the Semi-Arrians prevail and determine That the Form of Faith composed at the Dedication at Antioch should be retained and subscribed unto but they ejected the dissenting Acatians or Arrians from their places At Constantinople where the Acatians remained after the Council at Seleucia were Assembled by them about 50 Bishops out of Bythinia and other adjacent parts In this Synod they confirmed the Sum of Faith read in the Council of Ariminum At Antioch in the 25 th year of Constantius his Reign another Council was Convened with design or ordering matters so that for the time to come no man should call the Son of God Consubstantial with the Father nor yet of a different substance from the Father but neither in this Council could the Arrians perfect their intended purpose of inventing a new Sum of Faith At Laodicea not that Laodicea nigh Antioch in Syria but at Laodicea the Metropolis of Phyrgia and one of the Seven Churches of Asia to which John in his Banishment wrote from Patmos At this Laedicea a Synod was assembled about the year 368. wherein nothing was determined concerning matters of Faith only the Worshipping of Angels was damned as an horrible Idolatry and a forsaking of Christ also the Books of the Canonical Scriptures were particularly set forth wherein no mention was made of the Books of the Machabees of Ecclesiasticus or other Apocryphal Books In Illyricum about the year 370 under the Emperours Valentinian and Valens not yet infected with the Arrian Heresie was held a Council wherein the Nicene Faith had confirmation and allowance At Lampsacum nigh the Hellespont under the Emperour Valens was a Synod of Macedonian Hereticks who ratified the Council of Seleucia and damned that of Constantinople by the Acatians At Rome under the Emperour Valentinian in the West Damasus Bishop of Rome Convened a Council wherein was confirmed the Nicene Faith At Constantinople in the year 383 under Theodosius the Emperour was a General Council held consisting of 150 Bishops whereof 36 were infected with the Macedonian Heresie which blasphemously held the Holy Ghost to be a Creature a Minister and Servant not Consubstantial with the Father and the Son From this Council the said Hereticks having withdrawn themselves they which remained in Council damned the Heresie of Macedonius and confirmed the Nicene Faith with ampliation of that part of the Symbol which concerned the Holy Ghost in this manner viz. I believe in the Holy Spirit our Lord Giver of life who proceedeth from the Father and with the Father and the Son is to be worshipped and glorified This Council was held under Gratian and Theodosius the Great and Damasus They condemned and discharged Macedonius Bishop of Constantinople for his perfidious opposing the Deity of the Holy Ghost together with Maximus Cynicus by reason of his Doctrine against Discipline The Emperour null'd all Confessions except that of those who acknowledged Christ Coessential with the Father which our present Liturgy retains under the name of the Nicene Creed It is thought that Gregory Nazianzen compiled it according to the sense of the Synod At Constantinople under Theodosius another Council was held whence a Synodick Letter was sent to the Bishops then Conven'd at Rome declaring the troubles they sustained by Hereticks and as to matters of Discipline recommended unto them the Canons of the Council of Nice At Constantinople in the Fifth year of Theodosius his Reign a great National Council was again Conven'd wherein the Hereticks were divided among themselves touching what Credit they should give in matters of Faith to the Fathers that preceded their time whereupon that good Emperour rent in pieces the Sums of the Arrian Eunomian and Macedonian Faith and Ordained the Homousian Faith only to take place At Carthage the Second Council was assembled under Theodosius nigh the time of the foresaid General Council held at Constantinople wherein the Nicene Faith was confirmed abstinence from Matrimonial Society with Infidels and Hereticks recommended to Ecclesiastical persons At Nice there was another Council An. 181. under Constantine which wholly restored the Images and Statues of Irene together with the Reliques formerly broken in pieces by Leo Isaurus his Grandfather and Constantine Copronymus his Great Grandfather the business being chiefly promoted by Gregory the Second and the Third together with Adrian the First and Tarasius Patriarch of Constantinople There met at this Council which is one of the Greek or Eastern Oecumenical Councils 350 Bishops who with the said Tarasius President of the said Council by 22 Canons condemned Image-breakers for Hereticks Bellarmine and Baronius imagine that this Synod was condemned by the Fathers at the Council of Franckfort under Charles the Great which yet is denied by Binnius Surius and others according to Longus pag. 632. At Carthage a Third Council was Assembled in the year 399 at which Augustine Bishop of Hippo was present wherein it was inter alia Ordained That the Bishop of Rome should be called the Bishop of the First Seat but not the High Priest or the Prince of Priests Likewise That nothing except the holy Canonical Scriptures should be read in Churches under the notion of Holy Books At Carthage a Fourth National Council was held under the Reign of Honorius about the year 401. consisting of 214 Bishops at which Augustine Bishop of Hippo was also present and wherein were nigh as many Canons made as were Bishops assembled wherein among other things it was Ordained That a Bishop should admit no man to a Spiritual Office without Advice of the Clergy nor pronounce any Sentence without such Advice That Refusers to pay unto the Church the Oblations of persons Deceased should be Excommunicated Whereby it appears That Oblationes Defunctorum were not Soul-Masses said for the Dead but Charity by way of Testamental Legacies At Cyprus under the Reigns of Arcadius and Honorius was Assembled a Council by Epiphanius And at Alexandria by Theophilus under pretence of damning the Books of Origen Also at Constantinople by the malice of Eudoxia the Wife of Arcadius the Emperour to depose John Chrysostome Bishop of Constantinople At Carthage about the year 419. a Fifth Council was held wherein the Opinions of Pelagius and Coelestius were damned as Heretical and whereby it was Declared That the Adoration of Reliques was at this time the Custome of Ethnicks and Appointed That Supplication should be made to the Emperours That such Reliques as were found in Images Groves and Trees or elsewhere should be abolished At Toledo in Spain under the Reigns of Arcadius and Honorius was a Council assembled for Confirmation of the Nicene Council and refutation of some Errors At Melevitum in Numidia was Assembled under the Reign of Arcadius a Council whereof St. Augustine was President which was Assembled chiefly to finish the work begun at the Fifth Council of Carthage in
Nominatione non facta intra Sex menses devolvitur Nominatio plena Dispositio Episcopatus ad Papam As also appears in that remarkable Case controverted touching the Confirmation of the Election Ad Episcopatum Appamiarum For upon the death of Cardinal de Albret An. 1520. 10. Dec. that Bishoprick became void whereupon the Canons of that Church convened and proceeded to the Election of a new Bishop and chose D. Bernard de Lordat who being elected applied himself Archiepiscopo Tholosano tanquam suo Metropolitano saltem Vicariis suis for the Confirmation of his Election which was done accordingly to which Confirmation the Procurator Regius was not called who appealed from the said Election and Confirmation alledging that the Nomination to the Bishoprick belonged to the King who Nominated D. John de Puis to the Pope whereupon the Pope granted the said Bishoprick to the said John de Puis who by the Bulls and Proxies of the Pope took possession thereof From all which Appeal was again afterwards in Supremam Curiam between De 〈◊〉 and Lordat but De Puis obtaining another Bishoprick the Process on the Appeal was Extinct and Lordat by a Definitive had the Possession of the said Bishoprick Confirmed to him CHAP. VI. Of Consecration 1. What Consecration signifies the Ancient Rites and Ceremonies thereof under the Law who they were to whom it belonged 2. Consecration as specially Applicable to Bishops 3. An Ancient Canon touching the Consecration of Churches 4. The Form of Consecration of Churches by the Justinian Law the Rites and Ceremonies therein used by the Greek and Latin Churches 5. Consecration of Bishops how necessary by the Imperial Law Consonant to the practice of the Greek and Latin Churches 6. Consecration of Bishops is Character Indelebilis at the Common Law 7. Who first Consecrated Churches who first took the style of Pope The Original of Godfathers and Godmothers in Baptism 8. In case of Translations of Bishops no need of new Consecrations Requisites to Creation and Translation of Bishops according to the Common Law of England 1. CONSECRATION here chiefly refers either to Bishops or Churches The Civil as well as Canon Law takes notice of both It signifies a Dedication to God Justinian in his Novel's makes use of the word thereby signifying an Imposition of hands For in this manner says that Book of great Antiquity entituled 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 began Bishops to be Consecrated It is a kind of Separation of persons Ecâ—csiastical from the Laity and of things Sacred from Prophane for the especial use and service of God The word in the Hebrew signifies a Filling of the hand thereby intimating that under the Law in the Consecration of any there was a giving them or Putting into their hands things to offer whereby they were admitted to their Priestly Office In this Consecration the holy Unction was used or the holy Oyl or holy Ointment which was not to be applied to any Prophane or Civil use but to be appropiated to the Sons of Aaron only whereas Kings were and are to be Anointed that is to be understood as by especial command from God as an Exception to the Sacerdotal practice and as a Consecrating them to the Government in relation whereto a King is a Mixt person under a double capacity Ecclesiastical and Civil as next under God the Supream in Church and State within his own Dominions And although under the Levitical Law there was an Anointing Oyl common to the High Priest with the Inferiour Priests yet the High Priest had a Consecration peculiar to himself which was by the pouring out the precious Oyntment upon his head In imitation whereof are Kings at this day anointed to the Regal Authority 2. The import of this word Consecration as practicable in all Ages specially refers to Archbishops and Bishops and with us consists in certain Benedictions and Ceremonies peculiarly requisite thereunto And when after Election and Confirmation the person is Consecrated and Invested he is then compleat Bishop as well to Temporalties as Spiritualties and then the power of the Guardian of the Spiritualties doth cease Being Consecrated he may confer Holy Orders upon others and may Consecrate Churches and Chappels which before he could not Anselm Archbishop of Canterbury deprived divers Prelates for receiving Investure of King H. 1. but after they were restored ex gratia Speed 436. The Roman Synod made a Cannon that Investure belongs to the Pope yet H. 1. used to give Investure as he did to Ralph Archbishop of Canterbury Sp. 440. b. 3. Touching the Consecration of Churches the Learned Sir H. Spelman makes mention of a very Ancient Canon made by the Synod held at Celichyth in the year 816. under Wulfred Archbishop of Canterbury and President of the said Synod Kenulph King of Morcia being threat also personally present The Canon is to this purpose viz. Wherever a Church is built or erected let it be Sanctified by the Bishop of the proper Diocess Let it have a Benediction from himself and be sprinkled with Holy Water and so be made a compleat Church in such manner as is prescribed in the Ministerial Book Afterwards let the Eucharist which is Consecrated by the same Bishop be together with other Reliques reposited and laid up in a Chest and kept and preserved in the same Church And we Ordain and Command that every Bishop take care that the Saints to whom their Churches are dedicated respectively be painted on the Church-walls or in Tables or on the Altars 4. The Emperour Justinian in his care of the Church hath prescirbed a Form of Consecration thereof in this manner viz. his Law is That none shall presume to erect a Church until the Bishop of the Diocess hath been first acquainted therewith and shall come the lift up his hands to Heaven and Consecrate the place to God by Prayer and erect the Symbole of our Salvation viz. the venerable and truly precioas Rood Likewise among other Ceremonies of Consecrating Churches the laying of the first Stone was of Ancient use in the Greek Church as may be observed out of their Euchologue where it is said That the Bishop after some other Rites performed standing in the place where the Holy Altar shall be set saith certain Prayers which being ended he giveth tho Ite Missa est and then taketh up one of the Stones and having cut a Cross upon it himself with his own hands layeth it upon the Groundwork as the first Foundation-stone then be pronounceth the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. and so the Workmen begin the Building The like Ceremonies are used in the Latin Church at this day at the Consecration of Churches as appears by their Pontificale There is this further touching the Consecration of Churches in the Euchologue of the Greek Church That the Bishop having on his Formilities fumeth the Ground-work or Foundation with his Iacense Circular-wise then the Singing-men say
of new improvements in their own occupation by culture Pasture and Garden-Fruits only the said Three Orders were exempted from the general payment of all Tithes whatever The Templers and Hospitallers were meer Lay-men yet they were exempted as well as the other Yet the Lateran Council in An. 1215. Ordered That this Priviledge should not extend to Covents erected since that Lateran Council nor to Lands since bestowed on the said Orders though their Covents were erected before that Council Insomuch that when the said Cistercians contrary to the Canons of that Council purchased Bulls from the Pope to discharge their Lands from Tithes King H. 4. Null'd such Bulls by the Stat. of 2 H. 4. cap. 4. and reduced their Lands to a Statu quo These Exemptions from payment of Tithes in this or that particular Religious Order was not known in the World when Aethelwolph Son of Egbert whom he succeeded as King of the West-Saxons gave as aforesaid Tithes of all his Kingdom and that freed of all Tributes Taxes and Impositions as appears by his Charter to that purpose having at a Solemn Council held at Winchester subjected the whole Kingdom of England to the payment of Tithes True it is that long before his time many Acts for Tithes may be produced such as the Imperial Edicts Canons of some Councils and Popes beside such Laws as were made by King Ina and Offa yet the said Edicts and Canons were never received in their full power into England by the consent of Prince and People nor were King Ina and Offa though Monarchs of England as it were in their turns such Kings as conveyed their Crowns to the Issue of their Bodies but the said Aethelwolph was Monarcha Natus non factus and although before his time there were Monarchs of the Saxon Heptarchy yet not successive and fixed in a Family but the said King Egbert being the first that so obtained this Monarchy as to leave it by descent unto his Son the said Aethelwolph he thereby had the more indisputable power to oblige all the Kingdom unto an observance of the said Act. In the said Chapter of Tithes there is also mention made of Mortuaries as having some relation of Tithes wherein is shewed what it is when by and to whom and wherefore to be paid By the Stat. of 21 H. 8. they are reduced to another Regulation than what was in the time of King Henry the Sixth A Mortuary was then the Second best Beast whereof the party died possessed but in case he had but two in all then none due It was called a Corse-Present because ever paid by the Executors though not alwaies bequeathed by the dying party All persons possessed of an Estate Children under Tuition and Femes Covert but not Widows excepted were liable to the payment thereof to the Priest of that Parish where the dying party received the Sacrament not where he repaired to Prayers but in case his House at his death stood in two Parishes it was then divided betwixt them both And it was given in lieu of Personal Tithes which the party in his life time had through ignorance or negligence not fully paid Lindw Cons de Consuetud Such of the ancient Lawyers as were unacquainted with this word Mortuarium in the aforesaid sense as we now use it took Mortuarium only pro derelicto in morte say of it That it is Vocabulum novum harbarum but we understand it better where of Custome it is due and payable These Mortuaries where by the Custome they are to be paid were ever in consideration of the omission of Personal Tithes in the parties Life-time which Personal Tithes were by the Canon Law to be paid only of such as did receive the Sacraments and only to that Church where they did receive them as may be inferr'd plainly from cap. Ad Apostolicae de Decimis But observe says Lessius that in many places these Personal Tithes have been quite taken away and in some places they are paid only at the end of a mans Life as among the Venetians which manner of payment seems to have a great resemblance to these Mortuaries and in some places they are paid only ot the end of the year And in like manner many Predial and Mixt Tithes in divers places are also abolish'd which says he is for the most part done by the permission of the Church where men have been observed to pay them with regret and much against their minds nor hath the Church in such cases thought fit to compel them to it on purpose to avoid scandal Lessius de Just jur lib. 2. cap. 39. Dub. 5. nu 27. And in such places where the Custome is to pay a Personal Tithe when any persons shall Hunt Fish or Fowl to make gain or merchandize thereby and it be neglected to be paid whether Restitution or Compensation by way of a Mortuary where Mortuaries are Customable be in that case due by Law is a Question which by Covarruvies may be well held in the Affirmative Although the face of the Church as well as State began to look with a purer though less Sanguine complexion when Queen Elizabeth adorn'd the Crown than when her Sister wore it yet even in Queen Elizabeths time there crept such abuses into the Church that Archbishop Parker found it necessary to have recourse unto the Power given him by the Queens Commission and by a Clause of the Act of Parliament For the uniformity of Common Prayer and Service in the Church c. whereupon by the Queens consent and the Advice of some of the Bishops he sets forth a certain Book of Orders to be diligently observed and executed by all persons whom it might concern wherein it was Provided That no Parson Vicar or Curate of any Church Exempt should from thenceforth attempt to conjoyn by solemnization of Matrimony any not being of his or their Parish-Church without good Testimony of the Banns being ask'd in the several Churches where they dwell or otherwise were sufficiently Licensed Heyl. Hist of Q. Eliz. An. Reg. 3. Banns or Banna that word Bannum is sometimes taken pro Mandato scil Edicto it is a word of divers significations as appears almost by all the Glossographists and Feudists it sounds sometimes like Edictum sometimes like Mandatum or Decretum and sometimes as here like Proclamatio Saxonibus gebann whence there is their gebannian pro Proclamare edicere mandare ut nostratium Bannes pro Nuptiarum foedere Publicato This Publication of Banns was cautiously ordain'd for the prevention of Clandestine Marriages which were prohibited in this Kingdom above 500 years since as a thing contrary in all Ages to the practice of all Nations and Churches where the Gospel was received and therefore at a Council conven'd at Westminster in the year 1175. by Richard Archbishop of Canterbury under the Reign of King H. 2. it was Ordain'd That no person whatsoever should solemnize Marriage in
