Cum quoddam finale Judi­cium sive Decretum coram Nobis in Curiâ nostrâ Cancellariae antehac fact' extitit in haec Verba.

WHEN before this Time, that is to say, in the Term of St. Michael, Anno Dom. 1628, Ri­chard Carrier, Clerk, Vicar of Wirksworth in the County of Derby, Complainant, Exhibi­ted his Bill of Complaint into the High and Honourable Court of Chancery against Ephraim Fern, Richard Wigley, [Page 2]Anthony Coates, and William Debanks, Defendants; de­claring by the same, That whereas the Complainant and all his Predecessors, Vicars of Wirksworth, Time be­yond the Memory of Man, have had, and received, and used to have and receive, and do of right, ought to have and receive a certain Customary Duty of all the Lead-Oar or Lead-Mine, which had been gotten within the said Parish of Wirksworth, dressed and clean­sed from the Earth and Rubbish, at and by the only Costs and Labours of the Miners and Getters of the said Oar and Lead-Mine, the said Complainant and his Predecessors allowing to the said Miners and Getters of the said Oar and Lead-Mine only one Penny for the dressing, cleansing and washing every the said 10th. Dish without Interruption of any Man, until about the 18th Year of the Reign of K. James I.

At which time the said Complainant exhibited his English Bill into the Court of Exchequer Chamber, The first Suit in the Exche­quer Court. against divers Miners who refused to pay this Duty: The Miners being served with Subpoena's from that Court, appeared in Michaelmns Term (180 Jacobi) but gave no Answer.

The Miners upon their Petition to the Privy Coun­cel obtained an Order, Removed (to­gether with the Suits of other Propri­etors) to the Privy Coun­cel dated 22d of November, Anno 180 Jacobi Primi, to stay the Suit in the Exchequer Court, and to bring it before the Councel, where also the Proceedings at Law of John Gell Esq; (afterwards Sir John Gell Barr.) for one third part of the Tyth-Oar, and of Sir Francis Leak (then Knight, afterward Lord Deincourt) for the other two parts of the Tyth-Oar in the Parishes of Bakewell, Tiddeswall and Hope, in the hundred of High Peak in Darbyshire, were then, and for divers Years before had been stayed.

And the whole Cause concerning the Tyth or Tenth of Lead-Oar within the said County of Darby, The Cause of Tyth-Oar for the whole County be­fore the Councel. was then stayed at the Councel Board upon Auggession by the Miners of some Point of State: So that divers Ministers, Parsons and Vicars, within the said County, who had a great Part of their Maintenance out of the said Tenth of Lead-Oar, were forced to forbear all Proceed­ings at the Law for the same, and to be content to live without the same, during the time that the Matter was in question at the said Councel Board.

And thereupon The Custom of the Payment of the said Tyth or Tenth of Lead Oar, The Custom for this Tyth one and the same through­out the Coun­ty.being claimed to be all one and the same in all Partishes within the said County of Darby, where the said Lead-Oar is gotten.

Their Lordships for the avoiding Multiplicity of Suits, which otherwise would have ensued, The Coun­cels Directi­ons for Tryal of the gene­ral Custom. & for the Fi­nal settling of this Cause, thought sit for the whole County, as well concerning the Parsons and Ʋicars, as other Proprietors of the said Tyth and Customa­ry Duty of Lead-Oar, to refer the said Custom to a Tryal at Common Law, which accordingly was done by an Order of that Court of 26th of November, Anno Domini 1619, (with special Directions how and in what manner the said Trial should be brought on and tryed) and that onely the said Custom should be given in Evi­dence, and both Parties to insist thereupon.

This Tryal was had at the Common-Pleas-Bar in Ea­ster-Term 1620, where the Custom was onely in Issue, A Verdict for the gene­ral Custom.and both Parties onely insisted thereupon, and after 4 Hours Evidence before the Judges in the hearing the said Cause, A Ʋerdict passed for the said Custom, and with the Plaintiff in that Cause.

After which said Tryal, The Miners litigiously de­sire a second Tryal. the Miners not yet satisfied, but endeavouring to weary out the said Complainant, and the rest interessed in the said Duty, upon Pretence of having some old Witnesses not before examined, ob­tained from the Lords of the Councel, an Order of the 21st. of June, Anno Dom. 1620, for another Tryal at Common Law, under particular Directions (as before) which Tryal was had at the Common-Pleas-Bar in Micha­elmas-Term, Anno Dom. 1620. upon the very point of the said Custom. And there also upon full and long Evidence, A second Verdict for general Cus­tom. a second Ʋerdict passed for the said Custom, and with the said Plaintiff in that Suit [viz. Mr. John Gell.]

