand and seal, empower the Church-wardens to levy the
   money so ordered to be paid by distress and sale of the goods of the
   offender, rendering to him the overplus. And in case he appeal to the
   Quarter-Sessions from the said order, and be there cast in his appeal,
   he shall pay all the costs of the same, and be excluded all other
   remedy as to the said rate.

   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
   [59] , which they constantly resort to, and have always repaired [60] ,
   have instead of being rated to the Mother-Church equally with the other
   parishioners, immemorially paid a set annual stun in lieu of it, this
   will be allowed to be a good prescription. For it will be supposed,
   that it was originally upon an agreement made upon; some just
   consideration with the whole parish, and they have a power to bind
   their successors thereto.. But if there be no such payment alledged,
   the prescription cannot be good; for what they have done in building
   them a chapel, and constantly repairing thither, instead of going to
   the Mother-Church, is only for their own ease, and that must not be
   made a dis-ease to the rest of the parish, in casting the burden of the
   repair of the Mother-Church wholly upon them, and that especially since
   they are still, notwithstanding their Chapel, members of the
   Mother-Church, and have all rights in it equally with the rest of the
   parish, and therefore must equally with them contribute to the repairs
   of it,(Hobart 67. Noy 41. 2 Rolls Abr. 289, 290. Degge, p. 1. c. 12.)
   If a parish plead .a custom to be laid only for lands, and not for
   houses, or to be laid only for arable lands, and to be excused for
   their pastures, or to be laid only for their sheep-walks, and not for
   the rest, the custom cannot be good. For by the law all lands and
   houses are to beequally laid, and their paying for some part can be no
   good cause for the discharging of the rest, Hetley, 130. Latch. 203.
   Godolphin, c. 12. sect. 22. Degge, part 1. c. 12.)

   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 extend, hereto, yet
   consolidations by common-law may. For before the said Statute of the
   37th of King Henry VIII. there was a power by the common-law of the
   land in the Bishop, with the concurrence of the Patrons and Incumbents,
   to consolidate any two contiguous parishes, which is mentioned and
   acknowledged in the said statute, sect. 4 And the said statute, as well
   as that of the 17th of King Charles II. being both in the affirmative,
   and not in the negative, do not take away the common-law; but still,
   notwithstanding the said statutes, such consolidations as might
   lawfully have been made before the said statutes were enacted, may at
   this day be lawfully made also. And therefore all that the said
   statutes do effect is, that whereas before the said statutes it
   consolidations made according to the common-law were good, without the
   previous licence or subsequent confirmation of the king, these statutes
   do limit what consolidations may now be made without the King, that is,
   by the Bishop only with the consent of the patrons and incumbents of
   the parishes consolidated. And therefore consolidations, that are so
   made without the King by virtue of the said statute, can extend no
   farther than is by the said statute enacted. But if they be made
   without any relation had to the said statutes according to the
   common-law, with the previous licence or subsequent confirmation of the
   King or Queen Regent, they are good to all intents and purposes, and in
   as full and ample manner as they were by the common law of the land,
   before the said statutes were made. And anciently the common-law of the
   land, as to this particular, was, that the Bishop, with the consent of
   the patrons and incumbents, might consolidate any two contiguous
   parishes upon a just and lawful reason, and in such legal manner of
   proceeding, as was by the common-law required as to this matter. Now
   the lawful, reasons for a consolidation were, 1. The vicinity of the
   Churches. 2. The paucity of the inhabitants of one or both of the
   parishes. 3. The inability of one of the parishes to keep up their
   Church by reason of their poverty. 4. The meanness of one or both of
   the livings, as not being sufficient to maintain a Minister, so as to,
   enable him to keep hospitality. 5. If the said parishes had at first
   been illegally severed, (Johan. de Athon in Othob. C. Cum sit Ars.
   verb. Redintegrentur.) And when there was one or more of these reasons
   suggested for such a consolidation, , the. manner of proceeding for
   effecting it was, 1. A commission of enquiry went out to examine into,
   the truth of the said reasons. 2. All persons concerned were to be
   legally cited, to alledge what they had to say about it. 3. On hearing
   of all parties, a decree was to be made for the legality of the
   consolidation. 4. The true value of both the livings consolidated, was
   to be put into the instrument of consolidation. And besides these,
   there were many other niceties and formalities to be observed in this,
   matter, and a failure in any one of them made a nullity in the whole,
   and a suggestion afterwards, offered of a falsity in the reasons, on
   which the consolidation was made, or a failure in, the legal method of
   doing it, if proved, was sufficient to set aside all that was done. And
   therefore to put a bar against this, the authority of the Pope was
   called in, and his confirmation salved all defects. And, for this
   reason, for a long while before the reformation, no consolidation was
   made without the Pope's confirmation; and long usage at length made it,
   thought a necessary part of the. law at this matter. And what power the
   Pope had used, was on the abrogation of the papal authority in this
   realm, transferred on the King by the statutes. And therefore from that
   time, to make a good consolidation, the King's confirmation was made
   necessary, irk the same manner as the Pope's was before, and a previous
   .licence, say the Lawyers, operates the same thing with a subsequent
   confirmation. Whatsoever therefore the Bishop with the Patrons and
   Incumbents could do in the consolidating of two parishes before the
   reformation with the Pope's confirmation, the same with the King's
   licence or confirmation they have been able to do ever since, and are
   now still able to do. But before the reformation, it is manifest the
   episcopal power in this matter reached to every thing that was of an
   ecclesiastical nature, and could consolidate two parishes, not only so
   as to make them one benefice, but also to make them one parish in all
   things ecclesiastical. And therefore the Churches, Church-rates, and
   the office of Church-wardens being all of an ecclesiastical nature, and
   wholly depending on the ecclesiastical jurisdiction, the Bishop in his
   consolidation of two parishes could unite them in all these, as well as
   in the benefice, and join all the inhabitants in one Church for divine
   worship, and in one and the same Church-rate for its repair, and under
   the same Church-wardens to take care hereof; in the same manner as if
   they had originally been one single parish, with one Parish-Church only
   therein. And this was always done where one of the Churches was
   demolished, or not capable of being any longer. repaired, by reason of
   the poverty of the parishioners; and many instruments of such
   consolidations may be seen in the Episcopal Registries of this realm,
   where the ancient Register-books are still preserved, and in every
   county several parishes may be brought for instances hereof, which
   having been formerly two or more, having been by virtue of such old
   common-law consolidations so united, as that now they have only one
   Parish-Church to which they all resort for divine worship, one and the
   same Church-rate for its repairs, to which all equally pay, and the
   same Church-wardens in like manner as other single parishes have, which
   have never hem consolidated. And therefore since the common-law still
   remains the same as to this particular, notwithstanding the Statutes
   aforesaid, there is authority still by the common-law, altho' not by
   the said statutes, to do the same thing, and the Bishop still can, even
   unto this day, where there is the same reason for it, by a common-law
   consolidation unite parishes so as to make them one, not only in the
   benefice, but also in the Church, Church-rates, and Church-wardens, in
   the same, manner as I have shewn he formerly could. For these are all
   of an ecclesiastical nature, and wholly depending on the ecclesiastical
   jurisdiction, and therefore the Bishop hath full power over them.

   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, see Austin and Twine's
   case, Croke Eliz. p. 500. Moore, p. 408, & 661. 2 Rolls Abridgment, p.
   778. Hughs's Parson's Law, c. 26. Watson's Clergy-man's Law, c. 16. p.
   127. And the said Statute of the 37th of King H. VIII. seems to give a
   power, as well as the common-law, to unite parishes as to Church and
   Church-rate, as well as to the benefices also, altho' the
   interpretation of lawyers goeth otherwise. For in the preamble there
   are two reasons given for the act; 1. The insufficiency of one or the
   livings to maintain a Minister; and, 2. The inability of the
   parishioners to maintain two Churches or Chapels with all manner of
   reparations, ornaments, and other accustomed duties pertaining to a
   Church, of which saith the said preamble, they ought to be eased and
   remedied by the uniting of two such parishes in one. By which it is
   plain, that the act intends to relieve and ease the parishioners by
   uniting the parishes into one Church and one Church-rate, as well as
   the Minister by uniting them into one benefice; and therefore since in
   the enacting part of the said act it is said, that all such unions and
   consolidations had or made of two Churches in one, or of a Church and
   Chapel in one, as is aforesaid, shall be good, sufficient, lawful,
   firm, stable, and available in the law, to remain, endure, and continue
   for ever united and knit in one, in such manner and form as by writing
   or writings under the seals of such ordinaries, incumbents, and patrons
   it shall be declared and set forth: I see no reason but that, if the
   Bishop, with the concurrence of the patrons and incumbents, should make
   the writing or instrument of consolidation in that manner and form, as
   to answer the second reason in the preamble of the said statute, as
   well as the first, it will be good for the one as well as the other.
   But here it is to be observed, that whether the consolidation be made
   either by the common-law or statute law, if it be in a city or
   town-corporate, it cannot be good, since the said statute of the 37th
   of King Henry VIII. without the consent of the corporation: For saith
   the statute, all unions and consolidations within any city or
   town-corporate, without the consent the Mayor, Sheriffs, and Commonalty
   of the said city, or without the consent of the bodies corporate of the
   said town in writing under the common-seal, shall be clearly void and
   of no force or effect, any thing before expressed, or any ordinance,
   law, custom, or statute to the contrary thereof in any wise
   notwithstanding. Which clause being in such general words, as to
   comprehend all manner of consolidations whatsoever, and with a Non
   obstante to any other law, custom, at statute, it must reach common-law
   consolidations, as well as statute-law consolidations, in all such
   cities and towns corporate, and make the one as well as the. other
   wholly void, if made since the date of the said statute, contrary to
   the form thereof in this particular.

