of King Kanute made for the indemnity of such as should have recourse to Tribunals for their safe coming and going to and from Courts of Justice Et volo ut omnis homo pacem habeat eundo ad gemotum vel rediens de gemoto id est placito nifi fit fur probatus It is a word from the Saxon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 convenire unde Nostratium to meet But this digression the Reader must put on the Abbots score in regard the word Abbates gave the occasion thereof which may be but a Venial offence in regard that that Ecclesiastical Dignity is with us laid aside though their Possessions had better Fortune yet when King H. 8. did dissolve them he did not only augment the number of Colledges out of the Revenues thereof but also erected divers new Bishopricks as at Westminster Oxford Peterborough Bristol Chester and Glocester all remaining at this day save that at Westminster which being restored to its pristine Institution by Queen Mary and Benedictines placed therein was after by Queen Elizabeth converted to a Collegiate Church In this Chapter there is mention also made of Chauntries Cantaria or if you please Aedes Sacra ideo Instituta Dotata Praediis ut missa ibidem Cantaretur pro anima Fundatoris propinquorum ejus Ita Spelm. Of these and Free Chappels about 2374. were dissolved by King H. 8. to whom they were given by Parliament in the 38th year of his Reign The Religious Houses under 200 l. per An. were granted to him in An. 1535. All greater Monasteries in An. 1538. The Chantery and Free Chappels in An. 1545. Of these Chanteries Forty seven belonged unto St. Pauls London And as for Annates or First-Fruits it is Historically reported to us that they were first introduced into England in the time of King Edward the First by Pope Clement who succeeded Benedict For this Pope Clement after the death of Pope Benedict was no sooner Elected and Enthron'd in France but he began to exercise his new Rapines here in England by a compliance with the said King Edward in granting him a Two years Disme from his Clergy for his own use though pretended for the aid of the Holy Laud that with the more ease himself might exact the First Frutts of vacant Ecclesiastical Benefices to augment his own Revenues though not within his own Territories This is said to be the first President of any Popes reserving or exacting Annates or First-Fruits of all Ecclesiastical Dignities and Benefices throughout England extant in our Histories which though reserved but for Two years by the Pope at first yet afterwards grew into a Custome by degrees both in England and elsewhere And thus they remained in the Pope until an Act of Parliament entituled the Crown thereunto in the time of King Henry the Eighth which afterwards were restored again to the Pope by Queen Mary but in the first year of Queen Elizabeth an Act pass'd for restoring the Tenths and First-Fruits to the Crown Notwithstanding what some Historians have as aforesaid reported touching the first introduction of First-Fruits into England by Pope Clement in the time of King Edward the First it is most evident that they were to be yielded and paid here in England some hundreds of years before that time as appears by the Laws of Ina King of the West Saxons who began his Reign in the year 712. The Law was this viz. Primitias seminum quisque ex eo dato domicilio in quo ipso Natali die Domini commoratur Lambert de Leg. Inae Reg. And by the Laws of King Edgar who began his Reign in the year 959. it is Ordained in these words Ex omni quidem ingeniorum terra ipsae Seminum Primitiae primariae penduntor Ecclesiae Idem de Leg. Edgari Reg. Ipsas autem Seminum Primitias sub Festum Divi Martini reddito Ibid. The like you have in the Laws of King Kanute who began his Reign in the year 1016. Seminum Primitiae ad Festum Divi Martini penduntor si quis dare distulerit eas Episcopo undecies praestato ac Regi Ducenos viginti Solidos persolvito Idem Lamb. It is supposed that Boniface Archbishop of Canterbury in the Reign of Ed. 3. was the first that made way for Popes to Appropriate Annates and First-Fruits in this Kingdom to themselves for the said Archbishop An. 1246. upon a feigned pretence that his Church of Canterbury was involved in very great Debts by his Predecessor but in truth by himself to carry on Forein Wars and gratifie the Pope procured from Pope Innocent a grant of the First years Fruits of all Benefices that should fall void within his Diocess for the space of Seven years till he should thence raise the Sum of Ten thousand Marks yearly out of the Bishoprick So that this Grant of First Fruits of Benefices to Boniface the said Archbishop made way for Popes Appropriating First-Fruits and Annates to themselves soon after But in process of time the Parliament having as aforesaid settled them on King H. 8. there was an Office thereof established in London An. 1538. whereby the Kings Revenue increased exceedingly from this Office for the receipt of Tenths and First-Fruits which was then first erected in London such Moneys being formerly paid to the Pope for that the Tenths and First-Fruits of the English Clergy were yearly return'd to Rome But now the Pope being dead in England the King was found his Heir at Common Law as to most of the Power and Profit he had usurped and the Rents which the Clergy paid were now changed together with their Landlord for Commissioners whereof the Bishop of the Diocess was ever one were appointed to estimate their Annual Revenues that so their Tenths and First-Fruits might be proportioned accordingly At this time the Oblations from the Living and Obits from the Dead were as duly paid as Predial Tithes and much advanced the Income but Queen Mary did after by Act of Parliament exonerate the Clergy from all these First-Fruits and ordered the payment of the Tenths to Cardinal Poole for discharge of Pensions allowed to certain Monks and Nuns but Queen Elizabeth in the first year of her Reign resumed these First-Fruits and Tenths only Personages not exceeding ten Marks and Vicarages ten Pounds were freed from First-Fruits vid. Stat. 1 Eliz. cap. 4. That which in the method of the ensuing Treatise next offers it self to consideration is Altarage Altaragium taking its denomination from the Altar because to speak properly Altargium est Emolumentum Sacerdoti provenieus ratione Altaris ex Oblationibus sc vid. Jo. de Athon in Constit. Legatim Otho c. Auditu ver Proventus Touching this Altarage there is an Ancient Record in the time of King H. 3. about the year 1234. in the Chronicle of William Thorne the Augustine Monk of Canterbury whereof among other things there is mention made in a certain Composition between Edmond Archbishop