Notwithstanding which Verdict, The Propri­etors Petition the King. the said Complai­nant [Carrier] together with the said Mr. Gell, and the Lord Deincourt, and the other Ministers interessed in the said Customary Duty of the Tyth or Tenth of Lead-Oar within the said County of Derby, in respect they could not quietly enjoy the same according to the said Ʋerdicts, were forced for their Relief against the said Miners, being a Multitude, and making a general Purse, thereby to weary out the said Complainant, and others interessed, to petition His Majesty (King James I.) for to establish them in the said Tyth or 10th of Lead-Oar as aforesaid.

The King refers the Consideration of this to the Arch-Bishop of Canterbury, The King refers it to some Lords. and to the Lord High Treasurer, (afterwards Lord Privy Seal) with special Directions that upon due Examination of the Cause, they should take Ef­fectual Order for the Petitioners Relief, and to certifie what course might be taken to put them in Possession.

According to which Reference, their Lordships ha­ving [Page 5] heard the said Cause at large debated thereof, did in July 1621, Certifie unto His Majesty, that they had seen the former Proceedings before the Councel, and at Common Law by Directions from the Lords of the Councel, that Mr. Gell aforesaid, had prevailed at Law for his 3d part of this Tyth; and the Lord Deincourt had obtained a Decree in the Exchequer for the other two 3d parts of this Tyth, in the Parishes of Bakewell, Tiddeswall and Hope.

So as it appeared unto them Iust and fit, that the said Tyths or Tenth should be established according to the said Tryals at Law, and the said Decree in the Ex­chequer. The Lords certify the Ju­stice and E­quity of the said Custom.

After which Certificate by special Order and Direc­tion from the said King James I, by an Order of Coun­cel of the 5th. of October 1621, it was Ordered, The Cause honourably dismissed from the Councel-Table, with a Declaration of the Miners false pretence. That the Complainant and all such others as were interes­sed, or had any Right or Title in, and to the Tyth or Tenth of Lead Oar, together with the whole Cause then depending before them, should be clearly dis­charged and dismissed from the said Council-Board, and should be left to the full Fruition and Benefit of the Law.

And because the said Complainant and the Rest, had had loss by being stayed at the Board, upon Pretence from the Miners of some Point of State, which then appear­ed to be otherwise: Therefore their Lordships in an Honourable respect of the Complainant and the Rest, did wish that they might have all the Speed and Expe­dition, which the Law in Justice might afford them.

After which Dismission from the Council-Board in Michaelmas Term next following, The Com­plainants Bill in Chancery. being the 19th Year [Page 6]of King James I, the said Carrier exhibited his Bill in Chancery against these Defendants, viz.

• Robert Maddox,
• Thomas Taylor,
• Thomas Fogg,
• Francis Bayley,
• Thomas Godbehere,
• And others,

Miners within the said Parish, naming them in all to be 300 or thereabouts: The said 5 Persons appeared in the said Michaelmas-Term, and took out a Dedimus to answer in the Country, returnable in Hillary Term fol­lowing.

The Complainant being thus delayed by a Dedimus, Delays by the Miners. petitioned the Lord Keeper for an Injunction, which by an Order of Court of 4th of December, 19 of King James I, was granted against all the Miners in that Pa­rish, requiring them to pay this Tyth as formerly it used to be, until they answered: And after their An­swer given in Hillary-Term 19 James I, wherein they a­verred themselves to be more in Number than 300; in Easter-Term the Miners prayed, That the Injunction might be changed into a Sequestration, The Complai­nant was ordered to show cause in Trinity-Term, why it should not so be.

The Matter was then heard and long debated 3d. July, 20 Jacobi Reg. prim. and then Ordered, that the Defendants and all the Rest, should pay the said Tyth, and that the Injunction should continue in force till hearing, and the Complainant also under an Injuncti­on to stay Suits for this in all other Courts.

After all which, and after Bill, Answer, Replicati­on and Rejoynder, Commissions to take Evidence and Publication of the same, together with the Petition and Debates about the Injunction aforesaid (all upon record in Chancery Court.)

The Cause now being ready to be heard in Michaelmas-Term 20th of King James I. The Miners at last suffer a Decree a­gainst them, to pass by Consent. The then Defendents find­ing the Proofs to be full against them, desired the Complainant to take a Decree by consent, against them and all the rest of the Miners in that Parish, to pay the said Tyth to the Complainant and his Successors for ever.

