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 were repealed so that the Act of Repeal being repealed the said Acts of H. 8.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
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
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
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
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
in question hath been of a Mixt nature in reference to Jurisdictions 29. Certain Reasons for denial of Prohibitions to the Ecclesiastical Court in some Cases where they might lie 30. Bounds of Parishes in reference to the Tithes thereof whether Tryable by the Law of the Land or by the Law of the Church 31. Where the Question is more touching the Right of Tithes than the Bounds of the Parish the Ecclesiastical Court hath had the cognizance 32. The Ecclesiastical Court hath cognizance of Administrators Accounts and no Prohibition lies 33. Modus Decimandi sued for by a Parson in the Eccllesiastical Court no Prohibition Nor if he there sues for the Tithe of things not Titheable 34. In what cases a Custome as also a Rent may be sued for in the Ecclesiastical Court 35. If Question be touching the Grant of a Registers Office in a Bishop's Court or touching the Tenth after severance from the Nine parts In what Court whether Temporal or Ecclesiastical it shall be tryed 36. A Woman exercising the Profession of a Midwife without License is therefore sued in the Ecclesiastical Court whether a Prohibition lies in that case 37. The Bounds of a Parish also whether such a Church be Parochial or only a Chappel of Ease In what Court this is to be tryed 38. A Prohibition granted upon the disallowance of an Executors Plea of having Assets only to pay Debts in opposition to a Legacy sued for in the Ecclesiastical Court 39. A Prohibition awarded upon a Suit in the Ecclesiastical Court for an account of the Profits of a Benefice Otherwise in case the Profits were taken during the time of a Sequestration 40. A Prohibition granted to a Party to stay proceedings in his own Suit and commenced by himself 41. Pensions are sueable only in the Ecclesiastical Court 42. The right of Tithes coming in question between the Parson and the Vicar is a Suit properly belonging to the Ecclesiastical Court 43. Whether and how far and in what manner the Ecclesiastical Court may take cognizance of a Modus Decimandi at large debated 44. When and how the Canon Law was introduced into this Realm 1. BEfore the time of King William the Conqueror all matters as well Spiritual as Temporal were determined in the Hundred-Courts where was wont to sit one Bishop and one Temporal Judge called Aldermanus the one for matters of Spiritual the other of Temporal cognizance But that was altered by King William and it seems by Parliament for it was by the assent of the Bishops Abbots and all the chief persons of the Realm for he Ordained That the Bishop or Archdeacon should not hold Plea of the Episcopal Laws quae ad Regimen animarum pertinent in the Hundred but by themselves and there administer Justice not according to the Law of the Hundred but according to the Episcopal Laws and Canons as appears by King William's Charter Irrot. 2. R. 2. pro Decano Capitulo Eccles Lincolne Jan. Angl. 76 77. The Principal Courts Ecclesiastical whereof some are now out of use were and are the Convocation Court the High Commission Court the high Court of Arches the Prerogative Court of Canterbury the Court of Delegates the Court of Audience the Court of Peculiars the Court of Faculties besides the Bishops Consistories the Archdeacons Courts and the like anciently called Halimots or holy Courts And the Saxon Kings long before William the Conqueror made several Laws for the Government of the Church Among others St. Edward begins his Laws with this Protestation that it is his Princely charge Vt Populum Domini super omnia Sanctam Ecclesiam regat gubernet And King Edgar in his Oration to his English Clergy Ego saith he Constantini vos Petri gladium habetis jungamus dextras gladium gladio Copulemus ut ejiciantur extra castra Leprosi purgetur Sanctuarium Domini But upon the Conquest made by the Normans the Pope took the opportunity to usurp upon the Liberties of the Crown of England for the Conqueror came in with the Popes Banner and under it won the Battel Whereupon the Pope sent two Legates into England with whom the Conqueror called a Synod deposed Stigand Archbishop of Canterbury because he had not purchased his Pall in the Court of Rome and displaced many Bishops and Abbots to make room for his Normans Among the rest the King having earnestly moved Wolstan Bishop of Worcester being then very aged to give up his Staff was Answered by him That he would give up his Staff only to him of whom he first received the same And so the old Bishop went to St. Edward's Tomb and there offered up his Staff and Ring with these words viz. Of Thee O holy Edward I received my Staff and my Ring and to thee I do now surrender the same again Which proves that before the Norman Conquest the Kings of England invested their Bishops per Annulum Baculum By this admission of the Pope's Legates was the first step or entry made into his usurped Jurisdiction in England yet no Decrees passed or were put in execution touching matters Ecclesiastical without the King 's Royal Assent nor would he submit himself in point of Fealty to the Pope as appears by his Epistle to Gregory the Seventh Vid. Da. Rep. Case of Praemunire fo 89. yet in his next Successors time in the time of William Rufus the Pope by Anselme Archbishop of Canterbury attempted to draw Appeals to Rome but prevailed not Upon this occasion it was that the King told Anselme That none of his Bishops ought to be subject to the Pope but that the Pope himself ought to be subject to the Emperour and that the King of England had the same absolute Liberties in his Dominions as the Emperour had in the Empire Yet in the time of the next King H. 1. the Pope usurped the Patronage and Donation of Bishopricks and all other Benefices Ecclesiastical at which time Anselme told the King That the Patronage and Investure of Bishopricks was not his Right because Pope Urban had lately made a Decree That no Lay-person should give any Ecclesiastical Benefice And after this in a Synod held at London An. 1107. a Decree was made Cui annuit Rex Henricus says Matth. Paris that from thenceforth Nunquam per donationem Baculi Pastoralis vel Annuli quisquam de Episcopatu vel Abbathia per Regem vel quamlibet Laicam manum investiretur in Anglia Hereupon the Pope granted That the Archbishop of Canterbury for the time being should be for ever Legatus Natus And Anselme for the honour of his See obtained That the Archbishop of Canterbury should in all general Councils sit at the Pope's foot tanquam alterius Orbis Papa Yet after Anselme's death this same King gave the Archbishoprick of Canterbury to Rodolph Bishop of London says Matth. Paris Et illum per Annulum Pastoralem Baculum investivit as before he had invested William Gifford in
exempted out of the Bishop of London's Jurisdiction The Judge of this Court of Arches is styled the Dean of the Arches or the Official of the Arches-Court unto whose Deanary or Officialty to the Archbishop of Canterbury in all matters and causes Spiritual is annexed the Peculiar Jurisdiction of the thirteen Parishes as aforesaid Having also all Ordinary Jurisdiction in Spiritual causes of the first Instance with power of Appeal as the superiour Ecclesiastical Consistory through the whole Province of Canterbury yet the Lord Coke says his power to call any person for any Cause out of any part of his Province within the Diocess of any other Bishop except it be upon Appeal is restrained by the Stat. of 23 H. 8. c. 9. Yet his Jurisdiction is Ordinary and extends it self through the whole Province of Canterbury insomuch that upon any Appeal made to him from any Diocess within the said Province he may forthwith without further examination at that time of the Cause issue forth his Citation to be served on the Appealee with his Inhibition to the Judge à quo In Mich. 6 Jac. C. B. there was a Case between Porter and Rochester The Case was this Lewis and Rochester who dwelt in Essex in the Diocess of London were sued for subtraction of Tithes growing in B. in the said County of Essex by Porter in the Court of Arches of the Archbishop of Canterbury in London where the Archbishop hath a peculiar Jurisdiction of thirteen Parishes called a Deanary exempt from the Authority of the Bishop of London whereof the Parish of S. Mary de Arcubus is the chief And a great Question was moved Whether in the said Court of Arches holden in London he might cite any dwelling in Essex for subtraction of Tithes growing in Essex or whether he be prohibited by the Statute of 23 H 8. c. 9 Which after debate at Bar by Council and also by Dr. Ferrard Dr. James and others in open Court and lastly by all the Justices of the Common Pleas A Prohibition was granted to the high Court of Arches And in this case divers points were resolved by the Court 1 That all Acts of Parliament are parcel of the Laws of England and therefore shall be expounded by the Judges of the Laws of England and not by the Civilians and Canonists although the Acts concern Ecclesiastical Jurisdiction 2 Resolved by Coke Chief Justice Warburton Daniel and Foster Justices That the Archbishop of Canterbury is restrained by the 23 H. 8. cap. 9. to cite any one out of his own Diocess For Diaecesis dicitur distinctio c. quae divisa vel diversa est ab Ecclesia alterius Episcopatus Commissa gubernatio unius c. And is derived a Di Duo Electio quia separat duas Jurisdictiones And because the Archbishop of Canterbury hath a peculiar Jurisdiction in London for this cause it is fitly said in the Title Preamble and body of the Act that when the Archbishop sitting in his Exempt peculiar in London cites one dwelling in Essex he cites him out of the Bishop of London's Diocess Therefore out of the Diocess And in the clause of the penalty of 10 l. it is said Out of the Diocess c. where the party dwelleth which agrees with the signification of Diocess before 2. The body of the Act is No person shall be henceforth cited before any Ordinary c. out of the Diocess or peculiar Jurisdiction where the person shall be dwelling and if so then à Fortiori the Court of Arches which sits in a Peculiar may not cite others out of another Diocess And the words out of the Diocess are meant of the Diocess or Jurisdiction of the Ordinary where he dwelleth And from the Preamble of the Act the Lord Coke observes and inferrs That the intention of the Act was to reduce the Archbishop to his proper Diocess unless in these five Cases viz. 1 For any Spiritual offence or cause committed or omitted contrary to Right and Duty by the Bishop c. which word omitted proves there ought to be a default in the Ordinary 2 Except it be in Case of Appeal and other lawful cause where the party shall find himself grieved by the Ordinary after the matter there first begun Therefore it ought to be first begun before the Ordinary 3 In case the Bishop or Ordinary c. dare not or will not Convent the party to be sued before him 4 In case the Bishop or Judge of the place within whose Jurisdiction or before whom the Suit by this Act should be begun and prosecuted be party directly or indirectly to the matter or cause of the same Suit 5 In case any Bishop or other inferiour Judge under him c. make Request to the Archbishop Bishop or other inferiour Ordinary or Judge and that to be done in Cases only where the Law Civil or Common doth affirm c. The Lord Coke takes notice also of Two Provisoes in that Act which do likewise explain it viz. That it shall be lawful for every Archbishop to cite any person inhabiting in any Bishops Diocess in his Province for matter of Heresie By which says he it appears That for all causes not excepted he is prohibited by the Act. 2 There is a Saving for the Archbishop calling any person out of the Diocess where he shall be dwelling to the probat of any Testament Which Proviso should be vain if notwithstanding that Act he should have concurrent Jurisdiction with every Ordinary throughout his whole Province Wherefore it was concluded That the Archbishop out of his Diocess unless in the Cases excepted is prohibited by the 23 H. 8. c 9. to cite any man out of any other Diocess which Act is but a Law declaratory of the Ancient Canons and a true Exposition thereof as appears by the Canon Cap. Romana in Sext. de Appellat c. de Competenti in Sext. And as the Lord Coke observes the Act is so expounded by all the Clergy of England at a Convocation at London An. 1 Jac. 1603. Can. 94. who gives us further to understand in this Case between Porter and Rochester That the Archbishop of this Realm before that Act had power Legantine from the Pope By which they had Authority not only over all but concurrent Authority with every Ordinary c. not as Archbishop of Canterbury c. but by his Power and Authority Legantine Et tria sunt genera Legatorum 1 Quidam de Latere Dom. Papae mittuntur c. 2 Dativi qui simpliciter in Legatione mittuntur c. 3 Nati seu Nativi qui suarum Ecclesiarum praetextu Legatione funguntur sunt Quatuor viz. Archiepiscopus Cantuariensis Eboracensis Remanensis Pisanis Which Authority Legantine is now taken away and utterly abolished 4. It is supposed that the Judge of this Court was originally styled the Dean of the Arches by reason of his substitution to the Archbishop's Official when
