I do allow the Printing of this Book entituled An Abridgment of the Ecclesiastical Laws FRA NORTH Imprimatur hic Liber cui Titulus AN ABRIDGMENT OF THE. ECCLESIASTICAL LAWS Guil. Sill R. P. D. HENR Episc Lond à Sacris Dom. Repertorium Canonicum OR An Abridgment OF THE ECCLESIASTICAL LAWS OF THIS REALM Consistent with the TEMPORAL WHEREIN The most Material Points relating to such Persons and Things as come within the Cognizance thereof are succinctly Treated Principio Comperto facile est adjicere Reliquum Cooptare Tho. Cana. in Proaem Decret nu 3. T. 1. By JOHN GODOLPHIN LL. D. LONDON Printed by S. Roycroft for Christopher Wilkinson at the Black Boy against St. Dunstan's Church in Fleetstreet 1678. THE Introduction THE Question which King Henry the Eighth did once put to both the Universities of this Realm viz. An aliquid Authoritatis in hoc Regno Angliae Pontifici Romano de jure competat plusquam alii cuicunque Episcopo Extero being Resolved in the Negative and that Resolution ratified in the Convocation An. 1534. an Act of Parliament passed about two years after for the extinguishing of that Papal Authority in this Realm This succceded so well in consequence of what the Convocation An. 1530. had before acknowledged him viz. The Supream Head on Earth of the Church of England that that Supremacy was likewise after confirmed by Act of Parliament to him his Heirs and Successors This is that Supremacy here tenderly touch'd at in the first Chapter of the ensuing Abridgment and without which all that follows would be but insignificant and disfigured Cyphers When King Henry the Eighth was thus both Parliamentarily and Synodically invested herewith although it was with all the Priviledges and Preheminences incident thereto yet no more accrued to the Crown thereby than was legally inherent in it before yet in regard of the Usurpations that in divers Kings Reigns had successively invaded the Rights of the Crown in that most splendent Jewel thereof another Convocation in An. 1532. to give the King as it were Livery and Seisin of the said Supremacy promised him in verbo Sacerdotii That they would not from thenceforth Assemble in any Convocation or Synod without his Majesty's Writ nor make any Canons or Constitutions without his License and consent nor execute the same until they were Ratified under the Great Seal of England All which was done without the least diminution of any Archiepiscopal or Episcopal Power or Priviledges in the free exercise of that Ecclesiastical Jurisdiction which they anciently enjoyed The whole of this Design being only to eject the Roman Pontifex and annul his Usurpation in a matter of that weighty Consequence to which the Crown was so undoubtedly Entituled And this only in a way consonant to that Allegiance which every Subject without distinction owes to his lawful Sovereign in all matters as well Ecclesiastical as Civil within his Majesty's Realms and Dominions whereby the Clergy as well as Laity being all Subjects alike might be reduced not only to their Primitive Obedience unto but also to their Dependance on their own Sovereign in preference to any Forein Potentate whatever That the Supream Civil Power is also Supream Governour over all Persons and in all Causes Ecclesiastical is a Rule says the Learned Bishop Taylor of such great necessity for the conduct of Conscience as that it is the measure of determining all Questions concerning the Sanction of Obedience to all Ecclesiastical Laws the duty of Bishops and Priests to their Princes the necessity of their paying Tribute and discharging the burthens and relieving the necessities of the Republick It was never known says the same Author in the Primitive Church that ever any Ecclesiastical Law did oblige the Catholick Church unless the Secular Prince did establish it The Nicene Canons became Laws by the Rescript of the Emperour Constantine says Sozomen When the Council of Constantinople was finished the Fathers wrote to the Emperour Theodosius and petitioned Vt Edicto Pietatis tuae confirmetur Synodi sententia The confirmation of the Canon and Decrees of the great Council at Ephesus by the Emperour is to be seen at the end of the Acts of the Synod And Marcian the Emperour wrote to Palladius his Prefect a Letâ—er in which he testifies that he made the Decrees of the Council of Chalcedon to become Laws Ea quae de Christiana fide à Sacerdotibus qui Chalcedone â—convenerunt per nostra Praecepta Statuta sunt c. Thus also the Fathers of the Fifth General Synod petitioned Justinian to confirm and establish their Canons into a Law The same Prince also Published a Novel in which he commands Vim Legum obtinere Ecclesiasticos Canones à quatuor Synodis Nicena Constantinopolitana prima Ephesina prima Chalcedonensi expositos confirmatos Vid. Concil Tolet. All which confirms it for a Truth That even in the Primitive Church the Supremacy in matters Ecclesiastical was in the Supream Secular Prince Touching Archbishops our Malmesbury confesses that in the Ancienter times of the Britains it was unknown where the Archbishoprick was At the Council of Arles An. 314. Silvester the Pope is but plain Bishop as appears by the Nomenclature of those that were at that Council The High Title of Archbishop was for a long time in use in the Eastern Church before it came into the West For whereas our Beda tells us That Augustine was Ordained Archbishop of the English Nation by Etherius Archbishop of Arles aforesaid he therein follows the mode of speaking current in his own times for Gregory the then Pope in his several Letters written to them affords neither of them that Title no not when he bestows the Pall upon Augustine and gives him the precedency and priority in respect of York and all other Bishops of Britain Yet the incomparable B. Vsher affirms that they did not quite deny Archbishops among the Old Britains for he proves they had such but that all Memorials were lost where the Archiepiscopal or Patriarchal Seat resided For although London hath been for many Ages the Chiefest of Britain and was no less than 1300 years since reputed Vetus Oppidum and Augusta yet a Modern Writer of great Learning and Authority would have York as the more Ancient Metropolis of the Diocess of the Britains and that not only because it was a Roman Colony which London was not as Onuphrius contrary to so great and plain Authority of Tacitus doth affirm but also for that the Emperours Palace and Praetorium likewise Tribunal or chief Seat of Judgment was there whence by the Old Historian Spartianus it was called Civitas by way of excellency It must be acknowledg'd that the very Original of things are to us much clouded in obscurity and uncertainty yet he that duly consults Antiquity will find That what Radulphus de Diceto writes touching the Original of Episcopacy and Archiepiscopacy in Britain seems to have
for the visitation of the Ecclesiastical State and Persons and for-Reformation Order and Correction of the same and of all manner of Errors Heresies Schisms Abuses Offences Contempts and Enormities shall for ever by Authority of this Parliament be united and annexed to the Imperial Crown of this Realm This Act by a former Clause thereof doth Repeal the Statute of 1 and 2 Ph. Ma. c. 8. whereby the Acts of 26 H. 8. c. 1. and 35 H. 8. c. 3. were repealed so that the Act of Repeal being repealed the said Acts of H. 8. were implicitely revived whereby it is declared and enacted That the King his Heirs and Successors should be taken and accepted the only Supream Head in Earth of the Church of England and should have and enjoy annexed to the Imperial Crown of this Realm as well the Title and style thereof as all Honours Dignities Prebeminencies Jurisdictions c. to the said dignity of Supream Head belonging c. By which Style Title and Dignity the King hath all Ecclesiastical Jurisdiction whatever And by which Statute the Crown was but remitted and restored to its Ancient Jurisdiction which had been formerly usurped by the Bishop of Rome And this is that Supremacy which is here meant and intended 3. The said Statute of 1 Eliz. c. 1. doth not only repeal the said Stat. of 1 and 2 P. M. c. 8. but it is also a reviver of divers Acts asserting several branches of the Kings Supremacy and re-establishing the same it doth likewise not only abolish all Forreign Authority but also annex the Ecclesiastical Jurisdiction to the Crown of this Realm with power to assign Commissioners for the exercise of Ecclesiastical Jurisdiction And then further Enacts to this effect viz. That all Ecclesiastical persons of what degree soever and all and every Temporal Judge Justice Mayor or other Lay or Temporal Officer or Minister and every other person having Fees or wages from the Crown within this Realm or the Dominions thereof shall upon his Corporal Oath testifie and declare in his Conscience That the Kings Majesty is the only Supream Governour of this Realm and of all other his Majesties Dominions and Countries as well in all Spiritual or Ecclesiastical things or causes as Temporal And that no Forreign Prince Person Prelate State or Potentate hath or ought to have any Jurisdiction power superiority preheminence or authority Ecclesiastical or Spiritual within this Realm And therefore doth utterly renounce and forsake all Forreign Jurisdictions powers superiorities and authorities and doth promise that from henceforth be shall bear Faith and true Allegiance to the Kings Majesty his Heirs and lawful Successors and to his power shall assist and defend all Jurisdictions priviledges preheminencies and authorities granted or belonging to the Kings Majesty his Heirs and Successors or united or annexed to the Imperial Crown of this Realm The practices of the Romanists in the 4th year of Queen Elizabeth and the danger thereby threatning both the Queen and State occasioned her to call a Parliament 12. Jan. An. 156 2 3 which passed an Act For assurance of the Queens Royal power over all Estates and Subjects within her Dominions By which Statute was enacted The Oath of Supremacy as also what persons were obliged to take it and who should have power to administer the same And this was both the original and the cause of that Oath By the said Statute of 1 El. c. 1. appears also what the penalty is for refusing to take the said Oath as also the penalty of maintaining a Forreign Authority as likewise what other persons than the fore-mentioned shall be obliged to take the said Oath which was afterwards again further ratified and established by the Statute of 5 Eliz. c. 1. 4. The King within his own Territories and Dominions is according to Bracton Dei Vicarius tam in Spiritualibus quam Temporalibus And in the Ecclesiastical Laws of Edward the Confessor the King is styled Vicarius summi Regis Reges regunt Ecclesiam Dei in immediate subordination to God Yea the Pope himself Eleutherius An. 169. styled King Lueius Dei Vicarius in Regno suo 5. The Supremacy which heretofore the Pope did usurp in this Kingdom was in the Crown originally to which it is now legally reverted The Kings Supremacy in and over all Persons and Causes Ecclesiastical within his own Dominions is essentially inherent in him so that all such Authority as the Pope here once usurped claiming as Supream Head did originally and legally belong to the Crown and is now re-united to it by several Statutes as aforesaid On this Supremacy of the King as Supream Head Sr. Edward Coke grounds the power of granting a Commission of Review after a Definitive Sentence in the Delegates for one Reason that he gives is because after a Definitive Sentence the Pope as Supream Head by the Canon Law used to grant a Commission Ad Revidendum And such Authority as the Pope had claiming as Supream Head doth of right belong to the Crown Quia sicut Fontes communicant aquas fluminibus cumulative non privitive sic Rex subditis suis Jurisdictionem communicat in Causis Ecclesiasticis vigore Statuti in hujusmodi Casu editi cumulative non privitive By the Second Canon of the Ecclesiastical Constitutions of the Church of England it is ordained That whoever shall affirm that the Kings Majesty hath not the same Authority in Causes Ecclesiastical that the godly Kings had among the Jews and Christian Emperors in the Primitive Church or impeach in any part his Regal Supremacy in the said Cases restored to the Crown and by the Laws of this Realm therein established shall be Excommunicated ipso facto and not be restored but only by the Archbishop after his repentance and publick revocation of those his wicked Errors 7. The King being next under God Supream Governour of the Church of England may Qua talis redress as he shall see cause in all matters of Spiritual and Ecclesiastical Jurisdiction for the conservation of the Peace and Tranquillity of his Realms The Pope as appears by the Stat. of 25 H. 8. c. 21. claimed full power to dispense with all human Laws of all Realms in all Causes which he called Spiritual Now the King as Supream hath the same power in himself within his own Realms legally which the Pope claimed and exercised by Usurpation Eadem praesumitur mens Regis quae est Juris The Kings immediate personal ordinary inherent power which he executes or may execute Authoritate Regia suprema Ecclesiastica as King and Supream Governour of the Church of England is one of these Flowers qui faciunt Coronam Nor is the Kings immediate power restrained by such Statutes as authorize inferiour persons The Lord Chief Justice Hobart asserts That although the Stat. of 25 H. 8. 21. doth say That all Dispensations c. shall be granted in manner and
the Convocations of the same Clergy are and always have been and ought to be assembled only by the Kings Writ The Convocation is under the power and Authority of the King 21 E. 3. 45. b. 12. After the Reign of King H. 8. this Supremacy in the Crown was signally exercised by King Ed. 6. styling himself Supream Head under Christ of the Church of England and Ireland in the Preface of his Injunctions given as well to all the Clergy as Laity of this Realm the Close whereof is as followeth viz. All which singular Injunctions the Kings Majesty ministreth unto his Clergy and their Successors and to all his loving Subjects straitly charging and commanding them to observe and keep the same upon pain of Deprivation Sequestration of Fruits or Benefices Suspension Excommunication and such other Coercion as to Ordinaries or others having Ecclesiastical Jurisdiction whom his Majesty hath appointed for the due execution of the same shall be seen convenient Charging and commanding them to see these Injunctions observed and kept of all persons being under their Jurisdiction as they will answer to his Majesty for the contrary And his Majesties pleasure is That every Justice of Peace being required shall assist the Ordinaries and every of them for the due execution of the said Injunctions 14. The Three first Articles to be enquired of at the Visitations within the Province of Canterbury in the second year of the Reign of the said King Edward the Sixth were as followeth viz. 1. Whether Parsons Vicars and Curates and every of them have purely and sincerely without colour or dissimulation four times in the year at the least preached against the Usurped power pretended Authority and Jurisdiction of the Bishop of Rome 2. Whether they have preached and declared likewise four times in the year at least that the Kings Majesties power authority and preheminence within his Realms and Dominions is the highest power under God 3. Whether any person hath by writing cyphring preaching or teaching deed or act obstinately holden and stand with to extol set-forth maintain or defend the authority jurisdiction or power of the Bishop of Rome or of his See heretofore claimed and usurped or by any pretence obstinately or maliciously invented any thing for the extolling of the same or any part thereof Likewise by the Articles of Religion agreed on by the Convocation held in London and published An. 1553. by the Authority of King Ed. 6. it is declared That the King of England is Supream Head in Earth next under Christ of the Church of England c. and that the Bishop of Rome hath no Jurisdiction in this Realm The like you have in the Articles of Religion agreed on by the Archbishops and Bishops of both Provinces and the whole Clergy in the Convocation held in London An. 1562. and published by the Authority of Queen Elizabeth That the Queens Majesty hath the chief Power in this Realm of England and other her Dominions unto whom the chief Government of all Estates of this Realm whether they be Ecclesiastical or Civil in all Causes doth appertain and is not nor ought to be subject to any Forreign Jurisdiction Which Articles being the Articles of the Church of England were afterwards ratified and confirmed by his Majesty King CHARLES I. of ever Blessed Memory by his Royal Declaration thereunto prefixed in which Declaration you have as followeth viz. That we are Supream Governour of the Church of England and that if any difference rise about the External Policy concerning the Injunctions Canons or other Constitutions whatsoever thereto belonging the Clergy in their Convocation is to order and settle them having first obtained leave under our Broad Seal so to do and We approving their said Ordinances and Constitutions provided that none bâ— made contrary to the Laws and Customes of the Land Likewise in the first of the aforesaid Injunctions of King Ed. 6. as also in the first of the Injunctions given by Q. Elizabeth concerning both the Clergy and Laity of this Realm published Ann. 1559. being the first year of her Reign it is enjoyned That all Deans Archdeacons Parsons Vicars and all other Ecclesiastical persons shall faithfully keep and observe c. all and singular Laws and Statutes made for the restoring to the Crown the ancient Jurisdiction over the State Ecclesiastical and abolishing of all Forreign power repugnant to the same c. By the Statute of 25 H. 8. c. 19. Appeals to Rome are prohibited and it is Ordained that in default of Justice in any of the Courts of the Archbishops of this Realm it shall be lawful to appeal to the King in his Court of Chancery and thereupon a Commission shall be granted c. And by a Proviso towards the end of that Statute an Appeal is given to the King in Chancery upon Sentences in places exempt in the same manner as was before used to the See of Rome And as by the said Statute there may be an Appeal to the King in Chancery when the Suit is in the Archbishops Court or some Peculiar exempt so in some Cases the Appeal may be to the King generally as he is Supream Head of all Ecclesiastical Jurisdiction within the Realm for by the Statutes made in the time of King Hen. 8. the Crown was only remitted and restored to its Ancient Jurisdiction which had been usurped by the Bishop of Rome 33 Ed. 3. Fitz. Aid del Roy 103. Reges sacro oleo uncti Spiritualis Jurisdictionis sunt capaces Rex est Mixta persona cum Sacerdote Et causa Spiritualis Committi potest Principi Laico Cassan in Catal. glo mund p. 5. Consid 24. The King of England c. is Persona Sacra mixta cum Sacerdote and at his Coronation by a solemn Consecration and Unction becomes a Spiritual person Sacred and Ecclesiastical and then hath tam Vestem Dalmaticam as an emblem of his Royal Priesthood quam Coronam Regni in respect of his Regal power in Temporals and is Supream Governour in all Causes and over all Persons as well Ecclesiastical as Civil The King is Supream Ordinary by the Ancient Common Law of England before the Statute of 24 H. 8. cap. 12. for a Resignation might be made to him he might make a Grant of a Church to a man to hold to his own proper use he might not only exempt any Ecclesiastical person out of the Jurisdiction of the Ordinary but also give him Episcopal Jurisdiction he might Present to Free Chappels in default of the Dean by Lapse and that as Ordinary and in respect of his Supream Ecclesiastical Jurisdiction he might dispense with one not lawfully born to be a Priest albeit the Ecclesiastical Laws allowed within this Realm do prohibite it but the reason is for that it is not Malum in se but Malum prohibitum In a word All that the Pope was wont to do in such cases within this Realm as
Provisions Appeals to Rome holding Plea of Spiritual things thence arising Excommunications by his Bulls and the like were no other than Usurpations and Encroachments on the Dignity and Prerogative Royal. 14. In the Reign of King H. 8. An. 1539. the Abbots of Colchester Reading and Glastenbury were condemned and executed under colour so the Author expresses it of denying the Kings Supremacy and their rich Abbies seized on as Confiscations to the use of the King But when the Act of Supremacy came to be debated in the time of Queen Elizabeth it seemed a thing strange in Nature and Polity That a Woman should be declared to be the Supream Head on Earth of the Church of England but the Reformed party not so much contending about Words and Phrases as aiming to oust the Pope of all Authority within these Dominions fixed the Supream power over all Persons and Estates of what rank soever in the Crown Imperial not by the Name of Supream Head but tantamount of the Supream Governess In Queen Mary 's time there was an Act of Parliament made declaring That the Regal power was in the Queens Majesty as fully as it had been in any of her Predecessors In the body whereof it is expressed and declared That the Law of the Realm is and ever hath been and ought to be understood That the Kingly or Regal Office of the Realm and alâ— Dignities Prerogatives Royal Power Preheminences Priviledges Authorities and Jurisdictions thereunto annexed united or belonging being invested either in Male or Female are be and ought to be as fully wholly absolutely and entirely deemed adjudged accepted invested and taken in the one as in the other So that whatsoever Statute or Law doth limit or appoint that the King of this Realm may or shall have execute and do any thing as King c. the same the Queen being Supream Governess Possessor and Inheritor to the Imperial Crown of this Realm may by the same power have and execute to alâ— intents constructions and purposes without doubt ambiguity question or scruple any Custome use or any other thing to the contrary notwithstanding By the tenor of which Act made in Queen Mary 's Reign is granted to Queen Elizabeth as much Authority in all the Church-Concernments as had been eâ—ercised and enjoyed by King H. 8. and King Ed. 6. according to any Act or Acts of Parliament in their several times Which Acts of Parliament as our learned Lawyers on these occasions have declared were not to be considered as Introductory of a new power which was not in the Crown before but only Declaratory of an old which naturally belonged to all Christian Princes and amongst others to the Kings and Queens of the Realm of England And whereas some Seditious persons had dispersed a rumour that by the Act for recognizing the Queens Supremacy there was something further ascribed unto the Queen her Heirs and Successors viz. a power of administring Divine Service in the Church which neither by any equity or true sense of the words could from thence be gathered she thereupon makes a Declaration to all her Subjects That nothing was or could be meant or intended by the said Act than was acknowledged to be due to King H. 8. and King Ed. 6. And further declared That she neither doth nor will challenge any other Authority by the same than was challenged and lately used by the said Two Kings and was of Ancient time due unto the Imperial Crown of this Realm that is under God to have the Sovereignty and Rule over all persons born within her Realms and Dominions of what estate either Ecclesiastical or Temporal soever they be so as no other Forreign Power shall or ought to have any Superiority over them Which Declaration published in the Queens Injunctions An. 1559. not giving that general satisfaction to that groundless Cavil as was expected and intended the Bishops and Clergy in their Convocation of the year 1562. by the Queens Authority and Consent declared more plainly viz. That they gave not to their Princess by vertue of the said Act or otherwise either the ministring of Gods Word or Sacraments but that only Prerogative which they saw to have been given always to all godly Princes in holy Scripture by God himself that is to say that they should Rule all Estates and Degrees committed to their charge by God whether they be Ecclesiastical or Temporal and restrain with the Civil Sword the stubborn and evil doers And lastly to conclude this tender point There is in the said Act for the better exercising and enjoying of the Jurisdiction thus recognized to the Crown an Oath as aforesaid for the acknowledgment and defence of this Supremacy not only in the Queen but also her Heirs and Successors Likewise a power given to the Queen her Heirs and Successors by Letters Patents under the Great Seal of England To Assign and Authorize c. as she and they shall think fit such Persons being natural born Subjects to exercise use and occupy under her and them all manner of Jurisdictions Priviledges and Preheminencies in any wise touching or concerning any Spiritual or Ecclesiastical Jurisdiction within the Realms of England and Ireland or any other her Highness Dominions or Countries and to visit reform repress order correct and amend all such Errors Heresies Schisms Abuses Offences Contempts and Enormities whatsoever which by any manner of Spiritual or Ecclesiastical Power Authority or Jurisdiction or can or may lawfully be reformed ordered redressed corrected restrained or amended to the pleasure of Almighty God c. This was the Foundation of the High-Commission Court and from hence issued that Commission by which the Queens Ministers proceeded in their Visitation in the First year of her Majesties Reign CHAP. II. Of Archbishops 1. A Description of that Dignity here in England the Antiquity Precedency Priviledges and Style of the Archbishop of Canterbury with the Precincts of that See 2. The Antiquity Precedency and Style of the Archbishop of York with the Precincts of that See 3. What difference between Archbishop and Metropolitan and why called Metropolitan 4. Three Archbishops in England and Wales Anciently 5. The vicissitudes of the Christian Religion Anciently in this Island of Great Britain 6. How the Third Archbishop came to be lost 7. The great Antiquity of an Archbishop in London 8. The Original of the Style Primate and Metropolitan 9. What the difference Anciently between the Two Archbishopricks of Canterbury and York certain Priviledges of the latter 10. Whether an Archbishop may call Cases to his own cognizance nolente Ordinario 11. In what Case the Clerk is to be Instituted by the Archbishop where the Inferiour Ordinary hath right to Collate Also his power of Dispensations 12. A Case at Common Law relating to the Archbish Jurisdiction 13. Certain special Priviledges of the Archbishop of Canterbury 1. ARCHBISHOP ab Archos Princeps Episcopus Superintendens is that Spiritual person
form following and not otherwise yet the King is not thereby restrained but his power remains full and perfect as before and he may still grant them as King for that all Acts of Grace and Justice flow from him By the Eighth Canon Concilii Calchuthensis held under Pope Adrian the First An. 787. the Pope had power to grant what Immunities and Priviledges he pleased in Church-matters and they were by the said Canon to be duly observed Whatever Authority the Pope pretended to in this Kingdom in such matters by way of Usurpation the same may the King as Supream Governour of the Church next under God in his own Dominions use and lawfully exercise by his Regal Authority ex justa plenitudine Potestatis suae Likewise Pope Agathon An. 680. in Concilio Romano-Britannico exercised his Papal Authority in the time of Lotharius King of Kent not only touching the Reformation of Errors and Heresies then in this Church but also as to the composure of differences and dissentions that then were among the Clergy of this Realm Such Presidents of the usurped power of the Papal See exercised in this Kingdom are now of no further use than to illustrate or exemplifie the Legal power inherent in the Kings of this Realm in such matters of Ecclesiastical Jurisdiction for the most High and Sacred Order of Kings being of Divine Right it follows that all persons of what estate soever and all Causes of what quality soever whether Ecclesiastical or Civil within his Majesties Realms and Dominions are subordinated to the Power and Authority of the King as Supream It is not only acknowledged but also constituted by way of an Ecclesiastical Canon That the power of Calling and Dissolving Councils both National and Provincial is the true Right of all Christian Kings within their own Realms and Territories 8. The Ecclesiastical Legislative power was ever in the Kings of this Realm within their own Dominions That in Ancient times they made their own Ecclesiastical Laws Canons and Constitutions appears by several Presidents and Records of very great Antiquity which were received and observed within their own Territories without any Ratification from any Forreign power One instance among many may be given of the Ecclesiastical Laws of Alured Mag. Regis Anglorum An. 887. This they did de jure by virtue of their own inherent Supremacy And therefore when Pope Nicholas the Second An. 1066. in the Bull wherein he ordained Westminster to be the place for the Consecration of Kings gave power to Edward the Confessor and his Successors to constitute such Laws in the Church as he should think fit he gave him therein no more than was his own before For the Kings of England might ordain or repeal what Canons they thought fit within their own Dominions in right of their Regal Supremacy the same being inherent in them Jure Divino non Papali For we find that in King AEtheldreds days An. 1009. in Concilio AEnhamensi Generali the Canons then made and afterwards caused by King Kanutus to be Transcribed were called the Kings Canons not the Bishops En hujus Concilii Canones quos in suas Leges passim transcripsit Rex Canutus Malmsburius AEtheldredo Regi non Episcopis tribuit And the Peers of this Realm per Synodum Landavensem were unexcommunicable nisi prius Consulto Rege aut ejus praecepto Which is a plain demonstration That the Kings of England Anciently had the Supremacy and superintendent Ecclesiastical power and Jurisdiction inherent in themselves exclusively to all other either home or Forreign powers whatever 9. It is by good Authority asserted That the King as Supream is himself instead of the whole Law yea that he is the Law it self and the only chief Interpreter thereof as in whose Breast resides the whole knowledge of the same And that his Majesty by communicating his Authority to his Judge to expound the Laws doth not thereby abdicate the same from himself but that he may assume it again unto him when and as oft as he pleases Dr. Ridl View p. 2. c. 1. Sect. 7. Consonant whereunto is that which Borellus hath Principum Placita Legis habent vigorem eatenus vim Legis obtinebunt quatenus fuerint cum honestate conjuncta Borel de Magist Edict l. 2. c. 4. Roland à Val. Cons 91. nu 54. vo 2. And Suarez tells us That Princeps est Lex viva reipsa praecipit ut Lex per scripturam Of which Opinion also is Alexander Imola and many others Suar. Alleg. 9. nu 13. The grant of Dispensations is a peculiar and very considerable part of Ecclesiastical Jurisdiction the which is eminently in the Crown and by the Stat. of 25 H. 8. the Archbishop of Canterbury may grant Dispensations Archiepiscopus possit dispensare contra Statutum Provinciale per se editum Et qui potest jus condere potest illud tollere Lindw de Cler. Conju c. 2. gl ult Extr. de Elect. c. Significasti c. Intonuit And in another place Episcopus in quibusdam Casibus Dispensare potest contra Canones Const Otho de Concu Cler. gl ver Meritis 10. The Laws and Statutes of this Realm have been tender of the Kings Supremacy ever since the Forreign power over the State Ecclesiastical was abolished In the Statute of 13 Car. 2. cap. 12. there is a Proviso That nothing in the said Act shall extend to abridge or diminish the Kings Majesties Supremacy in Ecclesiastical matters and affairs And in the Stat. of 22 Car. 2. cap. 1. there is a Proviso That not any thing therein contained shall extend to invalidate or avoid his Majesties Supremacy in Ecclesiastical affairs but that his Majesty his Heirs and Successors may from time to time and at all times hereafter exercise and enjoy all Powers and Authority in Ecclesiastical affairs as fully and amply as any of his Predecessors have or might have done 11. As no Convocations for Ecclesiastical Constitutions or for correction or reformation of Abuses in the Church can be Conven'd without his Majesties Writ for that end and purpose so being Conven'd no Canons or Constitutions that shall then be agreed on can have any effect in Law or be in force to oblige any of his Majesties Subjects until his consent thereunto be first had and obtained and until they shall have the power of Ecclesiastical Laws by being ratified and confirmed by the Supream Authority Therefore the Archbishop of Canterbury may not hold a Council for his Province without the Kings leave for when such Council was held by Hubert Archbishop of Canterbury it was prohibited by Fitz-Peter Chief Justice for that he had not the Kings License therein but he would not obey And 13 E. 3. Rot. Parl. M. 1. there was a Writ for a Convocation of the Clergy of the Province of Canterbury and Pauls And another for the other of York vid. Stat. 25 H. 8. c. 19. where the Clergy of England acknowledge that
answers the Election of a Bishop 2. Admission to which Confirmation answers 3. Institution which is as the Consecration and Induction as the Restitution of the Temporalties The Spiritual Marriage between the Church and the Bishop initurper Electionem Contrabitur per Confirmationem Consummatur per Consecrationem and the Restitution of the Temporalties is as the bringing home of the Wise CHAP. VII Of Deans and Chapters 1. What a Dean is why so called what Dean and Chapter signifies and what Deans Rural arc 2. The Division of Deans according to the Civil and Canon Laws a Question in Law touching the Deanary of St. Martins 3. Two ways of Creating Deans and in what other senses the word or style of Dean is applicable 4. Four sorts of Deans according to the Law of the Land 5. The Patronage of Deanaries is in the Crown 6. The Dean and Chapter of a Cathedral is a Corporation Spiritual 7. A Deanary consists of two parts The difference between a Dean Prebend and Parson and that Deanaries and Archdeacomies are Ecclesiastical Dignities 8. Chapter what the several Acceptations of that word 9. The difference between Capitulum and Conventus in the Canon Law 10. The description of a Chapter as to their Constitution and Government 11. Whether one Bishop may have two Chapters 12. Whether the Lease of a Parsonage in one Diocess annexed to a Prebend in another made by that Prebend be good without the Confirmation of that Bishop in whose Diocess the Parsonage is 1. DEAN 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 decem is an Ecclesiastical Magistrate so called because anciently he presided or had power over Ten Canons or Prebends at the least Sed dicuntur Decani Rurales eo quod Decem Clericis five Parochiis praesint Secund. Papiam Lindw de Constit verb. Decan Rurales gloss Dean Rural because he usually had charge over Ten Country Parishes Anciently also called Archipresbyter because other Presbyters were under his charge Here in England he is commonly called a Dean who is next under the Bishop and Chief of the Chapter ordinarily in a Cathedral Church the rest of that Ecclesiastical Society or Corporation being called Capitulum the Chapter Dean and Chapter is a Body Corporate Spiritual consisting of many able persons in Law viz. the Dean who is Chief and his Prebends and they together make the Corporation And as this Corporation may joyntly purchase Lands and Tenements to the use of their Church and Successors so likewise every of them severally may purchase to the use of himself and his Heirs After the death of a Prebend the Dean and Chapter shall have the Profits And after the death of a Dean of a Free Chappel belonging to the King the King shall have the Profits of the Deanary for it is at the pleasure whether he will Collate a new Dean to it It is likewise held that a Deanary is a Spiritual Promotion and not a Temporal by all the Judges And if the Nomination and Patronage of a Deanary be at the appointment of the King his Heirs and Successors and he appoint a Dean yet it is a Spiritual Promotion The King makes the Corporations of Dean and Chapter The Chapter of the Bishop consists of a Dean as the Chief and of the Prebendaries or the like which are commonly called the Chapter As to the Bishop and Chapter which are but one Body their possessions are divided so as the Bishop hath a part for himself and the Chapter the residue And their Possessions also for the most part are divided the Dean having one part alone in right of his Deanary and each particular Prebendary a certain part in right of their Prebends the residue the Dean and Chapter have alike and each of them is to this purpose incorporate by himself In the Cathedral Churches of St. David and of Landaff there never hath been any Dean but the Bishop in either is Head of the Chapter and in the Bishops absence in the Chapter at St. Davids and at Landaff the Archdeacon There are also some Deans in England without any Jurisdiction only for Honour so styled as the Dean of the Chappel Royal and Dean of the Chappel of St. George at Windsor And some Deans there are without any Chapter yet enjoying certain Jurisdictions as the Dean of Croydon the Dean of Battel the Dean of Bockin c. In the Case of the Dean and Chapter of Norwich it is said That in Christian Policy it was thought necessary for that the Church could not be without Sects and Heresies that every Bishop should be assisted with a Council viz. a Dean and Chapter 1 To Consult with them in deciding of difficult Controversies of Religion to which purpose every Bishop habet Cathedram 2 To Consent to every Grant the Bishop shall make to bind his Successors for the Law did not judge it reasonable to repose such confidence in him alone At first all the Possessions were to the Bishop afterwards a certain portion was assigned to the Chapter therefore the Chapter was before they had any Possessions and of Common right the Bishop is Patron of all the Prebends because their Possessions were derived from him So that so long as the Bishoprick continues the Dean and Chapter being his Council remains This word Dean is diversly used by Lindwood who speaking of Dean-Rurals describes them to be certain persons that have certain Jurisdiction Ecclesiastical over other Ministers and Parishes near adjoyning assigned unto them by the Bishop and Archdeacon being placed and displaced by them Such are the Dean of Croydon in Surrey the Dean of Battel in Kent the Dean of Burian in Cornwal c. These Deans Rural are Decani Temporales Constituted to some Ministerial Function under the Bishop or Archbishop They are certain Ecclesiastical persons having certain Offices commonly belonging to the Bishop and Archdeacon and therefore to either of them belongs the receiving or removing of them and their Office is temporal not perpetual as is the Office of the Deans of Cathedral and Collegiate Churches and other Churches quibus perpetuo intitulantur 2. The Civil and Canon Laws do chiefly take notice but of three sorts of Deans the one he who is impower'd and set over Ten Souldiers Another he who is called Dean Rural as aforesaid The third is a Dean of a Cathedral or Collegiate Church as abovesaid There is also the Deanary of St. Martin le Grand Lond. concerning which Lindwood puts the question Whether it be such an Ecclesiastical Benefice as in effect may incur such penalties as may possibly happen to other persons Beneficed And after deep enquiries into the Laws Presidents and Antiquities Forreign and Domestick with very delectable variety of great Learning hinc inde argumentatively and pro con impartially at last doth conclude it in the Affirmative Lindwood Constit tit de Cohab. Cleric Mul. c. ut Clericalis