   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 painted in the windows or
   elsewhere, pennons, hatchments, &c. put up in the Church for the memory
   of the deceased buried there, if regularly set up with the consent of
   the Minister who hath the freehold, cannot be pulled down again either
   by the Church-wardens, Minister, or Ordinary, because they belong to
   the heir, and he will have his action upon the case against any that
   meddle with them, (2 Cro. 366. Noy, 104. 2 Bulst. 150. 3 Inst. 202.)
   But if any of the said particulars be an incumbrance or any annoyance
   to the Church, or any way hindring or incommoding either the Minister
   in performing any of the divine offices, or the parishioners in
   partaking of them, in this case the Ordinary hath power to give his
   order for their removal, and the Church-wardens will be justified in
   the. executing of it. For the original intent of the Church being the
   service of God Almighty, nothing is to be permitted there which; Shall
   be any way obstructive of it; and of what is; so, or is not so, the
   Bishop is the sole judge, (12 Coke, 105, 106. 3 Inst. 202.) And
   therefore no one can be safe in any new erection there, who hath not
   had the Bishop's licence for the same, especially in setting up of
   altar monuments, which most an end are a nuisance and incumbrance to
   the Church wherein they are placed.

   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 [61] of the Church, buried
   their dead there, and always repaired the same, they can prescribe to
   the said isle, and cannot be dispossessed of it, either by the
   Churchwardens, the Minister, or the Ordinary, but will have their
   action if disturbed therein. For such an immemorial possession will
   carry with it a presumption, that the isle was first built by the
   founder of it, with the consent of the Minister, Patron, and Ordinary,
   with intent to have it solely to himself [62] , (2 Cro. 366. Hob. 69.
   12 Coke 103. 3 Inst. 202. Noy 104. Godb. 200. Moor 178. Palm. 46. 2
   Rol. 288. 1. 10.

   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 [63] , but the
   said isle must always be supposed to be held in respect of the house ,
   [64] and therefore it must always go with the house to hint that
   inhabits it, whether he be the heir, or else some other occupant, who
   hash it by assignment from him. (Brabin and Tradum's case, Popham 140.
   2 Rolls Abr. 288, 289. Godolphin, c. 12. sect. 4.)

   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 [65] in the body of the Church, which he and his
   ancestors have been immemorially possessed of, and have always repaired
   the same at their own costs and charges. And in like manner may an
   inhabitant in respect of his house prescribe to first, second, or third
   place in the same seat, which hath immemorially been repaired by him,
   and the rest that jointly sit with him in it. But this right cannot go
   to the heirs, but is annexed to the houses, and must always go with
   them in the same manner, as the right of an isle above-mentioned,
   Hobart 69. 12 Coke 106. 3 Inst. 202. 2 Bulstrod, 150. Noy, 129. 2 Rolls
   Abr. 289. 1 Sider. 88, 201. Raym. 52. 1 Keb. 345. 2 Keb. 92.)

   As to all other seats in the body of the Church [66] , which are
   repaired at the charges of the parish, they are in the disposal of the
   Church-wardens, with the advice of the Minister, but still in
   subordination to the Bishop who hath the primary right of disposing and
   ordering of this matter in every Church of his Diocese. For he having
   there the primary cure of the souls of the people, and the chief
   government and direction of all matters relating to order and decency,
   is presumed by law to be the properest person to be entrusted with the
   judging of the different qualities and degrees of the people, in order
   to the placing of them in the Church each according to his rank, so
   that there be no contention there about this matter. And therefore if
   any thinks, that justice is not done him in the seat assigned him by
   the Church-wardens, he may apply to the Bishop for remedy, whose
   determination is final in this matter, unless an appeal be made to the
   Arch-Bishop. For the common-law hath nothing to do with those seats, to
   which no prescription is claimed, and therefore all these remain under
   the ordering of the Bishop, which he may either leave to be disposed of
   by the Church-wardens with the advice of the Minister, as is for the
   most part practised, especially in London, or else dispose of them
   himself; and when he cloth this latter, it is by an instrument called a
   Faculty, (See Hobart 69. 12 Coke, 105, 106. 3 Instit. 202. Godbolt,
   200. Hetley, 95. 2 Bulstrod, 150. Sheppard Abr. Title Church-wardens. 2
   Rolls Abr. 288.)

   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 [67] , because they being officers under him, whatsoever they do
   in this kind, must always he supposed to be done by an authority
   derived from him, either positively granted, as by his faculty, or else
   tacitly allowed. And this must hold, in London, as well as every-where
   else. For al-. though in that city the Church-wardens take it wholly
   upon them to dispose of seats, yet no usage can give them a title to do
   this exclusive of the Bishop. For when any controversy ariseth, they
   have no where else to go, but to the Bishop, for a decision of it. The
   Common-law never meddles with this matter, but where a seat is claimed
   by prescription. All other seats it wholly leaves to the disposing and
   ordering of the Bishop, and as long as he hath the decision of all
   controversies about; them, this will always he a proof of his right in
   this matter; and therefore whatsoever usage the Church-wardens may
   pretend to in any Church for the disposal of the seats in it, they must
   be understood to do this solely by the authority of the Bishop as
   officers under him, not by any of their own, (12 Coke, 105. 106. 3
   Inst. 202. 2 Bulstrod, 150. Hobart 69.) [68]

   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 partaking of the
   benefit of it, or be any other way obstructive of the good orders of
   the Church. And therefore if any seat be built so high, as to hinder
   those that sit behind, from well hearing the Minister, or the
   Church-wardens from well observing the behaviour of those that sit in
   them (which they are bound to present, if there be any thing amiss in
   it) on complaint made to the Ordinary, this is to be remedied, and the
   seat taken down to such an height as is fitting, (Noy 108. Degge, part.
   1. c. 12.)

   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 plead in bar of that
   right, which the Minister hath acquired to them by having had them
   fixed to his freehold. If a man wrongfully plants a tree in another
   man's soil, by putting it there, he makes it part of the freehold, and
   therefore whenever it is again removed, it belongs to him that owns the
   land; and the case before us is exactly parallel hereto. (See Degge,
   part. 1. c. 12.)

   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 [69] , because the Parson hath not only the
   freehold of it, but also repairs it. But to this it is to be replied,
   that the Bishop's right is the same through the whole Church, that is,
   in the Chancel as well as in the body of the Church. And as the
   parishioner's repairing of the body of the Church, doth not exclude Ins
   right there, so neither doth the Parson's repairing the chancel exclude
   it here, but he hath in both an equal right to dispose of all the seats
   in them. But as the Lord of a Manor, or any other owner of an ancient
   messuage, may prescribe to a seat in the body of the Church, which he
   and his ancestors have immemorially used and repaired, to the exclusion
   of the Bishop, so may the Parson prescribe to a seat in the chancel,
   which he and his predecessors have immemorially been possessed of. And
   if not so, yet since the charge of repairing that part of the Church,
   as well as the freehold, is in the Parson, it is most reasonable he
   should be first provided for with a seat for his family in it. And the
   case is the same whether the Parson be appropriator, impropriator, or
   instituted rector of the parish. But if there be room for any other
   seats, the Bishop can grant faculties for the building and disposing of
   them in the chancel, as well as in the body of the Church. Only if the
   Bishop doth not interpose, then the Parson may dispose of the seats in
   the chancel, in the same manner as the Church-wardens do those in the
   body of the Church, because of his repairing of it: But if there doth
   any controversy arise, then there doth lie an appeal to the Bishop from
   the one, as well as from the other, (See Watson, chap. 39) But as to
   this matter the case is very peculiar in the city of London, for there
   the Church-wardens repairing the chancel; as well as the body of the
   Church, do equally dispose of the seats in both. But it must be
   understood still with the same subordination to the Bishop, as in other
   Churches [70] .

