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 nothing else but the common Custom of the Realm My Lord Chief Justice Hales saith That the common Usage Custom and Practice of the Kingdom is one of the main Constituents of our Law
Coke quotes Bracton ' s Authority to prove That Custom obtains among us the Force of a Law where it is received and approved by long Use. And of every Custom he saith there be two Essential Parts Time and Usage Time out of Mind and continual and peaceable Usage without Interruption But in Case of Prescription or Custom he saith That an Interruption of Ten or Twenty Years hinders not the Title but an Interruption in the Right the other is only an actual Suspension for a time It may be asked How Time and Usage come to make Laws since Time hath no Operation in Law saith Grotius Not of it self as Grotius there saith but with the Concurrence of other Circumstances it may Bracton saith longa possessio parit jus possidendi and by a long and peaceable Possession Dominion is transferred without either Title or Delivery which he founds on this good Reason That all Claims of Right ought to have a certain Limitation of Time and length of Time takes away any Proof to the contrary Littleton saith That Time out of Memory of Man is said to give Right because no Proof can be brought beyond it And this he calls Prescription at Common Law as it is distinguished from Prescription by the several Statutes of Limitations But whence is it then that an immemorial Possession gives Right Is it from the meer Silence of the Parties concerned to claim it No Silence gives no Consent where Ignorance or Fear may be the Cause of it And is it a Punishment upon the Neglect of the Party concerned So Bracton saith Time doth it per patientiam negligentiam veri Domini But meer Neglect doth not overthrow Right unless there be an antecedent Law to make that Neglect a Forfeiture Is it from a Presumptive Dereliction But that supposes not bare Continuance of Time but some kind of voluntary Act which implies a sort of Consent which doth not appear in this Case And it is a great Mistake in those who think there is no Presumptive Dereliction where there is not a full Consent for it may be where there is the Consent of a mixt Will i.e. partly voluntary and partly involuntary when the Circumstances are such as the Person rather chuses to leave his Right than submit to the lawful Conditions of enjoying it As if a Man would rather quit his Fee than perform the Service which belongs to it Is it from the common Interest of Mankind that some Bounds be fixed to all Claims of Right Because otherwise that Men will be liable to perpetual Disturbance if the Right be permitted to be claimed beyond any possibility of Proof Or is it lastly that in such Nations where immemorial Custom obtains the Force of a Law it seems agreeable to the Foundations of Law that a long continued Possession should carry Right along with it And this was the Case here in England as not only appears by what Bracton hath said but Glanvil makes a great part of our Law to consist of reasonable Customs of long Continuance And St. Germain affirms Ancient general Customs to be one of the principal Foundations of our Law and that they have the Force of Laws and that the King is bound by his Oath to perform them And it is worth our while to observe what general Customs he doth instance in as the Courts of Equity and Law the Hundred Court the Sheriffs Turn the Court Baron c. which depend not upon Acts of Parliament but the Ancient Custom of England which he calls the Common Law And among these Ancient Customs he reckons up Rights of Descent Escheats the different sorts of Tenures Freeholds and the Laws of Property as they are received among us We are now to enquire how far any of our Ecclesiastical Constitutions can be said to be built upon this Foundation and upon immemorial Custom generally received 1. I place 1. the Distribution of this National Church into two Provinces in each whereof there is an Archbishop with Metropolitical Power which lies chiefly in these things 1. The Right of Consecration of his Suffragans 2. The Right of Visitation of every Diocess in such Way and Manner as Custom hath settled it 3. The Right of receiving Appeals from Inferiour Courts of Judicature in Ecclesiastical Matters 4. The Right of presiding in Provincial Councils of the Suffragans of his Province which by the most Ancient Constitutions of this Church were to be held once a Year so it was decreed in the Council under Theodore A. D. 673. but by the Difficulties of the times they were discontinued and so the Authority of examining things through the Province came by a kind of Devolution to the Archbishop and his Courts 5. The Custody of vacant Sees by the Custom of England falls to the Metropolitan if there hath been no Custom or Composition to the contrary And so it hath been upon solemn Debates resolved in our Courts of Common Law Coke thinks that of common Right it belongs to the Dean and Chapter but by Custom to the Archbishop But Panormitan saith There was no Pretence of common Right for them till the time of Boniface VIII 2. The ordinary Jurisdiction of every Bishop over the Clergy of his own Diocess This is as ancient as Christianity among us For no sooner were Churches planted but there were Bishops set over them who had from the Beginning so much Authority that none of the Clergy could either receive or quit his Benefice without their Consent and Approbation and they were all bound to give an Account of their Behaviour at their Visitations and in case of Contempt or other Misdemeamours they were to proceed against them according to the Canons of the Church I do not say the Diocesses were at first all modelled alike or with the same Bounds which they now have which was unreasonable to suppose considering the gradual Conversion of the Nation For at first there was but one Bishop in every one of the Saxon Kingdoms except Kent where was but one Suffragan to the Metropolitan for some time till the Kingdoms came to be united or the Kings consented to an Increase of several Diocesses and uniting them under one Metropolitan which was a Work of Time But in all the Saxon Councils we find no mention of any Ecclesiastical Jurisdiction but what was in the Bishops themselves Concil Cloveshoo Can. 1 4 5. Concil Cealchyth Can. 1. Egbert Canon c. 45 62. The first who began to seek for Exemptions were the Abbots who were under the Bishop's Jurisdiction who was too near them and therefore they endeavoured to get under the Pope's immediate Jurisdiction by Charters of Exemption which the great Abbies either procured or made
Right because the Fee-simple abideth in him and his Chapter and so may a Dean and Master of an Hospital And these are called Bodies Politick by Littleton That the Exercise of the Bishop's Power may be restrained by ancient Compositions as is seen in the two Ancient Ecclesiastical Bodies of St. Paul's and Litchfield Concerning which it is to be observed That where the Compositions are extant both Parties are equally bound to observe their parts Thus by the Remisness and Absence of the Bishops of Litchfield from their See by going to Chester and then to Coventry the Deans had great Power lodged in them as to Ecclesiastical Jurisdiction there After long Contests the matter came to a Composition A. D. 1428. by which the Bishops were to visit them but once in Seven Years and the Chapter had Jurisdiction over their own Peculiars So in the Church of Sarum the Dean hath very large Jurisdiction even out of the Bishop's Diocess which makes it probable to have been very ancient but upon contest it was settled by Composition between the Bishop Dean and Chapter A. D. 1391. But where there are no Compositions it depends upon Custom which limits the Exercise although it cannot deprive the Bishop of his Diocesan-Right 4. The Delegate Jurisdiction which was committed to the several Officers of the Bishops Courts and the Manner of their Proceedings is founded upon immemorial Custom In the Saxon times I find no Delegation of Ecclesiastical Jurisdiction for the Bishops sate in person in the County-Courts and there heard Ecclesiastical Causes as appears by the Charter of H. 1. when he pretended to restore the Saxon Laws c. 7. But William I. had settled the Consistory-Court by as good a Law as any was made at that time distinct from the County-Court and required all Ecclesiastical Causes to be there heard and his Son H. 1. did but make a shew of restoring the Saxon Laws and the former Law came to be generally received and so Mr. Selden yields that it grew to be a general Law which shews that it obtained the Force of a Law by Consent as well as by Authority The Consistory-Courts being thus settled and Numbers of Causes there depending and the Bishops being then by H. 2. in the Constitutions of Clarendon strictly tied to Attendance upon the Supreme Courts of Judicature with other Barons there came a Necessity of taking in other Persons with a delegated Power to hear Causes and to do such other Acts of Jurisdiction as the Bishops should appoint For it was still allowed that Iure communi the Jurisdiction was in the Bishop but Iure speciali in auxilium Episcopi it might be delegated to others And so it hath been here received and not only here but it hath been the general Practice of Christendom As to the manner of Proceeding in the Ecclesiastical Courts it is the same in all Parts and built on the same Grounds with those of our Courts of Equity and Admiralty which are as different from those of the Common Law 5. The settling Parochial Rights or the Bounds of Parishes depends upon an ancient and immemorial Custom For they were not limited by any Act of Parliament nor set forth by special Commissioners but as the Circumstances of Times and Places and Persons did happen to make them greater or lesser In some places Parishes seem to interfere when some place in the middle of another Parish belongs to one that is distant but that hath generally happened by an Unity of Possession when the Lord of a Manor was at the Charge to erect a new Church and make a distinct Parish of his own Demesns some of which lay in the Compass of another Parish But now care is taken by Annual Perambulations to preserve those Bounds of Parishes which have been long settled by Custom But the Bounds of Parishes is not allowed to belong to the Ecclesiastical Jurisdiction II. The next Foundation of Law is a General Practice and Allowance i.e. when things of themselves do not oblige by the Authority of those that made them yet being generally received and allowed they thereby become Law to us This we have in an Act of Parliament 25 H. 8. c. 21. wherein it is said That the People of England are only bound to such Laws as are properly their own being in Subjection to no Foreign Legislative Power But were not many things here received for Laws which were Enacted by a Foreign Authority as the Papal and Legatine Constitutions True say they but it is not by Virtue of their Authority but by the free Consent of the People in the Use and Allowance of them And so they are not observed as the Laws of any Foreign Prince Potentate or Prelate but as the customed and ancient Laws of this Realm originally established as Laws of the same by the said Sufferance Consent and Custom and no otherwise So that here we have a full and express Declaration by Parliament That such Canons as have been received and allowed by ancient Custom make a part of our Laws and continue to oblige provided that they be not repugnant to the King's Prerogative nor to the Laws Statutes and Customs of the Realm as it is expressed in another Act of the same Parliament 25 H. 8. c. 19. The Ecclesiastical Laws saith my Lord Coke are such as are not against the Laws of the Realm viz. the Common Law and the Statutes and Customs of the Realm And according to such Laws the Ordinary and other Ecclesiastical Iudges do proceed in Causes within their Conusance So that by the Acknowledgement of this great Oracle of the Common Law there are Laws Ecclesiastical in force among us and Causes to be judged by those Laws and Officers appointed by the Law to proceed according to them The Ecclesiastical Laws and Ordinances are owned by the Statute 27 H. 8. c. 20. 32 H. 8. c. 7. 35 H. 8. c. 19. after the Commission appointed for the Review of them 1 E. 6. c. 2. The Ecclesiastical Courts are appointed to be kept by the King's Authority and Process to be issued out in his Name in all Suits and Causes of Instance between Party and Party where the Causes are particularly mentioned which belong to those Courts and no Alteration is made in them as to their powers but only that the Process should be in the King's Name But some persons in our Age who love to be always starting Difficulties to humour such as bear ill Will to our Constitution have 〈…〉 although this Act was 〈…〉 M. 2. yet that Repeal 〈…〉 â—ac 25. n. 48. therefore 〈…〉 Stat. 1 E. 6. is 〈◊〉 But the plain and short Answer is this That there was no need of any Debate about the Repeal of the Statute of E. 6. after the first of Q. Eliz. because then the Statute 25 H. 8. c. 20. was expresly revived wherein the Bishops were impowered to act as before they might have done according to the Laws and