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
Fees wherewith Churches have been endowed otherwise in possessions of the Church newly purchased by Ecclesiastical persons 10 That such as Abjure the Realm shall be in peace so long as they be in the Church or in the Kings High-way 11 That Religious Houses shall not by compulsion be charged with Pensions resort or Purveyors 12 That a Clerk Excommunicate may be taken by the Kings Writ out of the Parish where he dwells 13 That the examination of the Ability of a Parson presented unto a Benefice of the the Church shall belong unto a Spiritual Judge 14 That the Elections to the Dignities of the Church shall be free without fear of any Temporal power 15 That a Clerk flying into the Church for Felony shall not be compelled to abjure the Realm 16 And lastly That the Priviledge of the Church being demanded in due form by the Ordinary shall not be denied unto the Appealor as to a Clerk confessing Felony before a Temporal Judge 2. In conformity to the premisses there were other Statutes after made in the time of King Ed. 3. whereby it was Enacted 1 That the goods of Spiritual persons should not without their own consents be taken by Purveyors for the King 2 That the King shall not collate or present to any vacant Church Prebend Chappel or other Benefice in anothers Right but within Three years next after the Avoidance 3 That the Temporalties of Archbishops Bishops c. shall not be seized into the Kings hands without a just cause and according to Law 4 That no waste shall be committed on the Temporalties of Bishops during Vacancies and that the Dean and Chapter may if they please take them to Farm 5 And lastly That the Lord Chancellor or Lord Treasurer may during such vacancies demise the Temporalties of Bishopricks to the Dean and Chapter for the Kings use 3. And as there are Articuli Cleri so there are also Articuli Religionis being in all thirty nine Agreed upon at a Convocation of the Church of England Ann. 1562. Ratified by Q. Elizabeth under the Great Seal of England Confirmed and Established by an Act of Parliament with his Majesties Royal Declaration prefixed thereunto Which Act of Parliament requires a Subscription by the Clergy to the said thirty nine Articles the same also being required by the Canons made by the Clergy of England at a Convocation held in London Ann. 1603. and ratified by King James The said Subscription referrs to three Articles 1. That the Kings Majestie under God is the only Supream Governour of the Realm and of all other his Highness Dominions and Countreys c. 2. That the Book of Common Prayer and of Ordaining of Bishops Preists and Deacons containeth nothing in it contrary to the Word of God c. 3. That he alloweth of the said thirty nine Articles of Religion and acknowledgeth them to be agreeable to the Word of God By the Statute of 13. Eliz. 12. the Delinquent is disabled and deprived ipso facto but the Delinquent against the Canon of King James is to be prosecuted and proceeded against by the Censures of the Church And it is not sufficient that one subscribe to the Thirty Nine Articles of Religion with this Addition so far forth as the same are agreeable to the Word of God For it hath been resolved by Wray Cheif Justice and by all the Judges of England That such subscription is not according to the Statute of 13. Eliz. because the Subscription which the Statute requires must be absolute But this is no other then Conditional 4. The Circumspecte agatis is the Title of a Statute made in the 13 th year of Ed. 1. Ann. D. 1285. prescribing certain Cases to the Judges wherein the Kings Prohibition doth not lie As in Case the Church-yard be left unclosed or the Church it self uncovered the Ordinary may take Cognizance thereof and by that Statute no Prohibition lies in the Case Nor in case a Parson demands his Oblations or the due and accustomed Tythes of his Parishioners nor if one Parson sue another for Tythes great or small so as the fourth part of the Benefice be not demanded nor in case a Parson demand Mortuaries in places where they have been used and accustomed to be paid nor if the Prelate of a Church or a Patron demand of a Parson a Pension due to him nor in the Case of laying violent hands on a Clerk nor in Cases of Defamation where Money is not demanded nor in Case of Perjury In all which Cases the Ecclesiastical Judge hath Cognizance by the said Statute notwithstanding the Kings Prohibition So that the end of that Statute is to acquaint us with certain Cases wherein a Prohibition doth not lie And the Statute of 24 Ed. 1. shews in what Case a Consultation is to be granted And by the Statute of 50. Ed. 3. cap. 4. no Prohibition shall be allowed after a Consultation duely granted provided that the matter of the Libel be not enlarged or otherwise changed CHAP. XLIV Of several Writs at the Common Law pertinent to this Subject 1. What the Writ of Darrein Presentment imports in what case it lies and how it differs from a Quare Impedit 2. Assise de utrum what and why so called 3. Quare Impedit what for and against whom it lies 4. What a Ne admittas imports the use and end thereof 5. In what case the Writ Vi Laica removenda lies 6. What the Writ Indicavit imports and the use thereof 7. What the Writ Advocatione Decimarum signifies 8. Admittendo Clerico what and in what Case issuable 9. The Writ Beneficio primo Ecclesiastico habendo what 10. That Writ Cautione Admittenda and the effect thereof 11. The writ of Clerico infra Sacros ordines constituto non eligendo in Officium What the use or end thereof 12. The Writ Clerico capto per Statutum Mercatorum what 13. What the Writ of Clerico convicto commisso Goalae in defectu Ordinarii deliberando was 14. What the Writ of Annua Pensione was anciently 15. The Writ of Vicario deliberando occasione cujusdam Recognitionis what 16. Three Writs relating to Persons excommunicated 17. Assise of Darrein Presentment brought after a Quare Impedit in the same cause abates 18. Difference of Pleas by an Incumbent in respect of his being in by the Presentment of a stranger and in respect of his being in by the Presentment of the Plaintiff himself 19. Notwithstanding a recovery upon a Quare Impedit the Incumbent continues Incumbent de facto until Presentation by the Recoverer 20. Of what thing a Q. Imp. lies and who shall have it 21. Who may have a Quare Impedit and of what things 22. How and for whom the Writ of Right of Advowson lies 23. What the Writ de jure patronatus and how the Law proceeds thereon 24. The Writ of Spoliation what and where it lies 25. The Writ
of a Bishop may not be without the consent of the Dean yet this we find upon Record nigh as Ancient as the former That where at present there was no Dean there the Election of the Bishop hath been by the Canons alone Canonici Saresbirienses Decanum non habentes ad praesens à Rege prius impetrata Licentia Fratrem suum Concanonicum Herebertum Cantuariensem Archidiaconum Assensu Communi solemniter in Episcopum Elegerunt Electionem factam in Publico recitavit Walterus Praecentor Electioni factae praebuit Rex Assensum quam Hubertus Cantuariensis Archiepiscopus Auctoritate propria Confirmavit c. Consonant to which method is the Act of Parliament made in the 25. of H. 8. whereby it is Enacted That on the vacancy of every Bishoprick his Majesty should issue out his Writ of Congé d'Eslire to the Dean and Chapter of the Church so vacant enabling them to proceed to Election of another Bishop which Election being returned by the said Dean and Chapter and ratified by the Royal Assent his Majesty should issue out his Writ to the Metropolitan to proceed to the Confirmation of the party Elected and taking to himself two other Bishops at least to proceed to Consecration in case he had not before been Consecrated Bishop of some other Church The place of Consecration of Bishops was anciently at Canterbury as the mother-Mother-Church not only of that Province but of all England For when in the time of R. 1. An. 1192. a Bishop of Worcester Elect was to be Consecrated and Westminster the place design'd for that solemnity according to the Popes Command it was opposed by the Prior and Covent of Christ-Church in Canterbury and at a time when the Archbishop thereof whose presence could not but have strengthned that opposition was absent yet the said Prior insisting on the Priviledges and Customes of the Church of Canterbury opposed the said place of Consecration as appears by his Letter to the Bishop of Ely the Popes Legate and other Bishops of that Province in haec verba Reverendis in Christo Dominis Fratribus W. Dei gratia Heliensi Episcopo Apostolicae sedis Legato Domini Regis Cancellario caeterisque Episcopis Cantuariensis Ecclesiae Suffraganeis O. Prior Conventus Ecclesiae Christi Cantuariae salutem ab Auctore salutis Noverit Sanctitas vestra Nos ad sedem Apostolicam appellasse ne Wigorniensis Electus alias quam in Ecclesia Cantuariensi sicut moris est Consecretur ne quis vestrum qui indemnitati Ecclesiae Cantuariensis vinculo Professionis providere tenemini alias quam in eadem Ecclesi◠ejus Consecationi interesse praesumat And at a Synod held at Westminster under P. Honorius 2. in the Reign of H. 1. An. 1126. it was Ordained That at the Consecration of Bishops nothing should by way of Offerings be exacted or by force required Statuimus Apostolica Authoritate Decernimus ut in Consecrationibus Episcoporum c. nil omnino per violentiam nisi sponte oblatum fuerit penitus exigatur Simeon Dunelm Hist de Gest Reg. Angl. The like you have Decreed at another Synod held also at Westminster under P. Innocent 2. in King Stephens Reign An. 1138. Apostolica authoritate Sancimus ut in Consecrationibus Episcoporum ne quicquam ab Episcopo vel Ministris ejus exigatur Hist Richard Prioris Hagustald de Gest Reg. Steph. In the year 1123. which was in the Reign of H. 1. at the Council of Three hundred Bishops conven'd at Rome P. Calixtus 2. being President it was Decreed That no Bishop should be Consecrated unless he were first Canonically Elected Nullus in Episcopum nisi Canonice Electum Consecret quod etsi praesumptum fuerit Consecratus Consecrator absque recuperationis spe deponatur dict Sim. Dunelm Hist As that Canon was not in being so the matter thereby ordained in all probability was far from being observed when Plegmundus Archbishop of Canterbury whom P. Formosus honoured with the Pall Consecrated no less than Seven Bishops in one day in the two and twentieth year of King Alured Chron. Johan Bromton Abbatis Jornalensis When a Bishop is Consecrated then may he Consecrate viz. Churches c. and may Ordain Deacons c. But it was long since provided by the Council of Lateran under P. Alexander That the Bishop should not confer Holy Orders on any that were not then or speedily to be provided with an Ecclesiastical Living Episcopus si aliquem sine certo Titulo de quo Necessaria vitae percipiat in Diaconum vel Presbyterum Ordinaverit tam diu ei necessaria subministret donec ei in aliqua Ecclesia Convenientia stipendia militiae clericalis assignet nisi talis forte qui Ordinatur extiterit qui de sua vel paterna haereditate subsidium vitae possit habere Can. 9. And as touching the Bishops Consecrating of Churches it being vulgarly supposed that there is a considerable piece of Superstition therein it cannot but be seasonable here to enquire whether so or no or whether the Consecration of Churches be not truly Primitive according to the Judgment of the Learned Dr. Heylin To which purpose you have here his very words viz. The place of Publick Worship is called generally according to the style of the Ancient Fathers by the name of the Church For Consecrating or setting apart whereof to Religious uses I find says he so great Authority in the Primitive times as will sufficiently free it from the guilt of Popery Witness the Testimony which Pope Pius gives of his Sister Eutorepia in an Epistle to Justus Viennensis An. 158. or thereabouts for setting apart her own House for the use and service of the Church Witness the Testimony which Metaphrastes gives of Felix the First touching his Consecrating of the House of Cicilia about the year 272. And that which Damasus gives unto Marcellinus who succeeded Felix for Consecrating the House of Lucinia for Religions uses Witness the famous Consecration of the Temple of the Holy Martyrs in Jerusalem Founded by Constantine the Great at which almost all the Bishops in the Eastern parts were summoned and called together by the Emperours Writ and finally not to descend to the following Times witness the 89th Sermon of St. Ambrose entituled De Dedicatione Basilicae Preached at the Dedication of a Church built by Vitalianus and Maianus and the Invitation of Paulinus another Bishop of that Age made by Sulpitius Severus his especial Friend Ad Basilicam quae prorexerat in Nomine Domini consummabitur Dedicandum to be present at the Dedication of a Church of his Foundation Heyl. Cyprian Angl. p. 12. The Decree of Faith made by the Council of Trent was attended with no less than Eight Anathematisms the first whereof was against him that shall say that there is no visible Priesthood in the New Testament nor any power to Consecrate c. For in the beginning of that Decree it is affirmed That there is a visible and
Vrbis Cantuar. Antiq. pag. 362 363. ubi de Decano Christianitatis But the Deans here specially meant and intended are only such as with the Chapters according to the ancient and genuine use thereof are as Senatus Episcopi to assist the Bishop in his Jurisdiction Cathedral Churches being the first Monuments of Christianity in England So Dr. Hacket in Parliament 1640. The Office and Ecclesiastical Dignity of Archdeacons which you next meet with in this Abridgment is of very great Antiquity There was a sharp Contest above Five hundred years since in the time of King H. 2. between the Archdeacons and the Priors of Winchester and Ely touching the Presentation of their Bishops Elect unto the Metropolitan in order to their Consecration wherein by the Interlocutory of the said Metropolitan the Priors had the Victory Hora congrua Consecrationis instante R. Wintoniensis R. Elyensis Archidiaconi cum Officiales Episcoporum dicantur ad suum spectare contendebant Officium Electiones c. praesentare Metropolitano W. Wintoniensis S. Elyensis Priores in contrarium sentiebant quam enim in Ecclesiis Cathedralibus ubi Canonici divinis mancipantur obsequiis Decani sibi vindicant dignitatem hanc si Monachorum Conventus in Episcopali sede praemineat sibi jure possunt vendicare Priores Sed ut omnis in posterum amputetur occasio Litigandi de Interlocutoria Metropolitani sententia c. Wintoniensis Elyensis Electiâ— ad Priorum suorum praesentationem recepti ad Priorum suorum postulationem Episcopi Consecrati sunt Radulph de Diceto Imag. Hist. By the 25th Canon of the Council of Lateran under Pope Alexander it was Ordained That an Archdeacon in his Visitation should not exceed the numqer of Five or Seven Horsemen for his Retinue Chron. Gervas de Temp. H. 2. And as to the Visitation-Articles every Bishop and Archdeacon heretofore framed a Model thereof for themselves but at the Convocation in the year 1640. a Body thereof was composed for the publick use of all such as exercised Ecclesiastical Jurisdiction And by the foresaid Canon of the Council of Lateran it was further Ordained That no Archdeacon in his Visitation should presume to exact from the Clergy more than was justly due Archidiaconi autem sive Decani nullas exactiones in Presbyteros seu Clericos exercere praesumant Notwithstanding what toleration the Law allows as to Archbishops Bishops Archdeacons c. as to the number of their Retinue in their Visitations yet therein respect is ever to be had to the condition of the Churches Persons and Places Visited as may plainly appear by the express words of the Canon aforesaid viz. Sane quod de numero evectionis secundum tolerantiam dictum est in illis Locis poterit observari in quibus ampliores sunt redditus Ecclesiasticae facultates In pauperibus autem Locis tantam volumus teneri mensuram ut ex accâ—ssu majorum minores non debeant gravari ne sub tali indulgentia illi qui paucioribus Equis uti solebant hactenus plurium sibi credant potestatem indultam So that no Archdeacon or other having Right of Visitation ought by what the Law allows them in that case to exercise their power in this matter beyond what the condition of the place Visited will reasonably admit In all Visitations of Parochial Churches made by Bishops and Archdeacons the Law hath provided that the Charge thereof should be answered by the Procurations then due and payable by the Inferiour Clergy wherein Custome as to the Quantum shall prevail but the undue Demands and supernumerary Attendants of Visitors have Anciently as well as in Later times given the occasion of frequent Contests and Complaints For prevention whereof it was Ordained by the 25th Canon of the Council of Lateran under Pope Alexander circa An. 1179. in haec verba viz. Cum quidam Fratrum Coepiscoporum nostrorum ita graves in Procurationibus subditis suis existunt ut pro hujusmodi causa interdum ipsa Ecclesiastica Ornamenta subditi compellantur exponere longi temporis victum brevis hora consumat Quocirca statuimus Quod Archiepiscopi Parochias Visitantes pro diversitate Provinciarum facultatibus Ecclesiarum 40 vel 50 evectionis Numerum Episcopi 20 vel 30 Cardinales vero 20 vel 25 nequaquam excedunt Archidiaconi vero Quinque aut Septem Decani Constituti sub Episcopis Duobus Equis contenti existant Prohibemus etiam ne subditos suos talliis exactionibus Episcopi gravare praesumant Archidiaconi autem sive Decani nullas exactiones vel tallias in Presbyteros seu Clericos exercere praesumant vid. Chron. Gervas de Temp. H. 2. col 1455. can 25. whereby it is evident that these Procurations ought to be so moderated by the Bishops as that they may not become a burthen or grievance to the Clergy The lawfulness of these Episcopal and Archidiaconal Rights of Procurations are not to be called into question at this day for in all the Establishments and Ordinations of Vicarages upon the Ancient Appropriations of Churches you shall find these Procurations excepted and reserved in statu Quo As appears by these of Feversham and Middleton when by William the Conqueror they were Appropriated to the Abbey of St. Austins as also by these of Wivelsberg Stone and Brocland in Kent when they were Appropriated to the same Abbey by the Charter of King Ed. 3. and in that of the Parish of Stone aforesaid Pentecostals by name are reserved in these words Nihilominus solvet Procurationem debitam Archidiacono Cantuariensi Visitanti expensas pro Pentecostalibus faciendis vid. Chron. W. Thorne Appropria Eccles col 2089. Hist Angl. What Procurations the Archbishop of Messena who arrived in England as the Popes Legate in the year 1261. exacted and extorted from the Bishops and Abbots with great violence in the Reign of King H. 3. you may find in Matthew Paris But by the Fourth Canon of the Council at Rome under Pope Alex. 3. An. 1180. it was Ordained That Bishops and Archbishops in their Visitations should not overcharge the Church of their Bounds with unnecessary charges and expences specially the Churches that are poor No sooner had Princes in Ancient times assign'd and limited certain Matters and Causes controversal to the cognizance of Bishops and to that end dignified the Episcopal Order with an Ecclesiastical Jurisdiction but the multiplicity and emergency of such affairs requir'd for the dispatch and management thereof the assistance of such subordinate Ordinaries as being experienc'd in the Laws adapted to the nature of such Causes might prove a sufficient Expedient to prevent the avocation of Bishops by reason of such Litigious interpositions from the discharge of the more weighty Concerns of that Sacred Function Hence it is supposed that the Ecclesiastical Office of Diocesan Chancellors Commissaries and Officials originally came into use and practice the place of their Session anciently styled the Bishops
Present within Four months next after the Church becomes void but if the Patronage be Ecclesiastical then within Six cap. unico de Jur Patronat in 6. Concerning Appropriations of Churches the first thereof since the Conquest appears to be that of Feversham and Middleton in Kent An. 1070. granted by William the Conquerour to the Abbey of St. Austins in Canterbury in manner following viz. In Nomine c. Ego Willielmus c. ex his quae omnipotens Deus sua gratia mihi largiri est dignatus quaedam concedo Ecclesiae S. Augustini Anglorum Apostoli c. pro salute Animae meae Parentum meorum Predecessorum Successorum haereditario jure haec sunt Ecclesiae Decimae duarum Mansionum viz. Feversham Middleton ex omnibus redditibus qui c. omnibus ibidem appendentibus terra sylva pratis aqua c. Haec omnia ex integro concedo S. Augustino Abbati Fratribus ut habeant teneant possideant in perpetuum which was afterward Confirmed by Pope Alexander the Third and Ratified by Theobald Archbishop of Canterbury together with an Establishment and Ordination of a Vicarage by the said Archiepiscopal Authority in each of the said Churches respectively The like you have for the Appropriating of three other Churches to the same Abbey viz. of Wyvelsberg Stone and Brocland in Kent by the Charter of Ed. 3. above Three hundred years since Confirmed by Pope Clement's Bull and Ratified by Simon Mepham then Archbishop of Canterbury with his Establishment of Three perpetual Vicarages to the said Churches Which Charter is to this effect viz. Nos de gratia nostra speciali pro C. Libris quas praefati Abbas Conventus nobis solvent c. Concessimus Licentiam dedimus pro Nobis haeredibus nostris quantum in Nobis est ejusdem Abbati Conventui quod ipsi Ecclesias praedictas Appropriare eas sic Appropriatas in proprios usus tenere possint sibi Successoribus suis in perpetuum nisi in hoc Quod Nos tempore vacationis Abbatiae praedictae si contigerit Ecclesias praedictas vel aliquam earundem tunc vacare Nos Jus Praesentandi ad easdem amitteremus sine occasione vel impedimento Nostri vel haeredum nostrorum quorumcunque Hujus Data est sub An. Do. 1349. The Modern Church-Historian of Britain in his Eleventh Book pag. 136. calls to remembrance That about An. 1626. there were certain Feoffees a whole dozen of them though not incorporated by the Kings Letters Patents or any Act of Parliament yet Legally he says settled in Trust to purchase in Impropriations and that it was incredible how then possible to be believed what large Sums were advanced in a short time towards that work But then withal tells us somewhat that is Credible viz. That there are 9284 Parochial Churches in England endowed with Glebe and Tithes but of these when the said Feoffees entered on their work 3845 were either Appropriated to Bishops Cathedrals and Colledges or Impropriated as Lay-Fees to Private persons as formerly belonging to Abbeys The Redeeming and Restoring he does not mean to the Abbeys was the design of these Feoffees as to those in the hands of Private persons but re infecta the Design proved abortive A Commendam or Ecclesia Commendata so called in contradistinction to Ecclesia Titulata is that Church which for the Custodial charge and government thereof is by a revocable Collation concredited with some Ecclesiastical person in the nature of a Trustee vel tanquam fidei Commissarius and that for the most part only for some certain time absque titulo for he that is Titularly Endowed hath the possession of the Church in his own Name and in his own proper Right during his life hence it is that in the Canon Law a Church collated in Commendam and a Church bestowed in Titulum are ever opposed as contraries vid. Hist Concil Trident. lib. 6. pag. 600. Duaren de Benefic lib. 5. cap. 7. Thus King Edgar Collated Dunstan Bishop of Worcester to the Bishoprick of London by way of Commendam Rex Edgarus says Radulph de Diceto in his Abbreviat Chronicorum Lundoniensem Ecclesiam proprio Pastore viduatam commisit regendam Dunstano Wigornensi Episcopo Et sic Dunstanus Lundoniensem Ecclesiam Commendatam habuit non Titulatam dict Radulph de An. 962. It is supposed that the first Patent of a Commendam retinere granted in England by the King to any Bishop Elect was that which King Henry the Third by the advice of his Council in imitation of the Popes Commendams then grown very common granted by his Letters Patents to Wengham then Chancellor of England notwithstanding his insufficiency in the knowledge of Divinity to hold and retain all his former Ecclesiastical Dignities and Benefices whereof the King was Patron together with his Bishoprick he then succeeded Fulco Bishop of London for so long time as the Pope should please to grant him a Dispensation whose Dispensation alone would not bar the King to Present to those Dignities and Benefices being all void in Law by making him a Bishop He had also the like Patent of Commendam retinere as to his Benefices and Ecclesiastical Preferments in Ireland And this Patent of such a Commendam being made by the King his Lords and Judges is for that reason the more remarkable vid. Le Hist. of the Church of Great Britain pag. 84. According to the proper and ancient Account Commendams were originally introduced in favour and for advantage of the Church which is Commended in favorem utilitatem Ecclesiae quae Commendatur Imola in ca. Nemo de Elect. in 6. says that Commendams are not to be Nisi ex evidenti Ecclesiae Commendatae necessitate vel utilitate The distinction of Temporal and Perpetual Commendams in the Canon Law is of no great use with us indeed in the Church of Rome according to the former mode of Commendams a vacant Church is Commended either by the Authority of the Pope if it be a Cathedral ca. penult ult 21. q. 1. or by the Authority of the Bishop if it be a Church Parochial This is commonly Temporal or for Six months and is in utilitatem Ecclesiae the other commonly Perpetual and are magis in subventionem eorum quibus commendantur quam ipsarum Ecclesiarum And a Commendatary for life is the same in reality with the Titular These Commendams in their Original were Instituted to a good purpose but after used to an evil end For when by reason of Wars Pestilence or the like the Election or Provision could not be made so soon as otherwise it might the Superiour did Recommend the vacant Church to some honest and worthy person to govern it besides the Care of his own until a Rector were provided who then had nothing to do with the Revenues but to govern them and consign them to another But in process of
Ecclesiastical Court might proceed to punish the Offender who offered violence to a Priest the which de jure it might do by proceeding Ex Officio pro salute animae Dammages on an Action of Battery in the case reserved to the Common Law To conclude The Protestation which Bellamera the Canonist in the Proem to his Lecture on the Clementine Constitutions makes shall as to this Repertorium Canonicum Jurisve Anglico-Ecclesiastici Compendium be mine Id submittens correctioni determinationi tam Canonum Ecclesiasticorum quam Statutorum Jurumque Publice Forensium Secularium cujuslibet melius sentientis Protestans quod si in praesenti Opusculo de lapsu chalami aut inadvertentia vel forte ex ignorantia aliqua jam Scripsero id praeter intentionem scribere me contigerit Si etiam aliqua Scripsero quae errorem saperent aut male sonarent illa ex nunc Revoco volo haberi pro non Scriptis Determinationibusque Ecclesiae Anglicanae dicti Juris Forensis Oraculis semper in omnibus volo stare Et hanc Protestationem volo pro Repetita haberi in quolibet Dictorum meorum etiam condicendorum ut si reprobantur dicta Actor non propter hoc reprobetur The several CHAPTERS of the Ensuing Abridgment CHAP. PAGE 1. OF His Majesties Supremacy 1 2. Of Archbishops 12 3. Of Bishops and Ordinaries 22 4. Of Guardians of the Spiritualties 39 5. Of Congé d'Eslire Election and Confirmation 43 6. Of Consecration 46 7. Of Deans and Chapters 51 8. Of Archdeacons 60 9. Of Procurations Synodals and Pentecostals 67 10. Of Diocesan Chancellors Commissaries Officials as also of Consistories 80 11. Of Courts Ecclesiastical and their Jurisdiction 94 12. Of Churches Chappels and Church-yards 134 13. Of Churchwardens Questmen and Sidemen 159 14. Of Consolidation and Vnion of Churches 169 15. Of Dilapidations 173 16. Of Patrons and De jure Patronatus 178 17. Of Parsons and Parsonages 185 18. Of Vicars Vicarages and Benefices 196 19. Of Advowsons 220 20. Of Appropriations 220 21. Of Commendams 230 22. Of Lapse 242 23. Of Collation Presentation and Nomination 251 24. Of Examination Admission Institution and Induction 269 25. Of Avoidance and Next Avoidance also of Cession 282 26. Of Pluralities 291 27. Of Deprivation 305 28. Of Incumbents also of Residence and Non-Residence 316 29. Of Abbots and Abbies also of Chauntreys and of the Court of Augmentations 326 30. Of Annates or First-Fruits also of Aumone or Frank-Almoin 335 31. Of Altarage 339 32. Of Tithes with the Incidents thereof 344 33. Of Banns 465 34. Of Adultery 469 35. Of Bastards and Bastardy 477 36. Of Divorce also of Alimony 492 37. Of Defamation 514 38. Of Sacriledge 528 39. Of Simony 535 40. Of Blasphemy Heresie and Hereticks 559 41. Of Councils Synods and Convocations 584 42. Of Excommunication 623 43. Of the Statutes Articuli Cleri and Circumspecte agatis 639 44. Of several Writs at Common Law pertinent to this Subject 643 AN ABRIDGEMENT OF Ecclesiastical LAWS CHAP. I. Of the Kings Supremacy 1. A Description thereof or what it is 2. The Establishment thereof by Statute Laws 3. The Oath of the Kings Supremacy when first Enacted the Cause thereof 4. The King in his own Dominions Dei Vicarius 5. The King Supream Governour under God of the Church in England c. 6. Impugners of the Kings Supremacy how censured by the Canon 7. In matters Ecclesiastical the King hath here the same power de jure which the Pope formerly exercised by Usurpation 8. The Kings of this Realm anciently made their own Canons and Ecclesiastical Constitutions without the Popes Authority 9. The King is Lex viva in some cases may dispence with some Canons 10. Provisoes of some Statutes in right of the Kings Supremacy 11. No Canons or Ecclesiastical Constitutions to be made or to be of force to oblige the Subject without the Royal Assent 12. The Regal Supremacy asserted by the Ecclesiastical Injunctions of King Ed. 6. 13. The same further asserted by other Eccles Powers and Authorities 14. The Regal Supremacy asserted in the Reign of Queen Elizabeth 1. THis Ecclesiastical Abridgment begins with the Regal Supremacy a Point which cannot be touch'd with too much tenderness such of the Church of Rome as question the validity thereof may be presumed not to have consulted that Learned Canonist of their own Jo. Quintinus Hoedeus where he says That Nemini dubium quin in Primitiva Ecclesia de rebus Personis Ecclesiasticis Principes jus dixerint The Emperours were all Secular Princes who by those Laws which they established touching Persons and Things Ecclesiastical proclaimed to all the world their Supremacy therein The Thirteen first Titles of the First Book of the Emperour Justinian's Code being the Constitutions of divers Emperours do treat and judge of Things and Persons meerly Ecclesiastical yea the Emperours Areadius and Honorius ejected a Bishop as well out of his Title of Ecclesiastical Dignity as out of his Episcopal See and commanded him to be Banished for disturbing the publick Peace l. quicunque C. de Episc Cleric By this word Supremacy is here understood that undoubted Right and ancient Jurisdiction over the State Ecclesiastical within these his Majesties Realms and Dominions with the abolishing of all Forein and Usurped Power repugnant to the same which the Laws and Statutes have restored to the Crown of this Kingdom and now invested in the King as the Highest Power under God within these his Majesties Realms and Dominions unto whom all persons within the same in all Causes and Matters as well Ecclesiastical as Temporal do owe their Loyalty and Obedience before and above all other Powers and Potentates on Earth whatever 2. By the Injunctions of King Ed. 6. to the Clergy all persons Ecclesiastical having cure of Souls were Four times a year to preach in vindication of the Kings Supremacy and in opposition to the usurped power of the Bishop of Rome in this Kingdom There were divers Laws made in the time of King H. 8. for the extinguishment of all Forein Power and for the restoring unto the Crown of this Realm the Ancient Rights and Jurisdictions of the same which is the substance of the Preamble of the Statute of 1 Eliz. cap. 1. The express Letter and meaning whereof is as Sir Edward Coke observes to restore and unite to the Crown the Ancient Jurisdiction Spiritual or Ecclesiastical where as he says the First clause of the Body of the Act being to let in the Restitution of the Ancient Right and Jurisdiction Ecclesiastical within the Realm doth abolish all Forein Jurisdiction out of the Realm And then followeth the principal Clause of Restitution and Uniting of the ancient Jurisdiction Ecclesiastical being the main purpose of the Act in these words viz. Be it Enacted That such Jurisdiction Spiritual or Ecclesiastical as by any Spiritual Power or Authority hath heretofore been or lawfully may be exercised or used