   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 [71] . For as the one is a common hearing-place for
   the living, so the other is a common burying-place for the (lead. But
   as to the burials in the Church it is quite otherwise: for that not
   being a common burying-place, but only by leave and sufferance, no one
   can be buried there without the leave of him that hath the freehold"
   that is not in the body of the Church without the leave of the
   Minister, whether Vicar or instituted Rector, and not in the Chancel
   without the leave of the Parson, whether Appropriator, Impropriator, or
   instituted Rector. And neither the Patron nor the Ordinary ran here
   intermeddle, or can either of them have any authority to over-rule them
   herein, or give any licence without them. For the freehold being
   theirs, the power of granting leave to make a grave there is solely in
   them, (2 Croke 36(3. _Noy 104.) But still the fee for breaking the soil
   belongs to them, on whom is the burden of repairing the pavement, that
   is, to. the Parson for the Chancel, and to the Churchwardens for the
   body of the Church, (3 Keb. 504, 523, 527. 1 Vent. 274.)

   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 counties, there must be different Constables,
   and different Overseers of the Poor, altho' in the same parish, and
   they must account for their offices at different sessions, and
   different assizes. But the Church-wardens being officers in
   Ecclesiastical affairs, must follow the division of the ecclesiastical
   jurisdiction, which is into dioceses, arch-deaconries, deanries, and
   parishes; and therefore where there is the same parish, the same
   deanry, the same arch-deaconry, and the same diocese, the same
   Church-wardens must serve for the whole parish, and they have the same
   power of executing their office in every part of it, in how many
   different counties or different hundreds soever it be, and must at the
   same visitation, whether of the Bishop, or Arch-Deacon, or other
   Ordinary, account for the discharge of it. And because the Church is
   that) wherein all the Members of it are united, of that deanry, and of
   that arch-deaconry, and of that diocese must the whole parish be
   reputed to be, in which the parish-church stands.

   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 they
   appertain to holy things, of which he hath the care and ordering; and
   therefore if the Church-wardens would sell an old bell towards other
   repairs, or put off old communion-plate to buy new, or dispose of any
   other of the goods of the Church, altho' to the use of the parish, they
   cannot do it without the consent of the parish [72] , and the licence
   of the Ordinary, as aforesaid, and the disposal of any of the said
   goods without the consent of the parish, is void in law. (3 Bulst. 264.
   Yelv. 173. 2 Brownl. 215. 1 Roll. 393. 1 Roll. Rep. 426. Finch. lib. 2.
   c. 17. p. 179.) For the parishioners are the proper owners of them, and
   the Church-wardens are only entrusted with their custody for the use of
   the said parishioners. However in this case the parishioners themselves
   can have no action for such goods thus disposed of, either against the
   receivers to recover them, or the Church-wardens for disposing of them;
   for altho' the goods belong to the parishioners in common, yet not
   they, but the Church-wardens are the corporation, in whom they are
   invested for their use; and therefore when there is cause for any such
   action, they must tarry till they have new Church-wardens, and in their
   name bring the suit, who have a right to call their predecessors to an
   account before the Ordinary, and also to commence suit against them for
   any such waste made by them of the Church-goods, as aforesaid, or for
   any other damage done the parish, contrary to the trust invested in
   them, (See Watson, c. 30. p. 304. Kitchin, Tit. Ward. of Ch. p. 387.
   13. Coke, 70. Finch, lib. 2. c. 17. p. 179.)

   But altho' the Church-wardens are a corporation [73] for the Goods of
   the Church, they cannot be so for lands, (1 Inst. 3. a. 1 Roll. 393.
   Kel. 32. a. Finch, lib. 2. c. 17. p. 179.) And therefore, if any one
   gives lands to the parish for the use of the Church, it must not be to
   the Church-wardens and their successors, but there must be an especial
   Feoffment made for it in the hands of Feoffes in trust for the
   preserving of the said lands to the use intended, which is from time to
   time to be renewed, as the old trustees die off, by putting new ones in
   their stead. But this cannot be done by a bare election made by the
   survivors. For this alone is not sufficient to vest the trust in them.
   To do this legally the surviving trustees must transfer the whole right
   and trust to them. But because this would be a divesting of themselves,
   if the trustees are not willing so to do, or else if it shalt appear
   inconvenient for the parish to be deprived of the stewardship of those,
   who have been long used and experienced in it, the best course that can
   he taken. in this case will be, that the old trustees do by deed convey
   their right and trust into the hands of some one single person, who
   shall immediately by another deed convey it again to them in
   conjunction with as many other new trustees, as shall be thought fit to
   be added to them, still preserving the lands to the use of the original
   donation. This would be convenient to be done, before the trust be
   reduced to one only surviving trustee; but if it shall happen to be
   thus reduced, the transmission of the trust will then be absolutely
   necessary forthwith to be put in execution, and it will behove the
   parish, without any further delay to press that surviving trustee to
   it. For otherwise, in case the said trustee should die before the said
   trust be legally transferred to others, the lands will descend to his
   heir, and it may cost the parish a Chancery suit again to revive the
   trust.

   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 extended to the repair of his chancel, as well as to that of the
   repair of the body of the Church. For the word Church doth equally
   include the chancel, as well as the nave or body of the Church. So
   saith Lindwood, Vox Ecclesia comprehendit Ecclesiam integram, videlicet
   Navem cum Cancello, i.e. The word Church comprehends the whole Church,
   to wit, the Nave or Body of the Church with the Chancel. (De Officio
   Archidiaconi C. Archidiaconi verb. Fabricam Ecclesiæ.) And therefore
   whatsoever is given in general for the repair of the Church, must
   equally extend to the nave, and chancel, and accordingly be expended in
   a just proportion upon both, that is, in such a proportion as the
   chancel and body of the Church bear to the whole; as for example, if
   the chancel be one third, and the body of the Church two thirds of the
   whole, then one third of the donation must go to the repair of the
   chancel, and the other two to the repair of the body of the Church, and
   so proportionably in other cases, where the proportion is otherwise. If
   the donation be to the body of the Church only, then I confess the
   Minister is excluded. But if otherwise the gift be to the repair of the
   Church in general, he certainly hath as good a right to a
   proportionable share for the repair of the chancel, as the parishioners
   have to the rest for the repair of the body of the Church, and he is
   very much wronged whenever he is excluded from it. If it be said, that
   what is thus .given, is given in charity, and therefore cannot be
   Intended for the Minister, who may well be supposed to be above it; I
   answer hereto, that there is scarce a parish in the kingdom, in which
   there is not some parishioner, who thinks himself in wealth and quality
   above the Minister; and in many of them there are men of great estates,
   and high dignities, as Esquires, Knights, Baronets, Barons, &c. who are
   undoubtedly much more above gifts of charity, than the best preferred
   parish Minister in the realm; yet since these are not excluded from
   partaking of those donations in the repair of the body of the Church,
   but have their estates eased thereby in the Church-rates, of what
   otherwise they must pay towards them, can any one give a reason why the
   Minister may not have a share in such a charity for the repair of the
   chancel, as well as any of these for the repair of the body of the
   Church?

   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 [74] of the
   Church, in this case the Church-wardens are to bring the action in
   their own names, because the property of all such utensils and goods is
   in them as a corporation for the use and benefit of the parish; but in
   the doing hereof they are to observe two things: The first is, that
   being a corporation they act jointly together; for neither of them
   alone is that Corporation, but, both together, and consequently what
   one cloth without the other hath no force in law. For should one of
   them alone commence the action in his own name, without joining the
   name of the other with it, or when it is rightly commenced in the name
   of both, should either of them give a discharge from the action, or
   from the costs or damages, which are recovered upon it, all that is so
   done is void and null in law, and so it will be in every thing else,
   wherein either of them shall take upon him to act alone in his office
   without the other, (2 Croke, 235. Yelverton, 173. Noy, 129. 3 Croke
   179. 2 Brownlow, 215. 1 Roll. Rep. p. 57, 426. Danvers, Title,
   Church-warden, p. 788.) except only in presentments. For each of them
   being sworn to present according to the best of their skill and
   knowledge, one of them may have knowledge of some offences committed,
   which the other hath not. And besides, it is possible that one of them
   may be so perverse and wicked, as to refuse to present what is
   notoriously known to both, but that is no reason that the other should
   be perjured in doing so too. But when both are equally sniffing to do
   their duty, and both equally know the facts to be presented, it's best
   that both join in the presentments, and this is the usual practice in
   this matter. But, Secondly, As they must act jointly in all such
   matters as are above mentioned, so they must take care in all actions
   at law, that they lay them right. If the damages for which they sue
   were done in their own time, they may then lay the action either in
   damnum Parochianorum, or in damnum ipsorum. For the parishioners have
   damage, because they are their goods, and the Church-wardens because
   they having them in trust,. must answer and account for them. But if
   the damages were done in the time of their predecessors, or the action
   be against the said predecessors for such damages as were done by them
   in time of their office, they must lay it only in damnum Parochianorum.
   For they not having had those goods in their trust when those damages
   were done, can by no means be accountable for them, or any damages then
   done them, nor can on any other account as Church-wardens have any
   proper interest in them; and therefore in this case, if they should lay
   it in damnum ipsorum, it would void the action, (Kelway 32. a. 1 Croke,
   145. 1 Leonard, 177. 2 Brownlow, 215. Degge, p. 1. c. 12. Danvers,
   Title Church-warden p. 788.)