who hath been Ordained by any other Bishop for if he Ordained him himself he cannot after reject him because the Law supposes him to have examined and approved him except he first shew unto him his Letters of Orders and bring him a sufficient Testimony of his foâ—mer good Life and Behaviour if the Bishop shall require it and lastly shall appear upon due Examination to be worthy of the Ministry But yet in Palmes and the Bishop of Peterborough's Case it was adjudged That no Lapse did accrue by the Clerk's not shewing his Orders for the Bishop upon his not coming to him again collated after six Months But the Court agreed That the Clerk ought to make Proof of his Orders but they differed about the manner of their Proof Anderson said The Bishop might give him his Oath But if a Proof were necessary and the Clerk did not come to make Proof it seems to me to be a very hard Judgment II. The Bishop by the Ecclesiastical Law is to visit his Diocess and to take an account of the Clergy how they behave themselves in the Duties of their Places By the eldest Canons I can find the Bishops Visitation is supposed as a thing implied in his Office whereby he is obliged to look after the good Estate of his whole Diocess and especially of the Clergy in it In the time of Hubert Arehbishop of Canterbury in the beginning of King Iohn's time Care is taken in the Canons then made That Bâ—shops should not be burdensom to the Clergy in the Number of the Attendants in their Visitations which then were Parochial and the Number allowed of Twenty or Thirty Horse was too heavy for the Clergy to bear And therefore by degrees it was thought fit to turn that Charge into a Certainty which was the Original of Procurations By the Fourth Council of Toledo the Bishop was to visit his whole Diocess Parochially every Year The Gloss saith if there were occasion for it and that the Bishop may visit as often as he sees cause but if he be hindered the Canon saith he may send others which is the Original of the Arch-Deacon's Visitation to see not only the Condition of the Churches but the Lives of the Ministers The Council of Braga in the latter end of the Sixth Century makes this the first Canon That all Bishops should visit their Diocesses by Parishes and there should first examine the Clergy and then the People and in another Canon he was required to receive only his Cathedraticum i. e. a certain Sum in lieu of Entertainment which came to be setled by Prescription The Council of Cavailon in France A. D. 831. fixed no Sum but desired the Bishops to be no Burdens to the Clergy in their parochial Visitations Lyndwood saith the Ancient Procuration here was a Day and Nights Entertainment which after came to be a customary Payment But however it was paid it is an evident Proof of the Right of the Bishops Visitations by the Ancient Ecclesiastical Law and by such a Custom as is allowable by the Rules of our Common Law III. There are some Faults which make the Clergy liable to Deprivation by Virtue of the Ecclesiastical Law which was here received I shall name only some of them and conclude these being sufficient for my present purpose I. Excessive Drinking All drinking ad Potus aequales was absolutely forbidden to Clergymen on pain of Suspension after Admonition not only by a Synodical but by a Provincial Constitution under Edmund Archbishop of Canterbury The Canon Law saith in that case ab Officio vel Beneficio suspendatur But our Constitution is more severe à Beneficio Officio The Council of Oxford not only strictly forbids all Clergymen whatever tends to Gluttony and Drunkenness but it requires the Bishops to proceed strictly against those who are guilty according to the Form of the General Council i. e. the Lateran 4. viz. by Admonition first and then Suspension Lyndwood complains That this was not so much looked after as it should be because it brought no Profit I hope that Reason will not hold among those who pretend to Reformation which will be very defective if it extend not to our Lives as well as our Doctrines For there can be no greater Reproach than to see those loose and dissolute in their Conversations who think it their Honour to be Ministers of a Reformed Church It was a stinging Reflection upon our Church by the Archbishop of Spalato who was no very strict Man himself That he saw nothing Reformed among us but our Doctrines I hope there was more of Satyr than of Truth in it for I do not question but there were many then as there are now of Exemplary Lives and Unblameable Conversations but if there be any others it will be the more shame not to proceed against them since even before the Reformation the Canons were so strict and severe in this matter In the Council at Westminster in Henry II. time under Richard Archbishop of Canterbury all Clergymen are forbidden going into Taverns to eat or drink unless upon Travelling and the Sanction of this Canon is aut cesset aut deponatur The same was forbidden in the Council at York in the time of Richard I. in the Council at London under Hubert in the time of King Iohn And since the Reformation the same Canon is renewed That no Ecclesiastical Persons shall at any time other than for their honest Necessities resort to any Taverns or Ale-houses And there have been Instances of the Severity of our Ecclesiastical Censures against Drunkenness in Clergymen In 8 Iac. Parker was deprived of his Benefice for Drunkenness and moved for a Prohibition but it was denied him In 9 Iac. another was deprived for the same Fault and the Judges at Common Law allowed the Sentence to be good No doubt there are other Instances but we had not known of these if they had not been preserved in Books of Reports II. Incontinency Lyndwood saith Those who are proved to be guilty of it are ipso Iure privati but he thinks a Declaratory Sentence of the Ecclesiastical Judges necessary for the Execution of it Since the Reformation we have Instances of Deprivation for Adultery in our Law Books One 12 Eliz. another 16 Eliz. a third 27 Eliz. These are enough to shew that the Ecclesiastical Law is allowed by the Judges of Common Law to continue in sufficient Force for Deprivation in this Case III. Simony Which is the Name given by the Ecclesiastical Law to all Contracts for Gain in the disposing or obtaining any Ecclesiastical Promotion or Ministry It is true these do not come up to the very Sin of Simon Magus which related to the immediate Gifts of the Holy Ghost but because the whole Ministerial Office in all the parts of it especially the Cure of Souls is of a Spiritual Nature and
all Bargains are so repugnant to the Design of it therefore the Ecclesiastical Law hath fixed that detestable Name upon it For all Contractus non gratuiti in these things savour of turpe Lucrum and tend to bring in turpe Commercium into the Church which would really overturn the whole Design of that Ministry which was designed for the Salvation of Souls And therefore it was necessary that when Persons had received by the Favour of Temporal Princes and other Benefactors who were Founders of Churches such Endowments as might encourage them in their Function that severe Laws should be made against any such sordid and mischievous Contracts And such there were here in England long before the excellent Stat. of 31 Eliz. c. 6. although it seems the Force of them was so much worn out as to make that Statute necessary for avoiding of Simony which is there explained to be Corruption in bestowing or getting Possession of Promotions Ecclesiastical In a Council at London under Lanfranc in the Conqueror's time Simony was forbidden under the Name of Buying and selling of Orders And it could be nothing else before the Churches Revenue was setled But in the time of Henry I. Ecclesiastical Benefices were forbidden to be bought or sold and it was Deprivation then to any Clergyman to be convicted of it and a Layman was to be Out-lawed and Excommunicated and Deprived of his Right of Patronage And this was done by a Provincial Synod of that time In the Reign of Henry II. it was decreed That if any Person received any Money for a Presentation he was to be for ever deprived of the Patronage of that Church and this was not meerly a Provincial Constitution but two Kings were present Hen. II. and his Son and added their Authority to it This was not depriving a Man of his Free-hold by a Canon as a Learned Gentleman calls it for here was the greatest Authority Temporal as well as Ecclesiastical added to it But we are told these Canons were of as little Effect as that of Othobon which made all Simoniacal Contracts void but some of the most judicious Lawyers have held that Simony being contractus ex turpi causâ is void between Parties All that I aim at is to shew that by our old Ecclesiastical Law Simoniacus incurred a Deprivation and Disability before the Stat. 31. Eliz. and therein I have the Opinion of a very Learned Judge concurring with me IV. Dilapidations By which the Ecclesiastical Law understands any considerable Impairing the Edifices Woods and Revenues belonging to Ecclesiastical Persons by Virtue of their Places For it is the greatest Interest and Concernment of the Church to have things preserved for the Good of Successors and it is a part of common Iustice and Honesty so to do And the Lord Coke positively affirms That Dilapidation is a good Cause of Deprivation And it was so resolved by the Judges in the Kings Bench 12 Iac. Not by Virtue of any new Law or Statute but by the old Ecclesiastical Law For which Coke refers to the Year-Books which not only shew what the Ecclesiastical Law then was but that it was allowed by the Common Law of England and we are told that is never given to change but it may be forced to it by a New Law which cannot be pretended in this case And by the Old Constitutions here received the Bishops are required to put the Clergy in mind of keeping their Houses in sufficient Reparations and if they do it not within two Months the Bishop is to take care it be done out of the Profits of the Benefice By the Injunctions of Edw. VI. and Queen Elizabeth all Persons having Ecclesiastical Benefices are required to set apart the Fifth of their Revenue to Repair their Houses and afterwards to maintain them in good condition V. Pluralities By the Ecclesiastical Law which was here received the actual receiving Institution into a second Benefice made the first void ipso Iure and if he sought to keep both above a Month the second was void too Lyndwood observes That the Ecclesiastical Law had varied in this matter And it proceeded by these Steps which are more than Lyndwood mentions I. It was absolutely forbidden to have Two Parishes if there were more than Ten Inhabitants in them because no Man could do his Duty in Both Places And if any Bishop neglected the Execution of it he was to be Excommunicated for Two Months and to be restored only upon promise to see this Canon executed II. The Rule was allowed to hold as to Cities but an Exception was made as to small and remote Places where there was a greater Scarcity of Persons to supply them III. If a Man had Two Benefices it was left to his Choice which he would have but he could not hold both This kind of Option was allowed by the Ecclesiastical Law then in force IV. That if he takes a second Benefice that Institution is void by the Third Council of Lateran under Alexander 3. V. That by taking a second the first is void which is the famous Canon of the Fourth Lateran Council VI. That if he were not contented with the last but endeavour to keep both he should be deprived of both And this was the Ecclesiastical Law as it was declared in our Provincial Constitutions But the general Practice was to avoid the former according to the Lateran Council These were very severe Canons but that one Clause of the Pope's Dispensing Power made them to signifie little unless it were to advance his Power and Revenue For when the Dispensing Power came to be owned the Law had very little Force especially as to the Consciences of Men. For if it were a Law of God how could any man dispense with it unless it were as apparent that he had given a Power in some Cases to Dispense as that he had made the Law Those Casuists are very hard put to it who make Residence Iure Divino and yet say the Pope may dispense with it which at last comes only to this That the Pope can authoritatively declare the sufficiency of the Cause so that the whole matter depends upon the Cause whether there can be any sufficient to excuse from Personal Residence It is agreed on all hands that the habitual Neglect of a Charge we have taken upon our selves is an evil thing and that it is so to heap up Preferments meerly for Riches or Luxury or Ambition but the main Question in point of Conscience is What is a sufficient Cause to justifie any Man's breaking so reasonable and just a Rule as that of Residence is It cannot be denied that the eldest Canons of the Church were so strict and severe that they made it unlawful for any Man to go from that Church in which he first received Orders as well as to take another Benefice in it and so for any
