Leaves from the Note-Books of Lady Dorothy Nevill

by Lady Dorothy Nevill

But if it should be apprehended that an unlimited restraint from all relief at Common Law, may in some eases be hard on a sufferer by a Visitor’s sentence, the absolute prohibition of an appeal may be thus limited, “unless the body of the University assembled in a Convocation (whereof, and as well of the occasion of its being called as the day and time when it is to be held, publick notice shall be given a month before) shall within a year or 6 months after such sentence petition the King for a revision thereof; and then his Majesty may issue out a Commission of Delegates, composed of the Chancellor of the University, the Visitors of all the Colleges therein, and an equal number of Drs. of Civil Law, to review the process and give a final decision.” If University causes come into Common Law Courts, there is no end of them, and no supporting the expense: and our ancestors wisely provided they should never come there: but those Courts are hardly ever at a loss for pretexts to draw all causes to the Bar, and to break through all regulations. Their power is now grown to an exorbitant height, and with it their oppression is extended; so that since the Chancery, by being put almost ever since the Reformation into the hands of Common Lawyers, is become in a manner a Common Law Court where equity is little considered, they are become one of the greatest grievances of the Nation.

5. Whereas Deans and Chapters of Cathedral Churches in England do at present retain an empty shadow of the privilege they formerly had of choosing their own Bps. in that a Conge d’Elire is constantly upon the vacancy of a see, sent to them and requiring them to proceed to such election; but they are obliged to choose the person named to them by the King in a letter missive sent at the same time, under the pain of incurring a Praemunire and subjecting themselves to the penalties of the Act of Henry 8 regulating the election and confirmation of Bishops. It were to be wished that a better regulation might be made in this respect, and that Deans and Chapters may, in the case of a person whom they cannot in conscience contribute by any act of theirs to advance to a See of which he is unworthy (by having preached or published heretical and false doctrines, or by being guilty of Simony or other crimes punishable by deprivation), be allowed the liberty of declining their choice and approbation without being liable to the said penalties. It may not perhaps be fit to make them judges in the case any further than relates to their own conduct, and therefore upon their signifying the crime of which the person named in the letter missive is accused and on account whereof they cannot choose him, and of the grounds they have to presume of his guilt, till he is judicially cleared, the cognisance thereof may in the case of a Bp. be taken by a Provincial Synod, and in the case of a Presbyter, by a Synod of the Diocese, wherein he has usually resided; and if the person be acquitted therein, the Chapter then to be obliged to choose him under all the penalties of the aforesaid Act, but, if he be condemned, to be justified in their rejecting him, and a better to be named in his stead.

There are some other regulations of a like kind, that would be useful with regard to the inferior Clergy, viz.: that every Certificate of good behaviour and right principles in religion, usually brought to a Bp. by every person that comes for Ordination or for Institution to a Living, be signed by the Rural Dean of the district wherein he has resided for the time mentioned therein; (unless such person hath been constantly resident in the University, in which case the Certificate of his College may serve as at present) otherwise the Bp. to be at liberty to reject him. And if a Bp. upon examining a person presented to a benefice shall find him illiterate and unqualified for the Cure, he shall appoint such person to attend him another day, when he shall likewise summon the Rural Deans of his Diocese to appear and shall in their presence examine the pretentee; and if upon the concurrent judgment of all or of the major part, or of two thirds of them, he shall be declared illiterate and insufficent for the charge of a cure of Souls, the Bp. shall be justified in refusing him institution without being aliable to any suit in law, or other prosecution whatever.

Such expedients as these afford undoubtedly a very rational security to the Church of England, and yet none of them really intrench on the just prerogative of the Crown, unless the redeeming of the Church from the slavist part of the Letter missive put upon it contrary to the first article of Magna Charta be deemed to do so, tho’ it does not infringe the Kings right of naming the Sees but only provides against the ill consequences of his being deceived and drawing into the naming of unworthy prelates; or unless it be in the waving of the claim of right to make writs of Mandamus for putting Heads and Fellows upon Colleges in the University; which if it was a right of the Crown, has been exercised very rarely and never without great odium, and which seems only to be founded upon a notion, that the incorporation of Colleges and establishment of Status for electing the Heads and members thereof, as well as for regulating their conduct, tho’ made at the request of the Founders who endowed them, yet derived their force from the authority of the Crown, which might therefore dispense with Statuts of their own creating and rights of their own granting, whenever there was occasion or it was thought proper to exert the unlimitedness of the prerogative. But if this maxim were good and would hold in Law, it would hold as well in regard to Corporations as Colleges; and yet it was never used in the ease of the former, unless upon some crime and forfeiture of their privileges, or at least on a pretence thereof, and even then when advantage was taken of such forfeiture (as was the case a little before the Revolution) it raised a terrible ferment in the nation.

There are some other things which tho’ not immediately relating to the security of the Church of England, yet being much for the benefit, dignity, and credit of the Clergy, will contribute not a little to its support.

