had before are Bastards at the Common Law and Muliers by the Civil Law If a Man hath Issue by a Woman and after marry the same Woman the Issue by the Common Law is Bastard and Mulier by the Ecclesiastical Law Likewise if a man espouse a Woman bigg with Child by another Man and within three dayes after she is delivered of Child by the Common Law this is a Mulier and by the Ecclesiastical Law a Bastard If a Woman Elope and hath Issue in Adultery such Issue is a Mulier at the Common Law and a Bastard by the Ecclesiastical Law yet if the Woman continue in Adultery and hath Issue such Issue are Bastards even by the Common Law But by the Law of the Land a man may not be reputed a Bastard who is born after Espousals unless there be some special matter in the Case as aforesaid But if a man who hath a wife doth during her life take another wife and hath Issue by her such Issue are Bastards by both the Laws for the second Marriage is void 20. A Divorce causa Praecontractus doth Bastardize the Issue so also doth a Divorce causa Consaguinitatis likewise if the Divorce be Causa Affinitatis it doth Bastardize the Issue and the Law is the same in case the Divorce be causa Frigiditatis A Man hath Issue a Bastard and after marries the same Woman and hath Issue by her divers Sons and then deviseth all his Goods to his Children Q. whether the Bastard shall take by the devise But if the Mother of the Bastard make such a devise it is clear the Bastard shall take because he is known to be Child of the Mother 21. B. contracted himself to A. afterwards A. was Married to F. and cohabited with him whereupon B. sued A. in the Court of Audience and proved the contract and Sentence was there pronounced that she should Marry the said B. and cohabit with him which she did and they had Issue C. B. and the Father died It was argued by the Civilians that the Marriage betwixt B. and A. was void and that C. B. was a Bastard But it was resolved by the Justices that C. the Issue of B. was legitimate and no Bastard 22. The Case was wherein a Man was divorced causa Fridigitatis and afterwards took another Wife and had Issue it was argued by the Civilians and also by the Justices whether the Issue were Bastard or not it was adjudged that the Issue by the second Wife was not a Bastard For that by the Divorce the Marriage was dissolved à vinculo Matrimonii and each of them might Marry again But admit that the second Marriage was voidable yet it good till it be dissolved and so by consequence the Issue born during the Coverture is a lawful Issue 23. Upon an information in the Castle-chamber in Ireland against the Bishop of K. and C. B. and others that by Practice and Combination and by undue course of proceedings they endeavoured to prove the said C. B. who was ever before reputed a Bastard to be the legitimate or lawful Son and Heir of G. B. Esq to the disherison and defamation of E. B. who was the sole Daughter and Heir of the said G. B. And upon Oier of this cause the Case appear'd to be this viz. About twenty six years before the exhibiting of this Bill the said G. B. had Issue the said C. B. on the Body of one J. D. who during the life of G. B. was not reputed his Wife but his Concubine and the said C. B. for all the time aforesaid was only accounted the natural Son of G. B. but not for legitimate Afterwards viz. sixteen years after the birth of C. B. his Mother being then living G. B. took to Wife a Lady of good Estate and Reputation with the assent of her Friends by whom he had Issue the said E. B. and died After the death of the said G. B. the said C. B. his reputed Son nor his Mother who was yet living said nothing by the space of nine years but at last they practiced and combined with the said Bishop of K. being of their Kin and with many others to prove the legitimation of the said C. B. by an irregular and undue course to the intent to bastardize and disinherit the said E. B. according to which practice and combination the Bishop without any Suit commenced or moved in any of the Kings Temporal Courts or any Writ directed to him to certifie Bastardy or Legitimation in that Case and which is more without any Libel exhibited in his Ecclesiastical Court touching that matter of his own will and pleasure privately and not convocatis convocandis nine years after the death of the said G. B. took the depositions of many Witnesses to prove that the said G. B. twenty nine years before had lawfully Married and took to Wife the said J. D. Mother of the said C. B. and that the said C. B. was the legitimate and lawful Son and Heir of the said G. B. And these depositions so taken the said Bishop caused to be engross'd and reduced into the form of a solemn Act and having put his Signature and Seal to that Instrument delivered the same to C. B. who published it and under colour of that Instrument or Act declared himself to be the Son and lawful Heir of the said G. B. c. And for this practice and misdemeanour the said Bishop of K. and others were censured and thereupon these points were resolved 1. That although all Matrimonial causes have of a long time been determinable in the Ecclesiastical Courts and are now properly within the jurisdiction and cognizance of the Clergy yet ab initio non fuit sic For causes of Matrimony as well as cause Testamentary were heretofore civil Causes and appertaining to the civil Magistrate as is well known to all Civilians until the Christian Emperors and Kings as an honour to the Prelates of the Clergy did grant and allow unto them the cognizance and jurisdiction of these Cases And therefore the King of England who is and of right ever was the Fountain of all Justice and Jurisdiction in all Causes as well Ecclesiastical as Civil within his own Dominions although that he allow the Prelates of the Church to exercise their several Jurisdictions in those Causes which properly appertain to their cognizance yet by the Rules of the Common Law he hath a superintendency over their proceedings with power of direction how they shall proceed and of restraint and correction if they do not proceed duly in some cases as is evident by the Writs of several natures directed to Bishops by which the King commands them to certifie Bastardy Excommunication Profession Accouplement en Loyal Matrimony De admit Clericis de Cautione admittenda c. as also by the Writs of Prohibition Consultation and Attachment upon a Prohibition 2. It was resolved that
of King Kanute made for the indemnity of such as should have recourse to Tribunals for their safe coming and going to and from Courts of Justice Et volo ut omnis homo pacem habeat eundo ad gemotum vel rediens de gemoto id est placito nifi fit fur probatus It is a word from the Saxon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 convenire unde Nostratium to meet But this digression the Reader must put on the Abbots score in regard the word Abbates gave the occasion thereof which may be but a Venial offence in regard that that Ecclesiastical Dignity is with us laid aside though their Possessions had better Fortune yet when King H. 8. did dissolve them he did not only augment the number of Colledges out of the Revenues thereof but also erected divers new Bishopricks as at Westminster Oxford Peterborough Bristol Chester and Glocester all remaining at this day save that at Westminster which being restored to its pristine Institution by Queen Mary and Benedictines placed therein was after by Queen Elizabeth converted to a Collegiate Church In this Chapter there is mention also made of Chauntries Cantaria or if you please Aedes Sacra ideo Instituta Dotata Praediis ut missa ibidem Cantaretur pro anima Fundatoris propinquorum ejus Ita Spelm. Of these and Free Chappels about 2374. were dissolved by King H. 8. to whom they were given by Parliament in the 38th year of his Reign The Religious Houses under 200 l. per An. were granted to him in An. 1535. All greater Monasteries in An. 1538. The Chantery and Free Chappels in An. 1545. Of these Chanteries Forty seven belonged unto St. Pauls London And as for Annates or First-Fruits it is Historically reported to us that they were first introduced into England in the time of King Edward the First by Pope Clement who succeeded Benedict For this Pope Clement after the death of Pope Benedict was no sooner Elected and Enthron'd in France but he began to exercise his new Rapines here in England by a compliance with the said King Edward in granting him a Two years Disme from his Clergy for his own use though pretended for the aid of the Holy Laud that with the more ease himself might exact the First Frutts of vacant Ecclesiastical Benefices to augment his own Revenues though not within his own Territories This is said to be the first President of any Popes reserving or exacting Annates or First-Fruits of all Ecclesiastical Dignities and Benefices throughout England extant in our Histories which though reserved but for Two years by the Pope at first yet afterwards grew into a Custome by degrees both in England and elsewhere And thus they remained in the Pope until an Act of Parliament entituled the Crown thereunto in the time of King Henry the Eighth which afterwards were restored again to the Pope by Queen Mary but in the first year of Queen Elizabeth an Act pass'd for restoring the Tenths and First-Fruits to the Crown Notwithstanding what some Historians have as aforesaid reported touching the first introduction of First-Fruits into England by Pope Clement in the time of King Edward the First it is most evident that they were to be yielded and paid here in England some hundreds of years before that time as appears by the Laws of Ina King of the West Saxons who began his Reign in the year 712. The Law was this viz. Primitias seminum quisque ex eo dato domicilio in quo ipso Natali die Domini commoratur Lambert de Leg. Inae Reg. And by the Laws of King Edgar who began his Reign in the year 959. it is Ordained in these words Ex omni quidem ingeniorum terra ipsae Seminum Primitiae primariae penduntor Ecclesiae Idem de Leg. Edgari Reg. Ipsas autem Seminum Primitias sub Festum Divi Martini reddito Ibid. The like you have in the Laws of King Kanute who began his Reign in the year 1016. Seminum Primitiae ad Festum Divi Martini penduntor si quis dare distulerit eas Episcopo undecies praestato ac Regi Ducenos viginti Solidos persolvito Idem Lamb. It is supposed that Boniface Archbishop of Canterbury in the Reign of Ed. 3. was the first that made way for Popes to Appropriate Annates and First-Fruits in this Kingdom to themselves for the said Archbishop An. 1246. upon a feigned pretence that his Church of Canterbury was involved in very great Debts by his Predecessor but in truth by himself to carry on Forein Wars and gratifie the Pope procured from Pope Innocent a grant of the First years Fruits of all Benefices that should fall void within his Diocess for the space of Seven years till he should thence raise the Sum of Ten thousand Marks yearly out of the Bishoprick So that this Grant of First Fruits of Benefices to Boniface the said Archbishop made way for Popes Appropriating First-Fruits and Annates to themselves soon after But in process of time the Parliament having as aforesaid settled them on King H. 8. there was an Office thereof established in London An. 1538. whereby the Kings Revenue increased exceedingly from this Office for the receipt of Tenths and First-Fruits which was then first erected in London such Moneys being formerly paid to the Pope for that the Tenths and First-Fruits of the English Clergy were yearly return'd to Rome But now the Pope being dead in England the King was found his Heir at Common Law as to most of the Power and Profit he had usurped and the Rents which the Clergy paid were now changed together with their Landlord for Commissioners whereof the Bishop of the Diocess was ever one were appointed to estimate their Annual Revenues that so their Tenths and First-Fruits might be proportioned accordingly At this time the Oblations from the Living and Obits from the Dead were as duly paid as Predial Tithes and much advanced the Income but Queen Mary did after by Act of Parliament exonerate the Clergy from all these First-Fruits and ordered the payment of the Tenths to Cardinal Poole for discharge of Pensions allowed to certain Monks and Nuns but Queen Elizabeth in the first year of her Reign resumed these First-Fruits and Tenths only Personages not exceeding ten Marks and Vicarages ten Pounds were freed from First-Fruits vid. Stat. 1 Eliz. cap. 4. That which in the method of the ensuing Treatise next offers it self to consideration is Altarage Altaragium taking its denomination from the Altar because to speak properly Altargium est Emolumentum Sacerdoti provenieus ratione Altaris ex Oblationibus sc vid. Jo. de Athon in Constit. Legatim Otho c. Auditu ver Proventus Touching this Altarage there is an Ancient Record in the time of King H. 3. about the year 1234. in the Chronicle of William Thorne the Augustine Monk of Canterbury whereof among other things there is mention made in a certain Composition between Edmond Archbishop
Ecclesiastical Court might proceed to punish the Offender who offered violence to a Priest the which de jure it might do by proceeding Ex Officio pro salute animae Dammages on an Action of Battery in the case reserved to the Common Law To conclude The Protestation which Bellamera the Canonist in the Proem to his Lecture on the Clementine Constitutions makes shall as to this Repertorium Canonicum Jurisve Anglico-Ecclesiastici Compendium be mine Id submittens correctioni determinationi tam Canonum Ecclesiasticorum quam Statutorum Jurumque Publice Forensium Secularium cujuslibet melius sentientis Protestans quod si in praesenti Opusculo de lapsu chalami aut inadvertentia vel forte ex ignorantia aliqua jam Scripsero id praeter intentionem scribere me contigerit Si etiam aliqua Scripsero quae errorem saperent aut male sonarent illa ex nunc Revoco volo haberi pro non Scriptis Determinationibusque Ecclesiae Anglicanae dicti Juris Forensis Oraculis semper in omnibus volo stare Et hanc Protestationem volo pro Repetita haberi in quolibet Dictorum meorum etiam condicendorum ut si reprobantur dicta Actor non propter hoc reprobetur The several CHAPTERS of the Ensuing Abridgment CHAP. PAGE 1. OF His Majesties Supremacy 1 2. Of Archbishops 12 3. Of Bishops and Ordinaries 22 4. Of Guardians of the Spiritualties 39 5. Of Congé d'Eslire Election and Confirmation 43 6. Of Consecration 46 7. Of Deans and Chapters 51 8. Of Archdeacons 60 9. Of Procurations Synodals and Pentecostals 67 10. Of Diocesan Chancellors Commissaries Officials as also of Consistories 80 11. Of Courts Ecclesiastical and their Jurisdiction 94 12. Of Churches Chappels and Church-yards 134 13. Of Churchwardens Questmen and Sidemen 159 14. Of Consolidation and Vnion of Churches 169 15. Of Dilapidations 173 16. Of Patrons and De jure Patronatus 178 17. Of Parsons and Parsonages 185 18. Of Vicars Vicarages and Benefices 196 19. Of Advowsons 220 20. Of Appropriations 220 21. Of Commendams 230 22. Of Lapse 242 23. Of Collation Presentation and Nomination 251 24. Of Examination Admission Institution and Induction 269 25. Of Avoidance and Next Avoidance also of Cession 282 26. Of Pluralities 291 27. Of Deprivation 305 28. Of Incumbents also of Residence and Non-Residence 316 29. Of Abbots and Abbies also of Chauntreys and of the Court of Augmentations 326 30. Of Annates or First-Fruits also of Aumone or Frank-Almoin 335 31. Of Altarage 339 32. Of Tithes with the Incidents thereof 344 33. Of Banns 465 34. Of Adultery 469 35. Of Bastards and Bastardy 477 36. Of Divorce also of Alimony 492 37. Of Defamation 514 38. Of Sacriledge 528 39. Of Simony 535 40. Of Blasphemy Heresie and Hereticks 559 41. Of Councils Synods and Convocations 584 42. Of Excommunication 623 43. Of the Statutes Articuli Cleri and Circumspecte agatis 639 44. Of several Writs at Common Law pertinent to this Subject 643 AN ABRIDGEMENT OF Ecclesiastical LAWS CHAP. I. Of the Kings Supremacy 1. A Description thereof or what it is 2. The Establishment thereof by Statute Laws 3. The Oath of the Kings Supremacy when first Enacted the Cause thereof 4. The King in his own Dominions Dei Vicarius 5. The King Supream Governour under God of the Church in England c. 6. Impugners of the Kings Supremacy how censured by the Canon 7. In matters Ecclesiastical the King hath here the same power de jure which the Pope formerly exercised by Usurpation 8. The Kings of this Realm anciently made their own Canons and Ecclesiastical Constitutions without the Popes Authority 9. The King is Lex viva in some cases may dispence with some Canons 10. Provisoes of some Statutes in right of the Kings Supremacy 11. No Canons or Ecclesiastical Constitutions to be made or to be of force to oblige the Subject without the Royal Assent 12. The Regal Supremacy asserted by the Ecclesiastical Injunctions of King Ed. 6. 13. The same further asserted by other Eccles Powers and Authorities 14. The Regal Supremacy asserted in the Reign of Queen Elizabeth 1. THis Ecclesiastical Abridgment begins with the Regal Supremacy a Point which cannot be touch'd with too much tenderness such of the Church of Rome as question the validity thereof may be presumed not to have consulted that Learned Canonist of their own Jo. Quintinus Hoedeus where he says That Nemini dubium quin in Primitiva Ecclesia de rebus Personis Ecclesiasticis Principes jus dixerint The Emperours were all Secular Princes who by those Laws which they established touching Persons and Things Ecclesiastical proclaimed to all the world their Supremacy therein The Thirteen first Titles of the First Book of the Emperour Justinian's Code being the Constitutions of divers Emperours do treat and judge of Things and Persons meerly Ecclesiastical yea the Emperours Areadius and Honorius ejected a Bishop as well out of his Title of Ecclesiastical Dignity as out of his Episcopal See and commanded him to be Banished for disturbing the publick Peace l. quicunque C. de Episc Cleric By this word Supremacy is here understood that undoubted Right and ancient Jurisdiction over the State Ecclesiastical within these his Majesties Realms and Dominions with the abolishing of all Forein and Usurped Power repugnant to the same which the Laws and Statutes have restored to the Crown of this Kingdom and now invested in the King as the Highest Power under God within these his Majesties Realms and Dominions unto whom all persons within the same in all Causes and Matters as well Ecclesiastical as Temporal do owe their Loyalty and Obedience before and above all other Powers and Potentates on Earth whatever 2. By the Injunctions of King Ed. 6. to the Clergy all persons Ecclesiastical having cure of Souls were Four times a year to preach in vindication of the Kings Supremacy and in opposition to the usurped power of the Bishop of Rome in this Kingdom There were divers Laws made in the time of King H. 8. for the extinguishment of all Forein Power and for the restoring unto the Crown of this Realm the Ancient Rights and Jurisdictions of the same which is the substance of the Preamble of the Statute of 1 Eliz. cap. 1. The express Letter and meaning whereof is as Sir Edward Coke observes to restore and unite to the Crown the Ancient Jurisdiction Spiritual or Ecclesiastical where as he says the First clause of the Body of the Act being to let in the Restitution of the Ancient Right and Jurisdiction Ecclesiastical within the Realm doth abolish all Forein Jurisdiction out of the Realm And then followeth the principal Clause of Restitution and Uniting of the ancient Jurisdiction Ecclesiastical being the main purpose of the Act in these words viz. Be it Enacted That such Jurisdiction Spiritual or Ecclesiastical as by any Spiritual Power or Authority hath heretofore been or lawfully may be exercised or used
for the visitation of the Ecclesiastical State and Persons and for-Reformation Order and Correction of the same and of all manner of Errors Heresies Schisms Abuses Offences Contempts and Enormities shall for ever by Authority of this Parliament be united and annexed to the Imperial Crown of this Realm This Act by a former Clause thereof doth Repeal the Statute of 1 and 2 Ph. Ma. c. 8. whereby the Acts of 26 H. 8. c. 1. and 35 H. 8. c. 3. were repealed so that the Act of Repeal being repealed the said Acts of H. 8. were implicitely revived whereby it is declared and enacted That the King his Heirs and Successors should be taken and accepted the only Supream Head in Earth of the Church of England and should have and enjoy annexed to the Imperial Crown of this Realm as well the Title and style thereof as all Honours Dignities Prebeminencies Jurisdictions c. to the said dignity of Supream Head belonging c. By which Style Title and Dignity the King hath all Ecclesiastical Jurisdiction whatever And by which Statute the Crown was but remitted and restored to its Ancient Jurisdiction which had been formerly usurped by the Bishop of Rome And this is that Supremacy which is here meant and intended 3. The said Statute of 1 Eliz. c. 1. doth not only repeal the said Stat. of 1 and 2 P. M. c. 8. but it is also a reviver of divers Acts asserting several branches of the Kings Supremacy and re-establishing the same it doth likewise not only abolish all Forreign Authority but also annex the Ecclesiastical Jurisdiction to the Crown of this Realm with power to assign Commissioners for the exercise of Ecclesiastical Jurisdiction And then further Enacts to this effect viz. That all Ecclesiastical persons of what degree soever and all and every Temporal Judge Justice Mayor or other Lay or Temporal Officer or Minister and every other person having Fees or wages from the Crown within this Realm or the Dominions thereof shall upon his Corporal Oath testifie and declare in his Conscience That the Kings Majesty is the only Supream Governour of this Realm and of all other his Majesties Dominions and Countries as well in all Spiritual or Ecclesiastical things or causes as Temporal And that no Forreign Prince Person Prelate State or Potentate hath or ought to have any Jurisdiction power superiority preheminence or authority Ecclesiastical or Spiritual within this Realm And therefore doth utterly renounce and forsake all Forreign Jurisdictions powers superiorities and authorities and doth promise that from henceforth be shall bear Faith and true Allegiance to the Kings Majesty his Heirs and lawful Successors and to his power shall assist and defend all Jurisdictions priviledges preheminencies and authorities granted or belonging to the Kings Majesty his Heirs and Successors or united or annexed to the Imperial Crown of this Realm The practices of the Romanists in the 4th year of Queen Elizabeth and the danger thereby threatning both the Queen and State occasioned her to call a Parliament 12. Jan. An. 156 2 3 which passed an Act For assurance of the Queens Royal power over all Estates and Subjects within her Dominions By which Statute was enacted The Oath of Supremacy as also what persons were obliged to take it and who should have power to administer the same And this was both the original and the cause of that Oath By the said Statute of 1 El. c. 1. appears also what the penalty is for refusing to take the said Oath as also the penalty of maintaining a Forreign Authority as likewise what other persons than the fore-mentioned shall be obliged to take the said Oath which was afterwards again further ratified and established by the Statute of 5 Eliz. c. 1. 4. The King within his own Territories and Dominions is according to Bracton Dei Vicarius tam in Spiritualibus quam Temporalibus And in the Ecclesiastical Laws of Edward the Confessor the King is styled Vicarius summi Regis Reges regunt Ecclesiam Dei in immediate subordination to God Yea the Pope himself Eleutherius An. 169. styled King Lueius Dei Vicarius in Regno suo 5. The Supremacy which heretofore the Pope did usurp in this Kingdom was in the Crown originally to which it is now legally reverted The Kings Supremacy in and over all Persons and Causes Ecclesiastical within his own Dominions is essentially inherent in him so that all such Authority as the Pope here once usurped claiming as Supream Head did originally and legally belong to the Crown and is now re-united to it by several Statutes as aforesaid On this Supremacy of the King as Supream Head Sr. Edward Coke grounds the power of granting a Commission of Review after a Definitive Sentence in the Delegates for one Reason that he gives is because after a Definitive Sentence the Pope as Supream Head by the Canon Law used to grant a Commission Ad Revidendum And such Authority as the Pope had claiming as Supream Head doth of right belong to the Crown Quia sicut Fontes communicant aquas fluminibus cumulative non privitive sic Rex subditis suis Jurisdictionem communicat in Causis Ecclesiasticis vigore Statuti in hujusmodi Casu editi cumulative non privitive By the Second Canon of the Ecclesiastical Constitutions of the Church of England it is ordained That whoever shall affirm that the Kings Majesty hath not the same Authority in Causes Ecclesiastical that the godly Kings had among the Jews and Christian Emperors in the Primitive Church or impeach in any part his Regal Supremacy in the said Cases restored to the Crown and by the Laws of this Realm therein established shall be Excommunicated ipso facto and not be restored but only by the Archbishop after his repentance and publick revocation of those his wicked Errors 7. The King being next under God Supream Governour of the Church of England may Qua talis redress as he shall see cause in all matters of Spiritual and Ecclesiastical Jurisdiction for the conservation of the Peace and Tranquillity of his Realms The Pope as appears by the Stat. of 25 H. 8. c. 21. claimed full power to dispense with all human Laws of all Realms in all Causes which he called Spiritual Now the King as Supream hath the same power in himself within his own Realms legally which the Pope claimed and exercised by Usurpation Eadem praesumitur mens Regis quae est Juris The Kings immediate personal ordinary inherent power which he executes or may execute Authoritate Regia suprema Ecclesiastica as King and Supream Governour of the Church of England is one of these Flowers qui faciunt Coronam Nor is the Kings immediate power restrained by such Statutes as authorize inferiour persons The Lord Chief Justice Hobart asserts That although the Stat. of 25 H. 8. 21. doth say That all Dispensations c. shall be granted in manner and
form following and not otherwise yet the King is not thereby restrained but his power remains full and perfect as before and he may still grant them as King for that all Acts of Grace and Justice flow from him By the Eighth Canon Concilii Calchuthensis held under Pope Adrian the First An. 787. the Pope had power to grant what Immunities and Priviledges he pleased in Church-matters and they were by the said Canon to be duly observed Whatever Authority the Pope pretended to in this Kingdom in such matters by way of Usurpation the same may the King as Supream Governour of the Church next under God in his own Dominions use and lawfully exercise by his Regal Authority ex justa plenitudine Potestatis suae Likewise Pope Agathon An. 680. in Concilio Romano-Britannico exercised his Papal Authority in the time of Lotharius King of Kent not only touching the Reformation of Errors and Heresies then in this Church but also as to the composure of differences and dissentions that then were among the Clergy of this Realm Such Presidents of the usurped power of the Papal See exercised in this Kingdom are now of no further use than to illustrate or exemplifie the Legal power inherent in the Kings of this Realm in such matters of Ecclesiastical Jurisdiction for the most High and Sacred Order of Kings being of Divine Right it follows that all persons of what estate soever and all Causes of what quality soever whether Ecclesiastical or Civil within his Majesties Realms and Dominions are subordinated to the Power and Authority of the King as Supream It is not only acknowledged but also constituted by way of an Ecclesiastical Canon That the power of Calling and Dissolving Councils both National and Provincial is the true Right of all Christian Kings within their own Realms and Territories 8. The Ecclesiastical Legislative power was ever in the Kings of this Realm within their own Dominions That in Ancient times they made their own Ecclesiastical Laws Canons and Constitutions appears by several Presidents and Records of very great Antiquity which were received and observed within their own Territories without any Ratification from any Forreign power One instance among many may be given of the Ecclesiastical Laws of Alured Mag. Regis Anglorum An. 887. This they did de jure by virtue of their own inherent Supremacy And therefore when Pope Nicholas the Second An. 1066. in the Bull wherein he ordained Westminster to be the place for the Consecration of Kings gave power to Edward the Confessor and his Successors to constitute such Laws in the Church as he should think fit he gave him therein no more than was his own before For the Kings of England might ordain or repeal what Canons they thought fit within their own Dominions in right of their Regal Supremacy the same being inherent in them Jure Divino non Papali For we find that in King AEtheldreds days An. 1009. in Concilio AEnhamensi Generali the Canons then made and afterwards caused by King Kanutus to be Transcribed were called the Kings Canons not the Bishops En hujus Concilii Canones quos in suas Leges passim transcripsit Rex Canutus Malmsburius AEtheldredo Regi non Episcopis tribuit And the Peers of this Realm per Synodum Landavensem were unexcommunicable nisi prius Consulto Rege aut ejus praecepto Which is a plain demonstration That the Kings of England Anciently had the Supremacy and superintendent Ecclesiastical power and Jurisdiction inherent in themselves exclusively to all other either home or Forreign powers whatever 9. It is by good Authority asserted That the King as Supream is himself instead of the whole Law yea that he is the Law it self and the only chief Interpreter thereof as in whose Breast resides the whole knowledge of the same And that his Majesty by communicating his Authority to his Judge to expound the Laws doth not thereby abdicate the same from himself but that he may assume it again unto him when and as oft as he pleases Dr. Ridl View p. 2. c. 1. Sect. 7. Consonant whereunto is that which Borellus hath Principum Placita Legis habent vigorem eatenus vim Legis obtinebunt quatenus fuerint cum honestate conjuncta Borel de Magist Edict l. 2. c. 4. Roland à Val. Cons 91. nu 54. vo 2. And Suarez tells us That Princeps est Lex viva reipsa praecipit ut Lex per scripturam Of which Opinion also is Alexander Imola and many others Suar. Alleg. 9. nu 13. The grant of Dispensations is a peculiar and very considerable part of Ecclesiastical Jurisdiction the which is eminently in the Crown and by the Stat. of 25 H. 8. the Archbishop of Canterbury may grant Dispensations Archiepiscopus possit dispensare contra Statutum Provinciale per se editum Et qui potest jus condere potest illud tollere Lindw de Cler. Conju c. 2. gl ult Extr. de Elect. c. Significasti c. Intonuit And in another place Episcopus in quibusdam Casibus Dispensare potest contra Canones Const Otho de Concu Cler. gl ver Meritis 10. The Laws and Statutes of this Realm have been tender of the Kings Supremacy ever since the Forreign power over the State Ecclesiastical was abolished In the Statute of 13 Car. 2. cap. 12. there is a Proviso That nothing in the said Act shall extend to abridge or diminish the Kings Majesties Supremacy in Ecclesiastical matters and affairs And in the Stat. of 22 Car. 2. cap. 1. there is a Proviso That not any thing therein contained shall extend to invalidate or avoid his Majesties Supremacy in Ecclesiastical affairs but that his Majesty his Heirs and Successors may from time to time and at all times hereafter exercise and enjoy all Powers and Authority in Ecclesiastical affairs as fully and amply as any of his Predecessors have or might have done 11. As no Convocations for Ecclesiastical Constitutions or for correction or reformation of Abuses in the Church can be Conven'd without his Majesties Writ for that end and purpose so being Conven'd no Canons or Constitutions that shall then be agreed on can have any effect in Law or be in force to oblige any of his Majesties Subjects until his consent thereunto be first had and obtained and until they shall have the power of Ecclesiastical Laws by being ratified and confirmed by the Supream Authority Therefore the Archbishop of Canterbury may not hold a Council for his Province without the Kings leave for when such Council was held by Hubert Archbishop of Canterbury it was prohibited by Fitz-Peter Chief Justice for that he had not the Kings License therein but he would not obey And 13 E. 3. Rot. Parl. M. 1. there was a Writ for a Convocation of the Clergy of the Province of Canterbury and Pauls And another for the other of York vid. Stat. 25 H. 8. c. 19. where the Clergy of England acknowledge that
the Convocations of the same Clergy are and always have been and ought to be assembled only by the Kings Writ The Convocation is under the power and Authority of the King 21 E. 3. 45. b. 12. After the Reign of King H. 8. this Supremacy in the Crown was signally exercised by King Ed. 6. styling himself Supream Head under Christ of the Church of England and Ireland in the Preface of his Injunctions given as well to all the Clergy as Laity of this Realm the Close whereof is as followeth viz. All which singular Injunctions the Kings Majesty ministreth unto his Clergy and their Successors and to all his loving Subjects straitly charging and commanding them to observe and keep the same upon pain of Deprivation Sequestration of Fruits or Benefices Suspension Excommunication and such other Coercion as to Ordinaries or others having Ecclesiastical Jurisdiction whom his Majesty hath appointed for the due execution of the same shall be seen convenient Charging and commanding them to see these Injunctions observed and kept of all persons being under their Jurisdiction as they will answer to his Majesty for the contrary And his Majesties pleasure is That every Justice of Peace being required shall assist the Ordinaries and every of them for the due execution of the said Injunctions 14. The Three first Articles to be enquired of at the Visitations within the Province of Canterbury in the second year of the Reign of the said King Edward the Sixth were as followeth viz. 1. Whether Parsons Vicars and Curates and every of them have purely and sincerely without colour or dissimulation four times in the year at the least preached against the Usurped power pretended Authority and Jurisdiction of the Bishop of Rome 2. Whether they have preached and declared likewise four times in the year at least that the Kings Majesties power authority and preheminence within his Realms and Dominions is the highest power under God 3. Whether any person hath by writing cyphring preaching or teaching deed or act obstinately holden and stand with to extol set-forth maintain or defend the authority jurisdiction or power of the Bishop of Rome or of his See heretofore claimed and usurped or by any pretence obstinately or maliciously invented any thing for the extolling of the same or any part thereof Likewise by the Articles of Religion agreed on by the Convocation held in London and published An. 1553. by the Authority of King Ed. 6. it is declared That the King of England is Supream Head in Earth next under Christ of the Church of England c. and that the Bishop of Rome hath no Jurisdiction in this Realm The like you have in the Articles of Religion agreed on by the Archbishops and Bishops of both Provinces and the whole Clergy in the Convocation held in London An. 1562. and published by the Authority of Queen Elizabeth That the Queens Majesty hath the chief Power in this Realm of England and other her Dominions unto whom the chief Government of all Estates of this Realm whether they be Ecclesiastical or Civil in all Causes doth appertain and is not nor ought to be subject to any Forreign Jurisdiction Which Articles being the Articles of the Church of England were afterwards ratified and confirmed by his Majesty King CHARLES I. of ever Blessed Memory by his Royal Declaration thereunto prefixed in which Declaration you have as followeth viz. That we are Supream Governour of the Church of England and that if any difference rise about the External Policy concerning the Injunctions Canons or other Constitutions whatsoever thereto belonging the Clergy in their Convocation is to order and settle them having first obtained leave under our Broad Seal so to do and We approving their said Ordinances and Constitutions provided that none bâ— made contrary to the Laws and Customes of the Land Likewise in the first of the aforesaid Injunctions of King Ed. 6. as also in the first of the Injunctions given by Q. Elizabeth concerning both the Clergy and Laity of this Realm published Ann. 1559. being the first year of her Reign it is enjoyned That all Deans Archdeacons Parsons Vicars and all other Ecclesiastical persons shall faithfully keep and observe c. all and singular Laws and Statutes made for the restoring to the Crown the ancient Jurisdiction over the State Ecclesiastical and abolishing of all Forreign power repugnant to the same c. By the Statute of 25 H. 8. c. 19. Appeals to Rome are prohibited and it is Ordained that in default of Justice in any of the Courts of the Archbishops of this Realm it shall be lawful to appeal to the King in his Court of Chancery and thereupon a Commission shall be granted c. And by a Proviso towards the end of that Statute an Appeal is given to the King in Chancery upon Sentences in places exempt in the same manner as was before used to the See of Rome And as by the said Statute there may be an Appeal to the King in Chancery when the Suit is in the Archbishops Court or some Peculiar exempt so in some Cases the Appeal may be to the King generally as he is Supream Head of all Ecclesiastical Jurisdiction within the Realm for by the Statutes made in the time of King Hen. 8. the Crown was only remitted and restored to its Ancient Jurisdiction which had been usurped by the Bishop of Rome 33 Ed. 3. Fitz. Aid del Roy 103. Reges sacro oleo uncti Spiritualis Jurisdictionis sunt capaces Rex est Mixta persona cum Sacerdote Et causa Spiritualis Committi potest Principi Laico Cassan in Catal. glo mund p. 5. Consid 24. The King of England c. is Persona Sacra mixta cum Sacerdote and at his Coronation by a solemn Consecration and Unction becomes a Spiritual person Sacred and Ecclesiastical and then hath tam Vestem Dalmaticam as an emblem of his Royal Priesthood quam Coronam Regni in respect of his Regal power in Temporals and is Supream Governour in all Causes and over all Persons as well Ecclesiastical as Civil The King is Supream Ordinary by the Ancient Common Law of England before the Statute of 24 H. 8. cap. 12. for a Resignation might be made to him he might make a Grant of a Church to a man to hold to his own proper use he might not only exempt any Ecclesiastical person out of the Jurisdiction of the Ordinary but also give him Episcopal Jurisdiction he might Present to Free Chappels in default of the Dean by Lapse and that as Ordinary and in respect of his Supream Ecclesiastical Jurisdiction he might dispense with one not lawfully born to be a Priest albeit the Ecclesiastical Laws allowed within this Realm do prohibite it but the reason is for that it is not Malum in se but Malum prohibitum In a word All that the Pope was wont to do in such cases within this Realm as
a kind of Collect for the Saint to whose Name the Church is Dedicated and some other Services as the Chaunter shall appoint So that although the Patron might chuse the Ground yet the Prelate was to come and Consecrate it the Patron might bring the Stones but the Bishop laid the Foundation the Workmen might with the Materials make a House but the Bishop by Consecration made it a Church It was but the dead body of a Temple till it received the being of a Church by the influence of the Diocesan Thence it was that the priviledge of a new Church followed not the Building but the Consecration thereof as was well observed by that Devout and Learned King Alured in the fifth Canon of his Ecclesiastical Laws where he saith That if a man pursued by his Enemy flie to the Temple no man shall thence take him away for the space of seven days which Law was yet made under a Caution That this freedom shall not be granted to any Church but such as shall be Consecrated by the Bishop 5. Consecration relating to the person office and dignity of a Bishop as in the former part of this Chapter was by the Imperial Law so necessary to the making him a Bishop compleat as that without it his Election and Confirmation would not have entituled him to any Church that should be new erected within his Diocess whereunto he being Consecrated had a right and Title as is evident not only by the Emperours Novel but also more peculiarly acknowledged by the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or the setting up of the Cross behind the Altar when he made the Consecration Thus the Eucholgue for the Greek Church The like also is observed in the Latin where the Ceremonies are more tedious and elaborate By the setting up of the said 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Right of the new Church was conveyed to the Patriarch or Bishop as by an especial Title and that not only by the Euchologue in the Greek but also by the Emperour 's Novel in the Latin Church Concerning which Right and the Conveyance thereof by the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Observable to this purpose is that Synodical Sentence given by Germanus Patriarch of Constantinople against John Archbishop of Lepanto touching certain Episcopal Monasteries whereon he had illegally fixed his Cross under pretence of a Right to the same 6. This Consecration specially as it refers to Bishops is Character indelebilis insomuch that although it should so happen that for some just cause he should be deposed or removed from the See or suspended ab Officio Beneficio both from his Spiritual Jurisdiction as to the exercise and execution thereof as also from the Temporalties and profits of the Bishoprick yet he still retains the Title of a Bishop for that it is supposed the Order it self cannot absolutely be taken from him King H. 1. banished Thurstan Archbishop of York for five years for receiving Consecration from the Pope Speed 440. b. 458. b. 7. It appears by good Chronology that the first that ever Consecrated Churches was Euginus who was a Greek and Priest of Rome and was the first that ever styled himself Pope An. 154. who wrote de Trinitate Vnitate Dei. He was the first that Decreed that Churches should be Consecrated with the consent of the Metropolitan or Bishop and that there should be one God-father and one Godmother at Baptism 8. In a Case of Translation the Bishop need not to be Consecrated de Novo as in case of Creation Anciently and according to the Canon Law and where the Pope's Spiritual power and authority was in force Bishops were not so much by Election as by Postulation and then the saying was Electus Postulando Postulatus obligando and in that case the Elected was a Bishop presently without either Confirmation or Consecration only by the Assent of the Superiour Before Consecration the Bishop hath not actual possession although he hath a Freehold in Law after Consecration But in case of Translation there is not any new Election nor may the Dean and Chapter pray a Congé d'Estire but they signifie to the King how their Bishoprick is void ideo humilime Postulamus Humbricensem Episcopum fore Episcopum nostrum and that is called Postulation and then if the King grant it he is the Bishop Trin. 21 Jac. B. R. Sir Jo. Vaughan's Case vers Ascough Roll. Rep. Postulatio est alicujus personae ad dignitatem vel Societatem Fraternam Canonica facta vocatio vel est personae quae eligi non potest ad eligendum petitio Cap. innotuit § habito de Elect. The Bishop of St. P. was chosen Bishop of Trevers and had the assent of the Pope and when he came there he found another in possession whereupon he would have returned to his former Bishoprick but could not because it was void before by the consent of the Superiour And in the Case of Evans and Ascough it was said That a Bishop hath been Summoned to Parliament before by Confirmation but as Jones there said That was after his Possessions or Temporalties were restored to him And Caltheep there said That in the Case of Translation of a Bishop there are five things to be performed 1. The Chapters Intimation of the death of their Bishop praying Congé d'Estire 2. Congé al eux d'Estire 3. A Certificate of the Election 4. The Assent of the Bishop and the King 5. The Writ to the Archbishop to Confirm and Install him because in such case of Translation he shall not be Consecrated de Novo as aforesaid But Consecration is necessary to the making of him a Bishop who was none before and is the fourth Act in order to a Bishop according to the enumeration of these steps and degrees thereunto which in the said case of Evans and Ascough is mentioned by Whitlock where he faith That in the making of a Bishop when a Bishoprick is void the course is 1. To obtain a Congé d'Estire 2. The Kings Letters Missive whom they shall abuse 3. Vpon the Election three Instruments thereof one whereof to the party Elected another to the Archbishop a third to the King certifying him of the Election and then there is an act of Assent to the Election which cannot be without his Assent 4. The Kings Writ to the Archbishop to Consecrate and Install the person Elected 5. Then the Archbishop issues forth a general Citation and therein doth prefix a certain day for the Confirmation which is done accordingly and then be is Consecrated Then the new Bishop swears Fealty to the King which being done the King orders him his Temporalties so that there are three principal Acts required to the making of a Bishop The Election is as the Sollicitation the Confirmation is the Contract the Consecration is the Consummation of the Marriage Answerable whereunto said Doderidge in the Case aforesaid are the Acts of making a Parson As 1. Presentation whereto
or profit of his Spiritual Jurisdiction As to the Third point they said That although a Proxie is a Personal thing payable only in respect of persons Visitable yet admit that these Proxies are become Real and that the Commandry and Rectory are charged with these Proxies then the unity of possession doth extinguish them in the hands of the King as a Seignory Rent-charge Common and the like are extinguished by the purchase of the Terre-tenant if he hath the like Estate in the Land and in the thing which charged the Land And to this purpose was cited the Case of 2 H. 4. 19. a. where a Prior had an Annuity out of a Parsonage by Prescription the Parsonage is after appropriate to the Priory the Annuity is extinguimed for ever But on the other side it was answered by the Kings Council and Resolved by the Court That the said Proxies were not extinguished by the dissolution of the said Religious houses but were well preserved and saved to the Bishop and the Bishop had well granted them to the King and the unity of possession in the hands of the King made but a Suspension and no Extinguishment of the said Proxies 1 As to the First point it was first observed that these Proxies had not their original in the primitive Church for St. Paul in visiting all the Churches which he had planted in Asia and Europe demanded not any Proxies but laboured with his own hands for his subsistance lest he should be burthensom to the Churches Yet long after this the Canon Law which declares that Proxies are due to Bishops in their Visitations says that it is agreeable to the doctrine of St. Paul ut à quibus spiritualia recipimus eisdem Temporaliae communicemus Instit Jur. Can. l. 2. c. de Censib It was also observed that that which we call Proxie or Procuracy is called by the Canonists Procuratio for that upon every Visitation the persons visitable procurant necessary Provisions for the Visitors which Provisions at first were made in Victuals viz. in Esculentis Poculentis but that was with moderation and temperance Ne jejuniorum doctrinam rubentibus buccis praedicant But afterwards when the pomp and excess of Visitors required such provisions as were grievous and intolerable to the Churches and Religious houses then every Church and such House was reasonably Taxed and for that every Proxie was reduced to a certain sum of money payable yearly in the nature of a Pension to the Ordinary who had power of Visitation de mero Jure as is said 10 Eliz. Dyer 273. b. After the Procuration of Victuals was reduced to a certain sum the Churches and Religious houses paid it to the ordinary yearly albeit he made not any Visitation And so the Rule of Cessante causa cessat effectus doth not hold in this case These certain sums of money which come in lieu of Proxies and retain the name of Proxies are by ancient Composition made parcel of the certain and settled Revenues of the Bishop do remain for ever and are not subject to extinguishment And at this day the King himself pays and allows Proxies out of all the Impropriations which he hath in his possession for which reason in every Lease made by the King of a Rectory Impropriate there is a Covenant on the Lessee's part that he shall bear and pay all Proxies Synodals Pensions c. And as for the Saving in the Act of 33 H. 8. cap. 5. it is not an idle or Flattering Saving but real and effectual for it was agreed before that these Proxies were in being at the time of making the Act and are not extinguished by the Surrender of the Religious houses for their Corporations are not dissolved till the Religious persons have relinquished their houses and are dispersed And such things as were in being at the time of making the Act may well be preserved and saved by the Act albeit the things which were extinct before cannot be revived by a Saving without express words of Grant and Restitution As to the Second point it was Resolved That the Proxies in their original nature being Duties payable for Visitation are grantable to the King and the King is capable of such a Grant specially when the said duties are converted to a sum of money certain in the nature of a Pension or Annuity For by the Ancient Law of the Realm the King had power to Visit reform and correct all Abuses and Enormities in the Church And by the Statutes made in the time of King H. 8. the Crown was but remitted and restored to his ancient Jurisdiction which had been usurped by the Bishop of Rome 33 Ed. 3. tit Ayd del Roy 103 Reges sacro oleo uncti Spiritualis Jurisdictionis sunt Capaces And Proxies are profits of the Jurisdiction 10 H. 7. 18. Rex est mixta persona cum Sacerdote So the King shall have Tithes by the Common Law whereof no meer Lay-person was capable 22 Assis pl. 75. 21 H. 7. 1. The King himself may Visit his Free Chappels and Hospitals 8 Ass p. 29. N. Br. 42. a. And Cassanae in Catol Glo. mund par 5. Cons 24 cites a Text of the Canon Law viz. Quod omnes Reges dicuntur Clerici also another Text which faith Quod Causa Spiritualis committi potest Principi Laico And whereas it was said that in respect of the grandeur of the King and his Train competent Proxies cannot be provided for him and by consequence a Grant thereof cannot be made to him that Objection is removed in that the Proxies at the time of that Grant was reduced to certain reasonable sums of money Also the Rule of the Canon Law was not rightly and fully cited before for the Rule is Procuratio exhibenda est secundum qualitatem personae visitantis substantiam Visitatorum It was also Resolved that the Bishop with the assent of his Clergy might well grant the Proxies to the King for that the Law hath qualified the person of the King to receive such a Grant albeit it be such a Prerogative of the Bishop as may not be assigned to any other person As the Creation-money of a Duke or Earl may be granted and surrendred to the King although it can be granted to a Subject Also the Proxies being now reduced to certain sums of money and so made part of the certain settled and perpetual Revenue of the Bishop may be granted by him as well as a part of the Tithes or an Annuity or any of his Rents Services or other Hereditaments Temporal And as to the Third point it was also Resolved and Adjudged That the Unity of Possession of the Proxies with the Rectories impropriate and religious Houses out of which the Proxies are payable do not extinguish the Proxies in the hands of the King but suspends the payment of them tantum pro tempore quousque or until the King by his Grant shall sever the one from the other To conclude
Office supposing the Grant of that by the Predecessor does not bind the Successor as it was in Dr. Barker's Case there a Prohibition shall be awarded because the profits are Temporal But we in the first Case cannot try the Sufficiency Vid. 8 E. 3. 70. 9 E. 3. 11. So it is if the Ordinary deprive the Master of a Lay-Hospital for there he is not a Visitor nor is it Visitable by him But otherwise of a Spiritual Hospital 20. The Bishop of Landaff granted the office of his Chancellorship to Dr. Trevor and one Griffin to be exercised by them either joyntly or severally Dr. Trevor for 350 l. released all his Right in the said Office to Griffin so that G. was the sole Officer and then after died After this the Bishop grants the said Chancellorship to R. being a Practicioner in the Civil Law for his life Dr. Trevor surmising that himself was the sole Officer by Survivorship made Dr. Lloyd his Substitute to execute the said office for him and for that that he was disturbed by R. the said Dr. Trevor being Substitute to the Judge of the Arches granted an Inhibition to inhibite the said R. from executing the said Office The Libel contained That one R. hindered and disturbed Dr. Lloyd so that he could not execute the said Office Against these proceedings in the Arches a Prohibition was prayed and day given to Dr. Trevor to shew cause why it should not be granted They urged that the Office was Spiritual for which reason the discussing of the Right thereof appertaineth to the Ecclesiastical Courts But all the Judges agreed That though the Office was Spiritual as to the Exercising thereof yet as to the Right thereof it was Temporal and shall be tryed at the Common Law for the party hath a Freehold therein Vid. 4 5 P. M Dyer 152. 9. Hunt's Case for the Registers Office in the Admiralty and an Assize brought for that And so the Chief Justice said was Adjudged for the Registers Office to the Bishop of Norwich in B. R. between Skinner and Mingey which ought to be tryed at the Common Law And so Blackleech's Case as Warburton said in this Court for the office of Chancellor to the Bishop of Gloucester which was all one with the principal Case And they said That the office of Chancellor is within the Statute of Ed. 6. for buying of Offices c. And so in the manner of Tithing the Prescription is Temporal for which cause it shall be tryed at Common Law And Prohibition was granted according to the first Rule So that if a Bishop grant the office of Chancellorship to A. and B. and after A. release to B. and after B. die and after the Bishop grant it to R. against whom A. sues in the Ecclesiastical Court supposing his Release to be void a Prohibition will lie for that the office is Temporal as to the Right of it though the office be Exercised about Spiritual matters But if a Chancellor be sued in the Ecclesiastical Court to be deprived for Insufficiency as not having knowledge of the Canon Law no Prohibition lies for that they are there the proper Judges of his ability and not the Judges of the Common Law 21. In Dr. Trevor's Case who was Chancellor of a Bishop in Wales it was Resolved That the Offices of Chancellor and Register c. in Ecclesiastical Courts are within the Statute of 5 Ed. 6. cap. 16. which Act being made for avoiding Corruption of Officers c. and advancement of Worthy persons shall be expounded most beneficially to suppress Corruption And because it allows Ecclesiastical Courts to proceed in Blasphemy Heresie Schism c. Loyalty of Matrimonies Probat of Wills c. And that from these proceedings depends not only the Salvation of Souls but also the Legitimation of Issues c. and other things of great consequence It is more reason that such Officers shall be within the Statute than Officers which concern Temporal matters The Temporal Judge committing the Convict only to the Gaoler but the Spiritual Judge by Excommunication Diabolo And there is a Proviso in the Statute for them And it was Resolved That such Offices were within the Purview of the said Statute CHAP. XI Of Courts Ecclesiastical and their Jurisdiction 1. The Antiquity of the Ecclesiastical Laws of England and what the Chief Ecclesiastical Courts are in general anciently called Halimots The Original of the Popes Vsurpation in England 2. The Court of Convocation and Constitutions of Claringdon 3. The High Court of Arches why so called the highest Consistory the Jurisdiction thereof 4. The Judge of this Court whence called Dean of the Arches 5. The great Antiquity of this Court the Number of Advocates and Proctors thereof Anciently limited their decent Order in Court 6. The Prerogative Court of Canterbury 7. The Court of Audience to whom it belonged where kept and what matters it took cognizance of 8. The Court of Faculties why so called what things properly belong to this Court As Dispensations Licenses c. with the Original thereof in England 9 What the nature of a Dispensation is and who qualified to grant it 10. A Dean made Bishop the King may dispence with him to hold the Deanary with the Bishoprick by way of Commendam 11. Whether a Prohibition lies to the Ecclesiastical Courts in case they do not allow of Proof by one Witness 12. Divers Cases at the Common Law relating to Prohibitions to the Ecclesiastical Courts 13. The Court of Delegates 14. The High Commission Court what the Power thereof was 15. The Court of Review or Ad Revidendum 16. The Court of Peculiars 17. In what Cases the Ecclesiastical Court shall have Jurisdiction of matters Subsequent having Jurisdiction of the Original Suit 18. In what Case the party having allowed of the Jurisdiction comes too late to have a Prohibition 19. The difference between a Suit Ad instantiam partis and that ex Officio Judicis in reference to a General Pardon 20. Whether a Cleâ—k may strike his Servant or another in that case the Clerk and be blameless 21. What manner of Avoidance shall be tried at the Common Law and what in the Ecclesiastical Court 22. In what Case a special Prohibition was awarded in a Suit of Tithes after a Definitive Sentence 23. A Prohibition to the Ecclesiastical Court in a Suit grounded on a Custome against Law 24. Prohibition awarded to the Ecclesiastical Court upon refusal there to give a Copy of the Libel 25. Where the Ecclesiastical Court hath cognizance of the Principal they have also of the Accessory though the Accessory of matters Temporal 26. A Prohibition denied upon a Suggestion That the Ecclesiastical Court would not admit of proof by one Witness 27. In what case the Ecclesiastical Court shall have the Cognizance albeit the bounds of a Village in a Parish come in question 28. How the Practice hath been touching Prohibitions where the Subject matter
exempts the Bishop from the Jurisdiction of his Metropolitan And for that the Cardinal fell into a Praemunire for which he purchased his Pardon which is sound among the Charters 4 H. 6. in Archivis Turr Lond. 6 7 Eliz. Dyer 233. a. Jo. Packhurst being elected to the Bishoprick of Norwich before that he was created Bishop obtained a Faculty or Dispensation from the Archbishop of Canterbury by force of the Statute of Faculties to retain a Parsonage which he had before in Commendam for Three years viz. Ã Festo Michaelis An. Dom. 1560. usque ad idem Festum in An. 1563. Before the first Feast of St. Michael Packhurst is created Bishop and afterwards he resigned the Benefice And the Question was whether that Benefice became void by the resignation of Packhurst or by his promotion to the Bishoprick And it was adjudged That the Church became void by his Resignation Which proves That by virtue of the said Faculty or Dispensation he continued Parson until he had Resign'd Vid. N. Br. 36. h. If a Parson who hath a Faculty or Dispensation to hold his Rectory be created a Bishop and after the Patron present another Incumbent who is Instituted and Inducted now the Bishop shall have a Spoliation against that Incumbent which proves that his real possession in the Parsonage always continued by virtue of the said Faculty or Dispensation And in this Case of a Commendam in Sir Joh. Davis Reports this difference is put between a Faculty to take a Benefice and a Faculty to retain a Benefice viz. That a Faculty granted to one who is not Incumbent to Take a void Benefice is void And a Faculty to one who is Incumbent of a Benefice to Retain the same Benefice is good By virtue of these Faculties Dispensations and Provisions from the Pope Edmond the Monk of Bury who was a Minister in the Court of King Ed. 3. had many Benefices as appears in the foresaid Case of the Bishop of St. Davids 11 H. 4. And Hankford said in the same Case fo 191. a. That by virtue of such Faculty one and the same person had been Abbot of Glastenbury and Bishop also of another Church simul semel and had the Possessions and Dignity of both at the same time Likewise Hen. Chichley who was afterwards Archbishop of Canterbury being a Prebend in the Cathedral Church of Sarum was elected Bishop of St. Davids and before his Consecration the Pope reciting by his Bull that he was elected Bishop of St. Davids granted him a Faculty and power to hold and enjoy all his other Benefices till the Pope should otherwise order c. Vid. Nov. Decis Rot. 331. And that these Faculties or Dispensations to hold Benefices in Commendam were granted in the Court of Rome in the time of King H. 5. appears in Lindw de Praeb c. Audistis ver Dispensatione And although in case of Hen. Beauford aforesaid it was held That the Dispensation came too late it being granted after the Bishop was created Cardinal yet afterwards in the time of King H. 8. Cardinal Wolsey having before he was created Cardinal obtained a Bull from the Pope to retain the Archbishoprick of York as perpetual Administrator and the Abbey of St. Albans in perpetuam Commendam he held both during his life by virtue of the said Faculty or Dispensation Vid. 27 H. 8. 15. b. By these Presidents and Authorities it is evident That before the making of the foresaid Statute of Faculties such Dispensations were had and obtained at the Court of Rome to hold in Commendam Ecclesiastical Benefices in England But the Truth is as in the foresaid Case de Commenda Davis Rep. such Faculties or Dispensations granted by the Pope touching Ecclesiastical Benefices in England were ever contrary to the Law of the Realm for it was a meer usurpation on the Crown of England before the Statutes made against Provisors And these Statutes were made in declaration of the Common Law in that point 12 Ed. 2. Fitz. Qua. Imp. 169. 19 Ed. 2. Eitz Qua non admisit 7. 15 Ed. 3. Fitz. Qua. Imp. 160. 21 Ed. 3. 40. 11 H. 4. 230. a. It is also meet to be known That long before King H. 8. the Statute of 16 R. 2. and divers other Laws against Provisors and Appeals to Rome and the Popes Usurpation upon the Rights of the Crown of England were made well-nigh as severe as any since The first encroachment of the Bishop of Rome upon the Liberties of the Crown of England was made in the time time of King William the Conqueror For before that time the Pope's Writ did not run in England his Bulls of Excommunication and Provision came not thither nor were any Citations or Appeals made from thence to the Court of Rome Eleutherius the Pope within less than two hundred years after Christ writes to Lucius the Brittish King and calls him God's Vicar within his Kingdom Pelagius the Monk of Bangor about An. 400. being cited to Rome refused to appear upon the Pope's Citation affirming That Britain was neither within his Diocess nor his Province And when about the year 600 Augustine the Monk was sent by Gregory the Great into England to Convert the Saxons the Brittish Bishops then in Wales regarded neither his Commission nor his Doctrine as not owing any duty to nor having any dependence on the Court of Rome but still retained their Ceremonies and Traditions which they received from the East-Church upon the first plantation of the Faith in that Island And though Ina the Saxon King gave the Peter-pence to the Pope partly as Alms and partly in recompence of a House erected in Rome for English Pilgrims yet certain it is that Alfred Aethelstane Edgar Edmond Cauutus and Edward the Confessor and other Kings of the Saxon Race gave all the Bishopricks in England per Annulum Baculum 9. In the Case of Evans against Askwith it was agreed That the nature of a Dispensation is for to derogate and make void a Statute Canon or Constitution as to that which it prohibites as to the party and it is as an Exception as to him out of the Statute or Constitution It is said that a Dispensation is Provida Relaxatio mali prohibiti necessitate vel utilitate pensata And in the same Case it was also Resolved by all the Judges That the King hath power to Dispence with Statutes and Canons in force within this Realm By the very Common Law of right it was in the King for the Canons are the Ecclesiastical Laws of the Land and do not bind except they are received in the Realm as appears by the Statute of 25 H. 8. c. 21. And by the Statute of Merton touching one born before Marriage as by the Canon yet at Common Law he is Legitimate And 10 H. 7. 12. it is said That the King may Dispence with one to hold Two Benefices and it seems the Pope
that upon such Appeal a Commission under the Great Seal shall be directed to certain persons particularly designed for that business so that from the highest Court of the Archbishop of Canterbury there lies an Appeal to this Court of Delegates Of this Subject of Appeals the Lord Coke says That an Appeal is a Natural defence which cannot be taken away by any Prince or power and in every Case generally when Sentence is given and Appeal made to the Superiour the Judge that did give the Sentence is obliged to obey the Appeal and proceed no further until the Superiour hath examined and determined the cause of Appeal Nevertheless where this Clause Appellatione remota is in the Commission the Judge that gave Sentence is not bound to obey the Appeal but may execute his Sentence and proceed further until the Appeal be received by the Superiour and an Inhibition be sent unto him For that Clause Appellatione remota hath Three notable effects 1 That the Jurisdiction of the Judge à quo is not by the Appeal suspended or stopped for he may proceed the same notwithstanding 2 That for proceeding to Execution or further process he is not punishable 3 That these things that are done by the said Judge after such Appeal cannot be said void for they cannot be reversed per viam Nullitatis But if the Appeal be just and lawful the Superiour Judge ought of right and equity to receive and admit the same and in that case he ought to reverse and revoke all mean Acts done after the said Appeal in prejudice of the Appellant At the Parliament held at Clarendon An. 10 H. 2. cap. 8. the Forms of Appeals in Causes Ecclesiastical are set down within the Realm and none to be made out of the Realm Ne quis appellat ad dominum Papam c. so that the first Article of the Statute of 25 H. 8. concerning the prohibiting of Appeals to Rome is declaratory of the ancient Law of the Realm And it is to be observed says the Lord Coke that the first attempt of any Appeal to the See of Rome out of England was by Anselme Archbishop of Canterbury in the Reign of William Rufus and yet it took no effect Touching the power and Jurisdiction of the Court of Delegates Vid. le Case Stevenson versus Wood. Trin. 10 Jac. B. R. Rot. 1491. in Bulstr Rep. par 2. wherein these Three points are specially argued 1 Whether the Judges Delegates may grant Letters of Administration 2 Whether in their person the King be represented 3 Whether the Court of Delegates may pronounce Sentence of Excommunication or not 14. The High Commission-Court in Causes Ecclesiastical was by Letters Patents and that by force and virtue of the Statute of 1 Eliz. cap. 1. the Title whereof is An Act restoring to the Crown the Ancient Jurisdiction Ecclesiastical c. the High Commissioners might if they were competent that is if they were Spiritual persons proceed to Sentence of Excommunication What the power of this Court was and whether they might in Causes Ecclesiastical proceed to Fine and Imprisonment is at large examined by the Lord Coke in the Fourth part of his Institutes where he reports the Judgment and Resolutions of the whole Court of Common Pleas thereon Pasch 9 Jac. Reg. upon frequent Conferences and mature deliberation set down in writing by the order and command of King James Likewise whom and in what Cases the Ecclesiastical Courts may examine one upon Oath or not there being a penal Law in the Case and whether the saying Quod nemo tenetur seipsum prodere be applicable thereunto Vid. Trin. 13 Jac. B. R. Burroughs Cox c. against the High Commissioners Bulstr par 3. 15. The Statutes of 24 H. 8. and 25 H. 8. do Ordain That upon certain Appeals the Sentence given shall be definitive as to any further Appeal notwithstanding which the King as Supream Governour may after such definitive Sentence grant a Commission of Review or Ad Revidendum c. Sir Ed. Coke gives two Reasons thereof 1 Because it is not restrained by the Statute 2 For that after a definitive Sentence the Pope as Supream Head by the Canon Law used to grant a Commision Ad Revidendum and what Authority the Pope here exercised claiming as Supream Head doth of right belong to the Crown and by the Statutes of 26 H. 8. cap. 1. and 1 Eliz. cap. 1. is annexed to the same Which accordingly was Resolved Trin. 39 Eliz. B. R. Hollingworth's Case In which Case Presidents to this purpose were cited in Michelot's Case 29 Eliz. in Goodman's Case and in Huet's Case 29 Eliz. Also vid. Stat. 8 Eliz. cap. 5. In the Case between Halliwell and Jervoice where a Parson sued before the Ordinary for Tithes and thence he appeals to the Audience where the Sentence is affirmed then the party appeals to the Delegates and there both Sentences are Repealed It was agreed That in such case a Commission Ad Revidendum the Sentences may issue forth but then such a Reviewing shall be final without further Appeal But if the Commissioners do not proceed to the Examination according to the Common Law they shall be restrained by a Prohibition 16. The Court of Peculiars is that which dealeth in certain Parishes lying in several Diocesses which Parishes are exempt from the Jurisdiction of the Bishops of those Diocesses and are peculiarly belonging to the Archbishop of Canterbury Within whose Province there are fifty seven such Peculiars for there are certain peculiar Jurisdictions belonging to some certain Parishes the Inhabitants whereof are exempt sometimes from the Archdeacons and sometimes from the Bishops Jurisdiction 17. If a Suit be in the Ecclesiastical Court for a Modus Decimandi if the Desendant plead payment it shall be tryed there and no Prohibition may be granted for that the Original Suit was there well commenced So if payment be pleaded in a Suit depending in the Ecclesiastical Court for any thing whereof they have the original cognizance But if a man sue for Tithes in the Ecclesiastical Court against J. S. and makes Title to them by a Lease made to him by the Parson and J. S. there also makes Title to them by a former Lease made to him by the same Parson so that the Question there is which of the said Leases shall be preferred In this case a Prohibition shall be granted for they shall not try which of the said Leases shall be preferr'd although they have cognizance of the Original for the Leases are Temporal If a man having a Parsonage Impropriate make a Lease for years of part of the Tithes by Deed and the Deed be denied in the Ecclesiastical Court and Issue taken thereon a Prohibition shall be granted If a Parson compound with his Parishioner for his Tithes and by his Deed grant them to him for a certain Sum for one year according to Agreement and after he
Bishop of Rome had assumed or tooken upon him to be the Spiritual Prince or Monarch of all the World he attempted also to give Laws to all Nations as one real Mark or Signal of his Monarchy but they well knowing Quod ubi non est condendi authoritas ibi non est parendi necessitas did not impose their Laws at first peremptorily on all Nations without distinction but offered them timide precario And therefore he caused certain Rules in the first place to be collected for the Government of the Clergy only which he called Decreta and not Leges vel Statuta These Decrees were published in An. 1150. which was during the Reign of King Stephen And therefore what the Lord Coke observes in the Preface to the Eighth part of his Reports Quod Rogerus Bacon frater ille perquam Eruditus in Libro De impedimentis Sapientiae dicit Rex quidem Stephanus allatis Legibus Italiae in Angliam Publico Edicto prohibuit ne in aliquo detinerentur may probably be conjectured to be meant and intended of those Decrees which were then newly compiled and published Yet these Decrees being received and observed by the Clergy of the Western Churches only for the Eastern Church never received any of these Rules or Canons Kelw. Rep. 7 H. 8. fo 184 the Bishop of Rome attempted also to draw the Laity by degrees into obedience to these Ordinances and to that purpose in the first place he propounds certain Rules or Ordinances for Abstinence or days of Fasting to be observed as well by the Laity as the Clergy which were upon the first Institution thereof called by the mild and gentle name of Regationes as Marsilius Pat. lib. Defensor Pacis par 2. cap. 23. hath observed and thence it seems the Week of Abstinence a little before the Feast of Pentecost was called the Rogation-week that time of Abstinence being appointed at the beginning by that Ordinance which was called Rogatio and not Praeceptum vel Statutum Now when the Laity out of their devotion had received and obeyed these Ordinances of Abstinence then the Bishop of Rome proceeds further De una praesumptione ad aliam transivit Romanus Pontifex as Marsil Pat. there says and made many Rescripts and Orders per Nomen Decretalium which were published in the year 1230. which was in the Fourteenth year of King H. 3. or thereabout Vid. Matth. Par. Hist mag 403. and these were made to bind all the Laity and Sovereign Princes as well as their Subjects in such things as concerned their Civil and Temporal Estates As that no Lay-man should have the Donation of an Ecclesiastical Benefice That no Lay-man should marry within certain Degrees out of the degrees limited by the Levitical Law That all Infants born before Marriage should be adjudged after Marriage Legitimate and capable of Temporal Inheritance That all Clerks should be exempt from the Secular power and others of the like nature But these Decretals being published they were not entirely and absolutely received and obeyed in any part of Christendom but only in the Pope's Temporal Territory which by the Canonists is called Patria obedientiae But on the other hand many of those Canons were utterly rejected and disobeyed in France and England and other Christian Realms which are called Patriae Consuetudinariae As the Canon which prohibited the Donation of Benefices per manum Laicam was ever disobeyed in England France the Kingdom of Naples and divers other Countries and Common-wealths And the Canon to make Infants Legitimate that were born before Marriage was specially rejected in England when in the Parliament held at Merton omnes Comites Barones una voce responderunt Nolumus Leges Angliae mutari quae hucusque usitatae sunt c. And the Canon which exempts Clerks from the Secular power was never fully observed in any part of Christendom Kelw. 7 H. 8. 181. b. which is one infallible Argument That these Ordinances had not their force by any Authority that the Court of Rome had to impose Laws on all Nations without their consent but by the approbation of the people which received and used them For by the same reason whereby they might reject one Canon they might reject all the other Vid. Bodin lib. 1. de Rep. cap. 8. where he saith That the Kings of France on the erection of all Universities there have declared in their Charters that they would receive the Profession of the Civil and Canons to use them at their discretion and not to be obliged by these Laws But as to those Canons which have been received accepted and used in any Christian Realm or Common-wealth they by such acceptation and usage have obtained the force of Laws in such particular Realm or State and are become part of the Ecclesiastical Laws of that Nation And so those which have been embraced allowed and used in England are made by such allowance and usage part of the Ecclesiastical Laws of England By which the interpretation dispensation or execution of these Canons being become Laws of England doth appertain sole to the King of England and his Magistrates within his Dominions and he and his Magistrates have the sole Jurisdiction in such cases and the Bishop of Rome hath nothing to do in the interpretation dispensation or execution of those Laws in England although they were first devised in the Court of Rome No more than the Chief Magistrate of Athens or Lacedemon might claim Jurisdiction in the Ancient City of Rome for that the Laws of the XII Tables were thither carried and imported from those Cities of Greece and no more than the Master of New-Colledge in Oxford shall have Command or Jurisdiction in Kings-Colledge of Cambridge for that the private Statutes whereby Kings-Colledge is governed were for the most part borrowed and taken out of the Foundation-Book of New-Colledge in Oxford And by the same reason the Emperour may claim Jurisdiction in Maritime causes within the Dominions of the King of England for that we have now for a long time received and admitted the Imperial Law for the determination of such Causes Vid. Cawdries Case Co. par 5. and Kelw. Rep. 184. a. Now when the Bishop of Rome perceived that many of his Canons were received and used by divers Nations of Christendom he under colour thereof claimed to have Ecclesiastical Jurisdiction in every Realm and State where these Canons were received and sent his Legates with several Commissions into divers Kingdoms to hear and determine Causes according to these Canons which Canons although neither the Pope nor his Ministers at the first venting and uttering thereof dared to call Laws Ne committerent crimen Laesae Majestatis in Principes as Marâ—il Pat. lib. Defensor pacis par 2. cap. 23. observes who also says That these Canons being made by the Pope Neque sunt humanae Leges neque divinae sed documenta quaedam Narrationes yet when he perceived that these Canons were received allowed
and used in part by several Nations he compiled them into Volumes and called them Jus Canonicum and Ordained that they should be read and expounded in publick Schools and Universities as the Imperial Law was read and expounded and commanded that they should be observed and obeyed by all Christians on pain of Excommunication and often endeavoured to put them in execution by Coercive power and assumed to himself the power of interpreting abrogating and dispensing with those Laws in all the Realms of Christendom at his pleasure so that the Canonists ascribe to him this prerogative Papa in omnibus jure positivis in quibusdam ad jus divinum pertinentibus dispensare potest quia dicitur omnia Jura habere in Scrinio pectoris sui quantum ad interpretationem dispensationem Lib. 6. de Const cap. licet About the time of An. 25. Ed. 1. Simon a Monk of Walden began to read the Canon Law in the University of Cambridge vid. Stow and Walsingham in that year Also the Manusc libr. 6. Decretal in New-Colledge Library at Oxford hath this Inscription in the Front Anno Domini 1298. which was in the year 26 Ed. 1. 19. Novembr in Ecclesia Fratrum Praedicator Oxon. fuit facta publicatio lib. 6. Decretal whereby it appears when it was that the Canon Law was introduced into England But the Jurisdiction which the Pope by colour thereof claimed in England was a meer Usurpation to which the Kings of England from time to time made opposition even to the time of King H. 8. And therefore the Ecclesiastical Law which Ordained That when a man is created a Bishop all his Inferiour Benefices shall be void is often said in the Bishop of St. David's Case in 11 H. 4. to be the Ancient Law of England And 29 Ed. 3. 44. a. in the Case of the Prebend of Oxgate it is said That though the Constitution which ousts Pluralities began in the Court of Rome yet a Church was adjudged void in the Kings Bench for that cause or reason whereby it appears That after the said Constitution was received and allowed in England it became the Law of England Yet all the Ecclesiastical Laws of England were not derived from the Court of Rome for long before the Canon Law was authorized and published in England which was before the Norman Conquest the Ancient Kings of England viz. Edgaâ— Aethelstan Alfred Edward the Confessor and others have with the Advice of their Clergy within the Realm made divers Ordinances for the government of the Church of England and after the Conquest divers Provincial Synods have been held and many Constitutions have been made in both Realms of England and Ireland All which are part of our Ecclesiastical Laws at this day Vid. Le Charter de William le Conqueror Dat. An. Dom. 1066. irrot 2 R. 2. among the Charters in Archiv Turris Lond. pro Decano Capitulo Lincoln Willielmus Dei gratia Rex Anglorum c. Sciatis c. Quod Episcopales Leges quae non bene nec secundum Sanctorum Canonum praecepta usque ad mea tempora in Regno Angliae fuerunt Communi Concilio Episcoporum meorum caeterorum Episcoporum omnium Principum Regni mei emendandas judicavi c. See also Girald Cambrens lib. 2. cap. 34. in the time of King H. 2. a Synod of the Clergy of Ireland was held at the Castle wherein it was Ordained Quod omnia divina juxta quod Anglicana observat Ecclesia in omnibus partibus Hyberniae amodo tractentur Dignum enim justissimum est ut sicut Dominum Regem ex Anglia divinitus sortita est Hybernia sic etiam exinde vivendi formam accipiant meliorem But the distinction of Ecclesiastical or Spiritual Causes from Civil and Temporal Causes in point of Jurisdiction was not known or heard of in the Christian World for the space of 300 years after Christ For the causes of Testaments of Matrimony of Bastardy and Adultery and the rest which are called Ecclesiastical or Spiritual Causes were meerly Civil and determined by the Rules of the Civil Law and subject only to the Jurisdiction of the Civil Magistrate But after the Emperours had received the Christian Faith out of a zeal they had to honour the learned and godly Bishops of that time they singled out certain special Causes wherein they granted Jurisdiction unto the Bishops viz. in Causes of Tithes because they were paid to men of the Church in Causes of Matrimony because Marriages were for the most part solemnized in the Church in Causes Testamentary because Testaments were many times made in extremis when Church-men were present giving Spiritual comfort to the Testator and therefore were thought the fittest persons to take the Probats of such Testaments Howbeit these Bishops did not then proceed in these Causes according to the Canons and Decrees of the Church for the Canon Law was not then known but according to the Rules of the Imperial Law as the Civil Magistrate did proceed in other Causes so that the Primitive Jurisdiction in all these Causes was in the Supream Civil Magistate and though it be now derived from him yet it still remaineth in him as in the Fountain CHAP. XII Of Churches Chappels and Church-yards 1. Ecclesia what that word imports the several kinds thereof 2. Possessions of the Church protected by the Statute-Laws from Alienation the care of the Emperour Justinian in that point 3. To whom the Soyl and Freehold of the Church and Church-yard belong to whom the use of the Body of the Church to whom the disposal of the Pewes or Seats and charges of Repairs 4. The Common Law touching the Reparation of Churches and the disposal of the Seats therein 5. The same Law touching Isles Pictures Coats of Arms and Burials in Churches also of Assaults in Churches and Church-yard 6. The penalty of quarreling chiding brawling striking or drawing a Weapon in the Church or Church-yard 7. Where Prescription to a Seat in a Church is alledged the Common Law claims the cognizance thereof 8. The Immunities anciently of Church-Sanctuary as also of Abjuration now abrogated and taken away by Statute 9. The defacing of Tombs Sepulchres or Monuments in Churches punishable at the Common Law also of Right to Pewes and Seats in the Church 10. The Cognizance of Church-Reparations belongs to the Ecclesiastical Court 11. A Prohibition upon a surmize of a custome or usage for Contribution to repair a Church 12. Church-wardens are a Corporation for the Benefit not for the Prejudice of the Church 13. Inheritance cannot be charged with a Tax for Repairs of the Church nor may a perpetual charge be imposed upon Land for the same 14. When the use of Church-Books for Christnings first began 15. Chappel the several kinds thereof The Canonists Conceits touching the derivation of that word 16. Where two Parochial Churches are united the charge of Reparations shall be several as before 17. The Emperour Justinian's
Otho's Constitutions and whatever other causes of Consolidation are asserted by the DD. may be all referr'd to one or other of the foresaid Reasons Likewise there are certain Solemnities required by the Canon Law to be used and observed in the consolidation and union of Churches and Ecclesiastical Benefices the impracticability whereof in this Realm having otherwise provided in such cases can have no such malign influence in Law as to invalidate the thing for want of some Circumstantials so long as there is a retention of the Essentials according to the Laws and Constitutions of this Kingdom Vnio facta ab Episcopo debet intervenire Consensus Capituli sui Clem. si Vna de reb Eccl. non aliend Item requiritur Consensus Patroni Clem. in agro § ad haec de Stat. Mona Item Nullum habet effectum vivente Beneficiato Card. Zab. in dict Clem. Si una c. Item Verus valor Beneficiorum Exprimi debet c. 4. In all Consolidations regularly there ought to be Causa Necessitatis vel Vtilitatis Also the just and true value of the Benefices ought to be known as well of that which is to be united as of that to which the other is unitable in order whereunto there ought to issue a Commission of Enquiry touching the said cause and value at which all persons pretending Interest are to be or may be present upon Summons or Notice thereof timely given them to that end for no Consolidation or Union of that kind ought to be made non vocatis vocandis Rebuff Resp 195. 5. This Form touching Consolidations and union of Churches and Ecclesiastical Benefices is practiced in France which though there appears nothing therein but what seems consonant to Reason yet the Statute-Laws of this Realm have herein made other provision in this matter And that which we now commonly call Consolidation the Canon Law which is best and most properly acquainted with this matter calls Vnion Touching which there are in use and practice many things in divers Nations and Countries which were Incognita to the Interpreters of that Law and not in all things consonant to each other thereby rendring this Subject the more perplexed by reason of the several modes of practice diversified according to the various Constitutions of several Nations respectively for which reason the Interpreters of the Canon Law are the less positive in reducing the state of this matter to such a point of certainty as may be said Infallible in Law only they all agree in some certain Essentials to an Union as also for the most part in this Definition thereof viz. That Vnio est Beneficiorum seu Ecclesiarum ab Episcopo vel ab alio Superiore facta annexio To which this also may be added by way of description though not by way of definition That quando fit unio Ecclesia in proprietatem concedi solet Cap. in cura de jur Patronat and it must be Vnio Beneficiorum for there cannot be an Union unless there be plura Beneficia in the case L. 1. per totum ff de Optio Legat. Also it is Beneficiorum seu Ecclesiarum because the word Benefice is in it self a general term comprehending all Benefices great and small Regular and Secular Dignities and Offices C. 1. de reg jur in 6. c. extirpandae § qui vero de Praebend So that Bishopricks as well as other Benefices may be united and annexed But a Bishoprick which the Law calls culmen Dignitatis doth not regularly fall under the name or notion of Benefice c. pen. de Praebend and yet two Bishopricks may be united c. Decimas seq 16. q. 1. Rebuff de Vnion Benefic nu 4 5. 6. This Consolidation or Union at the Canon Law is either Perpetual or Temporal if Perpetual then it must be so expressed in the Union that in perpetuum univimus c. exposuisti de Praeb if Temporal then it is only for his life in whose favour the Vnion is made c. 1. ne Sede vacante and at his death it expires c. quoniam Abbas de Offic. Delegat But the Practice with us knows nothing of the Temporal Member of this distinction nor is the practice thereof at this day received in France Rebuff ubi supr nu 9. such Temporal Unions being only in contemplatione personae non Ecclesiae whereas the Law is Ecclesiae magis favendum est quam personae Dic. c. 1. c. requisisti de Testa Oldr. Consil 257. And where two Parochial Churches are consolidated or united that Church to which the other is united shall be the Superiour and principal the other which is united is the Inferiour and Accessory yet shall enjoy the Priviledges of that Church to which she is united c. recolentes in fin de stat Monach. Lastly The more worthy Benefice is never united to the minus digno and therefore a Parochial Church may not be united to a Chappel sed è contra Sic c. exposuisti de Praebend CHAP. XV. Of Dilapidations 1. What Dilapidation signifies how many waies it may happen the Remedies in Law in case thereof and to what Court the cognizance thereof properly belongs 2. Provision made by the Canon for prevention of Dilapidations 3. Dilapidation twofold in construction of Law An Exposition of the said Canon the Bishops power of Sequestration in case of Dilapidation 4. By whom the Body of the Church and by whom the Chancel shall be kept in repair How the charge of Repair in the case of Dilapidations shall be apportioned and what the Law in such cases where one Parish is divided into Two 5. Dilapidation of Ecclesiastical Edifices a good cause in Law of Deprivation 6. The Injunction of King Ed. 6. for prevention of Dilapidations 7. Leases made by a Parson void by Statute for Non-residence to prevent Dilapidations 8. The wasting the Woods of a Bishoprick a Dilapidation in Law such Woods being the Dower of the Church 9. A Vicar felling down Timber Trees and Wood in the Church-yard is a Dilapidation and good cause of Deprivation 1. DIlapidation is the Incumbents suffering the Chancel or other the Edifices of his Ecclesiastical Living to go to ruine or decay neglecting to repair the same It extends also to his committing or suffering to be committed any wilful Waste in or upon the Glebe-woods or other Inheritance of his Church Against which provision is made by the Provincial Constitutions whereof Sir Simon Degge takes notice in his Parsons Counsellor though in truth the Canon there provides rather as to satisfaction for than prevention of such Dilapidations Lindw c. si Rector alicujus Ecclesiae Gloss ibid. But the Canon Law is express and full in all respects relating to this implicit Sacriledge nor doth the Custome of England or the Common Law leave the Church without sufficient Remedy in this case albeit it postpones the satisfaction of dammages for Dilapidations to the payment of Debts as the Canon Law prefers it before the payment of Legacies
it to his proper use and there was not any Endowment of the Vicarage The Jury found the Statute of 4 H. 4. of Appropriations and of 27 H. 8. which gives Priories c. to the King Whether the Appropriation were good there being no Endowment of the Vicarage And whether the Appropriation without the King's License was good was the Question Resolved That whether the Appropriation be good or not cannot now be called in question but it shall be intended to be good and have all requisite Circumstances But in this Case because the Defendant claimeth per Praesentationem Regis ratione Lapsus Whereas the King if he had any Title to Present it was Jure Coronae the Presentment of the Plaintiff was utterly void and the Plaintiff had no Title who brought an Action upon the Statute of 2 Ed. 6. for not setting forth of Tithes CHAP. XXI Of Commendams 1. What a Commendam is or the Legal description thereof 2. The King may dispence with the holding of divers Benefices in Commendam notwithstanding the Canon of the Lateran Council against Pluralities 3. Three Degrees of Commendams by the Canon Law 4. A description of a Semestral and Temporary Commendatory 5. The provision the Pope made in granting Commendams certain Benefices in the Church of Rome never given in Commendams 6. What the Canon Law in Commendams ad Tempus or Perpetuo 7. The grand Case of a Commendam at the Common Law between Kiffin and Ascough and therein great variety of Learning touching that Subject 8. Several Considerations in Law touching Commendams 9. An Irish Case with great variety of Learning in reference to this Subject 1. COmmendam Ecclesia Commendata is a Benefice or Ecclesiastical Living which being void is commended to the charge and care of some sufficient Clerk to be supplied until it may be conveniently provided of a Pastor And this was the Original of what we now commonly call Commendams Durand de Benefic lib. 5. cap. 7. That person to whom the Church is thus Commended hath the Fruits and Profits thereof only for a certain time whereby the nature of the Church is not changed but is as a thing deposited in his hands as it were in Trust being concredited only with the care and custody thereof which may be revoked Thus when a Parson of a Parish is made the Bishop of a Diocess there is a Cession of his Benefice by the Promotion but if the King gives him power to retain his Benefice he shall continue Parson thereof and shall be said to hold it in Commendam So that it may properly be thus defined Commenda est Ecclesiae Custodia alicui Commissa in tempus gratia evidentis necessitatis utilitatis Gloss in verb. Commendare c. Nemo deinceps de Elect. in lib. 6. Andr. in dict Gloss For hereby the Bishop commits the care and custody of a Vacant Church to some one whom he Constitutes as a general Administrator thereof Corras de Sacerd. mater p. 1. c. 6. nu 3. dict c. Nemo for Commendare in this sense is no other than Deponere l. Publius ff Depositi l. Commendare ff de verb. Sign And he to whom the same is so committed is in the Law termed Commendatarius having the custody of a Vacant Church and the Fruits thereof only for a time and the Beneficium Commendatum we call Commendam Petrus Gregorius makes this Commendam of a Church to be on a double account viz. either in utilitatem Ecclesiae or Commendatarii In the former case he says the Commenda gives no Title to the Commendatary of the Benefice but is only a Custody or Trust which may be revoked and consequently repugnant to the nature of a Benefice which is Perpetual In the other Case the Benefice is held to be a Commenda made in utilitatem Commendatarii which he may hold and possess as long as he lives Petr. Greg. de Benef. cap. 10. nu 13. 2. By a Canon of the Lateran Council no person Ecclesiastical could hold Two Benefices with Cure of Souls simul semel but by the taking of a Second the former would be void Cons Later F. N. B. 34. L. Co. par 4. 75. Lindw Consil Provin de Praebend cap. Audistis yet might the King it seems by the Common Law notwithstanding that Canon grant Dispensations to hold divers Benefices in Commendam as at this day he may notwithstanding the Stat. of 21 H. 8. For the Statute of 25 H. 8. that takes away the Popes usurped power of granting Commendams c. in this Realm doth vest it in the Crown de jure as also doth the Statute of 1 Eliz. and from and under the Crown in the Archbishop of Canterbury his Commissaries c. And as heretofore the Pope did by Usurpation in this Realm so now de jure ex Regali Authoritate may the King grant unto a Consecrated Bishop a Dispensation Recipere obtinere Beneficium cum Cura animarum and to hold the same in Commendam 3. In the Case of Colt and Glover against the Bishop of Coventry and Lichfield according to Sir Hen. Hobart Lord Chief Justice out of the Canons Commendams are said to be of Three Degrees one Semestris another Perpetua vel ad vitam a third Intermedia or Diuturna sed Limitata and sometimes called Temporaria or Temporalis vel ad certum Temporis spatium Limitata Clem. v. Extra l. 3. de Praebendis c. 2. The Commenda Semestris did arise out of natural equity that in the time of the Patrons respite given him to Present the Church should not be without a Provisional Pastor which was a Law of Necessity agreeable to the Law of Nature But after the Lapse justly incurred the Commendam is to cease or then the Ordinary may Collate The Commenda Perpetua vel ad vitam is that which cannot be for a less time than for the life of the Commendatary absolute And the Commenda Intermedia diuturna or Temporalis vel ad certum temporis spatium Limitata is when a Commenda is to a person not for his life absolutely but so long as he shall be Bishop of such a place or the like Each of which Degrees of Commendams doth refer to the Commendam obtinere capere apprehendere A Dispensation Commendam recipere which shall make a Title ought to have three Incidents 1 It ought to be Recipere convertere in usus proprios 2 It ought to be ad utilitatem Ecclesiae vel Parsonae 3 It ought to have the Assent of the Patron And he that is but mere Commendatarius is Accountable to the Ordinary Vid. Case Evans and Ascough in Latch Rep. And not to the Commendam retinere which in truth is no Commendam though commonly so called but is only a Faculty of Retention and Continuation of the Benefice in the same person and state wherein it was notwithstanding something intervening as a Bishoprick or the
3 ly if he Present not within the time by Law limited then the King shall Present for that he is Patron paramount of all the Benefices within his Realms as also because the King and his Progenitors Kings of England have had Authority time out of mind to determine the Right of Patronages in this Realm in their own Courts whence lies no Appeal to any Foreign pretended Power The Rosell Summist indeed makes more Gradations in this matter as from the Patron to the Chapter from the Chapter to the Bishop from the Bishop to the Metropolitan from the Metropolitan to the Patriarch and if none such then to the Pope Sed hoc nihil ad nos part of whose happiness is an Index Expurgatorius of the last recited Premisses And although the Law is That the Ordinary shall Present in case the Patron doth not within Six months yet the Law withal is That if the Patron Present before the Ordinary put in his Clerk the Patron of right shall enjoy his Presentation And if the Ordinary surcess his time limited he loses his power as to that Presentation specially if it be devolv'd to the King And when the Presentation is in the Metropolitan he shall put in the Clerk himself and not the Ordinary and so there is no default in the Ordinary though he Present not the Clerk of the Patron if his time be past in which case there is no remedy for the Patron against the Ordinary This matter of Lapse is of very ancient practice for Mich. 3. E. 1. B. Rot. 105. Staff the Bishop of Coventry and Lichfield pleaded a Collation by Lapse Authoritate Concilii against the Prior of Landa to the Church of Patingham And 6 E. 1. Rot. Paten membra 25. in a Quare non admisit by the Abbot of St. Mary Eborum against the Bishop of Norwich the Bishop made a Title by Lapse viz. That he Collated Authoritate Concilii post Lapsum semestre c. And there afterwards in the Judgment it is said Quia tempus semestre Authoritate Concilii non incipit versus Patronum nisi à tempore scientiae mortis c. Q. what Council is here meant or intended For P. 9 E. 1. B. Rot. 51. it appears that Lapse was given per Concilium Lugdunense post tempus semestre The like also in a Writ in the time of E. 2. cited by Sir Ed. Co. 6. in Catesby's Case 62 yet in Bracton the Lapsus temporis is de Constitutione Lateranensi And yet Britton fo 225. speaks of the Tempus Semestre or the Six months according to the Council of Lions But Mr. Selden in his Book of Tithes 390. says That the Manuscripts of Breton have Lateran for Lions and in fol. 388. holds That this Lapse was received in the Laws of this Realm out of the General Council of Lateran held in the year 25 H. 2. as the Learned Serjeant Roll observes in his Abridgment on this word of Lapse where he also cites Hovenden fo 326. asserting That among the Canons of the Council of Lateran under Alex. 3. held under Alex. 3. An. 1118. in the time of King Hen. 2. there is a Canon in these words or to this effect viz Cum vero Praebendas Ecclesias seu quaelibet Officia in aliqua Ecclesia vacare contigerit vel si etiam mod◠vacant non diu maneant in suspenso sed infra Sex menses personis quae digne administrare valeant conferantur si autem Episcopus ubi ad eum spectaverit conferre distulit per Capitulum Ordinetur And before the said Council the Patron was not limited to any time but might Present at his pleasure without any Lapse Touching other Presidents of great Antiquity relating to this Subject of Lapse the Reader is here referred to that Learned Serjeant Rolle in the forecited place of his Abridgment And although according to the Gradations aforesaid the Lapse devolves from the Patron to the Bishop from the Bishop to the Archbishop from the Archbishop to the King yet if after Lapse incurr to the Metropolitan and before Collation by him made the Patron Present he may Present to the Ordinary of the Diocess without Presenting to the Metropolitan Contra H. 41 El. B. R. per Popbam for thereby he seems to redeem his neglect But yet if Lapse devolve to the King and then the Inferiour Ordinary Collate by the Lapse and his Clerk be Instituted and Inducted it seems this doth not make a Plenarty against the King to put him to his Quare Impedit but he may notwithstanding Present and oust the Clerk of the Ordinary for when Lapse incurrs to the King it cannot be taken away by the Ordinary And then when the Ordinary Collates without good Title it makes not any Plenarty against him who hath the right as the King hath to Present for a Lapse incurring to the King is not like that which incurrs to the Metropolitan But if a Patron Present and his Clerk be Instituted and remain Eighteen months without Induction in that case there doth not any Lapse incurr to the King for the King hath not any Lapse but where the Ordinary might have had it before But if a Bishop dies whereby the Temporalties are in the Kings hands if during that time the Six months pass whereby a Lapse happens the King shall have it and not the Guardian of the Spiritualties Nor doth an Admittance of a Resignation by Fraud take away the Kings Title for in Comber's Case against the Bishop of Cicester where the Issue in a Quare Impedit was If S. R. by covin between him and C and R. did Resign into the hands of the said Bishop if the King hath Title of Lapse and a Resignation be made by fraud and one Admitted this shall not take away the Kings Title for if the Kings Title appear upon Record then shall go out a Writ for the King but otherwise it is upon matter of Evidence the King doth lose his Presentation as well by resignation as by death where he hath Title to Present by Lapse and doth not except the Resignation be by Fraud And in the Case of the Queen and the Archbishop of York and Bucks it was Resolved by the Justices That a Collation although double or treble cannot be an Usurpation against the King to put him out of an Advowson 2. The Canon Law allows Two months more to an Ecclesiastical than to a Lay-Patron ere the Lapse shall be incurr'd the former having by that Law Six months to Present the latter but Four Summ. Angel tit Jus Patronat § 16. So the Law of Scotland Pars Couns par 1. c. 2. We need not enquire into the Reason of that difference or disproportion let it suffice the Laity That it was the Canonists pleasure to have it so for reasons best known to their own interest the Common Law impartially levels them both to one and the same equal standard
