Summary jurisdiction in recovery of. Mortuaries. power to determine the existence or non-existence of a custom. If, therefore, the custom were disputed, the ecclesiastical judge would not be permitted to proceed in the suit; and if he did so, the party might have a prohibition, for the custom must be tried at common law. Whether Easter offerings could be recovered by a suit in a court of equity appears doubtful. The result of the authorities appears to be, that in a suit for tithes the bill might pray an account of Easter offerings also, but that neither could a bill be filed for an account of Easter offerings only, nor would any decree be made as to them if an account of them had been prayed in a suit for tithes, and the bill as to tithes had been dismissed." It would, however, appear very improbable that the amount of Easter offerings sought to be recovered should exceed the sum of 101., in which case the mode of recovery would be the same as that already spoken of for the recovery of tithes which do not exceed that value; and every other mode of recovery, except that of proceeding under the summary jurisdiction there mentioned, is altogether superseded. k Mortuaries are another species of customary payments, as to which there never has been any doubt but that they are payable by special custom only; and they are said to have been given pro recompensatione subtractionis decimarum personalium, necnon et oblationum. The payment of them appears to have been decreed by a provincial canon made in the year 1378, but there is no authority to show how far the canon was ever obeyed, for the laity could never have been bound by it. It is probable, however, that shortly previous to the Reformation some considerable disputes had taken place respecting the payment of these mortuaries, for in the 21st year of Henry VIII.' we find a statute passed for restraining the excessive exaction of them; by which act it was enacted, 1. That no mortuary should be paid where the goods of the deceased were under the value of ten marks. 2. That no mortuaries should be given or demanded, except in those places where they had been used to be paid or given. 3. That there should be but one mortuary paid for one person, and after the rate, that where the moveable goods were of the value of ten marks and under thirty pounds, after all debts paid, three shillings and four-pence. Where the value amounted to thirty pounds and under forty pounds, six shillings and See Vernon v. Sloane, Gw. 889; 2 E. & Y. 169; Lawrence v. Yeates, 2 Wood, 276; 1 E. & Y. 828; Baker v. Athill, 2 E. & Y. 415. 1 See 6 & 7 Will. 4, c. 74. k 2 Inst. 491. I C. 6. eight-pence. If they were of the value of forty pounds and upwards, ten shillings. 4. That no mortuary should be paid for any married woman, child or person not keeping house, nor for any wayfaring man or person who did not reside where he died; but that the mortuaries of such non-resident persons should be paid at their usual place of abode. 5. That parsons, vicars, curates, parish priests and other spiritual persons may receive bequests or legacies notwithstanding the act. 6. No mortuaries to be paid in Wales, Calais or Berwick, except where they have been usually paid. 7. That the four Welsh bishops may take mortuaries notwithstanding the act. 8. That where less than the rates aforesaid have been paid, the same payments shall continue; but that no mortuary shall be taken in such places for persons exempted by the act. Tithes in the city of London are a customary payment, Tithes in the which seems to partake more of the nature of the payments city of London. spoken of in the present chapter than of tithes; but the special custom has been clearly established, and the payment is not voluntary. These tithes, or substitutions for tithes, are an assessment upon each house in proportion to the rent, and a variety of cases have been decided connected with this subject; but as it is one of local interest only, and unconnected with the general subject of tithes or offerings, it would be too great a deviation from the purpose of this work to enter more fully into the subject.m Easter offerings, mortuaries and surplice fees may now Offerings, &c. be commuted for a certain sum, by a parochial agreement at may be comany time before the confirmation of the apportionment after muted. a compulsory award for commutation of tithes; but the payments so fixed must be made payable on the same days as the tithe rent-charge, and they are made recoverable in the same manner. It is left to the judgment of the commissioners to decide what provisions and powers in the acts for the commutation of tithes, as to parochial agreements, shall be applicable to agreements of this kind." m For the law on this subject see 2 Eagle on Tithes, ch. 17. Primer seisin. The origin of first fruits. CHAPTER IV. of first fruits and tenths, and oF THEIR APPLICATION. RELIEFS, which were incident to all the feudal tenures, were a sum of money paid to the lord by the heir upon his first coming to the estate; and of a nature somewhat similar to this was primer seisin, another feudal burthen, which was only incident to the king's tenants in capite, and which was a right which the king had, when any of his tenants in capite died seised of a knight's fee, to receive of the heir (provided he were of full age) one whole year's profits of the lands, if they were in immediate possession, and half a year's profits if the lands were in reversion expectant on an estate for life." This practice seems not to have long obtained in England, if ever, with regard to tenure under inferior lords; but as to the king's tenures in capite, the prima seisina was expressly declared, under Henry III. and Edward II., to belong to the king by prerogative, in contradistinction to other lords. The king was entitled to enter and receive the whole profits of the land till livery was sued; which suit being commonly made within a year and a day next after the death of the tenant, in pursuance of the strict feudal rule, therefore the king used to take as an average the first fruits, that is to say, one year's profits of