but by death or resignation for otherwise Dilapidations should be in the time of the Successor and he cannot maintain Hospitality 8. The wasting of the Woods belonging to a Bishoprick is in the Law understood as a Dilapidation as was formerly hinted Note By Coke Chief Justice a Bishop is only to fell Timber for Building for Fuel and for his other necessary occasions and there is no Bishoprick but the same is on the Foundation of the King the Woods of the Bishoprick are called the Dower of the Church and these are alwaies carefully to be preserved and if he fell and destroy this upon a motion thereof made to us says the Lord Coke we will grant a Prohibition And to this purpose there was a great Cause which concerned the Bishop of Duresm who had divers Cole-Mines and would have cut down his Timber-Trees for the maintenance and upholding of his Works and upon motion in Parliament concerning this for the King Order was there made that the Judges should grant a Prohibition for the King and we will here says he revive this again for there a Prohibition was so granted And so upon the like motion made unto us in the like case we will also for the King grant a Prohibition by the Statute of 35 E. 1. If a Bishop cut down Timber-Tres for any cause unless it be for necessary Reparations as if he sell the same unto a Stranger we will grant a Prohibition And to this purpose I have seen said he a good Record in 25 E. 1. where complaint was made in Parliament of the Bishop of Duresm as before for cutting of Timber-Trees for his Cole-Mines and there agreed that in such a case a Prohibition did lie and upon motion made a Prohibition was then granted and the Reason then given because that this Timber was the Dower of the Church and so it shall be also in the case of a Dean and Chapter in which cases upon this ground we will grant as he said Prohibitions and the whole Court agreed with him herein Also in Sakar's case against whom Judgment being given for Simony yet he being by assent of parties to continue in the Vicarage for a certain time this time being now past and he still continuing in possession and committing of great Waste by pulling down the Glass-windows and pulling up of Planks the Court granted a Prohibition and said That this is the Dower of the Church and we will here prohibit them if they fell and waste the Timber of the Church or if they pull down the houses And Prohibition to prevent Dilapidations and to stay the doing of any Waste was in that case awarded accordingly 9. In a Prohibition the Case was this A Vicar lops and cuts down Trees growing in the Church-yard the Churchwardens hinder him in the carriage of the same away and they being in Trial of this Suit The Churchwardens by their Counsel moved the Court for a Prohibition to the Vicar to stay him from felling any more Coke Chief Justice This is a good cause of Deprivation if he fell down Timber-Trees and Wood this is a Dilapidation and by the Resolution in Parliament a Prohibition by the Law shall be granted if a Bishop fells down Wood and Timber-Trees The whole Court agreed clearly in this to grant here a Prohibition to the Vicar to inhibit him not to make spoil of the Timber this being as it is called in Parliament the Endowment of the Church Coke we will also grant a Prohibition to restrain Bishops from felling the Wood and Timber-Trees of their Churches And so in this principal Case by the Rule of the Court a Prohibition was granted CHAP. XVI Of Patrons de jure Patronatus 1. What Patron properly signifies in the Law the Original thereof and how subject to corruption 2. In what case the Bishop may proceed de jure Patronatus and how the Process thereof is to be executed 3. How the Admittance ought to be in case the same Clerk be presented by two Patrons to the same Benefice 4. In what cases of Avoydance Notice thereof ought to be given to the Patron and what course in that case the Bishop is to take in case he knews not the true Patron 5. Several Appellations in Law importing Patron 6. How many waies a Church may become Litigious 7. Whether an Advowson may be extended 8. In what case the Patron may Present where the King took not his turn upon the first Lapse 9. A Patron may not take any benefit of the Glâ—be during a Vacancy 10. In what case the Patron shall not by bringing the Writ of Qua. Imp. against the Bishop prevent the incurring of the Lapse to the Ordinary 11. The King is Patron Paramount and Patron of all the Bishopricks in England The Charter of King John whereby Bishopricks from being Donative became Elective 1. PATRON by the Canon Law as also in the Feuds wherewith our Common Law doth herein accord doth signifie a person who hath of right in him the free Donation or Gift of a Benefice grounded originally upon the bounty and beneficence of such as Founded Erected or Endowed Churches with a considerable part of their Revenue De Jur. Patronat Decretal Such were called Patroni à patrocinando and properly considering the Primitive state of the Church but now according to the Mode of this degenerating Age as improperly as Mons à movendo for by the Merchandize of their Presentations they now seem as if they were rather the Hucksters than Patrons of the Church But from the beginning it was not so when for the encouragement of Lay-persons to works of so much Piety it was permitted them to present their Clerks where themselves or their Ancestors had expressed their Bounty in that kind whence they worthily acquir'd this Right of Jus Patronatus which the very Canon Law for that reason will not understand as a thing meerly Spiritual but rather as a Temporal annexed to what is Spiritual Quod à Supremis Pontificibus proditum est Laicos habere Jus Praesentandi Clericos Ordinariis hoc singulari favore sustinetur ut allectentur Laici invitentur inducantur ad constructionem Ecclesiarum Nec omni ex parte Jus Patronatus Spirituale censeri debet sed Temporale potius Spirituali annexum Gloss in c. piae mentis 16. q. 7. Coras ad Sacerdot mater par 1. cap. 2. Yet not Temporal in a Merchandable sense unless the Presentor and Presentee will run the hazard of perishing together for prevention whereof provision is made by that Solemn Oath enjoyn'd by the Fortieth Canon of the Ecclesiastical Constitutions whereof there was no need in former Ages less corrupt when instead of selling Presentations they purchased Foundations and instead of erecting Idol-Temples for Covetousness is Idolatry they Founded Built and Endowed Churches for the Worship of the True God Patroni in jure Pontificio dicuntur qui alicujus Ecclesiae extruendae c. Authores
which an Advowson appertains but only for term of their lives or of years by Intrusion or Disseism 6. A Church may become Litigious both before and by and after a Jure Patronatus Before as by a plurality of Presentations By as when in case of plurality of Presentations upon a plural Jure Patronatus the one Jury gives a Verdict for the Title of one Patron the other for the Title of the other Patron After as when after a Jure Patronatus awarded and Verdict thereupon given for one of the parties a third person presents before Admittance of his Clerk for whom the Verdict was given Upon a plural Jure Patronatus if one Jury give a Verdict for the Title of the one the other for the Title of the other Patron it is conceived in that case the Ordinary may refuse the Clerks of both Patrons and suffer the Church to Lapse And where a Third person presents after a Verdict as aforesaid but before the Clerk be Admitted whereby the Church becomes Litigious de Novo in that case the Bishop may award a new Jure Patronatus Also if the Bishop doubt the Patrons Title that presents he may as some conceive award a Jure Patronatus albeit the Church be not Litigious which is a safe way for prevention of any surprize to the rightful Patron or other Pretenders in which case if the Right of Patronage be found for another that had not before presented his Clerk may be admitted by the Ordinary who is no Disturber if he admit a Clerk that is presented before the Church becomes Litigious by a Second presentation for by the Verdict of the Jury aforesaid he is sufficiently warranted to admit and institute the Clerk for whose Patrons Title the Verdict is given in doing whereof he is no Disturber albeit the other Patron against whom the Verdict is given should after recover in a Quare Impedit And after a Verdict in a Jure Patronatus found for a Patron he ought to renew his Request to the Ordinary for the admission of his Clerk otherwise the Bishop may Collate in case the Church Lapse after Six months 7. Sir John Arundell and his Wife brought a Quare Impedit against the Bishop of Gloucester and others who pleaded in Bar that William Sturton was seized of a Mannor to which the Advowson was appendent and bound himself in a Statute-Merchant of 200 l. to one Long and the Statute was extended and conveyed the interest of the Statute to one of the Defendants and then the Church became void And by the Court the Advowson may be extended and if it become void during the Conusees Estate the Conusee may present 8. In Beverley's Case against the Archbishop of Canterbury where the question was Whether the Queen might take her turn to Present in regard she took not her turn when the first Lapse happened immediately at the first Avoidance by reason of the Incumbents having Two Benefices within the Stat. of 21 H. 8. And all the Justices of the Common Pleas after long and serious debate did Resolve That the Queen shall not now have her Presentation but the Patron because the Queen hath such Presentment by Lapse as the Bishop had and no other and could Present but to the present Avoydance then void And although Nullum tempus occurrit Regi yet we must distinguish it thus for where the King is limited to a time certain or to that which in it self is Transitory there the King is to do it within the time limited or in that time wherein the thing to be done hath Essence or Consistence or while it remaineth for otherwise he may not do it afterwards So where a Second presentment is granted to the King and he does not Present he may not after 9. During a Vacancy the Freehold of the Glebe is in Abeiance and not in the Patron who can take no benefit thereby in that time nor can he have any Action for Trespass done thereon in the time of such Vacancy Yet if a man hath an Annuity out of a Parsonage and he in the Vacancy thereof Release to the Patron it shall extinguish the Annuity 21 H. 7. 41 Co. 5. Forde 81. b. 10. If a Church becomes void by the death of the Incumbent or otherwise and the Patron within Six months bring a Quare Impedit against the Bishop and then Six months pass without any Clerk presented by the Patron to the Bishop in that case the Lapse shall incur notwithstanding the pendency of the Writ for it is not reasonable that the Ordinary should lose his Title of Lapse without any wrong done by him by a fraudulent Action brought without cause by the Patron and whereby the Ordinary is put to Expences without cause and by such fraudulent means the Patron might keep the Church perpetually void Hob. Rep. 270. Roll. Abr. verb. Presentment lit X. pag. 366. 11. The Jus Appellandi in defect of Justice and the Jus Praesentandi in case of Lapse seem to have a parallel resemblance with one another in their gradations for as they both primarily meet in the Ordinary so they both pass from him to the Metropolitan and from him to the King not only as Supream Ordinary but also as Patron Paramount of all the Bishopricks in England which as they were originally Donative per Annulum Baculum so now since King Johns time they are by Canonical Election for King John by his Charter dated the 15th of January in the 16th year of his Reign granted this priviledge to the Church in these words viz. Quod qualiscunque Consuetudo temporibus Praedecessorum nostrorum hactenus in Ecclesia Anglicana fuerit observata quicquid juris nobis hactenus Vindicaverimus de caetero in universis singulis Ecclesiis Monasteriis Cathedralibus Conventualibus totius Regni Angliae Liberae sint in perpetuum Electiones quorumcunque Praelatorum majorum minorum Salva Nobis haeredibus nostris Custodia Ecclesiarum Monasteriorum vacantium quae ad nos pertinent Promittimus etiam quod Nec impediemus nec impediri permittemus per Ministros nostros nec procurabimus quin in universis singulis Monasteriis Ecclesiis postquam vacuerint Praelaturâ—â— quemcunque voluerint Libere sibi praeficiant Electores Pastorum petita tamen à Nobis prius haeredibus nostris Licentia Eligendi quam non denegabimus nec differemus Et similiter post celebratam Electionem noster requiratur Assensus quem non denegabimus nisi adversus eandem Rationale proposuerimus legitime probaverimus propter quod non debemus consentire c. Vid. Davis Rep. in the case of Praemunire â—o 92 93. CHAP. XVII Of Parsons and Parsonages 1. Parson what he is in the intendment of Law 2. What is meant by Parson imparsonee 3. The Freehold of Church and Glebe is in the Parson what interest he hath in the Church-yard and
of Advowson of a Church he may only say that he was seized as of Fee and not in his Demesn as of Fee whether it be an Advowson in Gross or Appendant which Appendancy is held to be for the most part by Prescription and must relate to such things as are in their own nature of a perpetual continuance for which reason it is That Advowsons cannot be said to be Appendant to Rents Services and the like because such things are extinguishable And although an Advowson be not properly said to be a Demesn yet it may be Appendant to a Demesn as of Lands or things Corporeal and Perpetual and therefore as supposed not to a House of habitation meerly quatenus such yet to the Soyl whereon the House is erected whereby the Law which hath the clearest prospect of Casualties at a distance hath provided that the Advowson shall stand though the House fall but an Advowson Disappendant and in Gross which in man hath alone and not by reason of any other thing but severed from the Lands to which it was Appendant such an Advowson is exempt from divers prejudicial Incidents which the other viz. the Appendant cannot well avoid And where a Subject or Common person hath an Advowson Appendant to a Mannor and there be an Usurpation upon him by a Presentation made by a Stranger whose Clerk is in for Six months though this makes the Advowson of such Common person Disappendant to his Mannor yet it is otherwise in case of the King who may grant the Advowson notwithstanding such Usurpation for a man cannot put the King out of possession either by Presentation or Usurpation as hath been Adjudged Nor doth the King's Presentation by Lapse sever the Advowson from the Mannor or cause it to become disappendant as in Gawdy's Case against the Archbishop of Canterbury and Others was likewise Adjudged in which Case it was also said by Habard Chief Justice That neither doth a wrongful Collation of the Bishops make any Disappendancy nor any binding Plenarty against the true Patron but that he may not only bring his Quare Impedit when he please but also Present upon him seven years after Also whereas it was said before That an Advowson cannot be Appendant to things Extinguishable as to Rents Services and the like so it seems at the Common Law an Advowson in Possession cannot be Appendant to a Reversion expectant upon an Estate for life for the Case was The King seized of a Mannor with an Advowson Appendant granted the Mannor to J. S. for life and then granted the Mannor to J. D. after the death of J. S. Habendum una cum Advocatione and then by Parliament the King reciting both the Grants confirmed them by Parliament yet the Advowson passed not Finally whereas also it hath been Adjudged as aforesaid that the King cannot be put out of possession either by Presentation or Usurpation this seems to refer only as to the Kings Advowson and not as to his present