Right because the Fee-simple abideth in him and his Chapter and so may a Dean and Master of an Hospital And these are called Bodies Politick by Littleton That the Exercise of the Bishop's Power may be restrained by ancient Compositions as is seen in the two Ancient Ecclesiastical Bodies of St. Paul's and Litchfield Concerning which it is to be observed That where the Compositions are extant both Parties are equally bound to observe their parts Thus by the Remisness and Absence of the Bishops of Litchfield from their See by going to Chester and then to Coventry the Deans had great Power lodged in them as to Ecclesiastical Jurisdiction there After long Contests the matter came to a Composition A. D. 1428. by which the Bishops were to visit them but once in Seven Years and the Chapter had Jurisdiction over their own Peculiars So in the Church of Sarum the Dean hath very large Jurisdiction even out of the Bishop's Diocess which makes it probable to have been very ancient but upon contest it was settled by Composition between the Bishop Dean and Chapter A. D. 1391. But where there are no Compositions it depends upon Custom which limits the Exercise although it cannot deprive the Bishop of his Diocesan-Right 4. The Delegate Jurisdiction which was committed to the several Officers of the Bishops Courts and the Manner of their Proceedings is founded upon immemorial Custom In the Saxon times I find no Delegation of Ecclesiastical Jurisdiction for the Bishops sate in person in the County-Courts and there heard Ecclesiastical Causes as appears by the Charter of H. 1. when he pretended to restore the Saxon Laws c. 7. But William I. had settled the Consistory-Court by as good a Law as any was made at that time distinct from the County-Court and required all Ecclesiastical Causes to be there heard and his Son H. 1. did but make a shew of restoring the Saxon Laws and the former Law came to be generally received and so Mr. Selden yields that it grew to be a general Law which shews that it obtained the Force of a Law by Consent as well as by Authority The Consistory-Courts being thus settled and Numbers of Causes there depending and the Bishops being then by H. 2. in the Constitutions of Clarendon strictly tied to Attendance upon the Supreme Courts of Judicature with other Barons there came a Necessity of taking in other Persons with a delegated Power to hear Causes and to do such other Acts of Jurisdiction as the Bishops should appoint For it was still allowed that Iure communi the Jurisdiction was in the Bishop but Iure speciali in auxilium Episcopi it might be delegated to others And so it hath been here received and not only here but it hath been the general Practice of Christendom As to the manner of Proceeding in the Ecclesiastical Courts it is the same in all Parts and built on the same Grounds with those of our Courts of Equity and Admiralty which are as different from those of the Common Law 5. The settling Parochial Rights or the Bounds of Parishes depends upon an ancient and immemorial Custom For they were not limited by any Act of Parliament nor set forth by special Commissioners but as the Circumstances of Times and Places and Persons did happen to make them greater or lesser In some places Parishes seem to interfere when some place in the middle of another Parish belongs to one that is distant but that hath generally happened by an Unity of Possession when the Lord of a Manor was at the Charge to erect a new Church and make a distinct Parish of his own Demesns some of which lay in the Compass of another Parish But now care is taken by Annual Perambulations to preserve those Bounds of Parishes which have been long settled by Custom But the Bounds of Parishes is not allowed to belong to the Ecclesiastical Jurisdiction II. The next Foundation of Law is a General Practice and Allowance i.e. when things of themselves do not oblige by the Authority of those that made them yet being generally received and allowed they thereby become Law to us This we have in an Act of Parliament 25 H. 8. c. 21. wherein it is said That the People of England are only bound to such Laws as are properly their own being in Subjection to no Foreign Legislative Power But were not many things here received for Laws which were Enacted by a Foreign Authority as the Papal and Legatine Constitutions True say they but it is not by Virtue of their Authority but by the free Consent of the People in the Use and Allowance of them And so they are not observed as the Laws of any Foreign Prince Potentate or Prelate but as the customed and ancient Laws of this Realm originally established as Laws of the same by the said Sufferance Consent and Custom and no otherwise So that here we have a full and express Declaration by Parliament That such Canons as have been received and allowed by ancient Custom make a part of our Laws and continue to oblige provided that they be not repugnant to the King's Prerogative nor to the Laws Statutes and Customs of the Realm as it is expressed in another Act of the same Parliament 25 H. 8. c. 19. The Ecclesiastical Laws saith my Lord Coke are such as are not against the Laws of the Realm viz. the Common Law and the Statutes and Customs of the Realm And according to such Laws the Ordinary and other Ecclesiastical Iudges do proceed in Causes within their Conusance So that by the Acknowledgement of this great Oracle of the Common Law there are Laws Ecclesiastical in force among us and Causes to be judged by those Laws and Officers appointed by the Law to proceed according to them The Ecclesiastical Laws and Ordinances are owned by the Statute 27 H. 8. c. 20. 32 H. 8. c. 7. 35 H. 8. c. 19. after the Commission appointed for the Review of them 1 E. 6. c. 2. The Ecclesiastical Courts are appointed to be kept by the King's Authority and Process to be issued out in his Name in all Suits and Causes of Instance between Party and Party where the Causes are particularly mentioned which belong to those Courts and no Alteration is made in them as to their powers but only that the Process should be in the King's Name But some persons in our Age who love to be always starting Difficulties to humour such as bear ill Will to our Constitution have 〈…〉 although this Act was 〈…〉 M. 2. yet that Repeal 〈…〉 â—ac 25. n. 48. therefore 〈…〉 Stat. 1 E. 6. is 〈◊〉 But the plain and short Answer is this That there was no need of any Debate about the Repeal of the Statute of E. 6. after the first of Q. Eliz. because then the Statute 25 H. 8. c. 20. was expresly revived wherein the Bishops were impowered to act as before they might have done according to the Laws and
Customs of the Realm By which no less Men of the Law than Coke Popham and other Judges did think the Stile of the Court and Manner of their Proceedings was comprehended And the Ancient Episcopal Iurisdiction is declared to be according to Law by the Stat. 1 El. c. 1. and all Foreign Iurisdiction is abolished and the Ecclesiastical Iurisdiction annexed to the Crown of this Realm which is owned by every Bishop when he takes the Oath of Supremacy How then can it be imagined that he should do any more to the Prejudice of the Crown by the Process being in the Bishop's Name than the Lord of a Manor doth when he keeps his Courts in his own Name To suppose that it is owning a Foreign Iurisdiction is ridiculous for the Bishops of England never pretended to act as Ordinaries by Virtue of a Jurisdiction from the Pope but by Virtue of their Original Authority which they had by the Laws of the Realm as to their exterior Jurisdictions And the Authority they then acted by from the Pope was in Cases extraordinary when they were delegated by particular Commission And if there had been any real Derogation from the King's Prerogative in the Process being in the Bishop's Name can any Man of Sense imagine that it would have been permitted in such jealous times as to Supremacy as the latter end of H. 8. and the whole Reign of Q. Elizabeth were wherein the Bishops wanted not Enemies but their Malice would have been too apparent if they had insisted on such Objections But to proceed in shewing that the Ecclesiastical Laws have been owned by Acts of Parliament since the Reformation 2 E. 6. c. 13. n. 13. The Ecclesiastical Iudges are required to proceed according to the King 's Ecclesiastical Laws And to the same purpose 1 El. c. 2. n. 23. Accordingly my Lord Coke frequently owns the Ecclesiastical Laws and Iurisdiction so they be bounded by the Laws of the Realm of which there can be no Question For deciding of Controversies and for distribution of Iustice saith he there be within this Realm two distinct Iurisdictions the one Ecclesiastical limited to certain spiritual and particular Cases the other secular and general for that it is guided by the common and general Law of the Realm And to the same purpose my Lord Chief Justice Hales in several places in a MS. Discourse of the History and Analysis of the Common Law ch 1 and 2. But here the great Difficulty lies in finding out what these Canons and Constitutions are which have been so received and allowed by our Laws For it is certain that several Canons made by Popes were not received here as in the Statute of Merton about Legitimation of Children born before Marriage Stat. Mert. c. 9. where the Lords declared they would not alter the old Laws for a new Canon For Alexander III. in the time of Hen. II. had made a Canon to that purpose but as Glanvil saith it was contra jus consuetudinem Regni The Canon to take away the Benefit of the Clergy from Bigami was debated in Parliament how far it should be received and the Sense there declared which was complained of 51 E. 3. and taken away 1 E. 6. c. 12. The Canon against Investiture of Bishops by a Lay-hand was never here received for although H. 1. after a long Contest gave it up yet it was resumed by his Successors The Canons for Exemption of the Clergy were never fully received here Some Lawyers say it was never observed I suppose they mean according to the Canons but that they had legal Privileges here although not a total Exemption cannot be denied by any one versed in our Laws from the Saxon times The Pope's Canon for the Clergy not being taxed without his consent was never received as appears by the Contests about it in the time of E. 1. and their Submission afterwards The Pope's Canons about Appeals Provisors Dispensations c. were never received by such a general Consent as to make them Laws they were sometimes practised by Connivence and the Kings when it served their purposes let them alone but as often as there was occasion they were contested and denied and Statutes made against the Execution of them Some Canons I find disputed whether they were received by the Law of England or not As the Canon against Clergy mens Sons succeeding their Fathers in their Benefices immediately without a Papal Dispensation is not only a part of the Canon Law but enter'd in our Provincial Constitutions But in the Case of Stoke against Sykes it was held by Dodderidge and Iones two learned Judges That this Canon was not received here And Dodderidge instanced in two other Canons not received as against a Man's marrying a Woman he had committed Adultery with and a Lay-man's not revoking his first Presentation And Sir Iohn Davis mentioned reckoning the Months for Presentation by Weeks and not by the Calendar But both these are disputable Points For some say as to the former That none but the King can revoke a Presentation But the Canonists think a private Patron may vary with the Bishop's Consent And as to the way of computing the Months it hath been differently resolved but in Catesbie's Case it was determined to be Calendar-Months for many Reasons But in the ancient Resolution in the time of E. II. the Tempus semestre was reckoned from Notice to the Patron and not from the Death of the Incumbent Rolls saith By our Law it is from the time the Patron might have notice with regard to the distance of the Place where the Incumbent died Which leaves the matter uncertain But the Register reckons from the Vacancy In many other Cases the foreign Canons were not received for they allow but Four Months to a Lay-Patron but our Law Six Months they deny any Sale of a Right of Advowson but our Law allows it and a Separation of it from the Inheritance which the Canon Law allows not and so in other particulars but these are sufficient to my purpose It is observable that after the Council of Lions where the Pope was present Peckham Archbishop of Canterbury called a Provincial Council wherein he mentions the difference of our Customs from all others and a Temperament to be made suitable to them And our Judges in the great Case of Evans and Ayscough declared That no Canons bind here but such as are recieved by the Realm And Dodderidge said That our Ecclesiastical Law doth not consist of the Pope's Decretals but is an Extract out of the Ancient Canons General and National But the Judges agreed That when they are received they become part of our Law Lord Chief Justice Vaughan saith That if Canon Law be made a part of the Law of the Land then it is as much the Law of the Land and as well and by the same Authority as