This Decree by consent was accordingly passed that Michaelmas-Term, & subscribed by the then Ld. Keeper.

Unto which Decree, The Miners Submit to the Decree for some Years. as well the then Defendants as also all others, the Miners within the said Parish of Wirksworth, did submit, and did by the space of five Years or thereabouts then next following, pay the said Tyth or Tenth part of Lead-Oar unto the said Complai­nant.

And likewise since the foresaid Dismission from the Council-Table, Other De­crees for o­ther Proprie­tors. the said John Gell had by due Course and Proceedings, obtained a Decree in this Honourable Court (of Chancery) against all the Miners within the Parishes of Bakewell, Tiddeswall and Hope, whereby they were all bound to pay the said 3d. part of the Tyth or Tenth of all Lead, gotten or to be gotten within the said Parishes, unto him the said John Gell and his Heirs for ever.

Which Decree was ratified and confirmed to stand in force against them all, by an Order of Chancery of 27 Maii, 3tio Carol. prim. And the said Mr. Gell was ac­cordingly possessed of the said 3d. part of the said Tyth of Lead-Oar within the said Parishes: And the Miners ever since the said Decree was confirmed by the Order aforesaid, had submitted themselves and duly paid the said Tyths of Lead-Oar to the said Mr. Gell, his Ser­vants or Deputies.

And the said Miners within the said County of Der­by not yet satisfied with all the said Proceedings at Law, Miners bring a Bill in Par­liament a­gainst this Tyth. and at the Council-Table, and in this Honourable Court, did exhibit their Bill against this Complainant, and the Rest interessed in the said Tyth or Tenth of Lead Oar, for their Relief into the High Court of Parliament, holden at Westminster 19th February, 21 Jacobi Prim. wherein they did desire that it might be Enacted, That no Tyth or Tenth of Lead Oar might be paid in any place whatsoever within the said Coun­ty of Derby, which Bill was twice read, and Com­mitted and Reported,The Miners Bill in Parlia­ment against this Tyth re­jected.and then upon Debate, amongst the Commons assembled in Parliament, it was upon Wednesday the 12th of May, 22 Jacobi Regis Prim. Re­jected and cast out.

Yet notwithstanding all this, in Easter-Term, 3tio Ca­roli Regis Prim. Miners pro­mote new Suits, and question the former De­cree. Some of the Miners within Wirksworth by sinister Incouragement of some others ill-affected to the Complainant, did question whether the former Decree as it was passed and drawn up, ought to oblige all the Miners in that Parish, or only the then named Defen­dants, This question Referred to the Attorney General. which Question was by Order of Chancery, 4to. Maii, Anno 3tio Carol. Prim. referred to Sir Robert Heath Attorney General, to examine and certifie concerning it, who upon full Examination, and divers Hearings of the Matter, in Presence of Council learned on both sides, and upon Perusal of the said Bill and Answer, Proofs, &c. made (10th July, 4to Carol. Regis,) his Certificate to this Effect, viz.

1st. Attorney Ge­neral his Cer­tificate. That the Complainant had prayed Process only against the then named Defendants, yet complaining therein against all the Miners within that Parish, na­ming them to be 300 or thereabouts, though the De­fendants [Page 9]in their Answer, did affirm and set forth that they were more.

2. He found that before the said Answer was made, it being delayed by a Dedimus, an Injunction was a­warded by the Ld. Keeper against all the Miners in that Parish, requiring them to pay this Tyth, which Injunc­tion was upon debate ratified and confirmed, to stand in force till the Cause was heard.

3d. He did find a general Solliciting in the Suit, and a general Contribution of the Miners of the said Parish, against the Complainant to maintain that Suit.

4th. He found that for a time, the said Miners did all submit, and continued some Years to pay this Tyth to the Complainant, but found no Order preced [...] the said Injunction and Decree, to warrant the Decree a­gainst the Miners in general.

5th. And Lastly, Records of the First fruits Office of this Tyth. he found by the Proofs published in the Cause, and by the Record in the First-Fruits-Office, that the said Tythe or Tenth of Lead Oar, had been time out of mind paid: And by that Record it appeared, that the Vicarage of Wirksworth being va­lued in the King's Book at above 40 Pounds, 30 Pounds thereof was only for the said Tythes of Lead-Oar, and therefore.

