Leaves from the Note-Books of Lady Dorothy Nevill

by Lady Dorothy Nevill

Great care had been taken in ancient times to preserve the revenue of the church, but it was by methods adapted to the nature and circumstances of those times. Terriers or particular accounts of the rights of each benefice in a Diocese, have been for many ages given in at every Bps. triennial visitation; and these being drawn up by the joint consent of the Incumbent and Parishioners, and signed by the Minister and Churchwardens were used to be looked upon, and in all reason and equity ought to be deemed exceptionable evidences of such rights. They were accordingly received as such in the spiritual Courts where all suits for Tythes and other dues of the Clergy were carried on, and being Ecclesiastical causes and only of their cognisance. But since the Reformation the Common Lawyers have found out querks in law to draw these causes into their Courts, and particularly whenever a modus is pretended, that pretence is a sufficient reason for a Judge to issue out a prohibition ordering the Spiritual Court to proceed no further in such a cause. It being thus brought into the Common Law Courts, the next thing is to set aside all the evidences against such pretence of a modus, arising from the agreement of these Terriers for hundreds of years together; which is done on a pretext that these Terriers were taken by direction from Bps. and not in virtue of any special commission from the Crown, the result of which alone is all the evidence allowed in these Courts.

The Clergy thus stripped of all the evidences wherein they confided, and had been ever safe before, were forced to have recourse to other methods for opposing such pretences of a modus. Now by Law a Modus must have been from time immemorial, and this was judged to be the time of Richard I. higher than whose reign none of our Records relating to this subject go; and indeed none are ancienter except the Piperolls and Domesday book. When therefore a Modus of sixpence an acre for land now set at twenty shillings an acre and the Crop whereof is probably worth considerably more was pretended, they thought it a sufficient refutation of such Modus, to shew by records of the Tax rolls in the resigns of the Successors of that King, and by Inquisitions taken in virtue of commissions from the Crown, that the very land in question was set in later reigns than Richards but at three pence an acre, and therefore six pence an acre could never be then paid for the tythe thereof. This proof was indeed allowed till Baron Pryse was removed from the Exchequer Court; since which it has been rejected and all the maxims formerly received there in favour of tythes laid aside; so that the decision of the cause is now left to the testimony of living witnesses for the time of their particular memory; in which respect the Clergy lye under a manifest disadvantage, few caring to depose on their side, and their predecessors papers and accompt books seldom falling into the hands of the successors, whilst all the receipts of those predecessors are in the hands of their adversaries with whom they are at law.

To bring them out of these difficulties and to put a stop to the growing evil of new Moduses starting up daily nothing seems more proper or can be more effectual than a Commission to be granted to worth virtuous and understanding Gentlemen in every County of the Kingdom to enquiry into the value of Livings and to draw up a particular account of the rights and dues of each to be returned into the Court of the Exchequer and there kept on record. This would stop at once all future pretences to new Moduses; because there is no averring against a record, and the rights of the Clergy will be fixed for ever, liable to no invasion, especially if exemplifications of such returns of the Commissioners under the Seale of the Court of Exchequer were lodged in the registry of every Bp. and Archdeacon in England.

K. James the First took this method in Ireland when he granted the escheated Counties of Ulster in different parcels of land to Planters, he caused a glebe of 60 acres of land in every thousand of which a parish consisted, to be set out for the Minister to whom he likewise gave all manner of tythes in kind of all the lands throughout each parish. As every Planter was obliged to pass patents under the Great Seale for this land, so were the Clergy for their glebe or tythes; but as the passing of so many single patents as there were benefices in Ulster would have been too heavy a charge upon each incumbent he directed for the saving of fees that the endowments of all the livings in each County should be passed in one patent. Among other happy consequences of this proceeding, it is a very agreeable one to the Clergy of that province that they never have any lawsuits with their parishioners, nor indeed can have, so long as a record subsists to clear and express in their favour. Were the same method taken in England, were the rights of Livings as well ascertained and lawsuits about them as effectually prevented, no Clergy upon earth would have more credit with their parishioners than those of England, who are not inferior to any other in learning, judgment, merit or indeed any other respect. Few things would be more serviceable to the security of the Church of England, than such a method of keeping the Clergy always well with their parishioners.