Presentation for the Opinion of Sir H. Hobart Chief Justice is That although the King may be dispossessed of his present Presentation he cannot be so of his Advowson and therefore he may still grant it notwithstanding the Usurpation as was Judged in a Writ of Error upon a Judgment given to the contrary between the King and Campion for the Vicarage of Newton Valence 23. A Donative in the Kings Gift may be with Cure of Souls as the Church of the Tower of London is a Donative in the Kings Gift with Cure as in the Case of Fletcher and Mackaller where Information was brought upon the Stat. 31 Eliz. of Simony for procuring him to be promoted to the Church of the Tower for money and per Curiam it well lies 24. The Queen hath the Advowson of the Vicarage of H. and grants the Vicarage to J. S. It was the Opinion of all the Justices that the Advowson passeth not for that the Vicarage is another thing than the Advowson of the Vicarage The Queen seized of a Mannor to which an Advowson was appendant granted the Mannor cum Advocatione Ecclesiae the Church being then void It was Adjudged the Avoidance did not pass but the Queen should Present pro hac vice And in the Queen and Hussie's Case it was Resolved That a double Presentation would not put the Queen out of possession if she hath Right And in Stephens and Clarks Case it was Resolved That the Grant of the next Avoidance to one during the Avoidance is void in Law CHAP. XX. Of Appropriations 1. The great Antiquity of Appropriations a Conjecture of their Original whether Charles Martell was the occasion thereof they were prohibited in England anciently by the Pope whether they can be otherwise than by the King or some Authority derived from him 2. How the End and use of Appropriations is changed at this day from what it was in the Original Institution thereof 3. Appropriators why called Proprietarii The care of R. 2. in making Provision for thé Vicar in case of Appropriations Requisites of Law to make an Appropriation 4. A further discovery of the Original use and ends of Appropriations and under what qualifications 5. Whether Appropriations were anciently grantable to Nunneries 6. Appropriations not now to be questioned as to their Original 7. A Vicarage endowed may be Appropriated but not to a Parson 8. Three considerable Points of Law resolved by the Justices touching Appropriations 9. Whether an Advowson may be Appropriated without a Succession Appropriations usually were to Corporations or Persons Spiritual 10. How a Church Appropriate may be disappropriated 11. In Appropriations the Patron and his Successors are perpetual Parsons 12. Whether an Appropriation of a Parsonage without endowment of the Vicarage be good Also whether an Appropriation may be made without the Kings License 1. IT is a question at this day undecided Whether Princes or Popes were the first Authors of Appropriations the practice whereof by each of them is of great Antiquity but whether in imitation of Charles Martell's Sacrilegious President the first by whom Tithes were ever violated in the Christian World is but a Supposition rather than any Assertion among Historians It was long since Traditionally Recorded in History that about the year 650. when the said Charles Martell Father of Pipin after King of France in defence of his Country against the Hunnes Gothes and Vandals had slain no less than 34500 of those Infidel Sarazens in one Battel he did not restore to such of the Clergy of France their Tithes as from whom under a fair pretence of supporting the charges of the War thereby he had upon a Promise of Restitution thereof so soon as the War should cease obtained the same but instead thereof gratified such of the Nobility as had assisted him in the War by the grant thereof to them and their Heirs for ever But whether this Sacriledge if it be true had
such a malign influence upon succeeding Princes in After-ages and other Kingdoms and also upon the Popes as some Historiographers do more than conjecture is not so evident as that which is reported by Ingulphus Abbot of Crowland touching Eight Churches to have been Appropriated to that Abbey by several Saxon Kings and though by their Charters yet whether by such exclusively to all Ecclesiastical Authority is not so certain as that William the Conqueror without asking leave of the Pope Appropriated three Parish-Churches to the Abbey of Battaile which he built in memory of his Conquest and his youngest Son H. 1. nigh twenty in one day to the Cathedral of Sarum by his Letters Patents together with the Tithes of those Parishes which his elder Brother William Sirnamed Rufus had depopulated and disecclesiated in New-Forrest in Hantshire Notwithstanding which the Pope who understood his Supremacy in matters Ecclesiastical better than to part with it upon any Presidents of Temporal Usurpations doth frequently in his Decretals without any contradiction rather assume than arrogate this Right unto himself as a Prerogative of the Apostolick See and granted to several Religious Orders this Priviledge of taking Ecclesiastical Benefices at Lay-mens hands by the mediation of the Diocesan who at a moderate and indifferent rate as one Moity of the Annual profits of the Benefice was to be a Medium or Expedient between the Religious House and the Incumbent but in process of time partly by the remisness of the Bishops in that point and partly by the Covetousness of the Monks and Friers in those days the Incumbents proportion became at last so inconsiderable that Pope Vrban the Fifth by his Legate Othobon about the year 1260 was forced to inhibit all the Bishops here in England from Appropriating any more Churches to any Monastery or othes Religious Houses save only in such cases where Charity might prevail in derogation of Law and under this Proviso also That the Bishops should assign a competent proprotion of the Parochial Fruits for the Maintenance of the Incumbent according to the annual value thereof in case the new Appropriators did it not within Six months next after such Appropriation but this Constitution not taking the effect expected a convenient Maintenance for the Vicar was otherwise provided for by Two Statutes the one made by R. 2. the other by his Successor H. 4. So that upon the whole it may be rationally inferr'd that these Appropriations originally came partly by the Act of Ecclesiasticks and partly by the Laity But what way soever they came this is and hath been held for Law within this Realm That albeit the Pope takes upon him to be Supream Ordinary yet no Appropriations made by him or by any Authority derived from him were ever allowed or approved of by the Laws of this Realm it being held That no Appropriations within this Realm can be made but by the King or by Authority derived from him and by his License and that all other Appropriations are void in Law An Appropriation may be by the King Sole where he is Patron but it may not be by the Patron Sole Grendon's Case in Plowden 17 E. 3. 39. An Appropriation cannot be without the King's License Ward 's Case Poph. Rep. Nor will the Objection hold against the King to say No man can make an Appropriation of any Church having Cure of Souls the same being a thing meerly Ecclesiastical and to be made by some Ecclesiastical person but he only who hath Ecclesiastical Jurisdiction for such Jurisdiction the King hath and is such a Spiritual person as may of himself Appropriate any Church or Advowson because in him resides the Ecclesiastical Power and Jurisdiction And therefore in a Case of Commendams it was long since held That an Appropriation made by the Pope could not be good without the King's License The like in a Case of Avoidance was vouched in Cawdrie's Case That the Entry into a Church by the Authority of the Pope only was not good and that he could not Appropriate a Church to Appropriatees to hold to their own use And in Gyendon's Case it was Resolved by the Justices That the Ordinary Patron and King ought to be assenting to every Appropriation and that the Authority which the Pope had usurped in this Realm was by Parliament 25 H. 8. acknowledged to be in the King who as Supream Ordinary may Appropriate without the Bishop's Assent 2. It seems therefore without any contradiction most evident That Appropriation or Impropriation at the Original thereof was when the Religious Houses of the Romish Church and the Religious persons as Abbots Priors and the like had the Advowson of any Parsonage to them and their Successors obtaining License of their Holy Father the Pope as also of Kings and of their Ordinaries that they and their Successors should from thenceforth be the Parsons thereof that it should thenceforth be a Vicarage and that a Vicar should serve the Cure So that at the beginning of this Spiritual Monopoly of Appropriations they were made only to such Spiritual persons as were qualified to Administer the Sacramental Ordinances and perform Divine Service Afterwards the Grant thereof was gradually enlarged and extended to Deans and Chapters though Bodies Politick and as such not capable of performing such Divine Services yea and which was most Ridiculous as well as Impious to Nunus which were Prioresses to some Nunnerics but not Female-Preachers as in these daies All which was under a Pretence of maintaining Hospitality and to supply all defects hereby occasioned there must be the Invention of a Vicar as the Appropriators Deputy to serve them and the Cure for which he had and hath the Tithe of Mint and Cummin and such other small ossals of Tithes as might be spared out of the weightier Granaries thereof without breach of the Laws of Hospitality thereby Sacrilegiously robbing the Church to enrich themselves Thus the poor Vicar shall have something like a certain portion of the Benefice whilst the Abbot and the Covent and their Lay-Successors shall be the Parsons and receive the main Profits and so live by the Altar without waiting on it and be Re-baptized by the Law with the name of Parsons Imparsonces This was that Anciently which we now call Appropriation which cannot be made to begin in the Parson's Life-time without his Assent and is so called because they hold the Profits ad proprium suum usum but if such Advowsons happen to be recovered by Ancient Title then and in such case the Appropriation of the Parsonage is annulled 3. So that from the Premisses it is evident That this Appropriation or Impropriation is an Annexation of an Ecclesiastical Benefice which originally was as it were in nullius Patrimonio to the proper and peculiar use and benefit of some Religious House Bishoprick Dean and Chapter Colledge c. Quod Divini juris est id nullius est in bonis Instit de
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
3 ly if he Present not within the time by Law limited then the King shall Present for that he is Patron paramount of all the Benefices within his Realms as also because the King and his Progenitors Kings of England have had Authority time out of mind to determine the Right of Patronages in this Realm in their own Courts whence lies no Appeal to any Foreign pretended Power The Rosell Summist indeed makes more Gradations in this matter as from the Patron to the Chapter from the Chapter to the Bishop from the Bishop to the Metropolitan from the Metropolitan to the Patriarch and if none such then to the Pope Sed hoc nihil ad nos part of whose happiness is an Index Expurgatorius of the last recited Premisses And although the Law is That the Ordinary shall Present in case the Patron doth not within Six months yet the Law withal is That if the Patron Present before the Ordinary put in his Clerk the Patron of right shall enjoy his Presentation And if the Ordinary surcess his time limited he loses his power as to that Presentation specially if it be devolv'd to the King And when the Presentation is in the Metropolitan he shall put in the Clerk himself and not the Ordinary and so there is no default in the Ordinary though he Present not the Clerk of the Patron if his time be past in which case there is no remedy for the Patron against the Ordinary This matter of Lapse is of very ancient practice for Mich. 3. E. 1. B. Rot. 105. Staff the Bishop of Coventry and Lichfield pleaded a Collation by Lapse Authoritate Concilii against the Prior of Landa to the Church of Patingham And 6 E. 1. Rot. Paten membra 25. in a Quare non admisit by the Abbot of St. Mary Eborum against the Bishop of Norwich the Bishop made a Title by Lapse viz. That he Collated Authoritate Concilii post Lapsum semestre c. And there afterwards in the Judgment it is said Quia tempus semestre Authoritate Concilii non incipit versus Patronum nisi à tempore scientiae mortis c. Q. what Council is here meant or intended For P. 9 E. 1. B. Rot. 51. it appears that Lapse was given per Concilium Lugdunense post tempus semestre The like also in a Writ in the time of E. 2. cited by Sir Ed. Co. 6. in Catesby's Case 62 yet in Bracton the Lapsus temporis is de Constitutione Lateranensi And yet Britton fo 225. speaks of the Tempus Semestre or the Six months according to the Council of Lions But Mr. Selden in his Book of Tithes 390. says That the Manuscripts of Breton have Lateran for Lions and in fol. 388. holds That this Lapse was received in the Laws of this Realm out of the General Council of Lateran held in the year 25 H. 2. as the Learned Serjeant Roll observes in his Abridgment on this word of Lapse where he also cites Hovenden fo 326. asserting That among the Canons of the Council of Lateran under Alex. 3. held under Alex. 3. An. 1118. in the time of King Hen. 2. there is a Canon in these words or to this effect viz Cum vero Praebendas Ecclesias seu quaelibet Officia in aliqua Ecclesia vacare contigerit vel si etiam mod◠vacant non diu maneant in suspenso sed infra Sex menses personis quae digne administrare valeant conferantur si autem Episcopus ubi ad eum spectaverit conferre distulit per Capitulum Ordinetur And before the said Council the Patron was not limited to any time but might Present at his pleasure without any Lapse Touching other Presidents of great Antiquity relating to this Subject of Lapse the Reader is here referred to that Learned Serjeant Rolle in the forecited place of his Abridgment And although according to the Gradations aforesaid the Lapse devolves from the Patron to the Bishop from the Bishop to the Archbishop from the Archbishop to the King yet if after Lapse incurr to the Metropolitan and before Collation by him made the Patron Present he may Present to the Ordinary of the Diocess without Presenting to the Metropolitan Contra H. 41 El. B. R. per Popbam for thereby he seems to redeem his neglect But yet if Lapse devolve to the King and then the Inferiour Ordinary