's there said that all these new things as Saffron Hemp Woad Tobacco c. are to be reckoned among small Tithes unless there be some material Circumstance to the contrary But who is to be Judge of that And what Proportion changes small Tithes into greater But what if the Endowment be so expressed that only Tithes of Corn and Hay be reserved to the Parson Then Rolls thinks all the rest falls to the Vicar by Construction of Law By the Word Altarage it was resolved in the Exchequer upon a solemn Hearing 21 Eliz. and after confirmed in the Case of Wood and Greenwood not meer Oblations are to be understood but whatever Custom hath comprehended under it And I find in the Settlement of the Altarage of Cockerington by Rob. Grosthead Bishop of Lincoln not only Oblations and Obventions but the Tithes of Wooll and Lamb were comprehended under it II. The next Discharge of Tithes is by the Privileges of particular Orders allowed by our Law For it is to be observed that no Bulls of Popes make a legal Discharge but in such Cases where the Law allows them and my Lord Coke thinks it cannot be insisted upon without danger of a Praemunire For when the Cistertians had procured new Bulls to inlarge their Privileges as to their Lands in the Hands of Farmers a Law was passed against it 2 H. 4. c. 4. which was grounded on a Petition in Parliament shewing the Novelty and Mischief of it It was affirmed by our great Lawyers that the Pope's Act in dissolving the Body of the Templars which was done 5 E. 2. had no Effect here till the 17 E. 2. when the Parliament gave their Lands to the Hospitallers And that the Pope could not by his Bull dissolve a Vicarage after they were made perpetual by the Statute so that our own Law is to govern in this matter But what Orders had Exemption from Tithes by our Law At first most of the Orders of Monks had it for Lands in their own Hands This by Hadrian IV. was restrained to the Cistertians Templars and Hospitallers which is owned in the Canon Law by a Decretal of Alexander III. who declares it not to be intended for Lands let out to farm Innocent III. restrains it to such Lands as they were then in possession of but my Lord Coke makes the Grant to be from Innocent III. in the Council of Lateran 17 John but he adds That it extends only to the Lands which they had before which was all that was done then But he saith That this Privilege was allowed by the general Consent of the Realm however that were it is certain that the Lateran Council made no Restriction to the three Orders But what shall we say to the Praemonstratenses of whom he saith That they were discharged by a Bull of Innocent III. This Point was disputed in the Case of Dickenson and Greenhow It was not denied that they had obtained such a Bull but it was denied that it was ever received here On the other side it was said that their Bulls were confirmed which doth not appear nor that any Judgment was given in the Case There is a Bull extant in the Collection of Innocent's Epistles to exempt the Praemonstratenses from the Tithes of Lands in their own Hands but this was granted in the first year of Innocent III. sometime before the Lateran Council and they might enjoy the same Privileges with the Cistertians if it could be proved that they were as generally received which hath not yet been done As to the Cistertians themselves there are considerable Limitations of their Privileges 1. They must relate to Lands in their Possession before the Lateran Council A. D. 1215. 17 of King Iohn And in matters against common Right the Proof in Reason ought to be on those who pretend to particular Privilege But it 's certain the Cistertian Order hath had many Lands in England since that time and it were no hard matter to find them out But suppose they were actually discharged at the Dissolution and the Proprietaries were to enjoy them in the State they found them is not this a sufficient Discharge Yes if it be a legal Discharge for the Statute only puts them into the same legal Capacity they were in before but if they were Lands given since the Lateran Council they were not in a Capacity to be discharged by Law for it was not otherwise received 2. This Privilege doth not exclude ancient Compositions as to their Demesn Lands For these Privileges did not go down so easily but where there were Rectors able to contest it they brought even the Cistertians to Compositions And the Pope himself appointed Commissioners here to compound the matter As between the Monastery of Pipewel and Hugh Patesbul Rector of Eltyndon which ended in a Composition of six Marks per Annum for the Tithes of their Demesns And another between the Vicar of Dunchurch and the same Monastery and between the Rector of Wynswick for the Tithes of Ten Yard-Lands in Colds-Abbey All which I have perused in the Register of that Monastery MS. 3. The Privilege doth not hold where the Monasteries were under