With the same view was it that K. James settled one common tything table for all Ulster thereby preventing all disputes in small matters. It were to be wished, the same method was taken in England, and that one uniform tything table was settled all over the Kingdom, or at least in the different quarters thereof, according to the different circumstances of each quarter. This would contribute to the same desirable end.

There was about a.d. 1710 a Bill passed in Parliament in favour of the Clergy, for the more easier recovery of small tythes, by which in the case of Quakers and other refractory persons Justices of the Peace were empowered to give the Clergy possession of their dues by distraining on the premises or on the goods of the refractory persons. This remedy was speedy attended with very little expense, and was had at first without trouble or difficulty. But of late years men disaffected to the Clergy having been put into the Commissions of the Peace, and the terms of the Act being that they may (not that they shall) give relief and do justice to the Clergy, these Justices say, they are indeed empowered but not obliged to help the Clergy to their rights, and so refuse to act in the case; by which the law is evaded, and the intent of it defeated. If this or some other such short and easy method of recovering the dues of the Clergy were properly established it would be another help to the security of the Church.

After all the means that have been mentioned for the security of the Church of England in an ecclesiastical way, there is another of a different kind more considerable and necessary than all of them together: and this is the establishing of the choice of an House of Commons on such a foot, as it may be free from all Court or Ministerial influence. There cannot be a point conceived of more absolute necessity for the good of the kingdom, nor is there any other so universally and ardently the common wish of the Nation. This, once settled, would secure everything else that any lover of this country and religion has to wishe. But the great question is by what means and in what manner this is to be effected.

For my part, I readily profess that in all cases I am disposed to have recourse to the old ways of our constitution for the redress of any pressing grievance. There was formerly a reasonable proportion between the representatives of Counties which were about 90, and those of Cities and great Towns which amounted to about 100, and those of lesser burroughs which returned about 70 deputies, these making in all about 256 members of Parliament. This proportion of representation lasted till the time of Q. Elizabeth: but since the beginning of her reign, it has been gradually destroying, and is now so entirely overturned, that the smaller burroughs, though they do not possess the thousandth part of the others property, can outvote them both in the House of Commons, there having been as many representatives for these paltry burroughs added to the Parliament, as it consisted of before that time. In one Session of Parliament in that Queen’s reign eight small burroughs in Cornwall were called upon to send Deputies, and the humour went on till the Parliament of 1641 made up the disproportion now complained of with so much reason. There does not therefore appear to me any means of rectifying this abuse and of restoring the ancient balance of our Constitution, so natural as the disfranchising at once of all those late created Parliamentary burroughs, whose constant corruption and bribery of late years so well known and so easy to be proved, call loudly for such a method to be taken.

If this should be thought too great a change, and the disfranchising of these burroughs should be deemed improper, their corruption may probably be prevented by allowing all the freeholders of 40s. a year within the hundred, in which such burrough is situated, to vote equally with the present electors or inhabitants in the burrough for the representatives thereof: and in case this method be taken, such Freeholders being allowed a right of voting for representatives, no wrong would be done them, if the right of voting in elections of Knights of the Shire were restrained to Freeholders that pay for 10£ a year to the land tax: which would render County elections much more easy and less expensive.

If neither of these methods should be approved, it may be considered whether all these burroughs should not be limited to one representative, and the choice of the other transferred to the several Counties of the kingdom in proportion to their payments towards the Land Tax; by which means the present number of representatives may be preserved. One or other of these methods seems necessary to be taken, or else the corruption, being grown so general and barefaced in these burroughs, will not admit of a cure: and unless it be cured, Parliaments that should naturally be the guardians of all our rights and liberties, will prove the worst of our grievances, and such an one as will make all the rest irremediable. If these great points, of the proportion of our representation, and the unbiassed freedome of elections were once secured, everything else will easily be secured by Parliament.