Scorto Natus in Ecclesiâ—m Domini usque ad decimam generationem Yet the Pope doth usually dispence with that Canon specially where such Illegitimates live commendably and follow not the vicious practice of their Parents In illis qui paterna vitia non sequuntur possunt suffragari virtutes quae inducent Sâ—mmum Pontificem ad Dispensandum si morum honestas eos Commendabiles reddat c. Presbyterorum 56. Distin And lest such should conceive themselves causlesly injured by that Prohibition the Canonists assign three Reasons for it the one is the Dignity of the Clergy and the Sacraments which ought not to be committed to Infamous persons Another is in detestation of their Parents Crime which commonly extends also to their Children The third is the Parents Incontinency and because the Children do for the most part inherit their Parents Vices cap. Si gens Angelorum 56. Distin Yet a Modern Historian speaking of Pope Leo the Seventh An. 935. says out of Luitprandus that Bozon Bishop of Placentia Theobald of Millain and another great Prelate were all the Bastards of Hugo King of Italy by his three Queens Bezola Rosa and Stephana whom he termed Venus Juno and Semalo vid. Prideaux 's Compend Introduct of Hist p. 106. Edit 5. Next follows the matter of Divorce which is the separation of Married persons by force of the Sentence of an Ecclesiastical Judge qualified to pronounce the same Adultery in either party is the common though not the only cause of Divorce Some there are it seems of great Reputation in the Church for this is Quaestio tam Theologiae quam Juris who positively condemn it as unlawful for a Man or Woman to live with their Husband or Wife respectively if either of them be notoriously guilty of Adultery Of which Opinion was St. Hierom saying That a man is Sub maledictione si Adulteram retineat And St. Chrysostome Fatuus iniquus qui retinet Meretricem Patronus enim Turpitudinis est qui celat Crimen uxoris So that it was none of Cato's wisdom nor any great piece of kindness done his Friend Hortensius to lend him his wife Martia whose Chastity deserv'd a better requital Socrates also is reported to be as kind-hearted in this matter as ever Cato was and they are both said to lend their Wives as freely as a man lends an Utensil As these Wife men were beyond the reach of a Diovorce so they were more serious than to blush at Cornutism the common Fate of such Philosophers St. Basil was of Opinion That it was lawful for a Woman still to cohabit with an adulterous Husband to which purpose he made a Canon and commanded it to be done in his Church as appears in his Epistle to Amphilochius 1. Can. 9. 21. This also was the Sentence of St. Austin to Pollentius and in his Book de Adulterinis Conjugiis David received his wife Michal who had lived with another man St. Basil it seems though he be of opinion that the Woman should still live with the Adulterous Husband yet does not think it fit that the man should be so obliged as to his Adulterous Wife The Council of Eliberis refused to give the Sacrament to a Clergy-man that did not instantly expel from his house his Wife whom he knew to commit Adultery And by the Council of Neo-Caesarea he was to be deposed from his Dignity in the same case In the Council of Trent there was a Canon made having an Anathema added to it which condemned those that say That the Bond of Marriage is dissolved by Adultery and that either of the parties may contract another Matrimony whilst the other liveth And by the Fifth Anathematism of that Council 22. July 1563. were condemned Divorces allowed in Justinian's Code which Anathematism was added at the instance of the Cardinal of Lorain to oppose the Opinion of the Calvinists In the same Council upon the Article of Divorce it was said by one of the Fathers there that the Matrimonial Conjunction was distinguish'd into Three parts the Bond the Cohabitation and the Carnal Copulation inferring that there were as many Separations also and that the Ecclesiastical Prelate had power to separate the Married or to give them a Divorce in respect of the Two latter the Matrimonial Bond still standing sure so that neither can marry again Yet the Gospel admits but of one cause of Divorce viz. Fornication which should seem to be understood de Vinculo because Divorce in the other respects may have many Causes Of all Personal Actions within the Ecclesiastical Cognizance that of Defamation seems to be of the tenderest concern if that be observed which Solomon says That a Good Name is to be chosen before great Riches where by Name nothing can be understood other than a mans Credit Fame and Reputation in the World So that the Inference is clear a Defamer is the worst of Thieves the Sacrilegious ones excepted yet were it not for the sweetness of Revenge and the encouragement of the Law such Actions might be better spar'd than what it costs to maintain them and such ill-scented Suits do savour worse being kept alive in a Tribunal than they would by being buried in Oblivion specially if the Defamed considered that to forget Injuries is the best use we can make of a bad Memory This Defamation is not properly that which we call Detractio for Detractio in its proper signification is alienae famae occulta injusta violatio but Defamation though it be an unjust yet it is not an occult violation of another mans Fame or Reputation they have indeed both the same end but they do not both take the same way to that end they both aim and design the extinguishing or diminishing the Credit and Repute which one man hath in the mind and good opinion of another but the one doth it more openly and publickly at least not in so clandestine way as the other This Defamatio is of near affinity to that which we call Contumelia which is an unlawful violation of a persons Honour and Reputation by undecent and false Speeches Gestures or Actions on purpose to disgrace him only in this also they differ that Defamatio may be of one man to another in the absence of the Defamed but Contumelia is not but to the party present vel absenti tanquam praesenti that is in the prrsence of such as have a relative representation of the person Contumeliously so reproached Touching Actions of Defamation there are two Questions raised rather by the Casuists than Canonists the one Whether the Heirs of the Defamer be obliged to make restitution of Dammage to the Defamed in case the Defamer died before satisfaction made the other Whether satisfaction for the dammage done by Defamation be to be made to the Heirs of the Defamed in case he died before such dammages were recovered by him Although both these Questions are answered in the Negative by
tradehant The Seventh was at Nice under Constantine and his Mother Irene where 367 Bishops were assembled against the Adversaries of Images whom they subjected to their Anathema 2 Of Particular Synods one was held in the Temple of the Apostles in Constantinople under the Patriarch Photius which was called the First and Second Another under Leo and Constantine in the most Famous Temple Sanctae Dei Sapientiae or Sanctae Sophiae which confirmed the Seventh Synod Another at Ancyra more ancient than the first Universal Synod Another at Caesarea more ancient than that at Ancyra Another at Gangra after the Nicene against Eustachius who despised Marriage and taught things not consonant to Ecclesiastical Tradition Another at Antioch a City in Syria where in truth were two Synods the one under Aurelianus against Paulus Samosatenus who said that Christ was meer Man the other under Constantius Son to Constantine the Great Another at Laodicea scituate in Phrygia Pacatiana Another at Sardica that when Constantius embraced the foresaid Sect his Brother Constans Emperour of Old Rome by his Letters threatning him with a War if he would not desist from perverting the Church his Answer was That he sought no other Doctrine than what was most agreeable to the Catholick Faith whereupon by their and the Bishop of Romes appointment 341 Bishops were Conven'd in a Synod which having established the power and authority of the Nicene Synod did constitute divers Canons for the Church Another at Carthage under Theodosius where 217 Bishops were assembled and with them the Popes Vicegerents this Carthage was part of Charchedon and that a Province of Africa 3 The Canons of the Fathers are taken according to the Roman computation out of the Epistles partly of Dionysius Alexandrinus partly of Petrus Alexandrinus partly of the Wonder-working Gregorius partly also out of the Epistles of Bazil or Basilius the Great partly out of the Epistle of Gregory or Gregorius Nyssenus to the B. of Melita partly out of the Responses of Timotheus Alexandrinus partly out of the Responses of the Constantinopolitan Synod to certain Monks Nicholaus the Patriarch being President partly out of the Epistles of Cyril or Cyrillus and partly out of the Epistles of Nicephorus the Patriach 4 The Canons of the Holy Apostles a book falsly ascribed to the Apostles are in number Eighty Five according to a modest Computation if you have any Faith to spare at least enough to believe the Church of Rome in that as in other Points infallible But the Canons indeed of the Apostles which are of Order and External Government do oblige as Dr. Taylor says the Conscience by being accepted in several Churches not by their first Institution and were fitted only to Times and Places and present Necessities For says he the Apostolical Decree of Abstaining from Blood was observed by more Churches than those of Syria and Cilicia to which the Canon was directed and the Colledge of Widows or Deaconesses derived it self into the manners of the Western Churches And the Apostles in their first Preaching and Conversation in Jerusalem instituted a coenobitick life and had all things in Common with Believers indeed no man was obliged to it Of the same nature were their Canons Counsels and Advices The Canon concerning Widows Let not a Widow be chosen under 60 years and yet Justinian suffered one of 40 years old to be chosen Novel 123. c. 12 13. And the Canon of the Apostles forbidding to eat things strangled is no where observed in the Western Churches of Christendom In the beginning of the Fourth Century above 1300 years since we find our Bishops British Bishops at the Councils of Arles Nice Sardis and Ariminum a clear Evidence of the flourishing state of Christianity so long since in this Island At Arles in France conven'd touching the Donatists appeared for the Britains Eborius Bishop of York Restitutus Bishop of London Adelfius Bishop of the City called the Colony of London which some suppose to be Colchester others Maldon in Essex Sacerdos a Priest both by Name and Office Arminius a Deacon An. 313. At the Synod of Nice in Bithynia An. 325. to suppress Arrianism were British Bishops present as Athanasius and Hilary Bishop of Poictiers affirm At the Council of Sardis in Thracia conven'd by Constanitus and Constans Sons to Constantine the Great the British Bishops were likewise present when the Arrians were condemn'd and Athanasius acquitted And at the Council of Ariminum in Italy the British Bishops were also present who according to Athanasius were about An. 360. summoned to divers Forein Councils in remote parts As also here at home in and after the Seventh Century were divers particular Councils and Synods the first whereof according to Stapleton out of Bede called The first of the English Nation was conven'd at Hertford by Theodorus Archbishop of Canterbury who succeeded Deusdedit in that See in this Council the Observation of Easter was settled according to the Romish Rite yet whosoever will have this Council to be as aforesaid The first of the English Nation must understand it the First whose Canons are compleatly extant Bede lib. 4. c. 5. About the year 740 Ethelbald King of Mercia with Cuthbert Archbishop of Canterbury called a Council at Cliffe in Kent the acts of which Synod were 31 Canons among which is was inter alia Ordain'd That Prayers should publickly be made for Kings and Princes But some few years before this the said Theodorus held a Synod or Council of Bishops at Hatfield by authority whereof he divided the Province of Mercia which Sexwolphus then governed alone into five Bishopricks viz. to Chester Worcester Lichfield Cedema in Lindsey and to Dorchester In the year 692 a great Council was held at Becanceld by Withred King of Kent and Bertuald Archbishop of Britain wherein many things were concluded in favour of the Church About the same time a Council was held at Berghamsteed by the said Withred King of Kent at which Council Bishop Wilfrid was restored to York whence he departed for Rome upon the endeavours which Theodorus Archbishop of Canterbury had used to have that Diocess of York divided In the year 801 Ethelard the Archbishop called a Synod at Clivesho in Kent where by power from the Pope he rivited that 's the word the Archbishoprick into the City of Canterbury There was likewise at Celichyth an eminent Council under Wolphred who succeeded Ethelard Archbishop of Canterbury But nigh one hundred years before this viz. about the year 709 a Synod was assembled at Alncester in Worcestershire to promote the building of Evesham-Abbey And not long after another Synod was called at London to introduce the Doctrine of Image-Worship into England now first beginning to appear in the publick practice thereof Also above one hundred years before that viz. about the year 601. Augustine by the aid of Ethelbert King of Kent called a Council of Saxon and British Bishops to meet in the Confines of the Mercians and
and used in part by several Nations he compiled them into Volumes and called them Jus Canonicum and Ordained that they should be read and expounded in publick Schools and Universities as the Imperial Law was read and expounded and commanded that they should be observed and obeyed by all Christians on pain of Excommunication and often endeavoured to put them in execution by Coercive power and assumed to himself the power of interpreting abrogating and dispensing with those Laws in all the Realms of Christendom at his pleasure so that the Canonists ascribe to him this prerogative Papa in omnibus jure positivis in quibusdam ad jus divinum pertinentibus dispensare potest quia dicitur omnia Jura habere in Scrinio pectoris sui quantum ad interpretationem dispensationem Lib. 6. de Const cap. licet About the time of An. 25. Ed. 1. Simon a Monk of Walden began to read the Canon Law in the University of Cambridge vid. Stow and Walsingham in that year Also the Manusc libr. 6. Decretal in New-Colledge Library at Oxford hath this Inscription in the Front Anno Domini 1298. which was in the year 26 Ed. 1. 19. Novembr in Ecclesia Fratrum Praedicator Oxon. fuit facta publicatio lib. 6. Decretal whereby it appears when it was that the Canon Law was introduced into England But the Jurisdiction which the Pope by colour thereof claimed in England was a meer Usurpation to which the Kings of England from time to time made opposition even to the time of King H. 8. And therefore the Ecclesiastical Law which Ordained That when a man is created a Bishop all his Inferiour Benefices shall be void is often said in the Bishop of St. David's Case in 11 H. 4. to be the Ancient Law of England And 29 Ed. 3. 44. a. in the Case of the Prebend of Oxgate it is said That though the Constitution which ousts Pluralities began in the Court of Rome yet a Church was adjudged void in the Kings Bench for that cause or reason whereby it appears That after the said Constitution was received and allowed in England it became the Law of England Yet all the Ecclesiastical Laws of England were not derived from the Court of Rome for long before the Canon Law was authorized and published in England which was before the Norman Conquest the Ancient Kings of England viz. Edgaâ— Aethelstan Alfred Edward the Confessor and others have with the Advice of their Clergy within the Realm made divers Ordinances for the government of the Church of England and after the Conquest divers Provincial Synods have been held and many Constitutions have been made in both Realms of England and Ireland All which are part of our Ecclesiastical Laws at this day Vid. Le Charter de William le Conqueror Dat. An. Dom. 1066. irrot 2 R. 2. among the Charters in Archiv Turris Lond. pro Decano Capitulo Lincoln Willielmus Dei gratia Rex Anglorum c. Sciatis c. Quod Episcopales Leges quae non bene nec secundum Sanctorum Canonum praecepta usque ad mea tempora in Regno Angliae fuerunt Communi Concilio Episcoporum meorum caeterorum Episcoporum omnium Principum Regni mei emendandas judicavi c. See also Girald Cambrens lib. 2. cap. 34. in the time of King H. 2. a Synod of the Clergy of Ireland was held at the Castle wherein it was Ordained Quod omnia divina juxta quod Anglicana observat Ecclesia in omnibus partibus Hyberniae amodo tractentur Dignum enim justissimum est ut sicut Dominum Regem ex Anglia divinitus sortita est Hybernia sic etiam exinde vivendi formam accipiant meliorem But the distinction of Ecclesiastical or Spiritual Causes from Civil and Temporal Causes in point of Jurisdiction was not known or heard of in the Christian World for the space of 300 years after Christ For the causes of Testaments of Matrimony of Bastardy and Adultery and the rest which are called Ecclesiastical or Spiritual Causes were meerly Civil and determined by the Rules of the Civil Law and subject only to the Jurisdiction of the Civil Magistrate But after the Emperours had received the Christian Faith out of a zeal they had to honour the learned and godly Bishops of that time they singled out certain special Causes wherein they granted Jurisdiction unto the Bishops viz. in Causes of Tithes because they were paid to men of the Church in Causes of Matrimony because Marriages were for the most part solemnized in the Church in Causes Testamentary because Testaments were many times made in extremis when Church-men were present giving Spiritual comfort to the Testator and therefore were thought the fittest persons to take the Probats of such Testaments Howbeit these Bishops did not then proceed in these Causes according to the Canons and Decrees of the Church for the Canon Law was not then known but according to the Rules of the Imperial Law as the Civil Magistrate did proceed in other Causes so that the Primitive Jurisdiction in all these Causes was in the Supream Civil Magistate and though it be now derived from him yet it still remaineth in him as in the Fountain CHAP. XII Of Churches Chappels and Church-yards 1. Ecclesia what that word imports the several kinds thereof 2. Possessions of the Church protected by the Statute-Laws from Alienation the care of the Emperour Justinian in that point 3. To whom the Soyl and Freehold of the Church and Church-yard belong to whom the use of the Body of the Church to whom the disposal of the Pewes or Seats and charges of Repairs 4. The Common Law touching the Reparation of Churches and the disposal of the Seats therein 5. The same Law touching Isles Pictures Coats of Arms and Burials in Churches also of Assaults in Churches and Church-yard 6. The penalty of quarreling chiding brawling striking or drawing a Weapon in the Church or Church-yard 7. Where Prescription to a Seat in a Church is alledged the Common Law claims the cognizance thereof 8. The Immunities anciently of Church-Sanctuary as also of Abjuration now abrogated and taken away by Statute 9. The defacing of Tombs Sepulchres or Monuments in Churches punishable at the Common Law also of Right to Pewes and Seats in the Church 10. The Cognizance of Church-Reparations belongs to the Ecclesiastical Court 11. A Prohibition upon a surmize of a custome or usage for Contribution to repair a Church 12. Church-wardens are a Corporation for the Benefit not for the Prejudice of the Church 13. Inheritance cannot be charged with a Tax for Repairs of the Church nor may a perpetual charge be imposed upon Land for the same 14. When the use of church-Church-Books for Christnings first began 15. Chappel the several kinds thereof The Canonists Conceits touching the derivation of that word 16. Where two Parochial Churches are united the charge of Reparations shall be several as before 17. The Emperour Justinian's