gains not the Patronage from the Crown 3. The Ordinary's Collation by Lapse is only in the Patron 's right 4. What Presentation is and how in ease of Co-heirs or Joynt-tenants or Tenants in Common 5. Whether the Grantee of the next Presentation not Presenting at the First Avoidance shall lose the benefit of his Grant 6. The Right of Presentation is not an Ecclesiastical but Temporal Inheritance and cognizable at the Common Law 7. The power of the Ordinary in case of Coparconers Joyntenants or Tenants in Common as to Presentation 8. In what Case the Bishop hath Election whose Clerk he will Admit 9. Whether a Presentation is revokable before Institution 10. Whether the Son may succeed his Father in the Church and who may vary from or repeal his Presentation 11. What Nomination is and the Qualifications thereof 12. In what Case the Presentation is the Nomination or both as one in Law 13. In what case the Nominator shall have a Quare Impedit as well as he that hath Right of Presentation And there may be a Corrupt Nomination as well as a Corrupt Presentation 14. Whether the Collatee be Incumbent if the Bishop Collate him within the Six months And in what Case the Kings Presentation within the Six months may be an Vsurpation or not 15. Where the Ordinary Collates the Patron is to take notice of it at his peril 16. Who shall Present in case the Ordinary to whom a Lapse is devolved be within the Six months translated to another Bishoprick 17. A Resignation to a Proctor without the Bishops Acceptance makes not the Church void 18. A Parochial Church may be Donative exempt from the Ordinary's Jurisdiction and is Resignable to and Visitable by the Patron not the Ordinary 19. Where Two are to Present by Turns what Presentation shall serve for a Turn or not 20. By the Canons the Son may not succeed the Father in the same Church 21. To what a Presentation may be made 22. The Kings right of Presentation as Supream Patron 23. In what case the Kings Prerogative to Present doth not take place 24. In what Cases it doth 25. To whom the Patronage of an Archbishoprick belongs 26. Whether Alien Ministers are Presentable to a Church in England 27. In what Cases the Patron may Present de novo 28. Difference between the King and a Common person in point of Presentation 29. A Collation makes no Plenarty where it is tortious 30. Presentation may be per parol as well as by Writing 31. What amounts to a Revocation of the King's Presentation 32. Causes of Refusal of the Clerk Presented 33. Certain Law Cases pertinent to this Subject 34. Whether Institution granted after a Caveat entered be void 35. What shall be held a Serving of a Turn and good Plenarty and Incumbency against a Patron in Severalty 36. A Clerk refused by reason of his not being able to speak the Welsh Language 37. What is the best Legal Policy upon every Presentation by Vsurpation 38. One of Two Grantees of an Advowson to whom the other hath released may Present alone and have a Qua. Imp. in his own Name 39. A Clerk refused for Insufficiency by the Bishop may not afterwards be Accepted 1. COllation in its proper signification is the bestowing of a Benefice by a Bishop that hath it in his own proper right gift or patronage distinguish'd from Institution only in this That Institution into a Benefice is at the instance motion or Presentation of the Patron or some other having pro tempore the Patrons Right performed by the Bishop Extra de Instit de Concess Praeben c. But Collation is not only when the person is Admitted to the Church or Benefice by the Bishop or other person Ecclesiastical but also when the Bishop or that other Ecclesiastical person is the rightful Patron thereof or when the Bishop or Ordinary hath right to Present for Lapse of the Patron and yet sometimes Collation is and hath been used for Presentation And so Presentation Nomination and Collation are commonly taken for one and the same thing in substance though at times distinguished And whereas it hath been a Question If one hath the Nomination and another the Presentation which of them shall be said to be the very Patron it hath alwaies been taken to be the better opinion that he who hath the Nomination is Patron of the Church And where an Abbot had the Presentation and another the Nomination and the Abbey surrendred to the King he that hath the Nomination shall now have all for the King shall not Present for him that being a thing undecent for the King But as to Collation and Presentation they were in substance one and the same thing as aforesaid But to speak properly Collation is where the Bishop himself doth freely give a Benefice which is of his own Gift by right of Patronage or Lapse This word Collation seems also to be frequently used when the King Presents and hence it is that there is a Writ called Collatione facta uni post mortem alterius c. directed to the Justices of the Common Pleas Commanding them to direct their Writ to a Bishop for the Admitting one Clerk in the place of another Presented by the King which Clerk during the Suit between the King and the Bishops Clerk is departed this life For Judgment once given for the Kings Clerk and he dying before his Admission the King may bestow his Presentation on another This Collation Presentation and Nomination are in effect Synonima being distinguished only in respect rather of Persons than of Things 2. Yet there may be a great difference betwixt Presentation and Collation which gains not the Patronage from the King as appears in the Case of the Queen against the Bishop of York where the Queen brought a Quare Impedit against the said Bishop and one Monk and counted upon a Presentment made by King Hen. 8. in the right of his Dutchy of Lancaster and so conveyed the same to the Queen by Descent The Bishop pleaded That he and his Predecessors have Collated to the said Church c. and Monk pleaded the same Plea upon which there was a Demurrer And it was moved by Beaumont Serjeant That the Plea is not good for a Collation cannot gain any Patronage and cannot be an Usurpation against a Common person much less against the Queen to whom no Lapses shall be ascribâ—d and although the Queen is seized of this Advowson in the right of her Dutchy yet when the Church becomes void the right to Present vests in the Royal person of the Qu. and yet vid. the Old Regist 31. Quando Rex praesentat non in jure Coronae tunc incurrit ei Tempus Hamm. Serj. By these Collations the Queen shall be put out of possession and put to her Writ of Right of Advowson but the same ought to be intended not where the Bishop Collates as Ordinary but where he Collates
notwithstanding they were several Advowsons and several Quare Impedits might be brought of them and several Actions maintain'd for their several Possessions yet the Presentment of one man to the Parsonage and Vicarage was no Plurality because the Parsonage and Vicarage are but one Cure And there is a Proviso in the Statute That no Parsonage that hath a Vicar endowed shall be taken by the Name of a Benefice with Cure within the Statute as to make it a Plurality 6. The Lord Hobart in Colt and Glover's Case against the Bishop of Coventry and Lichfield is clear of Opinion That Bishopricks are not within the Law under the word Benefices in the Statute of 21 H. 8. cap. 13. So that if a Parson take a Bishoprick it avoids not the Benefice by force of this Law but by the ancient Common Law as it is holden 11 H. 4 60. But withal he holds it as clear That if a Bishop have or take two Benefices Parsonages or Vicarages with Cure either by Retainer or otherwise de novo he is directly as to these Benefices within the Law for he is to all purposes for those not a Bishop whether it be in his own Diocess or not but a Parson or Vicar and by that Name must sue and be sued and Prescribe and Claim For if any person having one Benefice with Cure c. take another c. whosoever will hold two Benefices must have such a Qualification and such a Dispensation as the Law 21 H. 8. requires Whereupon the Lord Hobart in the foresaid Case is clear of Opinion That if a man be qualified Chaplain to any Subject and then be made a Bishop his Qualification is void so as he cannot take two Benefices de novo after by force of that Qualification But if he had lawfully two Benefices before his Bishoprick he may by Dispensation of Retainer besides his former Dispensation to take two Benefices hold them with his Bishoprick And if a man being the King's Chaplain take a Bishoprick he holds that he ceaseth to be the King's Chaplain and Bishops are not in that respect Chaplains to the King within the meaning of the Statute So that the Clause of the Statute that gives the King power to give as many Benefices as he will of his own gift to his Chaplain will not serve them In this Case of Colt c. against the Bishop of c. he is of Opinion That if a man have a Benefice with Cure worth above 8 l. he cannot without Qualification and Dispensation procure another with Cure to be united to it after though they make but one Benefice for this Cautel of Union is provided for by Name But of Unions before he is of another Opinion Case Colt Hob. Rep. 7. In ancient times the Pope used to grant Dispensations of the Canons in this Realm and so might the King have done The first Statute that restrain'd the power of the Pope was that of 21 H. 8. of Pluralities That the Church shall be void notwithstanding any Grant of the Pope Also the power of the Pope was taken away by the Statute of 25 H. 8. Before that of the 21 H. 8. the Pope might have dispensed with a man to have twenty Benefices and so might the King The 21 H. 8. was the first Statute or Law which gave allowance for Pluralities afterwards by the 28 H. 8. the power of the Pope was given to the King But as it was said and agreed in the Case of Evans and Ascough that was not by way of Introduction but Cumulutive and by way of Exposition And by that Statute the Archbishop of Canterbury had in this matter a concurrent power with the King and Dispensation granted by the King or by the Archbishop is good Also in the said Case it was agreed by all the Justices That if a Parson or Dean in England doth take a Bishoprick in Ireland it makes the first Church void by Cession because Ireland is a Subordinate Realm to England and governed by the same Law For it was there agreed by all as well by the Justices as those of the Barr That if a Parson or Dean in England take a Bishoprick in Ireland the first Church is void by Cession Justice Whitlock gave this Reason for it Because there is but one Canon Law per totam Ecclesiam and therefore wherever the Authority of the Pope extended it self be it in one or divers Realms the taking of a Bishoprick made the Deanary or Parsonage void Nemo potest habere duas Militias nec duas Dignitates est impossibile quod unus homo potest esse in duobus locis uno tempore And 5 R. 2. F. Tryal 54. the whole Spiritual Court is but one Court which Book is very remarkable to that purpose That the Canon Law is but one Law Which Reason was also given by Justice Doderidge in the same Case and upon the same point who said That the Law of the Church of England is not the Pope's Law but that all of it is extracted out of Ancient Canons as well General as National Another Reason which he then gave was Because Ireland is a Subordinate Realm and governed by the same Law Because although before the time of H. 2. they were several Kingdoms or Realms yet the Laws of England were there Proclaimed by King John and is subject to the Laws of England And if the King having a Title to Present to a Church in Ireland confirm it to the Incumbent under the Great Seal of England it is good 45 Ed. 3. 70. 8. In Savacre's Case it was adjudged in the Common Pleas That if a Baron or others mentioned in the Statute of 21 H. 8. take divers Chaplains which have many Benefices and after they discharge their Chaplains from their Service they shall retain their Benefices during their Lives and if the Baron takes others to be his Chaplains they cannot take many Benefices during the Lives of the others which are Beneficed and Discharged of their Services for if the Law were otherwise the Lords might make any capable of holding Benefices by admitting them to be their Chaplains 9. T. prayed a Prohibition to the Arches the Case was this One had a Recovery in a Quare Impedit and he had a Writ to the Bishop against T. upon which A. his Clerk was admitted c. and after the Recovery died and T. supposing his heir to be in the Ward of the King and that the said A. took another Benefice without sufficient Qualification by which the Church was void by Cession and he attained a Presentation of the King and he was Admitted c. by the Lord-keeper being within the Diocess of Lincoln and A. sued him in the Ecclesiastical Court and T. prayed a Prohibition and it was granted per totam Curiam for without question there ought nothing to be questioned in the Ecclesiastical Court after the Induction of the party And whether it is a Cession
sole Prince conferred the Tithes of all the Kingdom upon the Church by his Royal Charter Of which Ingulph Abbot of Crowland An. 855. saith That King Ethelwolph with the consent gratuito consensu of his Prelates and Princes did first enrich the Church of England with the Tithes of all his Lands and Goods Many other Laws of the Saxon Kings for the payment of Tithes are recited by Mr. Selden as entirely the Gift of Kings And so saith King Elred Nemo auferat à Deo quod ad Deum pertinet Praecessores nostri concesserunt The whole Bishoprick Anciently was in a large sense a Paroecia and the income of it by Contributions first and by Tithes also afterwards was the Common stock of all the Clergy of the Diocess and Mr. Selden asserts it to be the general Opinion of all the Common Lawyers That before the Lateran Council under Innocent 3. every man might have given his Tithes to what Church he would probably within the Diocess because they were not the Propriety as yet of any one Presbyter but the Common Patrimony of all the Diocesan Clergy So that Tithes are a Tenth part of all increase Tithable due to God and consequently to his Ministers that wait on the Altar These are divided into Three sorts 1. Praedial Tithes arising only either of the Fruits of the Ground as Corn Hay Hemp and the like or of the Fruits of Trees and Orchards as Apples Pears and the like 2. Personal Tithes arising of the profits that come by the labour and industry of Man either by Handicrafts as Carpenters Masons and the like or by Buying Selling or Merchandizing 3. Mixt Tithes arising partly of the Ground and partly of the Industry of Man as of Calves Lambs Piggs Milk Cheese and the like No Tithes shall be paid for such things as do not increase and renew year by year by the Act of God Of Praedial Tithes some are called Majores vulgarly termed the Great Tithes others Minores vel Minutae vulgarly the Small Tithes The Great such as Wheat Rye Hay c. The Small such as Min◠Annis Cumin c. And commonly with us here in England we compute Flax in the number of Small Tithes which is a Praedial Tithe as also Wool Milk Cheese Eggs Chicken of all kinds Lambs Honey Bees-wax and the like Vid. Lindw cap. de Decimis In Ancient times the Laity were so far from subtracting their Tithes as is the common practice of these daies that oft-times they would give more than was due or demanded and were so Conscientious in the payment thereof as at their death they usually bequeathed a Soule-Sceat to their Parochial Priest in lieu of any Tithes forgotten and at their Funerals caused their best Ox or Horse to be led with the Corps and as a Mortuary or Oblation given to the Priest in recompence of any Tithes which possibly in their life-time might have been omitted to be paid But in these latter Ages not regarding what S. Hierom says That Fraudare Eccelsiam est Sacrilegium all Artifices imaginable are put in practice to subduct the Tithes and therefore to enforce the due payment thereof were the Statutes of H. 8. and Ed. 6. made and enacted 2. Covarruvias with other Canonists and Schoolmen holds That by the Moral Law the rate or proportion of Tithes is not necessarily to be the Tenth part of the Fruits which the more received Opinion holds to be both Erroneous and Mischievous and that by the Law of God and Nature no Custome deviating from the exact rate and proportion of the Tenth of the Fruits ought to prevail any longer than by the free and mutual consent of Parson and Parishioner For which reason it is supposed That the paying of a Halfpeny for a Lamb or a Peny for a Calf by such as have under Seven in one year is now become an unreasonable Custome in regard the value of such Lambs and Calves is now raised four times higher than in Ancient times This seems far remote from Tithes the very Quotity whereof seems to be Moral rather than Ceremonial or Judicial and not only allowed or approved but even commanded by our Saviour himself Yea by the very Law of Nature which is the ground of the Moral Law and long before the Levitical Tithes appear to be due in that Abraham paid it to Melchisedec And God himself who is the best Interpreter of his own Law calls the detention of Tithes Sacriledge And that Command of Christ affirming that Tithes ought to be paid of all even to the very Herbs spoken by him at the period of the Levitical Law ought not to be restrained only to the Priesthood of Aaron for it doth now remain in force as to Priests under the Gospel as that other part of the Moral Law Thou shalt not steal the withholding of Tithes being expresly interpreted Theft and Robbery by the Prophet And lest it should be thought a meer Human Interest or in the power of Man to alienate God himself hath vouchsafed to take Tithes upon his own account in his Ministers behalf These Tithes could not be meerly Ceremonial as some would have it for they prefigure nothing nor are they repealed by any one Text in the Gospel but reinforced as aforesaid so that whatever was commanded in the Old Testament and grounded on the Law of Nature and being not Repealed in the New must yet stand in force as a Duty of the Moral Law And if it be Objected That Tithes were not paid in the Primitive times of the Christian Church the Reason is not because they were not then due but because there was not then any such settled Order for things of this or the like nature in the Church 3. Wherefore all the Common Objections made against the payment of Tithes in the Christian Church may be reduced to one of these Four 1. That our Saviour gave no Command to his Apostles to take Tithes but rather on the contrary said Freely ye have received freely give Answ Yet our Saviour says These things speaking of Tithes ought you to have done And says The workman is worthy of his meat And St. Paul says The Labourer is worthy of his Reward Where hath Christ in totidem verbis forbidden Sacriledge wilt thou therefore commit it because he hath not in terminis terminantibus forbidden it Thou that abhorrest Idols dost thou commit Sacriledge 2 Tithes were not paid till about three hundred years after Christ as Tertullian Origen and S. Cyprian do testifie Answ These Fathers do withal acknowledge that during that time the Churches Maintenance was the Peoples free Contribution which probably might have continued to this day had not that Contribution in process of time turned into a Sacrilegious Century by Covetousness instead of a Commanded Decuma as a Duty Morally enjoyn'd 3. That Tithes came first into this Kingdom by the power of the Pope as by Pope
qualities of the Persons of whom they were begotten 6. The different modes of prosecution of Bastardy in the Temporal and Ecclesiastical Courts 7. Limitation of Time in reference to Birth and Bastardy by the Civil Law The chast Widow of Paris whose Child born the 14 th Month after her Husbands death was adjudged Legitimate 8. Of a Child born before Marriage or immediately after Marriage or long after Marriage of a Woman whose Husband dyed without Bedding her whether Bastard or not 9. The legal computations of Time touching the Birth of a Child whether Legitimate or not And of such as are begotten after a Divorce 10. The punishment of a Woman having a Bastard that may be chargeable to the Parish 11. How the same Person may in divers respects be both a Bastard or Nullius Filius and yet a Son 12. The Physicians report in Court in a Case at Common Law how long a Woman may go with Child 13. The Bishops Certificate requisite in a Plea of Bastardy indisability of a Plaintiff 14. The power of the Justices of the Peace and of the Sessions in reference to the reputed Fathers of Bastards 15. In an Action for saying such an one had a Bastard a Prohibition to the Ecclesiastical Court because they admitted the Defendants Confession but would not allow of his Justification 16. Who are held as Bastardiz'd at the Common Law 17. What a Mulier is at Common Law 18. Other Descriptions of Muliers and Bastards 19. The difference between the Civil and Common Law in point of Muliers and Bastards 20. What kind of Divorce shall Bastardize the Issue 21. Different Resolutions touching Bastardy 22. A Man is Divorc'd Causa Frigiditatis Marries again hath Issue by the second Wife the first Living Q. Whether that Issue be a Bastard 23. A Case of Remark touching this Subject adjudg'd in Ireland 1. BASTARD Bastardus Nothus Spurius Filius Naturalis Filius Populi Filius nullius Incestuosus Adulterinus illegitimo coitu Progenitus Bastard is a French word Bastardd Brittish yet some are of opinion that the word Bastard hath its derivation from two German words Boes art that is Degeneris ingenii Q. an non è Graec. Bassaris i. e. Meretrix vel Concubina Bastard and Filius Naturalis are both one Bastard is that Male or Female that is begotten and born of any Woman not Married so that the Childs Father is not known by order and judgment of Law for which reason he is called Filius Populi 2. Bastard and Mulier are opposed each to other at the Common Law Otherwise at the Canon Law For at the Common Law by Mulier is meant and understood one that is lawfully begotten and born and therefore where they are compared together we shall find at that Law this addition to them Bastard eigne or Elder and Mulier puisne or Younger and by the Common Law he or she that is born before Marriage celebrated between the Father and Mother is called a Bastard and by that Law a Child begotten and born of a Woman out of Marriage by one who after Marrieth her is said to be not a Mulier but a Bastard This word Mulier seems to be a word corrupt from Melior or the French Melieur signifying at Common Law the lawful issue preferr'd before an Elder Brother born out of Marriage But by Glanvile such Lawful Issue seems rather Mulier than Melior because begotten à Muliere and not ex Concubina for he calls such issue Filios Mulieratos opposing them to Bastards Quia Mulieris appellatione uxor continetur l. Mulieris 13. ibid. gloss De verb. sign 3. Bastardy Bastardia at the Common Law signifieth a defect of Lawful Birth objected to one begotten out of Marriage which Law doth distinguish Bastardy into Special and General The later whereof being only a Certificate from the Bishop of the Diocess to the Kings Justices after just enquiry made whether the Party enquir'd of be Bastard or not upon some question of Inheritance and the former being only a Suit commenced at Common Law against him that calls another Bastard This being called Bastardy special because Bastardy is the principal and special matter in Tryal As the other is called Bastardy General because Inheritance is there the chief thing under debate and in contest By both these significations Bastardy at the Common Law seems to be taken only for an Examination or Tryal whether a Mans Birth be illegitimate and so does but rather imply what it is not than express what it is Which according to a better Definition is an unlawful state of Birth disabling the Partie to succeed in Inheritance 4. It appears by what hath been said that a Bastard is one that is born of any Woman so as the Father be not known according to the order of Law So that if any Woman hath a Child before her Marriage it is a Bastard And though the Father thereof after Marry the Mother yet in the judgment of the Common Law it is still a Bastard but at the Canon Law it is otherwise as aforesaid If one Marry infra gradui Maritagii and hath thereby Issue Q. whether it he a Bastard or Mulier in case Divorce doth after thereupon ensue If there be Issue by a second Husband or Wife the former then living such Issue is a Bastard A Woman Eloping from her Husband and Living in Avoutry her Husband being beyond Sea that he cannot come at her having Issue in this time this Issue seems to be a Bastard But by the Common Law if the Husband be infra quatuor maria he within the Jurisdiction of the King of England and his Wife have Issue in his absence No proof is Admissable to prove the Child a Bastard unless there be an apparent impossibility of Procriation in the Husband in which case such Issue albeit born within Marriage is a Bastard And by the Civil Law if the Husband be so long absent from his Wife or by no possibility of Nature the Child can be his or the Adulterer and Adulteress be so known to keep company together as that by just account of time it cannot fall out to be any other Mans Child but the Adulterers himself it is accounted to be a Bastard And yet in these very cases within this Realm unless the Husband be all the time of the impossibility of Procreation as aforesaid beyond the Seas the Rule of Law will hold true Pater is est quem Nuptiae demonstrant Note in debt upon an obligation by Cook Chief Justice And so was the Opinion of the Civilians That a Disagreement to the Marriage had under the Age of of Consent at the Age it ought to be published in Court otherwise the Issue may be Bastarded For a Disagreement in Writing is not a sufficient Disagreement nor a good Proof 5. The Law hath given several Appellations for the distinction of Bastards according to
the question of Bastardy or Legitimacy ought to be first moved in the Kings Temporal Court and thereon Issue ought to be joyned there and then it ought to be transmitted by the Kings Writ to the Ecclesiastical Court to be examined and tried there and thereupon the Bishop shall make his Certificate to the King's Court to which Certificate being made in due form of Law such credit is given that the whole World shall be bound and stopt thereby But on the other side if any Suit to prove Bastardy or Legitimacy be first commenced in the Ecclesiastical Court before any Question of that matter hath been moved in he Kings Temporal Court in that Case Prohibition lies to restrain such Suit To this purpose was Corbet's Case cited 22 Ed. 4. Fitz. Consultation 6. Sir Robert Corbet had Issue two Sons Robert and Roger Robert the eldest Son being within the age of fourteen years took to Wife Matild with whom he cohabited till he came of full Age and they publickly known and reputed for Husband and Wife yet afterwards Robert the eldest Son doth dismiss the said Matild and she living doth Marry one Lettice and having Issue a Son by the said Lettice dies after his death Lettice doth publish and declare openly that she is the lawful Wife of Robert and that his Son was a Mulier and legitimate Whereupon Roger the younger Son of Sir Robert Corbet doth commence a Suit in the Ecclesiastical Court to reverse the Marriage between Lettice and Robert and to put Lettice to silence c. wherefore Lettice doth purchase a prohibition Whereupon Roger sets forth the whole matter and prays a consultation which was denied him and for this reason chiefly viz. for that the Suit in the Ecclesiastical Court was to Bastardize the Issue between Lettice and Robert and to prove Roger to be Heir to Robert and the Original Action of Bastardy shall not be first moved in the Ecclesiastical Court but in the Temporal Court c. And to make this point yet the more clear two Cases put by Bracton lib. 5. tit de exceptionib c. 6. were remembred 1 B. having Issue of the Body of a Feme-Inheretrix born before Marriage under colour whereof he claimed to be Tenant by the Courtesie but being for that cause barr'd in an Assize brought by him against A. he obtain'd the Popes Bull and by authority thereof commenced his Suit in the Ecclesiastical Court to prove his Issue legitimate quod facere non debuit as Bracton there saith and therefore prohibition was granted to stay the Suit shewing the whole matter Et quod praedictus B. ad deceptionem Curiae nostrae ad infirmandum judicium in curia nostra factum trahit-ipsum A. in placitum coram vobis in Curia Christianitatis authoritate Literarum domini Papae ad praedictum puerum legitimandum c. Et cum non possint Judices aliqui de legitimatione cognoscere nisi fuerit loquela prius in curia nostra incepta per breve ibi Bastardia objecta postea ad Curiam Christianitatis transmissa vobis prohibemus quod in placito illo ulterius non procedatis c. And in the same Chapter Bracton hath the form of another Prohibition which makes the difference before put more evident Rex talibus judicibus c. Ostensum est nobis ex parte A. c. quod in causa successionis haereditatis petitione debet prius moveri placitum in curia nostra cum ibi objecta fuit Bastardia tunc deinde transmitti debet recordum loquelae cognitio Bastardia ad curiam Christianitatis ut ibi ad mandatum nostrum de legitimitate inquiratur quod quidem in hac parte non est observatum Et cum hoc sit manifeste contra Consuetudinem Regni nostri c. vobis prohibemus c. whereby it is very evident that if the Ecclesiastical Court proceed to the examination of Bastardy or Legitimation without direction of the Temporal Court it is to be restrained by a Prohibition 3. As the Ecclesiastical Judge may not enquire of Bastardy or Legitimation without special direction or command of the King so when he hath received the Kings Writ to make such Inquisition he ought not to surcease for any Appeal or Inhibition but ought to proceed until he hath certified it into the Kings Court and this also appears by Bracton in the forecited place c. 14. Cum autem Judex Ecclesiasticus Inquisitionem fecerit non erit ab eo appellandum nec à petente nec à tenente à petente non quia talem Jurisdictionem talem judicem elegit à tenente non qui sic posset causam in infinitum protrahere de judice in judicem usque ad Papam sic posset Papa de Laico feodo indirecte cognoscere See also to this purpose 39 E. 3. 20. a. in a Writ of Dower where Ne unques occouple en loyal Matrimony was pleaded and Issue thereupon joyn'd the Writ issued to the Bishop to certifie who certified that he could do nothing by reason of an Inhibition which came to him out of the Arches This return was held insufficient for it was there said that he ought not to surcease from doing the Kings command by reason of any Inhibition 4. Lastly it was said that the very cause and reason why the Ecclesiastical Judge may not enquire of Legitimation or Bastardy before that he hath received direction or a mandate out of the Kings Temporal Court doth consist in this that the Ecclesiastical Court never hath Jurisdiction or power to intermeddle with Temporal Inheritance directly or indirectly It being observed that Christ himself refused to meddle with a Cause of that nature when upon request made to him Luke 12. Magister dic fratri meo ut dividat mecum haereditatem he answer'd Quis me constituit judicem aut divisorem super vos And therefore in the time of King H. 3. when the usurped Jurisdiction of the Pope was elevated much higher than ever before or since in the Dominions of the King of England Pope Alex. the third having granted a Commission to the Bishops of Winchester and Exon to enquire de Legitima nativitate of one Agatha the Mother of one Robert de Ardenna and if she were found legitimate then to restore to the said Robert the possession of certain Lands whereof he was dispossess'd being informed that the King of England was greatly offended at the said commission he revoked and countermanded it in the point of the restitution of possession knowing and confessing that the establishment of Possessions belonged to the King and not to the Church Which Case is reported in the Canon Law Decretal Antiq. Collect. 1. lib. 4. tit Qui filii sunt legitimi cap. 4. and cap. 7. where in the 4 th Chapt. the Commission and in the seventh Chapt. the revocation or countermand appears in express terms CHAP. XXXVI Of Divorce as also of Alimony 1. What Divorce
l. si neget ff de lib. agnos Sanch. de Matr. lib. 2. Disp 41. nu 51. and afterwards in most Cases of separation not occasioned by Elopement or Adultery as aforesaid nor in case of a total Divorce by reason of some legal impediment whereby the Marriage was Null and void ab initio dict Sanch. Tom. 2. lib. 7. Disp 93. nu 22. This Alimony in strictness of Law is a duty properly due from the Husband to the Wife whilst she cohabits with him for by the Canon Law if without any default of his she does of her own accord depart from him he is not obliged to allow her Alimony during such her wilful deserting of him though she be not charg'd of Adultery c. haec imago 33. q. â— It being a Rule in Law Qui non facit quod debet non recipit quod oportet l. si ea C. de Condit insert l. Julian § affinis ff de acti empt But if she depart by reason of some default in him as because of cruelty or the like in that case he shall be compelled to allow her Alimony for the Law understands her as a dutiful Wife so long as it is attributable only to him and no way imputable to her that she is constrained to seem otherwise arg l. jure civili ff de Cond demonst Lyn. in l. qui in uxorem c. de Neq gest nu 1. D. D. Communiter But if she depart of her own default the Husband is not obliged to allow her Alimony albeit he had a considerable Dowrie with her and on the other side if the Husband be in the fault and she depart from him he is obliged to allow her Alimony though he had nothing with her Jo. Lupus c. pro vestras de Donat. in t vir ux Barbos 2. p. rubr ff solut matr nu 43. And in case it be doubtful through whose default it is that they live asunder the Law in that case concludes that the party that was last in fault is not least in fault l. illud 17 ff de peric commod rei vendit And therefore if the Wife who by her own default did voluntarlly depart from her Husband shall after repent and submitting her self to him shall desire reconciliation and to be admitted to cohabitation with him he then refusing her shall be obliged to allow her Alimony save in the Cases aforesaid Glos c. significasti verb. materiam in side Divort. ubi Host nu 2. verb. restitui Jo. Andr. nu 7. fi D. D. Communiter On the other side if by reason of the cruelty of the Husband the Wife shall blamelesly flie from him and the Husband shall offer sufficient security or caution for his future good behaviour to her her safety and peace with him and the cruelty or ill usage not such but that by such caution the Wifes peace and safety may be undoubtedly secur'd and she notwithstanding refuse to return in such case the Law will not compel him to allow her Alimony Quia ultima ea culpa uxori nocet Ferret concil 34. nu 18. Barbos 2. p. rub ff solut matrim nu 44. 15. By the Civil Law if a Dowry or Marriage-Portion with a Wife be promised and not paid to the Husband he is not obliged to allow her Alimony Gloss Auth. de non eligend secundo Nubentes The reason whereof is because such Portion quasi in pretium datur l. pro oneribus c. de jur Dotium But if by reason of some misfortune her Parents or such as undertook for the Payment thereof do after become insolvant she shall notwithstanding have Alimony even by that Law which in other respects seems somewhat severe in this Point unless you can affect them with Fraud in promising what they knew they could not perform Barbos ff solut Matri nu 71. Or in case two persons lay claim to the same Woman each pretending she is his Wife by Marriage and the one of them move to have her kept under Sequestration till the Case be decised in this case she shall have Alimony pendente lite of that Person at whose motion or instance she is so Sequestred l. si pro lusorio ff de appellat But if the controversie be only between a Man and a Woman touching the validity of a Marriage as whether a Marriage or not in such Case no Alimony is due till some Matrimonial Proof appear or that it doth some way constare de Matrimonio but wherever a Marriage doth appear there Alimony shall be due pendente lite arg l. si neget ff de lib. Agnosc 16. John Owen lived apart from his Wife And upon Petition of the Wife to the Justices of Assize for Maintenance they referr'd it to the Bishop of Bangor who ordered that he should pay to his Wife 10 l. per an which was afterwards confirmed by Decree in the Council of Marches of Wales And because that John Owen disobeyed that Decree and did not pay the 10 l. per an the Council sent a Messenger to apprehend his Body caused his Goods and the profits of his Lands to be Sequestred And Henden prayed a prohibition For that Alimony was not within their Instructions Richardson demanded of him if they could grant Prohibitions if they meddle with a thing which belongs to Ecclesiastical Power where they themselves have Power Harvey was of the same Opinion for this Court should preserve other Courts in order Yelverton said for the Sequestration of the Lands they could not do that Richardson they have not any Power to sell the Goods The Ecclesiastical Court is the proper Court for Alimony and if the Person will not obey they cannot but excommunicate him And by Yelverton when that comes to them from the Bishop to be confirmed they cannot but walk in the Steps of the Bishop and a day was given to shew why a Prohibition should not be granted And so it was ruled 17. Dame Sherley Wife of Sr. Henry Sherley sued in the High Commission Court for Alimony and Hitâ—ham moved for a Prohibition and said that Alimony is not within the Jurisdiction of the High Commission for the Court of High Commission is to try Ardua Regni which are not triable by the Common Law Richardson the Power of the High Commission is not de Arduis Regni but of Heresies and such other things Ecclesiastical and he said that the Court of High Commission had special words in their Commission but not in the Statute of primo and that the Statute de primo had no Prerogative in that And so the Question is if the King may by the Common Law grant such a Commission Hutton said that by the same reason as he may grant such a Commission they may grant Commissions for all other things Yelverton I marvel how that came within their Commission he said that in tempore Jacobi upon a debate before him Sir Edward Cook so fully satisfied the King And this matter
suadente 17. q. 4. And as to Sacriledge committed against Places sacred the Canon is That Sacrilegium Committitur auferendo Sacrum de sacro vel non sacrum de sacro aut sacrum de non sacro cap. quisquis 17. q. 4. Of which Three Members the Third doth not belong to this circumstance of Place And as to the second Member thereof the Civil Law determines otherwise than the Canon for in that Case the Civil Law says that Res Privatorum si in aedem sacram depositae surreptae fuerint furti actionem non sacrilegii esse l. Div. ff ad leg jul pec yet among the Canonists it is communis opinio that furtum in loco sacro sacrilegium est And where the Canon Law speaks of Churches it says si qui deposita vel alia quaelihet exinde abstrahunt velut Sacrilegi Canonicae Sententiae subjaceant But every Offence done in the Church is not Sacriledge yet it is held that it is in the power of the Ecclesiastical Jurisdiction so to prohibit the doing of some certain things and actions in the Church that such as offend against the Prohibition shall be reputed Sacrilegions though the things in themselves are not Sacriledge The Canonists also do hold that the perverting of the Holy Scriptures to uphold maintain or confirm errors is gravissimum Sacrilegium Suarâ—z lib. 3. de Sacrilegio c. 7. nu 1 5. Notwithstanding what has been said Bartol defines Sacriledge to be the taking away or stealing some sacred thing out of some Publick sacred place this is most properly Sacriledge according to Bartol Bart. in l. Sacrilegii poenam ff ad Leg. Jul. Pcculat to which it may not be impertinent or superfluous to add cum animo furandi The Civil Law punish'd it with death Bart. ibid. alii D D. in dict L. Menoch de Arbit Jud. l. 2. Cent. 4. Cas 389. nu 2. So the Athenians put a Boy to death for stealing a Plate of Gold out of Diana's Temple which fell from her Gown Aelian lib. 5. de var. Hist cap. 16. Among the Grecians the Sacrilegious Persons were not to have the common humanity of a Grave but were cast out unburied Diod. Sicul. lib. 16. Biblio in 6. An. Philippi Philip King of Macedon in his holy Warr against the Pâ—ocenses having taken their General Onomarchus and routed their Army commanded the General to be hanged the rest to be drownd like Sarcrilegious persons Idem dict lib. anno 8. Philip. Alexander the Great in the Olympick Games caused it to be proclaimed by an Herauld that all Exiles and Banished persons except for Sacriledge and Murder should be permitted to return to their own Countrey Idem lib. 17. An. 9. Alexandri Gemist Plâ—tho lib. 2. de Gestis Graec. post pugnam Mantineam Pleminius Ambassador from Scipio to the Senate of Rome having robb'd the Treasure of Proserpina and being now nigh dead by a most searful and horrid kind of disease before he was brought to his Trial the Roman Senate notwithstanding condemned him in double the sum to Pr serpina Livius lib. 9. Bel. 2. Punic Valer. l. 1. cap. 2. Domitian when it was reported to him by the Flamens or Jupiters High Priests that one had erected a Monument for his Son with stones design'd for the Temple or Capitol commanded the Monument to be pulled down and demolished the Bones and Ashes of the Party to be cast into the Sea and the stones to be restored to the Temple Sueton. in Domitian cap. 8. Xenophon relates out of the Laws of the Athenians against Sacrilegious persons in these words viz. Judge O Athenians in this matter according to the law made against Sacrilegious persons and Traitors That if any hath committed Treason or Theft of things Sacred let him be adjudged to death and let Sentence be that be be not buryed in Athens and all his goods confiscate Xenoph. de lege Atheniens Another Law against Sacrilegious persons apud Constantinum Harmenopulum in haec verba Whoever steals any thing Sacred out of a Sacred place let him have his Eyes pluck'd out Const Harmen lib. 6. Prompt jur car 5. Gunctranus King of the Parisians and Galls with his Nobles and Bishops assembled on the Festival of Sumphorianus made a Law that their Armies or Soldiers should not on pain of death either on their March or on a Victory rush violently into any Churches or rob the same Greg. Turon lib. 8. Hist Franc. c. 30. Clearchus and Sitacles Soldiers under Alexander the Great being accused by his Army of robbing and spoiling Churches and removing antient Monuments were commanded to be put to death Orxines who succeeded Phrasaortes in the Kingdom of Persia being accused and convicted of robbing and wasting the Temples Churches and the Monuments of the Kings was by Alexanders command Crucified to death Arria lib. 6. in fin de expedit Alexan. The Law in some Cases doth leave the Penalty of Sacriledge Arbitrary especially where any Churches are notoriously and violently broken open and the Offerings or sacred Vessels thence stolen away by night in which case the Punishment is Capital and so practised in the kingdome of Naples Boerii Decis 254. nu 13. It is not the value of the thing stolen that causes this crime of Sacriledge to be so severely punished but because there is more of audacity and iniquity in this kind of Theft than of others of inferiour Circumstances and therefore Calistratus accused Menalopus that he had robd'd Templi Custodes Anglice Church-wardens and had thence stolen away three very small Vessels minimi ponderis yet even this was punished as Sacriledge of a very criminal nature Innumerable are the Presidents of this kind found among Historians to which might be added that of Famous or rather Infamous Remark touching Charls Martell King of France cujus animam says Tritemius visam deportari od Inferos quod multas Ecclesias spoliasset dum bellis inimicos persequeretur Tritem in Breviar Hist Franc. in fin 6. Touching Sacriledge as diversified in respect of Persons Places and other things Sacred the Canonists enumerate such kinds thereof as would seem very uncouth and strange for us to hear of in this Kingdom as the Constitution of the Ecclesiastical State thereof is now most Protestantly established they are therefore here purposely omitted The Penalties likewise inflicted on Sacrilegious persons vary according to Circumstances and as the kinds or degrets of the Sacriledge are and herein the Canon and the Civil Law have provided very different penalties which at the Canon Law are of one kind and at the Civil Law of another But according to the ancient Ecclesiastical Constitutions of this Realm Sacriledge of what kind soever regularly incurr's the penalty of Excommunication which admitts also of distinctions For as there is the greater and the lesser Excommunication so there is Excommunication ipso facto in Contradistinction to that which is only ipso jure also the Law even in this point
Immunitatibus gaudeant quibus Milites Burgenses Parliamenti Ant. Brit. fo 284. nu 30. 6. The Jurisdiction of the Convocation in this Realm though relating to matters meerly Spiritual and Ecclesiastical yet is subordinate to the establish'd Laws of the Land it being Provided by the Statute of 25 H. 8. c. 19. That no Canons Constitutions or Ordinances shall be made or put in execution within this Realm by Authority of the Convocation of the Clergy repugnant to the Prerogative Royal or to the Customes Laws or Statutes of this Realm To the same effect was that of 9 Ed. 1. Rot. Parl. Memb. 6. Inhibitio Archiepiscopo omnibus Episcopis aliis Praelatis apud Lambeth Conventuris ne aliquid statuant in praejudicium Regis Coronam vel dignitatem For although the Archbishop and the Bishops and the rest of the Clergy of his Province Assembled in a Synod have power to make Constitutions in Spiritual things yet they ought to be Assembled by Authority of the King and to have as aforesaid his Royal Assent to their Constitutions which being had and obtained the Canons of the Church made by the Convocation and the King without Parliament shall bind in all matters Ecclesiastical as well as an Act of Parliament as was Resolved in Bird and Smiths Case Although the Saxons who founded and endowed most of our Churches and made many good Laws in reference to the Jurisdiction power and priviledges thereof yet the Royal Prerogative with the Laws and Customes of the Realm were ever so preserved as not to be invaded thereby King AEthelbert the first Saxon King King Ina AEthelstane Edmund Edgar and King Kanute all these made Laws in favour of the Church but none of them ever entrenched on the Prerogative of the Crown or on the Laws or Customes of the Realm nor any of those ancient Church-Laws ever made without the Supream Authority to ratifie and confirm the same 7. The Laws and Constitutions whereby the Ecclesiastical Government is supported and the Church of England governed are the General Canons made by General Councils also the Arbitria Sanctorum Patrum the Decrees of several Archbishops and Bishops the Ancient Constitutions made in our several Provincial Synods either by the Legates Otho and Othobon or by several Archbishops of Canterbury All which by the 25 H. 8. are in force in England so far as they are not repugnant to the Kings Prerogative the Laws and Customes of England Also the Canons made in Convocations of Later times as Primo Jacobi Regis and confirmed by his Regal Authority Also in some Statutes Enacted by Parliament touching Ecclesiastical affairs together with divers Customes not written but in use beyond the memory of Man and where these fail the Civil Law takes place Among the Britain Councils according to Bishop Prideaux his Synopsis of Councils Edit 5. those amongst the rest are of most remark viz. At Winchester in King Edgars time under Dunstane at Oxford by Stephen Langton Archbishop of Canterbury at Claringdon under King Henry the Second The Council under King Edward the 6 th in which the 39 Articles of the English Confession was concluded and confirmed The Synod under the same King from which we receive the English Liturgy which now we have composed by Seven Bishops and Four Doctors and confirmed by the publick consent of the Church which as also the said 39 Articles the succeeding Princes Queen Eliz. King James and King Charles ratified and commended to Posterity At London a Synod in which 141 Canons or Constitutions relating to the pious and peaceable Government of the Church presented to King James by the Synod and confirmed by his Regal Authority and at Perth in Scotland where were Articles concerning Administring the Sacrament to the Sick Private Baptism where Necessity requires Confirmation admitting Festivals Kneeling at the Receiving the Sacrament and an allowance of Venerable Customes But de Concil Britan. vid. D. Spelman The Ancient Canons of the Church and Provincial Constitutions of this Realm of England were according to Lindwood the Canonist who being Dean of the Arches compiled and explained the same in the time of King H. 6. made in this order or method and under these Archbishops of Canterbury viz. The Canons or Constitutions 1. Of Stephen Langton Cardinal Archbishop of Canterbury in the Council at Oxford in the year of our Lord 1222 who distinguish'd the Bible into Chapters 2. Of Otho Cardinal the Popes Legate in Anno 1236. on whose Constitutions John de Athon Dr. of Laws and one of the Canons of Lincoln did comment or gloss 3. Of Boniface Archbishop of Cant. 1260. 4. Of Othobon Cardinal of St. Adrian and Legate of the Apostolical Chair on whose Constitutions the said John de Athon did likewise Glossematize His Canons were made at London in Anno 1268. 5. Of John Peckham Archbishop of Canterbury at a Synod held at Reding An. 1279. 6. Of the same Peckham at a Synod held at Lambeth An. 1281. 7. Of Robert Winchelse Archbishop of Canterbury An. 1305. 8. Of Walter Reynold Archbishop of Canterbury at a Synod held at Oxford An. 1322. These Constitutions in some Books are ascribed to Simon Mepham but erroneously for the date of these Constitutions being An. 1322. the said Walter Reynold according to the Chronicle died in An. 1327. and was succeeded by Simon Mepham 9. Of Simon Mepham Archbishop of Cant. An. 1328. 10. Of John Stradford Archbishop An. 13 ... 11. Of Simon Islepe Archbishop An. 1362. 12. Of Simon Sudbury Archbishop An. 1378. 13. Of Tho. Arundel Archbishop at a Synod or Council held at Oxford An. 1408. 14. Of Henry Chichley Archbishop An. 1415. 15. Of Edmond Archbishop of Canterbury 16. Of Richard Archbishop of Canterbury The Dates of the Canons or Constitutions of these Two last Lindwood makes no mention by reason of the uncertainty thereof but withal says it is clear That Richard did immediately succeed the foresaid Stephen Langton and the said Edmond succeeded Richard Lindw de Poen c. ad haec infra in verb. Mimime admittatur If so then it was most probably Richard Wethershed who was Archbishop of Canterbury An. 1229. And St. Edmond Chancellor of Oxford who was Archbishop of Canterbury An. 1234. 8. Councils were either General or Oecumenical from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 whereunto Commissioners by the Emperours Authority were sent from all quarters of the World where Christ hath been preached Or National or Provincial or Particular by Bullenger called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 such were the Councils of Gangra Neo-caesarea and many others commonly Assembled by Patriarchs and Bishops in some particular place of a Countrey The ends of these Councils chiefly were either for the suppression of Heresies the decision of Controversies the appeasing of Schisms or the Ordaining of Canons and Constitutions for decency of Order in the Church Vid. AElfrici Canones ad Wulfinum Episcopum Can. 33. where it is said That there were Four Synods
p. 31. Sect. 12. Several things incident to a Bishop qua talis p. ibid. and Sect. 13. In what respects his Jurisdiction is not meerly local p. 32 33. Sect. 15. The Dignity and Precedency of Bishops here in England p. 35. Sect. 19. Their precedency among themselves p. 13. Sect. 1. Their Capacity of Temporal Jurisdiction restored p. 36. Sect. 20. They were anciently invested per Annulum Baculum p. 24. Sect. 3. and p. 29. Sect. 8. Bishops of London Deans of the Episcopal Colledge p. 38. Sect. 22. Bishopricks in England all Founded by the Kings of England p. 24. Sect. 3. How many iu England p. 12 13. Sect. 1. They were anciently Donative p. 24. Sect. 3. and p. 29. Sect. 8. Their Patronage is in the King ibid. How the Bishopricks of Wales became annexed to the Crown of England p. 28. Sect. 6. They were erected into Baronies by King William the Conqueror p. 35. Sect. 19. Blasphemy what whence so called Threefold the severe Punishments inflicted thereon p. 559 560. Sect. 1 2 3. Bona Notabilia what p. 104. Sect. 6. Bricks whether Tithable p. 390. Broom in what Case Tithable or not p. 390. Buck and Doe not Tithable yet payable for Tithe p. 361. Sect. 20. and p. 380. Sect. 75. Bull or the Popes Bull whence so called p. 341. Sect. 3. Burial in the Body of the Church who hath right to License it p. 139. Sect. 5. Whether any thing payable to the Parson for Burial of him out of his Parish that died in his Parish p. 188. Sect. 5. Burglary to enter a Church by Night with an intent to steal p. 141. Sect. 8. C. CAerlegion in Wales anciently the Metropolis of Britannia Secunda p. 16. Sect. 4. Calves how Tithed and when and what kind of Tithes they yield p. 390. Camois or Sir John de Camois the remarkable Case of his demising his Wife p. 474. Sect. 11. Canon-Law when and how first introduced into England p. 129 c. Sect. 44. Where and by whom it was first read in this Kingdom p. 132. Sect. ibid. Whether it be any part of the Law of England p. 585 586. Sect. 3. p. 131. Sect. 44. Canons anciently made by the Kings of this Realm without the Pope p. 6. Sect. 8. They were ever called the Kings Canons not the Bishops p. ibid. They cannot be made nor oblige the Subject without the Royal assent p. 7. Sect. 11. and p. 99. Sect. 2. They may not be repugnant to the Kings Prerogative nor to the Laws or Customes of the Realm p. ibid. p. 9. Sect. 14. p. 163. Sect. 5. p. 192. Sect. 15. p. 589. Sect. 6. What Canons in force 1 Ed. 6. p 585. Sect. 2. They are the Ecclesiastical Laws of the Land p. 112. Sect 9. Canterbury anciently the Royal City of the Kings of Kent p. 13. Sect. 1. when first declared to be the Metropolitan Church of England Scotland and Ireland p. 20 Sect. 13. Cathedrals whence so called p. 347. Sect. 1. Cathedraticum what and how it differs from Procurations p. 72. § 9. the original thereof ib. Cattel in what cases tythable or not and the Herbage thereof p. 390 391. p. 366. Sect. 33. p. 367. § 35. whether young Cattel are tythable ib. p. 370 371. § 43. whether the Herbage of Barren Cattel be tythable p. 373. § 46. Caveat entered against an Institution to a Benefice whether it makes void such Institution made after the entring of the Caveat p. 276. § 34. p. 280. § 18 whether a Caveat entred in the life time of an Incumbent be void ib. Cautione admittenda what that Writ imports and the effect thereof in Law p. 648. § 10. Certificate of the Bishop requisite in a Plea of Bastardy p. 484. § 13. in what Case traversable p. 88. § 12. Cession what p. 286. § 9. where Cognizable p. 122. § 11. Chalk whether tythable p. 391. Chancel by whom to be repaired p. 143. § 10. p. 175. § 4. In whom the Freehold thereof 〈◊〉 p. 150. § 22. Chancellor of a Diocese a description of his Office p. 81. § 1. What matters cognizable by him p. 85. § 10. The original and use of that Office p. 81 82. § 2. What the Canons enjoyn concerning such p. ibid. § 3. Why called the Bishops Vicar General p. 81. § 1. Whether a Divine not experienced in the Civil and Canons Laws may be a Chancellor p. 82 83. § 4. Chaplains whether the King Queen Prince and Children of the Blood Royal may retain as many as they please p. 294. § 3. How many the Archbishop of Canterbury may retain ibid p. 21. § 13. and p. 32. § 13. How many retainable by a Bishop ib. How many by a Duke Marquess Earl and other persons of honour p. 294. Sect. 3. Chappel whence that word p. 145 146. Sect. 15. How many kinds thereof ibid. What a Chappel of ease and what a Free Chappel is and by whom visitable Sect. ibid. The Imperial Law touching the building of Chappels p. 146. Sect. 17. Chapter what p. 56. Sect. 8 c. The difference between Capitulum and Conventus p. 58. Sect. 9. Charles Martell the first that violated the Church in point of Tithes p. 354. Sect. 7. Charter of William the Conquerour touching Consistories p. 84. Of King John touching the Election of Bishops p. 183. Sect. 10. Of King H. 8 touching Pentecostals p. 74. Chaunter and Chauntry what p. 392 c. Sect. 6. Certain differences in Law touching Chauntries p. 331. Sect. 8. Cheâ—se in what Case to be Tithed or not p. 391. Cherry-Trees where adjudged Timber and Tithe-free p. 392. Chicken how Tithable or not p. 392. Child how reputed legitimate or not as to the time of it's Birth in computation from the time of its conception p. 484. Sect. 12. Chorepiscopi what p. 30. Sect. 11. Christmas-day whether Arrests may be made thereon p. 115. Sect. 12. Church none such in Law until Consecration p. 142. Sect. 9. Anciently a Sanctuary p. 141. s 8. Threefold p. 136. s 1. Church-Lands prohibited by the Imperial Law from being alienated p. 136. s 2. In whom the Freehold of the Church and Church-yard is p. 137. s 3. Churchwardens by whom Eligible and wherein their Office consists p. 160 c. Sect. 1. p. 162. s 4 5. p. 168. s 21. p. 166. s 14. Whether they are a Corporation in Law p. 162 163. s 5. p. 164. s 11. and whether as such they may take Lands to the use of the Church p. 167. s 17. p. 168. s 22. What power they have touching Seats in the Church p. 140 141. s 7. What Actions may lie for or against them p. 161. s 2. p. 163. s 7 8. p. 167. s 18. p. 168. s 20. p. 186 187. s 3. Before whom they are to make their Account p. 161. s 1. p. 166. s 16. p. 167. s 19. Whether the New Church-wardens may have Action for Trespass done in their Predecessors time p. 162. s
and Godmothers in Baptism the Original thereof p. 49. s 7. Grain pays a Predial Tithe p. 411. Grant of Tithes whether good without Deed p. 386. Grass what Tithes that pays and how p. 410 411. Grass-cocks Tithed p. 374. s 50. Grave-Stone taken away whether Actionable and where p. 157. s 42. Gravel whether Tithable p. 411. Grounds lett to Strangers out of the Parish who answers the Tithe ibid. Guardian of the Spiritualties his Office and by whom Constituted p. 39. sect 1. p. 41. s 4 5. His power in the vacancy of an Archbishoprick p. 40. s 2. What Remedy in case he shall refuse to grant Faculties or Dispensations where they may or ought to be granted p. 40. s 3. H. HAlimots anciently what p. 97. Sect. 1. Hay the Law touching Tithe Hay p. 412 413. Whether the Tithes thereof may belong to the Vicar p. 381. s 77. Two Crops of Hay from the same ground the same year whether both Tithable p. 412. Hazel Holly Willows and Whitethorn in what cases they may be Tithable or not p. 377. s 62. Head-Lands whether Tithable p. 359. s 16. p. 369. s 39. p. 374. s 52. Hearth-peny the ancient Custome thereof p. 367. sect 35. p. 372. s 46. Heath Furse and Broom in what cases Tithable or not p. 413. Barren Heath-ground in what sense excused of Tithes for the first Seven years p. 375. s 53. Hedging and Fencing-Wood whether Tithable p. 370 371. s 43. Hemp what Tithes that pays p. 413. p. 366. s 32. Heyfers whether Tithes due for the Herbage thereof p. 370. Sect. 43. Henry de Blois Brother to King Stephen was Bishop of Winchester p. 37. Sect. 16. Henry de Beaford Brother to King H. 4. was also Bishop of Winchester p ibid. Herbage what and how Tithable or not p. 370 371. Sect. 43. p. 413. Herbage of Sheep whether Tithable p. 464. Heresie what and whence the word derived p. 560 561. Sect. 4. Threefold ibid. Where Cognizable p. 561 562. Sect. 6. How punished p. 562 563. Sect. 7. It is Lepra animae ibid. Hereticks an Alphabetical Catalogue of such their Errors and Heresies the Times and places when and where broached and the Councils wherein they were condemned p. 164 165 c. High Commission-Court the Constitution thereof p. 11 12. Sect. 14. What the power thereof was p. 118. Sect. 14. Hoel-Dha his Law against fighting in the Church-yard p. 140. Sect. 6. Honey whether and how Tithable p. 413 414. Hoods to be worn by Proctors in the Arches when and by whom first enjoyned p. 103. Sect. 4. Hops what Tithes they pay and how Tithed p. 414. Whether Great Tithes to the Parson or Small Tithes to the Vicar p. 366. Sect. 32. Whether they may not belong to the Vicar by Prescription p. 381. Sect. 77. The difference in Kent as to Tithes between Hops in Orchards and Hops in Gardens p. 366. Sect. 32. Hop-poles whether the Wood thereof Tithable or not p. 414. Horses for Husbandry whether their Pasture be Tithable p. 371. Sect. 43. Hospitallers either Lay or Spiritual by whom Visitable p. 34. Sect. 18. They were discharged of Tithes p. 402. Houses being Dwelling Houses where Tithable p. 414 415. Hubert Archbishop of Canterbury p. 7. Sect. 11. Hundred-Court the Antiquity thereof and Extent anciently of its Jurisdiction p. 96. Sect. 1. p. 84. Sect. 7. I JAde to call one Welch Jade whether Actionable and where p. 522. Sect. 17. Jealousie how the Civil Law proceeds therein p. 472. Sect. 7. Ideocy in what case Triable in the Ecclesiastical Court p. 120. Sect. 17. Jewish Hereticks who such anciently and what their Heresies p. 580 c. Sect. 9. Impotency in a Man how to be proved p. 493. Sect. 1. Impropriations how many within York Diocess p. 14. Sect. 2. vid. Appropriations Ina the Saxon King whether he the first that gave Peter-pence to the Pope p. 112. Sect. 8. His Law against Striking in the Church p. 140. Sect. 6. Incumbent what p. 317. Sect. 1. Legal Requisites to make a Compleat Incumbent p. ibid. His Rights p. 318. Sect. 2. Indians their severe punishment of Adultery p. 471 472. Sect. 6. Indicavit what that Writ imports the end and use thereof in what cases and for whom it may be awarded p. 647. Sect. 6. p. 439. Induction what and how executed p. 278. Sect. 16. Whether it be a Temporal Act and cognizable in the Temporal Court p. 279. Sect. 17. Infant if under age Admitted and Instituted to a Benefice it is void p. 280. Sect. 20. Whether Action lies against a Minor under Seventeen years of age for Slandering p. 524. Sect. 23. Ingulphus Abbot of Crowland his Report touching Appropriations p. 280. Sect. 1. Institution what the Form thereof Requisites thereto and what Remedy if denied p. 274. Sect. 8. Institutions are cognizable in the Ecclesiastical Court p. 123. Sect. 28. The difference between the Civil and Common Law touching Institutions p. 276. Sect. 9. Whether it works a Plenarty without Induction p. ibid. Sect. 11. p. 280. Sect. 18. p. 281. Sect. 21. Ireland until what time under the Archbishop of Canterbury p. 20. Sect. 13. Isle of a Church who may prescribe to it p. 138. Sect. 4. or whether it may be peculiar to a Family p. ibid. Sect. 5. p. 158. Sect. ult Jurisdiction Ecclesiastical and Temporal the Original of that distinction p. 133. Sect. 44. Juris utrum for and against whom that Writ lies p. 205. Sect. 1. Jure Patronatus what that Writ imports p. 206. c. How the Law proceeds therein p. 179. s 2. In what case the Bishop may make use thereof and his power therein p. 33. s 16. At whose charge it is to be p. 180. s 3. What Jus Patronatus is p. 205. s 1. Jus Canonicum the Original thereof p. 132. s 44. K KAnute King his strict Law concerning Abbots p. 328. Sect. 3. Knave whether Actionable to call one so p. 517. s 4. p. 524. s 21 24. L LAmbs how Tithable p. 416. They yield a small Tithe and may belong to the Vicar p. 198. Sect. 3. p. 359. s 16. In what case they may be Great Tithes and payable to the Parson p. 366. s 32. Lands accruing to the Crown by the Statute of Dissolutions whether they shall pay Tithes p. 416. Lapse what p. 242. s 1. The Original and gradations thereof ibid. The difference between the Common and Canon Law as to the time of Lapse p. 245. sect 2. When the Six Months shall commence ibid. How the Six Months before a Lapse are to be computed by Daies and how Notice shall be given to the Patron or not before the Lapse incurrs p. 247. s 4. Whether a Grant may be made of a Lapse p. 248. s 5. A Lapse is more a Trust than an Interest ibid. From what time the Lapse shall incurr ibid. s 6. In what case the Lapse may incurr to the Ordinary notwithstanding a Quare Impedit brought by the Patron p.
Sect. 19. To what things a Presentation may be p. 263. Sect. 21. In what Cases the King shall have the Presentation by his Prerogative p. 263 264. Sect. 23 24. The difference in Law between the King and a Common person as to Presentations p. 265. Sect. 28. Primate and Metropolitan of all England when and how that style on title first vested in the Archbishop of Canterbury p. 18. Sect. 8. Priority in the Seat of a Church whether it may be prescribed p. 140. Sect. 7. Priviledges of the Clergy p. 193 c. Sect. 18. Priviledge in respect of Tithes what p. 436. Procuration what p. 67. Sect. 1. When and to whom payable ibid. Whether due without the Act of visiting p. 68. s 2. p. 69. Sect. 4. p. 75. s 10. p. 78. Sect. 11. Anciently paid in victualibus when and how changed into Money p. 68. Sect. 3. How the Canonists define it p. 69. Sect. 5. Onely one Procuration to be paid to the Ordinary how that is to be understood p 70. Sect. 6. Prohibition in what Cases it hath been granted p. 89. Sect. 16. p. 114. Sect. 12. p. 121. Sect. 17. p. 93. Sect. 20. p. 122. Sect. 22. p. ibid. Sect. 23 24. p. 126. Sect. 36 37 38 39. p. 128. Sect. 43. p. 138. Sect. 4. p. 140. Sect. 7. p. 144. Sect. 13. p. 113. Sect. 11. p. 121. Sect. 20. p. 148. Sect. 20. p. 151. Sect. 24. p. 149. Sect. 22. p. 151. Sect. 25. p. 152. Sect. 26 28. p. 153. Sect. 30 31. p. 127. Sect. 40. p. 119. Sect. 15. p. 163. Sect. 5. p. 114. Sect. 12. p. 149. Sect. 21. p. 188. Sect. 5. p. 142. Sect. 9. p. 152. Sect. 29. p. 153. Sect. 32. p. 155. Sect. 38. p. 157. Sect. 40. p. 374. Sect. 49. p. 377. Sect. 62. p. 379. Sect. 67. p. 387. 393. 409. 410. 407. 425. 429. 430. 436. p. 473. Sect. 7. p. 485. Sect. 15. p. 177. Sect. 8 9. p. 373. Sect. 47. p. 190. Sect. 9. p. 166. Sect. 12 13 14. p. 167. Sect. 19. p. 176. Sect. 8. p. 277. Sect. 12. p. 92. Sect. 19. p. 101. Sect. 3. p. 104. Sect. 6. p. 119. Sect. 17. p. 147. Sect. 18. p. 298. Sect. 9. p. 166. Sect. 15. p 198. Sect. 4. p 258. Sect. 10. p. 267. Sect. 34. p. 115. Sect. 12. p. 299. Sect. 11. p. 281. Sect. 22 23. p. 116. Sect. 12. p. 164. Sect. 9 11. p. 319. Sect. 7. p. 359. S. 14. p. 369. Sect. 40. p. 192. Sect. 15. p. 364. Sect. 30. p. 368. Sect. 37. p. 361. Sect. 20 21. p. 362. Sect. 22. p. 368. Sect. 38 39. p. 371. Sect. 43. p. 375. Sect. 53. p. 362. § 25. p. 365. § 31. p. 369. § 39. p. 378. § 64. p. 382. § 82. p. 520. § 12. p. 517. § 5. p. 505. § 12. p. 521. Sect. 14. p. 523. § 19. p. 524. § 21. In what Cases the Prohibition hath been denyed p. 83. Sect. 4. p. 115 116. Sect. 12. p. 119 121. Sect. 17 18. p. 122 123. § 25 26 27 28. p. 124. § 29. p. 125. § 31 32 33 34. p. 126. § 39. p. 127 128. § 42 43. p. 137. § 3. p. 144. § 11. p. 148. § 19. p. 153. § 30. p. 174. § 1. p. 152. § 27. p. 364. sect 29. p. 380. sect 74. p. 156. sect 39. p. 166. sect 16. p. 198. sect 5. p. 318. sect 5. p. 359. sect 15. p. 120. sect 17. p. 92. sect 19. p. 366. sect 33. p. 376. sect 57. p. 364. sect 29. p. 386. p. 389. p. 412. p. 413. p. 420. p. 429. p. 451. p. 456. p. 464. p. 520. sect 13. p 512. sect 18. p. 507. sect 12. p. 521. sect 15. p. 523. sect 17. p. 525. sect 24. p. 526. sect 24. p. 527. sect ult Whether a Prohibition may be granted after Sentence and in what Cases p. 192. sect 15. p. 381. sect 76. p. 116. sect 12. p. 120. sect 17. p. 124. sect 29. Whether a Prohibition may be after an Appeal p. 148. sect 21. A Prohibition whether grantable after a Consultation p. 147. sect 18. or de novo to an Appellant who had a Prohibition in the first instance p. 360. sect 19. p. 431. Prohibition granted against Costs of Suit given to an Informer p. 473. sect 7. Whether a Prohibition lies in case proof by one single Witness be disallowed in the Ecclesiastical Court p. 362. sect 22. p. 113. sect 11. p. 115. sect 12. p. 123. sect 26. p. 128. sect 43. Whether a Prohibition may be granted the last day of the Term p. 147. sect 18. Or to stay Proof in Perpetuam rei memoriam p. 374. Sect. 49. Proxies what p. 70. Sect. 5. p. 75. Sect. 11. The same with Procurations ibid. Whether extingnish'd by the dissolution of Religious Houses p. 76 c. Sect. 11. Not known to the Primitive Church ib. Whether grantable by a Bishop to the King § ibid. The Case of Proxies aptly compared to the Case of Tithes p. 79. Sect. 11. A Case of Remark at Common Law touching Proxies p. 75 c. Sect. 11. Q. QUare Impedit for and against whom that Writ lies p 645. Sect. 3. Of what things it lies p. 649. Sect. 20 21. Whether it lies for an Archdeaconry p. 66. Sect. 14. Quarta Episcopalis what p. 77. Sect. 11. Quaries whether Tithable p 436. Quean whether Action lies for calling one so p. 517. Sect. 5. p. 523. Sect. 18. p. 520. Sect. 12. Queen Elizabeth her Declaration touching her Supremacy p. 10. Sect. 11. Declared Supream Governess on Earth of the Church of England p. ibid. Sect. 14. Questmen what by whom Eligible and wherein their Office doth consist p. 163. Sect. 6. Quorum Nomina Process of that kind prohibited p. 60. Sect. 6. p. 82. Sect. 3. R. RAbbits whether Tithable p. 367. Sect. 36. Rakings of the stubble of Corn whether Tithable p. 384. p. 436 c. Rapeseed whether shall the Parson or the Vicar have the Tithes thereof p. 381. Sect. 77. Rate-Tithes in what Cases payable p. 391. p. 437. Rectors how distinguish'd from Vicars p. 186. Sect. 1. Refusal of a Clerk by a Bishop because he could not speak the Welch Language p. 276. Sect. 36. Once Refused for Insufficiency may not after be received p. 268. Sect. 39. Register to a Bishops Consistory the Office controverted where Cognizable p. 126. Sect. 35. Registry-Book of a Parish for Christnings and Burials the Original thereof p. 145. Sect. 14. p. 164. Sect. 10. Release by one Church-warden whether any Bar to the Suit of his Companion p. 144. Sect. 12. p. 165. Sect. 11. p. 161. Sect. 2. Release of a Next Avoidance made after the Church becomes void is void p. 286. Sect. 7. Religion Christian when and where first planted in this Kingdom p. 13. Sect. 1. Rents of what kind may be sued for in the Ecclesiastical Court p. 126. Sect. 34. Where the Tithe of Rents in London are suable for and how p. 379. Sect. 70. Reparations of Churches where
Constance there being a Contest about Precedency between the English and French Embassadours the English have these words viz. Domus Regalis Angliae Sanctam Helenam cum suo filio Constantino Magno Imperatore nato in urbe Regia Eboracensi educere comperta est The Royal House of England it is known for certain brought forth Helena with her Son Constantine the Great Emperour Born in the Royal City Eboracum Likewise the English at Basil opposing the Precedency of Castile say thus viz. Constantium illum Magnum qui Primus Imperator Christianus so are their words Licentiam dedit per universum Orbem Ecclesias constituere immensa ad hoc Conferens bona Peternae natum in Eboracensi Civitate That Constantine who being the first Christian Emperour gave leave to build Churches throughout the World was Born at Peterne in the City of York By this they mean Bederne a Colledge of Vicars there sometime serving the Quire which as also Christchurch called in Ancient Charters Ecclesia Sanctae Trinitatis in Curia Regis is verily thought to have been part of the Imperial Palace in old time which seems the more probable by what Herodian writes viz. That Severus the Emperour and his eldest Son Antoninus sate at York about Private and Common affairs and gave their Judgment in ordinary Causes as in that of Coecilia about recovery of Right of Possession The Rescript or Law of which matter is to this day preserved in the Code whereon the Learned Cuiacius of Great Britain hath made very remarkable Observations This was that Septimius Severus Emperour of Rome and Master of the World who in this Isle breathed his last and who when he saw there was nothing to be expected but Death called for the Vrn wherein he had appointed his Ashes after the Ossilegium should be put and viewing it very exactly Thou shalt hold said he the Man whom the World could not contain No wonder then that this City of so great Renown and Antiquity was adorned with an Archiepiscopal Seat above a Thousand years since as aforesaid yet it never had those high Priviledges or Pterogatives which were and are peculiar to the Archiepiscopal See of Canterbury whereof the Power next under the Crown of convening Councils and Synods is not the least Gervasius in his Chronicle de Tempore H. 2. tells us That RICHARDUS CANTUARIENSIS Archiepiscopus totius ANGLIAE Primas Apostolicae Sedis Legatus Convocato Clero ANGLIAE celebravit Concilium in Ecclesia Beati PETRI ad WESTMONASTERIUM 15. kal. Junii Dominica ante Ascentionem Domini An. 1175. In hoc Concilio ad dextram Primatis sedit Episcopus LONDONIENSIS quia inter Episcopos CANTUARIENSIS Ecclesiae Suffraganeos DECONATVS praeminet dignitate Ad sinistram sedit Episcopus WINTONIENSIS quia CANTORIS officio praecellit The Church when Disdiocesan'd by Death Translation or otherwise or quasi viduata whilst the Bishop is employed about Transmarine Negotiations in the Service of the King or Kingdom the Law takes care to provide it a Guardian quoad Jurisdictionem Spiritualem during such vacancy of the See or remote absence of the Bishop to whom Presentations may be made and by whom Institutions Admissions c. may be given and this is that Ecclesiastical Officer whether he be the Archbishop or his Vicar General or Deans and Chapters in whomsoever the Office resides him we commonly call the Guardian of the Spiritualties The Power and Jurisdiction of this Office in the Church is very Ancient and was in use before the time of King Edward the First it doth cease and determine so soon as a new Bishop is Consecrated to that See that was vacant or otherwise Translated who needs no new Consecration This Ecclesiastical Office is in being immediately upon the vacancy of an Archiepiscopal See as well as when a Bishoprick happens to be vacant Beside the Presentations Admissions Institutions c. aforesaid that this Officer is legally qualified for he may also by force of the Act of Parliament made in the Five and twentieth year of King Henry the Eighth grant Licenses Dispensations Faculties c. which together with such Instruments Rescripts and other Writings as may be granted by virtue of the said Statute may be had made done and granted under the Name and Seal of the Guardian of the Spiritualties And in case he shall refuse to give the same an effectual dispatch where by Law it may and ought to be granted in every such case the Lord Chancellor of England or Lord Keeper of the Great Seal upon Petition and Complaint thereof to him made may issue his Majesties Writ directed to such Guardian of the Spiritualties requiring him by virtue of the said Writ under a certain penalty therein limited by the said Lord Chancellor or Lord Keeper to grant the same in due form of Law otherwise and no just and reasonable cause shewed for such refusal the said penalty may be incurr'd to his Majesty and a Commission under the Great Seal issued to two such Prelates or Spiritual persons as shall be nominated by his Majesty impowring them by virtue of the said Act to grant such Licenses c. as were so refused to be granted by the Guardian c. as aforesaid The first thing in order to the Election of a Bishop in the Vacancy of any Episcopal See is and ever hath been since the time of King John the Royal Congé d'Eslire which being obtain'd the Dean and Chapter proceeds to Election It cannot legally be doubted but that the consent of the Dean is not only requisite but also necessary to the Election of a Bishop as appears by an Ancient Contest above five hundred years since between the Dean and Canons of London touching the Election of Anselme Soon after King Stephen came to the Crown he conven'd a Council at Westminster vocati sunt ad Concilium says an Historian WILLIELMVS DECANVS LVNDONIAE siuml Canonici Cum autem haberetur Tractatus de Concilio Lundoniensis Ecclesiae tunc vacantis nec in aliquem possent unanimiter convenire recesserunt à Decano Canoni corum multi citra conscientiam ejus ANSELMUM Abbatem in Episcopum Eligentes Canonici vero quos Decanus habebat secum in Mensa diebus singulis Appellaverunt nec Regis occurrerunt offensam Canonici quidem alii quia quod fecerant tam Regi quam toto Concilio videbatur iniquum Regis indignationem plurimam meruerunt quorum aliqui bonis suis spoliati sunt The Pope afterwards having on this occasion a solemn Conference with his Cardinals Albericus Hostiensis Episcopus quod sequitur pronunciavit in Publicum Quoniam Electio Canonicorum Lundoniensium citra conscientiam Assensum Decani facta fuit cujus est Officium in Eligendo Pastore suo de jure primam vocem habere Nos eam auctoritate beati Petri devocamus in irritum So that according to this Ancient President the Election
Vrbis Cantuar. Antiq. pag. 362 363. ubi de Decano Christianitatis But the Deans here specially meant and intended are only such as with the Chapters according to the ancient and genuine use thereof are as Senatus Episcopi to assist the Bishop in his Jurisdiction Cathedral Churches being the first Monuments of Christianity in England So Dr. Hacket in Parliament 1640. The Office and Ecclesiastical Dignity of Archdeacons which you next meet with in this Abridgment is of very great Antiquity There was a sharp Contest above Five hundred years since in the time of King H. 2. between the Archdeacons and the Priors of Winchester and Ely touching the Presentation of their Bishops Elect unto the Metropolitan in order to their Consecration wherein by the Interlocutory of the said Metropolitan the Priors had the Victory Hora congrua Consecrationis instante R. Wintoniensis R. Elyensis Archidiaconi cum Officiales Episcoporum dicantur ad suum spectare contendebant Officium Electiones c. praesentare Metropolitano W. Wintoniensis S. Elyensis Priores in contrarium sentiebant quam enim in Ecclesiis Cathedralibus ubi Canonici divinis mancipantur obsequiis Decani sibi vindicant dignitatem hanc si Monachorum Conventus in Episcopali sede praemineat sibi jure possunt vendicare Priores Sed ut omnis in posterum amputetur occasio Litigandi de Interlocutoria Metropolitani sententia c. Wintoniensis Elyensis Electiâ— ad Priorum suorum praesentationem recepti ad Priorum suorum postulationem Episcopi Consecrati sunt Radulph de Diceto Imag. Hist. By the 25th Canon of the Council of Lateran under Pope Alexander it was Ordained That an Archdeacon in his Visitation should not exceed the numqer of Five or Seven Horsemen for his Retinue Chron. Gervas de Temp. H. 2. And as to the Visitation-Articles every Bishop and Archdeacon heretofore framed a Model thereof for themselves but at the Convocation in the year 1640. a Body thereof was composed for the publick use of all such as exercised Ecclesiastical Jurisdiction And by the foresaid Canon of the Council of Lateran it was further Ordained That no Archdeacon in his Visitation should presume to exact from the Clergy more than was justly due Archidiaconi autem sive Decani nullas exactiones in Presbyteros seu Clericos exercere praesumant Notwithstanding what toleration the Law allows as to Archbishops Bishops Archdeacons c. as to the number of their Retinue in their Visitations yet therein respect is ever to be had to the condition of the Churches Persons and Places Visited as may plainly appear by the express words of the Canon aforesaid viz. Sane quod de numero evectionis secundum tolerantiam dictum est in illis Locis poterit observari in quibus ampliores sunt redditus Ecclesiasticae facultates In pauperibus autem Locis tantam volumus teneri mensuram ut ex accâ—ssu majorum minores non debeant gravari ne sub tali indulgentia illi qui paucioribus Equis uti solebant hactenus plurium sibi credant potestatem indultam So that no Archdeacon or other having Right of Visitation ought by what the Law allows them in that case to exercise their power in this matter beyond what the condition of the place Visited will reasonably admit In all Visitations of Parochial Churches made by Bishops and Archdeacons the Law hath provided that the Charge thereof should be answered by the Procurations then due and payable by the Inferiour Clergy wherein Custome as to the Quantum shall prevail but the undue Demands and supernumerary Attendants of Visitors have Anciently as well as in Later times given the occasion of frequent Contests and Complaints For prevention whereof it was Ordained by the 25th Canon of the Council of Lateran under Pope Alexander circa An. 1179. in haec verba viz. Cum quidam Fratrum Coepiscoporum nostrorum ita graves in Procurationibus subditis suis existunt ut pro hujusmodi causa interdum ipsa Ecclesiastica Ornamenta subditi compellantur exponere longi temporis victum brevis hora consumat Quocirca statuimus Quod Archiepiscopi Parochias Visitantes pro diversitate Provinciarum facultatibus Ecclesiarum 40 vel 50 evectionis Numerum Episcopi 20 vel 30 Cardinales vero 20 vel 25 nequaquam excedunt Archidiaconi vero Quinque aut Septem Decani Constituti sub Episcopis Duobus Equis contenti existant Prohibemus etiam ne subditos suos talliis exactionibus Episcopi gravare praesumant Archidiaconi autem sive Decani nullas exactiones vel tallias in Presbyteros seu Clericos exercere praesumant vid. Chron. Gervas de Temp. H. 2. col 1455. can 25. whereby it is evident that these Procurations ought to be so moderated by the Bishops as that they may not become a burthen or grievance to the Clergy The lawfulness of these Episcopal and Archidiaconal Rights of Procurations are not to be called into question at this day for in all the Establishments and Ordinations of Vicarages upon the Ancient Appropriations of Churches you shall find these Procurations excepted and reserved in statu Quo As appears by these of Feversham and Middleton when by William the Conqueror they were Appropriated to the Abbey of St. Austins as also by these of Wivelsberg Stone and Brocland in Kent when they were Appropriated to the same Abbey by the Charter of King Ed. 3. and in that of the Parish of Stone aforesaid Pentecostals by name are reserved in these words Nihilominus solvet Procurationem debitam Archidiacono Cantuariensi Visitanti expensas pro Pentecostalibus faciendis vid. Chron. W. Thorne Appropria Eccles col 2089. Hist Angl. What Procurations the Archbishop of Messena who arrived in England as the Popes Legate in the year 1261. exacted and extorted from the Bishops and Abbots with great violence in the Reign of King H. 3. you may find in Matthew Paris But by the Fourth Canon of the Council at Rome under Pope Alex. 3. An. 1180. it was Ordained That Bishops and Archbishops in their Visitations should not overcharge the Church of their Bounds with unnecessary charges and expences specially the Churches that are poor No sooner had Princes in Ancient times assign'd and limited certain Matters and Causes controversal to the cognizance of Bishops and to that end dignified the Episcopal Order with an Ecclesiastical Jurisdiction but the multiplicity and emergency of such affairs requir'd for the dispatch and management thereof the assistance of such subordinate Ordinaries as being experienc'd in the Laws adapted to the nature of such Causes might prove a sufficient Expedient to prevent the avocation of Bishops by reason of such Litigious interpositions from the discharge of the more weighty Concerns of that Sacred Function Hence it is supposed that the Ecclesiastical Office of Diocesan Chancellors Commissaries and Officials originally came into use and practice the place of their Session anciently styled the Bishops
Consistory Among the many Learned Ecclesiedicts who have supplied that Ecclesiastical place William Lindwood who finished his industrious and useful work of the Provincial Constitutions about the year 1433. in the time of K. Henry the Sixth seems to be of the highest Renown his Education was in the University of Cambridge first Scholar of Gonvil then Fellow of Pembrook-hall his younger years he employed in the study of the Imperial and Canon Laws afterwards became Keeper of the Privy Seal unto King Henry the Fifth by whom he was honoured with an Embassie to the Crowns of Spain and Portugal After the Kings death he reassum'd his Officials place of Canterbury and then collected the Constitutions of the Fourteen later Archbishops of Canterbury from Stephen Langton unto Henry Chichley unto whom he dedicated that highly to be esteemed Work his Gloss thereon being in it self as a Canonical Magazine or the Key which opens the Magazine of the whole Canon Law It was printed at Paris An. 1505. at the cost and charges of William Bretton Merchant of London revised by the care of Wolfangus Hippolitus and Prefaced unto by Jodocus Badius This Famous Lindwood was afterwards made Bishop of St. Davids By the Grant of William the Conqueror the Bishops originally had an entire Jurisdiction to judge all Causes relating to Religion for before that time the Sheriff and Bishop kept their Court together He granted also to the Clergy Tithes of Calves Colts Lambs Woods Mills c. So that before the Conquest there were no such Courts in England as we now call Courts Ecclesiastical or Spiritual for Anciently the Bishops sate in Judgment together with the Secular Judges and Sheriffs on the same Tribunal specially about Easter and Michalmass which appears by Mr. Selden in his Notes on Eadmerus pag. 167. as also by the Laws of King Aethelstane Debent Episcopi cum Seculi Judicibus interesse Judiciis ne permittant si possint ut illinc aliqua pravitatum germina pullulaverint Sacerdotibus pertinet in sua Diocoesi ut ad rectum sedulo quemcunque juvent nec patiantur si possint ut Christianus aliquis alii noceat c. Chron. Jo. Bromton de Leg. Aethelst Reg. And in the Preamble to the Laws of that King you will find these words viz. Debet etiam Episcopus sedulo pacem concordiam operari cum Seculi Judicibus Yea long after the Conquest in the Reign of H. 2. An. 1164. by his Laws made at Clarendon the Bishops might interest themselves with the Kings Secular Judges where the matter in Judgment extended not to diminution of Members or were Capital An. 1164. Congregati sunt Praesules Proceres Anglicani regni apud Clarendoniam Rex igitur Henricus c. Then it follows in Lege undecima viz. Archiepiscopi Episcopi c. sicut Barones caeteri debent interesse Judiciis Curiae Regis cum Baronibus usque perveniatur in Judicio ad diminutionem Membrorum vel ad mortem Notwithstanding at the same time the Bishops Ecclesiastical Courts as also the Archdeacons Courts were established in this Kingdom and further ratified and confirmed by these very Laws of King H. 2. made at Clarendon as appears by the Tenth Law and that immediately foregoing the Premisses in haec verba viz. Qui de Civitate vel Castello vel Burgo vel dominico manerio Domini Regis fuerit si ab Archidiacono vel Episcopo de aliquo delicto Citatus fuerit unde debeat eis Respondere ad Citationes eorum noluerit satisfacere bene licet eum sub Interdicto ponere sed non debet c. exinde poterit Episcopus ipsum Accusatum Ecclesiastica Justitia coercere Chron. Gervas de Temp. H. 2. In those daies there was no occasion for that just Complaint which a Learned Pen as a Modern Author observes makes viz. That Courts which should distribute Peace do themselves practice Duells whilst it is counted the part of a Resolute Judge to enlarge the Priviledge of his Court Lord Bacon in his Advanc of Learn p. 463. Aphor. 96. It was with more moderation expressed by him who said It was sad when Courts that are Judges become Plaintiffs and Defendants touching the Bounds of their Jurisdiction In the first Parliament of King Edward the Sixth's Reign it was Enacted That all Process out of the Ecclesiastical Courts should from thenceforth be issued in the Kings Name only and under the Kings Seal of Arms contrary to the usage of former Times But this Statute being Repealed by Queen Mary and not Revived by Queen Elizabeth the Bishops and their Chancellors Commissaries and Officials have ever since exercised all manner of Ecclesiastical Jurisdiction in their own Names and under the distinct Seals of their several Offices respectively Also by the Statute of 25 H. 8. c. 19. it being Enacted That all former Canons and Constitutions not contrary to the Word of God the Kings Prerogative or the Laws and Statutes of this Realm should remain in force until they were review'd by Thirty two Commissioners to be appointed by the King and that Review being never made in that Kings time nor any thing done therein by King Ed. 6. though he had also an Act of Parliament to the same effect the said Ancient Canons and Constitutions remain'd in force as before they were whereby all Causes Testamentary Matrimonial Tithes Incontinency Notorious Crimes of Publick Scandal Wilful absence from Divine Service Irreverence and other Misdemeanours in or relating to the Church c. not punishable by the Temporal Laws of this Realm were still reserved unto the Ecclesiastical Courts as a standing Rule whereby they were to proceed and regulate the Exercise of their Jurisdiction Vid. Heyl. ubi supr p. 2 3. Touching the Ecclesiastical Jurisdiction and what Matters and Causes should be cognizable in the Ecclesiastical Courts of Normandy in the Reign of King Richard the First upon occasion of a Contest inter Ecclesiam ROTHOMAGENSEM WILLIELMUM Filium RADULFI Steward of Normandy it was nigh Five hundred years since finally Accorded Published inter alia Declared by all the Clergy That all Perjuries and Breach of Faith except in case of National Leagues all Controversies relating to Dowries and Donations propter Nuptias quoad Mobilia should be heard and determined in the Ecclesiastical Court it was then also so many hundred years since further Resolved in haec verba viz. Quod distributio eorum quae in Testamento relinquuntur auctoritate Ecclesiae fiet nec Decima pars ut olim subtrahetur It was likewise at the same time and so long since further Resolved That Si quis subitanea morte vel quolibet alio Fortuito Casu praeoccupatus fuerit ut de rebus suis disponere non possit Distributio Bonorum ejus Ecclesiastica auctoritate fiet Radulph de Diceto Hist de Temp. Rich. 1. Regis Of all the Churches in Great Britain that of Saint Pauls London is of the largest structure
Persecution which moved Constantine Son of Constantius Chlorus who began his Reign in the year of our Lord 310. to give command for the Re-edifying and Repairing the Temples of the Christians which was not only expeditely put in Execution but many new Churches were also erected for the Convention of the Christians and Idol-Temples shut up until Julian the Apostate restored the Heathenish Idolatry It hath ever belonged to the care and cognizance of the Church to make provision for the Repair of the Dilapidations of the Church Thus Jehoida made it his business to repair the Dilapidations of the Temple But although Controversies hence arising and incident to this matter are properly belonging to Ecclesiastical cognizance yet they are not only Ecclesiastical persons that are hereunto obliged for although they alone are to prevent and repair or make satisfaction for what part of the Churches Dowry themselves have suffered to be Dilapidated whilst in their own possession yet as to the Church it self and the Incidents thereof others as well as Ecclesiasticks are obliged to the Repairs thereof for the Steeple with the Body of the Church and all Chappels lying in Common thereunto are to be Repaired by the Joynt cost of the Parishioners And such Private Chappels as wherein particular persons claim a propriety of Seat and Sepulture are to be Repaired at their own charge but the Chancel is to be kept in Repair at the Parsons cost yet in all these respect is chiefly to be had to the Custome of the Place time out of mind for that shall rule the Premisses and will go far to determine whether the Fences of the Church-yard are to be made and repaired at the charge of the Parson who may have the ground thereof as part of his Glebe or at the charge of the Parishioners or of such persons whose Land surrounds or abutts on the same Suarez saies That for the better prevention of Dilapidations there was Anciently a Custome in some places That some part of the Tithes should not be paid to the Clerk or applied to the party Beneficed but should be reserved for the use of the Fabrick of the Church to repair the same and for the use of the Poor and were not properly due to any particular Clerk ut in ejus dominium transferantur but to the Church not the material Temple but to the Church that is the Clergy for the use of the Temple The Executors or Administrators of a Dilapidator stand charged in the Ecclesiastical Court to the succeeding Incumbent to make good the Repairs and if such Dilapidator in his life-time shall make a Deed of Gift to defeat the Successor of the effect of his Suit it is void 13 Eliz. cap. 10. And the Successor Incumbent shall have like remedy in the Ecclesiastical Court against such Donee or Grantee as he might have had against the Dilapidators Executor or Administrator Also by 14 Eliz. cap. 11. it is provided That all the Moneys received for Dilapidations shall within Two years be employed upon the Buildings for which they were paid on pain of forfeit of so much to the King as shall not be so employed When a Church becomes Litigious and doubt arises touching the right of Patronage or Presentation in that case the Law hath provided an Expedient for the Ordinary whereby his being a Disturber in case he Collate or Present is prevented to which end and in such case the Law directs him to award the Jure Patronatus wherein the Practice with us at this day answers to the pretence of all persons quorum interest with more exactness and general satisfaction than was anciently practicable according to the Canons and Constitutions of old as appears by the defect in this matter of the Seventeenth Canon of the Council at Rome An. 1180. which is only to this effect viz. If a question arise concerning Presentations of divers persons to one Church or concerning the Gift of Patronage if the foresaid Question be not decided within the space of Three months the Bishop shall place in the Church the person whom himself conceives most worthy The Law takes notice of a twofold Jus Patronatus the one Civile the other Canonicum The former is that which is introduced by the Civil Law and refers to a Lord or Patron in respect of his Bondman made Free and his Goods the other and which only is here intended is That which is instituted by the Church in shew of gratitude to him who either Founded built or Endowed some Church for which reason the Bishops granted them a certain Right in such Churches which is commonly called Jus Patronatus and that by the Canon Law understood as Honorificum Vtile Onerosum Honorificum in regard of that obsequious Respect due from the Parish to the Patron specially in that the chiefest Seat in his Church is granted to him Onerosum in that the Patron may lawfully defend his Church and prevent the Dilapidations both of the Church and of what she is Endowed with according to the way and manner prescribed in cap. Filiis 16. q. 7. It is also called Jus Vtile because that if any time the Patron or any descending from him shall happen to fall into decay in such case the said Church is more oblig'd to supply the necessities of him and his than of any other Poor c. Quaecunque cum sequent For this reason also it is and that others may be encouraged to the like Acts of Piety the Church as a Mark of special grace and favour hath granted to such Patrons the Jus Praesentandi or a Right to Present fit persons to the Benefice of such Churches This Right or Jus Patronatus did not belong to Patrons anciently or jure antiquo as appears by the Gloss in cap. Piae mentis yet most certain it is That this Right of Patronage was Jus antiquissimum as is evident by cap. Quoniam de jure Patronat And the Lateran Council calls it Potestatem in qua Ecclesia huc usque Patronos sustinuit The present Incumbents Parsons and Vicars of Churches burnt in London by the late Dreadful Fire and by Act of Parliament not to be rebuilt are by the said Act not deprived of the Tithes or other profits formerly belonging to their respective Churches so long as they shall assist in serving the Cure and other Offices belonging to their duty in the Parish-Church whereunto their respective Parishes shall be united and annexed by the said Act according to the direction of the Ordinary c. Saving to the Kings Majesty his Heirs and Successors the Tenths and First-Fruits of all such Parish-Churches as by force of the said Act are united and consolidated c. yet so as that the said Parsons and Vicars are by the said Act indemnified from the payment of all First-Fruits Tenths and Pensions due and which shall be due unto his Majesty and from all dues to the Ordinary and Archdeacon and all other dues
whatsoever chargeable upon them respectively until such time as they shall receive the Profits arising from the same as formerly And no Process to issue out of any Court whatsoever against the persons aforesaid for their Non-payment of First-Fruits Tenths Pensions or any other the dues aforesaid c. The said Parsons are likewise by the said Act indemnified for not Reading the 39 Articles or not doing other thing enjoyned by Law until such time as the said Churches be Re-edified or made fit for Publick Worship The said Parsons and Vicars are likewise impower'd to lett Leases of their Glebe-Lands with the consent of the Patron and Ordinary for any Term not exceeding 40 years and at such yearly Rents without Fine as can be obtain'd for the same And that no Lapses incurred upon any Non-Presentation in due time of any of the Patrons of the said Livings since the said Fire shall any waies prejudice or make void the Presentations that the said Patrons have since made whereupon any Incumbent is since Instituted and Inducted any Law or Statute to the contrary in any wise notwithstanding By the Third Canon of that great Assembly of 180 Bishops at Rome in the Church of Constantiniana An. 1180. in the Twentieth year of Pope Alexander the Third it was Ordained That no man should be admitted to the Office of a Bishop under the age of Thirty years nor that any should be admitted to be a Deacon or Archdeacon or to have the government of a Parish until he were of the full age of Five and twenty years The next Chapter speaks of Vicars Vicarages and Benefices Gervasius a Monk of Canterbury in his Chronicle de tempore H. 2. under whom a Synod was convened at Westminster An. 1175. by Richard then Archbishop of Canterbury acquaints us with an Ancient Canon made at that Synod whereby Vicars are restrained from behaving themselves proudly against their Parsons a piece of Spiritual Insolence not grown quite out of practice to this day It is the Eleventh Canon the words are Illud etiam de Vicariis qui personis fide juramento obligati sunt duximus statuendum quod si fide vel Sacramenti religione contempta Personatum sibi falso assumentes contra Personas se erexerint si super hoc in jure vel confessi vel convicti fuerint de caetero in eodem episcopatu ad Officii sui Executionem non admittaâ—tur In all Appropriations of Churches there ever was and ought to be an establishment of sufficient Maintenance for the Vicar and his Successors pro sustentatione sua congrua made by the Bishop of the Diocess by and with the consent of such as to whom such Churches are Appropriated And this though for the most part consisting only of the Minute Tithes yet hath the denomination of a Benefice or Ecclesiastical Benefice as properly as any Rectory or Parsonage whatever for they are perpetual Vicars in whom the Vicarage or Benefice is as in Fee though not properly in demesne as in Fee as Temporal Inheritances are and therefore the word Beneficium with the Feudists and Canonists is the same as Feodum or Feudum with our Common Lawyers yet sometimes it is opposed to that which we call Allodium or what a man hath in his own Name and in his own proper Right and absolutely for that which is here understood by Beneficium may be possess'd nomine alieno certis sub Legibus which may not properly be said of Allodium that being properly what a man doth possess nomine proprio absolute An instance of this you have in the Grant made by King William Rufus to Anselme Archbishop of Canterbury Praecepit Rex ut investiretur Anselmus omnibus ad Archiepiscopatum pertinentibus atque ut Civitas Cantuariae quam Lanfrancus suo tempore in Beneficio à Rege tenebat Abbatia Sancti Albani quam non solum Lanfrancus sed Antecessores ejus habuisse noscuntur in Allodium Ecclesiae Christi Cantuariensis pro redemptione animae suae perpetuo jure transirent By the Ninth Canon of the Lateran Council under Pope Alexander It is prohibited to grant or promise any Ecclesiastical Benefices before they are actually void the reason of which Canon was to prevent the desire of the death of the present Incumbent by him who by such promise or grant had an expectation to succeed him in the Benefice In the next place follows the Chapter of Advowsons which the Canon Law calls Jus Patronatus being a power or right of Presenting one to be Instituted to a vacant Ecclesiastical Benefice I say Vacant because if the Benefice be not then void the Presentation will be void in Law the reason is because were it otherwise occasion might thereby be given the Presented to desire or wish for the Incumbents death cap. Nulla de Concess Praebend And although what we call Advowson the Canon Law calls Jus Patronatus yet every Jus Patronatus is not an Advowson according to the Civil Law for the Jus Patronatus hath a twofold acceptation in the Law the one That Right which Lords or Patrons have on their Bondmen made Free by Manumission and so it is taken in ff de jur Patron but this is not to our present purpose the other That Right of Presentation to an Ecclesiastical Benefice which belongs to Patrons of Benefices and Churches which in the Law is likewise called Jus Advocationis as appears by cap. Quia Clerici de Jur. Patronat And this is that Advowson here intended This Right of Advowsons or Jus Patronatus the Law doth also distinguish into Ecclesiastical and Laical Touching the Ecclesiastical vid. Covarru in qq pract c. 36. nâ— 2. which is so called not because an Ecclesiastick doth enjoy or possess it for so he may also possess a Laick Patronage but because it belongs to one for that he hath founded built or endowed the Church Ex bonis Ecclesiasticis or by reason of some Rectory of a Church or some Ecclesiastical Dignity As when a Benefice is erected with money gotten ex bonis Ecclesiasticis in that case he hath Jus Patronatus Ecclesiastici or Patronatum Ecclesiasticum And so it is if one hath the Advowson or right of Presentation on because he is a Bishop a Dean or the like this also is Jus Patronatus Ecclesiastici so the Gloss in Clem. 2. de jur Patronat alii The other kind of Advowsons or Jus Patronatus Laici is so called for that it belongs to one because he hath either founded built or endowed some Church or erected some Benefice Ex bonis patrimonialibus Lessius de Justic jure cap. 34. de Benefic Dub. 4. In pursuance of that distinction it is that the Canon Law determines in a different manner in respect of Ecclesiastick and Laick Patronages touching the time limited for Presentation to a vacant Benefice for according to that Law if the Patronage be Laick the Patron is obliged to
Present within Four months next after the Church becomes void but if the Patronage be Ecclesiastical then within Six cap. unico de Jur Patronat in 6. Concerning Appropriations of Churches the first thereof since the Conquest appears to be that of Feversham and Middleton in Kent An. 1070. granted by William the Conquerour to the Abbey of St. Austins in Canterbury in manner following viz. In Nomine c. Ego Willielmus c. ex his quae omnipotens Deus sua gratia mihi largiri est dignatus quaedam concedo Ecclesiae S. Augustini Anglorum Apostoli c. pro salute Animae meae Parentum meorum Predecessorum Successorum haereditario jure haec sunt Ecclesiae Decimae duarum Mansionum viz. Feversham Middleton ex omnibus redditibus qui c. omnibus ibidem appendentibus terra sylva pratis aqua c. Haec omnia ex integro concedo S. Augustino Abbati Fratribus ut habeant teneant possideant in perpetuum which was afterward Confirmed by Pope Alexander the Third and Ratified by Theobald Archbishop of Canterbury together with an Establishment and Ordination of a Vicarage by the said Archiepiscopal Authority in each of the said Churches respectively The like you have for the Appropriating of three other Churches to the same Abbey viz. of Wyvelsberg Stone and Brocland in Kent by the Charter of Ed. 3. above Three hundred years since Confirmed by Pope Clement's Bull and Ratified by Simon Mepham then Archbishop of Canterbury with his Establishment of Three perpetual Vicarages to the said Churches Which Charter is to this effect viz. Nos de gratia nostra speciali pro C. Libris quas praefati Abbas Conventus nobis solvent c. Concessimus Licentiam dedimus pro Nobis haeredibus nostris quantum in Nobis est ejusdem Abbati Conventui quod ipsi Ecclesias praedictas Appropriare eas sic Appropriatas in proprios usus tenere possint sibi Successoribus suis in perpetuum nisi in hoc Quod Nos tempore vacationis Abbatiae praedictae si contigerit Ecclesias praedictas vel aliquam earundem tunc vacare Nos Jus Praesentandi ad easdem amitteremus sine occasione vel impedimento Nostri vel haeredum nostrorum quorumcunque Hujus Data est sub An. Do. 1349. The Modern Church-Historian of Britain in his Eleventh Book pag. 136. calls to remembrance That about An. 1626. there were certain Feoffees a whole dozen of them though not incorporated by the Kings Letters Patents or any Act of Parliament yet Legally he says settled in Trust to purchase in Impropriations and that it was incredible how then possible to be believed what large Sums were advanced in a short time towards that work But then withal tells us somewhat that is Credible viz. That there are 9284 Parochial Churches in England endowed with Glebe and Tithes but of these when the said Feoffees entered on their work 3845 were either Appropriated to Bishops Cathedrals and Colledges or Impropriated as Lay-Fees to Private persons as formerly belonging to Abbeys The Redeeming and Restoring he does not mean to the Abbeys was the design of these Feoffees as to those in the hands of Private persons but re infecta the Design proved abortive A Commendam or Ecclesia Commendata so called in contradistinction to Ecclesia Titulata is that Church which for the Custodial charge and government thereof is by a revocable Collation concredited with some Ecclesiastical person in the nature of a Trustee vel tanquam fidei Commissarius and that for the most part only for some certain time absque titulo for he that is Titularly Endowed hath the possession of the Church in his own Name and in his own proper Right during his life hence it is that in the Canon Law a Church collated in Commendam and a Church bestowed in Titulum are ever opposed as contraries vid. Hist Concil Trident. lib. 6. pag. 600. Duaren de Benefic lib. 5. cap. 7. Thus King Edgar Collated Dunstan Bishop of Worcester to the Bishoprick of London by way of Commendam Rex Edgarus says Radulph de Diceto in his Abbreviat Chronicorum Lundoniensem Ecclesiam proprio Pastore viduatam commisit regendam Dunstano Wigornensi Episcopo Et sic Dunstanus Lundoniensem Ecclesiam Commendatam habuit non Titulatam dict Radulph de An. 962. It is supposed that the first Patent of a Commendam retinere granted in England by the King to any Bishop Elect was that which King Henry the Third by the advice of his Council in imitation of the Popes Commendams then grown very common granted by his Letters Patents to Wengham then Chancellor of England notwithstanding his insufficiency in the knowledge of Divinity to hold and retain all his former Ecclesiastical Dignities and Benefices whereof the King was Patron together with his Bishoprick he then succeeded Fulco Bishop of London for so long time as the Pope should please to grant him a Dispensation whose Dispensation alone would not bar the King to Present to those Dignities and Benefices being all void in Law by making him a Bishop He had also the like Patent of Commendam retinere as to his Benefices and Ecclesiastical Preferments in Ireland And this Patent of such a Commendam being made by the King his Lords and Judges is for that reason the more remarkable vid. Le Hist. of the Church of Great Britain pag. 84. According to the proper and ancient Account Commendams were originally introduced in favour and for advantage of the Church which is Commended in favorem utilitatem Ecclesiae quae Commendatur Imola in ca. Nemo de Elect. in 6. says that Commendams are not to be Nisi ex evidenti Ecclesiae Commendatae necessitate vel utilitate The distinction of Temporal and Perpetual Commendams in the Canon Law is of no great use with us indeed in the Church of Rome according to the former mode of Commendams a vacant Church is Commended either by the Authority of the Pope if it be a Cathedral ca. penult ult 21. q. 1. or by the Authority of the Bishop if it be a Church Parochial This is commonly Temporal or for Six months and is in utilitatem Ecclesiae the other commonly Perpetual and are magis in subventionem eorum quibus commendantur quam ipsarum Ecclesiarum And a Commendatary for life is the same in reality with the Titular These Commendams in their Original were Instituted to a good purpose but after used to an evil end For when by reason of Wars Pestilence or the like the Election or Provision could not be made so soon as otherwise it might the Superiour did Recommend the vacant Church to some honest and worthy person to govern it besides the Care of his own until a Rector were provided who then had nothing to do with the Revenues but to govern them and consign them to another But in process of