which in the days of King Lucius was an Archbishoprick as aforesaid till St. Augustine in the year 598 took on him the Title of Archbishop of England setling his See at Canterbury 8. Upon the abrogating of the Popes power in England by King H. 8. in the Seventh year of his Reign it was concluded that the Archbishop of Canterbury should no more be styled the Popes Legate but Primate and Metropolitan of all England at which time Tho. Cranmer Fellow of Jesus-Colledge in Cambridge who pronounced the Divorce from Queen Katharine of Spain upon his advice given the King to leave the Court of Rome and to require the Opinions of Learned Divines being then in Germany procured such favour with the King that he caused him to be elected to this See of Canterbury and was afterwards with the then Bishop of Duresme made Tutor to King Edward the Sixth 9. The Archbishop of Canterbury was supposed to have had a concurrent Jurisdiction in the inferiour Diocesses within his Province which is not denied in the case of Dr. James only it is there said That was not as he was Archbishop but as he was Legatus Natus to the Pope as indeed so hâ— was before the tâ—me of King H. 8. as aforesaid by whom that Power together with the Pope was abrogated and so it ceased which the Archbishop of York never had nor ever claimed as appears in the forecited Case where it is further said That when there is a Controversie between the Archbishop and a Bishop touching Jurisdiction or between other Spiritual Persons the King is the indifferent Arbitrator in all Jurisdictions as well Spiritual as Temporal and that is a right of his Crown to distribute to them that is to declare their Bounds Consonant to that which is asserted in a Case of Commendam in Colt and Glovers Case against the Bishop of Coventry and Lichâ—ield where it is declared by the Lord Hobart Chief Justice That the King hath an immediate personal originary inherent Power which he executes or may execute Authoritate Regia Suprema Ecclesiastica as King and Sovereign Governour of the Church of England which is one of those Flowers qui faciunt Coronam which makes the Royal Crown and Diadem in force and vertue The Archbishop of Canterbury as he is Primate over All England and Metropolitan hath a Supereminency and some power even over the Archbishop of York hath under the King power to summon him to a National Synod and Archiepiscopus Eboracensis venire debet cum Episcopis suis ad nutum ejusâ— ut ejus Canonicis dispositionibus Obediens existat Yet the Archbishop of York had anciently not only divers Bishopricks in the North of England under his Province but for a long time all the Bishopricks of Scotland until little more than 200 years since and until Pope Sixtus the Fourth An. 1470. created the Bishop of St. Andrews Archbishop and Metropolitan of all Scotland He was also Legatus Natus and had the Legantine Office and Authority annexed to that Archbishoprick he hath the Honour to Crown the Queen and to be her perpetual Chaplain Of the forementioned Diocesses of his Province the Bishop of Durham hath a peculiar Jurisdiction and in many things is wholly exempt from the Jurisdiction of the Archbishop of York who hath notwithstanding divers Priviledges within his Province which the Archbishop of Canterbury hath within his own Province 10. The Archbishop is the Ordinary of the whole Province yet it is clear That by the Canon Law he may not as Metropolitan exercise his Jurisdiction over the Subjects of his Suffragan Bishops but in certain Cases specially allowed in the Law whereof Hostiensis enumerates one and twenty The Jurisdiction of the Archbishop is opened sometimes by himself nolente Ordinario as in the Case of his Visitation and sometimes by the party in default of Justice in the Ordinary as by Appeal or Nullities Again it may sometimes be opened by the Ordinary himself without the party or Archbishop as where the Ordinary sends the Cause to the Archbishop for although the Canon Law restrains the Archbishop to call Causes from the Ordinary Nolente Ordinario save in the said 21 Cases yet the Law left it in the absolute power of the Ordinary to send the Cause to the Archbishop absolutely at his will without assigning any special reason and the Ordinary may consult with the Archbishop at his pleasure without limitation Notwithstanding which and albeit the Archbishop be Judge of the whole Province tamen Jurisdictio sua est signata non aperitur nisi ex causis Nor is the Subject hereby to be put to any such trouble as is a Grievance and therefore the Law provides that Neminem oportet exire de Provincia ad Provinciam vel de Civitate ad Civitatem nisi ad Relationem Judicis ita ut Actor forum Rei sequatur 11. If the Archbishop visit his Inferiour Bishop and Inhibit him during the Visitation if the Bishop hath a title to Collate to a Benefice within his Diocess by reason of Lapse yet he cannot Institute his Clerk but he ought to be presented to the Archbishop and he is to Institute him by reason that during the Inhibition his power of Jurisdiction is suspended It was a point on a special Verdict in the County of Lincoln and the Civilians who argued thereon seemed to agree therein but the Case was argued upon another point and that was not resolved Likewise by the Statute of 25 H. 8. c. 21. the Archbishop of Canterbury hath power to give Faculties and Dispensations whereby he can as to Plurality sufficiently now Dispense de jure as Anciently the Pope did in this Realm de facto before the making of that Statute whereby it is enacted That all Licenses and Dispensations not repugnant to the Law of God which heretofore were sued for in the Court of Rome should be hereafter granted by the Archbishop of Canterbury and his Successors 12. By the Constitutions and Canons Ecclesiastical Edit 1603. Can. 94. It is Ordained That no Dean of the Arches nor Official of the Archbishops Consistory shall originally Cite or Summon any person which dwelleth not within the particular Diocess or Peculiar of the said Archbishop c. without the License of the Diocesan first had and obtained in that behalf other than in such particular Cases only as are expresly excepted and reserved in and by the Statute of 23 H. 8. c. 9. on pain of suspension for three months In the Case of Lynche against Porter for a Prohibition upon the said Statute of 23 H. 8. c. 9. it was declared by the Civilians in Court That they used to Cite any Inhabitant of and in London to appear and make Answer in the Archbishop of Canterbury's high Court of Arches originally And Dr. Martyn said It had been so used for the space of 427 years before the making of the Statute and upon
complaint thereof made to the Pope the Answer was That any man might be Cited to the Arches out of any Diocess in England Also That the Archbishop may hold his Consistory in any Diocess within his Jurisdiction and Province That the Archbishop hath concurrent Jurisdiction in the Diocess of every Bishop as well as the Archdeacon and That the Archbishop of Canterbury prescribes to hold Plea of all persons in England But as to his power of having a Consistory in the Diocess of every Bishop this was in this Case denied but only where he was the Popes Legate whereof there were Three sorts 1. Legates à Latere and these were Cardinals which were sent à Latere from the Pope 2. A Legate born and these were the Archbishops of Canterbury York and Mentz c. 3. A Legate given and these have Authority by special Commission from the Pope Likewise in the Case of Jones against Boyer C. B it was also said by Dr. Martyn That the Archbishop hath Ordinary Jurisdiction in all the Diocesses of his Province and that this is the cause that he may Visit 13. The Archbishop of Canterbury Anciently had Primacy as well over all Ireland as England from whom the Irish Bishops received their Consecration for Ireland had no other Archbishop until the year 1152. For which reason it was declared in the time of the Two first Norman Kings That Canterbury was the Metropolitan Church of England Scotland and Ireland and the Isles adjacent the Archbishop of Canterbury was therefore sometimes styled a Patriarch and Orbis Britannici Pontifex insomuch that Matters recorded in Ecclesiastical Affairs did run thus viz. Anno Pontificatus Nostri primo secundo c. He was also Legatus Natus that is he had a perpetual Legantine power annext to his Archbishoprick nigh a thousand years since And at General Councils he had the Precedency of all other Archbishops abroad and at home he had some special Marks of Royalty as to be the Patron of a Bishoprick as he was of Rochester to coyn Mony to make Knights and to have the Wardships of all those who held Lands of him Jure Hominii although they held in Capite other â—ands of the King as was formerly hinted He is said to be Inthroned when he is invested in the Archbishoprick And by the Stat. of 25 H 8. he hath power to grant Licenses and Dispensations in all Cases heretofore sued for in the Court of Rome not repugnant to the Law of God or the Kings Prerogative As also to allow a Clerk to hold a Benefice in Commendam or in Trust to allow a Clerk rightly qualified to hold Two Benefices with Cure of Souls to allow a Beneficed Clerk for some certain causes to be non-Resident for some time and to Dispense in several other Cases prohibited by the Letters of the Canon Law Likewise the Archbishop of Canterbury Consecrates other Bishops confirms the Election of Bishops within his Province calls Provincial Synods according to the Kings Writ to him ever directed is chief Moderator in the Synods and Convocations he Viâ—its the whole Province appoints a Guardian of the Spiritualties during the vacancy of any Bishoprick within his Province whereby all the Episcopal Ecclesiastical Rights of that Diocess for that time belong to him all Ecclesiastical Jurisdictions as Visitations Institutions c. He may retain and qualifie Eight Chaplains which is more by Two than any Duke is allowed by Statute to do and hath power to hold divers Courts of Judicature for the decision of Controversies pertaining to Ecclesiastical Cognizance CHAP. III. Of Bishops and Ordinaries 1. Bishop Why so called Not above One to be in one Diocess 2. Why called Ordinary and what the Pallium Episcopale is 3. Bishopricks originally Donative Kings of England the Founders thereof 4. The manner of Election of Bishops their Confirmation and Consecration 5. Their Seals of Office in what cases they may use their own Seals 6. What follows upon Election to make them Bishops compleat the grant of their Temporalties 7. The Conge d'eslire and what follows thereupon 8. Bishopricks were Donative till the time of King John 9. What the Interest and Authority is in his several capacities 10. Episcopal Authority derived from the Crown 11. The Vse and Office of Suffragan Bishops 12. Whether a Bishop may give Institution out of his own proper Diocess and under other Seal than his own Seal of Office 13. Several things incident to a Bishop qua talis 14. Ordinary what properly he is and why so called 15. In what cases the Ordinaries Jurisdiction is not meerly Local 16. The Ordinaries power de jure Patronatûs 17. Whether the Ordinary may cite a man out of his own Diocess Also his Right ad Synodalia 18. The Ordinaries power of Visitation 19. The Dignity and true Precedency of the Bishops in England 20. Temporal Jurisdiction anciently exercised by Bishops in this Realm the Statute of 17 Car. 1. against it Repealed and they Restored to it by the Stat. of 13 Car. 2. as formerly 21. The Act made in the Reign of Ed. 6. concerning the Election of Bishops the Endeavours thereby to take away Episcopal Jurisdiction the Nomination of all Bishops was Anciently Sole in the King 22. The Bishops of London are Deans of the Episcopal Colledge 23. A Case at Common Law touching a Lease made by one Bishop during the life of another of the same Diocess in Ireland 1. BISHOP Episcopus from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 supra and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 intendere an Overseer or Superintendent so called from that watchfulness care charge and faithfulness which by his Place and Dignity he hath and oweth to the Church A word which all Antiquity hath appropriated to signifie the Chief in Superintendency over the whole Church within his Diocess wherein are divers inferiour Pastors This Oversight or Care the Hebrews call Pekudah Of this Office or Ecclesiastical Dignity there can be but one at a time in one and the same Diocess whence it is that Cornelius Bishop of Rome as Eusebius relates upbraided Novatius for his ignorance in that point when he could not but know there were no less than 46 Presbyters in that Church Oecumenius and St. Chrysostome affirming also as many at Philippi For in this restrained sense as the word Bishop is now taken it cannot be imagined that there should be more than one in one City or Diocess at the same time consonant whereunto the Synod of Nice prohibited Two or more Bishops to have their Seats at once in the same City This Novatius aforesaid was a Priest of Rome 254 years after Christ he abhorred Second Marriages and was condemned as an Heretick in a Synod at Rome the same year Every Bishop many Centuries after Christ was universal Incumbent of his Diocess received all the Profits which were but Offerings of Devotion out of which he paid the Salaries of such as Officiated under himâ—
manner viz. The Bishops See being vacant the Dean and Chapter of that Cathedral gives notice thereof to the King humbly requesting his Majesty's leave to chuse another the King grants his Congé d'Eslire Thereupon the Dean summons a Chapter they elect the person recommended by his Majesties Letters that Election after a first or second modest refusal being accepted by the party elected is certified to the King and to the Archbishop of that Province hereupon the King grants his Royal Assent under his Great Seal exhibited to the said Archbishop with Command to Confirm and Consecrate him upon this the Archbishop subscribes his Fiat Confirmatio withal giving Commission under his Archiepiscopal Seal to his Vicar-General to perform all the Acts requisite for perfecting his Confirmation Hereupon the Vicar-General in the Archbishops name issues a Citation summoning all Opposeâ—s of the said Election to make their appearance at a certain time and place then and there to offer their Objections if they have any This done by an Officer of the High-Court of Arches usually at Bow-Church London by Proclamation thrice and affixing the said Citation on that Church-door an Authentick Certificate thereof is by the said Officer returned to the said Archbishop and Vicar-General At the time and place aforesaid the Proctor for the said Dean and Chapter exhibits the Royal Assent and the Commission of the Archbishop to the Vicar-General who after the reading thereof accepts the same Then the Proctor exhibits the Proxy from the Dean and Chapter presents the elected Bishop returns the Citation and desires that the Opposers may be thrice publickly called which done and their Contumacy accused desires that in poenam Contumaciae the business in hand may proceed which the Vicar-General in a Schedule by him read and subscribed doth order Then the Proctor gives a Summary Petition therein deducing the whole Process of Election and Consent and desires a time may be assign'd him to prove it which the Vicar-General admits and decrees After this the Proctor exhibits the Royal Assent again with the elected Bishops Assent and the said Certificate to the Archbishop desiring a time to be presently assigned for Final Sentence which the Vicar-General decrees Then the Proctor desires that all Opposers may again be thrice publickly called which done and none appearing nor opposing they are pronounced Contumacious and a Decree made to proceed to Sentence by a Schedule read and subscribed by the Vicar-General Whereupon the Bishop elect takes the Oaths of Supremacy Simony and Canonical Obedience After this the Dean of the Arches reads and subscribes the Sentence Next after the Confirmation follows the Consecration of the elected Bishop according to the Kings Mandate which is solemnly done by the Archbishop with the assistance of two other Bishops according to the approved Rights and Ceremonies of the Church of England and in conformity to the manner and Form of Consecrating Bishops according to the Rule laid down in the Fourth Council of Carthage about the year 470 generally received in all the Provinces of the Western Church After the Premises there issues a Mandate from the Archbishop to the Archdeacon of his Province to install the Bishop Elected Confirmed and Consecrated who or his Proxy which is usual being in presence of a Publick Notary introduced into the Cathedral Church on any day between the hours of 9 and 11 by the said Archdeacon doth first declare his assent to the Kings Supremacy c. Then the Archdeacon with the Canons c. having accompanied the Bishop to the Quire and placed him in the Episcopal Seat doth pronounce as followeth viz. Ego authoritate mihi Commissa Induco Inthroâ—izo Reverendum in Christo Patrem Dominum J. S. Episcopum Et Dominus custodiat suum introitum exitum ex hoc nunc in saeculum c. Then after the Divine Service proper for the occasion the Bishop being conducted into the Chapter-house and there placed on a high Seat the Archdeacon and all the Prebends c. of the Church acknowledge Canonical Obedience to him And the Publick Notary by the Archdeacons command records the whole matter of Fact in this Affair in an Instrument to remain as Authentick to Posterity After all which the Bishop is introduced into the Kings presence to do his Homage for his Temporalties or Barony by kneeling down and putting his hands between the hands of the King sitting in his Chair of State and by taking a solemn Oath to be true and faithful to his Majesty and that he holds his Temporalties of Him When Matth. Parker in the second year of Queen Eliz. 1559. elected to the Archbishoprick of Canterbury had his Confirmation in the Court of Arches according to the usual form in that behalf This being performed an entertainment for the Vicar General the Dean of the Arches and other Officers of that Court whose presence was requisite at this Solemnity was provided at the Nagâ—head Tavern in Cheapside Lond. whereby occasion was taken by the Roman Adversaries maliciously to report That the Nagshead Tavern was the place of Consecration Heyl. The form or manner of making a Bishop and of translating him from one Bishoprick to another differs only in this that in the latter there needs no Consecration And the translation of a Bishop to an Archbishoprick differs only in the Commission which is directed by his Majesty to four or more Bishops to Confirm him 5. Each Archbishop every Bishop and their Officials have their Seals of Office respectively which being affixed to a writing makes the Instrument Authentick whereby the use and practice of Tabellions or Publick Notaries as in Forreign parts is with us much abated For that of a Tabellion allowed by Authority to Engross and Register private Contracts and Obligations his Office in some Countries did formerly differ from that of a publick Notary but now they are as one and the same Office Quoniam Tabellionum usus in Regno Angliae proper quod magis ad Sigilla Authentica credi est necesse ut â—orum facilius habeatur Statuimus ut Sigillum habeant non solum Archiepiscopi Episcopi sed eorum Officiales And all Bishops Ordinaries Archdcacons and all others exercising any Ecclesiastical Jurisdiction ought to have the Kings Arms engraven on their Seal of Office but the Archbishop of Canterbury may use his own Seal And all Process Ecclesiastical and Certificates into any Court of Record are to be in the Kings name Teste the Bishop But as to the making admitting ordering and reforming of Chancellors Commissaries Officials Advocates Proctors and other Officers Ministers and Substitutes This the Bishops may do in their own Names and under their own Seals 6. If one be Elected and the Temporalties granted to him yet he is not Bishop before Consecration 41 E. 3. 6. 46 E. 3. 32. Quaere For he may refuse to be Bishop after Election and before Consecration but not after 41 E. 3. 5. b. When upon
17. is to that purpose 11. In former times many Bishops had their Suffragans who were also Consecrated as other Bishops were These in the absence of the Bishops upon Embassies or in multiplicity of business did supply their places in matter of Orders but not in Jurisdiction These were chiefly for the ease of the Bishops in the multiplicity of their Affairs ordained in the Primitive times called Chorepiscopi Suffragan or Subsidiary Bishops or Bishops Suffragans and were Titular Bishops Consecrated by the Archbishop of the Province and to execute such Power and Authority and receive such profits as were limited in their Commissions by the Bishops or Diocosans whose Suffragans they were What Towns or Places to be the Sees of Bishops Suffragans and how many to a Diocess and in what Diocesses appears by an Act of Parliament made in the Reign of King H. 8. Such Suffragan Bishops are made in case the Archbishop or some other Bishop desire the same In which case the Bishop presents Two able persons for any place allowed by the said Act of Parliament whereof his Majesty doth chuse one but at present there are no Suffragan Bishops in England They were no other than the Chorepiscopi of the Primitive Times Subsidiary Bishops ordained for easing the Diocesan of some part of his burthen as aforesaid by means whereof they were enabled to perform such Offices belonging to that Sacred Function not limited to time and place by the ancient Canons by which a Bishop was restrained in some certain Acts of Jurisdiction to his proper Diocess Of these there were twenty six in the Realm of England distinguished by the Names of such Principal Towns as were appointed for their Title and Denomination The Names and Number whereof together with the Jurisdiction and preheminences proportioned to them the Reader may peruse in the Act of Parliament made An. 26 H. 8. 12. According to the Temporal Laws of this Land if a Bishop grant Letters of Institution under any other Seal than his Seal of Office and albeit it be out of his Diocess yet it is good For in Cort's Case against the Bishop of St. Davids and others where the Plaintiff offered in evidence Letters of Institution which appeared to be sealed with the Seal of the Bishop of London because the Bishop of St. Davids had not his Seal of Office there and which Letters were made also out of the Diocess It was held That they were good enough albeit they were sealed with another Seal and made out of the Diocess for that the Seal is not material it being an Act made of the Institution And the writing and sealing is but a Testimonial thereof which may be under any Seal or in any place But of that point they would advise 13. A Bishop if he celebrate Divine Service in any Church of his Diocess may require the Offerings of that day He may sequester if the King present not and 12 H. 8. 8. by Pollard he must see the Cure served if the person fail at his own Costs He may commit Administration where Executors being called refuse to prove the Will He hath power of distribution and disposing of Seats and charges of Repairs of the Churches within his Diocess He may award his Jure Patronatus where a Church is Litigious between an Usurper and the other but if he will chuse the Clerk of either at his peril he ought at his peril to receive him that hath Right by the Statute He may License Physicians Chirurgions Schoolmasters and Midwives He may Collate by Lapse He may take competent time to examine the sufficiency and fitness of a Clerk He may give convenient time to persons interested to take notice of Avoidances He is discharged against the true Patron and quit of Disturbance to whom it cannot be imputed if he receive that Clerk that is in pursuance of a Verdict after Inquest in a Jure Patronatus He may have Six Chaplains and every Archbishop may have Eight Chaplains He may unite and consolidate small Parishes and assist the Civil Magistrate in execution of some Statutes concerning Ecclesiastical Affairs And by the Statute of 1 Eliz. cap. 2. any Bishop may at his pleasure joyn and associate himself to the Justices of Oyer and Terminer or to the Justices of Assize at the open and general Sessions to be holden at any place within his Diocess in Causes of the Church And the Statute made 17 Car. 1. c. 27. for the disinabling of persons in Holy Orders to exercise Temporal Jurisdiction or Authority is Repealed by the Statute of 13 Car. 2. cap. 2. whereby they are now enabled to exercise such Temporal Jurisdiction as formerly and is commonly styled the Ordinary of that Diocess where he doth exercise his Episcopal Authority and Jurisdiction In Parliament Bishops as Barons may be present and Vote at the Trial and Arraignment of a Peer only before Sentence of death or loss of Member be pronounced that they may have no hand in blood in any kind they have by Canon Law the Priviledge and Injunction to absent themselves and by Common Law to make Proxies to vote for them 14. ORDINARY according to the acceptation of the Common Law with us is usually taken for him that hath Ordinary Jurisdiction in Causes Ecclesiastical immediate to the King He is in Common understanding the Bishop of the Diocess who is the Supervisor and for the most part Visitor of all his Churches within his Diocess and hath Ordinary Jurisdiction in all the Causes aforesaid for the doing of Justice within his Diocess in jure proprio non per deputationem and therefore it is his care to see that the Church be provided of an able Curate Habet enim Curam Curarum and may execute the Laws of the Church by Ecclesiastical Censures and to him alone are made all Presentations to Churches vacant within his Diocess Ordinarius habet locum principaliter in Episcopo aliis Superioribus qui soli sunt Vniversales in suis Jurisdictionibus sed sunt sub eo alii Ordinarii hi videlicet quibus Competit Jurisdictio Ordinaria de jure privilegio vel consuetudine Lindw cap. Exterior tit de Constitutionib 15. The Jurisdiction of the Ordinary or Bishop as to the Examination of the Clerk or as to the Admission or Institution of him into a Benefice is not Local but it follows the person of the Ordinary or Bishop wheresoever he is And therefore if a Clerk be presented to the Bishop of Norwich to a Church which is void within the Diocess of Norwich who is then in London or if it be to a Bishop of Ireland who is then in England and in London the Ordinary may examine the Clerk or give him Admission or Institution in London And so it was adjudged 16. The Ordinary is not obliged upon a Vacancy to receive the Clerk of him that comes first for as he
1 Jac. cap. 3. vid. 17 Ed. 3. cap. 40. 2. The Congé d'Eslire being granted to the Dean and Chapter they proceed accordingly to Election which in the sense here intended as appropriated to this Subject is that Regular Choice which is made of an Ecclesiastical person to succeed in the office and dignity of Bishop in and of that Diocess whose See at the time of such Election is vacant This Election referring to an Episcopacy or the choice of a new Bishop in a vacant See is done by a Dean and Chapter but there are also other Elections Ecclesiastical relating to a Regular choice of other persons to other Offices and Dignities in the Church subordinate to the former but here it is specially meant of such an Election or choice of a new Bishop as is precedent to Confirmation Consecration and Investure or Instalment being made as aforesaid by the Dean and Chapter of a Cathedral Church by vertue of the Kings License and Letters Missive according to his Majesties nomination and pleasure contained in such Letters Missive in pursuance of such License to Elect under the Great Seal of England which Election being made accordingly the Dean and Chapter are to return a Certificate thereof under their Common Seal unto his Majesty This Election alone and of it self be it to an Archbishoprick or Bishoprick if the person Elected were before the Parson or Vicar of any Church Presentative or Dean of any Cathedral or held any other Episcopal Dignity doth not ipso facto make void in Law such former Benefice or Dignity or Deanry because he is not compleat and absolute Bishop meerly by such Election but only Bishop Elect And an Election only of such one to a Bishoprick who had before a Benefice with Cure or any other Ecclesiastical Dignity or promotion doth not make a Cession thereof And it hath been adjudged that a Commendam retinere made to such a person of such a Parsonage Deanry or other dignity Ecclesiastical which the said Parson had before his Election to the Bishoprick is yet good to him notwithstanding such Election and so remains good to him until his Consecration 3. Confirmation hath various senses according to the different Acceptation of the word but here it is mainly intended for that which in order to an Investure of a Bishop is done by the Archbishop or Metropolitan of that Province in which a Bishoprick is void and unto which a new Bishop is to be Invested with such usual Benedictions and Ceremonies as are requisite to the same Note That before an Archbishop or other Bishop is Confirmed Consecrated or Invested he must take the Oath of Fealty unto the Kings Majesty only after which the King under his Great Seal doth signifie his Election to one Archbishop and two other Bishops otherwise unto four Bishops within his Majesties Dominions thereby requiring them to Confirm his Election and to Consecrate and Invest the person Elected After which Confirmation and Consecration he is compleat Bishop to all intents and purposes as well to Temporalties as Spiritualties And now he hath plenam potestatem tam Jurisdictionis quam Ordinis and may therefore after his Consecration certifie an Excommengment and upon his Confirmation the power of the Guardian of the Spiritualties doth cease and a Writ for Admission of a Clerk to a Benefice awarded Episcopo Electo Confirmato hath been held to be good Likewise the King may by his Letters Patents after such Confirmation and before Consecration grant unto such Bishop his Temporalties which Grant from his Majesty is held to be potius de gratia quam de jure but if the Bishop of one Diocess be translated to a Bishoprick in another there needs no new Confirmation of him In the Canon de Confirmatione Episcoporum of Othobon's Constitutions it is Ordained in haec verba viz. Vt cujus Electionis Episcopalis Confirmatio postulatur inter caetera super quibus Inquisitio Examinatio praecedere debet Secundum Canonum Instituta illud exactissime inquiratur utrum plura Beneficia cum animarum cura qui Electus est antequam eligeretur habuerit Et si habuisse inveniatur an cum eo super hoc fuerit dispensatum Et an Dispensatio si quam exhibuerit vera sit ad omnia beneficia quae obtinuit extendatur Et si in aliquo Praemissorum is ad quem Confirmatio spectat Electam deficere sua discussione compererit eidem nullatenus munus Confirmationis impendat 4. There is also Confirmation of another kind and far remote in sense from the former not of any Ecclesiastical consideration nor of any Affinity with the other otherwise than Nominal and that is the ratifying or confirming of an Office or an estate in a Place or Office to one who hath or formerly had the possession thereof by a good Title but voidable though not actually and at present void To explain this A Bishop grants his Chancellorship by Patent to one for term of his Natural life this Grant is good to the Patentee and not in it self void yet upon the Bishops death it is voidable unless it be corroborated and ratified by the Confirmation of the Dean and Chapter This is not the Confirmation here intended but the Confirmation of the Election of a new Bishop in order to his Consecration and Investure which though heretofore was by the Bishop of Rome when he claimed a Spiritual Jurisdiction in this Realm yet now since the Stat. of 25 H. 8. c. 20. the same is at his Majesties Command performed by the Archbishop or Metropolitan of the Province wherein such Bishoprick is void and two other Bishops otherwise by four such Bishops within his Majesties Dominions as to whom under his Broad Seal he shall signifie such Election commanding them to Confirm the same as also to Consecrate and Invest the person whose Election to the Bishoprick is so Confirmed as aforesaid 5. The Confirmation of the Election of Bishops to vacant Sees according to the Canon Law and as practised in such Kingdoms beyond Sea where the Pope doth claim and exercise a Spiritual Jurisdiction is as to the mode and solemnity thereof quite another thing to what the practice is with us in this Realm 6. In France though the Nomination of a Bishop to succeed in a vacant See belongs to the French King yet if he doth not Nominate within Six or Nine months next after the death of the former Bishop Jus devolutum est ad Papam if a Bishoprick be there void be it quomodocunque whether by Cession or otherwise the Law speaks indefinitely in that case the King shall Nominate in France who shall be the new Bishop but then he must Nominate within Six or Nine months which being Elapsed and no Nomination he cannot afterwards Nominate Nam jus sit ad Papam devâ—lutum nec poterit purgare moram For the Law in that Case and in that Kingdom is that
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
verb. Beneficiati 3. As there are two Foundations of Cathedral Churches in England the Old and the New the New being those which King Hen. 8. upon the suppression of Abbies transformed from Abbot or Prior and Convent to Dean and Chapter So there are two ways or means of Creating these Deans for those of the old Foundation were raised to their Dignity much like Bishops the King first issuing and granting his Congé d'Eslire to the Chapter the Chapter thereupon making their Election the King then yielding his Royal Assent and the Bishop Confirming him and giving his Mandate to install him But those of the New Foundation are by a much shorter course install'd by vertue of the Kings Letters Patents without either Election or Confirmation Deans of the Old Foundation before the suppression of Monasteries arrive to their Dignities much like Bishops But Deans of the New Foundations upon suppression of Abbies or Priories transformed by H. 8. into Dean and Chapter are by a shorter course Installed by vertue of the Kings Lett. Pat. Without Election or Confirmation it was said by Hobart in Briggs Case That a Dean and Chapter are a Body Spiritual and annexed to the Bishop throughout all England Briggs C. in Winch. Rep. The same word is also applied to divers that are the Chief of certain peculiar Churches or Chappels as the Dean of his Majesties Chappel the Dean of the Arches the Dean of St. George's Chappel in Windsor c. Nec Collogia alicui praefecti nec Jurisdictione ulla donati Nomine tamen velut honocis gratia Insignes says the Learned Spelman 4. Each Archbishop and every Bishop hath a Dean and Chapter and whereas it was formerly said That the Civil and Canon Laws do chiefly take notice but of three sorts of Deans it is manifest that there are four sorts of Deans or Deanaries whereof the Laws of this Kingdom do take knowledge The first is a Dean who hath a Chapter consisting of Canons and Prebendaries as aforesaid subordinate to the Bishop as a Council assistant to him in matters Spiritual relating to Religion and in matters Temporal relating to the Temporalties of his Bishoprick The second is a Dean who hath no Chapter Presentative having Cure of Souls he hath a Peculiar and a Court with Ecclesiastical Jurisdiction therein he is not subject to the Visitation of the Ordinary Such is thè Dean of Battel in Sussex a Deanary Founded by William the Canquerour in memory of his Conquest who though he be Presentable to the Bishop by the Patron and admitted to the Deanary by Institution and Induction by the Bishop of Chichester yet is exempt from his Visitation The third is whose Deanary is not Presentitive but Donative nor hath he Cure of Souls but is only by Covenant or Condition he hath a Court and a Peculiar holding Plea of matters Ecclesiastical arising within his Peculiar over divers Parishes Such a Dean constituted by Commission of the Metropolitan is the Dean of the Arches the Dean of Bocking in Essex and divers others The fourth is the Rural Dean aforesaid having no absolute Judicial power in himself but is only by the direction of the Bishop or Archdeacon to order and prepare Ecclesiastical affairs within his Deanary and Precinct the power of these Rural Deans is at this day nigh extinguished by the Office of the Archdeacon and the Bishops Chancellor yet in some parts of this Realm it is still in force 5. Of these Four sorts of Deans the first as was said hath a Chapter being an Ecclesiastical Governour Secular over the Canons and Prebendaries in the Cathedral Church as the Dean of Canterbury St. Pauls c. The Patronge of all which Deanaries is in the Crown and doth not belong to any Subject Also the new Deanaries as was formerly hinted which were translated from Priories and Covents or were after the dissolution of Abbies and Monasteries Founded by King H. 8. or other Kings of this Realm are now Donative and the Deans thereof are by the Kings Letters Patents Installed but the Ancient Deans of Chapters are as Bishops by a Congé d'Eslire and are after Confirmed by the Bishop 6. The Dean end Chapter of Canterbury are during a Vacancy of that Archbishoprick Guardians of the Spiritualties to whom the Stat. of 25 H. 8. of Dispensations giveth power of Dispensation when that See is vacant The Dean and Chapter of any Cathedral make a Corporation Spiritual and at the Common Law challenges are allowed where the Issue concerns a Corporation and they to make the Pannel or where any of their Body are to go on the Jury or any of kin unto them though the Body Corporate be not directly a party to the Suit A Dean and Chapter bringing an Assize a Juror was challenged because he was Brother to one of the Prcbendaries and the challenge for that reason allowed If a Dean take an Obligation to him and his Successors it goes to his Executors which holds true also as to a Bishop Parson Vicar c. 7. A Deanary consists of Two parts viz. Officium Beneficium The Officium hath two parts the one is Dignity and Jurisdiction the other is Administration But some Promotions are meer Administrations as Prebends and Parsons which are not Dignisies because they have not Jurisdiction 11 H. 4. But an Archdeacon hath a Dignity because he hath a Jurisdiction So hath a Dean to whom Anciently according to Lindwood the Canons made their Confessions Et quod Canonici quead euram animarum subsunt Decano Lindw de Poenit. c. 1. gloss in verb. vel Decano in ver Decanum Capitulum Who ought to visit his Chapter 5. E. 3. 7. and if a Probend be made a Dean the Prebendary is void by Cossion 5 E. 2. F. Brieff 800. Also a Dean may make a Substitute as to the matters of his Jurisdiction as for Corrections or Visitations but not as for the other part viz. the Administration for which reason he cannot make a Deputy to Confirm Leases and the like So that in a Deanary Cathedral there seems to be 1 Dignity and Jurisdiction 2. Office and Administration 3. the Behefit or Profits thereof which seems very clear for that a Parson a Prebend or the like hath not Dignity but only the Office or Administration with the Profits but a Dean who hath Administration as others hath also Jurisdiction and Dignity The Law is also the same as to an Archdeacon 11 H. 4. 40. 7 H. 6. 27. 27 H. 6. 5. And a Writ brought against a Dean is good and sufficient without his proper Name because it is of it self a Name of Dignity and that a Deanary is a Dignity appears by 5 E. 3. 9. Breve 800. as aforesaid and it is an Office also for that in Ancient times a Dean took the Confessions of his Prebends as was likewise hinted before Also a Dean may by his Dignity make a Deputy to correct c.