been only a reviver of an Ancient power which had been formerly invested in his Predecessors and in all other Christian Princes If we consult the Records of elder Times it will readily appear not only that the Roman Emperours of the House of France did Nominate the Popes themselves but that after they had lost that power they retained the Nomination of the Bishops in their own Dominions The like done also by the German Emperours by the Kings of England and by the Ancient Kings of Spain The Investure being then performed per Annulum Baculum that is by delivering of a Ring together with a Crosier or Pastoral Staff to the party nominated 22. By Ancient Right the Bishops of London are accounted Deans of the Episcopal Colledge and being such are by their place to signifie the pleasure of their Metropolitan to all the Bishops of the Province to execute his Mandates and disperse his Missives on all emergency of Affairs As also to preside in Convocations or Provincial Synods during the vacancy of the See or in the necessary absence of the Metropolitan 23. In O Brian and Knivan's Case the Case was That King Ed. 6. under his Privy Seal signified to Sir J. C. and to the Lord Chancellor and others in Ireland That he elected and appointed J. B. to be Bishop of Ossory Requiring them to Instal him in the Bishoprick The Deputy being removed the Chancellor and the other made a Commission under the Great Seal of Ireland to the Bishop of Dublin to Consecrate him which was done accordingly and he did his Fealty and recovered the Temporalties out of the Kings hands Afterwards in the life of J. B. Queen Mary elected J. T. to be Bishop there who was likewis◠Consecrated and who made a Lease of divers Lands of the Bishoprick for 101 years which was confirmed by the Dean and Chapter J. B. died and after J. T. died J. W. was elected Bishop The Questions in the Case were 1. Whether J. B. was well created Bishop 2. Whether this Lease made by J. T. being Bishop de facto but not de jure in the life of J. B. he surviving J. B. should be good to bind the Successor Resolved The Commission was well executed although the Deputy Sir J. C. were removed 2. Resolved That before the Statute of 2 Eliz. the King might by Patent without a Writ of Congé d'eslire create a Bishop for that was but a Form or Ceremony 3. Resolved That although J. T. was Bishop de facto in the life of J. B. that the Lease made by him for 101 years was void though it was confirmed by the Dean and Chapter and should not bind the Successor But all Judicial Acts made by him as Admissions Institutions c. should be good but not such voluntary Acts as tended to the depauperation of the Successor A Bishop made a Lease for three Lives not warranted by the Statute of 1 Eliz. rendring Rent the Successor accepted the Rent It was Resolved It should bind him during his time so as he shall not avoid the Lease which otherwise was voidable CHAP. IV. Of the Guardian of the Spiritualties 1. What the Office of such a Guardian is and by whom Constituted 2. The power of such Guardians in vacancy of Archbishopricks 3. What Remedy in case they refuse to grant such Licenses or Dispensations as are legally grantable 4. Who is Guardian of the Spiritualties of Common Right 5. What things a Guardian of the Spiritualties may do 1. GVardian of the Spiritualties Custos Spiritualium vel Spiritualitatis is he to whom the Spiritual Jurisdiction of any Diocess during the vacancy of the See is committed Dr. Cowell conceives that the Guardian of the Spiritualties may be either Guardian in Law or Jure Magistratus as the Archbishop is of any Diocess within his Province or Guardian by Delegation as he whom the Archbishop or Vicar General doth for the time depute Guardian of c. by the Canon Law pertains to the Appointment of the Dean and Chapter c. ad abolend Extr. Nè sede vacante aliquid innovetur But with us in England to the Archbishop of the Province by Prescription Howbeit according to Mr. Gwin in the Preface to his Readings divers Deans and Chapters do challenge this by Ancient Charters from the Kings of this Realm Cowell verb. Custos This Ecclesiastical Office is specially in request and indeed necessarily in the time of the Vacancy of the Episcopal See or when the Bishop is in remotis agendis about the publick Affairs of the King or State at which time Presentations must be made to the Guardian of the Spiritualties which commonly is the Dean and Chapter or unto the Vicar General who supplies the place and room of the Bishop And therefore if a man Recover and have Judgment for him in a Quare Impedit and afterwards the Bishop who is the Ordinary dieth In this case the Writ to admit the Clerk to the Benefice must be directed to the Guardian of the Spiritualties Sede vacante to give him Admission But if before his Admission another be created Bishop of that See and Consecrated Bishop in that case the power of the Guardian of the Spiritualties doth cease and the party may have a new Writ to the new Bishop to admit his Clerk A Guardian of the Spiritualties may admit a Clerk but he cannot confirm a Lease 2. The Guardian of the Spiritualties takes place as well in the vacancy of Archbishopricks as Bishopricks and hath power of granting Licenses Dispensations and the like during such Vacancies by the Statute of 25 H. 8. whereby it is provided and enacted That if it happen the See of the Archbishop of Canterbury to be void that then all such Licenses Dispensations Faculties Instruments Rescripts and other Writings which may be granted by virtue of the said Act shall during such vacation of the said See be had done and granted under the Name and Seal of the Guardian of the Spiritualties of the said Archbishoprick according to the tenor and form of the said Act and shall be of like force value and effect as if they had been granted under the Name and Seal of the Archbishop for the time being Where it is also further enacted 3. That if the said Guardian of the Spiritualties shall refuse to grant such Licenses Dispensations Faculties c. to any person that ought upon a good just and reasonable cause to have the same then and in such case the Lord Chancellor of England or the Lord Keeper of the Great Seal upon any complaint thereof made may direct the Kings Writ to the said Guardian of the Spiritualties during such Vacancy as aforesaid refusing to grant such Licenses c. enjoyning him by the said Writ under a certain penalty therein limited at the discretion of the said Lord Chancellor or Lord Keeper that he shall in due form grant such License Dispensation Faculty