time these Commendataries under pretence of Necessity made use of the Fruits and to enjoy them the longer sought means to hinder the Provision for remdy whereof order was taken that the Commenda should not continue longer than Six months But the Popes by the plenitude of their Power did exceed these Limits and Commended for a longer time and at last for the life of the Commendatary giving him power to use the Fruits When any Ecclesiastical Benefices happen to be void the Law provides that they shall be seasonably supplied with meet Incumbents and will not by any means admit any long Vacancy and hath therefore set a competent time within which he that hath the original right of Presentation in him shall discharge his duty therein or the Lapse shall incurr to him or them to whom by Law ab Inferiori ad Superiorem it gradually devolves This matter of Lapse in the intent and purpose thereof though not by that denomination is very Ancient By the Ninth Canon of the Council of Lateran under Pope Alexander it is provided That Cum Praebendas Ecclesias seu quaelibet officia in aliqua Ecclesia vacare contigerit vel si etiam modo vacant non diu maneant in suspenso sed in Sex menses personis quae digne administrare valeant conferantur Si autem Episcopus ubi ad eum spectaverit conferre distulerit per Capitulum ordinetur Quod si ad Capitulum Electio pertinuerit infra praescriptum terminum hoc non fecerit Episcopus exequatur Aut si forte omnes neglexerint Metropolitanus de ipsis absque illorum contradictione disponat vid. Chron. Gervasii de Temp. H. 2. And by the Eighth Canon or Constitution of the Council at Rome in the year 1180 under Pope Alexander the Third it was Ordained That no Ecclesiastical Office should be promised to any man before it became vacant by the decease of the Possessor For says the Canon it is an unrighteous thing to put any man in expectation of another mans Living whereby he may wish his Brothers death And when any place shall happen to be vacant let it be planted again within Six months or else he who hath the Right of Plantation shall lose it at that time and the Chapter or Metropolitan Bishop shall have power to provide the vacant place According to the Canon Law the Lay-Patron hath but Four months to present to a Benefice but an Ecclesiastical Patron hath Six Patronatus vero Laicus intra quatuor menses praesentare potest Ecclesiasticus autem Patronus intra Sex menses c. uno de jure Patron in 6. But the Pope is not limited to any time so that he may Collate to such Ecclesiastical vacant Benefice at what time he pleases Papae vero non est aliquod tempus praefixum cum non habet Superiorem qui possit ejus negligentiam supplere c. aliorum 9. q. 3. nisi in c. Statutum de Praeb in 6. Although regularly all inferiour Dignities Ecclesiastical and Benefices ought to be bestowed within Six months of their Vacancy according to the Rule of the Canon Law c. cum nostris c. dilectus c. postulastis Yet the greater Dignities are by that Law to be conferr'd within Three months Majores vero Dignitates ut Episcopales debent intra Tres menses tribui c. ne pro defectu de Elect. c. postquam 50. Dist. Although in strictness and propriety of Speech Presentation referrs to the Lay-Patron and Collation to the Bishop yet in the Canon Law the words Collation and Collator are frequently used in a sense promiscuously relating to them both Therefore you have it in one place said That Praesentatio à Fundatore fieri solet Episcopo vel alteri Collatori Episcopus instituit Praesentatum à Patrono Rub. per tot tit de Instit c. quod autem de jur Patron In another place it is said That Praesentatio Large dicitur Collatio Rebuff in Prax. Benefic Reg. de infirm Benefic resignant gloss 14. nu 6. post Barba in c. Abbatem de Rescript col pen. Yea and sometimes Collation is generally taken also for Institution per tex in ca. uno ut Ecclesiast Benefic sine diminut conferant Although a Lay-man doth found build or endow a Church yet the Canon Law allowes him not the Priviledge of Jus Patronatus or Jus Praesentandi otherwise than ex gratia for the Canonists do hold That de rigore juris non potest Laicus Ecclesiastica tractare negotia c. 2. de Judic only say they the Popes to encourage them in the founding building or endowing of Churches have reserved that Priviledge for them and confirmed it by a Law c. Decernimus 16. q. 7. per tot tit de jur Patronat As the Jus Patronatus so Presentation also by the Canon Law is twofold the one by an Ecclesiastical Patron the other by a Lay Patron This distinction is best known only to the Canon Law and although it may be so in Presentation yet it is not properly applicable to Collation The Ecclesiastical Patron as aforesaid hath by that Law Six months to be computed from the day of his having Notice of the Vacancy to Present c. unic de jur Patronat 6. Do. de Rota Decis 568. tit de Sent. re jud Decis 31. 845. tit de filiis Presb. decis 4. By the Ecclesiastical Patron is meant or intended that person who hath the Jus Patronatus in him ratione Ecclesiae seu Beneficii quod possidet c. dilectus de Offic. Leg. c. cum dilectus de jure Patro. But the Lay Patron who hath the Jus Patronatus ratione sui patrimonii hath only Four months as aforesaid ad Praesentandum d. c. uno yet in his Presentation he may variare but that may not be more than semel tantum c. quod autem de jure Patr. and this Cumulative non autem ut à primo recedere omnino possit c. cum autem ubi Pan. ibid. So likewise as to Collation that also is twofold by the same Law viz. Necessary and Voluntary a distinction of little use with us Necessary which the Collator is bound to make as to one who hath a Mandate from the Superiour Power for the same c. tibi c. duobus de Resor lib. 6. The Voluntary Collation being that which is free in him who hath power to make the same The Canon positively requires that Examination shall ever precede Ordination Admission Institution and Induction and although this be incumbent on the Bishop or Ordinary when it is in order to a Benefice before the Six months expire yet no obligation lies upon him to effect it so soon as the party offers his submission to an Examination specially if at the same time the Ordinary be circa curam Pastoralem This Examination referrs to the due qualification of the person to be Ordained or Beneficed as to his Ability and Conversation After this Examination
Plurality of Benefices is there forbidden as a vice smelling of Avarice and Ambition dangerous and prejudicial to the People whose Souls are neglected by such Pastours One of the chiefest Reasons why the Law forbids Pluralities is because it enjoyns Residence both which are inconsistent in the same Incumbent Aquinas says That the having of Two Benefices is not intrinsecally evil or Malum in se nor that it is altogether indifferent but carries in it a species of Evil yet so as that upon due Circumstances it may be capable of a qualified lawfulness Aquin. quod-lib 9. art 15. To the many Inconveniencies which the Law doth specifically observe to follow upon Pluralities this may not impertinently be added That thereby the pious Intention of Founders is frustrated The Council of Trent hath these words of it Haec Pluralitas est perversio totius Ordinis Ecclesiastici Concil Trid. Sess 24. cap. 17. Pope Alexander the Third said That Pluralitas Beneficiorum certum continet animarum periculum c. Quia in tantum 7. de Praebend The Canonists speaking of this Subject in reference to Dispensations to salve the matter if possible and bring both ends together have found out a very prety distinction of Beneficia Incompatabilia primi generis and Incompatabilia secundi generis But we are not concern'd in that Distinction In that Council of Trent it was said by the Bishop of Bitonto That Plurality of Benefices unknown to the First Ages was not brought in by the Court of Rome but by Bishops and Princes before the Popes took upon them to regulate the matter of Benefices throughout all Christendom Yet the Author of the History of the said Council of Trent lib. 2. says That Clement the Seventh Commended to this Nephew Hippolitus Cardinal de Medicis in the year 1534. all the Benefices of the world Secular and Regular Dignities and Parsonages Simple and with Cure being vacant for Six months to begin from the first day of his possession with power to convert all the Profits thereof to his own use The waies whereby an Ecclesiastical Benefice may be acquired are not many but the Causes for which an Ecclesiastical person may thereof be Deprived are very many generally they may all be reduced to these Three Heads 1 By the Disposition of the Law 2 By the Sentence of the Judge or 3 By a free and voluntary Resignation which though it be not properly a Deprivation yet it is an amission of the Benefiee Deprivation by the disposition of the Law is either by reason of some Crime whereunto the penalty of Deprivation ipso facto is by the Law annexed or by reason of accepting another Benefice Incompatible The Pontifical Law adds Two more which do not concern us viz. Ingress into Religion and Matrimony The Crimes that incurr Deprivation are many but they must be proved for the Beneficed party is not bound sponte sua to quit his Benefice ante Sententiam Judicis Less de Benefic cap. 29. Dub. 8. And when a man is not Jure Privatus but only Privandus in that case his Benefice cannot be bestowed on another unless a Privative Sentence be first pronounced by the Judge If a person Beneficed be long absent and Non-resident from his Benefice the Benefice is not by reason of such long Absence void ipso Jure but the Law in that case also requires a Judicial Sentence of Deprivation and that only post trinae Citationis in eorum Ecclesiis publice Edictum Gloss in c. Quoniam ut lite non contestata c. One of the chiefest Reasons in Law why Pluralities are prohibited is for the prevention of Non-residence as appears by the Third Canon of the Lateran Council which Canon after it prohibits the having of divers Ecclesiastical Dignities or more Parochial Churches than one it makes provision against Non-Residence in these words viz. Cum igitur vel Ecclesia vel Ecclesiasticum Ministerium committi debuerit talis ad hoc persona quaeratur quae Residere in loco curam ejus per seipsum valeat exercere Quod si aliter Actum fuerit qui receperit quod contra Sacros Canones acceperit amittat qui dederit largiendi potestate privetur Likewise by the Thirteenth Canon of that great Council of One hundred and eighty Bishops Assembled at Rome by Pope Alexander the Third in the year of our Lord 1180. it was Ordained That such persons should be preferr'd to Ecclesiastical Dignities as shall be actually resident with their people and undertake the Cure of their Souls by doing the work of their Ministry in their own persons otherwise to deprive them of the Office and Benefice conferred on them and they who do conferr them without these Conditions let them lose the right of conferring Offices and Benefices By this appears how strict and exact the Law is against Non-Residence in the Romish Church One of the most famous Abbots and Monasteries in Britain anciently seems to be that of Bangor in Flintshire whereof Ranulphus Cestrensis says that Tradunt nonnulli Pelagium fuisse Abbatem apud Famosum illud Monasterium de Bangor This Monastery which Ranulphus speaks of is by our Beda called Bamornabyrig lingua Anglorum in quo says he tantus fertur fuisse numerus Monachorum ut cum in Septem portiones esset cum Praepositis sibi Rectoribus Monasterium divisum nulla harum portio minus quam Trecentos homines haberet qui omnes de labore manuum suarum vivere solebant But concerning Abbots having nothing to do with them nor they with us it being also well known what once they were in this Kingdom and what now they are where the Pope doth exercise his Jurisdiction it may here suffice only to observe That the word Abbates hath anciently had a wide and far different signification from what we now commonly understand thereby for in and among the Laws of King Aethelstan we find the words quatuor Abbates to be taken according to the Glossographist thereon for quatuor hebdomadas That Law directs how and in what manner the Hundred Court shall be held the words are Hoc est judicium qualiter HUNDREDUM teneri debeat In primis ut conveniant semper ad quatuor ABBATES faciat omnis homo Rectum alii which the Glossary calls Locum plane mendosum and by the quatuor Abbates will have quatuor hebdomadas to be understood which is the more probable by what appears in one of the Laws of King Edward Father of the said Aethelstan who began his Reign in An. 901. being the Son of King Alured the words of which Law are Volo ut omnis praepositus habeat GEMOTUM semper ad QUATUOR EBDOMODAS efficiat ut omnis homo rectum habeat omne placitum capiat terminum quando perveniat ad finem By the word Gemotum in that place is meant Conventus Publicus Concilium but chiefly Placitum as appears by the 107th Law
of Canterbury and the Abbot of St. Austins in Canterbury as to whom it may be paid and to what value it may extend The Composition runs thus viz. Noverint universi praesens Scriptum inspecturi vel audituri Quod cum inter Dominum Ed mundum Dei gratia Cantuariensem Archiepiscopum totius Angliae Primatem Magistrum S. de Langeton Archidiaconum Cantuariensem ex una parte â—â—minum Robertum Abbatem Conventum S. Augustini Cantuariae ex altera Controversia diutius mota fuisset super Ecclesia de Chistlet Jurisdictione c. Item pro bono pacis concedunt Abbas Conventus quod Archidiaconus quando Visitationis exercet Officium in Ecclesiis eorum sicut in aliis Ecclesiis Diocesis Cantuariensis recipiat Procurationem consuetam exceptis c. In Capellis vero de Menstre scil Sanct. P. Johannis Laurentii praesentabunt Domino Archiepiscopo idoneos Capellanos perpetuos ad Altaragia ita tamen quod singula Altaragia valeant decem Marcas qui hac portione tantum erunt contenti sub poena amissionis dictae portionis si coram Judice quocunque ex certa scientia plus aliquando petierint praesertim cum Vicarius Matricis Ecclesiae de Menstre c. Whereby it is very evident That these Altarages issued out of the Offerings to the Altar and were anciently payable to the Priesthood as well as Tithes and other Oblations It is most probable that the greatest Annual Revenue by Altars if not by Altarages in any one Church within this Realm was in that of St. Pauls London for it seems when Chanteries were granted to King Henry the Eight whereof there were 47 belonging to St. Pauls as aforesaid there were in the same Church at that time no less than Fourteen several Altars And although they were but Chantery-Priests that Officiated at them and had their Annual Salaries on that account distinct from Altarages in the sense of Oblations aforesaid yet in regard these Annual Profits accrued by their Service at the Altar they may not improperly be termed Pension-Altarages though not Oblation-Altarages Concerning Tithes whether they are eo nomine due and payable now under the Gospel is not to our purpose either to question or determine it will be agreed on all hands that the Law requires the payment thereof and hath stated it within the cognizance of the Ecclesiastical Jurisdiction Historins of good credit and great Antiquity tell us That Aethelwolfe King of the West-Saxons gave the Tenth part of his Kingdom unto God whatever his design was by it whether for the Redemption of his and his Ancestors Souls or otherwise yet it is now above 800 years since he Decimated totum Regni sui Imperium An. 855. Aethelwolphus Rex Decimam totius Regni sui partem ab omni Regali servitio tributo liberavit in sempiterno graphio in Cruce Christi c. uni trino Deo immolavit Simeon Dunelm Hist de Gest Reg. Angl. Likewise Aethelstan who Reigned about 70 years after Aethelwolfe in the first of all his Laws made special provision for the punctual payment of Tithes Ego Adelstanus Rex c. Mando Praepositis meis omnibus in regno meo c. ut in primis reddant de meo proprio Decimas Deo tam in vivente captali quam mortuis frugibus terrae Episcopi mei similiter faciant de suo proprio Aldermanni mei Praepositi mei Et volo ut Episcopi Praepositi hoc judicent omnibus qui eis parere debent c. Recolendum quoque nobis est quam terribiliter in Libris positum est Si Decimam dare nolumus ut auferantur à nobis Novem partes solummodo Decima relinquatur This AEthelstan dying without Issue was succeeded in the Kingdom by his Brother Edmond in the Second of whose Laws we find it thus Enacted in a great Synod conven'd at London where Odo and Wolstan Archbishops were present Decimas Praecipimus omni Christiano super Christianitatem suam dare c. Si quis hoc dare noluerit Excommunicatus sit And in the First of King Edgar's Laws you have these words Reddatur omnis Decimatio ad Matrem Ecclesiam cui Parochia adjacet Also in the Fourth of King Ethelred's Laws it is commanded in these words Praecipimus ut omnis homo c. det rectam Decimam suam sicut in diebus Antecessorum nostrorum fecit quando melius fecit hoc est sicut aratrum peragrabit decimam acram Et omnis Consuetudo reddatur ad Matrem nostram Ecclesiam cui adjacet Et nemo auferat Deo quod ad Deum pertinet Praedecessores nostri concesserunt And in the Ninth of King Alured's Laws Si quis Decimam contra teneat reddat LASHLITE cum DACIS WITAM cum ANGLIS And in the Laws of the Conquerour it is particularly Ordained That de omni annona Decima garba Deo debita est ideo reddenda Si gregem Equarum habuerit pullum reddat decimum qui unam tamen vel duas habuerit de singulis pullis Singulos denarios Similiter qui Vaccas plures habuerit decimum vitulum qui unam vel duas de Vitulis singulis Obolos singulos Et qui Caseum fecerit det Deo decimum si vero non fecerit Lac decima die Similiter decimum Agnum decimum Vellus decimum Caseum decimum Butyrum decimum Porcellum Item de Apibus vero Similiter Commodi Quinetiam de bosco prato aquis de molendinis parcis vivariis piscariis virgultis hortis Negotionibus de omnibus rebus quas dederit Deus decima pars ei reddenda est qui Novem partes simul cum Decem largitur Qui eam detinuerint per Justitiam Episcopi Regis si necesse fuerit ad redditionem arguantur It is on good ground that the Canonists do hold That Tithes Originally and ex sua natura are of Ecclesiastical cognizance beside the Statute of primo R. 2. That pursuit for Tithes ought and of ancient time did pertain to the Spiritual Court notwithstanding what others assert That in their own nature they are a Civil thing and that as Bract. lib. 5. fol. 401. they were annexed to the Spiritualty In the Chapter of Tithes in this ensuing Abridgment you find the Order of Cistercians so called from Cistercium in Burgundy being but refined Benedictines exempted from paying of Tithes so also were the Orders of Templers and Hospitallers otherwise called of St. John's of Jerusalem for anciently the Lands of Abbies did pay Tithes to the Parish-Priest as well as the Lands of Lay-men but in the year 1100 they obtained besides the Appropriations they then had of Pope Paschal the Second at the Council of Mentz that their Lands for the future should be discharged thereof But this Exemption was after limited and restrained by Pope Adrian the Fourth about the year 1150. excepting the Tithes
of new improvements in their own occupation by culture Pasture and Garden-Fruits only the said Three Orders were exempted from the general payment of all Tithes whatever The Templers and Hospitallers were meer Lay-men yet they were exempted as well as the other Yet the Lateran Council in An. 1215. Ordered That this Priviledge should not extend to Covents erected since that Lateran Council nor to Lands since bestowed on the said Orders though their Covents were erected before that Council Insomuch that when the said Cistercians contrary to the Canons of that Council purchased Bulls from the Pope to discharge their Lands from Tithes King H. 4. Null'd such Bulls by the Stat. of 2 H. 4. cap. 4. and reduced their Lands to a Statu quo These Exemptions from payment of Tithes in this or that particular Religious Order was not known in the World when Aethelwolph Son of Egbert whom he succeeded as King of the West-Saxons gave as aforesaid Tithes of all his Kingdom and that freed of all Tributes Taxes and Impositions as appears by his Charter to that purpose having at a Solemn Council held at Winchester subjected the whole Kingdom of England to the payment of Tithes True it is that long before his time many Acts for Tithes may be produced such as the Imperial Edicts Canons of some Councils and Popes beside such Laws as were made by King Ina and Offa yet the said Edicts and Canons were never received in their full power into England by the consent of Prince and People nor were King Ina and Offa though Monarchs of England as it were in their turns such Kings as conveyed their Crowns to the Issue of their Bodies but the said Aethelwolph was Monarcha Natus non factus and although before his time there were Monarchs of the Saxon Heptarchy yet not successive and fixed in a Family but the said King Egbert being the first that so obtained this Monarchy as to leave it by descent unto his Son the said Aethelwolph he thereby had the more indisputable power to oblige all the Kingdom unto an observance of the said Act. In the said Chapter of Tithes there is also mention made of Mortuaries as having some relation of Tithes wherein is shewed what it is when by and to whom and wherefore to be paid By the Stat. of 21 H. 8. they are reduced to another Regulation than what was in the time of King Henry the Sixth A Mortuary was then the Second best Beast whereof the party died possessed but in case he had but two in all then none due It was called a Corse-Present because ever paid by the Executors though not alwaies bequeathed by the dying party All persons possessed of an Estate Children under Tuition and Femes Covert but not Widows excepted were liable to the payment thereof to the Priest of that Parish where the dying party received the Sacrament not where he repaired to Prayers but in case his House at his death stood in two Parishes it was then divided betwixt them both And it was given in lieu of Personal Tithes which the party in his life time had through ignorance or negligence not fully paid Lindw Cons de Consuetud Such of the ancient Lawyers as were unacquainted with this word Mortuarium in the aforesaid sense as we now use it took Mortuarium only pro derelicto in morte say of it That it is Vocabulum novum harbarum but we understand it better where of Custome it is due and payable These Mortuaries where by the Custome they are to be paid were ever in consideration of the omission of Personal Tithes in the parties Life-time which Personal Tithes were by the Canon Law to be paid only of such as did receive the Sacraments and only to that Church where they did receive them as may be inferr'd plainly from cap. Ad Apostolicae de Decimis But observe says Lessius that in many places these Personal Tithes have been quite taken away and in some places they are paid only at the end of a mans Life as among the Venetians which manner of payment seems to have a great resemblance to these Mortuaries and in some places they are paid only ot the end of the year And in like manner many Predial and Mixt Tithes in divers places are also abolish'd which says he is for the most part done by the permission of the Church where men have been observed to pay them with regret and much against their minds nor hath the Church in such cases thought fit to compel them to it on purpose to avoid scandal Lessius de Just jur lib. 2. cap. 39. Dub. 5. nu 27. And in such places where the Custome is to pay a Personal Tithe when any persons shall Hunt Fish or Fowl to make gain or merchandize thereby and it be neglected to be paid whether Restitution or Compensation by way of a Mortuary where Mortuaries are Customable be in that case due by Law is a Question which by Covarruvies may be well held in the Affirmative Although the face of the Church as well as State began to look with a purer though less Sanguine complexion when Queen Elizabeth adorn'd the Crown than when her Sister wore it yet even in Queen Elizabeths time there crept such abuses into the Church that Archbishop Parker found it necessary to have recourse unto the Power given him by the Queens Commission and by a Clause of the Act of Parliament For the uniformity of Common Prayer and Service in the Church c. whereupon by the Queens consent and the Advice of some of the Bishops he sets forth a certain Book of Orders to be diligently observed and executed by all persons whom it might concern wherein it was Provided That no Parson Vicar or Curate of any Church Exempt should from thenceforth attempt to conjoyn by solemnization of Matrimony any not being of his or their Parish-Church without good Testimony of the Banns being ask'd in the several Churches where they dwell or otherwise were sufficiently Licensed Heyl. Hist of Q. Eliz. An. Reg. 3. Banns or Banna that word Bannum is sometimes taken pro Mandato scil Edicto it is a word of divers significations as appears almost by all the Glossographists and Feudists it sounds sometimes like Edictum sometimes like Mandatum or Decretum and sometimes as here like Proclamatio Saxonibus gebann whence there is their gebannian pro Proclamare edicere mandare ut nostratium Bannes pro Nuptiarum foedere Publicato This Publication of Banns was cautiously ordain'd for the prevention of Clandestine Marriages which were prohibited in this Kingdom above 500 years since as a thing contrary in all Ages to the practice of all Nations and Churches where the Gospel was received and therefore at a Council conven'd at Westminster in the year 1175. by Richard Archbishop of Canterbury under the Reign of King H. 2. it was Ordain'd That no person whatsoever should solemnize Marriage in
any clandestine manner and in case any Parson should have a hand therein he was to be suspended ab Officio for the space of Three years Nullus Fidelis cujuscunque Conditionis sit occulte Nuptias faciat sed à Sacerdote publice nubat in Domino Si quis ergo Sacerdos aliquos occulte conjunxisse inventus fuerit triennio ab Officio suspendatur Can. 17. dict Concil It is Recorded by good Historians that Anciently in Ireland they were so far from Publishing these Banns before Marriage that they rejected all Matrimonial Laws whatever insomuch that Polygamy was very common amongst them until the Reign of King H. 2. who sent Nicholaus his Chaplain and Radulphus Archdeacon of Landaff into Ireland where at Cassell they held a great Council under Pope Alexander in which Council Three things were specially Ordain'd the one concerning Baptism to be In the Name of the Father Son c. for till then their Custome was to Dip the Child as soon as it was born three times in Water but if it were a Rich mans Child then in Milk Another concerning Tithes to be duly paid to Ecclesiastical Persons for till then many of them scarce knew whether Tithes ought to be paid or not And the third was concerning Marriage that it should be solemnized jure Ecclesiastico plerique enim says the Historian illorum quot uxores volebant tot habebant There was also a Fourth thing Decreed in that Council and that was concerning Testaments and distributions of the Goods and Chattel of persons deceased Chron. Jo. Bromt. de Temp. H. 2. Within the cognizance of the Episcopal or Ecclesiastical Jurisdiction are also all matters relating to the sin of Adultery the Bishops Jurisdiction herein is very Ancient as appears by the Laws of King Kanute made above 650 years since in Leg. 80. Si quis Sponsam Concubinam simul habuerit non faciat ei ' Presbyter aliquid rectitudinum quae Christiano fieri debent priusquam poeniteat ita emendet sicut Episcopus injunget Such Adultery is a kind of double Fornication according to the definition in the 75th of the same Laws Adulterium est si Sponsus cum vacua fornicetur multo pejus si cum sponsa alterius It was a strange and most cruel punishment that Philip Earl of Flanders in the time of King H. 2. caused to be executed on Walter de Fontibus taken as reported in Adultery with the Countess Isabella who commanded that he should be beaten to death with blows or strokes of Keys tyed up in bundles and being dead his Body to be hung by the Feet on a Fork with the Head downwards in a place prepared for that purpose there to remain ignominiously exposed to the view of all Spectators Radulph de Diceto Imag. Hist. The punishment of an Adulteress according to the foresaid Laws of King Kanute was much more favourable for by the 78th of those Laws she was to lose but her Nose and her Ears Si Mulier vivente Marito suo faciat Adulterium manifestetur c. ipsa perdat Nasum Aures But the Emperour Aurelian is said to have punished it in one of his Souldiers for committing it with his Hostess in a way of Cruelty little inferiour to that practised by the said Earl of Flanders for he commanded the heads of two Trees growing nigh together to be bowed down the Souldiers Legs to be fast tied thereunto then to be suddenly let go whereby he was torn in two parts the one hanging on the one Tree the other on the other and so to remain as a terrifying Spectacle to his Army Buc. Chron. Notwithstanding what was first abovesaid in reference to what Jurisdiction the cognizance hereof did anciently belong in the daies of King Kanute viz. That the Offender should make such satisfaction as the Bishops should enjoyn yet it is evident that after this viz. in the Conquerors time Fornication and Adultery were punishable in the Kings Temporal Court and the Leets especially by the name of Lecherwite and the Fines of Offenders assessed to the King though now it meerly belongs to the Church a President whereof we have in the Church of Corinth which by St. Pauls Command proceeded against the Incestuous person but as to a Rape there being force and violence in the case the Temporal Court and Common Law were there no Statute in the case hath the best Right to the trial and punishment thereof By the Conqueror's Laws the punishment of Adultery was only pecuniary Leg. 14. Qui Desponsatam alteri vitiaverit forisfaciat Weram suam Domino suo Yet in some cases it was Capital according to the said Conquerors Laws as in Leg. 37. Si Pater deprehenderit filiam in Adulterio in domo sua seu in domo generi sui bene licebit ei Oure lege for san Occire Occidere Adulterum Lambert de Priscis Angl. Legibus Forasmuch as Bastards and matters of Bastardy are within the cognizance of the Ecclesiastical Jurisdiction some notice is taken thereof in the next place of this Abridgment By Bastard we commonly understand prolem ex illicito concubitu procreatam The most Famous of this kind that we meet with in History and that concerns us was William the Conquerour of whom Simeon Monachus Dunelmensis in his History says That An. 1035. Obiit Robertus Dux Normandorum cui successit Willielmus Bastard filius ejus in puerili aetate Of whom also Radulphus de Diceto in suis Abbreviationibus Chronicorum on the year 1036. says That Obiit ROBERTUS Dux NORMANNIAE Frater Tertii RICHARDI ab JEROSOLIMIS rediens apud NICEAM Civitatem Cui successit WILLIELMUS BASTARD filius ejus in puerili aetate qui ANGLIAM postea conquisivit pater WILLIELMI Regis RUFI HENRICI It is frequent in History to find William the Conqueror Sirnam'd the Bastard nor did himself in the least disdain to style himself by that Addition for in his Epistle to Alanus Earl of Britannia Minor we find him thus styling himself Ego Willielmus cognomento Bastardus And no wonder says the Glossographer on the said Historians when the Title or Name of Bastard in those days was used by some as a mark of Honour the which he is the rather induced to believe for that vocis derivationem Kilianam amplectens scil a best-aerd that is optima indoles sive natura there is no cause of being ashamed thereof Illegitimo enim says he furtivo concubitu procreati animo plerunque sunt alacri elato ingenio sagaci judicio exacto hanc inquam vocis originationem potius probarem cum in caeteris nulla sit gloriandi causa By the Canon Law a Bastard is prohibited from taking Orders as also from having an Ecclesiastical Benefice c. 1. per tot De filiis Presbyt The said Prohibition is grounded by that Law on Deut. 23. Non i◠gredietur Manzer hoc est de
West-Saxons in the borders of Worcester and Herefordshire under an Oak thereby tacitly reproving the Idolatry of the Pagan Britains who acted their Superstitions under an Oak as the Learned Sr. H. Spelman observes In the Tenth Century King Edward the Elder Son of King Alfred called a Synod at Intingford where he confirmed the same Ecclesiastical Constitutions which King Alured had made before Many Councils were Conven'd during the Reign of King Athelstan as at Exiter Feversham Thunderfield London and at Great Lea which last is of most account in regard of the Laws therein made specially that concerning the payment of Tithes the which you may peruse in the Learned Sr. H. Spelm. Concil p. 405. During the Reign of King Edgar Hoel Dha held a National Council for all Wales at Tyquin which was wholly in favour of the Clergy this Council was held when Dunst in was Archbishop of Canterbury in whose time there were Two other Councils conven'd the one at Cartlage in Cambridgshire the other at Caln in Wiltshire After this William the Conqueror conven'd a Council of his Bishops at Winchester wherein himself was personally present with two Cardinals sent from Rome in this Council Stigand Archbishop of Canterbury was deposed and Lâ—â—frank a Lombard substituted in his room During the Reign of King Henry the First Anselm Archbishop of Canterbury summoned a Council at Westminster which Excommunicated all Married Priests half the Clergy at that time being Married or the Sons of Married Priests During the Reign of King Stephen Albericus Bishop of Hostia sent by Pope Innocent into England conven'd a Synod at Westminster wherein it was concluded That no Priest c. should have a Wife or a Woman in his house on pain of being sent to Hell Also that their Transubstantiated God should dwell but Eight days in the Box for fear of being Worm-eaten or moulded Under the Reign of King Henry the Second who disclaimed the Popes authority refused to pay Peter-pence and interdicted all Appeals to Rome a Synod was called at Westminster wherein was a great Contest between the two Archbishops of Canterbury and York for Precedency York appeals to Rome the Pope interposes and to end old Divisions makes a new distinction entituling York Primate of England and Canterbury Primate of all England Under the Reign of King Henry the Third a Council was held at Oxford under Stephen Langton Archbishop of Canterbury wherein many Constitutions were made as against Excess of demands for Procurations in Visitations against Pluralities Non-Residence and other abuses of the Clergy In the Ninth year of King Edward the First John Peckham Archbishop of Canterbury held a Council at Lambeth with his Suffragans some account whereof Walsingham gives us in these words viz. Frater Johannes Peckham Cantuariensis Archiepiscopus ne nihil fecisse videretur convocat Concilium apud Lambeth in quo non Evangelii Regni Dei praedicationem imposuit sed Constitutiones Othonis Ottobonis quondam Legatorum in Anglia innovans jussit eas ab omnibus servari c. Walsing in Ed. 1. He then made Sixteen Ecclesiastical Laws which are inserted among the Provincial Constitutions After this he summoned another Council of his Clergy at Reading wherein he propounded the drawing of all Causes concerning Advowsons to the Ecclesiastical Courts and to cut off all Prohibitions from the Temporal Courts in Personal Causes but upon the Kings express Command to desist from it this Council was dissolved Parker de Antiq. Eccles Anglic. fo 205. An 1290. During the Reign of King Henry the Fourth Thomas Arundel Archbishop of Canterbury conven'd a Synod at St. Pauls Church Lond. wherein the King joyned with them in punishing all Opposers of the Religion received Trussel de vita H. 4. Under King Henry the Fifth an Universal Synod of all the Bishops and Clergy was called at London where it was determined That the day of St. George and also of St. Dunstan should be a double Feast in holy Church In the same Kings Reign was a Convocation held at London conven'd by Henry Chichley Archbishop of Canterbury wherein were severe Constitutions made against the Lollards In the Reign of King Henry the Seventh a Synod was held at London by John Morton Archbishop of Canterbury to redress the Excess of the London Clergy in Apparel and frequenting of Taverns We had almost omitted the Synod in England An. 1391. under the Reign of King Richard the Second Simon Sudbury then Archbishop of Canterbury in which Synod it was Ordain'd That whosoever Appealed to Rome besides Excommunication should lose all his Goods and be Imprisoned during his Life vid. Hist of the Church of Great Britain p. 117. A Modern and Ingenious yet unfortunate Author well observes a Fourfold difference or distinction of Synods or Convocations in this Realm in reference to the several manners of their Meeting and degrees of their Power The First he states in point of Time before the Conquest The Second since the Conquest and before the Statute of Praemunire The Third after that Statute but before another made in the Reign of King H. 8. The Fourth after the 25th of the said King 1 Before the Conquest the Popes power prevailed not over the Kings of England who were then ever present Personally or Virtually at all Councils wherein matters both of Church and State were debated and concluded Communi consensu tam Cleri quam Populi Episcoporum Procerum Comitum nec non omnium Sapientum Seniorum populorumque totius Regni 2 After the Conquest but before the Statute of Praemunire the Archbishops used upon all emergent Cases toties quoties at their own discretions to assemble the Clergy of their respective Provinces where they pleased continuing and dissolving them at their pleasure which they then did without any leave from the King whose Canons and Constitutions without any further Ratifification were in that Age obligatory to all subjected to their Jurisdiction Such it seems were all the Synods from Lanfranck to Thomas Arundel Archbishop of Canterbury in which Arundels time the Statute of Praemunire was Enacted 3 After which Statute which much restrained the Papal power and subjected it to the Laws of the Land the Archbishops called no more Convocations by their sole and absolute Command but at the pleasure of the King by whose Writ and Precept only they were now and henceforth Summoned Of this Third sort of Convocations were all those kept by and from Thomas Arundel unto Thomas Cranmer or from the 16th of R. 2. unto the 25th of King H. 8. These Convocations also did make Canons as in Lindwoods Constitutions which were Obligatory although confirmed by no other Authority than what was meerly Synodical 4 The last sort of Convocations since the said Statute called the 25th of King H. 8. That none of the Clergy should presume to attempt alledge claim or put in ure any Constitutions or Ordinances Provincial or Synodals or any â—â—her Canons Constitutions or Ordinances Provincial by
whatsoever Name or Names they may be called in their Convocation in time coming which alwaies shall be assembled by the Kings Writ unless the same Clergy may have the Kings most Royal assent and License to make promise and execute such Canons Constitutions and Ordinances Provincial or Synodical upon pain of every one of the said Clergy doing the contrary to this Act and thereof convicted to suffer Imprisonment and making Fine at the Kings will Since this year from Archbishop Cranmer to this day all Convocations are to have the Kings leave to debate on matters of Religion and their Canons besides his Royal assent an Act of Parliament for their Confirmation And as to the General Councils there are not any of them of use in England except the first Four General Councils which are established into a Law by King and Parliament The Learned Bishop Prideaux in his Synopsis of Councils gives us the definition of Synodographie and says It is such a Methodical Synopsis of Councils and other Ecclesiastical Meetings as whereby there may be a clear discovery to him that doubts how any Case may be enquired after and what may be determined concerning the same And then immediately after gives us the definition of a Council which he calls a Free Publick Ecclesiastical Meeting especially of Bishops as also of other Doctors lawfully deputed by divers Churches for the examining of Ecclesiastical Causes according to the Scriptures and those according to the power given by Common Suffrages without favour of parties to be determined in matters of Faith by Canons in cases of Practice by Presidents in matters of Discipline by Decrees and Constitutions Of these Councils he observes some to have been Judaical others Apostolical others Oecumenical some Controverted others Rejected and some National to all which he likewise adds Conferences 1 Under the Title of Judaical Councils he comprehends the more solemn Meetings about extraordinary affairs for the Confirming Removing or Reforming any thing as the matter required Such he observes to have been at Sichem under Josuah and Eleazer Josh 24. At Jerusalem the first under David Gad and Nathan being his Assistants 1 Chro. 13. At Carmelita under Ahab and Elias 1 King 18. At Jerusalem the Second under Hezekiah 2. Chro. 29. At Jerusalem the Third under Josiah and Hilkiah 2 Kin. 33. 2 Chro. 34. At Jerusalem the Fourth under Zorobabel and Ezra and the Chief of the Jews that return'd from the Captivity of Babylon And lastly that which is called the Synod of the Wise under John Hircanus Genebrand Chron. l. 2 p. 197. 2 The Apostolical Councils he observes to have been for the substituting of Matthias in the place of Judas Act. 1. For the Election of Seven Deacons Act. 6. For not pressing the Ceremonial Law Act. 15. 11. For the toleration of some Legal Ceremonies for a time to gain the Weak by such condescension Matth. 21. 18. For composing the Apostles Creed For obtruding to the Church 85 Canons under the notion of the Apostles authority concerning which there are many Controversies Lastly for the Meeting at Antioch where among Nine Canons the Eighth commanded Images of Christ to be substituted in the room of Heathenish Idols the other pious Canons being destitute of the Synods authority vid. Bin. Tom. 1. p. 19. Longum p. 147. 3 Of Oecumenical or General Councils some were Greek or Eastern others were Latin or Western The more Famous of the Oecumenical Greek Councils were the Nicene the first of Constantinople the first of Ephesus the first of Chalcedon Of Constantinople the second of Constantinople the third The Nicene the second The more Famous of the Oecumenical Latin Councils were at Ariminum the Lateran at Lions at Vienna the Florentine the Lateran the fifth and lastly at Trent 4 Of Controverted Councils if that distinction be admissable according to the Classis thereof digested by Bellarmine the Computation is at Constantinople the fourth at Sardis at Smyrna at Quinisext at Francfort at Constance and at Basil 5 Of Rejected Councils whereby are intended such as either determine Heretical Opinions or raise Schisms the Computation is at Antioch at Milain at Seleucia at Ephesus the second at Constantinople at Pisa the first and at Pisa the second 6 Of National Synods which comprehend the Provincials of every Metropolitan or Diocesan Bishop the distribution is into Italian Spanish French German Eastern African Britain 7 To these may be added Ecclesiastical Conferences which were only certain Meetings of some Divines wherein nothing could be Canonically determined and therefore needless to be here particularly inserted vid. B. Prideaux Synops of Counc vers fin The grand Censure of the Church whereby it punisheth obstinate Offenders is by way of Excommunication which though the Canonists call Traditio Diabolo or giving the Devil as it were Livery and Seizin of the Excommunicate person yet the Romanists have a Tradition that St. Bernard Excommunicated the Devil himself Sanctus Bernardus plenus virtutibus quadam die praesentibus Episcopis clero populo Excommunicavit quendam Diabolum Incubum qui quandam mulierem in Britannia per septeunium vexabat sic Liberata est ab eo Chron. Jo. Bromton de Temp. H. 1. A miraculous Excommunication and a Sovereign Remedy against Diabolical incubations The Excommunication which St. Oswald pronounced against one who would not be perswaded to be reconciled to his Adversary had nothing so good though a more strange effect for that Excommunicated him out of his Wits and had it not been for Wolstan who as miraculously cur'd him you might have found him if not in Purgatory then in Bedlam at this day Illi cujus es says Sanctus Oswaldus Te commendo carnem Sathanae tuam trado Statim ille dentibus stridere spumas jacere caput rotare incipit Qui tamen à Wolstano sanatus cum Pacem adhuc recusaret iterum tertio est arreptus simili modo quousque ex corde injuriam remitteret offensam If you have not faith enough to believe this on the Credit of Abbot Brompton who Chronicled from the year 588 in which St. Austin came into England to the death of King Richard the First which was in the year 1198. if you have not I say faith enough for the premisses you are not like to be supplied with any on this side Rome unless you have it from Henry de Knighton Canon of Leyster who wrote the Chronicle De Eventibus Angliae from King Edgars time to the death of King Richard the Second for he in his Second Book de Temp. W. 2. doth put it under his infallible pen for an undeniable Truth And indeed is much more probable than what the said Abbot reports touching St. Austins raising to life the Priest at Cumpton in Oxfordshire 150 years after his death to absolve a penitent Excommunicate that at the same time rose also out of his grave and walked out of the Church at St. Austins command That no
Excommunicate person should be present whilst he was at Mass having in his life-time been Excommunicated by the said Priest for refusing to pay his Tithes vid. Cron. dict Bromton de Regn. Cantiae Excommunication is of such a large extent that this World is too narrow to contain it therefore it extends it self to the next World also and that not only in reference to the Soul but also to the Body insomuch that the interr'd Bodies of persons dying under Excommunication have often been inhumanely exhumated and taken out of their Parochial graves to associate with the rotten Carkases of bruit Beasts a President whereof you have in King Edward the Thirds time when the Pope by his Bull to the Bishop of Lincoln commanded That the Bodies of all such Excommunicates as in their Life-time had adhered to the Lady Wake in the Contest between her and the Bishop of Ely touching a Mannor should be taken out of their Graves and cast out of the Church-yard This is much worse than to be denied the honour of a Christian burial which by the Council at Rome An. 1180. was the punishment of such Lay-persons as transferr'd the right of Tithes to other Laicks without delivering them to the Church yet by the Sixth Canon of that Council it is Ordain'd That no man shall be Excommunicated or suspended from his Office until he be legally and duly summoned to appear and answer for himself except in such cases as deserve summary Excommunication It was a strange Excommunication as to the new and insolent Form thereof wherewith Pope Theodorus Excommunicated Pyrrhus Patriarch of Constantinople who having been infected with the Heresie of the Monothelites and thereupon Excommunicated and upon his Recantation absolved relapsed into the same Error whereupon the said Theodorus Excommunicated him the second time but in such a way and manner as never had a former President or second Practice For he infused some drops of consecrated Cup into Ink and therewith writ a Sentence of Anathema against Pyrrhus Hist Mag. Cent. 7. cap. 39. Whether the Dead may be Excommunicated was the first Question moved in the Fifth General Council at Constantinople An. 551. under the Emperour Justinian To which Eutychius answered That as Josiah opened the Sepulchres of the Dead and burnt their Bones So the Memorials of such might be accursed after their death who had injured the Church in their life for which pertinent Answer the said Emperour made him Bishop of Constantinople so that he succeeded Menas who about the same time had departed this life suddenly sitting the Council That worthy Prelate who affirmed That it was certainly unlawful to Excommunicate any man for not paying the Fees of Courts is scarce so generally credited in his Law as he may deserve to be in his Doctrines especially when his Reason for that Assertion viz. That a Contumacy there speaking of Courts Ecclesiastical is an Offence against the Civil Power is duly weighed and considered and more especially when such Fees are not paid notwithstanding the Orders and Decrees of such Courts for the payment thereof Contempts of which kind might pass wholly unpunished if Ecclesiastical Censures should not take place in such cases Many are the Prejudices which ensue upon Excommunication some whereof in case of obstinate persistency reach us as Men as well as Christians and seem as it were to unman us as well as unchristian us extending per brachium Seculare as well to our Civil Liberty as per censuram Ecclesiasticam to our Christian having a dreadful influence both on Body and Soul and that in both worlds Rebussus enumerates no less than above Threescore of these penalties for so he calls them Poenae contra Excommunicatos Rebuff de Excom non vitand Such persons as are extra Communionem Ecclesiae or Excommunicates with us were apud Hebraeos anciently called Aposynagogi as cast out of the Synagogue and for their Contumacy Extorres to be shunn'd of all men until they repented Old Such as are Anathematiz'd and under the greater Excommunication are as it were expell'd out of all Humane Society and banish'd from Mankind understand it of those within the Church such an Anathema may be somewhat compared to that Punishment which the Romans of old called Interdictio ignis aquae borrowed from the Graecians which their great Legislator Draco enacted as a Law to the Athenians and which Punishment in truth was second to none save that which is Capital Towards the close of this Ecclesiastical Abridgment you have some mention made of the Statute of Circumspecte Agatis In the Thirteenth year of the Reign of King Edward the First An. 1285. the Bounds and Limits of both Jurisdictions Spiritual and Temporal were fix'd by Parliament by a Statute under that Title the English whereof translated from the Latin out of the Records runs thus viz. The King to his Judges sendeth Greeting Vse your selves circumspectly in all matters concerning the Bishop of Norwich and his Clergy not punishing them if they hold Plea in Court Christian of such things as be meerly Spiritual viz. of penance enjoyned for deadly Sin as Fornication Adultery and such like for the which many times corporal penance or pecuniary is enjoyned specially if a Freeman be convict of such things Also if Prelates do punish for leaving Church-yards unclosed or for that the Church is uncovered or not conveniently decked in which cases none other penance can be enjoyned but pecuniary Item If a Parson demand of his Parishioners Oblations and Tithes due and accustomed or if any person plead against another for Tithes more or less so that the Fourth part of the value of the Benefice be not demanded Item If a Parson demand Mortuaries in places where a Mortuary hath used to have been given Item If a Prelate of a Church or if a Patron demand a ` Pension due to themselves all such demands are to be made in a Spiritual Court And for laying violent hands on a Priest and in case of Defamation it hath been granted already that it shall be tried in a Spiritual Court when money is not demanded but a thing done for punishment of Sin and likewise for breaking an Oath In all cases afore rehearsed the Spiritual Judge shall have power to take knowledge notwithstanding the Kings Prohibition vid. Lindw Constit lib. 2. Tit. De Foro-Competenti Vid. Full. Chur. Hist. lib. 3. p. 79. Now whereas some doubt hath heretofore been whether this were indeed an Act of Parliament or any thing more than a Constitution made by the Prelates themselves or only a meer Writ issued out from the King to his Judges Sr. Ed. Coke Instit. par 2. pag. 487. resolves it in express terms thus viz. Though some have said that this was no Statute but made by the Prelates themselves yet that this is an Act of Parliament it is proved not only by our Books but also by an Act of Parliament By this Statute of Circumspecte Agatis the
Provisions Appeals to Rome holding Plea of Spiritual things thence arising Excommunications by his Bulls and the like were no other than Usurpations and Encroachments on the Dignity and Prerogative Royal. 14. In the Reign of King H. 8. An. 1539. the Abbots of Colchester Reading and Glastenbury were condemned and executed under colour so the Author expresses it of denying the Kings Supremacy and their rich Abbies seized on as Confiscations to the use of the King But when the Act of Supremacy came to be debated in the time of Queen Elizabeth it seemed a thing strange in Nature and Polity That a Woman should be declared to be the Supream Head on Earth of the Church of England but the Reformed party not so much contending about Words and Phrases as aiming to oust the Pope of all Authority within these Dominions fixed the Supream power over all Persons and Estates of what rank soever in the Crown Imperial not by the Name of Supream Head but tantamount of the Supream Governess In Queen Mary 's time there was an Act of Parliament made declaring That the Regal power was in the Queens Majesty as fully as it had been in any of her Predecessors In the body whereof it is expressed and declared That the Law of the Realm is and ever hath been and ought to be understood That the Kingly or Regal Office of the Realm and alâ— Dignities Prerogatives Royal Power Preheminences Priviledges Authorities and Jurisdictions thereunto annexed united or belonging being invested either in Male or Female are be and ought to be as fully wholly absolutely and entirely deemed adjudged accepted invested and taken in the one as in the other So that whatsoever Statute or Law doth limit or appoint that the King of this Realm may or shall have execute and do any thing as King c. the same the Queen being Supream Governess Possessor and Inheritor to the Imperial Crown of this Realm may by the same power have and execute to alâ— intents constructions and purposes without doubt ambiguity question or scruple any Custome use or any other thing to the contrary notwithstanding By the tenor of which Act made in Queen Mary 's Reign is granted to Queen Elizabeth as much Authority in all the Church-Concernments as had been eâ—ercised and enjoyed by King H. 8. and King Ed. 6. according to any Act or Acts of Parliament in their several times Which Acts of Parliament as our learned Lawyers on these occasions have declared were not to be considered as Introductory of a new power which was not in the Crown before but only Declaratory of an old which naturally belonged to all Christian Princes and amongst others to the Kings and Queens of the Realm of England And whereas some Seditious persons had dispersed a rumour that by the Act for recognizing the Queens Supremacy there was something further ascribed unto the Queen her Heirs and Successors viz. a power of administring Divine Service in the Church which neither by any equity or true sense of the words could from thence be gathered she thereupon makes a Declaration to all her Subjects That nothing was or could be meant or intended by the said Act than was acknowledged to be due to King H. 8. and King Ed. 6. And further declared That she neither doth nor will challenge any other Authority by the same than was challenged and lately used by the said Two Kings and was of Ancient time due unto the Imperial Crown of this Realm that is under God to have the Sovereignty and Rule over all persons born within her Realms and Dominions of what estate either Ecclesiastical or Temporal soever they be so as no other Forreign Power shall or ought to have any Superiority over them Which Declaration published in the Queens Injunctions An. 1559. not giving that general satisfaction to that groundless Cavil as was expected and intended the Bishops and Clergy in their Convocation of the year 1562. by the Queens Authority and Consent declared more plainly viz. That they gave not to their Princess by vertue of the said Act or otherwise either the ministring of Gods Word or Sacraments but that only Prerogative which they saw to have been given always to all godly Princes in holy Scripture by God himself that is to say that they should Rule all Estates and Degrees committed to their charge by God whether they be Ecclesiastical or Temporal and restrain with the Civil Sword the stubborn and evil doers And lastly to conclude this tender point There is in the said Act for the better exercising and enjoying of the Jurisdiction thus recognized to the Crown an Oath as aforesaid for the acknowledgment and defence of this Supremacy not only in the Queen but also her Heirs and Successors Likewise a power given to the Queen her Heirs and Successors by Letters Patents under the Great Seal of England To Assign and Authorize c. as she and they shall think fit such Persons being natural born Subjects to exercise use and occupy under her and them all manner of Jurisdictions Priviledges and Preheminencies in any wise touching or concerning any Spiritual or Ecclesiastical Jurisdiction within the Realms of England and Ireland or any other her Highness Dominions or Countries and to visit reform repress order correct and amend all such Errors Heresies Schisms Abuses Offences Contempts and Enormities whatsoever which by any manner of Spiritual or Ecclesiastical Power Authority or Jurisdiction or can or may lawfully be reformed ordered redressed corrected restrained or amended to the pleasure of Almighty God c. This was the Foundation of the High-Commission Court and from hence issued that Commission by which the Queens Ministers proceeded in their Visitation in the First year of her Majesties Reign CHAP. II. Of Archbishops 1. A Description of that Dignity here in England the Antiquity Precedency Priviledges and Style of the Archbishop of Canterbury with the Precincts of that See 2. The Antiquity Precedency and Style of the Archbishop of York with the Precincts of that See 3. What difference between Archbishop and Metropolitan and why called Metropolitan 4. Three Archbishops in England and Wales Anciently 5. The vicissitudes of the Christian Religion Anciently in this Island of Great Britain 6. How the Third Archbishop came to be lost 7. The great Antiquity of an Archbishop in London 8. The Original of the Style Primate and Metropolitan 9. What the difference Anciently between the Two Archbishopricks of Canterbury and York certain Priviledges of the latter 10. Whether an Archbishop may call Cases to his own cognizance nolente Ordinario 11. In what Case the Clerk is to be Instituted by the Archbishop where the Inferiour Ordinary hath right to Collate Also his power of Dispensations 12. A Case at Common Law relating to the Archbish Jurisdiction 13. Certain special Priviledges of the Archbishop of Canterbury 1. ARCHBISHOP ab Archos Princeps Episcopus Superintendens is that Spiritual person
which in the days of King Lucius was an Archbishoprick as aforesaid till St. Augustine in the year 598 took on him the Title of Archbishop of England setling his See at Canterbury 8. Upon the abrogating of the Popes power in England by King H. 8. in the Seventh year of his Reign it was concluded that the Archbishop of Canterbury should no more be styled the Popes Legate but Primate and Metropolitan of all England at which time Tho. Cranmer Fellow of Jesus-Colledge in Cambridge who pronounced the Divorce from Queen Katharine of Spain upon his advice given the King to leave the Court of Rome and to require the Opinions of Learned Divines being then in Germany procured such favour with the King that he caused him to be elected to this See of Canterbury and was afterwards with the then Bishop of Duresme made Tutor to King Edward the Sixth 9. The Archbishop of Canterbury was supposed to have had a concurrent Jurisdiction in the inferiour Diocesses within his Province which is not denied in the case of Dr. James only it is there said That was not as he was Archbishop but as he was Legatus Natus to the Pope as indeed so hâ— was before the tâ—me of King H. 8. as aforesaid by whom that Power together with the Pope was abrogated and so it ceased which the Archbishop of York never had nor ever claimed as appears in the forecited Case where it is further said That when there is a Controversie between the Archbishop and a Bishop touching Jurisdiction or between other Spiritual Persons the King is the indifferent Arbitrator in all Jurisdictions as well Spiritual as Temporal and that is a right of his Crown to distribute to them that is to declare their Bounds Consonant to that which is asserted in a Case of Commendam in Colt and Glovers Case against the Bishop of Coventry and Lichâ—ield where it is declared by the Lord Hobart Chief Justice That the King hath an immediate personal originary inherent Power which he executes or may execute Authoritate Regia Suprema Ecclesiastica as King and Sovereign Governour of the Church of England which is one of those Flowers qui faciunt Coronam which makes the Royal Crown and Diadem in force and vertue The Archbishop of Canterbury as he is Primate over All England and Metropolitan hath a Supereminency and some power even over the Archbishop of York hath under the King power to summon him to a National Synod and Archiepiscopus Eboracensis venire debet cum Episcopis suis ad nutum ejusâ— ut ejus Canonicis dispositionibus Obediens existat Yet the Archbishop of York had anciently not only divers Bishopricks in the North of England under his Province but for a long time all the Bishopricks of Scotland until little more than 200 years since and until Pope Sixtus the Fourth An. 1470. created the Bishop of St. Andrews Archbishop and Metropolitan of all Scotland He was also Legatus Natus and had the Legantine Office and Authority annexed to that Archbishoprick he hath the Honour to Crown the Queen and to be her perpetual Chaplain Of the forementioned Diocesses of his Province the Bishop of Durham hath a peculiar Jurisdiction and in many things is wholly exempt from the Jurisdiction of the Archbishop of York who hath notwithstanding divers Priviledges within his Province which the Archbishop of Canterbury hath within his own Province 10. The Archbishop is the Ordinary of the whole Province yet it is clear That by the Canon Law he may not as Metropolitan exercise his Jurisdiction over the Subjects of his Suffragan Bishops but in certain Cases specially allowed in the Law whereof Hostiensis enumerates one and twenty The Jurisdiction of the Archbishop is opened sometimes by himself nolente Ordinario as in the Case of his Visitation and sometimes by the party in default of Justice in the Ordinary as by Appeal or Nullities Again it may sometimes be opened by the Ordinary himself without the party or Archbishop as where the Ordinary sends the Cause to the Archbishop for although the Canon Law restrains the Archbishop to call Causes from the Ordinary Nolente Ordinario save in the said 21 Cases yet the Law left it in the absolute power of the Ordinary to send the Cause to the Archbishop absolutely at his will without assigning any special reason and the Ordinary may consult with the Archbishop at his pleasure without limitation Notwithstanding which and albeit the Archbishop be Judge of the whole Province tamen Jurisdictio sua est signata non aperitur nisi ex causis Nor is the Subject hereby to be put to any such trouble as is a Grievance and therefore the Law provides that Neminem oportet exire de Provincia ad Provinciam vel de Civitate ad Civitatem nisi ad Relationem Judicis ita ut Actor forum Rei sequatur 11. If the Archbishop visit his Inferiour Bishop and Inhibit him during the Visitation if the Bishop hath a title to Collate to a Benefice within his Diocess by reason of Lapse yet he cannot Institute his Clerk but he ought to be presented to the Archbishop and he is to Institute him by reason that during the Inhibition his power of Jurisdiction is suspended It was a point on a special Verdict in the County of Lincoln and the Civilians who argued thereon seemed to agree therein but the Case was argued upon another point and that was not resolved Likewise by the Statute of 25 H. 8. c. 21. the Archbishop of Canterbury hath power to give Faculties and Dispensations whereby he can as to Plurality sufficiently now Dispense de jure as Anciently the Pope did in this Realm de facto before the making of that Statute whereby it is enacted That all Licenses and Dispensations not repugnant to the Law of God which heretofore were sued for in the Court of Rome should be hereafter granted by the Archbishop of Canterbury and his Successors 12. By the Constitutions and Canons Ecclesiastical Edit 1603. Can. 94. It is Ordained That no Dean of the Arches nor Official of the Archbishops Consistory shall originally Cite or Summon any person which dwelleth not within the particular Diocess or Peculiar of the said Archbishop c. without the License of the Diocesan first had and obtained in that behalf other than in such particular Cases only as are expresly excepted and reserved in and by the Statute of 23 H. 8. c. 9. on pain of suspension for three months In the Case of Lynche against Porter for a Prohibition upon the said Statute of 23 H. 8. c. 9. it was declared by the Civilians in Court That they used to Cite any Inhabitant of and in London to appear and make Answer in the Archbishop of Canterbury's high Court of Arches originally And Dr. Martyn said It had been so used for the space of 427 years before the making of the Statute and upon
complaint thereof made to the Pope the Answer was That any man might be Cited to the Arches out of any Diocess in England Also That the Archbishop may hold his Consistory in any Diocess within his Jurisdiction and Province That the Archbishop hath concurrent Jurisdiction in the Diocess of every Bishop as well as the Archdeacon and That the Archbishop of Canterbury prescribes to hold Plea of all persons in England But as to his power of having a Consistory in the Diocess of every Bishop this was in this Case denied but only where he was the Popes Legate whereof there were Three sorts 1. Legates à Latere and these were Cardinals which were sent à Latere from the Pope 2. A Legate born and these were the Archbishops of Canterbury York and Mentz c. 3. A Legate given and these have Authority by special Commission from the Pope Likewise in the Case of Jones against Boyer C. B it was also said by Dr. Martyn That the Archbishop hath Ordinary Jurisdiction in all the Diocesses of his Province and that this is the cause that he may Visit 13. The Archbishop of Canterbury Anciently had Primacy as well over all Ireland as England from whom the Irish Bishops received their Consecration for Ireland had no other Archbishop until the year 1152. For which reason it was declared in the time of the Two first Norman Kings That Canterbury was the Metropolitan Church of England Scotland and Ireland and the Isles adjacent the Archbishop of Canterbury was therefore sometimes styled a Patriarch and Orbis Britannici Pontifex insomuch that Matters recorded in Ecclesiastical Affairs did run thus viz. Anno Pontificatus Nostri primo secundo c. He was also Legatus Natus that is he had a perpetual Legantine power annext to his Archbishoprick nigh a thousand years since And at General Councils he had the Precedency of all other Archbishops abroad and at home he had some special Marks of Royalty as to be the Patron of a Bishoprick as he was of Rochester to coyn Mony to make Knights and to have the Wardships of all those who held Lands of him Jure Hominii although they held in Capite other â—ands of the King as was formerly hinted He is said to be Inthroned when he is invested in the Archbishoprick And by the Stat. of 25 H 8. he hath power to grant Licenses and Dispensations in all Cases heretofore sued for in the Court of Rome not repugnant to the Law of God or the Kings Prerogative As also to allow a Clerk to hold a Benefice in Commendam or in Trust to allow a Clerk rightly qualified to hold Two Benefices with Cure of Souls to allow a Beneficed Clerk for some certain causes to be non-Resident for some time and to Dispense in several other Cases prohibited by the Letters of the Canon Law Likewise the Archbishop of Canterbury Consecrates other Bishops confirms the Election of Bishops within his Province calls Provincial Synods according to the Kings Writ to him ever directed is chief Moderator in the Synods and Convocations he Viâ—its the whole Province appoints a Guardian of the Spiritualties during the vacancy of any Bishoprick within his Province whereby all the Episcopal Ecclesiastical Rights of that Diocess for that time belong to him all Ecclesiastical Jurisdictions as Visitations Institutions c. He may retain and qualifie Eight Chaplains which is more by Two than any Duke is allowed by Statute to do and hath power to hold divers Courts of Judicature for the decision of Controversies pertaining to Ecclesiastical Cognizance CHAP. III. Of Bishops and Ordinaries 1. Bishop Why so called Not above One to be in one Diocess 2. Why called Ordinary and what the Pallium Episcopale is 3. Bishopricks originally Donative Kings of England the Founders thereof 4. The manner of Election of Bishops their Confirmation and Consecration 5. Their Seals of Office in what cases they may use their own Seals 6. What follows upon Election to make them Bishops compleat the grant of their Temporalties 7. The Conge d'eslire and what follows thereupon 8. Bishopricks were Donative till the time of King John 9. What the Interest and Authority is in his several capacities 10. Episcopal Authority derived from the Crown 11. The Vse and Office of Suffragan Bishops 12. Whether a Bishop may give Institution out of his own proper Diocess and under other Seal than his own Seal of Office 13. Several things incident to a Bishop qua talis 14. Ordinary what properly he is and why so called 15. In what cases the Ordinaries Jurisdiction is not meerly Local 16. The Ordinaries power de jure Patronatûs 17. Whether the Ordinary may cite a man out of his own Diocess Also his Right ad Synodalia 18. The Ordinaries power of Visitation 19. The Dignity and true Precedency of the Bishops in England 20. Temporal Jurisdiction anciently exercised by Bishops in this Realm the Statute of 17 Car. 1. against it Repealed and they Restored to it by the Stat. of 13 Car. 2. as formerly 21. The Act made in the Reign of Ed. 6. concerning the Election of Bishops the Endeavours thereby to take away Episcopal Jurisdiction the Nomination of all Bishops was Anciently Sole in the King 22. The Bishops of London are Deans of the Episcopal Colledge 23. A Case at Common Law touching a Lease made by one Bishop during the life of another of the same Diocess in Ireland 1. BISHOP Episcopus from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 supra and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 intendere an Overseer or Superintendent so called from that watchfulness care charge and faithfulness which by his Place and Dignity he hath and oweth to the Church A word which all Antiquity hath appropriated to signifie the Chief in Superintendency over the whole Church within his Diocess wherein are divers inferiour Pastors This Oversight or Care the Hebrews call Pekudah Of this Office or Ecclesiastical Dignity there can be but one at a time in one and the same Diocess whence it is that Cornelius Bishop of Rome as Eusebius relates upbraided Novatius for his ignorance in that point when he could not but know there were no less than 46 Presbyters in that Church Oecumenius and St. Chrysostome affirming also as many at Philippi For in this restrained sense as the word Bishop is now taken it cannot be imagined that there should be more than one in one City or Diocess at the same time consonant whereunto the Synod of Nice prohibited Two or more Bishops to have their Seats at once in the same City This Novatius aforesaid was a Priest of Rome 254 years after Christ he abhorred Second Marriages and was condemned as an Heretick in a Synod at Rome the same year Every Bishop many Centuries after Christ was universal Incumbent of his Diocess received all the Profits which were but Offerings of Devotion out of which he paid the Salaries of such as Officiated under himâ—
as Deacons and Curates in places appointed 2. Under this Name or Appellation of Bishops are contained Bishops Primates Metropolitans Patriarchs and Summus Pontifex Dist 21. c. 1. And the Presbyters also C. Legimus § 1. Dist 93. Spec. de Instr Edit Sect. 14. vers de Episcopo and for such commonly used and taken in the New Testament l. 14. c. de Episc Cler. In some Acts of Parliament we find the Bishop to be called Ordinary and so taken at the Common Law as having Ordinary Jurisdiction in Causes Ecclesiastical albeit in the Civil Law whence that word Ordinarius is taken it signifies any Judge authorized to take Cognizance of Causes proprio suo jure as he is a Magistrate and not by way of Deputation or Delegation The word Ordinary doth chiefly take place in a Bishop and other Superiours who alone are Universal in their Jurisdictions yet under this word are comprized also other Ordinaries viz. such as to whom Ordinary Jurisdiction doth of right belong whether by Priviledge or by Custome Lindw de Constit c. Exterior ver Ordinarii The Pallium Episcopale or Bishops Pall mentioned as Sr. Ed. Coke observes in some Statutes and many Records and Histories is a Hood of white Wool to be worn as Doctors Hoods upon the Shouldiers with Four Crosses woven into it c. for the Form and Colours whereof vid. Antiq. Brit. Eccles fo 1. This Pallium Episcopale is the Arms belonging to the See of Canterbury vid. Cassan de glo mun p. 4. fo 103. a. 26. Consid ubi multa Legas de Pallio Henry Dean the 65th Archbishop of Canterbury An. 1502. had Pallium Archiepiscopatus Insigne sent him from Pope Alexander 6. by his Secretary Adrian which by the Bishop of Lichfield and Coventry Authorized thereto by the Pope was presented him at Lambeth in these words viz. Ad honorem Dei Omnipotentis c. Tibi tradimus Pallium de Corpore beati Petri sumptum plenitudinem videlicet Pontificalis Officii c. whereupon he swore Canonical obedience to the Apostolical See of Rome 3. The Kings of England were Anciently the Founders of all the Archbishopricks and Bishopricks in this Realm and also in Wales the Bishops thereof were Originally of the Foundation of the Princes of Wales Bishops in England originally were Donative per traditionem Baculi Pastoralis Annuli until King John by his Charter granted that they should be Eligible Chart. 25. Jan. An. Reg. 17. De Commuâ—i Consensu Baronum after which came in the Congé d'Eslire And at this day the Bishopricks in Ireland are Donative Rolls 342. The Patronage of all Bishopricks is in the King so as that he gives leave to the Chapters to chuse them In Ancient times the King gave the Bishopricks and then afterwards gave leave to the Chapters to chuse them as aforesaid The learned Serjeant Roll in that part of his Abridgment touching this Subject makes mention of 1 E. 1. Rot. Clauso Memb. 11. in dorso where there is this Protestation made by the King Cum Ecclesia Cathedralis viduatur de jure debeat soleat de Consuetudine provideri per Electionem Canonicam ab ejusmodi potissimum Celebrandam Collegiis Capitulis personis ad quos jus pertinet petita tamen prius ab Illustri Rege Angliae super hoc Licentia obtenta demum Celebrata Electione persona Electa eidem Regi habeat Praesentari ut idem Rex contra personam ipsam possit proponere si quid rationabile habeat contra eum And the Protestation goes further That in case the Pope makes Provision without such Canonical Election the King shall not be obliged to give him his Temporalties yet of grace for the time present he give the Temporalties to the Abbot Elect of Canterbury Thus the Election of Bishops by Deans and Chapters began by the grant of the King but the Grant was to Elect after License first had and obtained as appears by the Stat. of 25 Ed. 3. Stat. de Provisoribus Rastal 325 d. And King John was the first that granted it by his Charter dated 15 Jan. An. 16. William Rufus K. after the Archbishop of Canterbury's death kept the See without an Archbishop for the space of four years and then assum'd divers other Ecclesiastical Promotions into his own hands that were then vacant putting to Sale divers Rights and Revenues of the Church But King H. 1. made a Law against Reservations of Ecclesiastical Possessions upon Vacancies In the time of Edward the Confessor the Prelates used to receive Investitute from the King by giving them the Pastoral Staff and a Ring And so it was used in the time of H. 1. but Suffragans were invested only by the Ring without the Staff for that they are not Bishops so fully and compleatly as the other 4. To the Creation of Bishops are requisite Election Confirmation Consecration and Investiture Upon the vavancy of a See the King grants his License under his Great Seal to the Dean and Chapter of such vacant Cathedral to proceed to an Election of such a person as by his Letters Missive he shall nominate and appoint to succeed in such vacant Archbishoprick or Bishoprick which Election must be within twenty days next after their receiving such License or Letters Missive upon failure whereof they run the danger of a Praemunire Or if above twelve days after their receipt thereof the Election be deferr'd the King may by his Letters Patent nominate or present to such vacant Bishoprick to the Archbishop or Metropolitan of that Province wherein such See is void or unto one Archbishop and two other Bishops or to four such Bishops as his Majesty shall think fit in case upon such Nomination or Presentment by the King the default of Election by the Dean and Chapter be to the Office and Dignity of a Bishop Otherwise if they Elect according to his Majesties pleasure in his Letters Missive the Election is good and upon their Certificate thereof unto his Majesty under their Common Seal the person so Elected is reputed and called Lord Bishop Elect yet is he not thereby compleat Bishop to all intents and purposes for as yet he hath not Potestationem Jurisdictionis neque Ordinis nor can have the same untill his Confirmation and Consecration for which Reason it is that if after such Election and before Consecration a Writ of Right be brought in the Court of a Mannor belonging to such Bishoprick it is not directed Episcopo but Ballivis of the Bishop Elect. The order of making a Bishop consists chiefly in these Eight things viz. 1. Nomination 2. Congé d'Eslire 3. Election 4. Royal Assent 5. Confirmation 6. Creation 7. Consecration 8. Installation Vid. Grendon's Case in Plowd Trin. 17 Jac. B. R. Sobrean Teige vers Kevan Roll. Rep. par 2. The Creation of a Bishop is in this Solemn
vacancy of a Bishoprick the Dean and Chapter by virtue of his Majesties License under the Great Seal of England hath proceeded to the Election of a new Bishop in pursuance of and according to his Majesties Letters Missive on that behalf and Certificate thereof made unto the Kings Majesty under their Common Seal then follows the Confirmation Consecration and Investiture by the Archbishop or Metropolitan of that Province wherein such Bishoprick was void the said Election having upon such elected Bishops Oath of Fealty to the Kings Majesty been first signified to the Archbishop by the King under his Great Seal whereby the said Archbishop is required to Confirm the said Election and to Consecrate and Invest the person Elected And now he is compleat Bishop as well unto Temporalties as Spiritualties yet after his Confirmation and before his Consecration the King may if he please ex gratia grant him the Temporalties But after his Consecration Investiture and Instalment he is qualified to sue for his Temporalties out of the Kings hands by the Writ de Restitutione Temporalium And yet it seems the Temporalties are not de jure to be delivered to him until the Metropolitan hath certified the time of his Consecration although the Freehold thereof be in him by his very Consecration But if during the Vacation of Archbishopricks or Bishopricks and while their Temporalties are in the Kings hands the Freehold-Tenants of Archbishops or Bishops happen to be attainted of Felony the King by his Prerogative hath the Escheats of such Freeholders-Lands to dispose thereof at his pleasure saving to such Prelates the Service that is thereto due and accustomed Before the Conquest the Principality of Wales was held of the King of England and by the Rebellion and forfeiture of the Prince the Principality came to the King of England whereby the Bishopricks were annexed to the Crown and the King grants them their Temporalties 10 H. 4. 6. 7. The manner of making a Bishop is fully described in Evans and Kiffin's Case against Askwith wherein it was agreed That when a Bishop dies or is Translated the Dean and Chapter certifie the King thereof in Chancery and pray leave of the King to make Election Then the King gives his Congé d'Esâ—ire whereupon they make their Election and first certifie the same to the party Elect and have his consent Then they certifie it to the King in Chanceâ—y also they certifie it to the Archbishop and then the King by his Letters Patents gives his Royal Assent and commands the Archbishop to Confirm and Consecrate him and to do all other things necessary thereunto whereupon the Archbishop examines the Election and the Ability of the party and thereupon confirms the Election and after Consecrates him according to the usage upon a New Creation And upon a Translation all the said Ceremonies are observed saving the Consecration which is not in that case requisite for that he was Consecrated before 8. Bishopricks were Donatives by the King till the time of W. Rufus and so until the time of King John Read for that the History of Eadmerus Vid. Case Evans vers Ascouth in â—in Caâ— Noy 's Rep. It hath been generally held That before the Conquest and after till the time of King John Bishops were Invested by the King per Baculum Annulum but King John by his Charter granted That there should be a Canonical Election with Three Restrictions 1. That leave be first asked of the King 2. His Assent afterwards 3. That he shall have the Temporalties during the Vacation of the Bishoprick whereof mention is made in the Stat. of 25 Ed. 3. de Provisoribus and which is confirmed by the Stat. of 13 R. 2. c. 2. Also the Law in general is positive therein That in the making of all Bishops it shall be by Election and the Kings Assent and by the 25 H. 8. the Statute for Consecration of Bishops makes it more certain And if the Pope after the said Charter did use to make any Translation upon a Postulation without Election and Assent of the King it was but an Usurpation and contrary to the Law and restrained by 16 R. 2. and 9 H. 4. 8. And after the 25 H. 8. it was never used to have a Bishop by Postulation or any Translation of him but by Election as the said Statute prescribes And the form of making a Bishop at this day is after the same manner as aforesaid and according to the said Statute 9. The Interest and Authority which a Bishop Elect hath is That he is Episcopus Nominis non Ordinis neque Jurisdictionis But by his Confirmation he hath Potestatem Jurisdictionis as to Excommunicate and Certifie the same 8 Rep. 89. And then the power of the Guardian of the Spiritualties doth cease But after Election and Confirmation he hath Potestatem Ordinationis for then he may Consecrate confer Orders c. For a Bishop hath Three Powers 1. Ordinis which he hath by Consecration whereby he may take the Resignation of a Church confer Orders consecrate Churches And this doth not appertain to him quatenus Bishop of this or that place but is universal over the whole World So the Archbishop of Spalato when he was here conferr'd Orders 2. Jurisdictionis which is not Universal but limited to a place and confin'd to his See This power he hath upon his Confirmation 3. Administratio rei familiaris as the Government of his Revenue and this also he hath upon his Confirmation The Bishop acts either by his Episcopal Order or by his Episcopal Jurisdiction By the former he Ordains Deacons and Priests Dedicates or Consecrates Churches Chappels and Churchyards administers Confirmation c. By the latter he acts as an Ecclesiastical Judge in matters Spiritual by his Power either Ordinary or Delegated 10. An. 1430. Temp. Reg. H. 6. Hen. Chicheley Archiepisc Cant. in Synodo Constitutum est Ne quis Jurisdictionem Ecclesiasticam exerceret nisi Juris Civilis aut Canonici gradum aliquem ab Oxoniâ—nsi vel Cantabrigiensi Academia accepisset Ant. Brit. fo 284. nu 40. The power of the Bishop and Archbishop is derived from the Crown as was held in Walkers Case against Lamb where it was also held That the Grant of a Commissary or Official to one was good notwithstanding he were a Lay man and not a Doctor of Law but only a Batchelour of Law for the Court then said That the Jurisdiction of the Bishop and Archdeacon is derived from the Crown by usage and prescription and that in it self as it is coercive to punish Crimes or to determine Matrimonial Causes and Probate of Testaments and granting of Administrations being Civil Causes are derived from the Crown and not incident de mero jure to the Bishop which appears by Henslows Case par 9. Cawdry's Case par 5. 1 Ed. 6. c. 2. the Stat. of 37 H. 8. and divers other Authorities and the Statute of 37 H. 8. c.
may take competent time to examine the sufficiency and fitness of a Clerk so may he give convenient time to persons interessed to take knowledge of the Avoidance even in case of Death and where notice is to be taken not given to present their Clerks to it And perhaps if he do receive the Clerk of him that comes first yet he may quit himself of Disturbance because he doth nothing therein but as Ordinary in Law But if two or more Present so that the Title is become Litigious then and in such case he cannot receive the Clerk of any of his own pleasure except the Title be certain but hath his way of safety by Jure Patronatus and when he hath used the Jure Patronatus and that finds for one party yet he may still receive a contrary Clerk if he will for who can lett him but that must be at his own peril and that is at a double peril 1. That the Title be the better 2. That the Patron whose Clerk he hath received will plead and defend that Title for otherwise he cannot do it But though after Inquest in Jure Patronatus the Ordinary may accept the contrary Clerk yet it is against Justice and the intent of the Law For since it is a Provision meerly for the good and safety of the Ordinary and he pretends Doubt and therefore puts the Patron to this enquiry to his charge and delay to satisfie and secure him he ought to judge and receive the Clerk according to that Verdict And that is the true meaning of the Books that say that the Ordinary is to judge of the better Title that is not to prejudge of his own Will but secundum allegata probata upon Verdict of the Right given and found according to the form of Law to give Institution which is his Judgment and the Induction his Execution And though it is but an Inquest of Office and therefore binds not True it is it binds not but with a distinction that is it binds not the Patron in his Quare Impedit but is Final even to the true Patron that he cannot impute disturbance to the Ordinary following that Verdict and therefore it ought to bind him to follow it For to these purposes it is a full Verdict never to be tried again And if but one Present if the Ordinary make doubt of his Title as in many cases he justly may being a stranger to it he may require satisfaction by Jure Patronatus 17. If it be demanded whether the Ordinary can cite a man out of his Diocess the Common Law answers it in the Negative And so it was held by Jones and Whitlock Justices in Brown's Case where they held That at the Common Law a Bishop cannot cite a man out of his Diocess and there Whitlock held that the Ordinary hath not any power of Jurisdiction out of his Diocess but to absolve a person Excommunicated If one in N. commit Adultery in another Diocess during the time of his Residence he may be cited in the Diocess where he committed the offence although he dwell out of the Diocess by Coke Warburton and Winch And in the time of his Visitation he hath Jus ad Synodalia according to the Custome more or less as in Gloucestershire where the Impropriation of Dereburt pays annually 7s 9d pro Synodalibus Procurationibus for this Synodal is not in this sense here taken as in the Statute of 25 H. 8. cap. 19. for Synodals Provincial which seem to signifie the Canons or Constitutions of a Provincial Synod nor for the Synod it self which the word Synodale doth sometimes signifie but it is here in the same sense as the word Synodies in the Statute of 34 H. 8. cap. 16. for a Synodal is no other than a Cense or Tribute in mony paid to the Bishop or Archdeacon by the Inferiour Clergy 18. Every Spiritual person is visitable by the Ordinary So is a Dean de mero jure for he is Spiritual The Ordinary hath also power of Correction of a Parson And every Hospital be it Lay or Spiritual is Visitable By the ancient Law of the Realm the King hath power to Visit reform and correct all Abuses and Enormities in the Church Nor are the Kings Donatives visitable by the Ordinary but properly by the Lord Chancellour And the King may grant a Special Commission to that purpose But as to Hospitals if they be Spiritual the Ordinary shall visit them if they be Lay-Hospitals the Patron In the Statute of 1 El. cap. 2. there is a Proviso That all and singular Archbishops and Bishops and every of their Chancellors Commissaries Archdeacons and other Ordinaries having any peculiar Ecclesiastical Jurisdiction shall have full power and authority by virtue of this Act as well to enquire in their Visitations Synods and elsewhere within their Jurisdiction or any other time or place to take occasions and informations of all and every the things above-mentioned done committed or perpetrated within the Limits of their Jurisdiction or Authority and to punish the same by Admonition Excommunication Sequestration or Deprivation and other Censures and Process in like manner as heretofore hath been used by the Queens Ecclesiastical Laws The Ancient custome was for the Visitor to visit in his own person visitare Ecclesiatim per cunctas Dioceses parochiasque suas 10. q. 1. c. Episcopum E. Concil Toletan 4. ca. 35. This Visitation is a special and peculiar duty belonging to every Bishop as derived from the Apostles who themselves were Visitors and for that end and purpose did pertransire Ecclesias Vrbes The Bishop hath his Triennials per Archidiaconi Visitatio potest fieri singulis annis Extr. de Offic. Archid. c. Mandamus We find also that Episcopus debet Visitare singulis annis Parochiam nisi dimittat propter gravamen Ecclesiarum tunc mittat Archidiaconum c. Ab. Sic. super 2. 1. de Offic. Archid. c. ut Archidiaconus 10. q. 1. c. Decrevimus c. Episcopum 19. Every Bishop hath his Cathedral and Council and the Council and Bishop there decide matters of Controversie the Prebends have their names from the affording of help to the Bishop If any Clerk after he hath sworn Canonical Obedience should happen to commit Episcopicide he is guilty of Petty-Treason and shall suffer as such Whereas heretofore the County of Gloucester was a part of the Diocess of Worcester out of which it was taken by King H. 8. when first made a Bishoprick the Diocess of Worcester was in the time of King Ed 6. laid to the See of Gloucester Dr. Heylin 's Hist Eccl. p. 101. Next unto the Two Archbishops the Bishop of London of all the other Bishops hath the Preheminence Episcopus Londinensis says an Ancient Record speciali quadam Dignitate caeteris anteponendus quia Ecclesiae Cantuariensis Decanus est Provincialis The Bishop of Duresme who is
next in precedency hath been a Count Palatine about six or seven hundred years and hath at this day the Earldom of Sadberg long since annexed to this Bishoprick by the King Note a President hath been shewed at Common Law That the Bishop of Durham imprisoned one for a Lay-Cause and the Archbishop of York as his Sovereign cited him to appear before him to answer for that Imprisonment and the Archbishop was fined four thousand Marks Cro. par 1. The Bishop of Winchester was anciently reputed Earl of Southampton All the other Bishops take place according to the Seniority of their Consecration unless any Bishop happen to be made Lord Chancellor Treasurer Privy Seal or Secretary of State which anciently was very usual All the Bishops of England are Barons and Peers of the Realm have place in the Upper house of Parliament as also in the Upper house of Convocation The Bishopricks were erected into Baronies by William the Conqueror at his coming into England And as a special remark of Honour Three Kings viz. of England Scotland and South-Wales in the year 1200. did contribute their Royal shoulders for the conveyance of the deceased Corps of Hugh Bishop of Lincoln to his Grave And no wonder when Princes themselves and such as were of the Blood Royal were anciently Bishops in this Kingdom they have been not only of the best Nobility but divers of the Sons and Brothers of several English Kings since the Conquest and before have entred into Holy Orders and became Ecclesiasticks as at this day is practicable in the most of all other Monarchies throughout the whole Christian World Ethelwolph Son and Successor to Egbert first Sole King of England was in Holy Orders and Bishop of Winchester at his Fathers death Odo Brother to William the Conqueror was Bishop of Bayeux in Normandy Henry de Blois Brother to King Stephen was Bishop of Winchester Geofry Plantagenet Son to King Henry the Second was Bishop of Lincoln And Henry de Beauford Brother to King Henry the Fourth was Bishop also of Winchester 20. The Statute of 17 Car. 1. cap. 27. for disinabling persons in Holy Orders to exercise Temporal Jurisdiction or Authority being Repealed as aforesaid by the Statute of 13 Car. 2. cap. 2. they are thereby restored to the exercise of Temporal Jurisdiction as formerly which indeed is no more than what they ever Anciently exercised in this Kingdom For Ex Clero Rex semper sibi eligebat Primos à Consiliis Primos ad Officia Regni obeunda Primi igitur sedebant in omnibus Regni Comitiis Tribunalibus Episcopi in Regali quidem Palatio cum Regni Magnatibus in Comitatu una cum Comite in Turno cum Vice-comite in Hundredo cum Domino Hundredi sic ut in promovenda Justitia usquequaque gladii gladium adjuvaret nihil inconsulto Sacerdote vel Episcopo ageretur This Union of Persons Authority and Courts of Judicature Ecclesiastical and Civil as Mr. Selden proves continued above Four thousand years till Pope Nicholas the First about the Eighth Century to exclude the Emperour from medling in the Ecclesiastical Government began to exclude the Clergy from medling with the Civil And for the space of four or five hundred years during the Reign of the Saxon Kings in England the Ecclesiastical and Secular Magistrates sate joyntly together determining Ecclesiastical Affairs in the Morning and Secular or Civil Affairs in the Afternoon so that in those days as there was no clashing of Jurisdictions so no complaint touching Prohibitions but an unanimous harmony in a kind of Joynt-Jurisdiction in reference to all Ecclesiastical and Civil Affairs until William the Conqueror did put a distinction between Church and State in a more divided way than formerly had been practiced Also the excellent Laws made by King Ina King Athelstan King Edmund and St. Edward the Confessor from whom we have our Common Laws and our Priviledges mentioned in Magna Charta were all made by the perswasions and advice of Archbishops and Bishops named in our Histories 21. That which during the Reign of King Edw. 6. made the greatest alteration and threatned most danger to the State Ecclesiastical was the Act entituled An Act for Election and what Seals and Styles shall be used by Spiritual persons c. In which it was ordained That Bishops should be made by the Kings Letters Patents and not by the Election of the Deans and Chapters That all their Processes and Writings should be made in the Kings Name only with the Bishop's Teste added to it and sealed with no other Seal than the Kings or such as should be Authorized and Appointed by him In the compounding of which Act there was more danger as Dr. Heylin observes couched than at first appeared For by the last Branch thereof it was plain and evident says he that the intent of the Contrivers was by degrees to weaken the Authority of the Episcopal Order by forcing them from their strong hold of Divine Institution and making them no other than the Kings Ministers only or as it were his Ecclesiastical Sheriffs to execute his Will and disperse his Mandates And of this Act such use was made though possibly beyond the true intention of it that as the said Dr. Heylin observes the Bishops of those Times were not in a Capacity of conferring Orders but as they were thereunto impowred by special License The Tenour whereof if Sanders be to be believed was in these words following viz. The King to such a Bishop Greeting Whereas all and all manner of Jurisdiction as well Ecclesiastical as Civil flows from the King as from the Supream Head of all the Body c. We therefore give and grant to thee full power and License to continue during our good pleasure for holding Ordination within thy Diocess of N. and for promoting fit persons unto Holy Orders even to that of the Priesthood Which being looked on by Queen Mary not only as a dangerous diminution of the Episcopal Power but as an odious Innovation in the Church of Christ she caused this Act to be Repealed in the first year of her Reign leaving the Bishops to depend on their former claim and to act all things which belonged to their Jurisdiction in their own Names and under their own Seals as in former times In which estate they have continued without any Legal Interruption from that time to this But says the same Author in the First Branch there was somewhat more than what appeared at the first sight For though it seemed to aim at nothing but that the Bishops should depend wholly on the King for their preferment to those great and eminent places yet the true drift of the Design was to make Deans and Chapters useless for the time to come and thereby to prepare them for a Dissolution For had nothing else been intended in it but that the King should have the sole Nomination of all the Bishops in his Kingdoms it had
c. according to the request of the Procurers of the same or signifie into Chancery by a day certain for what cause he refused to grant the same where if upon such Certificate it shall appear that the cause of such Refusal was reasonable just and good that then it shall be admitted and allowed otherwise there may issue thence by virtue of the said Statute a Writ of Injunction commanding the said Guardian of the Spiritualties so refusing as aforesaid to make sufficient grant of such License Dispensation c. by a certain day and if after the receipt of such Writ the Guardian of the Spiritualties shall yet refuse to grant the same and shew no just or reasonable cause for so doing that then and in such case the said Guardian of the Spiritualties shall incur such penalty to his Majesty as shall be limited and expressed in the said Writ of Injunction And moreover in such case a Commission under the Great Seal may issue to Two Spiritual Prelates or persons to be nominated by his Majesty Authorizing them to grant such Licenses Faculties and Dispensations as were so refused to be granted by the Guardian of the Spiritualties as aforesaid And what in this case is here enjoyn'd to the Guardian of the Spiritualties during the vacancy of the Archbishoprick is likewise expresly by the said Statute to the Archbishop himself in time of Plenarty or Non-vacancy of the See 4. Of the Metropolitan the Dean and Chapter is of Common right the Guardian of the Spiritualties Of Inferiour Bishopricks in times of Vacation the Dean and Chapter of the See is of Common right the Guardian of the Spiritualties and not the Metropolitan Yet 5 E. 2. Quare impedit 165. Admit that during the vacancy of the Bishoprick of Durham the Archbishop of York is Guardian of the Spiritualties And 23 E. 1. Rot. Claus Memb. 4. the Prior of Christ-Church in Canterbury was Guardian of the Spiritualties in time of vacation of the Archbishoprick Of which Archbishoprick the Dean and Chapter is Guardian of the Spiritualties in the time of vacancy Also of the Archbishoprick of York the Dean and Chapter is Guardian of the Spiritualties in the vacancy thereof and not the Archbishop of Canterbury for that it is a distinct Province not subordinate to c. contra 31 H. 6. 10. Admit for there a Parson of the Province of York had aid of the Metropolitan Guardian of the Spiritualties of the Archbishoprick of York in time of vacancy of that Archbishoprick In the Case of Grange against Denny it was said by Coke That of common Right by the Common Law the Dean and Chapter Sede vacante of the Bishop is Guardian of the Spiritualties as appears by Pasch 17 E. 3. fo 23. but that now the Archbishops have used to have this by way of Composition And in the same Case it was said by Doderidge That every Archbishop hath a Diocess and a Province and of his Diocess he is a Bishop and of his Province he is Archbishop and within his Province he is to be Visitor of all the Churches within his Province and Sede vacante of any Bishop within his Province he himself is Guardian of the Spiritualties of all the Bishopricks within his Province but Sede vacante of his own Diocess the Dean and Chapter of this is Guardian of the Spiritualties and that no mention is made in the Books of the Common Law of any such Composition aforesaid but that the Guardian of the Spiritualties is to be according to the difference before put between a Province and a Diocess 5. The Learned Serjeant Roll in his Abridgment doth acquaint us out of the Ancient Books That a Guardian of the Spiritualties may Admit and Institute a Clerk presented to him That the King did present to the Guardian of the Spiritualties of the Archbishoprick of Dublin Sede vacante for a Church in Ireland That the Guardian of the Spiritualties may try Bastardy That Letters were directed to all the Bishops and in the Vacancy to the Guardian of the Spiritualties to make Prayers for the King in his Journey in France And that the Prior of Christ-Church in Canterbury Guardian of the Spiritualties during the Vacancy of that Archbishoprick had a Felon delivered to him But in the time of the Vacancy of the Bishop the Archbishop is Guardian of the Spiritualties and not the Dean and Chapter CHAP. V. Of Congé d'Eslire Election and Confirmation 1. What Congé d'Eslire signifies the Original thereof 2. To whom it is directed and the manner of Proceedings thereupon and of Election 3. Confirmation of Bishops the form or manner thereof 4. Confirmation in a Temporal not Spiritual sense what 5. The Confirmation of Bishops Elect beyond Sea far different from this in England 6. The Law and Practice in France touching the making of Bishops 1. COngé d'Eslire in French Leave to Chuse is the Kings permission to a Dean and Chapter to chuse a Bishop in the time of Vacancy And time was when this Venia Eligendi was also the permission Royal to an Abby or Priory of his own Foundation to chuse their Abbot or Prior But we now understand it under no other signification than as his Majesties leave vouchsafed to a Dean and Chapter to elect a certain person to succeed as Bishop of that Diocess whose Episcopal See is vacant For the better interpretation of this Congé d'Eslire the Modern Pens refer themselves to Mr. Guin in the Preface to his Readings where he saith The the King of England as Sovereign Patron of all Archbishopricks Bishopricks and other Ecclesiastical Benefices had of Ancient time free Appointment of all Ecclesiastical Dignities whensoever they hapned to be void Investing them first Per Baculum Annulum and afterwards by his Letters Patents And that in process of time he made the Election over to others under certain Forms and Conditions viz. That they should at every Vacation before they chuse desire of the King Congé d'Eslire that is Leave or License to proceed to Election and then after the Election to crave the Royal Assent c. He affirmeth also by good proof out of the Books of the Common Law that King John was the first that granted this and that afterwards it was confirmed by Westminster 1. cap. 1. which Statute was made An. 3. Ed. 1. And again by the Statute Articuli Cleri cap. 2. which was Ordained An. 25. Ed. 3. Stat. 3. it is generally agreed That the Kings of this Realm were originally the Founders of all Archbishopricks and Bishopricks within this Kingdom being at first Donative per traditionem Baculi Pastoralis Annuli But afterwards King John by his Chapter 15 Jan. in the seventh year of his Reign De Communi consensu Baronum granted that they should ever after be eligible And from that time came in the Congé d'Eslire Vid. Co. 5. par 14. in Candry's Case vid. Stat.