Value and came to the King by the Statute 27 H. 8. unless they were continued and came within the Statute of Dissolution 31 H. 8. And it ought to be proved that they continued separate for if their Lands were given to the greater Monasteries they did not retain the Privilege upon Dissolution But there is a much harder point concerning the Hospitallers who had the Lands of the Templers after 17 E. 2. Their Lands were not given to the King by the Statute of Dissolution 31 H. 8. but 32 H. 8. c. 24. and the Clause of Exemption was left out of the Grant Upon which a great Question hath risen Whether their Lands are exempt or not And Judgment was given against them in the Case of Cornwallis or Quarles and Spurling But in the Case of Whiston and Weston it was argued That the King had the same Privileges which the Hospitallers had But it was replied That other Lands given to the King after that Act had not those Privileges as Chanteries c. It was said that it was because they were not regular Ecclesiastical Bodies Which was a strange Answer considering what sort of Ecclesiastical Bodies the Hospitallers made when only the Grand Master and two Chaplains are bound to be Ecclesiasticks and in Foreign Judicatures they were denied to be any part of the Clergy being only an Order of Knights under some particular Regulations But suppose them capable of Appropriations of Tithes yet when the Body is dissolved the Appropriation falls of it self unless continued by Act of Parliament as those of the Templars were to them and those of the Monasteries by 31 H. 8. but where there is no Clause to continue the Appropriation it must be
if they make a good Bargain for their own Advantage I cannot deny but that according to the Laws of the Land and the Canons of this Church some Persons are allowed to have two several Cures which must imply a Non-residence for some time at least upon one of them But they still suppose that there are persons Resident upon them who are allowed by the Bishop to be sufficient to discharge the necessary Duties of the place and not to be taken up like Post-horses the next that comes and to be turned off at the next Stage I think it a very great Fault in those who have Pluralities that they look no more after the Curates they imploy and that they do not bring them to the Bishop to be approved and to have their Allowance fixed before they imploy them They think no more is required but to pay the Fees for a Licence but I have and shall endeavour to convince the Clergy of this Diocess that Licences are not to be taken as St. Peter took the Fish that first came with Money in the Mouth of it I hope to be able to satisfie them that it is not the Fees that we aim at but at Persons doing their Duties And our Canons are express That no Curate is to be allowed in any Cure of Souls that hath not been examined and admitted by the Bishop or Ordinary having Episcopal Jurisdiction and attested by the Hand and Seal of the Bishop How then come Curates to officiate without ever coming to the Bishop at all or undergoing any Examination by him This is a plain Breach of the Canon and ought to be reformed I do not say that such Licences as have customarily passed without the Bishop's Hand and Seal are void but I do say That they are irregular and voidable and none ought to be allowed which are not according to the Canon and that no Incumbent ought to take any one for his Curate till the Bishop hath allowed and approved him under his Hand and Seal And this Remedy the Law gives us against the Inconveniencies which attend Pluralities by weak and insufficient Curates But no Man is excused either by Law or Canons from attending the Duties of his Place at some times in his own Person and that good Part of the Year in which time he ought to do the Duties of his Place with Diligence and Care and to acquaint himself with his Parishioners in order to the better Discharge of his Duty towards them They have very mean Thoughts of their holy Function that think the main Part of it lies only in the Pulpit I wish even that were minded more but all the Ways you can do good among your People is within the Compass of your Duty not meerly to instruct them in Religion but to prevent Quarrels and Contentions and Meetings for Debauchery which tend to corrupt Mens Minds and draw them off from the Principles as well as Practice of true Religion It is your Duty to endeavour to make them live like good Christians and good Neighbours and to set Patterns your selves of Sobriety Meekness Charity and of every thing Praise-worthy 3. Faithful Diligence implies filling up your vacant Hours with the most useful Studies as to the main End of your Function For in your Ordination you solemnly promise to lay aside the Study of the World and the Flesh and to apply your selves to the Study of the Scriptures and such Studies as help to the Knowledge of the same But it may be