EUBULUS. Would that all were impressed with this truth! ALETHES. Let that pass for the present. To-day, Eubulus, I wish to revert to the conversation of yesterday. You studiously avoided saying any thing of the learned Selden, save and except when any immediate reference to his "History of Tythes" required it. I should much like to know your opinion of that great man—for such he was—and to hear if any thing traditional remains of him in the parish where he was born. But first of all say who was that old man whose voice I heard in the hall; I should know it well, methinks! EUBULUS. You know him well too, Alethes. He is one of a race almost extinct-an honest man with infirmities-old James Long, the Parish Clerk. Seventy and five years, man and boy, he has heard these Church bells call to prayer; forty and five years he has officiated as clerk and sexton. When his turn to depart comes, I question if his place will be better filled. Obstinate, at times, as a quadruped I need not name, he is shrewd and intelligent, plain-spoken and trustworthy. A chronicler of bygone days he is familiar with every one's history, and his local knowledge is extensive. He takes heed to no changes, and is one of the most independent of the creation; respectful withal, and devotedly attached to his successive masters, as he familiarly calls the clergy. He is a keen observer, and has great knowledge of character. Otherwhiles,-to use a Sussex phrase,-his occupation is that of a gardener, and he has kept a diary for forty years and more. The first thing he does, when his day's work is over, is to jot down his casual observations, more particularly as regards the weather. Some time ago he was offered a considerable sum of money for this document, but he declined to take it; and he was right. It is his familiar! He and his old wife-(you recollect that excellent woman)—are travelling fast down the vale of years. Whichever goes first, the other will not be long behind. The benizon of heaven rest on them both! I am fond of the old people, you know; and to him, perhaps, I may have done a good turn in my ministerial capacity. Her heart was set on righteousness before. It would go hard with me to read the Funeral Service over their graves, Alethes! I should not dare to trust myself. If that day arrives whilst I am here, I must join the mourners! Perhaps the old man cannot say,— "In my youth I never did apply Hot and rebellious liquors to my blood;" but, nevertheless, his "age is as a lusty winter, frosty, but kindly '." ALETHES. Well do I know the honest pair. I shall not leave you without seeing them. But tell me, Eubulus, what was he so earnest about? EUBULUS. He came to speak of a Mortuary which he thought was his master's due. Mortuaries are still paid in this parish, according to the regulations of the statute 21 Hen. VIII. c. 6. The rates there are,-half a noble, a noble, and an angel, i.e. 3s. 4d., 68. 8d., and 10s. The latter is the highest sum specified; in fact, the only Mortuary collected here. Any person who dies possessed of 407. and over is liable, by custom, to this payment. It is curious, I think, that the mark, i.e. 13s. 4d., was not made the ne plus ultra, as most other dues in this parish are so regulated, and indeed were so calculated throughout the nation. ALETHES. Curious enough, Eubulus, I was about to ask you yesterday as to the payment of Mortuaries, but we had so much other interesting matter before us, that it slipped my memory. As it is a custom not altogether separate from tithes, I wish, before we turn to Selden, you would refer to your notes. EUBULUS. Willingly; but I have nothing more to tell you than what you may read in Blackstone. It was only the other day that I had occasion to examine what was said in Bracton, Lyndwood, 3 Shakspeare, "As you Like it," Act II. Since this was written the both are departed! and in Du Cange (in v. Mortuarium), and I may as well read to you the passage from Blackstone, as it contains the pith and substance of what others have written. "Mortuaries are a sort of ecclesiastical heriots, being a customary gift claimed by and due to the minister in very many parishes on the death of his parishioners. They seem originally to have been, like lay heriots, only a voluntary bequest to the Church; being intended, as Lyndewood informs us from a constitution of Archbishop Langham, as a kind of expiation and amends to the clergy for the personal tithes, and other ecclesiastical duties, which the laity in their lifetime might have neglected or forgotten to pay. For this purpose, after the lord's heriot or best good was taken out, the second best chattel was reserved to the Church as a mortuary: 'si decedens tria vel plura cujuscunque generis in bonis suis habuerit animalia, optimo cui de jure fuerit debitum reservato, Ecclesiæ suæ à quá Sacramenta recepit, dum viveret, sine dolo, fraude, seu contradictione qualibet, pro recompensatione subtractionis Decimarum personalium, necnon et oblationum, secundum melius animal reservetur, post obitum, pro salute animæ suæ. And therefore, in the laws of King Canute, this mortuary is called the soul-scot (i.e. raplsceat) or symbolum animæ.' 