for the avoiding of Leases made by a Parson by his Absence from his Living by the space of eighty daies in one year and also shews that one Stallowe who was Parson of Sharrington to whom these Tithes did belong and in whose Right the Defendant claimed them was Absent from his Parsonage by the space of eighty daies in one year and shews in what year and so by this his interest determined and Agreement with the Plaintiff by this made void but they found further as the Plaintiff made it to appear That Stallowe the Parson of Sharrington was not Absent in manner as it was alledged for that they found that he did dwell in another Town adjoyning but that he came constantly to his Parish-Church and there read Divine Service and so went away again They did also find hat he had a Parsonage-house in Sharrington fit for his habitation and whether this were an Absence within the Statute as to avoid his Lease they left that to the Judgment of the Court Yelverton Justice This is a good Non-Residency within the Statute of 21 H. 8. cap. 13. but not an Absence to avoid a Lease made within the Statute of 13 Eliz. cap. 20. It cannot be said here in this Case that he was Absent for he came four daies in every week and in his Parish-Church did read Divine Service Williams Justice upon the Statute of 13 and 14 Eliz the Parson ought not to be Absent from his Church eighty daies together in one year à Rectoria sua but this is not so here for he came to his Church and read Divine Service there every Sunday Wednesday Friday and Saturday and therefore clearly this cannot be such an Absence within the scope and intention of these Statutes as thereby to avoid his Lease Yelverton Justice he ought to be Absent eighty daies together per spatium de Octogin diebus ultra and this to be altogether at one time and so the same ought to have been laid expresly the which is not so done here for that it appears here that he was at his Parsonage-house and did read Prayers every Sunday Wednesday Friday and Saturday and so the whole Court were clear of Opinion that this Absence here as the same appeared to be was not such an Absence by the space of eighty daies in one year to avoid his Lease within the said Statute and so the Defendants Plea in Barr not good and therefore by the Rule of the Court Judgment was entered for the Plaintiff 17. An Information was Exhibited against Two Parsons by J. S. upon the Statute of 21 H. 8. cap. 13. against one of them for Non-Residency and against the other for taking of a Farm the one of them pleaded Sickness and that by the Advice of his Physicians he removed into better Air for Recovery of his health and this is justifiable by the whole Court vid. more for this Coke 6. par fo 21. in Butler and Goodall's Case The other pleaded That he took the Farm for the maintenance of his House and Family And this also is justifiable by the Opinion of the whole Court Crooke moved the Court for the Defendants That the Plaintiff was a Common Informer and that he did prefer this Information against them only for their vexation and so to draw them to compound with him as formerly he hath so done by others for which they prosecuted an Indictment in the Countrey upon the Statute of 18 Eliz. cap. 5. made to punish Common Informers for their Abuses The whole Court did advise them to prosecute this Indictment against him Crooke moved for the Defendants That in regard the Informer is a man of no means that the Court would order him to put in sufficient Sureties to answer Costs if the matter went against him and that then the Defendants would presently answer the Information Williams Justice nullam habemus talem legem this is not to be done but the Rule of the Court was That the Defendants should not answer the Information until the Informer appeared in person 18. In an Action of Covenant the Plaintiff in his Declaration sets forth that the Defendant was Parson of D. and did Covenant That the Plaintiff should have his Tithes of certain Lands for thirteen years and that afterwards he Resigned and another Parson Inducted by which means he was ousted of his Tithes and for this cause the Action brought The Defendant pleads in Barr the Statutes of 13 Eliz. cap. 20. and 14 Eliz. cap. 11. for Non-Residency upon which Plea the Plaintiff demurr'd in Law It was urged for the Plaintiff That the Plea in Barr was not good because it is not averred that the Defendant had been Absent from his Parsonage by the space of Eighty daies in a year for otherwise the Covenant is not void by the Statutes For the Defendant it was alledged That the pleading of the Statute of 13 Eliz. is idle but by the Statute of 14 Eliz. this Covenant is made void for by the Statute all Covenants shall be all one with Leases made by such Parsons And in this case if this had been a Lease this had been clearly void by Surrender of the Parson and so in case of a Covenant Doderidge and Houghton Justices The Statutes of 13 and 14 Eliz. do not meddle with Assurances at the Common Law nor intended to make any Leases void which were void at the Common Law and therefore this Covenant here is not made void by the Statute unless he be Absent Eighty daies from his Parsonage Coke Chief Justice agreed with them herein They all agreed in this Case for the Plaintiff and that by the Preamble of 14 Eliz. it is shewed the intent of the Statute to be to make Covenants void within the Provision of 13 Eliz. by Absence for Eighty daies And Judgment in this Case was given for the Plaintiff CHAP. XXIX Of Abbots and Abbies also of Chauntries and of the Court of Augmentations 1. Abbot what why so called the several kinds thereof and how many anciently in England 2. A famous Abbot anciently in Ireland The manner of their Election prescribed by the Emperour Justinian Anciently the Peers of France were frequently Abbots 3. The ancient Law of King Knute concerning Abbots 4. The Abbot with the Monks making a Covent were a Corporation 5. Abbots were either Elective or Presentative they were Lords of Parliament How many Abbies in England and which the most Ancient Founded by King Ethelbert 6. Chaunter and Chauntries what and whence so called their use and end 47 belonging anciently to St. Pauls in London when and by what Laws their Revenues were vested in the Crown 7. Before King John's time Abbots and Priors were Presentative afterwards Elective 8. Six Differences taken and Resolved in a Case at Law touching Chauntries 9. Certain Cases in Law touching Lands whether under pretence of Chauntries given by the Statute to the King or not 10. What the Court of Augmentations was the end
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