to their Brethren and answer to the Accusations brought against them But suppose they will not and others of the Brethren say they ought not and so fall into Heats and Disputes among themselves about it and make new Parties and Divisions Is not this an admirable Way of preserving Peace and Order and Discipline in a Church And I am as certain this is not the Way of Christ's appointing as I am that God is the God of Order and not of Confusion and that when Christ left the Legacy of Peace to his Church he left a Power in some to see his Will performed But these things can never be objected against us for all are Members of the same Body and are governed by certain and known Rules and if any be guilty of open Violation of it the Way is open to accuse and prosecute them and if they be found guilty the Censures of the Church will render them uncapable of doing it in such a Station or at least to bring them to Confession of their Fault and Promise of future Amendment And now I leave any one to judge whether the Parochial Clergy are not under greater and better Discipline than the Teachers of the separate Congregations II. But the great Complaint of such Men is That we want Parochial and Congregational Discipline so that Faults should be examined and punished where they have been committed but instead of that all Matters are drawn into the Ecclesiastical Court and there Causes are managed so as looks rather like a Design to punish Men in their Purses than for their Faults and the Delays are so great that the Court it self seems to be designed for Penance and grows very uneasie even to those who are the Members of our Church And some think that the proceeding against Men upon Articles of Enquiry not so agreeable to the Rights and Liberties of Mankind In answer to this I shall consider 1. The Proceedings upon Enquiry at Visitations 2. The Method of Proceeding in the Ecclesiastical Courts 3. The Inconveniencies of parochial Discipline 1. As to Enquiries at Visitations They were grounded upon one of the main Pillars of our Law viz. an ancient immemorial Custom founded upon good Reason In the first Canons that ever were made in this Church under Theodore Archbishop of Canterbury the second is That every Bishop is to look after the Government of his own Diocess and not to invade anothers And that in so doing they went about their Diocesses in order to an Enquiry and Correction of Miscarriages is evident from the Council under Cuthbert Archbishop of Canterbury Can. 3. 25. the first Council at Calechyth Can. 3. the Constitutions of Odo Archbishop of Canterbury Can. 3. and the Canon of Edgar Can. 3. But in these Saxon times the Visitations were annual which were found inconvenient and therefore in the Norman times the Archdeacons were taken into a part of the Jurisdiction under the Bishop and visited those years the Bishop did not But we meet with no Archdeacons with any kind of Jurisdiction in the Saxon times we read indeed sometimes of the Name of Archdeacons but they had nothing to do in the Diocess but only attended the Bishop at Ordinations and other publick Services in the Cathedral Lanfranc was the first who made an Archdeacon with Jurisdiction in his See And Thomas first Archbishop of York after the Conquest was the first who divided his Diocess into Archdeaconries and so did Remigius Bishop of Lincoln his large Diocess into Seven Archdeaconries saith H. of Huntingdon And so it was with the rest of which there were two Occasions 1. The laying aside the Corepiscopi in the Western Parts as assuming too much to themselves 2. The publick Services which the Bishops were more strictly tied to as the King's Barons in the Norman times Which was the Reason not only of taking in Archdeacons but likewise of Archpresbyters or Rural-Deans who had some Inspection into the several Deanaries and assisted the Bishop in such things as they were appointed to do and then came in the other Ecclesiastical Officers as Vicars General Chancellors Commissaries c. for we read not of them here at all in the Saxon times but about the time of Hen. II. the Bishops took them for their Assistance in Dispatch of Causes when the King required their strict Attendance on the publick Affairs in the Supreme Court of Parliament 2. As to the Method of Proceeding in the Ecclesiastical Courts it is no other than hath been continued here without Interruption till of late years ever since the Conquest For the Consistory-Court and the Rules of Proceeding there were established by a Law in the time of William the First As far as I can find by King Edward's Laws c. 4. the Bishops did then proceed by the Ecclesiastical Laws although they then sat in the County-Court but this caused so much Confusion that William by a general Consent and a Charter directed to all the People of England doth separate the Ecclesiastical from the Temporal Courts which was enrolled as good Law 2 R. 2. upon occasion of a Suit of the Dean and Chapter of Lincoln and therefore the Charter of Remigius Bishop of Lincoln is more mentioned than others but the same was to all the Bishops and Counties of England as appears by other Copies of it Thus the Consistory-Court was first established as a distinct Court from the County-Court which it was not in the Saxon times for then the Bishop sate with the Civil Magistrate in the same Court and Ecclesiastical Causes were first heard and decided there It seems the People wer very unwilling to go to a new Place and therefore the Law is inforced with severe Penalties for Contempt And those who object against the Reasonableness of the Method of Proceeding in those Courts must reflect upon some of the wisest Nations in the World who have gone upon the same Grounds in all that have received the Civil Law and upon some of the greatest Courts at this time in the Kingdom as the Chancery and Admiralty which go by the same Fundamental Rules As to any Objections which arise from the personal Faults of those who are imployed in them that reaches I am afraid to all Courts and it ought to be the Work and Business of those who look after them to do what in them lies to reform them that others Faults may not be laid at their Doors 3. But for those who would have a Parochial or Congregational Discipline set up as much better and more effectual I shall desire them to consider that since Matters of Discipline are such as that in them the Reputation and Interest of Persons is very much concerned they ought not to be left to Arbitrary Proceedings of any Persons but they ought to be managed by the certain and common Rules of Justice since every Man hath a Right to defend himself when he is accused And unless there be known and
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
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
Customs of the Realm By which no less Men of the Law than Coke Popham and other Judges did think the Stile of the Court and Manner of their Proceedings was comprehended And the Ancient Episcopal Iurisdiction is declared to be according to Law by the Stat. 1 El. c. 1. and all Foreign Iurisdiction is abolished and the Ecclesiastical Iurisdiction annexed to the Crown of this Realm which is owned by every Bishop when he takes the Oath of Supremacy How then can it be imagined that he should do any more to the Prejudice of the Crown by the Process being in the Bishop's Name than the Lord of a Manor doth when he keeps his Courts in his own Name To suppose that it is owning a Foreign Iurisdiction is ridiculous for the Bishops of England never pretended to act as Ordinaries by Virtue of a Jurisdiction from the Pope but by Virtue of their Original Authority which they had by the Laws of the Realm as to their exterior Jurisdictions And the Authority they then acted by from the Pope was in Cases extraordinary when they were delegated by particular Commission And if there had been any real Derogation from the King's Prerogative in the Process being in the Bishop's Name can any Man of Sense imagine that it would have been permitted in such jealous times as to Supremacy as the latter end of H. 8. and the whole Reign of Q. Elizabeth were wherein the Bishops wanted not Enemies but their Malice would have been too apparent if they had insisted on such Objections But to proceed in shewing that the Ecclesiastical Laws have been owned by Acts of Parliament since the Reformation 2 E. 6. c. 13. n. 13. The Ecclesiastical Iudges are required to proceed according to the King 's Ecclesiastical Laws And to the same purpose 1 El. c. 2. n. 23. Accordingly my Lord Coke frequently owns the Ecclesiastical Laws and Iurisdiction so they be bounded by the Laws of the Realm of which there can be no Question For deciding of Controversies and for distribution of Iustice saith he there be within this Realm two distinct Iurisdictions the one Ecclesiastical limited to certain spiritual and particular Cases the other secular and general for that it is guided by the common and general Law of the Realm And to the same purpose my Lord Chief Justice Hales in several places in a MS. Discourse of the History and Analysis of the Common Law ch 1 and 2. But here the great Difficulty lies in finding out what these Canons and Constitutions are which have been so received and allowed by our Laws For it is certain that several Canons made by Popes were not received here as in the Statute of Merton about Legitimation of Children born before Marriage Stat. Mert. c. 9. where the Lords declared they would not alter the old Laws for a new Canon For Alexander III. in the time of Hen. II. had made a Canon to that purpose but as Glanvil saith it was contra jus consuetudinem Regni The Canon to take away the Benefit of the Clergy from Bigami was debated in Parliament how far it should be received and the Sense there declared which was complained of 51 E. 3. and taken away 1 E. 6. c. 12. The Canon against Investiture of Bishops by a Lay-hand was never here received for although H. 1. after a long Contest gave it up yet it was resumed by his Successors The Canons for Exemption of the Clergy were never fully received here Some Lawyers say it was never observed I suppose they mean according to the Canons but that they had legal Privileges here although not a total Exemption cannot be denied by any one versed in our Laws from the Saxon times The Pope's Canon for the Clergy not being taxed without his consent was never received as appears by the Contests about it in the time of E. 1. and their Submission afterwards The Pope's Canons about Appeals Provisors Dispensations c. were never received by such a general Consent as to make them Laws they were sometimes practised by Connivence and the Kings when it served their purposes let them alone but as often as there was occasion they were contested and denied and Statutes made against the Execution of them Some Canons I find disputed whether they were received by the Law of England or not As the Canon against Clergy mens Sons succeeding their Fathers in their Benefices immediately without a Papal Dispensation is not only a part of the Canon Law but enter'd in our Provincial Constitutions But in the Case of Stoke against Sykes it was held by Dodderidge and Iones two learned Judges That this Canon was not received here And Dodderidge instanced in two other Canons not received as against a Man's marrying a Woman he had committed Adultery with and a Lay-man's not revoking his first Presentation And Sir Iohn Davis mentioned reckoning the Months for Presentation by Weeks and not by the Calendar But both these are disputable Points For some say as to the former That none but the King can revoke a Presentation But the Canonists think a private Patron may vary with the Bishop's Consent And as to the way of computing the Months it hath been differently resolved but in Catesbie's Case it was determined to be Calendar-Months for many Reasons But in the ancient Resolution in the time of E. II. the Tempus semestre was reckoned from Notice to the Patron and not from the Death of the Incumbent Rolls saith By our Law it is from the time the Patron might have notice with regard to the distance of the Place where the Incumbent died Which leaves the matter uncertain But the Register reckons from the Vacancy In many other Cases the foreign Canons were not received for they allow but Four Months to a Lay-Patron but our Law Six Months they deny any Sale of a Right of Advowson but our Law allows it and a Separation of it from the Inheritance which the Canon Law allows not and so in other particulars but these are sufficient to my purpose It is observable that after the Council of Lions where the Pope was present Peckham Archbishop of Canterbury called a Provincial Council wherein he mentions the difference of our Customs from all others and a Temperament to be made suitable to them And our Judges in the great Case of Evans and Ayscough declared That no Canons bind here but such as are recieved by the Realm And Dodderidge said That our Ecclesiastical Law doth not consist of the Pope's Decretals but is an Extract out of the Ancient Canons General and National But the Judges agreed That when they are received they become part of our Law Lord Chief Justice Vaughan saith That if Canon Law be made a part of the Law of the Land then it is as much the Law of the Land and as well and by the same Authority as
License but if any one preached in other parts of the Diocess or were a Stranger in it then he was to be examined by the Diocesan and if he were found tam Moribus quam Scientia idoneus he might send him to preach to one or more Parishes as he thought meet and he was to shew his License to the Incumbent of the Place before he was to be permitted to preach under the Episcopal Seal And thus as far as I can find the Matter stood as to Preaching before the Reformation After it when the Office of Ordination was reviewed and brought nearer to the Primitive Form and instead of delivering the Chalice and Patten with these words Accipe potestatem offerre Deo Sacrificium c. the Bishop delivered the Bible with these words Take thou Authority to Preach the Word of God and to Minister the Holy Sacraments in the Congregation c. The Priests Exhortation was made agreeable thereto wherein he exhorts the Persons in the Name of our Lord Jesus Christ to consider the Weight and Importance of the Office and Charge they are called to not barely to instruct those who are already of Christ's Flock but to endeavour the Salvation of those who are in the midst of this naughty World And therefore he perswades and charges them from a due regard to Christ who suffered for his Sheep and to the Church of Christ which is so dear to him to omit no Labor Care or Diligence in instructing and reforming those who are committed to their Charge And the better to enable them to perform these things there are some Duties especially recommended to them viz. Prayer and Study of the Holy Scriptures according to which they are to instruct others and to order their own Lives and of those who belong to them And that they might the better attend so great a Work they are required to forsake and set aside as much as they may all worldly Cares and Studies and apply themselves wholly to this one thing that they may save themselves and them that hear them After which follows the solemn Profession wherein they undertake to do these things This is that my Brethren which I earnestly desire of you that you would often consider You are not at liberty now whether you will do these things or not for you are under a most solemn Engagement to it You have put