Collate by the Lapse and his Clerk be Instituted and Inducted it seems this doth not make a Plenarty against the King to put him to his Quare Impedit but he may notwithstanding Present and oust the Clerk of the Ordinary for when Lapse incurrs to the King it cannot be taken away by the Ordinary And then when the Ordinary Collates without good Title it makes not any Plenarty against him who hath the right as the King hath to Present for a Lapse incurring to the King is not like that which incurrs to the Metropolitan But if a Patron Present and his Clerk be Instituted and remain Eighteen months without Induction in that case there doth not any Lapse incurr to the King for the King hath not any Lapse but where the Ordinary might have had it before But if a Bishop dies whereby the Temporalties are in the Kings hands if during that time the Six months pass whereby a Lapse happens the King shall have it and not the Guardian of the Spiritualties Nor doth an Admittance of a Resignation by Fraud take away the Kings Title for in Comber's Case against the Bishop of Cicester where the Issue in a Quare Impedit was If S. R. by covin between him and C and R. did Resign into the hands of the said Bishop if the King hath Title of Lapse and a Resignation be made by fraud and one Admitted this shall not take away the Kings Title for if the Kings Title appear upon Record then shall go out a Writ for the King but otherwise it is upon matter of Evidence the King doth lose his Presentation as well by resignation as by death where he hath Title to Present by Lapse and doth not except the Resignation be by Fraud And in the Case of the Queen and the Archbishop of York and Bucks it was Resolved by the Justices That a Collation although double or treble cannot be an Usurpation against the King to put him out of an Advowson 2. The Canon Law allows Two months more to an Ecclesiastical than to a Lay-Patron ere the Lapse shall be incurr'd the former having by that Law Six months to Present the latter but Four Summ. Angel tit Jus Patronat § 16. So the Law of Scotland Pars Couns par 1. c. 2. We need not enquire into the Reason of that difference or disproportion let it suffice the Laity That it was the Canonists pleasure to have it so for reasons best known to their own interest the Common Law impartially levels them both to one and the same equal standard
than the Bishop himself or other Ordinary which also must be given to the Patron personally if he live in the same County and if in another County then Publication thereof in the Parish-Church and affixed on the Church-Door will serve turn if such Notice doth express in certain as it ought to do the cause of the Deprivation c. As upon Deprivation of an Incumbent for not Reading the 39 Articles of Religion the Ordinary is to give the Patron Notice thereof which Notice ought to be certain and particular Before Lapse can incurr against a Patron Notice of his Clerks being refused by the Ordinary for Insufficiency must be given to the person of the Patron if he may be found and it is not in that Case sufficient to fix an Intimation thereof on the Door of that Church to which he was Presented D. 16 El. 327. 7. b. Adjudged 5. It is said That a Lapse is not an Interest naturally as is the Patronage but a meer Trust in Law And if the Six months be incurred yet the Patrons Clerk shall be received if he be Presented before the Church be Filled by the Lapse Observe 7 Eliz Dyer 241. for it seems by that case that the Patron should Present against the Kings Lapse for he hath dammage but for half a year And Hob. Chief Justice says That a Lapse is an act and office of Trust reposed by Law in the Ordinary Metropolitan and lastly in the King the end of which Trust is to provide the Church of a Rector in default of the Patron and yet as for him and to his behoof And therefore as he cannot transfer his Trust to another so cannot he divert the thing wherewith he is entrusted to any other purpose Nor can a Lapse be granted over as a Grant of the next Lapse of such a Church neither before it fall nor after If the Lapse incurr and then the Ordinary die the King shall Present and not the Executors of the Ordinary For it is rather an Administration than an Interest and the King cannot have a Lapse but where the Ordinary might have had it before If an Infant-Patron Present not within Six months the Lapse incurrs The Law is the same as against a Feme-Covert that hath right to Present 33 E. 3. Qua. Impedit 46. 6. In the first Paragraph of this Chapter it is said That Tempus Semestre authoritate Concilii non incipit versus Patronos nisi à tempore Scientiae mortis personae that is of the last Incumbent And so Adjuged upon a Writ in the time of E. 2. and said to be per Legem Consuetudinem Regni hactenus usitatas As if the Incumbent die beyond Sea the Six months are not computed from the time of his death but from the time of the Patrons knowledge thereof and so it was Adjudged in a Quare non admisit between the Abbot of St. Mary Eborum and the Bishop of Norwich as aforesaid For the Six months are not reckoned from the death of the Last Incumbent but from the time the Patron might according to a reasonable Computation having regard to the distance of the place where he was at the time of the Incumbents death if he were within the Realm at that time have come to the knowledge thereof for he ought afterwards to take notice thereof at his peril and not before for that he was in some other County than that wherein the Church is and wherein the Incumbent died And if the Ordinary refuse a Clerk for that he is Criminous in that case the Patron shall not have Six months to Present after Notice thereof given him but of the Avoidance The Law is the same in case of Refusal by reason of Illiterature But if the Church be void by Resignation or Deprivation the Six months shall be computed from the time of Notice thereof given to the Patron and not from the time of the Avoidance Yet if the Ordinary refuse a Clerk because he is Criminous he is to give notice thereof to the Patron otherwise the Lapse doth not incurr So likewise if he be refused for Common Usury Simony Adultery or other Notorious Crime Notice thereof ought to be given to the Patron otherwise the Lapse doth not incurr A Lay Patron ought to have Notice ere the Lapse shall incurr in case his Clerk be refused for Illiterature otherwise as to a Spiritual Patron because the Law presumes he might well know of his insufficiency before he presented him And if the Bishop who took a Resignation dies the Lapse doth not incurr to his Successor without Notice to the Patron 7. In a Quare Impedit the Defendant pleaded That he demanded of J. S. the Presentee of the Plaintiff to see his Letters of Orders and he would not shew them and also demanded of him his Letters Missive or Testimonial testifying his ability and because he had not his Letters of Orders nor Letters Missive nor made any proof of them to the Bishop he desired leave of the Bishop to bring them who gave him a week and he went away and came not again and the Six months passed and the Bishop Collated by Lapse It was Adjudged in this Case That these were no Causes to stay the Admittance of the Clerk for the Clerk is not bound understand it only at Common Law to shew his Letters of Orders and Letters Missive to the Bishop but the Bishop must try him upon Examination 8. A Parson of the Church of S. of the value of Ten pound took a Second Benefice without a Dispensation and was Instituted and Inducted and continued so for twelve years The Patron presented J. S. who was Instituted and Inducted and so continued divers years and died The Queen presented the Defendant C. ratione Lapsus in the time of A. who was Instituted and Deducted B. the Patron brought a Quare Impedit against the Ordinary and C. It was held by the Justices That the Writ did well lie and that Tempus occurrit Reginae in this Case and that last Clerk should be removed And it was held by the Justices That upon a Recovery in a Quare Impedit any Incumbent that comes in pendente Lite should be removed 9. In the Case between Cumber and the Bishop of Chichester it was Resolved 1 If Title of Lapse accrues to the King and the Patron Presents yet the King may Present at any time as long as the Presentee is Parson but if he dies or Resigns before the King Presents he hath lost his Presentment 2. If the King hath Title by Lapse because a Parson hath taken a Second Benefice if the Parson dies or Resigns his First Benefice and the Patron Presents whose Presentee Resigns upon Covin and dies the King hath lost that Presentment CHAP. XXIII Of Collation Presentation and Nomination 1. What Collation is and how it differs from Presentation 2. Collation
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
the First were vnder the annual value of Eight pounds or sine cura And what persons are qualified either for the Granting or receiving Pluralities appears by the Stat. of 21 H. 8. c. 13. In which there is not any limitation of Number of Chaplains to be retained by the King Queen and Prince and other the King's Children for which reason they may retain as many Chaplains as they please and each of them qualificable by a Dispensation for Plurality But if either of the King's Chaplains be Sworn of his Majesties most Honourable Privy Council such may purchase a Dispensation to hold Three Benefices with Cure of Souls The Persons specially qualified by Dispensations for Pluralities are either 1 Such as are retained as Chaplains to Persons of Honour Or 2 Such as are qualified thereto in respect of their Birth Or 3 Such as are dignified with some certain Degrees in either of the Universities of this Kingdom In reference to the first of these every Archbishop and Duke may have Six Chaplains Marquess and Earl Five every Viscount and other Bishop Four Lord Chancellor Three Knight of the Garter Three Baron Three Dutchess Marchioness Countess and Baroness being Widows Two Treasurer and Controller of the Kings House Two the Kings Secretary and Dean of his Chappel the Kings Almner and Master of the Rolls Two the Chief Justice of the Kings Bench and Warden of the Cinque Ports One In reference to the Second qualification viz. By Birth the Brothers and Sons of all Temporal Lords and of Knights born in Wedlock may purchase Dispensations to hold Two Parsonages c. with Cure of Souls In reference to the Third all Doctors and Batchelors of Divinity Doctors and Batchelors of Law Presented to any of these Degrees not by grace only but by any of the Universities of this Realm may purchase and hold as aforesaid Vid. Statute 21 H. 8. cap. 13. 4. Although by the Letter of which Act the First Living is not void until Induction into the Second the words being If the party be Instituted and Inducted in possession of the Second Living that then the first shall be void yet to avoid the great inconveniency as Sir Simon Degge observes in his Parsons Counsellor that otherwise would ensue it has been held That the First Living is void upon the bare Institution into the Second and so it should seem the Law was before the making of this Act where the party had no Dispensation The sufficiency of qualification for Plurality relates as well to the Dispensation as to the Person for if the Dispensation after its being had from the Master of the Faculties be not confirmed under the Great Seal of England other qualifications will not suffice Nor are the supernumerary Chaplains of any person of Honour retained by him above the Number allowed by the Statute qualified for Plurality Co. 4. 90. B. versus the Bishop of Gloucester and Saveacre Anders More 561. The death attainder degradation or displacing of a Chaplains Lord or his discharging his Chaplain unqualifies him for a Plurality of incompatible Livings otherwise of the Chaplain of a Dutchess Marchioness Countess or Baroness in case of After-marriage A double Capacity in one and the same person of Honour to qualifie his Chaplains doth but capacitate him to qualifie his Number of Chaplains only according to his best qualification A Person of Honour having retained his full Number of Chaplains and discharging them after their preferment may not during their Lives qualifie others 5. The Question was formerly put Whether the 8 l. yearly value intentioned in the Statute of 21 H. 8. c. 13. shall be understood according to the Taxed value in the Kings Books or according to the very true value of the Benefice Mr. Hughes in his Parsons Law reports a Case in King James's time wherein this Question was debated pro con the Judges equally divided the Case for difficulty and variance of Opinion adjourned and afterwards as he there speaks de auditu by order of the King compounded In that Case Two Presidents it seems were shewed in proof of that Opinion which inclined to have it taken according to the very value of the Benefice notwithstanding when the same point came again several years after into question the Court then seemed to incline against the Opinion which was for the very value of the Benefice But says he the Case was not then resolved or adjudged but remaineth a Question undetermined Quaere the Law Foster and Walmesley Justices held the value should be taken according to the Taxed value as in the Book of First-Fruits but Warburton and Coke Chief Justice Contra. It hath been Resolved in Holland's Case and likewise in Digby's Case Rep. 4. and often before since the Council of Lateran An. Do. 1215. That if a man have a Benefice with Cure whatever the value be and is Admitted and Instituted into another Benefice with Cure of what value soever having no Qualification or Dispensation the First Benefice is ipso facto so void that the Patron may Present another to it if he will But if the Patron will not Present then if under the value no Lapse shall incurr untill Deprivation of the first Benefice and Notice But if of the value of eight pounds or above the Patron at his peril must Present within Six months by the Statute of 21 H. 8. And in that Case of Digby it was adjudged That when a man hath a Benefice with Cure above eight pounds and afterwards taketh another with Cure and is Presented and Instituted and before Induction procures the Letters of Dispensation that this Dispensation comes too late For by the Institution Ecclesia plena consulta existit against all persons except the King for every Rectory consisteth upon Spiritualty and Temporalty And as to the Spiritualty viz. Cura animarum he is compleat Parson by the Institution for when the Bishop upon Examination had admitteth him able then he doth Institute him and saith Instituo te ad tale Beneficium habere curam animarum of such a Parish accipe curam tuam c. Vide 33 H. 6. 13. But touching the Temporalties as the Glebe-Lands c. he hath no Freehold in them until Induction For by the General Council of Lateran Anno Dom. 1215. it appeareth That by the acceptance of two Benefices the first is void Aperto jure for upon this Council are the Books of the Common Law in this Caâ—e founded And it was in this Case Resolved That this was an Acceptance of a Benefice cum Cura within the Statute of 21 H. 8. Institution is an Acceptance by the Common Law A man was Presented to a Church with a Vicarage endowed the Parson accepted of a Presentation to the Vicarage without Dispensation Whether this were a Plurality by the Canon Law and by the Statute of 21 H. 8. was the Question Hobart Chief Justice was of Opinion That