c. according to the request of the Procurers of the same or signifie into Chancery by a day certain for what cause he refused to grant the same where if upon such Certificate it shall appear that the cause of such Refusal was reasonable just and good that then it shall be admitted and allowed otherwise there may issue thence by virtue of the said Statute a Writ of Injunction commanding the said Guardian of the Spiritualties so refusing as aforesaid to make sufficient grant of such License Dispensation c. by a certain day and if after the receipt of such Writ the Guardian of the Spiritualties shall yet refuse to grant the same and shew no just or reasonable cause for so doing that then and in such case the said Guardian of the Spiritualties shall incur such penalty to his Majesty as shall be limited and expressed in the said Writ of Injunction And moreover in such case a Commission under the Great Seal may issue to Two Spiritual Prelates or persons to be nominated by his Majesty Authorizing them to grant such Licenses Faculties and Dispensations as were so refused to be granted by the Guardian of the Spiritualties as aforesaid And what in this case is here enjoyn'd to the Guardian of the Spiritualties during the vacancy of the Archbishoprick is likewise expresly by the said Statute to the Archbishop himself in time of Plenarty or Non-vacancy of the See 4. Of the Metropolitan the Dean and Chapter is of Common right the Guardian of the Spiritualties Of Inferiour Bishopricks in times of Vacation the Dean and Chapter of the See is of Common right the Guardian of the Spiritualties and not the Metropolitan Yet 5 E. 2. Quare impedit 165. Admit that during the vacancy of the Bishoprick of Durham the Archbishop of York is Guardian of the Spiritualties And 23 E. 1. Rot. Claus Memb. 4. the Prior of Christ-Church in Canterbury was Guardian of the Spiritualties in time of vacation of the Archbishoprick Of which Archbishoprick the Dean and Chapter is Guardian of the Spiritualties in the time of vacancy Also of the Archbishoprick of York the Dean and Chapter is Guardian of the Spiritualties in the vacancy thereof and not the Archbishop of Canterbury for that it is a distinct Province not subordinate to c. contra 31 H. 6. 10. Admit for there a Parson of the Province of York had aid of the Metropolitan Guardian of the Spiritualties of the Archbishoprick of York in time of vacancy of that Archbishoprick In the Case of Grange against Denny it was said by Coke That of common Right by the Common Law the Dean and Chapter Sede vacante of the Bishop is Guardian of the Spiritualties as appears by Pasch 17 E. 3. fo 23. but that now the Archbishops have used to have this by way of Composition And in the same Case it was said by Doderidge That every Archbishop hath a Diocess and a Province and of his Diocess he is a Bishop and of his Province he is Archbishop and within his Province he is to be Visitor of all the Churches within his Province and Sede vacante of any Bishop within his Province he himself is Guardian of the Spiritualties of all the Bishopricks within his Province but Sede vacante of his own Diocess the Dean and Chapter of this is Guardian of the Spiritualties and that no mention is made in the Books of the Common Law of any such Composition aforesaid but that the Guardian of the Spiritualties is to be according to the difference before put between a Province and a Diocess 5. The Learned Serjeant Roll in his Abridgment doth acquaint us out of the Ancient Books That a Guardian of the Spiritualties may Admit and Institute a Clerk presented to him That the King did present to the Guardian of the Spiritualties of the Archbishoprick of Dublin Sede vacante for a Church in Ireland That the Guardian of the Spiritualties may try Bastardy That Letters were directed to all the Bishops and in the Vacancy to the Guardian of the Spiritualties to make Prayers for the King in his Journey in France And that the Prior of Christ-Church in Canterbury Guardian of the Spiritualties during the Vacancy of that Archbishoprick had a Felon delivered to him But in the time of the Vacancy of the Bishop the Archbishop is Guardian of the Spiritualties and not the Dean and Chapter CHAP. V. Of Congé d'Eslire Election and Confirmation 1. What Congé d'Eslire signifies the Original thereof 2. To whom it is directed and the manner of Proceedings thereupon and of Election 3. Confirmation of Bishops the form or manner thereof 4. Confirmation in a Temporal not Spiritual sense what 5. The Confirmation of Bishops Elect beyond Sea far different from this in England 6. The Law and Practice in France touching the making of Bishops 1. COngé d'Eslire in French Leave to Chuse is the Kings permission to a Dean and Chapter to chuse a Bishop in the time of Vacancy And time was when this Venia Eligendi was also the permission Royal to an Abby or Priory of his own Foundation to chuse their Abbot or Prior But we now understand it under no other signification than as his Majesties leave vouchsafed to a Dean and Chapter to elect a certain person to succeed as Bishop of that Diocess whose Episcopal See is vacant For the better interpretation of this Congé d'Eslire the Modern Pens refer themselves to Mr. Guin in the Preface to his Readings where he saith The the King of England as Sovereign Patron of all Archbishopricks Bishopricks and other Ecclesiastical Benefices had of Ancient time free Appointment of all Ecclesiastical Dignities whensoever they hapned to be void Investing them first Per Baculum Annulum and afterwards by his Letters Patents And that in process of time he made the Election over to others under certain Forms and Conditions viz. That they should at every Vacation before they chuse desire of the King Congé d'Eslire that is Leave or License to proceed to Election and then after the Election to crave the Royal Assent c. He affirmeth also by good proof out of the Books of the Common Law that King John was the first that granted this and that afterwards it was confirmed by Westminster 1. cap. 1. which Statute was made An. 3. Ed. 1. And again by the Statute Articuli Cleri cap. 2. which was Ordained An. 25. Ed. 3. Stat. 3. it is generally agreed That the Kings of this Realm were originally the Founders of all Archbishopricks and Bishopricks within this Kingdom being at first Donative per traditionem Baculi Pastoralis Annuli But afterwards King John by his Chapter 15 Jan. in the seventh year of his Reign De Communi consensu Baronum granted that they should ever after be eligible And from that time came in the Congé d'Eslire Vid. Co. 5. par 14. in Candry's Case vid. Stat.