seasonably asked by some What Method and Course of Studies will best conduce to that End To this I shall endeavour to give a short Answer so far as it concerns the main End of your Function which it is most proper for me to consider at this time 1. Look well to the Temper of your Minds that it be humble sober and religious For a vain affected and self-opinionated Person can never have an inward and hearty Relish of Divine Truths The Scriptures will appear to him either too plain and easie or too obscure and intricate some things will seem low and flat and others too lofty and Poetical Those who read not with a good Mind will have always something or other to cavil at It is a mighty Advantage in all Spiritual Knowledge to come to it with an unbiassed Mind free from the Power of Prejudice and evil Inclinations For these give a strange Tincture to the Mind and hinder the clear and distinct Perception of Revealed Truths as above the Natural Faculties which God hath given us Some are therefore so fond of Philosophical Speculations that unless the Letter of the Scripture suits with them they are ready to despise it and only Shame and Fear keep up any Reverence for it in them Some are altogether for Mathematical Evidence and Demonstration as though the Way to Salvation were to be shewed by Lines and Figures Why do they not first run down all Laws and History because they are not capable of Mathematical Evidence And it argues a far greater Measure of true Understanding to know when to be satisfied than to be always disputing and cavilling The plainness of Scripture in some places is no more an Offence to one that wisely considers the Design of it than a beaten Road is to a Traveller who desires to know which is the true Way to his Journeys End and the plainer it is the more he is satisfied with it But the Scripture wants not its Depths which require a very Attentive and Considering Mind and will afford Matter for Exercise of Thoughts and frequent and serious Meditation The Excellency of the Scripture is That all necessary things are plain and such as are not so although they are not necessary to be known for Salvation yet require our Diligence to understand them and give great Satisfaction as far as we can know them 2. Not to perplex your Minds with Difficulties above your Reach as in what relates to the Eternal Decrees and the particular Manner of that Unity of the Godhead which is consistent with the Trinity of Persons For since the Scripture doth assert both we may safely be contented with what the Scripture reveals although the Manner of it be incomprehensible And as to the other the Scripture is clear and positive as to the Moral Parts of our Duties and if we are to seek how to reconcile them with Gods Decrees we have this certain Rule to go by That without doing our Duty we cannot be happy but we may without understanding how the Freedom of our Wills is consistent with the Divine Prescience and Decrees 3. Not to fix plain and necessary Duties upon new and unaccountable Theories As for instance There are no Duties of greater Consequence than the Love of God and our Neighbour But it would be unspeakable Mischief to Religion to fix the Love of God upon so absurd a Principle as his being the immediate Cause of all Sensation in us And it would have
own and were hardly brought to any reasonable Allowance for the Clergy which supplied them These were called Beneficia in the Capitulars and they were to pay Nonae Decimae i.e. a Fifth Part out of them which was obtained with much Difficulty as appears by the many Laws made about them In the Council at Leptins A.D. 743. Carolomannus son to Charles Martel owns the letting out some of the Church Lands sub Precario Censu upon a reserved Rent Can. 2. Capit. l. 5. c. 3. but then it was barely for Life But the consequence was That it was very hard to recover either the Lands or the reserved Rents and they put in Clergy-men and put them out as they pleased because they held these Lands as Beneficiary Tenures from the Crown So that it was the Work of more than an Age to put the Church there in any tolerable Condition But this seems to be very much mistaken when it is brought to prove the Right of Patronage from the Endowment as to the Disposal of Benefices But the Right of Patronage by the first building and endowing the Church is owned by the Civil Law in Iustinian's Novels 123. c. 18. and Two Things were there required 1. A sufficient Maintenance for the Clergy who were nominated 2. The Bishop's Satisfaction as to their Fitness about which he speaks in another Novel 56. Tit. 12. c. 2. And he elsewhere requires that before any Churches were built the Bishop should see that there were sufficient Maintenance for those who were to officiate Novel 66. Tit. 22. The same Right obtained here upon the same Grounds as appears by the Barons Answer to Gregory IX who affirm That they had it ever since Christianity was founded here They mean ever since parochial Churches were endowed by their Ancestors for there could be no such Right of Patronage before And such Patrons were here called Advocati Ecclesiae as appears by Ioh. Sarisbur Ep. 6. 