to follow the value of the Land and for that the valuing of the Land properly belongs to them As to the second Noy moved That although the Principal be a thing Spiritual yet it is now mixt with a Custome as in the Case de modo Decimandi the Ecclesiastical Court is ousted of his Jurisdiction Houghton Justice It seems so as to other things but the Church being the House of God is more to be regarded and a custome in prejudice to the Reparations of the Church is void for of common Right the House and all Lands are chargeable to the Reparations And the Court commanded him to make a Suggestion of the Custome omitting the value and then they would consider whether a Prohibition should go or no. In Stephenson's Case it was Resolved that if one hath Lands in one Town and doth inhabit in another he shall be compelled to be contributary to the Reparation of the Parish Church where the Lands are 14. Note by Coke Chief Justice That the keeping of a church-Church-Book for the Age of those which should be Born and Christned in the Parish began in the Thirtieth year of Henry the Eighth by the instigation of the Lord Cromwell 15. Chappel Capella of the French Chapelleé that is aedicula Of this there seems to be three sorts the one such as adjoyns to the Church as parcel of the same built by Persons of Honour ut ibidem Familiaria Sepulchra sibi constituant Another that which is separate from the Mother-Church in a Parish of a large extent built for the better ease and convenience of such Parishioners whose habitations are remote and far distant from the Parish-Church and thence vulgarly called a Chappel of Ease being served by some inferiour Curate at the charge either of the Rector or of such as for whose convenience it is according to the custome or composition A Chappel of Ease is where there is a Parochial Church in the same Parish wherein the Sacraments are administer'd and not in the Chappel 8 H. 6. 32. which appertains to the Parochial Church and the Parson thereof Ibid. And a Parochial Church cannot be a Chappel 8 H. 6. 37. The Third is that which is called a Free-Chappel which in point of Maintenance and endowment as also in respect of exemption from the Ordinaries Jurisdiction seems to differ from both the former and hath perpetual maintenance towards the upholding thereof by a charitable Endowment thereof without the charge of the Rector or Parish So that a Free-Chappel or Libera Capella is according to the opinion of some no other than a Chappel founded within some Parochial precincts for Divine Service by the bounty of some well disposed person over and above the Mother-Church to which it was at the Parishioners choice or liberty for whose convenience it was erected to repair or not and endowed with Maintenance by the Founder and therefore called Free. Notwithstanding which others are of opinion and that more probable That these only are Free Chappels which are of the Foundation of Kings and by them exempted from the Jurisdiction of the Ordinary but the King may also License a Subject to Found such a Chappel and by his Charter exempt it from the Visitation of the Ordinary in respect of which exemption and from the Jurisdiction of the Diocesan it appears by the Register of Writs to be called Free H. 8 E. 3. B. R. Rot. 97. Episcopus Exon attachiat ad respondendum Domino Regi quare exerceret Jurisdictionem in Capella Regia Sanctae Burianae in Cornub c.. The King himself Visits his Free Chappels and Hospitals and not the Ordinary The Lord Chancellor executes it for the King These Chappels were all of them together with Chantries given to the King Of this kind is the Free Chappel of St. Martin le Grand The Canonists are not agreed touching the derivation of this word some take it à capiendo Laicos others à Capra because they conceive that they resemble those Cottages which were wont to be covered over with Goat-skins Others à cappa Divi Martini Others è Chapellee Gallic 16. In the Parish of Aston in the County of Warwick which hath a Parish Church is a certain Chappel of Ease called Castle-Birmidge Chappel and a certain Precinct called Castle-Birmidge the Inhabitants thereof resort to the said Chappel and there Marry Christen and receive the Sacraments there are also Church-wardens and the Inhabitants have a Perambulation there of it self notwithstanding all which when it came in debate whether the Parishioners of the Chappel the Parish-Church of Aston being in decay might be Taxed towards the Reparation thereof they obtained a Prohibition on a Surmize which not appearing to be true a Consultation was awarded yet in that case it was held That if two Churches Parochial be united the Reparation shall be several as before And that a Chappel of Ease is part of the Parish de communi jure liable to reparations of the Parish Church that such as have a Chappel of Ease may resort to the Parish Church if they so please and that the Parson of the Parish-Church may Officiate at the Chappel of Ease if he will 17. The Emperour Justinian in the fifth Collation of his Novel Constitutions commonly called the Authenticks emitted by him after the Digest and the Code hath Ordained That no man build a Chappel in his House without the leave of the Bishop and before he consecrate the place by Prayer and set up the Cross there and make procession in the place and that before he build it he allot out Lands necessary for the maintenance of the same and those that shall attend on God's Service in the place In which Collation there is also that which seems to bear some conformity with the Acts of Uniformity established in this Realm against Seditious Conventicles For in that Collation it is likewise Ordained by the said Emperour That the sacred Mysteries or Ministeries be not done in private Houses but be celebrated in publick places lest thereby things be done contrary to the Catholick and Apostolick Faith unless they call to the celebrating of the same such Clerks of whose Faith and Conformity there is no doubt made or those who are thereunto deputed by the Bishop But Chappels and places to pray in every man may have in his own House if any thing be done to the contrary the House wherein these things are done shall be confiscate and themselves punished at the discretion of the Prince 18. A. the Father had all his life the chief place in a certain Seat in the Church and H. his Son likewise claimed the same and C. disturb'd him in a violent manner the Archbishop of York in whose Jurisdiction this was granted an Inhibition against C till the matter were determined before him and Excommunicated him for Disobedience C. claimed the place by Prescription and for that Reason prayed a Prohibition
And it was said That the Excommunication was only for his Contempt And it is lawful for the Bishop to grant such an Inhibition for the peace of the Church And Doderidge agreed That if the Bishop did Inhibit any from making a disturbance in the Church it was good and therefore would not grant a Prohibition for well-doing Crew Jones c. but here he had not done well Doderidge è contra Then it was said That here the Bishop had Inhibited till the matter were determined before himself And the whole Court agreed That a Seat in a Church claimed by Prescription and the priority therein likewise claimed by Prescription is Triable in this Court by an Action upon the Case and not in the Spiritual Court And at last it was agreed by the parties that H. should remain in possession till the matter were tried by Prohibition And a Prohibition was awarded in the Case Note That a Prohibition may not be granted after a Consultation And as it seems by the course of Proceedings in the Court of the King's Bench a Prohibition shall not be granted the last day of a Term and such a Motion ought not then to be made but upon a motion there may be a Rule to stay proceedings till the next Term 19. It was moved in the King's Bench for a Prohibition to the Ecclesiastical Court at Worcester and shewed for cause 1 That the Suit there was for Money which by the assent of the greater part of the Parishioners of D. was Assessed upon the Plaintiff for the Reparation viz. for the Re-casting of their Bells The truth is That the charge was for the making of new Bells where there were Four before whereby it appears that it is meerly matter of curiosity and not of necessity for which the Parishioners shall not be liable to such Taxations and herein it was relied upon 44 E. 3. 19. by Finchden 2 The party there is overcharged of which the Common Law shall judge 3 The party hath alledged that he and all those who have an Estate in such a Tenement have used to pay but Eleven shillings for any Reparation of the Church But the Prohibition was denied and by Doderidge in the Book of 44 E. 3. there was a By-law in the Case to distrain which is a thing meerly Temporal for which the Prohibition was granted per Curiam in this case the Assessment by the major part of the Parishioners binds the party albeit he assented not to it And the Court seemed to be of opinion That the Custome was not reasonable because it laid a burden upon the rest of the Parish Littleton of Counsel of the other side Suppose the Church falls shall he pay but Eleven shillings Whitlock If the Church falls the Parishioners are not bound to build it up again which was not denied by Justice Jones 20. Roberts and others of East-Greenwich were cited in the Ecclesiastical Court to pay money that the Church-wardens had expended in Reparation of the Church and the Inhabitants alledged That the Tax was made by the Church-wardens themselves without calling the Freeholders and also that the Moneys were expending in the Re-edifying Seats of the Churches which belonged to their several houses And they never assented that they should be pulled down And now the Allegation was not allowed in the Ecclesiastical Court but Sentence was given against them And then they Appealed to the Arches where this Allegation was also rejected and for that he prayed a Prohibition And the Court agreed That the Tax cannot be made by the Church-wardens but by the greater number of the Inhabitants it may and a Prohibition was granted But by Yelverton if they be cited by Ex Officio a Prohibition will not lie for so it was Ex insinuatione c. For the Wardens came and pray'd a Citation c. But by Richardson Harvey and Crook privately a Prohibition will lie in both Cases 21. E. Libels in the Ecclesiastical Court against A. pretending that a Seat that the other claimed alwaies in the Church belonged to his House and Sentence in that Court was given against E. and Costs pro falso clamore And he Appealed to the Arches and there when they were ready to affirm the Sentence he prayed a Prohibition And it was moved by Davenport that it might be granted and he cited one Tresham's Case 33 Eliz. where in such a case a Prohibition was granted after an Appeal Richardson There is no cause for any Prohibition but in respect of the costs Hutton said it was a double vexation and the party shall not have Costs for that Hitcham said they came too late to have a Prohibition for the Costs Richardson That is not like to the Probat of a Will where a thing may fall out Triable at the Common Law But there the Principal was tried at the Common Law for they had it as in right Hutton Seats in the generality are in the power of the Ordinary to dispose It is the Prescription which makes that triable at the Common Law and if Prescription be made there and it be found then he shall pay Costs Richardson All Disturbances appertain also to them if it be not upon the Statute of 5 Ed. 6. But if a Title be made there by Prescription it is meerly coram non Judice and if they cannot meddle with the Principal it is not reason that they should tax Costs And a Prohibition was granted 22. H. Farmer of a Mannor A. and other Church-wardens Libel against him in the Ecclesiastical Court for a Tax for the reparation of the Church Henden moved for a Prohibition because that first the Libel was upon a custome That the Lands should be charged for Reparations which Customes ought to be tried at the Common Law And secondly Because the custome of that place is that Houses and Arable Lands should only be taxed for the Reparations of the Church and Meadow and Pasture should be charged with other Taxes But the whole Court on the contrary First although that a Libel is by a Custome yet the other Lands shall be dischargeable by the Common Law but the usage is to alledge a Custome and also that Houses are chargeable to the Reparations of the Church as well as Land And thirdly that a custome to discharge some Lands is not good Wherefore a Prohibition was granted Note that where a man sued in the Ecclesiastical Court prescribing to have a Seat in a Church ratione Messuagii where he inhabited upon the motion of Serjeant Henden a Prohibition was granted for it is a Temporal thing Note By Coke Chief Justice That the keeping of a church-Church-Book for the age of those which should be born and christned in the Parish began in the 30th year of Henry the Eighth by the instigation of the Lord Cromwel A man was indicted upon the Statute of Ed. 6. That in the Church-yard such
Custome or the Parson by virtue of a Canon shall chuse the Churchwarden and whether Prohibition lies in that case 22. Whether Churchwardens as a Corporation may prescribe to take Lands to them and their Successors to the use of the Church 1. CHurchwardens or Guardiani Ecclesiae are certain Officers Parochial annually elected or chosen by and with the consent of the Minister and a select number of the chief Parishioners according to the Custome of the place to look to the Church and Church-yard and to take care of the concernments thereof and of such things as appertain thereto as also to observe and have an inspection into the Behaviour Lives and Conversation of their Parishioners touching such faults and disorders as are within the cognizance and censure of the Ecclesiastical Jurisdiction These Officers are a kind of Corporation enabled to sue and be sued for any matters or things belonging to the Church or Poor of their Parish and have as their Assistants certain Side-men or Questmen who according to the custome of the Parish are yearly likewise chosen to assist the Churchwardens in the Enquiry and presenting such offenders to the Ordinary as are within the Ecclesiastical cognizance and censure aforesaid for which they are not to be sued or troubled at the Law by any such Offenders so presented as aforesaid nor are they obliged to Present oftner than twice a year except it be at the Bishop's Visitation yet they may present as oft as they shall think meet if good occasion shall so require but they may not on pain of being proceeded against by their Ordinaries as in cases of wilful Perjury in Courts Ecclesiastical willingly and wittingly omit to present such publick Crimes as they knew to have been committed or could not be ignorant that there was then a publick same thereof Moreover the Old Churchwardens are to make their Presentments before the New be Sworn till which time the Office of the old continues the usual time for the New Churchwardens to enter upon their Office is the first week after Easter or some week following according to the direction of the Ordinary before which the old Churchwardens shall exhibit the Presentments of such enormities as happened in their Parish since their last Presentments and shall not be suffered to transmit or pass over the same to those that are newly chosen By the Ninetieth Canon the choice of Churchwardens Questmen Sidemen or Assistants is to be yearly made in Easter-week and that by the Joynt-consent of the Minister and the Parishioners if it may be otherwise the Minister to chuse one and the Parishioners another who at their years end or within a month next after shall in the presence of the Minister and the Parishioners make a just Account of what they have received and disbursed for the use of the Church and shall deliver over what remains in their hands belonging to the Church unto the next Churchwardens by Bill Indented 2. One brought Action on the Case against Churchwardens for a false and malicious Presentment of him in the Spiritual Court and found for the Defendants They prayed double Costs on the Statute of 1 Jac. But Jones Crook and Berkley Justices denied it for that the Statute doth not extend to Churchwardens for things of their office in Ecclesiastical Causes They have their Action of Trespass at the Common Law for such things taken away out of the Church as belonged to the Parishioners in reference to the Church And the Release of one of the Churchwardens is no Bar in Law to the other If one take away the Chalice or Surplice out of the Church Action of Trespass lieth against him at Common Law and not in the Ecclesiastical Court So if one lay violent hands on an Ecclesiastical person an Action lies in the Ecclesiastical Court but he shall not there sue for dammages If the Organs or Parish-Bible or the like be taken away out of the Church the Action lies at the Common Law and not in the Spiritual Court for the same for the Churchwardens may have their Action at Common Law in that case But if the Parson take away out of the Church the Scutcheon or Banner of some person deceased his Widow if she did put it there and it be taken away in her life time may have her Action of Trespass at Common Law or after her decease the Heir may have the same Action 3. Trespass brought by the Churchwaâ—dens of F. and declared That the Defendant took a Bell out of the said Church and that the Trespass was done 20 Eliz. It was found for the Plaintiffs It was moved in Arrest of Judgment that it appears by the Declaration That the Trespass was done in the time of their Predecessors of which the Successor cannot have Action and Actio personalis moritur cum persona Vid. 19 H. 6. 66. But the old Churchwardens shall have the Action Coke contrary and that the present Church-wardens shall have the Action and that in respect of their Office which the Court granted And by Gawdy Churchwardens are a Corporation by the Common Law Vid. 12 H. 7. 28. by Frowick That the New Churchwardens shall not have an Action upon such a Trespass done to their Predecessors Contrary by Yaxley Vid. by Newton and Paston That the Executors of the Guardian in whose time the Trespass was done shall have Trespass 4. It is the duty of Churchwardens not only to take care of the Concernments of the Church and to present Disorders as aforesaid but also to provide Bread and Wine against the Communion the Bible of the largest Volume the Book of Common Prayer a decent Pulpit a Chest for Alms Materials for repairing the Church and fencing the Church-yard and the like all at the Parish-charge and shall what in them lies prevent the prophanation of Churches by any usage thereof contrary to the Canons It was agreed by the Court in Robert's case That a Tax for the Church cannot be made by the Churchwardens only Hetley's Rep. 5. In Butt's Case Moore Serjeant moved at Court for a Prohibition because where the custome of the Parish or Village was that the Parishioners have used to elect two Churchwardens and at the end of the year to discharge one and elect another in his room and so alternis vicibus c. By the New Canon now the Parson hath the Election of one and the Parish of the other and that he that was elected by the Parishioners was discharged by the Ordinary at his Visitation and for that he prayed a Prohibition Et allocat as a thing usual and of course For otherwise by Hubbard the Parson might have all the Authority of his Church and Parish The like Case to this we have elsewhere reported viz. The Parson and Church-wardens in London by the Custome are a Corporation and the Parishioners time out of mind c. have used at a