   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 other way
   entitled to goods, which never were in the custody of the
   Church-wardens, they must have recourse to the ecclesiastical courts,
   and if they cannot help them, they must then go to Chancery, for they
   have no other way to recover them. But if any goods be once put into
   their possession as Church-wardens, this alone immediately vests the
   property in them for the use of the Church, and they have remedy at law
   against any one that shall afterwards take them away. As for example,
   should any one boy a bell and hang it in the steeple, or make a
   pulpit-cloth, and place it on the pulpit, they thenceforth become the
   goods of the Church; and tho' neither word nor writing were made
   signifying this purpose, yet on their being thus put into the
   possession of the Church-wardens, by that act their property
   immediately vests in them for the use of the Church, and the owners
   placing them there will be interpreted as a consecrating and a giving
   of them to it. And after that the Church-wardens will have for them, as
   well as for any other goods of the Church in their custody, an appeal
   of robbery against him that shall steal them, and an action of trespass
   against him that shall wrongfully take them away, [75] though it be the
   Vicar or Parson of the parish, or the person himself who placed them
   there. And the damages recovered thereby shall go to the use of the
   parish. (Nelson's Rights of the Clergy, Title Church-wardens. Meriton's
   Guide to Church-wardens, ch. 3. Kitchin, Title Wardens of Churches, 3
   Croke, 343. Degge, part 1. c. 12. p. 184.)

   If any person doth in the night-time break up the Church, and enter
   into it, he is guilty of burglary. For, say the Lawyers, Ecclesia est
   Domus mansionalis Omnipotentis Dei, i. e. The Church is the
   Mansion-house of God Almighty. For to break into the mansion-house of
   any one in the night with a felonious intent, is burglary. (Dyer 1,
   Mar. 99. Coke, 3 Instit. cap. 14. p. 64.)

   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, [76]
   they must within a month after make their account, in order whereto
   they must give notice in the Church the Sunday before for a
   parish-meeting, that all that have paid to the rate may, if they think
   fit, be present to take an account, how the money hath been expended.
   At which meeting the Church-wardens having first produced the rates
   which they have made, must give an account, how they have expended the
   sums levied by them, and when this account is allowed by the major part
   of the parishioners then present, it is to be entered in the
   Church-book of accounts, which every parish is to have for this
   purpose, and those who allow the account, are there to set their hands
   to it, and if there be any money remaining over, they are to deliver it
   with the said book of accounts to the succeeding Church-wardens, to be
   put by them to the account of the next year. But if the said rate fails
   short of the disbursements, as much as it doth so, becomes a debt of
   the parish, which the succeeding Church-wardens are bound to pay unto
   them, and account it among their disbursements at the end of the next
   year.

   If any dispute ariseth about the account, it is to be decided before
   the Ordinary [77] , where the Church-wardens are to justify it against
   all exceptions, first, by swearing to the truth and justness of it, and
   also by proving the larger disbursements, that are excepted against.
   For any sum not exceeding forty shillings their oath alone will be
   allowed, without any other proof to make good the account, unless where
   disproved by sufficient evidence to the contrary; but for all sums
   above forty shillings they must also produce their receipts, and prove
   them too, if required, or bring other sufficient testimony to witness
   the payment, before their account can for those particulars be allowed
   and judged good. And therefore it is necessary for Church-wardens, that
   for all such sums laid out on the Church account exceeding forty
   shillings, they be careful to take receipts of the parties to whom they
   pay them, and get them witnessed too by such as see them pay the moneys
   And it is adviseable, that for sums under forty shillings, (unless they
   be very small ones) they also follow the same course. For although
   their oath alone will justify them as to these by law; yet their
   reputations as to a just discharge of their trust will be best
   preserved against all cavils and objections, and satisfaction will be
   best given to the parishioners, if there be vouchers also.

   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 observed) yet there is against a
   false and a knavish one, and such an one shall not only be defalcated
   all those particulars in his account, where the fraud appears, but may
   also be further punished by the Ordinary, as one that hath notoriously
   broken his trust, and violated the oath of his office by his knavery
   and falseness herein.

   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, and a better credit with their neighbours, than too many of
   them usually do. In affairs of this nature, a man ought to act with the
   same care and good husbandry that he doth in his own, or rather with
   much more. For a man may dispose of his own goods as he shall please,
   without loading his conscience with any guilt in so doing; but he
   cannot do so with other mens committed upon oath to his care, without
   breaking both his oath and his trust thereby. Besides, all such are
   desired to consider, they are not only obliged by the promissory oath,
   which they take when they first enter on their office, to deal
   faithfully and truly with the Church and parish in the managing of the
   trust committed to them; but also must, whenever called before the.
   Ordinary to justify their account, take an assertory oath also, that
   they have accordingly done so as to all particulars in the said account
   contained. And therefore Church-wardens need take care, that they be so
   exact and faithful in their accounts, as to put nothing into them, but
   what, if called to it, they may safely swear to, otherwise they may
   become guilty of double perjury herein.

   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 all these particulars, they are then
   fully acquitted of the said office. Can. 89.

   For when the old Church-wardens have thus fairly accounted [78] before
   the Minister, the succeeding Church-wardens, and the major part of the
   parish, and their account is allowed by them, it shall not afterwards
   be in the power of the minor part, much less of any single person who
   shalt pretend to be dissatisfied, to make them account again; but in
   case they shall by any such be called before the Ordinary for this
   purpose, on their alledging, and making proof, that they have already
   accounted before the Minister, the Church-wardens that succeeded them,
   and the major part of the parish, and that their accounts hath been
   allowed by them in the manner as above expressed, this is a peremptory
   exception against all further process, and they must be dismissed with
   their charges; that is, when they are cited only in general to account.
   But if any fraud be charged upon them, and they be cited to answer for
   that, they can have no shelter or protection against it from any such
   plea. For no allowance of account can discharge them of any fraudulent
   dealings, which they may have been guilty of in their office; but
   whenever any such are detected, they. are accountable for them, and
   every parishioner hath a right to claim justice against them herein;
   [79] and there doth not only lye a cause of instance against them on
   the part of the prosecutor for the repairing of the damages done them
   by the said fraud, but also a cause of office on the part of the judge
   to correct them for it. For every such fraud is a breach of the oath,
   which they took at their entering on their office well and truly to
   discharge the same; and it is the duty of the Ordinary to punish them
   for it, whenever by any sufficient proof they are convicted before him
   to have been guilty of it.

   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 that, which is necessary for the performing of
   the divine offices, which the Ordinary is bound to prevent. For he hath
   as to these a right of trust as well as of jurisdiction, and therefore
   none of them are to be disposed of, or otherwise converted to any use
   whatsoever without his consent first had thereto.

   Although it be the properest method to bring the Church-wardens to
   account before the Ordinary [80] , yet if there should be any
   difficulty or obstruction In coming at justice this way, it may also be
   sought for by a writ of account at common law, and therefore those who
   are aggrieved in this matter, have their choice of either way. (See
   Godbolt, 279. 2 Rolls Rep. 71, 106, 107. 1 Siderfin, 281, 282. 2 Keble,
   6, 22. 1 Ventris, 89.)

   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 Minister, with the assistance of other honest
   men, appointed by the Bishop, is to be fairly written out, or engrossed
   in two fair copies on parchment, whereof one is to be laid up in the
   parish chest, and the other in the registry of the Bishop of the
   diocese. And because abuttals frequently alter, by reason of the
   frequent change of the persons that possess the lands abutting, it is
   usual for the Bishop of the diocese at every visitation to require a
   new copy of the said terrier, subscribed and attested by the Minister
   and Church-wardens, to be returned to him, that so .an account being
   given from time to time of all new abuttals, according as they shall
   happen, the right of the whole may he thereby the better preserved. But
   here Ministers are to be cautioned, that they be careful not to make
   any alterations in the said terriers, save of the abuttals only, where
   there is an occasion for it, but exactly preserve the same number of
   parcels, and the same dimensions of them; as first entered in the
   original terrier. For as long as all the terriers of a parsonage or
   vicarage agree herein, they are of force when produced in a court of
   judicature; but if they vary, and one hath more or less than another,
   it creates an uncertainty iu them all, which destroys their evidence,
   and makes them to be of no force for the preservation of those rights,
   for which they were intended, (Can. 87.)