Otherwise it is where the Archdearonry is only by Contract or Covenant made between the Bishop and the Archdeacon for in that case if the Bishop so intermeddle within the Jurisdiction of such Archdeacon or hold Plea within the same he can have but an Action of Covenant against the Bishop and no Prohibition lies in that case The Cognizance which the Archdeacon hath is of matters meerly Ecclesiastical to which end he or his Commissary may hold his Court where and in what places the Archdeacon either by Prescription or Composition hath Jurisdiction in Spiritual Causes within his Archdeaconry and from him the Appeal is to the Diocesan 3. An Archdeaconryship being only matter of Function and as supposed not properly Local nor any Indenture made of it it hath been some question heretofore whether a Quare Impedit doth lie of it or not But it was held in the Affirmative for that an Archdeacon hath Locum in choro The power of an Archdeacon was derived from the Bishop and to him he is subordinate To which purpose the opinion of the Court in Hutton's Case upon a Quare Impedit was That if a Suit be before an Archdeacon whereof by the Statute of 23 H. 8. the Ordinary may license the Suit to a higher Court that the Archdeacon cannot in such case balk his Ordinary and send the Cause immediately into the Arches for he hath no power to give a Court but to remit his own Court and to leave it to the next for since his power was derived from the Bishop to whom he is subordinate he must yield it to him of whom he received it and it was said in that Case that so it had been ruled heretofore 4. If after the Clerk hath been presented by the Patron and Admitted and Instituted by the Bishop the Archdeacon shall refuse to Induct him into the Benefice an Action upon the Case lieth for the Clerk against the Archdeacon He hath power to keep a Court which is called the Court of the Archdeacon or his Commissary And this Court is to be holden where and in what places the Archdeacon either by Prescription or Composition hath Jurisdiction in Spiritual Causes within his Archdeaconry And from him the Appeal is to the Diocesan 5. Although by the Canon Law if one having a Benefice with Cure of Souls accepts an Archdeaconry the Archdeaconry is void yet it is conceived that upon the Stat. of 21 H. 8. 13. the Law is qualified in that point by reason of a Proviso there viz. Provided that no Deanary Archdeaconry c. be taken or comprehended under the Name of a Benefice having Cure of Souls in any Article above-specified and to this Opinion did Wray and the other Justices incline in Vnderhill's Case And indeed an Archdeaconry by the express Letter of that Statute is exempt from being comprehended under the name of a Benefice with Cure for the words are That no Deanary Archdeaconry Chancellorship Treasurership Chantership or Prebend in any Cathedral or Collegiate Church nor Parsonage that hath a Vicar endowed nor any Benefice perpetually Appropriate shall be taken or comprehended under the name of a Benefice having Cure of Souls 6. By the Ecclesiastical Constitutions and Canons of the Church of England no Archdeacon nor indeed any other Ecclesiastical Judge may suffer any general Process of Quorum Nomina to issue out of his Court Except the Names of those to be cited be first expresly entered by the Register or his Deputy under such Process and both Process and Names first subscribed by such Archdeacon or other Ecclesiastical Judge or his Deputy with his Seal thereto affixed And in places where both the Bishop and Archdeacon do by Prescription or Composition visit at several times in one and the same year the Archdeacon or his Official shall within one month next after the Visitation ended that year and the Presentments received certifie under his hand and Seal to the Bishop or his Chancellor the Names and Crimes of all such as are presented in his said Visitation to the end the Chancellor may not Convent the same person for the same Crime for which he is presented to the Archdeacon which course the Chancellor is in like manner to observe in reference to the Archdeacon after the Bishops Visitation ended The which was Ordained to prevent the Prosecution of the same party for the same fault in divers Ecclesiastical Courts And in cases of remitting Causes from the Inferiour Judge the Archdeacon cannot remit the Cause to the Archbishop but he must remit it to his Bishop and he to the Archbishop Trin. 11 Jac. 7. The Archdeacon within the Jurisdiction of his Archdeaconry may by vertue of his Office have his Visitation if he so please or need shall require once every year but of necessity he is to have his Triennial Visitation Lindw de Offic. Archid. c. 1. verb. Visitatione gloss But whether of Common right and by the Jus Commune the Archdeacon may Visit within the Jurisdiction of his Archdeaconry is some question yet resolved by distinguishing whether the Visitation be made per modum Serutationis simplicis by the Archdeacon as the Bishops Vicar and so he may Visit of Common Right but if in such Enquiries he take upon him nomine suo proprio to correct Faults other than such small ones as wherein Custome may warrant him in such case it is held that he hath not power of Visitation de jure communi Lindw ibid. And in all such things as belong to his Visitation he hath Jurisdiction and by Custome over Lay-persons as well as over the Clergy It seems therefore he may do all such things as without the doing and dispatch whereof his Jurisdiction could not clearly appear L. cui Jurisdictio ff de Jurisd om Jud. and therefore wherever he may take cognizance of a matter there he may also give sentence and condemn Extr. de Caus Poss propr c. cum Super. de Offic. Deleg c. ex Literis which is supposed to hold true by Custome and inasmuch as the cognizance and reformation of such matters do belong to the Ecclesiastical Court whence it is that an Archdeacon may impose a penalty on Lay-men for the not repairing their Parish-Church within his Jurisdiction Extr. eod c. ult Extr. de Offic. Ord. c. 1. Lindw ubi supr verb. Imperitiam For it is expresly enjoyned and ordained That Archdeacons and their Officials shall at their Visitation of Churches take the condition of the Fabrick thereof into special consideration specially of the Chancel and in case there be need of Reparations shall set or fix a time within which such Reparations shall be finished which time is likewise to be set under a certain penalty Lindw de Offic. Archidiac c. Archidiaconi 8. By the Canon Law a man cannot be an Archdeacon under the age of 25 years Can. Nullus in propositum 60 Dist And by the Council of Trent he ought to
the Revenues of the Church first came to be divided and alotted to several Ministeries then it was that this payment was first made to the Bishop by the Beneficed Clergy within his Diocess Duaren ut supr l. 2. c. 1. fo 53. It is probable that this division of the Church Revenues was not far distant in time from the first or original distinguishment of Parochial Bounds upon which affair Pope Euaristus otherwise called Anacletus Graecus did first enter about the year 110. Volateran l. 22. Anast Biblioth Baron Annal. ad An. 112. nu 4 5 6. and was afterwards carried on by Pope Dionysius about the year 260. Baron Annal. ad An. 260. nu 17. Parochial Distribution in England was by Theodorus Archbishop of Canterbury about the year 668. Spelm. Concil 152 But Speed saith by Honorius the fifth Archbishop also of Canterbury about the year 636. It may not hence be inferr'd that this Cathedraticum or Synodal was only paid ratione Synodi for it was sometimes and very anciently paid also at Visitations as appears by the seventh Council at Toledo mentioned in the Decree 10. q. 3. c. inter caetera casus ibi where there is a Canon against the exacting of more than Two shillings only pro Cathedratico in Episcopal Visitations This Cense or payment though it be Onus Ecclesiasticum yet it is not Onus innovatum but Onus Ordinarium and by imposition of Law as appears by the Provincial Constitutions Solutio Cathedratici Synodatici Procurationum ratione Visitationis alia hujusmodi de quibus non dubitatur quin sunt Onera Ordinaria suum capiunt effectum ab impositione Legis Lindw de Offic. Vic. c. quoniam gl in ver Onera Ecclesiastica Yet Procurations differ from the other in this that Procurations are only Pensions but the other are properly Census The Synody or Synodal is by the Stat. of 34 H. 8. reckoned as a Church-due for recovery whereof provision is made by that Act and good reason for the said Synody or Synodal is a Pension certain and valued in the King's Books 10. The aforesaid Ingenious Author of the Historical Discourse touching Procurations c. after his deep search into Antiquity doth conjecturally conceive that the Pentecostal otherwise called Whitson-farthings is nothing else but the Annual Commemoration continuation or repetition of an Ancient payment or pension issuing out of the Oblations brought by the people long since specially at the time of the Foundation or Dedication of their several Churches or at some other Solemnity viz. the moiety or Third part of the Oblations then made The same being reserved by the Bishop and by a Contract seu quasi Contractu between him and the Founder of such Church or Priest assigned to attend the same settled in and upon the Episcopal See and payable yearly at or about the Feast of Pentecost These Pentecostalia were not as some conceive the Peter-pence here anciently paid for they were usually paid either at the Feast of St. Peter and Paul or on Lammas day but these Pentecostals seem to be paid upon or about the time that doth chiefly denominate the same viz. at the Feast of Pentecost and in the nature thereof seem to have reference to an Oblation frequently made by the Christians in the Elder times of the Church and to have some tendency to that Liberal Devotion which was then as frequent as Sacriledge is now In Leg. 18 Guilielm Conquestor De Denariis S. Petri seu Vectigali Romano viz. Liber homo qui habuerit Averia Campestria 30 denariis aestimanda dabit Denarium S. Petri. Pro 4 denariis quos donaverit Dominus quieti erunt Bordarii ejus ejus Boner ejus Servientes Burgensis qui de propriis Catallis habet id quod dimidia Marca aestimandum est det Denarium S. Petri. Qui in Lege Danorum est Liber homo habet Averia Campestria quae dimidia Marca in argento aestimantur debet dare Denarium S. Petro. Et per Denarium quem donaverit Dominus erunt quieti ii qui resident in suo Dominico Vid. Sâ—ldeni ad Eadmerum Notae Spicelegium p. 179. Leg. 18. By this Law of William the Conquerour it appears that the Peterpence had no affinity with the Pentecostals In Ancient times when the Bishop did visit Ecclesiatim his usage was to celebrate the Mass in the Church which he visited which indeed was every Parish within his Diocess and that by his Episcopal Authority the whole Diocess in respect of the Bishop being by the Law but Paroechia sua 10. q. 3. c. Quia Duarenus passim as the whole Province is said to be in respect of the Lord Archbishop of Canterbury At this Mass the people used to make their Offerings to the Bishop and one of the causes or reasons why or wherefore the people in Ancient times were obliged to bring their Oblations to the Church was propter Consuetudinem and that certis Festivitatibus among which the Feast of Pentecost was and is a most special one at which Feast there was in many places here in England an Oblation Anciently made by inferiour Churches and Parishes to the principal Mother-Church and whence probably the word Pentecostalia had its original denomination These Offerings by the Canon Law were and are only due to the Clergy and interdicted to the Laity sub districtione Anathematis 10. q. 1. c. Quia Sacerdotes c. Sanct. Patrum ibi In some places the Deans and Prebendaries of Cathedral Churches have them It is said That in the Cathedral Church of Salisbury there is a greater and a lâ—ss distinguished and known by this difference of Major Minor pars Altaris And in some Diocesses they are settled upon the Bishop and Archdeacon and made part of their Revenue for which the King hath Tenths and Subsidies The Cathedral or the Mother-Church of Worcester was Anciently and before the dissolution a Priory and among other Revenues had these Pentecostalia or Whitson-farthings yearly paid sub nomine Oblationum or Spiritual Profits tempore Pentecostes After the Dissolution when King H. 8. about the three and thirtieth year of his Reign new-founded and reendo'wd the said Church he restored these Pentecostalia after he had hâ—ld them about a year in his own hand to the said Church which as it is reported the Dean and Prebendaries thereof receive at this day and as appears by the Letters Patent Henricus Octavus c. Sciatis quod Nos de gratia nostra speciali ac ex certa scientia ac mero motu nostris dedimus concedimus ac per praesentes damus concedimus Decano Capitulo Ecclesiae Cathedralis Christi beatae Maria Virginis Wigorn. omnes illas Oblationes Obventiones sive Spiritualia proficua vulgariter vocat Whitson farthings annuatim collect sâ—ve recepta de diversis Viliatis in Comitat. nostris Wigorn. Warwic 〈◊〉 infra Archidiaconatum Wigorn
1 Eliz. And it is not within the Statute and although it be within the Commission yet they have not Jurisdiction The words of the Statute are That such Jurisdictions and Priviledges c. as by any Ecclesiastical power have heretofore been or lawfully may be exercised for the Visitation of Ecclesiastical State and Persons and for reformation of the same and for all manner of Errors Heresies Schisms Abuses Offences Contempts and Enormities c. These words extend only to men who stir up Dissentions in the Church as Schisimaticks and new-sangled Men who offend in that kind Henden Serjeant The Suit is there for reformation of Manners and before the new amendment of the Commissions Prohibitions were granted if they meddled with Adultery or in Case of Defamations but now by express words they have power of these matters And that matter is punishable by the Commissioners for two Causes 1 There is within the Act of Parliament by the words annexed all Jurisdictions Ecclesiastical c. 2 It gives power to the Commissioners to exercise that And that is meerly Ecclesiastical being only pro reformatione morum c. The King by his Prerogative having Ecclesiastical Jurisdiction may grant Commissions to determine such things 5 Rep. Ecclesiastical Cases fol. 8. And Richardson said The Statute de Articulis Cleri gave cognizance to the Ordinary for laying violent hands on a Clerk But you affirm That all is given to the Commissioners and thereby they should take all power from the Ordinary But by the Court the Commissioners cannot meddle for a stroke in Church-Land nor pro subtractione Decimarum And yet they have express Authority by their Commission for by that course all the Ordinaries in England should be to no purpose And so upon much debate a Prohibition was granted On an Arrest on Christmas-day it was said by Richardson Chief Justice That upon Arresting a man upon Christmas-day going to Church in the Church-yard He who made the Arrest may be censured in the Star-Chamber for such an Offence Quod Nota. It was also said by Richardson that if a man submit himself out of the Diocess to any Suit he can never have a Prohibition because the Suit was not according to the Statute 23 H. 8. commenced within the proper Diocâ—ss as it was Adjudged Quod Nota It the Ecclesiastical Court proceed in a matter that is meer Spiritual and pertinent to their Court according to the Civil Law although their proceedings are against the Rules of the Common Law yet a Prohibition does not lie As if they refuse a single Witness to prove a Will for the cognizance of that belongs to them And Agreed also That if a man makes a Will but appoints no Executor that that is no Will but void But if the Ordinary commits the Administration with that annexed the Legatary to whom any Legacy is devised by such Will may sue the Administrator for their Legacies in the Ecclesiastical Court Note P. 4. Jac. B. R. Peep's Case a Prohibition was denied where they in the Ecclesiastical Court refused a single Witness in proof of payment of a Legacy After Prohibition if the Temporal Judge shall upon sight of the Libel conceive that the Spiritual Court ought to determine the cause he is to award a Consultation And by the Staâ— of 50 E. 3. c. 4. the Ecclesiastical Judge may proceed by vertue of the Consultation once granted notwithstanding any other Prohibition afterwards if the matter in the Libel be not enlarged or changed B. Administrator of A. makes C. his Executor and dies C. is sued in the Ecclesiastical Court to make an Account of the goods of A. the first Intestate And C. now moves for a Prohibition and had it for an Executor shall not be compel'd to an Account But an Administrator shall be compel'd to Account before the Ordinary Resolved by the Court That a Prohibition shall not be awarded to the Admiral or Ecclesiastical Courts after Sentence Also that a Plea was there pleaded and refused which was Triable at Common Law Note A Prohibition was awarded upon the Statute of 23 H. 8. because the party was sued out of the Diocâ—ss And now a Consultation was prayed because the Interiour Court had remitted that Cause to the Arches and their Jurisdiction also yet a Consultation was denied A Suit was in the Ecclesiastical Court and Sentence passed for one with Costs and nine months after the Costs are Assest and Taxed and then comes a Pardon of 21 Jac. which relates before the taxing of the Costs But afterwards the Sentence and that Pardon was pleaded and allowed in discharge of the Costs Then W. who had recovered sues an Appeal and P. brought a Prohibition and well and no Consultation shall be awarded because by the Court that Pardon relating before the Taxation of Cost had discharged them As 5. Rep. 51. Hall's Case B. and Two others sue upon three several Libels in the Ecclesiastical Court and they joyn in a Prohibition And by the Court that is not good But they ought to have had three several Prohibitions and therefore a Consultation was granted Mich. 26 27 Eliz. C. B. If A. Libels against B. for Three things by one Libel B. may have One or Three Prohibitions Note Dyor 171. 13. By the Statute of 25 H. 8. cap. 19. Appeals to Rome being prohibited it is Ordained That for default of Justice in any of the Courts of the Archbishops of this Realm c. it shall be lawful to Appeal to the King in his High Court of Chancery and thereupon a Commission shall be granted c. And by a Proviso towards the end of that Statute an Appeal is granted to the King in Chancery on Sentences in places exempt in such manner as was used before to the See of Rome So that this Court grounded on the said Commission is properly as well as vulgarly called The Court of Delegates for that the Judges thereof are Delegated to fit by virtue of the Kings said Commission under his Great Seal upon an Appeal to him in Chancery and that specially in Three Causes 1 When a Sentence is given in any Ecclesiastical Cause by the Archbishop or his Official 2 When any Sentence is given in any Ecclesiastical Cause in places exempt 3 When a Sentence is given in the high Court of Admiralty in Suits or Actions Civil and Maritime according to the Civil Law That this Court of Delegates may Excommunicate was Resolved by all the Judges in the Archbishop of Canterbury's Case They may also commit or grant Letters of Administration This Court of Delegates is the highest Court for Civil Affairs that concern the Church for the Jurisdiction whereof it was provided 25 H. 8. That it shall be lawful for any Subject of England in case of defect of Justice in the Courts of the Archbishop of Canterbury to Appeal to the King's Majesty in his Court of Chancery 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-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
give it to the Poor but sold the Flesh to Butchers and the Ale to Ale-wives And that he commanded his Curate to Marry a Couple in a private House without any License And that he suffered divers to Preach which peradventure had not any License and which were suspected persons and of evil Life It was said by Henden That they cannot by the Statute of 1 Eliz. cap. 1. meddle with such matters of such a nature but only examine Heresies and not things of that nature and that the High Commissioners at Lambeth certified to them that they could not proceed in such things and advised them to dismiss it but they would not desist And the Judges Richardson being absent granted a Prohibition if cause were not shewn to the contrary 10. A Parson makes a Lease for 21 years the Patron and Ordinary confirm his Estate for 7 years the Parson dies The Question is Whether that Confirmation made the Lease good for 21 years or but 7 years And it seemed to Hutton That the Lease was Confirmed but for 7 years But Richardson was of the contrary Opinion and took a difference where they Confirm the Estate and where they Confirm the Land for 7 years That Confirmation confirms all his Estate But where they confirm the Lease for 7 years That Confirmation shall not enure but according to the Confirmation And that difference was agreed by Crook and all the Serjeants at the Barr. And afterwards Hutton said That that was a good Cause to be considered and to be moved again 11. In a Replevin And the Title was by Lease made by a Parson And the Avowry was That A. was seized of the Rectory of H. and made the Lease without shewing that he was Parson And by the Court That that should have been a good Exception if it had not been said in the Avowry moreover That A. was seized in juâ—e Ecclesiae which supplies all 12. During the time of the Parson the Patron hath nothing to do in the Church And therefore if the Patron grant a Rent by Fine out of the Church the Church being then full and afterwards the Incumbent dies that charge shall not bind the Successor for that the Parson and the Ordinary were no parties to it 13. If a Parson would Resign the word Resignare is not it seems the only proper word in the Law for Resignation but Renunciare Cedere Demittere are the usual words or terms of Resignation Yet if a Prebend doth give grant yield and confirm his Prebendary and the Possessions thereunto belonging unto the Ordinary To have and to hold to him and his Successors in Fee subjecting and submitting to him Omnia jura by reason thereof qualitercunque acquisita these words it seems are sufficient and amount to a Resignation albeit the proper words are not therein Which Resignation ought to be made to the Immediate Ordinary and not to the Mediate for which reason a Prebend may not Resign to the King for that although he is Supream Ordinary yet he is not the Immediate Ordinary and he is not bound to give Notice to the Patron as the Ordinary ought nor of himself can Collate but is to present to the Ordinary 14. In Trespass The Case was The Defendant being Incumbent of the Church of B. M. and G. having the Donation thereof made an Instrument whereby Concessit Resignavit to M. omnibus ad quos in hac parte pertinet ad acceptandam Ecclesiam suam de B and thereupon the two parties gave it to the Plaintiff who being disturbed by the Defendant brought Trespass The Question was whether a Resignation of a Donative could be to the Donor or how it might be departed with Resolved 1 That this being a Donative begun only by the Foundation and Erection of the Donor he hath the sole Visitation and the Ordinary hath nothing to do therewith and as the Parson comes in by the Donor so he may restore it to him and although the Presentee when he is in hath the Freehold yet he may revest it by his Resignation without any other Ceremony and the Ordinary hath nothing to do with it For Admission and Institution are not necessary in case of a Donative 2 Resolved That the Resignation to one of the parties is good for it doth enure to both as a Surrender shall do 3 Resolved That although the Resignation was de Ecclesia yet it shall extend to all the Possessions 15. At a Synod in 44 Ed. 3. a Canon was made That the Parson of every Church in England shall appoint the Parish-Clerk And at another Synod held in An. 1603. a Canon was made to the same effect and yet it doth not take away the Custome where the Parishioners or Churchwardens have used to appoint the Clerk because that is Temporal which cannot be altered by a Canon If the Clerk of a Parish in London hath used time out of mind to be chosen by the Vestry and afterwards Admitted and Sworn before the Archdeacon and he refuse to Swear such Clerk so Elect but Admits another chosen by the Parson In this Case a Writ may be awarded commanding him to Swear the Clerk chosen by the Vestry 22 Jac. Walpool's Case The like Writ was granted for the Clerk of the Parish of St. Fosters London Mich. 16 Car. B. R. between Orme and Pemberton The Parishioners of the Parish of Alphage in Canterbury prescribed to have the Nomination and Election of their Parish-Clerk and the Parson of a Parish by force of a Canon upon voidance of the place of the Parish-Clerk elected one to the Office The Parishioners by force of their Custome elected C. the Parson supposing this Election to be Irregular for that it was against the Canon Sued C. before Dr. Newman Chancellor of Canterbury and the said C. was by Sentence deprived of the Clerkship of the Parish and another Clerk of the Parish Admitted C. moved for a Prohibition and had it granted by all the Court for it was held That a Parish-Clerk is a meer Lay-man and ought to be deprived by them that put him in and no others and the Canon which willeth that the Parson shall have Election of the Parish-Clerk is meerly void to take away the Custome that any person had to Elect him Vid. Stat. 25 H. 8. That a Canon against Common Law confounding the Royal Prerogative of the King or Law of God is void and Custome of the Realm cannot be taken away but by Act of Parliament vid. 21 Ed. 4. 44. And it was Resolved That if the Parish-Clerk misdemean himself in his Office or in the Church he may be Sentenced for that in the Ecclesiastical Court to Excommunication but not to Deprivation And afterwards a Prohibition was granted by all the Court and held also That a Prohibition lieth as well after Sentence in this case as before And in Jermin's Case Whereas the Churchwardens and Parishioners of K.