119. and the Ius Advocationis as our Lawyers tell us is a Right which a Person hath to present to a vacant Benefice in his own Name which is agreeable to what Bracton and Fleta had said long before But it doth not appear by them how the Names of Patron and Advocate came to be so applied Among the Romans saith Asconius Pedianus the Patron was he that pleaded the cause of another the Advocate he that appeared in Court on his behalf But this doth not reach to the Ius Advocationis which we are now about In the Ninety seventh Canon of the African Code an Allowance is made for the Churches to have Advocates to solicite their Causes at Court. From hence the greater Churches and Monasteries had their proper Advocates appointed them by the King as Bignonius observes and in the old Charters of Aub. Miraeus several such Advocates are appointed and it appears to have been an honorary Title and great Men were pleased with it Miraeus faith it was accounted a considerable Honour at that time And so by degrees the Founders of Parochial Churches came to have the Title of Patrons and Advocates of them and the Right they injoyed the Right of Advowson as well as Patronage not as some ridiculously talk of Advocat se or Advocat alium because the Trust and Care of those Churches endowed by their Ancestors was fallen to them and they were bound to look after and to defend the Rights of them and so Lyndwood explains it II. The next thing to be considered is the Oblations of the People which in those elder times were so free and large that which may seem incredible now there were Persons who would build Churches on their own Land to have a Share in the Oblations as is affirmed in one of the Spanish Councils and there forbidden with great Severity It was not as the Gloss on the Canon Law understands it to make a Bargain for the Right of Patronage but it is expressed to have an equal Share with the Clergy in the Oblations of the People It is observed by Agabardus That the Devotion of Persons in the first Ages was so great that there was no need to make Laws or Canons for the Supplies of Churches since they were so amply provided for by the Liberality of the People Thence we read of the Deposita pietatis in Tertullian which were voluntary Oblations and out of which were made Divisiones Mensurnae in S. Cyprian and the Sportulae which were the Allowances made to the Clergy out of the common Stock and they who received them and not those who gave them as Mr. Selden fancies were called Sportulantes Fratres and the Allowances were then stiled Stipes Oblationes which were so considerable that St. Cyprian blamed some for their setting their Hearts too much upon them Stipes Oblationes Lucra desiderant quibus prius insatiabiles incubabant which could not be said of any meer necessary Subsistence these they received tanquam Decimas ex fructibus as St. Cyprian speaks in lieu of Tithes at that time when the most of the Christian Church inhabited the Cities and gave out of their Stock to maintain the Church and those who attended upon the Service of it But when Christianity came to spread into the Countries then a more fixed and settled Maintenance was required but so as to retain somewhat of the Ancient Custom in voluntary Oblations No sooner was Christianity settled in France but we read of Lands given to the Church by Clodovaeus after his Conversion these are owned by the first Council of Orleans called in his time A. D. 511. and were put into the Bishop's Hands and to be distributed by him for Repairs of Churches Maintenance of the Clergy and other pious Uses Can. 5. 14 15. But besides these we read still of Oblations made by the people on the Altar both in the Mother-Church and in Parochial Churches If in the Mother-Church one Moiety went to the Bishop the other to the Clergy if in the other only the third Part to the Bishop In the second Council of Mascon Can. 4. we find it required That all the People make an Oblation of Bread and Wine at the Altar and this was A. D. 585. but besides the next Canon insists on the Payment of Tithes as founded on the Law of God and the Ancient Custom of the Church which is thereby reinforced unde statuimus decernimus ut mos antiquus reparetur which Words are not fairly left out by Mr. Selden because they shew that there was only in this Canon a renewing of an Ancient Custom which had obtained but was now growing into Disuse For this Council of Mascon was called on purpose to restore what they found too much declining as to Religion and they begin with the Observation of the Lord's Day and after add this wherein they complain of the Neglect of that which their Predecessors observed as founded on the Law