your Hands to the Plough and it is too late to think of looking back and you all know the Husbandman's Work is laborious and painful and continually returning It is possible after all his Pains the Harvest may not answer his Expectation but yet if he neither plows nor sows he can expect no Return if he be idle and careless and puts off the main of his Work to others can he reasonably look for the same Success Believe it all our Pains are little enough to awake the sleepy and secure Sinners to instruct the Ignorant to reclaim the Vitious to rebuke the Profane to convince the Erroneous to satisfie the Doubtful to confirm the Wavering to recover the Lapsed and to be useful to all according to their several Circumstances and Conditions It is not to preach a Sermon or two in a Weeks Time to your Parishioners that is the main of your Duty that is no such difficult Task if Men apply their minds as they ought to do to Divine Matters and do not spend their Retirements in useless Studies but the great Difficulty lies in Watching over your Flock i. e. knowing their Condition and applying your selves uitably to them He that is a Stranger to his Flock and only visits them now and then can never be said to watch over it he may watch over the Fleeces but he understands little of the State of his Flock viz. of the Distempers they are under and the Remedies proper for them The Casuists say That the Reason why there is no Command for Personal Residence in Scripture is because the Nature of the Duty requires it for if a Person be required to do such things which cannot be done without it Residence is implied As a Pilot to a Ship needs no Command to be in his Ship for how can he do the Office of a Pilot out of it Let none think to excuse themselves by saying that our Church only takes them for Curates and that the Bishops have the Pastoral Charge for by our old Provincial Constitutions which are still in force so far as they are not repugnant to the Law of the Land even those who have the smallest Cures are called Pastors and Lyndwood there notes that Parochialis Sacerdos dicitur Pastor and that not meerly by way of Allusion but in respect of the Care of Souls But we need not go so far back For what is it they are admitted to Is it not ad curam Animarum Did not they promise in their Ordination To teach the People committed to their Care and Charge The Casuists distinguish a threefold Cure of Souls 1. In foro interiori tantum and this they say is the Parochial Cure 2. In foro exteriori tantum where there is Authority to perform Ministerial Acts as to suspend excommunicate absolve sine Pastorali Curâ and this Archdeacons have by Virtue of their Office 3. In utroque simul where there is a special Care together with Jurisdiction this is the Bishops And every one of these say they secundum commune Ius Canonicum is obliged to Residence i. e. by the common Law Ecclesiastical of which more afterwards The Obligation is to perpetual Residence but as it is in other positive Duties there may other Duties intervene which may take away the present force of it as care of Health necessary Business publick Service of the King or Church c. But then we are to observe that no Dispensation can justifie a Man in point of Conscience unless there be a sufficient Cause and no Custom can be sufficient against the natural Equity of the Case whereby every one is bound from the Nature of the Office he hath undertaken I confess the case in Reason is different where there is a sufficient Provision by another fit Person and approved by those who are to take care that Places be well supplied and where there is not but yet this doth not take off the force of the Personal Obligation arising from undertaking the Cure themselves which the Ecclesiastical Law understands to be not meerly by Promise but cum effectu as the Canonists speak which implies personal Residence Not that they are never to be away Non sic amarè intelligi debet ut nunquam inde recedat saith Lyndwood but these Words are to be understood civili modo as he expresses it i. e. not without great Reason There must not be saith he callida Interpretatio sed talis ut cessent fraudes negligentiae i. e. There must be no Art used to evade the Law nor any gross Neglect of
will be the diligent Labours and the exemplary Lives of the Clergy in it But if Men will not regard their own or the Churches Interest in this matter if they will break their Rules in such a manner as to dishonour God and the Church and themselves by it then you are to consider the next thing I was to speak to which is II. What Authority is given to us for the punishing Offenders in our Diocesses by the Ecclesiastical Law of this Realm For this we are to consider That our Authority herein is not derived from any modern Canons or Constitutions of this Church altho' due Regard ought to be shewed to them but from the ancient Common Law Ecclesiastical in this Realm which still continues in force For as there is a Common Law with respect to Civil Rights which depends not on the Feudal Constitutions altho' in many things it be the same with them but upon ancient Practice and general Consent of the People from Age to Age. So I say there is a Common Law Ecclesiastical which altho' in many things it may be the same with the Canon Law which is read in the Books yet it hath not its force from any Papal or Legatine Constitutions but from the Acceptance and Practice of it in our Church I could easily shew if the time would permit that Papal and Legatine Constitutions were not received here altho' directed hither that some Provincial Constitutions never obtained the Force of Ecclesiastical Laws but my business is to shew what did obtain and continue still to have the Force of such Ecclesiastical Laws among us By the Statute of 25 H. 8. c. 19. it is declared That such Canons Constitutions Ordinances and Synodals Provincial being already made which be not contrariant nor repugnant to the Laws Statutes and Customs of this Realm nor to the Damage or Hurt to the King's Prerogative Royal shall now still be used and executed as they were afore the making of this Act c. It 's true a Review was appointed but such Difficulties were found in it as to the shaking the Foundations of the Ecclesiastical Law here that nothing was ever legally established in it and therefore this Law is still in force In the Statute 25 H. 8. c. 21. it is said That this Realm Recognizing no Superiour under God but the King hath been and is free from Subjection to any Man's Laws but only to such as have been Devised Made and Observed within this Realm for the Wealth of the same or to such other as by the Sufferance of the King and his Progenitors the People of this Realm have taken at their free Liberty by their own Consent to be used amongst them and have bound themselves by long Use and Custom to Observance of the same not as to the Observance of the Laws of any Foreign Prince Potentate or Prelate but as to the Customs and ancient Laws of this Realm originally established as Laws of the same by the said Sufferance Consent Custom and none otherwise All that I have now to do is to shew what Authority the Bishops had over the Clergy by the Ancient Ecclesiastical Law of this Realm and what Censuâ—es they were liable to for some particular Offences I. By the Ecclesiastical Law the Bishop is Iudge of the Fitness of any Clerk presented to a Benefice This is confessed by the Lord Coke in these Words And the Examination of the Ability and Sufficiency of the Person presented belongs to the Bishop who is the Ecclesiastical Iudge and in the Examination he is a Iudge and not a Minister and may and ought to refuse the Person presented if he be not Persona idonea But this is plain to have been the Ancient Ecclesiastical Law of this Realm by the Articul Cleri in Edw. II. time De Idoneitate Personae praesentatae ad Beneficium Ecclesiasticum pertinet Examinatio ad Iudicem Ecclesiasticum ita est hactenus usitatum fiat in futurum By the Provincial Constitutions at Oxford in the time of Hen. III. the Bishop is required to admit the Clerk who is presented without Opposition within two Months dum tamen idoneus sit if he thinks him fit So much time is allowed propter Examinationem saith Lyndwood even when there is no Dispute about Right of Patronage The main thing he is to be examined upon is his Ability to discharge his Pastoral Duty as Coke calls it or as Lyndwood saith whether he be commendandus Scientia Moribus As to the former the Bishop may judge himself but as to the latter he must take the Testimonials of others and I heartily wish the Clergy would be more careful in giving them by looking on it as a Matter of Conscience and not meerly of Civility for otherwise it will be impossible to avoid the pestering the Church with scandalous and ignorant Wretches If the Bishop refuses to admit within the time which by the Modern Canons is limited to Twenty eight Days after the Presentation delivered he is liable to a Duplex Querela in the Ecclesiastical Courts and a Quare impedit at Common Law and then he must certifie the Reasons of his Refusal In Specot's Case it is said That in 15 Hen. 7. 7 8. all the Iudges agreed that the Bishop is Iudge in the Examination and therefore the Law giveth Faith and Credit to his Iudgment But because great Inconveniencies might otherwise happen the general Allegation is not sufficient but he must certifie specially and directly and the general Rule is and it was so resolved by the Judges That all such as are sufficient Causes of Deprivation of an Incumbent are sufficient Causes to refuse a Presentee But by the Canon Law more are allowed In the Constitutions of Othobon the Bishop is required particularly to enquire into the Life and Conversation of him that is presented and afterwards that if a Bishop admits another who is guilty of the same Fault for which he rejected the former his Institution is declared null and void By the Canon Law if a Bishop maliciously refuses to admit a fit Person he is bound to provide another Benefice for him but our Ecclesiastical Law much better puts him upon the Proof of the Cause of his Refusal But if the Bishop doth not examine him the Canonists say it is a Proof sufficient that he did it malitiosé If a Bishop once rejects a Man for Insufficiency he cannot afterwards accept or admit of him as was adjudged in the Bishop of Hereford's Case If a Man brings a Presentation to a Benefice the Bishop is not barely to examine him as to Life and Abilities but he must be satisfied that he is in Orders How can he be satisfied unless the other produce them How can he produce them when it may be they are lost What is to be done in this Case The Canon is express That no Bishop shall institute any to a Benefice
Good as it was before And could they hope it would ever mend by their running away from it Or was their Duty become more easie by declining it I think it was very well for the Church of God that notwithstanding their own many Arguments they took the Sacred Office upon them at last and did God and the Church good Service in it But if Men were to judge by their Writings upon this Argument one would think none but those who had a mind to be damned would undertake it And their great Strains of Wit and Eloquence if they had any Force would keep the best Men out of the Church who were most likely to do God Service in it and we need no other Instances than these very Persons themselves And if all good and humble and conscientious Men should for the sake of the Hardness of the Work decline the Church's Service and take any other lawful Imployment what would become of the Church of God For none that had or intended to keep a good Conscience could undertake the Cure of Souls and so they must be left to such as had no Regard to their own but were either ignorant stupid and senseless Creatures or such as regarded not their own Salvation who durst undertake such a Task as would not only add to their own Guilt but bring the heavy Load of other Mens Faults upon them too What is now to be done in this Case Hath God really imposed such a Task upon all those who enter into this Sacred Function that it is morally impossible for an honest Man to discharge it with a good Conscience How then can any such undertake it But if it may be done what are those Bounds and Rules we are to observe so as a good Man may satisfie himself in a competent Measure that he hath done his Duty II. And this is that which I shall now endeavour to clear For every one who is in Orders hath a double Capacity One with Respect to the Church of God in General another to that particular Flock which is allotted to him by the Constitution of this Church and the Law of the Land For although the Nature of our Duty in general be determined by the Word of God as I have already ready shewed yet the particular Obligation of every one to his own Flock is according to that Power and Authority which by the Rules and Orders of this Church is committed to him and is fully expressed in the Office of Ordination By which it plainly appears that the Care of Souls committed to Persons among us is not an absolute indefinite and unaccountable Thing but is limited as to Place Persons and Duties which are incumbent upon them They are to teach the People committed to their Charge By whom By the Bishop when he gives Institution They are to give private as well as publick Monitions and Exhortations as well to the sick as to the whle What to all No but to those within their Cure They are to banish erroneous Doctrines and to promote Peace and Love especially among them committed to their Charge And last of all they are to Obey those who have the Charge and Government over them These things are so express and plain in the very Constitution of this Church and owned so solemnly by every one that enters into Orders that there can be no Dispute concerning them And from thence we observe several things that tend to the Resolution of the main Point as to the Satisfaction