placuit 10. q. 3. Rebuff de Commenda who yet by the same Law possit expensas facere ex reditibus Beneficii Commendati sumere ex eo alimenta debita persolvere sicut is qui titulum habet c. 1. de Solutio hoc afferit Archidiac in cap. qui plures 21. q. 1. 7. The grand Case of a Commendam was that of Evans and Kiffin against Ascuth which being two daies argued by the Judges and by Noy Attorney is acutely and succinctly Reported thus viz. In Trespass Dr. Thornbury being Dean of York was chosen Bishop of Limbrick in Ireland But before Consecration or Confirmation he obtained a Patent with large words Non obstante retinere valeat in Commendam the said Deanary c. And afterwards he was chosen Bishop of Bristol and then also before Installation he obtained another Patent with a more ample Dispensation of retaining the Deanary in Commendam It was Agreed by all That the Church or Deanary c. in England shall be void by Cession if the Parson or Dean c. be made a Bishop in Ireland For the Canon Law in that is one through all the World Also Ireland is governed by the Laws of England and is now as part of England by Subordinacy Note well 45 E. 3. 19. b. Confirmation under the Great Seal of England is good in this Case Confirmation under the Great Seal of England of Presentation to a Church in Ireland of the Heir of the Tenant of the King and that a Dispensation under the Great Seal of England is good in this Case without any Patent of it in Ireland vid. 8 Ass 27. 10 E. 3. 42. An Exchange of Land in England for Land in Ireland is good Note 20 H. 6. 8 Scir fac sued in England to Repeal a Patent under the Great Seal of Ireland vid. the Irish Statute 2 Eliz. cap. 4. That an Irish Bishop may be made under the Great Seal of England Note Stat. 1 E. 6. the Irish Bishops shall be Donative by Patent of the King under the Great Seal of England yet the King may let them be chosen per Congé d'Eslire c. 1 Noy Attorney Argued at Bar and so stated the Points of the said Case by themselves If a Commendatary Dean by a Retinere in Commendam may well Confirm a Lease made by the Bishop for it is Agreed That a Commendatary Dean by Recipere in Commend cannot Confirm because he is but a Depositarius Note 19 H. 6. 16. 12 H. 4. 20. 27 H. 8. 15. a Commendatary shall be sued by that Name and by such a Commend he may take the profits and use Jurisdiction and yet is not a Dean compleat Note he may make a Deputy for Visitation but not for Confirmation of Leases Note if there be two Deans in one Church both ought to Confirm Vid. Dy. 282. Co. Inst 30. a. 2 The Second point if such a Bishop be chosen to another Bishoprick if now the first Church in Commend admitting that there was a Full Incumbent be void presently by the Election and assent of the Superiour viz. the King And it seemed to him that it was because there need not be a new Consecration and he vouch'd Panormitan 2. par 101. The Bishop of Spires was chosen Bishop of Trevers and had the assent of the Pope and that he came to Trevers and there found another in possession and he would have returned to the former Bishoprick and could not He also Cited 8 Rep. Trollop's Case That the Guardianship of the Temporalties cease by the Election of a new Bishop Note that Serjeant Henden who argued on the contrary vouch'd Mich. 4 Jac. May Bishop of Carlisle made a Lease to the Queen and a Commission issued out of the Exchequer to take it and the Dean and Chapter Confirmed it before the Inrolment of it and yet Adjudged good That Case was for the Castle of Horne First the Judges having Argued two daies Resolved 1 That all Commendams are Dispensations and that Cession commenced by the Canon and Council of Lateran 2 That the King may dispense with that Canon 11 H. 7. 12. For the Pope might and now by the Statute 21 H. 8. that power is given to the King cumulative by way of Exposition veteris and not by Introduction novi Juris and by that Statute a concurrent power is given to the Archbishop of Canterbury and may be granted to the King or by the Archbishop c. 3 That the Dispensation after Election to the first Bishoprick and before Consecration c. and also the Dispensation after Election to the second Bishoprick and before Confirmation is good enough in both Cases and he remains a good Dean to Confirm c. and afterwards the Judgment in the Case being an Action of Trespass was given accordingly 8. A Commendam is to be granted Necessitate evidenti vel utilitate Ecclesiae suadente and in the Infancy of the Church quando defuerunt Pastores they were necessary A Commendam ordinarily is but for six months and he that hath it is Custos only the other is extraordinary and that is for life and he is an Incumbent The King by his Prerogative Royal may grant a Commendam without any Statute yet if such Commendam shall be good it may be very mischievous to the Patron It is it seems agreed in the Books of the Common Law that the use of Commendams in their first Institution was lawful but not the abuse thereof and that a perpetual Commendam viz. for life was held unlawful and condemned by a Council of 700 Bishops It is likewise Reported to us That where the Incumbent of a Church was created a Bishop and the Queen granted him to hold the Benefice which he had in Commendam It was the Opinion of the Justices That the Queen had the Prerogative by the Common Law and that it is not taken away by the Stat. of 35 H. 8. 9. In a Quare Impedit brought by the King against Cyprian Horsefall and Robert Wale on a Special plea pleaded by Wale the Incumbent the Kings Attorney demurred in Law The Case in substance was this viz. the Corporation of Kilkenny being Patrons of a Vicarage within the Diocess of Ossery Presented one Patrick Fynne thereunto who was Admitted Instituted and Inducted After that during the Incumbency of the said Fynne Adam Loftus Archbishop of Dublin and Ambrose Forth Doctor of the Civil Law being Commissioners Delegates for granting of Faculties and Dispensations in the Realm of Ireland according to the Statute of 28 H. 8. cap. 16. by their Letters Dated 9 Octob. 33 Eliz. granted to John Horsefall then Bishop of Ossery That the said Bishop unum vel plura Beneficia curata vel non curata sui vel alieni Jurispatronatus non excedentia annuum valorem quadraginta Librarum adtunc vacantia vel quae per imposterum vacare contigerint perpetuae Commendae titulo adipisci occupare retinere omnesque fructus
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
traditur in Commendam quasi comeditur devoratur and such a Benefice may properly be given in perpetuam Commendam Summa summar tit Commenda art 1 2. And by the Rule of the Canon Law he that comes in per Commendam is not Praelatus sed Procurator tantum est nisi Custos seu Administrator jus in Ecclesia non habet 6. Decretal c. Nemo Constit Othobon de Commendis fo 65. And therewith agrees 27 H. 8. 15. where it is said That the Cardinal of York had the Abbey of St. Albans in Commondam and yet was not the Abbot In this Case of a Commendam in Davis Rep. the Original or invention of a Commendam is ascribed to Pope Leo 4. An. Dom. 848. aut eo circiter as appears lib. Decretal caus 23. q. 2. where it is said Vnde Leo 4. scribit Qui plures Ecclesias retinet unam quidem Titulatam alteram vero sub Commendatione tenere debet For by the Ancient Canons and Councils a man could have but one Benefice and yet it is by experience found convenient that sometimes viz. in case of Necessity or Vtility of the Church a man may have the Charge and Fruits of more Benefices than one therefore was that Distinction invented and allowed that although a man shall have but one Benefice in Titulo yet he may have other Benefices in Commenda viz. That another Benefice may be commended and committed to his Custody and Cure until it be provided with an able Incumbent But afterwards there being great Abuses found in the granting of these Commendams by the Ordinaries for omnium rerum quarum est usus potest esse abusus virtute solum excepta says Aristotle another Canon was made in the Council of Lions An. Dom. 1274. for reformation thereof as appears lib. 6. Decretal de Elect. Elect. potesta c. Nemo Nemo deinceps Parochialem Ecclesiam alicui non Constituto in legitima aetate vel Sacerdotio Commendare praesumat nec tali nisi unam evidenti Necessitate vel Vtilitate Ecclesiae suadente Hujusmodi autem Commendam rite factam declaramus ultra Semestre temporis spatium non durare c. But the Gloss there saith That Ista Constitutio non comprehendit Romanum Pontificem ideo Romanus Pontifex potest Perpetuo Commendare So that the Pope notwithstanding that Canon had power to give Benefices in perpetuam Commendam And indeed after the said Council of Lions as the Pope had reserved to himself the sole power of giving Benefices in perpetuam Commendam so he reduced that power into act and used and practised the same in all Realms of Christendom Specially the Popes that were resident at Avignon in France in the times of King H. 2. Ed. 1. Ed. 2. Ed. 3. were very liberal not only in granting these Provisions contrary to our Statutes made in the times of King Ed. 1. Ed. 3. but in giving all sorts of Ecclesiastical Benefices in Commendam perpetuam And as at first it was done for the support of the Dignity of Cardinals as Pope Clement 6. professed in his Epistle to Ed. 3. Hist Walsingham fo 150. b. yet afterwards these Favours were purchased by other Ecclesiastical persons of all degrees in all Nations specially in England and Ireland And whereas the Canon Law says That a man hath a Cononical Title by virtue of a Commendam that must be understood de Commenda perpetua and not de Commenda Temporali for the Commenda Temporalis is but a kind of Sequestration and may be granted by every Ordinary pro tempore Semestri and therefore such a Commendatary non est Praelatus nec Maritus Ecclesiae nec facit Fructus suos sed est Administrator tantum Custos Ecclesiae And such a Commenda non est titulus nec facit titulum sed est quoddam depositum until the Church be provided with a sufficient Incumbent and therefore such a Commenda is commonly granted when the Patron doth not Present an able person or when the Church is Litigious But the Commenda perpetua which continues during the life of the Commendatary cannot be granted by any inferiour Ordinary but only by the Pope in such Countries where he hath Jurisdiction or by the King or his Delegates in this Realm or such whose power therein is derived from him or confirmed by him And this Commenda est titulus Canonicus nam militat eadem ratio in perpetuis Commendis quae in aliis Titulis Lib. 6. de Electionib c. Nemo And so it hath been often adjudged in Rota as Gomez affirms in Regul de Trien Possess where he argues this point Pro Con at large and where he saith That the Faculty of a perpetual Commendam is amplissima dispositio habet ubertatem verborum viz. Licentiam Facultatem fructus omnes percipiendi in proprios usus Convertendi c. Quae verba important Collationem Titulum non Simplex Depositum CHAP. XXII Of Lapse 1. What a Lapse is the gradations and Original thereof 2. The difference between the Canon and Common Law as to the time of Lapse and when the Six months shall begin 3. The King is Patron Paramount of all tbe Churches in England 4. In what Cases the Patron is to take notice of the Avoidance at his peril or not and how the Six months is to be computed by the days 5. A Lapse is not an Interest but a Trust or Administration and may not be transferr'd or granted over 6. How or from what time the Six months shall be computed before the Lapse incurr 7. Whether a Bishop may Collate by Lapse after Six months upon failure of the Clerks shewing his Letters of Orders or his Letters Missive or Testimonial 8. In what case Tempus occurrit Regi in point of Lapse 9. In what cases the King having Title of Lapse may lose his Presentment 1. LApsus or Lapse is a slip or departure of a Right of Presenting to a void Benefice from the Original Patron neglecting to Present within Six months next after the Avoidance to the Ordinary Whence it is commonly said That that Benefice is in Lapse or Lapsed whereunto he that ought to Present hath omitted or slipped his opportunity This Lapse may happen and be the Patron being ignorant of the Avoidance as well as if he were acquainted therewith or privy thereto except only upon the Resignation of the former Incumbent or the Deprivation upon any cause comprehended in the Statute of 13 Eliz cap. 12. In which cases the Bishop ought to give notice thereof unto the Patron In this matter of Lapse there are Three gradations ab Inferiore ad Superiorem after the neglect of the true Original Patron upon whose default 1 the Bishop of the Diocess within whose precincts the vacant Benefice lies shall Collate unless the King be Patron 2 If the Bishop Presents not within the next Six months then the Metropolitan shall Present And
of Six months By the Common Law of England as well Clerks as Laicks have Six months to Present before the Lapse incurr Dr. Stu. 116. b. Per la Com. Ley De Scoce Laici Patroni quadrimestre Ecclesiastici vero Sex mensium spatium habent sibi concessum ad Praesentandum personam idoneam Ecclesiae vacanti Skene Regiam Majestatem 10. b. But Jac. 6. pl. 1. cap. 7. Pl. 7. cap. 102. pl. 12. cap. 119 158. Concedit Patrono Laico spatium Sex mensium infra quod Praesentare debet The Question is not so much when the Term shall end and determine as when it shall commence and from what time the Six months shall be computed The Answer falls under a double consideration or is diversified according to the divers manners of Avoidances for if by Death Creation or Cession the Church be void then the Six months shall be computed from the Death Creation or Cession of the last Incumbent whereof the Patron is to take Notice at his peril But if the Avoidance be by Resignation or Deprivation then the Six months shall begin from the time of Notice thereof given by the Bishop to the Patron who is not obliged to take knowledge thereof from any other than by signification from the Bishop But in case the Avoidance were caused by an Union for so it might be then the Six months should be computed from the time of the Agreement upon that Union for in that case the Patron was not ignorant of but privy to the Avoidance for there could be no Union made but the Patron must have the knowledge thereof and then it was to be appointed who should Present after the Union as whether one or both either joyntly or by turns one after another as the Agreement was upon the Union 3. The Continuance of a Voidance of a Church by the several Lapses of Patron Bishop and Archbishops derives the Title of Presentation at last to the King as Patron paramount of all the Churches in England and wherever the Original Patron by Law ought to take notice of a Voidance at his peril there and in such case by a Non-Presentation within Six months from the time of such Voidance the Lapse will ever incurr And generally by the Admission Institution and Induction to a Second Benefice Prima Ecclesia vacat de persona of the Incumbent vacans continuat till new Induction But when an Archbishop Bishop or other Ordinary hath given a Benefice of right devolute unto him by Lapse of time and after the King Presenteth and taketh his Suit against the Patron who possibly will suffer that the King shall recover without Action tried in deceipt of the Ordinary or the possessor of the said Benefice In such and all other like cases where the Kings Right is not tried the Archbishop Bishop Ordinary or Possessor shall be received to counterplead the Title taken for the King and to have his Answer and to shew and defend his Right upon the matter although that he claim nothing in the Patronage so that the Ordinary may Counterplead the Kings Title for a Benefice fallen to him by Lapse Also when the King doth make Collation or Presentment to a Benefice in anothers Right the Title whereupon he groundeth himself may be well examined that it be true which if before Judgment it be by good information found to be otherwise the Collation or Presentment thereof made may be Repealed whereupon the true Patron or Possessor may have as many Writs out of Chancery as shall be needful There are some Statutes the King not being bound by Lapse of Time for nullum Tempus occurrit Regi which are good remedies and reliefs for the Ordinary that hath Collated by Lapse as also for the Clerk that is Collated for otherwise a Common person might by Practice have turned out a lawful Collatee to which purpose the Lord Hobart doth instance in a Case A Common person no true Patron Presents within Six months and the true Patron himself Presents not in time whereupon the Ordinary Collates by the Lapse against whom the Pretender brings a Quare Impedit because his Clerk was refused wherein he must needs prevail if his Title be good and it must be taken for good because neither Ordinary nor Incumbent could deny it for de non apparentibus de non existentibus eadem est ratio which Inconvenience is remedied by the said Stat. of 25 E. 3. c. 7. Note that Lapse doth not incurr to the Ordinary by reason of his not examining the Clerk within Six months Trin. 3 Jac. B. R. inter Palmer Smith Resolved per Cur. 4. If a Plea be depending between Two parties and it be not discussed and determined within Six months the Bishop may Present by Lapse and he that hath the Right to Present shall according to the Statute recover his Dammages But it is expresly provided by the Statute of 13 Eliz. 12. That no Title to Collate or Present by a Lapse shall accrue upon any Deprivation ipso facto but after Six months after Notice of such Deprivation given by the Ordinary to the Patron But if the Church become void by Death Creation or Cession of the last Incumbent the Patron is at his peril to take Notice of such Avoidances within the next Six months thereof But if it become void by Deprivation or Resignation the Clerk is not obliged to tender his Presentation to the Bishop nor the Patron obliged to Present his Clerk but within Six months next after Notice legally given him by the Ordinary of the Avoidance by such Deprivation or Resignation which Six months are to be calculated or computed by 182 days and not by 28 days to the Month Nor is there any Addition of time over and above the Six months allowed the Patron to Present from the Vacancy a Second Clerk in case the former were legally refused by the Bishop Yet the Ordinary may not take advantage of the Lapse in case the Patron Present his Clerk before the other hath Collated though it be otherwise with the Canonists Lindw c. Si aliquo evincente c. verb. Injuria But if the Bishop Collate and the Patron Present before Induction in that case it seems he comes too late And at the Common Law Sir Simon Degge in his Parsons Counsellor makes it a doubtful Question if the Church Lapse to the King and the Patron Presents before the King take advantage of the Lapse whether this shall avoid the Kings Title by Lapse This says he is a Question by Dyer though Hobart seems to be clear in it that the King shall not have the benefit of the Lapse but adds that divers Authorities are against them And in the Cases aforesaid wherein Notice of Avoidance ought to be given to the Patron before the Lapse can incurr the Patron is not obliged to take Notice thereof from any person other
gains not the Patronage from the Crown 3. The Ordinary's Collation by Lapse is only in the Patron 's right 4. What Presentation is and how in ease of Co-heirs or Joynt-tenants or Tenants in Common 5. Whether the Grantee of the next Presentation not Presenting at the First Avoidance shall lose the benefit of his Grant 6. The Right of Presentation is not an Ecclesiastical but Temporal Inheritance and cognizable at the Common Law 7. The power of the Ordinary in case of Coparconers Joyntenants or Tenants in Common as to Presentation 8. In what Case the Bishop hath Election whose Clerk he will Admit 9. Whether a Presentation is revokable before Institution 10. Whether the Son may succeed his Father in the Church and who may vary from or repeal his Presentation 11. What Nomination is and the Qualifications thereof 12. In what Case the Presentation is the Nomination or both as one in Law 13. In what case the Nominator shall have a Quare Impedit as well as he that hath Right of Presentation And there may be a Corrupt Nomination as well as a Corrupt Presentation 14. Whether the Collatee be Incumbent if the Bishop Collate him within the Six months And in what Case the Kings Presentation within the Six months may be an Vsurpation or not 15. Where the Ordinary Collates the Patron is to take notice of it at his peril 16. Who shall Present in case the Ordinary to whom a Lapse is devolved be within the Six months translated to another Bishoprick 17. A Resignation to a Proctor without the Bishops Acceptance makes not the Church void 18. A Parochial Church may be Donative exempt from the Ordinary's Jurisdiction and is Resignable to and Visitable by the Patron not the Ordinary 19. Where Two are to Present by Turns what Presentation shall serve for a Turn or not 20. By the Canons the Son may not succeed the Father in the same Church 21. To what a Presentation may be made 22. The Kings right of Presentation as Supream Patron 23. In what case the Kings Prerogative to Present doth not take place 24. In what Cases it doth 25. To whom the Patronage of an Archbishoprick belongs 26. Whether Alien Ministers are Presentable to a Church in England 27. In what Cases the Patron may Present de novo 28. Difference between the King and a Common person in point of Presentation 29. A Collation makes no Plenarty where it is tortious 30. Presentation may be per parol as well as by Writing 31. What amounts to a Revocation of the King's Presentation 32. Causes of Refusal of the Clerk Presented 33. Certain Law Cases pertinent to this Subject 34. Whether Institution granted after a Caveat entered be void 35. What shall be held a Serving of a Turn and good Plenarty and Incumbency against a Patron in Severalty 36. A Clerk refused by reason of his not being able to speak the Welsh Language 37. What is the best Legal Policy upon every Presentation by Vsurpation 38. One of Two Grantees of an Advowson to whom the other hath released may Present alone and have a Qua. Imp. in his own Name 39. A Clerk refused for Insufficiency by the Bishop may not afterwards be Accepted 1. COllation in its proper signification is the bestowing of a Benefice by a Bishop that hath it in his own proper right gift or patronage distinguish'd from Institution only in this That Institution into a Benefice is at the instance motion or Presentation of the Patron or some other having pro tempore the Patrons Right performed by the Bishop Extra de Instit de Concess Praeben c. But Collation is not only when the person is Admitted to the Church or Benefice by the Bishop or other person Ecclesiastical but also when the Bishop or that other Ecclesiastical person is the rightful Patron thereof or when the Bishop or Ordinary hath right to Present for Lapse of the Patron and yet sometimes Collation is and hath been used for Presentation And so Presentation Nomination and Collation are commonly taken for one and the same thing in substance though at times distinguished And whereas it hath been a Question If one hath the Nomination and another the Presentation which of them shall be said to be the very Patron it hath alwaies been taken to be the better opinion that he who hath the Nomination is Patron of the Church And where an Abbot had the Presentation and another the Nomination and the Abbey surrendred to the King he that hath the Nomination shall now have all for the King shall not Present for him that being a thing undecent for the King But as to Collation and Presentation they were in substance one and the same thing as aforesaid But to speak properly Collation is where the Bishop himself doth freely give a Benefice which is of his own Gift by right of Patronage or Lapse This word Collation seems also to be frequently used when the King Presents and hence it is that there is a Writ called Collatione facta uni post mortem alterius c. directed to the Justices of the Common Pleas Commanding them to direct their Writ to a Bishop for the Admitting one Clerk in the place of another Presented by the King which Clerk during the Suit between the King and the Bishops Clerk is departed this life For Judgment once given for the Kings Clerk and he dying before his Admission the King may bestow his Presentation on another This Collation Presentation and Nomination are in effect Synonima being distinguished only in respect rather of Persons than of Things 2. Yet there may be a great difference betwixt Presentation and Collation which gains not the Patronage from the King as appears in the Case of the Queen against the Bishop of York where the Queen brought a Quare Impedit against the said Bishop and one Monk and counted upon a Presentment made by King Hen. 8. in the right of his Dutchy of Lancaster and so conveyed the same to the Queen by Descent The Bishop pleaded That he and his Predecessors have Collated to the said Church c. and Monk pleaded the same Plea upon which there was a Demurrer And it was moved by Beaumont Serjeant That the Plea is not good for a Collation cannot gain any Patronage and cannot be an Usurpation against a Common person much less against the Queen to whom no Lapses shall be ascribâ—d and although the Queen is seized of this Advowson in the right of her Dutchy yet when the Church becomes void the right to Present vests in the Royal person of the Qu. and yet vid. the Old Regist 31. Quando Rex praesentat non in jure Coronae tunc incurrit ei Tempus Hamm. Serj. By these Collations the Queen shall be put out of possession and put to her Writ of Right of Advowson but the same ought to be intended not where the Bishop Collates as Ordinary but where he Collates
is Created Bishop and dies Incumbent it seems the King shall not Present to the Church by his Prerogative for that the Church is not void by his being made a Bishop in which case the Prerogative gives the Presentation to the King but by the death of the Incumbent in which case the Prerogative doth not take place Co. Ent. 474. Hele's Case there pleaded that in such case the Church is void by death and admitted that it belongs to the Patron to present upon his death 24. If a Church whereof a Bishop in right of his Bishoprick is the Patron becomes void after the death of the Bishop and before the Seizure of the Temporalties yet the King shall have the Presentation And if a Church belonging to the Patronage of a Bishop become void and the Bishop Present and die before Institution the King shall have that Presentation by his Prerogative So if a Bishop die after Institution of the Clerk and before Induction the King shall have the Presentation by his Prerogative Also if Lapse incurr to the Ordinary and before the Six months pass the Ordinary is Translated or dies it seems the King shall have the Presentation and not the Ordinary or his Executors or the Guardian of the Spiritualties P. 40 El. B. Dubitatur Hob. Rep. 208. in case of death But if a Bishop having right to present to a Prebend and present his Clerk who is Instituted and Inducted in the Morning and Afternoon the same day the Bishop dies whereby the Temporalties come into the Kings hands yet the King in that case may not have the Presentation 25. The Patronage of the Deanary of an Archbishoprick doth of Common right belong to the Archbishop and he shall Present to the Avoidance But by Composition it may be Elective by the Chapter and yet the Patronage remain in the Archbishop And where a Parson ought to present to a Vicarage if the Vicarage become void during the vacancy of the Parsonage the Patron of the Parsonage shall present 26. An Alien who is a Minister may be presented to a Church and Anciently it was usual for Aliens to have Spiritual promotions here and Priors Aliens had great possessions in England and were Parsons Appropriate yet by the Statutes of 13 R. 2. 1 H. 5. French-men are disabled from having Benefices in England and French-men Denizon'd Sed Qu. whether they continue of force at this day And if a meer Lay-man or a man altogether illiterate be presented Instituted and Inducted it is not in Construction of the Common Law a meer Nullity but such are Parsons de facto but if a Woman be Presented Instituted and Inducted it is a meer Nullity at that Law because her Incapacity is apparent 27. If a man present his Clerk to the Bishop and he die before he is received he may present another and although a man hath presented his Clerk to the Bishop yet he may present another at any time before the Bishop shall have received such his Clerk 28. If J. S. Present and his Clerk be Admitted and Instituted before Induction J. D. cannot Present his Clerk for the Church was Full before as to a Common person for by the Institution he had Curam animarum But where a Common person Presents and his Clerk be Admitted and Instituted yet before Induction the King if he hath Right may Present and his Clerk shall be Instituted for the Church is not Full as against the King before Induction But if the King hath not right to the Church in that case the Church is Full by the Admission and Institution of a Common person's Clerk without Induction as against the King so as that he may not in that case Present 29. If a Bishop Collate without any good Title of Lapse or otherwise and then the Patron die after the Six months claps'd and his Executor bring Quare Impedit by force of the Statute of 4 E. 3. and the Bishop and Incumbent plead Plenarty by Six months it was Adjudged no Plea on Demurrer for that the Collation is not any Plenarty being Tortious Also if a Bishop Collate without a good Title of Lapse it puts not the Patron out of possession but he may Present afterwards albeit the Bishop's Clerk were Instituted and Inducted 30. A Common person may Present to a Church per Parol and if it be by Writing yet it is not any Deed but only in nature of a Letter to the Bishop Also the King may Present either by his Letters or per Parol without Writing But if the King be deceived in his Title it will be a void Presentation And if the King grant a Presentation by his Letters by the words damus Concedimus without other words of Presentation yet it seems it shall amount to a Presentation and be a sufficient Warrant for the Bishop to Institute him Dubitatur 19 E. 3. Quare Impedit 60. A Common person by his Letter or his Word may make a Presentation to a Benefice to the Bishop the King may Present by Word if the Ordinary be present if the King under any Seal present it is good And Mich. 10 Jac. it was held by the whole Court that a Presentment under the Great Seal to a Church parcel of the Dutchy of Lancaster is good and needed not to be under the Dutchy-Seal Where a man accepts a Second Benefice with Cure without a Dispensation or Qualification the First Benefice is void and the Patron may Present but if he doth not Present then if it is under value no Lapse shall incurr until there is a Deprivation and Notice But if it be above value then the Patron must Present within Six months The King seized of an Advowson in the Right of his Dutchy of Lancaster Presented to it under the Great Seal and not under the Seal of the Dutchy And Resolved That the Presentation was good for the Presentation is but a Fruit fallen from the Tree and the King may Present by word because a Presentation is but a Commendation of the Clerk to the Ordinary A man seized of an Advowson in Fee granted to another and his Heirs that when the Church should become void that the Grantee and his Heirs should Nominate a Clerk to the Grantor and his Heirs and he and his Heirs should Present him to the Ordinary Resolved That if he who hath the Nomination Present he which ought to Present shall have a Quare Impedit against him and è contra In Beverley and Cornwell's Case it was Resolved That if any Advowson comes to the Queen for Forfeiture by Outlawry and the Church becomes void and the Queen Presents and then the Outlawry is reversed for Error yet the Queen shall enjoy the Presentment because it came to the Queen as a profit of the Advowson but if the Church be void at the time of the Outlawry and the
notwithstanding they were several Advowsons and several Quare Impedits might be brought of them and several Actions maintain'd for their several Possessions yet the Presentment of one man to the Parsonage and Vicarage was no Plurality because the Parsonage and Vicarage are but one Cure And there is a Proviso in the Statute That no Parsonage that hath a Vicar endowed shall be taken by the Name of a Benefice with Cure within the Statute as to make it a Plurality 6. The Lord Hobart in Colt and Glover's Case against the Bishop of Coventry and Lichfield is clear of Opinion That Bishopricks are not within the Law under the word Benefices in the Statute of 21 H. 8. cap. 13. So that if a Parson take a Bishoprick it avoids not the Benefice by force of this Law but by the ancient Common Law as it is holden 11 H. 4 60. But withal he holds it as clear That if a Bishop have or take two Benefices Parsonages or Vicarages with Cure either by Retainer or otherwise de novo he is directly as to these Benefices within the Law for he is to all purposes for those not a Bishop whether it be in his own Diocess or not but a Parson or Vicar and by that Name must sue and be sued and Prescribe and Claim For if any person having one Benefice with Cure c. take another c. whosoever will hold two Benefices must have such a Qualification and such a Dispensation as the Law 21 H. 8. requires Whereupon the Lord Hobart in the foresaid Case is clear of Opinion That if a man be qualified Chaplain to any Subject and then be made a Bishop his Qualification is void so as he cannot take two Benefices de novo after by force of that Qualification But if he had lawfully two Benefices before his Bishoprick he may by Dispensation of Retainer besides his former Dispensation to take two Benefices hold them with his Bishoprick And if a man being the King's Chaplain take a Bishoprick he holds that he ceaseth to be the King's Chaplain and Bishops are not in that respect Chaplains to the King within the meaning of the Statute So that the Clause of the Statute that gives the King power to give as many Benefices as he will of his own gift to his Chaplain will not serve them In this Case of Colt c. against the Bishop of c. he is of Opinion That if a man have a Benefice with Cure worth above 8 l. he cannot without Qualification and Dispensation procure another with Cure to be united to it after though they make but one Benefice for this Cautel of Union is provided for by Name But of Unions before he is of another Opinion Case Colt Hob. Rep. 7. In ancient times the Pope used to grant Dispensations of the Canons in this Realm and so might the King have done The first Statute that restrain'd the power of the Pope was that of 21 H. 8. of Pluralities That the Church shall be void notwithstanding any Grant of the Pope Also the power of the Pope was taken away by the Statute of 25 H. 8. Before that of the 21 H. 8. the Pope might have dispensed with a man to have twenty Benefices and so might the King The 21 H. 8. was the first Statute or Law which gave allowance for Pluralities afterwards by the 28 H. 8. the power of the Pope was given to the King But as it was said and agreed in the Case of Evans and Ascough that was not by way of Introduction but Cumulutive and by way of Exposition And by that Statute the Archbishop of Canterbury had in this matter a concurrent power with the King and Dispensation granted by the King or by the Archbishop is good Also in the said Case it was agreed by all the Justices That if a Parson or Dean in England doth take a Bishoprick in Ireland it makes the first Church void by Cession because Ireland is a Subordinate Realm to England and governed by the same Law For it was there agreed by all as well by the Justices as those of the Barr That if a Parson or Dean in England take a Bishoprick in Ireland the first Church is void by Cession Justice Whitlock gave this Reason for it Because there is but one Canon Law per totam Ecclesiam and therefore wherever the Authority of the Pope extended it self be it in one or divers Realms the taking of a Bishoprick made the Deanary or Parsonage void Nemo potest habere duas Militias nec duas Dignitates est impossibile quod unus homo potest esse in duobus locis uno tempore And 5 R. 2. F. Tryal 54. the whole Spiritual Court is but one Court which Book is very remarkable to that purpose That the Canon Law is but one Law Which Reason was also given by Justice Doderidge in the same Case and upon the same point who said That the Law of the Church of England is not the Pope's Law but that all of it is extracted out of Ancient Canons as well General as National Another Reason which he then gave was Because Ireland is a Subordinate Realm and governed by the same Law Because although before the time of H. 2. they were several Kingdoms or Realms yet the Laws of England were there Proclaimed by King John and is subject to the Laws of England And if the King having a Title to Present to a Church in Ireland confirm it to the Incumbent under the Great Seal of England it is good 45 Ed. 3. 70. 8. In Savacre's Case it was adjudged in the Common Pleas That if a Baron or others mentioned in the Statute of 21 H. 8. take divers Chaplains which have many Benefices and after they discharge their Chaplains from their Service they shall retain their Benefices during their Lives and if the Baron takes others to be his Chaplains they cannot take many Benefices during the Lives of the others which are Beneficed and Discharged of their Services for if the Law were otherwise the Lords might make any capable of holding Benefices by admitting them to be their Chaplains 9. T. prayed a Prohibition to the Arches the Case was this One had a Recovery in a Quare Impedit and he had a Writ to the Bishop against T. upon which A. his Clerk was admitted c. and after the Recovery died and T. supposing his heir to be in the Ward of the King and that the said A. took another Benefice without sufficient Qualification by which the Church was void by Cession and he attained a Presentation of the King and he was Admitted c. by the Lord-keeper being within the Diocess of Lincoln and A. sued him in the Ecclesiastical Court and T. prayed a Prohibition and it was granted per totam Curiam for without question there ought nothing to be questioned in the Ecclesiastical Court after the Induction of the party And whether it is a Cession