Bishop of Rome had assumed or tooken upon him to be the Spiritual Prince or Monarch of all the World he attempted also to give Laws to all Nations as one real Mark or Signal of his Monarchy but they well knowing Quod ubi non est condendi authoritas ibi non est parendi necessitas did not impose their Laws at first peremptorily on all Nations without distinction but offered them timide precario And therefore he caused certain Rules in the first place to be collected for the Government of the Clergy only which he called Decreta and not Leges vel Statuta These Decrees were published in An. 1150. which was during the Reign of King Stephen And therefore what the Lord Coke observes in the Preface to the Eighth part of his Reports Quod Rogerus Bacon frater ille perquam Eruditus in Libro De impedimentis Sapientiae dicit Rex quidem Stephanus allatis Legibus Italiae in Angliam Publico Edicto prohibuit ne in aliquo detinerentur may probably be conjectured to be meant and intended of those Decrees which were then newly compiled and published Yet these Decrees being received and observed by the Clergy of the Western Churches only for the Eastern Church never received any of these Rules or Canons Kelw. Rep. 7 H. 8. fo 184 the Bishop of Rome attempted also to draw the Laity by degrees into obedience to these Ordinances and to that purpose in the first place he propounds certain Rules or Ordinances for Abstinence or days of Fasting to be observed as well by the Laity as the Clergy which were upon the first Institution thereof called by the mild and gentle name of Regationes as Marsilius Pat. lib. Defensor Pacis par 2. cap. 23. hath observed and thence it seems the Week of Abstinence a little before the Feast of Pentecost was called the Rogation-week that time of Abstinence being appointed at the beginning by that Ordinance which was called Rogatio and not Praeceptum vel Statutum Now when the Laity out of their devotion had received and obeyed these Ordinances of Abstinence then the Bishop of Rome proceeds further De una praesumptione ad aliam transivit Romanus Pontifex as Marsil Pat. there says and made many Rescripts and Orders per Nomen Decretalium which were published in the year 1230. which was in the Fourteenth year of King H. 3. or thereabout Vid. Matth. Par. Hist mag 403. and these were made to bind all the Laity and Sovereign Princes as well as their Subjects in such things as concerned their Civil and Temporal Estates As that no Lay-man should have the Donation of an Ecclesiastical Benefice That no Lay-man should marry within certain Degrees out of the degrees limited by the Levitical Law That all Infants born before Marriage should be adjudged after Marriage Legitimate and capable of Temporal Inheritance That all Clerks should be exempt from the Secular power and others of the like nature But these Decretals being published they were not entirely and absolutely received and obeyed in any part of Christendom but only in the Pope's Temporal Territory which by the Canonists is called Patria obedientiae But on the other hand many of those Canons were utterly rejected and disobeyed in France and England and other Christian Realms which are called Patriae Consuetudinariae As the Canon which prohibited the Donation of Benefices per manum Laicam was ever disobeyed in England France the Kingdom of Naples and divers other Countries and Common-wealths And the Canon to make Infants Legitimate that were born before Marriage was specially rejected in England when in the Parliament held at Merton omnes Comites Barones una voce responderunt Nolumus Leges Angliae mutari quae hucusque usitatae sunt c. And the Canon which exempts Clerks from the Secular power was never fully observed in any part of Christendom Kelw. 7 H. 8. 181. b. which is one infallible Argument That these Ordinances had not their force by any Authority that the Court of Rome had to impose Laws on all Nations without their consent but by the approbation of the people which received and used them For by the same reason whereby they might reject one Canon they might reject all the other Vid. Bodin lib. 1. de Rep. cap. 8. where he saith That the Kings of France on the erection of all Universities there have declared in their Charters that they would receive the Profession of the Civil and Canons to use them at their discretion and not to be obliged by these Laws But as to those Canons which have been received accepted and used in any Christian Realm or Common-wealth they by such acceptation and usage have obtained the force of Laws in such particular Realm or State and are become part of the Ecclesiastical Laws of that Nation And so those which have been embraced allowed and used in