1 Jac. cap. 3. vid. 17 Ed. 3. cap. 40. 2. The Congé d'Eslire being granted to the Dean and Chapter they proceed accordingly to Election which in the sense here intended as appropriated to this Subject is that Regular Choice which is made of an Ecclesiastical person to succeed in the office and dignity of Bishop in and of that Diocess whose See at the time of such Election is vacant This Election referring to an Episcopacy or the choice of a new Bishop in a vacant See is done by a Dean and Chapter but there are also other Elections Ecclesiastical relating to a Regular choice of other persons to other Offices and Dignities in the Church subordinate to the former but here it is specially meant of such an Election or choice of a new Bishop as is precedent to Confirmation Consecration and Investure or Instalment being made as aforesaid by the Dean and Chapter of a Cathedral Church by vertue of the Kings License and Letters Missive according to his Majesties nomination and pleasure contained in such Letters Missive in pursuance of such License to Elect under the Great Seal of England which Election being made accordingly the Dean and Chapter are to return a Certificate thereof under their Common Seal unto his Majesty This Election alone and of it self be it to an Archbishoprick or Bishoprick if the person Elected were before the Parson or Vicar of any Church Presentative or Dean of any Cathedral or held any other Episcopal Dignity doth not ipso facto make void in Law such former Benefice or Dignity or Deanry because he is not compleat and absolute Bishop meerly by such Election but only Bishop Elect And an Election only of such one to a Bishoprick who had before a Benefice with Cure or any other Ecclesiastical Dignity or promotion doth not make a Cession thereof And it hath been adjudged that a Commendam retinere made to such a person of such a Parsonage Deanry or other dignity Ecclesiastical which the said Parson had before his Election to the Bishoprick is yet good to him notwithstanding such Election and so remains good to him until his Consecration 3. Confirmation hath various senses according to the different Acceptation of the word but here it is mainly intended for that which in order to an Investure of a Bishop is done by the Archbishop or Metropolitan of that Province in which a Bishoprick is void and unto which a new Bishop is to be Invested with such usual Benedictions and Ceremonies as are requisite to the same Note That before an Archbishop or other Bishop is Confirmed Consecrated or Invested he must take the Oath of Fealty unto the Kings Majesty only after which the King under his Great Seal doth signifie his Election to one Archbishop and two other Bishops otherwise unto four Bishops within his Majesties Dominions thereby requiring them to Confirm his Election and to Consecrate and Invest the person Elected After which Confirmation and Consecration he is compleat Bishop to all intents and purposes as well to Temporalties as Spiritualties And now he hath plenam potestatem tam Jurisdictionis quam Ordinis and may therefore after his Consecration certifie an Excommengment and upon his Confirmation the power of the Guardian of the Spiritualties doth cease and a Writ for Admission of a Clerk to a Benefice awarded Episcopo Electo Confirmato hath been held to be good Likewise the King may by his Letters Patents after such Confirmation and before Consecration grant unto such Bishop his Temporalties which Grant from his Majesty is held to be potius de gratia quam de jure but if the Bishop of one Diocess be translated to a Bishoprick in another there needs no new Confirmation of him In the Canon de Confirmatione Episcoporum of Othobon's Constitutions it is Ordained in haec verba viz. Vt cujus Electionis Episcopalis Confirmatio postulatur inter caetera super quibus Inquisitio Examinatio praecedere debet Secundum Canonum Instituta illud exactissime inquiratur utrum plura Beneficia cum animarum cura qui Electus est antequam eligeretur habuerit Et si habuisse inveniatur an cum eo super hoc fuerit dispensatum Et an Dispensatio si quam exhibuerit vera sit ad omnia beneficia quae obtinuit extendatur Et si in aliquo Praemissorum is ad quem Confirmatio spectat Electam deficere sua discussione compererit eidem nullatenus munus Confirmationis impendat 4. There is also Confirmation of another kind and far remote in sense from the former not of any Ecclesiastical consideration nor of any Affinity with the other otherwise than Nominal and that is the ratifying or confirming of an Office or an estate in a Place or Office to one who hath or formerly had the possession thereof by a good Title but voidable though not actually and at present void To explain this A Bishop grants his Chancellorship by Patent to one for term of his Natural life this Grant is good to the Patentee and not in it self void yet upon the Bishops death it is voidable unless it be corroborated and ratified by the Confirmation of the Dean and Chapter This is not the Confirmation here intended but the Confirmation of the Election of a new Bishop in order to his Consecration and Investure which though heretofore was by the Bishop of Rome when he claimed a Spiritual Jurisdiction in this Realm yet now since the Stat. of 25 H. 8. c. 20. the same is at his Majesties Command performed by the Archbishop or Metropolitan of the Province wherein such Bishoprick is void and two other Bishops otherwise by four such Bishops within his Majesties Dominions as to whom under his Broad Seal he shall signifie such Election commanding them to Confirm the same as also to Consecrate and Invest the person whose Election to the Bishoprick is so Confirmed as aforesaid 5. The Confirmation of the Election of Bishops to vacant Sees according to the Canon Law and as practised in such Kingdoms beyond Sea where the Pope doth claim and exercise a Spiritual Jurisdiction is as to the mode and solemnity thereof quite another thing to what the practice is with us in this Realm 6. In France though the Nomination of a Bishop to succeed in a vacant See belongs to the French King yet if he doth not Nominate within Six or Nine months next after the death of the former Bishop Jus devolutum est ad Papam if a Bishoprick be there void be it quomodocunque whether by Cession or otherwise the Law speaks indefinitely in that case the King shall Nominate in France who shall be the new Bishop but then he must Nominate within Six or Nine months which being Elapsed and no Nomination he cannot afterwards Nominate Nam jus sit ad Papam devâ—lutum nec poterit purgare moram For the Law in that Case and in that Kingdom is that
Nominatione non facta intra Sex menses devolvitur Nominatio plena Dispositio Episcopatus ad Papam As also appears in that remarkable Case controverted touching the Confirmation of the Election Ad Episcopatum Appamiarum For upon the death of Cardinal de Albret An. 1520. 10. Dec. that Bishoprick became void whereupon the Canons of that Church convened and proceeded to the Election of a new Bishop and chose D. Bernard de Lordat who being elected applied himself Archiepiscopo Tholosano tanquam suo Metropolitano saltem Vicariis suis for the Confirmation of his Election which was done accordingly to which Confirmation the Procurator Regius was not called who appealed from the said Election and Confirmation alledging that the Nomination to the Bishoprick belonged to the King who Nominated D. John de Puis to the Pope whereupon the Pope granted the said Bishoprick to the said John de Puis who by the Bulls and Proxies of the Pope took possession thereof From all which Appeal was again afterwards in Supremam Curiam between De 〈◊〉 and Lordat but De Puis obtaining another Bishoprick the Process on the Appeal was Extinct and Lordat by a Definitive had the Possession of the said Bishoprick Confirmed to him CHAP. VI. Of Consecration 1. What Consecration signifies the Ancient Rites and Ceremonies thereof under the Law who they were to whom it belonged 2. Consecration as specially Applicable to Bishops 3. An Ancient Canon touching the Consecration of Churches 4. The Form of Consecration of Churches by the Justinian Law the Rites and Ceremonies therein used by the Greek and Latin Churches 5. Consecration of Bishops how necessary by the Imperial Law Consonant to the practice of the Greek and Latin Churches 6. Consecration of Bishops is Character Indelebilis at the Common Law 7. Who first Consecrated Churches who first took the style of Pope The Original of Godfathers and Godmothers in Baptism 8. In case of Translations of Bishops no need of new Consecrations Requisites to Creation and Translation of Bishops according to the Common Law of England 1. CONSECRATION here chiefly refers either to Bishops or Churches The Civil as well as Canon Law takes notice of both It signifies a Dedication to God Justinian in his Novel's makes use of the word thereby signifying an Imposition of hands For in this manner says that Book of great Antiquity entituled 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 began Bishops to be Consecrated It is a kind of Separation of persons Ecâ—csiastical from the Laity and of things Sacred from Prophane for the especial use and service of God The word in the Hebrew signifies a Filling of the hand thereby intimating that under the Law in the Consecration of any there was a giving them or Putting into their hands things to offer whereby they were admitted to their Priestly Office In this Consecration the holy Unction was used or the holy Oyl or holy Ointment which was not to be applied to any Prophane or Civil use but to be appropiated to the Sons of Aaron only whereas Kings were and are to be Anointed that is to be understood as by especial command from God as an Exception to the Sacerdotal practice and as a Consecrating them to the Government in relation whereto a King is a Mixt person under a double capacity Ecclesiastical and Civil as next under God the Supream in Church and State within his own Dominions And although under the Levitical Law there was an Anointing Oyl common to the High Priest with the Inferiour Priests yet the High Priest had a Consecration peculiar to himself which was by the pouring out the precious Oyntment upon his head In imitation whereof are Kings at this day anointed to the Regal Authority 2. The import of this word Consecration as practicable in all Ages specially refers to Archbishops and Bishops and with us consists in certain Benedictions and Ceremonies peculiarly requisite thereunto And when after Election and Confirmation the person is Consecrated and Invested he is then compleat Bishop as well to Temporalties as Spiritualties and then the power of the Guardian of the Spiritualties doth cease Being Consecrated he may confer Holy Orders upon others and may Consecrate Churches and Chappels which before he could not Anselm Archbishop of Canterbury deprived divers Prelates for receiving Investure of King H. 1. but after they were restored ex gratia Speed 436. The Roman Synod made a Cannon that Investure belongs to the Pope yet H. 1. used to give Investure as he did to Ralph Archbishop of Canterbury Sp. 440. b. 3. Touching the Consecration of Churches the Learned Sir H. Spelman makes mention of a very Ancient Canon made by the Synod held at Celichyth in the year 816. under Wulfred Archbishop of Canterbury and President of the said Synod Kenulph King of Morcia being threat also personally present The Canon is to this purpose viz. Wherever a Church is built or erected let it be Sanctified by the Bishop of the proper Diocess Let it have a Benediction from himself and be sprinkled with Holy Water and so be made a compleat Church in such manner as is prescribed in the Ministerial Book Afterwards let the Eucharist which is Consecrated by the same Bishop be together with other Reliques reposited and laid up in a Chest and kept and preserved in the same Church And we Ordain and Command that every Bishop take care that the Saints to whom their Churches are dedicated respectively be painted on the Church-walls or in Tables or on the Altars 4. The Emperour Justinian in his care of the Church hath prescirbed a Form of Consecration thereof in this manner viz. his Law is That none shall presume to erect a Church until the Bishop of the Diocess hath been first acquainted therewith and shall come the lift up his hands to Heaven and Consecrate the place to God by Prayer and erect the Symbole of our Salvation viz. the venerable and truly precioas Rood Likewise among other Ceremonies of Consecrating Churches the laying of the first Stone was of Ancient use in the Greek Church as may be observed out of their Euchologue where it is said That the Bishop after some other Rites performed standing in the place where the Holy Altar shall be set saith certain Prayers which being ended he giveth tho Ite Missa est and then taketh up one of the Stones and having cut a Cross upon it himself with his own hands layeth it upon the Groundwork as the first Foundation-stone then be pronounceth the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. and so the Workmen begin the Building The like Ceremonies are used in the Latin Church at this day at the Consecration of Churches as appears by their Pontificale There is this further touching the Consecration of Churches in the Euchologue of the Greek Church That the Bishop having on his Formilities fumeth the Ground-work or Foundation with his Iacense Circular-wise then the Singing-men say
Fee-simple may pass to them without the word Successors because in Construction of Law such Body Politick is said never to die This must be understood only in reference to their taking of the thing granted in their Politick not Natural Capacity 11. One Bishop may possibly have two Chapters and that by Union or Consolidation as in the Bishop of Waterford's Case who had the Bishoprick of Lismore and the Chapter thereof united to that of Waterford In which Case although the Chapter of Lismore only Confirmed the Grants of Lands belonging to Lismore and the Chapter of Waterford only confirmed the Grants of Lands belonging to the Bishoprick of Waterford yet because the Union there was not extant the Judges held the Confirmation in manner aforesaid to be good but otherwise all the Judges held that both Chapters ought to have Confirmed For it seems if a Bishop hath two Chapters both must Confirm his Leases 12. A Parsonage in the Diocess of W. is annexed to a Prebend in S. the Prebend makes a Lease for years which is Confirmed by the Bishop and Dean and Chapter of S. It was held by the Court to be good without the Confirmation of the Bishop of W. in whose Diocess it is In Eyre's Case it was resolved That Chapters are not of a capacity to take by Purchase or Gift without the Dean who is their Head And in the Case of Eaton-Colledge where a Lease was made by the Dean and Chapter of the Colledge of Eaton whereas they were incorporated by the Name of the Dean and Chapter of the Colledge of St. Maries of Eaton Resolved that the Lease was void for the Misnosiner Yet whereas the Dean and Canons of Windsor were Incorporated by Act of Parliament by the Name of the Dean and Canons of the Kings Free-Chappel of his Castle of Windsor and they made a Lease by the Name of the Dean and Canons of the Kings Majestie 's Free-Chappel of the Castle of Windsor in the County of Berks Resolved the Lease was good For although the King in the Act of Parliament calls it his Castle yet when another speaks of it it is more apt to call it the Castle and therefore such variance shall not avoid the Lease Likewise whereas Christs-Church in Oxon is incorporated by the Name of Dean and Chapter Ecclesiae Cathedralis Christi de Oxon and they made a Lease by the Name of Dean and Chapter Ecclesiae Cathedralis Christi in Academia de Oxon and the Liberties de Academia did extend further than the Liberties of the City yet it was adjudged a good Lease because the substance of the Corporation was inserted in the words of the Lease CHAP. VIII Of Archdeacons 1. What an Archdeacon is his Office and Jurisdiction 2. The several kinds of Archdeaconries and how many in England 3. Whence the Archdeacons power is derived and whether a Quare Impedit doth lie of it or not 4. In what case Action lies against an Archdeacon for refusing to give Induction to a Clerk Instituted by the Bishop 5. Archdeaconry not comprized under the notion of a Benefice with Cure of Souls 6. Process of Quorum Nomina prohibited by the Canon to be issued by any Archdeacon 7. How often an Archdeacon may have his Visitation and what his Office or Power therein is 8. How a person ought to be qualified that may be an Archdeacon It is an Ecclesiastical Dignity 9. Cardinal Otho's Constitution touching the Archdeacons government in his Visitations 10. How Archdeacons are distinguished at the Canon Law 11. Conformity thereto in the practice of the Common Law 12. A Case at Common Law touching a Lease for years of a Glebe made by an Archdeacon 13. The same Case somewhat otherwise reported 14 Whether a Quare Impedit lies of an Archdeaconry 1. ARCHDEACON from archos Princeps or Chief and Diaconos Deacon that is the first or chief of the Deacons Sum. Host de Offic. Archid. c. 1. de Scrut in Ord. fac being according to the Canon Law such as hath obtained a Dignity in a Cathedral Church to have the Priority among the Deacons and first in Jurisdiction next after the Bishop Sum. Host ibid. For as of Common Right all Ecclesiastical matters within the Diocess appertain to the cognizance of the Bishop so under him to the Archdeacon excepting only such things as by Law are specially prohibited And therefore is said to be dignified with this Title for that in many things he doth supply the room of the Bishop to whom he is in precedency to others subservient and unto whom his service chiefly relates Every Bishop be it Archbishop or other hath under him an Archdeacon for the better discharge of his Cure He hath Jurisdiction of Common right which may vary according to Circumstances and the Custome of the place and therefore in some cases it is Jurisdictio Ordinaria in others it is Delegata And although regularly as such he doth not exercise any Jurisdiction within the Church it self yet it cannot be denied but that an Archdeaconry is an Ecclesiastical Dignity Fran. de Aret. in Concil 23. His Office and Jurisdiction by the Canon Law is of a far larger extent than is now practicable with us otherwise we should not there find him so frequently styled Oculus Episcopi for that he is by the very Law the Bishops Vicar in several respects and therefore may where the Bishop himself conveniently cannot keep the Triennial Visitations or not oftner than once a year save where emergent occasions do require it oftner He hath also under the Bishop the power of Examination of Clerks to be Ordained as also of Institution and Induction likewise of Excommunication Injunction of Penance Suspension Correction Dispensations of hearing determining and reconciling of Differences among the Clergy as also of enquiring into inspecting and reforming Abuses and Irregularities of the Clergy with a power over the Sub-deacons and a charge of the Parochial Churches within the Diocess In a word according to the practice of and the latitude given by the Canon Law to supply the Bishops room and as the words of that Law are in omnibus vicem Episcopi gerere Synt. jur l. 15. cap. 20. de Archidiacono 2. The Diocesses within this Realm of England are divided into several Archdeaconries they being more or less in a Diocess according to the extent thereof respectively and in all amounting to the number of Threescore And they divided again into Deanaries which also are subdivided into Parishes Towns and Hamlets Of these Archdeaconries some are by Prescription some by Law and some by Covenant Which difference hath this Operation in Law That the Jurisdiction of an Archdeaconry by Prescription or de jure is exclusive to the Jurisdiction of the Bishop insomuch that a Prohibition lies for such Archdeacon against the Bishop if he intermeddle Juridically with any matters or things within such Archdeaconries
be a Licentiate in Law or Divinity Cons Trid. 8. Cessio de Reform general Can. 12. They are called the Chief of the Deacons C. 1. de Scrutin in Ord. faciend in whom there is an Ecclesiastical Dignity inherent jure Communi And in some places they have this Dignity sine Officio for Innocentius observes That in Ecclesia Parmensi Archidiaconus nullum exercet Officium nihilominus dignitatem habet Innocent in c. de multa de Praebend But regularly according to the Canon Law Archdeacons as to their Dignity Office and Degree are to be reputed according to the Law Usage and Custome of their own Church and Chapter Hostiens Sum. de Offic. Archid. The Archdeacon is Oculus Episcopi and ipso jure his Vicar in Visitations Corrections and Dispensations in matters Ecclesiastical within his Jurisdiction he hath power of reforming the Clergy of examining and presenting to the Bishop such as are to be Ordained and of putting into possession such as are Presented Instituted and Inducted into Ecclesiastical Benefices 9. Cardinal Otho in his Canon de Archidiaconis hath Ordained That all Archdeacons do prudently and faithfully visit the Churches within their respective Archdeaconries as touching the Sacred Vessels and Vestments thereof and generally to enquire into the Temporalties and Spiritualties belonging to the same and that they endeavour to amend what they find amiss Also that they grieve not the Churches with superfluous charges or expences but require only moderate procurations in their Visitations wherein they may not presume to receive money of any when Crimes are to be corrected or punished nor Sentence any unjustly on purpose to extort money from them on pain of double the Sum to pious uses at the discretion of the Bishop besides other Ecclesiastical punishment Constit Othonis de Archdiaconis 10. The Canon Law doth distinguish of Archdeacons the whole Title throughout De Offic. Archidiac regularly speaks of an Archdeacon General who hath not any Archdeaconry distinctly limited Sed tanquam Vicarius fungitur vice Episcopi Vniversaliter and doth represent the Bishop Extra de Consue non putamus Otherwise it is in him who hath a distinct Limitation of his Archdeaconry for then he hath a Jurisdiction separate from the Bishop which where it is by Custome may be prescribed Gloss in ver Visitent dict Const Otho Consonant to this seems that difference which the Judges took in the Case between Chiverton and Trudgeon wherein they held and agreed That there is a Jurisdiction of one Archdeacon and there is the Jurisdiction of another which is but a peculiar Jurisdiction for the Archdeacon is an Officer who hath a Court of his own in which he hath the Probat of Testaments de jure And Doderidge Justice said That he is a principal Officer belonging to the Bishop est quasi Oculus Episcopi but otherwise it is of one who hath but a special Jurisdiction as the Archdeacon of Richmond hath to make Institutions and so 21 H. 6. 23. the Dean of Pauls in that case hath special Authority in St. Panchridge Hill 17 Jac. B. R. Case Chiverton and Trudgeon Roll. Rep. 11. In the Case between Gastrell and Jones it was said by Ley Chief Justice That it is to be considered what Authority the Archdeacon hath in his own nature as such and what power he may have by Prescription or otherwise The Archdeacon is a Minister subordinate to the Bishop viz. Deputy and Vicar or an Officer under him for in case of Induction the Bishops Warrant is necessary to impower him to give the same He hath also Judicial power but it is not exclusive to the Episcopal Authority but the Bishop is his Superiour Both are Judges but the one subordinate to the other c. And if Sentence be given in the Archdeacons Court the Appeal thence shall not be in the Bishops Court but in the Archbishops And if a man dies Intestate having goods within the Archdeacons Jurisdiction and other Goods within the Jurisdiction of the Ordinary the Archbishop as he said shall commit the Administration to the Archdeacon 12. The Archdeacon of H. having the Parsonage of A. appropriate to it Lett the Land parcel of his Glebe for fifty years in Anno 12 Eliz. The Bishop of E. Patron of the Archdeaconry and the Dean and Chapter confirm it The Archdeacon dies another is Collated to the Archdeaconry It was the Opinion of the Justices in this Case first That the Confirmation by the Bishop was not void for that it was but an Assent only to the Lease of the Possession of the Archdeaconry and not of the Bishop and therefore not within the Statute of 1 Eliz. The second Point was Whether this Lease was void by the Statute of 13 Eliz. Quaere for not Resolved Mich. 37 38 Eliz. B. R. Sir Edw. Denny and Eakenstall 's Case Cro. par 1. 13. The same Case Reported by More An Archdeacon having a Parsonage appertaining to his Archdeaconry before the Statute of 13 Eliz. made a Lease for forty years of the Parsonage which was Confirmed after the Statute adjudged the Lease and Confirmation both good Arkingsall or Eakenstall and Denny's Case More 's Rep. 14. A Quare Impedit was brought by the Executors of J. S. for not suffering them to Present to the Archdeaconry of D. which became void in the life of the Testator and the Writ and Count both supposed a disturbance to the Testator in his life In nunc retardationem Executionis Testamenti praedict In this Case it was Resolved 1. That a Quare Impedit did lie of an Archdeaconry 2. That the Writ as brought should abate because it was in nunc retardationem which cannot be of a Disturbance in the life of the Testator But it was agreed that the Executors might have a special Action upon the Case for their Disturbance Trin. 31 Eliz. B. R. Smalwood and the Bishop of Coventry and Marshes Case Cro. par 1. CHAP. IX Of Procurations Synodals and Pentecostals 1. Procuration what whence so called and how paid 2. Whether Procurations be only due ratione Visitationis 3. Procurations Anciently paid in Victualibus and not in Money how paid to Archdeacons in Lindwoods time 4. Whether Procurations may be payable by Custome to Archdeacons sine Visitatione 5. Archdeacons to Visit personally if otherwise then how the Procurations are payable 6. Not above one Procuration to be paid how that is to be understood 7. The Number of the Visitor's Attendants by the Council of Lateran in reference to Procurations and how many an Archdeacon may have by the Canon 8. Synodals the threefold signification of that word 9. The Synodal anciently called Cathedraticum Synodaticum what the Cathedraticum was why so called the Original thereof and how it differs from Procuration 10. Pentecostal what it is when by and to whom payable the probable Original thereof 11. A remarkeble Case relating to this Subject that was Resolved and Adjudged in Ireland 1. THe
tempore Pentecost oblata dicto nuper Prioratui beatae Mariae Wigorn. modo dissolut dudum spectan pertinen c. Ex Archivis Decani Capit. Wigorn. But in Glocester it seems it is otherwise for there the Bishop and the Archdeacon only receive them nor can the Dean and Prebendaries that now are of the Cathedral make any just claim to them For before the Suppression these Pentecostals were inter alia valued to the Archdeacon in the Kings Books as part of the Revenue of the Archdeaconry And as for Procurations aforesaid although they are as Dr. Cosen says ratione Visitationis plerumque praestandae yet not solummodo so and thence it is held that they are in some places payable to the Archdeacon jure Consuetudinario even in the Bishops Triennial year sine Visitatione on the Archdeacons part 11. To this purpose Remarkable is that Case of Proxies which Sir John Davis the Kings Attorney General in Ireland reports to have been there Resolved and Adjudged The Case was this The Bishop of Meth before the dissolution of Monasteries had a Proxy of fifteen shillings four pence payable yearly out of the Commandry of Kells in the County of Meth parcel of the Possessions of the Hospital of St. John of Jerusalem in Ireland and one other Proxy of twenty shillings payable yearly out of the Impropriate Rectory of Trevet in the same County parcel of the possessions of the Abbey of Thomascourt in the County of Dublin In the thirty third year of King H. 8. the said Hospital and Abbey were suppressed and dissolved and all the possessions of both the said Houses were vested in the actual possession of the Crown by Act of Parliament But in the said Act there is an Express Saving the Proxies to all Bishops and their Successors Afterwards the Bishop of Meth and his Clergy for that Bishoprick hath not any Dean and Chapter by Deed Inrolled Dated 16 March 36 H. 8. granted to the said Proxies inter alia to King H. 8. his Heirs and Successors the King being at the time of the Grant and after in the actual possession of the said Commandry and Rectory out of which the said Proxies were payable Afterwards Queen Elizabeth by her Letters Patent dated Primo Novemb. in the thirty third year of her Reign demised the said Commandry and Rectory to Dr. Forth And now whether he shall be charged with these Proxies and the Arrearages thereof after the commencement of the Lease was the Question And it was Adjudged that he should be charged therewith In the Argument of this Case there were Three points moved and debated 1 Whether the Proxies were wholly extinct by the suppression and dissolution of the said Religious houses notwithstanding the said Saving in the Act of Dissolution 2 Whether the Bishop could grant the Proxies to the King 3 Whether the Proxies in the hands of the King were extinct by the Unity of Possession For the First point it was Objected by Sir Ambrose Forth 's Counsel That the Proxies were extinct by the suppression and dissolution of the Religious houses For that the Visitation of the Religious houses were the sole cause of the payment of the Proxies Et cessante causa cessat effectus For the Religious houses being gone and dispersed they shall not be afterwards subject to Visitation and then when the Visitation doth cease the Proxies being only Exhibition given to the Visitor for his Travelling charges shall cease also For Procuratio as the Canonists define it est Exhibitio sumptuum necessariorum facta Praelatis qui Dioeceses peragrando Ecclesias subject as Visitant Yet it was agreed That the Visitation doth not cease immediately upon the Surrender or by the Act of Parliament which gives the Religious houses and their Possessions to the Crown for by that their Corporations are not dissolved as was held in the Case of the Dean and Chapter of Norwich Co. par 3. 15 Ass p. 8. 32 H. 8. Br. Corporations 78. But when the Religious persons were dispersed and had relinquished their Habit Rule and Order for which they were Visitable then their Corporation was utterly dissolved and thereupon the Visitation ceases And in this case they resembled a Proxie due for Visitation to an Annuity for Counsel or some other Service to be done if the Counsel or the Service be withdrawn the Annuity determines So if a Rent-charge be granted for a Way stop the Way and the Rent-charge shall be stopt also 9 Ed. 4. 19. 15 Ed. 4. 2. 21 Ed. 3. 7. So where a Corodie is granted for certain Service to be done the omission of the Service determines the Corody 20 Ed. 4. fo ult It was also said That the duty is not Annual but Contingent and payable only upon every Visitation And for the Saving they said it was a Flattering Saving which could not preserve the Proxies in being which the Law had extinguished as was held 14 Eliz. Dyer 313. That the tenures of the Obit or Chauntry-Lands held of the Subjects are extinct by the Act of 1 Ed. 6. notwithstanding the Saving in the said Act propter absurditatem So the Proxies in this Case shall be extinct propter absurditatem For as it is absurd that the King should be subject to Attendance in respect of a Tenure so it is absurd that the King should be subject to Visitation or to any duty in respect thereof Of the same nature there are many Savings put in Walsingham's Case Plow Com. 563. which are there called Flattering Savings As to the Second point it was objected That the Bishop could not grant these Proxies to the King for two Reasons the one drawn from the person of the King the other from the person of the Bishop 1 For the King Admit that he were capable of such a Spiritual Office as to be a Visitor of Religious persons yet he shall not have Proxies by reason of the Inconveniency and Indecency and also for the Impossibility thereof For it is neither Convenient nor Decent that the poor Religious persons should bear the Charges of the King And it is also Impossible for by the Canon Law Procuratio exhibenda est secundum qualitatem personae Visitantis and the Majesty of the person of the King and the grandure of his Train such that by presumption of Law no private person can bear his necessary charges or make him entertainment answerable to the quality of his person 2 For the Bishop Although he may grant his Temporal possessions with the assent of his Chapter or Clergy yet those duties which he hath by the prerogative of his Episcopal Chair or as incident to his Spiritual Function he may not grant And they by the Rule of the Canon Law are of Three sorts viz. 1 Subsidium Cathedrarium which is a duty of Prerogative and Superiority 2 Quarta Episcopalis which was given to him for Reparation of Churches 3 Procurationes for his Visitation as aforesaid which is a perquisite
Bishops Visitation mutually to certifie each other under their Hands and Seals the Names and Crimes of all such as were Presented in the said Visitation Nor shall any Chancellor or other Ecclesiastical Judge suffer any Judicial Act to be sped otherwise than in open Court or in presence of the Register or his Deputy or other person by Law allowed to speed the same nor shall have without the Bishops consent any more Seals of Office than one Nor shall any man be admitted a Chancellor or to exercise any Ecclesiastical Jurisdiction under the age of 26 years and learned in the Civil and Ecclesiastical Laws and is at least a Master of Arts or Bachelor of Law and shall first have taken the Oath of Supremacy in the Bishops presence or in open Court and have subscribed the Articles of Religion and swear that to the utmost of his understanding he will deal uprightly and justly in his Office without respect favour or reward 4. Sutton Chancellor of the Bishop of Gloucester moved for a Prohibition to stay a Suit before the Commissioners Ecclesiastical for that Articles were there exhibited against him because he being a Divine and having a Rectory with Cure of Souls and never brought up in the Science of the Civil or Canon Laws or having any Intelligence in them took upon him the Office of the Chancellor of the Bishop of Gloucester whereas there were divers Canons and Ecclesiastical Constitutions and also directions from the late King James and from the King that now is That none should be admitted to have those Offices of Chancellorship to a Bishop unless he were instructed and learned in the Canon and Civil Laws because divers Cases triable in the said Court are of weight and the Judges there ought to have knowledge of the Laws otherwise they cannot administer Right to the Kings Subjects Upon these Articles Mr. Sutton being examined confessed that he was a Divine and had a Spiritual Living and that the Office of the Chancellorship of the Bishop is grantable for life and that such a Bishop of Gloucester had granted to him the Office for his life which the Dean and Chapter had Confirmed whereby he had a Freehold therein and ought to enjoy it during his life And that notwithstanding this Answer they intended to proceed against him wherefore he prayed to have a Prohibition but the Court denied it for if he be a person unskilful in these Laws and by Law ought not to enjoy it they may peradventure examine that for although a Lay-person by his Admission and Institution to a Benefice hath a Freehold yet he may be sued in the Spiritual Court and deprived for that Cause but if he hath wrong he may peradventure by Assize try it therefore a Prohibition was denied 5. The Consistory Court of each Archbishop and every Bishop of every Diocess within this Realm is holden before the Bishops Chancellor in the Cathedral Church or before his Commissary in places of his Diocess far remote and distant from the Bishops Consistory so as the Chancellor cannot call them to the Consistory with any conveniency or without great travel and vexation for which reason such Commissary is called Commissarius Foraneus From these Consistories the Appeal is to the Archbishop of either Province respectively 6. By this word Consistory is commonly understood that place or Ecclesiastical Court of Justice held by the Bishops Chancellor or Commissary in his Cathedral Church or other convenient place of his Diocess for the hearing and determining of matters and Causes of Ecclesiastical cognizance happening within that Diocess But when this word refers to the Province of Canterbury then the chief and most ancient Consistory is the Arch-bishops high Court of Arches as the Court of Appeal from all other Inferiour Consistories within the said Province The same word sometimes refers to a Synod or Council of Ecclesiastical persons conven'd together or to a Cession or Assembly of Prelates but most usually to the Spiritual Court for the deciding of matters of Ecclesiastical cognizance The word Consistory Consistorium is supposed to be borrowed of the Italians or rather Lombards signifying as much as Praetorium or Tribunal being a word utriusque juris and frequently used for a Council-house of Ecclesiastical persons or the place of Justice in the Court Christian 7. The Consistories of Archbishops and Bishops are supposed to begin within this Realm in the time of William the Conquerour which seems very conjecturable from that Charter of his which Sir Ed. Coke in the fourth part of his Institutes mentions to have found Enrolled 2 R. 2. nu 5. Which Charter and Record of great Antiquity asserting not only the Episcopal Consistories but also the Ecclesiastical Jurisdiction it cannot be supposed but that it ought to be recited here in terminis per extensum viz. Willielmus gratia Dei Rex Anglorum Comitibus Vicecomitibus omnibus Francigenis quibus in Episcopatu Remigii terras habentibus salutem Sciatis vos omnes caeteri mei Fideles qui in Anglia manent quod Episcopales Leges quae non bene nec secundum Sanctorum Canonum Praecepta usque ad mea tempora in Regno Anglorum fuerunt Communi Concilio Concilio Archiepiscoporum meorum caeterorum Episcoporum Abbatum omnium Principum Regni mei Emendandas judicavi Propterea Mando Regia authoritate Praecipio ut nullus Episcopus vel Archidiaconus de Legibus Episcopalibus amplius in Hundretto Placita teneant nec causam quae ad Regimen animarum pertinet ad Judicium Secularium hominum adducant sed quicunque secundum Episcopales Leges de quacunque causa vel culpa interpellatus fuerit ad locum quem ad hoc Episcopus elegerit nominaverit veniat ibique de causa sua respondeat non secundum Hundrettum sed secundum Canones Episcopales Leges Rectum Deo Episcopo suo faciat Si vero aliquis per superbiam elatus ad Justitiam Episcopalem venire non voluerit vocetur semel secundo tertio quod si nec sic ad emendationem venerit Excommunicetur si opus fuerit ad hoc vindicand ' fortitudo Justitia Regis vel Vicecomitis adhibeatur Ille autem qui vocatus ad Justitiam Episcopi venire noluit pro unaquaque vocatione legem Episcopalem emendabit hoc etiam Defendo mea authoritate interdico ne ullus Vicecom aut praepositus aut minister Regis nec aliquis Laicus homo de Legibus quae ad Episcopum pertinent se intromittat nec aliquis Laicus homo alium hominem sine Justitia Episcopi ad Judicium adducat Judicium vero in nullo loco portetur nisi in Episcopali Sede aut in illo loco quem ad hoc Episcopus constituerit 8. For the Confirmation of this Charter Sir Ed. Coke in the foresaid part of his Institutes refers us to the Register of
the Bishop of London Willielmus Dei gratia Rex Anglorum R. Bainardo S. de magna Villa P. de Vabines caeterisque meis Fidelibus de Essex de Hertfordshire de Middlesex Salutem Sciatis vos omnes c. In which Charter the Tenor of the foresaid Charter is recited word by word in English The like Charter he also there says is in the Book of Charters of the Archbishop of Canterbury Whereby it is most evident that the Bishops Consistories are of great Antiquity and that they were erected when Causes Ecclesiastical were removed from the Tourne which is a Court of Record holden before the Sheriff to the Consistory So that this Law made by the Conqueror seems as Mr. Blount in his Nomo-Lexiâ—on on this word well observes to give the Original of the Bishops Consistory as it now sits with us distinct and divided from the Hundred or County-Court wherewith it seems probable in the time of the Saxons to have been joyn'd 9. Lindwood in the Provincial Constitutions upon this word Consistorium quoad Episcopos puts this difference between Consistorium and Tribunal Tribunal says he est Locus in quo sedet Ordinarius inferior but Consistorium est Locus in quo sedet princeps ad Judicandum Lindw de foro Competent c. excussis in ver Consistoria Albeit according to the vulgar acceptation of these words we refer Tribunal to any place of Judicature but Consistorium to that only which is of Ecclesiastical Jurisdiction 10. This Chancellor of a Diocess as he is Oculus Episcopi ought to have an eye into all parts of the Diocess and hath immediately under the Ordinary Jurisdiction of all matters Ecclesiastical within the same not only for reformation of Manners and punishment of Enormities of a Spiritual nature by Ecclesiastical Censures but also in Causes Matrimonial and Testamentary as to the Probat of Wills and granting Letters of Administration of the Goods of a person dying Intestate where there are not Bona Notabilia In which case the Will shall be proved or Administration granted by the Prerogative of the Archbishop And wherever there is an Administration duly granted there the Administrator doth almost in all points represent the person of the Intestate as legally as any Executor can the person of his Testator Testamentarily For this Administrator in construction of the Common Law is that person to whose trust care conduct and management the Goods and Chattels Real and Personal of the Intestate are committed by the Ordinary or such other as under him is duly Authorized to grant the same But under this Notion or Appellation of Administrator neither the Civil nor the Canon Law knows any such Officer only they take notice of Administrators as Governours of Persons Places or Things Decret Can. 23. q. 5. cap. 26. Extra Com. cap. 11. And it is most probable that the Common Law might as some conceive take its light as to this Officer under this notion as now practicable with us from the Constitution of the Emperour Leo. I. 28. nulli licere C. de Episc Cler. whereby it is Ordained That the Bishop shall take care to see such Legacies duly performed as are bequeathed for the Redemption of Captives in case the Testator appoint not one to execute his Will in that particular This power given to the Ordinary of making Administrators in case of Intestation and of Authorizing them to act as Executors is very ancient by the statute-Statute-Law And if any Ordinary Chancellor c. having power by the Act of 21 H. 8. to grant the Administration of the goods of him that dieth Intestate to the Widow or next of Kin shall take any Reward for the preferring any person before another to the Administration it is Bribery 11. A lawful Administrator may render his own Goods liable to the Intestates Debts either by a Devastavit or by a False Plea Judicially and his Executor or Administrator shall not succeed him in the Administration to his Intestate unless qualified to require Administration of both Intestates but the Administration of the first Intestates goods is de novo to be committed to his next of Kin as de bonis non Adm. And if a Stranger by any Act make himself Executor de son tort the Creditors and Legataries may not sue him as Administrator albeit it be an Administration in Fact but must sue him as Executor in his own wrong who notwithstanding is not any further liable than to the value of the Deceased's Goods as Assets in his hands But in case the Ordinary shall without granting any Letters of Administration make his Letters Ad Colligendum in that case he makes himself liable to Actions pro tanto as if himself were actually possessed of the Goods of the deceased And here Note That Funeral expences according to the degree and quality of the Deceased are to be allowed of his Goods before any debt or duty whatsoever for that is Opus pium or Charitativum 12. And as in these Consistories there is a great variety of Ecclesiastical Causes heard and determined so also the Officers belonging thereto are many and of various qualities and degrees whereof some seem to be magis principales others minus principales but others in the popular account as meer Animalia tantum Rationalia by whom they understand Apparitors who in truth are Summoners and whose Character in Law is this viz. He is that person whose employment is to serve such Processes as issue out of the Spiritual or Ecclesiastical Courts and as a Messenger to Cite Offenders and others to make their appearance therein as occasion shall require By the Statute of 21 H. 8. c. 5. as also by the 138th Canon of the Ecclesiastical Constitutions Apparitors are called Summoners or Sumners by which Canon the Abuses aud Grievances pretended to be practiced by such Summoners or Apparitors are sufficiently redressed For as the multitude of them is thereby abridged and restrained by Decreeing and Ordaining That no Bishop or Archdeacon or their Vicars or Officials or other inferiour Ordinaries shall depute or have more Apparitors to serve their Jurisdictions respectively than either they or their Predecessors were accustomed to have Thirty years before the publishing the said Ecclesiastical Constitutions So it is likewise provided by the said Canon That the said Apparitors shall by themselves faithfully execute their Offices and not by any colour or pretence whatsoever cause or suffer their Mandats to be executed by any Messengers or Substitutes unless upon some good cause to be first allowed and approved by the Ordinary of the place It is also further Provided by the said Canon That they shall not take upon them the Office of Promoters or Informers for the Court nor shall exact more or greater Fees than are prescribed by the 135th Canon of the said Ecclesiastical Constitutions And in case either the number of Apparitors deputed shall exceed the aforesaid Limitation or any of
in question hath been of a Mixt nature in reference to Jurisdictions 29. Certain Reasons for denial of Prohibitions to the Ecclesiastical Court in some Cases where they might lie 30. Bounds of Parishes in reference to the Tithes thereof whether Tryable by the Law of the Land or by the Law of the Church 31. Where the Question is more touching the Right of Tithes than the Bounds of the Parish the Ecclesiastical Court hath had the cognizance 32. The Ecclesiastical Court hath cognizance of Administrators Accounts and no Prohibition lies 33. Modus Decimandi sued for by a Parson in the Eccllesiastical Court no Prohibition Nor if he there sues for the Tithe of things not Titheable 34. In what cases a Custome as also a Rent may be sued for in the Ecclesiastical Court 35. If Question be touching the Grant of a Registers Office in a Bishop's Court or touching the Tenth after severance from the Nine parts In what Court whether Temporal or Ecclesiastical it shall be tryed 36. A Woman exercising the Profession of a Midwife without License is therefore sued in the Ecclesiastical Court whether a Prohibition lies in that case 37. The Bounds of a Parish also whether such a Church be Parochial or only a Chappel of Ease In what Court this is to be tryed 38. A Prohibition granted upon the disallowance of an Executors Plea of having Assets only to pay Debts in opposition to a Legacy sued for in the Ecclesiastical Court 39. A Prohibition awarded upon a Suit in the Ecclesiastical Court for an account of the Profits of a Benefice Otherwise in case the Profits were taken during the time of a Sequestration 40. A Prohibition granted to a Party to stay proceedings in his own Suit and commenced by himself 41. Pensions are sueable only in the Ecclesiastical Court 42. The right of Tithes coming in question between the Parson and the Vicar is a Suit properly belonging to the Ecclesiastical Court 43. Whether and how far and in what manner the Ecclesiastical Court may take cognizance of a Modus Decimandi at large debated 44. When and how the Canon Law was introduced into this Realm 1. BEfore the time of King William the Conqueror all matters as well Spiritual as Temporal were determined in the Hundred-Courts where was wont to sit one Bishop and one Temporal Judge called Aldermanus the one for matters of Spiritual the other of Temporal cognizance But that was altered by King William and it seems by Parliament for it was by the assent of the Bishops Abbots and all the chief persons of the Realm for he Ordained That the Bishop or Archdeacon should not hold Plea of the Episcopal Laws quae ad Regimen animarum pertinent in the Hundred but by themselves and there administer Justice not according to the Law of the Hundred but according to the Episcopal Laws and Canons as appears by King William's Charter Irrot. 2. R. 2. pro Decano Capitulo Eccles Lincolne Jan. Angl. 76 77. The Principal Courts Ecclesiastical whereof some are now out of use were and are the Convocation Court the High Commission Court the high Court of Arches the Prerogative Court of Canterbury the Court of Delegates the Court of Audience the Court of Peculiars the Court of Faculties besides the Bishops Consistories the Archdeacons Courts and the like anciently called Halimots or holy Courts And the Saxon Kings long before William the Conqueror made several Laws for the Government of the Church Among others St. Edward begins his Laws with this Protestation that it is his Princely charge Vt Populum Domini super omnia Sanctam Ecclesiam regat gubernet And King Edgar in his Oration to his English Clergy Ego saith he Constantini vos Petri gladium habetis jungamus dextras gladium gladio Copulemus ut ejiciantur extra castra Leprosi purgetur Sanctuarium Domini But upon the Conquest made by the Normans the Pope took the opportunity to usurp upon the Liberties of the Crown of England for the Conqueror came in with the Popes Banner and under it won the Battel Whereupon the Pope sent two Legates into England with whom the Conqueror called a Synod deposed Stigand Archbishop of Canterbury because he had not purchased his Pall in the Court of Rome and displaced many Bishops and Abbots to make room for his Normans Among the rest the King having earnestly moved Wolstan Bishop of Worcester being then very aged to give up his Staff was Answered by him That he would give up his Staff only to him of whom he first received the same And so the old Bishop went to St. Edward's Tomb and there offered up his Staff and Ring with these words viz. Of Thee O holy Edward I received my Staff and my Ring and to thee I do now surrender the same again Which proves that before the Norman Conquest the Kings of England invested their Bishops per Annulum Baculum By this admission of the Pope's Legates was the first step or entry made into his usurped Jurisdiction in England yet no Decrees passed or were put in execution touching matters Ecclesiastical without the King 's Royal Assent nor would he submit himself in point of Fealty to the Pope as appears by his Epistle to Gregory the Seventh Vid. Da. Rep. Case of Praemunire fo 89. yet in his next Successors time in the time of William Rufus the Pope by Anselme Archbishop of Canterbury attempted to draw Appeals to Rome but prevailed not Upon this occasion it was that the King told Anselme That none of his Bishops ought to be subject to the Pope but that the Pope himself ought to be subject to the Emperour and that the King of England had the same absolute Liberties in his Dominions as the Emperour had in the Empire Yet in the time of the next King H. 1. the Pope usurped the Patronage and Donation of Bishopricks and all other Benefices Ecclesiastical at which time Anselme told the King That the Patronage and Investure of Bishopricks was not his Right because Pope Urban had lately made a Decree That no Lay-person should give any Ecclesiastical Benefice And after this in a Synod held at London An. 1107. a Decree was made Cui annuit Rex Henricus says Matth. Paris that from thenceforth Nunquam per donationem Baculi Pastoralis vel Annuli quisquam de Episcopatu vel Abbathia per Regem vel quamlibet Laicam manum investiretur in Anglia Hereupon the Pope granted That the Archbishop of Canterbury for the time being should be for ever Legatus Natus And Anselme for the honour of his See obtained That the Archbishop of Canterbury should in all general Councils sit at the Pope's foot tanquam alterius Orbis Papa Yet after Anselme's death this same King gave the Archbishoprick of Canterbury to Rodolph Bishop of London says Matth. Paris Et illum per Annulum Pastoralem Baculum investivit as before he had invested William Gifford in
the Bishoprick of Winchester contra novi Concilii statuta as the same Author reporteth And this because succeeding Popes had broken Pope Vrban's promise Touching the not sending of Legates into England unless the King should require it And in the time of the next succeeding King Stephen the Pope gained Appeals to the Court of Rome For in a Synod at London Conven'd by Hen. Bishop of Winchester the Pope's Legate it was Decreed That Appeals should be made from Provincial Councils to the Pope Before which time Appellationes in usu non erant saith a Monk of that time donec Henricus Winton Episcopus malo suo dum Legatus esset crudeliter intrusit Thus did the Pope usurp Three main points of Jurisdiction upon Three several Kings after the Conquest for of King William Rufus he could win nothing viz. upon the Conquerour the sending of Legates or Commissioners to hear and determine Ecclesiastical Causes Upon Hen. 1. the Donation and Investures of Bishopricks and other Benefices and upon King Stephen the Appeals to the Court of Rome And in the time of King H. 2. the Pope claimed exemption of Clerks from the Secular Power 2. The high Court of Convocation is called the Convocation of the Clergy and is the highest Court Ecclesiastical where the whole Clergy of both Provinces are either present in Person or by their Representatives They commonly meet and sit in Parliament-time consisting of Two parts viz. the Upper-house where the Archbishops and Bishops do sit and the Lower-house where the Inferiour Clergy do sit This Court hath the Legislative power of making Ecclesiastical Laws is commonly called a National Synod Conven'd by the King 's Writ directed to the Archbishop of each Province for summoning all Bishops Deans Archdeacons Cathedrals and Collegiate Churches assigning them the time and place in the said Writ But one Proctor sent for each Cathedral and Collegiate Church and two for the Body of the inferiour Clergy of each Diocess may suffice The higher House of Convocation or the House of Lords Spiritual for the Province of Canterbury consists of 22 Bishops whereof the Archbishop is President the Lower-house or House of Commons Spiritual consisting of all the Deans Archdeacons one Proctor for every Chapter and two for the Clergy of each Diocess in all 166 persons viz. 22 Deans 24 Prebendaries 54 Archdeacons and 44 Clerks representing the Diocesan Clergy Both Houses debate and transact only such matters as his Majesty by Commission alloweth concerning Religion and the Church All the Members of both Houses of Convocation have the same priviledges for themselves and Menial Servants as the Members of Parliament have The Archbishop of York at the same time and in the like manner holds a Convocation of all his Province at York constantly corresponding debating and concluding the same matters with the Provincial Synod of Canterbury The Antiquity of this Court of Convocation is very great for according to Beda St. Augustine An. 686. assembled in Council the Britain Bishops and held a great Synod The Clergy was never assembled or called together at a Convocation by other Authority than by the King 's Writ Vid. Parl. 18 E. 3. nu 1. Inter Leges Inae An. Dom. 727. A Convocation of the Clergy called Magna servorum Dei frequentia The Jurisdiction of the Convocation is only touching matters meerly Spiritual and Ecclesiastical wherein they proceed juxta Legem Divinam Canones Sanctae Ecclesiae The Lord Coke cites some Ancient Records to prove that the Court of Convocation did not meddle with any thing concerning the Kings Temporal Laws of the Land and thence inferrs That the Statute of 25 H. 8. cap. 19. whereby it is provided That no Canons Constitution or Ordinance should be made or put in execution within this Realm by Authority of the Convocation of the Clergy which were contrariant or repugnant to the King's Prerogative Royal or the Customes Laws and Statutes of this Realm is but declaratory of the old Common Law And by the said Act the Court of Convocation as to the making of new Canons is to have the King's License as also his Royal Assent for the putting the same in execution But towards the end of that Act there is an express Proviso that such Canons as were made before that Act which be not contrariant nor repugnant to the King's Prerogative the Laws Statutes or Customes of the Realm should be still used and executed as they were before the making of that Act. And if any Cause shall depend in contention in any Ecclesiastical Court which shall or may touch the King his Heirs or Successors the party grieved shall or may appeal to the Upper-house of Convocation within fifteen days after Sentence given Remarkable are the Constitutions of Claringdon in the time of King H. 2. occasioned by the Popes claiming Exemption of Clerks from the Secular power so contended for by Thomas Becket then Archbishop of Canterbury against the King as occasioned a convening a Common Council as well of the Bishops as of the Nobility at Claringdon in the time of H. 2. wherein they revived and re-established the Ancient Laws and Customes of the Kingdom for the Government of the Clergy and ordering of Causes Ecclesiastical The principal Heads or Articles whereof were these viz. 1 That no Bishop or Clerk should depart the Realm without the King's License and that such as obtained License should give Sureties That they should not procure any dammage to the King or Realm during their absence in Foreign parts 2 That all Bishopricks and Abbies being void should remain in the Kings hands as his own Demesns until he had chosen and appointed a Prelate thereunto and that every such Prelate should do his Homage to the King before he be admitted to the place 3 That Appeals should be made in Causes Ecclesiastical in this manner viz. From the Archdeacon to the Ordinary from the Ordinary to the Metropolitan from him to the King and no farther 4 That Peter-Pence should be paid no more to the Pope but to the King 5 That if any Clerk should commit Felony he should be hanged if Treason he should be drawn and quartered 6 That it should be adjudged High Treason to bring in Bulls of Excommunication whereby the Realm should be cursed 7 That no Decree should be brought from the Pope to be executed in England upon pain of Imprisonment and Confiscation of Goods 3. Arches or alma Curia de Arcubus so called of Bow-Church in London by reason of the Steeple or Clochier thereof raised at the top with Stone-pillars in fashion like a Bow-bent Arch-wise in which Church this Court was ever wont to be held being the chief and most Ancient Court and Consistory of the Jurisdiction of the Archbishop of Canterbury which Parish of Bow together with twelve others in London whereof Bow is the chief are within the Peculiar Jurisdiction of the said Archbishop in Spiritual Causes and
s. 6 d. to the Scribe for Registring the same or else the said Scribe to be at his liberty to refuse the said 2 s. 6 d. and to have for writing every ten Lines of the same Testament whereof every Line to contain ten inches one penny If the Executor desire that the Testament in paper may be transcribed in parchment he must agree with the party for the Transcribing but the Ordinary c. can take nothing for that nor for the Examination of the Transcript with the Original but only 2 s. 6 d. for the whole duty belonging to him Where the Goods of the deceased do not exceed five pound the Ordinary c. shall take nothing and the Scribe to have only for writing of the Probat six pence so the said Testament be exhibited in writing with Wax thereunto affixed ready to be sealed Where the Goods of the deceased do amount to above the value of five pound and do not exceed the sum of forty pound there shall be taken for the whole but 3 s. 6 d. whereof to the Ordinary c. 2 s. 6 d. and 12 d. to the Scribe for Registring the same Where by Custome less hath been taken in any of the Cases aforesaid there less is to be taken And where any person requires a Copy or Copies of the Testament so proved or Inventory so made the Ordinary c. shall take for the Search and making of the Copy of the Testament or Inventory if the Goods exceed not five pound six pence and if the Goods exceed five pound and exceed not forty pounds twelve pence And if the Goods exceed forty pounds then two shillings six pence or to take for every Ten lines thereof of the proportion before rehearsed a penny And when the party dies Intestate the Ordinary may dispose somewhat in pious uses notwithstanding the Act of 31 Ed. 3. but with these Cautions 1 That it be after the Administration granted and Inventory made so as the state of the Intestate may be known and thereby the sum may appear to be competent 2 The Administrator must be called to it 3 The use must be publick and godly 4 It must be expressed in particular And 5 There must be a Decree made of it and entred of Record 7. The Court of Audience Curia Audientiae Cantuariensis The Lord Coke touching the Jurisdiction of Courts taking notice of this of the Audience among other of the Ecclesiastical Courts says That this Court is kept by the Archbishop in his Palace and meddleth not with any matter between party and party of any contentious Jurisdiction but dealeth with matters pro forma and Confirmations of Bishops Elections Consecrations and the like and with matters of voluntary Jurisdiction as the granting of the Guardianship of the Spiritualties Sede vacante of Bishops Admissions and Institutions to Benefices dispensing with Banns of Matrimony and such like This Court did belong to the Archbishop of Canterbury and was in point of Authority equal with but in point of Dignity and Antiquity inferiour to the Court of Arches It seems that Anciently the Archbishop of Canterbury did hear divers Causes of Ecclesiastical cognizance Extra-judicially and at home in his own Palace wherein before he would come to any final determination his usage was to commit the discussion thereof to certain persons learned in the Laws Civil and Canon who thereupon were styled his Auditors whence in process of time it center'd in one particular person styled Causarum Negotiorumque Audientiae Cantuariensis Auditor seu Officialis And from hence the Original of this Court is properly derived With this office of the Auditor the Chancery of the Archbishop is said to have been heretofore commonly joyned not controverting any matters of contentious Jurisdiction in any decisions of Causes between Plaintiff and Defendant but such only as were Voluntariae Jurisdictionis ex Officio touching such things only as are fore-specified and such like By the Provincial Constitutions it is Ordained That for the ease of the People they may at times convenient to be assigned by the Bishop have access to their Diocesan Et quod Praelati persâ—â— liter Audiant quaerelas in his Cathedral or next Parochial Church vel in aliqua Maneriorum suorum Capella si talis fuerit Lindw de Offic. Jud. Ord. cap. Statuimus in gloss verb. in Publico It seems not altogether improbable but that from the practice hereof this Court of Audience anciently had its Original as aforesaid And although it be not now in use as heretofore yet considering the Subject-matter it only took cognizance of it was a good Expedient to prevent many Suits at Law in Foro Contentioso 8. Faculty or Court of Faculties in the sense here meant and intended must not be understood according to its original and genuine signification but as a term of Art according to a limited construction restrained under that peculiar notion and particular understanding which the Law hath of it in reference to a branch of the Ecclesiastical Jurisdiction And so it is understood and commonly used for that Priviledge or especial Power which is legally granted to a man by License favour indulgence and dispensation to have or do that which otherwise by the Canon Law he could not as to eat Flesh upon days prohibited to Marry without Banns first published to hold Two or more Ecclesiastical Benefices incompatible the Son to succeed the Father in his Benefice and such like A Faculty granted to one who is not Incumbent to take a void Benefice is void But a Faculty to one who is Incumbent of a Benefice to retain the same is good It is called Faculties in the Statute of 28 H. 8. cap. 16. Sir Ed. Coke makes mention of the Court of Faculties although it holds no Plea of Controversie It belongs to the Archbishop of Canterbury and his chief Officer thereof is called Magister ad Facultates whose power is to grant Dispensations to the ends and purposes aforesaid and so may every Diocesan as to that of Marriage and eating of Flesh on days prohibited Faculty according to Sir Ed. Coke in the place fore-cited signifies a Dispensation so that Facultates in this sense Dispensationes Indulta are Synonyma Who likewise there says that this Authority was raised and given to the Archbishop of Canterbury by the Statute of 25 H. 8. c. 21. whereby Authority is given to the said Archbishop and his Successors to grant Dispensations Faculties c. by himself or his sufficient and substantial Commissary or Deputy for any such matters commonly called the Master of the Faculties and of all such matters as whereof heretofore such Dispensations Faculties c. then had been accustomed to be had at the See of Rome or by Authority thereof For by the Stat. of 28 H. 8. c. 16. it appears the Bishop of Rome did grant Faculties and Dispensations to the Kings Subjects as Pluralities Unions Trialities Appropriations Commendams Exemptions
And the Judgment of Parliament expressed in the Preamble of that Statute of Faculties is very remarkable to this purpose where it is recited that the Bishop of Rome had deceived and abused the Subjects of the Crown of England pretendig and perswading them That he had full power to Dispence with all human Laws Vses and Customes of all Realms in all Causes which be called Spiritual which matter hath been usurped and practised by him and his Predecessors for many years to the great derogation of the Imperial Crown of England For whereas the said Realm of England recognizing no Superiour under God but the King hath been and yet is free from subjection to any mans Laws but only to such as have been devised made and Ordained within this Realm for the weal of the same or to such other as by sufferance of the King and his Progenitors the People of this Realm have taken at their free liberty and by their own consent to be used among them and have bound themselves by long use and custome to the observance of the same not as to the observance of the Laws of any Foreign Prince Potentate or Prelate but as to the accustomed and ancient Laws of this Realm originally established as Laws of the same by the said sufferance consent and custome and not otherwise it standeth with natural equity and good reason that all such human Laws made within this Realm or induced into this Realm by the said Sufferance Consent and Custome should be Dispenced with abrogated amplified or diminished by the King and his Parliament or by such persons as the King and Parliament should authorize c. Vid. 21 H. 7. 4. a. where it is said That certain Priests were deprived of their Benefices by Act of Parliament in the time of R. 2. whereby it hath been concluded that the King of England and not the Pope before the making of the said Statute of Faculties might de jure Dispence with the Ecclesiastical Law in that and other cases For although many of our Ecclesiastical Laws were first devised in the Court of Rome yet they being established and confirmed in this Realm by acceptance and usage are now become English Laws and shall no more be reputed Roman Canons or Constitutions As Rebuffus speaking De Regula Cancellariae Romanae de verisimili notitia Haec Regula says he ubique in Regno Franciae est recepta est Lex Regni effecta observatur tanquam Lex Regni non tanquam Papae Regula Papa eam revocare non potest The Kings of England from time to time in every Age before the time of H. 8. have used to grant Dispensations in Causes Ecclesiastical For whereas the Law of the Church is That every Spiritual person is Visitable by the Ordinary King William the Conqueror by his Charter Dispenced with the exempted the Abbey of Battell from the Visitation and Jurisdiction of the Ordinary in these express words Sitque dicta Ecclesia libera quieta in perpetuum ab omni subjectione Episcoporum quarumlibet personarum dominatione sicut Ecclesia Christi Cantuariensis c. whereby he Dispences with the Law of the Church in that Case Vid. libr. De vera differentia Regiae potestatis Ecclesiasticae Edit 1534. where that whole Charter is recited at large The like Charter was granted to the Abbey of Abingdon by King Kenulphus 1 H. 7. 23 25. and Cawdry's Case Co. par 5. fo 10. a. So likewise every Appropriation doth comprize in it a Dispensation to the Parson Imparsonee to have and retain the Benefice in perpetuity as appears in Grendon's Case Plow Com. 503. In which Act the King by the Common Law shall be always Actor not only as Supream Patron but also as Supream Ordinary as is also observed in Grendon's Case For the King alone without the Pope may make Appropriations 7 E. 3. Fitz. Quare Impedit 19. And in the Case of Malum prohibitum and Malum in se in 11 H. 7. 12. a. it is held That the King may dispence with a Priest to hold Two Benefices and with a Bastard that he may be a Priest notwithstanding the Ecclesiastical Laws which are to the contrary And as he may dispence with those Laws so he may pardon all Offences contrary to these Laws and his Pardon is a barr to all Suits pro salute Animae or reformatione morum and all Suits ex Officio in the Ecclesiastical Court Hall's Case Coke 5. par fo 51. In all Faculties or Dispensations for the holding of Two Benefices granted at the Court of Rome there was always a particular Derogation or Non obstante the right of Patronage of Lay-Patrons and of the right of the King by name express where the Patronage belonged to him otherwise the Faculty was void For by the Canon Law the Lay-Patrons ought to be called to give their Consents in all Cases of that nature And if such a particular Non obstante were not added in the Faculty then there was inserted another Clause viz. Dummodo Patronorum expressus accedat Consensus also by another Clause Authority was always given to the Official or Archdeacon or other Ecclesiastical Minister to put him to whom the Faculty is granted into possession of the Benefice cum acciderit And because by the Canon Law the Patron 's consent was ever requisite in a Commenda for that reason in every Faculty or License granted by the Pope to make a Permutation Union or Appropriation of Churches these words were ever added viz. Vocatis quorum interest which chiefly intends the Patron And which Union and Approbation shall not according to the Common Law be made without the Patron 's assent Vid. 11 H. 7. 8. 6 H. 7. 13. 46 Ass p. 50. Ed. 3. 26. 40 Ed. 3. 26. Grendon's Case Plow Com. 498. a. A Faculty or Dispensation is of such force that if a Clerk be presented to a Benefice with Cure and be Admitted Instituted and Inducted into the same so that the Church is full of him if afterwards he be presented to another Benefice Incompatible or elected to a Bishoprick and before he is Instituted to the second Benefice or be created Bishop he obtain a Faculty or Dispensation to retain the first Benefice Perpetuae Commendae titulo that is for his life that Faculty or Dispensation shall be of such effect that the former Benefice shall not be void by acceptance of the Second or by promotion to the Bishoprick but he shall remain full and perfect Incumbent of the first Benefice during his life In the time of H. 6. when Henry Beaufort Great Uncle to the King being Bishop of Winchester was made a Cardinal and after that purchased from the Pope a Bull Declaratory that notwithstanding he were made Cardinal yet his Bishoprick of Winchester should not be void but that he might retain the same as before yet it was held That the See of Winchester was void by assuming the Cardinalship which
therein for the Indictment concluding contra formam Statuti It cannot be good as for an offence at the Common Law But afterwards another Exception was taken by Grimstone because the offence was alledged to be done in the Church of Shoreditch aforesaid and Shoreditch was not named before And upon view of the Indictment it appearing to be so all the Court held that the Indictment was void And for this cause the Defendant was discharged In the Ecclesiastical Laws of Ina King of the West Saxons cap. 6. Qui in Templo pugnaverit 120 Solidis noxiam Sarcito Ibid. Aliud Exemp cap. 6. Si quis in Ecclesia pugnet centum viginti Sol. emendet c. alias 60. emendet pro vita Also among the Ecclesiastical Laws of Hoel Dha King of Wales l. 10. De pugna quae in Coemiterio agitur 14 Librae sunt reddendae Likewise in l. 1. LL. Eccles Edovardi Sen. R. Angliae Guthurni R. Danorum in East-anglia Hoc primo Decreverunt ut Ecclesiae pax intra suos parietes inviolate servetur And in Cap. 2 3. LL. Eccl. Canuti Regis valde rectum est ut Ecclesiae pax intra parietes suos semper inconvulsa permaneat quicunque eam perfregerit de vita omnibus in misericordia Regis sit Et si quis pacem Ecclesiae Dei violabit ut intra parietes ejus homicidium hoc inemendabile sit c. nisi Rex ei vitam concedat 7. Where Prescription is alledg'd for Right to a Seat in a Church or for Priority in that Seat the Common Law hath took cognizance thereof as in the case of Carleton against Hutton where C. claimed the upper place in a Seat in the Church and H. disturb'd him in a violent manner and the Bishop of the Diocess sent an Inhibition to C. until the matter were determined before him And by the Court a Prohibition was awarded because it does not belong as Reported to the Spiritual Court And as well the priority in the Seat as the Seat it self may be claimed by Prescription and an Action upon the Case lies for it at Common Law Ve. Litt. 121 122. The Ordinary hath in him the right of distribution of the Seats in a Church yet so as that prescription shall take place whether it refers to the right of any particular Parishioner or to the power of the Church-wardens The Case was G. brought an Action of Trespass for the breaking of his Seat in the Church and cutting of the Timber in small pieces and carrying them away c. The Defendant pleads in Bar That they were the Church-wardens and that the Plaintiff had erected that Seat without the License of the Ordinary and it was an hindrance to the Parishioners c. and that they as Church-wardens the said Seat c. the which is the same Trespass The Plaintiff demurrs and Judgment for him For admitting that the Church-wardens may remove Seats in the Church at their pleasure yet they cannot cut the Timber of the Pew And thereupon they confessed the Trespass Ve. 6 E. 4. 7. 9 E. 4. 14. 8 E. 4. 6. 18 E. 4. 8. 21 H. 7. 21. 12 H. 7. 27. 11 H. 4. 12. Where there is a Parson Impropriate he hath the best right to the chief Seat in the Chancel as was Resolved in Sir William Hall's Case again Ellis where E. Farmor of a Rectory Impropriate Libels in the Ecclesiastical Court pro Sedile in dextra parte Cancellae and in his Additional Libel he Libels pro loco primo and principally in dextra parte Cancellae The Defendant there surmizes to have a Prohibition Quod est antiqua Parochia antiqua Cancella and that he is seized of an Ancient Messuage in that Parish and that he and all those c. have used to sit in dextra parte Cancellae praedict to hear c. And it was Resolved by the Court That of common Right the Parson Impropriate and per consequens his Farmor ought to have the chief Seat in the Chancel because he ought to repair it But by Prescription another Parishioner may have it But in this case a Consultation was awarded with a quoad c. because the Libel and the Additional that now is all one is pro primo Loco c. and the Surmize is only pro Sedile in dextra parte and not pro loco primo in it 8. The Church in construction of Law is Domus mansionalis Omnipotentis Dei and therefore it is Burglary for a man to break and enter a Church in the night of intent to steal c. And so sacred is the Church and Church-yard reputed in Law That Ecclesiastical persons whilst they are doing any Divine Service in either of them or in any other place dedicated to God may not be Arrested Yea Anciently the Church and Church-yard was a Sanctuary and the foundation of Abjuration for whoever was not capable of this Sanctuary could not have the benefit of Abjuration and therefore he that committed Sacriledge could not Abjure because he could not take the priviledge of Sanctuary This Abjuration was when one having committed Felony fled for safeguard of his life to the Sanctuary of a Church or Church-yard and there before the Coroner of that place within 40 days confessed the Felony and took an Oath for his perpetual Banishment out of the Realm into a Foreign not Infidel Countrey chusing rather Perdere patriam quam vitam But this Abjuration founded upon the priviledge of Sanctuary is wholly abrogated and taken away by an Act made 21 Jac. Reg. whereby it is Enacted That no Sanctuary or priviledge of Sanctuary should be admitted or allowed in any case And here Note That this kind of Abjuration hath no relation to that of Recusants by force of the Stat. of 35 Eliz cap. 1. because such Abjuration hath no dependency upon any Sanctuary But as to the other Abjuration in relation to Felonies Sacriledge excepted no Abjuration or Sanctuary being allowed in cases of Treason or Petit Treason the Law was so favourable for the preservation of Sanctuary in the Church or Church-yard That if a Prisoner for Felony had before his attainder or conviction escaped and taken Sanctuary and being pursued by his Keepers or others were brought back again to the Prison he might upon his Arraignment have pleaded the same and should have been restored again to the Sanctuary of the Church or Church-yard 9. The defacing of Tombs Sepulchres or Monuments erected in any Church Chancel Common Chappel or Church-yard is it seems punishable by the Common Law and for which the Erectors or Builders thereof during their lives and after their decease their Heirs shall have the Action But the Erecting thereof ought not to be to the hinderance of Divine Service And albeit the Freehold of the Church is in the Parson yet if the Lord of a Mannor or any other that hath an House
And it was said That the Excommunication was only for his Contempt And it is lawful for the Bishop to grant such an Inhibition for the peace of the Church And Doderidge agreed That if the Bishop did Inhibit any from making a disturbance in the Church it was good and therefore would not grant a Prohibition for well-doing Crew Jones c. but here he had not done well Doderidge è contra Then it was said That here the Bishop had Inhibited till the matter were determined before himself And the whole Court agreed That a Seat in a Church claimed by Prescription and the priority therein likewise claimed by Prescription is Triable in this Court by an Action upon the Case and not in the Spiritual Court And at last it was agreed by the parties that H. should remain in possession till the matter were tried by Prohibition And a Prohibition was awarded in the Case Note That a Prohibition may not be granted after a Consultation And as it seems by the course of Proceedings in the Court of the King's Bench a Prohibition shall not be granted the last day of a Term and such a Motion ought not then to be made but upon a motion there may be a Rule to stay proceedings till the next Term 19. It was moved in the King's Bench for a Prohibition to the Ecclesiastical Court at Worcester and shewed for cause 1 That the Suit there was for Money which by the assent of the greater part of the Parishioners of D. was Assessed upon the Plaintiff for the Reparation viz. for the Re-casting of their Bells The truth is That the charge was for the making of new Bells where there were Four before whereby it appears that it is meerly matter of curiosity and not of necessity for which the Parishioners shall not be liable to such Taxations and herein it was relied upon 44 E. 3. 19. by Finchden 2 The party there is overcharged of which the Common Law shall judge 3 The party hath alledged that he and all those who have an Estate in such a Tenement have used to pay but Eleven shillings for any Reparation of the Church But the Prohibition was denied and by Doderidge in the Book of 44 E. 3. there was a By-law in the Case to distrain which is a thing meerly Temporal for which the Prohibition was granted per Curiam in this case the Assessment by the major part of the Parishioners binds the party albeit he assented not to it And the Court seemed to be of opinion That the Custome was not reasonable because it laid a burden upon the rest of the Parish Littleton of Counsel of the other side Suppose the Church falls shall he pay but Eleven shillings Whitlock If the Church falls the Parishioners are not bound to build it up again which was not denied by Justice Jones 20. Roberts and others of East-Greenwich were cited in the Ecclesiastical Court to pay money that the Church-wardens had expended in Reparation of the Church and the Inhabitants alledged That the Tax was made by the Church-wardens themselves without calling the Freeholders and also that the Moneys were expending in the Re-edifying Seats of the Churches which belonged to their several houses And they never assented that they should be pulled down And now the Allegation was not allowed in the Ecclesiastical Court but Sentence was given against them And then they Appealed to the Arches where this Allegation was also rejected and for that he prayed a Prohibition And the Court agreed That the Tax cannot be made by the Church-wardens but by the greater number of the Inhabitants it may and a Prohibition was granted But by Yelverton if they be cited by Ex Officio a Prohibition will not lie for so it was Ex insinuatione c. For the Wardens came and pray'd a Citation c. But by Richardson Harvey and Crook privately a Prohibition will lie in both Cases 21. E. Libels in the Ecclesiastical Court against A. pretending that a Seat that the other claimed alwaies in the Church belonged to his House and Sentence in that Court was given against E. and Costs pro falso clamore And he Appealed to the Arches and there when they were ready to affirm the Sentence he prayed a Prohibition And it was moved by Davenport that it might be granted and he cited one Tresham's Case 33 Eliz. where in such a case a Prohibition was granted after an Appeal Richardson There is no cause for any Prohibition but in respect of the costs Hutton said it was a double vexation and the party shall not have Costs for that Hitcham said they came too late to have a Prohibition for the Costs Richardson That is not like to the Probat of a Will where a thing may fall out Triable at the Common Law But there the Principal was tried at the Common Law for they had it as in right Hutton Seats in the generality are in the power of the Ordinary to dispose It is the Prescription which makes that triable at the Common Law and if Prescription be made there and it be found then he shall pay Costs Richardson All Disturbances appertain also to them if it be not upon the Statute of 5 Ed. 6. But if a Title be made there by Prescription it is meerly coram non Judice and if they cannot meddle with the Principal it is not reason that they should tax Costs And a Prohibition was granted 22. H. Farmer of a Mannor A. and other Church-wardens Libel against him in the Ecclesiastical Court for a Tax for the reparation of the Church Henden moved for a Prohibition because that first the Libel was upon a custome That the Lands should be charged for Reparations which Customes ought to be tried at the Common Law And secondly Because the custome of that place is that Houses and Arable Lands should only be taxed for the Reparations of the Church and Meadow and Pasture should be charged with other Taxes But the whole Court on the contrary First although that a Libel is by a Custome yet the other Lands shall be dischargeable by the Common Law but the usage is to alledge a Custome and also that Houses are chargeable to the Reparations of the Church as well as Land And thirdly that a custome to discharge some Lands is not good Wherefore a Prohibition was granted Note that where a man sued in the Ecclesiastical Court prescribing to have a Seat in a Church ratione Messuagii where he inhabited upon the motion of Serjeant Henden a Prohibition was granted for it is a Temporal thing Note By Coke Chief Justice That the keeping of a Church-Book for the age of those which should be born and christned in the Parish began in the 30th year of Henry the Eighth by the instigation of the Lord Cromwel A man was indicted upon the Statute of Ed. 6. That in the Church-yard such
Sir Simon Degge in the forementioned place makes mention of the Inhibition out of Chancery to the Bishop of Durham by order of Parliament in Edward the First 's time for wasting the Woods belonging to that Bishoprick Also of the Archbishop of Dublin's being Fined three hundred Marks for disforresting a Forrest belonging to his Archbishoprick Likewise that by several Books of the Common Law a Bishop c. wasting the Lands Woods or Houses of his Church may be deposed or deprived by his Superiour And in case any Parson Vicar c. shall make any Conveyance of his Goods to defraud his Successor of his Remedy in case of Dilapidations in that case it is provided by the Stat. of 13 Eliz c. 2. that the Spiritual Court may in like manner proceed against the Grantee as otherwise it might have done against the deceased Parson's Executors or Administrators and all such Grants to defraud any person of their just actions were made void by a later Statute It is agreed That the cognizance of Dilapidations properly and naturally belongs to the Ecclesiastical Jurisdiction and no Prohibition to lie in the case or if such happen to be granted then the same to be superseded by a Consultation yet it seems Actions upon the Case grounded upon the custome of England have been brought in this case at Common Law and Dammages recovered It is also enacted by the Statute of 14 Eliz. That that Moneys recovered upon dammages for Dilapidations shall be expended in and upon the Houses c. dilapidated 2. Cardinal Othobon in his Canon De Domibus Ecclesiarum resiciendis hath constituted and ordained That all such Ecclesiastical persons as are Beneficed take special care that from time to time they sufficiently repair the Dwelling-houses and other Edifices belonging to their Benefices as oft as need shall so require unto which duty they are earnestly and frequently to be exhorted and admonish'd as well by their Diocesans as by the Archdeacons And if they shall for the space of two months next after such Monition neglect the same the Bishop of the Diocess may from thenceforth cause it to be effectually done at the Parson's charge out of the profits and fruits of his Church and Benefice taking only so much and no more as may suffice for such Repairs And the Chancels of Churches to be in like manner repair'd by those who are obliged thereto And as to Archbishops Bishops and other inferiour Prelates they are by the said Canon enjoyn'd to keep their Houses and Edifices in good and sufficient Repair sub divini Judicii attestatione Constit Othobon de dom Eccl. reâ—iâ— Sub divini Judicii attestatione h. e. damnationis aeternae in extremo Calâ—ulo glo in ver Sub divini Const Othobon de resident Archiepisc 3. By the Gloss on that Canon it is inferr'd That a Parson may be guilty of Dilapidations or of a Neglect in that kind two waies viz. either by not keeping the Edifices in good repair or by not repairing them being gone to decay That Canon chiefly refers to the Mansion-houses of all Benefices Ecclesiastical and that not only of all Parsonages and Rectories but also of all Bishopricks and of all Curates and Prebends and of all others having Ecclesiastical Livings but not specially by the words of this Canon unto their Farm-houses though they also are by the Canon Law provided for in case of Dilapidations And such as neglect the Reparations aforesaid may be accused and convicted thereof before the Diocesan who hath power to sequester the Fruits of such Benefice for the Reparations aforesaid Gloss in ver cessaverit in dict Can. such Fruits thereof being in construction of Law as it were tacitly hypothecated by a certain kind of Priviledge for such Indemnity and for that reason the Bishop in some cases may for that end sequester the same 4. And whereas in the abovesaid Canon it is said That Chancels shall be kept in repair by such as are thereunto obliged it is to be understood that that is spoken by way of allusion to the common Custome in England whereby the Body of the Church is usually repaired by the Parishioners and Chancels by the Rectors who notwithstanding ought to be at the care though not at the costs of the other also he being annually accountable to the Bishop for the same if the Bishop so please for which reason the Rector hath power to audit the Accounts of the costs and charges about the same as also what shall be given or bequeathed by way of Legacy for that end and purpose And where this custome prevails That the Parishioners shall repair the Body of the Church it is not to be understood that this is incumbent on them as a Real but as a Personal duty or burden yet every Parishioner proportionably to that quantity of Land which he holds within the Parish and number of Cattel he feeds on the same Gloss ibid. in ver ad hoc tenentur And in case one Parish be by legal Authority divided into Two in that case if such division were made by and with the consent of these Four viz. the Bishop the Patron the Parson and the Parishioners then the more Ancient Church shall not contribute to the Reparations of the New for that now they are two dictinct Parishes Gloss ibid. 5. Sir Ed. Coke in the third part of his Institutes having spoken of erecting of Houses and Building c. tells us what he finds in the Books of the Common Law and Records touching Dilapidations and decay of Buildings and having Margined as here in this Margent says That Dilapidation of Ecclesiastical Palaces Houses and Buildings is a good cause of Deprivation 6. By the Injunctions of King Ed. 6. An. 1547. to all his Clergy it is required That the Proprietors Parsons Vicars and Clarks having Churches Chappels or Mansions shall yearly bestow upon the same Mansions or Chancels of their Churches being in decay the fifth part of their Benefices till they be fully repaired and the same so repaired shall alwaies keep and maintain in good estate Consonant to which is the Thirteenth Article of Queen Elizabeths Injunctions given to all the Clergy An. 1559. 7. The Case was where the Parson made a Lease to the Plaintiff for 21 years after the Statute of 13 Eliz. of Lands usually Lett rendring the ancient Rent the Patron and Ordinary confirmed it the Lessee lett part of the term to the Defendant the Parson died the Successor entered and leased to the Defendant against whom the Lessee brought Debt upon the former Lease who pleaded the Statute of 13 Eliz. which made all Leases void where the Parson is not resident or absent for 80 daies It was Adjudged That the Lease was void by the death of the Incumbent for the Justices said The Statute doth provide against Dilapidations and for maintenance of Hospitality and therefore provided the Leases shall be void not only for Non-residence
but by death or resignation for otherwise Dilapidations should be in the time of the Successor and he cannot maintain Hospitality 8. The wasting of the Woods belonging to a Bishoprick is in the Law understood as a Dilapidation as was formerly hinted Note By Coke Chief Justice a Bishop is only to fell Timber for Building for Fuel and for his other necessary occasions and there is no Bishoprick but the same is on the Foundation of the King the Woods of the Bishoprick are called the Dower of the Church and these are alwaies carefully to be preserved and if he fell and destroy this upon a motion thereof made to us says the Lord Coke we will grant a Prohibition And to this purpose there was a great Cause which concerned the Bishop of Duresm who had divers Cole-Mines and would have cut down his Timber-Trees for the maintenance and upholding of his Works and upon motion in Parliament concerning this for the King Order was there made that the Judges should grant a Prohibition for the King and we will here says he revive this again for there a Prohibition was so granted And so upon the like motion made unto us in the like case we will also for the King grant a Prohibition by the Statute of 35 E. 1. If a Bishop cut down Timber-Tres for any cause unless it be for necessary Reparations as if he sell the same unto a Stranger we will grant a Prohibition And to this purpose I have seen said he a good Record in 25 E. 1. where complaint was made in Parliament of the Bishop of Duresm as before for cutting of Timber-Trees for his Cole-Mines and there agreed that in such a case a Prohibition did lie and upon motion made a Prohibition was then granted and the Reason then given because that this Timber was the Dower of the Church and so it shall be also in the case of a Dean and Chapter in which cases upon this ground we will grant as he said Prohibitions and the whole Court agreed with him herein Also in Sakar's case against whom Judgment being given for Simony yet he being by assent of parties to continue in the Vicarage for a certain time this time being now past and he still continuing in possession and committing of great Waste by pulling down the Glass-windows and pulling up of Planks the Court granted a Prohibition and said That this is the Dower of the Church and we will here prohibit them if they fell and waste the Timber of the Church or if they pull down the houses And Prohibition to prevent Dilapidations and to stay the doing of any Waste was in that case awarded accordingly 9. In a Prohibition the Case was this A Vicar lops and cuts down Trees growing in the Church-yard the Churchwardens hinder him in the carriage of the same away and they being in Trial of this Suit The Churchwardens by their Counsel moved the Court for a Prohibition to the Vicar to stay him from felling any more Coke Chief Justice This is a good cause of Deprivation if he fell down Timber-Trees and Wood this is a Dilapidation and by the Resolution in Parliament a Prohibition by the Law shall be granted if a Bishop fells down Wood and Timber-Trees The whole Court agreed clearly in this to grant here a Prohibition to the Vicar to inhibit him not to make spoil of the Timber this being as it is called in Parliament the Endowment of the Church Coke we will also grant a Prohibition to restrain Bishops from felling the Wood and Timber-Trees of their Churches And so in this principal Case by the Rule of the Court a Prohibition was granted CHAP. XVI Of Patrons de jure Patronatus 1. What Patron properly signifies in the Law the Original thereof and how subject to corruption 2. In what case the Bishop may proceed de jure Patronatus and how the Process thereof is to be executed 3. How the Admittance ought to be in case the same Clerk be presented by two Patrons to the same Benefice 4. In what cases of Avoydance Notice thereof ought to be given to the Patron and what course in that case the Bishop is to take in case he knews not the true Patron 5. Several Appellations in Law importing Patron 6. How many waies a Church may become Litigious 7. Whether an Advowson may be extended 8. In what case the Patron may Present where the King took not his turn upon the first Lapse 9. A Patron may not take any benefit of the Glâ—be during a Vacancy 10. In what case the Patron shall not by bringing the Writ of Qua. Imp. against the Bishop prevent the incurring of the Lapse to the Ordinary 11. The King is Patron Paramount and Patron of all the Bishopricks in England The Charter of King John whereby Bishopricks from being Donative became Elective 1. PATRON by the Canon Law as also in the Feuds wherewith our Common Law doth herein accord doth signifie a person who hath of right in him the free Donation or Gift of a Benefice grounded originally upon the bounty and beneficence of such as Founded Erected or Endowed Churches with a considerable part of their Revenue De Jur. Patronat Decretal Such were called Patroni à patrocinando and properly considering the Primitive state of the Church but now according to the Mode of this degenerating Age as improperly as Mons à movendo for by the Merchandize of their Presentations they now seem as if they were rather the Hucksters than Patrons of the Church But from the beginning it was not so when for the encouragement of Lay-persons to works of so much Piety it was permitted them to present their Clerks where themselves or their Ancestors had expressed their Bounty in that kind whence they worthily acquir'd this Right of Jus Patronatus which the very Canon Law for that reason will not understand as a thing meerly Spiritual but rather as a Temporal annexed to what is Spiritual Quod à Supremis Pontificibus proditum est Laicos habere Jus Praesentandi Clericos Ordinariis hoc singulari favore sustinetur ut allectentur Laici invitentur inducantur ad constructionem Ecclesiarum Nec omni ex parte Jus Patronatus Spirituale censeri debet sed Temporale potius Spirituali annexum Gloss in c. piae mentis 16. q. 7. Coras ad Sacerdot mater par 1. cap. 2. Yet not Temporal in a Merchandable sense unless the Presentor and Presentee will run the hazard of perishing together for prevention whereof provision is made by that Solemn Oath enjoyn'd by the Fortieth Canon of the Ecclesiastical Constitutions whereof there was no need in former Ages less corrupt when instead of selling Presentations they purchased Foundations and instead of erecting Idol-Temples for Covetousness is Idolatry they Founded Built and Endowed Churches for the Worship of the True God Patroni in jure Pontificio dicuntur qui alicujus Ecclesiae extruendae c. Authores
give it to the Poor but sold the Flesh to Butchers and the Ale to Ale-wives And that he commanded his Curate to Marry a Couple in a private House without any License And that he suffered divers to Preach which peradventure had not any License and which were suspected persons and of evil Life It was said by Henden That they cannot by the Statute of 1 Eliz. cap. 1. meddle with such matters of such a nature but only examine Heresies and not things of that nature and that the High Commissioners at Lambeth certified to them that they could not proceed in such things and advised them to dismiss it but they would not desist And the Judges Richardson being absent granted a Prohibition if cause were not shewn to the contrary 10. A Parson makes a Lease for 21 years the Patron and Ordinary confirm his Estate for 7 years the Parson dies The Question is Whether that Confirmation made the Lease good for 21 years or but 7 years And it seemed to Hutton That the Lease was Confirmed but for 7 years But Richardson was of the contrary Opinion and took a difference where they Confirm the Estate and where they Confirm the Land for 7 years That Confirmation confirms all his Estate But where they confirm the Lease for 7 years That Confirmation shall not enure but according to the Confirmation And that difference was agreed by Crook and all the Serjeants at the Barr. And afterwards Hutton said That that was a good Cause to be considered and to be moved again 11. In a Replevin And the Title was by Lease made by a Parson And the Avowry was That A. was seized of the Rectory of H. and made the Lease without shewing that he was Parson And by the Court That that should have been a good Exception if it had not been said in the Avowry moreover That A. was seized in juâ—e Ecclesiae which supplies all 12. During the time of the Parson the Patron hath nothing to do in the Church And therefore if the Patron grant a Rent by Fine out of the Church the Church being then full and afterwards the Incumbent dies that charge shall not bind the Successor for that the Parson and the Ordinary were no parties to it 13. If a Parson would Resign the word Resignare is not it seems the only proper word in the Law for Resignation but Renunciare Cedere Demittere are the usual words or terms of Resignation Yet if a Prebend doth give grant yield and confirm his Prebendary and the Possessions thereunto belonging unto the Ordinary To have and to hold to him and his Successors in Fee subjecting and submitting to him Omnia jura by reason thereof qualitercunque acquisita these words it seems are sufficient and amount to a Resignation albeit the proper words are not therein Which Resignation ought to be made to the Immediate Ordinary and not to the Mediate for which reason a Prebend may not Resign to the King for that although he is Supream Ordinary yet he is not the Immediate Ordinary and he is not bound to give Notice to the Patron as the Ordinary ought nor of himself can Collate but is to present to the Ordinary 14. In Trespass The Case was The Defendant being Incumbent of the Church of B. M. and G. having the Donation thereof made an Instrument whereby Concessit Resignavit to M. omnibus ad quos in hac parte pertinet ad acceptandam Ecclesiam suam de B and thereupon the two parties gave it to the Plaintiff who being disturbed by the Defendant brought Trespass The Question was whether a Resignation of a Donative could be to the Donor or how it might be departed with Resolved 1 That this being a Donative begun only by the Foundation and Erection of the Donor he hath the sole Visitation and the Ordinary hath nothing to do therewith and as the Parson comes in by the Donor so he may restore it to him and although the Presentee when he is in hath the Freehold yet he may revest it by his Resignation without any other Ceremony and the Ordinary hath nothing to do with it For Admission and Institution are not necessary in case of a Donative 2 Resolved That the Resignation to one of the parties is good for it doth enure to both as a Surrender shall do 3 Resolved That although the Resignation was de Ecclesia yet it shall extend to all the Possessions 15. At a Synod in 44 Ed. 3. a Canon was made That the Parson of every Church in England shall appoint the Parish-Clerk And at another Synod held in An. 1603. a Canon was made to the same effect and yet it doth not take away the Custome where the Parishioners or Churchwardens have used to appoint the Clerk because that is Temporal which cannot be altered by a Canon If the Clerk of a Parish in London hath used time out of mind to be chosen by the Vestry and afterwards Admitted and Sworn before the Archdeacon and he refuse to Swear such Clerk so Elect but Admits another chosen by the Parson In this Case a Writ may be awarded commanding him to Swear the Clerk chosen by the Vestry 22 Jac. Walpool's Case The like Writ was granted for the Clerk of the Parish of St. Fosters London Mich. 16 Car. B. R. between Orme and Pemberton The Parishioners of the Parish of Alphage in Canterbury prescribed to have the Nomination and Election of their Parish-Clerk and the Parson of a Parish by force of a Canon upon voidance of the place of the Parish-Clerk elected one to the Office The Parishioners by force of their Custome elected C. the Parson supposing this Election to be Irregular for that it was against the Canon Sued C. before Dr. Newman Chancellor of Canterbury and the said C. was by Sentence deprived of the Clerkship of the Parish and another Clerk of the Parish Admitted C. moved for a Prohibition and had it granted by all the Court for it was held That a Parish-Clerk is a meer Lay-man and ought to be deprived by them that put him in and no others and the Canon which willeth that the Parson shall have Election of the Parish-Clerk is meerly void to take away the Custome that any person had to Elect him Vid. Stat. 25 H. 8. That a Canon against Common Law confounding the Royal Prerogative of the King or Law of God is void and Custome of the Realm cannot be taken away but by Act of Parliament vid. 21 Ed. 4. 44. And it was Resolved That if the Parish-Clerk misdemean himself in his Office or in the Church he may be Sentenced for that in the Ecclesiastical Court to Excommunication but not to Deprivation And afterwards a Prohibition was granted by all the Court and held also That a Prohibition lieth as well after Sentence in this case as before And in Jermin's Case Whereas the Churchwardens and Parishioners of K.