   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 Queen Elizabeth, each in the
   first year of their respective reigns, confirmed this order, and by
   their injunctions strictly commanded the observance of it, (Sparrow's
   Collection, p. 4, 70.) And in the 39th year of the said Queen, anno
   1597, a canon was made in convocation, and ratified by her for the
   establishing of it, (Sparrow's Collection, p. 257.) But the force of
   the canons of that convocation expiring with her, because not confirmed
   by her for her heirs and successors (the words heirs and successors
   being left out in the ratification, through the neglect of him that
   drew the instrument, Ham. Lestrange's Alliances of the Divine Offices,
   p. 22, 23.) in the convocation which was held in the first of King
   James the First, Anno. Dom. 1603. another canon was made for the
   settling of this matter, whereby it is required, 1. That a fair
   parchment-book be provided at the charges of the parish to be the
   register. 2. That this book be carefully kept in the parish-chest under
   three locks, of which the Minister is to have one key, and the
   Church-wardens the other two. 3. That every Sunday, after morning and
   evening prayers, as often as there shall be an occasion, this book be
   taken out of the chest, and that the Minister do then in the presence
   of the said Church-wardens, write and record therein the names of all
   persons christened, together with the names, and sirnames of their
   parents, and also the names of all persons married, and buried in that
   parish in the week foregoing, and the day and year of every such
   christening, marriage, and burial, and that then the book be locked in
   the chest, as before. 4. That when a page is filled with such
   registrations, the Minister and Church-wardens write their names at the
   bottom of the said page, for the attestation of all that is therein
   registered. But this method being operose, and the exact performance of
   it, by reason of the many accidents that frequently intervene, in a
   manner impracticable, it is now no where in all particulars followed.
   If such a book be kept in every parish, and all christenings,
   marriages, and burials duly registered therein, all is fully executed
   that the law intends. But if thus much be not done, it is incumbent on
   the Church-wardens to take notice of the neglect, and present it to the
   Ordinary at the next visitation. Can. 70.

   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, but such only as have been baptized, married, or
   buried within their respective parishes, according to the Order of the
   Church of England. For a practice hath of late been admitted in some
   places, to receive certificates from dissenting ministers of baptisms
   administered by them, and thereon enter them in the parish-register.
   And this is done for the base lucre of a six-penny or twelve-penny fee,
   given to the Minister for that purpose. But whatsoever Minister is
   guilty of this vile practice; betrays both the Church and his trust
   thereby. For he admits those to the privileges of the Church, who
   separate from it, and by so doing encourageth their schism, which is a
   betraying of the Church. And he being entrusted with the keeping of
   this book, for the registering of such baptisms only as have been
   regularly administered within his parish, if he records any other
   therein, he betrays his trust. And moreover, by entering on the
   register which is appointed only for such regular baptisms, other
   baptisms, which are not so, he records for regular baptisms, those
   which are irregular, and thereby gives his teste to a falsehood, and
   makes himself falsarius, that is, a forger of false records, the guilt
   whereof exposeth him to penalties, which would disgrace him all his
   life after, were they duly executed upon him.

   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 allowed by the Minister and
   themselves. (Can. 88.) And if at any time they shall think fit to give
   leave for them to be rung for the recreation of those, who would
   exercise themselves this way, it would be just and fitting to make them
   pay to the use of the parish, as much as may compensate for the wear of
   the bells, bell-wheels, and bell-ropes, and the damages which are done
   them hereby on all such occasions.

   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 duly served by such a curate
   as the Bishop shall approve of, whom they are to pay out of the profits
   of the benefice. And it will be safest for them to get it stated by the
   Ordinary, when they take out the Sequestration, what they art to pay
   him weekly for the serving of the said Cure; for then there can be no
   contention about it, when they make up their accounts. And this trust
   in them is to last, till it be superseded by the institution of a new
   Minister, unless in the interim the Ordinary shall see just cause to
   recall the said sequestration, and grant it to others. And as the
   Ordinary on any such just cause hath power to grant the sequestration
   to others, so also hath he in the first Issuing out of it, and may
   then, if he see reason for it, put the said trust into the hands of
   other men that are willing to accept of it. But the Church-wardens are
   the proper officers for this business, who are bound by virtue of their
   office to take it. upon them, when- soever enjoyned; and therefore
   should they be backward to take out the sequestration, or unwilling to
   meddle therewith, the Ordinary may by his citation call them before
   him, and command them under the penalty of contumacy to take this
   charge upon them, that so the fruits of the benefice be not lost,
   dissipated, or embezzled during the vacancy, for want of proper
   trustees to take care of them.

   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 with
   their account, he gives them his discharge, and this wholly concludes
   the matter. But if he be dissatisfied in any particulars, either that
   he thinks they charge him too high in the expences, or themselves too
   low in the receipts, or in any other matter have not discharged
   themselves as faithful Stewards for him, he may then bring them to
   account before the Ordinary, by whom all things relating hereto are to
   be examined and decided.

   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, unless it be for
   necessary repairs, nor commit any other waste upon the living. (9. Hen.
   3. c. 5.) For if the Minister himself should fell any timber to sell,
   or for any other purpose, unless for the repair of his house or
   chancel, or should cut down any wood, unless for the repairing of the
   gates, stiles, or fences of the premises, or for necessary fuel in his
   house, he doth thereby make waste upon hia living, which waste is
   reckoned a dilapidation of it, and when it is wilfully committed, it is
   a just cause of deprivation. (11 Coke 49. 3 Inst. 204. 1 Rolls Rep. p.
   86. Degge, part. 1. c. 8.) But should the secrestrators, who are
   Trustees to preserve the living, make any such waste upon it, it would
   be much more criminal in them.

   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 Church, chancel, or Minister's
   house in every parish within their respective Deanries, care was
   thereon taken of rectifying whatsoever was amiss herein. But on the
   restoration of King Charles II. the keeping of these Synods, as also
   the appointing of Rural Deans, were by Bishop Reynolds (a presbyterian
   in principle, though then promoted to this See) both let down, to the
   great damage of the Church in this diocese, and have never since been
   revived in it, and perchance now after so long a disusage it would be
   in vain to attempt it, especially in our present circumstances. Bishop
   Lloyd went so far in his primary visitation, as to name rural Deans in
   every deanry of the diocese, but found such opposition to it, both from
   the perverseness of some persons who thought themselves concerned in
   interest to oppose it, as well as from the ill temper of the times,
   which we were then fallen into, that he was forced to let all drop, and
   proceed no further; and so it must rest till a more favourable juncture
   shall arise for the setting of all right again that hath gone wrong
   among us. For it is to be hoped, that there is in the lap of Providence
   an appointed time vet to come, when through God's mercy towards us,
   discipline may he thoroughly revived in this Church, and Christian
   religion again restored to its primitive purity in it, although through
   the ill disposition of the present times, it may justly be feared, that
   without a long purifying in the furnace of affliction, there will be no
   attaining thereto. I pray God grant the end, whatsoever may be the
   means whereby we are to be brought to it.

   There are several other duties incumbent on Church-wardens, in respect
   to the Civil Government [81] of the kingdom, under which they are in
   many cases by Acts of Parliament made officers for the executing of the
   law in reference to them; but it is none of my business to give them
   any directions as to these matters.

   Reviewed, Corrected, and Enlarged in the
   Month of September, Anno 1712.

   HUMPHREY PRIDEAUX,

   Arch-Deacon of Suffolk.
     __________________________________________________________________

   [1] 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.)

   [2] 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.

   [3] 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.

   [4] By Act 4 J. c. 5. they are bound to present tipling or drunkenness,
   and recusants, 3 J. c. 4. 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.

   [5] 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.

   [6] 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.

   [7] This is the Act of Toleration, and was by the 19 G. 3. c. 44.
   declared to be a public act.

   [8] 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.

   [9] 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.

   [10] Only one penalty can be incurred in one day. Cowp. 640.

   [11] 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.

   [12] 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.

   [13] 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.

   [14] 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.

   [15] 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.

   [16] 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.

   [17] Ch. 2. s. 1.

   [18] 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.

   [19] 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.

   [20] Sal. 165.

   [21] Or, if there be a perpetual Vicar, it belongs to him.

   [22] Holt. 1 Sal. 165. Lind. 53.

   [23] 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.

   [24] The right to a Churchway may be claimed and maintained by a libel
   in the spiritual court, see the case 2 Rol. Abr. 287.

   [25] 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.

   [26] 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.

   [27] 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.

   [28] The inclosure of the Church-yard belongs to the parishioners. 2
   Com, Dig. 169.

   [29] 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.

   [30] 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.

   [31] "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.

   [32] 5. Co. 67.

   [33] "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."

   [34] 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.

   [35] The Parson or Vicar cannot adjourn the vestry, but the majority of
   the parishioners may. Fort. 168, Str. 1045.

   [36] 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.

   [37] 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.

   [38] And the first assignee of the certificate. See 3 Burn 77.

   [39] 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

   [40] 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. Ca. 89. 2
   Rol. 106, 107. Lut 1010. Carth. 118. Jon. 439. Cro. Car. 551. Cas.
   Temp. Hardw. 129.

   [41] 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.

   [42] 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.

   [43] 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.

   [44] 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.

   [45] 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.

   [46] 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.

   [47] 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.

   [48] 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.

   [49] 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.

   [50] 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.

   [51] 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.

   [52] By an equal pound rate.

   [53] But a man shall not be charged to the repairs of the Church in
   respect of a light-house. Bunb. 81.

   [54] 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.

   [55] Church rates depend upon prescription alone. 4 T. Rep. 669.

   [56] Or rated for more than he has, or that the rate was needless.
   Wood. b. 1. c.

   [57] If any one finds himself aggrieved at the inequality of the
   assessment, his appeal must be to the ecclesiastical judge. Degge 172.