The English being naturally a serious and devout people ran eagerly in all ages into all the modes of religion then in vogue. Hence an infinite number of Monasteries of all kinds were erected in the Kingdom, and the Religious thereof being by their institution more attached to the Pope than the secular Clergy were, it came to pass that when the Papal power was first introduced into England in the reign of Henry the First (in whose time the Cardinal de Crema came over the first Legate of the See of Rome, and appeals to that Court began to be introduced), they soon got the Pope to exert the plentitude of his power, and the sovereignty he claimed over all the possessions of the Spirituality (tho’ originally the grant of our Kings) and to appropriate the tythes glebe and revenues of livings to Monasteries. This was done generally between the years 1120 and 1250. Hereupon the Religious of these Monasteries, keeping all the great tythes and sometimes the small ones also, and even the oblations (which in those days were very considerable) to themselves either supplied the cures by one of their own body, or endowed a resident vicar either with a slender portion of the small tythes, or with a stipend in money, which, whatever it was in those days, is now very inconsiderable, and insufficient for his maintenance. When Monasteries were dissolved, and their lands given to Henry 8, the tythes and revenues of Livings thus appropriated to religious houses were given to him at the same time, and were alienated by that Prince together with the Abbey lands. Thus was the Church miserably impoverished, and even to the time of the Rebellion in 1642 there were left 6000 Vicarages in England under £30 a year, 4000 under £20 and 2000 not worth £10 a year. The Bishops upon the Restoration having abundance of leases, particularly of Tythes (for Q. Elizabeth had forced their predecessors to exchange their manners of their Sees for the tythes then remaining in the Crown which she could not keep in conscience as she alledged) that were either expired during the troubles or were near expiring, took care in the renewal thereof to augment great numbers of these poor vicarages. Private persons have since made them considerable benefactions and many Vicarages have been of late augmented out of the revenue of the First fruits and Tenths: yet still there are some thousands so meanly provided for that they do not afford a competent subsistence to a Minister.

Of all Livings throughout the Kingdom none suffered so much in the general alienation of Church revenues as those in Cities and great Towns; for scarce any of these were without one or more Monasteries, the Monks whereof supplying the cure of those Livings, had only a small stipend for their pains. Hence these Livings are the most provided for of any in England, two or three of them being often united together to make up about £30 a year for an Incumbent, whose poverty neither allows him to buy books to increase his stock of learning, nor to live with a dignity suitable to his character, not to do that good or speak with that authority in his parish which a better income would enable him to do, and generally speaking worthless Livings will be filled with worthless Clergymen. This hath proved as much to the disservice of the Crown as of the Church. For these great Towns being sorrily supplied with Ministers, and being many of them thronged with Calvinists that came out of the Low countries, Germany and other foreign countries and settled there for the sake of trade, the Puritan party in the reigns of K. James and K. Charles took care to send Lecturers thither (to whom they gave large stipends) to propagate Sedition and disaffection to the Church and Crown among the inhabitants of those great Towns, which by that means generally sided with the Parliament against the King in the rebellion of 1641, and by their wealth contributed greatly to the neine of His Majesties affairs. Had these Towns been duly supplied with a learned and well affected Clergy, the rebellion would probably have been prevented or the event of the war have proved more favourable to the royal cause. There are few things would be more serviceable to the interests both of the Church and Crown than a proper endowment of the Livings in such great Towns and Cities: and if any forfeited houses therein, or forfeited lands and tythes of lands adjoining thereto were applied thereto, the benefit to both would be great, and the Clergy in such Cities would by their interests as well as principle be obliged to support the Crown from which they desire such benefactions.

K. Charles the First gave all the Tythes remaining in his time to the Crown throughout Ireland to the Churches whereunto they originally belonged, as often as Leases of Crown lands were to be renewed or grants thereof expired. K. Charles the Second after the Restoration gave all the forfeited tythes in that Kingdom to the Church. Many grants of lands in England, with tythes annexed thereto or part thereof, may probably be now expired or are continually dropping in to the Crown; and forfeitures of a like nature will according to the course of human affairs be making from time to time and afford opportunities of the like benefactions; for if tythes were exempted as well in the renewal of such grants as in the remission of forfeitures, they might be very usefully applied for the better endowment of churches in popular Cities. In this or the like manner may that great inconvenience be in a good measure removed.

A noble grant hath been made of the First Fruits, and Tenths for the augmentation of small Livings, which will in a course of years be a considerable, though slow remedy for this evil. But it is still a question whether the Church will gain more by that benefaction, than it will lose in the same term of years, by the late change of the maxims of the Court of Exchequer in relation to tythes by the great encouragement which the Judges thereof give to pretended and unreasonable moduses (or certain trifling payments of money in lieu of tythes of 20, 30 or fifty times their value) and by the continual multiplying of such moduses all over the Kingdom; which Gentlemen are labouring by all ways to find pretexts to create, and corrupt patrons have too great opportunities of effecting with regard to livings in their Advowson, so that the evil is not unlikely in some years to grow universal.

The case of the Clergy is certainly very hard in this respect. They come to a Living generally Strangers to the place and ignorant of the rights and dues belonging to the Church. It is the interest and commonly the business of every one in their parish to impose upon them with false accounts of the value of their tythes, and to draw them into agreements much below the real value thereof. Their predecessor being dead, his papers neglected or carried off by his executors, they derive little knowledge from either. After long waiting for some equivalent to the large expense of a University education, coming at last into a benefice, they are glad to take the first offer that will make them easy, being either by their former manner of life and attachment to their studies, indisposed to have their time and thoughts taken up in the collecting of tythes, or by the ignorance of country affairs utterly unqualified to manage so new and troublesome an affair as the gathering of them in kind, not caring to oppress or disoblige their parishioners, or to go to law upon a footing they do not fully understand, and at an expense they are not able to bear; especially since they have only a life interest in the Living, and if they can but be easy for their own time, they are willing to leave the burden of asserting the rights of the Church to their next successor. These circumstances and this temper of mind induce the Clergy too often to afford those who have a mind to make a prey of the revenue of the Church, means of effecting their dishonourable purpose; in which they are not a little favoured by the proceedings of the Courts of Westminster Hall.