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
if he please to increase the part of the Vicar and there was not power of diminution As by Hutton It is also usual in such Compositions and they say That the word Altaragium shall be expounded according to the use as if Wood had alwaies been paid to the Vicar by virtue of this word so it shall continue otherwise not And so it had been Ruled in the Exchequer and upon that President it was Ruled accordingly so in this Court And by them Wood is Minuta decima as in the case of St. Albans it was Ruled 5. In a Trial at the Barr in an Action of Trespass the Question arising between the Parson and the Vicar as touching Tithe-Wood and to whom the same belonged As to this by the Opinion of the whole Court clearly the Parson de mero jure ought to have the Tithe-Wood if the Vicar be not Endowed of the same or claims to have it by Prescription but without such a Dotation or Prescription the same belongs to the Parson Another Question was propounded for the Vicar who entitles himself unto the Tithe-wood by these words Altaragium and Minutae Decimae whether these words will carry the Tithe-Wood unto him or not As to this the exposition and true definition of this word Altaragium is considerable and to whom this is due Altaragium as was observed is that which is due to be served at the Altar Wilâ—iams Justice Altaragium is that only and properly which is offered at the Altar and Minutae Decimae are the Small Tithes also the word Altaragium will not carry Tithe-Wood And this is the Question here Whether the Vicar by this word Altaragium hath Title to the Tithe-Wood Crook Justice This word Altaragium doth not carry the Tithe-Wood which are great Tithes but Minutas Decimas which are petit small Tithes Minutae Decimae Altaragia the Vicar as was urged is to have them by his Composition and that by these words he is to have Tithe-Wood Fleming Chief Justice There is an Usage here laid in the Vicar to have the Tithe-Wood by reason of these words Altaragia Minutae Decimae the which the Vicar can no waies have but by Prescription or by such a Usage and so the same may pass by these words Altaragia Minutae Decimae and the Usage had accordingly Also Sheaves of Corn have passed by Usage to the Vicar by the words Altaragia Minutae Decimae and so it was Adjudged in the Court of Exchequer The Judges all agreed in this That by these words Altaragia Minutae Decimae by Usage Tithe-wood may well pass and so hath the Opinion of all the Civilians been Fleming Chief Justice and the rest of the Judges agreed in this That by Usage the word Altaragia shall be accounted inter Minutas Decimas Williams Justice By the word Altaragia Tithe-Wood doth not pass but if the Vicar have used to have the same time out of mind This is good and shall pass under the words of Minutae Decimae Fleming Chief Justice Though the Law be against it that Tithe-Wood doth not pass by these words yet by Usage it hath been allowed good to carry Tithe-Wood by these words being of small value and by such Usage Tithe-Wood may pass though the Law be against it CHAP. XXXII Of Tithes 1. What Tithes are the Original thereof in England with the Division and Subdivision thereof 2. Whether the Quotity be Moral or only of the Ceremonial or Judicial Law The Institution of Tithes the lawfulness thereof under the Gospel it is Sacriledge Theft and Robbery to withhold them 3. The Common Arguments against the payment of Tithes Answered 4. A Fourfold Division of Tithes under the Levitical Law 5. The Schoolmens conceit touching the Division of Tithes in allusion to the Division of the Law of Moses 6. Tithes anciently Ecclesiastical are now Temporal Inheritances several Laws touching Tithes in general 7. What the Common Law of England understands by Tithes The first obstruction thereof by Charles Martel 8. The supposed Reason why Tithes before the Lateran Council might be paid to any Church or any Priest The original Division of England into Parishes 9. The Exact provision anciently as well before as since the Conquest made by the Sovereign Kings and Princes of this Realm for the due payment of Tithes 10. The Supposition of the Parâ—chial Right of Tithes to be settled by a Canon of the Council of Lateran Contradicted 11. Whether a Parson may make a Lease parol of his Tithes 12. Tithes discharged by Vnity of possession 13. A Covenant between Parson and Parishioner touching Non-payment of Tithes 14. Whether Proof by one Witness in case of Tithes ought to suffice in the Ecclesiastical Court 15. Tithe-Wool and Rotten Sheep Tithe-Calves 16. Tithe-Headlands Tithe-Wool Lamb and Wool included in Samll Tithes 17. Tithe-Wool of Sheep depastured in one Parish and shear'd in another 18. Suit for the Tithe-Grass of a Riding Nagg 19. Modus decimandi touching Tithe-Wool and Lamb. 20. Park-Tithes Buck and Doe not tithable what Partridges and Pheasants are not tithable 21. Saffron whether it be Small Tithes Venisâ—n not tithable 22. Prohibition for not allowing Proof by one Witness 23. An Action of the Case lies against a Parson that takes not away in due time his Tithe-Corn set out 24. The Parishioner not obliged to divide the Tithes into Moities where two persons have portion of Tithes by halves 25. A Custome of not tithing the odd Sheafs good 26. Whether Tithes shall be paid of the Glebe leased to a Farmer 27. Whether Tithes may be Leased or Released without Deed 28. A Parson may Sue in the Ecclesiastical Court pro modo Decimandi 29. Whether that Court may proceed therein in case the Modus be denied 30. In what case the Right of Tithes is triable in the Exchequer 31. A Case in Law touching Prescription and of Tithes of a Park Disparked 32. What things are reputed Majores what Minores Decimae and how they may vary according to the Circumstances 33. Whether Tithes are payable of Cattel for the Dairy or the Plough 34. Whether a Dean and Chapter be capable de non decimando their Lands 35. Touching Tithe-Herbage of young Cattel of Hedge-stuff of Orchards and the Custome of Hearthy-peny 36. Tithe-Fish Customary Tithe whether Prohibition or not 37. Acorns tithable if sold whether Pidgeons if spent in the house 38. Several Cases touching Discharges of Tithes 39. Hay of Headlands whether tithable 40. Prescription for discharge of Tithes upon payment of 10 s. per ann 41. A Forrest in the Kings hands is priviledged of Tithes not so in the hands of a Subject The Right of Tithes between Parson and Vicar triable in the Ecclesiastical 42. Whether Tithe shall be paid for Hedge-boot and Fire-boot 43. Touching Tithe of young Cattel of Hedging and Fencing of the Herbage of Heifers and Horses of Dry-Cattel and of Gardens how far tithable or not 44. Apples stollen out of the Orchard not
sole Prince conferred the Tithes of all the Kingdom upon the Church by his Royal Charter Of which Ingulph Abbot of Crowland An. 855. saith That King Ethelwolph with the consent gratuito consensu of his Prelates and Princes did first enrich the Church of England with the Tithes of all his Lands and Goods Many other Laws of the Saxon Kings for the payment of Tithes are recited by Mr. Selden as entirely the Gift of Kings And so saith King Elred Nemo auferat à Deo quod ad Deum pertinet Praecessores nostri concesserunt The whole Bishoprick Anciently was in a large sense a Paroecia and the income of it by Contributions first and by Tithes also afterwards was the Common stock of all the Clergy of the Diocess and Mr. Selden asserts it to be the general Opinion of all the Common Lawyers That before the Lateran Council under Innocent 3. every man might have given his Tithes to what Church he would probably within the Diocess because they were not the Propriety as yet of any one Presbyter but the Common Patrimony of all the Diocesan Clergy So that Tithes are a Tenth part of all increase Tithable due to God and consequently to his Ministers that wait on the Altar These are divided into Three sorts 1. Praedial Tithes arising only either of the Fruits of the Ground as Corn Hay Hemp and the like or of the Fruits of Trees and Orchards as Apples Pears and the like 2. Personal Tithes arising of the profits that come by the labour and industry of Man either by Handicrafts as Carpenters Masons and the like or by Buying Selling or Merchandizing 3. Mixt Tithes arising partly of the Ground and partly of the Industry of Man as of Calves Lambs Piggs Milk Cheese and the like No Tithes shall be paid for such things as do not increase and renew year by year by the Act of God Of Praedial Tithes some are called Majores vulgarly termed the Great Tithes others Minores vel Minutae vulgarly the Small Tithes The Great such as Wheat Rye Hay c. The Small such as Min◠Annis Cumin c. And commonly with us here in England we compute Flax in the number of Small Tithes which is a Praedial Tithe as also Wool Milk Cheese Eggs Chicken of all kinds Lambs Honey Bees-wax and the like Vid. Lindw cap. de Decimis In Ancient times the Laity were so far from subtracting their Tithes as is the common practice of these daies that oft-times they would give more than was due or demanded and were so Conscientious in the payment thereof as at their death they usually bequeathed a Soule-Sceat to their Parochial Priest in lieu of any Tithes forgotten and at their Funerals caused their best Ox or Horse to be led with the Corps and as a Mortuary or Oblation given to the Priest in recompence of any Tithes which possibly in their life-time might have been omitted to be paid But in these latter Ages not regarding what S. Hierom says That Fraudare Eccelsiam est Sacrilegium all Artifices imaginable are put in practice to subduct the Tithes and therefore to enforce the due payment thereof were the Statutes of H. 8. and Ed. 6. made and enacted 2. Covarruvias with other Canonists and Schoolmen holds That by the Moral Law the rate or proportion of Tithes is not necessarily to be the Tenth part of the Fruits which the more received Opinion holds to be both Erroneous and Mischievous and that by the Law of God and Nature no Custome deviating from the exact rate and proportion of the Tenth of the Fruits ought to prevail any longer than by the free and mutual consent of Parson and Parishioner For which reason it is supposed That the paying of a Halfpeny for a Lamb or a Peny for a Calf by such as have under Seven in one year is now become an unreasonable Custome in regard the value of such Lambs and Calves is now raised four times higher than in Ancient times This seems far remote from Tithes the very Quotity whereof seems to be Moral rather than Ceremonial or Judicial and not only allowed or approved but even commanded by our Saviour himself Yea by the very Law of Nature which is the ground of the Moral Law and long before the Levitical Tithes appear to be due in that Abraham paid it to Melchisedec And God himself who is the best Interpreter of his own Law calls the detention of Tithes Sacriledge And that Command of Christ affirming that Tithes ought to be paid of all even to the very Herbs spoken by him at the period of the Levitical Law ought not to be restrained only to the Priesthood of Aaron for it doth now remain in force as to Priests under the Gospel as that other part of the Moral Law Thou shalt not steal the withholding of Tithes being expresly interpreted Theft and Robbery by the Prophet And lest it should be thought a meer Human Interest or in the power of Man to alienate God himself hath vouchsafed to take Tithes upon his own account in his Ministers behalf These Tithes could not be meerly Ceremonial as some would have it for they prefigure nothing nor are they repealed by any one Text in the Gospel but reinforced as aforesaid so that whatever was commanded in the Old Testament and grounded on the Law of Nature and being not Repealed in the New must yet stand in force as a Duty of the Moral Law And if it be Objected That Tithes were not paid in the Primitive times of the Christian Church the Reason is not because they were not then due but because there was not then any such settled Order for things of this or the like nature in the Church 3. Wherefore all the Common Objections made against the payment of Tithes in the Christian Church may be reduced to one of these Four 1. That our Saviour gave no Command to his Apostles to take Tithes but rather on the contrary said Freely ye have received freely give Answ Yet our Saviour says These things speaking of Tithes ought you to have done And says The workman is worthy of his meat And St. Paul says The Labourer is worthy of his Reward Where hath Christ in totidem verbis forbidden Sacriledge wilt thou therefore commit it because he hath not in terminis terminantibus forbidden it Thou that abhorrest Idols dost thou commit Sacriledge 2 Tithes were not paid till about three hundred years after Christ as Tertullian Origen and S. Cyprian do testifie Answ These Fathers do withal acknowledge that during that time the Churches Maintenance was the Peoples free Contribution which probably might have continued to this day had not that Contribution in process of time turned into a Sacrilegious Century by Covetousness instead of a Commanded Decuma as a Duty Morally enjoyn'd 3. That Tithes came first into this Kingdom by the power of the Pope as by Pope
of Sacriledge doth distinguish between Excommunication latam and ferendam for if it be Sacriledge committed against an Ecclesiastical Person then according to the Canon Law and as heretofore practised in this Realm the penalty was Excommunicatio lata but when it is in respect of some things pertaining to the Church in that case the Punishment was Excommunicatio ferenda Lindw de immun Eccl. c. 1. glo in ver omnibus poenis And sometimes a pecuniary punishment was inflicted for Sacriledge 17. q. 4. c. quisquis c. si quis contumax The Ecclesiastical Law doth not punish Sacriledge with that austerity and severity as the Civil Law doth l. Sacrilegio ff ad Leg. Jul. peculat whereby the punishment sometimes is Damnatio ad bestias sometimes the Sacrilegious person is burnt alive sometimes hung on Fonk sometimes condemned to the Mines sometimes banished and sometimes sentenced to death in the ordinary way of Execution He that is guilty of Sacriledge against an Ecclesiastical person is by the Canon Law excommunicatus ipso facto 17. q. 4. c. si quis suadente But if it be in rebus Ecclesiae he is by that Law Excommunicandus de Foro compet c. conquestus If it be committed in the Church and that by firing or breaking it open in that Case the Sacrilegious person is ipso jure excommunicated de sent Excom c. conquesti If it be without burning or breaking it open as when a thing being left in the Church is taken away in that Case he ought to be excommunicated De furtib c. fin And this says Lindwood may stand as a rule in Law that wherever you find that regularly the Sacrilegious person is not ipso jure excommunicated majori Excommunicatione it hath these several Fallentias that is it doth not hold in case of Burning violating spoiling and wasting of the Church nor in burning or breaking open the Church door nor in Sacriledge against an Ecclesiastical person nor in case of striking or violently apprehending any man in the Church nor in any forcible or violent taking away any thing out of the Church nor in any that were excommunicated before for the like Offence nor in such as pull down or demolish the Body of the Church or any part thereof and the like Lindw de immu Eccl. c. ut invadentib glo in ver Excomunicati All which is likewiseexpresly set down in John de Athon's Gloss on Cardinal Othobon's Constitutions de abstrahentib Confug ad Eccles c. ad tutelam glo in ver Obsevari and seems to have an adequate affinity with what Solomon who as in other things so specially in matters of the Temple had the best experience says It is a suare to the man who devoureth that which is Holy Pro. 20. 25. 7. The dreadful Curse denounced against Sacrilegious persons appears in that remarkable passage in Parliament above Four hundred years since where the Priviledges of the Clergy and Franchises of the Church were with the Liberties of the People granted confirmed and settled by the King in full Parliament Anno 1253. in such a solemn manner as no History can parallel The King stood up with his Hand upon his Breast all the Lords Spiritual and Temporal stood with burning Tapers in their Hands the Archbishop pronounceth as followeth viz. By the Authority of God Omnipotent of the Son and of the Holy Ghost c. We Excommunicate Anathematize and sequester from our Holy Mother the Church all those who henceforth knowingly and maliciously deprive and spoil Churches of their right and all those that shall by any art or wit rashly violate diminish or alter secretly or openly in Deed Word or Counsel those Ecclesiastical Liberties c. Granted by our Lord the King to the Archbishops Bishops Prelates c. For everlasting memory whereof we have hereunto put our Seal After which all throwing down their Tapers extinguish'd and smoaking they all said So let all that shall go against this Curse be extinct and stink in Hell And Ethelwolphus the second sole Monarch among the Saxon on Kings having by advice of his Nobles granted for ever to God and the Church both the Tithe of all Goods and the tenth part of all the Lands of England free from all secular Service Taxes or Impositions whatsover concludes the said Grant or Charter of Donation in these words viz. Qui augere voluerit nostram Donationem augeat Omnipotens Deus dies ejus prosperos si quis vero mutare vel minuere praesumpserit noscat se ad Tribunal Christi rationem redditurum 8. Dr. Heylyn in his Ecclesia Restaurata relates a remarkable passage touching a sad Judgment that in the time of Queen Mary befell Buckly Bishop of Bangor An. 1541. for the Sacrilegious havock he made of the Lands and Patrimony of that Church who not content to alienate the Lands and weaken the Estate thereof resolved to rob it also of its Bells for fear perhaps of having any knell rung out at the Churches Funeral and not content to sell the Bells which were five in number he would needs satisfie himself with seeing them conveyed on Shipboard and had scarce given himself that satisfaction but was immediately struck blind and so continued from that time to the day of his death CHAP. XXXIX Of Simony 1. The Definition and description of Simony the penalties thereof 2. The difference between Simoniacus and Simoniace Promotus the latitude of that word Simony 3. How the anuual value of the Benefice is computable upon the Forfeiture by reason of Simony 4. Whether a Clerk Simoniacally presented but not privy to the Simony be disabled for that turn to be presented by the King to the same Church 5. The diversifications of Simoniacal Contracts or the various ways of committing Simony 6. An Obligation to present one upon condition of resignation may not be Simony 7. To promise one a Sum of Money to bestow his endeavour to procure one to be presented to a Benefice is a Simoniacal Contract 8. Several ways of contracting obliging and agreeing which will amount to Simony 9. A Clerk may oblige to his Patron to pay a Sum yearly and yet no Simony 10. The Plea of Simony is a good Barr to the Parsons demand of Tithes 11. Whether the Fathers free Covenant with his Son in Law upon the Marriage of his Daughter to present him to such a Living when it falls be Simony 12. Whether a SimoniacalVsurper shall prejudice the rightful Patron by giving the King the presentation 13. Whether an Incumbent that is in by Simony may after a General Pardon be removed 14. The grand Case of Calvert and Kitching at the Common Law touching Simony 15. To convey a corrupt gift by an innocent hand will not excuse it from being Simony 16. The Kings Case against the Archbishop of Canterbury Sir John Hall and Richard Clark touching Simony 17. The Proof of Simony in a Parson is good to harr him of Tithes 18. A Patrons Presentation upon
may be discerned Whether the Pope may be Simoniacal Q. Whether it be Simony to give money for the Sacrament upon a Death-Bed Whether it be Simony in the Ordinaries or their Officials to take money for Letters of Ordination under Seal Whether it be Simony in Ecclesiasticks to take money for Sermons or Theological Doctrines Whether it be Simony to resign a Benefice reserving a Pension out of it Whether it be Simony to resign or bestow a benefices upon Trust or Confidence With diverse other such Questions in the Canon Law relating to this Subject the Solutions whereof are not of any moment to us who are out of the Pope's Diocess CHAP. XL. Of Blasphemy and Heresie 1. What Blasphemy is and whence so called 2. The several punishments inflicted on Blasphemers 3. How may ways Blasphemy may be 4. What Heresie is a Conjectural derivation of that word Heresie it is Threefold 5. What shall he accounted Heresie what the Lollards of old were and why so called 6. In whom the Jurisdiction of Heresie properly resides 7. A Heretick convicted and so persisting whether according to Law combustable The reason of that severe Law Heresie is Lepra animae 8. An Alphabetical black Catalogue of Hereticks their Errors Heresies and Blasphemies and the times wherein they pester'd the World 9. A Catalogue of Jewish Hereticks but not in any Alphabetical manner as the former 1. BLASPHEMIA 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quod laedat famam 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is as it were 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to hurt anothers same or reputation Suidas interpreteth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 one who injureth God with contumelious words which is when men detract from God the honour due unto him or attribute any evil to him Blasphemare est tacite vel expresse verbo vel scripto contra deum aliquid contumeliosum dicere Navar. cap. 12. nu 81. Blasphemia est injuriosa in deum locutio vel contumelia in deum verbo irrogata Less lib. 2. de Blasph This is cognizable in the Ecclesiastical Jurisdiction and by the 109. Canon of the Ecclesiastical Constitutions of the Church of England is among other notorious Crimes to be certified into Ecclesiastical Courts by way of presentment in order to punishment according to Law 2. This Crime of Blasphemy was so odious to the Emperor Justinian that he ordained that the Blasphemer should undergo ultimum supplicium be punished by death for he made it capital Auth. ut non Luxur Coll. 7. By the Ecclesiastical Laws of Keneth King of Scots An. 840. It is provided that he that Blasphemeth shall have his Tongue cut out Blasphemy is speaking Treason against the Heavenly Majesty the belching out of exercrable words against God whereby the Deity is reproached Baldus says that Blasphemy is a kind of Heresie Bald. in L. Qui accusationem C. Qui Accus non posse for which a Lay-man is Anathematized by the Church of God and a Clerk deposed from all Ecclesiastical Orders Can. si quis per capillum 22. q. 1. The Canon Law seems not severe enough in the punishment of this Crime probably for that they of the Roman Church do hold that there is a Blasphemy against Saints and Blasphemia Dei vel sanctorum hath but one and the same punishment with them and that is a solemn and publick penance if the Blasphemy were publickly committed Extra de Maledict c. statuimus And that the World may know how they abominate this sin of Blasphemy they put the Question and demand whether any Priest inferiour to a Bishop can absolve a man from this sin for answer they distinguish and say that if the Blasphemy be publick and notorious it cannot be absolved but by a Bishop but if it were only private and occult non in platea nec in camera multis audientibus then every Priest may absolve it Ant. de pae re si Episcopus lib. 6. Steph. de Gaeta Repet in c. ad Limina 30. q. 1. nu 139. Aquinas reckons it among the Mortal sins 3. Lindwood in his Provincials says that that is Blasphemy quae dicitur irreligiosa reprehensio detractio vel vituperatio but says he to speak properly and strictly Blasphemare est Deo injuriam irrogare which may be done three several ways 1 Aliquid attribuendo quod deo non convenit 2. Ab ea removendo quod deo convenit 3. Creaturae attribuendo illud quod est proprium deo Lindw de Offic. Archipr c. 1. verb. Blasphemia In the Primitive times this sin was punished by a delivering the Offender over unto Satan which was an Ecclesiastical censure by the Greater Excommunication whereby the Offender became unto others as an Heathen and a Publican Mat. 18. 17. and whereby he is dissiranchised of all the Priviledges of the Church 4. Touching Heresie there are various conceptions as to the derivation of that word some are of opinion that the word comes from Error and rectus and that from thence comes Haereticus that is Errans à Recto sive Rectitudine Fidei Catholicae l. 2. in sin C. de Haeretic Others will have the word Heresis to be from heriscor that is divido and thence Heresie to be Divisio ab unitate Fidei Azo Sum. C. eod tit Others will have it to be from haereo Error thence Haeresis quasi adhaesio Erroris and Haereticus quasi adhaerens Errori for Error of it self doth not make an Heretick but adhering to an Error doth Lindw de Haeret. c. 1. And others there are who do conceive that the word Haeresis dicitur ab Electione because an Heretick doth chuse to himself that Opinion which he thinks is best for himself And he that inclines to this Opinion seems to be least in an Error for Haeresis is from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Optio vel electio secta ab 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Eligo Heresie is an Opinion repugnant to the orthodox Doctrine of the Christian Faith obstinately maintain'd and persisted in by such as profess the Name of Christ that Heresie which is commonly called Haeresis univorsa or Heresie in sensu largo is threefold and doth consist either in a mans heart or in his mouth or in his works Under the first of these are comprized all such as are Christians only by Name but not so in truth and in deed under the second are comprehended all vain Swearers Covenant-breakers and indevout approachers to God in his Worship under the third are contained all Hypocrites whose counterfeit devotion without any sincerity in the heart consists only in the simulation of an external work all these are by Lindwood understood in a large sense as Hereticks Lindw de Offic. Archipr c. 1 glos in ver Haeresis But these are not the Hereticks here meant or intended nor indeed are they Hereticks in any proper sense whereby we commonly understand such as Hereticks who maintain and persist in any Opinion contrary to the True Orthodox
Church-gemote Int. Leges H. 1. c. 8. The Convocation is under the power and Authority of the King 21 Ed. 4. 45. b. Assembled only by the Kings Writ 13 Ed. 3. Rot. Parl. M. 1. vid. Stat. 25 H. 8. c. 19. The King having directed his Writ therein assigning the time and place to each of the Archbishops to the effect aforesaid the Archbishop of Canterbury doth thereupon direct his Letters to the Bishop of London as his Dean Lindw Provin Sec. 1. de Poenis ver Tanquam in Gloss First Citing himself peremptorily then willing him to Cite in like manner all the Bishops Deans Archdeacons Cathedral and Collegiate Churches and generally all the Clergy of his Province to the Place at the day in the said Writ prefixed withal directing that one Proctor for every Cathedral or Collegiate Church and two for the other Clergy of each Diocess may suffice In pursuance whereof the Bishop of London directs his Letters accordingly willing them to certifie the Archbishop the Names of all such as shall be so Monished by them in a Schedule annexed to their Letters Certificatory whereupon the Cathedral and Collegiate Churches and the other Churches having Elected their Proctors it is certified to the Bishop who makes due Returns thereof which method is likewise observed in the other Province of York It is said That these Proctors anciently had Place and Vote in the Lower House of Parliament a good expedient for the maintenance and preservation of the Liberties of the Church The Prolocutor of the Lower House of Convocation is immediately at the first Assembly by the motion of the Bishops chosen by that Lower House and presented to the Bishops as their Prolocutor by whom they intend to deliver their Resolutions to the higher House and to have their own House specially ordered and governed His Office is to cause the Clerk to call the Names of the Members of that House as oft as he shall see cause likewise to see all things propounded to be read by him to gather the Suffrages or Votes and the like Trin. 8 Jac. It was Resolved by the two Chief Justices and divers other Justices at a Committee before the Lords of Parliament concerning the Authority of a Convocation 1 That a Convocation cannot Assemble without the Assent of the King 2 That after their Assembling they cannot conferr to constitute any Canons without License del Roy. 3 When upon Conference they conclude any Canons yet they cannot execute any of them without the Royal Assent 4 They cannot execute any after Royal Assent but with these Limitations viz. 1 That they be not against the Kings Prerogative 2 Nor against Statute Law 3 Nor against the Common Law 4 Nor against the Customes of the Realm All which appears by 25 H. 8. c. 19. 19. Ed. 3. Title Quare non Admisit 7. 10. H. 7. 17. Merton cap. 9. By 2 H. 6. 13. a Convocation may make Constitutions to bind the Spiritualty because they all in person or by Representation are present but not the Temporalty Q. And 21 Ed. 4. 47. the Convocation is Spiritual and so are all their Constitutions Vid. The Records in Turri 18 H. 8. 8 Ed. 1. 25 Ed. 1. 11 Ed. 2. 15 Ed. 2. Prohibitio Regis ne Clerus in Congregatione sua c. attemptet contra jus seu Coronam c. By which it appears that they can do nothing against the Law of the Land or the Kings Prerogative 5. The word Convocation and the word Synod are rather words of two Languages than things of two significations for although they have different derivations the former from the Latin the other from the Greek yet in effect they both center in the same thing Convocation à Convocando because they are called together by the Kings Writ It is of very great Antiquity according to Sir Edward Coke who mentions out of Mr. Bede and other Authors and ancient Records such as were nigh a thousand years since and more expresly of one great Synod held by Austins Assembling the Britain Bishops in Council An. 686. And affirms That the Clergy was never Assembled or called together at a Convocation but by the Kings Writ And in the year 727. there was a Convocation of the Clergy called Magna Servorum Dei frequentia It was by the assistance and authority of Ethelbert the first Christian King of Kent that Austin called the aforesaid Assembly of the British Bishops and Doctors that had retained the Doctrine of the Gospel to be held in the borders of the Victians and West-Saxons about Southampton as supposed to which resorted as Mr. Bede says Seven Bishops and many other Learned Divines but this Synod or Convocation suddenly brake up without any thing done or resolved This Assembly was conven'd for determining the time for the Celebration of Easter touching which the Controversie continuing no less than 90 years after was at last concluded at another Convocation purposely called at Whitby by the Authority of Oswy King of Northumberland and whereof the Reverend Cedda newly Consecrated Bishop was Prolocutor and King Oswy himself present at the Assembly Likewise about the year 1172. at Cassils in Ireland a Convocation was held by Authority of King H. 2. soon after he had Conquered that Island which Convocation was for the Reformation of the Irish Church where amongst many other Constitutions it was Decreed That all the Church-Lands and all their Possessions should be altogether free from the Exaction of Secular men and that from thenceforth all Divine things should be handled in every part of Ireland in such sort as the Church of England handleth them Likewise about the year 1175. at London a Synod or Convocation was held at which King H. 2. was present where among other Canons and Constitutions it was both by Authority of the King and Synod decreed That every Patron taking a Reward for any Presentation should for ever lose the Patronage thereof Which together with other Canons then made for the better government of the Church of England were Published by Richard Archbishop of Canterbury with the Kings Assent Likewise a Provincial Synod was held at Oxford by Stephen Langton Archbishop of Canterbury under King H. 3. about the year 1222. for Reformation of the Clergy with many others in subordination to the Laws of the Land One special Priviledge of the Convocation appears by 8 H. 6. cap. 1. All the Clergy from henceforth to be called to the Convocation by the Kings Writ and their Servants and Familiars shall for ever hereafter fully use and enjoy such liberty and Immunity in coming tarrying and returning as the Great men and Commonalty of the Realm of England called or to be called to the Kings Parliament have used or ought to have or enjoy 8 H. 6. In Parliamento Statutum est ut Praelati atque Clerici câ—rumque Famulatus cum ad Synodos accesserint iisdem Privilegiis ac