   [58] Also a quaker, refusing to pay Church rates, may be sued as other
   parishioners in the ecclesiastical court.

   [59] 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 Gen. v. Brereton 2 Ves. 425. N. Nomination to a perpetual
   curacy, may be by parol, as well as presentation to a Church.

   [60] In the case alluded to, they had burial in the Mother-Church. 3
   Mod. 264. see also 2 Rol. 289, 1. 50. Hob. 66.

   [61] Now usually spelt aisle.

   [62] 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.

   [63] T. Rep, 432. For the seat doth not belong to the person, but to
   the inhabitant. Gibs. 221.

   [64] 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.

   [65] Or priority in a seat. Gibs. 221.

   [66] 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 Mich. 21 G. 3. 1 T. Rep. 428.
   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. Mich. 24 G. 3. B. R. 1 T. Rep. 431. n. 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.

   [67] The disposal of all seats in nave ecclesia belongs to the
   Ordinary. B. H. 7. 12. Godb. 200. 2 Bal. 150.

   [68] 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.

   [69] A person may prescribe for a pew in the chancel of a Church.
   Griffiths v. Matthews. T. 33 G. 111. 5 T. Rep. 297.

   [70] Gibs. 223, 224.

   [71] 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.

   [72] See note p. 34.

   [73] 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.

   [74] 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.

   [75] He who steals goods belonging to a parish Church, may be indicted
   for stealing the goods of the parishioners. 1 Hawk. 94.

   [76] 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.

   [77] 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.

   [78] 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.

   [79] 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.

   [80] 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.

   [81] 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. Gen. 2. c. 8. And they, with the Constable and Surveyor
   of the highways, in chusing and returning new Surveyors. 13 G. c. 78.
     __________________________________________________________________

Circular Letter to the Clergy of the Arch-Deaconry of Suffolk.

   My Worthy Brethren,

   [82] ALTHOUGH it hath been my constant practice in ail my visitations
   to examine the Church-wardens one by one, as on several other other
   articles, so particularly on this; Whether there he any in their
   parish, that absent themselves from Church, who resort to no other
   assembly for the worship of God, which is by law now tolerated? And I
   have frequently extorted from them confessions, that there are several
   such in their respective parishes, yet have always found them so
   obstinately bent against putting them into their presentments, that
   notwithstanding whatever I have said unto them, either from the
   obligation of their oaths, or any other argument to press them to do
   their duty in this particular, I have not yet been able to prevail,
   that any more than six or seven only from one parish (whom I have since
   reformed) have ever been presented to me on this account. The reason of
   which I find to be, that there is a wicked persuasion propagated among
   them, and now generally spread through the whole body of the people, as
   if by the late act of indulgence they were now wholly let loose from
   all manner of laws relating to religion, and every man left to the
   freedom of his own choice, whether he will pay any worship to God or
   no: Which being a licence they are very fond of having, this makes them
   obstinately persist (whatever they are told to the contrary) that it is
   now granted unto them. And in confidence hereof the people neglecting
   to come to Church, and the officers of the parish refusing to present
   them for it, and through want of their presentments all process of law
   against such absenters having now for sonic years last past wholly
   surceased, such a gap becomes open hereby to atheism and irreligion,
   that (as I am from many hands well informed) the dissenters from our
   worship, for whose sake the said indulgence was granted, begin now in
   most places to be exceeded by the number of those, who take a liberty
   from hence to pay God none at all. And they being like still to
   increase as long as thus permitted to their own wicked inclinations, I
   think. it now concerns us, whose peculiar duty is to attend the honour
   of God, and the salvation of the souls of men, to interpose all the
   endeavours we are able, both by discipline as well as doctrine, to put
   a stop to so great a wickedness. And in order hereto, the most
   effectual course being to remove the cause from whence it proceeds,
   viz. that pernicious error they have so greedily imbibed concerning the
   liberty granted by the said act of indulgence: And the only way now
   likely to do this being sensibly to convince them of their mistake
   herein, by a strict prosecution of all such, irreligious wretches, who
   thus live without God in the world, and renounce his worship; that I
   may be enabled to do my duty in this particular, I desire that you
   would take Some fitting time before my next visitation to call the
   officers of your parishes together, and then as effectually as you can,
   inculcate. into them these following particulars.

   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 put
   them in mind of their oaths, and exhort them to keep a good conscience
   in the faithful discharge of them; and also me to let you know, that it
   is part of your duty as their Ministers so to do.

   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 Lord's
   Day for the worship of God, when absent from Church, the presentment
   shall be immediately dismissed without putting them to the least
   trouble or charge herein.

   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 shall empower me to inflict the censures of the Church,
   and yon enable me by the method afore prescribed to proceed thereto.

   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
   detestation all such prophane and wicked apostates from him, and will
   be so far from making themselves parties for them, while under so great
   an impiety, that instead of your drawing any odium upon you on their
   account, I reckon the more rigorously you proceed with such, the more
   it will turn to your praise, even among the bitterest of those
   sectaries that are adversaries unto us. For although such have cried
   out persecution loud enough against us, I apprehend in this case there
   is greater dander from them of the contrary extreme, and that, if we do
   nothing herein, we shalt as assuredly find them ere long (now they have
   nothing else to say) laying this very heavily to our charge, that we
   can he content to permit such irreligious wretches to live without
   censure among us in so great an impiety, altho' they themselves in
   reality have given the occasion that led them thereinto. In sum, no one
   that pretends any thing to religion, can ever be offended with any
   method that you take for the reforming of such as profess none at all.
   And therefore I think you need not fear any odium upon you for any
   thing that you do on this account. However, as to your presenting them
   yourselves in case the Church-wardens will not, I only recommend it
   unto you, but press it no farther than you in your own discretion shall
   judge most proper. but since the perjury of those Church-wardens, who
   thus refuse to do the duty they have been sworn to, can no otherwise be
   detected but by yourselves, who only besides them have right to
   present, I hope you will not permit such a wickedness to pass without
   that correction which it deserves.

   As to the second objection, if any so prosecuted for their irreligious
   neglect of God's worship, do thereon go to conventicles, my answer is,
   so let them if they will. It is much better they should serve God any
   way, even with the schismatic or the heretick, than no way at all. Were
   we to promote a party only, or study the interest of a sect, then I
   confess it would be the wiser course rather to let them stand neuters,
   than list themselves with the enemy, and be of no religion at all,
   rather than of theirs that are adversaries unto us. But our business is
   to promote the honour and worship of our God, whose ministers we are;
   and what will best conduce hereto in the executing of those powers
   intrusted with us, whether of doctrine or discipline, that is it which
   we are to do without any other by-regard whatever. And therefore as far
   as we do by these means of our Ministry make those wretched people to
   own God and his worship, whether it be with us, or whether it be with
   them that separate from its, thus far certainly we serve the end of our
   calling: But I hope no such effect may at all follow, as is here
   objected; on my considering the whole matter, I am apt to believe there
   will not, or at most very rarely, it not being probable that those who
   have no zeal for the public worship of God, should immediately for the
   sake thereof put themselves to the trouble of going sometimes six or
   seven miles to a conventicle, and also to the charge of contributing to
   the maintenance of the Minister they there resort to, when without
   either they may discharge themselves at home at their own Parish
   Church. If spite should do this for once or twice, they will soon grow
   weary in this case, and unless atheism become turned into enthusiasm,
   you shall be sure to see them at Church again. However, were the danger
   much greater than is here supposed, that is no reason for us not to do
   our duty. If we will follow the practice of Primitive Christians, which
   most Churches desire to make their pattern, I am sure it will not. For
   they never thought it a reason to relax their discipline, least their
   people when pressed therewith, should revolt to heathenism; but on the
   contrary, for .this very cause held it up to the highest pitch of
   strictness and severity through all their Churches, as the properest
   means to keep them from that apostacy. And this with the blessing of
   God amidst their greatest pressures became the prime reason of their
   support; and if we will act therein with the same sincerity as they
   did, I doubt, not, we may have the same success. However, thus far I am
   sure, if we faithfully discharge our duty in all the parts of our
   Ministry committed unto us, whatever the event be, we can say as to
   ourselves, Liberavimus animas nostras. And altho' it really happen,
   that the people thus. prosecuted, as I propose, from atheism run into
   fanaticism, yet it will he some advantage to gain them thus And there
   will be also this further benefit, that others, who are prone enough,
   if left to their own liberty, to neglect the worship of God, will be
   deterred from falling into this apostacy, when they see by the
   corrections and punishments inflicted for it, that they cannot do it
   with impunity, but are still liable, as formerly, to the censures of
   the Church, and the penalties of the law for the wickedness hereof.