the Prescription And therefore he resolves it into a Modus decimandi But he mentions several Judgments that no Tithe is due for After-pasture where Tithe-Hay hath been paid before which must be where there was no Custom to the contrary or else he must contradict himself And so Yelverton saith in the Case of Green and Austen That of common Right Tithe-Hay discharges the Tithe of the After-pasture But Crook saith That in that case the Court went upon the Prescription and allowed it to be good How could it go upon both And Sir S. Degge is positive that if a Meadow affords two Crops the Parson shall have Tithe of both How can these things consist Or what Authority may we rely upon in such Difference of Opinions 2. Another Rule in Law is That things which are ferae Naturae are not tithable But here we are to seek what things are ferae Naturae Whether such things as may be tamed and kept under Custody and become a Man's Property are ferae Naturae Is it not Felony to steal Rabbets or Pigeons if it be they must be some Man's Property and if they be a Man's proper Goods how can they be said to be ferae Naturae For the meaning was That no Man was to pay Tithes for that which was not his own Are not Bees ferae Naturae as much as Pigeons and Rabbets But the Tithe of Bees is allowed to be paid by the Tenth of the Honey and Wax But Rolls saith That it was doubted whether a Tenth Swarm were a good Modus for the Tithe of Bees because they are ferae Naturae The Reason is because they are left wild and under no Custody but if they went into several Hives belonging to the Proprietor they might be tithable by the Hives And so for Pigeons under Custody in a Dove-house they are a Man's Property and therefore tithable As it hath been several times resolved in Courts of Law 14 Iac. in Whately and Fanbor's Case in Iones and Gastrill's Case a Prohibition was denied and Justice Dodderidge declared to whom the Court assented that Tithe was due both of young Pigeons and Conies But the prevailing Opinion hath been That if they are consumed in the House they are not tithable but if sold they are But are they not ferae Naturae as well when they are sold at Market as when they are eaten at home Why then are they tithable in one Case and not in the other If they are tithable at all they are so where-ever they are spent for in tithing the Nature of the thing is to be considered and not the Place of spending it For upon the same Reason there would be no Tithe of Corn spent at home or Pigs Calves c. and therefore I look on the Reason as of worse Consequence than the total denying the Payment For who can tell how far this Reason may be carried in other Cases But it is resolved in many Cases that though they are ferae Naturae yet by Custom they may be tithed and so for Fish Custom it seems hath the Power of reducing things ferae Naturae to the same Condition with other things But as far as I can find these things by our old Constitutions were as tithable as other things but the notion of their being ferae Naturae being started served as a Plea against them where the Custom was not continued and where it was beyond all Dispute then they said they were not tithable in themselves but only by Custom or not by Law but by Custom and yet such Customs make a part of our Law In several ancient Appropriations Fish and Pigeons and Rabbets are expresly mentioned as given together with other Tithes so that in those times both Law and Custom went together For the Lords of Manors were not wont to give Tithes which were not otherwise due 3. But what is to be done with those Lands which might afford Tithe if the Increase of Grass were suffered but the Owners feed Cattel upon it and so there can be no Tithes what Remedy doth the Law afford in this case 1. It is agreed that no Tithe is due if no other Cattel be fed but such as the Owner pays Tithe for or are imployed in plowing or any other way which is for the Benefit of the Incumbent of that Parish where they are fed For otherwise they are but as barren Cattel to him 2. That there is a certain Rate due for the Agistment of barren Cattel Iure communi and so delivered by Hales then Chief Baron according to the Value of the Land unless Custom hath determined otherwise And so for Guest-Horses c. unless the Inn-keeper had paid Tithe-Hay say some or the Custom be otherwise But none for Saddle-Horses for the Use of the Owner One of the Judges dissenting because not intended for Husbandry But for unprofitable Cattel the tenth part of the Bargain is due or according to the Value of the Land and the Owner of the Cattel is compellable to pay 3. If profitable and unprofitable be mixed so as the latter be the greater Number then Herbage must be paid for them and Tithe in kind for the profitable but if the profitable be the greater Number it is questioned whether the other are not excused but no Law or Precedent is produced for it And there seems to be no Reason if Pasturage be due for unprofitable Cattel why they should be excused because there are more profitable unless their Number be inconsiderable These things I have only briefly touched at that you may the better govern your selves in Disputes of this Nature and as you are not to lose the just Rights of the Church so neither is it for your Interest or Honour to be engaged in them where the Law will not bear you out II. The next thing necessary to be considered is the legal Discharges from the Payment of Tithes For although the Reason of the Payment of them be founded on the Law of God and the Settlement of Tithes among us hath been by ancient and unquestionable Laws of the Land yet the Recovery of Tithes when unjustly detained can be no otherwise than by the Law of the Land as it is now in force And if these do allow several Discharges and Exemptions not to be found in the ancient Laws or Practice we shall but involve our selves in fruitless-Contentions if we dispute those Limitations which the Law hath put upon the Payment of Tithes And therefore our Business is to enquire and satisfie our selves as well as we can about the Nature and Extent of these Limitations Now there are four sorts of Discharges of the Payment of Tithes allowed 1. By Appropriations to Monasteries 2. By Privileges of particular Orders 3. By Prescription and real Compositions 4. By Unity and Possession Of
looked on Tithes in general as due to the Church as appears by very many of their Ancient Charters but they thought they did very well when they appropriated them to Monasteries of their own Erection or others as they thought fit But this Humour took so much among the Norman Nobility and served so many Purposes of Honour and Devotion as they thought besides Reason of State that the parochial Clergy were reduced to so poor a Condition that Alexander IV. complained of it as the Bane of Religion and Destruction of the Church and as a Poison which had spread over the whole Nation And it must be very scandalous indeed when the Pope complained of it For the Monks that were able generally got their Appropriations confirmed in the Court of Rome 2. There was a Competency to be settled on the parochial Clergy by the Bishops Consent which was required in order to the confirming an Appropriation as may be seen in Multitudes of them in the Monasticon besides those which are preserved in the Churches Registers Sometimes the Endowment is expressed and at other times it is reserved in the Bishop's power to do it as he sees Cause But the Bishops were either so remiss in those Times or the Monks so powerful at Rome that the poor Vicars fared so hardly that in the time of H. 2. Alexander III. sent a Reprimand to the Bishops for favouring the Monks too much and the Clergy too little and therefore requires the Bishops to take care that the Vicar had a competent Subsistence so as to be able to bear the Burden of his Place and to keep Hospitality This was directed to the Bishop of Worcester for it seems so long since the poor Vicars here were hardly provided for And yet I have seen several Forms of Appropriations made by the Bishops here after the Conquest wherein there is a twofold Salvo one for the Bishop's Right and another for a sufficient Maintenance for the Curate although the Church were appropriated ad communem usum Monachorum as of Wolstan Roger and of William in the time of Hen. II. when Alexander III. lived and of Walter de Grey Sylvester c. But it seems where a competent Subsistence had been decreed the Monks took the first Opportunity to lessen it which occasioned another Decretal in the Canon Law wherein any such thing is forbidden without the Bishop's Consent In other Places they pleaded Custom for it thence came another Decree of the Lateran Council to void all such Customs by whomsoever introduced where there was not a competent Subsistence for him that served the Cure The Monks were still refractary in this matter and because the Bishops had Power to refuse any person presented by the Monks unless they did consent to such a reasonable Allowance as the Bishop thought fit therefore they grew sullen and would not present in which Case another Decretal was made to give the Bishop Power to present And after all Clement V. De Iure Patron c. 1. reinforced the former Decretals and injoyned the Diocesans in the strictest manner not to admit any person presented to a Cure where the Church was appropriated unless sufficient Allowance were made by the Bishop's Consent and Approbation and all Custom and Privileges to the contrary are declared to be void But how far doth this hold among us now since the Appropriations are become Lay-Fees and the Bishop's Power is not mentioned in the Statute of Dissolution To this I shall give a clear Answer but I doubt not satisfactory to all Parties concerned For as Necessity and Power so some Mens Interest and Reason live very near one another 1. The Statute of Dissolution leaves all matters of Right as to persons interested just as they were before For by the Surrender the King was to have the Monasteries and Tithes in as large and ample a manner as the Abbots then had them in Right of their Houses and in the same State and Condition as they then were or of Right ought to have been And so res transit cum suo onere But this is not all For there is an Express Salvo for all Rights Claims Interests c. of all Persons and Bodies Politick So that if by the Law of England there was such an Antecedent Right in the Vicar to his Allowance and in the Bishop to assign it it is not taken away by this Statute nor any other 2. By the Law of England the Bishop had a Right to provide a competent Maintenance for supplying the Cure upon an Appropriation We are told by an unquestionable Authority in point of Law that 9 Car. 1. this Point was brought before the Kings Bench in the Case of Thornburgh and Hitchcot The Vicar complained that the Church was appropriated and that he wanted a competent Maintenance a Prohibition was prayed but denied upon this Reason That the Vicar had Reason for his Suit and that the Ordinary might compel the Impropriator to make it greater because in all Appropriations that Power was reserved to the Ordinary And so in the Year-Books it is allowed That the Ordinary may increase or diminish the Vicar's Portion 40 E. 3. Cas. 15. f. 28. By our Provincial Constitutions the Bishop is to take care that the Vicar have a competent Allowance which at that time was set at Five Marks but Lyndwood observes that as the Price of things rose so the Allowance was increased and in Stipendiaries it was then advanced to Eight or Ten Marks which according to Sir H. Spelman's Computation comes to above Sixty Pounds per Annum But some have told us That by some old Statutes even beneficed Persons were not by Law to have above Six Marks per Annum for this was the Sum allowed to Parish Priests which is so gross a Mistake in any that pretend to Law or Antiquity that it is to be wondred how they could fall into it The Truth of the Case was this the parochial Chaplains or Priests were complained of 36 E. 3. n. 23. that they could not be gotten to attend after the Plague but at excessive Rates upon this a Provincial Constitution was made extant in the Parliament Rolls wherein they are obliged to demand no more than Six Marks But who were these Parish-Priests Not such as had the legal Endowments but those who depended on the Good-Will of the Parson or People and were hired to officiate in Chapels of Ease or to perform Offices for the Dead which were so frequent at that time And these were called Annual Chaplains or Masse Chaplains and were distinguished from Domestick Chaplains who officiated in great Mens Houses in their private Oratories and from Beneficed Persons as appears by many Constitutions But whatever was understood by the Act of Parliament then it was repealed 21 Iac. 1. 28. 3. The Law of England as to a competent Subsistence for the Vicars or