certain day in the Vestry to Elect Churchwardens They elect A. and present him to the Archdeacon who refuses A. and forbids him to exercise the Office of a Churchwarden because the Parson pretended that by the new Canon the Election of a Churchwarden belonged to him to dispose c. and exercise the Office of Churchwarden And A. is sued ex Officio in the High Commission-Court amongst other things touching that A. prays a Prohibition because the Canon does not take away the Custome Also it would be very mischievous if the Parson should Elect whom he please to be Churchwarden And the Parson and Churchwardens being a Corporation then they may dispose of the Goods and Lands of the Parish as they please Coke Chief Justice said That a Convocation hath power to make Constitutions for Ecclesiastical Things or Persons 20 H. 6. 14. 21 E. 4. 46. But they ought to be according to the Law and Custome of the Realm And they cannot make Churchwardens that were Eligible to be Donative without Act of Parliament and the Canon is to be intended where the Parson had nomination of a Churchwarden before the making of the Canon And now Rule was given for a Prohibition if cause be not shewn to the contrary c. ex motione Serjeant Foster 6. As touching Sidemen otherwise called Questmen they are only such as are annually chosen according to the custome of every Parish to assist the Churchwardens in the enquiry and presenting such Offenders to the Ordinary as upon such Presentments are prosecuted and punishable in the Ecclesiastical Court 7. In an Action of Trespass against the Churchwardens where by the Statute of 43 Eliz. cap. 2. if for a Distress taken by them for money for the relief of the Poor Trespass be brought against them and Verdict pass for them the Defendants shall recover treble Dammages with their Costs And that to be assest c. by the same Jury or by Writ of enquiry of Dammages it was Resolved 1 That the Costs shall not be trebled but only the Dammages 2 That the treble Dammages are well assest by the Jury although that it be not done by the Court. Because the words are by the same Jury to be assest and not Dammages to be trebled by them 8. Upon an Habeas Corpus the Case was return'd to be That H. being Churchwarden refused to take the Oath of Enquiry of the 39 Articles touching Ecclesiastical matters And the warrant of the Commitment of the High Commissioners was to retain him and until we shall give order for his delivery By the Court c. Vntil we that is All we 12 Ed. 4. 3. a. 1 H. 7. 7. a. that is not good for if then any of them dies or be removed The party shall never be delivered by that means But it ought to be Until he shall be lawfully delivered But notwithstanding the Churchwarden was not out upon Bail because now also he refused to take that Oath But with a So far forth as the Articles do agree with the Law of God and the Land Note that such subscription or consent to the Articles 13 Eliz by a Parson is not good As it was Adjudged in 33 34 Eliz. B. R. Clark against Smithfield But afterwards the Church-warden was delivered by the High Commissioners 9. If the Parishioners have time out of mind used to chuse two Churchwardens yearly and to present them to the Archdeacon to be Sworn and he have used to Swear them and upon such election and presentation to him to be Sworn he shall refuse to Swear them a Writ may issue out of the King's Bench directed to the Archdeacon commanding him to Swear them Mich. 15 Jac. B. R. such Writ was granted for the Churchwardens of Sutton Valence in Kent for although there was a Canon made primo Jac. to the contrary yet that cannot take away the custome Tr. 15 Car. B. R. The like Writ was granted for the Churchwardens of the Parishes of Ethelborough and St. Thomas Apostles in London after divers motions and upon hearing of the Council on both sides Pasch 4 Car. B. R. Rot. 420. between Draper and Stone The like Writ was granted for the Churchwardens of Holberton in Devon If one be chosen Churchwarden and the Official of the Bishop refuse to Administer his Oath to him he shall have a Special Writ directed to the Official commanding him to give him his Oath Trin. 17 Jac. B. R. Bishop's Case Roll Rep. Note That an Attorney cannot be a Churchwarden if he be chosen and refuse and be sued for such a Refusal in the Ecclesiastical Court he may have a Prohibition Pasch 14 Car. 1. B. R. in Wilson's Case Trin. 15 Car. 1. B. R. Barker's Case Roll's Cases 2. par fo 272. 10. By the Injunctions of King Ed. 6. An. 1547. to all the Clergy as well as Laity of this Realm it is required That the Parson Vicar or Curate and Parishioners of every Parish within this Realm shall in their Churches and Chappels keep one Book or Register wherein they shall write the day and year of every Wedding Christning and Burial made within their Parish c. and therein shall write every persons Name that shall be so Wedded Christned or Buried And for the safe keeping the said Book the Parish shall be bound to provide of their common charges one sure Coffer with two Locks and Keys whereof the one to remain with the Parson Vicar or Curate and the other with the Wardens of every parish-Parish-Church or Chappel wherein the said Book shall be laid up Which Book they shall every Sunday take forth and in the presence of the said Wardens or one of them write or record in the same all the Weddings Christnings and Burials made the whole week before and that done to lay up the Book in the said Coffer as before And for every time that the same shall be omitted the party that shall be in the fault thereof shall forfeit to the said Church three shillings four pence to be employed to the Poor mens Box of that Parish 11. A man taxed by the Parish for Reparation of the Church was sued for the Tax by the Churchwardens in the Ecclesiastical Court Depending this Suit one of the Churchwardens released to the Defendant all Actions Suits and Demands the other Church-warden proceeded in the prosecution of the Suit and upon this the Defendant procured a Prohibition upon which matter shewed therein was a Demurr joyned Davenport moved for a Consultation The Question was where two Churchwardens sue in the Ecclesiastical Court for a Tax and one of them Release whether that Release shall barr his Companion or not It seem'd to him that this Release shall not be any barr to his Companion or impediment to sue for he said That Churchwardens are not parties interessed in the Goods of the Church but are a special Corporation for the benefit of the Church for which he cited
28. 2 He is an Ecclesiastical Officer and therefore proper to the Ecclesiastical Judge to have Jurisdiction of his Account And a Clerk of a Parish may sue in the Ecclesiastical Court for his Fees which are called Largitiones Charitativae vid. Register fo 52. for he is quodammodo an Officer Spiritual 21 E. 4. 47. But notwithstanding this a Prohibition was granted And Mountague Chief Justice said That a Churchwarden is not an Ecclesiastical Officer but Temporal employed in Ecclesiastical business Quaere Whether in that case the Minister may require him to render an Account and if he refuse Whether the Ecclesiastical Judge may compel him to Account 20. In Trespass by Churchwardens for taking a Bell out of the Church in the time of their Predecessors it was Adjudg'd That the Action did lie whereas it was declared ad damnum ipsorum which shall be supposed ad damnum Parochianorum 21. The Parishioners of the Parish of Al-Hallowes in London did prescribe to chuse their Churchwardens every year and they chose W. their Churchwarden The Parson by virtue of a late Canon that he should have the Election chose C. to be Churchwarden and procured him to be Sworn in the Ecclesiastical Court and a Prohibition was prayed for that it being a Special custome the Canons cannot alter it and if every Parson might have Election of the Churchwardens without the assent of the Parishioners they might be much prejudiced And so it was said That it had been Adjudg'd Pasch 5 Jac. in the case of the Parishioners of Walbrook in London 22. Although as aforesaid the Law doth make Church-wardens a kind of Corporation and enables them by that Name to take moveable Goods and Chattels and to sue and be sued at Law concerning such Goods for the use and benefit of their Parish yet they cannot take an Estate of Lands to them by name of Church-wardens nor can Churchwardens prescribe to have Lands to them and their Successors for they are no Corporation to have Lands but for Goods of the Church only CHAP. XIV Of Consolidation or Vnion of Churches 1. Consolidation what whence so called by whom and in what cases it may be made 2. The several kinds of Consolidation 3. The reasons and grounds thereof in the Law 4. The Requisites of Law in order to a Consolidation 5. How Consolidation is practised here with us and how in France 6. The division or distinction which the Canon Law makes of Consolidation 1. COnsolidation is the uniting combining or consolidating of two Churches or Benefices in one This cannot be done without the consent of the Bishop the Patron and the Incumbent This word thus used in an Ecclesiastical sense takes its denomination from what the Civil Law intends by consolidating the Interest of Possession and Property together which in that Law is called Consolidatio ususfructus proprietatis As when a man having the Usufruct of certain Lands by way of Rent Devise or otherwise doth then and at the same time purchase the Fee or Inheritance thereof hoc casu Consolidatio fieri dicitur Instit de Vsufruct § 3. So that in such Secular concerns according to that Law it properly signifies an Uniting of the possession occupation or profit with the Property of the thing so prepossessed which is sometimes called an Vnity of possession being a Joynt-possession of two Rights in the same person by distinct and several Titles By the Statute of 37 H. 8. cap. 21. it was lawful to make an Union or Consolidation of two Churches in one whereof the value of the one was not above six pounds in the King's Books of the First-Fruits and not above one mile distant from the other And by a late Statute of 17 Car. 2. cap. 3. it may be lawful for the Bishop of the Diocess Mayor Bayliffs c. of any City or Town Corporate and the Patron or Patrons to unite two Churches or Chappels in any such City Town or the Liberties thereof provided the Churches so united exceed not the annual value of an hundred pounds unless the Parishioners esire otherwise See the Statute at large 2. By this Consolidation or Union of Churches one of the Benefices becomes void yea extinct in Law Illud enim quod alteri unitur extinguitur neque amplius per se vacare dicitur DD. in c. cum accessâ—ssent de Constit Iudo Gomez in Regul Cancell Gall. de Trien possess q. 8. Jo. Andr. ad Clem. 1. de Supplen Neglig Praelat Again the Law in express terms says That intereunt Beneficia Vnione quando duo vel plura Beneficia in unum in perpetuum conjunguntur c. Sicut unire de Excess Praelat Of this Consolidation or Union the Law makes a threefold distinction or it may be done three several ways in construction of Law 1 When one and the same person is set or appointed over two Churches Can. temporis qualitas 16. q. 1. c. 1. Ne Sede vacante This with us amounts to a Plurality but not unto a Consolidation or Union 2 When one Church is so united to another that that which is United amittit jus suum eo utitur cui fit unio c. Recolentes § sin de Stat. Monac Lindw de Locat Conduct c. licet glo verb. Appropriationum 3 When Two or more Churches or Benefices are so united together as that the one is not subject to the other in which case Quod melius est retinetur arg c. Medicamentum de poenit dist 1. gl in regu 11. Cancell Innoc. 8. 3. There are several Causes or Reasons in the Law for this Consolidation Incorporation Annexation or Union of Churches and they are chiefly these five 1 An unlawful dividing of those Churches or Ecclesiastical Benefices precedent to their reintegration or intended reconsolidation as when such as had been formerly united were illegally divided Otho Constit Ne Ecclesia una c. cum sit ars gl ib. in ver Reintegrentur 2 For the better Hospitality and that the Rector might thereby be the better enabled to relieve the Poor 25. q. 2. posteaquam § his ita dict gl Otho Const 3 The overnighness of the Churches each to other in point of Scituation insomuch that one Rector may commodiously discharge the Cure of both by reason of the vicinity of the places Arg. extr de Praebend c. Majoribus 4. For or by reason of a want or defect of Parishioners as when one of the Churches is deprived of her people by some incursion of an Enemy or by some mortal Disease or Sickness or the like 11. q. 1. Vnio gloss ubi supra 5. For and by reason of the extream Poverty of one of the Parishes Extr. de eta qua eam te Extr. de Praebend vacant in fin vid. Tholos Syntagm jur lib. 17. cap. 5. nu 7. All which Causes or Reasons of Consolidation are enumerated out of the Canon Law by John dè Aton in his Gloss upon Cardinal
the Trees there growing and whether he hath any in the Bells or Ornaments of the Church 4. How he must be qualified that will be a Parson and who is rendred incapable of being such 5. Whether the Parson may demand any thing by Custome upon the Burial of one who dying in his Parish was Buried elsewhere 6. The words Parsonage Church Rectory frequently used Synonymously Pensions of Ecclesiastical cognizance 7. A Case in Law touching a Parsons Obligation for Resignation 8. Whether a Parsons acceptance of Rent makes his Predecessor's Lease good 9. Prohibition to the High Commissioners of York touching Articles exhibited before them against a Parson 10. A Case in Law touching the Confirmation of a Lease made by a Parson 11. Other Cases at the Common Law relating to Parsons 12. The Patron nothing to do in the Church during Plenarty 13. By what words a Resignation of a Parsonage may be or not 14. Whether the Resignation of a Donative may be to the Donor or how it may be departed with 15. Whether the Parson may appoint the Parish Clerk 16. A Bishop Archdeacon and Parson are Spiritual Corporations and have a double Capacity 17. All differences between Parsons and Vicars concerning the endowment of the Church are cognizable in the Ecclesiastical Court 18. Priviledges of the Clergy 1. THere is Parson Persona and Parson imparsonee Persona impersonata Parson properly signifies the Rector of a Parochial Church because during the time of his Incumbency he represents the Church and in the eye of the Law sustains the person thereof as well in Suing as in being sued in any Action touching the same Originally the Parson was he that had the charge of a Parochial Church and was called the Rector of that Church but it seems he is most properly so called that hath a Parsonage where there is a Vicarage Endowed And yet it is supposed that Persona is the Patron or in whom the Right of Patronage is for that before the Lateran Council he had Right to the Tithes in regard of his having erected and endowed the Church which he had Founded The Pastors of Parishes are called Rectors unless the Praedial Tithes be Impropriated and then they are called Vicars Quasi vice fungentes Rectorum and Curates are they who for certain Stipends assist such Rectors and Vicars that have the care of more Churches than one 2. Parson Imparsonee is he that as lawful Incumbent is in actual possession of a Church Parochial and with whom the Church is full be it Presentative or Impropriate and seems also to be that person to whom the Benefice is given in the Patrons Right for in some Books Persona impersonata is taken for the Rector of a Benefice Presentative and not Appropriated Yet Dyer saith That a Dean and Chapter are persons Imparsonees of a Benefice Appropriated to them and in another place plainly sheweth That Persona impersonata is he that is Inducted and in possession of a Benefice So that persona seems to be termed impersonata only in respect of the possession which he hath of the Benefice or Rectory be it Appropriate or otherwise by the Act of another 3. The Parson hath a Right unto the possession of the Church and Glebe having the Freehold in himself and may receive the profits Tithes Oblations Obventions and Offerings to his own use without the Patrons or Ordinaries consent who without his consent and agreement can do nothing during his incumbency to charge the Church or his Successors And not only is the Freehold of the Church in the Parson but he hath also the Right of the Church-yard and Glebe in him whereof if he be put out of possession or disseised he may have an Assize Or if he be Ejected he may have Trespass and so may the Vicar have against a Stranger if he be disseised of the Church-yard but not against the Parson himself For the Parson shall have an Assize or an Action of Trespass of such things as are annexed unto the Church or Glebe or for cutting down of the Trees or doing of Trespass in the Church-yard or Glebe the Right and interest thereof being in the Parson But if the Bells in the Steeple the Ornaments of the Church or the like be taken away in that case the Action doth not belong to the Parson but to the Churchwardens Notwithstanding the Parsons Right and interest as aforesaid yet he cannot cut down the Trees growing in the Church-yard of his Parish save for the Repair of the Church Or if a meer Stranger cut them down no Suit can be thereon in the Spiritual Court for Dammages for if Suit be there commenced in that Case for Dammages no Consultation shall be Nor can the Parson have Action for Seats in the Church taken away by a Stranger because they are not fixed to the Freehold but the Churchwarden may have Action in that case 4. No man can be a Parson until he be a Priest in Orders which he cannot be until he hath attained the Age of 24 years Consequently therefore he must be of that Age ere he can be a Parson and is commonly called when Inducted into a Church the Rector thereof and shall be accounted Proprietor of the Tithe of the Parish whereto the Church belongs if the contrary be not shewed A man that is guilty of some Crime that is malum in se as Murther Perjury Forgery or the like though not convict thereof yet if the Truth thereof be certainly known to the Ordinary may be rejected by him from being Pâ—rson of a Church if thereunto presented by the Patron Otherwise it is in case he be guilty only of malum prohibitum and not malum in se as to play at unlawful Games to frequent Taverns and Alehouses or the like Also the Son is by the Canons rendred incapable of succeeding his Father in his Parsonage And if a man presented to a Living be not in Orders the Bishop may refuse him but not for want of a Testimonial for if any person shall be Admitted Instituted and Inducted into any Living before he is in Holy Orders his Admission Institution and Induction are void by the late Act of Uniformity whereby his Subscription and thereof the Bishops Certificate also his Reading the 39 Articles of Religion in the same parish-Parish-Church on some Sunday or the Lord's-day tempore Divinorum within two months next after his Induction the declaration of his unfeigned Assent and Consent thereunto his Reading the Book of Common Prayer or Service appointed for the Church that day within two months next after his Induction with the declaration also of his Assent and Consent to all things therein contained are required otherwise the Church becomes void and the Parson will be put to the proof of all the Premisses in case â—e Sue the Parishioner refusing to pay his Tithe if he shall insist thereon