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
it shall be lawful for the King's Chaplains to whom it shall please the King to give any Benefices or Spiritual Promotions to what number soever it be to accept and receive the same without incurring the danger penalty and forfeiture in this Statute comprised upon which the Question was Whether by this last Proviso a Chaplain of the King having a Benefice with Cure above the value of eight pounds per Annum of the Presentation of a Common person might accept another Benefice with Cure over the value of eight pounds also of the Presentation of the King without Dispensationâ— The words of the Statute by which the first Church is made void are That if any Parson having one Benefice with Cure of Souls being of the yearly value of eight pounds or above accept or take any other with Cure of Souls and be Instituted and Inducted into possession of the same that then and immediately after such possession had thereof the first Benefice â—hall be adjudged in the Law to be void Vide Holland's Case 4 Co. 75. â— This Case was not argued but the point only opened by Dodesidge Serjeant of the King for the Plaintiff 17. A. was Parson of M. which was a Benefice with Cure of the value of eight pounds and was Chaplain to the Earl of S. and obtained a Dispensation to accept of another Benefice modo sit within Ten miles of the former which was confirmed under the Great Seal He accepted of another Benefice Seventeen miles distant from the first and was Instituted and Inducted both Benefices being within the Diocess of Lincoln The Archbishop in his Visitation Inhibited the Bishop of Lincoln not to execute any Jurisdiction during his Visitation It was found that the Patron had neglected to present to the first Benefice within the Six months and that the Bishop of Lincoln within the second Six months Collated one to the first Benefice who was Admitted and Inducted The points were Whether 1 Si modo was a Condition in this Licence and made the first Benefice void when he took the Second 2 Whether the Bishop Collating during the time of the Archbishop's Visitation and after his Inhibition was good Resolved That in the principal Case Si modo should not be taken for a Condition and that the Benefice should not be void quoad the Patron as the taking of a second Benefice is by the Statute of 21 H. 8. and then the second point of the Collation by the Bishop in the time of the Visitation and also the Inhibition will not be material 18. Quare Impedit pretending the Church void for Plurality The Defendant said he was Chaplain to the Lord M. and pleaded a Dispensation from the Archbishop of Canterbury and Confirmation thereof In the Letters of Dispensation the words were mentioning the two Benefice to be of small value unimus anneximus incorporamus the second Benefice to the first without the word of Dispensamus thereof The Court held it a sufficient Dispensation for it is not of necessity to have the word Dispensamus and if the Circumstances prove it it is sufficient 19. In the Case between Whetstone and Higford it was held by the Justices That if the Queen retains a Chaplain by word only yet he is such a person as may have a Plurality within the Statute of 21 H. 8. of Pluralities and is a person able to make a Lease And in a Quare Impedit it was Resolved That if there be two Parsons of one Church and each of them hath the entire Cure of the Parish and both the Benefices be of the value of eight pounds and the one dieth and the other be presented it is a Plurality within the Statute of 21 H. 8. 20. The Countess of K. being a Widow retained two Chaplains and after retained a third the third purchased a Dispensation to have two Benefices with Cure and he was advanced accordingly whereof the first was above the value of eight pounds It was adjudged in this Case and afterwards affirmed in a Writ of Error That he was not lawfully qualified within the Statute of 21 H. 8. by which the first Benefice by acceptance of a second was void and that the Title did accrue to the Queen to present for it was Resolved That the Statute gives power to a Countess to retain two Chaplains and no more and when the Statute is executed she cannot retain a third Chaplain and the Retainer of the third cannot divest the capacity of Dispensation which was vested by her Retainer in the two first Chaplains 21. A Parson having a Benefice of the value of eight pounds took a second Benefice without Dispensation being above the value of eight pounds The Court took no consideration of the Statute of 26 H. 8. and the value there mentioned but regarded only the true value of the Benefice 22. For Title to an Avoidance the Statute of 21 H. 8. was pleaded touching the taking of a second Benefice with Cure Issue was upon the Induction by which it seemed to be admitted That Admission and Institution did not make the first Benefice void without Induction 23. Quare Impedit brought the Defendant pleaded the Statute of 21 H. 8. cap. 13. of Pluralities that the last Incumbent had a Benefice with Cure of the value of eight pounds and took another Benefice and was Inducted 1 Eliz. upon which the Queen did present the Defendant by Lapse The Plaintiff shewed the Proviso in the Statute of 25 H. 8. cap. 21. That Chaplains qualified might purchase Dispensations and take two Benefices and that 1 Eliz. before the Parliament he purchased a Dispensation from the Pope and after he took the second Benefice and died The Question was Whether before the Statute of 25 H. 8. the Pope might grant Dispensations It was Resolved he could not for that the King 's of England had been Sovereigns within their Realms of the Spiritualties and the Justices held That the Dispensation in question was made 1 Eliz and so out of the Statute of 25 H. 8. cap. 21. and that this Dispensation to retain a second Benefice was against the Statute of 21 H. 8. cap. 13. 24. The Countess of K. had two Chaplains by Patent a third had no Patent of Chaplainship but he was first Retained and took two Benefices by Dispensation It was Adjudged he was lawful Chaplain for the Patent is not of necessity but only in case where he hath cause to shew it and here he hath no cause to shew it because her Retainer was good without a Patent 25. The Case between Robins Gerrard and Prince was in effect this viz. A man is Admitted Instituted and Inducted into a Benefice with Cure of the value of eight pounds and afterwards the King presents him to the Church of D. which is a Benefice with Cure and he is Admitted and Instituted The Archbishop grants him Letters of Dispensation for Plurality which Letter
consent of Five others of the said Commissioners his Companions and namely which Deprived him It was not sound that the Commissioners were the Natural born Subjects of the Queen as the Statute Enacts that they should be And it was moved That the Deprivation was void 1 Because that whereas the Commission is to them or any Three of them of which the said Bishop to be one amongst others it ought to have been the Sentence of them all according to the Authority given to them which is equal and not of one with the assent of the other 2 Because it is not found that the Commissioners are the Natural born Subjects of the Queen as by the words of the Statute they should be 3. Because the punishment which the Statute provides for those of the Ministry which deprave this Book is to lose the profits of all their Spiritual promotions but for a year and to be Imprisoned by the space of Six months and not to be Deprived till the Second offence after that he had been once committed and therefore to deprive him for the First offence was wrongful and contrary to the Statute But the whole Court for the Form of the Deprivation it is that which is used in the Ecclesiastical Courts which alwaies names the chief in Commission that are present at the beginning of the Sentence and for the other they mention them only as here but of their assent and consent to it and in such cases we ought to give credit to their Form and therefore it is not to be compared to an Authority given at Common Law by Commission And it is to be intended that the Commissioners were the Natural born Subjects of the Queen unless the contrary appear But here at the beginning it is found That the Queen Secundum tenorem effectum Actus praedict had granted her Commission to them in causis Ecclesiasticis and therefore it appeareth sufficiently that they were such as the Statute wills them to be And for the Deprivation they all agreed that it was good being done by Authority of the Commission for the Statute is to be understood where they prosecute upon the Statute by way of Indictment and not to restrain the Ecclesiastical Jurisdiction being also but in the Affirmative And further by the Act and their Commission they may proceed according to their discretion to punish the Offence proved or confessed before them and so are the words of their Commission warranted by the Clause of the Act. And further the Ecclesiastical Jurisdiction is saved in the Act. And all the Bishops and Popish Priests were deprived by virtue of a Commission warranted by this Clause in the Act. Vid. Hill 33 Eliz. Rot. 315. 10. Before many Noble-men Archbishops and Bishops and the Justices and Barons of the Exchequer 1 agreed That the Deprivation of Minsters for Non-conformity to the last Canons was lawful by the High Commissioners For by the Common Law the King hath such a power in Causes Ecclesiastical and it is not a thing de novo given by the First of Eliz. For that is Declaratory only c. and the King may delegate it to Commissioners And the King without a Parliament may make Constitutions for the Government of the Clergy and that such a Deprivation ex officio without Libel is good 2. That the Statute of 5 H. 5. c. 4. is to be intended when they proceed upon Libel and not when ex officio Read the Statute 3. When their Petition is Subscribed by a great number with intimation That if the King denies their Suit that many thousands of his Subjects shall be discontented That this is an Offence Finable at discretion and is near to Treason by raising Sedition by Discontent c. Vid. More 's Rep. Trin. 2 Jac. in the Star-Chamber 11. By the Statute of 13 Eliz. cap. 12. it is Enacted That every person c. to be Admitted to a Benefice with Cure except that within Two months after his Induction he publickly Read the said Articles in the same Church whereof he shall have Cure in the time of Common Prayer there with declaration of his unfeigned assent thereto c. shall be upon every such default ipso facto immediately deprived Then follows afterwards a Proviso relating to this clause viz. Provided alwaies That no Title to conferr or Present by Lapse shall accrue upon any Deprivation ipso facto but after Six months after Notice of such Deprivation given by the Ordinary to the Patron Thus the Patron immediately upon such Deprivation may Present if he please and his Clerk ought to be Admitted and Instituted but if he doth not no Lapse incurrs until after Six months after Notice of the Deprivation given to the Patron by the Ordinary who it seems is to supply the Cure until the Patron Present In the last Case of the Lord Dyer 23 El. it was Resolved That where a man having a Living with Cure under value accepted another under value also having no Qualification or Dispensation and was Admitted Instituted and Inducted into the Second but never Subscribed the Articles before the Ordinary as the Statute of 13 of El. requires Upon Question whether the First Living vacavit per mortem of him or not the Court Resolved That the First Living became vacant by his death and not by accepting the Second because he was never Incumbent of the Second for not Subscribing the Articles before the Ordinary whereby his Admission Institution and Induction into the Second Living became void as if they had never been This differs from the Case of not Reading the Articles within Two months after Induction For the not Subscribing the Articles makes that he never was Incumbent of the Second Living and consequently no cause of losing the First but the not Reading the Articles within Two months after Induction doth cause a deprivation of that whereof he was Incumbent For as an Incumbent that without qualification or dispensation doth take a Second Living doth thereby lose the First so the same Incumbent for not Reading the Articles within Two months after his Induction into the Second may lose the Second and thereby lose both viz. the First by taking a Second without qualification or dispensation and the Second for not Reading the Articles as aforesaid whereof he was Compleat Incumbent by Admission Institution and Induction of the Second Living full Two months before he lost it for not Reading the Articles 12. Parker being Parson of a Church was deprived by the High Commissioners for Drunkenness and moved for a Prohibition but it was not granted and he was directed to have Action for the Tithe and upon that the validity of the Sentence shall be drawn in question If a man be Admitted Instituted and Inducted to a Church and afterwards is deprived for that he was Instituted contrary to the course of the Ecclesiastical Law such Sentence of deprivation is void at the Common Law for that it is