any other part of the Law of the Land In another place That the Ancient Canon Law received in this Kingdom is the Law of the Kingdom in such Cases In a third That a lawful Canon is the Law of the Kingdom as well as an Act of Parliament III. I now come to the third thing viz. The Power of making Canons by Act of Parliament This is founded on the Statute 25 H. 8. c. 19. The Words are That no Canons Constitutions and Ordinances Provincial or Synodal shall be made promulged and executed without the King 's Royal Assent or Licence Canons so made and authorized by the King's Letters Patents according to the Form of the Statute are said by Lord Chief Justice Vaughan to be Canons warranted by Act of Parliament And such he affirms the Canons of A. D. 1603. to be But some have objected That these are only Negative Words and are not an Introduction of a new Law but a Declaration of what the Law was before But my Lord Coke with far greater Judgment limits that Expression That what was then passed was declaratory of the Common Law to that Clause That no Canons should be in Force which were repugnant to the Laws of the Realm But as to the making of new Canons he only saith That their Iurisdiction and Power is much limited because they must have licence to make them and the King 's Royal Assent to allow them before they be put in Execution But he never imagined the Sense of the Statute to be That no Canons could be made but in Parliament or that the King had not a Power to confirm new Canons made by the Convocation As to the Law as it stood before we must distinguish these two things 1. Convocations called by the King 's Writ to the Bishops and the body of the Clergy could never assemble without it But the Writ for the Convocation to sit with the Parliament not together in Place but at the same time is contained in the Writ to the Bishop and begins with the Clause Praemunientes And it is most probable that it began on the same Ground that the Attendance of Burgesses did viz. That when they were brought into the Payment of Subsidies they ought to give their Consent For I find that in the time of H. 3. A. R. 39. the Inferiour Clergy complained That they were taxed without their Consent 2. Convocations called by the King 's Writ to the Archbishops and in this Province the Archbishop sends his Mandate to the Bishop of London who is to summon all the Bishops c. to appear at a certain Time and Place and to act as they receive Authority from the King The not distinguishing these two Writs hath caused so much Confusion in some Mens Minds about the Rights of the Convocation For they imagine that the Convocation as it treats of Ecclesiastical Matters sits by Virtue of the first Writ which is in the Bishops Summons to Parliament but that related to them as one of the three Estates of the Realm whose Consent was then required to their own Subsidies which were distinctly granted but confirmed by the other Estates But the other Writ was directed to the Archbishop by which the Bishops and Inferiour Clergy were strictly required to appear and then to understand the King's further Pleasure as appears by the most ancient Writs for a Convocation Which shews that the Convocation properly so called is an Occasional Assembly for such purposes as the King shall direct them when they meet And this was the true Foundation upon which the Statute 25 H. 8. was built For it cannot be denied that in Fact there had been Convocations for Ecclesiastical Purposes called without the Kings Writ by Virtue of the Archbishop's Legatine Power which was permitted to be exercised here although it were an Usurpation upon the King 's Right So even in the time of H. 8. although there were a Convocation summoned by the King 's Writ to the Archbishop of Canterbury yet Cardinal Wolsley by Virtue of his Legatine Power superiour to that of the Archbishop removed the Convocation to another place and presided in it Which was as great an Affront to the King 's as well as the Archbishop's Authority as could well be imagined But this was then patiently born Wherefore the Statute is to be understood of Legal and not of Legatine Convocations But when H. 8. was sufficiently provoked by the Court of Rome he resolved to resume the ancient and legal Rights of the Crown how soever disused by modern Usurpations And among these he claimed this of summoning the Convocation and directing the Proceedings therein The Difference of these Writs will best appear by the Instance of the Convocation A. D. 1640. In the Year 1639. about the first of February the Parliament Writ was issued out to the Bishops for calling their Clergy to Parliament and this is only ad consentiendum iis quae tunc ibidem de communi Concilio Regni nostri contigerint ordinari The other Writ for the Convocation to the Archbishops was issued out the twentieth of February and had this Clause ad tractandum consentiendum concludendum super praemissis aliis quae sibi clarius exponentur ex parte meâ The Parliament at that time being dissolved it 's certain the Convocation sitting by Virtue of the Writ to the Bishops must fall with it But a great Question arose Whether the Convocation sitting by the Writ to the Archbishops was dissolved or not And the greatest Judges and Lawyers of that time were of Opinion it was not But those were not times to venture upon such Points when people were disposed to find Fault as they did to purpose when the next Parliament met who made use of the Sitting of this Convocation and the Canons then pass'd as one of the popular Themes to declaim upon against the Bishops and to inflame the Nation against the whole Order The greatest Objection in Point of Law was That the Commission had a Respect to the Convocation sitting in Parliament-time which began 13 April 1640. and the Commission bore Date April 15. the Parliament was dissolved May 5. and the 12th of May a new Commission was granted which made void that of the fifteenth of April and so what was done by Virtue of that must be done out of Parliament and so not in Convocation according to 25 H. 8. 19. although these Canons were confirmed by the King's Authority the thirtieth of Iune the same Year After the King's Restoration an Act of Parliament passed for Restoring the Bishops Ordinary Jurisdiction wherein a Clause is added That this Act did not confirm those Canons of 1640. but left the Ecclesiastical Laws as they stood 1639. which Act being passed by the King's Assent it voids the former Confirmation of them and so leaves them without Force But the Alteration of our Law by the Act 25 H. 8. c. 19. lay not in this that
are fain to borrow from the old Stock and scarce any thing worth Answering hath been said by them but hath been often said and with more Force by their Masters And the best Philosophers of this Age have given up the Cause of Atheism as indefensible so that the Being of God and Providence seems to be established by a General Consent and if any secretly be of another Mind they think it not for their Reputation to own it The main Pretence now is against Revealed Religion but without offering to shew how so great and considerable a Part of Mankind as the Christian Church hath been made up of came to be so imposed upon as to a Doctrine which advances Morality to the greatest Height and gives Mankind the most assured Hopes of a Blessed Immortality when nothing like Interest and Design as to this World could be carried on by the First and Greatest Promoters of it But we are told in a late Complaint made abroad by a Friend of our Deists wherein I am particularly concerned That we make Objections for them which are most easie to answer and pass over their most considerable Difficulties Which is a very unjust Charge and cannot be made good but by producing those Considerable Difficulties which we have taken no Notice of For my part I know of none such and we make no Objections for them however we may think it our Duty to lay open the Weakness of them when we are importuned to do it which was my Case in the Treatise I suppose he refers to If they keep their Considerable Difficulties to themselves I know not how we should be able to answer them But it is the common way in a baffled Cause still to pretend that the main Difficulties were not produced But this is not a proper Occasion to insist lonâ—er on these Matters my present Business is to answer the Objection which immediately regards the Clergy and the Summ of it is That our Profession rather hinders than confirms the Belief of Religion because they who plead for what makes for their Interest are always suspected to be swayed more by Interest than by Reason To give a full and clear Answer to this we must consider That however Mankind are apt to be swayed by Interest yet the Truth and Reason of Things do not at all depend upon them for a Thing is not true or false in it self because it makes for or against a Man and the Measures of judging Truth and Falshood are quite of another Nature and so Mens Interests come not into Consideration So that in this Case they are not to examine whose Turn is served whether such a Thing be true or false but whether there be sufficient Evidence to convince an impartial Mind of the Truth of it for let the Reasons be produced by whom they please the Grounds of Conviction are the same If a Man in a Dispute about Surveying a piece of Land which he claimed a Right to should appeal to the Elements of Geometry in his Case would the Evidence be less because he was concerned in the Land But we proceed farther Suppose it be for the Interest of Religion in a Nation for an Order of Men to be set apart on purpose to attend the Services of it and that there should be great Incouragements for their Education and a Maintenance set apart for their Subsistence afterwards that they may not live in Dependance on the Humours and uncertain Fancies of the People how can such a Constitution take off from the Credibility of that Religion which they are to support Was it any lessening to the Authority of the Law of Moses that the Tribe of Levi was so plentifully provided for by God's own Appointment They were to teach the Law to the People in the Places where they were dispersed among the several Tribes And suppose it had been then said Why should we believe what you say when you live by it You have Cities and Lands and Tithes and Oblations and Dignities among you no wonder you set up this Law as Divine and Holy but we get nothing by it but part with a Share of our Profits to maintain you What then Was the Law therefore false and Moses an Impostor These are hard Consequences but they naturally follow from such a Supposition And if such an Inference were not reasonable then neither will it appear to be so now But we do not pretend that the Parochial Settlement of our Clergy is by such a Divine Law as the Levitical Priesthood was but this we do insist upon That the Christian Religion being owned and established in the Nation there was a necessary Reason from the Nature of it and the Obligation to Preserve and Support it that there should be an Order of Men set apart for that End that they should instruct the People in it and perform the several Offices belonging to it and that a sufficient Maintenance be allowed them by the Law of the Land to support them in doing their Duties And I appeal to any Men of Sense or of common Vnderstanding whether on Supposition that our Religion is true these be not very just and reasonable Things How then can that make a Religion suspected to be false which are very reasonable supposing it to be true If it be true as most certainly it is are not they bound to maintain it to be true And can it be the less so because their Subsistence depends upon it Therefore all the Impertinent Talk of our Profession being a Trade can signifie nothing to any Men that understand the Difference between Scarron and Euclid or the way of Burlesquing and of Demonstration There is still one common Prejudice to be removed and that is That too many of those who preach up our Religion as true do not live as if they believed it to be so We are very sorry there should be any Occasion given for such a Reproach as this and we hope there are not so many Instances of it as some would have it believed Woe be to those by whom such Offences come But supposing the Instances true is there any Religion in the World considering the Follies and Infirmities of Mankind which can secure all the Professors of it from acting against the Rules of it But if such Instances are sufficiently proved there ought to be the greater Severity used in such Cases because Religion it self as well as the Honour of our Church suffers so much by them But it will still be said That these Persons are secret Infidels and believe nothing of what they profess This is another Point how far bad Lives are consistent with sound Opinions Some that think that Men act consistently will not allow that Bad Men can be any other than meer Infidels but others who consider the Prevalency of Mens Lusts and Passions over their Reasons are apt to think that they may retain their good Opinions even when they act contrary to them But then
scandalous to the Church can we believe that Titus was not as well bound to correct them afterwards as to examine them before And what was this Power of Ordination and Iurisdiction but the very same which the Bishops have exercised ever since the Apostles Times But they who go about to Unbishop Timothy and Titus may as well Unscripture the Epistles that were written to them and make them only some particular and occasional Writings as they make Timothy and Titus to have been only some particular and occasional Officers But the Christian Church preserving these Epistles as of constant and perpetual use did thereby suppose the same kind of Office to continue for the sake whereof those excellent Epistles were written And we have no greater Assurance that these Epistles were written by St. Paul than we have that there were Bishops to succeed the Apostles in the Care and Government of Churches Having said thus much to clear the Authority we act by I now proceed to consider the Rules by which we are to govern our selves Every Bishop of this Church in the time of his Consecration makes a solemn Profession among other things That he will not only maintain and set forward as much as lies in him quietness love and peace among all Men but that he will correct and punish such as be unquiet disobedient and criminous within his Diocese according to such Authority as he hath by God's Word and to him shall be committed by the Ordinance of this Realm So that we have two Rules to proceed by viz. The Word of God and the Ecclesiastical Law of this Realm 1 By the Word of God and that requires from us Diligence and Care and Faithfulness and Impartiality remembring the Account we must give that we may do it with Ioy and not with Grief And we are not meerly required to correct and punish but to warn and instruct and exhort the Persons under our Care to do those things which tend most to the Honour of our holy Religion and the Church whereof we are Members And for these Ends there are some things I shall more particularly recommend to you 1. That you would often consider the Solemn Charge that was given you and the Profession you made of your Resolution to do your Duty at your Ordination I find by the Provincial Constitution of this Church that the Bishops were to have their solemn Profession read over to them twice in the year to put them in mind of their Duty And in the Legatine Constitutions of Otho 22 H 3. the same Constitution is renewed not meerly by a Legatine Power but by Consent