afterwards the Parishioners sow certain Lands with Saffron or the like the Parson shall not have the Tithe of the Saffron but the Vicar By Coke so Adjudged It hath alsâ— been Resolved It a Vicar be Endowed of the Small Tithes by Prescription and afterwards the Land which had been Arable time out of mind is converted from Arable and there grow small Tithes the Vicar shall have them for his Endowment doth not go to the Land but Minutis Decimis in every place within the Parish And if a Vicar be endowed of the third part of all the Tithes of a Mannor he shall have Tithes as well of the Freehold as Copyhold for all makes the Mannor 9. The Parson and not the Patron of the Parsonage of Common right is Patron of the Vicarage for that it is derived out of the Parsonage Dubitatur 17 E. 3. 51. b. Contra 5 E. 2. Quare impedii 165. per Pass And if a Parson Appropriate create a Vicarage he shall be Patron thereof 17 E. 3. 51. he is both Parson and Patron So likewise if there be a Vicar and a Parson Appropriate the Ordinary and the Parson Appropriate may in time of vacation of the Vicarage re-unite the Vicarage to the Parsonage 10. If there be a Parsonage Appropriate in an Ecclesiastical person which never came to the King by the Statute of Monasteries and a Vicarage Endowed be there also and the Parson make a Lease of the Parsonage for Lives according to the Statute of 32 H. 8. The Vicar may in that case sue in the Ecclesiastical Court against the Parson and his Lessee who comes in by the Statute for Addition of Maintenance and the Ordinary may well compel them to increase his Maintenance for over all Appropriations such power of increasing the Vicar's Maintenance was reserved to the Ordinary and the Lessee comes in subject to that charge 11. If the Vicarage be diminished he shall have more of the Parsonage if what remains be not sufficient And if the Parsonage be impoverished and so decayed that the Parsonage by it self nor the Vicarage have sufficient to sustain them in that case the Vicarage shall determine and be restored to the Parsonage And to this the Doctors also do accord It hath been also held If a Parson Appropriate who is Patron of the Vicarage of the same Church by Agreement between him and the Ordinary present the Vicar to that Parsonage it is an union of the Parsonage and Vicarage but if a Lessee of a Parsonage present the Vicar to the Parsonage that shall not bind the Lessor And if there be a Vicarage and Parsonage and both void and one present his Clerk as Parson and he is so Inducted that shall unite the Parsonage and Vicarage again And in case that there be a Vicar Endowed who is Presentative and also a Parson Presentative it seems that the Parson hath not the Cure of Souls but the Vicar 12. Benefice Beneficium according to a general acceptation may comprehend all Ecclesiastical Livings be they Dignities or other as in the Statute of 13 R. 2. where they are divided into Elective and Donative But according to a more strict and proper acceptation Duarenus seems to give it an apt definition where he says it is Res Ecclesiastica quae Sacerdoti vel Clerico ob Sacrum Ministerium utenda in perpetuum concedatur Res because it is not the Ministry it self or the Office but rather the profit thence arising that is the Benefice Ecclesiastica because such profit is dedicated to God and his Church Sacerdoti c. because where a thing Ecclesiastical is granted to Lay-men it is not properly said to be a Benefice in this sense Ob Sacrum Ministerium because as Dedicated to God they are for the use of such as wait on his Altar Vtenda because they have rather the Usufâ—uit thereof than any Fee or Inheritance therein In perpetuum because they are annexed to the Church for ever Benefices with Cure of Souls seem most properly to be the Parsonages and Vicarages of Parochial Churches Sir H. Hobart Chief Justice in Colt and Glover's Case against the Bishop of Coventry and Lichfield says speaking of the Statute of 21 H. 8. cap. 25. That Bishopricks are not within the Law under the word Benefices So that if a Parson take a Bishoprick it avoids not the Benefice by force of that Law of Pluralities but by the Ancient Common Law as it is holden 11 H. 4. 60. 13. This word Beneficium Ecclesiasticum extendeth not only to Churches Parochial and the Benefices thereof but also to Dignities and other Ecclesiastical promotions as to Deanaries Archdeaconries Prebends c. Lindw de vit hon Cle. c. Exterior Sir Edw. Coke affirms that it appears in the Books of their Law That Deanaries Archdeaconries Prebends c. are Benefices with Cure of Souls but they are not comprehended under the Name of Benefices with Cure of Souls within the Statute of 21 H. 8. by reason of a special Proviso which they had been if no such Proviso had been added viz. Deans Archdeacons Chancellors Treasurers Chaunters Prebends or a Parson where there is a Vicar endowed 14. The Canonists do hold That an Ecclesiastical Benefice consists of the Sacred Function and of the Provinces thereunto belonging It is a distinct portion of Ecclesiastical Rights joyned to the Spiritual Function and until it be set apart separate and distinguished from Temporal Interests it is not properly an Ecclesiastical Benefice it is termed a portion in that it includes Fruits for a Benefice without Fruits cannot properly be so called 15. By the Jus Commune no man can at once and at the same time possess two Benefices with Cure of Souls as incompatible Tot. decis Rotae 445. tit de Praeb in novis Non datur Beneficium nisi propter Officium he that performs not the one ought to be deprived of the other C. fin de Rescript in 6. Can. Eos Cano. si quis Sacerdotum 81. distinct All pâ—cuniary Contracts all mercenary Trading and Merchandizing for Benefices is to be abhorred Ecclesiastical Benefices are of such a Spiritual Constitution that they are not capable of being bought or sold they fall not within the walk of human Commerce but ought to be conferr'd gratis And for Non-residence the Parson ought by the very Letter of the Law to be deprived of his Benefice and the Fruits thereof c. Vni de Cleric non residen in 6. Panormitan observes Six signs whereby an Ecclesiastical Benefice may be known As 1 That according to the Jus Commune it ought to be bestowed by one who hath a right and power in him so to do meaning the true Patron 2 That he who doth give or bestow it do reserve nothing thereof or therein for himself directly or indirectly 3 That it be given purely as a provision and maintenance for the Clerk 4 That it
may have a Writ of Right of Advowson but this Writ lieth not for him unless he claim to have the Advowson to him and his Heirs in Fee-simple which Advowson is valuable though the Presentment be not 18. The Queen seized of an Advowson being void the Ancestor of P. Presented and so gained it by Usurpation and then the Church being void he Presented again his Clerk dies and then the Queen grants the Advowson to Y. the Plaintiff who brings a Quare Impedit in the Queens Name supposing that this Usurpation did not put the Queen out of Possession It was argued That the Grant could not pass without special words because it is in the nature of a Chose in Action And Dyer Mead and Windham held That this Usurpation did gain possession out of the Queen and that she should be put to her Writ of Right of Advowson but the Opinion of Anderson Cheif Justice was clearly That the Queen was not out of Possession for he said That it was a Rule in our Books that of a thing which is of Inheritance the act of a Common person will not put the Queen out of possession But if she had only a Chattel as the next Advowson then perhaps it is otherwise But Mead and Windham very earnestly held the contrary relying on the Book of 18 E. 3. where Shard said That if the King had an Advowson in his own Right and a Stranger who had no Right happen to Present it puts the King out of Possession And the King shall be put to his Writ of Right as others shall The Defendant alledged Two Presentations in his Ancestor after the Title of the King and demanded Judgment if the King should have a Writ of Possession and the Plea was admitted to be good But after Pasch 25 Eliz. Judgment was given for the Queen for that she might very well maintain a Quare Impedit and the two Presentments did not put her out of possession 19. In a Quare Impedit by G. against the Bishop of L. and D. Incumbent The Case was That a Mannor with the Advowson Appendant was in the hands of the King and the Church became void and the King grants the Mannor with the Advowson If the Grantee shall have the Presentation or the King was the question All the Justices held clearly That the Avoidance would not pass because it was a Chattel vested And Periam said that in case of a Common person without question an Advowson appendant would not pass by such Grant for if the Father die it shall go to his Executor but if it be an Advowson in Gross in case of a Common person there is some doubt But in the Principal Case all the Judges held ut supra and said That so it was in 9 E. 3. 26. Quare Impedit 31. and in Dyer in the Case of the Church of Westminster But F. N. B. is contrary 33. N. 20. Of Advowsons there are three Original Writs whereof one is a Writ of Right the other two of Possession viz. Darrein Presentment and Quare Impedit And where an Advowson descendeth unto Parceners though one Present twice and usurpeth upon his Co-heir yet he that was negligent shall not be clearly barr'd but another time shall have his turn to Present when it falleth And by the Statute of 3 Jac. 5. every Recusant Convict is utterly disabled to Present to any Ecclesiastical Living or to Collate or Nominate to any Donative whatsoever the Advowson of every such Recusant being left to the disposition of the Universities of Oxford and Cambridge Also by the Statute of 13 E. 1. 5. it is directed what Action shall be maintained by him in the Reversion who is disturbed to Present after the Expiration of a particular Estate where there is also provided a Remedy for him in the Reversion or Remainder or others that have right where there is an Usurpation of an Advowson during any particular Estate And that Judgments given in the Kings Courts touching Advowsons shall not be avoided by Surmizes but by lawful means Likewise it is Statute-Law to hold That Advowsons shall not pass from the King but by Special words for when the King doth give or grant Land or a Mannor with the Appurtenances unless he make express mention in his Deed of Advowsons of Churches when they fall belonging to such Mannor or Land they are reserved to him notwithstanding the word Appurtenances albeit among Common persons it hath been otherwise observed nor is it lawful to purchase an Advowson during the dependancy of a Suit at Law concerning the same 21. If a Feme Covert be seized of an Advowson and the Church becomes void and the Wife dieth the Husband shall Present Where Parson and Vicar be Endowed in one Church and the Vicarage becomes void the question is To whom the Advowson of the Vicarge doth belong and who in that case shall be said to be the Patron of the Vicarage Whether the Patron of the Parsonage or the Parson It seems the Books at Common Law the Judges and the Court were divided in Opinion touching this point some of the Judges were of Opinion That the Advowson of the Vicarage appertains to the Parson Others that it belongs to the Patron Such as inclined that it is in the Patron gave for reason That the Ordinary cannot make a Vicar without the assent of the Patron 5 E. 2. Quare Impedit 165. puts the Case That although the Vicarage be Endowed with the assent of the Patron and Ordinary yet the Advowson of the Vicarage doth remain in the Parson because the same is parcel of the Advowson of the Parsonage And 16. E. 3. Grants 56. it was a question Whether by the Grant of the Advowson of the Church the Advowson of the Vicarage did pass and there it was said by Stone That it doth pass as Incident to the Parsonage And in regard the Vicar is as the Parsons Substitute and his Endowment originally only as a Maintenance for him in officiating the Cure for the case of the Parson whose Concern it is to see that he be a fit and able person sufficient for the Cure it should thence seem rational that the Parson should be his Patron to Present such an one to the Vicarage as shall be sufficient for the Cure for which reasons the Patronage of the Vicarage should seem rather to belong unto the Parson than to the First Patron of the Parsonage Appropriate 22. An Advowson cannot it seems at the Common Law be called a Demesne for that it is not such a thing as a man hath a Manual occupation or possession of as he hath of Lands Tenements and Rents whereof he may say in his Pleading That he was seized thereof in his Demesn as of Fee which he cannot say that hath only the Advowson of a Church because it lies not as the other in Manual occupation And therefore in the case
ad Familiae suae sustentationem convertere possit juribus sive institutis quibuscunque in contrarium non obstantibus Which Faculty or Dispensation was after ratified and confirmed by Letters Patents under the Great Seal of Ireland according to the Statute of 28 H. 8. c. 16. After this viz. 20 May An. 38 Eliz. Patrick Fynne the Incumbent died whereby the said Vicarage being void and so continuing void by the space of Six months whereby the Bishop had power to Collate thereunto by Lapse the said Bishop by virtue of the said Faculty or Dispensation adeptus est occupavit retinuit the said Vicarage perpetuae Commendae titulo and took the Fruits thereof to his own use until the 13 Febr. An. 1609. on which day the Bishop died After whose death the said Cyprian Horsefall having purchased the next Avoidance of that Vicarage Presented the said Wale who was Admitted Instituted and Inducted And afterwards the King Presents one Winch who being disturbed by the said Horsefall and Wale the King brought a Quare Impedit Whether the said Bishop when he obtained and occupied that Vicarage by virtue of that Faculty or Dispensation were thereby made compleat Incumbent thereof so as the Church being full of him no Title by Lapse could devolve to the King during the life of the Bishop was the Principal point moved and debated in this Case And in the Argument of this point which was argued at the Bar first by the Counsel at Common Law and then by two Advocates well versed in the Canon Law and at the Bench by all the Justices Two things were chiefly considered by those who argued for the Kings Clerk 1 Whether the Bishop could by any Law have and hold that Benefice without such Dispensation or Faculty 2 What effect or operation that Faculty or Dispensation shall have by the Law As to the First they held clearly for Law That a Bishop by the Ancient Ecclesiastical Law of England may not hold another Benefice with Cure in his own Diocess and if he hath such Benefice before his promotion to the Bishoprick that it becomes void when he is created a Bishop And this is the Ancient Law of England as is often said in the Bishop of St. David's Case 11 H. 4. 41 Ed. 3. 5. b. agrees therewith The Reason is for that the Bishop cannot visit himself and he that hath the Office of a Sovereign shall not hold the Office of a Subject at the same time as Hankeford said in the said Case of 11 H. 4. And on this Reason it is said in 5 Ed. 3. 9. That if a Parson be made a Dean the Parsonage becomes void for that the Dignity and the Benefice are not compatible So no Ecclesiastical person by the Ancient Canons and Councils could have Two Benefices with Cure simul semel but the first would be void by taking asecond And this was the Ancient Law of the Church used in England long before the Statute of 21 H. 8. cap. 13. which was made in Affirmance of the Ancient Law as appears in Holland's Case Co. par 4. And with this agrees the Books of 24 Ed. 3. 33. 39 Ed. 3. 44. a. N. Br. 34. l. And the Text of the Canon Law which is the proper Fountain of this Learning proves it fully Decretal de Praeben Dignit c. de multa Where it is said De multa providentia fuit in Lateranensi Concilio prohibitum ut nullus diversas Dignitates Ecclesiasticas vel plures Ecclesias Parochiales reciperet contra Sanctorum Canonum instituta c. Praesenti Decreto statuimus ut quicunque receperit aliquod Beneficium curam habens animarum annexam si prius tale Beneficium habebat eo sit ipso jure privatus si forte illud retinere contenderit etiam alio spolietur c. And with this agrees the Text in Decret Caus 21. q. 1. viz. In duabus Ecclesiis Clericus conscribi nullo modo potest So that it is evident that the Bishop could not by any Law have or retain that Benefice within his Diocess without a Dispensation which is Relaxatio Juris and permits that to be done which the Law had before prohibited It is to be observed That Commenda est quaedam provisio and therefore Gomez in Reg. de Idiomate saith That Commendare est Providere quod Commenda comprehenditur sub quibuscunque regulis de Provisione loquentibus And by the Canon Law the Consent of the Patron is requisite where a Benefice is given in Commendam Lib. 6. Decretal c. Nemo where the Gloss saith Ad Commendam vacabitur Patronus si qui alii ex tali Commenda laeduntur Also in Constit Othob de Commendis it is said expresly That Consensus Patroni ad Commendam requiritur The Canon Law holds these Commendams as very prejudicial and that in divers respects and therefore says That Experientia docet occasione Commendarum cultum Divinum minui Curam animarum negligi hospitalitatem Consuetam debitam non servari ruinis aedificia supponi c. 6. Extra cap Pastoris And whereas it is said of a Bishop That he is to be unius uxoris vir the Canonists expound it That he shall have but one Bishoprick or only one Cure for they say that per Commondam Bigamia contrahitur in Ecclesia Therefore it was well Resolved by that good and pious Bishop who when another Benefice was offered him to hold in Commendam said Absit ut cum Sponsa habeam Concubinam But for the clearer understanding of the nature and difference of these Commendams it is further to be considered That Commenda Ecclesiae is nothing else but Commendatio Ecclesiae ad Custodiam alterius and therefore Decret caus 21. q. 1. Qui plures the Gloss there saith Commendare nihil aliud est quam deponere This Commenda or Commendatio Ecclesiae is divers according to the nature of the Church and the Limitation or Continuance of the Commenda for a Commenda may be of a Church either Curatae or non Curatae and it may be either Temporanea viz. for a time certain as for Six months or Perpetua viz. during the life of the Commendatary A Church with Cure may not be given in Commendam unless upon evident necessity or the benefit of the Church viz. to supply the Cure till provision be made of a sufficient Incumbent And therefore by the Council of Lions it was provided That a Parochial Church should not be given in Commendam nisi ex evidenti necessitate vel utilitate Ecclesiae quod talis Commenda ultra semestris temporis spatium non duraret quod secus factum fuerit sit irritum ipso jure c. 6. Decretal c. Nemo But a Benefice without Cure may be given by the Canon Law for the subsistence of the Commendatary vel ad mensam In that sense the Canonists say That Commenda is quasi comedenda quia Ecclesiae quae