England are made by such allowance and usage part of the Ecclesiastical Laws of England By which the interpretation dispensation or execution of these Canons being become Laws of England doth appertain sole to the King of England and his Magistrates within his Dominions and he and his Magistrates have the sole Jurisdiction in such cases and the Bishop of Rome hath nothing to do in the interpretation dispensation or execution of those Laws in England although they were first devised in the Court of Rome No more than the Chief Magistrate of Athens or Lacedemon might claim Jurisdiction in the Ancient City of Rome for that the Laws of the XII Tables were thither carried and imported from those Cities of Greece and no more than the Master of New-Colledge in Oxford shall have Command or Jurisdiction in Kings-Colledge of Cambridge for that the private Statutes whereby Kings-Colledge is governed were for the most part borrowed and taken out of the Foundation-Book of New-Colledge in Oxford And by the same reason the Emperour may claim Jurisdiction in Maritime causes within the Dominions of the King of England for that we have now for a long time received and admitted the Imperial Law for the determination of such Causes Vid. Cawdries Case Co. par 5. and Kelw. Rep. 184. a. Now when the Bishop of Rome perceived that many of his Canons were received and used by divers Nations of Christendom he under colour thereof claimed to have Ecclesiastical Jurisdiction in every Realm and State where these Canons were received and sent his Legates with several Commissions into divers Kingdoms to hear and determine Causes according to these Canons which Canons although neither the Pope nor his Ministers at the first venting and uttering thereof dared to call Laws Ne committerent crimen Laesae Majestatis in Principes as Marâ—il Pat. lib. Defensor pacis par 2. cap. 23. observes who also says That these Canons being made by the Pope Neque sunt humanae Leges neque divinae sed documenta quaedam Narrationes yet when he perceived that these Canons were received allowed
and use thereof when Erected how Established and by whom Dissolved 1. ABba and Abbas have one and the same signification therefore Abbots are called Patres c. ult de Regular Tuseh Concl. 3. nu 7. It is either an Hebrew or Syriack word signifying Pater with the Greeks and Latins from the two first Hebrew Elements or Letters Aleph and Beth inverted which Name the Monks first assumed at their Original in Syria and Egypt And although now in this Kingdom we know no more of this word Abbot than the very Name thereof yet for his Antiquities sake he hath the Alphabetical precedence in the Index of this Abridgment whether he be Archimandrita Novel Const 115. or Coenobiarcha or Archimonachus Hottom in ver Feuda Marsil colum de Eccles redit c. 15. nu 5 6. whether Miter'd and thereby exempt from the Diocesan's Jurisdiction as having within their own Precincts Episcopal Authority in themselves and being Lords in Parliament whence called Abbots Sovereign 9 R. 2. c. 4. Or not Miter'd but subject to the Diocesan in all Spiritual Government c. Monasteria 18. q. 2. c. Abbas c. Visitandi cum 4. seq ibid. Omnes 16. q. 7. c. cum Venerabilis Extra de Relig. Dom. vid. Stow. Ann. p. 442. So called Abbas because he is Pater Monachorum Januen in suo Cathol glo Jo. Andr. de Rescript c. 1. verb. Abbates in Clem Coke de Jure Ecclesiast fo 28. and hath the chief government of a Religious House and who with the Monks makes a Covent of these Abbots together with two or three Priors there were heretofore in England about the number of Thirty in all What Consecration is to a Bishop that Benediction is to an Abbot but in divers respects for a Bishop is not properly such until Consecration but an Abbot being Elected and Confirmed is properly such before Benediction cap. de Suppl negl Prael lib. 1. 10. Clem. § Statuimus de Stat. Monach. in Clem. cap. Meminimus de Accusat 2. The Venerable Mr. Bede speaks of an Island in Ireland which ever had an Abbot vested with such power and authority that every Province yea and the Bishops themselves were under his Government and subject to his Jurisdiction Beda lib. 3. de Gestis cap. 3. Spelm. de Prim. Eccles Angl-Sax An. 603. The Emperour Justinian in the First Book of his Codes hath expresly ordained and prescribed the manner and form of the Election and Confirmation of an Abbot and what persons they ought to be and how qualified that shall be accounted worthy of that Ecclesiastical Dignity C. l. 1. tit 3. l. 47. l. 40. De Episc Cler. Novel 5. cap. 9. Novel 123. c. 34. Mr. Blount in his Nomo-Lexicon takes notice of the word Abbacy and saies it is the same to an Abbot as Bishoprick is a Bishop