can be more conclusive. It is argued that this would be good evidence against a lay-Rector, according to the cases referred to; but that it is not sufficient evidence against a spiritual Rector. I cannot very well reach the principle of this distinction. A legal title to a portion of Tithes may exist as well against a spiritual Rector, as against a lay impropriator; and why, therefore, is not such a title to be presumed from long conveyance and profession? It is true that a lay-impropriator may himself sever a portion of Tithes, which a spiritual Rector cannot do; and that a presumption may therefore be raised against a lay-impropriator, upon slighter evidence than would be reasonable against a spiritual Rector. But this does not affect the principle. If it were necessary, in the case of a spiritual Rector, to show the actual origin of a portion of Tithes, it is not probable that any such portion could at this day be maintained.

And the Plaintiff's motion for a new trial, was refused, with costs.

COURT OF KING'S BENCH, EASTER TERM. 1825.

COOPER (CLERK) v. WALKER.

4 Barnewall and Cresswell's Reports, p. 36.

(Allotment in lieu of Tithes, under an Inclosure Act.)

The Plaintiff was Rector of the parish of Waddingham cum Snitterby, in Lincolnshire, and the Defendant the occupier of a farm within that parish. In the year 1700, an agreement, entered into between the then Rector and the owners of part of the open fields of the parish, by which it was agreed that those fields should be enclosed, and that the Rector should have part of the lands, and an annual sum of 947. in lieu of the tithes of the whole of the land so inclosed, was confirmed by a decree of the Court of Chancery. In the year 1769, an act of Parliament passed for inclosing the remaining open fields of the parish, and the commissioners were directed to allot to the Rector such parcel of the arable lands and common pastures within the township of Snitterby, and also of the titheable parts of the township of Waddingham, as should be equal in value to two-fifteenth parts of the titheable places of such lands and grounds, in lieu of the tithes belonging to the Rector, and arising within the same lands and grounds. In 1770 the commissioners made their award, and thereby made several allotments to the Rector in respect of his ancient glebe lands and rights of common in the several townships of Waddingham and Snitterby, and in lieu of all tithes belonging to him in the township of Snitterby, but without there being any thing in the award to shew that the commis

sióners allotted any thing to the Rector in lieu of his tithes in Waddingham. From the time of the decree in the court of Chancery, the composition of 941. was annually paid, until the year 1788, when upon a change of Rectors, that composition was abandoned, and a new composition agreed upon between the occupiers of lands in Waddingham township, and the then Rector, upon a valuation of the whole township, such valuation having respect as well to the lands inclosed under the Act of Parliament as to those inclosed under the decree. In 1808, the plaintiff was presented to the rectory, and the defendant, who held part of the lands in Waddingham township inclosed under the Act of Parliament, and who had regularly paid to the plaintiff's predecessor his share of the last-mentioned composition, continued to make the same payment to the plaintiff until the year 1811, when the plaintiff took the tithes in kind, up to Michaelmas 1812, and from that time the defendant refused to pay any composition, or set out his tithes in respect of the lands in question. The Lord Chancellor, upon proceedings being taken before him, directed this action to be brought for the purpose of trying the Rector's right before a Jury, when a verdict was found for the defendant, subject to the opinion of the Court of King'sbench, as to the propriety of such verdict.

In argument before this Court, the Rector contended that as no allotment was made to him in lieu of his tithes in Waddingham, his right to those tithes was not barred by the award, but was expressly saved to him by the usual saving clause in the Act of Parliament, which "saved to all persons, bodies politic, and corporate their heirs and successors, except the respective persons to whom any allotment or compensation should be made by virtue of the Act in respect of the interest or property for which such allotment or compensation should be made and all such estate and interest as they had and enjoyed in respect of the aforesaid lands directed to be enclosed before the passing of the Act, or which they might have had and enjoyed in case the Act had not been made," and that he was entitled, therefore, to the benefit of a new trial.

For the defendant it was contended that it must be taken upon the award that the plaintiff had received an allotment in lieu of his tithes in Waddingham, although the commissioners had not awarded such allotment in express terms. And as the fact appeared on the award that in the township of Snitterby he had received an allotment greater in quantity than his proportion of two-fifteenths, and as he had for so many years acquiesced in the award, it must be presumed that there was an agreement entered into at the time between the land-owners and occupiers of Snitterby, and those of Waddingham, for substituting land in the one township for land in the other; and that the award ought not now to be disturbed.

The Court thought it clear, that the commissioners of inclosure had been misled to suppose that the composition of 941. per annum was paid to the Rector in lieu of all his tithes in Waddingham, and if so,

that they should by allotting land to him in respect of those tithes be paying him twice over. And as, from the year 1788, a further composition was paid to the Rector in lieu of all his tithes in Waddingham, as well in respect of the lands enclosed under the Act as those enclosed under the decree, it was apparent that the parishioners then considered that the tithes of Waddingham were not included in the award. The question of numerical calculation the Court did not think material, and were of opinion that by the saving clause in the Act of Parliament, the right of the Rector was preserved to him, as to one to whom no allotment had been made in respect of his property in the tithes of Waddingham.