of the Archbishops and Bishops of both Provinces wherein i◠is declared That Bishops ought to visi◠their Diocesses at fit times Correcting and Reforming what was amiss and sowing the Word of Life in the Lords Field and to put them the more in mind of it they were twice in the year to have their solemn Profession read to them It seems then that Profession contained these things in it or else the reading that could not sti◠them up to do these things What the Profession was which Presbyters then made at their Ordination we have not so clear an Account but in the same Council at Oxford 8 H. 3. i◠is strictly enjoined That all Rector◠and Vicars should instruct the People committed to their Charge and Fee◠them Pabulo Verbi Dei with the Food of God's Word and it is introduced with that Expression that they might excite the Parochial Clergy to be more diligent in what was most proper for those times And if they do it not they are there called Canes muti and Lyndwood bestows many other hard Terms upon them which I shall not mention but he saith afterward those who do it not are but like Idols which bear the similitude of a Man but do not the Offices proper to Men. Nay he goes so far as to say That the Spiritual Food of God's Word is as necessary to the Health of the Soul as Corporal Food is to the Health of the Body Which Words are taken out of a Preface to a Canon in the Decretals de Officio Iud. Ordinarii inter caetera But they serve very well to shew how much even in the dark times of Popery they were then convinced of the Necessity and Usefulness of Preaching These Constitutions were slighted so much that in 9 Edw. 1. the Office of Preaching was sunk so low that in a Provincial Constitution at that time great Complaint is made of the Ignorance and Stupidity of the Parochial Clergy that they rather made the People worse than better But at that time the Preaching Friars had got that Work into their Hands by particular Priviledges where it is well observed That they did not go to Places which most needed their help but to Cities and Corporations where they found most Incouragement But what Remedy was found by this Provincial Council Truly every Parochial Priest four times a year was bound to read an Explication of the Creed Ten Commandments the Two Precepts of Charity the Seven Works of Mercy the Seven deadly Sins the Seven principal Vertues and the Seven Sacraments This was renewed in the Province of York which had distinct Provincial Constitutions in the time of Edw. 4. And here was all they were bound to by these Constitutions But when Wickliff and his Followers had awakened the People so far that there was no satisfying them without Preaching then a new Provincial Constitution was made under Arundel Archbishop of Canterbury and the former Constitution was restrained to Parochial Priests who officiated as Curates but several others were Authorized to Preach as 1. The Mendicant Friars were said to be Authorized Iure communi or rather Privilegio speciali but therefore Lyndwood saith it is said to be Iure communi because that Privilege is recorded in the Text of the Canon Law these were not only allowed to preach in their own Churches but in Plateis publicis saith Lyndwood out of the Canon Law wherein those words were expressed and at any hour unless it were the time of preaching in other Churches but other Orders as Augustinians and Carmelites had no such general License Those preaching Friars were a sort of Licensed Preachers at that time who had no Cures of Souls but they were then accounted a kind of Pastors For Io. de Athon distinguisheth two sorts of Pastors Those who had Ecclesiastical Offices and those who had none but were such only Verbo Exemplo but they gave very great disturbance to the Clergy as the Pope himself confesses in the Canon Law 2. Legal Incumbents authorized to preach in their own Parishes Iure scripto All Persons who had Cures of Souls and Legal Titles were said to be missi à Iure ad locum populum curae suae and therefore might preach to their own People without a special
will be the diligent Labours and the exemplary Lives of the Clergy in it But if Men will not regard their own or the Churches Interest in this matter if they will break their Rules in such a manner as to dishonour God and the Church and themselves by it then you are to consider the next thing I was to speak to which is II. What Authority is given to us for the punishing Offenders in our Diocesses by the Ecclesiastical Law of this Realm For this we are to consider That our Authority herein is not derived from any modern Canons or Constitutions of this Church altho' due Regard ought to be shewed to them but from the ancient Common Law Ecclesiastical in this Realm which still continues in force For as there is a Common Law with respect to Civil Rights which depends not on the Feudal Constitutions altho' in many things it be the same with them but upon ancient Practice and general Consent of the People from Age to Age. So I say there is a Common Law Ecclesiastical which altho' in many things it may be the same with the Canon Law which is read in the Books yet it hath not its force from any Papal or Legatine Constitutions but from the Acceptance and Practice of it in our Church I could easily shew if the time would permit that Papal and Legatine Constitutions were not received here altho' directed hither that some Provincial Constitutions never obtained the Force of Ecclesiastical Laws but my business is to shew what did obtain and continue still to have the Force of such Ecclesiastical Laws among us By the Statute of 25 H. 8. c. 19. it is declared That such Canons Constitutions Ordinances and Synodals Provincial being already made which be not contrariant nor repugnant to the Laws Statutes and Customs of this Realm nor to the Damage or Hurt to the King's Prerogative Royal shall now still be used and executed as they were afore the making of this Act c. It 's true a Review was appointed but such Difficulties were found in it as to the shaking the Foundations of the Ecclesiastical Law here that nothing was ever legally established in it and therefore this Law is still in force In the Statute 25 H. 8. c. 21. it is said That this Realm Recognizing no Superiour under God but the King hath been and is free from Subjection to any Man's Laws but only to such as have been Devised Made and Observed within this Realm for the Wealth of the same or to such other as by the Sufferance of the King and his Progenitors the People of this Realm have taken at their free Liberty by their own Consent to be used amongst them and have bound themselves by long Use and Custom to Observance of the same not as to the Observance of the Laws of any Foreign Prince Potentate or Prelate but as to the Customs and ancient Laws of this Realm originally established as Laws of the same by the said Sufferance Consent Custom and none otherwise All that I have now to do is to shew what Authority the Bishops had over the Clergy by the Ancient Ecclesiastical Law of this Realm and what Censuâ—es they were liable to for some particular Offences I. By the Ecclesiastical Law the Bishop is Iudge of the Fitness of any Clerk presented to a Benefice This is confessed by the Lord Coke in these Words And the Examination of the Ability and Sufficiency of the Person presented belongs to the Bishop who is the Ecclesiastical Iudge and in the Examination he is a Iudge and not a Minister and may and ought to refuse the Person presented if he be not Persona idonea But this is plain to have been the Ancient Ecclesiastical Law of this Realm by the Articul Cleri in Edw. II. time De Idoneitate Personae praesentatae ad Beneficium Ecclesiasticum pertinet Examinatio ad Iudicem Ecclesiasticum ita est hactenus usitatum fiat in futurum By the Provincial Constitutions at Oxford in the time of Hen. III. the Bishop is required to admit the Clerk who is presented without Opposition within two Months dum tamen idoneus sit if he thinks him fit So much time is allowed propter Examinationem saith Lyndwood even when there is no Dispute about Right of Patronage The main thing he is to be examined upon is his Ability to discharge his Pastoral Duty as Coke calls it or as Lyndwood saith whether he be commendandus Scientia Moribus As to the former the Bishop may judge himself but as to the latter he must take the Testimonials of others and I heartily wish the Clergy would be more careful in giving them by looking on it as a Matter of Conscience and not meerly of Civility for otherwise it will be impossible to avoid the pestering the Church with scandalous and ignorant Wretches If the Bishop refuses to admit within the time which by the Modern Canons is limited to Twenty eight Days after the Presentation delivered he is liable to a Duplex Querela in the Ecclesiastical Courts and a Quare impedit at Common Law and then he must certifie the Reasons of his Refusal In Specot's Case it is said That in 15 Hen. 7. 7 8. all the Iudges agreed that the Bishop is Iudge in the Examination and therefore the Law giveth Faith and Credit to his Iudgment But because great Inconveniencies might otherwise happen the general Allegation is not sufficient but he must certifie specially and directly and the general Rule is and it was so resolved by the Judges That all such as are sufficient Causes of Deprivation of an Incumbent are sufficient Causes to refuse a Presentee But by the Canon Law more are allowed In the Constitutions of Othobon the Bishop is required particularly to enquire into the Life and Conversation of him that is presented and afterwards that if a Bishop admits another who is guilty of the same Fault for which he rejected the former his Institution is declared null and void By the Canon Law if a Bishop maliciously refuses to admit a fit Person he is bound to provide another Benefice for him but our Ecclesiastical Law much better puts him upon the Proof of the Cause of his Refusal But if the Bishop doth not examine him the Canonists say it is a Proof sufficient that he did it malitiosé If a Bishop once rejects a Man for Insufficiency he cannot afterwards accept or admit of him as was adjudged in the Bishop of Hereford's Case If a Man brings a Presentation to a Benefice the Bishop is not barely to examine him as to Life and Abilities but he must be satisfied that he is in Orders How can he be satisfied unless the other produce them How can he produce them when it may be they are lost What is to be done in this Case The Canon is express That no Bishop shall institute any to a Benefice
for that of H. 8. was not till five years after that Statute But after that Valuation it was to be judged according to it and not according to the real Value as the Judges declared 12 Car. I. in the Case of Drake and Hill Now here was a regard had to the Poorness of Benefices so far that the Statute doth not deprive the Incumbent upon taking a second Living if the former be under 8 l. The Question that arises from hence is Whether such Persons are allowed to enjoy such Pluralities by Law or only left to the Ecclesiastical Law as it was before It is certain that such are not liable to the Penalty of this Law but before any Person might be deprived by the Ecclesiastical Law for taking a second Benefice without Dispensation of what Value soever the former were now here comes a Statute which enacts That all who take a second Benefice having one of 8 l. without Qualification shall lose his legal Title to the first but what if it be under Shall he lose it or not Not by this Law But suppose the Ecclesiastical Law before makes him liable to Deprivation doth the Statute alter the Law without any Words to that purpose The Bishop had a Power before to deprive where is it taken away The Patron had a Right to present upon such Deprivation how comes he to lose it And I take it for granted That no antecedent Rights are taken away by Implications but there must be express Clauses to that purpose So that I conclude the ancient Ecclesiastical Law to be still in Force where it is not taken away by Statute And thus my Brethren I have laid before you the Authority and the Rules we are to act by I have endeavoured to recommend to you the most useful Parts of your Duty and I hope you will not give me occasion to shew what Power we have by the Ecclesiastical Law of this Realm to proceed against Offenders Nothing will be more uneasie to me than to be forced to make use of any Severity against you And my Hearts desire is That we may all sincerely and faithfully discharge the Duties of our several Places that the blessing of God may be upon us all so that we may save our selves and those committed to our Charge OF THE NATURE OF THE TRUST Committed to the Parochial Clergy At a Visitation at Worcester October 21 st 1696. My Brethren I Have formerly on the like Occasion discoursed to you of the General Duties of your Function and the Obligation you are under to perform them and therefore I shall now confine my Discourse to these Two Things I. To consider the particular Nature of the Trust committed to you II. The Obligation you are under to your Parochial Cures I. The first is necessary to be spoken to for while Persons have only so confused and cloudy Apprehensions concerning it they can neither be satisfied in the Nature of their Duties nor in their Performance of them And there is Danger as well in setting them so high as to make them Impracticable as in sinking them so low as to make not only themselves but their Profession Contemptible For the World let us say what we will will always esteem Men not meerly for a Name and Profession but for the Work and Service which they do There is no doubt a Reverence and Respect due to a Sacred Function on its own Account but the highest Profession can never maintain its Character among the rest of Mankind unless they who are of it do promote the General Good by acting suitably to it