'It was anciently usual in this kingdom to bring the mortuary to the Church along with the corpse when it came to be buried; and thence it is sometimes called a corse-present; a term which bespeaks it once to have been a voluntary donation. However, in Bracton's time, so early as Henry III., we find it riveted into an established custom; insomuch that the bequests of heriots and mortuaries were held to be necessary ingredients in every testament of chattels. Imprimis autem debet quilibet, qui testamentum fecerit, dominum suum de meliori re quam habuerit recognoscere; et postea Ecclesiam de alia meliori;' the lord must have the best good left him as a heriot, and the Church the second best as a mortuary. And yet this custom was different in different places; in quibusdam locis habet Ecclesia melius animal de consuetudine; in quibusdam se 4 As the words are not given exactly by Blackstone, I quote them direct from Lyndwood, lib. i. tit. iii. p. 19. Ed. 1679. See Blackstone, b. ii. c. xxviii.—iv. vol. ii. p. 424. Ed. Chitty. cundum, vel tertium melius; et in quibusdam nihil: et ideo consideranda est consuetudo loci"."" ALETHES. Altogether an interesting account, and your Churchmen of those days evidently looked well to the main chance! But was the corse-present the same with the mortuary? EUBULUS. I lament to say that canons exist which forbid exactions at funerals. Human nature is the same in priest and peasant! Let this be an answer to the former part of your remark; but observe at the same time that the Church was ready to correct herself and prune her own vines,-Ut vineta egomet cædam mea! With reference to the question, as to whether the corse-present and the mortuary were one and the same, there is a difference of opinion. Selden and Blackstone think they were. Cowel, in his Law Dictionary,—a very curious and valuable work, notwithstanding any original defect,—says that the mortuary took this name after the Conquest. Stillingfleet, "Of the Duties and Rights of the Parochial Clergy," argues that the mortuary was a settled payment, whereas the corse-present was a free oblation. The volume is on the shelf, and I will read the words. "That the prevailing custom became the standing law as to mortuaries appears by Statute of 21 Henry VIII. c. 6, which limits the payment where the custom continued, but allows liberty of free oblations. And this free oblation was then called cors presente, and was distinct from the mortuary, in lieu of tithes, as appears by the instances in Sir W. Dugdale'." I may remark, by the way, from Cowel, that mortuaries, "by custom, in some places of this kingdom, are paid to the parsons of other parishes, as the corpse passes through them.” 5 Bracton, lib. ii. c. 26. Flet. lib. ii. c. 56. 6 Selden, Hist. of Tythes, p. 1223. 7 See vol. i. p. 249. Ed. 8vo. 1698. Cowel, Law Dictionary in v. 66 Mortuarium.” In Du Cange the Mortuary is called a Canonica portio,-but I cannot make good his reference in my copy of Martene. His words are (in v.) "quod jus Canonica portio dicitur in Statutis Eccl. Cadurc. apud Martene, tom. iv. Anecdot. col. 736." ALETHES. Before we quit the point let me ask the meaning of the term "principale legatum." Is it not applied to a mortuary? EUBULUS. It is; and is so used in a Constitution of Archbishop Winchelsey in Lyndwood. The words there are: "In petitione autem principalis legati volumus quod consuetudo Provinciæ cum possessione Ecclesiæ observetur; ita quod Rector Ecclesiæ, si fuerit, vel Vicarius, in petitione suá, vel Capellarius annuus Deum in petitione illá habeat præ oculis." On which Lyndwood remarks, "Istud alibi dicitur mortuarium suprà de consue. c. i., hìc verò vocatur Principale Legatum, quia decedentes solebant, et in quibusdam partibus adhuc solent, optimum vel secundum optimum suum animal primò, et ante cætera legata Deo, et Ecclesiæ pro animâ suâ legare "." His remarks on the latter words of the Constitution are in accordance with the Canons I above referred non enim decet, ut viri Ecclesiastici sint improbi exac 66 to; tores." ALETHES. Are mortuaries still recoverable where they have been used to be given? EUBULUS. Yes; by the statute of Circumspectè agatis, 13 Edw. I. Stat. 4. But on this head I would refer you to the new edition of Burn's Ecclesiastical Law; a useful, though ponderous and expensive work. ALETHES. You did not say what was the worthy old clerk's difficulty. - EUBULUS. It was this. A woman (a good woman she was !)—had died possessed, in her own right, of landed property, her husband still surviving; but the property passed to her two sons. The clerk wished to know whether the mortuary was payable now. The following instance is 8 See Lyndwood, Provinciale, lib. iii. tit. 16. p. 196. given by Cowel in v. Principal. Item lego equum meum vocatum le Baygelding, ut offeratur ante corpus meum in die sepulturæ meæ, nomine Principalii. Ult. volun. Johannis Marclefield, Hen. V. Selden quotes a similar instance, p. 1223. F |