resembling it to the word Paternity and a very Ancient Record wherein that word is used An. 34 35 H. 8. c. 17 18. Sciant .... quod Ego Isabella Comitiss Penb. pro Salute Animae meae Dedi Deo Abbathiae de Nutteleg totam Wicham juxta dictam Abbathiam c. In these latter Ages the Abbots through the savour of Princes and their respect to the Church have been reputed as Peers and Secular Lords to whom the granted the Provenues of Abbacies proportionable to such Dignity for the support thereof Thus many of the Peers of France have very anciently and frequently been Abbots as appears by Paradine who wrote the Annals of Burgundy nigh Seven hundred years since and then affirmed that he had seen very Ancient Records wherein the Peers of France used these styles and distinctions viz. Duke and Abbot Earl and Abbot c. Guil. Paradin Annal. Burgund lib. 2. sub An. 1103. Prat. 3. Notwithstanding the ill opinion which in these daies not without cause is conceived of the Ancient Abbies yet it cannot without some breach of charity be well supposed but that such Houses commonly called Religious were in the primitive and true intent thereof better purposed by the Founders than after practised by their Inhabitants for by the Law made in the daies of K. Knute nu 6. i is evident what strict Devotion and blameless Conversation the Ancient Princes of this Realm expected from such as then possessed these Abbies The Law was this viz. We will that Gods Ministers the Bishops Abbots c. do in a special manner take a right course and live according to Rule that they call to Christ night and day much and oft and that they do it earnestly And we Command them that they hearken to God and love Chastity Full truly they wit that it is against the Right to meddle with Women for Lusts sake Annot. Ridl View c. cap. 4. Sect. 1. Whereby it seems these Spiritual Fathers were suspected of old to incline to the Flesh all daies of the week An Abbot might be Presented to a Church for he was capable of an Appropriation whereby he was perpetual Parson Imparsonee and had Curam Animarum 34 H. 6. 15. 4. The Abbot or the chief Head of Abbies being together with the Monks of the same House a Covent made a Corporation and was not by the Common Law further charged with his Predecessors Acts than for such things as were for the use of the House or such Acts as were done under the Common-Seal thereof And albeit a Creditor had a Specialty against a Monk yet not the Abbot but the Monk's Executors were chargeable for his Debt contracted before his entry into Religion unless it were for some such thing as came to the use of his House 5. Of these Abbots some were Elective others Presentative and under this Title were comprehended other Corporations Spiritual as Prior and his Covent Friers Canons and such like And as there were Lord-Abbots so there were also Lord-Priors who had exempt Jurisdiction and were Lords of Parliament Co. de Jur. Ecclesiast fo 28. a. It is supposed that the Abbot of St. Austins in Canterbury was the Ancientest of any in this Kigdom Founded by King Ethelbert in An. 602. And next to him in Antiquity the Abbot of Westminster Founded by Seabert King of the West-Saxons An. 604. Some difference there is among Authors touching their Number in this Realm whereof some reckon but Twenty six Sir Edw. Coke says they were Twenty seven Abbots and Two Priors But a very Modern Writer gives us a Catalogue of no less than Thirty three Abbots and Priors whereof some were Priors Alieâ—s born in France Governours of Religious Houses erected for Foreigners here in England suppressed by Henry the Fifth after his Conquests in France and their Revenues after given by Henry the Sixth to other Monasteries and Houses of Learning specially for the crecting of Kings Colledge in Cambridge and Eaton Stow Annals p. 582. 1 H. 5. c. 7. 6. Chaunter Cantator A Singer in the Quire At St. Davids
253. Da. 1. Dean and Charter Fernes 46. Praemuni e 90. q Speed 428. b. r Idem 453. s Matth. Paris t Dr. Field 148. v Vid. St. 25 H. 8. 20. Sec. 3. Rastall vid. Co. par 12. Rep. 59. 2â— w Mich. 22 Jac. Latch Rep. 246. x F. N. B. â— y Matt. Pariâ— fo 454. de An. 1236. z Stat. 1 Ed. 6. 2. a Ibid. b Ibid. Bishops have Precedency of all Temporal Barons under Vicounts c 41 Ed. 3. 6. 46 Ed. 3. 22. d F. N. B. acc e 38 E. 3. 30. Pars Law cap. 1. f St. 17 Ed. 2. 14. g Case of the Dean and Chapter of Norwich Co. Rep. par 3. h Dyer 350. i Evans and Ascough's Case Luch Rep. k Trin. 8. Car. B. R. Case Walker vers Lambe Jones Rep. l Antiq. Bâ—iâ— fo 22. Heyl. Hist Eccles pag. 294. m Hill 8 Car. B. R. Rot. 454 Coâ—t vers Bishop of St. Davids alios Cro. Rep. n Linw. de jure presbyt verb. Oblatioris o Colt Glover vers Bp. of Coventry Lâ—chfield Hob. Rep. p 4 H. 7. 