understood to be left to the natural Course of things and so the Appropriation sinks III. The third legal Exemption is from Prescription and ancient Compositions This seems a difficult Case because something less than the real Value is to be taken and the Rule in Lyndwood is non valet consuetudo ut minus quam Decima solvatur but in all such Prescriptions and Compositions there is less than the true Value To clear this matter I shall shew 1. That by our Ecclesiastical Law all Compositions are not condemned 2. That by the Common Law all Prescriptions are not allowed And if these things be made out it will follow that where the Compositions and Prescriptions are legal the Clergy may with good Conscience submit to them as they do in other matters of Law 1. As to the Ecclesiastical Law Lyndwood himself makes these Limitations 1. In case of personal Tithes He grants that as to them a Man may with a good Conscience observe the Custom although it be under the real Value Now these are founded on the same Laws that Praedial and Mixt Tithes are and by the Stat. 2 E. 6. c. 13. they are reduced to a customary Payment before Easter as it had been used Forty Years before But besides these there were Offerings to be compounded for and the Easter Duties are a kind of Composition for personal Tithes 2. In small Tithes the customary Payment is allowed The Payment in Lyndwood's time was 6 ob for Six Lambs because it was the Tenth of the Value at that time of a Lamb of a year old the Seventh Lamb was to be paid in kind for which 3 ob were to be paid back because three Lambs were wanting of the Number Ten. But can any one believe that 5 d. was the true Value then of a Lamb of a year old And Lyndwood doth not suppose it be the exact Value but it was such as the Provincial Constitution determined and he allows Compositions super minutis Decimis 3. Compositions were allowed with the Bishop's Consent with Lay-persons for their Tithes As to what is past there was no doubt but for the future he saith it doth not hold sine Iudicis auctoritate which implies that by his Consent it may And if so then a Modus decimandi so qualified is allowed by the Ecclesiastical Law Such Compositions as these were entred into the Bishop's Registries and if they were then made upon a valuable Consideration at that time I doubt the Force of Custom will get the better of the Reason that may be taken from the great Difference of Valuation of things 2. Let us now consider what Prescriptions and Compositions are not allowable at Common Law 1. No Prescription de non decimando is allowed among Lay-persons because none but spiritual Persons are by the Law capable of Tithes in their own Right A Lay-man saith Mr. Selden cannot be discharged of all Payment by meer Prescription unless he begin the Prescription in a Spiritual Person And to the same purpose our great Lawyers speak But in the famous Case of Pigot and Hern a Distinction was found out which may prove of dangerous Consequence viz. That although the Lord of a Manor cannot prescribe for Tithes because he is not capable of them by our Law yet he may prescribe for a tenth Shock as a Profit apprendre as a thing appurtenant to his Manor and so he may have decimam garbam but not Decimas garbarum Upon which Resolution it is said in the Bishop of Winchester's Case That the Lord of a Manor may have Tithes as appurtenant to his Manor For which there is no Foundation in our Ancient Laws or Customs that I can find and is inconsistent with what is before acknowledged that none but Spiritual persons are capable of Tithes But in plain Truth this Case is not truly represented and my Lord Chief Justice Hobart a person of great Judgment and Learning in the Law hath told the World That this famous Reporter hath sometimes given his own Opinion and that sudden instead of the Resolution of the Court which must take much off from the Authority of his Reports especially when the Case is differently reported by others as it falls out in this Case For Serjeant Moor who was of Councel in that Case saith That the Defendant pleaded a Modus decimandi in Satisfaction for Tithes which was 6 s. per Annum But as to the other point Whether such an Ancient Modus being made with the Lord of a Manor binds the Copy-holders it is out of our way but surely there ought to be good Proof that the Modus was made before the Copy-holds holds were granted which is not offered but only that it might be so which deserves no other Answer but that it might not be so And it is hard indeed when Judgments are given upon Possibilities And for the Distinction of decima Garba and Decimae Garbarum in a Composition for Tithes is the same thing Mr. Selden as to this Case of Pigot and Hern saith It was an Inheritance of Tithes from immemorial time by Virtue of an Ancient Composition And he would not understand the Judges in any other Sense