of doing your Duties as Incumbents on your several Places I. That it is a Cure of Souls limited as to Persons and Place i.e. within such a Precinct as is called a Parish II. That it is limited as to Power with Respect to Discipline Therefore I shall endeavour to clear these Two Things I. What the just Bounds and Limits of Parochial Cures are II. What is the Measure of that Diligence which is required within those Bounds As to the former we are to begin with the Limitation as to Place I. That it is a Cure of Souls limited within certain Bounds which are called Parishes which are now certainly known by long Usage and Custom and ought still to be preserved with great Care for otherwise Confusion and Disputes will arise between several Ministers and several Parishes with one another For since the Duties and the Profits are both limited it is necessary that those Bounds should be carefully preserved as they generally are by Annual Perambulations But there are some who will understand nothing of this bounding of Ministerial Duties by distinct Parishes who think they are at liberty to exercise their Gifts where-ever they are called and that it were better that these parochial Inclosures were thrown open and all left at liberty to chuse such whom they liked best and under whom they can improve most These things seem to look plausibly at the first Appearance and to come nearest to the first gathering of Churches before any such thing as Parishes were known But to me this Arguing looks like Persons going about now to overthrow all Dominion and Property in Lands and Estates because it seems not so agreeable with the first natural Freedom of Mankind who according to the Original Right of Nature might pick and chuse what served most to their own Conveniency But although this were the first State of things yet the great Inconveniencies which followed it upon the Increase of Mankind made Division and Property necessary and altho' there be no express Command of God for it yet being so necessary for the Good of Mankind it was not only continued every where but those Persons were thought fit to be punished by severe Laws who invaded the Rights and Properties of others either by open Violence and Rapine or by secret Stealth and Purloining I grant that at first there were no such Parochial Divisions of Cures here in England as there are now For the Bishops and their Clergy lived in Common and before that the Number of Christians was much increased the Bishops sent out their Clergy to preach to the People as they saw Occasion But after the Inhabitants had generally embraced Christianity this Itinerant and Occasional going from Place to Place was found very inconvenient because of the constant Offices that were to be administred and the Peoples knowing to whom they should resort for Spiritual Offices and Directions Hereupon the Bounds of Parochial Cures were found necessary to be settled here by degrees by those Bishops who were the great Instruments of converting the Nation from the Saxon Idolatry But a Work of this Nature could not be done all at once as by a kind of Agrarian Law but several Steps were taken in order to it At first as appears by Bede they made use of any old British Churches that were left standing so Augustin at first made use of St. Martin's near Canterbury and after repaired Christs-Church which were both British Churches But Ethelbert gave all
years For nothing can be plainer in our History than what is affirmed in two of our Laws Stat. of Carlisle 25 E. 1. and the Stat. of Provisors 25 E. 3. That the Church of England was founded in Prelacy or Diocesan Episcopacy For our first Bishops were so far from being confined to one Church or Town that at first in the Saxon-Division of Kingdoms every Bishop had his Diocess equal with the Extent of the Kingdom except in Kent where one Suffragan to the Archbishop at Rochester was confirmed The first Conversion of the English Nation to Christianity from Paganism was by the Diocesan Bishops who were sent hither from several Parts and the Presbyters imployed by them and as the Number of Christians increased the Number of Bishops did so too so that in the Parts of Mercia one Diocess was divided into five that they might the better look after the Government of them and every Bishop as appears by the Saxon-Councils was bound to see parochial Churches built and the Clergy to be settled in them to attend upon the Duties of their Function among the people committed to their Charge That which I have aimed at in this Discourse was to shew That the Original Constitution of this Church was Episcopal but yet that the Bishops did still design to fix a Parochial Clergy under them as Churches could be built and endowed It remains now to shew That this Constitution of a Parochial Clergy is more reasonable than that of an unfixed and unsettled Clergy by Law which will easily appear if we consider 1. The greater Advantage as to Unity and real Edification among the People For this makes them to be as one Body within certain Bounds And the People know whither to resort for publick Worship and Sacraments and the Inconveniencies as to the difference of Mens Abilities is not so great as the Inconveniency of a broken divided people as to Religion which always creates Suspicions and Jealousies and generally Contempt and Hatred of each other And I think every wise and good Christian will consider that which tends to Peace and Unity is really more Edifying than a far better Talent of Elocution or the most moving Way of exciting the Fancies and Passions of Hearers For S. Paul tells us Charity is beyond miraculous Gifts It is easie to observe that the wisest Methods are seldom the most popular because the generality of Mankind do not judge by Reason but by Fancy and Humour and Prejudices of one kind or other From hence the Heats of Enthusiasm and odd Gestures and vehement Expressions with no deep or coherent Sense take much more with ordinary and injudicious people than the greatest Strength and clearness of Reason or the soundest Doctrine and the most pious Exhortation if they be not set off in such a Way as strikes their Imaginations and raises their Passions And this is that which such do commonly call the most Edifying Way of Preaching which is like the coming up of the Tide with Noise and Violence but leaves little Effect whereas the other is like a constant Stream which goes on in a steady and even Course and makes the Earth more fruitful The one is like a Storm of Thunder and Lightning which startles and confounds and amuses more but the other is like a gentle Rain which softens and mellows the Ground and makes it more apt to produce kindly and lasting Fruit. We are to judge of true Edification not by the sudden Heat and Motion of Passions but by producing the genuine Effects of true Religion which are fixing our Minds on the greatest and truest Good and calming and governing our disorderly Passions and leading a godly righteous and sober Life But we too often find violent and boisterous Passions an ungovernable Temper Envy Strife and Uncharitableness growing up with greater Pretences to Zeal and better Ways of Edification I never expect to see the World so wise as to have Persons and Things universally esteemed according to their Real Worth For there will be a Tincture in most persons from Temper and Inclination and the Principles of Education but generally speaking Matters of Order and Decency and Things which tend to a publick Good affect those most who have the best Judgment and Temper and irregular Heats and disorderly Methods of praying and preaching those whose Religion makes more Impression upon their Fancies than their Judgments and is seen more in the inflaming their Passions than in keeping them in their due Order 2. There is a greater Advantage as to Discipline For if among the Teachers they are under no Bounds nor Subjection to a Superiour Authority it is very easie to avoid any kind of Censure for the most corrupt Doctrines or Practices We cannot boast much of the strict Exercise of Discipline among us and one great Reason is That many have more mind to complain of the Want of it than to do their Endeavour to amend it We hear of many Complaints of the Clergy in general and sometimes by those who have more mind to have them thought guilty than to prove them so for fear they should acquit themselves or at least the Church should not bear the blame of their Miscarriages But we cannot proceed arbitrarily we must allow them timely notice and summon them to appear and a just Liberty of Defence but if upon Proof and sufficient Evidence we have not proceeded against them with the just Severity of the Law then we ought to bear the Blame but not otherwise But whatsoever personal Neglects or Faults there have been or may be my Business is to shew that our Way is much better fitted for the just Exercise of Discipline than that of Independant Congregations altho' the Managers of them pick and cull out the best they can for their Purpose and one would think when they had made choice of Members to their mind and bound them together by an Explicit Covenant they should be very easie and tractable and submissive to their own Discipline But they have found the contrary by their sad Experience they grow too heady and wilful to bear any such thing as strict Discipline for when they had the Courage to exercise it their Congregations were soon broken to pieces and the several divided Parts were for setting up new Heads one against another till at last they found it was much easier to be Teaching than to be Ruling Elders And so they have let the Reins of Discipline fall to keep their Congregations together But suppose the Teachers should fall out among themselves as to give a fresh and late remarkable Instance Suppose some set up Antinomianism and preach such Doctrines to the People or Flocks before you which others think of dangerous Consequence What is to be done in such a Case They may send some Brethren to enquire whether the Matters of fact be true Suppose they find them true What then What is to be done next It may be some would have them come up
Church That no Man can serve two Masters c. but all their Reasons were not of this sort For the Council of Toledo speaks home That one Man cannot perform his Duty to more than one Charge To the same purpose the Sixth Council at Paris and withal That it brings a Scandal on the Christian Church and an Hinderance to Publick Worship and the Good of Souls and savours too much of a worldly Mind which are weighty Arguments The only considerable thing on the other side is That the Bishops are to take care that the Places be duly supplied but whether it be done by Parson Vicar or Curate is not material But this will not hold For 1. the Care of Souls is committed personally to him that doth undertake it And a Regard is had to the Qualifications of the Person for such a Trust by the Patron that presents and the Bishop who admits and institutes the Person so qualified 2. The old Canons were very strict as to personal Residence so as to fix them in their Cures from which they could not go away when they pleased which they called Promissionem stabilitatis Our Saxon Canons are clear as to the personal Cure Can. Egbert 1. 4 6. Populo sibi commisso and no Presbyter could leave his Cure and go to another only for Honour or Profit Can. 13. And none could go from one Bishop to another without his Diocesan's Leave Concil Herudford c. 5. Egbert de Eccles. Instit. p. 97 100. And when the Bishop gives Institution he commits the Care of Souls to the Incumbent and not meerly the Care that Divine Offices be there performed But yet it is well observed by Aquinas That if the having more Benefices than one were a thing evil in it self it could in no case be dispensed with but there are some Actions which in general are irregular yet in some cases may be justified especially if they be extraordinary as to Publick Service and Usefulness c. And to the same purpose Cajetan speaks but he saith The Cases that make it lawful must relate to a Publick and not a Private Good but he mentions these things which excuse from Residence 1. Lawful Impediments as to Health c. 2. Publick Service And others say a Geometrical Proportion ought to be observed in the Distribution of Ecclesiastical Benefices and not an Arithmetical i. e. A Regard ought to be had to the Merits and Capacities of Persons as a Commander hath more Pay than many common Souldiers but this reaches only to the Value and not to the Number of Benefices But the Question still remains Whether a Legal Dispensation take not off the Obligation in Point of Conscience since it is allowed by Law and the Curate appointed by the Bishop who committed the Cure of Souls to him In answer to this we must consider 1. That the Law proposes in Dispensations very allowable Ends as Publick Service Incouragement of Learning Reward of Merit and therefore Doctors by Favour have not the Privilege which others have and in case of Incompetency as it was then judged no Legal Dispensation was needful 2. Some Ancient Canons took care of the Supply of the Place by competent Persons and in that case abated the Rigour of the Canon For Sirmondus saith in the Canon of the Council of Nantz against Pluralities this Clause was added Unless he hath Presbyters under him to supply the Duties of his Place And the same Clause is in Regino l. 1. c. 254. and Regino puts it among the Articles of Enquiry as to the Clergy If any had more Churches than one without Presbyters to assist him And in their old Admonition to them at Visitations it is to the same purpose but in others it is left out Thomassin is of Opinion That the former Enquiry related to those who had Chapels and not to more Churches because then there were none that had Titles upon anothers Benefice but these Words are express as to more Churches It 's true there were no such Titles then for a Title in the old Canon Law was the Relation which a