His Opinion was, That if in the Lord-Keepers Judg­ment, the Decree, as then drawn up, ought to extend to all the Miners in the said Parish until it be reversed, that then the Complainant should be settled in the pos­session of those Tythes till that time, and restored to the Arrearages, the Possession being taken away since [Page 10]the reference. But if the said Decree should not in his Lordships Judgment be extended to any others, but such, as against whom Process was prayed: That then the Lord Keeper should direct a Course for the sinal De­termination of that Question. (As by that said Decree, Order of Reference and Certificate, all on Record in Chancery, and also by the Bill and Proceedings in Parli­ament, to which the Complainant referreth himself at large, appeareth.)

Upon this Certificate of the Attorney Generals, the Complainant prayed that his Decree before had, might extend to all the Miners in that Parish.

But in regard the Decree aforesaid was not made up­on a Judicial Hearing, An Order obtained for a new Suit in Chancery. (but by Consent) the Court di­rected and ordered, that it should only stand in force against such as Consented to it. But yet further Or­dered, that Mr. Christopher Fulwood, of Councel with the Miners, should within a Fortnight after Entrance of that Order, upon notice given, nominate four Miners to be Defendants to a new Bill to be exhibited against them by the Complainant, and what Order or Decree should be made against them Four, the rest of the Miners in that Parish should be Bound by it.

In pursuance of which Order, Counsellor Fulwood na­med the four Defendants, (first mentioned in the begin­ning of this Decree) viz. Ephraim Fern, Richard Wig­ley of Cromford, Anthony Coates, and William Debanck.

The Complainant exhibited his Bill against those four Defendants, to the end, that his Duty and Right to the said Tythe of Lead-Oar, might be settled by Decree of this Court against all the Miners in the said Parish, who not satisfied with the former Proceedings, to put the said [Page 11]Complainant to further Trouble and Charge, did un­conscionably refuse to pay the said Customary Duty of the Tythe or 10th of Lead Oar, gotten, Unjust and Vexatious dealings of the Miners for forth. and to be got­ten in the said Parish. And the said four Defendants, ha­ving by Casualty, or otherwise, gotten into their own, or some of their Friends hands, divers Deeds, Evidences, Charters, Writings and Records, which would plain­ly prove the said Complainants Right and Title to the said Tythe or Tenth of Lead-Oar, had of late upon some causeless Displeasure by them conceived against the Com­plainant, and by Plot, Confederacy, and Agreement a­mongst themselves, wilfully denyed the Payment of the said Tythe of Lead Oar by them gotten within the said Parish to the Complainant then Vicar of the said Parish of Wirksworth. And according to the said Plot and Agreement, had all of them absolutely deny­ed, and wilfully refused to pay any Tythe or Tenth Part at all to the said Complainant of or for any Lead-Oar gotten by them within the said Parish of Wirksworth, sometimes affirming, that the said Tythe of Lead-Oar was a Personal Tythe, and sometimes that the said Complainant ought to take his said Tythe or Tenth Part undressed, as it was drawn up out of the Lead-Mines or Groves, in which they get the same.

Whereas in Truth, the said Tythe or Tenth Part of all the Lead-Oar gotten within the said Parish, had (all the Time whereof the memory of Man was not to the contrary) been paid, and of right ought to be paid by Custom and Prescription, in manner and form fol­lowing.

That is to say, The manner of Payment of this Tyth set forth. within and over the Wapontake of Wirksworth in the said County of Derby, (whereof the Mineral Places of Wirksworth Parish were, and are [Page 12]part) there is, & beyond Mans memory has been, a prin­cipal Officer for the said Lead Mine, called a Barmaster, by whom all the said Lead that was there gotten, is and ought to be measured before the same were sold or made away. At which Measure the said Barmaster did see the Lot and Cope paid to the Lord of the Field, or of the Mine, and the Proprietors and Own­ers of the said Tythes or Tenth of Lead Oar for the time being had likewise by all the time aforesaid, re­ceived every Tenth Dish or Measure of Lead Oar from the Miners or Getters of the same. And they had always received every the said Tenth Dish, being dressed and cleansed from the Earth and Rubbish, at and by the proper Costs, and Charges, and Labour of the Miners: The Proprietors and Owners of the said Tyth, or Tenth Dish, allowing one Penny unto the Miners for the dressing, washing, and cleansing of every said Tenth Dish.

In which manner the said Tythe or Tenth part of Lead-Oar had been paid as aforesaid, (time beyond the memory of Man) and so of Right ought to be paid.