hath ever something of Spiritualty annex'd to it 5 That in its nature it be perpetual 6 That all manner of Contracts and Bargains concerning it be utterly rejected Panorm Consil 47. Anchor de Regul prim de reg jur in 6. q. Decius in Rub. de Rescript 16. Whatever is enjoyed as a Benefice is had and obtained either by way of Title or Canonical Institution Lindw de cohabit Cle. Mulier c. ut Clericalis verb. Beneficiati Ecclesiastical Benefices being commonly distinguish'd into Presentatives and Donatives for a Parochial Church may be Donative and exempt from all Ordinaries Jurisdiction For if the King doth found a Church or Chappel he may exempt the same from the Ordinaries Jurisdiction in which case the Lord Chancellor and Lord Keeper shall Visit the same 20 E. 3. Excommeng 9. 21 E. 3. 60. Parsons Law cap. 28. Or if the King by his Letters Patents doth License a Common person to Found a Church or Chappel exempt from the Ordinaries Jurisdiction the same shall be Visited by the Founder and not by the Ordinary 6 H. 7. 4. per Keble 8 Ass 29. F. N. B. 42. acc And if such Clerk Donative be disturbed in his Incumbency the Patron or Founder shall have a Quare impedit Praesentare and declare upon the Special matter But if a Patron of a Church Donative doth once present unto the Ordinary and his Clerk be Admitted and Instituted it is now become Presentable and it shall never be Donative after and then the Ordinary shall Visit the same a Proxie shall be paid and Lapse shall incur to the Ordinary as in all other Benefices presentable but so long as it remains Donative it is without the Jurisdiction of the Ordinary For a Donative is a Benefice meerly given and collated by the Patron to a man without either Presentation to or Institution by the Ordinary or Induction by his Order All Bishopricks were anciently Donative by the King and it is said that there are certain Chauntries which may be given by Letters Patents The Original Donatives in England is supposed to be from what Mr. Guinn mentions in the Preface of his Readings viz. That as the King might anciently Found a Free Chappel and exempt it from the Diocesan's Jurisdiction So he might also by his Letters Patents License a Common person to Found such a Chappel and to Ordain that it shall be Donative and not Presentable and that the Chaplain shall be deprivable by the Founder and his Heirs and not by the Bishop Whether such Donatives are properly Benefices Ecclesiastical may well admit of an Enquiry for where Petr. Gregorius speaks of Chappels Founded by Lay-men not approved by the Diocesan nor by him as it were Spiritualiz'd he there says plainly that they are not accounted Benefices nor can they be conferr'd by the Bishop but the Founders and their Heirs may give such Chappels if they so please without the Bishop Petr. Gregor de Benefic cap. 11. nu 10. Guid. Pap. Decis 187. And Lindwood makes a very prolix question on the same reason whether St. Martins Le Grand Lond. be Ecclesiasticum Beneficium or not Arguing it pro and con but concludes in the Affirmative Lindw de Cohab. Cler. Mul. cap. ut Clericalis 17. The Prior of D. was seized of the Advowson of the Church of N. appropriated to his Priory and also of the Vicarage of N. endowed with small Tithes The Appropriation and Endowment were both in the time of King John and continued till the time of Hen. 6. when the Pope granted by his Bulls That the Prior should appoint one of his Monks to officiate the Cure who should be removed ad nutum Prioris The point was Whether the Vicarage was dissolved Resolved 1 That a Vicarage Perpetual could not be dissolved after the Statute of 4 H. 4. and that the Pope could not make any Ordinance against that Statute nor Dispence by his Bulls with the Law though they tend in Ordine ad Spiritualia 2 There were no words that amount to a Dissolution but the words only are That the Vicar should be ad nutum Prioris 3 The Parsonage and Vicarage are two distinct Benefices and both have Curam animarum the Parson habitualiter and the Vicar actualiter and although the Vicarage be Spiritual yet the Corporation is Temporal which the Pope cannot dissolve 4 That in this case the Vicarage was not Dissolved vid. 12 Jac. in the Exchequer Parry and Bank's Case accordingly there vouched 18. In the Canon Law there are two sorts of Vicarages viz. Vicaria Temporalis and Vicaria Perpetua The Vicaria Temporalis is compared to the Commenda Temporalis for that such Temporal Vicar non habet Titulum sed servit alieno nomine proprie Curam non habet otherwise it is de Vicaris perpetua quae est incompatibilis cum alio Beneficio habet Curam animarum talis Vicarius habet Titulum Canonicum And a Quare Impedit lies against such perpetual Vicarage F. N. B. 32. h. Regist 31. a. And such a Vicar shall have a Juris Vtrum of Lands annext or given to him in perpetuity by the Statute of 14 Ed. 3. cap. 17. vid. 40 Ed. 3. 28. b. where Finchden said That although it had been held that a Vicar should not have Action of his Possessions against any person yet that now the Law is changed in that point and good reason when he is endowed to him and his Successors in perpetuity CHAP. XIX Of Advowsons 1. Advowson what and why so called 2. Advowsons twofold 3. The great Antiquity of Advowsons the Original thereof 4. How it was in this Kingdom under the Saxons 5. The word Advowson applicable to other Ecclesiastical Foundations as well as Churches what the Famous Lindwood was 6. Advowsons are Temporal not Spiritual Inheritances 7. Reasons in Law proving it to be a Temporal Inheritance 8. The difference between Advowsons in Gross and Appendant 9. How Advowson Appendant may remain in the King as in Gross 10. By what words in a Grant an Advowson may pass or not 11. How an Advowson may be recontinued to the Rightful Patron where he was ousted by Vsurpation 12. A Case in Law touching three Avoydances of a Church granted to one man 13. A Question in Law whether upon such matter of Fact an Advowson remains Appendant or not 14. Advowsons are devisable by Will as well as grantable by Deed what Actions may run in prejudice to the Advowson or not 15. Whether an Advowson may be Assets and under what words it may pass or not 16. A Case in Law touching the Advowson of a Vicarage 17. In what case the Writ of Right of Advowson lies or not 18. In what case the Crown shall be put to that Writ or not in case of Vsurpation by a Common person 19. A point in Law whether the King or his Grantee shall have the Presentation where the King having a
may have a Writ of Right of Advowson but this Writ lieth not for him unless he claim to have the Advowson to him and his Heirs in Fee-simple which Advowson is valuable though the Presentment be not 18. The Queen seized of an Advowson being void the Ancestor of P. Presented and so gained it by Usurpation and then the Church being void he Presented again his Clerk dies and then the Queen grants the Advowson to Y. the Plaintiff who brings a Quare Impedit in the Queens Name supposing that this Usurpation did not put the Queen out of Possession It was argued That the Grant could not pass without special words because it is in the nature of a Chose in Action And Dyer Mead and Windham held That this Usurpation did gain possession out of the Queen and that she should be put to her Writ of Right of Advowson but the Opinion of Anderson Cheif Justice was clearly That the Queen was not out of Possession for he said That it was a Rule in our Books that of a thing which is of Inheritance the act of a Common person will not put the Queen out of possession But if she had only a Chattel as the next Advowson then perhaps it is otherwise But Mead and Windham very earnestly held the contrary relying on the Book of 18 E. 3. where Shard said That if the King had an Advowson in his own Right and a Stranger who had no Right happen to Present it puts the King out of Possession And the King shall be put to his Writ of Right as others shall The Defendant alledged Two Presentations in his Ancestor after the Title of the King and demanded Judgment if the King should have a Writ of Possession and the Plea was admitted to be good But after Pasch 25 Eliz. Judgment was given for the Queen for that she might very well maintain a Quare Impedit and the two Presentments did not put her out of possession 19. In a Quare Impedit by G. against the Bishop of L. and D. Incumbent The Case was That a Mannor with the Advowson Appendant was in the hands of the King and the Church became void and the King grants the Mannor with the Advowson If the Grantee shall have the Presentation or the King was the question All the Justices held clearly That the Avoidance would not pass because it was a Chattel vested And Periam said that in case of a Common person without question an Advowson appendant would not pass by such Grant for if the Father die it shall go to his Executor but if it be an Advowson in Gross in case of a Common person there is some doubt But in the Principal Case all the Judges held ut supra and said That so it was in 9 E. 3. 26. Quare Impedit 31. and in Dyer in the Case of the Church of Westminster But F. N. B. is contrary 33. N. 20. Of Advowsons there are three Original Writs whereof one is a Writ of Right the other two of Possession viz. Darrein Presentment and Quare Impedit And where an Advowson descendeth unto Parceners though one Present twice and usurpeth upon his Co-heir yet he that was negligent shall not be clearly barr'd but another time shall have his turn to Present when it falleth And by the Statute of 3 Jac. 5. every Recusant Convict is utterly disabled to Present to any Ecclesiastical Living or to Collate or Nominate to any Donative whatsoever the Advowson of every such Recusant being left to the disposition of the Universities of Oxford and Cambridge Also by the Statute of 13 E. 1. 5. it is directed what Action shall be maintained by him in the Reversion who is disturbed to Present after the Expiration of a particular Estate where there is also provided a Remedy for him in the Reversion or Remainder or others that have right where there is an Usurpation of an Advowson during any particular Estate And that Judgments given in the Kings Courts touching Advowsons shall not be avoided by Surmizes but by lawful means Likewise it is statute-Statute-Law to hold That Advowsons shall not pass from the King but by Special words for when the King doth give or grant Land or a Mannor with the Appurtenances unless he make express mention in his Deed of Advowsons of Churches when they fall belonging to such Mannor or Land they are reserved to him notwithstanding the word Appurtenances albeit among Common persons it hath been otherwise observed nor is it lawful to purchase an Advowson during the dependancy of a Suit at Law concerning the same 21. If a Feme Covert be seized of an Advowson and the Church becomes void and the Wife dieth the Husband shall Present Where Parson and Vicar be Endowed in one Church and the Vicarage becomes void the question is To whom the Advowson of the Vicarge doth belong and who in that case shall be said to be the Patron of the Vicarage Whether the Patron of the Parsonage or the Parson It seems the Books at Common Law the Judges and the Court were divided in Opinion touching this point some of the Judges were of Opinion That the Advowson of the Vicarage appertains to the Parson Others that it belongs to the Patron Such as inclined that it is in the Patron gave for reason That the Ordinary cannot make a Vicar without the assent of the Patron 5 E. 2. Quare Impedit 165. puts the Case That although the Vicarage be Endowed with the assent of the Patron and Ordinary yet the Advowson of the Vicarage doth remain in the Parson because the same is parcel of the Advowson of the Parsonage And 16. E. 3. Grants 56. it was a question Whether by the Grant of the Advowson of the Church the Advowson of the Vicarage did pass and there it was said by Stone That it doth pass as Incident to the Parsonage And in regard the Vicar is as the Parsons Substitute and his Endowment originally only as a Maintenance for him in officiating the Cure for the case of the Parson whose Concern it is to see that he be a fit and able person sufficient for the Cure it should thence seem rational that the Parson should be his Patron to Present such an one to the Vicarage as shall be sufficient for the Cure for which reasons the Patronage of the Vicarage should seem rather to belong unto the Parson than to the First Patron of the Parsonage Appropriate 22. An Advowson cannot it seems at the Common Law be called a Demesne for that it is not such a thing as a man hath a Manual occupation or possession of as he hath of Lands Tenements and Rents whereof he may say in his Pleading That he was seized thereof in his Demesn as of Fee which he cannot say that hath only the Advowson of a Church because it lies not as the other in Manual occupation And therefore in the case
such a malign influence upon succeeding Princes in After-ages and other Kingdoms and also upon the Popes as some Historiographers do more than conjecture is not so evident as that which is reported by Ingulphus Abbot of Crowland touching Eight Churches to have been Appropriated to that Abbey by several Saxon Kings and though by their Charters yet whether by such exclusively to all Ecclesiastical Authority is not so certain as that William the Conqueror without asking leave of the Pope Appropriated three Parish-Churches to the Abbey of Battaile which he built in memory of his Conquest and his youngest Son H. 1. nigh twenty in one day to the Cathedral of Sarum by his Letters Patents together with the Tithes of those Parishes which his elder Brother William Sirnamed Rufus had depopulated and disecclesiated in New-Forrest in Hantshire Notwithstanding which the Pope who understood his Supremacy in matters Ecclesiastical better than to part with it upon any Presidents of Temporal Usurpations doth frequently in his Decretals without any contradiction rather assume than arrogate this Right unto himself as a Prerogative of the Apostolick See and granted to several Religious Orders this Priviledge of taking Ecclesiastical Benefices at Lay-mens hands by the mediation of the Diocesan who at a moderate and indifferent rate as one Moity of the Annual profits of the Benefice was to be a Medium or Expedient between the Religious House and the Incumbent but in process of time partly by the remisness of the Bishops in that point and partly by the Covetousness of the Monks and Friers in those days the Incumbents proportion became at last so inconsiderable that Pope Vrban the Fifth by his Legate Othobon about the year 1260 was forced to inhibit all the Bishops here in England from Appropriating any more Churches to any Monastery or othes Religious Houses save only in such cases where Charity might prevail in derogation of Law and under this Proviso also That the Bishops should assign a competent proprotion of the Parochial Fruits for the Maintenance of the Incumbent according to the annual value thereof in case the new Appropriators did it not within Six months next after such Appropriation but this Constitution not taking the effect expected a convenient Maintenance for the Vicar was otherwise provided for by Two Statutes the one made by R. 2. the other by his Successor H. 4. So that upon the whole it may be rationally inferr'd that these Appropriations originally came partly by the Act of Ecclesiasticks and partly by the Laity But what way soever they came this is and hath been held for Law within this Realm That albeit the Pope takes upon him to be Supream Ordinary yet no Appropriations made by him or by any Authority derived from him were ever allowed or approved of by the Laws of this Realm it being held That no Appropriations within this Realm can be made but by the King or by Authority derived from him and by his License and that all other Appropriations are void in Law An Appropriation may be by the King Sole where he is Patron but it may not be by the Patron Sole Grendon's Case in Plowden 17 E. 3. 39. An Appropriation cannot be without the King's License Ward 's Case Poph. Rep. Nor will the Objection hold against the King to say No man can make an Appropriation of any Church having Cure of Souls the same being a thing meerly Ecclesiastical and to be made by some Ecclesiastical person but he only who hath Ecclesiastical Jurisdiction for such Jurisdiction the King hath and is such a Spiritual person as may of himself Appropriate any Church or Advowson because in him resides the Ecclesiastical Power and Jurisdiction And therefore in a Case of Commendams it was long since held That an Appropriation made by the Pope could not be good without the King's License The like in a Case of Avoidance was vouched in Cawdrie's Case That the Entry into a Church by the Authority of the Pope only was not good and that he could not Appropriate a Church to Appropriatees to hold to their own use And in Gyendon's Case it was Resolved by the Justices That the Ordinary Patron and King ought to be assenting to every Appropriation and that the Authority which the Pope had usurped in this Realm was by Parliament 25 H. 8. acknowledged to be in the King who as Supream Ordinary may Appropriate without the Bishop's Assent 2. It seems therefore without any contradiction most evident That Appropriation or Impropriation at the Original thereof was when the Religious Houses of the Romish Church and the Religious persons as Abbots Priors and the like had the Advowson of any Parsonage to them and their Successors obtaining License of their Holy Father the Pope as also of Kings and of their Ordinaries that they and their Successors should from thenceforth be the Parsons thereof that it should thenceforth be a Vicarage and that a Vicar should serve the Cure So that at the beginning of this Spiritual Monopoly of Appropriations they were made only to such Spiritual persons as were qualified to Administer the Sacramental Ordinances and perform Divine Service Afterwards the Grant thereof was gradually enlarged and extended to Deans and Chapters though Bodies Politick and as such not capable of performing such Divine Services yea and which was most Ridiculous as well as Impious to Nunus which were Prioresses to some Nunnerics but not Female-Preachers as in these daies All which was under a Pretence of maintaining Hospitality and to supply all defects hereby occasioned there must be the Invention of a Vicar as the Appropriators Deputy to serve them and the Cure for which he had and hath the Tithe of Mint and Cummin and such other small ossals of Tithes as might be spared out of the weightier Granaries thereof without breach of the Laws of Hospitality thereby Sacrilegiously robbing the Church to enrich themselves Thus the poor Vicar shall have something like a certain portion of the Benefice whilst the Abbot and the Covent and their Lay-Successors shall be the Parsons and receive the main Profits and so live by the Altar without waiting on it and be Re-baptized by the Law with the name of Parsons Imparsonces This was that Anciently which we now call Appropriation which cannot be made to begin in the Parson's Life-time without his Assent and is so called because they hold the Profits ad proprium suum usum but if such Advowsons happen to be recovered by Ancient Title then and in such case the Appropriation of the Parsonage is annulled 3. So that from the Premisses it is evident That this Appropriation or Impropriation is an Annexation of an Ecclesiastical Benefice which originally was as it were in nullius Patrimonio to the proper and peculiar use and benefit of some Religious House Bishoprick Dean and Chapter Colledge c. Quod Divini juris est id nullius est in bonis Instit de
Rer. Divis § Nullius And it is supposed That such as are Impropriators are so denominated for that now and hereby they are as Owners of a Feesimple by reason of the perpetuity of their Title whence called Proprietarii whereas the Parsons of any Ecclesiastical Benefice are properly regularly and ordinarily accounted but Vsusructuarii nor were they any other Originally and not Domini as having any Right of Fee-simple in them It is further asserted by Dr. Cowell That before the Reign of R. 2. it seemed to be lawful to appropriate all the Provenues of an Ecclesiastical Benefice to an Abby or Priory provided they found one to serve the Cure but then withal that King though he did not suppress such Spiritual Monopolies yet made a Law whereby he Ordained That in every License of Appropriations to be thenceforth granted in Chancery it should expresly be appointed and contained That the Diocesan of the Place should take care to provide an Annual competency or convenient sum of Money to be yearly issuing and paid out of the Parsonage-Fruits of that Parish towards the maintenance of the Poor thereof and for a sufficient subsistance and endowment of the Vicar By the Statutes of 15 R. 2. pl. 6. and 4 H. 4. cap. 12. it is Provided That where a Church is Appropriated a Vicar ought to be Endowed If the Church be full the consent of the Diocesan Patron and Incumbent are necessary to an Appropriation after the Kings License first had and obtained in Chancery But if the Church be void then the Diocesan and the Patron upon such License from the King may conclude it And as to the Dissolution of an Appropriation the Patron 's Presentation of his Clerk to the Ordinary with his Institution and Induction thereupon is sufficient to effect it and puts the Benefice instatu quo 4. Although Appropriations at their Original were tolerated only to persons Ecclesiastical and that in order to their better Hospitality yet now they are become as Lay-Inheritances and adapted as well to persons Secular as Ecclesiastical and to Bodies Corporate as well as to persons Private or Individual who by virtue of their Right and Title to a Parsonage or Spiritual Benefice may take the Profits thereof to their own proper use maintaining only a Vicar upon the place to serve the Cure Anciently and Originally these Appropriations came from the Pope afterwards tolerated by Kings and with the consent and approbation of the Ordinary So that now Appropriators and Appropriations are no other than Lay-Parsons Lay-Parsonages which Lay-Parsons as they are the Proprietaries the Common Law allows them to be called the Incumbents and him that hath the Church by Appropriation Parson Imparsonee and although they are said to be perpetually Appropriate yet may be Dissolved and become Propriate again as in case a Corporation to which it belonged should be Dissolved or in case the Advowson should be Recovered by a Title more Legal and more Ancient than that of the Appropriation which as it was originally tollerated only to Spiritual persons so never without the Ordinary's Consent and approbation consonant whereunto are the Seventh and Eighth Canons of the Council held at Gangra where a Curse is pronounced upon all such as shall presume to give or receive the Church-Fruits otherwise than by the Bishops Dispensation or of such other as by the Bishop shall be appointed thereunto Nor was it ever in the Primitive times held lawful for meer Lay-men and Secular persons to have any thing to do with the Church Revenues It was an Observation of Stephen Bishop of Rome in the second Century in his second Epistle Laicis quoque quamvis Religiosi sint nulla tamen de Ecclesiasticis Facultatibus disponendi legitur unquam tributa facultas which long after was also repeated in the Council of Lateran under Innocent the Third c. 44. And in the filling of such vacant Appropriations as were granted to Religious Houses the Bishop was impower'd by Law to oblige the Proprietaries to set out for the Vicar Incumbent such a convenient Portion as the Bishop in his Judgment should be pleased to allot Vid. Alex. 3. ad Epise Wigorn. De Praeb Dig. c. de Monach. 5. Whereas it hath been formerly hinted § 5. that Appropriations have heretofore been granted to Nunneries Hobard Chief Justice is express against it That a Benefice with Cure could not be Approprietated to a Nunnery though the Pope made many de facto Citing Dyer in Grindon's Case saying That it was a thing Abominable both against the Law of God and the Law of this Realm for Beneficium non datur nisi propter Officium Nor is it a sufficient Answer to say the Cure might be served by a Curate for them for the question is not How they might make a Curate but how themselves were capable for it must radically vest in the first Grantee before it can go in title of Procuration or Deputation to any other For the proper and operative words which make an Appropriation are such as must make the Patron and his Successors perpetual Parsons yet if a meer Lay-man or one wholly illiterate be Presented Instituted and Inducted this is not a meer Nullity but he is a Parson de facto as having all the Ceremonies to make him such and his Insufficiency must receive Examination yet no Dispensation can make him a lawful Parson not subject to Deprivation because it is Malum in se but in the other Case the Incapacity appears in it self Nor are Appropriations regularly grantable over neither can they endure longer than the Bodies whereunto they were first Appropriate because it carries not only the Glebe and Tithes which may be granted away but it doth also give them the Spiritual Function and doth make the Parsons of the Church and doth supply so Hobart Chief Justice Institution and Induction which being the highest parts of Trusts cannot be estranged And therefore the Instrument of Appropriation runs in these words viz. That they and their Successors not their Assigns shall be Parsons or by Periphrasis hold the Church in proper use Likewise when an Appropriation was made by the King as the Supream Ordinary or by a Bishop as the Ordinary under him the Instrument thereof did run in these or the like words viz. if by the King Authoritate nostra Regali if by the Bishop with the King's Assent then it was Authoritate nostra Ordinaria Ecclesiam Parochialem de B. tali c. Annectimus Appropriamus unimus per Praesentes 6. Appropriations of Ancient time are not now in these daies to be questioned as to the Original of them if they have ever been so reputed and taken for Impropriations To which purpose it was Resolved in the time of Queen Elizabeth in Chancery by Egerton Lord Chancellor of England being assisted with the Principal Judges That although an Advowson doth not pass by the Grant of the King
like which without such a Faculty would have avoided it 4. The Semestral Commendatary is not reputed Praelatus but Procurator Administrator habens titulum Canonicum It doth make Fructus suos but ad providendum sibi Ministris and what remains is to be converted to the use of the Church Greg. X. in Concil Lugd. An. 1275. Gloss in cap. Nemo 15. De Electione in Sexto And John d'Atbon upon Othobou's Canon or Constitution De Commendis Ecclesiarum says That Commendare idem est quod Deponere seu Custodiae Committere And all agree that such a Commendatary is not Praelatus but Procurator habet tamen Legitimam Administrationem ad Colligend providend Ministris ea vero quae supersunt ad utilitatem Ecclesiae convertenda Commendare ut ait Papin nihil aliud est quam deponere l. Lucius ff Deposit l. Commendare ff de verb. Sig. l. Publia ff Deposit Gloss ibid. But as to a Perpetual Commendam Perpetuity and the disposal of the Fruits must concur And as a Patron cannot Present to a Church Full so neither can a Commendam be made to a Church certain that is then Full for there is no difference betwixt a Commendam and a Presentation but that the one Presents the Parson to the Church the other commits the Church to the Parson both being incompatible when the Church hath his proper Rector The Canons also speaking of Commendams rely much upon Ecclesias vacantes necessitatem utilitatem Ecclesiae vacantis And Commendams were not made anciently in general terms to any Churches uncertain but to some certain Church then void Also the Patrons consent is necessary to a Commendam secundum omnes Patroni consensus omnium qui laedi possunt requiritur And again Quod satis observant Praelati qui nisi Praesentati per Patronos non faciunt Commendas Gloss in Concil Lugd. Othob Provin Hob. Rep. in dict Cas Colt and Glover vers Bishop of Covent and Lichfield Likewise it is further asserted by Sir Hen. Hobart in the Case aforesaid That the Temporary Commenda brings with it so many Incongruities Inconveniences and Absurdities in Law as cannot be born for thereby the Church is neither altogether void as it remains in the Case of a Commendam Semestris which is but a Sequestration of Fruits and Cure till the Patron Presents neither is the Church absolutely Full for then it should be Plena Consulta h. c. plena de possessore consulta de Rectore 5. Commenda in the Canon Law hath a nigh affinity to Collation Rebuff in § Statuimus in ver conferantur de Collat. and is a Canonical Institution or a Canonical Title cap. Dudum in 2. de Elect. Etsi in titulum non detur Ecclesia and when the Commendatary dies the Benefice is void ut alia in titulum possessa Rebuff de pacif Possess nu 42 43 44. The Pope was wont to provide by a Commendam when he gave a Benefice in Custodiam that he that had the Custody thereof should not thereof have fructus suos cap. Nemo de Elect. in 6. but should restore the same Can. placuit 10. q. 3. unless he express'd in the Grant as he often did that the Commendatary should convert the Fruits thereof to his own use It is in Law provided by the Commendam that the Commendatary shall not be nor said to be Titularius Ecclesiae concessae because he hath another at the same time and together with that he cannot aliam habere in titulum cap. dudum in 2. de Elect. cap. fin 21. q. 1. For the Law compares the Relation that is between a Rector and his Church to that of Man and Wife and in express terms calls it Matrimonium cap. sicut vir q. 1. and says it is as odious to have more Benefices than one at once as more Wives than one at once cap. de multa de Praebend whence it may aptly be inferr'd That Plurality is a kind of Spiritual Bigamy or Polygamy Moreover by the Canon Law a Commendam may be either for a certain time or for life cap. Extirpandae § quia vero De Praeben c. nemo de Elect. in 6. And during the vacancy of a See the Chapter may grant the Commendam ad tempus c. significatum de Praeb dict c. nemo If the Commendam be granted in Perpetuity or for life it is vice tituli Nam ad tempus Collatio fieri nequit Beneficii c. si gratiose de Rescript c. satis perversum 66. Dist In the Church of Rome there are certain Benefices which were never wont to be given in Commendam such as that of the Holy Ghost in Sicily St. John of Jerusalem St. Anthony the Blessed Virgin Mary and others and this by a Constitution of Pope Alexander the Sixth as a mark of grace because they were given to the Fraternity of these Orders in titulum Rebuff de Commendis nu 41. Prox. Benef. 6. Whether any man Inferiour to a Bishop may Ecclesiam Commendare is a Question moved by Rebuffus who holds it in the Affirmative provided it be a Commenda only ad Tempus that is only for Six months Rebuff Respon 71. de Commenda which opinion Panormitan seems to be of by saying Inferiorem à Papa non posse Perpetuo Commendare sed ad Tempus sic Panorm in c. si constiterit in 1. notab de Accusat For the Canonists of the Romish Church do hold That Commendare in perpetuum potest solus Papa Ad tempus sex mensium quilibet Ordinarius potest Likewise Panormitan says further That a Chapter Sede vacante possit usque ad sex menses Commendare Panor Felin in c. cum olim 11. q. de Major obed Jo. Francisc in Tract de Offic. potest Capituli Sede vacante in 2. part q. 3. whence Rebuffus concludes that any other qui Beneficia conferre potest may do the like it being as a Rule in Law That illud videtur permissum quod non est prohibitum c. nam concupiscentiam de Consti L. praecipimus C. de Appellat The Canon Law to which only we are beholding for the clearest apprehensions we can possibly have of Commendams allows a very extensive Latitude to the Pope in the granting and revoking thereof but this doth not concern us further than as the Popes Ecclesiastical power heretofore exercised in this Realm by way of Usurpation is now vested in the King de jure yet it will be agreed on all hands That a Commendam in the very nature of it is meerly and properly Custodial that Church or Benefice being then granted in Commendam quando in custodiam seu Custodiae causa datur c. nemo de Elect. in 6. And as he who hath only the Custody of a thing non facit fructus suos so neither he according to the Canon Law who hath a Commendam without the Popes special grant thereof to the Commendatary c.
placuit 10. q. 3. Rebuff de Commenda who yet by the same Law possit expensas facere ex reditibus Beneficii Commendati sumere ex eo alimenta debita persolvere sicut is qui titulum habet c. 1. de Solutio hoc afferit Archidiac in cap. qui plures 21. q. 1. 7. The grand Case of a Commendam was that of Evans and Kiffin against Ascuth which being two daies argued by the Judges and by Noy Attorney is acutely and succinctly Reported thus viz. In Trespass Dr. Thornbury being Dean of York was chosen Bishop of Limbrick in Ireland But before Consecration or Confirmation he obtained a Patent with large words Non obstante retinere valeat in Commendam the said Deanary c. And afterwards he was chosen Bishop of Bristol and then also before Installation he obtained another Patent with a more ample Dispensation of retaining the Deanary in Commendam It was Agreed by all That the Church or Deanary c. in England shall be void by Cession if the Parson or Dean c. be made a Bishop in Ireland For the Canon Law in that is one through all the World Also Ireland is governed by the Laws of England and is now as part of England by Subordinacy Note well 45 E. 3. 19. b. Confirmation under the Great Seal of England is good in this Case Confirmation under the Great Seal of England of Presentation to a Church in Ireland of the Heir of the Tenant of the King and that a Dispensation under the Great Seal of England is good in this Case without any Patent of it in Ireland vid. 8 Ass 27. 10 E. 3. 42. An Exchange of Land in England for Land in Ireland is good Note 20 H. 6. 8 Scir fac sued in England to Repeal a Patent under the Great Seal of Ireland vid. the Irish Statute 2 Eliz. cap. 4. That an Irish Bishop may be made under the Great Seal of England Note Stat. 1 E. 6. the Irish Bishops shall be Donative by Patent of the King under the Great Seal of England yet the King may let them be chosen per Congé d'Eslire c. 1 Noy Attorney Argued at Bar and so stated the Points of the said Case by themselves If a Commendatary Dean by a Retinere in Commendam may well Confirm a Lease made by the Bishop for it is Agreed That a Commendatary Dean by Recipere in Commend cannot Confirm because he is but a Depositarius Note 19 H. 6. 16. 12 H. 4. 20. 27 H. 8. 15. a Commendatary shall be sued by that Name and by such a Commend he may take the profits and use Jurisdiction and yet is not a Dean compleat Note he may make a Deputy for Visitation but not for Confirmation of Leases Note if there be two Deans in one Church both ought to Confirm Vid. Dy. 282. Co. Inst 30. a. 2 The Second point if such a Bishop be chosen to another Bishoprick if now the first Church in Commend admitting that there was a Full Incumbent be void presently by the Election and assent of the Superiour viz. the King And it seemed to him that it was because there need not be a new Consecration and he vouch'd Panormitan 2. par 101. The Bishop of Spires was chosen Bishop of Trevers and had the assent of the Pope and that he came to Trevers and there found another in possession and he would have returned to the former Bishoprick and could not He also Cited 8 Rep. Trollop's Case That the Guardianship of the Temporalties cease by the Election of a new Bishop Note that Serjeant Henden who argued on the contrary vouch'd Mich. 4 Jac. May Bishop of Carlisle made a Lease to the Queen and a Commission issued out of the Exchequer to take it and the Dean and Chapter Confirmed it before the Inrolment of it and yet Adjudged good That Case was for the Castle of Horne First the Judges having Argued two daies Resolved 1 That all Commendams are Dispensations and that Cession commenced by the Canon and Council of Lateran 2 That the King may dispense with that Canon 11 H. 7. 12. For the Pope might and now by the Statute 21 H. 8. that power is given to the King cumulative by way of Exposition veteris and not by Introduction novi Juris and by that Statute a concurrent power is given to the Archbishop of Canterbury and may be granted to the King or by the Archbishop c. 3 That the Dispensation after Election to the first Bishoprick and before Consecration c. and also the Dispensation after Election to the second Bishoprick and before Confirmation is good enough in both Cases and he remains a good Dean to Confirm c. and afterwards the Judgment in the Case being an Action of Trespass was given accordingly 8. A Commendam is to be granted Necessitate evidenti vel utilitate Ecclesiae suadente and in the Infancy of the Church quando defuerunt Pastores they were necessary A Commendam ordinarily is but for six months and he that hath it is Custos only the other is extraordinary and that is for life and he is an Incumbent The King by his Prerogative Royal may grant a Commendam without any Statute yet if such Commendam shall be good it may be very mischievous to the Patron It is it seems agreed in the Books of the Common Law that the use of Commendams in their first Institution was lawful but not the abuse thereof and that a perpetual Commendam viz. for life was held unlawful and condemned by a Council of 700 Bishops It is likewise Reported to us That where the Incumbent of a Church was created a Bishop and the Queen granted him to hold the Benefice which he had in Commendam It was the Opinion of the Justices That the Queen had the Prerogative by the Common Law and that it is not taken away by the Stat. of 35 H. 8. 9. In a Quare Impedit brought by the King against Cyprian Horsefall and Robert Wale on a Special plea pleaded by Wale the Incumbent the Kings Attorney demurred in Law The Case in substance was this viz. the Corporation of Kilkenny being Patrons of a Vicarage within the Diocess of Ossery Presented one Patrick Fynne thereunto who was Admitted Instituted and Inducted After that during the Incumbency of the said Fynne Adam Loftus Archbishop of Dublin and Ambrose Forth Doctor of the Civil Law being Commissioners Delegates for granting of Faculties and Dispensations in the Realm of Ireland according to the Statute of 28 H. 8. cap. 16. by their Letters Dated 9 Octob. 33 Eliz. granted to John Horsefall then Bishop of Ossery That the said Bishop unum vel plura Beneficia curata vel non curata sui vel alieni Jurispatronatus non excedentia annuum valorem quadraginta Librarum adtunc vacantia vel quae per imposterum vacare contigerint perpetuae Commendae titulo adipisci occupare retinere omnesque fructus
ad Familiae suae sustentationem convertere possit juribus sive institutis quibuscunque in contrarium non obstantibus Which Faculty or Dispensation was after ratified and confirmed by Letters Patents under the Great Seal of Ireland according to the Statute of 28 H. 8. c. 16. After this viz. 20 May An. 38 Eliz. Patrick Fynne the Incumbent died whereby the said Vicarage being void and so continuing void by the space of Six months whereby the Bishop had power to Collate thereunto by Lapse the said Bishop by virtue of the said Faculty or Dispensation adeptus est occupavit retinuit the said Vicarage perpetuae Commendae titulo and took the Fruits thereof to his own use until the 13 Febr. An. 1609. on which day the Bishop died After whose death the said Cyprian Horsefall having purchased the next Avoidance of that Vicarage Presented the said Wale who was Admitted Instituted and Inducted And afterwards the King Presents one Winch who being disturbed by the said Horsefall and Wale the King brought a Quare Impedit Whether the said Bishop when he obtained and occupied that Vicarage by virtue of that Faculty or Dispensation were thereby made compleat Incumbent thereof so as the Church being full of him no Title by Lapse could devolve to the King during the life of the Bishop was the Principal point moved and debated in this Case And in the Argument of this point which was argued at the Bar first by the Counsel at Common Law and then by two Advocates well versed in the Canon Law and at the Bench by all the Justices Two things were chiefly considered by those who argued for the Kings Clerk 1 Whether the Bishop could by any Law have and hold that Benefice without such Dispensation or Faculty 2 What effect or operation that Faculty or Dispensation shall have by the Law As to the First they held clearly for Law That a Bishop by the Ancient Ecclesiastical Law of England may not hold another Benefice with Cure in his own Diocess and if he hath such Benefice before his promotion to the Bishoprick that it becomes void when he is created a Bishop And this is the Ancient Law of England as is often said in the Bishop of St. David's Case 11 H. 4. 41 Ed. 3. 5. b. agrees therewith The Reason is for that the Bishop cannot visit himself and he that hath the Office of a Sovereign shall not hold the Office of a Subject at the same time as Hankeford said in the said Case of 11 H. 4. And on this Reason it is said in 5 Ed. 3. 9. That if a Parson be made a Dean the Parsonage becomes void for that the Dignity and the Benefice are not compatible So no Ecclesiastical person by the Ancient Canons and Councils could have Two Benefices with Cure simul semel but the first would be void by taking asecond And this was the Ancient Law of the Church used in England long before the Statute of 21 H. 8. cap. 13. which was made in Affirmance of the Ancient Law as appears in Holland's Case Co. par 4. And with this agrees the Books of 24 Ed. 3. 33. 39 Ed. 3. 44. a. N. Br. 34. l. And the Text of the Canon Law which is the proper Fountain of this Learning proves it fully Decretal de Praeben Dignit c. de multa Where it is said De multa providentia fuit in Lateranensi Concilio prohibitum ut nullus diversas Dignitates Ecclesiasticas vel plures Ecclesias Parochiales reciperet contra Sanctorum Canonum instituta c. Praesenti Decreto statuimus ut quicunque receperit aliquod Beneficium curam habens animarum annexam si prius tale Beneficium habebat eo sit ipso jure privatus si forte illud retinere contenderit etiam alio spolietur c. And with this agrees the Text in Decret Caus 21. q. 1. viz. In duabus Ecclesiis Clericus conscribi nullo modo potest So that it is evident that the Bishop could not by any Law have or retain that Benefice within his Diocess without a Dispensation which is Relaxatio Juris and permits that to be done which the Law had before prohibited It is to be observed That Commenda est quaedam provisio and therefore Gomez in Reg. de Idiomate saith That Commendare est Providere quod Commenda comprehenditur sub quibuscunque regulis de Provisione loquentibus And by the Canon Law the Consent of the Patron is requisite where a Benefice is given in Commendam Lib. 6. Decretal c. Nemo where the Gloss saith Ad Commendam vacabitur Patronus si qui alii ex tali Commenda laeduntur Also in Constit Othob de Commendis it is said expresly That Consensus Patroni ad Commendam requiritur The Canon Law holds these Commendams as very prejudicial and that in divers respects and therefore says That Experientia docet occasione Commendarum cultum Divinum minui Curam animarum negligi hospitalitatem Consuetam debitam non servari ruinis aedificia supponi c. 6. Extra cap Pastoris And whereas it is said of a Bishop That he is to be unius uxoris vir the Canonists expound it That he shall have but one Bishoprick or only one Cure for they say that per Commondam Bigamia contrahitur in Ecclesia Therefore it was well Resolved by that good and pious Bishop who when another Benefice was offered him to hold in Commendam said Absit ut cum Sponsa habeam Concubinam But for the clearer understanding of the nature and difference of these Commendams it is further to be considered That Commenda Ecclesiae is nothing else but Commendatio Ecclesiae ad Custodiam alterius and therefore Decret caus 21. q. 1. Qui plures the Gloss there saith Commendare nihil aliud est quam deponere This Commenda or Commendatio Ecclesiae is divers according to the nature of the Church and the Limitation or Continuance of the Commenda for a Commenda may be of a Church either Curatae or non Curatae and it may be either Temporanea viz. for a time certain as for Six months or Perpetua viz. during the life of the Commendatary A Church with Cure may not be given in Commendam unless upon evident necessity or the benefit of the Church viz. to supply the Cure till provision be made of a sufficient Incumbent And therefore by the Council of Lions it was provided That a Parochial Church should not be given in Commendam nisi ex evidenti necessitate vel utilitate Ecclesiae quod talis Commenda ultra semestris temporis spatium non duraret quod secus factum fuerit sit irritum ipso jure c. 6. Decretal c. Nemo But a Benefice without Cure may be given by the Canon Law for the subsistence of the Commendatary vel ad mensam In that sense the Canonists say That Commenda is quasi comedenda quia Ecclesiae quae
of Six months By the Common Law of England as well Clerks as Laicks have Six months to Present before the Lapse incurr Dr. Stu. 116. b. Per la Com. Ley De Scoce Laici Patroni quadrimestre Ecclesiastici vero Sex mensium spatium habent sibi concessum ad Praesentandum personam idoneam Ecclesiae vacanti Skene Regiam Majestatem 10. b. But Jac. 6. pl. 1. cap. 7. Pl. 7. cap. 102. pl. 12. cap. 119 158. Concedit Patrono Laico spatium Sex mensium infra quod Praesentare debet The Question is not so much when the Term shall end and determine as when it shall commence and from what time the Six months shall be computed The Answer falls under a double consideration or is diversified according to the divers manners of Avoidances for if by Death Creation or Cession the Church be void then the Six months shall be computed from the Death Creation or Cession of the last Incumbent whereof the Patron is to take Notice at his peril But if the Avoidance be by Resignation or Deprivation then the Six months shall begin from the time of Notice thereof given by the Bishop to the Patron who is not obliged to take knowledge thereof from any other than by signification from the Bishop But in case the Avoidance were caused by an Union for so it might be then the Six months should be computed from the time of the Agreement upon that Union for in that case the Patron was not ignorant of but privy to the Avoidance for there could be no Union made but the Patron must have the knowledge thereof and then it was to be appointed who should Present after the Union as whether one or both either joyntly or by turns one after another as the Agreement was upon the Union 3. The Continuance of a Voidance of a Church by the several Lapses of Patron Bishop and Archbishops derives the Title of Presentation at last to the King as Patron paramount of all the Churches in England and wherever the Original Patron by Law ought to take notice of a Voidance at his peril there and in such case by a Non-Presentation within Six months from the time of such Voidance the Lapse will ever incurr And generally by the Admission Institution and Induction to a Second Benefice Prima Ecclesia vacat de persona of the Incumbent vacans continuat till new Induction But when an Archbishop Bishop or other Ordinary hath given a Benefice of right devolute unto him by Lapse of time and after the King Presenteth and taketh his Suit against the Patron who possibly will suffer that the King shall recover without Action tried in deceipt of the Ordinary or the possessor of the said Benefice In such and all other like cases where the Kings Right is not tried the Archbishop Bishop Ordinary or Possessor shall be received to counterplead the Title taken for the King and to have his Answer and to shew and defend his Right upon the matter although that he claim nothing in the Patronage so that the Ordinary may Counterplead the Kings Title for a Benefice fallen to him by Lapse Also when the King doth make Collation or Presentment to a Benefice in anothers Right the Title whereupon he groundeth himself may be well examined that it be true which if before Judgment it be by good information found to be otherwise the Collation or Presentment thereof made may be Repealed whereupon the true Patron or Possessor may have as many Writs out of Chancery as shall be needful There are some Statutes the King not being bound by Lapse of Time for nullum Tempus occurrit Regi which are good remedies and reliefs for the Ordinary that hath Collated by Lapse as also for the Clerk that is Collated for otherwise a Common person might by Practice have turned out a lawful Collatee to which purpose the Lord Hobart doth instance in a Case A Common person no true Patron Presents within Six months and the true Patron himself Presents not in time whereupon the Ordinary Collates by the Lapse against whom the Pretender brings a Quare Impedit because his Clerk was refused wherein he must needs prevail if his Title be good and it must be taken for good because neither Ordinary nor Incumbent could deny it for de non apparentibus de non existentibus eadem est ratio which Inconvenience is remedied by the said Stat. of 25 E. 3. c. 7. Note that Lapse doth not incurr to the Ordinary by reason of his not examining the Clerk within Six months Trin. 3 Jac. B. R. inter Palmer Smith Resolved per Cur. 4. If a Plea be depending between Two parties and it be not discussed and determined within Six months the Bishop may Present by Lapse and he that hath the Right to Present shall according to the Statute recover his Dammages But it is expresly provided by the Statute of 13 Eliz. 12. That no Title to Collate or Present by a Lapse shall accrue upon any Deprivation ipso facto but after Six months after Notice of such Deprivation given by the Ordinary to the Patron But if the Church become void by Death Creation or Cession of the last Incumbent the Patron is at his peril to take Notice of such Avoidances within the next Six months thereof But if it become void by Deprivation or Resignation the Clerk is not obliged to tender his Presentation to the Bishop nor the Patron obliged to Present his Clerk but within Six months next after Notice legally given him by the Ordinary of the Avoidance by such Deprivation or Resignation which Six months are to be calculated or computed by 182 days and not by 28 days to the Month Nor is there any Addition of time over and above the Six months allowed the Patron to Present from the Vacancy a Second Clerk in case the former were legally refused by the Bishop Yet the Ordinary may not take advantage of the Lapse in case the Patron Present his Clerk before the other hath Collated though it be otherwise with the Canonists Lindw c. Si aliquo evincente c. verb. Injuria But if the Bishop Collate and the Patron Present before Induction in that case it seems he comes too late And at the Common Law Sir Simon Degge in his Parsons Counsellor makes it a doubtful Question if the Church Lapse to the King and the Patron Presents before the King take advantage of the Lapse whether this shall avoid the Kings Title by Lapse This says he is a Question by Dyer though Hobart seems to be clear in it that the King shall not have the benefit of the Lapse but adds that divers Authorities are against them And in the Cases aforesaid wherein Notice of Avoidance ought to be given to the Patron before the Lapse can incurr the Patron is not obliged to take Notice thereof from any person other
than the Bishop himself or other Ordinary which also must be given to the Patron personally if he live in the same County and if in another County then Publication thereof in the Parish-Church and affixed on the Church-Door will serve turn if such Notice doth express in certain as it ought to do the cause of the Deprivation c. As upon Deprivation of an Incumbent for not Reading the 39 Articles of Religion the Ordinary is to give the Patron Notice thereof which Notice ought to be certain and particular Before Lapse can incurr against a Patron Notice of his Clerks being refused by the Ordinary for Insufficiency must be given to the person of the Patron if he may be found and it is not in that Case sufficient to fix an Intimation thereof on the Door of that Church to which he was Presented D. 16 El. 327. 7. b. Adjudged 5. It is said That a Lapse is not an Interest naturally as is the Patronage but a meer Trust in Law And if the Six months be incurred yet the Patrons Clerk shall be received if he be Presented before the Church be Filled by the Lapse Observe 7 Eliz Dyer 241. for it seems by that case that the Patron should Present against the Kings Lapse for he hath dammage but for half a year And Hob. Chief Justice says That a Lapse is an act and office of Trust reposed by Law in the Ordinary Metropolitan and lastly in the King the end of which Trust is to provide the Church of a Rector in default of the Patron and yet as for him and to his behoof And therefore as he cannot transfer his Trust to another so cannot he divert the thing wherewith he is entrusted to any other purpose Nor can a Lapse be granted over as a Grant of the next Lapse of such a Church neither before it fall nor after If the Lapse incurr and then the Ordinary die the King shall Present and not the Executors of the Ordinary For it is rather an Administration than an Interest and the King cannot have a Lapse but where the Ordinary might have had it before If an Infant-Patron Present not within Six months the Lapse incurrs The Law is the same as against a Feme-Covert that hath right to Present 33 E. 3. Qua. Impedit 46. 6. In the first Paragraph of this Chapter it is said That Tempus Semestre authoritate Concilii non incipit versus Patronos nisi à tempore Scientiae mortis personae that is of the last Incumbent And so Adjuged upon a Writ in the time of E. 2. and said to be per Legem Consuetudinem Regni hactenus usitatas As if the Incumbent die beyond Sea the Six months are not computed from the time of his death but from the time of the Patrons knowledge thereof and so it was Adjudged in a Quare non admisit between the Abbot of St. Mary Eborum and the Bishop of Norwich as aforesaid For the Six months are not reckoned from the death of the Last Incumbent but from the time the Patron might according to a reasonable Computation having regard to the distance of the place where he was at the time of the Incumbents death if he were within the Realm at that time have come to the knowledge thereof for he ought afterwards to take notice thereof at his peril and not before for that he was in some other County than that wherein the Church is and wherein the Incumbent died And if the Ordinary refuse a Clerk for that he is Criminous in that case the Patron shall not have Six months to Present after Notice thereof given him but of the Avoidance The Law is the same in case of Refusal by reason of Illiterature But if the Church be void by Resignation or Deprivation the Six months shall be computed from the time of Notice thereof given to the Patron and not from the time of the Avoidance Yet if the Ordinary refuse a Clerk because he is Criminous he is to give notice thereof to the Patron otherwise the Lapse doth not incurr So likewise if he be refused for Common Usury Simony Adultery or other Notorious Crime Notice thereof ought to be given to the Patron otherwise the Lapse doth not incurr A Lay Patron ought to have Notice ere the Lapse shall incurr in case his Clerk be refused for Illiterature otherwise as to a Spiritual Patron because the Law presumes he might well know of his insufficiency before he presented him And if the Bishop who took a Resignation dies the Lapse doth not incurr to his Successor without Notice to the Patron 7. In a Quare Impedit the Defendant pleaded That he demanded of J. S. the Presentee of the Plaintiff to see his Letters of Orders and he would not shew them and also demanded of him his Letters Missive or Testimonial testifying his ability and because he had not his Letters of Orders nor Letters Missive nor made any proof of them to the Bishop he desired leave of the Bishop to bring them who gave him a week and he went away and came not again and the Six months passed and the Bishop Collated by Lapse It was Adjudged in this Case That these were no Causes to stay the Admittance of the Clerk for the Clerk is not bound understand it only at Common Law to shew his Letters of Orders and Letters Missive to the Bishop but the Bishop must try him upon Examination 8. A Parson of the Church of S. of the value of Ten pound took a Second Benefice without a Dispensation and was Instituted and Inducted and continued so for twelve years The Patron presented J. S. who was Instituted and Inducted and so continued divers years and died The Queen presented the Defendant C. ratione Lapsus in the time of A. who was Instituted and Deducted B. the Patron brought a Quare Impedit against the Ordinary and C. It was held by the Justices That the Writ did well lie and that Tempus occurrit Reginae in this Case and that last Clerk should be removed And it was held by the Justices That upon a Recovery in a Quare Impedit any Incumbent that comes in pendente Lite should be removed 9. In the Case between Cumber and the Bishop of Chichester it was Resolved 1 If Title of Lapse accrues to the King and the Patron Presents yet the King may Present at any time as long as the Presentee is Parson but if he dies or Resigns before the King Presents he hath lost his Presentment 2. If the King hath Title by Lapse because a Parson hath taken a Second Benefice if the Parson dies or Resigns his First Benefice and the Patron Presents whose Presentee Resigns upon Covin and dies the King hath lost that Presentment CHAP. XXIII Of Collation Presentation and Nomination 1. What Collation is and how it differs from Presentation 2. Collation
as Patron claiming the Patronage to himself for such a Collation doth amount to a Presentation and here are two or three Collations pleaded which should put the Queen out of possesion although she shall not be bound by the First during the life of the first Incumbent Vid. Br. Quare Impedit 31. upon the abridging of the Case of 47 E. 3. 4. That two Presentments the one after the other shall put the King out of possession and put him to his Writ of Right of Advowson which Anderson denied And it was holden by the whole Court here is not any Presentation and then no possession gained by the Collations and although the Bishop doth Collate as Patron and not as Ordinary yet it is but a Collation And there is a great difference betwixt Collation and Presentation for Collation is a giving of the Church to the Parson but Presentation is a giving or offering of the Parson to the Church and that makes a Plenarty but not a Collation 3. The Collation of the Ordinary for Lapse is in Right of the Patron and will serve him for a Possession in a Darrein Presentment as appears by Colt and Glover's Case against the Bishop of Coventry and Lichfield where it is said That the Ordinary or he that presents by Lapse is a kind of Attorney made by Law to do that for the Patron which it is supposed he would do himself if there were not some lett and thefore the Collation by Lapse is in right of the Patron and for his turn 24 E. 3. 26. And he shall lay it as his possession for an Assize of Darrein Presentment 5 H. 7. 43. It seems also by Gawdy's Case against the Archbishop of Canterbury and others That although a Bishop Collate wrongfully yet this makes such a Plenarty as shall barr the Lapse of the Metropolitan and the King And this Collation by Lapse is an act and office of Trust reposed by Law in the Ordinary Metropolitan and King the Title of Lapse being rather an Administration than an Interest as in Colt's Case aforesaid which Title of Collating by Lapse may be prevented by bringing a Quare Impedit against the Bishop Also where and in what Cases the bringing of that Writ against the Bishop shall or shall not prevent such Collation appears in the Case of Brickhead against the Archbishop of York as Reported by Sir Hen. Hobart Chief Justice 4. Presentation is the Nomination of a Clerk to the Ordinary to be Admitted and Instituted by him to a Benefice void and the same being in Writing is nothing but a Letter Missive to the Bishop or Ordinary to exhibite to him a Clerk to have the Benefice voided the Formal force hereof resteth in these words viz. Praesento vobis Clericum meum Thus Presentation properly so called is the act of a Patron offering his Clerk to the Bishop to be Instituted in a Benefice of his Gift It is where a man hath a Right to give any Benefice Spiritual and presents the person to the Bishop to whom he gives it and makes an Instrument in writing to the Bishop in his favour and in case there be divers Coheirs and they not according in the Presentation that which is made by the eldest of the Coheirs shall be first Admitted but if it be by Joyntenants or Tenants in Common and they accord not within Six months the Bishop shall present by Lapse By the Statute of 13 Eliz. cap. 12. a Presentation of an Infant to a Benefice is void And although a Presentation being but the Commendation of a fit person by the Patron to the Bishop or Ordinary to be Admitted and Instituted into a Benefice may be done either by word alone or by a Letter or other writing yet the Grant of a next Avoidance is not good without Deed But a Presentation being no other than a Commendation of a Clerk to the Ordinary as aforesaid and only a thing concerning an Advowson without passing any interest of the Inheritance of the Advowson may be done by word only upon which ground it was Resolved by the whole Court That the Kings Presentation unto an Advowson Appendant to a Mannor parcel of his Dutchy under the Great Seal of England without the Seal of the Dutchy was well made and good Yea and for the same Reason for that a Presentation is but a Commendation and toucheth not the Inheritance was the Kings Presentation to the Deanary of Norwich held good albeit in the said Presentation he mistook and mis-recited the Name of the Foundation of the Deanary 5. A. seized of an Advowson in Fee Grants Praesentationem to B quandocunque quomodocunque Ecclesia vacare contigerit pro unica vice tantum in the Grant there was further this Clause viz. Insuper voluit concessit That the Grant should remain in force quousque Clericus habilis idoneus shall by his Presentation be Admitted Instituted and Inducted Afterwards A. grants away the Advowson in Fee unto S. The Church becomes void S. Presents The Church becomes void again S. Presents G. upon a Disturbance of M. the Presentee of B. the First Grantee a Quare Impedit is brought The Question was Whether B. the First Grantee not Presenting upon the First Avoidance had lost the benefit of his Grant In this Case it was Adjudged by the whole Court That although A. the Grantor grants Donationem Praesentaâ—ionem quandocunque Ecclesia vacare contigerit pro unica vice tantum yet B. ought to have taken the first Presentation that happened and hath not Election to take any turn other than the First when the Church first became void and by his neglect in not Presenting then had lost the benefit of his Grant and the subsequent words in the Grant are but only an Explanation of the words precedent and relate to the next Avoidance 6. The Right of Presentation is a Temporal thing and a Temporal Inheritance and therefore belongeth to the Kings Temporal Laws to determine as also to make Laws who shall Present after Six months as well as before so as the Title of Examination of Ability or Nonability be not thereby taken from the Ordinary The Law is the same touching Avoidances for it shall be judged by the Kings Temporal Laws when and whether the Church may be said to be void or not the cognizance whereof doth not belong to the Kings Ecclesiastical Laws and therefore where a Parson is made a Bishop or accepts another Benefice without License or Resigneth or be Deprived In these cases the Common Law would hold the Church void albeit there were any Ecclesiastical Law to the contrary And it is sufficient for the Ordinary's discharge if the Presentee be able by whomsoever he be Presented which Authority is acknowledged on all sides to have been ever inherent in the Ecclesiastical Jurisdiction But as to the Right of Presentation it self to determine who ought to Present and who
not and at what time and when the Church shall be Judged to become void and when not all these appertain to the Kings Temporal Laws And in case it happen that the King Present not where of Right he may in such case the Ordinary may pro tempore depute a fit person to serve the Cure as in like case he may where there is a default or neglect in other Patrons to Present and do not 7. If the Patrons be Joynt-tenants or Tenants in Common of the Patronage and they vary or differ in their Presentations the Ordinary is not in that Case bound to Admir either of their Clerks nor him that is Presented by the Major part And if the Six months expire ere they agree the Ordinary may Present by the Lapse but within the Six months he may not for if so and the Patrons accord they may bring a Quare Impedit against him as a Disturber and remove his Clerk But in case the Patrons have the Patronage by Descent as Coparceners then is the Ordinary obliged to Admit the Clerk of the Eldest Sister who hath the precedency by Law in the Presentation if she so please after which and at the next Avoidance the next Sister shall Present and so in order by turn one Sister after another till all the Sisters or their Heirs have Presented and then the Eldest Sister shall Present again and this is called a Presenting by Turn which holdeth alwaies between Coparceners of an Advowson unless they agree to Present together or in some other manner by way of Composition which if so then the Agreement ought to hold good Yet here note That if after the death of the Common Ancestor the Church happening to be void the eldest Sister together with another of the Sisters Presents and the other Sisters severally and each in her own Name or joyntly and altogether In this case the Ordinary is not obliged to receive any of their Clerks but may suffer the Church to run into the Lapse for there is no obligation on the Ordinary to admit the Clerk of the Eldest Sister but where she Presents in her own Name only And in such case of variance or difference among the Patrons touching the Presentation the Church is not properly said Litigious obliging the Ordinary at his peril to direct a Writ to enquire de jure Patronatus which Writ lieth only where Two or more Present under pretence of several Titles but in this case all the Patrons present under one and the same Title for which reason the Ordinary may if he please suffer it to pass into the Lapse 8. Suppose a Patron presents to a Church void and before the Admission of the Clerk the Patron dies after his Executors before such Admission Present another Clerk Q. Whether the Archdeacon ought to receive the Clerk of the Testator or of the Executors The Opinion of the whole Court was That the Bishop should have Election therein And in case an Agreement be made by way of Composition between divers claiming one Advowson and Enrolled or by Fine that one shall successively after another Present in such an order certain and after one hath Presented he to whom at the next Avoidance the Second Presentation doth belong is disturbed by any that was party to the said Fine or by some other in his stead In such case it is provided That such so disturbed shall not be put to the Quare Impedit but their resort to the Roll or Fine shall be sufficient where if the Concord or Agreement be found the Sheriff shall be commanded That he give knowledge to the Disturber that he shew by such a time certain as fifteen days or three weeks if he can alledge any thing wherefore the party that is disturbed ought not to Present and if he appear not or appearing alledge nothing sufficient in Bar he shall recover his Presentation with Dammages 9. In the Case of Evans and Ascough it was the Opinion of Doderidge That a Bishop hath no more in a Church by Election than a Parson hath by Presentation And that if a man Present to a Church yet any time before Institution he may revoke it and Present another and if in that case the Bishop will Institute the First a Quare Impedit will lie against him But if the Patron present one and he be Admitted by the Ordinary he cannot in that case vary from his Presentation as was also held by Doderidge in Stoke's Case against Styles where he further said That it was out of all question at the Common Law that before Admission by the Ordinary the Lay-Patron may revoke his Presentation because a Presentation is no other than a Commendation which may be by word only And if the Case be that one hath the Nomination another the Presentation the Presentation and Nomination are all one It was then said by Whitlock That in the Canon Law it is allowed to a Lay-man to vary but not to a Spiritual man but at the Common Law it is all one Doderidge and Jones seemed to give the Reason thereof when they said That it may be intended that a Lay-man cannot at first so well judge or is able to discern of the sufficiency of the party Presented but a Spiritual-man may Quaere If after Admission of the Patrons Presentee he doth afterwards again Present another to the Ordinary and the Ordinary Admit Institute and Induct the last Presentee what Remedy for the first So if a Spiritual Person change his Presentation by the consent of the Ordinary what remedy for the First after Induction of the Second 10. To the same purpose with the premisses is that which is Reported in Stoke's Case against Sykes the Case is this viz. A Lay-Patron having the next Avoidance of a Church after the death of one Stokes Father of the Plaintiff then Incumbent of the said Church after the Fathers death presented Stokes's Son whom the Bishop refused for that by the Canon Law Filius Patri non potest in Ecclesia succedere Whereupon the Patron presented Sykes And now Stokes obtains a Dispensation Non obstante the Canon Notwithstanding the Ordinary doth Institute Sykes and causeth him to be Inducted Whereupon Stokes doth Sue Sykes and the Ordinary in the Delegates and now Banks prays a Prohibition and by all the Justices it was granted And Jones said That he had known it to be Thrice so granted in the like Case viz. in the time of Justice Gawdy as also in the time of Justice Coke in the Common Pleas where both Parsons claimed by one Patron But Doderidge there held That the Canon before-mentioned doth not hold in this Church and so said Doderidge was the Opinion of a Learned Civilian So by the Canon Law a man cannot have that Woman in Marriage whom he had in Avowry before yet that Canon doth not hold in our Church Doderidge said that the Civilians hold That a Lay-Patron cannot revoke
Presentment be forfeited as a Chattel principal and distinct and then the Outlawry is reversed the party shall have Restitution of the Presentment 31. If the King dies before his Clerks Admission and Institution it is a Revocation in Law of his Presentation Or if the King Present one to a Benefice and then Present another to the same without Revoking the former or making any mention thereof yet this also is a Revocation in Law of that former unless the Second were by fraud or surreptitiously obtain'd Likewise if the Kings Presentee dies after Institution and before Induction that also is a Revocation in Law because the King had not the effect of his Presentation and so shall Present again Or if the King Present and then before Institution revoke the same but before Notice thereof to the Ordinary the Ordinary Institute and Induct him yet it seems that Presentation is well Revok'd in Law and the Notice thereof to the Ordinary is not material as to the substance of the Revocation but only to discharge him from being a Disturber D. 12. El. 292. adjudg'd Dyer makes a Quaere thereof Dubitatur D. 16 El. 328. Vid. 25 E. 3. 47. Rol. Abr. ubi supr lit U. 32. If the Patron who Presents his Clerk be Excommunicated it is a good cause of Refusal of the said Clerk it is also said to be so hold in the Books of the Common Law And where there are Three Joyntenants of the same Advowson or of the next Avoidance and only one or two of them Present the Bishop is no Disturber if he refuse the Clerk so Presented for he is not bound to Admit the Clerk unless all the Joyntenants joyn in the Presentation But where there are Three Grantees of the next Avoidance and the Church become void and Two of them Present the Third being a Clerk the Ordinary in that case is to Admit him for that he cannot joyn in a Presentation of himself and he may relinquish his Title and accept the Presentment of the others 33. A. the Defendant had been Parson for Three years and pleaded Plenarty generally by Six months of the Presentation of one Styles a Stranger to the Writ and the Court held the Plea to be naught because the Defendant shewed no Title in Styles 34. In the Case between Phipps and Hayter Prohibition was granted for the Church of T. the Suit being in the Arcbes after Induction to avoid the Institution for that the Institution was made after a Caveat entered Not to grant Institution c. for that doth not make the Institution void at the Common Law 35. In a Quare Impedit A. and B. severally Patrons of the Moity of the Church of S. in Fee to Present by Turns A. Presents his Clerk who is Admitted and Inducted The Church is void again B. Presents his Clerk who is likewise Inducted and after is deprived The Bishop Collates without giving notice of the Deprivation A. grants his Advowson to J. S. in Fee the Clerk Collated by the Bishop died B. Presenteth and is disturbed Resolved 1 When A. had right to Present upon the Deprivation as in his Turn although the Collation of the Bishop was not good yet it was but a thing in Action and when he had granted the Advowson over the Grantee could not have this thing in Action nor the Grantor could not have it for he had destroyed it and so none could have it 2 Resolved although the Grant was sufficient to pass the Advowson in Fee yet the Collation of the Bishop was good against all but against the very Patron so as he might have removed the Incumbent by a Quare Impedit but when he doth not remove him so as he dies Incumbent this is as a serving of his Turn and a good Plenarty and Incumbency against him 36. In a Quare Impedit the Defendant pleaded That the Divine Service there was in the Welsh Tongue and the Parishioners understood not the English and the Presentee could not speak Welsh and therefore he refused him It was the Opinion of all the Justices That it was a good cause of Refusal of him for he cannot instruct his Flock according to his duty and charge But in this Case it was held That Notice ought to be given to the Patron himself if he be within the County if not publick Intimation to be on the Church-door 37. In a Quare Impedit brought in a Case between La. and Le. it was held That the King cannot be a Disturber but the Bishop may be a special Disturber and in that case it was said It is good policy upon every Presentation by Usurpation to bring a Quare Impedit as speedily as may be and it is as good policy to name the Bishop in the Writ for then he shall not Collate for Lapse if the Church remain void Six months nor shall the Metropolitan Collate if the time come to him for the same Lapse For it was said to be a Rule That the Metropolitan shall never Collate for Lapse but when the immediate Ordinary might have Collated and hath surceased his time and in such case the Ordinary cannot Collate because he is made party to the Writ 38. In a Case between Benet and the Bishop of Norwich it was Adjudged That if the next Avoidance of a Church be granted to A. and B. and A. Release to B. and after the Church become void in that case B. may Present and upon Disturbance have a Quare Impedit in his own Name 39. If the Bishop shall for Insufficiency refuse the Clerk that is Presented to him he may not afterwards Admit him and therefore where the Patron Presented J. S. his Clerk to the Bishop and upon Notice by the Bishop given to the Patron of the Insufficiency of the Clerk the Patron Presented another Clerk and then the Bishop Admits the first Clerk which was Presented within Six months In this case it was Adjudged That the Bishop was a Disturber for having once refused him for Insufficiency he cannot afterwards accept of him CHAP. XXIV Of Examination Admission Institution and Induction 1. What is here meant by Examination where enjoyned how and by whom and at what times to be performed 2. In what case the Bishop is held at Common Law a Disturber in refusing one Clerk and Admitting another 3. The Ordinary as he is not obliged to Examine the Clerk at some certain times so he may not refuse to examine him during all the Six months 4. Although the Six months be Elaps'd yet if the Patron Present the Church not being Full the Bishop ought to Admit his Clerk 5. How an Vsurpation upon a Lease for years puts the very Patron out of possession 6. Admission what and under what qualifications it ought to be 7. What the Remedy where the Ordinary doth refuse to Admit the Clerk the Form of such Admission 8. What Institution is and the
Law which will not be good if the Institution were not good All which was also the Opinion of the Court in the Case aforesaid for if the Question be whether Parson or no Parson which comprehends Induction it is Triable at the Common Law And although by the Institution the Church if Full against all persons save the King yet he is not compleat Parson till Induction for though he be admitted ad Officium by the Institution yet he is not entitled ad Beneficium till Induction 18. In an Ejectione Firmae brought by the Lessee of Rone Incumbent of the Church of D. it was found by Special Verdict that the King was the true Patron and that Wingfield entered a Coveat in vita Incumbentis he then lying in Extremis scil Caveat Episcopus nè quis admittatur c. nisi Convocatus the said Wingfield the Incumbent dies Naunton a Stranger Presents one Morgan who is Admitted and Instituted afterwards the said Wingfield Presents one Glover who is Instituted and Inducted and afterwards the said Rone procures a Presentation from the King who was Instituted and Inducted And then it came in◠question in the Ecclesiastical Court who had the best Right and there Sentence was given That the First Institution was Irrita Vacua Inanis by reason of the Caveat and then the Church being Full of the Second Incumbent the King was put out of possession and so his Presentation void But it was Adjudged and Resolved by all the Court for Rone For 1 it was Resolved That this Caveat was void because it was in the life of the Incumbent According to the Common Law if a Caveat be entered with the Bishop and he grant Institution afterwards yet it is not void After a Caveat entered Institution is not void by the Common Law Pasch 13 Jac. B. R. Hitching vers Glover Rol. Rep. Cro. par 2. 2. The Church upon the Institution of Morgan was Full against all but the King and so Agreed many times in the Books and then the Presentation of Glover was void by reason of the Super-institution and therefore no obstacle in the way to hinder the Presentation of Rone and therefore Rone had good Right And if the Second Institution be void the Sentence cannot make it good for the Ecclesiastical Court ought to take notice of the Common Law which saith That Ecclesia est plena consulta upon the Institution and the person hath thereby Curam animarum And as Doderidge Justice said He hath by it Officium but Beneficium comes by the Induction And although by the Ecclesiastical Law the Institution may be disannull'd by Sentence yet as Lindwood saith Aliter est in Angl. And Doderidge put a Case out of Dr. Student lib. 2. If a man Devise a Sum of Money to be paid to J. S. when he comes to Full age and he after sue for it in the Spiritual Court they ought to take notice of the Time of Full age as it is used by the Common Law viz. 21. and not of the time of Full age as it is in the Civil Law viz. 25. So in this case for when these Two Laws meet together the Common Law ought to be preferred And when the Parson hath Institution the Archdeacon ought to give him Induction Vid. Dyer 293. Bedingfield's Case cited by Haughton to accord with this Case 19. By the Court That if an Archdeacon make a general Mandate for the Induction of a Parson viz. Vnivers personis Vicariis Clericis Literatis infra Archidiaconat meum ubicunque Constitut That if a Minister or a Preacher who is not resident within the Archdeaconry makes the Induction yet it is good And the Opinion of four Doctors of the Civil Law was shewn in the Court accordingly upon a Special Verdict 21. In the Case of Strange against Foote the sole Point upon the Special Verdict was If one Prideoux being Admitted and Instituted to a Prebendary with the Cure 4 Eliz. be being but Nine years of age notwithstanding the Statute it is meerly void Note 4 H. 6. 3. That if a Feme who is an Infant under 14 years hath issue it is a Bastard 21. It is said at the Common Law that after Induction the Admission and Institution ought not to be drawn into question in the Ecclesiastical Court for they say That after Induction the Ecclesiastical Law may not call into question the Institution That by Institution the Church is full against Common persons but not against the King and that by Induction the King may be put out of possession And in the Case between Rowrth and the Bishop of Chester it was Resolved That after an Induction an Institution is not to be examined in the Ecclesiastical Court but by a Quare Impedit only But yet the Justices if they see cause may write to the Bishop to Certifie concerning the Institution 22. Two Patrons pretended Title to Present the one Presented and the Bishop refused his Clerk He sued in the Audience and had an Inhibition to the Bishop and after he there obtained Institution and Induction by the Archbishop Afterwards the Inferior Bishop Instituted and Inducted the Clerk of the other for which Process issued out of the Audience against him he upon that prayed a Prohibition and a Prohibition was awarded as to the Incumbency because the Ecclesiastical Courts have not to meddle with Institution and Induction as was there said for that would determine the Incumbency which is triable at Common Law 23. In a Prohibition prayed to the Ecclesiastical Court the Case appeared to be this viz. Holt was Presented Instituted and Inducted to the Parish-Church of Storinton afterwards Dr. Wickham draws him into the Ecclesiastical Court questioning of him for some matters as touching the validity of his Induction and upon this a Prohibition was by him prayed Williams Justice A Prohibition here in this Case ought to be granted this being directly within the Statute 45 Ed. 3. cap. 3. for here the very Title of the Patronage comes in question with the determination of which they ought not to intermeddle also matter of Induction and the validity thereof is determinable at the Common Law and not in the Ecclesiastical Court and therefore a Prohibition ought to be granted and the whole Court agreed with him herein and therefore by the Rule of the Court a Prohibition in this Case was granted CHAP. XXV Of Avoidance and Next Avoidance as also of Cession 1. What Avoidance is how Twofold 2. The difference in Law between Avoidance and next Avoidance 3. How many waies Avoidanee may happen what Next Avoidance is The word Avoidance falls under a double Acceptation in Law 4. The Next Avoidance may not be granted by a Letter it cannot be granted but by Deed. 5. Grant of a Next Avoidance by the Son Living the Father Tenant in Tail is void 6. How Avoidance may be according to the Canon Law which
yet is otherwise by Statute Law 7. The Release of the Next Avoidance made after the Church becomes void is void 8. A wide difference between the Common Law and the Canon in respect of Plenarty and Voidance 9. What Cession is and who shall Present in that case 10. A Parson Beneficed accepting an Archdeaconry falls not under this Cession 11. In case of Cession the Ordinary is to give Notice to the Patron otherwise the Lapse doth not incurr against him 12. In what case the former Benefice is not void by Cession notwithstanding the taking of another Incompatible and without Dispensation And in what case a Church void is held Void as to all persons except an Vsurper 13. In case of Three Grantees of the Next Avoidance whether Two of them may Present the Third being a Clerk 14. What difference between an Avoidance by Parliament and an Avoidance at the Ecclesiastical Law 15. In what case an Advowson granted to a man shall enure to him only for his life and not go to his Executors 16. A man having an Advowson in Fee of the Church whereof himself is Incumbent Deviseth that his Executors should next Present Whether such Devise of the Next Avoidance be good 17. A grant of a Next Avoidance to one is not after grantable by the same Grantor to another 18. Whether the Greating of an Incumbent a Bishop in Ireland be a sufficient cause of Avoidance 19. Where a Next Avoidance is granted to Two whereof the one Release to the other that Other may after bring a Quare Impedit in his own Name 20. If one Grantee of the Next Avoidance Present the other Grantee of the same Avoidance whether such Grant be void or not 1. AVoidance is when a Benefice or other Ecclesiastical Living is void of a lawful Incumbent which generally may be said to be Twofold either in Fact and in deed as when the Incumbent is dead or actually deprived or in Law as when the same person or Parson hath more Benefices than one Incompatible having no Dispensation nor qualified for Plurality Or an Avoidance is either Temporal or Spiritual 1 Temporal as by death of the Incumbent 2 Spiritual as by Resignation Deprivation Creation Cession The Temporal is an Avoidance de facto the Spiritual is an Avoidance de jure Of this latter or Spiritual Avoidance the Ecclesiastical Court takes cognizance and determines and therefore the Supream Head may so dispense there that such Avoidance in Law shall never come to be an Avoidance in Deed and of this Avoidance in Law no Title accrues to the Patron unless something be thereupon done by the Ecclesiastical Court as a Declaratory Sentence or such like But upon Avoidance in Deed Presentment accrueth to the Patron presently Anciently when a Bishop was also the Parson of any Benefice either in right of his Bishoprick or that the Benefice was annexed to his See for the provision of his Table or the better maintenance of Hospitality the Fruits of such Benefice or Parsonage during every vacancy or Avoidance of such Bishoprick where the Bishop was both Lord of a Mannor and Parson of a Parsonage thereto annexed did not come to the King as they now do whereby the Parsonage and Mannor are both consolidated into one being now both holden to be Temporalties but the Parsonage came to the Archbishop of the Province as a Spiritualty granted to his See by Priviledge during the vacancy of the Sees of such Bishops as were in his Province as may appear by the Records of the Lord Archbishop of Canterbury Ex Registro Archi-episc Cant. Ridl View cap. 6. Sect. 1. 2. There is in operation of Law a wide difference between Avoidance and Next Avoidance the former is in esse the other is only in passe the former is the want of an Incumbent upon a Benefice de praesenti the other is the Grant of a supply of that want de futuro and is the Grant of a Next Avoidance in a Parsonage or other Spiritual promotion which is Grantable whiles there is an Incumbent actually in being and is in the nature of a thing in Action and therefore will not pass without Deed. But a present Avoidance though it be not meerly a thing in Action yet it is not Grantable in that kind as the other The present Avoidance is not valuable and therefore shall not be Assets it may be otherwise with a Next Avoidance in some Cases for the Next Avoidance is but a Chattel the Grant whereof is not good without Deed For an Advowson or the Patron 's Right of Presentation to a Church is not a Spiritual but a Temporal Inheritance grantable by Deed and if Appendant as the Mannor it self to which it is Appendant as an Accessory to its Principal 3. The Cognizance of Voidance of Benefices is Ecclesiastical by the Statute 25 Ed. 3. cap. 8. it being the want of an Incumbent on a Benefice as aforesaid and is opposed to Plenarty This Voidance may be either by Death Deprivation Law or Act of Parliament Cession or Plurality Resignation Creation Incapacity Union Non-payment of Tenths c. So that a Voidance may happen to be such either in Law or in deed virtually or actually Resignation is Juris proprii spontanea Refutatio or the voluntary yielding up of the Incumbent into the hands of the Ordinary his interest and right which he hath in his Benefice Touching the Form of Resignation and Protestation which must be when the party will Resign vid. Regist fo 302. F. N. B. fo 273. and this Resignation which is one of the causes of Avoidance is to be made to the Ordinary for it is a Rule in the Canon Law Apud eum debet fieri Renunciatio apud quem pertinere dignoscitur Confirmatio The Next Avoidance is only a Power legally granted to another by the right Patron to Present a Clerk to the Church when it shall next become void And during such Voidance of a Parsonage the Franktenement of the Glebe thereof is said so be in no man but is said to be in Abeyance that is only in the remembrance intendment and consideration of the Law that though for the present during the time of such Vacancy it be not actually in any person yet it is by way of Abeyance in hope and expectation belonging to such one as shall next enjoy the same The word Avoidance hath Two significations in the Law the one and that here intended is when a Benefice or any Ecclesiastical Living becomes Void of an Incumbent the other may be that which is understood by what we intend in Pleadings in Chancery when we say Confessed or Avoided Traversed or Denied c. which hath no relation to the matter in hand Likewise after the death of a Bishop or Parson the Freehold is in Abeyance of necessity but the Law will not admit the framing of Abeyances needless and in vain as in Vacations of Bishops Parsons or the like
Or thus The Next Avoidance was granted to Two the one Released to the other who brought a Quare Impedit in his own Name and it was adjudged maintainable because it was before the Church was void 20. A. seized of the Mannor of D. to which an Advowson was Appendant granted the Next Avoidance to B. and D. eorum cuilibet conjunctim divisim Haered Executor Assignatis suis The Church void B. Presents D. to the Church Adjudged that the Presentment of him was good though he were one of the Grantees CHAP. XXVI Of Pluralities 1. Pluralities condemned by the Council of Lateran yet dispenc'd with by Kings and Popes 2. What in this matter the Pope anciently exercised by way of Vsurpation the King may now do de jure The difference between them in the manner how 3. What persons are qualified for granting or receiving Pluralities 4. Several Laws relating to Pluralities Dispensations and Qualifications 5. How the 8 l. annual value of a Benefice shall be understood whether as in the Kings Books or according to the true value of the Benefice 6. The Lord Hobart's Opinion touching the Statute of 21 H. 8. relating to Pluralities 7. What the Pope's Power in England was before the making of the said Statute And whether the taking of a Bishoprick in Ireland by a Dean in England makes the Deanary void by Cession 8. The Chaplains of Persons of Honour having divers Benefices shall retain them for their Lives though they be discharged of their Service 9. Whether the Ecclesiastical Court may take cognizance of Plenarty or Voidance after Induction And whether the cognizance of Cession or no Cession belongs to the Temporal or Spiritual Count. 10. Difference between Voidance by Act of Parliament and Voidance by the Ecclesiastical Law 11. A Prohibition granted upon Sequestration of a Benefice by the Bishop 12. The Fifth Paragraph aforesaid Adjudged and determined 13. How the Voidance in case of Three Benefices in one person 14. Benefice not void if the King License the Incumbent to be an Incumbent and a Bishop 15. How the taking of a Second Benefice is a Voidance of the First 16. Whether so in case of a Chaplain of the King 17. Whether so in case of a Si modo or Modo sit by way of a Limitation in the Dispensation 18. Whether the word Dispensamus be necessary in the Letters of Dispensation for a Plurality 19. The Kings Retainer of a Chaplain by Word only qualifies him for a Plurality within the Statute of 21 H. 8. 20. Whether a Third Chaplain retained by a Countess Widow is qualified to purchase a Dispensation for Plurality 21. In reference to Plurality whether regard is to be had to the value mentioned in the Statute of 25 H. 8. or to the true value of the Benefice 22. Whether Admission and Iustitution makes the First Benefice void without Induction 23. Whether before the Statute of 25 H. 8. the Pope might here grant Dispensations for Pluralities 24. Whether the Retainer of a Chaplain may be good and sufficient without a Patent 25. In what case a Dispensation for Plurality may come too late though before Induction 26. Three Resolutions of Law in reference to Avoidance by reason of Plurality 1. PLurality according to the Common acceptation of the word is where one and the same person is possessed of Two or more Ecclesiastical Benefices with Cure of Souls simul semel It was long since condemned by the general Council of Lateran whereby it was Ordained That whatever Ecclesiastical person having one Benefice with Cure of Souls doth take another such shall ipso jure be deprived of the former and if he contest for the retaining thereof shall lose both Notwithstanding which Canon it was heretofore usual with the Pope to usurp a power of Dispensation in this matter the which de jure was anciently practised by Kings as Supream and as the original Donors of Benefices and Ecclesiastical Dignities witness Edmond that Monk of Bury who by virtue of such Dispensations held several Ecclesiastical Benefices at one and the same time The said Canon as to the substance thereof relating to Pluralities is now Confirmed by the Statute of 21 H. 8. 13. which limits the former Benefice with Cure of Souls to the yearly value of Eight pounds or upwards and the time of Avoidance thereof to be immediately after possession by Induction into the other with Cure of Souls with power of Presentation de novo granted to the Patron of the former Benefice and all benefit of the same to the Presentee as if the Incumbent had died or resigned Q. Whether the said yearly value of Eight pounds or above ought to be computed according to the valuation in the Kings Books as returned into the Exchequer and now used in the First-Fruits Office or according to the just and true value of the Benefice Q. likewise Whether a Parson of a Church Impropriate with a Vicar perpetually endowed accepting of a Presentation unto the Vicarage without Dispensation be a Pluralist within the Canon and Statute aforesaid The Negative is supposed to give the best Solution to the Question 2. The same power of granting Faculties Pluralities Commendams c. which anciently the Pope exercised in this Realm by Usurpation is by the Statute of 21 H. 8. cap. 13. and 1 Eliz. transferr'd unto and vested in the Crown de jure also from and under the King in the Archbishop of Canterbury and his Commissaries by Authority derived from the Crown The Pope anciently granted to Bishops after Consecration Dispensations Recipere obtinere Beneficium cum cura animarum to hold the same in Commendam the which he did in this Realm by Usurpation and which the Crown may now do de jure for the same power as aforesaid which the Pope had is by the Acts of Parliament in 25 H. 8. 1 Eliz. in the King de jure But there is a very material difference between the Dispensations anciently here granted by the Pope and those at this day by the King and Archbishop Confirmed by the Kings Letters Patents which are not good otherwise than to such as are Compleat Incumbents at the time of granting thereof whereas it was sometimes otherwise with the other whence it is observable that in Digbie's Case the Dispensation came too soon A. is Instituted and Inducted into a Benefice with Cure value Eight pounds per ann Afterwards the King presenting him to another with Cure he is Admitted and Instituted Afterwards the Archbishop of Canterbury grants him Letters of Dispensation to hold Two Benefices the King confirms the same Afterwards he is Inducted into the Second Benefice In this case the Dispensation comes too late because by the Institution into the Second Benefice the First Benefice was void by the Stat. of 21 H. 8. 3. The Acceptance of a Second Benefice with a Dispensation comes not under the notion of prohibited Pluralities in case
the First were vnder the annual value of Eight pounds or sine cura And what persons are qualified either for the Granting or receiving Pluralities appears by the Stat. of 21 H. 8. c. 13. In which there is not any limitation of Number of Chaplains to be retained by the King Queen and Prince and other the King's Children for which reason they may retain as many Chaplains as they please and each of them qualificable by a Dispensation for Plurality But if either of the King's Chaplains be Sworn of his Majesties most Honourable Privy Council such may purchase a Dispensation to hold Three Benefices with Cure of Souls The Persons specially qualified by Dispensations for Pluralities are either 1 Such as are retained as Chaplains to Persons of Honour Or 2 Such as are qualified thereto in respect of their Birth Or 3 Such as are dignified with some certain Degrees in either of the Universities of this Kingdom In reference to the first of these every Archbishop and Duke may have Six Chaplains Marquess and Earl Five every Viscount and other Bishop Four Lord Chancellor Three Knight of the Garter Three Baron Three Dutchess Marchioness Countess and Baroness being Widows Two Treasurer and Controller of the Kings House Two the Kings Secretary and Dean of his Chappel the Kings Almner and Master of the Rolls Two the Chief Justice of the Kings Bench and Warden of the Cinque Ports One In reference to the Second qualification viz. By Birth the Brothers and Sons of all Temporal Lords and of Knights born in Wedlock may purchase Dispensations to hold Two Parsonages c. with Cure of Souls In reference to the Third all Doctors and Batchelors of Divinity Doctors and Batchelors of Law Presented to any of these Degrees not by grace only but by any of the Universities of this Realm may purchase and hold as aforesaid Vid. Statute 21 H. 8. cap. 13. 4. Although by the Letter of which Act the First Living is not void until Induction into the Second the words being If the party be Instituted and Inducted in possession of the Second Living that then the first shall be void yet to avoid the great inconveniency as Sir Simon Degge observes in his Parsons Counsellor that otherwise would ensue it has been held That the First Living is void upon the bare Institution into the Second and so it should seem the Law was before the making of this Act where the party had no Dispensation The sufficiency of qualification for Plurality relates as well to the Dispensation as to the Person for if the Dispensation after its being had from the Master of the Faculties be not confirmed under the Great Seal of England other qualifications will not suffice Nor are the supernumerary Chaplains of any person of Honour retained by him above the Number allowed by the Statute qualified for Plurality Co. 4. 90. B. versus the Bishop of Gloucester and Saveacre Anders More 561. The death attainder degradation or displacing of a Chaplains Lord or his discharging his Chaplain unqualifies him for a Plurality of incompatible Livings otherwise of the Chaplain of a Dutchess Marchioness Countess or Baroness in case of After-marriage A double Capacity in one and the same person of Honour to qualifie his Chaplains doth but capacitate him to qualifie his Number of Chaplains only according to his best qualification A Person of Honour having retained his full Number of Chaplains and discharging them after their preferment may not during their Lives qualifie others 5. The Question was formerly put Whether the 8 l. yearly value intentioned in the Statute of 21 H. 8. c. 13. shall be understood according to the Taxed value in the Kings Books or according to the very true value of the Benefice Mr. Hughes in his Parsons Law reports a Case in King James's time wherein this Question was debated pro con the Judges equally divided the Case for difficulty and variance of Opinion adjourned and afterwards as he there speaks de auditu by order of the King compounded In that Case Two Presidents it seems were shewed in proof of that Opinion which inclined to have it taken according to the very value of the Benefice notwithstanding when the same point came again several years after into question the Court then seemed to incline against the Opinion which was for the very value of the Benefice But says he the Case was not then resolved or adjudged but remaineth a Question undetermined Quaere the Law Foster and Walmesley Justices held the value should be taken according to the Taxed value as in the Book of First-Fruits but Warburton and Coke Chief Justice Contra. It hath been Resolved in Holland's Case and likewise in Digby's Case Rep. 4. and often before since the Council of Lateran An. Do. 1215. That if a man have a Benefice with Cure whatever the value be and is Admitted and Instituted into another Benefice with Cure of what value soever having no Qualification or Dispensation the First Benefice is ipso facto so void that the Patron may Present another to it if he will But if the Patron will not Present then if under the value no Lapse shall incurr untill Deprivation of the first Benefice and Notice But if of the value of eight pounds or above the Patron at his peril must Present within Six months by the Statute of 21 H. 8. And in that Case of Digby it was adjudged That when a man hath a Benefice with Cure above eight pounds and afterwards taketh another with Cure and is Presented and Instituted and before Induction procures the Letters of Dispensation that this Dispensation comes too late For by the Institution Ecclesia plena consulta existit against all persons except the King for every Rectory consisteth upon Spiritualty and Temporalty And as to the Spiritualty viz. Cura animarum he is compleat Parson by the Institution for when the Bishop upon Examination had admitteth him able then he doth Institute him and saith Instituo te ad tale Beneficium habere curam animarum of such a Parish accipe curam tuam c. Vide 33 H. 6. 13. But touching the Temporalties as the Glebe-Lands c. he hath no Freehold in them until Induction For by the General Council of Lateran Anno Dom. 1215. it appeareth That by the acceptance of two Benefices the first is void Aperto jure for upon this Council are the Books of the Common Law in this Caâ—e founded And it was in this Case Resolved That this was an Acceptance of a Benefice cum Cura within the Statute of 21 H. 8. Institution is an Acceptance by the Common Law A man was Presented to a Church with a Vicarage endowed the Parson accepted of a Presentation to the Vicarage without Dispensation Whether this were a Plurality by the Canon Law and by the Statute of 21 H. 8. was the Question Hobart Chief Justice was of Opinion That