Clergyman stood in to the Bishop of his Diocess being one of his Clergy and so the Greek Canonists understand a Man 's not being ordained without a Title and not having two Churches i. e. not to have Relation to two Diocesses and so sine Titulo is without being owned by some Bishop and this was that which they thought ought to be strictly observed and to which purpose many Canons were made both ancient and later and if any deserted their Bishop they were liable to Deprivation Afterwards the Word Title came to be applied to parochial Churches but there were some who found out that the Ancient Canons had another Sense Thence in the Council of Placentia in the Canon Sanctorum Dist. 70. c. 2. it was decreed That one might have two Churches in the same Diocess but not two Preferments in several Cathedrals And in the Council of Clermont A. D. 1095. the Reason is given because according to the Canons no Man could have-two Titles and every one was bound to hold to the Title to which he was first ordained But after all the Council of Nantz shews plainly that more parochial Titles were then allowed if well provided for by such persons as the Bishop of the Diocess approved Now this very much alters the State of the case for then the Obligation is Real and not Personal 3. It was agreed by the Ancient Canons That where there was an Incompetency of Maintenance they allowed an Union for support now that is but the Bishop's Act in joyning what had been divided supposing a sufficient Subsistence And a reasonable Distance with the Bishop's Allowance hath the same Equity i.e. the Bishop's Act may unite two small Benefices for a Support not by a perpetual Union but so long as he sees cause which our Law doth still allow under such a Value But it is rather a Dispensation than an Union for the Rights continue distinct In the Court of Rome there were Prerogative Unions ad Vitam which were very scandalous and are owned by the best Canonists to be destructive of all Order and invented to defeat the Canons against Pluralities But the Unions which the Law allows are only those where two distinct Benefices are made one for a competent Subsistence and then if the Union be reasonable the Dispensation within due Distance is so too Balsamon saith In the Greek Church Pluralities are not forbidden if they be near and under the same Bishop but they did not allow the same Man to be under two Bishops In the Capitulars that Clause is added That no Man shall have more Livings than one si Facultas suppetit if it affords a reasonable Subsistence And therefore in case of Incompetency of Maintenance of a good Provision for Curates and of
to speak more afterwards But in the Saxon times here were other sorts of Oblations As 1 the Cyrycsceat or First-fruits of Corn payable at S. Martin's day Ina LL. 4. 62. Edmund c. 2. and is often mentioned in Doomsday-book and in Fleta l. 2. c. 47. Malmsb. l. 2. c. 11. and the Oblation of Poultrey at Christmas is mentioned in Doomsday under that Title 2. There was here another kind of Oblation called Plow-Alms which was a Peny for every Plow between Easter and Whitsontide This is mentioned in the Laws of King Ethelred and required to be paid Fifteen days after Easter although it be called Eleemosyna Aratralis In the Endowment of the Vicarage of S. Ives Plow-Alms is mentioned besides the Altarage and Obventions But all these Oblations made a very poor Subsistence for the Parochial Clergy III. And therefore I come to the main Legal Support of the Parochial Clergy which is in Tithes Concerning which I shall proceed in this Method I. To consider the Foundation in Law which they stand upon II. The Rules of Law which are to be observed about them I. As to the Foundation they stand upon in point of Law My Lord Coke not only saith That the Parochial Right of Tithes is established by divers Acts of Parliament but he mentions the Saxon Laws before the Conquest for the Payment of Tithes of Edward and Gathrun Ethelstan Edmund Edgar Canutus and King Edward ' s confirmed by William I. Hobart saith That Tithes are things of common Right and do of Right belong to the Church And since Parishes were erected they are due to the Parson except in spiritual regular Cases or Vicar of the Parish In the Register of Writs a Book of great Authority there is a Writ of Consultation for Tithes wherein they are owned to be of common Right as well as immemorial Custom due to the Rector within the Limits of his Parish Lord Chief Justice Dyer saith That Tithes can never be extinguished because they are of common Right The same is affirmed by Justice Dodderidge in the Case of Fosse and Parker In Pieddle and Napper's Case Tithes are said to be an Ecclesiastical Inheritance collateral to the Estate in Land and of their own Nature due to an Ecclesiastical Person And That all Lands of common Right are to pay Tithes Therefore it is said by Hobart in Slade's Case That no Land can be discharged of Tithes although it may be discharged of the actual Payment In Popham's Reports we read That it is a Maxim in Law that all Persons ought to pay Tithes and all Lands shall be charged with them of common Right So that if the Judgment of some of the greatest Men of the Profession may be taken nothing can be more clear and evident than the Legal Right of Tithes But it falls out unhappily among us that nothing hath been the Occasion of so much Difference and Contention between the Incumbents and their Parishioners than the Point of the Payment of Tithes So that some have wished them changed into some other way of Maintenance but I cannot see any Reason why so ancient so legal so just a Maintenance should be changed into any other which would less answer the End and be liable to as many Difficulties if not far more but every Change of this kind where we cannot be secured of the Event is very dangerous especially when it proceeds from Want of Judgment or Ill-will to the Profession both which are to be suspected in this case If the ill Humours of some People could be changed it would signifie far more to the Quiet of the Clergy than altering their legal Maintenance Therefore the best way is to enquire into the Reasons of this Dissatisfaction that we may find out the proper Methods to remove it and thereby to prevent the troublesom and vexatious Suits about them which make the parochial Clergy so uneasie and their Labour often unsuccessful with the People And there is a twofold Dissatisfaction which lies at the bottom of most of these Contentions about Tithes 1. In Point of Conscience 2. In Point of Law 1. In Point of Conscience There is a sort of People among us who are very obstinate in this Matter and will rather chuse to go to Prison and lie there than pay their Tithes I have often thought whence such a Stiffness should arise in a matter of Legal Right If they had opposed all Determinations of Property by Law they had been more consistent with themselves but to allow the Law to determine the Right as to Nine Parts and not as to the Tenth is not to be reconciled For if the Question be concerning the other parts to whom they do belong may not Men as well dispute the matter of Dominion and Property in them May they not say that the Seed is our own and the Labour and Charges our own why then shall I answer to another for the Profit which arises from my Pains and Expence If it be replied That the Law hath given the Property of the Land to one and the Use to another why may they not pretend this to be an unreasonable Law to separate one from the other since Land was given for the Use and the Original Right of Dominion was from what was necessary for Use therefore the separating Right and Use is an Incroachment on the Natural Rights of Mankind And there seems to be more Colour for this than for any to allow the Laws to determine the Right of Nine Parts to belong to the Lord of the Soil but the Tenth by no means to go that way which the Law of the Land hath long since determined it So that the Lord of the Soil either by Descent or Purchase can claim no Right to it for neither did his Ancestors enjoy it nor those who sold the Land to a Purchaser consider it as his own for then he would have had the Value of it The Tenth Part then is set aside in Valuation of Estates as already disposed of and the Question is Whether the same Law which settled the Right to the other shall determine this likewise Is it not a part of natural Injustice to detain that which by Law belongs to another And is not the Law the Measure of Right in Cases of Difference between Man and Man Why then should not the Law fairly and equally determine this matter to whom the Tenth of the Profits belongs But still they say It is against their Conscience and they cannot do it Is it against their Conscience to do Acts of Natural Justice not to detain that from another which of Right belongs to him But it is in vain to argue with people who do not judge of things by the common light of Reason and Justice but by an unaccountable Light within them which none can judge of but themselves and in matter of Interest Men are the worst Judges in their own Case 2. Therefore
I come to those who are capable of being argued with such I mean who are unsatisfied in the Point of Law not in general but in particular Cases from whence Suits arise and those are often from these Causes 1. Not duly considering the just Measure and Extent of the Rules of Law for the Payment of Tithes 2. Not attending to the Exemptions or Discharges by Law from the Payment of Tithes The best way I know to prevent troublesome Suits about Tithes is to enquire diligently into these two Things 1. The Rules of Law for the Payment of Tithes One might have justly expected that in a matter of common Right and daily Practice and wherein the Peace and Quiet of the People is so much concerned as well as of the Clergy the Rules of Law should have been plain and clear and liable to as few Exceptions as possible but instead of this there is not one general Rule in this matter but hath several Exceptions and different Opinions have been about them by the great Men of the Law which hath given too much occasion to the Multitudes of Suits which have been in the matter of Tithes so that the Clergy are not so much to blame if they are unavoidably involved in Suits by the Perplexity of the Law and the different Resolutions which have been made about the Cases reported by them This I shall make appear by examining some of the most general Rules of Law and comparing them with the Resolutions which have been made in particular Cases 1. One of the most standing Rules of the Law is That Tithes are only to be paid of things which do annually increase ex annuatis renovantibus simul semel But is this Rule allowed in all Cases 1. From hence Coke concludes That no Tithes are to be paid of Minerals or of what is of the Substance of the Earth and so Stone Turff Tinn Lead Coals Chalk Pots of Earth are denied to be titheable But I find 5 H. 4. n. 65. a Petition of the Commons was denied about being sued in the Ecclesiastical Courts for Tithes of Stone and Slat taken out of their Quarries The Petition was renewed 8 H. 4. and then the King's Answer was That the former Custom should continue And so about Tithes for Sea-Coals 51 E. 3. n. 57. From whence it appears that these things might be tithed by ancient Custom and that was not thought fit to be altered But 34 Eliz. it was resolved in the Kings-Bench That no Tithes are due of Quarries of Slat or Stone in the Case of Lysle and Wats Here was no Regard to Custom and a Reason is given which deserves to be considered viz. That he may have Tithes of the Grass or Corn which groweth upon the Surface of the Land where the Quarry is But how if there be none As Lands where Quarries are seldom afford Tithes But the Note on the Register saith That if Corn do grow there Tithe of it would be due however So that here we have a Rule against an ancient Custom and Rule too But it cannot be denied that Fitz-Herbert and Brook say That there is no Tithe of Quarries or Coals or such things and it was so adjudged 11 Iac. and 14 Iac. and in other Cases since And yet after all Rolls yields That a Custom in these cases is to be allowed so that the general Rule is to be understood so as there be no Custom to the contrary And as to Minerals it is determined by a late Writer That by Custom Tithes may be due of them although they do not annually increase And my Lord Coke mentions King Iohn's Grant to the Bishop of Exeter of the Tithe of his Tinn-Farm And a good Author assures us That in Places of Lead-Mines the Tithe of Lead is the chief Part of the Ministers Maintenance Therefore my Lord Coke concludes his Discourse of Tithes with this general Rule That by Custom a Parson may have Tithes of such things as are not titheable of common Right 2. From hence it is concluded That no Tithe can be due for Houses because they have no annual Increase This was solemnly debated in Dr. Grant's Case 11 Iac. and that there was no Tithe due was proved by the Counsel from the Register Fitz. H. N. B. Brook c. But it was resolved by the Court That although Houses of themselves were not titheable yet there might be a Modus decimandi on the Ground on which the Houses stood and the Houses did not take away the Right before and in most ancient Cities and Burroughs there was such a Modus for the Maintenance of their Minister I grant that there was a certain Modus decimandi upon Houses but not upon the Account of the Ground they stood upon but there was a customary Duty upon Houses in lieu of Tithes and were accounted a sort of Praedial Tithes although they were called Oblationes de Domibus as Lyndwood saith and were distinct from Personal Tithes for the Iews were bound to pay Tithes of Houses but not personal Such was the Rate on Houses in London But in Dr. Layfield's Case it was denied that there could be a Prescription of Tithes upon Houses because they are to be paid only for the Increase of things What is now become of the former Modus decimandi when a Prescription was here insisted upon and denied So that here were different Opinions a special Custom was allowed upon good Reason and here a Prescription disallowed upon such a Reason as would have overthrown the former Custom and yet the Law was the same still 3. From hence it would follow That if this Rule hold things which have not an annual Increase would not be titheable Then no Tithe of Saffron would be due whose Heads are gathered but once in three years nor of Sylva caedua under twenty years and yet this was allowed in Parliament at Sarum saith the Register notwithstanding it was not renewed every year And Rolls saith That Tithes shall be paid of Beeches Hazle Willows Holly Alder Maple even after twenty Years because they are not Timber But what if Willows be used for Timber Then Hobart saith they ought to be excepted If young Trees grow in a Nursery and be sold it is allowed that Tithes shall be paid of them and these are not renewed every year And what becomes now of this General Rule when so many Exceptions are made to it 4. If this Rule hold there can be no Tithes of After-pasture for the Rule is simul semel And my Lord Coke saith It was adjudged 8 Iac. That a Parson shall not have two Tithes of Land in one year and he instances in the Hay and After-pasture c. And yet Rolls affirms That it is due by Law unless there be a Prescription to the contrary and he saith the Iudgment was given upon