And the greater the Character is which any bear the higher will the Expectations of others be concerning them and if they fail in the greatest and most useful Duties of their Function it will be impossible to keep up the Regard which ought to be shew'd unto it We may complain as long as we please of the Unreasonableness of the Contempt of the Clergy in our Days which is too general and too far spread but the most effectual Means to prevent or remove it is for the Clergy to apply themselves to the most necessary Duties with Respect to the Charge and Trust committed to them But here arises a considerable Difficulty which deserves to be cleared viz. concerning the just Measures of that Diligence which is required For there are some who will never be satisfied that the Clergy do enough let them do what they can and it is to no purpose to think to satisfie them who are resolved not to be satisfied But on the other side some care not how little they do and the less the better they are pleased with them and others again have raised their Duties so high that scarce any Man can satisfie himself that he hath done his Duty It is a matter therefore of the highest Consequence to us to understand What Rule and Measure is to be observed so as we may neither wilfully neglect our Duty nor despair of doing it Here we are to consider Two Things 1. How far the Scripture hath determined it 2. What Influence the Constitution of our Church is to have upon us concerning it 1. The Scripture doth speak something relating to it both in the Old and New Testament In the Old Testament we have the Duties enjoyned to the Levitical Priesthood and the extraordinary Commissions given to the Prophets As to the Levitical Priesthood we can only draw some general Instructions which may be of use altho' that Priesthood hath been long since at an end Christ being our High-Priest after another Order viz. of Melchisedeck and our Duty now is to observe his Laws and to offer that Reasonable Service which he requires But even from the Levitical Priesthood we may observe these things 1. That although the main of their Duty of Attendance respected the Temple and Sacrifices yet at other times they were bound to instruct the People in the Law For so Moses leaves it as a special Charge to the Tribe of Levi to teach Iacob his Iudgments and Israel his Law And to incourage them to do it they had a liberal Maintenance far above the Proportion of the other Tribes For by Computation it will be found that they were not much above the Sixtieth part of the People for when the other Tribes were numbred from Twenty years old they made six hundred thousand and three thousand and five hundred and fifty But the Children of Levi were reckoned by themselves from a Month old and they made but Two and twenty thousand so that if the Males of the other Tribes had been reckoned as they were it is agreed by Learned Men who had no Fondness for the Clergy that they did not make above a fiftieth or sixtieth part and yet they had near a fifth of the Profits besides accidental Perquisites as to Sacrifices and Ransoms of the First-born Thus say they God was pleased to enrich that Tribe which was devoted
established Methods of Proceeding agreeable to natural Justice and the Laws of the Land nothing would be more grievous and intolerable than the common Exercise of a Parochial Discipline For 1. It cannot be presumed that there will be competent Judges For every one who hath a Faculty of Preaching hath not a Faculty of Judging in such Cases And where Discretion and a Judgment of Circumstances is wanting an honest Mind will not secure Men from doing Injury and exposing their Judicature to Contempt 2. They have no fixed and established Rules of proceeding as there are in the Ecclesiastical Courts which have been continued down from time to time and allowed by the Laws of the Land And what miserable Disorder must follow an Arbitrary Method when Humour and Will and Passion may over-rule Justice and Equity and Conscience 3. They are not under the Check of the Law as the Ecclesiastical Courts are For if they exceed their Bounds either as to the Nature of the Cause or the Manner of proceeding they are liable to Prohibitions from the King's Courts of Justice but the Law can take no notice of Parochial or Congregational Judicatures and so Men may suffer without Remedy 4. They have no way to judge of Legal Evidence which is very material when a person is accused It is one of the nicest Points in all criminal Proceedings to determine what is good and sufficient Evidence For several things are to be weighed before either Witnesses or Testimonies can be allowed As to Witnesses it is required that they be persons of Reputation and free from Infamy of Law and Fact that they be disinterested and so not liable to the just Suspicion of Partiality that they be Men of Discretion and sane Memory and all reasonable Exceptions are to be allowed against them As to Testimonies they must be by our Law upon Oath and what Authority have such Persons to give an Oath and why shall a Man be liable to suffer by a Testimony without one when the Law requires it They must be deliberate and not given in Passion consistent as to Time Place and other Circumstances They must be certain and positive and not upon Hear-say or the Believing of other persons They must be free from any just Suspicion of Contrivance and Conspiracy or any sort of Corruption or Partiality And now is every parochial Minister or select Congregation fit to judge of these Matters whereon the Reputation and consequently the Interest of every person may be so deeply concerned 5. They have no way to prevent a percipitate and hasty Sentence Suppose a Man be accused by one of Interest and Passion who possesses others with the same Opinion before-hand and the Judges are all prejudiced before the Matter comes to be heard and in popular Assemblies some few men sway the rest what a Case is a person accused unjustly in He hath no Liberty for others that are not of the Congregation altho' more disinterested either to come in to judge or to plead for him He can have no Advocate to defend him or to shew the Weakness or Inconsistency of the Evidence against him In all Ecclesiastical Courts they may sometimes proceed summarily but even then the Fundamental Rules of the Court must be observed as to Proofs and Witnesses or else the Sentence is void but here the Sentence will take place altho' there hath not been the least Colour of Justice in the whole Proceedings 6. Here is no settled Course of Appeals in Case of a wrong Sentence But where Men are liable to Mistake and Passion a Right of Appeal is one of the Fundamental parts of Justice And therefore Independent and Arbitrary Courts of Judicature as all Congregational Churches are are inconsistent with the common Rights of Mankind and that due Subordination which ought to be in all Societies in order to the preserving Order and Justice among Men. But suppose parochial Discipline so settled among us as to allow a Liberty of Appeal how would the Trouble and Vexation and Expence be increased by going from the parochial Sentence to the Bishop's Court and from thence still further So that if there be some Inconveniencies in point of Distance for persons to be summoned to appear at first so far from Home yet there is some Compensation by the less Trouble and Charges if due Care be taken to prevent Delays and unnecessary Expences which ought to be done And those who do make the greatest Clamour against our Courts are rather willing they should continue such as they may have Cause to complain of than to do their Endeavours to reform them Thus I have endeavoured to shew the just Bounds and Limits of parochial Cures II. I now come to consider the just Measure of that Diligence which is required under those Limits For our Church requires Faithful Diligence in Preaching and Sacraments and Prayers and Reading the Holy Scriptures If then we can understand what this Faithful Diligence implies we may come to satisfie our selves whether we do our Duty or not 1. Faithful Diligence implies serious Application of our Minds to the main End and Design of our Holy Function Which is to do good to the Souls of Men especially to those committed to your Charge And an idle careless santering Life or one too busie and distracted with the Cares of the World are not consistent with it I do not go about to take you off from necessary Business and reasonable Allowances as to Health and Studies but that the doing good to your peoples Souls ought to be the principal and chief Design of your Thoughts Studies and Endeavours And if the people be satisfied that this is really your Design among them you will find that your Doctrine will be easier received your Persons esteemed and your Labours valued It is possible you may meet with a froward peevish self-willed people and it is hard when a Man is only set to water and mend a Hedge made up of Briars and Thorns the more pains he takes the more Scratches he may meet with but if it be your Lot be not discouraged from doing your Duty Remember what sort of people the Prophets were sent to and what Usage they had from them what Hardships and Reproaches Christ and his Apostles underwent from a very unkind World but a patient Continuance in well-doing gave them inward Satisfaction in the midst of all and did by degrees gain the Christian Doctrine Access to the Hearts of those who most opposed it 2. It implies an honest and conscientious Care of discharging the known and common Duties of your Function as Preaching Praying Catechizing Administring Sacraments Visiting the Sick c. A diligent Person is one who neglects no good Opportunities of doing his Business but watches for them and studies to improve them to the best Advantage Can those satisfie themselves that they use Faithful Diligence who shamefully neglect their Cures and care not how seldom they come at them nor how they are supplied
Saxon times there were both here There were Ecclesiastical Law which related to Judicial Cases wherein a publick Penance was injoyned in order to the Churches Satisfaction But there were many Cases which were not publick and yet great Care was to be used as to the Direction of Penitents as appears by the Penitentials of Theodore and Bede in the Saxon times Whereby we learn that a Difference was to be observed as to the Nature of Offences and the Circumstances of Persons and Actions and the Measure of Contrition and the particular Method is set down in the penitential Books which was in very material Circumstances different from the Methods used in the Church of Rome But it is a thing necessary for every parochial Minister to be able to settle doubting Consciences and to put them into the best Methods of avoiding Sin for the future without which the Absolution of the Priest signifies nothing For where God doth not absolve the Church cannot 5. Giving a good Example to the People committed to your Charge This is often mentioned in the Saxon Canons Council at Cloveshoo c. 8. Canons of Egbert 14 15 18 19 33. in the Laws of Alfred c. 3. of Edward c. 3. Constit. of Odo c. 4 5. of Edgar 57 58 59 60 61 64. of Canutus c. 26. And in the Conclusion of one Collection of his Laws are these Words Happy is that Shepherd who by his good Life and Doctrine leads his Flock to Eternal and Heavenly Ioys and happy is that Flock that follows such a Shepherd who hath rescued them out of the Devil's Hands and put them into God's 6. Lastly the Performance of all these Duties supposes a constant Residence among your People without which it is impossible to discharge them in such a manner as to give them and your selves full Satisfaction This I am sensible is a very nice and tender Point and the Difficulties of it do arise from these things On one side it is said 1. That there is an Allowance by the Law given to several Persons to hold more Benefices than one and since the Distribution of Benefices is not by the Law of God but by the Law of the Land what Fault is there in making use of the Privileges which the Law gives But there cannot be constant Residence in more Places than one 2. That the general Service of the Church is more to be preferred than taking Care of a particular Parish because the necessary Duties of a Parish may be supplied by persons approved by the Bishop and a single Living seldom affords a sufficient Competency for persons to be capable of publick Service 3. That the way of Subsistence for the Clergy is now much altered from what it was when Celibacy was enjoyned For a Competency was always supposed where Residence was strictly required and what was a Competency to a single person is not so to a Family 4. That the Church hath a power of Relaxing the Severity of Ancient Canons from the different Circumstances of things and when the general Good of the Church may be more promoted therein as in the Removal of Clergymen from one Diocess to another and the Translation of Bishops 5. That the Case is now very different as to Dispensations from what it was in the Church of Rome as to the Number of Benefices and the manner of obtaining them that a great Restraint is laid by our Laws upon Pluralities and our own Metropolitan is the Judge when they are fit to be granted But on the other side it is objected 1. That in the first Constitution of parochial Churches every Incumbent was bound to a strict Residence so in the Canons of Egbert Can. 25. Presbyters are said to be settled in those Churches which had a House and Glebe belonging to them and many Canons were then expresly made That no Person should have more than one Church and it is said in the Capitulars that this had been several times decreed And so it is in Herardus his Collection of Canons Can. 49. in Isaac Lingonensis Tit. 1. c. 24. in Chrodegangus c. 67. in Ivo Carnotensis part 3. c. 51. in Regino l. 1. c. 254. The like we find in the Spanish Churches Concil Tolet. 