or not doth properly belong to the Common Law And Jones cited a Judgment in William's Case according Note that by the Constitution of Otho and Othobon That Institution and Induction is voidable in the Ecclesiastical Court if no Prohibition be prayed 10. In the Case of the King against the Archbishop of Canterbury and Thomas Prust Clerk in a Quare Impedit was vouched Holland's Case in Cok. 41 51. to shew that there is a difference between Voidance by Act of Parliament and Voidance by the Ecclesiastical Law For before the Statute by the taking of the second Benefice the first Church was void but not so that the Lapse incurred upon it And as for Pluralities the words of the Statute are That it shall be void as if he were naturally dead and therefore if a man takes a second Benefice and dies Issue ought to be taken whether the first vacavit per mortem And it is found That Not For it was void before the death of the Incumbent 11. P. was Collated Instituted and Inducted by the Bishop of Exeter Patron Dr. Hall the Bishop Collates another pretending that the first Incumbent had taken a second Benefice whereupon the first was void and revera the first Incumbent had a Dispensation And notwithstanding that the Bishop Sequesters the Benefice and upon Discovery thereof to the Court a Prohibition was granted 12. In Bene's Case against Trickett the point was Whether the value of the Church for Plurality by 21 H. 8. shall be eight pounds according to the Book of Rates and Valuation in the First-fruits Office or according to the very value of the Church per Annum Atkinson That according to the value of the King's Books For the Parliament never thought that any man could live upon so little as eight pounds per Annum which is not six pence a day Note 38 E. 3 4. and Dyer 237. but by the Court That it shall be according to the very value of the Church in yearly value in the Statute of 21 H. 8. And by Gawdy and Fenner to whom agreed Yelverton That the eight pound shall be accounted according to the very value of the Church per Annum 13. In a Quare Impedit it was doubted If A. having two Benefices with the Cure by Dispensation and then takes a third Benefice with Cure If now both the first Benefices or the first of them only be void Hieron said That it was adjudged that both of them should be void 14. If the King grant a Licence to an Incumbent to be an Incumbent and a Bishop and he afterwards be made a Bishop the nâ—â—ice is not void Henry de Blois Brother to King Stephen was Bishop of Winchester and Abbot of Glassenbury 15. It seems that at the Common Law if an Incumbent had taken a second Benefice with Cure neither the first nor the second had been void But by the General Council of Lateran held in the year 1215. it was ordained That if a man took divers Benefices with Cure of Souls the first should be void unless he had a Dispensation from the Pope This Constitution of the said General Council is ratified and confirmed in Pecham's Constitutions at a Provincial Synod held in this Realm Also if an Incumbent take a Second Benefice with Cure whereby the first is void by the Canon as to the Patron so as he may Present before any Deprivation yet until Deprivation it is not void as to a Stranger for if he sues a Parishioner for Tithes the taking of a second Benefice is not any barr to him Trin. 13. Car. B. R. per Justice Bark which Justice Yelverton in his Argument in Prust's Case said That it had been so Adjudged And if an Incumbent of one or more Benefices with Cure be consecrated Bishop all his Benefices are ipso facto vold upon which Voidance the King and not the Patron is to Present to the Benefices so void by Cession and any Dispensation after Consecration comes too late to prevent the Voidance for the Pope could formerly and the Archbishop now can sufficiently Dispense for a Plurality by the Statute of 25 H. 8. The chief Text of the Canon Law against Pluralities seems to be that of the Decretal de Praebend Dign c. de multa where it is said That in Concilio Lateranensi prohibitum ut nullus diversas Dignitates Ecclesiasticas vel plures Ecclesias Parochiales reciperet contra Sanctorum Canonum Instituta c. Et praesenti decreto statuimus ut quicunque receperit aliquod Beneficium curam habens animarum annexam si prius tale beneficium habehat sit ipso jure privatus si forte illud retinere contenderit etiam alio spolietur c. Consonant to which is that in Decret Caus 21. q. 1. In duabus Ecclesiis Clericus conscribi nullo modo potest In the Case of a Commendam adjudged in Ireland the Original and Inconvenience of Dispensations and Non obstante's was well weighed and considered where it was said That the Non obstante in Faculties and Dispensations was invented and first used in the Court of Rome for which Marsil Pat. pronounced a Vae against the said Court for introducing that clause of Non obstante That it was an ill President and mischievous to all the Commonwealths of Christendom For the Temporal Princes perceiving that the Pope dispensed with Canons in imitation thereof have used their Prerogative to dispense with their penal Laws and Statutes when as before they caused their Laws to be religiously observed like the Laws of the Medes and Persians which could not be dispens'd with See the Case of Penal Statutes Co. 7. fo 36. h. For this Reason it was that a Canonist said Dispensatio est vulnus quod vulnerat jus commune And another saith That all abuses of this kind would be reformed Si duo tantum verba viz. Non obstanie non impediâ—ent And Matth Par. in Anno Dom. 1246. having recited certain Decrees made in the Council of Lions which were beneficial for the Church of England Sed omnia baec alia says he per hoc repagulum Non obstante infirmantur 16. In a Quare Impedit the Case was Dr. Playford being Chaplain of the King accepted a Benefice of the Presentation of a common person and he after accepted another Presentation of the King without any Dispensation both being above the value of eight pounds per Annum The Question was Whether the first Benefice was void by the Statute of 21 H. 8. cap. 13. For if that were void by the acceptance of the second Benefice without Dispensation then this remains a long time void so that the King was intituled to present by Lapse and presented the Plaintiff The Statute of 21 H. 8. provides That he who is Chaplain to an Earl Bishop c. may purchase Licence or Dispensation to receive have and keep two Benefices with Cure provided that
consent of Five others of the said Commissioners his Companions and namely which Deprived him It was not sound that the Commissioners were the Natural born Subjects of the Queen as the Statute Enacts that they should be And it was moved That the Deprivation was void 1 Because that whereas the Commission is to them or any Three of them of which the said Bishop to be one amongst others it ought to have been the Sentence of them all according to the Authority given to them which is equal and not of one with the assent of the other 2 Because it is not found that the Commissioners are the Natural born Subjects of the Queen as by the words of the Statute they should be 3. Because the punishment which the Statute provides for those of the Ministry which deprave this Book is to lose the profits of all their Spiritual promotions but for a year and to be Imprisoned by the space of Six months and not to be Deprived till the Second offence after that he had been once committed and therefore to deprive him for the First offence was wrongful and contrary to the Statute But the whole Court for the Form of the Deprivation it is that which is used in the Ecclesiastical Courts which alwaies names the chief in Commission that are present at the beginning of the Sentence and for the other they mention them only as here but of their assent and consent to it and in such cases we ought to give credit to their Form and therefore it is not to be compared to an Authority given at Common Law by Commission And it is to be intended that the Commissioners were the Natural born Subjects of the Queen unless the contrary appear But here at the beginning it is found That the Queen Secundum tenorem effectum Actus praedict had granted her Commission to them in causis Ecclesiasticis and therefore it appeareth sufficiently that they were such as the Statute wills them to be And for the Deprivation they all agreed that it was good being done by Authority of the Commission for the Statute is to be understood where they prosecute upon the Statute by way of Indictment and not to restrain the Ecclesiastical Jurisdiction being also but in the Affirmative And further by the Act and their Commission they may proceed according to their discretion to punish the Offence proved or confessed before them and so are the words of their Commission warranted by the Clause of the Act. And further the Ecclesiastical Jurisdiction is saved in the Act. And all the Bishops and Popish Priests were deprived by virtue of a Commission warranted by this Clause in the Act. Vid. Hill 33 Eliz. Rot. 315. 10. Before many Noble-men Archbishops and Bishops and the Justices and Barons of the Exchequer 1 agreed That the Deprivation of Minsters for Non-conformity to the last Canons was lawful by the High Commissioners For by the Common Law the King hath such a power in Causes Ecclesiastical and it is not a thing de novo given by the First of Eliz. For that is Declaratory only c. and the King may delegate it to Commissioners And the King without a Parliament may make Constitutions for the Government of the Clergy and that such a Deprivation ex officio without Libel is good 2. That the Statute of 5 H. 5. c. 4. is to be intended when they proceed upon Libel and not when ex officio Read the Statute 3. When their Petition is Subscribed by a great number with intimation That if the King denies their Suit that many thousands of his Subjects shall be discontented That this is an Offence Finable at discretion and is near to Treason by raising Sedition by Discontent c. Vid. More 's Rep. Trin. 2 Jac. in the Star-Chamber 11. By the Statute of 13 Eliz. cap. 12. it is Enacted That every person c. to be Admitted to a Benefice with Cure except that within Two months after his Induction he publickly Read the said Articles in the same Church whereof he shall have Cure in the time of Common Prayer there with declaration of his unfeigned assent thereto c. shall be upon every such default ipso facto immediately deprived Then follows afterwards a Proviso relating to this clause viz. Provided alwaies That no Title to conferr or Present by Lapse shall accrue upon any Deprivation ipso facto but after Six months after Notice of such Deprivation given by the Ordinary to the Patron Thus the Patron immediately upon such Deprivation may Present if he please and his Clerk ought to be Admitted and Instituted but if he doth not no Lapse incurrs until after Six months after Notice of the Deprivation given to the Patron by the Ordinary who it seems is to supply the Cure until the Patron Present In the last Case of the Lord Dyer 23 El. it was Resolved That where a man having a Living with Cure under value accepted another under value also having no Qualification or Dispensation and was Admitted Instituted and Inducted into the Second but never Subscribed the Articles before the Ordinary as the Statute of 13 of El. requires Upon Question whether the First Living vacavit per mortem of him or not the Court Resolved That the First Living became vacant by his death and not by accepting the Second because he was never Incumbent of the Second for not Subscribing the Articles before the Ordinary whereby his Admission Institution and Induction into the Second Living became void as if they had never been This differs from the Case of not Reading the Articles within Two months after Induction For the not Subscribing the Articles makes that he never was Incumbent of the Second Living and consequently no cause of losing the First but the not Reading the Articles within Two months after Induction doth cause a deprivation of that whereof he was Incumbent For as an Incumbent that without qualification or dispensation doth take a Second Living doth thereby lose the First so the same Incumbent for not Reading the Articles within Two months after his Induction into the Second may lose the Second and thereby lose both viz. the First by taking a Second without qualification or dispensation and the Second for not Reading the Articles as aforesaid whereof he was Compleat Incumbent by Admission Institution and Induction of the Second Living full Two months before he lost it for not Reading the Articles 12. Parker being Parson of a Church was deprived by the High Commissioners for Drunkenness and moved for a Prohibition but it was not granted and he was directed to have Action for the Tithe and upon that the validity of the Sentence shall be drawn in question If a man be Admitted Instituted and Inducted to a Church and afterwards is deprived for that he was Instituted contrary to the course of the Ecclesiastical Law such Sentence of deprivation is void at the Common Law for that it is
afterward the Pope enabled the Presentee by his Bull yet the King had a Scire facias and thereby recovered his Presentation again because the Incumbent was not capable when he was Presented 19. If the Parson or other Incumbent be Excommunicate and he so remaineth in his Obstinacy for the space of 40 daies he is for this deprivable of his Benefice and yet the Church is not void in Deed without Sentence of Deprivation given against him and if before such Deprivation the King as Supream Ordinary grant him a Dispensation he shall hold his Benefice Also Dilapidation or spoil of the Church Benefice hath at Common Law been held worthy of Deprivation which Law as it adjudgeth not the Church actually void Death excepted without a Sentence of Deprivation So though such Sentence of Deprivation be meerly wrongful yet by that Law as well as by the Canon the Dignity is void and the Sentence remaineth in force until it be reversed by Appeal and therefore if the party deprived within due time Appeal upon such Sentence of Deprivation given against him such is the nature thereof that it will hold the Sentence upon which it was first brought in suspence so that if it be brought upon Deprivation it voideth the vigour thereof and reviveth the former dignity for such Church shall not be void until the first Sentence of Deprivation happen to be affirmed in the Appeal Touching Deprivation by Statutes and Positive Laws vid. 13 Eliz. cap. 12. 26 H. 8. cap. 3. revived by 1 Eliz. cap. 31. or 3. CHAP. XXVIII Of Incumbents as also of Residence and Non-Residence 1. Incumbent who properly such why so called and what things preparatory to a compleat Incumbent 2. The Rights of a Compleat Incumbent 3. The Rights of an Incumbent's Executor as to the Glebe 4. The Resident Incumbents duty that keeps a Curate 5. Whether he be an Incumbent who is in by the Kings Presentation where the King mistakes his Title 6. Whether an Incumbent may plead as such who was not Incumbent ante impetrationem Brevis 7. Whether the Non-Residency of an Incumbent were punishable by the High Commissioners 8. How the 80 daies absence in a year shall be understood to include Non-Residency according to the Statute c. 9. The Laws in force concerning Residence and Non-Residence and who are qualified for Non-Residence 10. The Canon in the Provincial Constitutions touching the Non-Residence of Vicars on their Vicarages 11. The Form of the Oath of Residence on a Vicarage 12. Whether a Parson inhabiting in a Messuage very nigh adjoyning to the Parsonage-house which he keeps also in his own hands be a Resident within the intent of the Statute 13. What the Law requires for Residence and what are the just Causes of Non-Residence 14. An Incumbent stands charged with the Arrerages of a Pension issuing out of his Church that were behind in his Predecessor's time as well as those accruing in his own time 15. The Constitution touching the Oath of Residence as also how the Incumbent may be out of his Parish and yet be reputed as Resident 16. What shall be accounted such an Absence or Non-Residence within the Statute as to avoid a Lease made by the Incumbent 17. Indictment against a Common Informer exhibiting an Information against Two Parsons one for Non-Residence the other for taking a Farm 18. Covenants as well as Leases made void by the intent of the Statute of 13 14 Eliz. by reason of Eighty days Absence 1. INcumbent from incumbere signifying as well to possess and keep safely as to endeavour earnestly is a Clerk duly Possest of and Resident on his Benefice with Cure For the faithful discharge whereof he is to employ his study and utmost endeavour For which reason especially he is so denominated There are Four things preparatory to the being of a Compleat Incumbent 1 The Patron 's Presentation or his free Gift or Commendation of his Clerk to the Parsonage or Vicarage by writing in his favour to the Bishop 2 The Bishop's Admission of such Clerk by his allowance or approbation of him after due Examination and by making a Record of his Name accordingly 3 The Clerks Institution to such Benefice or Vicarage by the Bishops words Instituto te c. 4 The Clerk's Admission or Induction whereby he is put into Actual possession thereof by the Archdeacon's or others delivery to him of the Ring or Keys of the Church-door ringing the Bells c. And until these things be done he is not a Compleat Incumbent After which and possession Six months there is such a Plenarty as gives such a Title to that Presentation as will barr pro hac vice any others in a Quare Impedit So that those things that are to make a perfect Incumbent after Presentation had do depend upon the duty of the Ordinary as 1 Admission which requireth Examination of the Clerk whereupon sometimes ensueth Refusal and thereupon either Notice or no Notice as the case requires is to be given to the Patron 2 Institution 3 Induction Upon the Patron 's not Presenting within the time limited the Lapse incurrs to the Bishop from him to the Metropolitan and from him to the Crown where it resteth But if the Bishop take his time then is his Presentation a Collation and in the Right of the Patron himself 2. The Incumbent is that person in Law to whom the Fruits of any Ecclesiastical Benefice do belong insomuch that the Fruits taken during the vacation or vacancy of a Benefice shall be restored to the next Incumbent who stands charged to the King for the First-Fruits to be accounted immediately from and after the Avoidance or Vacancy of any such Benefice or Spiritual promotion and for that end and towards the payment of the said First-Fruits the next Incumbent shall have a restitution of the Tithes Fruits Oblations Obventions Emoluments Commodities Advantages Rents and all other Revenues Casualties and Profits whatsoever certain and uncertain belonging to any Archdeaconry Deanary Prebend Parsonage Vicarage Hospital Wardenship Provostship or other Spiritual promotion Benefice Dignity or Office growing or arising during the vacancy of any of the said Spiritual promotions and every Archbishop Bishop Archdeacon Ordinary or any other person having to his or their uses received the same that shall refuse to render and restore the same to the next Incumbent shall forfeit the treble value of what he hath so received 3. If any Incumbent happening to depart this life during the Incumbency or Plenarty shall before his death have caused any of his Glebe Lands to be manured and sowed at his proper cost and charges with any Corn or grain he may in that case make his last Will and Testament of all the profits of the Corn growing upon the said Glebe-Lands by him so manured and sown And if one be put into a Place then removed and another put in the first shall have the Tithe happening
for the avoiding of Leases made by a Parson by his Absence from his Living by the space of eighty daies in one year and also shews that one Stallowe who was Parson of Sharrington to whom these Tithes did belong and in whose Right the Defendant claimed them was Absent from his Parsonage by the space of eighty daies in one year and shews in what year and so by this his interest determined and Agreement with the Plaintiff by this made void but they found further as the Plaintiff made it to appear That Stallowe the Parson of Sharrington was not Absent in manner as it was alledged for that they found that he did dwell in another Town adjoyning but that he came constantly to his Parish-Church and there read Divine Service and so went away again They did also find hat he had a Parsonage-house in Sharrington fit for his habitation and whether this were an Absence within the Statute as to avoid his Lease they left that to the Judgment of the Court Yelverton Justice This is a good Non-Residency within the Statute of 21 H. 8. cap. 13. but not an Absence to avoid a Lease made within the Statute of 13 Eliz. cap. 20. It cannot be said here in this Case that he was Absent for he came four daies in every week and in his Parish-Church did read Divine Service Williams Justice upon the Statute of 13 and 14 Eliz the Parson ought not to be Absent from his Church eighty daies together in one year à Rectoria sua but this is not so here for he came to his Church and read Divine Service there every Sunday Wednesday Friday and Saturday and therefore clearly this cannot be such an Absence within the scope and intention of these Statutes as thereby to avoid his Lease Yelverton Justice he ought to be Absent eighty daies together per spatium de Octogin diebus ultra and this to be altogether at one time and so the same ought to have been laid expresly the which is not so done here for that it appears here that he was at his Parsonage-house and did read Prayers every Sunday Wednesday Friday and Saturday and so the whole Court were clear of Opinion that this Absence here as the same appeared to be was not such an Absence by the space of eighty daies in one year to avoid his Lease within the said Statute and so the Defendants Plea in Barr not good and therefore by the Rule of the Court Judgment was entered for the Plaintiff 17. An Information was Exhibited against Two Parsons by J. S. upon the Statute of 21 H. 8. cap. 13. against one of them for Non-Residency and against the other for taking of a Farm the one of them pleaded Sickness and that by the Advice of his Physicians he removed into better Air for Recovery of his health and this is justifiable by the whole Court vid. more for this Coke 6. par fo 21. in Butler and Goodall's Case The other pleaded That he took the Farm for the maintenance of his House and Family And this also is justifiable by the Opinion of the whole Court Crooke moved the Court for the Defendants That the Plaintiff was a Common Informer and that he did prefer this Information against them only for their vexation and so to draw them to compound with him as formerly he hath so done by others for which they prosecuted an Indictment in the Countrey upon the Statute of 18 Eliz. cap. 5. made to punish Common Informers for their Abuses The whole Court did advise them to prosecute this Indictment against him Crooke moved for the Defendants That in regard the Informer is a man of no means that the Court would order him to put in sufficient Sureties to answer Costs if the matter went against him and that then the Defendants would presently answer the Information Williams Justice nullam habemus talem legem this is not to be done but the Rule of the Court was That the Defendants should not answer the Information until the Informer appeared in person 18. In an Action of Covenant the Plaintiff in his Declaration sets forth that the Defendant was Parson of D. and did Covenant That the Plaintiff should have his Tithes of certain Lands for thirteen years and that afterwards he Resigned and another Parson Inducted by which means he was ousted of his Tithes and for this cause the Action brought The Defendant pleads in Barr the Statutes of 13 Eliz. cap. 20. and 14 Eliz. cap. 11. for Non-Residency upon which Plea the Plaintiff demurr'd in Law It was urged for the Plaintiff That the Plea in Barr was not good because it is not averred that the Defendant had been Absent from his Parsonage by the space of Eighty daies in a year for otherwise the Covenant is not void by the Statutes For the Defendant it was alledged That the pleading of the Statute of 13 Eliz. is idle but by the Statute of 14 Eliz. this Covenant is made void for by the Statute all Covenants shall be all one with Leases made by such Parsons And in this case if this had been a Lease this had been clearly void by Surrender of the Parson and so in case of a Covenant Doderidge and Houghton Justices The Statutes of 13 and 14 Eliz. do not meddle with Assurances at the Common Law nor intended to make any Leases void which were void at the Common Law and therefore this Covenant here is not made void by the Statute unless he be Absent Eighty daies from his Parsonage Coke Chief Justice agreed with them herein They all agreed in this Case for the Plaintiff and that by the Preamble of 14 Eliz. it is shewed the intent of the Statute to be to make Covenants void within the Provision of 13 Eliz. by Absence for Eighty daies And Judgment in this Case was given for the Plaintiff CHAP. XXIX Of Abbots and Abbies also of Chauntries and of the Court of Augmentations 1. Abbot what why so called the several kinds thereof and how many anciently in England 2. A famous Abbot anciently in Ireland The manner of their Election prescribed by the Emperour Justinian Anciently the Peers of France were frequently Abbots 3. The ancient Law of King Knute concerning Abbots 4. The Abbot with the Monks making a Covent were a Corporation 5. Abbots were either Elective or Presentative they were Lords of Parliament How many Abbies in England and which the most Ancient Founded by King Ethelbert 6. Chaunter and Chauntries what and whence so called their use and end 47 belonging anciently to St. Pauls in London when and by what Laws their Revenues were vested in the Crown 7. Before King John's time Abbots and Priors were Presentative afterwards Elective 8. Six Differences taken and Resolved in a Case at Law touching Chauntries 9. Certain Cases in Law touching Lands whether under pretence of Chauntries given by the Statute to the King or not 10. What the Court of Augmentations was the end
repealed dissolved extinguished and determined by King H. 8. by his Letters Patents in the 38th year of his Reign a new Court of Augmentations was erected by his Letters Patents which Repeal and Dissolution thereof was held void in Law because they had been erected by Authority of Parliament For which reason also the new Erection of the new Court of Augmentations was held likewise void and therefore the said Letters Patents as well for the dissolution of the former as for the erecting of the latter new Court of Augmentations were after confirmed and established by a Statute enacted by King Ed. 6. But afterwards Q. Mary according to the power given her for dissolution of the said Court by Act of Parliament did dissolve the same by her Letters Patents Dat. 1. Jan. in primo Regni and the day next following by other Letters Patents united the same to the Exchequer which was utterly void because she had dissolved the same before So as she pursued not her Authority and so it was Resolved by all the Judges The end and intent of this Court was that the King might be justly dealt with touching the profit of such Religious Houses and the Court took its name from this that the Revenues of the Crown were so much augmented by the suppression of the said Religious Houses and their Lands for by the suppressing of some and the surrendring of other Religious Houses the Royal Intrado was so much increased in the time of H. 8. that for the better managing of it the King erected first the Court of Augmentations and afterwards the Court of Surveyors But in short time what by the profuseness of some and the avariciousness of others it was at last so retrenched that it was scarce able to find work enough for the Court of Exchequer Hereupon followed the dissolving of the said Two Courts in the last Parliament by this King CHAP. XXX Of Annates or First-Fruits as also of Tenths of Aumone or Frank Almoign 1. Annates what why so called paid anciently to the Pope when and by what Laws translated to the Crown a Court thereof when erected and by whom dissolved 2. The great Antiquity of Annates or First-Fruits the great Revenue it brings to the Papal See often complained of as a great grievance anciently 3. The Popes receiving of Annates compared to Aaron the High Priest's receiving Tithe of Tithes The Original Antiquity and Equity thereof controverted by some of the Ancient Canonists 4. What the Tenure of Aumone or Frank Almoigne is a description thereof with its use and end 5. The difference between Statute and Common Law touching Annates or First-Fruits whether due and payable upon Institution or not till Induction 6. To whom the Tenths of Spiritualties were anciently paid and how they came to the Crown originally 1. BY the Statute of 25 H. 8. 20. Annates and First-Fruits of Archbishopricks and Bishopricks seem to be one and the same thing and were Anciently paid to the See of Rome and that throughout all Christendom as were also the Primitiae First-Fruits or Profits of every Spiritual Living but were afterwards by another Statute translated from the Pope to the Prince For the due regulation whereof there was a Court purposely crected by a Third Statute whereby it was made a Court of Record and commonly called the Court of the First-Fruits and Tenths and so continued until it was dissolved by Queen Mary since which time it was never restored albeit the Profits were reduced again to the Crown by Queen Elizabeth and the matters thereof to be transacted were transferred to the Exchequer The First-Fruits after the last Avoidance were probably called Annates because they took their measures from the rate or proportion of one years profit of all Spiritual Livings and Promotions and accordingly are to be compounded for so that these Annates Primitiae and First-Fruits are all one and it was anciently the value of every Spiritual Living by the year which the Pope claiming the disposal of all Ecclesiastical Livings reserved These and Improprâ—ations began about the time that Polydore Virgil lib. 8. cap. 2. makes mention of vid. Concilium Viennense quod Clemens Quintus indixit pro Annatibus These First-Fruits were given to the Crown â—0 H. 8. cap. 3. Sir Ed. Coke cites an Ancient Record of this Subject â—ill 34 Ed. 1. An. 1307. At a Parliament held at Carlisle great complaint was made of Oppressions of Churches c. by William Testa called Mala Testa and Legate of the Pope in which Parliament the King with the assent of his Barons denied the payment of First-Fruits and to this effect he writ to the Pope whereupon the Pope relinquished his Demand and the First-Fruits for Two years were by that Parliament given to the King These First-Fruits or Annates Primitiae are the First-Fruits after Avoidance of every Spiritual Living for one whole year except Vicarages not exceeding 10 l. and Parsonages not exceeding 10 Marks but all are to pay Tenths Which Tenths Ecclesiastical Decimae are the Tenth part of the value of all Ecclesiastical Livings yearly payable to the King his Heirs and Successors by the said Statute of 26 H. 8. cap. 3. and 1 Eliz. to be valued according to the value of Ecclesiastical Livings which were sometimes valued by a Book of Taxation made in 20 Ed. 1. which remaineth in the Exchequer and by another Taxation in 26 H. 8. which also remaineth in that Court. And according to this latter Taxation are the values of Ecclesiastical Livingss computed for the First-Fruits and Tenths The Lord Coke says That the Bishop of Norwich had in 19 Ed. 3. by Prescription time out of mind c. First-Fruits within his Diocess of all Churches after every Avoidance But these were also given to the Crown by the Statute of 26 H. 8. cap. 3. And as for the Tenths the Canâ—nists do hold That the Pope pretended to have them Jure Divino as due to the High Priest by pretence of these words Praecipe Levitis atque denuncia cum acceperitis à filiis Israel Decimas quas dedi vobis Primitias earum offerte Domino id est decimam partem Decimae ut reputetur vobis in Oblationem Primitiarum tam de areis quam de torcularibus universis quorum accipietis Primitias offerte Domino date ea Aaron Sacerdoti But the Parliaments in 25 H. 8. and 26 H. 8. were not of opinion that these Tenths did belong to the Bishop of Rome as appears by the several Preambles of the Statutes then enacted And had they been due Jure Divino to the Pope it is not probable that Queen Mary by the Act of 2 3 Ph. M. c. 4. would have exonerated and discharged the Clergy thereof nor refused to have had them paid to the Pope nor could the Bishop of Norwich as aforesaid have prescribed to have First-Fruits within his Diocess if they had
remove the Tithe which circumstance of Time and the convenience thereof is triable by a Jury and if the Parson exceed the Time the Parishioner may have his Action against him as a Trespasser ab initio And some conceive that the Parishioner is not bound to give the Parson Notice when he doth set forth his Tithe By the Civil Law the Parishioner ought to give the Parson Notice when the Tithes are set forth but it hath been Adjudged that the Common Law doth not so oblige a man But a severance of Nine parts from the Tenth part there must be for such Severance is so necessary and in a kind so essential to Tithes that they are not due nor is it Tithe within the Statute of 2 Ed. 6. until such Severance be made Yet the Parson may Grant his Tithes growing upon the Land before Severance which ought to be made by the Owner of the Land for though the property of Tithes set out by the Owner of the Land belongs to the Parson yet it is otherwise if they be set out by a Stranger And in case the Land be not in any Parish then the King shall have the Tithe thereof by his Prerogative and by the Custome of England But where Lands in themselves Tithable are not manured or ploughed specially in prejudice to the Parson in such case he may notwithstanding Sue the Occupier thereof in the Spiritual Court for the Tithes of that Land But if the Parishioner duly sets forth and severs the Tithe in convenient time and after Dammage happen to him by the Parsons not taking the same away in like convenient time in that case the Parishioner may have his Action on the Case against the Parson 7. The Common Law of this Realm takes notice of Tithes by the word Dismes Decimae of the French Decimes signifying Tithe or the Tenth part of all the Annual Fruits either of the Earth or of Beasts or Mans labour and industry due unto God and consequently to him that is of the Lords Lot and hath his share by his special appointment It signifieth also the Tenths of all Spiritual Livings yearly given to the Prince called a perpetual Disme which anciently were paid to the Pope until Pope Vrban gave them to K. Richard the Second to aid him against Charles the French King and such others as upheld Clement the Seventh against him as aforesaid It signifieth likewise a Tribute levied of the Temporalty But here it is to be understood as Quota pars omnium bonorum licite quaesitorum Deo Divina Institutione debita which though according to the Canon Law is a Tenth of Annual and lawful Encrease commanded to be paid to the Sons of Levi for their maintenance in consideration of their Ministry yet at the Common Law it is an Ecclesiastical Inheritance collateral to the Estate of the Land and of its own nature due only to Ecclesiastical persons by the Ecclesiastical Laws The Practice whereof never met with any considerable interruption in any Age until Charles Martel's Sacrilegious Infeudations of Tithes about the year 650. which usher'd in such a President into the Christian World as could never to this day grow obsolete and out of use Notwithstanding from the beginning it was not so nor did any Lay-persons pretend to Tithes originally nor legally till the Statutes of Dissolutions of Abbies made them capable thereof whereby the Tithes appropriated to such Houses of Religion as were dissolved became a Lay-Fee and Suable by the Laity in the Kings Ecclesiastical Courts 8. Where in the Books of the Common Law it is Reported That before the Council of Lateran every man might give his Tithes to what Church he pleased and might have bestowed them upon what person he thought best there it is also asserted for reason That before that Council there were no Parishes nor Parish-Priests that could claim them But by a Canon made in that Council every man is since compellable to pay his Tithes to the Parson or Vicar of that Parish where the Tithes arise Here may arise a question Whether there were not Parishes long before any Council at Lateran For admitting that the Second Lateran Council was held in the year 1120 as S. Tho. Ridley computes it or that the general Council of Lateran was held in the year 1179 as Sir Simon Degge calculates it yet there seems of be a division into Parishes some Centuries of years before either of these For it is said That Cities and Countries were divided into several Parishes by an Ordinance of Pope Dionysius about the year 266 and from him derived into this and other Realms Also that Ecclesiastical persons first in this Kingdom made Divisions of Parishes as appears by our own Chronicles and that the first Practice thereof came from Honorius the 4th Archbishop of Canterbury after Augustine who died in the year 693 And such as have followed the course of Antiquity in this matter conceive that the original of Parishes had its President from the practice of some Ancient Roman Bishops it being as some would have it recorded in the Pontifical of Damasus but in Anastasius's Bibliothecar it is found That when Peter had appointed and ordained Priests c. and Cletus had reduced them to a certain number Pope Euarist assigned to each of them his Parish and as to the time when those Parishes were assign'd by Euarist it must be about the beginning of the second Century which was many Centuries before the C. of Lateran as also was the practice thereof here in England by Honorius as aforesaid the truth whereof is approved by Cambden But Cavendum c. saith Marsil in his Book De Red. Eccl. c. 12. heed must be taken as to the word Parish for it is equivocal having various acceptations as sometimes when nothing is named but a Parish the whole Diocess is understood which notion of the word often occurs in the Councils in which sense Barbatia spake a wide word for the Pope in his Tract de praest Card. when he said that in respect of his Holiness the whole world was but one Parish Sometimes a Parish is taken for such a part of the Diocess as was assign'd to some Priest arbitrarily sent and maintained by the Bishop to whom such a Parish paid all their dues and he to his Clergy about which time this custome was introduced that all Church-dues should be at the Bishops disposal to be divided into four portions whereof he should haveâ— part for himself another for his Clergy a 3d for the Poor and Strangers and the 4th to be reserved to the Parishioners for the repairing of Churches the collection of which dues was committed to the care of the Chorepise from which Quadripartite division probably came that custome whereby the Bishop of every Diocess might before the C. of Lateran make distribution of the Tithes within his Diocess where he thought convenient
to Spiritual persons for their necessary maintenance If the original of a Parish in the 2 former acceptations were a device of the ancient Rom. Bish from them derived to other Nations then probably from the inconveniencies thereof might be the beginning of a Parish as it is taken for suâ—h a part of the Diocess as is limited to some Residentiary Incumbent allowed by the Bishop and maintained by the Church-dues in his own Right which consideration of a Parish seems most of all agreeable with those which we now have and were in use with us before Edgar's daies as appears by the Saxon Laws of that time 9. The Ancient Kings and Sovereign Princes of this Realm both before and since the Conquest have ever made special Provision for the due payment of Tithes unto the Church and that ever since there was any Church-Government in this Land witness that Law made before the Conquest by King Aethelstane That every man should pay his Tithes in manner as Jacob did that is of all that God should give him The like did King Edgar and King Edmund command on pain of Excommunication And about the Seventh Century Ina King of the West-Saxons made a Law That the Church-Sceat be paid at Martlemass on pain of paying twelve times as much in case of Refusal this Church-sceat Fleta interpreteth Church-seed and therefore calls it Certa mensura bladi Tritici c. Others read Church-scet that is the Church-shot or Church-due Also the said King Aethelstane in the Ninth Century made a Law by the Advice of Walfehelme his Archbishop and his other Bishops Commanding all his Reeves throughout all his Kingdom in the Lords name and of all Saints that in the first place they pay the Tithe of his own Revenues as well in Living Cattel as the yearly Fruits Likewise King Edmund at a Synod holden in London at which Oda and Wulâ—â—tan Archbishops and many other Bishops were present made a Law Commanding all Christian men by their Christianity to pay Tithes Church-sceat and Almes-fee if any refuse to do it let him be accursed This Alms-fee or Alms-money was that which was called the Peterpence for when Ina the West-Saxon King went in Pilgrimage to Rome he made it a Law to his Subjects That every House should pay a peny to the Pope and this was to be tendred at St. Peters-tide as appears by Edgar's Law nu 4. In the Laws also of King Edgar it was Decreed in the first place That Gods Church should have all her Rights and that every man should pay his Tithes to the Elder Minister or Mother-Church where he heareth the Word cap. 2. of Edgar's Laws And in the Eighth Chapter of King Rnutes Laws it is Ordained That care be taken rightly to pay Gods Rights every year viz. the Plough-Alms fifteen Nights after Easter the Tithe of young Cattel by Whitsontide and the Fruits of the Earth by Allhallentide otherwise the Kings Reeve and the Bishop may take the Tenth part whether he will or no and give it to the Minister whereunto it belongeth Also by the Laws of Edward the Confessor nu 8. 9. it was Decreed particularly that Tithes should be duly paid De Garba Grege Equarum Pullis Vaccis Vitulis Caseo Lacâ—e Vellis Porcellis Apibus Bosco Prato Aquis Molendinis Parcis Vivariis Piscariis Virgultis Hortis Negotionibus in a word omnibus rebus quas de derit Dominus which Decree was afterwards ratified by the Conquerour Afterwards King Edward the First at the Petition of the Clergy established the Articles of the Clergy which his Son Ed. 2. Confirmed by his Letters Patents under the Great Seal and by Consent of Parliament at the Petition of the Clergy in the Ninth year of his Reign And by the Statute of 1 R. 2. cap. 14. it is Acknowledged That the Cognizance of Tithes of right doth and of Ancient time was wont to pertain to the Spiritual Court Also the Cistercians who had purchased Bulls from the Pope to be discharged of Tithes in the Second year of H. 4. were by Act of Parliament after reduced to the state they were in before And in the Fifth year of H. 4. it was Ordered That such as held Lands belonging to any Friers-Aliens should pay all manner of Tithes to the Parsons and Vicars of the Parishes wherein the same were notwithstanding their being seized into the Kings hands or any Prohibition to the contrary For before the dissolution of Monasteries c. by King H. 8. Lay-men were not capable thereof nor indeed after the Dissolution notwithstanding the Statute of 27 H. 8. c. 20. could the People be well brought to pay their Tithes to the Lay-Purchasers thereof not qualified to Sue for the same until the Statute of 32 H. 8. c. 7. enabled them to Convent the Refusers before the Ordinary or other competent Judge according to the Ecclesiastical Laws without the Reserve of any cognizance for the Temporal Judge therein otherwise than as to what refers to the Inheritance or Freehold of such Tithes or in case of disseisin thereof which was not only ratified and confirmed by a subsequent Statute made in the time of Edward the Sixth but it was also then Enacted That the Tithes should be paid as the Usage or Custome had been within forty years next before and that under certain penalties and forfeitures in case of detention or substraction and of treble Dammages in some cases the party so subtracting to be prosecuted in the Spiritual Court according to the Kings Ecclesiastical Laws 10. Sir Simon Degge in his late useful Treatise entituled The Parsons Counsellor par 2. or Law of Tithes cap. 2. discovers a vulgar Error touching the Original Settlement of the Parochial Right of Tithes For whereas it is frequently said in the Books of the Common Law That before the General Council of Lateran every one was at liberty to give his Tithes to what Spiritual Ecclesiastical or Religious person he pleased and that the Parochial Right thereof was settled by the said Council he says there is not any Canon of that Council to any such purpose whereby the Parochial right of Tithes was settled Nor could it then be for that the said Council was in An. 1179. but the Parochial Right of Tithes was not settled till the year 1200. and then not by any Canon but by a Decretal Epistle of Pope Innocent the Third a Brief whereof he there inserts out of Mr. Selden and Sir Ed. Coke If this were an Error in them it was so also in Lindwood c. locat conduct verb. portion But possibly not such an Error in either as is conceived for whether the Canon for the settling of Parochial Right of Tithes made in the Council of Lions 1274. were an Original Decree or only a Confirmation of some former Canon to the same effect or not clear it is that the said Decretal Epistle of P. Innocent 3. obliged only the Province of
Rule for the Judges in that Court to proceed also And then the Plaintiff may if he will have a new Prohibition against the Executors c. 46. In Norton's Case Finâ—h Recorder said de Communi jure for Estovers burnt in an House Tithes ought not to be paid by the Common Law there was not any Tithes paid for Wood And although the Statute of 25 E. 3. gives a Prohibition for Timber yet Vnder-woods were discharged of Tithes Vid. Dr Stud. 171. It is express that Estovers are not Tithable because they are not renewing every year and it is parcel of the Inheritance for to destroy all the Underwoods is Waste c. Dawley's Case was Resolved for the Wild of Sussex and Mich. 13 Jac. B. R. in the Case of Porter and Dyke for the Wild of Kent of the same Prescription Resolved to be good and so is the Common Experience that a whole County may Prescribe so And the reason is for that by the Common Law it was not due but by the Constitution of Winchelsey Lindwood 104. it was Ordained to be paid for then the Prelates imputed a great Pestilence that then was for the negligence of paying Tithes and appointed Tithes of Wood. And the Commons were desirous to have the Statute of Sylva c. otherwise explained than the Clergy declares it for they say that they ought not to pay Tithes of any Wood that is of the growth of ten years Hutton Wood is Tithable in their nature and then there may be a Custome to discharge them And the Case of Hearthpeny cannot be answered for if he Sues for the peny a Prohibition shall not be granted quod concessum fuit per Crook Yelverton But of things not Tithable Tithes of them cannot be sued without alledging a Custome Crook It is known that Hearthpeny is good by Prescription This Case is when there is not Land belonging to the House so that the Parson is not answered for his Tithes another way But when there are Ten Servants kept for the maintaining it then by the Law of the Land it appears that Tithes ought not to be paid although Custome had been alledged it is nothing to the purpose As if a Custome be alledged to pay 4 d. for every Acre in discharge of Tithes and the Verdict find 3 d. no Consultation shall be granted Hutton the Herbage of Barren Cattel is Tithable because there is a Custome which discharges those that are for the Cart. And he said That the Custome only makes that Legem terrae And he cited Dr. Grauut's Case He Libels for Tithes of a House and the party brought a Prohibition and alledged Modum Decimandi c. And it was alledged in Arrest of Judgment that Houses were not Tithable de Communi jure and yet a Consultation was granted c. 47. A Case between Stone and Walsingham having been formerly in the Court touching Tithes the Case was again moved in Court which was that they agreed de anno in annum so long as the one should be Parson and the other Parishioner Si ambabus partibus tam diu placuerit he should retain his Tithes for 6 s. 8 d. per An. And Richardson Justice said and it was not denied That the Suggestion is naught for the uncertainty of it and a Prohibition cannot be granted upon that For the words de annâ— in annum make an Estate for a year and the next words make an Estate for Life and the last words but an Estate at Will and what shall be Traversed here It appears that for Years it is good without Deed but not for life and if it be but at Will when the other demands his Tithes the Will is determined But at another day the Suggestion was made That he made several Agreements with his Parishioner that he pay 6 s. 8 d. for his Tithes for four years And then a Prohibition was granted Harvey sufficit If an Agreement be proved for these four years 48. Sâ—â—t moved for a Prohibition That whereas he had twenty Acres of Wheat and had set out the Tenth part for Tithe the Defendant pretending that there was a Custome of Tithing that the Owner should have fifty four Sheaves and the Parson five and so he sued for Tithes for that there was no such Custome And the Court said That the Modus decimandi must be sued for as well in the Ecclesiastical Court as for the Tithe it self And if it be allowed between the parties they shall proceed there but if the Custome be denied it must be tried at the Common Law For if it be found for a Custome Consultation must be granted if not then the Prohibition is to stand 49. Napper against Steward the Parson had a Prohibition against divers of his Parishioners that Libelled in the Ecclesiastical Court to make Proof by Witness of divers manner of Tithing in perpetuam rei memoriam 50. A Prohibition for H. against E. Farmer of the Rectory of S. and prescribed That all Tenants and Occupiers of Meadow had used to cut the Grass and to straw it abroad called Tetting and then gathered into Wind-rows and then put it into Grass-Coâ—ks in equal parts without any fraud to set out the Tenth-Cock great and small to the Parson in full satisfaction as well of the first as of the latter Math Upon Traverse of the Custome it was â—ound for the Plaintiff and exception was taken That the Custome was void because it imports no more than what every Owner ought to do and so no recompence for the two Maths But the Court gave Judgment â—or the Plaintiff for Dismes naturally are but the Tenth of the Revenue of any Ground and not of any labour or Industry Where it may be divided as in Gross it may though not in Corn and in divers places they sâ—t out the Tenth acre of Wood standing and so of Grass And the Jury having found his Form of Tithing there it is sufficient and the like Judgment upon the like Custome was in the Kings Bench. Pasch 2 Jac. Rot. 191 or 192. inter Hall Symonds 51. In Johnson's Case if a Prohibition be granted upon matter at Common Law as upon a Personal Agreement between Parson and Parishioner for his Tithes and not upon matter within the Stat. of 2 E. 6. 13. the Suggestion shall not be Proved within the Six months as the Statute limits and as it is Agreed by the whole Court 52. The Defendant here in the Prohibition Libels for Tithes of Hay in the Ecclesiastical Court The Plaintiff suggests that the Hay was growing upon Greenskips Deals and Headlands and that there is a Custome that the Parishioners in a Meadow there used to make the Tithe-Hay for the Parson and in consideration of that to be discharged of all Tithes of Hay growing ut supra and also that for the Hay of the Land no Tithe ought to be paid of such Hay but does
away yet it may limit and moderate the payment thereof Notwithstanding in some places and cases a Custome applied to a Countrey to pay no Tithe as in 40 Parishes for the Wild in Sussex is good but generally such a Custome is not good Likewise a Custome tending to the impoverishment of the Parson or Vicar is no good Custome Mich. 11 Jac. C. B. inter Jux and Sir Charles Candish Likewise a Custome to pay Tithes truly without view of the Parson is not good Also a Custome alledged to pay the Tenth Sheaf of Wheat for the Tithe of all manner of Corn and Grain is not a good Custome dict Cas Jux 38 Eliz. C. B. Adjudg But a Custome to pay Tithe-Wool at Lammas-day though due at Shearing is good But such is the strength of a Custome that it cannot be discharged by a verbal Agreement for Money Custome may make that Tithable which of it self is not Tithable and may alter Tithes in any other thing which will be a Modus Decimandi sufficient to bind the Parson and his Successors Custome is properly Triable at the Common Law upon a Prohibition but a Consultation may be granted on a Prohibition granted on a Surmize not proved within Six months as was Adjudged Hill 6 Jac. C. B. in Cas inter Sharp and Sharp Noâ— Rep. Custome and Prescription both ought to be without interruption Constant and beyond the memory of man Perpetual that is no man in being remembers to the contrary for it seems if any man or any Authentick Record or other sufficient Evidence can prove it was otherwise at any time since the first of R. 1. viz. 1189. the Custome or Prescription at Common Law would not hold Albeit by the Statute of 2 Ed. 6. c. 13. Tithes are to be yielded and paid as of right they had been within 40 years next before which time somewhat agrees with the Ecclesiastical Computation And by the Statute of 27 H. 8. c. 20. they are to be paid according to the Ecclesiastical Laws and Ordinances after the laudable Usages and Customes of the Parish which was also after confirmed as to the lawful Usage and Custome by the Stat. of 32 H. 8. 7. D DEcimae Majores such as Corn Hay c. belong to the Parson Decimae Minores or Minutae as Saffron Herbs c do belong to the Vicar Pasch 38 Eliz. B. R. Beding and Feak's Case Mich. 1 Car. C. B. Sir Rich. Vdal and the Vicar of Alton's Case Deer though they are Ferae naturae yet they may be given for Tithes and although they are not Tithable of themselves yet they may be given for a Modus Decimandi Hill 6 Jac. C. B. the Vicar of Clare's Case Sharp and Sharp's Case Noy 148. acc Deprivation A Parson may after his Deprivation sue in the Ecclesiastical Court for subtraction of Tithes which were due to him before his Deprivation and a Prohibition will not lie in the Case Adjudged Hill 13 Jac. Cole's Case Discharge of Tithes may be either by Custome Prescription Composition Statute Unity of Possession or by Priviledge as to Religious Orders now not of use There may be also a Discharge of Tithes as against the Vicar by the payment thereof unto the Parson And it may be by a Real Composition but it cannot be by a Verbal Agreement for money And if there be a Discharge not of the Tithes themselves but from the exact payment thereof by a Modus Decimandi or Annual recompence in satisfaction thereof it must be by Custome or Prescription By the Common Law a Lay-man although he were capable of a Discharge of Tithes by Grant of the Parson Patron and Ordinary or by Composition yet at that Law none had a capacity to take or receive them save only Ecclesiastical persons or a Mixt person as the King And by the same Law if a Bishop were absolutely Discharged of Tithes by Prescription whilst the Lands were in his hands his Demising thereof to a Lay-man could not make the same chargeable therewith For in Wright's Case where the Bishop of W. was seized of a Mannor in right of his Bishoprick Prescribed that he and all his Predecessors had held the said Mannor and the Demesns thereof time out of mind for him his Farmers Tenants for years or at will Discharged and acquitted from payment of Tithes for these Lands the Bishop made a Lease for years of parcel of the Demesns The Farmer of the Rectory Libelled in the Ecclesiast Court against the Lessee for Tithes all which matter he pleaded in the Ecclesiastical Court and the Judge there refused to allow of the Allegation in Discharge of the Tithes It was held in this case 1 That if the Lands of the Bishop were absolutely Discharged in his hands by Prescription the Demising of it to a Lay-man could not make it chargeable with Tithes 2 That a Spiritual person may Prescribe in non Decimando 3 That the Refusal by the Ecclesiastical Judge to allow the Allegation in Discharge of Tithes is not Traversable In like manner the King being seised of Lands parcel of the Forest of B. in Fee in right of the Crown Discharged of the payment of Tithes granted the Lands to the Earl of Hertford in Fee and it was held that the Patentee should be Discharged of payment of Tithes and a Prohibition was granted in that Case Yet in another Case where it was surmized for a Prohibition that the Prior of B. was seised of Lands parcel of his Priory and held them till the dissolution Discharged of Tithes for his Farmers and Tenents for life or years that the Priory was dissolved 27 H. 8. that the King was seised of the Lands and shews the Statutes of 32 H. 8. and 2 Ed. 6. and that the King died seised of the Lands that by mean Conveyances it was conveyed to J. S. and that the Plaintiff being his Tenant for years was sued by the Parson of B. for the Tithes of these Lands It was Resolved by the Court That the Lands which came to the Crown by the Statute of 27 H. 8. should not be Discharged from the payment of Tithes but should pay the same although the Lands in the hands of the said Religious Persons or Houses were Discharged from the payment thereof for that the Priviledges were Personal Priviledges which were extinguish'd by the said Statute of Dissolutions and there are not any words in the said Statute of 27 H. 8. to save the Priviledges and the Statute of 31 H. 8. being a subsequent Law had not respect to these Priviledges Likewise where a Parson by Deed Indented leased his Glebe cum omnibus proficuis Commoditatibus It was notwithstanding Adjudged that the Lessee should be charged with the payment of Tithes And in Branches Case it was Resolved That an Union of Copyhold Lands and of the Parsonage in the hands of the Parson as Parson Imparsonee
was no Discharge of the Tithes of the Copyhold Lands And in this Case it was also Adjudged That a Farmer of Lands might Prescribe in Modo Decimandi but not in non Decimando The Statute of 31 H. 8. gave all Colledges Dissolved to the Crown in which there is a Clause That the King and his Patentees should hold Discharged of Tithes as the Abbots held Afterwards the Statute of 1 Ed. 6. gave all Colledges to the Crown but there is in it no Clause of the Discharge of Tithes The Parson Libelled in the Ecclesiastical Court and the Farmer of the Lands of the Colledge of Maidstone in Kent brought a Prohibition upon the Statute of 31 H. 8. The Court was clear of Opinion That the King had the Lands of the Colledge by the Statute of 1 Ed. 6. and not by the Statute of 31 H. 8. But the Justices doubted the Lands coming to the King by that Statute whether they should be Discharged of Tithes by the Statute of 31 H. 8. there being no Clause in the Statute of 1 Ed. 6. for Discharge of Tithes But it was Resolved by the Justices That Unity without Composition or Prescription was a sufficient Discharge of Tithes by the Statute of 31 H. 8. The Templers were Dissolved and their Possessions and Priviledges by Act of Parliament 17 Ed. 2. transferred to St. Johns of Jerusalem and their Possessions by Act of Parliament 32 H. 8. cap. 24. given to the King It was Resolved That the King and his Patentees should pay Tithes of those Lands although the Lands propriis sumptibus excolantur because the Priviledges to be Discharged of Tithes were proper to Spiritual persons and ceased when the person Spiritual was removed And the Statute of 31 H. 8. of Dissolutions did not extend to such Lands as came to the King by Special Act of Parliament as those Lands of St. Johns of Jerusalem did And Mich. 6. Jac. C. B. in a Case de Modo Decimandi it was said That one may be Discharged of Tithes five waies 1 By the Law of the Realm viz. the Common Law as tithes shall not be paid of Coles Quarries Bricks Tiles c. F. N. B. 53. and Reg. 54. nor of the After-pasture of a Meadow c. nor of Rakings nor of Wood to make Pales or Mounds or Hedges c. 2 By the Statutes of the Realm as 31 H. 8. 13. 45. Ed. 3. c. 3 By Priviledge as those of St. Johns of Jerusalem in England the Cistertains Templers c. as appears 10 H. 7. 277. Dyer 4 By Prescription as by Modus Decimandi annual recompence in satisfaction 5 By real Composition By all which it appears that a man may be Discharged of payment of Tithes yet a Lay-man ought not to prescribe in non Decimando albeit the may in modo Decimandi And this in effect agrees with Tho. Aquinas in his Secunda Secundae Quaest 86. art ult vid. Dr. Stu. lib. 2. c. 55. fo 164. And the Causes why the Judges of the Common Law permit not the Ecclesiastical Judges to try Modum Decimandi being pleaded in their Courts is because that if the Recompence which is to be given to the Parson in satisfaction of his Tithes doth not amount to the value of this Tithes in kind they might overthrow the same And that appears by Lindwood Constit Mepham de Decim c. Quoniam propter verb. Consuetudines For this Reason it is said a Prohibition lies and therewith agrees 8 Ed. 4. 14. vid. 7 Ed. 6. Dyer 79. and 18 Eliz. Dyer 349. In a Prohibition upon a Suit in the Ecclesiastical Court by the Defendant the Vicar of D. for Tithes A Prohibition prayed upon his Plea thereof a Modus Decimandi to pay so much yearly to the Parson of Dale in Discharge of his Tithes and the same Plea there disallowed The whole Court agreed that this Modus between him and the Parson will not discharge him from payment of Tithes as to the Vicar and therefore by the Rule of the Court a Consultation was granted Also the Court was of Opinion That where a Bishop holds Lands discharged of Tithes and he makes a Feoffment of the Land the Feoffee shall be discharged of Tithes and the like if the King hath ancient Forest Lands discharges of Tithes and the King grants this Land the Grantee is discharged of Tithes And it is a General Rule That he which may have Tithes may be Discharged of Tithes So long as the Land is occupied by him who hath the Fee-simple which did formerly belong to the Order of Cistertians it shall pay no Tithes but if he lett it for years or life the Tenant shall pay Tithes For anciently there were many large Estates wholly exempted from paying Tithes as Land belonging to the said Cistertian Monks to the Knights Templers and Hospitallers As in the Earl of Clanrickard's Case who Libelled in the Ecclesiastical Court for the Tithes of Hay of a certain Meadow against Dame Denton who pleaded That the Prior of A. was seised of that Meadow as parcel of the Possessions of the Priory and that they held it discharged time out of mind c. whereupon Issue was joyned upon a Prohibition and it was found for the Plaintiff for that the Land was only discharged when it was in the hands of the Priory and not when it was in the hands of their Farmers and they were of the Order of Cistertians whereupon a Consultation was granted And now a new Prohibition was prayed for that in the Ecclesiastical Court they had added to the former Libel when the Statute of 50 Ed. 3. cap. 4. is That whereas a Consultation is duly granted upon a Prohibition that the same Judge may proceed in the same case by virtue of the former Consultation notwithstanding any other Prohibition Provided alwaies that the matter in the Libel of the said cause be not altered enlarged or otherwise changed Dr. Pope Doctor of the Civil Law said That there was not any enlarging or changing in substance of the Libel in question for whereas in the former Libel it was That they had used to pay Tithes time out of mind now in the second Libel is added That although the Prior was discharged yet they viz. the Farmers have paid Tithes for 20 30 or 40 years and time out of mind Montague Ch. Justice said That it seem'd that that was not an alteration but Doderidge and Houghton Justices held That that was an alteration of the Libel for now by that last Libel They could fetch them in for Tithes though they were discharged in the hands of the Abbot and for that the Tithes had been paid for 20 30 or 40 years since the Statute aforesaid the which is a sufficient time to make a Prescription according to the Law of the Civilians they would charge the Land with Tithes in whose soever hands they are when by the Statute it ought to be discharged only in
the hands of some viz. the Priors and afterwards Dr. Pope pulled off the Addition which he had made to the former Libel off from the second Libel And the whole Court said That if he proceeded upon that Addition that Sentence shall be given for Tithes upon any Prescription since the Statute that then they would grant a Prohibition Mich. 18. Jac. B. R. Dame Denton's Case and the Count of Clanrickard Roll. Rep. par 2. The Order of the Praemonstracenses were Discharged of all Tithes of their Land the which Manibus aut sumptibus excolebant propriis All the Chief Monks paid Tithe as well as other men till Pope Paschal at the Council of Mentz Ordained that they should not pay Tithes de Laboribus suis and that continued as a general Discharge till the time of H. 2. when Pope Adrian restrained it to three Orders viz. the Cistertians the Templers and the Hospitallers And the Discharge which the Order of the Praemonstracenses had was made by Pope Innocent the Third by his Bull. And after in the Council of Lateran ne Ecclesia nimium gravaretur it was provided That the Priviledge of the Templers should not extend to their Farmers Vid. Case Dickenson and Greenhall Mich. 22. Jac. B. R. Roll. Rep. 2. part In Hurrey's Case against Boyer in a Prohibition to the Ecclesiastical Court for stay of a Suit there for Tithes of Lands which were the possessions of the Hospital of St. John of Jerusalem upon Suggestion that the Prior of the said Dissolved House of St. Johns had this Priviledge from Rome which was by divers Councils and Canons viz. That the Lands of their Predecessors which by their own hands and costs they did Till they were not obliged to pay Tithes In this Case it was agreed That this Hospital was not Dissolved by the Statute of 31 H. 8. c. 18. of Dissolutions but by a Special Act made 32 H. 8. c. 24. by which their Corporation and Order was Dissolved and their Possessions given to the King with all the Priviledges and Immunities thereto belonging which the King granted to the Plaintiff in the Prohibition and whether he should hold them Discharged of the payment of Tithes was the question Harris Serjeant urged That this Immunity was annexed to the Corporation of the Prior and his Brethren of the said Hospital and doth not come to the King it being determined by the Dissolution of the said Hospital and so Adjudged in B. R. against the Book of 10 Eliz. Dyer 277. 60. 2. Coke the Bishop of Winchester's Case 14. B. and the Archbishop of Canterbury's Case 47. B. and 18 Eliz. Dyer 349. 16. Nichols Serjeant to the contrary and cited a Canon made by the Council of Mag. and another made by Innocent 3. An. 1215. and divers others and also the Statute of 2 H. 4. 4. and 7 H. 4. 6. and if Land be Discharged of payment of Tithes by Prescription of not Tithing and this Land come to the King the Priviledge remains and these Lands are given to the King in the same plight and case as they were in the Hospitallers and affirmed the Book of 10 Eliz. Dyer 277. 60. to be good Law and that the aforementioned Cases of the Archbishop of Canterbury and the Bishop of Winchester and the words of the Statute of 32 H. 8. 24. gives the King not only the Mannors Houses c. but also all Liberties Franchises Priviledges c. In this Case it was Confessed that it came by reason of the Order of the Cestertians as appears by the Canon And Hutton Serjeant arguing for the Defendant said that it appears by the Statute of 2 H. 4. 4. that it is Personal and that it differs from the Lands which came to the King by the Statute of 31 H. 8. For by that the King is Discharged of payment of Tithes and so are his Patentees but that this Priviledge is Personal and if so then it is determined by dissolution of the other and a personal Priviledge in case of Tithe is not transferred to the King Barker Serjeant for the Plaintiff in this case said That it was Ordained by Edgar King of this Realm that Tithes shall be given to the Mother-Church Also Edmund Ethelstone William the Conqueror and the Council of Magans specially provided that Tithes should be paid but did not appoint when they should be paid But the first Law which appointed the quantity was made in the time of Ed. 1. and this Ordained when they ought to pay the Tenth with the fear of God And before the Council of Lateran every one might pay his Tithes to what Parson he would and then were paid to Monasteries as Oblations If a Parson in one Parish claim Tithes in another as portion of Tithes due by Prescription to his Rectory he ought to shew the place especially viz. the place where the Tithes lie In the Seventeenth year of Ed. 2. the Order of the Templers was dissolved and their Possessions annexed to St. John of Jerusalem and they did not claim by any Bull of the Pope nor other Spiritual Canon but by Prescription which is Priviledge and private Common Law as appears by the Statute of Westm 2. cap. 74. And Menham's Canon in the time of Ed. 1. saith Let the Custome be observed And another Canon That Custome of not Tithing or of the manner of Tithing if they paid less than the Tenth part shall be observed Vid. Panormitan Cas Hurrey vers Boyer Brownl Rep. dict Cas Pasch 9 Jac. Rot. 1511. C. B. Brownl Rep. par 2. In the Bishop of Winchester's Case 38 Eliz. it was Resolved That at the Common Law none had capacity to take Tithes but Spiritual persons or Persona mixta as the King and regularly no meer Lay-man was capable of them except in special Cases for he could not Sue for them in the Court Christian and regularly a Lay-man had no remedy for them until the 32 H. 8. A Lay-man may be Discharged of Tithes at the Common Law by Grant or by Composition but not by Prescription for in the Books of the Common Law it is commonly said That a Law-man may Prescribe In Modo Decimandi but not In non Decimando And the reason is because he is not except in Special Cases capable of Tithes at the Common Law before the Statute of 32 H. 8. cap. 7. And therefore without Special matter shewed it shall not be intended that he hath any lawful Discharge and in favour of the Holy Church although it may have a lawful Commencement the Law will not suffer this Prescription In non Decimando to put it to the Trial of Lay-men A Spiritual person that was capable of Tithes at the Common Law in Pernancy may Prescribe to be Discharged of Tithes generally or to have a portion of Tithes in the Land of another Before the Council of Lateran every man might give his Tithes to any Spiritual person that he would and if the Lands of
the Bishop were Discharged in his hands absolutely by Prescription the Demising it to a Lay-man cannot make it chargeable and the Bishop might reserve the greater Rent A Parson by Deed Indented leaseth his Glebe cum omnibus proficuis commoditatibus It was notwithstanding Adjudged that the Lessee shall be charged with the payment of Tithes And in an Action of Debt upon the Statute of 2 Ed. 6. for not setting forth of Tithes the Case was The Lands were a parcel of the possession of the Templers whose Lands were annexed to the Priory of St. Johns The Templers had a Special Priviledge to be Discharged of Tithes of those Lands which propriis manibus excolunt By a Special Act of 32 H. 8. the Possessions of the Priory of St Johns were given to the King by general words of all Lands in tam amplis modo c. as the Abbots held them Resolved That the Defendant should not be Discharged nor have the Priviledge for by the Common Law a Lay-person was not capable of such a Priviledge and the King should not have the benefit of the Priviledge until the Stat. of 31 H. 8. But the Statute extends only to such Possessions as came to the King by Surrender and should be vested in him by that Act and doth not extend to Possessions which are vested in him by another Act. and these Lands were given to the King by a Special Act of Parliament and therefore not Discharged of Tithes Dotards or the Branches of Trees of twenty years growth or upward are not Tithable Doves in a Dove-house do pay Personal not Predial Tithes but if stolâ— out of a Dove-house no Tithe is to be paid of such Tithes shall be paid de jure of young Pidgeons Mich. 14 Jac. B. between Whatley and Hambury Resolved Hill 15 Jac. B. R. Resolved and a Prohibition denied in Gastrell's Case By Custome Tithes may be paid of Pigeons spent in a mans own house but not so of Common right Case ibid. But if sold they shall pay Tithe dict Cas Whatly E EGgs are Tithed in kind or according to the Custome of the place which serves for the Tithe of the Tame and Domestick Fowl where their young are not paid in kind and where Tithe of Eggs is paid there is no Tithe of the young And so vice versa where the Tithe of the Young is paid there no Tithes of Eggs may be demanded F FAllow-Grounds pay no Tithe for these years wherein they lie Fallow nor is the Pasture thereof Tithable unless it be kept Lay beyond the course of Husbandry for if Land lie Fallow every two or three years the same is a charge unto the Owner and Tenant for that time and an advantage to the Parson in the bettering of his Crop the year following when the same is sowed with Corn or Grain and therefore although the Grass and feeding of the Fallow-ground for that year be some small profit to the Owner of the Soil yet he shall not pay Tithe for the same as hath been Adjudged Yet it was afterward Adjudged That if Lands be Tithable and the Tenant or Occupier of the Land will not Plough it or Manure it especially thereby to prejudice the Parson that in such case the Parson may Sue the Tenant in the Ecclesiastical Court to have Tithe of that Land Ferae naturae Beasts and Birds that are such are not Tithable till they become tame and profitable to the Owner that is till they are reduced to a Tameness and Property yet it hath been held that Tithes are not payable for tame Turkies Pheasants or Partridges nor for their Eggs Although Beasts Ferae naturae as Bucks Does Pheasants c. are not Tithable of themselves yet they may be given for Tithes or for a Modus Decimandi as a great Tree may be given for Tithe of Trees tithable And as things which are Ferae naturae whereof a man hath not an absolute property are not Tithable so likewise of things which are meerly for Pleasure Tithes shall not be paid Fenny-Lands drained and made Arable do pay Tithes notwithstanding the Statute of Barren Land Fish taken in the Sea are by the Custome of the Realm Tithable not by the Tenth Fish but some small Sum of Money in consideration of a Tithe But if taken in a Pond or in a several Piscary then they are Tithable by the Owner thereof as a Predial Tithe and as such ought to be set forth according to the Statute of 2 Ed. 6. Trin. 8 Jac. C. B. the Earl of Desmond's Case Mich. 15 Car. B. R. Adjudg acc vid. Trin. 9 Car. B. R. Yet it is said that Fishers Fowlers and Hunters not for pleasure but by way of Trade for profit pay some Tithe by usage in nature of a personal Tithe to the Parson or Vicar where they inhabit though they take their Fish Fowl c. in another Parish but if they paid Money to another in that other Parish for this liberty of Fishing c. then he that takes that Money must pay as a Predial Tithe to the Parson of that other Parish where he inhabits Fish taken in the Sea being Ferae naturae are not understood to be Regularly but Customarily only Tithable as in Cornwall Wales Yarmouth c. And so it hath been Resolved albeit in the said Case of the E. of Desmond it was held that they were Tithable by the Custome of the Realm In which case it is more probable that the Fishers pay a Personal than the Fish a Predial Tithe to the Parson or Vicar of that Parish where they inhabit To this purpose there is a Case extant wherein a Prohibition was granted against the same Parson of W. in the County of L. for suing in the Ecclesiastical Court for the Tithe of Trouts taken in a River because being Ferae naturae they are not Tithable and a President was shewed 5 Car. where a Prohibition was granted against the same Parson for suing for Tithe-Eeles taken in the River because they were Ferae naturae And it was said that in Yarmouth was a Suit for Tithe-Herrings taken in the Sea but they could not prevail in it Jones Justice said That in Wales they used to pay Tithes for Herrings and in Ireland it is a common course to pay Tithe for Salmons taken in Rivers whereunto it was replyed That that might peradventure be by Custome for otherwise Tithes are not due for Fish taken in Rivers For no Tithes de jure are to be paid for Fish taken in a Common River Pasch 5 Car. B. R. a Prohibition granted to stay a Suit for Tithes of Eeles taken in a Common River in the Parish of Barton in Westmerland and Hill 9 Car. Prohibition granted to stay a Suit for Tithes of Trouts in the same River But the Court seemed to be divided whether Tithes of them were due or not But they granted a
setting forth of Tithes which Action is to be sued in the Temporal Courts Trees of all sorts regularly and generally except Timber-Trees as aforesaid Root and Branch Body Bark and Fruit used or sold by the Owner are Tithable Tithes shall be paid of Hasel Willows Holley Alder and Maple although above twenty years growth Mich. 5. Jac. B. Resolved and Consultation granted accordingly So that Trees of all kinds not apt for Timber though exceeding 20 years growth nor ever cut before may be Tithable And all Trees under the notion of Sylva Caedua aforesaid Underwoods and Coppices felled and preserved to grow again are Tithable to the Parson when the Owner takes his Nine parts But Trees cut only for Mounds Plow-gear Hedging Fencing Fewel for maintenance of the Plough or Pail be it Underwoods of Coppices Parings of Fruit-Trees or the like are not Tithable but Trees bearing Fruit of all sorts are Tithable in their Annual increase And therefore as to Fruit-Trees as Apples Pears c. the Tenth of the Fruit shall be set out and delivered when they are newly gathered for the omission whereof if loss come to the Parson the Owner is chargeable to him in the Treble Dammages If a man pay Tithes for the Fruit of Trees and after cut down the same Trees and make them into Billets and Faggots and sell them he shall not pay Tithes for the Billets or Faggots for that it is not any new Increase Coke Magna Charta 652. 621. If Trees be Fell'd no Tithes shall be paid of the Roots Coke Pasch 29 Eliz. B. R. nor of the young Sprouts that grow of such ancient Stock M. 12 Jac. B. R. Stampe Clinton Roll. Rep. And as Fruit-Trees pay Tithes in their Fruit so also may young Trees which as yet bear no Fruit pay Tithes in another kind for where a Parson Libelled in the Ecclesiastical Court for the Tithes of young Trees planted in a Nursery upon purpose to be rooted up and sold to be planted in other Parishes The Question was Whether Tithes should be paid for them It was said they were of the nature of the Land and Tithes should not be paid of them no more than of the Mines of Coles or Stones digged or for Trees spent in Fewel in the House But it was the Opinion of the whole Court That forasmuch as he made a profit of such young Trees Tithes thereof should be paid when they are digged up and sold into another Parish as well as of Corn and Carret or other things of like nature Note by the Justices If one cut Trees which are or may be Timber although they be under the age of 20 years no Tithes are due and so it is of new Germins growing under that age And where in a Prohibition for that it was Libelled in the Ecclesiastical Court for Tithes of Timber Trees the Defendant said the Trees were long since aridae mortuae putridae It was the Opinion of the Justices That no Tithes should be paid of those Trees for being above the growth of 20 years they were discharged of Tithes Also in Brook and Rogers Case where a Parson sued in the Ecclesiastical Court for the Tithes of the Boughs of Trees above the age of 20 years growth and the Defendant prayed a Prohibition and shewed that the Trees were aridae siccae in culminibus putridae It was held by the better Opinion that Tithes should not be paid of them In an Action upon the Case Declared whereas by the Statute of 45 Ed. 3. cap. 3. Tithes ought not to be paid for Gross Trees That she had cut down such Timber Trees being above the growth of twenty years and that the Defendant as Parson sued her for Tithes of them against the Statute upon which it was Demurred Resolved by the whole Court That the Action did not lie for none shall be punished for Suing in the Ecclesiastical Court for any matter which is properly demandable there although perhaps he hath no cause of Action But if he Sues in the Ecclesiastical Court for matter which appears by his Libel is not Suable there nor the Court hath Jurisdiction thereof there an Action upon the Case lieth Turkeys Tithes shall not be paid of them nor their Eggs quia Ferae naturae Turves used for Fewel or Firing do pay Tithe and are Tithable as Predial Tithes yet held that Tithes shall not be paid thereof Hill 14 Jac. B. R. per Houghton Hill 11 Jac. B. R. per Cur. Tile-Stones or Brick Tile are not Tithable Tythes or Tithes are a Tenth or otherwise a certain part or portion of the Fruit or lawful Increase of the Earth Beasts or Mens Labour and Industry and are payable by every person having things Tithable that cannot shew a Special Exemption either by Composition Custome Prescription Priviledge or some Act of Parliament And they are to be paid without any Diminution for which reason the Owners of things Tithable ought not to have the Nine parts till the Tenth be first severed there-from And on the other side the Tithe is in no case to be taken by the Parson or Vicar before the same be severed from the Nine parts The Parson de mero Jure is to have all the Tithes if there be no Endowment of the Vicarage and a Vicar cannot have Tithes but by Gift Composition or Prescription for that all Tithes de jure do belong to the Parson In Suit for Tithes it is not necessary to demand the very value for the Duty is uncertain Mich. 16 Jac. B. R. Case Pemberton Shelton Roll. Rep. If Tithes be payable by one who dies before he pays it it must be paid by his Executor if he hath Assets But if the Parishioner setteth forth his Tithes and they stand upon the Land two or three daies and afterwards he taketh or carrieth them away this is not a setting forth of his Tithes within the Statute of 2 Ed. 6. But if the Parson or Vicar shall suffer his Tithes being severed to lie long upon the Land to the prejudice of the Owner of the Ground he may have his Action of the Case And whoever taketh away the Tithes not having Right thereto is a Trespasser Also an Action lieth against a Disseisor for the Tithes or if one cut them and another carrieth them away an Action lieth against either of them And although in the Ecclesiastical Courts no Plea is allowed in Discharge of Tithes yet Lands in the hands of Ecclesiastical persons may be Discharged of Tithes and now since the Statute of 31 H. 8. in the hands of the Kings Patentees also by Suspension Priviledge or Unity And since in the Ecclesiastical Courts no Plea as aforesaid is allowed in Discharge it is nothing strange that the Common Law holds that the Court Spiritual hath not Jurisdiction in matters of Tithes where the Prescription is de non Decimando otherwise where it is de
modo Decimandi The manner of right Tithing is regularly thus viz. That Tithes and all other Church-Duties shall be yielded and paid according to the Usage and Custome of the place where they are paid And of Predial Tithes the Tenth is to be set apart from the Nine parts in the place where they grow before the said Nine parts are carried away which Separation from the Nine parts is to be done in presence of the Parsons Servant upon seasonable Notice given to the Parson by the Parishioner and the Parson is to have reasonable time to take away his Tithe And as for the Small Tithes such as Plants Herbs Seeds of Woad Flax Hemp c. they are Tithable in kind if not Compounded for And Personal Tithes such as are for Profit made by Trade and Manual Occupations except Common Labourers are to be paid as they were used to be paid forty years before the Statute of 2 Ed. 6. and as of right they ought to be paid as at or before Easter some small Sum of Money according to the Custome of the place but without a Custome nothing to be paid The Tithes of one thing only cannot be in satisfaction of Tithes of the same and other things of another kind Nor is Tithe twice payable of one thing in one and the same year Therefore if a Parson hath Tithe-Fruit of a Tree felled the same year and made into Billets or Faggots he shall not have Tithe thereof Nor are Tithes payable by any but such as have a Property in the thing Tithed therefore they are not payable of things Stollen nor shall things meerly for Pleasure pay Tithes nor the things that are in no mans property only the King shall have the Tithes arising out of Ground not in any Parish And if Tithe be paid to one that comes into the place by Simony it is at his own peril if afterwards he be forced to pay it again Where Sale is or may be made of a thing Tithable the equallest way is to lett the Parson or Vicar have the Tenth peny made of the thing sold And although Tithe is not payable to the Simonaick Parson yet an Incumbent wrongfully Collated by the Bishop may be such a person as is capable of Tithes and may Sue for the same In Love and Piggots Case it was said That if a Lessee for years be Sued in the Spiritual Court for Tithes he in the Reversion may have a Prohibition Pasch 29. El. B. R. Cro. Rep. par 1. And a Lay-man lawfully Interessed in Tithes being disseized thereof or wronged therein may have his Remedy for them in the Kings Temporal Courts This takes not away the ordinary Remedy for them in the Ecclesiastical Court the Law as to that being as it was before the Statutes Likewise for refusal to pay Tithes or not setting forth Predial Tithes the Parson may Libel in the Ecclesiastical Court or he or other Proprietor thereof may Sue at the Common Law or for the Subtraction thereof at their Election and recover the Treble value of the Tithes Yet where only the Right of Tithes doth come in debate and not the right of Patronage in such case it hath been held That the Ecclesiastical not the Temporal Jurisdiction shall take cognizance thereof yea though both parties claim by Prescription which in it self is a matter Triable at the Common Law But where the parties Litigant are both Ecclesiastical persons and the Claim of the one be for an Annual Pension out of the Parsonage of the other although he claim the same by Temporal grounds viz. by Prescription and Real Composition he hath his Election to sue for the same either in the Ecclesiastical or in the Temporal Court And by the Statute of 34 H. 8. c. 16. Ecclesiastical persons may sue for Pensions in the Ecclesiastical Court but if he brings a Writ of Annuity for the same and declares upon the Prescription he hath then determined his Election that if afterwards he Sue for this Annuity in the Ecclesiastical Court a Prohibition will lie If Suit be in the Ecclesiastical Court between Parson and Vicar for Tithes Prohibition hath alwaies been denied if there be not other matter determinable by the Common Law Mich. 16 Jac. B. R. Roll. Rep. But where the Question is only between the Parson and the Vicar it is to be decided in the Ecclesiastical Court Yet it is said That a Real Contract though made between Ecclesiastical persons and of Ecclesiastical things is only cognizable at the Common Law But if a Custome of Tithing be agreed by and between both parties it may be sued for in the Spiritual Court but if the Custome be denied a Prohibition may be awarded till it be Tried at Common Law But where there is a Modus Decimandi be it of Lands or a certain Annual Sum of money or other profit time out of mind given to the Parson and his Successors in full discharge of all Tithes in kind in such a place certain if this Sum be not paid yet may not the Parson sue for Tithe in kind but for the Money in the Ecclesiastical Court But yet the Modus it self is Triable at the Common Law and not in the Spiritual Court Likewise after that the Tithes are carried away out of the Ground it hath been held Suit cannot then be commenced for them in the Ecclesiastical Court because they are then become Lay-Chattels and the Property thereof is altered And for the not setting forth of Tithes not only the Parson or Rector but also the Farmer of the Rectory may sue upon the Statute The bare severing or setting forth of Tithes doth not make them to become Lay-Chattels but the carrying them away out of the Ground doth And therefore if Tithes be severed and set forth and afterwards the Parson Lease out the Parsonage not mentioning the Tithes the Tithes set forth shall pass for although they be divided and severed yet they are as yet Spiritual Duties of the Parsonage But if the Tithes be carried into the Barn and afterwards the Parson Leaseth out his Parsonage with all Profits c. those Tithes shall not pass to the Lessee for that now they are become Lay-Chattels It was Agreed clearly in Cannen's Case That if a Parishioner sever his Hay and it be made into Reeks or Cocks and after fell it the Parson cannot sue the Vendee for the Tithes thereof but him that severed it and on this matter Prohibition was granted H. 16. Jac. B. R. Roll. Rep. If a Parishioner doth not set forth his Tithes or subtracteth them after they be once set forth the Parson may Libel against him in the Spiritual Court or else by the Statute of 2 Ed. 6. cap. 13. the Parson or other Proprietor of the Tithes may have their Action in the Kings Temporal Courts for the not setting forth or subtracting of them at their Election
and shall recover the Treble value of the Tithes in an Action of Debt for although the Treble value be not given to the Parson or other Proprietor of the Tithes by any express words of the Statute yet forasmuch as he is the party grieved and hath the Right of the Tithes in him the Treble value is given to him For wheresoever a Statute giveth a Forfeiture or penalty against any one who wrongfully detaineth or dispossesseth another of his Right or Interest in that case he that hath the wrong shall have the forfeiture or penalty and shall have his Action at the Common Law for the same or he may Sue in the Ecclesiastical Court for the same But in his Action at Common Law it seems he shall recover no Costs as hath been Adjudged But if the Parson or other Proprietor will sue in the Ecclesiastical Court for the subtraction of the Tithes he shall recover there but the double value of them because in that Court he shall recover the Tithes themselves which is equivalent to the Treble value at the Common Law In another Case where Debt upon the Statute of 2 Ed. 6. was brought for not setting forth of Tithes the Plaintiff shewed That Two parts of the Tithes did appertain to the Rectory and a Third part to the Vicarage and that he had a Lease for years of the Rectory and another Lease of the Vicarage And for not setting forth of the Tithes he demanded the Treble value upon Non Debet it being found for the Plaintiff it was urged in stay of Judgment that he ought to have brought several Actions being grounded upon several Leases as his Title is several But it was Resolved That the Action was well brought in regard he had both Titles in him and the Action is brought upon the wrong because he did not sett out the Tithes Again in Debt for not setting forth of Tithes upon the Statute of 2 Ed. 6. The Case was Corn was growing upon the Glebe-Lands of the Vicar which was discharged of Tithes being in his own use It happened that the Vicar died before the Tithe was severed and his Executors did cut and carry away the Corn and he that had the Parsonage appropriate brought the Action The Counsel of the Defendant prayed the Opinion of the Court whether he might plead Nihil debet But the Court refused to deliver their Opinion in it because it hanged in Suit before them In the Case of Mountford against Sidley it was said That where Tithes are sett out the Parson hath a liberty for a convenient time to come and carry them away And this convenience of Time is triable by a Jury if he exceed this he shall be subject to an Action and then by Judgment of Law he shall be taken to be a Trespasser ab initio Otherwise it shall be of a License in Fact given by the Parson himself And it was holden by the Court if the Corn had continued over long his Remedy had been by Action upon the Case And as a Parson ought to have convenient time to carry away his Tithes so likewise he ought to have for that end free ingress egress and regress to through and from the Land where the Tithes are wherein if he meet with any obstruction he ought to see how he Sues and lays his Action for in a Case where a Parson Libelled for Tithes in the Ecclesiastical Court and set forth That the Tithes were set forth and that the Defendant did hinder him and stop him from carrying them away But because he did not Sue there upon the Statute of 2 Ed. 6. for he did not mention the Double value as he ought and it was Agreed by all the Justices he ought to have done nor mention the Statute as he ought also to have done a Prohibition in that Case was awarded The Grant of a Tithe for Life to begin at a day to come is not good Yelvert 131. If a man will lett a Lease of his Tithes the Lease must be by Deed and not by word only therefore if a Parson doth Demise his Rectory for years the Tithes will pass inclusive although the Lease be by word only but if the Parson Lease his Tithes alone they will not pass unless the same be by Deed or Writing Yet the Parson may Demise his Tithes to the Owner of the Land for a year by word only as hath been agreed by all the Justices but to a Stranger he cannot Demise them otherwise than by Deed And although Tithes will as aforesaid pass by Contract to the Owner of the Soil yet may the Parson sue the Owner for Tithes in kind in the Spiritual Court and as it hath been holden the Owner by reason of the Contract shall not have a Prohibition In which case the Ower of the Soil may sue the Parson upon the Contract in the Temporal Court and recover as much in Dammages but then in his Pleading he must not declare of a Verbal Contract but must set forth the same to have been made in Writing and so it hath been Adjudged And in the Lord Shandois Case it was holden by the Court That a Suggestion of an Agreement between him and the Parson in consideration of a certain Sum to be yearly paid to the Parson during their Joynt-Lives and his continuing Parson that his Messuage and Lands in the Parish of D. and the Tenants thereof should be discharged from the payment of Tithes thereof shewing that the said yearly Sum was paid accordingly and that notwithstanding the Defendant sued the Plaintiff being his Farmer for Tithes In this Case it was held That this was not a sufficient Surmize to maintain a Prohibition For an Agreement to be discharged from Tithes may be a year by word but to have such an Agreement for life or years cannot be without Deed Likewise in an Ejectione Firme brought of a Lease of Tithes the Plaintiff did not shew that the Lease was by Deed and because Tithes cannot pass without Deed after a Verdict found for the Plaintiff It was Ruled to be ill and Adjudged for the Defendant To conclude In the 19 El. B. R. it was debated whether Tithes were Jure divino or by the Constitution of men only The Judg. were all it seems of Opinion That they were due as well by the Constitution of Kings as by the Law of God And therewith doth Dr. Stu. 166. if the Qu. be de Quota parte For there it is held that the 60 part is due only by mans Law And the Opinion of Gerson the Divine is cited in his Treatise Entituled Regulae Morales where it is said Solutio Decimarum Sacerdotibus est jure Divino quatenus inde sustentur sed quoad hanc quam illam partem assignare aut in alios reditus commutare Positivi juris est And elsewhere Non vocatur portio Curatis Decima pars imo est
hands both the Land and the Rectory before the memory of man or as it seems according to the Rules of Common Law before the first of R. 1. Discharged of Tithes or if the Appropriation were Ancient as in the time of Ed. 4. such is said to be a good discharge of Tithes either on the account of Perpetual Vnity or of Prescription And at this day such an Vnity is said to be a good discharge of Tithes in the hands of the Kings Patentee within the Statute of 31 H. 8. There may be also as appears at the Common Law an Vnity of Possession different from the former which shall likewise discharge from the payment of Tithes but such Discharge is only pro tempore and therefore though it be an Vnity of Possession yet it is not a Perpetual Vnity in the sense aforesaid As if a Parson of a Church purchaseth a Mannor within his Parish by this Purchase and Vnity of Possession the Mannor which before was Tithable is now become Non Decimabilis because he cannot pay Tithes to himself but if he maketh a Lease of his Parsonage and Rectory to a Stranger the Parson himself shall pay Tithes of his Mannor to his Lessee and so if the Parson maketh a Feoffment of his Mannor the Feoffee shall pay Tithe to the Parson because Tithes are due by the Law of God ex Debito and cannot be extinct into whose hands the Lands come unless they come to the hands of the Parson himself Vnderwood is Tithable and of Vnderwoods digged up by the Roots Tithe shall be paid and so of Hedge-rows likewise of Vnderwood sold standing the Tithe shall be paid and that not by the Seller but by the Buyer But Vnderwood used for sencing of Corn or Pasture pays no Tithe An Action of Trespass was brought by a Parson against a Vicar for Vnderwoods and each of them did claim the Vnderwoods by Prescription as his Tithes that although their claim was by Prescription yet because the right of the Tithes was in debate only the Temporal Court was ousted of the Jurisdiction of them But if a Parson or Vicar claim a portion of Tithes by Prescription only which is a Temporal thing and sueth in the Spiritual Court it was holden that a Prohibition lieth In a Prohibition to stay Proceedings in the Ecclesiastical Court upon a Libel there by the Parson for Tithe of Vnderwood by reason of a Prescription in Non Decimando for the Wilde of Kent this Wood growing in the Wilde of Kent Henden moved the Court for this Prohibition for these Reasons 1 A whole Countrey generally may Prescribe in Non Decimando in a particular place and as a whole Countrey may so do by the same reason a particular person may A second Reason The Statute of 2 Ed. 6. cap. 13. gives life unto this Prescription for this particular place and precinct Coke Chief Justice By Lindwood a whole Countrey may Prescribe in non Decimandâ— and so is Dr. Stu. cap. ult fo 166. b. But it is with this Proviso so that there is besides this Maintenance for the Parson otherwise the same is not good The Statute of 2 Ed. 6. cap. 13. aids you not at all in this Case for a private man cannot in this manner Prescribe And to say that the Conqueror never conquered this place this is but Historical and Apocryphal for he was Conqueror by Composition had It is true that in former time long since this place was not Tithable because there was no Wood there but great Timber-Trees which were not Tithable but these being now cut down wasted and destroyed by the Iron-Mills and as in many other places now this place which was not Tithable before being now Vnderwood and converted into Tillage or Pasture is now become Tithable and Tithe shall be there paid and if Waste and Barren Ground for the which no Tithe hath ever been paid if the same be now meliorated and converted into Tillage now by the Common Law Tithes shall be presently paid for this unless the same be within the Proviso of the Statute of 2 Ed. 6. of Exemption from payment of Tithes for a certain time after the melioration of the same as appeareth in the Statute otherwise Tithes shall be paid presently No Tithes could formerly be paid here in this place because there were only great Timber-Trees here growing but now clearly they ought to pay Tithes for the Vnderwoods and this is the only Demand here The whole Court was clear of Opinion That no Prohibition should be here granted in this Case but that Tithe should be paid Coke Will you allow the Parson here in this place Tithe-Hay and Corn and not Tithe-Wood Doderidge by Lindwood and Dr. Stud. a whole Countrey may be discharged from payment of Tithes but this at the first of necessity ought to have a lawful Commencement by way of Composition or c. Coke agreed with him herein and said unto Henden Shew unto us an Ancient Writing by way of a Composition for your Discharge of payment of Tithes the Statute of 2 Ed. 6. makes against you there though no Tithe was ever paid yet upon the melioration of the Land Tithes shall be paid presently if the Statute had not been made The Court were all clear of Opinion against the granting of a Prohibition and so no Prohibition awarded W WAges of Servants of the Plough shall not pay any Tithe as hath been Resolved Pasch 14 Jac. B. inter Parson Ellis and Drake and Prohibition granted accordingly although the Libel was but for the Tithe of a Third part of their Wages leaving the rest free for it was said That by the same reason that the Cattel of the Plough are free of Tithe the Wages of the Servants that follow the Plough are Tithe-free also Waste Pasture Lands if Tithes in kind be paid for Lambs Calves c. feeding and couching thereon Tithes shall not afterwards in the same year be paid for Agistments on the same Waste Pastures Waste Grounds not certainly known in what Parish and Cattel feeding thereon the Tithe thereof belongs to the Parson of the Parish wherein the Owner of the Cattel doth dwell Wax of Bees is Tithable by the Tenth weight thereof Tithes ought to be paid in kind de jure of Wax and Honey of Bees in the Hive Mich. 15 Car. B. R. inter Barefoot Norton Adjudged in a Prohibition upon a Demurrer and a Consultation granted Willowes growing in the soil of a Mannor felled are not as is said Tithable though it be waste to fell them No Tithes shall be paid of Willowes in a Countrey where they are used for Timber Sed Q. as to the former for a Record of a Prohibition was shewed to the Court where a Prohibition was awarded to the Spiritual Court for Tithes of Willowes upon a Surmize That they are of use as Timber in the County of Southampton And in