these I shall discourse in order so as to clear the greatest Difficulties with respect to them 1. As to Appropriations By the Statute of Dissolution 31 H. 8. 13. the new Possessors are to enjoy their Parsonages appropriated Tithes Pensions and Portions and all other Lands belonging to them discharged and acquitted of the Payment of Tithes as freely and in as ample a manner as they were enjoyed before 32 H. 8. 7. It is Enacted That no persons shall be compelled or otherwise sued to yield give or pay any manner of Tithes for any Mannors Lands Tenements or other Hereditaments which by Laws or Statutes of this Realm are discharged or not chargeable with the payment of any such Tithes So that we must enquire into the State of Parsonages appropriated before the Dissolution and how the payment of Tithes stood then I will not deny that there were Churches appropriated to Monasteries in the Saxon times but if Mr. Selden's Doctrine hold good as to the Arbitrary Consecration of Tithes till the Twelfth Century those Churches cannot carry the Tithes along with them but only such Glebe and Oblations as belonged to them For how could the Tithes pass with the Churches if they were not then annexed to them But he confesses That the mention of Tithes with Churches in Appropriations was rare or not at all till after the Normans The Reason might be that the Separation of Tithes from the Churches was not known till the Norman times For the Norman Nobility took little notice of the Saxon Laws about Tithes but finding Tithes paid out of the Lands within their Manors they thought they did well if they gave the whole Tithes or a Portion and Share of them as they thought fit to some Monastery either abroad or at home And this I take to be the true Account of the beginning of Appropriations among us It were endless to give an Account of the Appropriations made by the Normans for the Monasticon is full of them William I. gave several Churches with their Tithes to Battle-Abbey William Rufus added more H. 1. to the Monastery of Reading several Churches in like-manner and H. 2. more Hugh Earl of Chester gave the Tithes of several Manors to the Monastery of St. Werburg in the time of William I. Of which kind the Instances are too many to be mentioned instead thereof I shall set down the State of the parochial Clergy under these Appropriations which was very mean and intended so to be being supplied by the English Clergy 1. Where the Churches and Tithes were appropriated to a Monastery the Vicar had only such a Competency as the Bishop thought fit to allow till Vicarages came to be endowed For right understanding this matter of Appropriations as it stood here in England these things are to be considered 1. That there was a parochial Right of Tithes settled in the Saxon times Which I infer from the Laws of Edgar and Canutus where the Tithes are required to be paid to the Mother-Church and if the Lord of a Manor have a Church on his own Free-land he may retain a third part of the Tithes for the Use of it These Laws are so plain and clear that Mr. Selden does not deny them and he confesses the first Limitation of Profits to be contained in them But what is to be understood by the Mother-Church to which the Tithes were given Mr. Selden would have it the Monastery or Mother-Church but afterwards he grants That a Parochial Right to Incumbents was hereby settled Which is the first legal Settlement of Tithes in a parochial Manner But these Laws of Edgar and Canutus were so solemnly Enacted that as Mr. Selden observes they were particularly called Leges Anglicae the old English Laws in the old Latin MSS. It is a commonly received Opinion among the Lawyers of the best Rank That before the Lateran Council there was no Parochial Settlement of Tithes here My Lord Coke found no such Decree of the Lateran Council under Alexander 3. 5 H. 2. A. D. 1179. and therefore he refers it to a Decretal of Innocent 3. As to the Lateran Council which Lyndwood mentions it plainly speaks of Feudal Tithes which a person enjoyed by the Churches Grant and such might before that Council be given to what Church the person pleased But is there no Difference between Feudal and Parochial Tithes And what Proof is there of any Ancient Infeodations of Tithes here Mr. Selden himself thinks Lyndwood applies the Custom of other Countries to his own But as to the parochial Right of Tithes among us it stands thus By the Saxon Laws the parochial was settled After the Norman Invasion these Laws were neglected and slighted by the Normans H. I. by his Charter restored them H. 1. c. 11. and the very Words of the Laws of Edgar and Canutus are repeated The Normans went on notwithstanding and so these Laws were discontinued in Practice But Hadrian 4. who was an Englishman by Birth observing the disorderly Payments of Tithes here published a Constitution to require the parochial Payment of them as is observed by P. Pithaeus a very learned and impartial Man After him Alexander 3. in a Decretal directed to the Archbishop of Canterbury and his Suffragans complains That whereas the Parishioners had formerly paid their Tithes entirely where they ought to pay them the contrary Custom had obtained and some withdrew the Tithe of Wooll Fish and Mills therefore he requires the strict Payment of them to the Churches to which they were due The latter part only is in the Canon Law but the former is added from the Ancient Copies by Pithaeus As to the Decretal of Innocent III. to which my Lord Coke refers and Mr. Selden thinks was mistaken for the Lateran Council being brought into England with it there is such an Epistle extant in the Collection of his Epistles but not put into the Canon Law and was nothing but an Inforcement of the former Laws and a declaring the contrary Custom void which had too much obtained since the Norman times But in a Decretal extant in the Canon Law De Decim c. 29. he acknowledges the parochial payment of Tithes to be due by common Right Cum perceptio Decimarum ad Paroeciales Ecclesias de Iure communi pertineat Can any thing be plainer than that the parochial Right could not depend upon his Decretal Epistle when himself confesses that they were due by common Right We do not deny that he inforced the payment which had been so grosly neglected in the Norman times and the most they would be brought to in many places was to pay only a third part to the Parish-Priest who officiated and gave the rest to Monasteries and often appropriated the whole Tithes to them either at home or abroad as will abundantly appear by the Monasticon from whence it is plain that they
looked on Tithes in general as due to the Church as appears by very many of their Ancient Charters but they thought they did very well when they appropriated them to Monasteries of their own Erection or others as they thought fit But this Humour took so much among the Norman Nobility and served so many Purposes of Honour and Devotion as they thought besides Reason of State that the parochial Clergy were reduced to so poor a Condition that Alexander IV. complained of it as the Bane of Religion and Destruction of the Church and as a Poison which had spread over the whole Nation And it must be very scandalous indeed when the Pope complained of it For the Monks that were able generally got their Appropriations confirmed in the Court of Rome 2. There was a Competency to be settled on the parochial Clergy by the Bishops Consent which was required in order to the confirming an Appropriation as may be seen in Multitudes of them in the Monasticon besides those which are preserved in the Churches Registers Sometimes the Endowment is expressed and at other times it is reserved in the Bishop's power to do it as he sees Cause But the Bishops were either so remiss in those Times or the Monks so powerful at Rome that the poor Vicars fared so hardly that in the time of H. 2. Alexander III. sent a Reprimand to the Bishops for favouring the Monks too much and the Clergy too little and therefore requires the Bishops to take care that the Vicar had a competent Subsistence so as to be able to bear the Burden of his Place and to keep Hospitality This was directed to the Bishop of Worcester for it seems so long since the poor Vicars here were hardly provided for And yet I have seen several Forms of Appropriations made by the Bishops here after the Conquest wherein there is a twofold Salvo one for the Bishop's Right and another for a sufficient Maintenance for the Curate although the Church were appropriated ad communem usum Monachorum as of Wolstan Roger and of William in the time of Hen. II. when Alexander III. lived and of Walter de Grey Sylvester c. But it seems where a competent Subsistence had been decreed the Monks took the first Opportunity to lessen it which occasioned another Decretal in the Canon Law wherein any such thing is forbidden without the Bishop's Consent In other Places they pleaded Custom for it thence came another Decree of the Lateran Council to void all such Customs by whomsoever introduced where there was not a competent Subsistence for him that served the Cure The Monks were still refractary in this matter and because the Bishops had Power to refuse any person presented by the Monks unless they did consent to such a reasonable Allowance as the Bishop thought fit therefore they grew sullen and would not present in which Case another Decretal was made to give the Bishop Power to present And after all Clement V. De Iure Patron c. 1. reinforced the former Decretals and injoyned the Diocesans in the strictest manner not to admit any person presented to a Cure where the Church was appropriated unless sufficient Allowance were made by the Bishop's Consent and Approbation and all Custom and Privileges to the contrary are declared to be void But how far doth this hold among us now since the Appropriations are become Lay-Fees and the Bishop's Power is not mentioned in the Statute of Dissolution To this I shall give a clear Answer but I doubt not satisfactory to all Parties concerned For as Necessity and Power so some Mens Interest and Reason live very near one another 1. The Statute of Dissolution leaves all matters of Right as to persons interested just as they were before For by the Surrender the King was to have the Monasteries and Tithes in as large and ample a manner as the Abbots then had them in Right of their Houses and in the same State and Condition as they then were or of Right ought to have been And so res transit cum suo onere But this is not all For there is an Express Salvo for all Rights Claims Interests c. of all Persons and Bodies Politick So that if by the Law of England there was such an Antecedent Right in the Vicar to his Allowance and in the Bishop to assign it it is not taken away by this Statute nor any other 2. By the Law of England the Bishop had a Right to provide a competent Maintenance for supplying the Cure upon an Appropriation We are told by an unquestionable Authority in point of Law that 9 Car. 1. this Point was brought before the Kings Bench in the Case of Thornburgh and Hitchcot The Vicar complained that the Church was appropriated and that he wanted a competent Maintenance a Prohibition was prayed but denied upon this Reason That the Vicar had Reason for his Suit and that the Ordinary might compel the Impropriator to make it greater because in all Appropriations that Power was reserved to the Ordinary And so in the Year-Books it is allowed That the Ordinary may increase or diminish the Vicar's Portion 40 E. 3. Cas. 15. f. 28. By our Provincial Constitutions the Bishop is to take care that the Vicar have a competent Allowance which at that time was set at Five Marks but Lyndwood observes that as the Price of things rose so the Allowance was increased and in Stipendiaries it was then advanced to Eight or Ten Marks which according to Sir H. Spelman's Computation comes to above Sixty Pounds per Annum But some have told us That by some old Statutes even beneficed Persons were not by Law to have above Six Marks per Annum for this was the Sum allowed to Parish Priests which is so gross a Mistake in any that pretend to Law or Antiquity that it is to be wondred how they could fall into it The Truth of the Case was this the parochial Chaplains or Priests were complained of 36 E. 3. n. 23. that they could not be gotten to attend after the Plague but at excessive Rates upon this a Provincial Constitution was made extant in the Parliament Rolls wherein they are obliged to demand no more than Six Marks But who were these Parish-Priests Not such as had the legal Endowments but those who depended on the Good-Will of the Parson or People and were hired to officiate in Chapels of Ease or to perform Offices for the Dead which were so frequent at that time And these were called Annual Chaplains or Masse Chaplains and were distinguished from Domestick Chaplains who officiated in great Mens Houses in their private Oratories and from Beneficed Persons as appears by many Constitutions But whatever was understood by the Act of Parliament then it was repealed 21 Iac. 1. 28. 3. The Law of England as to a competent Subsistence for the Vicars or