Which said Custom for payment of the said Tythe, Custom the same in all Parishes or Tenth of Lead-Oar within all Parishes of the said County of Derby, where the same had been gotten, had been confirmed, entitled, approved, and esta­blished by the said several Verdicts, Decrees, Certifi­cates, Orders, and other Proceedings formerly set forth and expressed.

And the said Customary Duty had been so paid in manner as aforesaid, to the said Complainants Predeces­sors, and to him as Vicar of Wirksworth, time out of mind of Man, without any Interruption, Question or [Page 13]Contradiction, until of late, that the said 4 Defendants with the rest of the Miners in that Parish, Illegal Com­binations of the Miners. had combined and confederated themselves as aforesaid, and did absolute­ly deny the Payment thereof, and had given out in Speeches, that They would make the said Complainants said Tyth or Tenth part of Lead-Oar, bear the Charges of their Suit; and that if the said Complainant would oppose, and stand out in Law with them, They would make him not worth a Groat; which Opposition and Combination was con­trary to all Equity and good Conscience. And would tend to the great Loss and Disinherison of the said Com­plainant and his Successors, of the said Tyth or Tenth part of Lead-Oar, if due and speedy Remedy were not had therein.

In tender Consideration whereof, and for Prevention of Multiplicity of Suits, and to avoid further Expences, and to the intent, that a final Decree might be made in the Cause; to conclude, all the Miners within the said Parish of Wirksworth, (according to the Direction of this Court formerly made in that behalf) and the Quiet Pos­session established and continued with the said Com­plainant and his Successors, and in regard the Tyth of Lead-Oar was two thirds of the whole Profits of that Vicarage (there being neither Glebe nor Tyth-Corn, nor Tyth-Hay belonging to it) and so the said Church would be disinherited, and the Complainant impove­rished, if not timely prevented; Therefore he prayed process of Subpoena against the said 4 Defendants, which being granted, and they served therewith, and after Bill, Answer, Replication, Commissions to examine Wit­nesses, and Publication, and all other Proceedings (on [...]ord in Chancery) had and made. A Day was ap­pointed for Hearing, at which the Defendants being not ready or prepared, as their Council pretended, to go to [Page 14]hearing, Delay of Hearing by the Miners. a further Day was appointed for hearing the said Cause.

On which Day it then appeared, that a Decree had been taken by Consent (as aforesaid) against the 5 for­mer Defendants, viz. Maddock, Taylor, Fogg, Bayley, and Godbehere, for Payment of this Tyth to the Com­plainant by them and the rest of the Miners in that Pa­rish; notwithstanding which, the rest not named Par­ties then, had refused to be bound by that Decree, where­upon a new Bill was ordered, and 4 new Defendants na­med, (as abovesaid) by whose Success the Rest should now be concluded, which Cause came now to be heard.

And upon the full hearing and long debate of the mat­ter before the Right Honourable the Lord Reeper, in presence of Councel learned on both sides; It appeared, that the constant and general Custom within the said Parish for the space of 50 Years and upwards, had been to pay the said Tyth or 10th Dish of Lead-Oar dressed and cleansed from the Earth and Rubbish, Tyth not ta­ken of the Lot-Dishes which are the Kings part. saving that the Lot Tishes had not been reck'ned or accounted as part of that out of which the said Tyth or Tenth should be paid.

And the Complainants Councel offered to read De­positions of old Witnesses (taken in the former Cause) now dead, to prove this Custom in the said Parish for fourscore Years.

It appeared also by a Copy of a Record in the First Fruits Office, that the Vicarage of Wirksworth being va­lued at above 40 l. per Annum in the Kings-Books, 30 l. thereof was only for the said Tyths of Lead-Oar.

But the onely Question was concerning the Recom­pence which the Plaintiff and his Predecessors had used to allow to the Miners for cleansing and washing the said Tenth Dish. Debates a­bout the re­compence for Washing the Tenth dish.

Where it was proved by the Plaintisss Witnesses, the constant course and usage had been to allow onely a Penny for washing and cleansing the said Tenth Dish.

On the other side it was proved, that some of the Plaintiffs Predecessors had allowed sometimes to the Mi­ners, when their Work fell in hard and rocky Ground, and in places much annoyed with Water, a greater pro­portion, viz. sometimes Four Pence the Dish; and it was alledged on the Defendants part, that the cleansing of a Dish was worth Eight Pence; And therefore it was against Reason to inforce the poor Miners to do it for a Penny.