the probable derivation of that word and what it signifies 2. The manner and form of Publication of Banns according to the Provincial Constitutions 3. By whom Licences for Dispensation of Banns may be granted according to the Canons Also to whom and under what Conditions or Cautions 4. Requisites or Preparatories in Law unto such Licences 5. A Case at Common Law with the Resolutions of the Court relating to Banns with the power of the Ecclesiastical Jurisdiction therein 1. BANNS bannus vel bannum if Ban in the Brittish Language signifies clamor as Mr. Blount gives it in his Nomo-Lexicon then we need seek no further for its Derivation Bannos Q. an non declinata voce à Graece 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 omne 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 innotescat Mutatur enim facile 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 For though the Word be frequently mentioned by the Feudists and thence applied to other uses as to that which we here in this Kingdom call a Proclamation whereby any thing is by Authority publickly Commanded Permitted or Forbidden Vincen. de Franch Decis 521 360. yet in the Sence here meant and intended it is not so properly a Proclamation as a Publication or a publick Notice-giving And therefore by the word Banns as we use it is intended that publishing of Matrimonial Contracts in the Church tempore Divnorum before Solemnization of Marriage to the end That if any have ought material to object against the intended Marriage signified by such Publication either in respect of Pre-contract or otherwise they may seasonably make their Exception against it consonant to the very Letter of the Canon Law where Banna sunt proclamationes Sponsi Spansae in Ecclesiis fieri solitae c. 27. extr de Spons c. ult Qui Matrim pos c. ult de clandest Despon vid. Gothof ad Nov. Leon. 89. in med ibi Hottoman is very confident that there is both bannns and bannum and that they signifie Two distinct things and neither of them to our purpose for according to his exposition the one should signifie an Edict what day their Vassals or Slaves furnish'd with Horse and shall encounter one another the other a Sanction or Decree that is a Mulct or Fine imposed on him that does not obey the Edict Hottom in verb. Bannus De verbis Feudalibus 2. In the Provincial Constitutions Banna are publick Proclamations or Denuntiations Lind. Provin Constit de cland Despon c. 1. glos verb. Bannorum Others describe them to be Edicta publice proposita Petr. de Anchor in cap. cum in tua Ext. de Sponsal By the said Provincial Constitutions the Banns ought to be Solemn Publications that is they ought to be thrice published in the Parochial Churches where the contracting Parties and their Parents dwell on 3 Sabbath days or 3 Festival daies allowing some interval of time between each at the time of Divine Service when most of the Parishioners are assembled together by the Parsons of the said Parishes respectively or others in holy Orders at such times and seasons wherein Solemnization of Marriage is not Canonically prohibited glos verb. Bannorum ubi supra Yet where three Festivals immediately succeed each other such Publication in them made holds good in Law Prov. Const de Spons glos in verb. a se distantibus As also shall the Marriage it self when once solemnized albeit such Publication of Banns as aforesaid did not precede the same gl in v. Solen Edit de cland Despon ubi supra 3. But by the Ecclesiastical Canons now in force it is Ordained That no Licence for the Solemnization of Marriage shall be granted without thrice open Publication of the Banns according to the Book of Common Prayer by any Person exercising any Ecclesiastical Jurisdiction or claiming any Priviledges in the right of their Churches but shall be granted only by such as have Episcopal Authority or the Commissary for Faculties Vicars General of the Archbishops and Bishops sede plena or sede vacante the Gardian of the Spiritualties or Ordinaries exercising of right Episcopal Jurisdiction in their several Jurisdictions respectively and unto such Persons only as be of good State and Quality and that upon good caution and security which shall contain these four Conditions 1 That therein is not any Impediment or Precontract Consanguinity Affinity or other lawful Cause to hinder the said Marriage 2 That there is not any Suit depending in any Court before any Ecclesiastical Judge touching any Contract or Marriage of either of the said Parties with any other 3 That they have the consent of their Parents or Guardians 4 That they shall celebrate the said Marriage publickly in the Parish-Church or Chappel where one of them dwells and that between the hours of 8 and 12 in the Forenoon Pasch 8. Car. B. R. case Matingley vers Martyn It was resolved that if any Marry without the Proclamation of Banns or Licence to dispence therewith they are citable for the same in the Ecclesiastical Court and no Prohibition lies in the case Jones Rep. 4. Before any such Licence as aforesaid can be granted it must appear to the Judge by the Oaths of two sufficient witnesses that the Consent of the Parents or Guardians is thereunto obtained and one of the Parties must personally swear that he beleives there is no Lett or Impediment of Precontract Kindred or Alliance or of any other lawful Cause whatsoever nor any Suit commenced in any Ecclesiastical Court to hinder the said Marriage according to the Tenor of the said Licence But in case the Parties be in Widowhood then the Clause relating to the Parents Consent may be omitted the penalty for offending in the Premisses is six months suspension ab executione Officii in any Commissary for Faculties Vicars General or other the said Ordinaries together with a vacating of every such Licence or Dispensation and subjecting the Parties marrying to the punishments appointed for clandestine Marriages The Syntagmatist tels us that there is a Canon extant made by John Metropolitan of Muscovy who is held as a Prophet in Russia to this day that Matrimonium non nisi publice in Ecclesiis contrahatur Petrus Gregor Tholos 5 In the case of Matingly against Martyn it was resolved 1 That the Cognuzance of all fornications Adulteries and suspected living in Adultery doth appertain to the Ecclesiastical Court 2 That if any marry without proclamation of the Banns without a Licence to dispence therewith they are citable in the Ecclesiastical Court for the same and no Prohibition lies in that case as aforesaid 3 That if any Licences to marry without Banns be granted by the Ordinary of the Diocess or by Commissaries or Officials in their Jurisdictions or by the Archbishop in his Province before the Stat. of 25. H. 8. The Cognuzance of the sufficiency of such Licence of the form of the Dispensation and of the Conditions and Provisoes of such Licence and
whether sufficient Notice thereof were given or not are examinable only in the Ecclesiastical Court and when the Licence is sufficient and the Provisoes well and duly observed and Notice thereof and This be refused or rejected in the Ecclesiastical Court yet no Prohibition lies but the Party grieved must have his Remedy by way of Appeal and not otherwise 4 That where power is given by Act of Parliament to the Archbishop to grant Licence either de novo or in Confirmation of his Authority yet the form of the Dispensation and the observation of the Provisoes and Conditions thereof and whether sufficient Notice were given or not are examinable in the Ecclesiastical Court and if they there adjudg in that case irregularly no Prohibition lies but the Remedy is only by way of Appeal But if it come into question in the Ecclesiastical Court whether the words of the Act of 25. H. 8. do give sufficient power to the Archbishop to grant a Licence there if the Ecclesiastical Court doth judge against the power a Prohibition lies and not otherwise but if they allow the Licence in point of power and only insist upon the Form and Notice and other Circumstances in such case a Prohibition doth not lie For though a power to grant Licences be by Act of Parliament which is a Temporal thing yet the Licence it self remains an Ecclesiastical thing and the examination of all these things saving the Power remains to the Ecclesiastical Court as it was before CHAP. XXXIIII Of Adultery 1. What Adultery is why so called and in what Court Cognizable 2. The Punishment of Adultery under the Levitical Law and what it was anciently by the Civil Law 3. The several Punishments thereof anciently according to the Quality of the Offenders respectively 4. Adulterers compared to Idolaters strange Punishments of Adultery among the ancient Pagans 5. The Severity of certain Ecclesiastical Laws in ancient times against Adultery 6. The Customs among the Arabians Mahumetans Tartars Indians Pagans in punishing Adulterers 7. The Civil Law touching Jealousie and second Marriage the former Husband then living 8. Adultery what in sensu largo how the punishment thereof is now mitigated at the Civil Law to what it was anciently and how punished at the Canon Law 9. The diversity of punishments inflicted on Adulterers according to the divers Customs of Nations respectively 10. In what respect the Temporal Laws may take some Cognizance of Adultery 11. What the Saxons of old in this Kingdom called the Punishment of Adultery the remarkable Case of Sr. Jo. de Camois 11. Adultery fals under a Threefold Consideration of Law the History of the Adulterous Stork 1. ADULTERY or Adulterium quasi ad alterius thorum where the Rights of lawful Matrimony are violated Lindwood's Const de Offic. Archipresb verb. tertium mandat is the Incontinencie of Married persons or of persons whereof the one at least is under the Conjugal Vow This is properly cognizable within the Ecclesiastical Jurisdiction the Conviction whereof is by Examination and other Legal proof requisite by the Law of the Church which if committed by any of the Clergy duely convicted thereof he was punishable by Imprisonment at the discretion of the Bishop or Ordinary of that Diocess wherein he resides 2. By the Levitical Law Adultery was punished with Death in both Sexes yea Stoned to death By the Civil Law also which cals it the Violating of another mans Bed the Punishment anciently was Death both in the Man and in the woman But afterwards the Punishment was mitigated by that Law as to the Woman she being first whipt and then shut up in a Monasterie but by the Canons other Laws are inflicted 3. At the Synod in Ireland held by St. Patrick and other Bishops an 456. by the 19 th Canon thereof the Adulterers were to be excommunicated At the Council held at Berghamstead by Bertwald Archbishop of Canterbury the Bishop of Hereford and others in the fifth year of Withred King of Kent an 697. several Laws were made against Adultery according to the several qualities and conditions of the Persons offending respectively beside Excommunication against all such if the Adulterer were an Alien he was to depart the Land and to take his Sins and his Estate away with him If a Soldier then to be fin'd five pounds If a Rustick or Countrey Husbandman known in the Law by Paganus then to pay fifty shillings If a Priest then to be inhibited from administring the Sacrament of Baptism 4. Boniface Archbishop of Mentz when he was the Popes Legate in Germany an 745. in his Epistle to AEthelbald King of Mercia compares Adulterers to Idolaters and moreover says that the Greeks and Romans Compar'd Adultery to Blasphemy when committed by or with one of religious Orders and adds that among the Pagans in the time of the old Saxons the very pactice was that if a Virgin Adulterously defil'd her Fathers Family or a Married woman plaid the whore they were enforced to be their own Executioners and by their own hands to reduce themselves by Strangling to dead Corps which being after burnt the Adulterer was hangd over the Ashes thereof and at other times the Adulteresses were by those of their own Sex out of their Zeal to Chastity whipt from Village to Village till they were whipt to death In Antiqua Saxonia ubi nulla est Christi cognitio si Virgo in paterna domo maritata sub Conjuge fuerit adulterata manu propria strangulatam cremant supra fossam sepultae corruptorem suspendunt aut cingulo tenus vestibus abscisis flagellant eam castae matronae cultellis pungunt de Villa in Villam inter se occurrunt novae flagellatrices donec interimant By the Laws of William the Conqueror the Adulterer was to be put to death Si Pater deprehenderit Filiam in Adulterio in domo sua seu in domo Generi sui bene licebit ei oure lege forsan occire occidere Adulterium 5. In the Ecclesiastical Laws of Keneth King of Scots an 840. By the 14 th and 15. Canon thereof it is ordained That he who deflowrs a Virgin shall dye for it unless she desires him for her Husband and that he who Adulterates another mans Wife not dissenting Both shall suffer the severest punishment unless she were under a force in which case she shall be acquitted By the Ecclesiastical Laws of Hoel Dak King of Wales an 940. it was a sufficient cause of Divorce if a Woman did but kiss any other man than her Husband l. 18. Yea she must lose her Dower and all her Rights by that Law and only for a kiss and by the same Law Adultery in the Man was held as a kind of Hostility In the time of the latter Saxons by the Ecclesiastical Laws of King Edmund an 944. Adulterers and Murderers had one and the same punishment and both alike denied Christian Burial After him by the Ecclesiastical Laws
of King Knute an 1032. Adulterers and such as violated the Chastity of a Widow or a Virgin were to be banished and their Estates confiscate And in case a Wife playd the Strumpet her Husband living he was to possess himself of all her Estate Real as well as Personal and she to have her Nose and Ears cut off and an indelible Blot with perpetual Infamy to remain upon her Family 6. The Arabians as Strabo relates though they used Incestuous Copulation with Sister and Mother yet punished Adultery with death but that only was Adultery in their account which was out of the same Linage or Kindred for otherwise All of the same Blood to use the same Woman was but their Incestuous Honesty And by the very Alchoran not only is an unchast Look on another mans Wife forbiden but also if a Wife be convicted of Adultery by the testimony of four Women she is confin'd to perpetual Imprisonment in her own house till she dyes and none suffered to come at her And in some parts of the Grand Signiors Territories the Turks have a custom to thrust the Adulterers head into a Dung-Wallet of the Panch of a Beast new killed and so to carry him through the Streets but for a Christian to have Carnal knowledg of any of their women is death unless he turn Turk And with the Tartars their Women are so chast as that Adultery is seldom heard of among them but when it happens to be committed they punish it also with death Among the very Pagan Indians as at Dominica Cuiana Bantam Japan and other parts of the Indies Adultery is punished with death Likewise the Javans and Chinois or Chinesses inflict the same punishment of death on Adulterers and at Pequin the City where the King of China makes his Residence the Dowries or Joyntures of convicted Adulteresses are bestowed on the Hospitals of Female Orphans and at Petane a Province joyning to Chinas their Noble Personages are for Adultery even by their own Parent either strangled or stab'd to death at their own choice which At Brasile the Husband might kill his Adulterous Wife and at Mexico or New Spain Adultery was death also by the Laws of the Inguas the ancient Lords of Peru Adultery and Incest with Ascendents or Descendents in the Direct Line was punished with death yet they held it no Adultery to have many Wives whereof one only was principal with whom Marriage was contracted whom they wedded and received with a particular Matrimonial Ceremony She only was held as the Adulteress and with the Adulterer died for it the others being rather Concubines than Wives were not understood by them as capable of this offence or punishment Indeed in the Kingdom of Angola in AEthipia and at Bengala in the Indies Adultery is but the loss of the Adulterers Nose and in Guinea it is in the Woman but a Divorce and Banishment from her house and in the Adulterer but a forfeiture of 24 Peso's of gold to the King and among the Jews now since the Sword and Scepter departed from Judah it is but a Penalty in stead of a punishment and but a standing up to the Chin in cold water to quench the Flames of Lust These Presidents are not here quoted for Laws but only to let us see what Constructions even Pagans and Mahumetans have made of Adultery 7 By the Civil Law a man jealous of his wife may accuse her before a Competent Judge of Adultery if after three admonitions in the presence of three credible Persons given to the Person suspected of too much Familiarity with her he refrain not from her company and communication with her Auth. Coll. 9. By which Law also both Sexes are punished as guilty of Adultery if a Woman whose Husband is abroad in the Warrs or otherwise absent marry again before she hath certain intelligence of his death either from the Commander under whom he served or from the Governour of the place where he died for without such certain intelligence if she presume to marry again how long soever her Husband is otherwise absent from her both she and he who married her shall be punished as Adulterers and if her former Husband after such her second Marriage return back again she also shall return back again to her former Husband if he will receive her otherwise she shall live apart from them both Auth. Coll. ibid. Blackden married one within age and after disagreed so that they might Marry elswhere and the first wife had Issue by other Husbands and died and Blackden was sued in the Ecclesiastical Court by an Informer supposing he had married a woman living his other wife and Blackden there proves the disagreement by which he had Sentence for him against the Informer and yet he was taxed to give the Informer 20 Marks for costs which he refused to pay and moved for a Prohibition which was granted For it was Injustice to allow costs to one who had vexed him without cause and when Sentence had been given against the Informer 8. This Adultery or Adulterium quasi ad alterum being as aforesaid an unlawful access ad alterius thorum although it properly refers to one or both such as is or are in a Matrimonial State yet by abuse of words it is also commonly understood of corrupting or violating the Chastity of a Virgin or a Widow as when we usually say such or such natural things are adulterated when by reason of some Artifice they are corrupted and become not truly natural and such Wares and Merchandizes are adulterated when there is some Fraud in the case and so Adultery is repugnant to the very Nature of Matrimony which of Two makes One when as the other of One makes Two The punishment whereof was anciently by the Civil Law Capital as to the Man But by the latter Laws of the Authenticks the Women are first whipt then thrust into Monasteries and by the Canon Law it is Excommunication 9. Plato made a Law that whoever kill'd an Adulterer should go unpunished The Inhabitants of Arabia Foelix punished it with death Seleucus otherwise Nicanor King of Syria that succeeded Alexander in the Government of that part of the Empire decreed that whoever was apprehended in Adultery should be exoculated or have his eyes pluck'd out which afterwards happened to be impartially first executed on his own Son And albeit according to the proper Construction of words there is a difference put between Adulterium and Stuprum the former referring to persons married the other to Widows or Virgins Modestin in l. inter Stuprum ff de verb. Sig. Yet by the Julian Law the word Adultery is used indifferently in reference to both Id. Modest in L. Stuprum Ad L. Jul. de Adult But to speak properly they are not Termini convertibiles for though all Adultery be Whoredome yet every Whoredome is not Adultery each of which have their respective punishments according to the Laws and
is the causes thereof the difference between the Civil and Canon Law touching the proof of impotency frigidity or disability and what manner of proof the Law requires thereof 2. What time of absence in the Husband may cause a Divorce 3. Whether Divorce by reason of Adultery dissolves the Marriage à vinculo or whether the innocent party may remarry altera existente 4. What the Canon in Concilio Arelatense provides in that Case 5. The opinion of some eminent Common Lawyers in this point 6. The different Opinions of Divines and Lawyers and of each among themselves touching this matter 7. The Opinion in summa Hostiens as also of Suarez touching the legality of second Marriage after Divorce 8. The Canon of the Council of Trent concerning Matrimony also the Opinion of some of the Ancient Fathers and a Decree of one of the Popes touching second Marriage after a Divorce 9. Decrees and Histories of great Antiquity relating to this Subject 10. What the Pontifical Law what Justinian what Baldus and what Grotius says in this matter 11. Opinions in this point take their diversification much from the cause of the Divorce as whether ex causa praecedenti vel subsequenti 12. Judgments at the Common Law that a Divorce for Incontinency is only à Thoro mensa non à vinculo 13. What the Law intends by Alimony and what Elopement signifies no Alimony due to her that Elopes 14. In what Cases the Law will allow Alimony or not 15. How the Civil Law provides in that Case of Alimony 16. The Ecclesiastical Court is the proper Court for Alimony 17. Whether the High Commission-Court had power of Alimony or not 18. Prohibition denied to the Husband sued in the Ecclesiastical Court by the Wife for Alimony in causa saevitiae 19. Whether the Ecclesiastical Court may take Bond for Alimony or Imprison for non-payment thereof 1. A Divorce is a Sententence pronounced by an Ecclesiastical Judge whereby a Man and Woman formerly Married to each other are separated and parted The word Divortium or Repudium is often taken promiscuously both for a Total and Perpetual Divorce à vinculo Matrimonii as also for a Partial and Temporal Divorce or Separation à Cohabitatione vel à thoro mensa The causes of this Divorce whereof some are precedent others subsequent to the Marriage are many in the Law Thomas Aquinas reckons up no less than a dozen of them and thinks he hath Poetically compriz'd them all in four Verses viz. Error Conditio Votum Cognitio Crimen Cultus Disparitas Vis. Ordo Ligamen Honestas Si sis Affinis Si forte Coire nequibis Haec Socianda vetant Connubia Facta retractant But the Causes of Divorce in the Law as now commonly practicable may be reduced to these few 1. The Levitical Degrees within which it is prohibited to Marry 2. Precontract And so if a Man Marry one precontracted and have Issue by her it is the Fathers Child until there be a Divorce upon the precontract and then it is Nullius Filius a Bastard 3. Impuberty or Minority And so if two be Married infra annos nubiles and after full age are Divorced for the same the Woman may bring an Assize against the Man for Land given her in Frank-marriage which proves that the Divorce is by that Law from the very Bond of Matrimony 4. Frigidity in the Man or Impotency in the Woman termed Arctitudo in the Law but the word Impotency is promiscuously used in both Sexes for it is said that if after a Man be Divorced for Impotency he take another Wife and have Children by her these shall not be Bastards because a Man may be habilis inhabilis diversis temporibus But in this Case the Civil Law hath made other provision for that Law in causa Frigiditatis requires three years Cohibitation for Trial of the Disability before it doth upon other legal evidence and proof conclude any Married persons either Frigid or Impotent Indeed the Canon Law expects present proof and in case of such Impotency or Frigidity not Accidental but Natural and Incurable concludes that the Matrimony was never a Matrimony The evidence of which Disability depends on the Oaths of able Physicians as also of aged and grave Matrons experienced in such affairs nor is it to be alledged till after a Triennial experience of each other post Matrimonium Consummatum and is a just cause of Divorce for that it frustrates one of the chief ends of Marriage viz. Procreation of Issue if it be sufficiently proved by Inspection of the Body Triennial Cohabitation and the Oaths aforesaid Consil Matrim To. 2. Consil 8. nu 1. And in Cases doubtful whether it did precede the Marriage or not the Law will presume it to antecede the Marriage and consequently nulls it in case it be Natural otherwise both as to the presumption and operation in case it be only Accidental Sanch. lib. 7. disp 103. nu 4. And where the Impotency doth sufficiently Constare to be Perpetual by the Oaths aforesaid upon Inspection there the Triennial probation ceases Vt cum Glossae cap. Fraternitatis De Frigidis Maleficiis Panor nu 11. Pope Sixtus 5 th in his Bull An. 1587. declared that Matrimonia cum spadonibus vel eunychis prorsus eviratis seu utroque testiculo carentibus cum quibuslibet Mulierihus seu defectum praedictum ignorantibus seu scientibus esse semperque fuisse irrita Antonini â—â—ana resolutiones morales Tract 4. Miscelan resol 75. p. 190. 2. There are also other seeming causes of Divorce than what are forementtoned for the Civil and Canon Law do allow of Divorce after a long absence but are not agreed touching the Time of that Absence for in one place it is after Two years Absence in another after Three years in another after Four Cod. lib. 5. tit 1. l. 2. post biennium tit 27. post tres an l. 27. post Quatuor an others hold that the Civil Law requires Five years Absence before there may be a Divorce on that account In the Council of Lateran a Sentence was allowed by the whole Council which was given by a Bishop pronouncing a Divorce for a Woman complaining that her Husband had been absent Ten years giving also leave to the Woman to Marry again In Concil later par 50. cap. 23. But the truth is no absence be it for any time whatever doth properly cause a Divorce in Law Indeed Seven years Absence without any tidings or intelligence of or from the Absent Party will so far operate in Law towards what is equivalent to a Divorce as to indempnifie the Woman from the penalty of Polygamy if in that case she Marry again Also the Canon Law hath decreed that if the Wife refuse to dwell with her Christian Husband he may lawfully leave her Causa 28. q. 1. c. 4. And some of the Imperial Laws allow Homicide Sacriledge Theft Man-stealing c. for
causes of Divorce Cod. lib. 5. tit 17. l. 8. But the Canon Law decrees otherwise In the time of Ed. 1. William de Chadworth was Divorced because he carnally knew the Daughter of his Wife before he Married her Mother The Stat. of 1 Jac. cap. 11. is the first Act of Parliament that was made against Polygamy Polygamia est plurium simul virorum uxorumve connubium The difference between Bigamy or Trigamy c. and Polygamy is Quia Begamus seu Trigamus c. est qui diversis temporibus successive duas seu tres c. uxores habuit Polygamus qui duas vel plures simul duxit uxores And if the Man be above the Age of fourteen which is his Age of Consent and the Woman above the Age of twelve which is her Age of Consent though they be within the Age of twenty one yet they are within the danger of the Stat. of 1 Jac. cap. 11. Co. Inst Par. 3. Cap. 27. vid. Instit par 1. Sect. 104. 3. This matter of Divorce hath often ministred occasion for high debates and altercations touching second Marriages As whether a Divorce by reason of Adultery in either of the Married Parties doth so dissolve the Marriage à vinculo as that it may be lawful for the Innocent Party to Marry again during the others life By the 107 th Canon It is provided that in all Sentences for Divorce security be given and Bonds taken for not Marrying during each others life By enjoyning such security to be given and such Bonds to be taken This seems to be a Penal Canon viz. pecuniarily Penal whoever therefore breaks the Law incurrs the penalty and whoever suffers the penalty doth answer and satisfie the Law which before he had infring'd a penalty expressed or implied provided for in and annexed unto a Law that is in it self prohibitory seems to create some qualification of that legal prohibition Prohibitio vim suam exercere potest per poenam vel expressam vel arbitrariam Et hoc genus Leges Imperfectas vocat Vlpianus quae fieri quid vetant sed factum non rescindunt So Grotius Grot. de jure Bel. Pacis lib. 2. cap. 5. Sect. 16. But to speak a little nigher to the point in hand it is Grotius again in the same place Si Lex humana conjugia inter certas personas contrahi prohibeat non ideo sequitur irritum fore Matrimonium si re ipsa contrabatur sunt enim diversa prohibere irritum quid facere The Laws whether Ecclesiastical or Temporal are not of any private interpretation yet to speak herein only hypothetically if this be interpretative as a penal Canon by vertue of the said Security and Bond then apposit and observable is that which Grotius hath in another place in Casu Legis Paenalis his words are these viz. Rex qui est Auctor Legis ubi Regni ipsius personam auctoritatem sustinet qua talis est potest legem etiam totam tollere quia Legis humanae natura est ut à voluntate humana pendeat non in Origine tantum sed in duratione Sicut autem totam Legem tollere potest ita vinculum ejus circa personam aut factum singulare manente de caetero lege Dei ipsius exemplo Qui Lactantio teste legem cum poneret non utique ademit sibi omnem potestatem sed habet ignoscendi licentiam Imperatori inquit Augustinus Licet revocare sententiam Reum mortis absolvere ipsi ignoscere Causam explicat Quia non est Subjectus Legibus qui habet in potestate Leges ferre Grot. ibid. de Paenis cap. 20. Sect. 24. How farr the power of Princes may extend it self in this matter is not before us But clear it is that all such as acknowledge the Regal Supremacy will withall confess that his Majesty hath more right to dispence with Canons within his own Dominions ex plenitudine potestatis Regalis than was here formerly exercised ex usurpatione potestatis Papalis In all Laws that are both Prohibitory and Penal as they are of the more force by reason of their Prohibitory quality so they seem to abate of that force by reason of the annexed penalty for he that suffers the penalty satisfies the Law though he transgress the Command The Statute of primo Jacobi hath a Proviso or exception to second Marriages by persons legally Divorced no Caitons or Constitutions prevail or are executable in repugnancy to the Kings Prerogative or to the Laws or Statutes of this Realm That Statute of primo Jacobi prohibiting second Marriages during the Life of each other doth not only not extend to persons legally Divorced but as to such it is with an exception limitation or proviso as aforesaid Sir Ed. Coke taking notice hereof in Porters Case reports that that Statute extends only to persons which are Divorced by Sentence in the Spiritual Court And that distinction of Total and Partial Divorce Or that vel à vinculo vel à Mensa Thoro will not it seems satisfie all Judgments some alledging that ubi lex non distinguit nec nos distinguere debemus applying that Rule ad Evangelium also and thence will not be perswaded but that the innocent party in Causa Divortii ob Adulterium may Marry again altera parte existente because though they know it to be otherwise by Text Canonical yet know not where to find it so by Text Scriptural and specially because they find a Proviso in the said Statute of primo Jacobi that the parties Divorced by sentence if he take another Wife or she take another Husband shall not be within the danger of the Statute And that this extends to every manner of Sentence of Divorce and not to any particular cause of Divorce Cajetan though of the Roman Church yet on the 19 th of Matthew saith Intelligo ex hac Domini Jesu Christi lege licitum esse Christiano dimittere uxorem ob fornicationem carnalem ipsius uxoris posse aliam ducere and soon after adds Non solum miror sed stupeo quod Christo clare excipiente causam fornicationis torrens Doctorum non admittat illam Mariti libertatem This Question Whether after Divorce for Fornication it be lawful to Mary again during the Lives of the parties Divorced is at large handled by the learned Doctor Hammond in his Treatise of Divorces where he says that Mat. 19. 9. and Mark 10. 6. are two places of such perspicuity one Cause of Divorce allowed the Christians that great Breach of the Conjugal Vow and whosoever Divorces and Marries again save in that one Case punctually named committeth Adultery that as no Paraphrase can make them more Intelligible So there is but one Question that can reasonably be started in them viz. Whether he that puts away his Wife on this one authentick cause be so perfectly freed from the Conjugal Vow and Bands that
Patrum Concinnatis it was Lawful so to do the words of the Canon are Si vir sive Mulier ex consensis Religionem ceperit licet alterum accipere novum conjugium But from hence no Argument can be drawn to prove the Lawfulness thereof in Causa Divortii The Cardinal of Segutium in his summa Hostiensis seems to be of Opinion that it is Lawful in case of Divorce to Marry again the words of that famous Canonist are debet Iudex sententiam Divortii partibus tradere in Scripturam publicam redactam ne Filiis susceptis ex secundo Matrimonio probatione deficiente valeat praejudicium generari But Cardinal Navarr seems to be more positive in the point where he Affirms that Matrimonium Contractum cum secunda post sententiam Divortii valet provided it be post Triennalem Cohabitationem as the Canon Law requires in causa Impotentiae Navar. Concil l. 4. concil 1. de Frigidis nu 3. p. 414. But it seems strange that Sanchez a Jesuite and one of the highest form arguing this Question against the Hereticks as they are pleas'd to call us should so ingenuously confess that ex ipsis Catholicis aliqui existimarunt omnino dissolvi Matrimonium quoad vinculum eo propter Adulterium alterius Conjugis separato atque ita licere aliud Matrimonium inire priori Conjuge superstite Sanch. de Matrim Tom. 3. l. 10. de Divor Disp 2. nu 1. Navar. lib. 4. Concil 1. nu 3. 8. This utrum ob Adulterium alterius Conjugis dissolvatur Matrimonium quoad vinculum ita ut integrum sit innocenti ad alias Nuptias transire altera parte vivente was a Question long since controverted by Bellarmin and by Valentia Bellarm. l. 1. de matrim c. 15. Valent. lib. unic de indissolubilitate matrim cap. 3. And by them admitted as disputable with a Non obstante to the Council of Trent whereby Matrimony is highly Sacramentiz'd as appears by that which the said Tridental Council declares concerning it viz. Matrimonium est Sacramentum quod ex opere operato confert gratiam secundum Communem veram opinionem quam pro infallibili Articulo Fidei tenendam esse ait Concilium Trident. declaravit Navar. lib. 4. Concil 1. nu 3. Yet the forementioned Sanchez doth cite Sixtus Senensis bringing in Origen Asserentem sui temporis Episcopos permisisse alias Nuptias uxoribus ob virorum Adulteria ab ipsis divertentibus Sanch. ubi supra Sixt. Senens lib. 6. Bibliothec. Of which Judgment also was St. Ambrose as he affirms also Tertullian Erasmus Cajetan and Catherinus Tertul. lib. 4. contra Marcion Erasm annot ad 1. Cor. 7. Cather l. 5. Annot. contra Cajetan infin Cajetan in Mat. 19. in illud quicunque dimiserit This also saith Sanchez was the Judgement of the Greek Church as Guido the Carmelite reports and of this Judgment are both the Lutherans and Calvinists yea it was the Judgement also of a Pope Pope Zacharias the First who expresly Decreed in these words viz. Concubuisti cum sorore uxoris tuae Neutram habeas Et si illa quae uxor tua fuerit Conscia sceleris non fuit si se continere non vult Nubat in Domino cui velit Cap. Concubuisti 32. quest 7. And as to the Husband St. Ambrose is express in the Case uxor à viro non descedat nisi causa Fornicationis quod si discesserit aut maneat innupta aut reconcilietur Ideo non subdit de viro quod de uxore praemisit quia vero liceat ducere aliam D. Ambros. ad 1 Cor. 7. refertur cap. uxor 32. q. 7. So likewise Ex concilio apud Vermerias it is express that Maritus uxore conciliante mortem ejus possit ipsam uxorem dimittere si voluerit aliam ducere refertur c. si qua Mulier 31. q. 1. 9. In the first Year of Lotharius King of Kent An. 683. In Concilio Herudfordiae It was Decreed that Nullus Conjugem propriam nisi ut sanctum Evangelium docet Fornicationis causa relinquat Quod si quis quam propriam expulerit Conjugem Legitimo sibi Matrimonio Conjunctam Si Christianus esse recte voluerit nulli alteri copuletur sed ita remaneat aut propriae reconcilietur Conjugi In those days it seems he was reputed scarce a Christian that being separated from his Wife presumed to Marry another And above two hundred years before in St. Patricks Synod viz. In Synodo Sancti Patricii aliorumque Episcoporum in Hibernia Celebrata circa An. Christi 450 vel 456. It was decreed That the punishment of a Woman departing from her Husband and joyning her self to another Man should be Excommunication In the time of H. 3. and in the Case of Simon de Montford between him and his Wife the Pope ratified his Marriage after he had dispenced therewith contrary to the Laws and Canons King John being Divorced from the D. of Glocesters Daughter viz. the third of June 1199. soon after viz. before the 8 th of October then next following was Remarried to Isabel sole Daughter and Heir to the E. of Engolesme Likewise Alice Daughter of the E. of Savoy and King John's first Wife was Married to him after she had been the Divorced Wife of Henry de Lyon D. of Saxony Speed Chron. in vita Johan R. Angl. Also King Henry 8 th after he had been Divorced from Q. Katherine his Brothers Relict and after above twenty years cohabitation with her Married again during her Life the Lady Anne Bullen by whom he had Q. Elizabeth These are Presidents of Fact not of Law For 10. Alceat asserts that hodie Jure Pontificio permittitur solum separatio ex certis causis nec interim licet aliam ducere etiamsi separationi uxor causam dederit yet withall he says in the same place Aliter tamen aliqui ex Antiquis Patribus olim observare inter quos Ambrosius qui ex justa causa Marito jus divertendi atque aliam ducendi c. Non enim hos homo separat sed Deus quando ita Optimis Antistitibus propter malos Foeminae mores videtur Alceat de verb. sig l. 101. inter stuprum Sect. Divortium In which place the same Author further adds It is no wonder that the Emperor Justinian himself was somewhat sparing in this point when the Pontifical Canon passim tempestate sua observatus fuisset ut forte credendum sit Licere Pontifici eos Canones tollere jus Romanum observari si velit Grotius says Cum ea alteri Nupta est Matrimonium haud dubie irritum lege quidem Naturali nisi vir prior eam dimiserit Grot. de jur bel lib. 2. cap. 5. § 11. And in the Matrimonial Councils it is express That Mulier à primo Matrimonio per sententiam separata cum eo cum quo secundo nupsit cum Authoritate Ecclesiae manere debet Concil Matrim Concil Baldi 3. nu
was a common Pimp and notorious which he would justifie After Verdict for the Plaintiff Littleton the King's Sollicitor moved in Arrest of Judgment that these words are not Actionable for it is a meer Spiritual Slander as Whore or Heretick and punishable in the Spiritual Court and not at the Common Law and he said that divers times Suits have been in the Spiritual Court for such words and Prohibitions prayed and never granted vid. 27. H. 8. 14. But to say that he keeps a Bawdy house is presentable in the Leet and punishable at the Common Law Ward è Contra because it is spoken of one of an honourable profession viz. a Souldier and trenches on his reputation to be taxed with such a base Offence and he said that such offences have been divers times punished in London by corporal punishment but it was answered that was by Custom and there the calling one Where is Actionable Jones Justice held that the Action lay not and all the Justices agreed that the exposition and averment that Pimp is known to be a Name for a common Bawd is good Croke and Berkley agreed that the words are very slanderous and more than if he had call'd him Adulterer or Whoremonger c. aud may be indicted and punished for it corporally as tending to the breach of the Peace and rule was given that Judgement should be entred c. But was afterwards stayed 17. Suit being in the Ecclesiastical Court for calling a mans Wife Welch Jade and Welch Rogue Sentence being there in the Arches the Defendant appealed to the Court of Audience and in the Appeal mentioned the former words and in the libel was interlined and a Welch Thief and hereupon a Prohibition was prayed and granted unless cause were shewn by such a day to the contrary For it was held clearly that for the word Welch Thief Action lies at the Common Law and they ought not to sue in the Spiritual Court And for the other words it was conceived upon the first Motion they ought not to sue in the Spiritual Court for they be words only of Heat and no Slander But it was afterwards moved and shewn that the said words A Welch Thief were not in the first Libel nor in the Appeal at the time of the Appeal but were interlined by a false Hand without the privity of the Plaintiff in the Ecclesiastical Court and that upon Examination in that Court it was found to be falsly inserted and ordered to be expunged And that the words Welch Jade were shewn in the Libel to be expounded and so known to be a Welch Whore which being a Spiritual Cause and examinable there it was therefore prayed that no Prohibition should be granted and if it were granted that a Consultation should be awarded And of this Opinion was all the Court that the words and a Welch Thief being unduly interlined and by Authority of the Ecclesiastical Court expunged and in that Court Jade is known and so expounded for a Whore our Law gives Credence to them therein and especially being after two Sentences in the Spiritual Court This Court will not meddle therewith Wherefore Consultation was granted if any Prohibition was issued forth quia improvide And Rule given that if a Prohibition was not passed that none should be granted 18. It was moved for a Prohibition by Harris Serjeant to the Court of Audience because that the Plaintiff was sued there for saying to one Thou art a common Whore and a base Quean and Harris said that a Prohibition had been granted in this Court for saying to one that she was a pimperly Quean And it was the Case of Man against Hucksler And Finch said though the words are not Actionable in our Law yet they are punishable in the Spiritual Court For the word Quean in their Law implies as much as Whore But Hobart said that this word Quean is not a word of any certain Sense and is to all intents and purposes an Individuum Vagum and so incertain 19. In an Action upon the Case that whereas he is Parson of D. and a Preacher the Defendant Slandered him in haec verba Parrett is a lewd Adulterer and hath had two Children by the Wife of I. S. I will cause him to be deprived for it By the Court the Action doth not lie For the Slander is to be punished in the Ecclesiastical Court And so awarded Quod Quer. nil cap. per. bill 20. D. had sued T. in the Ecclesiastical Court for this viz. That whereas she was of good fame and kept a Victualling House in good Order that the said T. had published that D. kept an house of Bawdry T. now brought a Prohibition and by the Court well for D. might have an Action for that at the Common Law especially where she kept a Victualling house as her Trade Note 27. H. 8. 14. And by the Justices that the keeping of a Brothel-house is enquirable at the Leet and so a temporal Offence And so was the opinion of the Court Tr. 7. Car. B. R. Mrs. Holland's Case 21. W. sued L in the Ecclesiastical Court for a Defamation and had Sentence L. appeals and depending the Appeal comes a Pardon which relates to the Offence and pardons it then L. deferrs his Appeal and for that W. had costs taxed him And now L. prayed a Prohibition because he deferr'd his Appeal because of the Pardon which had taken away the Offence And by the Court in that Case after the pardon the inferiour Court cannot tax Costs but it was urged that the superiour Courts might tax Costs upon the desertion of the Appeal which is an Offence after the Pardon But it was answered on the other side that it was in vain to prosecute the Appeal when the Offence it self is pardoned The words were Thou art a Pander to Sr. Hen. Vaughan And there was much debate if they were actionable at Common Law yet it was agreed that a Suit may be brought for them in the Spiritual Court as for calling one Whore Bawd or Drunkard But otherwise by Jones if he had said That he was Drunk for then a Prohibition lies And it was ruled in 6. Jac. B. R. in the Case of Cradock against Thomas a Prohibition was granted in a Suit for calling one Whoreson And in Weeks Case a Prohibition in a Suit for calling one Knave 22. E. and M. being reputed Church-wardens but they never took any Oath as the Office requires present a Feme Covert upon a common report for Adultery c. And the Husband and Wife libel against them in the Ecclesiastical Court for that Defamation And when Sentence was ready to be given for them the Church-wardens appeal to the Arches where the presentment was proved but by one Witness they sentenced the Baron and Feme But now Ward Serjeant moved for a Prohibition but it was denied by the Court for they were Plaintiffs first And also it is a Cause which this
of Sacriledge doth distinguish between Excommunication latam and ferendam for if it be Sacriledge committed against an Ecclesiastical Person then according to the Canon Law and as heretofore practised in this Realm the penalty was Excommunicatio lata but when it is in respect of some things pertaining to the Church in that case the Punishment was Excommunicatio ferenda Lindw de immun Eccl. c. 1. glo in ver omnibus poenis And sometimes a pecuniary punishment was inflicted for Sacriledge 17. q. 4. c. quisquis c. si quis contumax The Ecclesiastical Law doth not punish Sacriledge with that austerity and severity as the Civil Law doth l. Sacrilegio ff ad Leg. Jul. peculat whereby the punishment sometimes is Damnatio ad bestias sometimes the Sacrilegious person is burnt alive sometimes hung on Fonk sometimes condemned to the Mines sometimes banished and sometimes sentenced to death in the ordinary way of Execution He that is guilty of Sacriledge against an Ecclesiastical person is by the Canon Law excommunicatus ipso facto 17. q. 4. c. si quis suadente But if it be in rebus Ecclesiae he is by that Law Excommunicandus de Foro compet c. conquestus If it be committed in the Church and that by firing or breaking it open in that Case the Sacrilegious person is ipso jure excommunicated de sent Excom c. conquesti If it be without burning or breaking it open as when a thing being left in the Church is taken away in that Case he ought to be excommunicated De furtib c. fin And this says Lindwood may stand as a rule in Law that wherever you find that regularly the Sacrilegious person is not ipso jure excommunicated majori Excommunicatione it hath these several Fallentias that is it doth not hold in case of Burning violating spoiling and wasting of the Church nor in burning or breaking open the Church door nor in Sacriledge against an Ecclesiastical person nor in case of striking or violently apprehending any man in the Church nor in any forcible or violent taking away any thing out of the Church nor in any that were excommunicated before for the like Offence nor in such as pull down or demolish the Body of the Church or any part thereof and the like Lindw de immu Eccl. c. ut invadentib glo in ver Excomunicati All which is likewiseexpresly set down in John de Athon's Gloss on Cardinal Othobon's Constitutions de abstrahentib Confug ad Eccles c. ad tutelam glo in ver Obsevari and seems to have an adequate affinity with what Solomon who as in other things so specially in matters of the Temple had the best experience says It is a suare to the man who devoureth that which is Holy Pro. 20. 25. 7. The dreadful Curse denounced against Sacrilegious persons appears in that remarkable passage in Parliament above Four hundred years since where the Priviledges of the Clergy and Franchises of the Church were with the Liberties of the People granted confirmed and settled by the King in full Parliament Anno 1253. in such a solemn manner as no History can parallel The King stood up with his Hand upon his Breast all the Lords Spiritual and Temporal stood with burning Tapers in their Hands the Archbishop pronounceth as followeth viz. By the Authority of God Omnipotent of the Son and of the Holy Ghost c. We Excommunicate Anathematize and sequester from our Holy Mother the Church all those who henceforth knowingly and maliciously deprive and spoil Churches of their right and all those that shall by any art or wit rashly violate diminish or alter secretly or openly in Deed Word or Counsel those Ecclesiastical Liberties c. Granted by our Lord the King to the Archbishops Bishops Prelates c. For everlasting memory whereof we have hereunto put our Seal After which all throwing down their Tapers extinguish'd and smoaking they all said So let all that shall go against this Curse be extinct and stink in Hell And Ethelwolphus the second sole Monarch among the Saxon on Kings having by advice of his Nobles granted for ever to God and the Church both the Tithe of all Goods and the tenth part of all the Lands of England free from all secular Service Taxes or Impositions whatsover concludes the said Grant or Charter of Donation in these words viz. Qui augere voluerit nostram Donationem augeat Omnipotens Deus dies ejus prosperos si quis vero mutare vel minuere praesumpserit noscat se ad Tribunal Christi rationem redditurum 8. Dr. Heylyn in his Ecclesia Restaurata relates a remarkable passage touching a sad Judgment that in the time of Queen Mary befell Buckly Bishop of Bangor An. 1541. for the Sacrilegious havock he made of the Lands and Patrimony of that Church who not content to alienate the Lands and weaken the Estate thereof resolved to rob it also of its Bells for fear perhaps of having any knell rung out at the Churches Funeral and not content to sell the Bells which were five in number he would needs satisfie himself with seeing them conveyed on Shipboard and had scarce given himself that satisfaction but was immediately struck blind and so continued from that time to the day of his death CHAP. XXXIX Of Simony 1. The Definition and description of Simony the penalties thereof 2. The difference between Simoniacus and Simoniace Promotus the latitude of that word Simony 3. How the anuual value of the Benefice is computable upon the Forfeiture by reason of Simony 4. Whether a Clerk Simoniacally presented but not privy to the Simony be disabled for that turn to be presented by the King to the same Church 5. The diversifications of Simoniacal Contracts or the various ways of committing Simony 6. An Obligation to present one upon condition of resignation may not be Simony 7. To promise one a Sum of Money to bestow his endeavour to procure one to be presented to a Benefice is a Simoniacal Contract 8. Several ways of contracting obliging and agreeing which will amount to Simony 9. A Clerk may oblige to his Patron to pay a Sum yearly and yet no Simony 10. The Plea of Simony is a good Barr to the Parsons demand of Tithes 11. Whether the Fathers free Covenant with his Son in Law upon the Marriage of his Daughter to present him to such a Living when it falls be Simony 12. Whether a SimoniacalVsurper shall prejudice the rightful Patron by giving the King the presentation 13. Whether an Incumbent that is in by Simony may after a General Pardon be removed 14. The grand Case of Calvert and Kitching at the Common Law touching Simony 15. To convey a corrupt gift by an innocent hand will not excuse it from being Simony 16. The Kings Case against the Archbishop of Canterbury Sir John Hall and Richard Clark touching Simony 17. The Proof of Simony in a Parson is good to harr him of Tithes 18. A Patrons Presentation upon
the Presentees Obligation to make a Resignation within Three months after the Patron so please may amount to Simony within the Statute of 21 Eliz. cap. 16. 19. A corrupt Contract for an Advowson may make the subsequent incumbent Simoniacal 20. To plead a Simoniacal Contract against a Bond it not so appearing is no admissable Plea 21. Masters of Chancery why so called and what they were anciently 22. Prihibition to the High Commissioners that would have put a Parson to his Oath touching Simony 23. In what Cases by reason of Simony the Patron may present after Six months and the Church said to be full as to one not to another 24. The injunction of King Ed. 6. against Simony 25. The form of the Oath of Simony 26. A Simoniacal Contract a good plea in Barr of Tithes 27. A further description in Law of the difference between Simoniacus and Simoniace Promotus 28. The Simoniace Promotus though ignorant of the Simony yet is deprivable in the Ecclesiastical Court 29. A Simoniacal Contract to which neither the Incumbent nor the Patron are privy may yet be Simony within the Statute of 31 Eliz. 30. Simony in it's utmost latitude is properly cognizable in the Ecclesiastical Court 31. Simony worse than Felony A Bond or Obligation good though entred into upon a Simoniacal Contract 32. Whether a Parson outsed for Simony may be after admitted to the same Benefice by the Kings presentation 33. A Person Simoniace promotus and ousted is by the express words of the Statute disabled to accept the same Benefice 34. Where Simony is pleaded in Barr of Tithes the Ecclesiastical Court shall take cognizance and no Prohibition lies 35. Whether the Father may buy the next avoidance and present his Son no Simony to buy an Advowson 36. To procure a Man in consideration of Marriage to be presented to a Benefice is Simony 37. Four observations on the Statute of 31 Eliz. cap. 6. by the Lord Coke 38. The extent of the words Present or Collate in the said Statute also the diversity in Law between a Presentation made by a Rightful Patron and an Usurper 39. What punishment by the Canon Law in case of Simony and the strange conceit of Rebuffus touching the same 40. The reasons why it hath its denomination from Simon Magus how many ways it may be committed according to the Canon Law 1. SIMONY from Simon Magus as Thomas Aquinas and others conceive Tho. Aquin. 20. 2. ae q. 100. art 1. 40. is according to Panormitan's definition thereof studiosa voluntas emendi vel vendendi aliquid Spirituale vel Spirituali annexum opere subsecuto Panor c. Nemo extra c. Or it may be described thus viz. Simony is when any person is presented or collated to any Benefice with Cure of Souls Dignity Prebend or Living Ecclesiastical c. or hath any such given or bestowed on him for or in respect of any Sum of Money reward payment gift profit or benefit directly or indirectly or for or by reason of any promise agreement grant bond covenant or other assurance for any Sum of Money reward payment gift profit or benefit whatsoever directly or indirectly or for or in respect of any such corrupt cause or consideration and every Presentation Collation and gift as also every Admission Investure and Induction thereupon is by the Statute utterly void and whereby the King his Heirs and Successors for that one turn only shall present collate c. And every person so giving or taking any such Sum of Money c. or taking or making any such promise c. doth forfeit and lose the double value of one years profit of every such Benefice Moreover the person so corruptly taking any such Benefice is thereupon and from thenceforth adjudged a person disabled in Law to hold and enjoy the same Benefice The like penalty of the said double value doth he incurr who for any Sum of Money reward c. directly or indirectly other than the Lawful Fees or for or by reason of any promise c. doth admit institute install induct any person to or in any Benefice with Cure c. Likewise if any Incumbent of any such Benefice shall corruptly resign or exchange the same or for or in respect thereof shall corruptly take directly or indirectly any pension sum of money or benefit whatever in such case both the giver and taker corruptly as aforesaid shall forfeit double the value of the sum so given taken or had whereof the one Moiety to the King c. the other to him that shall sue for the same in any Court of Record In which Statute of 31 Eliz. there is a Proviso that the censures Ecclesiastical shall not be restrained by any of the premises therein contained 2. They that Simoniacally buy Ecclesiastical Livings are compared to Simon Magus and they that sell them to Gehazi the Servant of Elisha if a person be possest of an Ecclesiastical Living by such Simony as whereunto he was not privy be is said to be in only Simoniace but if he be in any corrupt and Simoniacal Contract to which himself is a party and was privy and consenting thereunto in that case he is Simonaicus both which are inhibited by the Canons Ecclesiastical or Provincial Constitutions as also are the said corrupt and Simonaical selling as well as buying Ecclesiastical Livings Lindw e. Nulli liceat Ecclesiam c. Quia plerunq and that under penalties greater than the Temporal Laws did then or now will allow of And although by Simony in the vulgar acceptation of the word is commonly understood such corrupt Contract for Ecclesiastical Livings as aforesaid yet it hath a more extensive signification and that is a more proper sense which is by corrupt Ordinations of Ministers or for undue Licences to Preach for prevention whereof it is provided in the Statute aforesaid that if any person shall receive or take any Money Fee Reward or any other profit directly or indirectly or any Promise Agreement Covenant Bond or other assurance thereof Lawful Fees excepted for or to procure the Ordaining or Making of any Minister c. Or giving any Order and License to Preach shall forfeit Forty shillings and the Minister so made Ten pound beside the loss of any Benefice Living or other Ecclesiastical promotion after Induction that any such Minister shall within Seven years next after such corrupt entring into the Ministry accept and take the one half of which Forfeitures do go to the King c. the other to the Informer c. And the Patron in that case may present c. as if the party so inducted were naturally dead 3. The forfeiture of the double value of one years profit of the Church by way of penalty as is beforementioned is not to be computed only according to the valuation in the Kings Books in the First-fruit Office but according to the just and full annual value of the
The Plaintiff declared that the Rectory of St. Peters infra Turrim London was void and that the Defendant in consideration that the Plaintiff would bestow his labour and endeavour to cause or procure him to be Rector of the said Rectory promised to give him Twenty pounds and that after the said Plaintiff procured him to be Rector by the Kings Commission and notwithstanding that he had requir'd him to pay the said Twenty pounds c. and thereupon he brought his Action upon the Case in the Court of the Tower of London and upon Non Assumpsit it was found for the Plaintiff and Judgement was there given upon which the Defendant brought Error and una voce all agreed that the Judgement was erroneous for the consideration was Simoniacal and against Law and not a good consideration therefore the Assumpsit was not good the Judgement was revers'd the Atturney said that that Court was a Court-baron as appears by a Record in the time of King Henry the Sixth 8. If A. be obliged to present B. c. and he presents by Simony yet the obligation is forfeited Or if one contract with the Patrons Wife to be presented for Money and is accordingly presented by her Husband it is Simony within the Stat. of 31 Eliz and makes the presentation void For the contract of the Wife is the contract of the Husband Likewise if the Patron present one to the Advowson having taken an Obligation of the Presentee that he shall resign when the Obligee will after Three months warning this is Simony within the Stat. of 21 Eliz. cap. 16. per Curiam Also if one promises to a Man that hath a Mannor with an Advowson appendant that if he will present him c. after the then Incumbents death he will give him such a certain Sum of Money and the other agree thereto and that by agreement between them the next avoidance shall be granted to B c. who after the then Incumbents death presents accordingly this is Simony because there was a corrupt Contract for the Advowson For although the next avoidance may be bought and sold bona fide without Simony yet if it be granted to one to perform a corrupt Contract for the same it is otherwise But if the Father purchase the next avoidance and after the Incumbents death presents his Son this is not Simony Yet by Hob. Chief Justice it was held that if in the grant of the next avoidance it appears that it was to the intent to present his Son or his Kinsman and it was done accordingly it is Simony Likewise if a Mans Friend promises the Grantee of the next avoidance a certain Sum of Money and so much certain per Annum if he will present B. to the Church Quando c. and B. not knowing any thing of the Contract be presented accordingly this is Simony For if a Stranger contract with the Patron Simonaically it makes the presentation void 9. A Patron took an Obligation of the Clerk whom he presented that he should pay Ten pounds yearly to the Son of the last Incumbent so long as he should be a Student in Cambridge unpreferr'd this is not Simony otherwise if it had been to have paid it to the Patrons Son per Cur. An Obligation was made by a Presentee to a Patron to pay Five pounds per An. to the late Incumbents Wife and Children the Parson kept and enjoyed the Parsonage notwithstanding great opposition to the contrary 10. A Parson preferr'd his Bill for Tithes the Parishioner pleaded that he was presented by corruption c. and by Simony and a Prohibition was granted notwithstanding the Parson pleaded pardon of the Simony by the King and it seem'd that it was now triable by the Common Law The Church may be full or void in effect when there is a Simoniacal Incumbent yet to say the Church was full for Six Months is no plea when he was in by Simony For a Quare Impedit may be had by the rightful Patron after the Six Months against the Incumbent of an usurper that is in by Simony And the death of a Simoniacal Incumbent doth not hinder but that the King may present for the Church was never full as to the King and that turn is presented to the King by force of the Statute 11. In the Stat. of 31 Eliiz there is no word of Simony for by that means then the Common Law would have been Judge what should have been Simony and what not by which Law the Simoniack is perpetually disabled And a Covenant to present such a one made under any consideration whatever be it of Marriage or the like may be Simoniacal But if a Father in Law upon the Marriage of his Daughter do only voluntarily and without any consideration Covenant with his Son in Law that when such a Church which is in his Gift falls void he will present him to it It hath been held that this is no Simony within the said Statute 12. A Simoniacal Usurper presenting shall not prejudice the rightful Patron by giving the King the presentation The proof of Simony will avoid an Action of Tithes commenced by a Simoniack Parson who dying in possession of the Church the King loses not his presentation because the Church was not full of an Incumbent but remains void though the Simony or Penalty thereof were pardoned y Lastly all corrupt resignations and exchanges of Ecclesiastical Livings are punishable with the forfeiture of double the Sum given and received both in Giver and Taker by the said Statute but it seems this works no avoidance or disability in the publick person 13. The Patron of an Advowson before the Statute of 31. Eliz. for Simony doth sell proximam Advocationem for a sum of money to one Smith and he sells this to Smith the Incumbent After which comes the general Pardon of the Queen wherby the punishment of Smith the Incumbent is pardoned and of Smith the Patron also If the Incumbent may be removed was the Question Williams said that the Doctors of the Civil Law informed him That the Law Spiritual was that for Simony the Patron lost his Presentation and the Ordinary shall present and if he present not within six montehs then the Metropolitan and then the King Spurling Serjeant This punishment cannot discharge the Forfeiture although it dischargeth the punishment Glanvil contra and said that this point was in question when the Lord Keeper was Atturney and then both of them consulted thereupon and they made this diversity viz. Between a thing void and voidable and for Simony the Church is not void until Sentence Declaratory and therefore they held that by the Pardon before the Sentence all is pardoned as where a man committs Felony and before Conviction the King pardons him by this Pardon the Lord shall lose his Escheat for the Lord can have no Escheat
before there be an Attainder but that is prevented before by the Pardon And so here this Pardon prevents the Sentence Declaratory and so no title can accrue to the Ordinary Walmsley contra if Patron be charged by the Sentence he may plead the Pardon But if a Quare Impedit be brought by a third Person the Pardon of the King shall be no Barr to him for the title appears not to him but only the punishment Anderson they may proceed to Sentence Declaratory notwithstanding the Pardon for the Pardon is of the punishment but the Sentence extends not to that but only to declare that the Church is void Glanvile in 16. Eliz. a man was deprived of his Benefice for Incontinency and after he was pardoned and restored Walmsley I doubt much whether the King can pardon Simony And Williams said that the Proctors of the Civil Law said that neither the Pope nor the King could pardon Simony quoad culpam but onely quoad poenam they may And the Court at last said that if the parties would not demurr they would hear the Doctors on this matter 14. In Calverts Case against Kitchin and Parkinson in the Exchequer where K. not knowing of any Simoniacal agreement was Presented Instituted and Inducted to the Church of D. and this after the Statute of 31. Eliz. cap. 6. And this Presentation belonging to the Queen by reason of this Presentation for Simony by force of the said Statute the Queen presented one B. and before that B. was Admitted and Inducted the Queen died whereupon the King presented C. without any recital or mention of the Presentation made by the Queen and without any revocation actually made of the said first Presentation and thereupon C. is Admitted and Instituted and for Tithes as Parson he brought Trespass In this Case one of the points in Question was if within the said Statute here be Simony in the Patron and not in the Parson if this ought to prejudice the Parson or not In this point Hitchcock conceived that although the Presentee in this Case was not party to this corrupt agreement yet he shall be prejudiced by it although not so prejudiced thereby but that he may be capable to be presented again to the same Benefice but hac vice the presentation of him is void for as Littleton saith the Presentee ought to accept the Parsonage subject to such charges as the Patron pleaseth who in the time of vacation hath power to charge it and so by his Act had made it subject to the Forfeiture and therefore the person who cometh under him shall be prejudiced c. Damport to the contrary The Patron and a stranger corruptly agree to present K. whereupon he is presented If this shall be void against K. is the question To this he said that at the Common Law if one be Simoniacally presented yet this is not void until the Presentee be deprived and if before the said Statute such a corrupt Presentation had been made the Incumbent and Ordinary being free then no Presentation should ensue and he vouched the saying of Lindwood to be accordingly but if money be given by the friends of the Presentee and after the King had notice thereof and Assent then it is not punishable but pardonable at the discretion of the King and now by him the Statute provides no punishment for the Parson when the Patron onely consents to the Simony for he observed that after the said stat of 31. Eliz. had appointed a punishment for the Patron then in the last part of this Branch the words are The persons so corruptly taking c. shall be incapable of the Benefice aforesaid and so it seemeth that the intent of the Statute is not to punish any party but he that is to the Simony and this is also explained to be so by other clauses in the Statute for another clause inflicts punishment upon the Ordinary if there be any corruption in him and another clause inflicts punishment upon him who is party to a corrupt Resignation and so in all the clauses those only who are partakers of the crime shall be punished c. And in this Case was no agreement assented unto by the Parson and this diversity also seems to be good that if A. hath the Presentation and B. the Nomination to a Benefice and the Presentor upon a corrupt agreement makes a presentation unknown to the Nominator here the Nominator shall not be prejudiced within this Statute c. In this Case Bromley Baron declared his opinion that the intent of the Statute was to eradicate all manner of Simonies and therefore the words are not if any man give money to be presented but they are If any present for money and the jurors here found 20 l. to be given and nothing for what it was given or to whom it was given for if money be the meed a Presentation is void and therefore if I. S. be patron of the Church of D. which is void and a stranger saith to me procure the Presentation for A. and you shall have 100 l. and he procured A. to be Presented here if the Patron had notice of the money given to me this Presentation is void but otherwise not And in this Case without notice of the Parson the Admission and all that ensued thereupon is void by reason of the Simony in the Patron and it is void as to the Parson also and if in this Case we are not within the words of the Statute yet we are within the intent clearly c. And Panormitan saith That Simonia est studiosa voluntas emendi vel vendendi aliquid spirituale vel spirituali annexum cum opere subsequente Altham Baron was of the same opinion and said that the words of the Statute are That if a Presentation be made for money it shall be void and that the King may present that turn and therefore the want of privity in the Incumbent is nothing to the purpose as to the avoiding of the Benefice but his want of privity availeth to excuse him of being Simoniacus yet he is Simoniace Promotus and therefore the Presentation is void and the King shall have it by the express words of the Statute and therefore as it seems if in this Statute there had been an express saving of the Interest of the Incumbent by reason of his innocency yet such a saving of Interest had been void and repugnant in respect that it was expresly given to the King before as it is in Nichols Case in Plowden upon the Stat. of 1. H. 7. c. And to prove that by the Simony in the Patron that the Parson shall be prejudiced he vouched 42. E. 3. fo 2. Snig Baron concurr'd in opinion with the former and said that as to the point of Simony by the Civil Law it was punishable by Deprivation and the guilt of the Patron should prejudice the Parson as to matter of commodity in the Parsonage and at the Common Law
if the Parson will plead such Presentation he should be prejudiced and here by the Incumbency the words of the Statute will not be satisfied c. Also it seemeth that if I. S. hath an Adowson and A. purchase the next avoidance to the intent to present B. and the Church becomes void and A. presents B. this is Simony by averment as by good pleading the Presentation of B. shall be adjudged void c. Tanfield accordingly as this Case is here is Simony by the Civil Law and the party had his Benefice by Simony although he be not cognusant thereof Secondly admit here was not Simony by the intendment of the Civil Law yet the Statute hath made an avoidance of the Benefice in this Case although it be not Simony for the Statute speakes not one word of Simony throughout the Act and yet by express words it doth avoid such Presentations as this is and as to the Civil Law such Benefice is to be made void by Sentence Declaratory but it is not void ipso facto as it seems in the Case where a common person was consenting to the Simony but the text of the Civil Law says expresly that the Church ought not to be filled Corruptive or by corruption and the Civil Law expresseth such a person as in this Case by Simoniace promotus and calls him who is Particeps Criminis Simoniacus and he who is Simoniacus is by the Civil Law deprived not only of the Benefice ipso facto but also is deprived to be a Minister and adjudged guilty in culpa poena Petrus Benefieldus saith that if a Friend give money to a Patron to make a promise to him c. and the Incumbent pays it such an Incumbent is Simoniacus by the Civil Law and so if the Incumbent pay the money not knowing it till after the induction yet he is Simoniacus and by him if a Friend give money and the Parson is thereupon presented though the Parson knew not of the money given yet he shall be deprived of the Benefice and this difference was certified by Anderson and Gawdy to the Council-Table upon a Reference made to them by the King touching the filling of Benefices by corrupt means And the Statute of purpose forbears to use the word Simony for avoiding of nice construction in the Civil Law as to that word and therefore the makers of the Act set down plainly the words of the Statute that if any shall be promoted for money c. So that by these words it is not material from whom the money comes and then in such Cases for the avoiding of all such grand Offences a liberal Construction ought to be made as hath been used in such cases c. for which and many other reasons mentioned in this Report he commanded Judgment to be entred for the Plaintiff 15. Sr. George Cary being seised of an Advowson granted the next Avoidance to his second Son and died and after the Son corruptly agreed with I. S. to procure the said I. S. to be presented to this Benefice and the second Brother knowing thereof it was agreed that for the perfecting of the agreement the second Brother should surrender his Grant and Interest to the elder Brother which elder Brother not knowing of the said corrupt agreement presented the said I. S. who was Instituted c. all shall be void for he is here presented by reason of this corrupt agreement between the Patron who then was and the Parson and the elder Brother was only used to convey a bad gift by a good hand and all had reference to the corrupt agreement with the Assent of the Patron who then was 16. The King brought a Quare Impedit against the Archbishop of Canterbury Sr. John Hall and Richard Clark for the Church of M. and declares that Richard White was seised of the Mannor to which the Advowson belonged And the 6. Jac. by Indenture he covenanted to stand seised to the use of himself and his Wife for their lives and to the heirs of Richard White And after White presents one Boynton and dyes and his Wife marries with Sr. John Hall who the first of June 6. Jac. by deed grants proximam Adocationem to two to this intent that he might receive of such a Parson that he presented all money as should be agreed between Grantor and Grantee And that this was done Bointon lying in extremis And then the 26. Jan. 16. Jac. there was a corrupt agreement between Sr. John Hall and one of the Grantees that for 200 l. to be paid by the Clerk Blundell that the other Grantee should present him And the first of February Blundel pays Sr. John Hall the money and the second day he was Presented Instituted and Inducted accordingly And that upon this it appertained to the King to present The Bishop pleads but as Ordinary Sr. John Hall makes a title and traverses the corrupt agreement The Incumbent pleads by Protestation that there was not any corrupt agreement as it was alledged and not answers whether the money were paid or not but that he is Parson Imparsonee of the Presentment of But 16. Jac. after such an agreement scil 17. Febr. he was presented by the Letters Patents of the King to his Church and never answers to the Simony and it was held by the Court to be naught and only pleaded to hinder the Execution before the Justices of Assize if the trial went against the Patron And further in that Case between Hall and Blundell it was said by Davenport that this Parson being presented by simony is disabled to this Church for ever and cannot be presented to this Church again as it was adjudged in the Lord Windsors Case But it was said by Richardson if he had said absque hoc That he was in ex Presentatione of c. it had been good enough which was granted Henden two exceptions had been taken 1. That the Incumbent doth not shew what Estate or Interest the King had to present him which doth not need if the King brought a Quare Impedit then it is a good answer to say that he is in of his Presenting But if it be brought by a stranger then he ought to shew the title in his Presentment And he alledged the Statute of 25. E. 3. which enables the Incumbent to plead by Writ of the Law 41. Eliz. There was a Quare Impedit brought for the Church of Danell a presentation by the King was pleaded without making a title and it was admitted good And in many Cases it is more safe not to make a title 2. Because that he pleaded a Presentation by the King he is disabled As to that he said that before he be convicted of Simony he may be presented But by Crook in Sathers Case that if he be presented before conviction yet it is a void Presentation And it was so agreed by the Court and they resolved the plea was nought because he
answers nothing to the Simony for the Protestation is not any answer wherefore Judgment was given for the Plaintiff 17 F. Libels in the Ecclesiastical Court for Tithes and a Prohibition was prayed upon a Suggestion that he came to the Church by Simony By the Court a Prohibition ought to be granted upon a surmise only that he came to the Church by Simony Then Honden shewed that it was found by verdict in the Kings Bench that he came in by Simony And upon that verdict there was a Decree in the Court of Wards accordingly And then the Court inclined to grant a Prohibition And the Case here was that F. being convicted of Simony the King presents Clapthorn who was Admitted Instituted and Inducted And afterwards he takes another Benefice above the value of 8 l. by which the other was void Yet by the Assent of the Lord Windsor Patron F. continued possession And by Richardson he cannot be any way removed until Lapse incurr 18. It was said by the Court in Sr. John Paschall's Case against Clark upon evidence that if the Patron present one to the Advowson having taken an Obligation of the Presentee that he shall resign when the Obligee will after three Months warning that that is Simony within the Statute of 21. Eliz. cap. 16. 19. A. Scised of a Mannor with an Advowson Appendant S. comes to A. and promises that if he would present him c. after the death of the now Incumbent he would give him Seventy pounds to which he agreed And upon that it was agreed between them that the next avoidance shall be granted to B c. the Incumbent dies B. presents S. who continues lacumbent from 27 Eliz. until the 7 th of King James Than A. grants the Mannor cam pertinent to Winchcombe in Fee S. the Incumbent dies 7 Jac. And the King presents Pulleston by the Title of Simony and Winchcombe brought a Quare Impedit and adjudged that it doth not lie In which Case two points were resolved 1. That that is Simony First because there was a corrupt Contract for the Advowson Note that in the Stat. of 31 Eliz. there is not word of Simony for by that means then the Common Law would have been Judge what should have been Simony and what not Secondly although that the prochein Avoidance might be bought and sold bona fide without Simony yet it was so granted to B. to perform the corrupt Contract 2 Jac. was vouch'd that it the Father purchas'd the prochein Avoidance and presents his Son after the death of the Incumbent that is not Simony and that it was accordingly judged in 42 and 43 Eliz. It was Smith and Shelborns Case But by Hubbard that if in the grant of the Prochein Avoidance it appears that it was to the intent to present his Son or his Kinsman and it was done accordingly that is Simony In the 7th Jac. In the Exchequer Calvert against Parkinson The Cosin of C. being Clerk comes to the Grantee of the prochein Avodance and promises him Twenty pounds and Twenty pounds per an if he will present C. to the Church quando c. C. not knowing any thing of the Contract is presented accordingly This is Simony Fortiori in this Case where S. himself who was to be presented was party to the first motion of the Contract for presentation 2. It was resolved that the death of the Simoniacal Incumbent doth not hinder but that the King may well present for the Church was never full as to the King and that Turn is preserved to the King by force of the Statute yet it seems the Church is so full that a Stranger may not present for usurpation for it is not like 7 Rep. 28. where the King is to present by lapse And there are many Cases wherein the Church may be full or void in effect when there is a Simoniacal Incumbent Hubbard said that if A. be obliged to present B c. and he presents by Simony yet the Obligation is forfeited c. The rightful Patron may have a Quare Impedit after the Six months against the Incumbent of an usurper that is in by Simony And by the Court to say the Church was full for Six months is no plea when he is in by Simony Warburton and Hutton cited Doctor Hutchinsons Case 10 Eliz. A Parson preferrs his Bill for Tithes the Parishioner pleads that he was presented by corruption c. and by Simony and a prohibition was granted notwithstanding that the Parson pleaded pardon of the Simony by the King and it seem'd that it was now triable by the Common Law Note 7 H. 7. 37. and Mich. 40. and 41 Eliz. Gregory against Ouldham In debt upon an Obligation to perform certain Covenants which in truth were Simoniacal Contracts and the Plaintiff recovered for it was said that that obligation is collateral and the Law does not at all look upon or take notice of the Simony eo nomine for it is not once named in the Statute but only corrupt giving c. 20. In debt upon an obligation it was said that it was made upon a Simoniacal contract for presentation to the Church with the cure of Souls and so it was for Simony All that was averr'd the Court held to be matter debors and not appear'd within the Deed and for that the Plaintiff had Judgement For no such averment is given by the Statute Note the Statute doth not make the Bond Promise or Covenant void but the Presentation And so adjudged Pasch 40. Eliz. Rot. 1745. C. B. Case of Gregory against Oldbury Co. Inst par 3. cap. 71. 21. If an innocent Incumbent be in by a Simoniacal Contract to which he was no way privy he is not Simoniacus though Simoniace promotus and as he is not Simoniacus so neither Perjurus for Simony seldom goes without some kind of Perjury An Action was brought upon 5 Eliz. for Perjury before one of the Masters of Chancery who had power to take an Oath Adjudged Quod nihil cap. per breve And the reason was because he does not shew that the Oath was in Court. By Whitlock they were called Masters of Chancery because they were Priests and Clergy-men in ancient time and that was the reason that the Lord Chancellor had the disposal of the petty Offices of the King for the preferment of these Clerks that was also the reason that they could not Marry until they were enabled by the Stat. c. 22. Parson L. was convented before the High Commissioners and they would put him to his Oath touching Simony supposing it to be committed by him And a Prohibition was granted that none shall be compelled to accuse himself upon his Oath where he is to incurr a temporal punishment at the Common Law or a temporal loss as in that case of his Church So for Vsury Note Dyer 175. in the Margin And Cook Chief Justice vouch'd 10 Eliz. Smiths Case an Atturney of
have no Title to present or collate and that so it was adjudged in case where the usurpation was to a Church of the King Sed quando Praesentatio Jus Poetronatus sunt Temporalia Quaeritur quomodo sit Simonia per donum pecuniae pro illis Respondendum est Quod Jus Patronatus Praesentatio dicuntur Spiritualia vespectu rei ad quam praesentatur quae Spiritualis est Vide Lindwood cap. de Jurejurando fo 80. He says further that there is a diversity between a presentation or collation made by a rightful Patron and an usurpur For in Case of a rightful Patron which doth corruptly present or collate by the express Letter of the Statute the King shall present But where one doth usurp and corruptly present or collate there the King shall not present but the rightful Patron For the Branch that gives the King power to present is onely intended where the rightful Patron is in fault But where the rightful Patron is in no fault there the corrupt act and wrong of the usurper maketh the Benefice c. void but taketh not away the Lawful Title to present from the rightful Patron And so it was adjudged Mich. 13. Jac. in Quare Impedit between the King the Bishop of Norwich Tho. Cole and Rob. Secker for the Vicarage of Haverel in Suffolk 39. The Canon Law looks upon Simony as a kind of Heresie imò Simoniacos veluti primos praecipuos Haereticos Rebuff de Simon in Resign nu 12. and excommunicates all Simoniacks to that degree as not to be absolved but by the Pope himself nor by him till at the point of death extra cum sit detestabile de Simonia And are ipso jure deprived of that Benefice wherein the Simony was Committed extr ibid. And this holds true as well where the Simony is only Coventional or by Compact as where it is real per pecuniam numeratam albeit there are some D D. who will not agree that a meer Conventional Simony should incurr a Deprivation although they contest it not as to the real Simony viz. cum aliquid datur Cassad in Decis 5. de Const But in the Council of Constans touching this Matter there is nothing said de datione as to Deprivation but only to as Excommunication whether therefore it be a Conventional or a Real Simony a Presentation or Collation in consequence of either is ipso jure void and null according to that Law Rebuff ubi sup nu 10. It is worth an Asterisk to observe what an excellent exposition Rebuffus the Canonist to this purpose makes on Matth. 21. 12. possibly more like a Lawyer than a Divine he says that by the sellers of Doves is there meant such as endeavour to make sale of the Sacred Imposition of hands And by the Money-Changer are intended such as sell Ecclesiastical Benefices And pleasing himself in this conceit breaks out into a Peice of Eloquence viz. Nusquam reperitur quod sciam Dominum tanta severitate tam districta censura Justitiae peccatores corripuisse non solum eloquio increpans verum etiam facto flagello de funiculis verberans omnes eliminavit de Templo and thence most infallibly inferrs that our Lord and Saviour Jesus Christ the Redeemer of Mankind did cast out of the Temple all Simoniacal persons and such as sell and make Merchandize of Ecclesiastical Benefices Rebuff de Elect. derog lit d. in verb. Nonnullae 40 This most detestable Evil of Simony may possibly though rarely be found in Ordinations yet is most frequently negotiated in Presentations Roman Elections and Postulations Collations Resignations and Permutations of Ecclesiastical Benefices It is supposed that it hath it's denomination from Simon Magus for these three Reasons 1. Because he was the first that in the New Testament we meet with that was ever infected with that Crime 2. Because he was the superlative Offender in this kind above all others that were anciently guilty thereof for as Augustine saith he would buy the Holy Ghost on purpose to sell the Holy Ghost But those that went before him sold only some created Spiritual thing as Balaam would have sold his Prophesie and Gehazi Servant to Elisha that health which he obtained from a Divine Power for Naaman the Syrian 3. Because Simon seemed obstinately to persist in supposing this thing to be Lawful and so therein he thence became an Heretick and as such is generally condemned by the Fathers The Definition which Panormitan makes of Simony seems defective according to Lessius and other modern Authors Panormita defines it as aforesaid to be studiosam voluntatatem emendi vel vendendi aliquid Spirituale vel Spirituali annexum opere subsecuto But to make the definition adequate to the thing there should be added to it pretio temporali for it is supposed that if one Spiritual thing be given for another in that Case it is not properly Simony because the Turpitude of this Evil consists in this that Spiritual things which in their own Nature are inestimable are here estimated at a Carnal Humane or Temporal price which value or price the Law makes threefold viz. Pretium muneris as Money or ought else that may be sold for Money Pretium linguae as undue and undeserved Praise or immoderate Flattery Pretium obsequii as some service done or to be done for the Patron in matters Temporal or as when a Chaplain serves a Bishop domestically without any Stipend or Salary or remitts it on purpose that a Benefice may be bestowed on him which by the express Letter of the Canon Law is no other than Simony c. sunt nonnulli 1. q. 1. So likewise as to the Pretium linguae that Law is express against it That Rogans pro indigno ut Beneficium obtineat Simoniam committit dict c. sunt nonnulli c. tuam de aetat qualit As to that Mental Simony which Navarr cap. 23. nu 102. And Cajetan also verb. Simonia and others would have to be one Member of the Distinction thereof it seems to be wholly rescinded by the two last words of the Definition opere subsecuto It is also the more received Opinion among the DD. that to resign a Benefice into the hands of the Ordinary in favour of a Third Person with this Clause non aliter nec alias is Simony the Reason they give is quia omnis pactio in spiritualibus Simoniam continet cap. fin de Pactis cap. ex parte 1. de Offic. Deleg To conclude the Canon Law in this point of Simony is of a farr wider extent than the practice with us is capable of comprehension remembring therefore we are in an Abridgement we may abuse the Reader in perplexing him with Exotick Questions in reference to this Subject As whether every Sale or Exchange of Spirituals for Temporals be Simony Whether an Exchange of Spirituals for Spirituals be Simony Whether there be any Simony Jure Humano and by what Contracts it
Catholick Faith or any of the Articles thereof grounded on the word of God 5. By a Proviso in the Act of 1 Eliz. c. 1. no matter or cause shall be adjudged Heresie but such only as hath been so adjudged by the Authority of the Canonical Scriptures and by the first four General Councils or by any other General Council wherein the same was declared Heresie by the express and plain words of the Canonical Scripture or such as shall hereafter be determined to be Heresie by Parliament with the assent of the Clergy in their Convocation as appears by the said Statute the occasion of the making whereof was as suppos'd by reason of an Indictment against certain persons called Lollards upon the Statute of 2 H. 4. c. 15. Whose Opinions were 1. That it was not meritorious to go in Pilgrimage to St. Thomas nor to St. Mary of Walsingham Nor 2 To adore the Image of a Crucifix or of Saints Nor 3 To confess sins to a Priest but to God onley c. 6. Sir Ed. Coke in the third part of his Institutes cap. 5. doth assert that both by the Books at Common Law and by History it doth appear that an Heretick may be convicted before the Archbishop and other Bishops and other the Clergy at a General Synod or Convocation Bract. Lib. 3. fo 123 124. in Concil Oxon. Newburgh l. 2. c. 13. 6 H. 3. Stow. Hol. 203. 2 H. 4. Rot. Parl. nu 29. Sautries Case F. N. B. 269. 2. 1 El. c. 1. And the Bishop of every Diocess may convict any for Heresie and so might have done before the Statute of 2 H. 4. c. 15. For the Diocesan hath Jurisdiction of Heresie and so it was practised in all Q. Elizabeths Reign and accordingly it was resolved by all the Justices in the the Case of Legate the Heretick And that upon a conviction before the Ordinary of Heresie the Writ de Haeretico comburendo did lye Without the aid of the Act of 2 H. 4. c. 15. it seems the Diocesan could Imprison no person accused of Heresie but was to proceed against him by the censures of the Church And now says the Lord Coke in the forecited place In as much as not only the said Act of 2 H. 4. but also that of the 25 H. 8. c. 14. are repealed the Diocesan cannot Imprison any person accused of Heresie but must proceed against him as he might have done before these Statutes by the censures of the Church as it appears by the said Act of 2 H. 4. c. 15. according to Sir Ed. Coke in that place aforesaid where he also saith that no person at this day can be indicted or impeached of Heresie before any Temporal Judge or other that hath Temporal Jurisdiction But every Archbishop of this Realm may cite any person dwelling in any Bishops Diocess within his Province for causes of Hersie if the Bishop or other immediate Ordinary thereunto consent or if that the same Bishop or other immediate Ordinary or Judge do not his duty in punishing the same 7. Again Sir Ed. Coke in the forementioned place affirms that it appears by Bracton Britton Fleta Stanford and all the Books of the Common Law that he who is duly convicted of Heresie shall be burnt to death Mir. c. 4. de Majesty Bract. ubi sup Britt c. 9. Fleta l. 1. c. 35. Reg. F. N. B. 269. But the Ecclesiastical Judge cannot as he says at this day commit the person that is convict of Heresie to the Sheriff albeit he be present to be burnt but must have the Kings Writ De Haeretieo Comburendo according to the Common Law F. N. B. 269. Rot. Par. 2 H. 4. nu 29. Sautries Case Bre. de haeret Combur per Reg. Concil in Parliam The reason Sir Ed. Coke gives wherefore Heresie is so extremely and fearfully punish'd is for that Gravius est aeternam quam Temporalem Laedere Majestatem And Haeresis est lepra animae The party duly convicted of Heresie may recall and abjure his Opinion and thereby save his life but a relapse is fatal And if the Heretick will not says he after conviction abjure he may by force of the said Writ be burnt without abjuration 2 H. 4 Rot. Parl. N. 24. A Writ was issued by the advice of the Lords Temporal in Parliament to the Sheriffs of London and subscribed per ipsum regem concilium in Parliamento by which the Sheriffs were commanded to burn William Sautre who had been before condemned for a relapsed Heretick by the Archbishop of Canterbury Apostolicae sedis Legatum and other Suffragans and all the Clergy of that Province in Concilio suo Provinciali Congregat juris ordine Note 1 Eliz. cap. 1. Proviso that such as have Jurisdiction by Letters Patents shall not have power to Judge Heresie but in such Cases as have been before adjudged c. or such as shall hereafter be ordered judged and determined to be Heresie by the High Court of Parliament of this Realm with the assent of the Clergy in their Convocation as aforesaid Before a man shall be adjudged an Heretick he ought to be convicted by the Provincial Synod for the Common Law doth not take notice what is heresie If an Heretick convict shall after abjuration relapse into the same or any other Heresie and thereof be convict again the Writ De Hoeretico Comburendo may be directed to the Sheriff after the party is delivered by the Clergy unto the secular power And by the Statute of 2 H. 4. c. 15. Every Bishop in his own Diocess might as aforesaid convict a man of Heresie and upon another conviction after abjuration might by the Sheriff proceed unto comburation But that Statute is repealed by the Statute of 25 H. 8. c. 14. vid. co lib. 12. in a Case of Heresie Note 2 Ma. tit Heresie Brook per omnes Justiciarios Baker Hare The Archbishop in his Province in the Convocation may and doth use to convict Heresie by the Common Law and then to put them convicted into Lay-hands and then by the Writ De Haeretico Comburendo they were burnt but because it was troublesome to call a Convocation It was ordained by the Statute 2 H. 4. cap. 15. That every Bishop in his Diocess might convict Hereticks And if the Sheriff was present he might deliver such to be burnt without the Writ aforesaid but if the Sheriff were absent or he were to be burnt in another County then the said Writ ought to be had who are Hereticks vid. 11. H. 7. Book of Entries fo 319. vid. Doctor and Stu. lib. 2. cap. 29. Cosin 48. 2. 1 2. P. M cap. 6. Also 3 F. N. B. fo 269. And the Writ in the Register proves this directly 4 Bracton l. 3. cap. 9. fo 123 124. And it is also true that every Ordinary may convent any Heretick or Schismatick before him pro salute animae and may degrade him
Holy Scriptures is meant as is generally held the Kinsmen of the Lord according to the Flesh Antrinitarians were those Hereticks who denied the Blessed Trinity 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 these were a Branch from the Root of Eutyches They supposed that the Flesh of Christ was void of all kind of Humane Infirmity The Emperor Justinian was said to be tainted with this Heresie in his old age by bearing so much with the Emperess Theodora to the great Advance of Eutyches his Error Apelles a Disciple of Marcion yet could not agree with his Master in all things for he agreed that Christ had a true Body but not made of the Substance of the Virgin Mary but of the four Elements and that after his Resurrection he dissolved into the four Elements and then return'd to Heaven from whence he came Epiphan Apollinaris Bishop of Laodicea in Syria so Ruffin l. 2. c. 20. yet it is said of him that missing of a Bishoprick he fell into these Heresies viz. That Christ had not Humane Flesh from the Virgin but from Heaven That he had a Humane body but not a Soul Confounding the Persons in the Trinity That Christ had no Humane Will That Souls begat Soules That after the Resurrection all the Ceremonies of the Law should take place among the Godly Apostolici these Hereticks condemned Marriage and held the Apostles to be all unmarried They made all things to be common They used Apochryphal Bookes for Gospel They refused to receive those into the Church who had lapsed after Baptism They would not have Possessions but rejoyced in voluntary Poverty and gave Sentence against themselves that they were unclean because they were procreated by Marriage Aquarii these were certain Hereticks who instead of Wine received Water in the Holy Sacrament This was in the days of Cyprian Arius a Lybian and a Priest or Presbyter of Alexandria he said that Christ was neither God nor Eternal but an excellent Creature created before all Creatures That he assumed only a Body but not the Soul of a man That the Holy Ghost was a Creature of a Creature viz. of the Son He Rebaptized and perverted the order of Baptism He used the Trisagion thus Gloria Patri per Filium in Spiritu Sancto He denied the Son of God to be begotten of the Substance of the Father but that he was a Creature and made of things not existent and that there was a time wherein the Son was not He was condemned in the Nicene Council and banish'd by the Emperour Constatine Armenii so called of the Province where their Heresies raged by the means of Euchanius called Mantacunes They denied that Christ assumed his Humanity from the Virgin Mary They celebrated the Passover after the Custome of the Jews They held a Quaternity and that the Divinty suffered Artemon Bishop of Bostra in Arabia denied the Divinity of Christ and affirmed that he was not existent before he took Flesh from the Virgin This was in the third Century Artotyritae they were of the Sect of the Pepusians and added Cheese to the Bread in the Sacrament Assitae these were Hereticks who carried about with them new vessels to represent that they were vessels filled with the new Wine of the Gospel Badesianistae these were but a Branch of the Heresie of the Valentinians and Gnosticks who denied the Resurrection these Hereticks were in the third Century Basilides an Egyptian of Alexandria he held fond Opinions concerning the Creation and number of Heavens that not Christ but Simon of Cyrene was Crucified That it was lawful to deny Christ in time of persecution and to have Idols that no Sins but such as are unwittingly committed should be pardoned That Faith was natural That Prophesies came not from God but Angels And that there was no Resurrection Beryllus Bishop of Bostra he was orthodox at the first but afterwards held that the Soul died with the Body and both rose again together That Christ was not before his Nativity Origen reclaimed him These Heresies were condemned in the Arabian Council An. 249. Caini so called of the special worship they attributed to Cain The reverenced Esau Core the Sodomites yea and Judas himself as Authors of mans Salvation They denied the Resurrection of the Body rejected the Law and worshipped evil Angels Tertullian and Epiphanius say that these Hereticks arose from the Nicholaitans but Ireneus says they sprung out of the Valentinians Carpocrates of Alexandria in Egypt he held that Christ was meer man and born of Joseph and Mary he held also the transmigration of Souls also that the Devil created the World and denied the Resurrection These damnable Heresies did spread in Egypt Asia and Rome under the name of Gnosticks he lived incontinently with Marcellina one of his own Sect his Son Epiphanes succeeded him in this diabolical Heresie and after him Prodicus the Author of the Adamites The followers of Carpecrates had in secret places Images of Gold and Silver which they called the Images of Jesus and therewithall the Images of Pythagoras Plato and Aristotle all which they worshipped So that the worshipping of Images and the adoration of the Image of Jesus seems to be a Custome borrowed rather from the old Hereticks than from the ancient Fathers of the first Three hundred years Epiph. contra Haeres Cathari they professed themselves purer than others and held Rebaptizing those who sinned after Baptism condemned second Marriage and refused to receive those who had lapsed in time of persecution The founder of these Cathari was Novatus ordained Priest of Rome by Cornelius upon his repulse in a Bishoprick Cerdon of Syria from whence he went to Rome and in the time of Higinus broached these blasphemous heresies viz. That there were two Gods one good who was the Father of Christ and another severe and bad and this Created the World This Cerdon as also Marcion were the Authors of the Opinion of two Gods or two Beginnings he denied the Resurrection of the Body and invented a new Baptism after a man hath been Baptized a second and third time he held that Christ was neither born of the Virgin Mary or suffered really with many other Blasphemies against him he rejected the Law and often seigned to recant but in the end was Excommunicated having lived in Rome Eight and thirty years Cerinthus a circumcised Jew contemporary with Ebion he affirmed that the World was not Created by God but by an inferiour power That Christ was born after the manner of men of Joseph and Mary denying her Virginity he divided Jesus from Christ saying that Christ descended upon Jesus at his Baptism in the form of a Dove That Jesus not Christ suffered and rose again That there was a necessity of Circumcision and that Life Eternal should be at Hierusalem where all Earthly pleasures should endure One thousand years The report is that St. John finding him in a Bath departed thence saying that it