any other part of the Law of the Land In another place That the Ancient Canon Law received in this Kingdom is the Law of the Kingdom in such Cases In a third That a lawful Canon is the Law of the Kingdom as well as an Act of Parliament III. I now come to the third thing viz. The Power of making Canons by Act of Parliament This is founded on the Statute 25 H. 8. c. 19. The Words are That no Canons Constitutions and Ordinances Provincial or Synodal shall be made promulged and executed without the King 's Royal Assent or Licence Canons so made and authorized by the King's Letters Patents according to the Form of the Statute are said by Lord Chief Justice Vaughan to be Canons warranted by Act of Parliament And such he affirms the Canons of A. D. 1603. to be But some have objected That these are only Negative Words and are not an Introduction of a new Law but a Declaration of what the Law was before But my Lord Coke with far greater Judgment limits that Expression That what was then passed was declaratory of the Common Law to that Clause That no Canons should be in Force which were repugnant to the Laws of the Realm But as to the making of new Canons he only saith That their Iurisdiction and Power is much limited because they must have licence to make them and the King 's Royal Assent to allow them before they be put in Execution But he never imagined the Sense of the Statute to be That no Canons could be made but in Parliament or that the King had not a Power to confirm new Canons made by the Convocation As to the Law as it stood before we must distinguish these two things 1. Convocations called by the King 's Writ to the Bishops and the body of the Clergy could never assemble without it But the Writ for the Convocation to sit with the Parliament not together in Place but at the same time is contained in the Writ to the Bishop and begins with the Clause Praemunientes And it is most probable that it began on the same Ground that the Attendance of Burgesses did viz. That when they were brought into the Payment of Subsidies they ought to give their Consent For I find that in the time of H. 3. A. R. 39. the Inferiour Clergy complained That they were taxed without their Consent 2. Convocations called by the King 's Writ to the Archbishops and in this Province the Archbishop sends his Mandate to the Bishop of London who is to summon all the Bishops c. to appear at a certain Time and Place and to act as they receive Authority from the King The not distinguishing these two Writs hath caused so much Confusion in some Mens Minds about the Rights of the Convocation For they imagine that the Convocation as it treats of Ecclesiastical Matters sits by Virtue of the first Writ which is in the Bishops Summons to Parliament but that related to them as one of the three Estates of the Realm whose Consent was then required to their own Subsidies which were distinctly granted but confirmed by the other Estates But the other Writ was directed to the Archbishop by which the Bishops and Inferiour Clergy were strictly required to appear and then to understand the King's further Pleasure as appears by the most ancient Writs for a Convocation Which shews that the Convocation properly so called is an Occasional Assembly for such purposes as the King shall direct them when they meet And this was the true Foundation upon which the Statute 25 H. 8. was built For it cannot be denied that in Fact there had been Convocations for Ecclesiastical Purposes called without the Kings Writ by Virtue of the Archbishop's Legatine Power which was permitted to be exercised here although it were an Usurpation upon the King 's Right So even in the time of H. 8. although there were a Convocation summoned by the King 's Writ to the Archbishop of Canterbury yet Cardinal Wolsley by Virtue of his Legatine Power superiour to that of the Archbishop removed the Convocation to another place and presided in it Which was as great an Affront to the King 's as well as the Archbishop's Authority as could well be imagined But this was then patiently born Wherefore the Statute is to be understood of Legal and not of Legatine Convocations But when H. 8. was sufficiently provoked by the Court of Rome he resolved to resume the ancient and legal Rights of the Crown how soever disused by modern Usurpations And among these he claimed this of summoning the Convocation and directing the Proceedings therein The Difference of these Writs will best appear by the Instance of the Convocation A. D. 1640. In the Year 1639. about the first of February the Parliament Writ was issued out to the Bishops for calling their Clergy to Parliament and this is only ad consentiendum iis quae tunc ibidem de communi Concilio Regni nostri contigerint ordinari The other Writ for the Convocation to the Archbishops was issued out the twentieth of February and had this Clause ad tractandum consentiendum concludendum super praemissis aliis quae sibi clarius exponentur ex parte meâ The Parliament at that time being dissolved it 's certain the Convocation sitting by Virtue of the Writ to the Bishops must fall with it But a great Question arose Whether the Convocation sitting by the Writ to the Archbishops was dissolved or not And the greatest Judges and Lawyers of that time were of Opinion it was not But those were not times to venture upon such Points when people were disposed to find Fault as they did to purpose when the next Parliament met who made use of the Sitting of this Convocation and the Canons then pass'd as one of the popular Themes to declaim upon against the Bishops and to inflame the Nation against the whole Order The greatest Objection in Point of Law was That the Commission had a Respect to the Convocation sitting in Parliament-time which began 13 April 1640. and the Commission bore Date April 15. the Parliament was dissolved May 5. and the 12th of May a new Commission was granted which made void that of the fifteenth of April and so what was done by Virtue of that must be done out of Parliament and so not in Convocation according to 25 H. 8. 19. although these Canons were confirmed by the King's Authority the thirtieth of Iune the same Year After the King's Restoration an Act of Parliament passed for Restoring the Bishops Ordinary Jurisdiction wherein a Clause is added That this Act did not confirm those Canons of 1640. but left the Ecclesiastical Laws as they stood 1639. which Act being passed by the King's Assent it voids the former Confirmation of them and so leaves them without Force But the Alteration of our Law by the Act 25 H. 8. c. 19. lay not in this that
established Methods of Proceeding agreeable to natural Justice and the Laws of the Land nothing would be more grievous and intolerable than the common Exercise of a Parochial Discipline For 1. It cannot be presumed that there will be competent Judges For every one who hath a Faculty of Preaching hath not a Faculty of Judging in such Cases And where Discretion and a Judgment of Circumstances is wanting an honest Mind will not secure Men from doing Injury and exposing their Judicature to Contempt 2. They have no fixed and established Rules of proceeding as there are in the Ecclesiastical Courts which have been continued down from time to time and allowed by the Laws of the Land And what miserable Disorder must follow an Arbitrary Method when Humour and Will and Passion may over-rule Justice and Equity and Conscience 3. They are not under the Check of the Law as the Ecclesiastical Courts are For if they exceed their Bounds either as to the Nature of the Cause or the Manner of proceeding they are liable to Prohibitions from the King's Courts of Justice but the Law can take no notice of Parochial or Congregational Judicatures and so Men may suffer without Remedy 4. They have no way to judge of Legal Evidence which is very material when a person is accused It is one of the nicest Points in all criminal Proceedings to determine what is good and sufficient Evidence For several things are to be weighed before either Witnesses or Testimonies can be allowed As to Witnesses it is required that they be persons of Reputation and free from Infamy of Law and Fact that they be disinterested and so not liable to the just Suspicion of Partiality that they be Men of Discretion and sane Memory and all reasonable Exceptions are to be allowed against them As to Testimonies they must be by our Law upon Oath and what Authority have such Persons to give an Oath and why shall a Man be liable to suffer by a Testimony without one when the Law requires it They must be deliberate and not given in Passion consistent as to Time Place and other Circumstances They must be certain and positive and not upon Hear-say or the Believing of other persons They must be free from any just Suspicion of Contrivance and Conspiracy or any sort of Corruption or Partiality And now is every parochial Minister or select Congregation fit to judge of these Matters whereon the Reputation and consequently the Interest of every person may be so deeply concerned 5. They have no way to prevent a percipitate and hasty Sentence Suppose a Man be accused by one of Interest and Passion who possesses others with the same Opinion before-hand and the Judges are all prejudiced before the Matter comes to be heard and in popular Assemblies some few men sway the rest what a Case is a person accused unjustly in He hath no Liberty for others that are not of the Congregation altho' more disinterested either to come in to judge or to plead for him He can have no Advocate to defend him or to shew the Weakness or Inconsistency of the Evidence against him In all Ecclesiastical Courts they may sometimes proceed summarily but even then the Fundamental Rules of the Court must be observed as to Proofs and Witnesses or else the Sentence is void but here the Sentence will take place altho' there hath not been the least Colour of Justice in the whole Proceedings 6. Here is no settled Course of Appeals in Case of a wrong Sentence But where Men are liable to Mistake and Passion a Right of Appeal is one of the Fundamental parts of Justice And therefore Independent and Arbitrary Courts of Judicature as all Congregational Churches are are inconsistent with the common Rights of Mankind and that due Subordination which ought to be in all Societies in order to the preserving Order and Justice among Men. But suppose parochial Discipline so settled among us as to allow a Liberty of Appeal how would the Trouble and Vexation and Expence be increased by going from the parochial Sentence to the Bishop's Court and from thence still further So that if there be some Inconveniencies in point of Distance for persons to be summoned to appear at first so far from Home yet there is some Compensation by the less Trouble and Charges if due Care be taken to prevent Delays and unnecessary Expences which ought to be done And those who do make the greatest Clamour against our Courts are rather willing they should continue such as they may have Cause to complain of than to do their Endeavours to reform them Thus I have endeavoured to shew the just Bounds and Limits of parochial Cures II. I now come to consider the just Measure of that Diligence which is required under those Limits For our Church requires Faithful Diligence in Preaching and Sacraments and Prayers and Reading the Holy Scriptures If then we can understand what this Faithful Diligence implies we may come to satisfie our selves whether we do our Duty or not 1. Faithful Diligence implies serious Application of our Minds to the main End and Design of our Holy Function Which is to do good to the Souls of Men especially to those committed to your Charge And an idle careless santering Life or one too busie and distracted with the Cares of the World are not consistent with it I do not go about to take you off from necessary Business and reasonable Allowances as to Health and Studies but that the doing good to your peoples Souls ought to be the principal and chief Design of your Thoughts Studies and Endeavours And if the people be satisfied that this is really your Design among them you will find that your Doctrine will be easier received your Persons esteemed and your Labours valued It is possible you may meet with a froward peevish self-willed people and it is hard when a Man is only set to water and mend a Hedge made up of Briars and Thorns the more pains he takes the more Scratches he may meet with but if it be your Lot be not discouraged from doing your Duty Remember what sort of people the Prophets were sent to and what Usage they had from them what Hardships and Reproaches Christ and his Apostles underwent from a very unkind World but a patient Continuance in well-doing gave them inward Satisfaction in the midst of all and did by degrees gain the Christian Doctrine Access to the Hearts of those who most opposed it 2. It implies an honest and conscientious Care of discharging the known and common Duties of your Function as Preaching Praying Catechizing Administring Sacraments Visiting the Sick c. A diligent Person is one who neglects no good Opportunities of doing his Business but watches for them and studies to improve them to the best Advantage Can those satisfie themselves that they use Faithful Diligence who shamefully neglect their Cures and care not how seldom they come at them nor how they are supplied