the lands.b In this feudal custom we have the origin of the payment of the first fruits of benefices: for the popes claimed to be the feudal lords of the church; and, in analogy to the custom just mentioned, they laid claim to profits of the first year upon the institution of every clergyman. The first introduction of this claim appears to have been by Pandulph, the pope's legate during the reigns of John and Henry III., but at that time in the see of Norwich only, and afterwards attempted to be made universal by Popes Clement V. and John XXII. But, as in most cases of this kind, the exact time of their introduction, as a tax generally acquiesced in, is not certain. And it is said, with probability, to have been a tribute gradually by little and little imposed, in the first place on such vacant benefices as the pope had himself bestowed; and certainly there is nothing to lead to the belief that, as a mere claim of a payment to the pope, first fruits were ever universally, or even generally, admitted in this country until the temporal power and interest came to unite with that of the spiritual, for the purpose of exacting them. This seems to have been in the year 1253, when Pope Innocent IV. gave the first fruits and tenths to King Henry III. for three years, which occasioned a taxation in the following year, sometimes called the Norwich Taxation, and sometimes Pope Innocent's Valor. And this seems to confirm the above supposition; for it is not probable that the pope would have given up such a revenue for three years, if he had been able to collect it generally for himself; but if the claim had not then been. generally acquiesced in, it would have been a stroke of policy in order thereby to get a confirmation of a doubtful claim. In 1288, Pope Nicholas IV. granted the tenths to King Edward I. for six years, towards defraying the expenses of an expedition to the Holy Land; and that they might be collected to their full value, a taxation, by the king's precept, was begun in that year, and finished, as to the province of Canterbury, in 1291, and as to that of York, in the following year, the whole being under the direction of John, Bishop of Winchester, and Oliver, Bishop of Lincoln.d But, nevertheless, it appears that in the same reign, at a parliament held at Carlisle, great complaint was made of intolerable oppressions of churches and monasteries by William Testa (called Mala Testa) and the legate of the pope, and principally concerning first fruits; at which parliament the king, by the assent of his barons, denied the payment of first fruits of spiritual promotions within England, which were founded by his progenitors, and the nobles and others of the realm, for the service of God, alms and hospitality. And to this effect he wrote to the pope; and thereupon the pope relinquished his demand of first fruit of abbeys; in which parliament the first fruits for two years were granted to the king. The tenths, or decimæ, were the tenth part of the an- Tenths. nual profit of each living by the same valuation, which was also claimed by the holy see, under no better pretence than a strange misapplication of that precept of the Levitical law, which directs that the Levites should offer See Hume's Hist. of England; 1 Black. Com. 284; 2 Burn's E. L. 273, and compare authorities there mentioned. See Coleridge's note to 1 Black. Com. 284. * 2 Burn's E. L. 274, and authorities there cited. First fruits and tenths annexed to the crown. For what and the tenth part of their tithes, as a heave offering to the Lord, and give it to Aaron the high priest. But this claim of the pope met with a vigorous resistance from the English parliament, and a variety of acts were passed to prevent and restrain it, particularly the statute 6 Henry IV. c. 1, which calls it a horrible mischief, a damnable custom. But the popish clergy, blindly devoted to the will of a foreign master, still kept it on foot; sometimes more secretly, sometimes more openly and avowedly; so that in the reign of Henry VIII. it was computed, that in the compass of fifty years, 800,000 ducats had been sent to Rome for first fruits only. And as the clergy expressed this willingness to contribute so much of their income to the head of the Church, it was thought proper (when, in the same reign, the papal power was abolished, and the king was declared the head of the Church of England) to annex this revenue to the crown; which was done by statute 26 Henry VIII. c. 3, and a new valor beneficiorum was then made, by which the clergy are at present rated. It does not appear that it would be useful now to enter into any detailed account of the different dealings with first fruits and tenths at the time of the Reformation; we follow, therefore, the concise account given by Blackstone. By the last-mentioned statute, confirmed by that of when payable. 1 Eliz. c. 4, all vicarages under ten pounds a-year, and all rectories under ten marks, are discharged from the payment of first fruits; and if in such livings as continue chargeable with this payment, the incumbent lives but half a year, he shall pay only one quarter of his first fruits; if but one whole year, then half of them: if a year and a half, three quarters; and if two years, then the whole, and not otherwise. Likewise, by the statute 27 Henry VIII. c. 8, no tenths are to be paid for the first year, for then the first fruits are due. And, by other statutes of Queen Anne, in the fifth and sixth years of her reign, if a benefice be under 50l. per annum clear yearly value, it shall be discharged of the payment of first fruits and tenths. Thus the richer clergy, being, by the criminal bigotry of their popish predecessors, subjected at first to a foreign exaction, were afterwards, when that yoke was shaken off, liable to a like misapplication of their revenues, through the rapacious disposition of the then reigning monarch, till, at length, the piety of Queen Anne restored to the Church what had been thus indirectly taken from it. This she did, not by remitting the tenths and first fruits entirely, but in a spirit of the truest equity, by ap 1 Black. Com, 285. |