Law which will not be good if the Institution were not good All which was also the Opinion of the Court in the Case aforesaid for if the Question be whether Parson or no Parson which comprehends Induction it is Triable at the Common Law And although by the Institution the Church if Full against all persons save the King yet he is not compleat Parson till Induction for though he be admitted ad Officium by the Institution yet he is not entitled ad Beneficium till Induction 18. In an Ejectione Firmae brought by the Lessee of Rone Incumbent of the Church of D. it was found by Special Verdict that the King was the true Patron and that Wingfield entered a Coveat in vita Incumbentis he then lying in Extremis scil Caveat Episcopus nè quis admittatur c. nisi Convocatus the said Wingfield the Incumbent dies Naunton a Stranger Presents one Morgan who is Admitted and Instituted afterwards the said Wingfield Presents one Glover who is Instituted and Inducted and afterwards the said Rone procures a Presentation from the King who was Instituted and Inducted And then it came in◠question in the Ecclesiastical Court who had the best Right and there Sentence was given That the First Institution was Irrita Vacua Inanis by reason of the Caveat and then the Church being Full of the Second Incumbent the King was put out of possession and so his Presentation void But it was Adjudged and Resolved by all the Court for Rone For 1 it was Resolved That this Caveat was void because it was in the life of the Incumbent According to the Common Law if a Caveat be entered with the Bishop and he grant Institution afterwards yet it is not void After a Caveat entered Institution is not void by the Common Law Pasch 13 Jac. B. R. Hitching vers Glover Rol. Rep. Cro. par 2. 2. The Church upon the Institution of Morgan was Full against all but the King and so Agreed many times in the Books and then the Presentation of Glover was void by reason of the Super-institution and therefore no obstacle in the way to hinder the Presentation of Rone and therefore Rone had good Right And if the Second Institution be void the Sentence cannot make it good for the Ecclesiastical Court ought to take notice of the Common Law which saith That Ecclesia est plena consulta upon the Institution and the person hath thereby Curam animarum And as Doderidge Justice said He hath by it Officium but Beneficium comes by the Induction And although by the Ecclesiastical Law the Institution may be disannull'd by Sentence yet as Lindwood saith Aliter est in Angl. And Doderidge put a Case out of Dr. Student lib. 2. If a man Devise a Sum of Money to be paid to J. S. when he comes to Full age and he after sue for it in the Spiritual Court they ought to take notice of the Time of Full age as it is used by the Common Law viz. 21. and not of the time of Full age as it is in the Civil Law viz. 25. So in this case for when these Two Laws meet together the Common Law ought to be preferred And when the Parson hath Institution the Archdeacon ought to give him Induction Vid. Dyer 293. Bedingfield's Case cited by Haughton to accord with this Case 19. By the Court That if an Archdeacon make a general Mandate for the Induction of a Parson viz. Vnivers personis Vicariis Clericis Literatis infra Archidiaconat meum ubicunque Constitut That if a Minister or a Preacher who is not resident within the Archdeaconry makes the Induction yet it is good And the Opinion of four Doctors of the Civil Law was shewn in the Court accordingly upon a Special Verdict 21. In the Case of Strange against Foote the sole Point upon the Special Verdict was If one Prideoux being Admitted and Instituted to a Prebendary with the Cure 4 Eliz. be being but Nine years of age notwithstanding the Statute it is meerly void Note 4 H. 6. 3. That if a Feme who is an Infant under 14 years hath issue it is a Bastard 21. It is said at the Common Law that after Induction the Admission and Institution ought not to be drawn into question in the Ecclesiastical Court for they say That after Induction the Ecclesiastical Law may not call into question the Institution That by Institution the Church is full against Common persons but not against the King and that by Induction the King may be put out of possession And in the Case between Rowrth and the Bishop of Chester it was Resolved That after an Induction an Institution is not to be examined in the Ecclesiastical Court but by a Quare Impedit only But yet the Justices if they see cause may write to the Bishop to Certifie concerning the Institution 22. Two Patrons pretended Title to Present the one Presented and the Bishop refused his Clerk He sued in the Audience and had an Inhibition to the Bishop and after he there obtained Institution and Induction by the Archbishop Afterwards the Inferior Bishop Instituted and Inducted the Clerk of the other for which Process issued out of the Audience against him he upon that prayed a Prohibition and a Prohibition was awarded as to the Incumbency because the Ecclesiastical Courts have not to meddle with Institution and Induction as was there said for that would determine the Incumbency which is triable at Common Law 23. In a Prohibition prayed to the Ecclesiastical Court the Case appeared to be this viz. Holt was Presented Instituted and Inducted to the Parish-Church of Storinton afterwards Dr. Wickham draws him into the Ecclesiastical Court questioning of him for some matters as touching the validity of his Induction and upon this a Prohibition was by him prayed Williams Justice A Prohibition here in this Case ought to be granted this being directly within the Statute 45 Ed. 3. cap. 3. for here the very Title of the Patronage comes in question with the determination of which they ought not to intermeddle also matter of Induction and the validity thereof is determinable at the Common Law and not in the Ecclesiastical Court and therefore a Prohibition ought to be granted and the whole Court agreed with him herein and therefore by the Rule of the Court a Prohibition in this Case was granted CHAP. XXV Of Avoidance and Next Avoidance as also of Cession 1. What Avoidance is how Twofold 2. The difference in Law between Avoidance and next Avoidance 3. How many waies Avoidanee may happen what Next Avoidance is The word Avoidance falls under a double Acceptation in Law 4. The Next Avoidance may not be granted by a Letter it cannot be granted but by Deed. 5. Grant of a Next Avoidance by the Son Living the Father Tenant in Tail is void 6. How Avoidance may be according to the Canon Law which
or not doth properly belong to the Common Law And Jones cited a Judgment in William's Case according Note that by the Constitution of Otho and Othobon That Institution and Induction is voidable in the Ecclesiastical Court if no Prohibition be prayed 10. In the Case of the King against the Archbishop of Canterbury and Thomas Prust Clerk in a Quare Impedit was vouched Holland's Case in Cok. 41 51. to shew that there is a difference between Voidance by Act of Parliament and Voidance by the Ecclesiastical Law For before the Statute by the taking of the second Benefice the first Church was void but not so that the Lapse incurred upon it And as for Pluralities the words of the Statute are That it shall be void as if he were naturally dead and therefore if a man takes a second Benefice and dies Issue ought to be taken whether the first vacavit per mortem And it is found That Not For it was void before the death of the Incumbent 11. P. was Collated Instituted and Inducted by the Bishop of Exeter Patron Dr. Hall the Bishop Collates another pretending that the first Incumbent had taken a second Benefice whereupon the first was void and revera the first Incumbent had a Dispensation And notwithstanding that the Bishop Sequesters the Benefice and upon Discovery thereof to the Court a Prohibition was granted 12. In Bene's Case against Trickett the point was Whether the value of the Church for Plurality by 21 H. 8. shall be eight pounds according to the Book of Rates and Valuation in the First-fruits Office or according to the very value of the Church per Annum Atkinson That according to the value of the King's Books For the Parliament never thought that any man could live upon so little as eight pounds per Annum which is not six pence a day Note 38 E. 3 4. and Dyer 237. but by the Court That it shall be according to the very value of the Church in yearly value in the Statute of 21 H. 8. And by Gawdy and Fenner to whom agreed Yelverton That the eight pound shall be accounted according to the very value of the Church per Annum 13. In a Quare Impedit it was doubted If A. having two Benefices with the Cure by Dispensation and then takes a third Benefice with Cure If now both the first Benefices or the first of them only be void Hieron said That it was adjudged that both of them should be void 14. If the King grant a Licence to an Incumbent to be an Incumbent and a Bishop and he afterwards be made a Bishop the nâ—â—ice is not void Henry de Blois Brother to King Stephen was Bishop of Winchester and Abbot of Glassenbury 15. It seems that at the Common Law if an Incumbent had taken a second Benefice with Cure neither the first nor the second had been void But by the General Council of Lateran held in the year 1215. it was ordained That if a man took divers Benefices with Cure of Souls the first should be void unless he had a Dispensation from the Pope This Constitution of the said General Council is ratified and confirmed in Pecham's Constitutions at a Provincial Synod held in this Realm Also if an Incumbent take a Second Benefice with Cure whereby the first is void by the Canon as to the Patron so as he may Present before any Deprivation yet until Deprivation it is not void as to a Stranger for if he sues a Parishioner for Tithes the taking of a second Benefice is not any barr to him Trin. 13. Car. B. R. per Justice Bark which Justice Yelverton in his Argument in Prust's Case said That it had been so Adjudged And if an Incumbent of one or more Benefices with Cure be consecrated Bishop all his Benefices are ipso facto vold upon which Voidance the King and not the Patron is to Present to the Benefices so void by Cession and any Dispensation after Consecration comes too late to prevent the Voidance for the Pope could formerly and the Archbishop now can sufficiently Dispense for a Plurality by the Statute of 25 H. 8. The chief Text of the Canon Law against Pluralities seems to be that of the Decretal de Praebend Dign c. de multa where it is said That in Concilio Lateranensi prohibitum ut nullus diversas Dignitates Ecclesiasticas vel plures Ecclesias Parochiales reciperet contra Sanctorum Canonum Instituta c. Et praesenti decreto statuimus ut quicunque receperit aliquod Beneficium curam habens animarum annexam si prius tale beneficium habehat sit ipso jure privatus si forte illud retinere contenderit etiam alio spolietur c. Consonant to which is that in Decret Caus 21. q. 1. In duabus Ecclesiis Clericus conscribi nullo modo potest In the Case of a Commendam adjudged in Ireland the Original and Inconvenience of Dispensations and Non obstante's was well weighed and considered where it was said That the Non obstante in Faculties and Dispensations was invented and first used in the Court of Rome for which Marsil Pat. pronounced a Vae against the said Court for introducing that clause of Non obstante That it was an ill President and mischievous to all the Commonwealths of Christendom For the Temporal Princes perceiving that the Pope dispensed with Canons in imitation thereof have used their Prerogative to dispense with their penal Laws and Statutes when as before they caused their Laws to be religiously observed like the Laws of the Medes and Persians which could not be dispens'd with See the Case of Penal Statutes Co. 7. fo 36. h. For this Reason it was that a Canonist said Dispensatio est vulnus quod vulnerat jus commune And another saith That all abuses of this kind would be reformed Si duo tantum verba viz. Non obstanie non impediâ—ent And Matth Par. in Anno Dom. 1246. having recited certain Decrees made in the Council of Lions which were beneficial for the Church of England Sed omnia baec alia says he per hoc repagulum Non obstante infirmantur 16. In a Quare Impedit the Case was Dr. Playford being Chaplain of the King accepted a Benefice of the Presentation of a common person and he after accepted another Presentation of the King without any Dispensation both being above the value of eight pounds per Annum The Question was Whether the first Benefice was void by the Statute of 21 H. 8. cap. 13. For if that were void by the acceptance of the second Benefice without Dispensation then this remains a long time void so that the King was intituled to present by Lapse and presented the Plaintiff The Statute of 21 H. 8. provides That he who is Chaplain to an Earl Bishop c. may purchase Licence or Dispensation to receive have and keep two Benefices with Cure provided that
the King Confirms and afterwards he is Inducted to the Church of D. In this Case it was Adjudged That the Dispensation came too late because it came after the Institution for by the Institution the Church is full against all persons except the King and as to the Spititualties he is full Parson by the Institution 2. Resolved That admit the Church was not full by the Institution until Induction yet the Dispensation came too late for that the words of the Statute of 21 H. 8 of Pluralities are may purchase Licence to receive and keep two Benefices with Cure of Souls and the words of Dispensation in this case were recipere retinere and because by the Institution the Church was full he could not purchase Licence to receive that which he had before and he cannot retain that which he cannot receive 26. In the case of a Prohibition it was Resolved That by the Common Law before the Statute of 21 H. 8. the first Benefice was void without a Sentence Declarative so as the Patron might present without notice 2. That the Statute of 21 H. 8. of Pluralities is a general Law of which the Judges are to take notice without pleading of it 3. That the Queen might grant Dispensations as the Pope might in case where the Archbishop had not Authority by the Statute of 25 H. 8. to grant Dispensations because all the Authority of the Pope was given to the Crown by the Statute But yet the Statute as to those Dispensations which the Archbishop is to grant hath Negative words and the Bishop shall make the Instrument under his Seal CHAP. XXVII Of Deprivation 1. What Deprivation is and in what Court to be pronounced 2. The Causes in Law of Deprivation 3. In what Cases Deprivation ipso facto without any Declaratory Sentence thereof may be 4. A Cardinal 's Case of Deprivation by reason of Miscreancy 5. The Papal Deprivation by reason of Marriage 6. What the Law is in point of Notice to the Patron in case of Deprivation by reason of meer Laity or Nonage 7. The difference of operation in Law between Malum prohibitum and Malum in se and in what Cases of Deprivation Notice ought to be given to the Patron 8. Deprivation by reason of Degradation which Degradation at the Canon Law may be two ways 9. Cawdry's Case of Deprivation for Scandalous words against the Book of Common Prayer sentenced by the High Commissioners 10. Deprivation for Non-conformity to the Ecclesiastical Canons by the High Commissioners agreed to be good 11. Deprivation for not Reading the Articles of Religion according to the Statute of 13 Eliz. 12. Deprivation by the High Commissioners for Drunkenness 13. The Church is not void by the Incumbents being Deprivable without Deprivation 14. For an Incumbent to declare his Assent to the Articles of Religion so far as they agree with the Word of God is not that unfeigned Assent which the Statute requires 15. A Church becomes void presently upon not Reading the Articles and there needs not any Deprivation in that Case 16. A Case wherein a Sentence declaratorie for Restitution makes a Nullity in the Deprivation 17. An Appeal from a Sentence of Deprivation prevents the Church's being void pro tempore 18. Vpon Deprivation for meer Laity or Incapacity the Lay-Patron must have Notice ere the Lapse incurrs against him 19. An Incumbent Excommunicated and so obstinately persisting 40 daies is Deprivable 1. DEprivation is a discharge of the Incumbent of his Dignity or Ministery upon sufficient cause against him conceived and proved for by this he loseth the Name of his First Dignity and that either by a particular Sentence in the Ecclesiastical Court or by a general Sentence by some positive or Statute-Law of this Realm So that Deprivation is an Ecclesiastical Sentence Declaratory pronounced upon due proof in the Spiritual Court whereby an Incumbent being legally discharged from Officiating in his Benefice with Cure the Church pro tempore becomes void So that it is in effect the Judicial incapacitating an Ecclesiastical person of holding or enjoying his Parsonage Vicarage or other Spiritual promotion or dignity by an Act of the Ecclesiastical Law only in the Spiritual Court grounded upon sufficient proof there of some Act or Defect of the Ecclesiastical person Deprived This is one of the means whereby there comes an Avoidance of the Church if such Sentence be not upon an Appeal repealed The causes of this Deprivation by the Canon Law are many whereof some only are practicable with us in the Ecclesiastical Laws of this Realm and they only such as are consonant to the Statutes and Common Law of this Kingdom 2. All the Causes of Deprivation may be reduced to these Three Heads 1 Want of Capacity 2 Contempt 3 Crime But more particularly It is evident that the more usual and more practicable Causes of this Deprivation are such as these viz. a meer Laity or want of Holy Orders according to the Church of England Illiterature or inability for discharge of that Sacred Function Irreligion gross Scandal some heinous Crime as Murther Manslaughter Perjury Forgery c. Villany Bastardy Schism Heresie Miscreancy Misbelief Atheism Simony Illegal Plurality Incorrigibleness and obstinate Disobedience to the approved Canons of the Church as also to the Ordinary Non-conformity Refusal to use the Book of Common Prayer or Administer the Sacraments in the order there prescribed the use of other Rites or Ceremonies order form oâ— celebrating the same or of other open and publick Prayers the preaching or publishing any thing in derogation thereof or depraving the same having formerly been convicted for the like offence the not Reading the Articles of Religion within Two months next after Induction according to the Statute of 13 Eliz cap. 12. The not Reading publickly and solemnly the Morning and Evening Prayers appointed for the same day according to the Book of Common Prayer within Two month next after Induction on the Lord's Day the not openly and publickly declaring before the Congregation there Assembled his unfeigned assent and consent after such Reading to the use of all things therein contained or in case of a lawful Impediment then the not doing thereof within one month next after the removal of such Impediment a Conviction before the Ordinary of a wilful maintaining or affirming any Doctrine contrary to the 39 Articles of Religion a persistance therein without revocation of his Error or re-affirmance thereof after such Revocation likewise Incontinency Drunkenness and 40 daies Excommunication To all which might also be added Dilapidation for it seems anciently to have been a Dilapidator was a just cause of Deprivation whether it were by destroying the Timber-trees or committing waste on the Woods of the Church-Lands or by putting down or suffering to go to decay the Houses or Edifices belonging to the same as appears by Lyford's Case as also in the Bishop of Salisbury's Case