16. c. 5. and thence in the Canonâ—Law C. 10. Q. 3. c. 3. and in the Greek Churches Concil 7. Can. 15. C. 21. Q. 1. c. 1. And as soon as the Abuse crept in in these Western Churches it was complained of and endeavoured to be redressed Concil Paris 6. c. 49. Concil Aquisgran 2. part 2. c. 5. Concil Metens c. 3. That afterwards not meerly the Mendicant Friars complained of them as some have suggested but some of the greatest Bishops have been zealous against them as Gulielmus Parisiensis Peraldus Archbishop of Lions Iacobus de Vitriaco Bishop of Acon Robert de Câ—orton Cardinal Guiard Bishop of Cambray and Gregory IX declared That he could only dispense with the Penalty of the Law After a solemn Disputation at Paris it was determined against Pluralities if one Benefice be sufficient and all the Divines joyned with the Bishop therein except two so that it seemed to be the current Opinion of the Learned and Pious Men of that Time Aquinas saith It is a doubtful Point but Cajetan is positive against them So that all the Zeal against Pluralities is not to be imputed to the Piques of the Friars against the Secular Clergy although there is no Question but they were so much the more earnest in it but in the Council of Trent the Bishops of Spain were the most zealous as to the Point of Residence and the Friars against it as appears by Catharinus and others 2. Setting aside all Authorities the Argument in Point of Conscience seems the strongest against Non-residence because persons have voluntarily undertaken the Cure of Souls within such Limits and although the Bounds be fixed by Human Authority yet since he hath undertaken such a Charge personally knowing those Bounds it lies upon his Conscience to discharge the Duties incumbent upon him which cannot be done without constant Residence as the Magistrates are bound in Conscience to do their Duty although the Bounds are settled by Human Laws And so in the case of Property Human Laws bind so that it is a Sin to invade what is settled by them And if it be left to a Man's Conscience whether a Man answers his Obligation more by personal Attendance or by a Curate whether the Honour of Religion and the Good of Souls be more promoted and the Peace of his own Mind secured by one or the other it is no hard matter to judge on which side it must go It is impossible to defend all the Arguments used in the old Canons against Pluralities as that Polygamy is unlawful under the Gospel So that as a Bishop hath but one City and a Man but one Wife so a Presbyter ought to have but one
publick Service the Severity of the Ancient Canons is with Reason abated and a person is supposed to undertake the Cure with those Measures which the Law and Canons allow But every Man who regards the doing his Duty out of Conscience will consider how much lies upon himself and that the original Intention of the Church and Laws was That no Man should undertake more than he was willing and ready to discharge as far as one Man's Abilities could go For in great Cities one great Parish requires more than several Churches in the Countrey and in such Cases an equitable Construction must be put upon such Canons which require personal performance of these Duties OF THE MAINTENANCE OF THE PAROCHIAL CLERGY BY LAW THE Subject I intend now to consider is the Incouragement which the Parochial Clergy have by Law for the doing their Duties Which are the Manse the Oblations and the Tithes I. The Manse or House and Glebe In the Canons of Egbert it is said Can. 25. That an entire Manse ought to belong to every Church without any other than Ecclesiastical Service By a Manse Mr. Selden saith in the old Charters the same is meant as a Casat or Hyde of Land Bignonius and Sirmondus say So much Glebe as was an Imployment for an Husbandman and two Servants Spelman saith It takes in the House too Lyndwood saith As much Land as would Imploy a Yoke of Oxen and so the Gloss on the Canon Law But in another place the Gloss saith The Manse is the original Endowment of the Church without which it cannot be supplied and without which it could not be consecrated For the Endowment was first to be produced before the Building Collatâ primitùs donatione solemni are the Words of the Canon Law And the same appears by Concil Valent. 3. c. 9. Concil Bracar 2. c. 5. Vit. Udalrici c. 7. Regino l. 1. c. 23 24. which is there explained to be a substantial Sustenance for those who were to attend the Service of that Church And in the Acts of Consecration of a parochial Church in Baluzius the Bishop in the first place declares himself satisfied with the Endowment unde dignè domus Dei sustentaretur And upon this the Original Right of Patronage was founded not upon the Soil which gave no Title where there was not a Church built and endowed with a competent Subsistence So that all Advowsons or Rights of Presentation in private Patrons were at first Appendant to Manors and not in Gross because the Right came from the Endowment out of the Manor And the Name of Patron in the Sense of the Feudal Law is the same with Lord of the Fee and so Beneficium is a Feudal Term and till the Feudal Law prevailed the Name of Patrom is rarely used in this Sense And when it came to be used the Patrons in France would have brought those who had their Benefices to a kind of Feudal Service and to have received Investiture from them This Mr. Selden drives at as though the Patrons had the Right of Investiture belonging to them because some such Practice is often complained of in the French Canons and as often condemned not meerly by Ecclesiastical Canons but by as good Laws as any were then made It cannot be denied that bad Practices are the Occasion of making good Laws but doth it follow that those Practices which were against Law were the Law of that time Yet this is Mr. Selden's way of Arguing he grants That there were Laws made but they were little obeyed Must we therefore conclude those illegal Practices to have been the standing Law and the Laws themselves to be illegal There were two things aimed at by those Patrons 1. To keep the Clergy in a sole Dependance on themselves witout Regard to the Bishop's Authority 2. To make such Bargains with them as they thought fit Both these were thought necessary to be redressed by Laws since the Canons were slighted by them And if the Practice be good against Law in one case why not in the other also Why is not Simony justified as well as the Patron 's absolute Power over the Incumbents but the Laws were severe against both For in the time of Lud. Pius A. D. 816. there was a solemn Assembly of the Estates of the Empire where several Ecclesiastical Laws were passed and among the rest these two 1. That no Presbyters should be put in or put out of Churches without the Authority and Consent of the Bishops and that the Bishops should not refuse those who were presented if they were probabilis Vitae Doctrinae i.e. such as the Bishops could not object against either for Life or Learning 2. That every Church should have an entire Manse belonging to it free from any Feudal Service but if they had other Estates of their own for them they were to answer to the Lords of the Manor as others did And from hence this came into the Collections of Ivo Regino Burchardus and Gratian and passed for a Law generally received As to the former a new Sanction was added to it in another Assembly at Worms A. D. 829. c. 1. and repeated in the Capitulars l. 5. c. 98. Addit 4. c. 95. and the like as to the latter l. 5. c. 100. Capit. A. 829. c. 4. But it seems there were some still continued obstinate in their former Practices and therefore these Laws were reinforced in another Assembly A. D. 869. in the time of Carolus Calvus who mentions the Laws of his Father and Grandfather to the same purpose c. 9. and there takes notice of the Contrivances made use of to defeat the Intention of those Laws and the bottom of all is there said to be abominable Simony Which shews what it was which these Patrons aimed at by claiming Investiture without the Bishop And it was then judged necessary that the Bishop's Consent was required to prevent this Mischief But still some Patrons required Feudal Service for the Glebe they had given to the Church but the Law commands them to restore it free from such Service Capit l. 5. c. 100. Addit l. 4. c. 98 163. And after much struggling Hinomarus who lived at that time saith That these Laws were observed The Patron 's Right by Virtue of the Endowment was not disputed but an Arbitrary Power as to the Incumbents was utterly denied them and they were put under the Bishop's Care who was to receive Complaints against them and to proceed according to the Churches Canons But I am apt to think that all this stir in France did not arise from the pretence of Original Donation and Endowment of Churches but from the Infeodation of Church Lands and Titles by Charles Martel as an old MS. in Filesacus saith and others in France whose Custom it was to give them in Recompence to their Souldiers who then looked on them as their
understood to be left to the natural Course of things and so the Appropriation sinks III. The third legal Exemption is from Prescription and ancient Compositions This seems a difficult Case because something less than the real Value is to be taken and the Rule in Lyndwood is non valet consuetudo ut minus quam Decima solvatur but in all such Prescriptions and Compositions there is less than the true Value To clear this matter I shall shew 1. That by our Ecclesiastical Law all Compositions are not condemned 2. That by the Common Law all Prescriptions are not allowed And if these things be made out it will follow that where the Compositions and Prescriptions are legal the Clergy may with good Conscience submit to them as they do in other matters of Law 1. As to the Ecclesiastical Law Lyndwood himself makes these Limitations 1. In case of personal Tithes He grants that as to them a Man may with a good Conscience observe the Custom although it be under the real Value Now these are founded on the same Laws that Praedial and Mixt Tithes are and by the Stat. 2 E. 6. c. 13. they are reduced to a customary Payment before Easter as it had been used Forty Years before But besides these there were Offerings to be compounded for and the Easter Duties are a kind of Composition for personal Tithes 2. In small Tithes the customary Payment is allowed The Payment in Lyndwood's time was 6 ob for Six Lambs because it was the Tenth of the Value at that time of a Lamb of a year old the Seventh Lamb was to be paid in kind for which 3 ob were to be paid back because three Lambs were wanting of the Number Ten. But can any one believe that 5 d. was the true Value then of a Lamb of a year old And Lyndwood doth not suppose it be the exact Value but it was such as the Provincial Constitution determined and he allows Compositions super minutis Decimis 3. Compositions were allowed with the Bishop's Consent with Lay-persons for their Tithes As to what is past there was no doubt but for the future he saith it doth not hold sine Iudicis auctoritate which implies that by his Consent it may And if so then a Modus decimandi so qualified is allowed by the Ecclesiastical Law Such Compositions as these were entred into the Bishop's Registries and if they were then made upon a valuable Consideration at that time I doubt the Force of Custom will get the better of the Reason that may be taken from the great Difference of Valuation of things 2. Let us now consider what Prescriptions and Compositions are not allowable at Common Law 1. No Prescription de non decimando is allowed among Lay-persons because none but spiritual Persons are by the Law capable of Tithes in their own Right A Lay-man saith Mr. Selden cannot be discharged of all Payment by meer Prescription unless he begin the Prescription in a Spiritual Person And to the same purpose our great Lawyers speak But in the famous Case of Pigot and Hern a Distinction was found out which may prove of dangerous Consequence viz. That although the Lord of a Manor cannot prescribe for Tithes because he is not capable of them by our Law yet he may prescribe for a tenth Shock as a Profit apprendre as a thing appurtenant to his Manor and so he may have decimam garbam but not Decimas garbarum Upon which Resolution it is said in the Bishop of Winchester's Case That the Lord of a Manor may have Tithes as appurtenant to his Manor For which there is no Foundation in our Ancient Laws or Customs that I can find and is inconsistent with what is before acknowledged that none but Spiritual persons are capable of Tithes But in plain Truth this Case is not truly represented and my Lord Chief Justice Hobart a person of great Judgment and Learning in the Law hath told the World That this famous Reporter hath sometimes given his own Opinion and that sudden instead of the Resolution of the Court which must take much off from the Authority of his Reports especially when the Case is differently reported by others as it falls out in this Case For Serjeant Moor who was of Councel in that Case saith That the Defendant pleaded a Modus decimandi in Satisfaction for Tithes which was 6 s. per Annum But as to the other point Whether such an Ancient Modus being made with the Lord of a Manor binds the Copy-holders it is out of our way but surely there ought to be good Proof that the Modus was made before the Copy-holds holds were granted which is not offered but only that it might be so which deserves no other Answer but that it might not be so And it is hard indeed when Judgments are given upon Possibilities And for the Distinction of decima Garba and Decimae Garbarum in a Composition for Tithes is the same thing Mr. Selden as to this Case of Pigot and Hern saith It was an Inheritance of Tithes from immemorial time by Virtue of an Ancient Composition And he would not understand the Judges in any other Sense For no kind of Infeodation of Tithes is allowable here he saith so as to create in Lay-men a perpetual Right to them except only by the Statute of Dissolution of Monasteries unless it be derived from some Ancient Grant of Discharge from the Parson Patron and Ordinary with a Consideration of Recompence to the Parson and that either from time immemorial or Ancient Composition And to the same purpose he speaks in another place where he owns that by our Law every Parson had a common Right to the Tithes of all annual Increase Praedial or Mixt within the limits of his Parish and any Title or Discharge must be specially pleaded 2. Where a Prescription is pleaded de Modo decimandi the actual Recompence by Composition must be shewed For as my Lord Coke saith a Modus decimandi is intended as a yearly Sum in way of Satisfaction for the Tithes to the Parson which Rolls calls the Actual Recompence In the Register the Account of the Modus decimandi is thus set down 1. There was a real Composition as Four Acres of Land for some small Tithes 2. There was an Agreement in Writing by the Consent of Ordinary and Patron But my Lord Coke saith the Modus may as well be for a Sum of Money as for Land Suppose no Ancient Composition in Writing can be produced how far doth a Prescription hold 1. It must be immemorial or time out of mind Here a great Point arises fit to be considered Suppose the thing it self hath been within Memory as Improvements by Hops Fruit-trees c. doth not a Composition bind in this Case I answer that we are to distinguish Personal Contracts from Real Compositions In the