   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 the deepest dye, as being
   the highest defection from God, and that which he most resents, and
   therefore we cannot too soon endeavour to put a stop to so great an
   impiety, which if permitted still to grow, may perchance, as other
   mischiefs, become a torrent at last too strong for us to stem, and
   involve the whole nation in the guilt thereof. For when sins grow up
   under the countenance of a law (as this pretends to do) and no law is
   executed to repress them, the whole community thereby mikes themselves
   parties to the guilt, which private men contract; and in that they
   countenance the impiety, or do not what they ought to repress it, they
   make it their own. And national judgments being the usual consequences
   of national sins, you cannot better befriend the land in which you
   live, or the Government under which you have your protection, than by
   putting that stop to this great impiety of atheism and irreligion, as
   may divert those heavy punishments from the revenging hand of the
   Almighty, which otherwise so great a provocation must necessarily draw
   down upon us. We have seen our land long enough the theatre of God's
   judgments, and at present I suppose there are none but must be sensible
   how much we smart under them. And the end of their being sent on the
   earth being, that the inhabitants thereof should learn righteousness,
   if instead of answering this end, for which we have them upon us, in
   reforming our lives and departing, from our iniquities, we grow worse
   under their chastisements, and to vice, and debauchery add atheism and
   irreligion, and to schism and heresie a total defection from the
   Almighty, what else can we expect, but that his correcting judgments
   will be turned into destroying judgments, and the great enemy and
   oppressor be let loose upon us to take from us both our land and
   nation? They who by such wickednesses as these provoke God against us,
   work stronger for our destruction, than all the power of France and
   Rome united together against us, and therefore ought to be detested by
   us as the greatest troublers of our Israel, and the common enemies both
   of ourselves, as well as of our God; and every authority that is in the
   land ought to be employed to suppress them; and I know no other way but
   this to avoid making the guilt to be ours as well as theirs, and
   thereby involving the whole nation in the vengeance which is due
   thereto. The punishment of those Achan's may again bring back God to
   our nation with his blessing of peace and prosperity upon us, and the
   reforming of our iniquities become a means of thoroughly reconciling
   him unto us, and when his judgments are in a land, I know no other
   means whereby it may be effected.

   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, I
   think, the first time that we have, always the Most seasonable to do
   God's work and our own duty in. Life is short, and opportunities are
   few, and if we neglect the present, how know we that we may have any
   more? And for this reason, say I, without placing dilatory hopes, and
   dilatory expectations on future times, let us lay hold on the present,
   and while we have them, do all the good in them that we are able. And
   if we will have their Majesties and their kingdoms freed from the
   present pressures, I know no means can be more effectual for it, than
   the removing out of our land those sins which they are sent to punish.
   The bringing of righteousness and religion into a land, is the most
   successful way to restore peace and prosperity unto it. And if we do
   our part in effecting the former, we may thereby become the blessed
   instruments of restoring the latter. And then the blessing and favour
   of the Almighty shall rest upon the heads both of us and our King. But
   to tarry for God's establishing of this blessing among us, before we
   will reform ourselves, is to put the effects before the cause, and
   impose that unreasonable condition to the Almighty for our amendment,
   as to expect he should invert the whole method of his providence for
   the sake hereof, and first bribe us with his blessings, before we will
   betake ourselves to that righteousness, which is to make us worthy of
   them. I confess their present Majesties, whom God hath now advanced to
   the government of these kingdoms, are excellently fitted for the work
   of a reformation, both by their zeal for religion, and their exemplary
   practice of it themselves, and all good men have great expectations
   from them this way, and I doubt not they will fully answer them by some
   more than ordinary attempts to this end, as soon as the exigency of
   their affairs will admit. And indeed at the present they have not been
   wanting to do their part herein, as far as in the ordinary course of
   their power they are able. For the hands of Kings by which they act,
   are their Officers and Ministers which execute their authority under
   them; and it is well known, what their Majesties commands have been to
   all these in order to the reforming of the iniquities that are among
   us. Their proclamations have frequently come forth for the putting of
   their laws in execution against them. And that the ecclesiastical power
   might also concur with the civil in order hereto, we have their
   Majesties excellent letter to the Bishops to this purpose, and through
   them to all others invested with ecclesiastical jurisdiction under
   them, commanding us to put all our canons and constitutions in force
   for the reclaiming men from sin, and reducing them to that practice of
   righteousness and piety, which the holy religion we profess requires
   from them. And therefore if we want the authority of the King to put us
   forward in this work, thus far we have it already, as well as the
   commands of our God upon us faithfully to discharge all the duties of
   our Ministry in order hereto. And these particulars I now press upon
   you, being especial parts thereof, how can we answer it to either, if
   we do not our diligence herein to the utmost we are able? I hope that
   when alt hath been considered that I have now said, we shall be all
   willing and earnest so to do. And then I doubt not, but that by God's
   gracious blessing upon our endeavours, we shall reap that good effect
   hereby which we propose; that so all atheism and irreligion being
   suppressed among us, and the true practice of righteousness and piety
   advanced in their stead, God's holy name may be glorified, his people
   edified, our Church and nation blessed, and our own souls everlastingly
   saved in the day of the Lord. I pray God direct us in all things for
   the accomplishing of this end,

   And I am,

   Your most affectionate Brother and Servant,

   HUMPHREY PRIDEAUX,

   Arch-Deacon of Suffolk.

   August 17th, 1692.
     __________________________________________________________________

   [82] 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.
     __________________________________________________________________

A COMPENDIUM

    OF THE

                            LAW RELATING TO TITHES.
     __________________________________________________________________

1. Of the Nature of Tithes.

   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 the mode of cultivation, or the quantity
   produced, or the use to which it is applied.

   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.
     __________________________________________________________________

2. Of Agreement as to Tithe, Composition, Notice, &c.

   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, the successor
   shall be intitled to tithes in kind only from the death, and the
   executor of the late incumbent to a proportion according to the
   agreement till the time of his testator's death. Bunb. 294. 2 Gwill.
   703.

   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 tender of the money, and if such plea be rejected, a prohibition will
   be granted. 3 Gwill. 926.

   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.
     __________________________________________________________________

3. Of a Modus, Custom, &c.

   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..
     __________________________________________________________________

4. Of Setting out Tithes.

   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.
     __________________________________________________________________

5. Of Subtraction of Tithes.

   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 Parson, &c. or farmer, under pain of treble value of the tithes
   carried away.

   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.
     __________________________________________________________________

6. Of Recovery of Tithes.

   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.
     __________________________________________________________________

7. Of Discharge from Tithes.

   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.
     __________________________________________________________________

8. Of removing Tithes.

   If the Parson dues not take away his tithes within a reasonable, time,
   but suffers the same to continue upon the land to the damage of the
   parishioners, an action on the case lies. Noy. 31.

   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 pay no tithes. Nor is tithe payable for milch cattle reserved
   for calving, while they are dry; but, if afterwards sold, or milked in
   another parish, an agistment-tithe is due for them for the time they
   were dry. Hetl. 100. 1 L. Raym. 130. No tithe is due for the pasture of
   young cattle, 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. An agistment-tithe is due for all such cattle as are
   kept for sale. Cro. Eliz. 446, 447. Jenk. 28. pl. 6. Cro. Car. 237.
   Cro. Jac. 430. 1 Roll. Abr. 647. pl. 14. But if any cattle which have
   neither been used in husbandry nor for the pail, are killed and spe at
   home, no tithe is due for their pasture. Jenk. 281, pl. 6. Cro. Eliz.
   446, 476. Cro. Car. 237. Agistment tithe is due for depasturing any
   sort of cattle, the property of a stranger, to be paid by the occupier
   of land. Cro. Eliz. 276. Cro. Jac. 276. Bumb. 1 Freem. 329, 2 Gwill.
   502. No agistment tithe is due for any beasts depastured on the
   headlands of ploughed fields, so that they are not wider than is
   sufficient to turn the plough and horses upon. 1 Roll. Abr. 646. pl.
   19.

   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;
   but it shall, during the seven years, pay such small tithes as have
   been used tobe paid before. I Gwill. 59. 60. And, if land is over-run
   with bushes, or become unprofitable by bad husbandry, it is not barren
   land; and, if it be grubbed, or ploughed and sown, it immediately pays
   tithes. 2 Inst. 656. Cro. Eliz. 475. 2 L. Raym. 991.

   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 years together. 1 Roll. Abr. 648. Raym. 277.
   For calves bought in, and suckIers, no tithes are due.

   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
   titheable. 3 Gwill. 794. The tithe of corn ground in a horse malt mill,
   is a personal tithe, and due only where it had been paid 49 years
   before; and not payable by the tenth toll dish of the corn ground, but
   by a tenth part of the clear profit, over and above all incidental
   charges of rent, &c. 1 Bro. Par. Cas. 157. 4 Gwill. 1460. It is now
   settled that tithes of all mills are personal tithes; and only a tenth
   part of the clear profit, deducting all charges and expences, is
   payable as tithes. Bro. P. C. & 2 P. Wms. 463.

   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 feræ naturæ yield no tithes
   of eggs or young. 1 Roll. Abr. 636.

   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 them. 1
   Cro. 139; Bunb. 279. They are a great tithe whether green or ripe, and
   belong to the Rector. Bunb. 279. in not.