For no kind of Infeodation of Tithes is allowable here he saith so as to create in Lay-men a perpetual Right to them except only by the Statute of Dissolution of Monasteries unless it be derived from some Ancient Grant of Discharge from the Parson Patron and Ordinary with a Consideration of Recompence to the Parson and that either from time immemorial or Ancient Composition And to the same purpose he speaks in another place where he owns that by our Law every Parson had a common Right to the Tithes of all annual Increase Praedial or Mixt within the limits of his Parish and any Title or Discharge must be specially pleaded 2. Where a Prescription is pleaded de Modo decimandi the actual Recompence by Composition must be shewed For as my Lord Coke saith a Modus decimandi is intended as a yearly Sum in way of Satisfaction for the Tithes to the Parson which Rolls calls the Actual Recompence In the Register the Account of the Modus decimandi is thus set down 1. There was a real Composition as Four Acres of Land for some small Tithes 2. There was an Agreement in Writing by the Consent of Ordinary and Patron But my Lord Coke saith the Modus may as well be for a Sum of Money as for Land Suppose no Ancient Composition in Writing can be produced how far doth a Prescription hold 1. It must be immemorial or time out of mind Here a great Point arises fit to be considered Suppose the thing it self hath been within Memory as Improvements by Hops Fruit-trees c. doth not a Composition bind in this Case I answer that we are to distinguish Personal Contracts from Real Compositions In the
Case of Hitchcock and Hitchcock there was a Contract between the Vicar and Parishioners but it was denied to be a real Composition although confirmed by the Ordinary and affirmed not to be binding to the Successors A Composition by a meer verbal Agreement in the Case of Hawles and Bayfield was declared to be neither binding to the Party nor his Successors But in the Case of Tanner and Small it was declared to hold for Years but not for Life My Lord Coke seems to be of Opinion That if it be a Prescription it must be time out of Memory of Man but that a real Composition may be either before or within Memory of Man but then it must be by Parson Patron and Ordinary It is well observed by Sir Simon Degge in his useful Book about these matters that although real Compositions are supposed in Law to be the Foundation of Prescriptions de Modo decimandi where the Patron Ordinary and Parson did consent to them yet that the most of them have grown up by the Negligence and Carelesness of the Clergy themselves which I am afraid is too true And he is of Opinion That no real Composition can be made now to bind the Successor since the Statute 13 Eliz. c. 10. which restrains all binding Grants to One and twenty Years or Three Lives and if so then the Consent of Patron and Ordinary cannot make it good 2. It must be reasonable and therefore it hath been rejected in these Cases 1. If it be a Prescription to pay a certain Tithe without the Parson's View of the Nine Parts because saith Hobart it is against the Law of Partition in the Case of Wilson and the Bishop of Carlisle 2. If there be no Recompence to the Parson as in the Case of Scory and Barber the Prescription was founded on the Parishioners finding Straw for the Body of the Church 3. If it be for paying only what was due in lieu of other Tithes as in the Case of Ingoldsby and Iohnson that they paid their other Tithes in lieu of Tithes of dry Cattel or in Case a Load of Hay be prescribed for in lieu of Tithe-Hay or Ten Sheafs of Corn for the Tithe of all the rest 4. If it be not for something certain and durable For this saith Hobart shews an Original Weakness in the Composition being of a thing certain and durable for that which is not so IV. The last Exemption or Discharge that is pleaded as to the payment of Tithes is Unity of Possession That is where a Monastery had the Right of Tithes by Appropriation and had other Lands which did not pay Tithes because the owners were to receive them these were actually free at the time of Dissolution and the Question is Whether they are legally so by Virtue of the Statute It cannot be denied that Unity of Possession is in it self no legal Discharge but whether by the Words of the Statute the Judges were divided in Opinion But afterwards in the Case of Green and Bosekin the Judges allowed it so it were not a meer Unity of Estate but of Occupation Hobart saith That after it had been long controverted it was received as the common Opinion Coke That where Unity of Possession gives a Discharge the Title must be clear the Non-payment general and the Prescription time out of Memory but if the Appropriation were made in the time of Ed. 4. H. 6. it could not be discharged by Unity nor if it were a late Abby-prescription Thus I have endeavoured to lay this matter before you as briefly