13. 10 H. 7. 18. 7 E. 4. 12. Lâ—tt ad Colleg. q Case Bâ—oâ—hly vers Baily Hob. Rep. r Lord Stanhop's Case vers Bishop of Lincoln al. * W. 2 cap. 5. s Sr. W. Elvis vers Archbishop of York and others Hâ—b Rep. t Stat. 21 H. 8. c. 13. u Vid. Broc hoc tit c 27 Eliz. C B. in Carter Crofts Case Leon. 33. Pasch 21 Jac. C. B. in Knâ—lly's and Dobbinâ— Case 342. Leon. d Pasch 17 Jac. Rot. 877. Sr. Will. Elvis vers Archbishop of York and others in Hob. Rep. e Brown's Case Latch Rep. * Brownl p. â— Cases in Law f Davis 1. Commend 72. b. g D. 10 El. 273. h 20 H. 6. 46. i Co. 10. Sutton's Hosp 31. k Davis 1. Proxies 4. l Davis 1. D. C. de Ferns 46. temps E. 6. Br. praemunire 21. m Davis 1. 46. F. N. B. 42. a. n D. 1. 46. o Co. 10. Suttons 31. Act. 15 16. 2. Coke 15. De Spelm. Concil p. 238. Bâ—ownl Rep. par 1. Mich. 10 Jac. Cases in Law c. Selden lib. 2. de Synedrits Vid. Grat. Dist c. Cum ad veâ—um Dr. Heylin Hist Eccl. de Temp. Ed 6. p. 51 52. Ibid. p 54 55. Mich. 17 Jac. Br. Revan O Brian and others and Knivans case Cro. par 2. Mich. 3 Car. C. B. Owen and Tho. Ap Ree's Case Cro. par 3. a Vid. St. 25 H. 8. c. 21. 13 Eliz. c. 12. b Co. 1. par Inâ—tit acc c 18 Eliz. Dyer 35â— * Case Evans and Ascough Latch Repâ— d Contra 31 H. 6. 10. admit Dub. 17 E. 3. 23. b. where it is said per Stouâ— that in the time of R. 1. and ever before the Metropolitan was Guardian till the time of H 3 c. Roll. Abr. ver Prerogative lit 5. e Râ—l Abr. ibid. Mich. 13 Jac. B. R. Rot. 165. Grange vers Denny Bulstr Rep. f 17 E. 3. 23. g 2 E. 1. Rot. Pat. Memb 5. h 41 Ass 29. adjudged i 27 E. 1 Rot Clauso Memb. 11. Dorso k 23 E. 1. Rot. Clauso Memb. 4. l Brâ—wnl Rep. pâ— 1. Mâ—ch 1â—â— Jac. Cases in Law c. a F. N. B. 169. Term. Leg. b Ibid. B. 170 B C c. c 20 Ed. 3. Fitz. tit Brief 25. d Trin. 11 Jac. C. B. in Colt and the Bishop of Coventry and Lichfield Hob. Rep. Evans and Ascoughâ— Case Lâ—tch Rep. e Vid. Stat. â— 25 H. 8. cap. 20. f 18 Eliz. Dyer 350. g 22 E. 3. 13. h 41 E. 3. 6. 46 E. 3. 22. Otâ—oâ—on de Confirm Epist cap unic i Weast Symb. par 1. lib. 2. Sect. 300. F. N. B fo 169. b. 226. 〈◊〉 271. d. 162 〈◊〉 Litt. lib. 3. c. â—â— k Cap. ne pro defectâ— de Elect. c. 2. 〈◊〉 concess Prâ—â—bend in Sect. 1. de Regia Nâ—mâ—na Pet. Rebuss Respons 14. l Gloss D D. in dict cap. 2. de concess Praebendâ— m Rebuâ—â— ubi supr a â— 3. si quando C. de Bon. vac 24. q. 1. c. Pudenda Jul. Patric in Version Nov. 6. b dict Nov. 6. c Exod. 29. 9. d 1 King 19. 15 16. 1 King 1. 39. 1 Sam. 16. 12. Psal 89. 20. e Exod. 29. 20. f Lev. 8. 12. Exod. 29. 7. Psal 133. 2. Celichyth g Spelm. Consil Synod Celichyth Can. 2. h Auth. de Monach. §. illud igitur Coll. 1. vid. Novell 123 131. i Pontificale pag. 281. per Clement 8. An. 5565. k Jus Graec. Lat. To. 1. Synod 1. 232 233 c. l 21 H. 6. 3. by Markham m Plat. Berg. Chrisp Isaacs Sat. Ephem n Case Evans Ascough Latch Rep. o Sum. Rosell Postulation ut Si quis Panorm 2. p. 100 p in dict Case Evans Ascough a 33 L. 3. Ayd del Roy 03. per Therp b Ibid. per Fif c D. to El. 273 37 d Ibid. e 14 H 8. 3 b. f 17 E. 3. 40. b. per â—arning g 40 Ea. 23. Coke 3. Rep. 75. b. h 17 E. 4. 76. 17 Ass pl. 29. 18 E. 3. 36. F. N. B. 195. Coke 3. Dean and Chapter of Norwich Case 40 41 Eliz. i Lind w. pro Const tit de Constit verb. per Decanos Rurales k Decretal Ext. de Offic. Archi. Dean Rurals what Decani Rurales sunt Decans Temporales ad aliquid Ministerium sub Episcepo vel Archicpiscopo exercendum Constituti Lindw de Const c. 1. Gloss in verb. Decan Rural * Lindw ib. They were anciently called Testes Synedales l Idem de Jadic ver Decan Rural m C. de Decanis l. 12. per totum n Extra de Censib c. cum Apostolus o Extr. de App. c. dilectis filiis p Co. par 3. Case Dean Chap. of Norwich q Cab. Glovers Cise vers the Bishop of Coventry and Lâ—â—field Hob. Rep. r Vid. 〈◊〉 E. 4 〈…〉 18. 21 〈◊〉 s Day 's Case vers Savage Hob. Rep. t Arundel's Case Hob. Rep. u Case Evans and Ascough Latch Rep. x Dict. Case Evans Ascough y Case Evans vers Ase in primo loca Latch Rep. z Lindw ubi supra a Gloss ib. b Co. 3. par Case of the D. and Chapter of Norwich c Hugh's Pars Law cap. 3. d Co. 12. 71. a. b. Dyer 282. p. 26. Sr. Sim. Degg's Law cap. 5. Pars Counsellor par 1. c. 10. e Temp. R â— Fitz. tit Grnats 104. Hugh's Pars More 's Rep. 3 4 Ma. Eaton-Colledg Case More ibid. Pasch 6 Eliz. More ibid. The Lord North's Case Mores Rep. Philip a Fifth Son of Lewis the Gress K. of France disdained not to be an Archdeacon in 〈◊〉 Paul AEmâ—l Tilius a Sum. ibid. b Can. Legiâ—â— 93. Dist There are 60. Archdeacons in England Clergy from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Portio they being in a peculiar sense aâ— the Lords Portion c 17 Ed. 3. 23. Coo.