A new trial was therefore ordered.

HISTORY

OF THE

DIOCESE OF CANTERBURY.

(Continued from No. IV. page 515.)

STIGAND appears to have been Bishop of Elmham (Norwich) in the year 1043, when he was deprived and removed from the councils of the Queen Emma at the instigation of the Earls Leofric, Godwin, and Siward, who had prompted Edward to resent his mother's preference of Harda Knute, and took the most effectual means to preclude. her future interference in the government by the seizure of her treasures for the King. He lay not long, however, under the suspicion of his countrymen, but was permitted to return to his see in the following year, and was translated to that of Winchester in 1047.

If the character of Stigand were merely to be transcribed from ancient writers he would seem utterly to have profaned the hierarchy; but it is not to be forgotten that bigotry and party spirit prevailed in the cloister, and that the truth is rather to be gleaned from what its chroniclers have let fall, than gathered from their direct testimony. The charge of simoniacal traffic in ecclesiastical matters was so commonly tossed from one party upon another, that something more precise is wanting to fix the stain upon the memory of Stigand. The reproach of having retained the see of Winchester, after his elevation to the primacy, which lies the heaviest upon his fame, is extenuated by the consideration that the practice was by no means unusual; the See of Worcester having been held in commendam by several successive Archbishops of York, after the example of no less a Prelate than St. Oswald; and the aggravation which is contained in the Historia Eliensis, namely, that he held at the same time the Abbeys of Glastonbury, of St. Augustine, of Ely, and of St. Alban, is utterly void of foundation. The report of buried treasures, which was designed to support that of covetousness, proves it to have been slander; for his career was too busy not to have brought all his wealth into service, even were the miserly hoard and the little key consistent with his energetic spirit. That he was illiterate is an imputation of another kind. It has been ohserved that the learning of Elfric and the sanctity of Athelnoth were strongly opposed to the charge of insufficiency promiscuously laid

against the Anglo-Saxon hierarchy of the eleventh century; and they were by no means illustrious exceptions to a general rule; but its intellect was devoted to the destruction of the fabric of superstition and tyranny which the powers of that age were employed to rear, and its historians to maintain, and could not fail to be regarded as ignorance and profanation. The mind of Stigand had spurned the trammels to which it was the policy of Rome to break the intellect; and the dogged common sense with which he encountered the subtleties of schoolmen, proves him rather to have risen above the age in which he lived, than to have been deficient in talent or in cultivation. He was no dealer in mirakles, or believer in visions. He derided the sloth of the cloister. He denied the corporal presence in the Eucharist. He despised the supremacy of the Pope. The instruments, through whom, under God, the corruptions of papacy were rooted from the land in the sixteenth century, are scarcely entitled to more respect than is the memory of Stigand.

Filling as he did the patriarchal chair without the recognition of the Pope, the Bishops are said to have refused to receive consecration at his hands; but such was by no means the case. Herewald, Bishop of Landaff, Ulf, Bishop of Dorchester, Siward, Bishop of Rochester, and the learned Agelric, Bishop of Selsey, were all consecrated by him; and when Earl Tosti, then at Rome, told the Pontiff he saw no reason why remote churches should stand in awe of his excommunications, he spoke the growing feeling of the nation, which was on the eve of disclaiming the jurisdiction of Rome; and had indeed proceeded so far, that Gyso, a native of Lorraine, whom the Pope had taken upon himself to consecrate Bishop of Wells, was compelled, after a fruitless appeal to the King, to relinquish his pretensions and to fly the country until the Norman Conquest.

• Harold, too, is said not to have been crowned by him; but if such was the naked fact, which is contradicted by William of Poictou, a 'contemporary,("ordinatus est non sanctâ consecratione Stigandi,") it may reasonably be called in question, how far it was in consequence of the Pope's suspension. The times admitted of no delay. Tosti, resenting the part his brother had taken in expelling him from the earldom of Northumberland, hovered with a piratical fleet upon the coast: armaments were in preparation both in Norway and in Normandy; and the claim of Edgar to the crown required to be set at rest. Elfric, Archbishop of York, had assisted in the consecration of the Confessor; and Aldred, his successor, might therefore have been as fitly selected to perform that office for Harold as Stigand, whose active mind had, as likely as not, urged him upon some distant duty of more vital import to the safety of the kingdom. At any rate, the same motive, when it is said to have operated upon the Conqueror, is manifestly the device of his chroniclers, and may well therefore be regarded as equally so in the case of Harold:

"The untimely death of the son of the intrepid Ironside, who had been invited by the Confessor to return to England, in 1057, and received