Nevertheless His Lordship was well satisfied, notwith­standing any thing objected by the said Defendants Councel to the contrary, that the said Complainant ought to be paid his Tyth of Lead-Oar; And that the most constant Custom had been to allow but a Penny for cleansing it.

And that the said Miners of the Parish of Wirksworth ought to be in the same state and coudition as other the Miners in the High-Peak were; The Miners in the Wapon­take of Wirksworth ought to be in the same condition with those in the High-peak against whom a De­cree had been made in this Court, and Tryals at Law upon the Point of Custom for payment of Tythes or Tenth of Lead-Oar as aforesaid.

Nevertheless His Lordship considering that the Alte­ration of times, might beget great Inequality and Dis­proportion in the said Payment; for although in anci­ent [Page 16]times, the foresaid rate of a Penny might be a com­petent Recompence for the labour of washing the said 10th Dish, yet in these times it may be otherwise. And considering, that whatever the Plaintiffs right in that behalf is in Law, according to the strict Custom; yet he could not expect, that A Court of Equity should Decree the said Custom in such a point as may tend to the un­doing of the poor Miners: Therefore His Lordship thought sit without prejudice to the Plaintiffs Right, or to the aforesaid Custom, if at any time he shall think good to make use thereof at Law; to take such a mid­dle Course whereby the Plaintiff without Multiplicity of Suits, might have his Tyth by Order of this Court, and yet the poor Miners not be too much pinched by the Rigor or Strictness of the said Custom.

It is therefore this present Day, that is to say, on Saturday the 4th day of July, Anno 5to Regni Caroli Re­gis, &c. primi. By the Right Honourable Thomas Lord Coventry, Lord Keeper of the Great Seal of England, and by the Authority of the said High Court of Chancery, The Tyth of Lead-Oar Decreed.Ordered, Adjudged and Decreed, that the said Defen­dants, and all other the Miners, within the said Parish for the time being, and for the Time to come, shall pay to the said Complainant, and to his Successors, Vicars of Wirksworth for ever; The Tyth or 10th Dish of All Lead-Oar gotten or to be gotten within the said Pa­rish; dressed and cleansed from the Earth and Rubbish at the Charge and Labour of the Miners. A Commis­sion about the Equity of the Recompence for washing the Tyth, but without pre­judice of the general Cus­tom.

And as touching the Allowance to be made by the Complainant and his Successors, for washing, dressing and cleansing every 10th Dish; albeit his Lordship doth not intend to alter or controul the ancient Custom in that behalf; yet in regard it tendeth to settle peace and [Page 17]quietness hereafter, and for other Reasons before ex­pressed, and because the Councel on both sides could not agree about it: Therefore his Lordship, for his fuller Satisfaction therein, and that a moderate Consi­deration may be had thereof, if the matter so require, but without prejudice of the General Custom, formerly held, and used in that behalf, thinketh fit, and doth or­der, that a Commission be awarded to Sir Henry Wil­loughby, Knt. and Barronet, Sir Henry Lee, Sir Henry Agard, and John Bullock, Esq; or any 3 or 2 of them, to consider and examine, whether a Penny a Dish be a suf­ficient Recompence, for washing and cleansing every 10th. Dish, one with another, giving them power to view all sorts of Oar, and to examine Witnesses about this Matter, if need be: And upon return of the said Commission and Certificate from his Lordship, will give further Order: Till which time the Complainant is only to pay a Penny for cleansing his Tythe Oar as formerly, and if his Lordship shall order the Miners to have a better Allowance, then the Complainant shall make up and satisfie the same unto them.

Vobis igit' praefat' Georgio Savile, &c. & vest' cuilth' sirmit' injungend' percipim' qd omnia & singula in Iu­dicio sive Decreto praedict' content' & specificat' faciatis & perimpleatis—juxta tenorem, &c.—sub periculo, &c. Testte meipso apud Westm' 28 Iulij Anno Reg' 15.

1st. BY this Record it appears, that the Right and Claim of a Tyth of Lead-Oar, is one and the same in all Parishes in Terbyshire, where Lead Dar is digged; and as such, hath been tried and adjudged at Common Law, upon general Issues and Evidence for avoiding Multiplicity of Suits. For if the Issues and Evidence had not been General, but Local, and particular (as of late Years has been attempted) there must have ensued as many several Suits, as there were Parishes, or Proprietors who claim this Tyth.