was no Discharge of the Tithes of the Copyhold Lands And in this Case it was also Adjudged That a Farmer of Lands might Prescribe in Modo Decimandi but not in non Decimando The Statute of 31 H. 8. gave all Colledges Dissolved to the Crown in which there is a Clause That the King and his Patentees should hold Discharged of Tithes as the Abbots held Afterwards the Statute of 1 Ed. 6. gave all Colledges to the Crown but there is in it no Clause of the Discharge of Tithes The Parson Libelled in the Ecclesiastical Court and the Farmer of the Lands of the Colledge of Maidstone in Kent brought a Prohibition upon the Statute of 31 H. 8. The Court was clear of Opinion That the King had the Lands of the Colledge by the Statute of 1 Ed. 6. and not by the Statute of 31 H. 8. But the Justices doubted the Lands coming to the King by that Statute whether they should be Discharged of Tithes by the Statute of 31 H. 8. there being no Clause in the Statute of 1 Ed. 6. for Discharge of Tithes But it was Resolved by the Justices That Unity without Composition or Prescription was a sufficient Discharge of Tithes by the Statute of 31 H. 8. The Templers were Dissolved and their Possessions and Priviledges by Act of Parliament 17 Ed. 2. transferred to St. Johns of Jerusalem and their Possessions by Act of Parliament 32 H. 8. cap. 24. given to the King It was Resolved That the King and his Patentees should pay Tithes of those Lands although the Lands propriis sumptibus excolantur because the Priviledges to be Discharged of Tithes were proper to Spiritual persons and ceased when the person Spiritual was removed And the Statute of 31 H. 8. of Dissolutions did not extend to such Lands as came to the King by Special Act of Parliament as those Lands of St. Johns of Jerusalem did And Mich. 6. Jac. C. B. in a Case de Modo Decimandi it was said That one may be Discharged of Tithes five waies 1 By the Law of the Realm viz. the Common Law as tithes shall not be paid of Coles Quarries Bricks Tiles c. F. N. B. 53. and Reg. 54. nor of the After-pasture of a Meadow c. nor of Rakings nor of Wood to make Pales or Mounds or Hedges c. 2 By the Statutes of the Realm as 31 H. 8. 13. 45. Ed. 3. c. 3 By Priviledge as those of St. Johns of Jerusalem in England the Cistertains Templers c. as appears 10 H. 7. 277. Dyer 4 By Prescription as by Modus Decimandi annual recompence in satisfaction 5 By real Composition By all which it appears that a man may be Discharged of payment of Tithes yet a Lay-man ought not to prescribe in non Decimando albeit the may in modo Decimandi And this in effect agrees with Tho. Aquinas in his Secunda Secundae Quaest 86. art ult vid. Dr. Stu. lib. 2. c. 55. fo 164. And the Causes why the Judges of the Common Law permit not the Ecclesiastical Judges to try Modum Decimandi being pleaded in their Courts is because that if the Recompence which is to be given to the Parson in satisfaction of his Tithes doth not amount to the value of this Tithes in kind they might overthrow the same And that appears by Lindwood Constit Mepham de Decim c. Quoniam propter verb. Consuetudines For this Reason it is said a Prohibition lies and therewith agrees 8 Ed. 4. 14. vid. 7 Ed. 6. Dyer 79. and 18 Eliz. Dyer 349. In a Prohibition upon a Suit in the Ecclesiastical Court by the Defendant the Vicar of D. for Tithes A Prohibition prayed upon his Plea thereof a Modus Decimandi to pay so much yearly to the Parson of Dale in Discharge of his Tithes and the same Plea there disallowed The whole Court agreed that this Modus between him and the Parson will not discharge him from payment of Tithes as to the Vicar and therefore by the Rule of the Court a Consultation was granted Also the Court was of Opinion That where a Bishop holds Lands discharged of Tithes and he makes a Feoffment of the Land the Feoffee shall be discharged of Tithes and the like if the King hath ancient Forest Lands discharges of Tithes and the King grants this Land the Grantee is discharged of Tithes And it is a General Rule That he which may have Tithes may be Discharged of Tithes So long as the Land is occupied by him who hath the Fee-simple which did formerly belong to the Order of Cistertians it shall pay no Tithes but if he lett it for years or life the Tenant shall pay Tithes For anciently there were many large Estates wholly exempted from paying Tithes as Land belonging to the said Cistertian Monks to the Knights Templers and Hospitallers As in the Earl of Clanrickard's Case who Libelled in the Ecclesiastical Court for the Tithes of Hay of a certain Meadow against Dame Denton who pleaded That the Prior of A. was seised of that Meadow as parcel of the Possessions of the Priory and that they held it discharged time out of mind c. whereupon Issue was joyned upon a Prohibition and it was found for the Plaintiff for that the Land was only discharged when it was in the hands of the Priory and not when it was in the hands of their Farmers and they were of the Order of Cistertians whereupon a Consultation was granted And now a new Prohibition was prayed for that in the Ecclesiastical Court they had added to the former Libel when the Statute of 50 Ed. 3. cap. 4. is That whereas a Consultation is duly granted upon a Prohibition that the same Judge may proceed in the same case by virtue of the former Consultation notwithstanding any other Prohibition Provided alwaies that the matter in the Libel of the said cause be not altered enlarged or otherwise changed Dr. Pope Doctor of the Civil Law said That there was not any enlarging or changing in substance of the Libel in question for whereas in the former Libel it was That they had used to pay Tithes time out of mind now in the second Libel is added That although the Prior was discharged yet they viz. the Farmers have paid Tithes for 20 30 or 40 years and time out of mind Montague Ch. Justice said That it seem'd that that was not an alteration but Doderidge and Houghton Justices held That that was an alteration of the Libel for now by that last Libel They could fetch them in for Tithes though they were discharged in the hands of the Abbot and for that the Tithes had been paid for 20 30 or 40 years since the Statute aforesaid the which is a sufficient time to make a Prescription according to the Law of the Civilians they would charge the Land with Tithes in whose soever hands they are when by the Statute it ought to be discharged only in
Prohibition for that the Law shall decide thereupon it was between Dawes and Huddlestone No Tithes shall be paid in kind without a Custome for Fish taken in the high Sea out of any Parish Hill 14 Car. B. R. between Long and Dircell per Curiam and Prohibition granted accordingly And Justice Jones said that on an Appeal to the Delegates out of Ireland in the Lord Desmond's Case it was Agreed That for such Fish so taken only Personal Tithes are due deductis expensis Likewise no Tithes in kind shall be paid de jure for Fish taken in a Common River which is not enclosed as in a Pond enclosed for that they are Ferae naturae although they are taken by one who hath a severed Piscary there and although the place where they are taken be within the Parish of that Parson who claims them for it is a Personal Tithe in which Tithes ought to be paid deductis Expensis Pasch 15 Car B. R. between Gold and Arthur and others Prohibition was granted where the Suit was for Tithes of Salmon in the River of Exe. Mich. 15 Car. between Whislake and the said Arthur and others the like Prohibition granted on the same matter between other parties And in the Case of a Prohibition it was Resolved That Tithe shall be paid for Fish taken in the Sea which is not within any Parish and they shall be paid to the Parson of the Parish where the Fish is landed Flax pays a Predial Tithe payable when dressed up Coke Mag. Char. 649. The Tithes of Flax are Minutae Decimae Mich. 14 Car. B. R. in Noah Webb's Case Forest-Lands that lie in no Parish or between two Parishes and anciently such are not Tithable by the King or his Patentees but if the Forest be in a Parish and Land therein which is Tithe-Free if the Forest happen to be disforested it shall pay Tithes in kind Crompt Jurisd 52. Bacon Chief Justice at Sarum-Assize the Case was A. Lessee for years of the Earl of H. prayed a Prohibition against the Vicar of L. to stay a Suit in the Ecclesiastical Court for Tithes because the Lands out of which the Tithes were demanded were parcel of the Forest of B. whereof the King was seised in right of his Crown and he and all his Predecessors held the said Land discharged of Tithes and shewed that the King had granted the said Forest to the Earl of Hertford in Fee and so he ought to have them discharged of Tithes In that Case it was held by the Court That it was only a Priviledge annexed to the Crown during the time that the Land was in the Crown but the Court doubted whether the Patentee might have such Priviledge But yet de bene esse the Prohibition was granted If Tithes do lie in any Forest as in the Forest of Windsor Rockingham Sherwood or other Forest which is not any Parish the King shall have them by his Prerogative and not the Bishop of the Diocess or Metropolitan of the Province as some have thought But yet it seems by 22 Ass 25. if there be cause of Suit for such Tithes against the parties who ought to pay the same such Suit might be brought in the Ecclesiastical Court But if a Stranger takes away such Tithes from the Parson or Vicar there for such Trespass the Suit may be in the Temporal Court as the same may be for taking away other goods in the like case Adjudg 15 Car. B. R. Fowl taken by a Faulkner who hawks for his pleasure shall not pay Tithe but if a Fowler kill Fowl and make a profit of them it hath been held that he shall pay a Personal Tithe for them Pasch 15 Car. Adjudg acc Fruits of Trees as Apples Pears c. are Tithable presently upon their gathering and are Predial Tithes for the subtraction whereof the Parishioner is impleadable Stat. 2 Ed. 6. c. 13. Fruits of Trees Apples Pears c. Mast of Oak Beech c. are Predial Tithes Coke Magn Chart. 649. The Fruits of Orchards and Gardens are Tithable in their proper kinds and to be paid when they are gathered unless there be some Modus or Rate-Tithe paid in lieu thereof Furse is Tithable and pays a Predial Tithe unless the Owner thereof can prescribe or prove a Custome of Tithing Milk or Calves of the Cattle on the ground where the Furse grows Mich. 29. Eliz. B. R. Vid. Heath G GArdens are Tithable as other Lands and therefore the Herbs which grow therein pay Tithes in kind Also Plants Seeds Woad Saffron Hemp Rape c. pay Tithes in kind unless the Parson make an Agreement for the same otherwise the Tenth part must be set forth for the Parson when the Owner receives his Nine parts Mich. 8. Jac. C. B. in Baxter's Case Trin. 9 Jac. B. R. The whole Court Glebe is a portion of Land Meadow or Pasture belonging to or parcel of the Parsonage or Vicarage over and above the Tithes If it be Demised by the Parson to a Lay-man it pays Tithe otherwise if he keep it in his own hands For Glebe kept in the Vicars own hands pays no Tithe to the Parson Impropriate it is otherwise if it be in the hands of his Lessee by whom it is Tithable if lett by a Parson Impropriate And although Glebe-Lands are not properly Tithable because Ecclesia Ecclesiae Decimas non debet solvere yet if Glebe-Lands be leased out the Parson the Lessee shall pay the Small Tithes arising out of such Glebe-Lands to the Vicar that hath Small Tithes upon his endowment as in Blinco's Case And yet in that case the Vicar Libelled in the Ecclesiastical Court to have Tithes of the Glebe of the Parson and a Prohibition was granted for that the Glebe shall pay no Tithe Notwithstanding which if a Parson lease his Glebe-Lands and do not withal Grant the Tithes therof the Tenant shall pay the Tithes to the Parson Likewise if a Parson sow his Glebe-Land and then Lease the same the Tenant shall pay the Tithes of this Corn to his Landlord the Parson Yet if a Parson sow his Glebe and die before Severance some have held that his Executors shall not pay Tithes of this Corn. And albeit where Glebe-Lands are leased out by the Parson the Lessee shall as aforesaid pay the Small Tithes thereof to the Vicar that hath the Small Tithes upon his Endowment yet he shall not have the Small Tithes arising upon such of the Parsons Glebe-Lands as the Parson keeps in his own hands Likewise on the other hand it hath been held That the Vicar upon a general Endowment shall not pay Tithes of his Glebe to the Parson or of the Fruits that arise from the same and that for the same reason aforesaid Quia Decimas Ecclesia Ecclessae reddere non debet But the Lessee of the Parsons Glebe shall pay him the Tithes thereof to this purpose the Case was A Parson
had before are Bastards at the Common Law and Muliers by the Civil Law If a Man hath Issue by a Woman and after marry the same Woman the Issue by the Common Law is Bastard and Mulier by the Ecclesiastical Law Likewise if a man espouse a Woman bigg with Child by another Man and within three dayes after she is delivered of Child by the Common Law this is a Mulier and by the Ecclesiastical Law a Bastard If a Woman Elope and hath Issue in Adultery such Issue is a Mulier at the Common Law and a Bastard by the Ecclesiastical Law yet if the Woman continue in Adultery and hath Issue such Issue are Bastards even by the Common Law But by the Law of the Land a man may not be reputed a Bastard who is born after Espousals unless there be some special matter in the Case as aforesaid But if a man who hath a wife doth during her life take another wife and hath Issue by her such Issue are Bastards by both the Laws for the second Marriage is void 20. A Divorce causa Praecontractus doth Bastardize the Issue so also doth a Divorce causa Consaguinitatis likewise if the Divorce be Causa Affinitatis it doth Bastardize the Issue and the Law is the same in case the Divorce be causa Frigiditatis A Man hath Issue a Bastard and after marries the same Woman and hath Issue by her divers Sons and then deviseth all his Goods to his Children Q. whether the Bastard shall take by the devise But if the Mother of the Bastard make such a devise it is clear the Bastard shall take because he is known to be Child of the Mother 21. B. contracted himself to A. afterwards A. was Married to F. and cohabited with him whereupon B. sued A. in the Court of Audience and proved the contract and Sentence was there pronounced that she should Marry the said B. and cohabit with him which she did and they had Issue C. B. and the Father died It was argued by the Civilians that the Marriage betwixt B. and A. was void and that C. B. was a Bastard But it was resolved by the Justices that C. the Issue of B. was legitimate and no Bastard 22. The Case was wherein a Man was divorced causa Fridigitatis and afterwards took another Wife and had Issue it was argued by the Civilians and also by the Justices whether the Issue were Bastard or not it was adjudged that the Issue by the second Wife was not a Bastard For that by the Divorce the Marriage was dissolved à vinculo Matrimonii and each of them might Marry again But admit that the second Marriage was voidable yet it good till it be dissolved and so by consequence the Issue born during the Coverture is a lawful Issue 23. Upon an information in the Castle-chamber in Ireland against the Bishop of K. and C. B. and