Case of Hitchcock and Hitchcock there was a Contract between the Vicar and Parishioners but it was denied to be a real Composition although confirmed by the Ordinary and affirmed not to be binding to the Successors A Composition by a meer verbal Agreement in the Case of Hawles and Bayfield was declared to be neither binding to the Party nor his Successors But in the Case of Tanner and Small it was declared to hold for Years but not for Life My Lord Coke seems to be of Opinion That if it be a Prescription it must be time out of Memory of Man but that a real Composition may be either before or within Memory of Man but then it must be by Parson Patron and Ordinary It is well observed by Sir Simon Degge in his useful Book about these matters that although real Compositions are supposed in Law to be the Foundation of Prescriptions de Modo decimandi where the Patron Ordinary and Parson did consent to them yet that the most of them have grown up by the Negligence and Carelesness of the Clergy themselves which I am afraid is too true And he is of Opinion That no real Composition can be made now to bind the Successor since the Statute 13 Eliz. c. 10. which restrains all binding Grants to One and twenty Years or Three Lives and if so then the Consent of Patron and Ordinary cannot make it good 2. It must be reasonable and therefore it hath been rejected in these Cases 1. If it be a Prescription to pay a certain Tithe without the Parson's View of the Nine Parts because saith Hobart it is against the Law of Partition in the Case of Wilson and the Bishop of Carlisle 2. If there be no Recompence to the Parson as in the Case of Scory and Barber the Prescription was founded on the Parishioners finding Straw for the Body of the Church 3. If it be for paying only what was due in lieu of other Tithes as in the Case of Ingoldsby and Iohnson that they paid their other Tithes in lieu of Tithes of dry Cattel or in Case a Load of Hay be prescribed for in lieu of Tithe-Hay or Ten Sheafs of Corn for the Tithe of all the rest 4. If it be not for something certain and durable For this saith Hobart shews an Original Weakness in the Composition being of a thing certain and durable for that which is not so IV. The last Exemption or Discharge that is pleaded as to the payment of Tithes is Unity of Possession That is where a Monastery had the Right of Tithes by Appropriation and had other Lands which did not pay Tithes because the owners were to receive them these were actually free at the time of Dissolution and the Question is Whether they are legally so by Virtue of the Statute It cannot be denied that Unity of Possession is in it self no legal Discharge but whether by the Words of the Statute the Judges were divided in Opinion But afterwards in the Case of Green and Bosekin the Judges allowed it so it were not a meer Unity of Estate but of Occupation Hobart saith That after it had been long controverted it was received as the common Opinion Coke That where Unity of Possession gives a Discharge the Title must be clear the Non-payment general and the Prescription time out of Memory but if the Appropriation were made in the time of Ed. 4. H. 6. it could not be discharged by Unity nor if it were a late Abby-prescription Thus I have endeavoured to lay this matter before you as briefly and clearly as I could from the best Light I could get that I might give you such Directions that you may neither run into needless and vexatious Suits nor be run down by frivolous Pretences It is your great Advantage that you have the Law of your side if you understand it a right but have a care of being set on by such whose Interest it is to promote Suits and I am sure it is yours to prevent them if it be possible and as much as lies in you The Church's Right is not to suffer by your Negligence and you are not to make the Church to suffer by your Contentions He that loves going to Law seldom fails of having enough of it he suffers in his Purse in his Reputation in his Interest and the Church suffers by his Means Endeavour to gain as much as may be the Love of your People by a kind modest courteous and peaceable Behaviour which is the best way to prevent or to compose Differences If you are forced to sue for your Maintenance let them see that you are forced to it and that you are always willing to put an end to all such Disputes if the Church's Right be secured which you are bound to preserve OF THE OBLIGATION To observe the Ecclesiastical CANONS AND CONSTITUTIONS AT A VISITATION October 29 th 1696. IN speaking clearly and distinctly to this Case there are these two Things to be considered I. By what Authority they do oblige II. In what Way and Manner they oblige I. The first thing to be considered is the Authority by which Ecclesiastical Canons and Constitutions do oblige For if there be not sufficient Authority there cannot be that Obligation on Conscience which supposes a legal Exercise of Power or a just Right to command Our Obedience to the Orders of our Superiours is due by Virtue of that Divine Law which requires us to be subject for Conscience-sake But our Obedience is to be regulated by the Order of Iustice i.e. it ought to be according to Law Therefore it is necessary in the first place to enquire Whether there be among us any such things as Ecclesiastical Laws i.e. such Rules which according to the Constitution of our Government we are bound to observe For we are Members of a Church established by Law and there are legal Duties incumbent on us with respect not only to the Laws of God but of the Realm For although our Office and Authority as Church-men hath a higher Original yet the Limitation of the Exercise of it is within such Bounds as are allowed and fixed by the Law of the Land It is therefore a matter of great Consequence to us to understand how far our Ecclesiastical Constitutions are grounded upon the Law of the Land which cannot be done without searching into the Foundations of our Laws Which lie in three Things 1. Immemorial Custom 2. General Practice and Allowance 3. Authority of Parliament And I shall endeavour to shew how far our Ecclesiastical Constitutions are founded on these 1. Immemorial Custom Our greatest Lawyers allow Ancient Custom to be one of the Foundations of our Laws and my Lord Coke calls it one of the main Triangles of the Laws of England I suppose he means Foundations And another saith That the Common Law of England is
nothing else but the common Custom of the Realm My Lord Chief Justice Hales saith That the common Usage Custom and Practice of the Kingdom is one of the main Constituents of our Law Coke quotes Bracton ' s Authority to prove That Custom obtains among us the Force of a Law where it is received and approved by long Use. And of every Custom he saith there be two Essential Parts Time and Usage Time out of Mind and continual and peaceable Usage without Interruption But in Case of Prescription or Custom he saith That an Interruption of Ten or Twenty Years hinders not the Title but an Interruption in the Right the other is only an actual Suspension for a time It may be asked How Time and Usage come to make Laws since Time hath no Operation in Law saith Grotius Not of it self as Grotius there saith but with the Concurrence of other Circumstances it may Bracton saith longa possessio parit jus possidendi and by a long and peaceable Possession Dominion is transferred without either Title or Delivery which he founds on this good Reason That all Claims of Right ought to have a certain Limitation of Time and length of Time takes away any Proof to the contrary Littleton saith That Time out of Memory of Man is said to give Right because no Proof can be brought beyond it And this he calls Prescription at Common Law as it is distinguished from Prescription by the several Statutes of Limitations But whence is it then that an immemorial Possession gives Right Is it from the meer Silence of the Parties concerned to claim it No Silence gives no Consent where Ignorance or Fear may be the Cause of it And is it a Punishment upon the Neglect of the Party concerned So Bracton saith Time doth it per patientiam negligentiam veri Domini But meer Neglect doth not overthrow Right unless there be an antecedent Law to make that Neglect a Forfeiture Is it from a Presumptive Dereliction But that supposes not bare Continuance of Time but some kind of voluntary Act which implies a sort of Consent which doth not appear in this Case And it is a great Mistake in those who think there is no Presumptive Dereliction where there is not a full Consent for it may be where there is the Consent of a mixt Will i.e. partly voluntary and partly involuntary when the Circumstances are such as the Person rather chuses to leave his Right than submit to the lawful Conditions of enjoying it As if a Man would rather quit his Fee than perform the Service which belongs to it Is it from the common Interest of Mankind that some Bounds be fixed to all Claims of Right Because otherwise that Men will be liable to perpetual Disturbance if the Right be permitted to be claimed beyond any possibility of Proof Or is it lastly that in such Nations where immemorial Custom obtains the Force of a Law it seems agreeable to the Foundations of Law that a long continued Possession should carry Right along with it And this was the Case here in England as not only appears by what Bracton hath said but Glanvil makes a great part of our Law to consist of reasonable Customs of long Continuance And St. Germain affirms Ancient general Customs to be one of the principal Foundations of our Law and that they have the Force of Laws and that the King is bound by his Oath to perform them And it is worth our while to observe what general Customs he doth instance in as the Courts of Equity and Law the Hundred Court the Sheriffs Turn the Court Baron c. which depend not upon Acts of Parliament but the Ancient Custom of England which he calls the Common Law And among these Ancient Customs he reckons up Rights of Descent Escheats the different sorts of Tenures Freeholds and the Laws of Property as they are received among us We are now to enquire how far any of our Ecclesiastical Constitutions can be said to be built upon this Foundation and upon immemorial Custom generally received 1. I place 1. the Distribution of this National Church into two Provinces in each whereof there is an Archbishop with Metropolitical Power which lies chiefly in these things 1. The Right of Consecration of his Suffragans 2. The Right of Visitation of every Diocess in such Way and Manner as Custom hath settled it 3. The Right of receiving Appeals from Inferiour Courts of Judicature in Ecclesiastical Matters 4. The Right of presiding in Provincial Councils of the Suffragans of his Province which by the most Ancient Constitutions of this Church were to be held once a Year so it was decreed in the Council under Theodore A. D. 673. but by the Difficulties of the times they were discontinued and so the Authority of examining things through the Province came by a kind of Devolution to the Archbishop and his Courts 5. The Custody of vacant Sees by the Custom of England falls to the Metropolitan if there hath been no Custom or Composition to the contrary And so it hath been upon solemn Debates resolved in our Courts of Common Law Coke thinks that of common Right it belongs to the Dean and Chapter but by Custom to the Archbishop But Panormitan saith There was no Pretence of common Right for them till the time of Boniface VIII 2. The ordinary Jurisdiction of every Bishop over the Clergy of his own Diocess This is as ancient as Christianity among us For no sooner were Churches planted but there were Bishops set over them who had from the Beginning so much Authority that none of the Clergy could either receive or quit his Benefice without their Consent and Approbation and they were all bound to give an Account of their Behaviour at their Visitations and in case of Contempt or other Misdemeamours they were to proceed against them according to the Canons of the Church I do not say the Diocesses were at first all modelled alike or with the same Bounds which they now have which was unreasonable to suppose considering the gradual Conversion of the Nation For at first there was but one Bishop in every one of the Saxon Kingdoms except Kent where was but one Suffragan to the Metropolitan for some time till the Kingdoms came to be united or the Kings consented to an Increase of several Diocesses and uniting them under one Metropolitan which was a Work of Time But in all the Saxon Councils we find no mention of any Ecclesiastical Jurisdiction but what was in the Bishops themselves Concil Cloveshoo Can. 1 4 5. Concil Cealchyth Can. 1. Egbert Canon c. 45 62. The first who began to seek for Exemptions were the Abbots who were under the Bishop's Jurisdiction who was too near them and therefore they endeavoured to get under the Pope's immediate Jurisdiction by Charters of Exemption which the great Abbies either procured or made