Conviction of Perjury in the Spiritual Court according to the Ecclesiastical Laws which although as aforesaid it be a just Cause of Deprivation must yet be signified by the Ordinary to the Patron so also must that Deprivation which is caused by an Incapacity of the party Instituted and Inducted for want of Holy Orders 3. By the Statute of 21 H. 8. if an Incumbent having a Benefice with Cure of Souls value 8 l. per ann take another with Cure immediately after Induction thereunto the former is void and void without any Declaratory Sentence of Deprivation in the Ecclesiastical Court in case the Second Benefice were taken without a Dispensation and of such Avoidance the Patron is to take notice at his peril And as Avoidance may be by Plurality of Benefices incompatible without Dispensation so also by not Subscribing unto and not reading the 39 Articles as aforesaid which by the Statute of 13 Eliz. c. 12. is a Deprivation ipso facto as if the Incumbent were naturally dead insomuch that upon such Avoidance there need not any Sentence Declaratory of his Deprivation but the very pleading and proof of his not Reading the said Articles is a sufficient Barr to his claim of Tithes without any mentioning at all his being deprived in the Ecclesiastical Court Yet Sir Simon Degge in his Parsons Counsellor putting the Question What shall be intended by the words Deprived ipso facto as whether the Church shall thereby immediately become void by the Fact done or not till Conviction or Sentence Declaratory modestly waives his own Opinion and says it is a Quaere made by Dyer what shall be intended by the words ipso facto Excommunicate for striking with a Weapon in the Church-yard albeit by the Canon Law which condemns no man before he be heard requiritur sententia Declatoria 4. Touching Deprivation by reason of Miscreancy the Cardinal who by the Bishop of Durham was Collated to a Benefice with Cure is it seems the standing President in which case it was Agreed that notwithstanding the Cardinal 's being deprived for his Miscreancy in the Court of Rome yet whether he were Miscreant or not should be tried in England by the Bishop of that Diocess where the Church was 5. Among the many Causes of Deprivation forementioned you do not find that of Marriage in the Priest which was anciently practicable as appears by what the Lord Coke reports touching an Incumbent in the time of King Ed. 6. who being Deprived in Queen Maries daies partly because he was a Married person and partly because of his Religion was restored again in the time of Queen Elizabeth In whose Case it was Adjudged That his Deprivation was good until it was voided by a Sentence of Repeal whereby he became Incumbent again by virtue of his First Presentation without any new Presentation Institution or Induction In those days it was held That the Marriage of a Priest was a sufficient cause to deprive him of his Benefice Mich. 4. Ma. Dy. 133. 6. In the Case where a meer Lay-man is Presented Instituted and Inducted he is notwithstanding his Laity such an Incumbent de facto that he is not Deprivable but by a Sentence in the Ecclesiastical Court but then the Ordinary is in that case to give Notice of such Deprivation to the Patron otherwise in case the Ordinary for that cause refused him when he was Presented by the Patron But where Non-age is the cause of Deprivation as when one under the age of 23 years is Presented Notice is to be given it having been Adjudged That no Lapse shall incurr upon any Deprivation ipso facto without Notice seeing the Statute of 13 Eliz. 12. says nothing of Presentation which remaining in force the Patron ought to have Notice 7. As in the Admission of a Clerk to a Benefice whatever is a Legal impediment will also be a sufficient cause of Deprivation so in reference to both the Law takes care to distinguish between that which is only Malum prohibitum and that which is Malum in se and therefore doth not hold the former of them such as frequenting of Taverns unlawful Gaming or the like to be a sufficient cause of a Clerks Non-admission to a Benefice or of his Deprivation being Admitted Otherwise if you can affect him with that which is Malum in se in which case Notice is to be given the Patron by the Ordinary of the Cause of his Refusal or Deprivation as also it is in case of Deprivation for not Subscribing or not Reading the 39 Articles of Religion according to the foresaid Statute of 13 Eliz. 12. which Notice ought to be certain and particular a general Notice of Incapacity not sufficing in which case an Intimation of such particular Incapacity affixed on the Church-door if the Patron be in partibus longe remotis or may not easily be affected therewith will answer the Law Vid. 18 Eliz. Dyer 346. 22 Eliz. Dyer 369. 16 Eliz. Dyer 327. Co. par 6. 29. Green 's Case 8. It is evident from the Premisses That a Deprivation from an Ecclesiastical Benefice will follow upon a Disgrading or Degradation from the Ecclesiastical Function or Calling for this Degradation is the Incapacitating of a Clerk for discharge of that holy Function for it is the punishment of such a Clerk as being delivered to his Ordinary cannot purge himself of the Offence whereof he was convicted by the Jury And it is a Privation of him from those holy Orders of Clerkship which formerly he had as Priesthood Deaconship c. And by the Canon Law this may be done Two waies either Summarily as by Word only or Solemnly as by devesting the party degraded of those Ornaments and Rites which were the Ensigns of his Order or Degree But in matters Criminal Princes anciently have had such a tender respect for the Clergy and for the credit of the whole profession thereof That if any man among them committed any thing worthy of death or open shame he was not first executed or exposed to Publick disgrace until he had been degraded by the Bishop and his Clergy and so was executed and put to shame not as a Clerk but as a Lay-Malefactor which regard towards Ecclesiasticks in respect of the dignity of the Ministry is observed by a Learned Author to be much more Ancient than any Papistical Immunity and is such a Priviledge as the Church in respect of such as once waited on the Altar hath in all Ages been honoured with 9. Robert Cawdry Clerk Rector of the Church of L. was deprived of his Rectory by the Bishop of London and his Collegues by virtue of the high Commission to them and others directed because he had pronounced and uttered slanderous and contumelious words against and in depravation of the Book of Common Prayer but the Form of the Sentence was That the said Bishop by and with the assent and
the Presentees Obligation to make a Resignation within Three months after the Patron so please may amount to Simony within the Statute of 21 Eliz. cap. 16. 19. A corrupt Contract for an Advowson may make the subsequent incumbent Simoniacal 20. To plead a Simoniacal Contract against a Bond it not so appearing is no admissable Plea 21. Masters of Chancery why so called and what they were anciently 22. Prihibition to the High Commissioners that would have put a Parson to his Oath touching Simony 23. In what Cases by reason of Simony the Patron may present after Six months and the Church said to be full as to one not to another 24. The injunction of King Ed. 6. against Simony 25. The form of the Oath of Simony 26. A Simoniacal Contract a good plea in Barr of Tithes 27. A further description in Law of the difference between Simoniacus and Simoniace Promotus 28. The Simoniace Promotus though ignorant of the Simony yet is deprivable in the Ecclesiastical Court 29. A Simoniacal Contract to which neither the Incumbent nor the Patron are privy may yet be Simony within the Statute of 31 Eliz. 30. Simony in it's utmost latitude is properly cognizable in the Ecclesiastical Court 31. Simony worse than Felony A Bond or Obligation good though entred into upon a Simoniacal Contract 32. Whether a Parson outsed for Simony may be after admitted to the same Benefice by the Kings presentation 33. A Person Simoniace promotus and ousted is by the express words of the Statute disabled to accept the same Benefice 34. Where Simony is pleaded in Barr of Tithes the Ecclesiastical Court shall take cognizance and no Prohibition lies 35. Whether the Father may buy the next avoidance and present his Son no Simony to buy an Advowson 36. To procure a Man in consideration of Marriage to be presented to a Benefice is Simony 37. Four observations on the Statute of 31 Eliz. cap. 6. by the Lord Coke 38. The extent of the words Present or Collate in the said Statute also the diversity in Law between a Presentation made by a Rightful Patron and an Usurper 39. What punishment by the Canon Law in case of Simony and the strange conceit of Rebuffus touching the same 40. The reasons why it hath its denomination from Simon Magus how many ways it may be committed according to the Canon Law 1. SIMONY from Simon Magus as Thomas Aquinas and others conceive Tho. Aquin. 20. 2. ae q. 100. art 1. 40. is according to Panormitan's definition thereof studiosa voluntas emendi vel vendendi aliquid Spirituale vel Spirituali annexum opere subsecuto Panor c. Nemo extra c. Or it may be described thus viz. Simony is when any person is presented or collated to any Benefice with Cure of Souls Dignity Prebend or Living Ecclesiastical c. or hath any such given or bestowed on him for or in respect of any Sum of Money reward payment gift profit or benefit directly or indirectly or for or by reason of any promise agreement grant bond covenant or other assurance for any Sum of Money reward payment gift profit or benefit whatsoever directly or indirectly or for or in respect of any such corrupt cause or consideration and every Presentation Collation and gift as also every Admission Investure and Induction thereupon is by the Statute utterly void and whereby the King his Heirs and Successors for that one turn only shall present collate c. And every person so giving or taking any such Sum of Money c. or taking or making any such promise c. doth forfeit and lose the double value of one years profit of every such Benefice Moreover the person so corruptly taking any such Benefice is thereupon and from thenceforth adjudged a person disabled in Law to hold and enjoy the same Benefice The like penalty of the said double value doth he incurr who for any Sum of Money reward c. directly or indirectly other than the Lawful Fees or for or by reason of any promise c. doth admit institute install induct any person to or in any Benefice with Cure c. Likewise if any Incumbent of any such Benefice shall corruptly resign or exchange the same or for or in respect thereof shall corruptly take directly or indirectly any pension sum of money or benefit whatever in such case both the giver and taker corruptly as aforesaid shall forfeit double the value of the sum so given taken or had whereof the one Moiety to the King c. the other to him that shall sue for the same in any Court of Record In which Statute of 31 Eliz. there is a Proviso that the censures Ecclesiastical shall not be restrained by any of the premises therein contained 2. They that Simoniacally buy Ecclesiastical Livings are compared to Simon Magus and they that sell them to Gehazi the Servant of Elisha if a person be possest of an Ecclesiastical Living by such Simony as whereunto he was not privy be is said to be in only Simoniace but if he be in any corrupt and Simoniacal Contract to which himself is a party and was privy and consenting thereunto in that case he is Simonaicus both which are inhibited by the Canons Ecclesiastical or Provincial Constitutions as also are the said corrupt and Simonaical selling as well as buying Ecclesiastical Livings Lindw e. Nulli liceat Ecclesiam c. Quia plerunq and that under penalties greater than the Temporal Laws did then or now will allow of And although by Simony in the vulgar acceptation of the word is commonly understood such corrupt Contract for Ecclesiastical Livings as aforesaid yet it hath a more extensive signification and that is a more proper sense which is by corrupt Ordinations of Ministers or for undue Licences to Preach for prevention whereof it is provided in the Statute aforesaid that if any person shall receive or take any Money Fee Reward or any other profit directly or indirectly or any Promise Agreement Covenant Bond or other assurance thereof Lawful Fees excepted for or to procure the Ordaining or Making of any Minister c. Or giving any Order and License to Preach shall forfeit Forty shillings and the Minister so made Ten pound beside the loss of any Benefice Living or other Ecclesiastical promotion after Induction that any such Minister shall within Seven years next after such corrupt entring into the Ministry accept and take the one half of which Forfeitures do go to the King c. the other to the Informer c. And the Patron in that case may present c. as if the party so inducted were naturally dead 3. The forfeiture of the double value of one years profit of the Church by way of penalty as is beforementioned is not to be computed only according to the valuation in the Kings Books in the First-fruit Office but according to the just and full annual value of the
he and his followers confessed that there was but one God only but they denied that there were three distinct Persons in that one Godhead They not only confounded but took away the Persons in the Trinity He was the Founder of the Photinean's Heresie They were called Patrispassiani because their Opinion imported that the Father suffered this Sabellius was for his Heresie excommunicated Samosatenus Bishop of Antioch he denied the Divinity of the Son of God affirming that Christ obtained the Name of the Son of God through his vertuous Behaviour and patient Suffering but that he was not naturally and truly the Son of God begotten of the Substance of the Father He abrogated the Psalms sung in the Church and hired Women there to sing his own Praises He was deposed by a Council at Antioch and excommunicated by all the Christian Churches in the World This was as some affirm not in the second but third Century Suturniani from one Saturnine of Antioch who with Basilides the Egyptian shared the Heresie of Simon in two parts this Saturnine held that his Disciples though living dissolutely might be saved by faith in him That the World and Man were Created by seven Angels praeter voluntatem Dei That Christ's Body was phantastical That there was one God of the Jews another of the Christians That at the Beginning a Good and a Bad man were created and that from the Good came good men and from the Bad came evil men That Marriage was a doctrine of Devils That men must abstain from things that had life That some of the Old Prophets were of the Devil and lastly they denied the Resurrection of the Body Secundiani of Secundus who was the Cheif Disciple of Valentinian the Heretick and held all his Heresies and allowed his Followers all filthiness of Life Seleuciani or Hermiani from Seleucius and Hermias they most abominably held that the Mass whereof God created the Elements was Coeternal with himself That the Angels not God created the Souls of Men. That Christ in his Ascention unclothed himself of the Flesh of Man and left it in the Globe of the Sun They received not Baptism by Water They denied the Resurrection of the Body supposing that by new Generations one succeeding another that is performed which in Scripture is written concerning the Resurrection Sethitae another Branch of Valentinian in Egypt They held that Angels begat men in the beginning They attributed to Seth the Honour due to our Saviour and denied the Resurrection of the Body Severus Successor to Apelles in the School of Marcion his Heresies were spread in East Syria They forbad the use of Wine rejected the Old Testament and the Prophets using Apocryphal Books of their own Denied the Resurrection Ascribed the Creation to Angels Detested Women as works of the Devil and used Magick Simon Magus said to be the Father of Hereticks he was Magician and an Hypocrite though Baptized by Philip the Apostle he spread his heresies at Rome where he grew so famous that the people erected an Image to him with this Inscription Simoni deo Sancto he most blasphemously affirmed himself to be true God That the World was Created by Angels he denied that Christ was either come or suffered he denied also the Resurrection of the Body he brought in the promiscuous use of women and used the company of one Helena whom he blasphemously gave out to be the Holy Ghost and that he begat Angels of her he taught his Disciples to worship Images his own Image and the Image of Helena who accompanied him from Asia to Rome he attempted to shew his power in flying and with a fall broke his Thigh and died miserably Iren. l. 1. c. 30. Aug. Epiph. Theod. Swenkfeldius born in Silesia he held that the outward Ministry of the Word and Sacraments was not necessary to eternal life because that by the illumination of Gods holy Spirit without the Ministry of the word men might be saved Tatian he held that Adam was damn'd called Marriage Fornication prohibited eating of flesh and drinking of wine he held many Gods denied Christ to be born of Davids Seed and condemned the Law of Moses he was Author of the Euchratitae Theodatus a Cataphrygian a poor Currier of Constantinople he held that Christ was but man and begotten by man besides which blasphemy he altered the Gospel according to his own fancy The Theodatiani denied the Divinity of Christ for when Theodatus having in time of persecution denied Jesus Christ was reproved for the same he answered that he denied not God but Man signifying thereby that Christ was only Man and not God manifested in our Nature Theopaschitae they held that the Divinity of Christ suffered This Heresie lasted long and was maintained afterward by Eutyches and Dioscorus Triformiani they held the Divine Nature one and the same in the three persons together but imperfect in the several persons Tritheitae they held that the Nature and Essence of God was threefold and not one and the same Johannes Grammaticus called Philoponus was the Founder of this heresie Valentinian an Egyptian he held plurality of Gods of both Sexes a multitude of Heavens and Eternities that Christ assumed nothing from the Virgin but passed through her as by a Pipe That he saved Souls only That the World was made by evil Angels he denied the Resurrection despised good works as unprofitable and lived of things sacrificed to Idols Against him Irenaeus wrote Five Books Valesii of one Valens an Arabian They held that none could be saved but such as made themselves Eunuches detested Marriage but allowed all filthy Acts yet gelded themselves Venustiani so called of their lascivious behaviour They were the same Hereticks that were called Paterniani from Paternus their Founder and held the same blasphemous and damnable Heresie Vigilantius an Apostate Monk he declined Churches and condemned Virginity and Spiritual exercises St. Hierome wrote against him 9. All these Hereticks do commonly pass under the notion of Christian Hereticks whereas in truth they may more properly be termed Antichristian yet they are styled Christian Hereticks in distinction to the Jewish Hereticks of which sort were the Pharisees the Sadduces the Hessees the Galilaeans the Hemerobaptists the Nazaraeans the Ossens the Sampsaeans the Massalians the Herodians the Genites the Merissaeans the Coelicolae the Ophitae or Serpentines the Caiani the Sethiani the Heliognosti the Frog-worshippers the Accaronites the Thamuzites the Samaritans with many others out of which or some of them came that cursed Brood of Hereticks which poysoned a great part of the World in the succeeding Generations The Pharisees from Phares division or separation because they would be accounted Separatists from all others attributed all things to Fate they believed that God disposed all things but the Starrs helped yet so as Free Will was left in the hand of Man They held Transmigration of good Souls or going into