others that by Practice and Combination and by undue course of proceedings they endeavoured to prove the said C. B. who was ever before reputed a Bastard to be the legitimate or lawful Son and Heir of G. B. Esq to the disherison and defamation of E. B. who was the sole Daughter and Heir of the said G. B. And upon Oier of this cause the Case appear'd to be this viz. About twenty six years before the exhibiting of this Bill the said G. B. had Issue the said C. B. on the Body of one J. D. who during the life of G. B. was not reputed his Wife but his Concubine and the said C. B. for all the time aforesaid was only accounted the natural Son of G. B. but not for legitimate Afterwards viz. sixteen years after the birth of C. B. his Mother being then living G. B. took to Wife a Lady of good Estate and Reputation with the assent of her Friends by whom he had Issue the said E. B. and died After the death of the said G. B. the said C. B. his reputed Son nor his Mother who was yet living said nothing by the space of nine years but at last they practiced and combined with the said Bishop of K. being of their Kin and with many others to prove the legitimation of the said C. B. by an irregular and undue course to the intent to bastardize and disinherit the said E. B. according to which practice and combination the Bishop without any Suit commenced or moved in any of the Kings Temporal Courts or any Writ directed to him to certifie Bastardy or Legitimation in that Case and which is more without any Libel exhibited in his Ecclesiastical Court touching that matter of his own will and pleasure privately and not convocatis convocandis nine years after the death of the said G. B. took the depositions of many Witnesses to prove that the said G. B. twenty nine years before had lawfully Married and took to Wife the said J. D. Mother of the said C. B. and that the said C. B. was the legitimate and lawful Son and Heir of the said G. B. And these depositions so taken the said Bishop caused to be engross'd and reduced into the form of a solemn Act and having put his Signature and Seal to that Instrument delivered the same to C. B. who published it and under colour of that Instrument or Act declared himself to be the Son and lawful Heir of the said G. B. c. And for this practice and misdemeanour the said Bishop of K. and others were censured and thereupon these points were resolved 1. That although all Matrimonial causes have of a long time been determinable in the Ecclesiastical Courts and are now properly within the jurisdiction and cognizance of the Clergy yet ab initio non fuit sic For causes of Matrimony as well as cause Testamentary were heretofore civil Causes and appertaining to the civil Magistrate as is well known to all Civilians until the Christian Emperors and Kings as an honour to the Prelates of the Clergy did grant and allow unto them the cognizance and jurisdiction of these Cases And therefore the King of England who is and of right ever was the Fountain of all Justice and Jurisdiction in all Causes as well Ecclesiastical as Civil within his own Dominions although that he allow the Prelates of the Church to exercise their several Jurisdictions in those Causes which properly appertain to their cognizance yet by the Rules of the Common Law he hath a superintendency over their proceedings with power of direction how they shall proceed and of restraint and correction if they do not proceed duly in some cases as is evident by the Writs of several natures directed to Bishops by which the King commands them to certifie Bastardy Excommunication Profession Accouplement en Loyal Matrimony De admit Clericis de Cautione admittenda c. as also by the Writs of Prohibition Consultation and Attachment upon a Prohibition 2. It was resolved that
should be tried in the Ecclesiastical Court or by the Common Law the point was not resolved Note there Simony is defined to be studiosa voluntas emendi vel vendendi Spiritualia vel Spiritualibus annexa and it is either Mentalis vel Conventualis of both which the Ecclesiastical Law may Judge but the Temporal Court only of Conventual Simony 31. In Sir William Boyers Case for a Prohibition to the High Commission Court for their examining there upon Oath in Case of Simony it was said by Coke Chief Justice that Simony is worse than Felony it is an enormous offence if money be paid for to present one to a Benefice although it be not paid to the Patron neither had he any knowledge of it yet the Incumbent for this shall be avoided and the Patron also shall lose his presentation pro hac vice The Statute of 31 Eliz. cap. 6. is so strongly penn'd against the Incumbent that if the Patron be privy unto it he shall also be punished an Action of Debt was brought in the C. B. the Defendant in Barr pleaded that the same was entered for payment of money for Simony yet the Bond was held good and we are not to take any notice of Simony this being punishable in the Ecclesiastical Court and if they there meddle only pro salute Animae they are not then to be prohibited Otherwise it is when they will there examine the person upon an Article tending to the Title of the Patronage there in such case a Prohibition lies 32. In case of the King against Zakar and others It is said that if one be presented by Simony and the same person afterwards obtain a presentation from the King this is not good for he is now a disabled person to take this Benefice he hath a leprosie upon him by the Statute of 31 Eliz. cap. 6. Like unto that of Gehazi And Coke Chief Justice there declar'd that notwithstanding the King saith that the said Incumbent shall still continue yet the King shall have the next presentation 33. The Lord Winsor seized of an Advowson granted the next avoidance thereof to Doctor G. the Church void R. F. the Father of H. F. dealt with Doctor G. to permit the Lord Winsor to present H. F. who know not of the agreement who was Presented Instituted and Inducted accordingly Resolved that this was Simony and that the King was to present by the Statute of 31 Eliz. The King presented J. S. who was Instituted and Inducted R. F. the Father sued J. S. before the High Commissioners for Misdemeanors and procured him to be deprived and Ten days after procured a Grant of the next avoidance to J. N. and after the deprivation within Ten days procured the said J. N. to present the said H. F. c. Resolved that the said presentation of the said H. F. was meerly void and that he was a Person disabled by the express words of the Statute to accept of that Benefice 34. For a Prohibition upon a Suit for Tithes supposing the Parson had come in by Simony and thereby the Church void and the Tithes not belonging to him it was resolved by the Court a Prohibition did not lie for that Simony might more aptly be tried in the Ecclesiastical Court 35. The Incumbent of a Church being sick the Father contracts with the Patron in the presence of his Son for the next avoidance for the Son and agreed to give him One hundred pounds The Grant is made the Incumbent died the Son is Presented Instituted and Inducted being sued for Simony in the Ecclesiastical Court he prays a Prohibition and alledges the General Pardon 39 Eliz. which is after the Institution and Induction wherein Simony is not excepted In this Case it was resolved 1. That although the Pardon discharges the punishment of Simony yet he may be examined of it by the Ordinary and deprived for it But it was 2 Resolved in this Case there was no Simony for the Father might buy the next avoidance and present his Son and it is not Simony in any to buy an Advowson therefore the Prohibition was granted 36. In Debt upon an Obligation to perform Covenants That T. B. Son of W. B. should marry A. the Defendants Daughter In consideration of which marriage the Defendant amongst other Covenants Covenanted that he would procure the said T. B. to be Presented Instituted and Inducted into such a Benefice upon the next avoidance of the Church and the breach was assigned for non performance of the said Covenant in procuring him to be Admitted Instituted and Inducted It was demurred to by the Defendant because the Covenant is against Law being a Simoniacal Agreement and a Bond for performance thereof is not good Resolved it it had appeared to have been that in consideration of the Marriage of his Son he would procure him to be Admitted and Instituted into such a Benefice that had been a Simoniacal Contract and had avoided the Obligation but here this Covenant is not in consideration of the former Covenant nor depending thereon but it is a meer distinct Covenant of it self and independent upon the former and without a special averring or shewing that it was a Simoniacal Contract it shall not be intende but it may be a Covenant upon a good consideration And it was adjudged for the Plaintiff 37. In the forsaid Case of the King against Zakar alias Secker and others it was said by Coke Chief Justice that it is put for a Rule in Green's Case that if one presents Simaniace to a Church of the Kings and the King afterwards presents jure Simaniace this is a void Presentment because he hath mistaken his Title but he ought to present jure Patronatus not ratione Simoniace Presentatus And as to the disability of a Simoniacal person by the State of 31 Eliz. cap. 6. Four things are to be observed upon this Statute 1. The Presentation to be void 2. The King to have this Presentment 3. A Fine to be imposed by way of Forfeiture 4 The party presented to be utterly disabled For where there is matter of Simony if there be Fraud in the Incumbent or if Money be given for the Presentation though it be unknown to the Incumbent to this let the Patron look the Incumbent shall be removed In this Case the whole Court agreed clearly in this that the person party presented by Simony the presentation is meerly void and that the so presented is utterly disabled for ever by the Statute of 31 Eliz. c. 6. to take the same Benefice to which he is presented by Simony and that he is incapable to have another presentation to the same Benefice 38. The words Present or Collate in the Stat. of 31 Eliz. c. 6. are not intended says the Lord Coke onely where the person presenting or collating hath right to present or collate but also where any person or persons Bodies politick or corporate do usurp and
and enjoyn him penance according to Ecclesiastical Law but upon such conviction the party shall not he burnt Note says the Lord Coke in the same place that the makers of the Act of 1 Eliz. were in doubt what shall be deemed Heresie or Schism c. and therefore the Statute of 10 Eliz. provides that nothing shall be deemed Heresie but what had been so determined by one of the four General Councils the word of God or Parliament vid. Fox in Ed. 6. and Britton 5 Ed. 1. lib. 1. cap. 17. and with this agrees the Statute 2 H. 5. cap. 7. 23 H. 7. 9. 25 H. 8. c. 14. The proceedings in the commencement and end was altered by the Statute of 25 H. 8. Then came the Statute 1 Ed. 6. cap. 12. and that repealed 5 R. 2. 2 H. 5. and 26 H. 8. and the 2 H. 4. and by general words all Statutes concerning matter of Religion then the 1 2. P. M. cap. 6. Revived the 2. H. 4. by which the 25. H. 8. lost it's force the Act 1 and 2 P and M. cap. 8. expresly repealed 21 H. 8. 23. H. 8. 24. H. 8. 27. H. 8. but the 25. H. 8. cap. 14. was not repealed being repealed before by the 1. Ed. 6. yet in the end of that long Act there is a general clause sufficient of it self to repeal the Act 25. H. cap. 14. without more Then the 1. Eliz. cap. 1. repeals the 1 and 2 P. and M. except some Branches and in the same Act it is enacted that all other Statutes repealed by the said Act of Repeal 1 and 2 P. and M. and not in this Act specially revived shall remain repealed But the 25. H. 8. cap. 14. was not particularly revived and therefore remains repealed And after the said Statute 1. Eliz. repeals the Act 1 and 2 P. and M. of reviving of three Acts for punishment of Heresies so that now at Common Law according to the Lord Coke none can be burnt for Heresie but by Conviction at a Convocation After this viz. Hill 9. Jac. the Atturney and Sollicitor consulted with him whether at this day upon Conviction of an Heretick before the Ordinary the Writ de Haeretico Comburendo lieth and it seemed to him to be clear that it did not for the Reason and Authorities that he had reported Trin. 9. Jac. before But after they consulting also with Fleming Chief Justice Tanfield Chief Baron and Williams and Crook Justices And they upon the report of Dr. Cosins and some Presidents in Queen Elizabeths time certified the King that the said Writ lieth 8. Since the Devil in his Serpentine Policy first negotiated the Fall of Man there have ever been such as have gone forth like the lying Spirit in Ahabs false Prophets whereby many as he was are deceived to their own Ruine these are the Divels Emissaries Active in sowing Tares among the Wheat whom we commonly call Hereticks a Black Catalogue whereof in an Alphabetical Method here follows Acatiani and Semi-Arriani they held that the Son was a Creature made by the Father and that Christ was like to the Father in Will but not in Substance This Heresie began by Acatius not the Eutychian Bishop and Successor to Eusebius in Cesaria and was condemned in the Council of Seleucia Acephali so called because they had neither Bishop nor Priest for their Head and were Branches of the Eutychian Heresie They rejected the Council of chalcedon and denied the two Natures of Christ They despised all Congregations and the Sacraments Adamiani so called from their going naked in their Assemblies in imitation of Adam in his Innocency to which Estate they said Christ had restored Mankind They condemned Marriage and had Women in common with whom they lay promiscuously after the Light put out They held that we ought not to pray to God because he knows our wants without Prayer And called their Assemblies that Paradice which God had promised to the Blessed They had their Conventicles in subterrancan places called Hypacausta because that under the place of their Meetings a Furance of Fire was kindled to warm the same where they unclothed themselves when they entered into it and stood naked both Men and Women in imitation of Adam and Eve before the Fall This Heresie was first broach'd by one Prodicus a Gnostick There was also the Heresie of Adamites promiscuous in their Lusts begun or rather revived by a Picard of Gallo-Belgia in the year 1341. AEtius a Syrian of Antioch and Priest of that Church successor to Arius to whose Errors he added and was degraded and went into Cicilia where he published them and was banished by the Emperour and recalled by Julian in hatred to the Christians He held besides Arrianism that God was comprehensible and that Christ was unlike the Father in all things and spake uncouth things of the Trinity and was justly called an Atheist He was condemned in the Seleucian Council in the year 359. and confuted by Epiphanius Agnoetae they held that the Divine Nature of Christ was ignorant of some things as of the day of Judgement and denied perfection of knowledge to the Son of God in his Divine Nature Almaricani from Almaricus of Carnotum in France who uttered Blasphemous opinions concerning God that he was the Essence of all Creatures and the Soul of Heaven and that all Creatures should be converted into the Substance of God again These Hereticks approved of all Uncleaness under the Veil of Chastity Alogi they rejected the Gospel and the Revelation of St. John saying that they were written by Cerinthus and denied Christ to be the Word as also his Divinity Angelici These Hereticks were Angel-Worshippers Epiphanius who speaks of them better knew their Name than the original of their Sect. Anomaei a Branch of the Stock of the Arians the principal Authors were Acatius Eunomius and AEtius This was in the fourth Century Sozom. l. 4. c. 22. Anthropomorphitae these Hereticks were the Disciples of the Andeani an 370. and revived their Heresie so called of Audaeus a Syrian who lived in the end of Arius his time They Blasphemously held that God had a body like unto Man That Darkness Fire and Water were Eternal They refused the congregation of the Orthodox Church admitted greivous Sinners to the Communion without Repentance Antidicomarianitae these supposed that after the Nativity of our Lord the Virgin Mary accompanied with her Husband Joseph and did bear Children to him August de haeres of which opinion was Helvidius It is said that the opinion of the Fathers of the Church was that as no man did lie in the Sepulchre wherein Christ was buried before him So in the Womb wherein he was conceived no man was conceived after him and that the Fathers by the words in the Apostolick Symbol understood that he was born of Mary a perpetual Virgin And that by the Brethren of our Lord in the