2dly. By this also appears the illegal Combinations, Confederacies, and other manifold vexatious and un­just Dealings of the Miners, in defending Suits against this Tyth; removing this Cause from one Court to another upon false Suggestions and Pretences; refusing to be bound by former Decrees (though taken by con­sent against them) on purpose to weary out the Com­plainants. They have also taken Advantage from the Change or Poverty of divers Incumbents of that par­ticular Parish, to which this decree relates, to enforce and oblige them to defend, renew, and confirm this very Decree five or six times (since the first beginning of it,) at the Expence and Charge of many hundred Pounds each time.

3dly. By this Record (as well as by the Iournals of Parliament to which it refers) it appears, that this Custom for payment of a Tyth of Lead-Oar in all [Page 19]Parishes within the County of Derby where it is got­ten, hath been examined, debated, & approved amongst the Commons assembled in Parliament, by rejecting and casting out a Bill formerly brought against it: Which we hope will be looked on as a good Prece­dent to bring this Cause once more before that High and Honourable Court, by a Bill for preventing such Mul­tiplicity of Suits, and final Settling this Tyth in the said County, according to the Tenor, Equity, and Esta­blishment of this and other such like Decrees.

Object. 1st. TYth is only due of Things growing or in­creasing above Ground, and may as well be claimed of Coal-mines or Lime-kilns, as of Lead-Mines.

Answ. Tyth though ordinarily, or of common Right due of things growing above Ground, yet by Custom may be paid of any thing whatever, as is known in ma­ny Instances in divers Parts of this Kingdom. Coales and Lime are not under the same Laws, Customs, Pri­vileges, and Acknowledgments of Tyth, as the Lead-Mines in Derbyshire are. Nor do the Ministers or Pro­prietors of Tyth pay Tenths yearly to the King for Tyth of Coals or Lime, as they expresly do for Tyth of Lead-Oar. And the Objectors know well enough, that in [Page 20]divers Parishes of Derbyshire, where a Tyth of Lead-Oar has been, and is at this day paid, there are Lime­kilns, and in some places Coal-mines also. from which never any Tyth was pretended to be claimed.

This also (we hope) will prevent all Prejudice in such Gentlemen, who have Interest in Mines in other places of the Kingdom, which are not under the same Customs and Priviledges, nor liable to the same Duties with those in Derbyshire. This Establishment being only desired for the County of Derby, where this Tyth hath been abundantly acknowledged by the whole Body of the Miners, and is in most places paid at this day.

Object. 2d. The payment of this Tyth will injure or obstruct the King's Duty. Note, That the King's Duty is called the Lot and Cope: The Lot is every 13th Dish, or Measure of Oar paid to the King, as Lord of the Field: The Cope is in some places 6 pence, in others 4 pence for every Load of Oar, (9 Dishes making up a Load) which is paid by the Buyers of the Oar, as a Com­position for the King's Right of Praeemption of the Oar which he formerly had.

Answ. The Cope being paid by the Buyer of Lead-Oar, cannot be at all affected by payment of the Tyth; and the Lot-dishes are never reck'ned as part of that out of which Tyth is paid. In the old Laws and Cus­toms of the Lead-mines (which are on Record) the Du­ties to the Church and King are mentioned always to­gether as necessary Conditions of some Privileges: And we hope the Farmers of his Majesties duty, will not think it their just Interest, to destroy the one, upon pretence of advancing the other; since the payment of each to the distinct Proprietors does best secure the [Page 21]Accounts of both, and prevents either from being cheat­ed. For in places where this Tyth is unjustly witheld from the Church, the King is more easily cheated by the Miners, who are as ready to conceal and defraud the King's part (where they can do it) as they are to deny the Churches Right.

Object. 3d. The Payment of this Tyth will ruin the poor Miners, or discourage them from working.

Answ. It is paid in all Parishes adjoyning to the Pe­titioners, yet has no such effect; nor had it such effect, when it was paid in the Petitioners Parishes. The poor as well as rich Miners have all of them acknowledged the Churches Right, when it was for their Service, ei­ther to set out their Privileges, or to obtain a Relaxati­on of Taxes by such Acknowledgment. But the Clergy have always used the greatest Clemency to the poorer sort of Miners, taking little or nothing from them; and they are ready, and believe it to be their Interest still to use the same Clemency; provided it may not be ur­ged against them, to destroy their Claim at common Law (as of late has been done.) However the Rich Owners and Maintainers of Mines, (who get many hun­dred pounds yearly out of them, and turn up into bar­ren Heaps, whole Fields of good arable, meadow, and pasture Land, which would otherwise yeild a good Tyth in another kind to the Parson) have no reason to make this Objection: The poor Miners generally working un­der them, for Wages only.