the Clergy Reformation of Manners c. the Canons generally agree with those of the said Four preceding Councils At Constantinople in the year 871. in the Third year of Basilius Emperour of the East and under the Reign of Lewis 2. Emperour of the West a Council was Assembled by Basilius the Emperour against Photius the Patriarch of Constantinople in which Council he was deposed and Excommunicated and the Books he wrote against the Bishop of Romes Supremacy above other Bishops commanded to be burnt At this Council the Ambassadours of Pope Adrian the Second were present and great endeavours used to have all things therein framed to his content In this Council the Worshipping of Images was again allowed and it was Commanded That the Image of Christ should be held in no less reverence than the Books of the Gospel At Acciniacum in France a Council consisting of Ten Bishops was convened by Carolus Calvus In this Council Hincmarus Bishop of Laudunum was deprived of his Office and his eyes thrust out but Pope John the 9 th under the Reign of Carolus Crassus restor'd him to his Office because he appealed from his own Bishop and a Synod in his own Countrey to the Chair of Rome At Strasburgh in the year 899. and in the Eighth year of the Emperour Arnulphus 22 Bishops of Germany were assembled Many of the Constitutions of this Synod according to Caranza are in effect the same with the Canons of former Councils In the 46 th Canon of this Synod it is Ordained That a man whose Wife is Divorced from him by reason of her Adultery shall not marry again during her life At Ravenna in the year 903. a Council of 74 Bishops was convened whereat was present Carolus Simplex King of France In this Council the Acts of Pope Formosus had allowance and the Decrees of Stephanus the Sixth were condemned and burnt At Rhemes under the said Carolus Simplex a Council was assembled for correcting the abuses of Church-Rents a great part whereof under pretence of the Kings necessary occasions was converted by some Courtiers to their own use against which Fulco Archbishop of Rhemes declaring his mind freely in Council was slain by Vinemarus one of the Oppressors at Court the like not having been known since the Second Council of Ephesus called a Council of Briggandry wherein Flavianus Bishop of Constantinople was slain At Rome in the time of Otto the First a great Council was assembled against Pope John the 13 th or as others affirm Pope John the 12 th In this Council the Pope was accused of Ordaining a Deacon in a Stable of Simony of Adultery of making the Sacred Palace like a Baudy-House of Murthering Benedict his Spiritual Father of Gelding John an Archdeacon of raising Fire of drinking to the Devil of distributing the golden Crosses and Chalices to his Harlots of imploring help from Jupiter and Venus in his playing at Dice and of his not Signing himself with the Sign of the Cross At Canterbury in the year 975. a Council was Assembled when Dunstanus was Bishop thereof The Question that was most in debate at this Council was concerning Marriage in relation to such persons as were in Spiritual Orders the which Dunstanus whether his Crucifix spake True or False if it spake at all declared his Judgment against At Constantinople under the Reign of Nicephorus Phocas Emperour of the East was a Council convened by reason of Nicephorus his taking to wise Theophania the Reflict of his Predecessoâ— Romanus having been Witness in Baptism to Theophania's Children the which so displeased Polyeuchus Patriarch of Constantinople that for the same he debarr'd the said Emperour from Holy things and so in effect Excommunicated the Emperour of the East At Rhemes An. 992. in the Ninth year of the Emperour Otto and in the Fourth of Hugo Capeto King of France a Council was convened against Arnulphus Bishop of Rhemes for countenancing Duke Charles who claimed the Crown as next Heir being Brother to Lotharius Whereupon Arnulphus was deposed and denuded of his Episcopal Dignity who yet afterwards was restored to it again by another Council at Rhemes call'd by Pope John the Thirteenth At Arles in the year 1026. and under the Reign of the Emperour Henry the Second a Council was assembled in order to the appeasing of the wrath of God and his indignation at that time manifested against the greatest part of the whole World At Halingnustat in the year 1023. under the Emperour Henry the Second a Council was Assembled wherein great endeavours were used to make a Conformity and Unity in observation of Ecclesiastical Rites and Ceremonies in Germany wherein Laws were made concerning the degrees of Consanguinity At Triburia An. 1030. under the Reign of the Emperour Conrade the Second a Council was Assembled at which the Emperour was present wherein were made some Constitutions concerning Fasting At Sutrium in Italy An. 1046. under the Reign of the Emperour Henry the Third was an Assembly by the Emperour for the pacifying that grand Schism in the Roman Church when Three Popes at once contended for the Popedom viz. Benedict the Ninth Silvester the Third and Gregory the Sixth all which the Emperour and the Council dispoped and chose one Sindigerus Bishop of Bamberg to be Pope whom they called Clemens the Second At Rome about the year 1050. Leo the Ninth assembled a Council at Rome against Berengarius Deacon at Angiers who disapproved the Opinion of Transubstantiation viz. That after the words of Consecration the substance of Bread evanished and the substance of the Body and Blood of Christ was in the Sacrament under the Accidents of Bread and Wine whose Letters touching this matter not finding Lanfrankus Bishop of Canterbury to whom they were directed in Normandy were delivered to some of the Clergy who opening the same sent them to Pope Leo the Ninth whereupon this Council at Rome was assembled wherein the said Letters of Berengarius being read they condemned him though absent as an Heretick At Vercellis the same year Leo the Ninth assembled another Council against Berengarius At Tours in the year 1055. Pope Victor the Second Assembled a Council against Berengarius who there answered That he adhered to no particular Opinion of his own but followed the Common Doctrine of the Universal Church At Rome in the year 1059. Pope Nicholaus the Second assembled a Council of 113 Bishops against Berengarius who submitting himself to the Pope and Councils Correction they prescribed him a Form of Renunciation of his Error so there called which he accepted and recanted yet afterwards published a Refutation of the same Doctrine In this Council it was Ordained That the Election of the Pope should belong to the Colledge of Cardinals At Millan An. 1060. Pope Nicholaus the Second by Petrus Damianus held a Council wherein the Two chief points debated were touching
Bruis and Arnaldus of Brixia the Disciple of Peter Abullard who rejected Pedobaptism Church-buildings and the Adoration of the Cross It proclaimed these Lay-persons to be Sacrilegious and incurr the danger of eternal damnation who receive Tithes and deprived Usurers of Christian Burial and Cursed them to Hell The Third Lateran Council was under Frederick the First and Alexander the Third by an assembly of 30 Bishops who made up the difference between this Alexander and one Octavianus and his Successors Gindon and John a German taking up the quarrel with him which Dissentions divided Europe into parties Also the Albigenses under the name of Cathari Publicans Paterini taking their Rise from the Waldenses were here condemned Lombard who affirmed that Christ according to his Manhood was nothing was Censured Ordinations made by Schismaticks wholly abrogated Private Oratories and Priests for Leprous persons appointed and the manner of Visitations by Archbishops Bishops and Deacons prescribed The Fourth Lateran Council was under Frederick the Second and Innocentius the Third with 400 Bishops and 80 other Fathers This Council rejected the Book of Joachimus the Abbot against P. Lombard established Transubstantiation Auricular Confession and the Papal Absolution of Subjects from their Allegiance It exacted an Oath from Secular Magistrates to expel Hereticks nominated by the Pope This Council by Indulgencies encouraged those that went with Crosses for recovery of the Holy Land under Godfrey of Bulloigne prohibited Plurality of Benefices and Sale of Reliques At Papia in the year 1160. the Emperour Frederick the First convened a Council occasioned by the difference between Alexander 3. and Victor the 4 th for the Popedom after the death of Adrian the Fourth In this Council Victor the Fourth was declared Pope Whereupon Alexander the Third convened a Council at Cleremont in which he Cursed the Emperour Pope Victor and their Adherents At Rome in the year 1180. a Council of One hundred and eighty Bishops was convened by the Popes Authority Their Consultations and Canons were touching the Form of Electing Popes for the future also touching Ecclesiastical Dignities and Discipline touching Excommunication Residence Continency Plurality Patronage Presentations Festivals Usurers Jews and Sarazens and the like At Rome in the year 1215. Pope Innocentius the Third Convened a General Council wherein the Doctrine of Transubstantiation was ratified This was another of the Lateran Councils At Lions Two Councils the First called by Frederick the Second and Innocentius the Fourth about the year 1244. In this Council the Emperour that deserved so well of the Christian Church against the Infidels was after Four Excommunications deposed by the Pope prohibiting that any should name him Emperour Being thus Deposed he defends his Right by his Gibilines against the Guelphes of the Papal party In this Council appears no other President than the Pope himself who with 140 Bishops and Abbots endeavoured under colour of recovering the Holy Land by the Fifths of the Church to redeem the East By this Council new Festivals were instituted for the Canonizing of Roman Saints The Seventeen Institutions ascribed to this Council are said to be rather Political and Polemical than Ecclesiastical and according to Bellarmine are to be found in the Sixth of the Decretals At Lions the other of these Two Councils was under Rodolphus the First at Haspurge procured by Gregory the Tenth consisting of at least Seven hundred Bishops In this Council was present Michael Paleologus the Greek Emperour Aquinas sent for to this Council dies in his way thither where Bonaventure after his being created Cardinal died also In this Council the Pope in behalf of the Holy Land requires a Subsidy the Tenth of all Ecclesiastical Rights for the space of Six years In this Council also it was ordered That there should be Bowing at the Name of JESVS There were 31 Constitutions or Canons made by this Council which though omitted by the Summulists may yet be found in the Sixth of the Decretals At Vienna in the year 1311. under Henry the Seventh Clement the Fifth being Pope a General Council of above Three hundred Bishops was convened In this Council was set forth a Book of Papal Decrees called Liber Clementiarum which was Ratified by this Council In this Council also it was that Corpus Christi Day was Ordained to be a Festival and the Order of Templers to be quite abolished for the Jerusalem-Expedition being strongly urged in this Council the Templers are removed out of the way for murdering of the Abissins Ambassador and other Impieties and Heresies Whether Trithemius did hit the mark or not it matters not Notorious it is That the Templers were very Rich but if that were a sufficient pretence for Heresie and Expulsion as some conceive then there would be no such thing as the Church of Rome at least not Orthodox In this Council the Clergy are permitted to take an Oath of Allegiance not of Subjection to Lay-Magistrates also Peter John the Dulcimists the Fratricelli the Begwards and Begwins together with the Lollards were condemned Peter John was condemned for denying the Soul to be the Form of Man a new piece of Heresie against Natural Philosophy The Constitutions of this Council under the name of Clementine are extant in 5 Books for a Supplement of the Canon Law in which is that Famous Decree of Constituting Professors to be maintained by a competent Stipend at the Court of Rome at the Vniversities of Paris Oxford Bononia and Salamanca for the instructing in Hebrew Arabick and Chaldee Languages whereby the Jews and Mahumetans might the more easily be converted to the Faith The Fifth Lateran Council in the year 1311. under Maximilian the Emperour Pope Julius 2. President thereof It is supposed this Council was called for disannulling another at Pisa where some Cardinals were met against the Pope There were convened at this Council 114 Bishops and it had Twelve Sessions Five whereof were under Julius the other Seven were finished by Leo the Tenth Suarez Cajetan and Navarr profess this to be a rejected Council The pragmatical Decree made at the Council of Basil in defence of Ecclesiastical Liberty against Popish Usurpations is here discussed and exploded The Immortality of the Soul is here also defended concerning which many at that time doubted it others wantonly disputed it and others heretically denied it By this Council a restraint is laid on such as in Preaching wrest the Scriptures at their pleasure to uphold and disperse some strange Opinions which restraint extended also to the impression of Books not Orthodox nor Licensed as such At Pisa in the year 1409. was as some call it a General Council consisting of Twenty three Cardinals Three Patriarchs Three hundred Archbishops and Bishops Twenty eight Governours of Monasterics and a very great number of Divines and Ambassadours of Princes The great Dissention between Benedict the Twelfth and Gregory the Thirteenth was the occasion of this
being made Ministers and do not reform after a months suspension Also by all such persons as refuse the Sacraments at the hands of Unpreaching Ministers after a months obstinacy being first suspended Also by all such Ministers as without their Ordinaries License under his Hand and Seal appoint or keep any Solemn Fasts either publickly or in private Houses having been formerly suspended for the same fault and finally by all Ministers who hold any private Conventicles to Consult on any thing tending to the impeaching or depraving of the Doctrine of the Church of England or of the Book of Common Prayer or of any part of the Government and Discipline now established in the Church of England which by the Seventy third Canon is Excommunication ipso facto 10. Touching persons thus Excommunicated persisting Forty daies in their obstinacy there are Three several Writs at the Law issuing from the Secular power viz. Excommunicato Capiendo Excommunicato Deliberando Excommunicato Recipiendo The Excommunicato Capiendo is a Writ issuing out of Chancery directed to the Sheriff for the apprehending and imprisoning of him who hath obstinately stood Excommunicated Forty daies for the Contempt to the Ecclesiastical Laws of such not in the interim obtaining their Absolution being by the Ordinary certified or signified into Chancery the said Writ thence issues for the apprehending and imprisoning them without Bail or Mainprize until they Conform Which Writ as by the Statute of 5 Eliz c. 23. is to be awarded out of the high Court of Chancery so it is to issue thence only in Term time and Returnable in the Kings Bench the Term next after the Teste thereof and to contain at least Twenty daies between the Teste and the Return thereof And in case the Offender against whom such Writ shall be awarded shall not therein have a sufficient and lawful Addition according to the form of the Statute of 1 H. 5. Or if in the Significavit it be not contained That the Excommunication doth proceed upon some cause of Contempt or some Original matter of Heresie or refusing to have their Children Baptized or to receive the Holy Communion as it is now used in the Church of England or to come to divine Service now commonly used in the said Church or Error in matters of Religion or Doctrine now received and allowed in the said Church Incontinency Usury Simony Perjury in the Ecclesiastical Court or Idolatry That then all pains and Forfeitures limited against such persons Excommunicate by the said Statute of 5 Eliz. 23. by reason of such Writ of Excom Capiend wanting sufficient Addition or of such Significavit wanting all the Causes aforesaid are void in Law 11. The Excommunicato Deliberando is a Writ to the Under-Sheriff for the releasing and delivery of the Excommunicate person out of Prison upon Certificate from the Ordinary into the Chancery of his Submission Satisfaction or conformity to the Ecclesiastical Jurisdiction And the Excommunicato Recipiendo is a Writ whereby Excommunicated persons who by reason of their Obstinacy having been committed to Prison and thence unduly delivered before they had given sufficient Caution or Security to obey the Authority of the Church are to be sought for and committed again to Prison This Sentence of Excommunication by the 65 th Canon pronounced against any and not absolved within Three months next after is every Sixth month ensuing as well in the Parish Church as in the Cathedral of the Diocess wherein they remain by the Minister openly in time of Divine Service upon some Sunday to be denounced and declared Excommunicate and where by the 68 th Canon Ministers are enjoyned not to Refuse to Bury it is with an exception to such persons Deceased as were denounced Excommunicated Majori Excommunicatione for some grievous and notorious Crime and of whose repentance no man is able to testifie 12. A Sentence was given in the Chancellors Court at Oxford at the Suit of B. against H. and thereupon H. was Excommunicated and taken in London upon the Writ of Excom Capiendo And it came into the Kings Bench where he pleaded That there was no Addition in the Significavit according to the Statute of 5 Eliz. and thereupon prayed to be discharged And the Opinion of the Court was That by the Statute of 5 Eliz. the Penalties mentioned in the said Statute are discharged but not the Imprisonment nor the Excommunication 13. By the Statute of 9 Ed. 2. 12. the Writ de Excom Capiendo may be awarded to take a Clerk Excommunicate for Contumacy after Forty daies And by the Statute of 9 Ed. 2. 7. the Kings Letters may not be sent to an Ordinary to Absolve an Excommunicate but where the Kings Liberty is prejudiced By the Statute of 5 6 Ed. 6. cap. 4. striking or laying of violent hands upon any person in a Church or Church-yard is Excommunication And by the Statute of 2 Ed. 6. 13. it is Excommunication to disobey the Sentence of an Ecclesiastical Judge in Causes of Tithes By the Statute of 3 Jac. 4. the Sheriff may apprehend a Popish Recusant standing Excommunicate and by the Statute of 3 Jac. 5. a Popish Recusant convicted shall stand as a person Excommunicate And by the Statute of 3 Ed. 1. 15. he that is Excommunicated shall be debarred of Mainprize 14. V. against E. in the Ecclesiastical Court where the Suit was for Striking in the Church which by the Second Branch of the Statute of 5 Ed. 6. cap. 4. is Excommunication ipso facto By which he surmized him incidisse in poenam Excommunicationis And being granted if c. And Ashley shewed cause why it should not issue viz. There ought to be a Declaration in the Ecclesiastical Court of the Excommunication before any may prohibit him the Church Richardson said That the Proceedings are not contrary to the Statute but stood with the Statute And it was said by Yelverton It seems there ought to be a Declaration in the Ecclesiastical Court But the difference is where it is Officium Judicis or Ad instantiam paris they will give Costs which ought not to be Hutton and Richardson If the party will not prosecute it none will take notice of it and they proceed to give Costs then a Prohibition may be granted And if he be a Minister he ought to be suspended for an offence against the Statute And it ought to be first declared and so to Excommunication and that cannot be pleaded if it be not under Seal Dyer 275. And after all these were agreed by the Court and no Prohibition was granted 15. B. was sued in the Ecclesiastical Court in a cause of Defamation in another Diocess than that wherein he lived and being Cited was for Non-appearance Excommunicated and upon Significavit the Writ de Excommunicato Capiendo was awarded Serjeant Finch Recorder prayed a Supersedeas for two Reasons 1. Upon the Statute of 23 H. 8. because he was Sued out of the