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
Cas Coo. lib. 4. 16. 3â— Eliz. i 25. Eliz. Palmer and Thorp's Case Co. 4. par 20. k Hill 32. Eliz. Rot. 434. B. R. Pierce vers Howe Leon. Rep. l 40. Eliz. B. R. â—ollard and his wife against Armshaw Gold 172. m Mich. 9. Car. B. R. Dorothy Brian vers Cockman Cro. Rep. n Trin. 9. Car. Person and his Wife against Gâ—oday Cro. Rep. o Pasch 4. Car. C. B. Eaton vers Ayloff and his Wife Cro. Rep. p Mich. 7. Car. B. R. Hollingsheads Case Cro. Rep. q Mich. 8. Car. B. R. Cucko vers Starre Cro. Rep. r Hill 9. Car. B. R. Gobbets Case Cro. Rep. par 3. s Mich. 10. Car. rot 148. Dymmock vers Faweett Cro. Rep. t Pasch 12. Car. C. R. Pew and his Wife ver Jefferyes Cro. Rep. u Trin. 19. Jac. C. B. Winch. Rep. x Case Parrett vers Carpenter Noy Rep. y Thorne against Alice Duâ—ham Noy Rep. z Case Lewes against Whitton Noy Rep. a Eaten and Morris's Case Hetley's Rep. b Sir Christoph Hodâ—man vers John Grisell Noy ' s Rep. c Hill 4. Jac. B. R. inter Turnain and Thorne per Cur. Mich. 38 39. Eliz. B. R. Butler and Bartlett Adjudgd d Rep. 14. Jac. B. Adjudg vid. Rol. Abr. pag. 295. nu 2. e Mich. 7. Jac. B. inter Simpson and Waterâ— per. Cur. f Hill 7. Jac. B. per Coke g Hill 7. Jac. per Cuâ—iam Adjudg h 27 H. 8. 14. b. per Fitzherbert i Mich. 2. Car. inter Lewes and Whitley per Dederidge and Jones contra Whiâ—lâ—ok k Hill 9. Car. B. R. inter Isles and Cobbet per Curiam h Mich. 14. Jac. B R. Motam vers Motam Rol. 〈◊〉 Coke 4. Palmer and Thorps Case 25. El. f. 20. Vid. The Present State of Eng. p. 29. vid. the Charter of Donation in Ingulphus and other Authors pag. 224 225. Simonia est vox Ecclesiastica à Simone illo Mago deducta qui donum Spiritus Sancti pecuniis emi pura vit Injustum est illa vendere quae gratis distribui debent c Stat. 31. Eliz. c. 6. d Stat. ibid. e ibid. f 2 Kin. 5. 20. c. h Dict. St. 31 Eliz. Universas promissiones pactiones Simoniacas penitus revocamus eas in posterum fieri districtius in hibemus Constit Othoâ—on cap. quia pâ—erumque i Co. 3. Inst 154. k Câ— 12. 74. l Pasck 17. Jac. B. R. Case Fowles vers Lapthorne vid. the Pars Counsellor par 1. cap. 5. m Mich. 42. and 43. Eliz. B. R. Case Baker and Roger Cro. El. 788. n Case of the King and the Bishop of Norwich Cole and Sâ—cker Cro. Jac. 385. Bulstr 3. 92. o Co. 3. Inst 154. cap. 71. p Co. 12. 101. So was the Opinion of all the Judges of Serjeants Inn in Fleetstreet Mich. 8 Jac. Parsons Cons ubi supra q Hill 16. Jac. rot 667. c. B. per Graunt and Bowdens Case r Case Smith vers Shelburne More 916. Cro. Eliz. 685. s ibid. infra eod Noy Rep. t Case Sheldon vers Brett Winch. 63. u Hob. 165. vid. Parson's Counsellor par 1. c. 5. w 8 Jac. Case Jones and Lawrence Cro. 248. 274. Pars Couns ibid. x Co. 3 Inst 153. Noy 72. a Hill 5. Car. B. R. Case Babinglon vers Caleb Wood. Jones Rep. b Pasch 10. Car. B. R. Todderidge vers Mackalley Jone's Rep. c per Hob Case Winchcomb vers Pulleston Noy Rep. d Mich. 13. Jac. B. R. Case of the K. vers Bishop of Norwich Rolls Rep. e 27 H. 8. 26. f Trin. 15 Jac. C. B. Rot. 1052. Sir Jâ— Paschal vers Clark Noy Repâ— g Case Winchcombe vers Vullestoâ— Noy Rep. h ibid. i Adjudg 42. and 43. Eliz. 〈◊〉 〈◊〉 Case Noy Rep. k Noy ibid. l 7 Jac. Calvert vers Parkinson in Cam. Scaccar Noy Rep. m Mic. 13 Jac. B. R. Case of the K. vers Bishop of Norwich Roll. n Adjudg in Bakers Case vers Mâ—undford Noy's Rep. o E. of Suffex Case vâ—â—ch'd by Forster Justice in dict Bakers Case Noy Rep. p 10 Eliz. Doctor Hutchinsons Case cited by Warburton and Hutton Noy Rep. q Dict. Cas Winchcombe vers Pulleston r ibid. s Noy Winchcombs Case t dict Case of the King vers the Bishop of Nâ—rwich Roll. Rep. u Cro. Car. 425. w Hob. 167. x Pasch 17. Jac. Case of Sir Jo. Bowse vers Wright 167 168 177. y Hob. ibid z Hill 41. Eliz. C. B. Smiths Case Owens Rep. a Trin. 7. Jac. in the Exchequer Câ—lvert against Kitchin and Parkinson and Kitchin against Calvert Lanes Rep. b Glosse and Pompoyes Case vouched by Damport in Calverts Case against Kitchin Lanes Rep. Trin. 4. Car. C. B. c The King against the Arch-bishop of Canterbury Hetley's Rep. d Hall and Blundells case Hatley's Rep. e Fowlers Case ibid. f Trin. 15. Jac. C. B. rot 2051. Sr. John Paschall vers Clark Noy's Rep. g Winch-combe against Pulleston Noy's Rep. vid. dict Cas h Gregory vers Olden Noy 's Rep. Masters of Chancery why so called i Luther vers Holland Noy 's Rep. k Parson Letters Case against Sussex Nay 's Rep. l Co. Lit. 120. m Winch-combs Case Hob. rep 227. n vid. Bishops Sparrow Collection of Artic. c. pag. 9. The Oath of Simony Penns Case Brownl Rep. par 2. o Hill 11. Jac. B. R. Sr. VVil. Bovers Case resolved p Pasch 17. Jac. B. R. Lapthornes Case Bath vers Potter Rol. Rep. par 2. q Hill 21. Jac. Rot. 1058. VVilson vers Bradshaw Rol. Rep. r Mich 42. 43. Eliz. B. R. Baker and Rogers Case Cro. par 1. More Case 1223. Mich. 13. Jac B. R. Cro. par 2. Close's Case More 's Rep. Hill 11. Jac. B. R. Bulsr par 2. Pasch 13. Jac. B. R. Bulstr par 3. Pasch 17. Jac. B. R. Booth and Porters Case Cro. par 1. Risby and Wentworth's Case Cro. par 1. Trin 41. Eliz B. R. Smith and Shelbourne Cro. par 1. vid. More Case 1229. Mich. 11. Car. B. R. Bryte and Mannings Case Cro. par 3. Bulstr ubi supra Co. Inst pa. 3. cap. 71. Aug. tract 40. in Johan Num. 22. 2 King 5. a L. L. Eccl. Kenethi l. 7. Spelm. Concil An. 840. 1 Cor. 5. 5. 1 Tim. 1. 2. b Hieron Epist 24. q. 3. haeresis Lollards from Lolium Darnel or Tares c Co. p. 3. Inst c. 5. d By Fleming Chief Justice Tanfield Chief Baron Williams and Coke Justices Hill 9. Jac. e Mat. Hammond 21 Eliz. Holl 1579. Stow. 1161. Co. ubi supra f 23 H. 8. 9. Co. ubi sup g 2 Mar. tit Haeresie Br. 7. Co. ubi supr h Co. ubi supr and 2 Mar. ubi supr F. N. B. 269. Hill 9. Jac. Co. lib. 12. i Coke lib. 12. Case of Heresie An. 491. A. D. 353. An. 174. An. 357. An. 601. An. 1202. An. 198. An. 214. An. 932. An. 1556. An. 373. An. 183. An 324. An. 609. An. 186. An. 135. An. 170. An. 141. An. 252. An.
that upon such Appeal a Commission under the Great Seal shall be directed to certain persons particularly designed for that business so that from the highest Court of the Archbishop of Canterbury there lies an Appeal to this Court of Delegates Of this Subject of Appeals the Lord Coke says That an Appeal is a Natural defence which cannot be taken away by any Prince or power and in every Case generally when Sentence is given and Appeal made to the Superiour the Judge that did give the Sentence is obliged to obey the Appeal and proceed no further until the Superiour hath examined and determined the cause of Appeal Nevertheless where this Clause Appellatione remota is in the Commission the Judge that gave Sentence is not bound to obey the Appeal but may execute his Sentence and proceed further until the Appeal be received by the Superiour and an Inhibition be sent unto him For that Clause Appellatione remota hath Three notable effects 1 That the Jurisdiction of the Judge à quo is not by the Appeal suspended or stopped for he may proceed the same notwithstanding 2 That for proceeding to Execution or further process he is not punishable 3 That these things that are done by the said Judge after such Appeal cannot be said void for they cannot be reversed per viam Nullitatis But if the Appeal be just and lawful the Superiour Judge ought of right and equity to receive and admit the same and in that case he ought to reverse and revoke all mean Acts done after the said Appeal in prejudice of the Appellant At the Parliament held at Clarendon An. 10 H. 2. cap. 8. the Forms of Appeals in Causes Ecclesiastical are set down within the Realm and none to be made out of the Realm Ne quis appellat ad dominum Papam c. so that the first Article of the Statute of 25 H. 8. concerning the prohibiting of Appeals to Rome is declaratory of the ancient Law of the Realm And it is to be observed says the Lord Coke that the first attempt of any Appeal to the See of Rome out of England was by Anselme Archbishop of Canterbury in the Reign of William Rufus and yet it took no effect Touching the power and Jurisdiction of the Court of Delegates Vid. le Case Stevenson versus Wood. Trin. 10 Jac. B. R. Rot. 1491. in Bulstr Rep. par 2. wherein these Three points are specially argued 1 Whether the Judges Delegates may grant Letters of Administration 2 Whether in their person the King be represented 3 Whether the Court of Delegates may pronounce Sentence of Excommunication or not 14. The High Commission-Court in Causes Ecclesiastical was by Letters Patents and that by force and virtue of the Statute of 1 Eliz. cap. 1. the Title whereof is An Act restoring to the Crown the Ancient Jurisdiction Ecclesiastical c. the High Commissioners might if they were competent that is if they were Spiritual persons proceed to Sentence of Excommunication What the power of this Court was and whether they might in Causes Ecclesiastical proceed to Fine and Imprisonment is at large examined by the Lord Coke in the Fourth part of his Institutes where he reports the Judgment and Resolutions of the whole Court of Common Pleas thereon Pasch 9 Jac. Reg. upon frequent Conferences and mature deliberation set down in writing by the order and command of King James Likewise whom and in what Cases the Ecclesiastical Courts may examine one upon Oath or not there being a penal Law in the Case and whether the saying Quod nemo tenetur seipsum prodere be applicable thereunto Vid. Trin. 13 Jac. B. R. Burroughs Cox c. against the High Commissioners Bulstr par 3. 15. The Statutes of 24 H. 8. and 25 H. 8. do Ordain That upon certain Appeals the Sentence given shall be definitive as to any further Appeal notwithstanding which the King as Supream Governour may after such definitive Sentence grant a Commission of Review or Ad Revidendum c. Sir Ed. Coke gives two Reasons thereof 1 Because it is not restrained by the Statute 2 For that after a definitive Sentence the Pope as Supream Head by the Canon Law used to grant a Commision Ad Revidendum and what Authority the Pope here exercised claiming as Supream Head doth of right belong to the Crown and by the Statutes of 26 H. 8. cap. 1. and 1 Eliz. cap. 1. is annexed to the same Which accordingly was Resolved Trin. 39 Eliz. B. R. Hollingworth's Case In which Case Presidents to this purpose were cited in Michelot's Case 29 Eliz. in Goodman's Case and in Huet's Case 29 Eliz. Also vid. Stat. 8 Eliz. cap. 5. In the Case between Halliwell and Jervoice where a Parson sued before the Ordinary for Tithes and thence he appeals to the Audience where the Sentence is affirmed then the party appeals to the Delegates and there both Sentences are Repealed It was agreed That in such case a Commission Ad Revidendum the Sentences may issue forth but then such a Reviewing shall be final without further Appeal But if the Commissioners do not proceed to the Examination according to the Common Law they shall be restrained by a Prohibition 16. The Court of Peculiars is that which dealeth in certain Parishes lying in several Diocesses which Parishes are exempt from the Jurisdiction of the Bishops of those Diocesses and are peculiarly belonging to the Archbishop of Canterbury Within whose Province there are fifty seven such Peculiars for there are certain peculiar Jurisdictions belonging to some certain Parishes the Inhabitants whereof are exempt sometimes from the Archdeacons and sometimes from the Bishops Jurisdiction 17. If a Suit be in the Ecclesiastical Court for a Modus Decimandi if the Desendant plead payment it shall be tryed there and no Prohibition may be granted for that the Original Suit was there well commenced So if payment be pleaded in a Suit depending in the Ecclesiastical Court for any thing whereof they have the original cognizance But if a man sue for Tithes in the Ecclesiastical Court against J. S. and makes Title to them by a Lease made to him by the Parson and J. S. there also makes Title to them by a former Lease made to him by the same Parson so that the Question there is which of the said Leases shall be preferred In this case a Prohibition shall be granted for they shall not try which of the said Leases shall be preferr'd although they have cognizance of the Original for the Leases are Temporal If a man having a Parsonage Impropriate make a Lease for years of part of the Tithes by Deed and the Deed be denied in the Ecclesiastical Court and Issue taken thereon a Prohibition shall be granted If a Parson compound with his Parishioner for his Tithes and by his Deed grant them to him for a certain Sum for one year according to Agreement and after he