and clearly as I could from the best Light I could get that I might give you such Directions that you may neither run into needless and vexatious Suits nor be run down by frivolous Pretences It is your great Advantage that you have the Law of your side if you understand it a right but have a care of being set on by such whose Interest it is to promote Suits and I am sure it is yours to prevent them if it be possible and as much as lies in you The Church's Right is not to suffer by your Negligence and you are not to make the Church to suffer by your Contentions He that loves going to Law seldom fails of having enough of it he suffers in his Purse in his Reputation in his Interest and the Church suffers by his Means Endeavour to gain as much as may be the Love of your People by a kind modest courteous and peaceable Behaviour which is the best way to prevent or to compose Differences If you are forced to sue for your Maintenance let them see that you are forced to it and that you are always willing to put an end to all such Disputes if the Church's Right be secured which you are bound to preserve OF THE OBLIGATION To observe the Ecclesiastical CANONS AND CONSTITUTIONS AT A VISITATION October 29 th 1696. IN speaking clearly and distinctly to this Case there are these two Things to be considered I. By what Authority they do oblige II. In what Way and Manner they oblige I. The first thing to be considered is the Authority by which Ecclesiastical Canons and Constitutions do oblige For if there be not sufficient Authority there cannot be that Obligation on Conscience which supposes a legal Exercise of Power or a just Right to command Our Obedience to the Orders of our Superiours is due by Virtue of that Divine Law which requires us to be subject for Conscience-sake But our Obedience is to be regulated by the Order of Iustice i.e. it ought to be according to Law Therefore it is necessary in the first place to enquire Whether there be among us any such things as Ecclesiastical Laws i.e. such Rules which according to the Constitution of our Government we are bound to observe For we are Members of a Church established by Law and there are legal Duties incumbent on us with respect not only to the Laws of God but of the Realm For although our Office and Authority as Church-men hath a higher Original yet the Limitation of the Exercise of it is within such Bounds as are allowed and fixed by the Law of the Land It is therefore a matter of great Consequence to us to understand how far our Ecclesiastical Constitutions are grounded upon the Law of the Land which cannot be done without searching into the Foundations of our Laws Which lie in three Things 1. Immemorial Custom 2. General Practice and Allowance 3. Authority of Parliament And I shall endeavour to shew how far our Ecclesiastical Constitutions are founded on these 1. Immemorial Custom Our greatest Lawyers allow Ancient Custom to be one of the Foundations of our Laws and my Lord Coke calls it one of the main Triangles of the Laws of England I suppose he means Foundations And another saith That the Common Law of England is
and the more Ancient the more Suspicious But the Lord Chancellor and three Chief Judges declared That by the Common Law of England every Bishop in his Diocess and the Archbishops in Convocation may make Canons to bind within the Limits of their Jurisdiction 3. The subordinate Jurisdiction which was lodged in the Bodies of the Clergy resident in Cathedral Churches and of Archdeacons in the several Diocesses I cannot find either of these to have had any Jurisdiction here before the Conquest neither were there any Courts of Justice out of the several Counties before for all Causes were transacted in the County-Courts and Sheriffs Turns and Appeals lay from them to the Supreme Judicature of the King and the Lords But this doth not hinder but these Courts may be founded on the Law of England And so the original Jurisdiction which of Right belonged to the Bishop might by degrees and a gradual Consent come to be committed as to some parts to the Bodies of Cathedral Churches and to the Archdeacons who are saith my Lord Coke Sixty in England We are told in a late Case of Woodward and Fox That there are Archdeaconries in England by Prescription which have no Dependency on the Bishop but are totally exempt And for this Godolphin is cited who refers to the Gloss on the Legatine Constitutions f. 27. where we read of some Archdeacons having a customary and limited Iurisdiction separate from the Bishop for which a Prescription lies But this is only for some special Iurisdiction as the Archdeacon of Richmond for Institutions which came first by Grant from the Bishops but that not being to be produced they insist upon Custom and Prescription as the Deans and Chapters do where the Ancient Compositions are lost But none who understand the Ancient Constitution of this Church