Note, That both his and the former Objection were formerly considered & disproved before the Privy-Councel, when the Cause of Tyth-Oar for the whole County of Derby was brought before them by the Mi­ners, [Page 22]upon pretence of some Point of State, which their Lordships declared to be otherwise.

Object. 4th. Tryals at Common Law have in some places been had, and Verdicts passed against this Tyth.

Answ. These Tryals were upon wrong Issues, directly contrary in their Effect and Intention to the former ge­neral Issues directed by the Privy Councel for the whole County. The Former were for preventing multiplici­ty of buits, these Latter were for promoting as many Suits as there are Parishes where Lead-Oar is digged. The former Tryals were solemn, by Gentlemen of Worth and Estates at the Common-pleas Barr in West­minster; the Latter were by meaner and prejudiced Country juries, some of them interessed in Mines, or related to such as were so. The Former were upon full and long Evidence; the Latter were upon most false, perjured, and partial Evidence (as shall be made appear if it be examined.) The Miners in these last Try­als swearing for their own Interest against the Payment of this Tyth in that Parish where the Suit was: And then upon the Verdict passed against it there, denying it in 3 or 4 of the neighbouring Parishes also where till that time it had been constantly paid or compound­ed for. So that though the Issues in these last Tryals were (contrary to the former Establishments, then not understood by the Plaintiffs) made local and particu­lar; yet the Consequence and Effects of the Verdicts of those Issues were (contrary to both Law and Equity) made general and universal by denial of this Tyth in neighbouring Parishes.

Object. 5th. The Petitioners have Glebe-Lands and o­ther Tyths and Profits of their Benefices, sufficient for them to live upon, without this Tyth of Lead-Oar.

Answ. We know not what the Objectors are pleased to account sufficient for a Clergy-man's and his Families Maintenance, and to enable him to keep such Hospital­lity, and exercise such Charity, as in that poor Coun­try is expected from him: But we profess we can glad­ly be content with the just Rights and Perquisites of our Churches be they more or less; Some of us have not 50 l. per Annum clear profits of our Benefices: O­thers of us not 70 l. and none of us (we believe) have 100 l. per Annum, except one who has 2 Medieties of the same Parish, which formerly, when the Tyth of Lead-Oar was paid in that Parish, did maintain 2 several Mi­nisters, and their Families, and now though both Me­dieties are conjoyned, they hardly exceed 100 l. per Annum.

But the Opponents of this Duty of Tyth-Oar were alway ready to over-value the poor Clergy's Benefices, and of late to over-tax 'em also, some of them being tax'd at an higher value, than when their Predecessors received this Tyth of Lead Oar. In a Suit against the late Rector of Matlock, the Defendents swear (in their Answer) that that Rectory was worth above 100 l. per Annum in Tyths, and Rectorial Dues, over and besides the pretended Duty of Tyth-Oar: Some Persons ex­amined as Witnesses in that Suit, swear that Rectory to be worth 100 l. per Annum besides or without the Tyth of Lead-Oar: And the Desendents Sollicitor in that Cause, instructs their Councel to affirm it worth sometimes 120 l. and sometime 140 l. per Annum with­out Tyth Oar: And yet to shew the Falshood of all these Assirmations; the present Incumbent of that Pa­rish could never yet Lett or Lease out his Benefice for 70 l. per Annum, and he has divers times prossered to Lett it for 60 l. per Annum.

However, all these Objections would be of more force (if they had any at all) against divers Noblemen, Gen­tlemen, and other Proprietors of Tyth in the said Coun­ty (who have many Thousands per Annum to live upon, And yet (having a just Right and Title to this Tyth) receive more yearly Revenues out of it, than any or all the poor Clergy Petitioners are likely to do. But against those great Persons these Objections are never made. It may be further added here, That the Petiti­oners praedial Tyth of Corn, Hay or Grass, is yearly hindred and decreased by the multiplying of Groves or Mines in their Parishes, which spoil the Land, and make it barren. And lastly, the chief Proposers of this Ob­jection, who are the rich Owners and Maintainers of Mines, have gotten great Estates out of the Mines, of more yearly value, than any of the Petitioners Benefi­ces amount unto in the whole profits of all their Tyths together.

This we hope will satisfie all just and charitable Gen­tlemen of the Justice of our Cause, and the Wrong which We and our Churches suffer.