Immunitatibus gaudeant quibus Milites Burgenses Parliamenti Ant. Brit. fo 284. nu 30. 6. The Jurisdiction of the Convocation in this Realm though relating to matters meerly Spiritual and Ecclesiastical yet is subordinate to the establish'd Laws of the Land it being Provided by the Statute of 25 H. 8. c. 19. That no Canons Constitutions or Ordinances shall be made or put in execution within this Realm by Authority of the Convocation of the Clergy repugnant to the Prerogative Royal or to the Customes Laws or Statutes of this Realm To the same effect was that of 9 Ed. 1. Rot. Parl. Memb. 6. Inhibitio Archiepiscopo omnibus Episcopis aliis Praelatis apud Lambeth Conventuris ne aliquid statuant in praejudicium Regis Coronam vel dignitatem For although the Archbishop and the Bishops and the rest of the Clergy of his Province Assembled in a Synod have power to make Constitutions in Spiritual things yet they ought to be Assembled by Authority of the King and to have as aforesaid his Royal Assent to their Constitutions which being had and obtained the Canons of the Church made by the Convocation and the King without Parliament shall bind in all matters Ecclesiastical as well as an Act of Parliament as was Resolved in Bird and Smiths Case Although the Saxons who founded and endowed most of our Churches and made many good Laws in reference to the Jurisdiction power and priviledges thereof yet the Royal Prerogative with the Laws and Customes of the Realm were ever so preserved as not to be invaded thereby King AEthelbert the first Saxon King King Ina AEthelstane Edmund Edgar and King Kanute all these made Laws in favour of the Church but none of them ever entrenched on the Prerogative of the Crown or on the Laws or Customes of the Realm nor any of those ancient Church-Laws ever made without the Supream Authority to ratifie and confirm the same 7. The Laws and Constitutions whereby the Ecclesiastical Government is supported and the Church of England governed are the General Canons made by General Councils also the Arbitria Sanctorum Patrum the Decrees of several Archbishops and Bishops the Ancient Constitutions made in our several Provincial Synods either by the Legates Otho and Othobon or by several Archbishops of Canterbury All which by the 25 H. 8. are in force in England so far as they are not repugnant to the Kings Prerogative the Laws and Customes of England Also the Canons made in Convocations of Later times as Primo Jacobi Regis and confirmed by his Regal Authority Also in some Statutes Enacted by Parliament touching Ecclesiastical affairs together with divers Customes not written but in use beyond the memory of Man and where these fail the Civil Law takes place Among the Britain Councils according to Bishop Prideaux his Synopsis of Councils Edit 5. those amongst the rest are of most remark viz. At Winchester in King Edgars time under Dunstane at Oxford by Stephen Langton Archbishop of Canterbury at Claringdon under King Henry the Second The Council under King Edward the 6 th in which the 39 Articles of the English Confession was concluded and confirmed The Synod under the same King from which we receive the English Liturgy which now we have composed by Seven Bishops and Four Doctors and confirmed by the publick consent of the Church which as also the said 39 Articles the succeeding Princes Queen Eliz. King James and King Charles ratified and commended to Posterity At London a Synod in which 141 Canons or Constitutions relating to the pious and peaceable Government of the Church presented to King James by the Synod and confirmed by his Regal Authority and at Perth in Scotland where were Articles concerning Administring the Sacrament to the Sick Private Baptism where Necessity requires Confirmation admitting Festivals Kneeling at the Receiving the Sacrament and an allowance of Venerable Customes But de Concil Britan. vid. D. Spelman The Ancient Canons of the Church and Provincial Constitutions of this Realm of England were according to Lindwood the Canonist who being Dean of the Arches compiled and explained the same in the time of King H. 6. made in this order or method and under these Archbishops of Canterbury viz. The Canons or Constitutions 1. Of Stephen Langton Cardinal Archbishop of Canterbury in the Council at Oxford in the year of our Lord 1222 who distinguish'd the Bible into Chapters 2. Of Otho Cardinal the Popes Legate in Anno 1236. on whose Constitutions John de Athon Dr. of Laws and one of the Canons of Lincoln did comment or gloss 3. Of Boniface Archbishop of Cant. 1260. 4. Of Othobon Cardinal of St. Adrian and Legate of the Apostolical Chair on whose Constitutions the said John de Athon did likewise Glossematize His Canons were made at London in Anno 1268. 5. Of John Peckham Archbishop of Canterbury at a Synod held at Reding An. 1279. 6. Of the same Peckham at a Synod held at Lambeth An. 1281. 7. Of Robert Winchelse Archbishop of Canterbury An. 1305. 8. Of Walter Reynold Archbishop of Canterbury at a Synod held at Oxford An. 1322. These Constitutions in some Books are ascribed to Simon Mepham but erroneously for the date of these Constitutions being An. 1322. the said Walter Reynold according to the Chronicle died in An. 1327. and was succeeded by Simon Mepham 9. Of Simon Mepham Archbishop of Cant. An. 1328. 10. Of John Stradford Archbishop An. 13 ... 11. Of Simon Islepe Archbishop An. 1362. 12. Of Simon Sudbury Archbishop An. 1378. 13. Of Tho. Arundel Archbishop at a Synod or Council held at Oxford An. 1408. 14. Of Henry Chichley Archbishop An. 1415. 15. Of Edmond Archbishop of Canterbury 16. Of Richard Archbishop of Canterbury The Dates of the Canons or Constitutions of these Two last Lindwood makes no mention by reason of the uncertainty thereof but withal says it is clear That Richard did immediately succeed the foresaid Stephen Langton and the said Edmond succeeded Richard Lindw de Poen c. ad haec infra in verb. Mimime admittatur If so then it was most probably Richard Wethershed who was Archbishop of Canterbury An. 1229. And St. Edmond Chancellor of Oxford who was Archbishop of Canterbury An. 1234. 8. Councils were either General or Oecumenical from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 whereunto Commissioners by the Emperours Authority were sent from all quarters of the World where Christ hath been preached Or National or Provincial or Particular by Bullenger called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 such were the Councils of Gangra Neo-caesarea and many others commonly Assembled by Patriarchs and Bishops in some particular place of a Countrey The ends of these Councils chiefly were either for the suppression of Heresies the decision of Controversies the appeasing of Schisms or the Ordaining of Canons and Constitutions for decency of Order in the Church Vid. AElfrici Canones ad Wulfinum Episcopum Can. 33. where it is said That there were Four Synods
Simony and the Error of the Nicholaitans whereof they counted such Priests guilty as had married Wives though they did not as the Nicholaitans make them Common At Mantua An. 1066. the Emperour Henry the Fourth assembled a Council for pacifying the Differences in the Roman Church between Alexander the Second and Candalus called Honorius the Second wherein Alexander was declared Pope and Candalus pardoned At Winchester Pope Alexander the Second by two Cardinals sent into England Assembled a Council to appease the Troubles of the Church in this Kingdom wherein they deposed certain Bishops and Abbots among whom Stigandus Bishop of Canterbury because he had possessed that Chair Robert Archbishop thereof being then alive and because he possessed another Bishoprick with it viz. the Bishoprick of Winchester At Friburgh anciently called Tributia the Bishops of Germany assembled themselves in a Council in which they declared the Archbishop of Bremen to be an Enemy to their Countrey except he delivered up the young Emperour Henry the Fourth to be educated according to the Covenant made between the Princes and Bishops of Germany during his Minority At Mentz An. 1069. a Council was assembled in order to a Divorce of the Emperour Henry 4. from his Wife from which he was disswaded by the Arguments of Petrus Damianus the Popes Nuncio for that purpose At Erfurd An. 1074. the Bishop of Mentz assembled a Council in order to an observance of a Command from Pope Gregory 7 th touching a separation of the Priests within the Bishoprick of Mentz from their Wives or else to depose them from their Offices By reason whereof as also by reason of the Bishops exaction of Tithes from Turingia this Council rose in a tumult and great confusion re infecta At Mentz An. 1075. the Bishop thereof being commanded by Pope Gregory 7 th to separate the Priests from their Wives convened a Synod but the married Priests so terrified the Bishop of Mentz and the Bishop of Chur the Popes Nuncio that this Council also as the former was dissolved and nothing done At Wormes the Emperour assembled all the Bishops of his Kingdom in order to a deposing of Pope Gregory 7 th otherwise called Hildebrand accused of Perjury Ambition Avarice and Pride The determination of this Council was That he should be removed from the Popedom which was Subscribed by all the Bishops present at the Council At Friburgh An. 1076. another Council was assembled wherein the Princes of Saxony and Sweve appeared in favour of the See of Rome against the Emperour Henry the Fourth At Rome by order of the Pope a Council was assembled in Lent wherein the Emperour Henry 4 th was not only Anathematiz'd but also denuded as far as in them lay of his Imperial Dignity At Brixia in the year 1080. the Emperour Henry 4 th assembled 30 Bishops of Germany and Italy together with many Princes of the Empire All which consented That Hildebrand should be deposed from the Popedom and Gilbertus Bishop of Ravenna placed in his room At Rome An. 1081. the Emperour Henry 4 th with the Advice of the Roman Senate appointed a Council to be Assembled wherein Hildebrand was deposed and Gilbertus otherwise Wigbertus to succeed in the Papacy This Council was called by the said Emperour soon after he had besieged and taken the City of Rome At Beneventum a Council was Assembled by Pope Victor the Third who before his Election to the Papacy was named Desiderius Abbot in Cassinates chosen by the Romans not regarding Gilbertus whom the Emperour had made Pope In this Council Victor the Third Anathematized Gilbertus Bishop of Ravenna At Clermont in Overnie of France in the year 1095. Vrbanus the Second convened a great Assembly wherein it was Ordained That an Army should be raised for support of the distressed Christians in Jerusalem and recovery of the Holy Land out of the hands of the Infidels The which was likewise Ordained in the Council of Placentia and other Councils of the lesser concern here omitted for Brevities sake In the next viz. the 12 th Century there were above 115 Councils To instance in the most material of them may suffice for this Abridgment At Paris Vrbanus the Second at the complaint of Alexius Emperour of Constantinople against the rage of the Turks assembled a Council of most Nations and was present himself thereat In this Council were appointed 100000 Men out of the Western Kingdoms for the Holy Land At Florence Pope Paschalis the Second convened a Council wherein the Bishop of Florence was called to an account for Preaching openly That Antichrist was already come for which he was sharply rebuked and commanded That for time to come he should utter no such Doctrine At London in the year 1102. in the Third year of the Reign of Hen. 1. King of England Anselmus Archbishop of Canterbury assembled a Council for prohibiting the Marriages of Priests and the year following was constrained to convene another Council at St. Pauls in London to make Constitutions for the punishment of such as defiled themselves with Sodomitical Lusts At Mentz An. 1106. a great Council was assembled against the Emperour Henry 4. whom they condemned of Heresie which was Simony because he would not resign the Right of Investure of Bishops into the Popes hands and having Excommunicated him took off his Imperial Crown At Troyes in France in the year 1107. Pope Paschalis the Second convened a Council which treated concerning the Investure of Bishops not to be in the power of Lay-persons At Triburia in Friburgh in the year 1119. the Bishops of Germany assembled concerning the Investure of Bishops and in opposition to the Emperour Henry the Fifth At Senon a Council was called against Abelardus by reason of his Heresie He was also accounted an Heretick in the Council of Soâ—sson The First Four Lateran Councils are comprehend under one and the same Title as more favouring the Roman Dissentions than the Doctrine and Discipline of the Church The first under Henry the Fifth and Calixtus the Second which had 300 or according to Bellarmine 900 Bishops and 22 Canons In this Council Burdinus the Anti-Pope was laid aside the vestures with the Ring and Staff were taken from the Emperour and given to the Pope who absolved the Emperour and gave him power of electing German Bishops In this Council there were appointed Crosses for the 〈◊〉 War by means whereof Pardon of Sins might be grant 〈◊〉 them that undertook that War and to their Families The Second Lateran Council was under Lotharius the Emperour and Innocentius the Second which increased to the number of about 2000 Bishops This Council omitted Thirty Canons lately published by Gratian from the Vatican Library which Bellarmine is said to reject It discharged Peter usurping the Roman See after Leo under the name of Anacletus the Second branded for Hereticks Peter of
of Pope Julius the Third An. 1551. which had only Three Sessions by reason of Wars happening in Germany At this Second Meeting the French King protested against this Council The Third Meeting whereof was Nine years after the Second it being appointed by Pope Pius the Fourth there having been in this interval since the Second Meeting when Julius the Third was Pope two other Popes viz. Marcellus and Paulus the Fourth At this Third and last Meeting there were Nine Sessions the Last whereof began the Third of December An. 1563. The chief Points treated of at this Council were concerning the Scriptures Original Sin Justification the Sacraments in General Baptism the removing of the Council the Eucharist Repentance Extream Unction Communion of Lay-persons under one kind the Sacrifice of Masse the Sacrament of Order Matrimony Purgatory Worshipping of Reliques Invocation of Saints Worshipping of Images Indulgencies the choice of Meats Fastings and Festivals The History of this Council of Trent is extant Of National Councils there have been many more than what are before mentioned as here in Britain and in Italy Spain France Germany the Eastern and African In Italy it is said that there are to be found 115 such Synods as it were National which go under the Name of Roman Councils But such as are of the most Remark in each of these Countreys and the principal things they determined you may find a touch of and no more in the Learned Bishop Prideaux his Synopsis of Councils in the Eighth Chapter Edit 5. Oxon. 1672. CHAP. XLII Of Excommunication 1. What Excommunication is It is Twofold 2. By what Appellations the Greater and Lesser Excommunication are known and distinguished their respective derivations and significations and the nature of each 3. Ecclesiastical Censures in the general may be Threefold 4. What the Law intends by Excommunication ipso facto 5. What the Excommunicate is not debarr'd of by Law 6. Legal Requisites to the due pronunciation of the Sentence of Excommunication 7. What course the Law takes with an Excommunicate after Forty days so perisisting obstinate 8. The several Causes of Excommunication ipso facto enumerated by Lindwood 9. The Causes of Excommunication ipso facto by the Canons now in force in the Church of England 10. The several Writs at Law touching persons Excommunicate and the Causes to be contained in a Significavit whereon the Excommunication proceeded 11. What the Writs de Excommunicato Deliberando also de Excommunicato Recipiendo do signifie in Law 12. A sufficient and lawful Addition to be in the Significavit and in the Excom Capiend Vid. Sect. 10. 13. Several Statutes touching Persons Excommunicated 14. Excommunication for striking in the Church 15. Whether a Bishop hath Jurisdiction or may Cite a man out of his Diocese 16. What are the Requisites of a Certificate of Excommunication for stay of Actions and how it ought to be qualified 17. A Significavit of Excommunication for not Answering Articles not shewing what they were not good 18. By whom an Excommunication may be Certified and how 19. In what case the Significavit of an Excommunication ought to express one of the Causes mentioned in the Statute 20. Whether a General Pardon doth discharge an Excommunication for Contempt precedent to the Pardon or shall discharge the Costs of Court thereon 21. A man taken upon an Excom Cap. and discharged because the Significavit did not express the party to be Commorant within the Bishops Diocess at the time of the Excommunicat 22. Where a man is twice Excommunicated whether an Absolution for the latter shall purge the first Excommunication 23. Whether a Prohibition lies to the Ecclesiastical Court upon Costs there given not in an Action at the Suit of the party but upon an Information there exhibited 24. What Remedy in Law for a party wrong fully Excommunicated and so remaining Forty daies without suing a Prohibition 25. Whether a Person taken by a Capias de Excom Capiend be Bailable or not And whether the Bishop may take Bond of the Excommunicate to perform Submission for their Absolution 1. EXcommunication commonly termed in the Common Law in the Law-French thereof Excommengement is a Censure of the Church pronounced and inflicted by the Canon or some Ecclesiastical Judge lawfully Constituted whereby the party against whom it is so pronounced is pro tempore deprived of the lawful participation and Communion of the Sacraments And is also sometimes as to Offenders a deprivation of their Communion and sequestration of their persons from the Converse and Society of the Faithful And therefore it is distinguish'd into the Greater and Lesser Excommunication the Greater comprizing as well the latter as the former part of the abovesaid definition or description the Lesser comprizing only the former part thereof de Except c. a nobis Lindw de Cohab. Cler. gl in verb. Sacramenta Excommunicatio quasi extra Communionem For Excommunication is Extra Communionem Ecclesiae separatio vel Censura Ecclesiastica excludens aliquem à Communione Fidelium This Ecclesiastical Censure when it is Just is not by any means to be despised or opposed for Christ himself is the Author thereof Anciently among the Hebrews such persons as were Excommunicated were termed Aposynagogi as being quasi Synagoga exacti and to be shun'd or avoided of all men until they repented That of our Saviour in Matth. 18. 17. Let him be unto thee as an Heathen man and a Publican seems to referr to some such Excommunication the power whereof by way of Judicature being then in the Jewish Sanhedrim or Colledge of Elders 2. This Ecclesiastical Censure when limited or restrained only to the Lesser Excommunication the Theologists will have to be understood by the Greek word Anathema Accursed or Separated and when it extends to the Greater Excommunication then to be understood by the Syriack word Maran-atha or Our Lord cometh Anathema Maran atha Anathema Let him be Accursed quasi Devoted to the Devil and separated from Christ and his Churches Communion Maran-atha Some take this for a Syriack word Others not so well satisfied with that Judgment will have it to be a Chaldee word yet used in the Hebrew and familiarly known among the Greeks Maran-atha viz. Our Lord cometh for Maran is our Lord and atha cometh or rather three words more properly viz. Mara-na-atha Our Lord cometh Being a word used in the greatest Excommunication among the Christians intimating or implying That they summoned the person Excommunicated before the dreadful Tribunal at the last coming of the Son of God or that such as were under this Censure of the Church were given up and reserved to the Lords coming to be judged by him and mean while without Repentance and Absolution are to expect nothing but the Terrible coming of Christ to take Vengeance of them To which that Prophesie of Enoch seems to allude Behold the Lord cometh with Ten thousands of his Saints to execute Judgment upon all
into the Church albeit Divine Service be not then celebrating unless it be to hear the word preached which being ended he is immediately to depart or stand at the Church-door in the time of Divine Service and hearing the same albeit he go not within the Church it self or thrust himself into the company of others when it is in his power to avoid it or lastly when he continues too long secure under such Sentence of Excommunication without repentance whereby the Law concludes him so manacled by his obstinacy as no Spiritual Physick can have any operation upon him And although regularly the Return of such a one is to be expected usque ad annum yet in this Kingdom quoad incovationem Brachii Secularis it is sufficient if Forty daies be expired after his Excommunication Ibid. c. 1. authoritate glos in verb. Contemnentes And whereas we often in the Law meet with certain Cases of Offences incurring the Sentence of Excommunication ipso facto that is as aforesaid nullo hominis ministerio interveniente Requiritur tamen even in that case Sententia Declaratoria C. cum secund Leges de Haeret. li. 6. Lindw de Foro Comp. c. 1. glos in verb. ipso facto 8. It is therefore not impertinent here to insert what principally those Offences are on the Guilty whereof the Law doth inflict this Excommunication ipso facto Lindwood tells us that there are found among the Canons and Constitutions Provincial these Cases following wherein Excommunication ipso facto is incurr'd viz. 1 A wilful and malicious impeding the execution of the Canon against Incontinency specially in Ecclesiasticks as to Concubines 2 A clandestine and surreptitious Proceeding at Law even to the Writ of Banishment against an innocent person and ignorant of the Proceedings 3 Bigamy 4 False Accusing of any Innocent Clergy-man before a Temporal Judge whereby he happens to suffer under the Secular Power 5 A laying Snares to entrap any in holy Orders whereby afterwards to charge them falsly before the Secular Powers with Crimes whereof they were not guilty 6 A violation of lawful Sequestrations made by the Bishops their Vicars general or principal Officials 7 The exercise of Ecclesiastical Jurisdiction by any Clerk married or by any Lay-person in matters only and properly pertaining to the Cognizance of the Church 8 Disobedience to the Gregorian Constitution forbidding the holding of Two Benefices Incompatible cum Cura animarum without a Dispensation 9 A procuring to be Presented to a Benefice that is already full of an Incumbent by virtue of the Writs of Quare non admisit or Quare impedit or the like 10 Abettors and Advisors of any to fraudulent Conveyances or Deeds of Gift in fraudem Ecclesiae Regis Creditorum aut haeredum 11 All such as hinder any of what quality soever that are legally Testable from making their last Wills and Testaments or afterwards do unjustly obstruct the due execution of the same 12 All such as hinder the devotion of the people in making their Offerings and paying their Tithes converting them to their own use 13 All such as deny the gathering of the Tithes of any Fruit or molest and hinder the Collectors thereof 14 All Lay-persons who usurp upon such Oblations and Offerings as are due and appertain only to Ecclesiastical persons without their assent and the assent of the Bishop 15 Sacrilegious persons and all such as invade the just Rights Liberties or Revenues of the Church or otherwise unjustly possess themselves de bonis Ecclesiasticis 16 All Bayliffs and other Officers that unjustly enter upon the Goods of the Church or unduly exact from the same or commit Waste upon any the Revenues of a Church vacant 17 All Oppugners of Episcopal Authority or that resist and oppose the exercise of Ecclesiastical Jurisdiction and all such as disswade others from their due Obedience thereunto 18 All such as being imprisoned for their Contempt to some Ecclesiastical Sentence are thence set at liberty contrary to the Liberties and Customes of the Church of England being Excommunicate persons when they were first apprehended 19 All such as violently usurp upon the propriety of such Trees and Fruits as grow in the Church-yards rooting them up or felling them down or mowing down the Grass thereof contrary to the will and without the consent of the Rector or Vicar of any Church or Chappel or their Tenants 20 All such as should non ritè solemnize Prohibited Marriages that is such as have any Canonical Impediment 21 All such as contrary to the true Catholick sense shall assert any thing or lay down positions or make propositions sauouring of Heresie publickly in the Schools 22 All such as in their Preaching or otherwise shall violate the Canon that enjoyns a due examination and approbation of persons before they are admitted to Preach the Word of God 23 All such as touching the Sacraments assert any thing beside or contrary to the determination of the Church or call such things into doubt publickly as are defined and stated by the Church 24 All such as in the Universities do after a premonition to the contrary hold any Opinions or assert any Doctrines Propositions or Conclusions touching the Catholick Faith or good manners of an ill tendency contrary to the determination of the Church 25 All such Clerks as without Ecclesiastical Authority shall of themselves or by any Lay-power intrude themselves into the possession of any Parochial Church or other Ecclesiastical Living having Curam animarum These Cases and some others now not of use in this Realm are enumerated by Lindwood Lindw de Sententia Excom c. ult gloss in verb. Candelis accensis But there are very many other Cases in the Canon Law that fall under this Excommunication ipso facto by which in the Law is ever understood the Major Excommunicatio and was wont to be published and denounced in the Church Four solemn daies in every year when the Congregation was likeliest to be most full and that in Majorem terrorem 9. The Causes of Excommunication ipso facto according to the Constitutions and Canons Ecclesiastical of the Church of England now in force are such as these viz. 1 Impugners of the Kings Supremacy 2 Affirmers of the Church of England as now established to be not a true and Apostolical Church 3 Impugners of the Publick Worship of God establish'd in the Church 4 Impugners of the Articles of Religion establish'd in the Church of England 5 Impugners of the Rites and Ceremonies established in the Church of England 6 Impugners of the Government of the Church by Archbishops Bishops c. 7 Impugners of the Form of making and Consecrating Archbishops Bishops c. in the Church of England 8 Authors of Schisms in the Church 9 Maintainers of Schismaticks Conventicles and Constitutions made in Conventicles Likewise by the said Canons the Ecclesiastical Censure of Excommunication is incurr'd by all such Ministers as Revolt from the Articles unto which they subscribed at their
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
H. 6. 19. per Prisot y 8 E. 4. 24. b. per Curtam 5 H. 7. 20. b. per Reble and 22 H. 6. 30. per Mark. z Rol. Abr. Ver. presentment lit P. pag. 384. a 21 H. 6. 44. 34. H 6. 40. b 21 H. 6. 44. c 34 H. 6. 11. b. per Prisot 34 H. 6. 38. d 34 H. 6. 11. b. e ibid. per Prisot f 21 H. 6. 44. 45. Rollâ—ubi supra g 34 H. 6. 12. per curiam h F. N. B. Spoliation fo 36. b. vid. Casâ— Edes vers the Bishop of Oxford in Vaugh. Rep. i 38 H. 6. f. 19. Br. Spoliation pl. 4. O. N. B. 33. b. F. N. B. 54. Finch Nomotexnia p. 138. Bird and Smiths Case More 's Rep. Roberts and Amond shams Case More 's Rep. Mich. 13. Jac. B. R. the Kings case against Zakar Bulst par 3. F. N. B. 175. b. Finch ubi sup p. 135. Stamf. 133. Cap. 40. sect 7. in fin sect pag. 564. THE INDEX Referring to PAGE and PARAGRAPH ABBY-Lands how many ways priviledged or dischargâ—◠〈◊〉 Tithes p. 383. How the Abby of Battel came to be dispensâ—â— with from Visitation p. 108. Sect. 8. When and by whom 〈◊〉 Abby of Westminster was founded p. 328. Sect. 5. Abbot whence that word is derived and what it signifies p. 326 327. Sect. 1. How many Abbots anciently in England p. 327. Sect. 1. and 328. Sect. 5. They were reputed as Peers p. 327. Sect. 2. Some were Elective others Presentative p. 328. Sect. 5. When and by whom made Elective p. 331. Sect. 7. Three Abbots condemn'd at once for denying the Kings Supremacy p. 10. Sect. 14. Abeyance what p. 183. Sect. 9. and 189. Sect. 8. and 284. Sect. 3. Abjuration The form thereof anciently p. 141 142. Sect. 8. Absence of the Husband from the Wife what requisite to cause a Divorce p. 494. Sect. 2. Abstinence or Fasting Days the Original thereof in England p. 130. Sect. 44. Acceptance of Rent by a Bishop whether it shall bind him p. 38. Sect. ult By a Parson whether it confirms the Lease made by his Predecessor p. 189. Sect. 8. Accessories determinable in that Court which hath cognizance of 〈◊〉 Principal p. 114. Sect. 11. and p. 123. Sect. 25. Accompt in what case an Executor shall not be compelled thereunâ—â— p. 116. Sect. 12. Acorns Whether Tithable p. 383. Action upon the Case in what Case it may lye at Common Law for suing in the Ecclesiastical Court p. 444. Administrator how he may make his own Goods 〈…〉 Debts p. 86. Sect. 11. Admission what and under what qualification 〈…〉 p. 272. Sect. 6. the form thereof p. 272. Sect. 7. Admittendo Clerico in what Cases that 〈…〉 Adultery where Cogniâ—able and 〈…〉 Advocatio Medietatis Ecclesiae Medietatis Advocationis Ecclesiae the difference in Law between them p. 206. Sect. 2. Advocatione decimarum what that Writ imports p. 647. Sect. 7. Advowe or Avowe who properly such p. 206. Sect. 2. and p. 213. Sect. 14. Advowson what and whence derived p. 205. Sect. 1. Twofold p. 206. The Original thereof p. 207. Sect. 3 A Temporal non Spiritual Inheritance p. 209. Sect. 6 7. How Advowson in Gross differs from Appendant p. 210. Sect. 8. Whether it may be extended p. 182. Sect. 7. By what words in a Grant it may pass or not p. 211. Sect. 10. p. 214 Sect. 15 16. Whether it may be Assets p. 214. Sect. 15. Whether the Advowson of a Vicarage endowed belongs to the Parson or the Parsons Patron p. 216. Sect. 21. Whether the Advowson of a Vicarage doth pass by the Grant of the Vicarage p. 219. Sect. 24. Three Original Writs of Advowsons p. 216. Sect. 20. Aftermath and Aftergrass whether Tithable p. 384. Age at what age a Minor Executor may administer p. 219. Sect. 16. Agistment what and whether Titheable p. 384 385. Agreement between Parson and Parishioner touching Tithes p. 373. Sect. 47. and p. 385 386. Good for years without Deed not so for Life p. 379. Sect. 69. and p. 386. Alcheron how severely it doth punish Adultery p. 471. Sect. 6. Aldermanus anciently what p. 96. Sect. 1. Aliens whether presentable to a Church in England p. 264. Sect. 26. and p. 272. Sect. 6. Alimony what p. 508. Sect. 13. where cognizable p. 510. Sect. 16. 18 19. In what Cases the Law allows Alimony or not p. 509 510. Sect. 14 15. whether due to her that Elopes p. 508. Sect. 13. Alms or things appointed for that end whether Tithable p. 386. Altarage what p. 339. Sect. 1. whether Tithe Wool or Tithe Wood shall pass by the word Altaragium p. 341. Sect. 3. p. 342. Sect. 4 5. St. Andrews in Scotland when and by whom the Bishop thereof was made Metropolitan of all Scotland p. 18. Sect. 9. Animalia Utilia Inutilia the difference between them in reference to Tithes p. 360. Sect. 17. and p. 386. Annates what by and to whom payable p. 335. Sect. 1. The Original thereof p. 337. Sect. 2 3. vid. First-fruits Annua Pensione what that Writ imports p. 648. Sect. 14. Anselme Archbishop of Canterbury the first that made Appeals to Rome p. 97. Sect. 1. and p. 118. Sect. 13. The first Archbishop of Canterbury that was Legatus Natus p. 98. Sect. 1. Apparitor Action against such for false informing p. 88. Sect. 14. vid. Summoner Appeals to Rome prohibited p. 9. Sect. 14. p. 118. Sect. 13. They are made to the King in Chancery p. ibid. Appeal out of Ireland to the Delegates in England in what case p. 407. vid. Delegates Appellatione remota the effect of that clause in Law p. 117. Sect. 13. Apples what Tithes they pay whether small to the Vicar or great to the Parson p. 361. Sect. 21. p. 386. In what case they may not be Tithable p. 371. Sect. 44. Appropriation what p. 223. Sect. 3. The original thereof p. 221 222. Sect. 1. Whether it may be made without the Kings License ibid. and p. 198. Sect. 3. Whose Assents are requisite thereunto p. 222. Sect. 1. How they are now chang'd in their use and end from what they were originally p. 223. Sect. 2. Whether they might formerly be granted to Nunneries p. 223. Sect. 2. and p. 225. Sect. 5. They may not now as to their Original be called into question p. 226. Sect. 6. How a Church Impropriate may become disappropriate p. 229. Sect. 12. Arabians their strange conceit of Adultery p. 471. Sect. 6. The punishment thereof with them Capital ibid. Arable Land left Fallow and untill'd every other year whether Tithable that year p. 394. Archbishop whence so called A description of that Dignity p. 12. Sect. 1. What difference between Archbishop and Metropolitan p. 15. Sect. 3. Three Archbishops in England and Wales anciently p. ibid. Sect. 4. How that in Wales came to be lost and when p. 17. Sect. 6. None in Ireland until the year 1152. p. 20. Sect. 13. In what Cases an Archbishop may call
p. 31. Sect. 12. Several things incident to a Bishop qua talis p. ibid. and Sect. 13. In what respects his Jurisdiction is not meerly local p. 32 33. Sect. 15. The Dignity and Precedency of Bishops here in England p. 35. Sect. 19. Their precedency among themselves p. 13. Sect. 1. Their Capacity of Temporal Jurisdiction restored p. 36. Sect. 20. They were anciently invested per Annulum Baculum p. 24. Sect. 3. and p. 29. Sect. 8. Bishops of London Deans of the Episcopal Colledge p. 38. Sect. 22. Bishopricks in England all Founded by the Kings of England p. 24. Sect. 3. How many iu England p. 12 13. Sect. 1. They were anciently Donative p. 24. Sect. 3. and p. 29. Sect. 8. Their Patronage is in the King ibid. How the Bishopricks of Wales became annexed to the Crown of England p. 28. Sect. 6. They were erected into Baronies by King William the Conqueror p. 35. Sect. 19. Blasphemy what whence so called Threefold the severe Punishments inflicted thereon p. 559 560. Sect. 1 2 3. Bona Notabilia what p. 104. Sect. 6. Bricks whether Tithable p. 390. Broom in what Case Tithable or not p. 390. Buck and Doe not Tithable yet payable for Tithe p. 361. Sect. 20. and p. 380. Sect. 75. Bull or the Popes Bull whence so called p. 341. Sect. 3. Burial in the Body of the Church who hath right to License it p. 139. Sect. 5. Whether any thing payable to the Parson for Burial of him out of his Parish that died in his Parish p. 188. Sect. 5. Burglary to enter a Church by Night with an intent to steal p. 141. Sect. 8. C. CAerlegion in Wales anciently the Metropolis of Britannia Secunda p. 16. Sect. 4. Calves how Tithed and when and what kind of Tithes they yield p. 390. Camois or Sir John de Camois the remarkable Case of his demising his Wife p. 474. Sect. 11. Canon-Law when and how first introduced into England p. 129 c. Sect. 44. Where and by whom it was first read in this Kingdom p. 132. Sect. ibid. Whether it be any part of the Law of England p. 585 586. Sect. 3. p. 131. Sect. 44. Canons anciently made by the Kings of this Realm without the Pope p. 6. Sect. 8. They were ever called the Kings Canons not the Bishops p. ibid. They cannot be made nor oblige the Subject without the Royal assent p. 7. Sect. 11. and p. 99. Sect. 2. They may not be repugnant to the Kings Prerogative nor to the Laws or Customes of the Realm p. ibid. p. 9. Sect. 14. p. 163. Sect. 5. p. 192. Sect. 15. p. 589. Sect. 6. What Canons in force 1 Ed. 6. p 585. Sect. 2. They are the Ecclesiastical Laws of the Land p. 112. Sect 9. Canterbury anciently the Royal City of the Kings of Kent p. 13. Sect. 1. when first declared to be the Metropolitan Church of England Scotland and Ireland p. 20 Sect. 13. Cathedrals whence so called p. 347. Sect. 1. Cathedraticum what and how it differs from Procurations p. 72. § 9. the original thereof ib. Cattel in what cases tythable or not and the Herbage thereof p. 390 391. p. 366. Sect. 33. p. 367. § 35. whether young Cattel are tythable ib. p. 370 371. § 43. whether the Herbage of Barren Cattel be tythable p. 373. § 46. Caveat entered against an Institution to a Benefice whether it makes void such Institution made after the entring of the Caveat p. 276. § 34. p. 280. § 18 whether a Caveat entred in the life time of an Incumbent be void ib. Cautione admittenda what that Writ imports and the effect thereof in Law p. 648. § 10. Certificate of the Bishop requisite in a Plea of Bastardy p. 484. § 13. in what Case traversable p. 88. § 12. Cession what p. 286. § 9. where Cognizable p. 122. § 11. Chalk whether tythable p. 391. Chancel by whom to be repaired p. 143. § 10. p. 175. § 4. In whom the Freehold thereof 〈◊〉 p. 150. § 22. Chancellor of a Diocese a description of his Office p. 81. § 1. What matters cognizable by him p. 85. § 10. The original and use of that Office p. 81 82. § 2. What the Canons enjoyn concerning such p. ibid. § 3. Why called the Bishops Vicar General p. 81. § 1. Whether a Divine not experienced in the Civil and Canons Laws may be a Chancellor p. 82 83. § 4. Chaplains whether the King Queen Prince and Children of the Blood Royal may retain as many as they please p. 294. § 3. How many the Archbishop of Canterbury may retain ibid p. 21. § 13. and p. 32. § 13. How many retainable by a Bishop ib. How many by a Duke Marquess Earl and other persons of honour p. 294. Sect. 3. Chappel whence that word p. 145 146. Sect. 15. How many kinds thereof ibid. What a Chappel of ease and what a Free Chappel is and by whom visitable Sect. ibid. The Imperial Law touching the building of Chappels p. 146. Sect. 17. Chapter what p. 56. Sect. 8 c. The difference between Capitulum and Conventus p. 58. Sect. 9. Charles Martell the first that violated the Church in point of Tithes p. 354. Sect. 7. Charter of William the Conquerour touching Consistories p. 84. Of King John touching the Election of Bishops p. 183. Sect. 10. Of King H. 8 touching Pentecostals p. 74. Chaunter and Chauntry what p. 392 c. Sect. 6. Certain differences in Law touching Chauntries p. 331. Sect. 8. Cheâ—se in what Case to be Tithed or not p. 391. Cherry-Trees where adjudged Timber and Tithe-free p. 392. Chicken how Tithable or not p. 392. Child how reputed legitimate or not as to the time of it's Birth in computation from the time of its conception p. 484. Sect. 12. Chorepiscopi what p. 30. Sect. 11. Christmas-day whether Arrests may be made thereon p. 115. Sect. 12. Church none such in Law until Consecration p. 142. Sect. 9. Anciently a Sanctuary p. 141. s 8. Threefold p. 136. s 1. Church-Lands prohibited by the Imperial Law from being alienated p. 136. s 2. In whom the Freehold of the Church and Church-yard is p. 137. s 3. Churchwardens by whom Eligible and wherein their Office consists p. 160 c. Sect. 1. p. 162. s 4 5. p. 168. s 21. p. 166. s 14. Whether they are a Corporation in Law p. 162 163. s 5. p. 164. s 11. and whether as such they may take Lands to the use of the Church p. 167. s 17. p. 168. s 22. What power they have touching Seats in the Church p. 140 141. s 7. What Actions may lie for or against them p. 161. s 2. p. 163. s 7 8. p. 167. s 18. p. 168. s 20. p. 186 187. s 3. Before whom they are to make their Account p. 161. s 1. p. 166. s 16. p. 167. s 19. Whether the New Church-wardens may have Action for Trespass done in their Predecessors time p. 162. s
