Honourable Society of Cymmrodorion.

SESSION 1924-25.

THE WHITFORD LEASES: A BATTLE OF WITS.1

BY THOMAS RICHARDS, M.A., D.Litt., Maesteg.

(i) DEMISES ECCLESIASTICAL.

It was very quaintly said in one of the old Law Reports that if a bishop were not allowed to make demise of those lands he held in right of the Church, he would have to manure such lands by his own servants; neither would he have any benefit of wastes unless he took the herbage with his own cattle.' It would surely be matter for regret to find the lords of the Church degenerating into bucolic bailiffs riding from manor to manor. Would it not be much better if some benevolent lay churchman would take such responsibility off the bishop's shoulders, pay hand

1 Read before the Honourable Society of Cymmrodorion, at King's College in the Strand, on Friday, the 2nd of January, 1925. Chairman: G. Hay Morgan, Esq., K.C.

2 Wm. Nelson: The Rights of the Clergy of Great Britain (1709), pp. 114, 325 (pp. 209-336 are misprinted as 109–236). This work is particularly valuable because it makes full use of the works of Sir Simon Degge, of the "Repertorium Canonicum" of Dr. John Godolphin, and of the various Law Reports published up to that time.

B

somely for the honour, and allow the whole arrangement to be recorded on parchment, with seals and covenants duly attached ? Such leases soon became the most treasured muniments of the episcopal cartularies. Not that these expedient transferences ran congruous to the spirit and policy of the Middle Ages. The pious benefactors of monks and bishops the rather contemplated the perpetual retention of their gifts in the hands of the donees; indeed, it seems that, were such an alienation of their gifts attempted, the donors or any of their heirs could thereupon recover their lands by the writ of "contra formam collationis". In those days, too, ecclesiastical corporations were themselves very reluctant to part with the lands bequeathed to them, because of the easy terms under which they were held, and of the numerous privileges that went with them. The secular Reformation engineered by the Tudors drove a mighty wedge into the close policy of the close corporations: the new economic revolution with its improved methods of land management tempted men to a reckless alienation of ecclesiastical property to the damage of the Church and the scandal of the nation (as Lord Coke put it with a fine rhetorical flourish). For it must be clearly understood that though at Common Law a bishop could not make a lease for longer time than he continued bishop, yet he could make any estate whatsoever to bind his successor, so as it was confirmed by the Dean and Chapter of his Cathedral. "The Bishops had too little power alone without their Chapter . joyned with them they had too much "."

2

With the reign of Henry VIII came an alteration in the law. In the year 1540 the "enabling statute" (32 Hen. VIII, c. 28) was passed which gave the bishops power to

1 For this conspectus, see Edward Jenks: Modern Land Law, p. 277.

2

Wm, Nelson; The Rights of the Clergy, p. 318,

make leases of the lands they held in right of the Church either for 21 years or for three lives, without any confirmation. That they could not do before. But what was given by one hand was taken away by the other. For such leases were subject to six or seven serious restrictions if they were leases for lives, the three lives must all wear together; the lease must be of lands which had been usually let for the greatest part of the twenty years next before the making the new lease; an annual rent had in all cases to be reserved; the "reddendum" had to be of so much rent as had been usually paid for the land within the previous twenty years.' If all these were observed, together with one or two other technicalities, the lease (let us repeat) was good without the formality of confirmation by the Dean and Chapter. Nor did this Act of 1540 in any way restrain them from their ancient and larger power of making very much longer leases with confirmation, leases which must have told heavily against the interests of their successors. In 1558, by 1 Eliz., c. 19, it was the turn of the successor to be protected-by that statute all estates made by bishops of any of their lands other than for 21 years or three lives were to be utterly void.2

So far, Bishops. Attention was first paid to them because theirs were the more powerful interests and because they exposed a more open flank to their secular critics. During all this time all clergy inferior to bishops could alien their glebe with the confirmation of the bishop and patron, and that without restraint; for example, in the sixth year of the reign of Edward VI, Griffith Wynn, who was then prebendary of Llanfair Dyffryn Clwyd in

1 Ibid., pp. 318-320.

2 Ibid., p. 321. Here and elsewhere Nelson misquotes this Act as 1 Eliz., c 13.

the Cathedral of Bangor, demised the premises of the prebend for 99 years at a yearly reserved rent of £26 13s. 4d. (this to John Wynn ap Meredith and Morris Wynn, ancestors of Sir John Wynn of Gwydyr).' Eighteen years later such transactions were made impossible. By 13 Eliz., c. 10, all leases made by the lower clergy-which included Masters and Fellows of Colleges, Masters and Guardians of Hospitals, Deans and Chapters, parsons and vicars-unless for 21 years or three lives, were declared absolutely void. All the restrictions laid upon episcopal leasing by 32 Henry VIII naturally fell to the lot of the lower orders by the 13 Eliz. Grants of such leases even in reversion were forbidden. It is true the freedom of parsons and vicars was a little enlarged the next year (14 Eliz., c. 11) by allowing them to make leases to last for 40 years, but only in the case of houses in cities or market towns (even then these must not be the dwelling-houses of the parsons themselves nor have above ten acres of ground belonging to them). Laymen and lawyers had very effectively set their heads against tying up church property for ridiculously long periods. It was a corollary of the English Reformation that the business affairs of the sons of Levi fell to be regulated by the disciples of Erastus.

1 Lambeth MS. 902, f. 65 (indenture dated 14 Jan., 1552-1553).

2 In the time of Queen Elizabeth, but before this Act was passed, the "College of Manchester" made a lease of certain of its premises to one Trafford and his heirs for 21 years, with a covenant that after the said 21 years ended he should have the land for another 21 years, and so from 21 years to 21 years, "till 99 years past thence next ensuing shall be compleat and ended". In the Hilary Term of 16781679, three judges of the King's Bench had to unravel the problem whether the first 21 years were to be included in the 99, or not. After learnedly discoursing on the meanings of "hence" and "thence", they decided in the negative, by adjudging them to be two leases and not one. The second lease of 99 did not expire till 1687 (2 Levinz, 241-242; 2 Shower, 31-32).