   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 paid of the whole; because, it would be very diffcult to
   separate the titheable wood from that which is not so; and the owner
   ought to suffer for his folly in mixing them. Walton v. Tryon and Bimb.
   98. Tithes are in general due of ash, beech, birch, hornbeam,. hazel,
   holly, willow, sallow, alder, elder, maple, and whitethorn trees, (and
   of fruit-trees, see Fruit-trees,) of whatsoever age they are; because,
   these are not timber. Plowd. 470. Cro. Eliz. 477. 1 Cro. Jac. 190. 1
   Roll. Abr. 640. pl. 5, 6. Brownl. 94. But if the wood of any of these
   trees is used in a particular part of the country, where timber is
   scarce, in building and repairing, no tithe is due of such wood, (if of
   the age of twenty years,) in that part of the .country. Hob. 289.
   Brownl. 24. If a timber tree be lopped before it is 20 years old, and
   afterwards be lopped every 10 or 7 years, tithes shall be paid of such
   lops. 2 Gwill. 833. Tithe is due of wood made into charcoal. Id. 577.
   Tithes is due of broom made into bavins; and of the lops and tops of
   old timber pollards, and of wood growing in hedge rows. Id. 542. But it
   is said the lops and tops of old pollard oaks and ashes are exempt from
   tithe, Ambl. 139. It is laid down in several old books, that; if a
   timber-tree, after it is of the age of twenty years, decays, so as to
   be unfit to be used in building, no tithe is due of the wood of this
   tree, because it was once privileged. 11 Rep. 481 Cro. Eliz. 477. Cro.
   Jac. 100. 1 Roll. Abr. 480, p1. 2. But since Stat. 45. Ed. 3. 3. no
   tithes ought to be paid of great trees of the age of 20, 30, or 40
   years, and if they are demanded of such trees, a prohibition goes. As
   of oak, ash, elm, of above 20 years growth, for they are timber,
   throughout the whole kingdom.--So of beech, maple, &c. or other trees
   in a country where they are used for timber. 1 Rol. 640. 1. 30. Mo.
   541. Noy. 30. 2 Rol. 83. Tho' oaks, &c. of above 20 years, are decayed,
   and only fit for fuel. Mo. 541. Cro. El. 477. So if oaks, &c. are
   topped within the age of 20 years, and afterwards the lops are suffered
   to grow above 20 years, no tithes are demanded of these lops, for they
   are timber. 1 Rol. 640. 1. 7. 2. Leo. 79. So if oaks, &c. of above 20
   years be topped or lopped, usually within 20 years, no tithes are due
   for the tops or lops. 1 Rol. 640. 15. Semb. 2 Cro. 100. Cro. El. 477,
   8. Mo. 908. Godb. 175. Nor for the trunks of oaks, &c. after 20 years,
   tho' become rotten. 1 Rol. 640. l. 20. 11 Co. 48. a. 81. a. Nor for the
   germin of such timber-trees, which grow de radicibus et stipitibus,
   after the tree is cut down. 1. Rol. 640. l. 20. 11 Co. 48. b. Nor for
   the bark of such trees; for it is privileged in respect of the tree. 1
   Rol. 640. l. 35. 11 Co. 49. a. Nor for a small quantity of underwood,
   put in faggots with the lops of oaks, &c. 2 Leo. 79. Cro. El. 347. Nor
   for roots, or stubs of trees, or underwood cut, for which tithes were
   paid; if they be rooted up before new germins grow. 1. Rol. 637. l. 35.
   Mar. 58. 64. Nor for the wood of fruit trees, cut the same year in
   which the tithe was paid for the fruit. 2 Inst. 621. Nor for wood used
   for fences. Mo. 917. 1 Rol. 644. l. 40. 2 Inst. 652. Nor for wood for
   burning of bricks for repairing the house of the parishioner. Cod. Ju.
   Eccl. 708. 1 Rol. 645. l. 10. Nor for dotards, used for fuel. Mo. 908.
   Nor for wood for necessaries in the house, and for fences by which the
   Parson has uberiores decimas. 1 Sid. 447. Nor for broom, furze, &c.
   used for firing in the house of the parishioner. Cro. El. 609. Mo. 909.
   1 Rol. 644. b. 43. Tithes of underwood shall be paid by him who cuts
   it. So tithes of a nursery of plants shall he paid by him who pulls
   them up. Hard. 380.--Vide Nursery.

   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 at Mark-tide, is titheable: 1 Roll. Abr. 646, 647. 2
   Inst. 652. Bunb. 90.

   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.
     __________________________________________________________________

                                     INDEX.

    TO THE

DIRECTIONS TO CHURCH-WARDENS.

   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.
     __________________________________________________________________

                                    Indexes
     __________________________________________________________________

Index of Latin Words and Phrases

     * Præsentis approbatione Concilii duximus statuendum, quod tam
       religiosi, quam alli quicunque possessiones aut prædia seu reditus,
       quæ de Gleba reficiendarum ecclesiarum, seu de dote non existunt,
       in quibuscunque parochiis nostræ provinciæ obtinentes, seu in
       posterum habituri, in ipsis degentes: [1]1
     * corrupte, : [2]1
     * Ad refectionem Ecclesiæ debet omnis populus secundum legem
       subvenire: [3]1
     * Ecclesia est Domus mansionalis Omnipotentis Dei: [4]1
     * Liberavimus animas nostras: [5]1
     * Non obstante: [6]1
     * Quadragenalis Præscriptio omnem prorsus actionem tollit: [7]1
     * Testes Synodales: [8]1
     * Unusquisque Parochianus tenetur ad reparationem Ecclesiæ juxta
       portionem terræ, quam possidet infra Parochiam, & secundum numerum
       animalium, quæ tenet & nutrit ibidem: [9]1
     * Vox Ecclesia comprehendit Ecclesiam integram, videlicet Navem cum
       Cancello: [10]1
     * ab ingressa ecclesiæ: [11]1
     * ad libitum: [12]1
     * articuli cleri: [13]1
     * de facto: [14]1 [15]2 [16]3
     * de jure: [17]1
     * de radicibus et stipitibus: [18]1
     * decima hortorum: [19]1 [20]2
     * ex officio: [21]1
     * falsarius: [22]1
     * feræ naturæ: [23]1 [24]2
     * functus officio: [25]1
     * habeas corpus: [26]1
     * in damnum Parochianorum: [27]1 [28]2
     * in damnum ipsorum: [29]1 [30]2
     * in futuro: [31]1
     * in nave ecclesia: [32]1
     * ipso facto: [33]1 [34]2 [35]3
     * lis pendens: [36]1
     * prima facie: [37]1 [38]2
     * quo warranto: [39]1 [40]2 [41]3
     * ratione officii: [42]1
     * teste: [43]1
     * toties quoties: [44]1
     * uberiores decimas: [45]1
     __________________________________________________________________

Index of Pages of the Print Edition

   [46]i  [47]ii  [48]iii  [49]iv  [50]1  [51]2  [52]3  [53]4  [54]5
   [55]6  [56]7  [57]8  [58]9  [59]10  [60]11  [61]12  [62]13  [63]14
   [64]15  [65]16  [66]17  [67]18  [68]19  [69]20  [70]21  [71]22  [72]23
   [73]24  [74]25  [75]26  [76]27  [77]28  [78]29  [79]30  [80]31  [81]32
   [82]33  [83]34  [84]35  [85]36  [86]37  [87]38  [88]39  [89]40  [90]41
   [91]42  [92]43  [93]44  [94]45  [95]46  [96]47  [97]48  [98]49  [99]50
   [100]51  [101]52  [102]53  [103]54  [104]55  [105]56  [106]57  [107]58
   [108]59  [109]60  [110]61  [111]62  [112]63  [113]64  [114]65  [115]66
   [116]67  [117]68  [118]69  [119]70  [120]71  [121]72  [122]73  [123]74
   [124]75  [125]76  [126]77  [127]78  [128]79  [129]80  [130]81  [131]82
   [132]83  [133]84  [134]85  [135]86  [136]87  [137]88  [138]89  [139]90
   [140]91  [141]92  [142]93  [143]94  [144]95  [145]96  [146]97  [147]98
   [148]99  [149]100  [150]101  [151]102  [152]103  [153]104  [154]105
   [155]106  [156]107  [157]108  [158]109  [159]110  [160]111  [161]112
   [162]113  [163]114  [164]115  [165]116  [166]117  [167]118  [168]119
   [169]120  [170]121  [171]122  [172]123  [173]124  [174]125  [175]126
   [176]127  [177]128  [178]129  [179]130  [180]131  [181]132  [182]133
   [183]134  [184]135  [185]136  [186]137  [187]138  [188]139  [189]140
   [190]141  [191]142  [192]143  [193]144  [194]145  [195]146  [196]147
   [197]148  [198]149  [199]150  [200]151  [201]152  [202]153  [203]154
   [204]155  [205]156  [206]157
     __________________________________________________________________

            This document is from the Christian Classics Ethereal
               Library at Calvin College, http://www.ccel.org,
                   generated on demand from ThML source.

References

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