The causes thereof p. 206 207. Sect. 2. Where cognizable p. 122. Sect. 21. Whether a Bar to Tithes due before p. 398. Whether the Church be void pending the Appeal from a Sentence of Deprivation p. 314. Sect. 17. Delegates-Court how Constituted p. 117. Sect. 13. Whether they may Excommunicate or grant Letters of Administration p. ibid. Dilapidation what p. 173. Sect. 1 2 3. The remedies in Law against it and how many ways it may happen ibid. Whether it be a sufficient cause of Deprivation p. 175. Sect. 5 9. and p. 315. Sect. 19. Diocess whence that word derived p. 101. Sect. 3. What it properly signifies p. 275. Sect. 8. Discharge of Tithes how many ways it may be p. 398. In what Cases it may be or not p. 358. Sect. 12. p. 368. Sect. 38. Dispensation the true definition thereof p. 112. Sect. 9. By whom Dispensations may be granted and in what Cases p. 107 c. Sect. 8. Anciently had from the Court of Rome ibid. It may be without the word Dispensamus p. 302. Sect. 18. They are grantable by the King qua talis p. 5. Sect. 7. p. 109. Sect. 8. The granting thereof is eminently in the Crown p. 6. Sect. 9. The Archbishop of Canterbury may be Statute grant them ibid. p. 19. Sect. 11. The difference between such granted by the Pope formerly and those granted by the King now p. 293. Sect. 2. In what Case grantable by the Guardian of the Spiritualties p. 40. Sect. 3. What remedy in Law in Case he refuse so to do ibid. Divorce what 493. Sect. 1. The Causes thereof ibid. Whether if for Adultery it dissolves the Marriage à vinculo p. 495. Sect. 3 c. Donative Churches what p. 202. Sect. 16. The Original thereof p. ibid. By whom visitable p. 34. Sect. 18. The Law concerning Donatives p. 262. Sect. 18. How they cease to be such and become Presentative p. 201. Sect. 16. and p. 263. Sect. 21. Whether a Donative in the Kings gift may be with Cure of Souls p. 218. Sect. 23. Dotards whether Tithable p. 405. Doves in a Dove-house what Tithes they pay p. ibid. Druids their Idol-Temples when first abolished in England p. 16. Sect. 4. Drunkard whether actionable to call one so p. 516. Sect. 3. p. 521. Sect. 14. Dubritius Archbishop of Carlegion in Wales p. 17. Sect. 6. Duplex Querela what p. 275. Sect. 8. E. ECclesia whence that word derived p. 136. Sect. 1. Ecclesiastical Laws of England the Antiquity thereof p. 129 c. Sect. 44. Edgar King his Zeal for the Church in his Oration to the Clergy of England p. 97. Sect. 1. Eggs how when and in what Case Tithable p. 405. Election of Bishops how and by whom to be made p. 43. Sect. 2. Eleutherius Pope what style be gave K. Lucius p. 4. Sect. 4. p. 111. s 8. Elopement what it signifies p. 508. Sect. 13. Episcopal Authority derived from the Crown p. 30. Sect. 10. Episcopal Jurisdiction endeavoured to be taken away p. 36 37. Sect. 2. Episcopocide in a Clerk Petty Treason p. 35. Sect. 19. Estovers burnt in a house whether Tithable p. 372. Sect. 46. p. 392. Ethelbert King of Kent by whom Canterbury was given to St. Austin for his See p. 13. Sect. 1. p. 17. Sect. 5. Whether he built St. Pauls Church in London p. 17. Sect. 7. Ethelwolph Son and Successor to Egbert the first sole King of England he was Bishop of Winchester p. 36. Sect. 19. And the first that enriched the Church of England with Tithes p. 348. Sect. 1. Euginus whether he were the first that styled himself Pope the first that consecrated Churches and the first that decreed Godfathers and Godmothers in Baptism p. 49. Sect. 7. Examination when and by whom to be performed p. 270 Sect. 1 3. Excommunication what p. 624. Sect. 1 2. Twofold ibid. What intended by Excommunication ipso facto p. 626. Sect. 4. What the causes in Law of That Excommunication p. 628. Sect. 8. In what manner Excommunication is to be pronounced p. 626. Sect. 6. By whom it is to be certified and how p. 635. Sect. 18. Whether the Ordinary may take Bond of an Excommunicate for his submission in order to absolution p. 637. s 25. whether Excommunication in a Patron be sufficient cause for a Bishop to refuse the Clerk presented by such Patron p. 266. Sect. 32. F. FAculty or Court of Faculties or Faculty Office what p. 107. Sect. 8. The Archbishop of Canterbury impower'd by the Statute to grant Faculties ibid. and p. 19. Sect. 11. The force and efficacy thereof to Commendams or two Benefices p. 107 109 110. Sect. 8. The difference between a Faculty to Take and a Faculty to Retain a Benefice p. 110. Sect. 8. Fallow-grounds whether Tithable p. 405. Fees for Probate of Testaments what due by Statute p. 105 106. Sect. 6. Fâ—nny-Lands drain'd whether they pay Tithes presently p. 406. Ferae naturae Creatures of that kind whether Tithable p. 405. First-fruits by and to whom payable p. 337. Sect. 2. vid. Annates Fith taken in the Sea or in a River Pond or Piscary whether Tithable and how p. 406. and p. 367. Sect. 36. p. 379. Sect. 68. p. 375. Sect. 53. Flamins how many anciently in England p. 16. Sect. 4. Flax what Tithes it pays and when p. 407. Forest-Lands whether Tithable or not and by whom p. 407 408. Not scituate in any Parish to whom the Tithes shall be paid p. 408. Whether Priviledg'd from Tithes whilst in the Kings hands otherwise in the Subjects p. 369. Sect. 41. Whether they are Priviledged from Tithes if in the hands of the Kings Patentee or Grantee p. 399. 401. Fowl taken in what Case Tithable or not p. 408. Fraud in setting forth Tithes whether treble dammages in that Case p. 380. Sect. 72. p. 381. Sect. 76. Freehold f the Church or Chancel in whom it is p. 137. Sect. 3. p. 83. Sect. 4. p. 139. Sect. 5. p. 142. Sect. 9. p. 150. Sect. 22. p. 151. Sect. 25. p. 155. Sect. 38. Frigidity in the Man pleaded by the Woman how the Civil Law proceeds thereon p. 493. Sect. 1. Fruit-Trees what Tithes they pay and when p. 408. Fuise whether Tithable p. ibid. G. GArba or Decima Garbarum what it signifies p. 381. Sect. 78. Gardens how Tithable p. 409. p. 371. Sect. 43. Geoffry Plantaginet Son to King H. 2. was Bishop of Lincolne p. 36. Sect. 19. Glass-windows Painted in the Isle of a Chappel if pulled down whether Actionable p. 138. Sect. 5. Gleab what p. 409. The Law concerning the Tithes thereof ibid. p. 410. Gleab of a Parsonage Impropriate and Leased whether Tithable ibid. p. 368. sect 38. Whether Gleab in Lease pays Tithe p. 362 363. s 26. Whether the Freehold of the Gleab during a Vacancy be in the Patron or not p. 183. s 9. Gleab manured and sowed by an Incumbent that dies before Harvest who shall have the Corn p. 318. s 3. Godfathers
p. 106. s 6. He hath Curam Curarum p. 32. s 14. Organs in a Church to whom they belong p. 167. s 18. if taken away where the Action lies p. 161. s 2. Ornaments of the Church at whose charge to be provided and how the same shall be charged p. 137. sect 4. p. 152. s 29. p. 154. s â—4 P PAgans the strange Punishments inflicted by them on Adulterers p. 470. Sect. 4. Pallium Episcopale a description thereof p. 23. s 2. Pander whether to call one so be Actionable p. 524. s 21. Pannagium what that word signifies p. 383. Pardon whether it may extend to prevent a Deprivation p. 312. s 15. Whether a General Pardon shall barr a Suit in the Ecclesiastical Court for Slander p. 121. s 19. In what case it may barr Costs of Suit p. 116. s 12. Pâ—rk disparked how Tithable p. 361. sect 20 21. p. 364 365. s 31. p. 427 428. How to be Tithed if converted into Tillage p. 361. s 20. p. 380. s 75. Parish the various acceptation of that word p. 355 356. sect 8. By whom Parishes were first divided p. 72. s 8 9. Parochial Bounds where Cognizable p. 126. s 37. p. 128. s 28. p 125. s 31. p. 157. s 40. p. 153. s 31. p. 380. s 74. Being Controverted between Spiritual persons are Cognizable in the Ecclesiastical Court p. 123. s 27. Otherwise at the Common Law p. ibid. s 28. p. 124. s 30. p. 126. s 37. Parish-Clerk by whom to be chosen p. 166. s 12. p. 192. s 15. Parson who properly such p. 185 186. s 1. He hath a double Capacity p. 193. s 16. Parson Imparsonee what p. 186. s 2. How he ought to be qualified to be a Parson p. 187. s 4. Requisites in Law for that Function ibid. What his Rights are p. 186. s 3. The difference between Parson Pastor Rector Vicar and Curate p. 186. s 1. Parsonage Church and Rectory are terms Synonymous p. 188. sect 6. Patridges and Pheasants though not Tithable yet paiable in lieu of Tithes p. 361. sect 20. What Tithes tame Patridges shall pay p. 428. Pasture the Law in reference to the Tithes thereof p. 428 429. Patria obedientiae and Patriae consuetudinariae the difference between them p. 130. s 44. Patriarch what p. 20. s 13. A Style or Title anciently given to the Archbishop of Canterbury p. ibid. Patron what he is and why so called p. 178. sect 1. p. 205. s 1. Who is properly the Patron of a Vicarage p. 199. s 9. Whether a Patron hath any thing to do in the Church during a Plenarty p. 191. s 12. His Consent requisite to Commandams Vnions and Appropriation of Churches p. 229. s 8. Paul or St. Paul whether he Preach'd here in England p. 16. Sect. 4. St. Pauls Church London by whom first built p. 17. Sect. 7. Paulinus Archbishop of York p. 14. Sect. 2. Pease in what Case not Tithable p. 429. Pelagius a Monk of Bangor his refusal to appear at Rome upon the Popes Summons p. 111. Sect. 8. Pelagian Heresie when this Kingdom first infected therewith and by whom suppressed p. 16. Sect. 5. Peculiars or the Court of Peculiars what it was p. 119. Sect. 16. How many Peculiars in the Province of Canterbury ibid. Pelts or Fells of Sheep dying of the Rot whether Tithable p. 429. Pensions suable in the Ecclesiastical Court p. 127. Sect. 41. p. 188. Sect. 6. p. 198. Sect. 5. p. 376. Sect. 57. Pentecostals what and whence so called p 73 74. Sect. 10. Peters Church in Cornhil London once the Cathedral of a Diocess p. 17. Sect. 7. By whom founded ibid. Peterpence what The Original thereof and why payed to Rome p. 73 74. Sect. 10. p. 112. Sect. 8. p. 356. Sect. 9. The Conquerors Law concerning the same p. 73. Sect. 10. Anciently taken from the Pope and given to the King p. 100. Sect. 2. Pews in the Body of the Church at whose disposal they are p. 137. Sect. 3. p. 156. Sect. 38. p. 158. Sect. ult vid. Seats Pheasants of what kind are Tithable p. 430. Though properly not Tithable yet as a Modus may be paid for Tithes p. 380. Sect. 75. Pictures in Church-windowes if pulled down whether Actionable p. 138. Sect. 5. Pigeons in what Case Tithable or not p. 430. Spent in the Owners House not Tithable p. 368. Sect. 37. p. 375. Sect. 53. Otherwise if sold ibid. Felony to steal them out of a Dove-house ibid. vid. Doves Pigs how Tithable p. 430. Pilchards and other Sea Fish whether Tithable and how p. 379 Sect. 68. Pimp whether and where Actionable to call one so p. 521. Sect. 16. Pits of Stone Lime c. whether Tithable p. 430. Plants transplanted whether Tithable p. 431. Plato 's Law concerning Adulterers p. 473. Sect. 9. Plurality what p. 292. Sect. 1. Who may grant or receive Pluralities p. 294. sect 3. Qualifications in Law touching Dispensations for Pluralities p. 295. Sect. 4. Whether the taking of a Parsonage with a Vicarage endowed amounts to a Plurality within the intent of the Statute p. 296. sect 5. The Text of Canon Law against Pluralities p. 300. sect 15. Pope when his usurpation in England first began p. 97. Sect. 1. When and by whom here first abrogated p. 18. Sect. 8. What his power was in granting Dispensations p. 5. Sect. 7. Postulation what p. 49. Sect. 8. Prebends what and why so called p. 35. Sect. 19. Prerogative Court of Canterbury the Jurisdiction thereof p. 104. Sect. 6. Prescription p. 431. to 436. The Law thereof in reference to Tithes ibid. and p. 358. Sect. 12. In what Court cognizable p. 367. Sect. 29. p. 125. Sect. 33. In what Case a Parson prescribing for Tithes may sue on that Prescription in the Ecclesiastical Court ibid. Prescription meerly Spiritual Cognizable in that Court p. 156. Sect. 39. Prescription to a Seat in a Church or to Priority in that Seat whether cognizable in the Temporal Court p. 138. Sect. 5. p. 140. Sect. 7. p. 142. Sect. 9. p. 149. Sect. 21. p. 155. Sect. 38. p. 147. Sect. 18. p. 151. Sect. 25. Whether a Prescription to Ecclesiastical things be Cognizable in the Ecclesiastical Court p. 153. Sect. 33. Prescription pleaded by a Parson against the first Endowment to the Vicar whether allowable p. 375. Sect. 54. Prescription de non decimando not denied to a Spiritual person p. 399. The difference between the Civil and Common Law in point of Prescriptions p. 129. Sect. 43. Praemonstracenses how discharged of Tithes p. 402. Presentation to a Benefice what p. 254. Sect. 4. Where the Right of Presentation is cognizable p. 256. Sect. 6. What the Law touching Presentation is in case of Copareeners Joynt-Tenants and Tenants in Common p. ibid. Sect. 7. How the Presentation is to be in case of Coheirs p. 255. Sect. 4. Whether a Presentation be revocable before Institution p. 258 259 Sect. 9 10. What Presentation shall serve for a Turn p. 262
Sect. 19. To what things a Presentation may be p. 263. Sect. 21. In what Cases the King shall have the Presentation by his Prerogative p. 263 264. Sect. 23 24. The difference in Law between the King and a Common person as to Presentations p. 265. Sect. 28. Primate and Metropolitan of all England when and how that style on title first vested in the Archbishop of Canterbury p. 18. Sect. 8. Priority in the Seat of a Church whether it may be prescribed p. 140. Sect. 7. Priviledges of the Clergy p. 193 c. Sect. 18. Priviledge in respect of Tithes what p. 436. Procuration what p. 67. Sect. 1. When and to whom payable ibid. Whether due without the Act of visiting p. 68. s 2. p. 69. Sect. 4. p. 75. s 10. p. 78. Sect. 11. Anciently paid in victualibus when and how changed into Money p. 68. Sect. 3. How the Canonists define it p. 69. Sect. 5. Onely one Procuration to be paid to the Ordinary how that is to be understood p 70. Sect. 6. Prohibition in what Cases it hath been granted p. 89. Sect. 16. p. 114. Sect. 12. p. 121. Sect. 17. p. 93. Sect. 20. p. 122. Sect. 22. p. ibid. Sect. 23 24. p. 126. Sect. 36 37 38 39. p. 128. Sect. 43. p. 138. Sect. 4. p. 140. Sect. 7. p. 144. Sect. 13. p. 113. Sect. 11. p. 121. Sect. 20. p. 148. Sect. 20. p. 151. Sect. 24. p. 149. Sect. 22. p. 151. Sect. 25. p. 152. Sect. 26 28. p. 153. Sect. 30 31. p. 127. Sect. 40. p. 119. Sect. 15. p. 163. Sect. 5. p. 114. Sect. 12. p. 149. Sect. 21. p. 188. Sect. 5. p. 142. Sect. 9. p. 152. Sect. 29. p. 153. Sect. 32. p. 155. Sect. 38. p. 157. Sect. 40. p. 374. Sect. 49. p. 377. Sect. 62. p. 379. Sect. 67. p. 387. 393. 409. 410. 407. 425. 429. 430. 436. p. 473. Sect. 7. p. 485. Sect. 15. p. 177. Sect. 8 9. p. 373. Sect. 47. p. 190. Sect. 9. p. 166. Sect. 12 13 14. p. 167. Sect. 19. p. 176. Sect. 8. p. 277. Sect. 12. p. 92. Sect. 19. p. 101. Sect. 3. p. 104. Sect. 6. p. 119. Sect. 17. p. 147. Sect. 18. p. 298. Sect. 9. p. 166. Sect. 15. p 198. Sect. 4. p 258. Sect. 10. p. 267. Sect. 34. p. 115. Sect. 12. p. 299. Sect. 11. p. 281. Sect. 22 23. p. 116. Sect. 12. p. 164. Sect. 9 11. p. 319. Sect. 7. p. 359. S. 14. p. 369. Sect. 40. p. 192. Sect. 15. p. 364. Sect. 30. p. 368. Sect. 37. p. 361. Sect. 20 21. p. 362. Sect. 22. p. 368. Sect. 38 39. p. 371. Sect. 43. p. 375. Sect. 53. p. 362. § 25. p. 365. § 31. p. 369. § 39. p. 378. § 64. p. 382. § 82. p. 520. § 12. p. 517. § 5. p. 505. § 12. p. 521. Sect. 14. p. 523. § 19. p. 524. § 21. In what Cases the Prohibition hath been denyed p. 83. Sect. 4. p. 115 116. Sect. 12. p. 119 121. Sect. 17 18. p. 122 123. § 25 26 27 28. p. 124. § 29. p. 125. § 31 32 33 34. p. 126. § 39. p. 127 128. § 42 43. p. 137. § 3. p. 144. § 11. p. 148. § 19. p. 153. § 30. p. 174. § 1. p. 152. § 27. p. 364. sect 29. p. 380. sect 74. p. 156. sect 39. p. 166. sect 16. p. 198. sect 5. p. 318. sect 5. p. 359. sect 15. p. 120. sect 17. p. 92. sect 19. p. 366. sect 33. p. 376. sect 57. p. 364. sect 29. p. 386. p. 389. p. 412. p. 413. p. 420. p. 429. p. 451. p. 456. p. 464. p. 520. sect 13. p 512. sect 18. p. 507. sect 12. p. 521. sect 15. p. 523. sect 17. p. 525. sect 24. p. 526. sect 24. p. 527. sect ult Whether a Prohibition may be granted after Sentence and in what Cases p. 192. sect 15. p. 381. sect 76. p. 116. sect 12. p. 120. sect 17. p. 124. sect 29. Whether a Prohibition may be after an Appeal p. 148. sect 21. A Prohibition whether grantable after a Consultation p. 147. sect 18. or de novo to an Appellant who had a Prohibition in the first instance p. 360. sect 19. p. 431. Prohibition granted against Costs of Suit given to an Informer p. 473. sect 7. Whether a Prohibition lies in case proof by one single Witness be disallowed in the Ecclesiastical Court p. 362. sect 22. p. 113. sect 11. p. 115. sect 12. p. 123. sect 26. p. 128. sect 43. Whether a Prohibition may be granted the last day of the Term p. 147. sect 18. Or to stay Proof in Perpetuam rei memoriam p. 374. Sect. 49. Proxies what p. 70. Sect. 5. p. 75. Sect. 11. The same with Procurations ibid. Whether extingnish'd by the dissolution of Religious Houses p. 76 c. Sect. 11. Not known to the Primitive Church ib. Whether grantable by a Bishop to the King § ibid. The Case of Proxies aptly compared to the Case of Tithes p. 79. Sect. 11. A Case of Remark at Common Law touching Proxies p. 75 c. Sect. 11. Q. QUare Impedit for and against whom that Writ lies p 645. Sect. 3. Of what things it lies p. 649. Sect. 20 21. Whether it lies for an Archdeaconry p. 66. Sect. 14. Quarta Episcopalis what p. 77. Sect. 11. Quaries whether Tithable p 436. Quean whether Action lies for calling one so p. 517. Sect. 5. p. 523. Sect. 18. p. 520. Sect. 12. Queen Elizabeth her Declaration touching her Supremacy p. 10. Sect. 11. Declared Supream Governess on Earth of the Church of England p. ibid. Sect. 14. Questmen what by whom Eligible and wherein their Office doth consist p. 163. Sect. 6. Quorum Nomina Process of that kind prohibited p. 60. Sect. 6. p. 82. Sect. 3. R. RAbbits whether Tithable p. 367. Sect. 36. Rakings of the stubble of Corn whether Tithable p. 384. p. 436 c. Rapeseed whether shall the Parson or the Vicar have the Tithes thereof p. 381. Sect. 77. Rate-Tithes in what Cases payable p. 391. p. 437. Rectors how distinguish'd from Vicars p. 186. Sect. 1. Refusal of a Clerk by a Bishop because he could not speak the Welch Language p. 276. Sect. 36. Once Refused for Insufficiency may not after be received p. 268. Sect. 39. Register to a Bishops Consistory the Office controverted where Cognizable p. 126. Sect. 35. Registry-Book of a Parish for Christnings and Burials the Original thereof p. 145. Sect. 14. p. 164. Sect. 10. Release by one Church-warden whether any Bar to the Suit of his Companion p. 144. Sect. 12. p. 165. Sect. 11. p. 161. Sect. 2. Release of a Next Avoidance made after the Church becomes void is void p. 286. Sect. 7. Religion Christian when and where first planted in this Kingdom p. 13. Sect. 1. Rents of what kind may be sued for in the Ecclesiastical Court p. 126. Sect. 34. Where the Tithe of Rents in London are suable for and how p. 379. Sect. 70. Reparations of Churches where
Cognizable p. 137. Sect. 3. 4 p. 143. Sect. 10. p. 152. Sect. 26. In what Case it may be Cognizable at the Common Law p. 166. 15. Whether within the Cognizance of the Archdeacons Visitation p. 60. Sect. 7. Who and what shall be charged with such Reparations and how p. 137 138. Sect. 4. p. 144. Sect. 11. p. 145. Sect. 14. p. 147 148. Sect. 19. p. 150. sect 23. p. 152. Sect. 26. p. 175. Sect. 4. p. 153. Sect. 30. p. 157. Sect. 41. p. 149. Sect. 22. How the Tax for such Reparations shall be apportioned between Landlord and Tenant p. 154. Sect. 34. By whom the Chancel shall be Repair'd p. 175. Sect. 4. Inheritances not to be therewith charged in perpetuum p. 144. Sect. 13. Whether a Tax for such Reparations may be made by the Church-wardens only p. 148. Sect. 20. How to be in Case of Union of Churches p. 146. Sect. 16. How in respect of the Fabrick of the Church in distinction from that of the Ornaments thereof p. 154. Sect. 34. Whether those of a Chappel of Ease shall contribute to the Repairs of the Mother-Church p. 146. Sect. 16. p. 152. Sect. 28. p. 153. Sect. 33. p. 156. Sect. 39. p. 152. Sect. 28. Whether the Land next adjoyning â—o a Church-yard shall Repair the Fences thereof p. 166. Sect. 15. Residence in what Cases not required p. 320. Sect. 9. Resignation what p. 284. Sect. 3. Resignation-Bonds whether good in Law p. 189. Sect. 7. What words sufficient in Law to import a Resignation p. 191. Sect. 13. To whom it may be made p ibid. How and to whom the Resignation of a Donative may be made p. 191. Sect. 14. Whether it may be made conditionally p. 278. sect 14. Whether the Church becomes void thereby before the Bishop accepts it p. 261. Sect. 17. Review or the Court of Review or Commission Ad Revidendum p. 118. Sect. 15. The Ground thereof p. 4. Sect. 5. Revocations in Law of the Kings Presentation p. 266. Sect. 31. Right of Advowson how and for whom that Writ lies p. 649. Sect. 22. Right of Tithes Cognizable in the Ecclesiastical Court p. 127. Sect. 42. Rogation-weck whence so called with the Original thereof p. 130. Sect. 44. Roots of Coppice-wood grubbed up whether Tithable p 437. S. SAcriledge what whence so called how many ways it may be committed and the severe punishments thereof p. 528 c. The Sacrilegious were not anciently allowed the Sanctuary p. 141. sect 8. Saffron what Tithes it pays p. 438. To whom whether as great Tithes to the Parson or as small Tithes to the Vicar p. ibid. p. 198. Sect. 8. p. 361. Sect. 21. p. 366. Sect. 32. Salary of a Chaplain Triable in the Ecclesiastical Court p. 198. Sect. 4. Salt whether Tithable p. 438. Simpson whether the first Archbishop of York by whom established p. 14. Sect. 2. Sanctuary the Law thereof anciently p. 141. Sect. 8. Heretofore the foundation of Abjuration ibid. Not allowed to Traitors nor Sacrilegious persons p. 142. Sect. 8. Saxon Kings their care for the Government of the Church of England p. 97. Sect. 1. Their zeal for erecting and endowing of Churches p. 208. Sect. 4. How severely they punish'd Adultery p. 470. Sect. 4. Scotland when the Bishops thereo revolted from the Archbishop of York p. 14. Sect. 2. Seals of Office of Bishops c. how to be engraven and used p. 27 28. § 5. Scutcheon or Banners taken out of the Church by the Parson whether and for whom Action lies in that Case p. 61. Sect. 2. Seats in Churches p. 137. Sect. 3. p. 138. Sect. 4. p. 142. Sect. 9. p. 154 155. Sect. 36. p. 147. Sect. 18. p. 149. Sect. 22. How and by whom to be disposed of p. 137. Sect. 3 4. p. 149. Sect. 21. p. 150. Sect. 22. p. 154. Sect. 36. p. 155 156. Sect. 38. They belong of Right to the Ordinary to dispose of p. 138. Sect. 5. p. 140. Sect. 7. p. 142. Sect. 9. p. 158. Sect. ult p. 157. Sect. 42. p. 151. Sect. 25. Whether the Ordinary hath any thing to do with Noble men's Seats in Churches p. 151. Sect. 25. p. 157. Sect. 42. Custome may as to the Body of the Church six the power of disposing the Seats in the Church-wardens p. 151. Sect. 25. The grant of such a Seat to a Man and his Heirs whether good in Law p. 138. Sect. 4. To whom the chiefest Seat in the Chancel properly belongs p. 141. Sect. 7. The Cognizance of Seats in Churches properly belongs to the Ecclesiastical Court p. 157. Sect. 42. Whether he who having Lands in the Parish but living out of the Parish be chargeable with the Repairs of the Seats of the Parish-Church p. 150. Sect. 23. Sees or Bishops Sees whence so called p. 347. Sect. 1. Sepulchres and Monuments in Churches or Church-yards how and where the defacing thereof is punishable p. 142. Sect. 9. Sheep the Law in reference to the Tithe thereof as also of their Pasture and their Wool p. 438 439. p. 464. p. 359 360. Sect. 16 17. Sidemen what their Office is p. 163. Sect. 6. Anciently called Synods-men or Testes Synodales p. ibid. Sect. 6. in the Margent Significavit what that Writ ought to contain p. 631. Sect. 10. p. 632. Sect. 12. p. 649. Sect. 19. p. 635. Sect. 21. Silva Caedua the Law in reference to the Tithes thereof p. 439 440. Simon the Monk of Walden supposed to be the first Canonist in England p. 132. Sect. 44. Simony whence so called a Description thereof p. 537. Sect. 1. How many ways it may be committed p. 539 540. Sect. 5. p. 541 542. Sect. 8. The penalty thereof p. 537. Sect. 1. A Barr in Law to the Parsons demand of Tithes p. 542. Sect. 10. p. 548. Sect. 17. p. 551. Sect. 26. p. p. 34. The difference in Law between Simoniacus and Simoniace promotus p. 538. Sect. 2. p. 552. Sect. 27. In what Case Simoniacal Contracts are Cognizable in the Ecclesiastical Court p. 120. Sect. 17. Slander where Cognizable p. 516. Sect. 4. Son whether he may succeed the Father in an Ecclesiastical Living p. 258. Sect. 10. p. 263. Sect. 20. Spoliation what and in what Case and for whom the Writ of Spoliation lies and where Cognizable p. 439. p. 650. Sect. 24. Striking in the Church or Church-yard how punish'd p. 139. Sect. 6. An Indictment for Striking in St. Pauls Church-yard p. 155. Sect. 37. Stork the History of that Jealous Bird and his revenge on his Adulterous Mate p. 475 476. § ult Stubble of Corn whether Tithable p. 394. Subscription to the 39 Articles what not good p. 163. § 8. Sufficiency or Insufficiency in an Ecclesiastical Officer where Cognizable p. 92. 93. § 19 20. Suffragan Bishops anciently invested by the Ring without the Staff p. 25. § 3. Their use and Office p. 30 31. § 11. Suggestion for a Prohibition in what Case it need not be proved within Six Months p. 374. §
51. Summoner what a description of his Office p. 86 87. § 12. What the Canon enjoyns concerning such ibid. What the ancient Canon is touching Summoners p. 88. § 13. A Case at Common Law against a Summoner p. ibid. Sect. 14. Superstitious Pictures in Church-windows whether they may be pulled down without Licence of the Ordinary p. 138. Sect. 5. Supremacy or the Kings Supremacy a description thereof p. 1. Sect. 1. Established by Statute Laws p. 2 3. Sect. 2. p. 7. Sect. 10. The Oath of Supremacy the original and occasion thereof p. 3 4. Sect. 3. The Impugners therof censured with Excommunication ipso facto p. 4. Sect. 6. Asserted by King Ed. 6. p. 7 8. Sect. 13. Also by Queen Eliz. p. 8. Sect. 14. Synods the several sorts and kinds thereof p. 584. Sect. 1. Vnder what Archbishops of Canterbury they have been anciently held here in England p. 590 591. Sect. 7. Synodale what when and to whom payable p. 67. Sect. 1. Whether it be due without the Act of Visiting p. 68. Sect. 2. p. 69. Sect. 4. Originally paid in Victualibus p. 68. Sect. 3. When and how changed into Money ibid. The divers significations of the word Synodale p. 71. Sect. 8. vid. Procurations Synodies or Synodal what the Ordinary's Right therein p. 34. Sect. 17. p. 73. Sect. 9. T. TARES cut green to feed Cattel whether Tithable p. 440. Tartarians their great Chastity they held Adultery Capital p. 471. Sect. 6. Tax for Church-Reparations by whom to be made p. 148. Sect. 20. p. 162. Sect. 4. Templars discharged of Tithes p. 402. Temporalties or Barony of a Bishop how obtained p. 27. Sect. 4. p. 28. Tenant in Common in what case the same person may be said to be Tenant in Common with himself p. 193. Sect. 16. Testis singularis whether sufficient proof for payment of Tithes p. 362. Sect. 22. vid. p. 378. Sect. 63. p. 430. Theanus Archbishop of London in the time of K. Lucius p. 17. Sect. 7. He was forced by the Infidel Hengist to fly into Cornwal and Wales p. ibid. Sect. 5. Theruma what it was p. 351. Sect. 4. Timber-Trees what shall be reputed such as not Tithable p. 441 442. If wasted on a Bishoprick it is Dilapidation p. 176 177. Sect. 8 9. Tithes What by and to whom payable when how of what things the manner of Right Tithing what the Setting forth thereof is according to the Statute and where cognizable p. 347. c. The several kinds of Tithes p. 349. Sect. 1. p. 351. Sect. 4. whence the word Tithes derived p. 347. Sect. 1. By whom the Church of England was therewith first endowed ibid. They are now at Common Law Temporal Inheritances p. 353. Sect. 6 7. Whether they may be leased or released without Deed p. 358. Sect. 11. p. 363. Sect. 27. Composition thereof for life whether good without Deed p. 372. Sect. 45. Whether so if but for one year or more p. 377. Sect. 61. p. 382. s 81. The Right of Tithes in contest between Parson and Vicar is properly cognizable in the Ecclesiastical Court p. 127. s 42. p. 369. Sect. 41. p. 380. Sect. 73. What Tithes are properly due to the Vicar p. 199. Sect. 8. Tithes not set forth Actions thereon p. 376. Sect. 55. p. 378. Sect. 65. Tithes to two by halves whether the Parishioner must so set them out p. 362. Sect. 24. Tithes are of Ecclesiastical Cognizance p. 357. Sect. 9. Objections against Tithes answered p. 350 and 351. Sect. 3. Whether Tithes are grantable by Copy p. 431. Tobacco what Tithes that pays p. 366. Sect. 32. Tombes and Sepulchres defaced where punishable p. 142. Sect. 9. Trades whether gain gotten thereby be Tithable and how p. 442. Transaction how it differs from Composition p. ibid. Translation of Bishops needs no new Consecration p. 49. Sect. 8. p. 27. Sect. 4. p. 29. Sect. 7. Trebel Dammages where and in what Case suable p. 442. Trees what Tithable or not p. 442 c. p. 377. Sect. 62. To whom the Trees growing in the Church-yard do belong p. 150. Sect. 22. If cut down to whom the Action belongs p. 137. Sect. 3. p. 153. Sect. 32. Turkeys whether Tithable p. 444. Turves whether Tithable ibid. Tyle-Stones and Brick Tyle whether Tithable p. ibid. V. VALUE of a Benefice in Case of Plurality whether to be computed according to the Kings Books or the very Annual Value thereof p. 295. Sect. 5. p. 299. Sect. 12. p. 303. Sect. 21. Venison whether Tithable p. 361. Sect. 21. p. 454. Vestry whence that word is derived p. 162. Sect. 5. Vetches whether Tithable or not p. 454. Vicar what the original thereof p. 186. Sect. 1. Where and in what Case he may sue for an encrease of Maintenance p. 199. Sect. 10 11. Vicarage how created p. 198. Sect. 6. How it differs from a Parsonage p. 197. Sect. 2. In whom the Freehold of the Glebe there-of is ibid Whether a Vicarage endowed may be appropriated and to who p. 197. Sect. 3. Who properly is Patron thereof whether the Parson or the Parsons Patron p. 199. Sect. 9. Whether a Vicarage Perpetual may be dissolved p. 202. Sect. 17. In what sense a Vicarage may be compared to a Commendam p. 203. Sect. 18. In what case a Vicarage may determine p. 199. Sect. 11. What amounts to an Vnion of the Parsonage and Vicarage p. 199. Sect. 11. Vicario deliberando occasione cujusdam Recognitionis what that Writ imports p. 648. Sect. 15. Vi Laica removenda in what case that Writ lies p. 646. Sect. 5. Vine-Trees or Vines what Tithes they yield p. 454. Violent hands laid on one in the Church or Church-yard what the penalty thereof p. 139 140. Sect. 6. p. 155. Sect. 37. p. 89 90. Sect. 16. Visitation the power of the Ordinary therein p. 34. Sect. 18. p. 89 90. Sect. 16. Whether an Archdeacon hath power of Visitation of Common Right p. 63. Sect. 7. What number of Attendants allowed by Law to Visitors p. 71. Sect. 7. Underwoods whether Tithable or not p. 455 456. Union of Churches what and by whom to be made p. 169. Sect. 1. What amounts to an Union of a Parsonage and Vicarage p. 199. Sect. 11. Unity of Possession the Law thereof in reference to Tithes also the properties thereof p. 383 454. Vodinus Archbishop of London slain by the Tyrant Vortiger p. 16. Sect. 5. Vortiger the Tyrant burnt in a Castle besieged by Aurelius Ambrose p. 16. Sect. 5. He surrendred Kent Suffolk and Norfolk to the Infidel Hengist p. ibid. Usurpation of the Pope how and when it originally began here in England and the progress thereof after the Conquest p. 97 98. Sect. 1. p. 111. Sect. 8. p. 130 c. Sect. 44. Usurper who properly is such p. 205. Sect. 1. Whether he may gain possession of an Advowson from the Crown p. 215. Sect. 18. p. 218. Sect. 22. vid. p. 219. Sect. 24. In what case an Usurpation puts the very Patron out of
possession p. 272. Sect. 5. Three Writs at Common Law against an Usurper and what they are p. 205. Sect. 1. W WAges of Servants whether Tithable p. 457. Wall of the Church-yard by whom to be repaired p. 144. Sect. 11. Wales when first subject to the Archbishoprick of Canterbury p. 17. Sect. 6. Waste Pastures in what case Tithable or not p. 457. Wax or Bees-Wax how to be Tithed p. 457. Way obstructed for carrying of Tithes Cognizable in the Ecclesiastical Jurisdiction p. 382. Sect. 82. vid. p. 394. Weapons drawn in the Church or Church-yard how punished p. 139. Sect. 6. Indictments thereon discharged and why p. 149. Sect. 22. p. 155. sect 37. Weild or Woad for Diers to whom the Tithe of that Dying Plant belongs whether as Great Tithe to the Parson or as Small Tithe to the Vicar p. 366. sect 32. p. 381. s 77. p. 457 458. Westminster-Abbey by whom Founded p. 328. sect 5. When the Revenues thereof were first vested in a Dean and Chapter of the Collegiate Church thereof p. 15. s 3. How it became Originally the place of Consecration and Coronation of the Kings of England p. 6. Sect. 8. Whitson-Farthings what and when paid p. 73. Sect. 10. Whore whether Actionable and where to call one so p. 519. Sect. 9. Willows whether Tithable p. 457. Witness one single Witness disallowed in the Ecclesiastical Court for sufficient proof whether Prohibition lies in that case p. 113 114. Sect. 11. p. 115. Sect. 12. p. 116. Sect. 12. p. 123. Sect. 26. p. 128. Sect. 43. Witch or the Son of a Witch whether those words are Actionable p. 524. Sect. 24. Wolsey Cardinal impower'd by the Popes Bull to retain the Archbishoprick of York and the Abbey of St. Albans in Commendam p. 111. Sect. 8. Wolstan Bishop of Worcester his Resolute Answer to King William the Conquerour p. 97. Sect. 1. Wood the Law in reference to the Tithe thereof p. 458 to 462. Computed among the Predial and Great Tithes by whom payable whether by the Buyer or the Seller whether due for Fuel spent in the Parishioners house p. ibid. In what sense it may be either Great or Small Tithes p. 365 366. Sect. 32. Whether Wood Tithable at the Common Law p. 372. Sect. 46. Wood for Hedging and Firing whether Tithable p. 369 370. Sect. 42. In what case the Vicar may have the Tithe thereof p. 381. sect 79. Wool the Law in reference to the Tithes thereof p. 198. sect 3. p. 359. sect 16. p. 366. sect 32. Of Sheep pastured in divers Parishes p. 462 c. Of Rotten Sheep whether Tithable p. 359. sect 15. Worcester-Church anciently a Priory p. 74. sect 10. Words of Contention in the Church or Church-yard how punished p. 139. sect 6. Writ of Right of Advowson for whom it lies p. 214 215. sect 17. The Writ De Haeretico Comburendo when taken away and abolished p. ult sect ult Y YOrk the Original of that Metropolitan See p. 14. sect 2. It anciently had a Metropolitan Jurisdiction over all the Bishops in Scotland p. 18. sect 9. ERRATA PAg. 25. lin 25. read Potestatem p. 35. l. 2. Archidiaconum p. 200. l. 37. Provenues p. 203. l. 7. Vicaria p. 205. l. 5. be with the Cure p. 209. l. 3. An. 1505 p. 285. l. 17. to his Father by the true p. 293. l. 31. too late p. 403. l. 38. Mepham's Canon p. 448. l. 23. to the Parson p. 470. l. ult Adulterum p. 471. l. 7. Hoel Dha p. 439. l. 15. Cognatio p. 497. l. 11. Adulterous Wife p. 501. l. 7. Thore p. 503. l. 6. Viro p. 530. l. 40. Crown p. 543. l. 18. Pardon l. 40. Doctors Advertisement THE ORPHANS LEGACY or a Testamentary Abridgment in Three parts viz. 1. Of Last Wills and Testaments 2. Of Executors and Administrators 3. Of Legacies and Devises Where the most material Points of Law relating to that subject are succinctly Treated as well according to the Common and Temporal as Ecclesiastical and Civil Laws of this Realm Illustrated with a great variety of select Cases in the Law of both Professions as well delightful in the Theory as useful for the practice of all such as study the one or are either active or passive in the other By the Author