the Convocation by the King 's Writ to the Archbishop could not sit but in Parliament-time although that in all respects be the most proper time for there is not a Word tending that way in the Statute but Provincial Councils having been frequently held here without any Writ from the King and therein treating of Matters prejudicial to the Crown by Virtue of a Legatine Power there was great Reason for the King to resume the ancient Right of the Crown For so William I. declared it in Eadmerus That nothing should be done in Provincial Councils without his Authority But afterwards we find Hubert Archbishop of Canterbury holding a Provincial Council against the King's Prohibition and several Writs were sent to them to prohibit their meddling in Matters of State in Prejudice to the Crown 18 H. 3. under Penalty of the Bishops forfeiting their Baronies and to the like purpose 35 E. 1. 15 E. 2. 6 E. 3. which seems to be a tacit Permission of these Provincial Councils provided they did nothing prejudicial to the Crown And from such Councils came our Provincial Constitutions which Lyndwood hath digested according to the Method of the Canon-Law and hath therein shewed what part of the Canon-Law hath any Force here not by Virtue of any Papal or Legatine Power but by the General Consent of the Nation by which they have been received among us But my business is not now with Canons so received but with Canons made according to the Statute 25 H. 8. 19. for it is ridiculous to imagine those are only negative Words for then they exclude the King's Power of calling a Convocation as well as confirming the Acts of it For to what purpose is the King 's Writ to call them together if being assembled they can do nothing But I have already mentioned my Lord Chief Justice Vaughan's Opinion That the Canons made A. D. 1603. are warranted by 25 H. 8. c. 19. It was urged by the Council in the Case of Grove and Eliot 22 Carol. 2. That no Canons can alter the Law which are not confirmed by Act of Parliament But it was said on the other side That these Canons had been always allowed having been confirmed by the King One of the Judges said That the King and Convocation cannot make Canons to bind the Laity but only the Clergy But Vaughan said That those Canons are of Force although never confirmed by Act of Parliament as no Canons are and yet saith he they are the Laws which bind and govern in Ecclesiastick Affairs The Convocation with the Licence and Assent of the King under the Great Seal may make Canons for Regulation of the Church and that as well concerning Laicks as Ecclesiasticks and so is Lyndwood There can be no question in Lyndwood's time but Ecclesiastical Constitutions were thought to bind all that were concerned in them and the Ecclesiastical Laws which continue in Force by Custom and Consent bind all the only Question then is about making new Canons and the Power to make them is by Virtue of an Act of Parliament to which the Nation consented and so there need no Representatives of the people in Convocation And no such thing can be inferred from Moor 755. for the Judges declared the Deprivation of the Clergy for not conforming to the Canons to be legal but they say nothing of others But in the Case of Bird and Smith f. 783. the Chancellor and three Chief Judges declared That the Canons made in Convocation by the King's Authority without Parliament do bind in Ecclesiastical Matters as an Act of Parliament And therefore I proceed to shew II. In what manner we are obliged to the Observation of these Canons concerning which I shall premise two Things 1. That I meddle not with such Canons as are altered by Laws for all grant that unless it be in Moral Duties their Force may be taken away by the Laws of the Land 2. There are some Canons where the general Disuse in Matters of no great Consequence to the Good of the Church or the Rights of other Persons may abate the Force of the Obligation especially when the Disuse hath been connived at and not brought into Articles of Visitation as Can. 74. about Gowns with standing Collars and Cloaks with Sleeves But the general Reason continues in Force viz. That there should be a decent and comely Habit for the Clergy whereby they should be known and distinguished by the People and for this the ancient Custom of the Church is alledged But here a very material Question arises How far Custom is allowed to interpret and alter the Force of Canons made by a lawful Authority For where a Custom prevails against a standing Rule it amounts to this Whether Practice against Law is to have more Force than the Law And how can there be a reasonable Custom against a Law built upon reasonable Grounds But on the other side if Custom hath no power in this case then all the ancient Canons of the Church do still bind in Conscience and so we must not kneel at our Prayers on Sundays nor between Easter and Whitsontide which were thought to be made upon good Reason at first and so many other Canons which have long grown into a Disuse So that if we do strictly oblige persons to observe all Ecclesiastical Canons made by lawful Authority we run Men into endless Scruples and Perplexities and Gerson himself grants That many Canons of General Councils have lost their Force by Disuse and that the Observation of them now would be useless and impossible But on the other side if meer Disuse were sufficient what would become of any Canons and Constitutions where Persons are refractary and Disobedient This is a Case which deserves to be stated and cleared And we are to distinguish three sorts of Customs 1. Customs generally obtaining upon altering the Reason of ancient Canons 2. Customs allowed upon the general Inconveniency of modern Canons 3. Customs taken up without any Rules or Canons for them 1. As to general Customs against ancient Canons where the Reason is altered I see no Ground for any to set up those Canons as still in Force among us For this must create Confusion and Disorder which those Canons were designed to prevent and the Laws of the Land do certainly supersede ancient Canons wherein the necessary Duties of Religion are not immediately concerned For we must have a care of setting up ancient Canons against the Authority of our Laws which cannot be consistent with our National Obligation nor with the Oath of Supremacy 2. As to Customs relating to Modern Canons if it hath any Force as to altering the Obligation 1. It must be general not taken up by particular dissaffected Persons to our Constitution for the Custom of such Men only shews their wilful Disobedience and Contempt of Authority and all Casuists are agreed That Contempt of lawful Authority is a wilful Sin Which supposes a wilful Neglect upon
Knowledge and Admonition of their Duty For Contempt is Nolle subjici cui oportet subjici and a lesser Fault commited with it is a greater Sin than a greater Fault in it self committed without it i.e. by meer carelesness and inadvertency But where there is an open and customary Neglect there is a Presumption of Contempt unless some great and evident Reason be produced for it I do not say the bare Neglect doth imply Contempt in it self but where there is admonition and a continuance after it there is a down-right and positive Contempt But where the Disuse is general not out of Contempt but upon other Reasons and there is no Admonition by Superiours but a tacit Connivence there is a Presumtion of a Consent towards the laying aside the strict Obligation of the Canons relating to it 2. It must be reasonable i.e. on such Grounds as may abate the Force of the Obligation For there is a Difference between a Custom obtaining the Force of a Law and a Custom abating the Force of a Canon In the former case the Custom must be grounded on more evident Reason than is necessary for the latter Wherein the Casuists allow a Permission of Superiours joyned with reasonable Circumstances to be sufficient But how can acts of Disobedience make a reasonable Custom Cajetan saith They are to blame who began it but not those who follow it when the Custom is general And Suarez saith It is the common Opinion The Canonists say If a Custom be against a Rule the Reason must be plain if only besides the Rule and be not repugnant to the End and Design the Reasonableness when it becomes general is presumed But if the Superiours take notice of it and condemn it it loses the Force of Custom unless a new Reason or higher authority appear for it 3. But what is to be said for Customs taken up without Rules or Canons of what Force are they in Point of Conscience 1. It is certain that no late Customs brought in by such as have no Authority to oblige can bind others to follow them For this were to lay open a Gap to the introducing foolish and superstitious Customs into the Church which would make Distinctions without cause and make way for Differences and Animosities which all wise and good Men will avoid as much as may be It is a Rule among the Casuists That voluntary Customs although introduced with a good Mind can never oblige others to observe them And Suarez yields that a bare frequent Repetition of Acts cannot bind others although it hath been of long continuance 2. If the Customs be such as are derived from the primitive times and continue in practice there is no Reason to oppose but rather to comply with them or if they tend to promote a Delight in God's Service As for instance 1. Worshipping towards the East was a very ancient Custom in the Christian Church I grant that very insufficient Reasons are given for it which Origen would not have Men to be too busie in inquiring into but to be content that it was a generally received Practice even in his time and so doth Clemens Alexandrinus before him who thinks it relates to Christ as the Sun of Righteousness Tertullian and S. Basil own the Custom and give no Reason But of all Customs that of Contention and Singularity where there is no plain Reason against them doth the least become the Church of God 2. The Use of Organical Musick in the Publick Service If it tends to compose and settle and raise the Spirits of Men in the Acts of Worship I see no Reason can be brought against it If it be said to be only a natural Delight that Reason will hold against David who appointed it by God's own Commandment They who call it Levitical Service can never prove it to be any of the Typical Ceremonies unless they can shew what was represented by it I come now to the Measure of the Obligation of the Canons in Force And therein a great Regard is to be had to the Intention of that Authority which enjoyns them and that is to be gathered from three Things 1. The Matter 2. The Words and Sense of the Church 3. The Penalty 1. As to the Matter If it be in it self weighty and tends to promote that which is good and pious and for the Honour of God and Service of Religion it cannot be denied but these Canons do oblige in Conscience Bellarmin distinguishes between Laws of the Church which he saith are very few and pious Admonitions and good Orders which are not intended to oblige Men to sin but only in case of Contempt and Scandal And as to the Feasts and Fasts of the Church which belong to the Laws he saith They have mitissimam Obligationem so any one would think who considers how many are exempted and for what Reasons Gerson saith That no human Constitutions bind as to moral Sin unless it be founded on the Law of God as he confesses the Church's Authority is as to circumstances and then he thinks it obliges in Conscience The Substance of his Opinion which hath been much disputed and controverted by Modern Casuists lies in these things 1. That where Ecclesiastical Constitutions do inforce any part of the Law of God although it be not expresly contained therein they do immediately bind the Consciences of Men. 2. That where they tend to the good of the Church and the Preservation of Decency and Order they do so far oblige that the contempt of Authority therein is a Sin against the Law of God 3. That where the Injunctions of Authority are for no other End but to be obeyed he doth not think that there is any strict Obligation in point of Conscience And so far Cajetan agrees with him And although the other Casuists seem to be very angry with him yet when they require a publick Good and the Order of the Church to be the Reason of Ecclesiastical Laws they do in effect agree with him Now as to the Matter of our Canons which respect the Clergy there are two especially which bind them strictly 1. The Canon about Sobriety of Conversation Can. 75. Yes some may say as far as the Law of God obliges i.e. to Temperance and Sobriety but the Canon forbids resorting to Taverns or Alebouses or playing at Dice Cards or Tables doth this Canon oblige in Conscience in this manner If it were a new thing that were forbidden there were some Plea against the Severity of it but frequenting Publick Houses is forbidden by the Apostolical Canons which are of great Antiquity by the Council of Laodicea and in Trullo and many others since And by the Apostolical Canons any Presbyter playing at Dice and continuing so to do after Admonition is to be deprived The Illiberitan Council makes it Excommunication to play at Dice Not meerly for the Images