can suppose either of them to have been Original since the Right to the Jurisdiction of the Diocess was in the Bishop before there were here either Archdeacons or Chapters with Jurisdiction In the Case of Chiverton and Trudgeon it was declared That an Archdeacon might have a peculiar Jurisdiction as to Administration c. as the Dean of St. Paul's had at S. Pancras and so the Archdeacon of Cornwall as to Wills In the case of Gastril and Iones the Chief Justice declared That the Archdeacon is the Bishop's Officer and his Authority subordinate to the Bishops and granted by them but if special Custom be pleaded that must be well proved to which Dodderidge agreed But we must distinguish between Archdeaconries by Prescription for which I can find no Foundation being all derived by Grant from the Bishop and Archdeacons having some kind of Iurisdiction by Prescription which others have not which cannot be denied All the Power which the Archdeacons have by virtue of their Office is per modum scrutationis simplicis as Lyndwood speaks tanquam Vicarius Episcopi Whatever Power they have beyond this is not Iure communi but Iure speciali and depends either upon Grant or Custom which the Gloss on the Legatine Constitutions calls a limited Iurisdiction The Archdeacon's Court is declared by the Judges in Woodward ' s Case to have been time out of Mind settled as a distinct Court from which there lies an Appeal to the Bishop's Court by the Statute 24 H. 8. c. 12. And so the Archdeacon's Jurisdiction is founded on an immemorial Custom in Subordination to the Bishops As to Deans and Chapters I observe these things 1. That although Ecclesiastical Bodies in Cathedrals were very ancient yet we read not of any Jurisdiction peculiar to themselves during the Saxon times My Lord. Coke saith There were Chapters as the Bishop's Council before they had distinct possessions And by their Books he saith it appears that the Bishops parted with some of their Possessions to them and so they became Patrons of the Prebends of the Church Such were London York and Litchfield 2. That several of our Chapters were founded and endowed by the Bishops since the Conquest Such was that of Salusbury by Osmund out of his own Estate as appears by his Charter and the Confirmation of H. 2. So was that of Lincoln by Remigius who removed the See from Dorchester thither and placed there a Dean Treasurer Praecentor and Seven Archdeacons as Henry of Huntingdon saith who lived near the time And in following times those of Exeter and Wells were settled as Dean and Chapter for they were Ecclesiastical Bodies before but not under that Denomination 3. That some had the legal Rights of Dean and Chapters as to Election of Bishops and Confirmation of Leases c. but were a Monastick Body consisting of Prior and Convent Such were Canterbury Winchester Worcester after the Expulsion of the Secular Canons for the Monks not only enjoyed their Lands but were willing enough to continue the Name of Dean among them As at Canterbury after Dunstan's time Agelmothas is called Dean in Worcester Wolstan is called Dean when he was Prior and Winsius upon the first Change is said to be placed loco Decani by Florence of Worcester At Norwich Herbert the Bishop founded the Prior and Convent out of his own Possessions in the time of William II. and they became the Chapter of the Bishop by their Foundation Now as to these it is resolved in the Dean and Chapter of Norwich's Case That when the King transferred them from a Prior and Convent the Legal Rights remained the same And in Hayward and Fulcher's Case the Judges declared That an Ecclesiastical Body may surrender their Lands but they cannot dissolve their Corporation but they still remain a Chapter to the Bishop And it was not only then delivered but since insisted upon in a famous Case That it was the Resolution of the Iudges That a Surrender cannot be made by a Dean and Chapter without Consent of the Bishop because he hath an Interest in them 4. That H. 8. endowed some as Chapters to new erected Bishopricks as Chester Bristol Oxford c. 31 H. 8 9. 34 H. 8. 17. and united others as Bath and Wells and Coventry and Litchfield 33 H. 8. 30. 34 H. 8. 15. 5. That where the Custom hath so obtained there may be a Legal-Chapter without a Dean as in the Diocesses of S. David's and Landaff where there is no other Head of the Chapter but the Bishop but they must act as a distinct Body in Elections and Confirmations of Grants by the Bishops 6. That by the Ancient Custom of England there are sole Ecclesiastical Corporations as well as aggregate A sole Ecclesiastical Corporation is where a single Person represents a whole Succession and under that Capacity is impowered to Receive and to Convey an Estate to his Successors As Bishops Deans Archdeacons Parsons c. But Parsons and Vicars are seized only in Right of the Church but as to a Bishop he may have a Writ of