Men which belong to the Blessed Hill They abstained from things that have life and some of them from Marriage One Dosithens a Samaritan is supposed to be the first Founder of the Samaritam Heresies and the first among them that rejected the Prophets as not having spoken by the Holy Ghost There were four sects of Samaritan Hereticks according to Epiphanius each of them holding their different Heresies in some respects and having in other respects certain Heretical Tenents common to them all By all which premisses it is most evident that the Prince of Darkness and the Father of Lyes hath had in all Ages Nations and Churches his Emissaries to infect them with Heretical and Blasphemous Erros but the Gates or Power of Hell to this day never could nor to Eternity ever shall prevail against the Truth CHAP. XLI Of Councils Synods and Convocations 1. The several kinds of Councils and Synods 2. What Canons in force in the Realm of Primo Ed. 6. Also how the Canons entituled Reformatio Legum Ecclesiasticarum became abortive 3. That part of the Canon Law is part of the Law of England 4. Convocation in England what how and by what Authority and for what ends conven'd also of what Members it doth consist with the Authority thereof 5. Convocations and Provincial Synods of very great Antiquity in England have been ever call'd by the Kings Writ their Priviledges 6. The Canons and Ecclesiastical Constitutions may not be repugnant either to the Kings Prerogative or to the Laws Statutes or Customes of this Realm 7. Lindwood's Method of Provincial Synods in this Realm and under what Archbishops 8. The four several kinds of Councils and Synods in general 9. A compendious Catalogue thereof when and where held by and under whom conven'd with the principal matters therein treated and determined 1. OF Councils or Synods there are four kinds viz. 1 Oecumenical as being called out divers Nations 2 National as out of divers Provinces both these kinds of Councils or Synods were ever assembled by Imperial Regal or Papal Authority 3 Provincial as out of divers Dioceses conven'd by Metropolitans or Patriarchs 4 Diocesan as out of one Diocese onely assembled by the Bishop thereof The frequent celebration of Synods the Council of Basil calls praecipuam agri Domini culturam Touching Synods vid. Duar. de Sacr. Eccl. minist et benefic 2. In the Reign of King Hen. 8. the Bishops and Clergy in the Convocation an 1532. oblig'd themselves neither to make nor execute any Canons or Constitutions Ecclesiastical but as they were thereto enabled by the Kings Authority it was by them desired by him assented unto and confirm'd in Parliament that all such Canons and Constitutions Synodal and Provincial as were before in use and neither repugnant to the word of God the Kings prerogative Royal or the known Laws of the Land should remain in force until a Review thereof were made by 30 persons of the Kings appointment which Review not having been made from that time to the first year of King Edward 6. All the said old Canons and Constitutions so restrained and qualified did then still remain in force as before they were For this consult the Act of Parliament of 25 H. 8. c. 1. And in the Third year of the said King Edward 6. there passed an Act in Parliament For enabling the King to nominate Eight Bishops and as many Temporal Lords and Sixteen Members of the Lower House of Parliament for Reviewing of such Canons and Constitutions as remained in force by virtue of the Statute made in the 25th year of King H. 8. and fitting them for the use of the Church in all times succeeding According to which Act the King directed a Commission to Archbishop Cranmer and the rest of the Persons whom he thought fit to nominate to that employment and afterwards appointed a Sub-Committee of Eight persons to prepare the Work and make it ready for the rest that it might be dispatch'd with the more expedition which said Eight persons were the Archbishop of Canterbury Dr. Goodrick Bishop of Ely Dr. Cox the Kings Almoner Peter Martyr Dr. in Divinity William May and Rowland Taylor Drs. of Laws John Lucas and Richard Goodrick Esquires by whom the Work was undertaken and digested fashioned according to the method of the Roman Decretals and called by the name of Reformatio Legum Ecclesiasticarum c But not being Commissionated hereunto till the Eleventh of November in the year 1551. they either wanted time to Communicate to the chief Commissioners by whom it was to be presented to the King or found the King encumber'd with more weighty Affairs than to attend the perusal thereof And so the King dying before he had given life unto it by his Royal Assent and Signiture the design miscarried and never since thought fit to be resumed in the following Times by any of those who have had the Government of the Church or were concerned in the honour and safety thereof 3. It is asserted by good Authority That if the Canon Law be made part of the Law of this Realm then it is as much the Law of the Land and as well and by the same Authority as any other part of the Law of the Land Likewise in the Case of Shute against Higden touching Voidance of a Former Benefice by being Admitted and Instituted into a Second and that by the Ancient Canon Law received in this Kingdom This says the same Authority is the Law of the Kingdom in such cases And in the Case of Hill against Good the same Author doth further assert That a Lawful Canon is the Law of the Kingdom as well as an Act of Parliament And whatever is the Law of the Kingdom is as much the Law as any thing else is so for what is Law doth not suscipere magis minus Which Premisses though they may seem yet are not inconsistent with what Sr. Ed. Coke says viz. That the Laws of England are not derived from any Forein Law either Canon Civil or other but a special Law appropriated to this Kingdom That it may be said of its Law as of its situation Et penitus toto divisos Orbo Britannos 4 Convocation is the highest Ecclesiastical Court or Assembly called and convened in time of Parliament by the Kings Writ directed to the Archbishops consisting of all the Clergy of both Provinces either Personally or Representatively present in the Upper House of the Archbishops and Bishops and the Lower House of the other Clergy or their Proctors chosen and appointed to appear for Cathedral or other Collegiate Churches and for the Common Clergy of every Diocess with a Prolocutor of each House and President of the Convocation for the Province of Canterbury to consult of matters Ecclesiastical and thereon to Treat Agree Consent and Conclude as occasion requires on certain Constitutions and Canons Ecclesiastical to be ratified and confirmed by the Royal Assent They were Anciently called
Church-gemote Int. Leges H. 1. c. 8. The Convocation is under the power and Authority of the King 21 Ed. 4. 45. b. Assembled only by the Kings Writ 13 Ed. 3. Rot. Parl. M. 1. vid. Stat. 25 H. 8. c. 19. The King having directed his Writ therein assigning the time and place to each of the Archbishops to the effect aforesaid the Archbishop of Canterbury doth thereupon direct his Letters to the Bishop of London as his Dean Lindw Provin Sec. 1. de Poenis ver Tanquam in Gloss First Citing himself peremptorily then willing him to Cite in like manner all the Bishops Deans Archdeacons Cathedral and Collegiate Churches and generally all the Clergy of his Province to the Place at the day in the said Writ prefixed withal directing that one Proctor for every Cathedral or Collegiate Church and two for the other Clergy of each Diocess may suffice In pursuance whereof the Bishop of London directs his Letters accordingly willing them to certifie the Archbishop the Names of all such as shall be so Monished by them in a Schedule annexed to their Letters Certificatory whereupon the Cathedral and Collegiate Churches and the other Churches having Elected their Proctors it is certified to the Bishop who makes due Returns thereof which method is likewise observed in the other Province of York It is said That these Proctors anciently had Place and Vote in the Lower House of Parliament a good expedient for the maintenance and preservation of the Liberties of the Church The Prolocutor of the Lower House of Convocation is immediately at the first Assembly by the motion of the Bishops chosen by that Lower House and presented to the Bishops as their Prolocutor by whom they intend to deliver their Resolutions to the higher House and to have their own House specially ordered and governed His Office is to cause the Clerk to call the Names of the Members of that House as oft as he shall see cause likewise to see all things propounded to be read by him to gather the Suffrages or Votes and the like Trin. 8 Jac. It was Resolved by the two Chief Justices and divers other Justices at a Committee before the Lords of Parliament concerning the Authority of a Convocation 1 That a Convocation cannot Assemble without the Assent of the King 2 That after their Assembling they cannot conferr to constitute any Canons without License del Roy. 3 When upon Conference they conclude any Canons yet they cannot execute any of them without the Royal Assent 4 They cannot execute any after Royal Assent but with these Limitations viz. 1 That they be not against the Kings Prerogative 2 Nor against Statute Law 3 Nor against the Common Law 4 Nor against the Customes of the Realm All which appears by 25 H. 8. c. 19. 19. Ed. 3. Title Quare non Admisit 7. 10. H. 7. 17. Merton cap. 9. By 2 H. 6. 13. a Convocation may make Constitutions to bind the Spiritualty because they all in person or by Representation are present but not the Temporalty Q. And 21 Ed. 4. 47. the Convocation is Spiritual and so are all their Constitutions Vid. The Records in Turri 18 H. 8. 8 Ed. 1. 25 Ed. 1. 11 Ed. 2. 15 Ed. 2. Prohibitio Regis ne Clerus in Congregatione sua c. attemptet contra jus seu Coronam c. By which it appears that they can do nothing against the Law of the Land or the Kings Prerogative 5. The word Convocation and the word Synod are rather words of two Languages than things of two significations for although they have different derivations the former from the Latin the other from the Greek yet in effect they both center in the same thing Convocation à Convocando because they are called together by the Kings Writ It is of very great Antiquity according to Sir Edward Coke who mentions out of Mr. Bede and other Authors and ancient Records such as were nigh a thousand years since and more expresly of one great Synod held by Austins Assembling the Britain Bishops in Council An. 686. And affirms That the Clergy was never Assembled or called together at a Convocation but by the Kings Writ And in the year 727. there was a Convocation of the Clergy called Magna Servorum Dei frequentia It was by the assistance and authority of Ethelbert the first Christian King of Kent that Austin called the aforesaid Assembly of the British Bishops and Doctors that had retained the Doctrine of the Gospel to be held in the borders of the Victians and West-Saxons about Southampton as supposed to which resorted as Mr. Bede says Seven Bishops and many other Learned Divines but this Synod or Convocation suddenly brake up without any thing done or resolved This Assembly was conven'd for determining the time for the Celebration of Easter touching which the Controversie continuing no less than 90 years after was at last concluded at another Convocation purposely called at Whitby by the Authority of Oswy King of Northumberland and whereof the Reverend Cedda newly Consecrated Bishop was Prolocutor and King Oswy himself present at the Assembly Likewise about the year 1172. at Cassils in Ireland a Convocation was held by Authority of King H. 2. soon after he had Conquered that Island which Convocation was for the Reformation of the Irish Church where amongst many other Constitutions it was Decreed That all the Church-Lands and all their Possessions should be altogether free from the Exaction of Secular men and that from thenceforth all Divine things should be handled in every part of Ireland in such sort as the Church of England handleth them Likewise about the year 1175. at London a Synod or Convocation was held at which King H. 2. was present where among other Canons and Constitutions it was both by Authority of the King and Synod decreed That every Patron taking a Reward for any Presentation should for ever lose the Patronage thereof Which together with other Canons then made for the better government of the Church of England were Published by Richard Archbishop of Canterbury with the Kings Assent Likewise a Provincial Synod was held at Oxford by Stephen Langton Archbishop of Canterbury under King H. 3. about the year 1222. for Reformation of the Clergy with many others in subordination to the Laws of the Land One special Priviledge of the Convocation appears by 8 H. 6. cap. 1. All the Clergy from henceforth to be called to the Convocation by the Kings Writ and their Servants and Familiars shall for ever hereafter fully use and enjoy such liberty and Immunity in coming tarrying and returning as the Great men and Commonalty of the Realm of England called or to be called to the Kings Parliament have used or ought to have or enjoy 8 H. 6. In Parliamento Statutum est ut Praelati atque Clerici câ—rumque Famulatus cum ad Synodos accesserint iisdem Privilegiis ac
into the Church albeit Divine Service be not then celebrating unless it be to hear the word preached which being ended he is immediately to depart or stand at the Church-door in the time of Divine Service and hearing the same albeit he go not within the Church it self or thrust himself into the company of others when it is in his power to avoid it or lastly when he continues too long secure under such Sentence of Excommunication without repentance whereby the Law concludes him so manacled by his obstinacy as no Spiritual Physick can have any operation upon him And although regularly the Return of such a one is to be expected usque ad annum yet in this Kingdom quoad incovationem Brachii Secularis it is sufficient if Forty daies be expired after his Excommunication Ibid. c. 1. authoritate glos in verb. Contemnentes And whereas we often in the Law meet with certain Cases of Offences incurring the Sentence of Excommunication ipso facto that is as aforesaid nullo hominis ministerio interveniente Requiritur tamen even in that case Sententia Declaratoria C. cum secund Leges de Haeret. li. 6. Lindw de Foro Comp. c. 1. glos in verb. ipso facto 8. It is therefore not impertinent here to insert what principally those Offences are on the Guilty whereof the Law doth inflict this Excommunication ipso facto Lindwood tells us that there are found among the Canons and Constitutions Provincial these Cases following wherein Excommunication ipso facto is incurr'd viz. 1 A wilful and malicious impeding the execution of the Canon against Incontinency specially in Ecclesiasticks as to Concubines 2 A clandestine and surreptitious Proceeding at Law even to the Writ of Banishment against an innocent person and ignorant of the Proceedings 3 Bigamy 4 False Accusing of any Innocent Clergy-man before a Temporal Judge whereby he happens to suffer under the Secular Power 5 A laying Snares to entrap any in holy Orders whereby afterwards to charge them falsly before the Secular Powers with Crimes whereof they were not guilty 6 A violation of lawful Sequestrations made by the Bishops their Vicars general or principal Officials 7 The exercise of Ecclesiastical Jurisdiction by any Clerk married or by any Lay-person in matters only and properly pertaining to the Cognizance of the Church 8 Disobedience to the Gregorian Constitution forbidding the holding of Two Benefices Incompatible cum Cura animarum without a Dispensation 9 A procuring to be Presented to a Benefice that is already full of an Incumbent by virtue of the Writs of Quare non admisit or Quare impedit or the like 10 Abettors and Advisors of any to fraudulent Conveyances or Deeds of Gift in fraudem Ecclesiae Regis Creditorum aut haeredum 11 All such as hinder any of what quality soever that are legally Testable from making their last Wills and Testaments or afterwards do unjustly obstruct the due execution of the same 12 All such as hinder the devotion of the people in making their Offerings and paying their Tithes converting them to their own use 13 All such as deny the gathering of the Tithes of any Fruit or molest and hinder the Collectors thereof 14 All Lay-persons who usurp upon such Oblations and Offerings as are due and appertain only to Ecclesiastical persons without their assent and the assent of the Bishop 15 Sacrilegious persons and all such as invade the just Rights Liberties or Revenues of the Church or otherwise unjustly possess themselves de bonis Ecclesiasticis 16 All Bayliffs and other Officers that unjustly enter upon the Goods of the Church or unduly exact from the same or commit Waste upon any the Revenues of a Church vacant 17 All Oppugners of Episcopal Authority or that resist and oppose the exercise of Ecclesiastical Jurisdiction and all such as disswade others from their due Obedience thereunto 18 All such as being imprisoned for their Contempt to some Ecclesiastical Sentence are thence set at liberty contrary to the Liberties and Customes of the Church of England being Excommunicate persons when they were first apprehended 19 All such as violently usurp upon the propriety of such Trees and Fruits as grow in the Church-yards rooting them up or felling them down or mowing down the Grass thereof contrary to the will and without the consent of the Rector or Vicar of any Church or Chappel or their Tenants 20 All such as should non ritè solemnize Prohibited Marriages that is such as have any Canonical Impediment 21 All such as contrary to the true Catholick sense shall assert any thing or lay down positions or make propositions sauouring of Heresie publickly in the Schools 22 All such as in their Preaching or otherwise shall violate the Canon that enjoyns a due examination and approbation of persons before they are admitted to Preach the Word of God 23 All such as touching the Sacraments assert any thing beside or contrary to the determination of the Church or call such things into doubt publickly as are defined and stated by the Church 24 All such as in the Universities do after a premonition to the contrary hold any Opinions or assert any Doctrines Propositions or Conclusions touching the Catholick Faith or good manners of an ill tendency contrary to the determination of the Church 25 All such Clerks as without Ecclesiastical Authority shall of themselves or by any Lay-power intrude themselves into the possession of any Parochial Church or other Ecclesiastical Living having Curam animarum These Cases and some others now not of use in this Realm are enumerated by Lindwood Lindw de Sententia Excom c. ult gloss in verb. Candelis accensis But there are very many other Cases in the Canon Law that fall under this Excommunication ipso facto by which in the Law is ever understood the Major Excommunicatio and was wont to be published and denounced in the Church Four solemn daies in every year when the Congregation was likeliest to be most full and that in Majorem terrorem 9. The Causes of Excommunication ipso facto according to the Constitutions and Canons Ecclesiastical of the Church of England now in force are such as these viz. 1 Impugners of the Kings Supremacy 2 Affirmers of the Church of England as now established to be not a true and Apostolical Church 3 Impugners of the Publick Worship of God establish'd in the Church 4 Impugners of the Articles of Religion establish'd in the Church of England 5 Impugners of the Rites and Ceremonies established in the Church of England 6 Impugners of the Government of the Church by Archbishops Bishops c. 7 Impugners of the Form of making and Consecrating Archbishops Bishops c. in the Church of England 8 Authors of Schisms in the Church 9 Maintainers of Schismaticks Conventicles and Constitutions made in Conventicles Likewise by the said Canons the Ecclesiastical Censure of Excommunication is incurr'd by all such Ministers as Revolt from the Articles unto which they subscribed at their
being made Ministers and do not reform after a months suspension Also by all such persons as refuse the Sacraments at the hands of Unpreaching Ministers after a months obstinacy being first suspended Also by all such Ministers as without their Ordinaries License under his Hand and Seal appoint or keep any Solemn Fasts either publickly or in private Houses having been formerly suspended for the same fault and finally by all Ministers who hold any private Conventicles to Consult on any thing tending to the impeaching or depraving of the Doctrine of the Church of England or of the Book of Common Prayer or of any part of the Government and Discipline now established in the Church of England which by the Seventy third Canon is Excommunication ipso facto 10. Touching persons thus Excommunicated persisting Forty daies in their obstinacy there are Three several Writs at the Law issuing from the Secular power viz. Excommunicato Capiendo Excommunicato Deliberando Excommunicato Recipiendo The Excommunicato Capiendo is a Writ issuing out of Chancery directed to the Sheriff for the apprehending and imprisoning of him who hath obstinately stood Excommunicated Forty daies for the Contempt to the Ecclesiastical Laws of such not in the interim obtaining their Absolution being by the Ordinary certified or signified into Chancery the said Writ thence issues for the apprehending and imprisoning them without Bail or Mainprize until they Conform Which Writ as by the Statute of 5 Eliz c. 23. is to be awarded out of the high Court of Chancery so it is to issue thence only in Term time and Returnable in the Kings Bench the Term next after the Teste thereof and to contain at least Twenty daies between the Teste and the Return thereof And in case the Offender against whom such Writ shall be awarded shall not therein have a sufficient and lawful Addition according to the form of the Statute of 1 H. 5. Or if in the Significavit it be not contained That the Excommunication doth proceed upon some cause of Contempt or some Original matter of Heresie or refusing to have their Children Baptized or to receive the Holy Communion as it is now used in the Church of England or to come to divine Service now commonly used in the said Church or Error in matters of Religion or Doctrine now received and allowed in the said Church Incontinency Usury Simony Perjury in the Ecclesiastical Court or Idolatry That then all pains and Forfeitures limited against such persons Excommunicate by the said Statute of 5 Eliz. 23. by reason of such Writ of Excom Capiend wanting sufficient Addition or of such Significavit wanting all the Causes aforesaid are void in Law 11. The Excommunicato Deliberando is a Writ to the Under-Sheriff for the releasing and delivery of the Excommunicate person out of Prison upon Certificate from the Ordinary into the Chancery of his Submission Satisfaction or conformity to the Ecclesiastical Jurisdiction And the Excommunicato Recipiendo is a Writ whereby Excommunicated persons who by reason of their Obstinacy having been committed to Prison and thence unduly delivered before they had given sufficient Caution or Security to obey the Authority of the Church are to be sought for and committed again to Prison This Sentence of Excommunication by the 65 th Canon pronounced against any and not absolved within Three months next after is every Sixth month ensuing as well in the Parish Church as in the Cathedral of the Diocess wherein they remain by the Minister openly in time of Divine Service upon some Sunday to be denounced and declared Excommunicate and where by the 68 th Canon Ministers are enjoyned not to Refuse to Bury it is with an exception to such persons Deceased as were denounced Excommunicated Majori Excommunicatione for some grievous and notorious Crime and of whose repentance no man is able to testifie 12. A Sentence was given in the Chancellors Court at Oxford at the Suit of B. against H. and thereupon H. was Excommunicated and taken in London upon the Writ of Excom Capiendo And it came into the Kings Bench where he pleaded That there was no Addition in the Significavit according to the Statute of 5 Eliz. and thereupon prayed to be discharged And the Opinion of the Court was That by the Statute of 5 Eliz. the Penalties mentioned in the said Statute are discharged but not the Imprisonment nor the Excommunication 13. By the Statute of 9 Ed. 2. 12. the Writ de Excom Capiendo may be awarded to take a Clerk Excommunicate for Contumacy after Forty daies And by the Statute of 9 Ed. 2. 7. the Kings Letters may not be sent to an Ordinary to Absolve an Excommunicate but where the Kings Liberty is prejudiced By the Statute of 5 6 Ed. 6. cap. 4. striking or laying of violent hands upon any person in a Church or Church-yard is Excommunication And by the Statute of 2 Ed. 6. 13. it is Excommunication to disobey the Sentence of an Ecclesiastical Judge in Causes of Tithes By the Statute of 3 Jac. 4. the Sheriff may apprehend a Popish Recusant standing Excommunicate and by the Statute of 3 Jac. 5. a Popish Recusant convicted shall stand as a person Excommunicate And by the Statute of 3 Ed. 1. 15. he that is Excommunicated shall be debarred of Mainprize 14. V. against E. in the Ecclesiastical Court where the Suit was for Striking in the Church which by the Second Branch of the Statute of 5 Ed. 6. cap. 4. is Excommunication ipso facto By which he surmized him incidisse in poenam Excommunicationis And being granted if c. And Ashley shewed cause why it should not issue viz. There ought to be a Declaration in the Ecclesiastical Court of the Excommunication before any may prohibit him the Church Richardson said That the Proceedings are not contrary to the Statute but stood with the Statute And it was said by Yelverton It seems there ought to be a Declaration in the Ecclesiastical Court But the difference is where it is Officium Judicis or Ad instantiam paris they will give Costs which ought not to be Hutton and Richardson If the party will not prosecute it none will take notice of it and they proceed to give Costs then a Prohibition may be granted And if he be a Minister he ought to be suspended for an offence against the Statute And it ought to be first declared and so to Excommunication and that cannot be pleaded if it be not under Seal Dyer 275. And after all these were agreed by the Court and no Prohibition was granted 15. B. was sued in the Ecclesiastical Court in a cause of Defamation in another Diocess than that wherein he lived and being Cited was for Non-appearance Excommunicated and upon Significavit the Writ de Excommunicato Capiendo was awarded Serjeant Finch Recorder prayed a Supersedeas for two Reasons 1. Upon the Statute of 23 H. 8. because he was Sued out of the
Diocess to which the Court viz. Jones and Whitlock answered That at the Common Law a Bishop cannot Cite a man out of his Diocess And that the Statute of 23 H. 8. inflicts a punishment c. and Whitlock said That a Bishop hath not power of Jurisdiction out of his Diocess but to Absolve him being Excommunicate 2 Upon the Statute of 5 Eliz. cap. 23. because the Case of Defamation is not within the Statute and then the Statute Enacts That it shall be void To which the Court answered That he ought to averr that by way of Plea and so also said the Clerks of the Court That he ought to have Sued a Habeas Corpus and upon Return thereof to Plead But the Plea was admitted de bene esse and the party bailed 16. No Letters of Excommunication are to be received in stay of Actions if they are not under the Seal of the Ordinary for an Excommunication under the Seal of the Commissary is not to be allowed in such case If the principal cause of the Action for which the Excommunication was be not comprized within the Letter of the Certificate it is not to be allowed that so it may appear to the Court that the Ecclesiastical Court had Jurisdiction of the Cause for which he was Excommunicated The Certificate ought to be Vniversis Ecclesiae Filiis or to the Justices of the Court where the Suit is to be stayed Also the Excommunication certified ought to be duly dated that is the Certificate ought to contain the day of the Excommunication A Certificate by the Archdeacon is sufficient by the Custome And upon an Excommunicato Capiendo if it appears that the Excommunication was by an Archdeacon of some certain place it ought also to appear either expresly or by implication in the Certificate that the matter for which the Excommunication was was within his Jurisdiction otherwise it is not good 17. F. being apprehended upon an Excommunicato Capiendo and the Significavit being That he was Excommunicated for not answering Articles and not shewing what they were his discharge was prayed for the Incertainty thereof and per Curiam it is not good and therefore was Bailed Coke 22 E. 4. is That a man was Excommunicated for certain Causes not good and so Co. 5. Arscots Case Schismaticus inveteratus is not good Excommunication nor shall be allowed in the cause of him who Excommunicates him 5 E. 3. quod fuit concessum per Doderidge 18. In Trollops Case it was Resolved That the Official cannot certifie Excommunication for none shall do that but he to whom the Court may write to assoil the party as the Bishop and Chancellor of C. or O. and for that if a Bishop certifie and die before the Return of the Writ it shall not be received but the Successor shall do it and one Bishop shall not certifie an Excommunication made by a Bishop in another Court but a Bishop after Election before Consecration may and so may the Vicar-General if it appears that the Bishop is in Remotis agendis also that the Suit and the Cause are to be expressed in the Certificate that the Temporal Court may judge of the sufficiency and if it be insufficient as if a Bishop certifie an Excommunication made by himself in his own Cause the Court may write to absolve him 19. H. was condemned in the Chancellors Court of Oxford in Costs and had not paid an Excommunicato Capiendo being awarded upon a Significavit returned and delivered here in Court according to the Statute of 5 Eliz. cap. 23. He was Arrested thereupon Resolved The Excommunication was good though the Significavit doth not mention any of these Causes in the Statute but it is for other Causes but if any Capias with Proclamations and Penalties be therein awarded the Penalties be void unâ—ess the Significavit express it to be for one of the Causes mentioned â—n the Statute 20. In another Case where a man was Excommunicated upon a Sentence in the Delegates for Costs in Castigatione Morum 21 Jac. a Capias with Proclamations issued and he being taken Quoad the Excommunicato Capiendo pleads That the Offence and Contempt was pardoned by the General Pardon of 21 Jac. It was Agreed That the Pardon did not discharge the Costs of the party which were taxed before the Pardon It was moved there That as the Costs were not taken away so no more was the Excommunication which is the means to enforce them to be paid But Resolved That this Excommunication before the Pardon is but for a Contempt to the Court and all Contempts in all Courts are discharged by the Pardon wherefore the same was discharged and for the payment of the Costs the party is to have new Process 21. A man was taken upon an Excommunicato Capiendo and the Significavit did not mention That he was Commorant within the Diocess of the Bishop at the time of the Excommunication and for that cause the party was discharged And in an Action where an Excommunication was pleaded in Bar and the Certificate of the Bishop of Landaph shewed of it but did not mention by what Bishop the party was Excommunicated it was for that reason adjudged void 22. Upon a Contract Sentence in the Ecclesiastical Court was That the Defendant should marry the Plaintiff he did not do it for which cause he was Excommunicated The Defendant appealed to the Delegates by whom the Cause was remitted to the Judge à Quo who Sentenced him again where he was also Excommunicated again for non-performance of the Sentence He appealed to the Court of Audience and then had 〈◊〉 He was taken by a Capias Excom upon the first Excommunication upon a Habeas Corpus it was Resolved That the Absolution for the latter had not purged the First Excommunication quia Ecclesia decepta fuit 2 That the Appeal did not suspend the Excommunication although it might suspend the Sentence 23. In Weston and Ridges Case it was Resolved That upon an Information exhibited in the Ecclesiastical Court for laying of violent hands upon a Clerk and Costs there given against the Defendant for which he was Excommunicated for not paying them a Prohibition should issue forth because it was not at the Suit of the party and Costs are not grantable there upon an Information 24 In the Case of Prohibitions it was Resolved Mich. 8 Jac. That if a man be Excommunicated by the Ordinary where he ought not as after a General Pardon c. And the Defendant being negligent doth not sue a Prohibition but remains Excommunicate by Forty daies and upon Certificate in Chancery is taken by the Kings Writ de Excommunicato Capiendo no Prohibition lies in this Case because he is taken by the Kings Writ Then it was moved what Remedy the party hath who is wrongfully Excommunicated to which it was Answered he hath Three Remedies viz. 1
He may have a Writ out of Chancery to Absolve him 14 H. 4. fol. 14. And with this agrees 7 Ed. 4. 14. 2 When he is Excommunicated against the Law of this Realm so that he cannot have a Writ de Cautione admittenda then he ought Parere mandatis Ecclesiae in forma Juris i. e. Ecclesiastici where in truth it 's Excommunicatio contra Jus formam Juris i. e. Communis Juris But if he shew his Cause to the Bishop and request him to assoil him either because he was Excommunicate after the Offence pardoned or that the Cause did not appear in Ecclesiastical Cognizance and he refuse he may have as the Lord Coke sayes an Action sur le Case against the Ordinary and with this agrees Dr. Stu. lib. 2. cap. 32. fo 119. 3 If the party be Excommunicated for none of the Causes mentioned in the Act of 5 Eliz. cap. 23. then he may plead this in the Kings Bench and so avoid the Penalties in the Act. Note It was Resolved by the Court c. That where one is Cited before the Dean of the Arches in cause of Defamation for calling the Plaintiff Whore out of the Diocess of London against the Statute of 23 H. 8. and the Plaintiff hath Sentence and the Defendant is Excommunicated and so continues Forty daies and upon Certificate into Chancery a Writ of Excommunicato Capiendo is granted and the Defendant taken and Imprisoned thereby That he shall not have a Prohibition upon the Statute of 23 H. 8. for no Writ in the Register extends to it but there is a Writ there called De Cautione admittenda de parendo Mandatis Ecclesiae when the Defendant is taken by the Kings Writ De Excommunicato Capiendo and to assoil and deliver the Defendant 25. Where the Court of B. R. was moved for the Bailing of one who was taken by force of a Capias de Excommunicato Capiendo upon the Statute of 5 Eliz. cap. 23. and came to the Barr by a Habeas Corpus Williams Justice He that is taken by force of a Capis de Excommunicato Capiendo is not Bailable upon the Statute of 5 Eliz. cap. 23. which Statute doth only dispense with the Forfeiture of the Ten pounds and such a person is not Bailable and as to the other matter the same remains as it was before at the Common Law and the Statute of 5 Eliz. dispenseth only with the penalty of Ten pounds Yelverton Justice of a contrary Opinion and that in this case he is Bailable Flemming Chief Justice This is a Case which doth deserve very good consideration and that therefore he would consider well of it and also of the Statute of 5 Eliz. before he would deliver his Opinion Williams Justice clearly he is not Bailable in this Case Afterwards at another time it was moved again unto the Court to have him Bailed Yelverton Justice That he is Bailable and so was it Resolved in one Keyser's Case where he was taken by a Writ De Excommunicato Capiendo brought hither by a Habeas Corpus and upon Cause shewed he was Bailed by the Court de die in diem but neither the Sheriff nor any Justice of Peace in the Countrey can Bail such a one but this Court here may well Bail as in the Case before de die in diem It was further alledged here in this That in the Ecclesiastical Court they would not there discharge such a one being taken and Imprisoned by force of such a Writ De Excommunicato Capiendo without a great Sum of Money there given and a Bond entered into for the same otherwise no discharge there Yelverton Justice and the whole Court The Bishop ought not to 〈◊〉 such a Bond for the performance of their submission The Rule of the Court here in this was That upon their submission they shall be Absolved without any such Bond entred into Flemming Chief Justice They shall Absolve them and if they perform not according to their promise and undertaking they 〈…〉 again by the Writ De Corpore Excommunicato Capiendo but the Bishop is to take no Bond of them for their Absolution to perform their Submission the taking of such Bond by them being against the Law And as to the Bailment all the Judges except Williams Justice did agree that he was Bailable and so by the Order and Rule of the Court he was Bailed vid. Bulstr Rep. par 1. fo 122. Pasch 9 Jac. in Case of Hall vers King CHAP. XLIII Of the Statutes of Articuli Cleri and Circumspecte agatis 1. Several statute-Statute-Laws relating to Ecclesiastical persons and things enacted under the Title of Articuli Cleri in the Ninth year of King Ed. 2. 2. Some other statute-Statute-Laws touching Ecclesiastical matters made the Fourteenth year of King Ed. 3. 3. The Ratification and Confirmation of the 39 Articles of Religion The Subscription required of the Clergy 4. Certain Cases wherein a Prohibition doth not lie to the Ecclesiastical Courts according to the Statute of Circumspecte agatis made the Thirteenth of King Ed. 1. And in what case a Consultation shall be granted 1. THese are certain Statutes made in the time of King Ed. 1. and Ed. 2. touching Persons and Causes Spiritual and Ecclesiastical By the latter of these it is Enacted 1 That upon demand of Tithes Oblations c. under that Name a Prohibition shall not lie unless the demand be of money upon the Sale thereof 2 That upon debate of Tithes amounting to a Fourth part of the whole and arising from the Right of Patronage as also upon demand of a Pecuniary penance a Prohibition may lie Not so in case of demand of money voluntarily accorded unto by way of Redemption of Corporal penance enjoyned 3 That upon demand of money Compounded for in lieu of Corporal penance enjoyned for the Excommunication for laying violent hands on a Clerk a Prohibition shall not lie 4 That notwithstanding any Prohibition the Ecclesiastical Jurisdiction may take cognizance and correct in Cases of Defamation and the money paid for redeeming the Corporal penance thereon enjoyned may receive notwithstanding a Prohibition be shewed 5 That no Prohibition shall lie where Tithe is demanded of a Mill newly erected 6 That in cases of a Mixt cognizance as in the Case aforesaid of laying violent hands on a Clerk whereby the Kings Peace is broken and such like the Temporal Court may discuss the same matter notwithstanding Judgment given by the Spiritual Court in the case 7 That the Kings Letters may not issue to Ordinaries for the discharge of persons Excommunicate save only in such Cases as wherein the Kings Liberty is prejudiced by such Excommunication 8 That Clerks in the Kings Service if they offend shall be correct by their Ordinaries but Clerks during such time as they are in his Service shall not be oblig'd to Residence at their Benefices 9 That Distresses shall not be taken in the Ancient
Fees wherewith Churches have been endowed otherwise in possessions of the Church newly purchased by Ecclesiastical persons 10 That such as Abjure the Realm shall be in peace so long as they be in the Church or in the Kings High-way 11 That Religious Houses shall not by compulsion be charged with Pensions resort or Purveyors 12 That a Clerk Excommunicate may be taken by the Kings Writ out of the Parish where he dwells 13 That the examination of the Ability of a Parson presented unto a Benefice of the the Church shall belong unto a Spiritual Judge 14 That the Elections to the Dignities of the Church shall be free without fear of any Temporal power 15 That a Clerk flying into the Church for Felony shall not be compelled to abjure the Realm 16 And lastly That the Priviledge of the Church being demanded in due form by the Ordinary shall not be denied unto the Appealor as to a Clerk confessing Felony before a Temporal Judge 2. In conformity to the premisses there were other Statutes after made in the time of King Ed. 3. whereby it was Enacted 1 That the goods of Spiritual persons should not without their own consents be taken by Purveyors for the King 2 That the King shall not collate or present to any vacant Church Prebend Chappel or other Benefice in anothers Right but within Three years next after the Avoidance 3 That the Temporalties of Archbishops Bishops c. shall not be seized into the Kings hands without a just cause and according to Law 4 That no waste shall be committed on the Temporalties of Bishops during Vacancies and that the Dean and Chapter may if they please take them to Farm 5 And lastly That the Lord Chancellor or Lord Treasurer may during such vacancies demise the Temporalties of Bishopricks to the Dean and Chapter for the Kings use 3. And as there are Articuli Cleri so there are also Articuli Religionis being in all thirty nine Agreed upon at a Convocation of the Church of England Ann. 1562. Ratified by Q. Elizabeth under the Great Seal of England Confirmed and Established by an Act of Parliament with his Majesties Royal Declaration prefixed thereunto Which Act of Parliament requires a Subscription by the Clergy to the said thirty nine Articles the same also being required by the Canons made by the Clergy of England at a Convocation held in London Ann. 1603. and ratified by King James The said Subscription referrs to three Articles 1. That the Kings Majestie under God is the only Supream Governour of the Realm and of all other his Highness Dominions and Countreys c. 2. That the Book of Common Prayer and of Ordaining of Bishops Preists and Deacons containeth nothing in it contrary to the Word of God c. 3. That he alloweth of the said thirty nine Articles of Religion and acknowledgeth them to be agreeable to the Word of God By the Statute of 13. Eliz. 12. the Delinquent is disabled and deprived ipso facto but the Delinquent against the Canon of King James is to be prosecuted and proceeded against by the Censures of the Church And it is not sufficient that one subscribe to the Thirty Nine Articles of Religion with this Addition so far forth as the same are agreeable to the Word of God For it hath been resolved by Wray Cheif Justice and by all the Judges of England That such subscription is not according to the Statute of 13. Eliz. because the Subscription which the Statute requires must be absolute But this is no other then Conditional 4. The Circumspecte agatis is the Title of a Statute made in the 13 th year of Ed. 1. Ann. D. 1285. prescribing certain Cases to the Judges wherein the Kings Prohibition doth not lie As in Case the Church-yard be left unclosed or the Church it self uncovered the Ordinary may take Cognizance thereof and by that Statute no Prohibition lies in the Case Nor in case a Parson demands his Oblations or the due and accustomed Tythes of his Parishioners nor if one Parson sue another for Tythes great or small so as the fourth part of the Benefice be not demanded nor in case a Parson demand Mortuaries in places where they have been used and accustomed to be paid nor if the Prelate of a Church or a Patron demand of a Parson a Pension due to him nor in the Case of laying violent hands on a Clerk nor in Cases of Defamation where Money is not demanded nor in Case of Perjury In all which Cases the Ecclesiastical Judge hath Cognizance by the said Statute notwithstanding the Kings Prohibition So that the end of that Statute is to acquaint us with certain Cases wherein a Prohibition doth not lie And the Statute of 24 Ed. 1. shews in what Case a Consultation is to be granted And by the Statute of 50. Ed. 3. cap. 4. no Prohibition shall be allowed after a Consultation duely granted provided that the matter of the Libel be not enlarged or otherwise changed CHAP. XLIV Of several Writs at the Common Law pertinent to this Subject 1. What the Writ of Darrein Presentment imports in what case it lies and how it differs from a Quare Impedit 2. Assise de utrum what and why so called 3. Quare Impedit what for and against whom it lies 4. What a Ne admittas imports the use and end thereof 5. In what case the Writ Vi Laica removenda lies 6. What the Writ Indicavit imports and the use thereof 7. What the Writ Advocatione Decimarum signifies 8. Admittendo Clerico what and in what Case issuable 9. The Writ Beneficio primo Ecclesiastico habendo what 10. That Writ Cautione Admittenda and the effect thereof 11. The writ of Clerico infra Sacros ordines constituto non eligendo in Officium What the use or end thereof 12. The Writ Clerico capto per Statutum Mercatorum what 13. What the Writ of Clerico convicto commisso Goalae in defectu Ordinarii deliberando was 14. What the Writ of Annua Pensione was anciently 15. The Writ of Vicario deliberando occasione cujusdam Recognitionis what 16. Three Writs relating to Persons excommunicated 17. Assise of Darrein Presentment brought after a Quare Impedit in the same cause abates 18. Difference of Pleas by an Incumbent in respect of his being in by the Presentment of a stranger and in respect of his being in by the Presentment of the Plaintiff himself 19. Notwithstanding a recovery upon a Quare Impedit the Incumbent continues Incumbent de facto until Presentation by the Recoverer 20. Of what thing a Q. Imp. lies and who shall have it 21. Who may have a Quare Impedit and of what things 22. How and for whom the Writ of Right of Advowson lies 23. What the Writ de jure patronatus and how the Law proceeds thereon 24. The Writ of Spoliation what and where it lies 25. The Writ
a. Owen 3 5 Roll. 2. 368. b. 27 E. 3. 84. b. Co. 7. 28. Dr. Stud. lib. 2. cap 31. Pars Counsel par 1. cap. 2. f Dr. Stu. ubi supr g Co. 6 19. b. Cro. El. 119. Dyer 328. a. h 18 Eliz. Dyer 346. Trin. 41 El. B. R. Baker and Brent's Case Cro. par 3. acc 679. i 13 E. 4. 3. Bâ—ook Plenarty 15 43 E. 3. 11. 11 H. 4. 80. k Mich. 10 Jac. rot 2642. Câ—lt and Glover vers the Bishop of Coventry and Lichfield Hob. Rep. p 6 E. 1. Rot. Pat. membr 25. q Co. 6. Cates by 62. r dict 6 E. i. s 5 E. 1. 75. Adjudg Q. Eleanoâ—s case Contra Co. 6. Câ—â—sby 62. b. t 14 H. 7. â—â— Curia 18 H. 7. Kell 50. b. Quaerâ— u D. 15 16. El. 227. 7. per Curiam x 1 H. 7. 9. b. D. 15 16 El. 327. 7. Dr. Stu. 16. 5 E. 4. 3. b. y 38 E. 3. 2. z 18 H. 7. Kell 50. b. Contr. per Frowick a 18 H. 7. Kell 49. b. b Ibid. c Trin. 33 Eliz. B. R. Palmer and the Bishop of Peterburghs Case Cro. par 1. Mich. 27 28 Eliz. C. B. Bâ—verly and Cornwall's Case e Hill 6 Jac. B. R. Cro. par 2. a St 25 Ed. 3. 6. b 14 H. 7. 22. by Kingsmill c 1 Car. B. R. Dickenson and Greenâ—â—â— Case Popâ— 1â—8 d 27 E. 3. 64. e 25 Ed. 3. 6. 1 Ed. 4. f Reg. of Writs fo 31. b. g Pasch 33 Eliz. C. B. The Queen and the Bishop of York ' s Case Leon. Rep. h Mich. 10 Jac. rot 2642. Colt and Glov vers Bish of Cov. and Lichf Hob. Rep. i Hill 17 Jac. rot 1840. Case Gawdy vers Archb. of Canâ— al. Hob. Rep. k Mich. 15 Jac. Brickhead vers Archb. of Yâ—â—k Hob. Rep. l The Form whereof vid. Reg Orig. fo 3â— 2. a. m Terms of Law verb. Presentment n Mich. 31 32 Eliz. C. B. Cripps the Archb. of Canterbury's Case Owen 47. o 11 Jac. C. B. The King and the Bishop of Linc. Case Also Mich. 8 Jac. C. B. Case betwixt the King and the Bishop of Chichester then vouched and affirmed for Law p Stephen Gardener's Case there vouched by Cook Chief Justice Vid. Mich. 3 Car. B. R. Stephens and Potter 's Case Cro. 1. par 70 71. acc Vid Trin. 8 Jac. C. B. rot 18 11. Cro. 2. par 247. the same Case q Tr. 8 Jac. B. R. Starkey and Pole's Case Bulstr 1. par 26 27. Hughes Abr. ver Advowson Sect. 6. §. 13. r Dr. Stu. cap 36. s Dr. Stu. ibid. t Dr. Stu. cap. 30. u Trin. 13 Eliz. C. B. Smalwood vers Bishop of Lichfield Leon. Rep. x Stat. 13 Ed. 1. cap. 5. y Case Evans and Ascough Latch Rep. Z Stoke vers Styles Latch Rep. fo 253. a Case ibid. See this Case in Noy's Rep. b Stokes vers Sykes Latch Rep. c Kitchin vers Calvert Lanes Rep. d Terms of Law verb. Nomination e 21 H. 6. 17. by Fulthorp f 14 Ed. 4. 2. Smith and Clayton's Case g Fitz. N. B. 33. b. h Dict. Cas Lane Rep. i Trin. 7 Jac. in the Exchequer Calv. against Kitchin and Parkinson Lane's Rep. k Servien agaiest the Bishop of Lincoln Noy's Rep. l In Robbino Case Noy's Rep. m Smith agaiest â—â—avis Noy's Rep. n Hill 1 Jac. B. R. rot 601. Fairchild and Gaier o Co. Lit. 601. p Da. 1. 46. b. Roll. Abr. verb. Present lit B. q Trin. 41 Eliz. B. R. Windsor and the Archb. of Cinterb Case Cro. par 1. r 17 E. 3. 40. Adjudg'd s 21 E. 3. 6. b. t 14 H. 3. Quare I. ped 183. Adjudg u Co. Litt. 344. x Co. Litt. ibid. y 50 E. 3. 26. 9 H. 6. 16. b. admit 24 E. 3. 26. b. Curia z 17 E. 3. 40. Adjudg a Rol. Abr. ver Preseâ—um D. m. 2. b 12 E. 3. Quare Imp. 56. per Schard c Liber Parliamentorum 21 E 1. the Prior of Bermuâ—dsey's case adjudg'd in Parl. 24 E. 3. 30. adjudg'd Rol. ubi supr lit E. nu 5. d 11 â— 4. 9. lyâ—all the Justices â— N. B. 34. K. 36. K. 38 E. 3 4. Hob. Rep. 208. e 43 E. 3. 3. f 17 E. 3. 40. b. g Ibid. h 19 E. 2. Qua. Imp. 178. i Rol. Abr. ver Presentm lit L. 4. k Rol. ibid. l Ibid. Hob. 209. m 38 E. 3. 36 b. Rol. Abr. ubi supr lit O. n Vid. Rol. ibid. lit Q. o Ibid. nu 3. p P. 32 El. B. R. Rot. 2065. inter Executors of Smalwood and the Bish of Coventry and Lichfield q Co. 6. Green 29. b. Boswell 50. Co. Lit. 344. r Co. Lit. 120. s 2 E. 1. Rot. Patentium membran 5. t 19 E. 3. Quare Imp. 60. Agree Co. Lit. 120. u Co. 6. Green 29. b. Dubitatur D. 16 El. 327. 6. Co. 6. Green 29. b. adjudg x Dom. Rex vers Emerso Triâ— 8 Jac. rot 1811 Brownâ— Rep. par 1. Act on Qu Imp. y Hill 22 23 Car. 2. C. B. Rot. 680. Shute vers Higden Vaugh. Rep. and Arguments a The King and Bish of Lincoln and King Case More 's Rep. Mich. 5 Eliz. More 's Rep. Pasch 30 Eli. More 's Rep. b M. H. 8 Jac. in Scac. inter Calvert Kitchin peâ—r Cur. c Ibid. D. 12 El. 292. 70. 16 El. 327. 4. d Dubitatur D. 18 El. 348. 12. Co 9. Holt. 132. Said to be Resolved in the said Case of 18 El. D. 20 El. 360. 7. admit e 15 H. 7. 7. b. f Co. 5. Speâ—ot 58. Rol. ibid. g D. 14 El. 3. 4. 54. Rol. ib. lit Y. h 2. D. 14 El. 304. 54. Rol. ibid. i Cronwel vers Lister Brownl Rep. pa. 1. Actions on Qua. Imp. k Mich. 15 Car. B. R. between Phipps and Hayter per Cur. Hutton's Case Hob. Rep. l Hill 40 El. B. R. Leak and the Bishop of Coventry's Case Cro. par 1. Albany and the Bishop of St. Asaph's Case Cro. par 1. Mich. 3. Jac. B. R. Lancaster and Low's Case Cro. par 2. Cro. par 1. Pasch 26 El. B. R. the Bish of Hereford's Case Cro. par 1. a Canon 35. Ecclesiastical b Co. 5. par Specot's Case c Rol. Abr. ver Preseâ—tm lit X. d Co. 2. Specot 58. e 14 H 7. 28. b. Cariae f Pasch 33 Eliz. C. B. 〈◊〉 and the Bishop of Peterborough's Case Leon. 230. g Mich. 15 Jac. C. B. Adjudg'd vid. acc 5 H. 7. 7. Câ— 5. par Specâ—t's Case h â—â—oton against the Bishop of Rochester Hutt Rep. i Rud. vers the Bishop of Lincoln Hutt Rep. k Co. on Lit. fo 334. a. l 3 R. 2. 7 H. 4. 1 H. 5. Rot. Bar. 6 H. 4. nu 48. 4 H. 6. nu 29. m Co 4. par Instit cap. 74. §. Consistory Courts m St. 13 El. cap. 12. n Canon Ecclesiastical 33. o Hill 8 Car B. R.
rot 454. Cort vers Episc St. Dav. Croke p F. N. B. fo 38 and Regist of Writs fo 33. a. q Mich. 10 Jac. rot 2642. Colt Glover vers Bish of Cov. Lichf Hob. Rep. r 4â— El. B. R. Co. 4. par 79. 〈◊〉 Case s Co. ibid. Digh. Case t Pasch 13 Jac. B. R. per. Co. Rol. Rep. u P. 13 Jac. B. R. Case Hitchin and Glover Rol. Rep. x 5 Eliz. Dyer 221. vid. Hare and Birkley's C. Plow Com. 528. acc y 18 Eliz in Giles Case vid. Co. 10. par 132. in Holts Case vid. 18 Eliz. z Hill 8 Cha. rot 454. B. R. Cort vers Bishop of St. Davids Cro. Rep. a Pasch 13 Jac. B. R. Hitchings vers Glover Rol. Rep. b Co. lib. 4 7 9. c Mich. 10 Jac. rot 2642. Colt Glover vers B. of Cov. and Lichf Hob. R. d Oliver vers Hussey Latch Rep. e Case Dennys vers Drake Lane's Rep. Vid. Co. lib. 4. Digbie's Case fo 79. Resignation of a Benefice e 34 Eliz. C. B. Gayton's Case Owens Rep. f The aforesaid Case of Rud vers the Bishop of Lincoln Hutt Rep. g 15 H. 4. 76. b. 14 H. 6. Qua. Imp. 162. 38 H. 6. 15. h â—8 E. 3 3. b. i 1â— H. 4. 9. k Ib. Contr. 14 H. 6. Qua. Imp. 162. adjudg'd of a Prebend l 11 H. 4. 10. m 14 H. 4. 11. b. Rol. Abr. ver Presentem lit C. n Pasch 23. Eliz. C. B. ad judg Godb. 23. vid. Fitz. N. B. 47. 26 H. 8. 3. by Knighâ—ly o 4 H. 8. Dyer 1. p Vid. Cro. Rep par 3. fo 258. q Pasch 17 Jac. C. B. Sir W. Elvis vers Archbishop of York and others Hob. Rep. r Sir Tim. Hutton's Case C. B. Hob. Rep. s Trin. 13 Jac. B. R. Glover against Shedd Rol. Rep. t Plow 52â— b. u Mich. 15 Jac. B. R. Rones Case Poph. Rep. x Chr. Deans Case Noy's Rep. y Pasc 2 Jac. C. B. ret 1320. Strange vers Foote Noy's Rep. z Mich. 12 Jac. B. between Sir Tim. Hutton and the Bish of Chester a Hill 15 Jac. B. R. Hitcham and Glover's Case Roll. Rep. b More 's Rep. c Middleton and Lawte's Case More 's Rep. Trin. 9 Jac. B. R. Holt's Case in Bulstr par 1. a Bro. tit Quare Imp. nu 51. b Pasch 28 El. C. B. 〈◊〉 vers 〈◊〉 Owen Rep. c Mich. 31 32 Eliz. Crâ—â—â—s Case Rep. ibid. d Broo. tit Quare Imp. nu 51. e Colt and Glover's Case vers Bâ—â— of Câ—v Lich f. Hob. Rep. f 13 Jac. in Scaccar Rot 96. Sheffeld vers Ratcliff Hob. Rep. g Mich. 17 Jac. C. B. Rot. 2710. Holland vers Shelley Hob. Rep. i Mich. 31 32 Eliz. C. B. Cripps vers the Archâ— of Cant. and others Ower Rep. k Co. 1. par Instit 46. 335. * Sir Marmad Wivel's Case Hob. Rep. l Pasch 31 Eliz. B. R. Vnderhil and Savage's Case Leon. Rep. m Mich. 30 31 El. C. B. Case Brckesby against Wickham and the Bishop of Lincoln n Hill 36 Eliz. B. R. Poph. Rep. o Terms of Law verb. Cession p Latch Rep. fo 234. q Conc. Lat. An. 1215. Innoc. 3. Pap. r 24 E. 3. 30 24 E. 3. 26. b. acc F. N. B. 24. l. s Pasch 31 Eliz. B. R. Vnderhil and Savage's Case Leon. 1. Rep. 316. t Co. 4. par 77. in Holland's Case u 5 Ed. 3. 3. Qu. Imp. 35. 24 E. 3. 38. Pars Law c. 16. x Triâ— 3 Car. B. R. Evans and Kiffin vers Askwith Jones Rep. y Dy. on St. 13 Eliz. the last Case vouch'd in Case Sâ—ubely vers Buâ—ler Hob. Rep. z Trin. 4 Car. Rot. 441. the King vers George Archb. of Cant. and Thâ— Pâ—yst Cro. Rep. a D. 13 14 Eliz. 304. 54. Rol. Abr. ver Presentment lit M. b Co. 4. Holland's Case 39 Eliz. c Trin. 14 Car. B. R. Mann and the Bishop of Bristol and others Cro. par 3. d Pynchin and Dr. Harris Cro. par 2. e Williams and the B. of Lincolns Case Cro. par 1. f Mich. 42 43 Eliz. B. R. Sir R. Basset and Gee's Case Cro. par 1. g Benet and the Bishop of Norwich's Case Cro. par 1. h Lewes and Benet's Case More 's Rep i Sir Godfr Foliamb's Case More 's Rep. a An. 1215. b Concil Later To. 4. 221. cap. 29. 24 E. 3. 33. 39 E. 3. 44. F. N. B. 34. L. Co. 4. par 75. c Dyer 237. p. 29. Cro. Eliz. 853. d Vid. Parss Law cap. 21. Ibid e Co. 4. par 79. Digbie's Case In the Parsons Counsellor par 1. chap. 4. Chaplains Archbishop 8 Duke 6 Marquess 5 Earl 5 Bishop 6 Viscount 4 Lord Chancellor 3 Knight of the Garter 3 Baron 3 Dutchess Marchioness Countess Baroness Widows each 2 Treasurer Controller of the Kings House each 2 Kings Secretary 2 Stat. 21 H. 8. cap. 13. Kings Almner Clerk of the Closer Master of the Rolls each 2 Chief Justice B. R. 1 Warden of the Cinque Ports 1 Par. 1. chap. 4. Co. 4. 79. b. Hob. 166. i Co. 4. 17. b. k Id. 4. 118. l Ibid. m Co. 4. 90. a. n Pasch 8. Jac. C. B. the King and the Bish of Bristol and Bauleighs Case vid. Hughe's Pars Law cap. 18. o 40 El. C. B. Pusâ— and Smâ—h's Case Trin. 43 El. B. R. rot 564. Bond and Triket's Case Cro. par 3. p. 858. p Vid. Paâ—s Law ubi supr Vnder Pâ—pe Innocent 3. q Shute vers Higden Vaugh. Rep. vid. Anders 1. pa. f. 200. b. p. 236. vide Moor 's Rep. Câ—s Larg ad eund effect r Co. 4. Digby's Case 41 Eliz. f. 78. s Mich. 22 Jac. B. R. Woodley and the Bishop of Exeter and Manwaring's Case Cro. par 2. q Mich. 10 Jac. Rot. 1642 Colt and Glover vers Bishop of Coventry and Lichfield Hob. Rep. r Hill 22. Jac. B. R. rot 1164. Evanâ— vers Ascough Latch Rep. s Ibid. f. 234. t Savaâ—re's Case Owen's Rep. n Thornton's Case Whinch Rep. w The King against the Archbishop of Canterbury and Prust Hetley's Rep. x Pinson's Case in Heâ—ley's Rep. y Trin. 43. Eliz. B. R. Bene vers Trickett Noy's Rep. z The King against the Bishop of Chichester Noy 's Rep. a 11 H. 4. 60. H. 39. El. B. R. inter Aâ—miger Holland per Cur. Resolv'd b Liber Successionis 19. c Co. 4. Holland 75. b. d Co. 4. Digby 79. e Lindw◠〈◊〉 81. f Rol. Abr. veâ—b Presentment lit L. pag. 353. g â—des verâ— the Bishop of Oxfâ—â—d in Vaugh. Rep. Pasch 9. Jac. 〈◊〉 en Ireland en le Case de Commenda enter le Rey â—yprian Horsfall Robert Wale Davis Rep. Hill 1610. 8 Jac. C. B. Wallop against the Bishop of Exeter and Murrey Clerk Brownâ—â— pa. 2. Tâ—â—â— 13. 〈◊〉 B. R. Dodjâ—â—â— and Lynâ—'s Case â—ro par 3 Mich. 41 42 Eliz. B. R. The Queen and Page's Case Cro. p. 1. Cro. ibid. Cro. ibid. The Queen and Darcte's
Case Cro. p. 1. Or â—Diâ—rte's Case vide Moâ—â—r's Rep. Miâ—h 43 4â— Eliz. B. R. Bond and Tickett's Case Cro. par 1. Agar and the Bishop of 〈◊〉 's Case Moor's Rep. 21 H. 8. c. 13. 25 H. 8. c. 21. Dolman and the Bishop of Salisbury's Case Moor's Rep. The Queen Bishop of Lincoln and Skiffing's Case Moor's Rep. Moor ibid. Aâ—miger and Holland 's Cas Moor 's Rep. Vid. Dederidg de Advows Co par 5. Cawdrie's Case 5. Ed. 4. 3. 5 H. 7. 19. 38 E. 3. 2. b. Dyer 8. 9. p. 254. Co. 558. a. Dyer 293. p. 1 2. * 2 H. 4. 37. †Allen vers Nash Pasch 13 Car. 1. B. R. Vid. Pars Co. par 1. c. 9. * Cro. Jac. 37. a St. 1 Eliz. c. 2. 14 Car. 2. 4. b 14 Car. 2. c. 4. c 13 El. c. 12. 5. Br. 2. tit Trial 54. Drunkenness after Admonition is cause of Deprivation Hill 9 Jac. Rot. 2001. Mortimer vers Freeman Brownl Rep. par 1. Actions c. d 29 E. 3. 16. 20 H. 6. 46. 2 H. 4. 3. by Thirwit Co. 11. p. 72. 20 H. 6. 36. e Co. 11. par 40. 49. in Lyford's Case f Mich. 12 Jac. B. R. vid. Pars Law cap. 17. Co. 11. 98. b. 9 E. 4. 34. g 38 E. 3. 2 3. 5 H. 7. 14. acc h 13 El. Dyer 292. acc St. 21 H. 8. c. 13. i Mich. 9 Car. C. B. rot 441. The King and the Bishop of Cantâ—r and Pryst 's Case Cro. 1. p. 258. acc k 31 Eliz. Morris and Eaton's Case adjudg vid. Pars Law c. 18. Shutâ— and Higden's Case in Vaugh. Rep. l Dyer 275. b. p. 48. m Pars Co. p. 1. cap. 9. n Vid. 5 R. 2. Fitz. Trial 54. Hughe's Abridg verb. Deprivation o Co. 4. par 102. Windsor's Case p 13 Eliz. Dy. 292. q Trin. 18. Car. B. R. the B. of Hereford and Okoley's Case Marsh 119. Huge's Abridg. verb. Deprivation r 9 Eliz. Dyer 294. s 12 Eliz. Dyer 293. 〈◊〉 t Stanf. Ple. Cor. fo 130 138. u Vid. Seld. Tit. of Hon. fo 787. x Ridl View p. 2. cap. 2. Sect. 3. x Cawdry vers Atton Poph. Rep. Vid. this Case Coke lib. 5. 1. y Hil. 2 Jac. 13. Feb. in Noy's Rep. post Cas Rye versus Fullcombe * The 39 Articles of Religion z Vid. Shate and Higden's Case in Vaugh. Rep. Mich. 8 Jac. Parker's Case Brownl Rep. p. 2. a Hil. 15 Jac. B R. inter Hitchin and Glover Adjudg'd b Mich. 13 Jac. B The Bish of Carlâ—sle's Case per Curtaâ— c Rol. Abr. ver Presentâ—n lit P. d Smith and Clerk's Case Cro. par 1. e Trin. 41 Eliz. B. R. Baker and Brent's Case f Trin. 27 Eliz. C. B. Foxe's Case Cro. p. 1. g Lovedon and Windsor's Case Mores Rep. Trin. 13 Jac. B. R. Hornigold vers Bryan Bulstr par 3. Doderidge of Advowsons Lect. 14. Doderigd ib. a Co. on L. fo 119. b. b 10 H. 6. 7. c Art Cle. ch 13 14 H. 7. 28. Dyer 326. Co. 5. 58. 4. 79. d 21 El. 4. 34. Kelw. 88. Co. 4. 79. 7. 38. on Litt. 344. e St. 28 H. 8. c. 11. f Ibid. g Stat. ibid. Coke pla fo 368. h St. ibid. i Ibid. 21 H. 6 fo 20. 34 H. 6. fo 38. k Hil 18 Jac. Wood's Case l Per Co. Mich. 12 Jac. B. R. Case Gratnge and Howlett Roll. Rep. m Mich. 13 Jac. B. R. Case of the King vers Bish of Norwich n St. 14 Car. 2. c. 14. o Pasch 3 Car. C. B. in dict Cas Chichley Hetley's Rep. p Howson 's Case Herl Rep. 13 Eliz. c. 20 That Statute speaks of Absence not above 80 daies in a year in the Parson 40 daies in a Curate q Sidner vers Calver Noy's Rep. r St 21 H. 8. cap. 13. s Co. 6. 21. b. t 21 H. 8. c. 13. u 25 H. 8. cap. 16. 33 H. 8. c. 28. 21 H. 8. c. 13. Vid. Pars Couns p. 1. cap. 7. x Co. 4. 119. a. Hill 8 Jac. 1610 Canning vers Dr. Newman Brownl pa. 2. Vid. More 's Rep. Co. 5. Butler and Goodall's Case 40 Eliz. B. R. Cro par 1. Pasch 7 Jac. B. R. Shepherd vers Twolsie Bulstr Rep. par 1. Mich. 10 Jac. B. R. J. S. against Marâ—yn and Gunnystone Blustr par 2. Trin. 14 Jac. B. R. Rudge vers Thomas Bulstr par 3. Marsil Calvin a Terms Law verb. Abbot b Ibid. An. 602. c Co. on Litt. fo 97. d Mr. Blâ—unt in his 〈◊〉 Lox e An. 13 El. cap. 10. f Camb. Bri. g 37 H. 8. cap. 4. 1 Ed. 6. c. 14. 15 Car. 2. c. 9. h v. Dugdales Hist Eccl. i Trin. 12 Jac. rot 2187. Case Pitts vers James Hob. Rep. k St. 1 Ed. 6. c. 14. l 11 H. 4. 68. â— m Ibid. n Co. 4. â—dams and Lamberâ—'s Case 4â— 45 Eliz. B. o Mich. 2 Jac. B. R. Hâ—llâ—way and Watkins Case Cro. par 2. p Pasch 12 Car. B. R. Humphreys Knight's Case Cro. par 3. q Hart and Brewer's Case Cro. par 1. r The Case of the Skinners of London s Pasch 30 Eliz. More 's Rep t Co. Inst p. 4. cap. 15. u St. 27 H. 8. c. 27. x St. 7 E. 6. c. 2. vid. the Reâ—earsal of the Stat. Coke ubi supr c. 16. y Co. ibid. Dyer 4 Eliz 16. z Heyl. Hist Eccl. p. 135. a St. 26 H. 8. cap. 3. b St. 32 H. 8. c. 45. St. 34 H. 8. 17. 7 Ed. 6. 2. 1 Eliz. 4. c St. 1 Mar. Sâ—ss 2. cap. 10. d dict St. 1 Eliz. 4. Mich. 5 Jac. Co. lib. 12. Co. Inst par 4. â—ap 14. Co. ibid. Num. 18. 26 c. vid. Jerom in Ezek. c. 44. v. 28 c. a Britton fo 164. b Britt c. 66. nu 5. c Bract. l. 2. c. 5 10. vid. F. N. B. fo 211. New Book of Entries verb. Frank Almoigne d Britt ubi supr e In Case Dennis vers Drake Lane's Rep. Vid. Co. lib. 4. Digbie's Case fo 79. Mich. 5 Jac. Co. l. 12. a Mich. 21 Eliz. in Scac. inter Turner and Edwards b Gloss in Matt. Par. Blount's Nomo-Lex ver Altaragium c Brett and Ward 's Case Winch Rep. d Dr. Wood aâ—d Greeâ—wood's Case Hetl. Rep. Mich. 10 Jac. B. R. Reynâ—lds vers Greeâ— Bulstr par 2. Cawdrey's Discourse of Patronage p. 8. â—bid p. 10. a 〈◊〉 â—0 b 〈◊〉 Jac. Râ— C. B. c â—o Graâ—â— Rolâ— 6. d 〈◊〉 42. e 〈…〉 14. â— 2. f 〈◊〉 St. 8. 20. 32 â— 8 2 Ed g Levit. 27. 30. h Matt. 23. 23. Luke 11. 42. i Mal. 3. 8 9. 10. vid. Pro. 3. 9 10. k Mal. ibid. l Matth. 23. 23. Luke 11. 42. m Mat. 10. 10. n 1 Tim. 5. 18. o Rom. 2. 22. p Hierom. sup Ezek. 14 45. Num. 18. 26. q Deut. 14. 22. r Deut. 14. 23. s Deut. 14 28. t Hierom. â—ubi supâ— u Gen. 2. 3. 14. 20.
H. 6. 19. per Prisot y 8 E. 4. 24. b. per Curtam 5 H. 7. 20. b. per Reble and 22 H. 6. 30. per Mark. z Rol. Abr. Ver. presentment lit P. pag. 384. a 21 H. 6. 44. 34. H 6. 40. b 21 H. 6. 44. c 34 H. 6. 11. b. per Prisot 34 H. 6. 38. d 34 H. 6. 11. b. e ibid. per Prisot f 21 H. 6. 44. 45. Rollâ—ubi supra g 34 H. 6. 12. per curiam h F. N. B. Spoliation fo 36. b. vid. Casâ— Edes vers the Bishop of Oxford in Vaugh. Rep. i 38 H. 6. f. 19. Br. Spoliation pl. 4. O. N. B. 33. b. F. N. B. 54. Finch Nomotexnia p. 138. Bird and Smiths Case More 's Rep. Roberts and Amond shams Case More 's Rep. Mich. 13. Jac. B. R. the Kings case against Zakar Bulst par 3. F. N. B. 175. b. Finch ubi sup p. 135. Stamf. 133. Cap. 40. sect 7. in fin sect pag. 564. THE INDEX Referring to PAGE and PARAGRAPH ABBY-Lands how many ways priviledged or dischargâ—◠〈◊〉 Tithes p. 383. How the Abby of Battel came to be dispensâ—â— with from Visitation p. 108. Sect. 8. When and by whom 〈◊〉 Abby of Westminster was founded p. 328. Sect. 5. Abbot whence that word is derived and what it signifies p. 326 327. Sect. 1. How many Abbots anciently in England p. 327. Sect. 1. and 328. Sect. 5. They were reputed as Peers p. 327. Sect. 2. Some were Elective others Presentative p. 328. Sect. 5. When and by whom made Elective p. 331. Sect. 7. Three Abbots condemn'd at once for denying the Kings Supremacy p. 10. Sect. 14. Abeyance what p. 183. Sect. 9. and 189. Sect. 8. and 284. Sect. 3. Abjuration The form thereof anciently p. 141 142. Sect. 8. Absence of the Husband from the Wife what requisite to cause a Divorce p. 494. Sect. 2. Abstinence or Fasting Days the Original thereof in England p. 130. Sect. 44. Acceptance of Rent by a Bishop whether it shall bind him p. 38. Sect. ult By a Parson whether it confirms the Lease made by his Predecessor p. 189. Sect. 8. Accessories determinable in that Court which hath cognizance of 〈◊〉 Principal p. 114. Sect. 11. and p. 123. Sect. 25. Accompt in what case an Executor shall not be compelled thereunâ—â— p. 116. Sect. 12. Acorns Whether Tithable p. 383. Action upon the Case in what Case it may lye at Common Law for suing in the Ecclesiastical Court p. 444. Administrator how he may make his own Goods 〈…〉 Debts p. 86. Sect. 11. Admission what and under what qualification 〈…〉 p. 272. Sect. 6. the form thereof p. 272. Sect. 7. Admittendo Clerico in what Cases that 〈…〉 Adultery where Cogniâ—able and 〈…〉 Advocatio Medietatis Ecclesiae Medietatis Advocationis Ecclesiae the difference in Law between them p. 206. Sect. 2. Advocatione decimarum what that Writ imports p. 647. Sect. 7. Advowe or Avowe who properly such p. 206. Sect. 2. and p. 213. Sect. 14. Advowson what and whence derived p. 205. Sect. 1. Twofold p. 206. The Original thereof p. 207. Sect. 3 A Temporal non Spiritual Inheritance p. 209. Sect. 6 7. How Advowson in Gross differs from Appendant p. 210. Sect. 8. Whether it may be extended p. 182. Sect. 7. By what words in a Grant it may pass or not p. 211. Sect. 10. p. 214 Sect. 15 16. Whether it may be Assets p. 214. Sect. 15. Whether the Advowson of a Vicarage endowed belongs to the Parson or the Parsons Patron p. 216. Sect. 21. Whether the Advowson of a Vicarage doth pass by the Grant of the Vicarage p. 219. Sect. 24. Three Original Writs of Advowsons p. 216. Sect. 20. Aftermath and Aftergrass whether Tithable p. 384. Age at what age a Minor Executor may administer p. 219. Sect. 16. Agistment what and whether Titheable p. 384 385. Agreement between Parson and Parishioner touching Tithes p. 373. Sect. 47. and p. 385 386. Good for years without Deed not so for Life p. 379. Sect. 69. and p. 386. Alcheron how severely it doth punish Adultery p. 471. Sect. 6. Aldermanus anciently what p. 96. Sect. 1. Aliens whether presentable to a Church in England p. 264. Sect. 26. and p. 272. Sect. 6. Alimony what p. 508. Sect. 13. where cognizable p. 510. Sect. 16. 18 19. In what Cases the Law allows Alimony or not p. 509 510. Sect. 14 15. whether due to her that Elopes p. 508. Sect. 13. Alms or things appointed for that end whether Tithable p. 386. Altarage what p. 339. Sect. 1. whether Tithe Wool or Tithe Wood shall pass by the word Altaragium p. 341. Sect. 3. p. 342. Sect. 4 5. St. Andrews in Scotland when and by whom the Bishop thereof was made Metropolitan of all Scotland p. 18. Sect. 9. Animalia Utilia Inutilia the difference between them in reference to Tithes p. 360. Sect. 17. and p. 386. Annates what by and to whom payable p. 335. Sect. 1. The Original thereof p. 337. Sect. 2 3. vid. First-fruits Annua Pensione what that Writ imports p. 648. Sect. 14. Anselme Archbishop of Canterbury the first that made Appeals to Rome p. 97. Sect. 1. and p. 118. Sect. 13. The first Archbishop of Canterbury that was Legatus Natus p. 98. Sect. 1. Apparitor Action against such for false informing p. 88. Sect. 14. vid. Summoner Appeals to Rome prohibited p. 9. Sect. 14. p. 118. Sect. 13. They are made to the King in Chancery p. ibid. Appeal out of Ireland to the Delegates in England in what case p. 407. vid. Delegates Appellatione remota the effect of that clause in Law p. 117. Sect. 13. Apples what Tithes they pay whether small to the Vicar or great to the Parson p. 361. Sect. 21. p. 386. In what case they may not be Tithable p. 371. Sect. 44. Appropriation what p. 223. Sect. 3. The original thereof p. 221 222. Sect. 1. Whether it may be made without the Kings License ibid. and p. 198. Sect. 3. Whose Assents are requisite thereunto p. 222. Sect. 1. How they are now chang'd in their use and end from what they were originally p. 223. Sect. 2. Whether they might formerly be granted to Nunneries p. 223. Sect. 2. and p. 225. Sect. 5. They may not now as to their Original be called into question p. 226. Sect. 6. How a Church Impropriate may become disappropriate p. 229. Sect. 12. Arabians their strange conceit of Adultery p. 471. Sect. 6. The punishment thereof with them Capital ibid. Arable Land left Fallow and untill'd every other year whether Tithable that year p. 394. Archbishop whence so called A description of that Dignity p. 12. Sect. 1. What difference between Archbishop and Metropolitan p. 15. Sect. 3. Three Archbishops in England and Wales anciently p. ibid. Sect. 4. How that in Wales came to be lost and when p. 17. Sect. 6. None in Ireland until the year 1152. p. 20. Sect. 13. In what Cases an Archbishop may call
Causes to his own Cognizance Nolente Ordinario p. 19. Sect. 10. Whether he may Cite a man out of his own proper Diocess p. 100 c. Sect. 3. The great Antiquity Precedency Priviledges Style and Precincts of the Archbishop of Canterbury p. 13. Sect. 1. He is the first Peer in England next to the Blood Royal. ibid. Anciently he had Primacy as well over all Ireland as England p. 20. Sect. 13. He was anciently styled Patriarcha orbis Britannici Pontifex ibid. He had some special marks of Royalty p. 21. Sect. 13. Several Priviledges peculiar to him ibid. Whether he had concurrent Jurisdiction in Inferiour Diocesses within his Province p. 18. Sect. 9. That See kept Four years by King William Rufus without an Archbishop p. 24. Sect. 3. In what respects the Archbishop of Canterbury hath some power over the Archbishop of York p. 18. Sect. 9. The Original of the Metropolitan See of York p. 14. Sect. 2. The Antiquity Precedency Style and Precincts of the Archbishop of York ibid. Anciently an Archbishop of London p. 17. Sect. 7. Archâ—s-Court the higâ—â— Consistory p. 83. Sect. 6. Why so called p. 100. Sect. 3. The great Antiquity Jurisdiction and decent order 〈…〉 5. 〈…〉 and what he is p. 60. Sect. 1. How he 〈…〉 Office and Jurisdiction p. 61. Sect. 1. The 〈◊〉 kinds of Archdeacons and how many in England p. 61. Sect. 2. How they are distinguished by the Canon Law p. 65. Sect. 10. Whence their Pâ—rer is derived p. 62. Sect. 3. The Canon touching 〈…〉 to their Visitations p. 64. Sect. 9. Whether they have Power of Visitation Jure communi p. 63 67. Sect. 7. What Remedy in case an Archdeacon dâ—th refuse to swear the Church-Wardens elect p. 164. Sect. 9. Whether an Archdeaconry be understood as a Benefice with Cure p. 62. Sect. 5. and p. 200. Sect. 13 Arch-Flamins what and how many anciently in England and where p. 16. Sect. 4. They were succeeded by as many Archbishopricks ibid. Arch-Presbyter what p. 56. Sect. 7 Arms or Coat-Armour on Monuments or Church-windows not to be defaced or demolished p. 138 139. Sect. 5 Arrests whether they may de executed on Christmas-Day p. 115. Sect. 12. Whether executable on Clergy-men in time of Divine service p. 141. Sect. 8. Articles 39 of Religion what kind of subscription thereunto required p. 163. Sect. 8. Articles of Religion under King Ed. 6. p. 8. Sect. 14. The like under Q. Eliz. ibid. Articles of Enquiry on a Jure Patronatus p. 180. Sect. 2. Articles before the high Commissioners at York against the Vicar of Hallifax p. 189. Sect. 9. Articuli Cleri and Circumspecte agatis what p. 639. Assault on a Clerk whether cognizable before the Ordinary p. 115. Sect. 12. Assaults in the Church or Church-yard are not to be retaliated p. 139. Sect. 5 Assent to the Articles of Religion what good or not within the intent of the Statute p. 163. Sect. 8. Assent of the Ordinary requisite to the Foundation of a Church p. 207. Sect. 5. Assent of the Patron requisite to the Vnion and Appropriation of Churches p. 109. Sect. 8. Assise de utrum what and why so called p. 644. Sect. 2. Atturney at Law he may not be elected Church-warden p. 164. Sect. 9. Audience or Court of Audience what it was where kept and what matters it took Cognizance of p. 106. Sect. 7. Aumone or Frank Almoigne a description thereof it 's use and end p. 338. Sect. 4. AVoidance what 283. Sect. 1. Twofold ibid. What difference between Avoidance and Next Avoidance p. 284. Sect. 2. How many ways it may be p. ibid. Sect. 3. In what Court cognizable p. 122. Sect. 21. The difference between the Common and Canon Law in reference to Avoidances p. 286. Sect. 8. The grant of the Next Avoidance during an Avoidance is void p. 219. Sect. 24. Whether the grant of a Next Avoidance good without Deed p. 255. Sect. 4. Avowe or Advowe what p. 181. Sect. 5. Austin whether the first that preached the Gospel in England p. 13. Sect. 1. Whether the first Archbishop of Canterbury p. ibid. Where buried p. 16. Sect. 4. Award or Arbitrement pleaded in Barr of Tithes in the Ecclesiastical Court and refused no ground for a Prohibition p. 122 123. Sect. 25. B. BAIL whether it may be taken for one apprehended by a Capias De Excom capiend p. 651. Sect. 25. Banns what whence derived how published by whom dispensed with and the legal Requisites in order to such Dispensations p. 465. Bark of Trees what not Tithable p. 387. Barren Land the Law touching the Tithes thereof p. 387. c. Bastard whence that word and who properly such p. 478. Sect. 1. and p. 486. Sect. 16 18. How differenced from Mulier at Common Law p. 478. Sect. 2. How distinguish'd at the Civil Law p. 480. Sect. 5. How that Law computes the time of a Womans going with Child p. 482. Sect. 7. How computed at the Common Law p. 482 Sect. 9. and p. 484. Sect. 12. Bastardy how distinguish'd at Common Law p. 478 479. Sect. 3. It is Triable by the Certificate of the Bishop p. 122. Sect. 21. How prosecuted in Courts of Justice p. 480. Sect. 6. and p. 484. 485. Sect. 13. How punished p. 438. Sect. 10. and p. 485. Sect. 14. Difference between the Common Civil and Ecclesiastical Law in reference to Bastardy p. 487. Sect. 19. Baud whether and where Actionable for calling one so p. 519 520. Sect. 11. and p. 520. Sect. 13. and p. 523. 20. Beauford Henry Great Vncle to King H. 6. and Bishop of Winchester made Cardinal how he thereby fell into a Premunire p. 110. Sect. 8. Becket Archbishop of Canterbury his contention with King Henry 2. p. 100. Sect. 2. Beech-Trees how and in what Case Tithable or not p. 389. Bees in what kind they pay Tithes p. ibid. Benefice Ecclesiastical the true definition thereof p. 200. 12. The reasons of that definition p. ibid. Whether Ecclesiastical Dignities fall under the notion of Benefices p. 200. Sect. 13. Of what a Benefice consists p. 200 201. Sect. 14. No Contract to be made for it nor is it vendible p. 201. Sect. 15. Six Signs or Requisites of an Ecclesiastical Benefice p. ibid. The common distinction thereof p. 201. Sect. 16. Beneficio primo Ecclesiastico habendo what that Writ imports p. 647. Sect. 9. Birch-Trees whether Tithable after Twenty years growth p. 390. Bishop the derivation of that word and why so called p. 22. Sect. 1. Anciently he was the universal Incumbent of his Diocess p. 13. Sect. 1. Why called Ordinary p. ibid. Sect. 2. What things requisite to his Creation p. 25. Sect. 4. The form and manner of making Bishops ibid. and p. 26. and p. 50. Sect. 8. His interest and Authority in his several capacities p. 29 30. Sect. 9. Whether he may grant Letters of Institution out of his own proper Diocess and under any Seal other than his own Seal of Office
The causes thereof p. 206 207. Sect. 2. Where cognizable p. 122. Sect. 21. Whether a Bar to Tithes due before p. 398. Whether the Church be void pending the Appeal from a Sentence of Deprivation p. 314. Sect. 17. Delegates-Court how Constituted p. 117. Sect. 13. Whether they may Excommunicate or grant Letters of Administration p. ibid. Dilapidation what p. 173. Sect. 1 2 3. The remedies in Law against it and how many ways it may happen ibid. Whether it be a sufficient cause of Deprivation p. 175. Sect. 5 9. and p. 315. Sect. 19. Diocess whence that word derived p. 101. Sect. 3. What it properly signifies p. 275. Sect. 8. Discharge of Tithes how many ways it may be p. 398. In what Cases it may be or not p. 358. Sect. 12. p. 368. Sect. 38. Dispensation the true definition thereof p. 112. Sect. 9. By whom Dispensations may be granted and in what Cases p. 107 c. Sect. 8. Anciently had from the Court of Rome ibid. It may be without the word Dispensamus p. 302. Sect. 18. They are grantable by the King qua talis p. 5. Sect. 7. p. 109. Sect. 8. The granting thereof is eminently in the Crown p. 6. Sect. 9. The Archbishop of Canterbury may be Statute grant them ibid. p. 19. Sect. 11. The difference between such granted by the Pope formerly and those granted by the King now p. 293. Sect. 2. In what Case grantable by the Guardian of the Spiritualties p. 40. Sect. 3. What remedy in Law in Case he refuse so to do ibid. Divorce what 493. Sect. 1. The Causes thereof ibid. Whether if for Adultery it dissolves the Marriage à vinculo p. 495. Sect. 3 c. Donative Churches what p. 202. Sect. 16. The Original thereof p. ibid. By whom visitable p. 34. Sect. 18. The Law concerning Donatives p. 262. Sect. 18. How they cease to be such and become Presentative p. 201. Sect. 16. and p. 263. Sect. 21. Whether a Donative in the Kings gift may be with Cure of Souls p. 218. Sect. 23. Dotards whether Tithable p. 405. Doves in a Dove-house what Tithes they pay p. ibid. Druids their Idol-Temples when first abolished in England p. 16. Sect. 4. Drunkard whether actionable to call one so p. 516. Sect. 3. p. 521. Sect. 14. Dubritius Archbishop of Carlegion in Wales p. 17. Sect. 6. Duplex Querela what p. 275. Sect. 8. E. ECclesia whence that word derived p. 136. Sect. 1. Ecclesiastical Laws of England the Antiquity thereof p. 129 c. Sect. 44. Edgar King his Zeal for the Church in his Oration to the Clergy of England p. 97. Sect. 1. Eggs how when and in what Case Tithable p. 405. Election of Bishops how and by whom to be made p. 43. Sect. 2. Eleutherius Pope what style be gave K. Lucius p. 4. Sect. 4. p. 111. s 8. Elopement what it signifies p. 508. Sect. 13. Episcopal Authority derived from the Crown p. 30. Sect. 10. Episcopal Jurisdiction endeavoured to be taken away p. 36 37. Sect. 2. Episcopocide in a Clerk Petty Treason p. 35. Sect. 19. Estovers burnt in a house whether Tithable p. 372. Sect. 46. p. 392. Ethelbert King of Kent by whom Canterbury was given to St. Austin for his See p. 13. Sect. 1. p. 17. Sect. 5. Whether he built St. Pauls Church in London p. 17. Sect. 7. Ethelwolph Son and Successor to Egbert the first sole King of England he was Bishop of Winchester p. 36. Sect. 19. And the first that enriched the Church of England with Tithes p. 348. Sect. 1. Euginus whether he were the first that styled himself Pope the first that consecrated Churches and the first that decreed Godfathers and Godmothers in Baptism p. 49. Sect. 7. Examination when and by whom to be performed p. 270 Sect. 1 3. Excommunication what p. 624. Sect. 1 2. Twofold ibid. What intended by Excommunication ipso facto p. 626. Sect. 4. What the causes in Law of That Excommunication p. 628. Sect. 8. In what manner Excommunication is to be pronounced p. 626. Sect. 6. By whom it is to be certified and how p. 635. Sect. 18. Whether the Ordinary may take Bond of an Excommunicate for his submission in order to absolution p. 637. s 25. whether Excommunication in a Patron be sufficient cause for a Bishop to refuse the Clerk presented by such Patron p. 266. Sect. 32. F. FAculty or Court of Faculties or Faculty Office what p. 107. Sect. 8. The Archbishop of Canterbury impower'd by the Statute to grant Faculties ibid. and p. 19. Sect. 11. The force and efficacy thereof to Commendams or two Benefices p. 107 109 110. Sect. 8. The difference between a Faculty to Take and a Faculty to Retain a Benefice p. 110. Sect. 8. Fallow-grounds whether Tithable p. 405. Fees for Probate of Testaments what due by Statute p. 105 106. Sect. 6. Fâ—nny-Lands drain'd whether they pay Tithes presently p. 406. Ferae naturae Creatures of that kind whether Tithable p. 405. First-fruits by and to whom payable p. 337. Sect. 2. vid. Annates Fith taken in the Sea or in a River Pond or Piscary whether Tithable and how p. 406. and p. 367. Sect. 36. p. 379. Sect. 68. p. 375. Sect. 53. Flamins how many anciently in England p. 16. Sect. 4. Flax what Tithes it pays and when p. 407. Forest-Lands whether Tithable or not and by whom p. 407 408. Not scituate in any Parish to whom the Tithes shall be paid p. 408. Whether Priviledg'd from Tithes whilst in the Kings hands otherwise in the Subjects p. 369. Sect. 41. Whether they are Priviledged from Tithes if in the hands of the Kings Patentee or Grantee p. 399. 401. Fowl taken in what Case Tithable or not p. 408. Fraud in setting forth Tithes whether treble dammages in that Case p. 380. Sect. 72. p. 381. Sect. 76. Freehold f the Church or Chancel in whom it is p. 137. Sect. 3. p. 83. Sect. 4. p. 139. Sect. 5. p. 142. Sect. 9. p. 150. Sect. 22. p. 151. Sect. 25. p. 155. Sect. 38. Frigidity in the Man pleaded by the Woman how the Civil Law proceeds thereon p. 493. Sect. 1. Fruit-Trees what Tithes they pay and when p. 408. Fuise whether Tithable p. ibid. G. GArba or Decima Garbarum what it signifies p. 381. Sect. 78. Gardens how Tithable p. 409. p. 371. Sect. 43. Geoffry Plantaginet Son to King H. 2. was Bishop of Lincolne p. 36. Sect. 19. Glass-windows Painted in the Isle of a Chappel if pulled down whether Actionable p. 138. Sect. 5. Gleab what p. 409. The Law concerning the Tithes thereof ibid. p. 410. Gleab of a Parsonage Impropriate and Leased whether Tithable ibid. p. 368. sect 38. Whether Gleab in Lease pays Tithe p. 362 363. s 26. Whether the Freehold of the Gleab during a Vacancy be in the Patron or not p. 183. s 9. Gleab manured and sowed by an Incumbent that dies before Harvest who shall have the Corn p. 318. s 3. Godfathers
p. 106. s 6. He hath Curam Curarum p. 32. s 14. Organs in a Church to whom they belong p. 167. s 18. if taken away where the Action lies p. 161. s 2. Ornaments of the Church at whose charge to be provided and how the same shall be charged p. 137. sect 4. p. 152. s 29. p. 154. s â—4 P PAgans the strange Punishments inflicted by them on Adulterers p. 470. Sect. 4. Pallium Episcopale a description thereof p. 23. s 2. Pander whether to call one so be Actionable p. 524. s 21. Pannagium what that word signifies p. 383. Pardon whether it may extend to prevent a Deprivation p. 312. s 15. Whether a General Pardon shall barr a Suit in the Ecclesiastical Court for Slander p. 121. s 19. In what case it may barr Costs of Suit p. 116. s 12. Pâ—rk disparked how Tithable p. 361. sect 20 21. p. 364 365. s 31. p. 427 428. How to be Tithed if converted into Tillage p. 361. s 20. p. 380. s 75. Parish the various acceptation of that word p. 355 356. sect 8. By whom Parishes were first divided p. 72. s 8 9. Parochial Bounds where Cognizable p. 126. s 37. p. 128. s 28. p 125. s 31. p. 157. s 40. p. 153. s 31. p. 380. s 74. Being Controverted between Spiritual persons are Cognizable in the Ecclesiastical Court p. 123. s 27. Otherwise at the Common Law p. ibid. s 28. p. 124. s 30. p. 126. s 37. Parish-Clerk by whom to be chosen p. 166. s 12. p. 192. s 15. Parson who properly such p. 185 186. s 1. He hath a double Capacity p. 193. s 16. Parson Imparsonee what p. 186. s 2. How he ought to be qualified to be a Parson p. 187. s 4. Requisites in Law for that Function ibid. What his Rights are p. 186. s 3. The difference between Parson Pastor Rector Vicar and Curate p. 186. s 1. Parsonage Church and Rectory are terms Synonymous p. 188. sect 6. Patridges and Pheasants though not Tithable yet paiable in lieu of Tithes p. 361. sect 20. What Tithes tame Patridges shall pay p. 428. Pasture the Law in reference to the Tithes thereof p. 428 429. Patria obedientiae and Patriae consuetudinariae the difference between them p. 130. s 44. Patriarch what p. 20. s 13. A Style or Title anciently given to the Archbishop of Canterbury p. ibid. Patron what he is and why so called p. 178. sect 1. p. 205. s 1. Who is properly the Patron of a Vicarage p. 199. s 9. Whether a Patron hath any thing to do in the Church during a Plenarty p. 191. s 12. His Consent requisite to Commandams Vnions and Appropriation of Churches p. 229. s 8. Paul or St. Paul whether he Preach'd here in England p. 16. Sect. 4. St. Pauls Church London by whom first built p. 17. Sect. 7. Paulinus Archbishop of York p. 14. Sect. 2. Pease in what Case not Tithable p. 429. Pelagius a Monk of Bangor his refusal to appear at Rome upon the Popes Summons p. 111. Sect. 8. Pelagian Heresie when this Kingdom first infected therewith and by whom suppressed p. 16. Sect. 5. Peculiars or the Court of Peculiars what it was p. 119. Sect. 16. How many Peculiars in the Province of Canterbury ibid. Pelts or Fells of Sheep dying of the Rot whether Tithable p. 429. Pensions suable in the Ecclesiastical Court p. 127. Sect. 41. p. 188. Sect. 6. p. 198. Sect. 5. p. 376. Sect. 57. Pentecostals what and whence so called p 73 74. Sect. 10. Peters Church in Cornhil London once the Cathedral of a Diocess p. 17. Sect. 7. By whom founded ibid. Peterpence what The Original thereof and why payed to Rome p. 73 74. Sect. 10. p. 112. Sect. 8. p. 356. Sect. 9. The Conquerors Law concerning the same p. 73. Sect. 10. Anciently taken from the Pope and given to the King p. 100. Sect. 2. Pews in the Body of the Church at whose disposal they are p. 137. Sect. 3. p. 156. Sect. 38. p. 158. Sect. ult vid. Seats Pheasants of what kind are Tithable p. 430. Though properly not Tithable yet as a Modus may be paid for Tithes p. 380. Sect. 75. Pictures in Church-windowes if pulled down whether Actionable p. 138. Sect. 5. Pigeons in what Case Tithable or not p. 430. Spent in the Owners House not Tithable p. 368. Sect. 37. p. 375. Sect. 53. Otherwise if sold ibid. Felony to steal them out of a Dove-house ibid. vid. Doves Pigs how Tithable p. 430. Pilchards and other Sea Fish whether Tithable and how p. 379 Sect. 68. Pimp whether and where Actionable to call one so p. 521. Sect. 16. Pits of Stone Lime c. whether Tithable p. 430. Plants transplanted whether Tithable p. 431. Plato 's Law concerning Adulterers p. 473. Sect. 9. Plurality what p. 292. Sect. 1. Who may grant or receive Pluralities p. 294. sect 3. Qualifications in Law touching Dispensations for Pluralities p. 295. Sect. 4. Whether the taking of a Parsonage with a Vicarage endowed amounts to a Plurality within the intent of the Statute p. 296. sect 5. The Text of Canon Law against Pluralities p. 300. sect 15. Pope when his usurpation in England first began p. 97. Sect. 1. When and by whom here first abrogated p. 18. Sect. 8. What his power was in granting Dispensations p. 5. Sect. 7. Postulation what p. 49. Sect. 8. Prebends what and why so called p. 35. Sect. 19. Prerogative Court of Canterbury the Jurisdiction thereof p. 104. Sect. 6. Prescription p. 431. to 436. The Law thereof in reference to Tithes ibid. and p. 358. Sect. 12. In what Court cognizable p. 367. Sect. 29. p. 125. Sect. 33. In what Case a Parson prescribing for Tithes may sue on that Prescription in the Ecclesiastical Court ibid. Prescription meerly Spiritual Cognizable in that Court p. 156. Sect. 39. Prescription to a Seat in a Church or to Priority in that Seat whether cognizable in the Temporal Court p. 138. Sect. 5. p. 140. Sect. 7. p. 142. Sect. 9. p. 149. Sect. 21. p. 155. Sect. 38. p. 147. Sect. 18. p. 151. Sect. 25. Whether a Prescription to Ecclesiastical things be Cognizable in the Ecclesiastical Court p. 153. Sect. 33. Prescription pleaded by a Parson against the first Endowment to the Vicar whether allowable p. 375. Sect. 54. Prescription de non decimando not denied to a Spiritual person p. 399. The difference between the Civil and Common Law in point of Prescriptions p. 129. Sect. 43. Praemonstracenses how discharged of Tithes p. 402. Presentation to a Benefice what p. 254. Sect. 4. Where the Right of Presentation is cognizable p. 256. Sect. 6. What the Law touching Presentation is in case of Copareeners Joynt-Tenants and Tenants in Common p. ibid. Sect. 7. How the Presentation is to be in case of Coheirs p. 255. Sect. 4. Whether a Presentation be revocable before Institution p. 258 259 Sect. 9 10. What Presentation shall serve for a Turn p. 262
51. Summoner what a description of his Office p. 86 87. § 12. What the Canon enjoyns concerning such ibid. What the ancient Canon is touching Summoners p. 88. § 13. A Case at Common Law against a Summoner p. ibid. Sect. 14. Superstitious Pictures in Church-windows whether they may be pulled down without Licence of the Ordinary p. 138. Sect. 5. Supremacy or the Kings Supremacy a description thereof p. 1. Sect. 1. Established by Statute Laws p. 2 3. Sect. 2. p. 7. Sect. 10. The Oath of Supremacy the original and occasion thereof p. 3 4. Sect. 3. The Impugners therof censured with Excommunication ipso facto p. 4. Sect. 6. Asserted by King Ed. 6. p. 7 8. Sect. 13. Also by Queen Eliz. p. 8. Sect. 14. Synods the several sorts and kinds thereof p. 584. Sect. 1. Vnder what Archbishops of Canterbury they have been anciently held here in England p. 590 591. Sect. 7. Synodale what when and to whom payable p. 67. Sect. 1. Whether it be due without the Act of Visiting p. 68. Sect. 2. p. 69. Sect. 4. Originally paid in Victualibus p. 68. Sect. 3. When and how changed into Money ibid. The divers significations of the word Synodale p. 71. Sect. 8. vid. Procurations Synodies or Synodal what the Ordinary's Right therein p. 34. Sect. 17. p. 73. Sect. 9. T. TARES cut green to feed Cattel whether Tithable p. 440. Tartarians their great Chastity they held Adultery Capital p. 471. Sect. 6. Tax for Church-Reparations by whom to be made p. 148. Sect. 20. p. 162. Sect. 4. Templars discharged of Tithes p. 402. Temporalties or Barony of a Bishop how obtained p. 27. Sect. 4. p. 28. Tenant in Common in what case the same person may be said to be Tenant in Common with himself p. 193. Sect. 16. Testis singularis whether sufficient proof for payment of Tithes p. 362. Sect. 22. vid. p. 378. Sect. 63. p. 430. Theanus Archbishop of London in the time of K. Lucius p. 17. Sect. 7. He was forced by the Infidel Hengist to fly into Cornwal and Wales p. ibid. Sect. 5. Theruma what it was p. 351. Sect. 4. Timber-Trees what shall be reputed such as not Tithable p. 441 442. If wasted on a Bishoprick it is Dilapidation p. 176 177. Sect. 8 9. Tithes What by and to whom payable when how of what things the manner of Right Tithing what the Setting forth thereof is according to the Statute and where cognizable p. 347. c. The several kinds of Tithes p. 349. Sect. 1. p. 351. Sect. 4. whence the word Tithes derived p. 347. Sect. 1. By whom the Church of England was therewith first endowed ibid. They are now at Common Law Temporal Inheritances p. 353. Sect. 6 7. Whether they may be leased or released without Deed p. 358. Sect. 11. p. 363. Sect. 27. Composition thereof for life whether good without Deed p. 372. Sect. 45. Whether so if but for one year or more p. 377. Sect. 61. p. 382. s 81. The Right of Tithes in contest between Parson and Vicar is properly cognizable in the Ecclesiastical Court p. 127. s 42. p. 369. Sect. 41. p. 380. Sect. 73. What Tithes are properly due to the Vicar p. 199. Sect. 8. Tithes not set forth Actions thereon p. 376. Sect. 55. p. 378. Sect. 65. Tithes to two by halves whether the Parishioner must so set them out p. 362. Sect. 24. Tithes are of Ecclesiastical Cognizance p. 357. Sect. 9. Objections against Tithes answered p. 350 and 351. Sect. 3. Whether Tithes are grantable by Copy p. 431. Tobacco what Tithes that pays p. 366. Sect. 32. Tombes and Sepulchres defaced where punishable p. 142. Sect. 9. Trades whether gain gotten thereby be Tithable and how p. 442. Transaction how it differs from Composition p. ibid. Translation of Bishops needs no new Consecration p. 49. Sect. 8. p. 27. Sect. 4. p. 29. Sect. 7. Trebel Dammages where and in what Case suable p. 442. Trees what Tithable or not p. 442 c. p. 377. Sect. 62. To whom the Trees growing in the Church-yard do belong p. 150. Sect. 22. If cut down to whom the Action belongs p. 137. Sect. 3. p. 153. Sect. 32. Turkeys whether Tithable p. 444. Turves whether Tithable ibid. Tyle-Stones and Brick Tyle whether Tithable p. ibid. V. VALUE of a Benefice in Case of Plurality whether to be computed according to the Kings Books or the very Annual Value thereof p. 295. Sect. 5. p. 299. Sect. 12. p. 303. Sect. 21. Venison whether Tithable p. 361. Sect. 21. p. 454. Vestry whence that word is derived p. 162. Sect. 5. Vetches whether Tithable or not p. 454. Vicar what the original thereof p. 186. Sect. 1. Where and in what Case he may sue for an encrease of Maintenance p. 199. Sect. 10 11. Vicarage how created p. 198. Sect. 6. How it differs from a Parsonage p. 197. Sect. 2. In whom the Freehold of the Glebe there-of is ibid Whether a Vicarage endowed may be appropriated and to who p. 197. Sect. 3. Who properly is Patron thereof whether the Parson or the Parsons Patron p. 199. Sect. 9. Whether a Vicarage Perpetual may be dissolved p. 202. Sect. 17. In what sense a Vicarage may be compared to a Commendam p. 203. Sect. 18. In what case a Vicarage may determine p. 199. Sect. 11. What amounts to an Vnion of the Parsonage and Vicarage p. 199. Sect. 11. Vicario deliberando occasione cujusdam Recognitionis what that Writ imports p. 648. Sect. 15. Vi Laica removenda in what case that Writ lies p. 646. Sect. 5. Vine-Trees or Vines what Tithes they yield p. 454. Violent hands laid on one in the Church or Church-yard what the penalty thereof p. 139 140. Sect. 6. p. 155. Sect. 37. p. 89 90. Sect. 16. Visitation the power of the Ordinary therein p. 34. Sect. 18. p. 89 90. Sect. 16. Whether an Archdeacon hath power of Visitation of Common Right p. 63. Sect. 7. What number of Attendants allowed by Law to Visitors p. 71. Sect. 7. Underwoods whether Tithable or not p. 455 456. Union of Churches what and by whom to be made p. 169. Sect. 1. What amounts to an Union of a Parsonage and Vicarage p. 199. Sect. 11. Unity of Possession the Law thereof in reference to Tithes also the properties thereof p. 383 454. Vodinus Archbishop of London slain by the Tyrant Vortiger p. 16. Sect. 5. Vortiger the Tyrant burnt in a Castle besieged by Aurelius Ambrose p. 16. Sect. 5. He surrendred Kent Suffolk and Norfolk to the Infidel Hengist p. ibid. Usurpation of the Pope how and when it originally began here in England and the progress thereof after the Conquest p. 97 98. Sect. 1. p. 111. Sect. 8. p. 130 c. Sect. 44. Usurper who properly is such p. 205. Sect. 1. Whether he may gain possession of an Advowson from the Crown p. 215. Sect. 18. p. 218. Sect. 22. vid. p. 219. Sect. 24. In what case an Usurpation puts the very Patron out of
possession p. 272. Sect. 5. Three Writs at Common Law against an Usurper and what they are p. 205. Sect. 1. W WAges of Servants whether Tithable p. 457. Wall of the Church-yard by whom to be repaired p. 144. Sect. 11. Wales when first subject to the Archbishoprick of Canterbury p. 17. Sect. 6. Waste Pastures in what case Tithable or not p. 457. Wax or Bees-Wax how to be Tithed p. 457. Way obstructed for carrying of Tithes Cognizable in the Ecclesiastical Jurisdiction p. 382. Sect. 82. vid. p. 394. Weapons drawn in the Church or Church-yard how punished p. 139. Sect. 6. Indictments thereon discharged and why p. 149. Sect. 22. p. 155. sect 37. Weild or Woad for Diers to whom the Tithe of that Dying Plant belongs whether as Great Tithe to the Parson or as Small Tithe to the Vicar p. 366. sect 32. p. 381. s 77. p. 457 458. Westminster-Abbey by whom Founded p. 328. sect 5. When the Revenues thereof were first vested in a Dean and Chapter of the Collegiate Church thereof p. 15. s 3. How it became Originally the place of Consecration and Coronation of the Kings of England p. 6. Sect. 8. Whitson-Farthings what and when paid p. 73. Sect. 10. Whore whether Actionable and where to call one so p. 519. Sect. 9. Willows whether Tithable p. 457. Witness one single Witness disallowed in the Ecclesiastical Court for sufficient proof whether Prohibition lies in that case p. 113 114. Sect. 11. p. 115. Sect. 12. p. 116. Sect. 12. p. 123. Sect. 26. p. 128. Sect. 43. Witch or the Son of a Witch whether those words are Actionable p. 524. Sect. 24. Wolsey Cardinal impower'd by the Popes Bull to retain the Archbishoprick of York and the Abbey of St. Albans in Commendam p. 111. Sect. 8. Wolstan Bishop of Worcester his Resolute Answer to King William the Conquerour p. 97. Sect. 1. Wood the Law in reference to the Tithe thereof p. 458 to 462. Computed among the Predial and Great Tithes by whom payable whether by the Buyer or the Seller whether due for Fuel spent in the Parishioners house p. ibid. In what sense it may be either Great or Small Tithes p. 365 366. Sect. 32. Whether Wood Tithable at the Common Law p. 372. Sect. 46. Wood for Hedging and Firing whether Tithable p. 369 370. Sect. 42. In what case the Vicar may have the Tithe thereof p. 381. sect 79. Wool the Law in reference to the Tithes thereof p. 198. sect 3. p. 359. sect 16. p. 366. sect 32. Of Sheep pastured in divers Parishes p. 462 c. Of Rotten Sheep whether Tithable p. 359. sect 15. Worcester-Church anciently a Priory p. 74. sect 10. Words of Contention in the Church or Church-yard how punished p. 139. sect 6. Writ of Right of Advowson for whom it lies p. 214 215. sect 17. The Writ De Haeretico Comburendo when taken away and abolished p. ult sect ult Y YOrk the Original of that Metropolitan See p. 14. sect 2. It anciently had a Metropolitan Jurisdiction over all the Bishops in Scotland p. 18. sect 9. ERRATA PAg. 25. lin 25. read Potestatem p. 35. l. 2. Archidiaconum p. 200. l. 37. Provenues p. 203. l. 7. Vicaria p. 205. l. 5. be with the Cure p. 209. l. 3. An. 1505 p. 285. l. 17. to his Father by the true p. 293. l. 31. too late p. 403. l. 38. Mepham's Canon p. 448. l. 23. to the Parson p. 470. l. ult Adulterum p. 471. l. 7. Hoel Dha p. 439. l. 15. Cognatio p. 497. l. 11. Adulterous Wife p. 501. l. 7. Thore p. 503. l. 6. Viro p. 530. l. 40. Crown p. 543. l. 18. Pardon l. 40. Doctors Advertisement THE ORPHANS LEGACY or a Testamentary Abridgment in Three parts viz. 1. Of Last Wills and Testaments 2. Of Executors and Administrators 3. Of Legacies and Devises Where the most material Points of Law relating to that subject are succinctly Treated as well according to the Common and Temporal as Ecclesiastical and Civil Laws of this Realm Illustrated with a great variety of select Cases in the Law of both Professions as well delightful in the Theory as useful for the practice of all such as study the one or are either active or passive in the other By the Author
Secular who within that Province whereof he is Archbishop hath next and immediately under the King Supream power Authority and Jurisdiction in all causes and things Ecclesiastical Of such there are only Two in England one of the Province of Canterbury styled Metropolitanus Primas Totius Angliae the other of York styled Primas Metropolitanus Angliae Under the two Archbishops are twenty six Bishopricks whereof twenty two in the Province of Canterbury and four in the Province of York so that besides the two Archbishops there are twenty four Bishops The Christian Religion in England took root first in the See of Canterbury St. Austin who first preached the Gospel to the one was the first Archbishop of the other Canterbury once the Royal City of the Kings of Kent was by King Ethelbert on his Conversion bestowed on St. Augustine the Archbishop and his Successors for ever and so the Chair thereof became originally fixed in that City of Canterbury Cantuarienses Archiepiscopi Dorovernenses antiquitus dicti sunt quia totius Anglicanae Ecclesiae Primates Metropolitani fuerunt The Archbishop whereof being styled Primate and Metropolitan of all England is the first Peer of the Realm and hath Precedency not only before all the Clergy of the Kingdom of England but also next and immediately after the Blood Royal before all the Nobility of the Realm Sr. Edward Cokâ— says more and lets us to understand That in Ancient time they had great Precedency even before the Brother of the King as appears by the Parliament Roll of 18 E. 1. and many others which continued until it was altered by Ordinance in Parliament in the Reign of H. 6. as appears by a Roll of Parliament of that Kings Reign entred in the Back of the Parliament Roll. The Precedency in Parliament and other Places of Council at this day is That the two Archbishops have the Precedency of all the Lords Temporal and every other Bishop in respect of his Barony hath place of all the Barons of the Realm and under the estate of the Viscount and other Superiour Dignities And at this day in all Acts Ordinances and Judgments c. of Parliament it is said The Lords Spiritual and Temporal The Bishops among themselves have this Precedency 1. The Bishop of London 2. The Bishop of Duresme 3. The Bishop of Winchester The Archbishop of Canterbury as he hath the Precedency of all the Nobility so also of all the great Officers of State He writes himself Divina Providentia whereas other Bishops only use Divina Permissione The Coronation of the Kings of England belongs to the Archbishop of Canterbury and it hath been formerly resolved that wheresoever the Court was the King and Queen were Speciales Domestici Parochiani Domini Archiepiscopi He had also heretofore this Priviledge of special remark That such as held â—ands of him were liable for Wardship to him and to compound with him for the same albeit they held other Lands in chief of our Sovereign Lord the King All the Bishopricks in England except Duresme Carlisle Chester and the Isle of Man which are of the Province of York are within the Province of Canterbury The Archbishop whereof hath also a peculiar Jurisdiction in thirteen Parishes within the City of London and in other Diocesses c. Having also an Ancient Priviledge That wherever any Mannors or Advowsons do belong to his See they forthwith become exempt from the Ordinary and are reputed Peculiars and of his Diocess of Canterbury If you consider Canterbury as the Seat of the Metropolitan it hath under it twenty one Suffragan Bishops whereof seventeen in England and four in Wales But if you consider it as the Seat of a Diocesan so it comprehends only some part of Kent viz. 257 Parishes the residue being in the Diocess of Rochester together with some other Parishes dispersedly scituate in several Diocesses it being as aforesaid an Ancient Priviledge of this See that the places where the Archbishop hath any Mannors or Advowsons are thereby exempted from the Ordinary and are become Peculiars of the Diocess of Canterbury properly belonging to the Jurisdiction of the Archbishop of Canterbury whose Provincial Dean is the Bishop of London whose Chancellour is the Bishop of Winchester whose Vice-Chancellour anciently was the Bishop of Lincoln whose Precentor the Bishop of Salisbury whose Chaplain the Bishop of Worcester and the Bishop of Rochester when time was carried the Cross before him Lind. Const de Poenis gl ibid. c. 1. ver tanquam 2. The Metropolitan See of York had its Original at the first reception of the Gospel in England when King Lucius established Sampson the first Archbishop thereof Not long after the Conversion of the Saxons Paulinus by Pope Gregory's appointment was made Archbishop thereof An. 622. This Province of York anciently claimed and had a Metropolitan Jurisdiction over all the Bishops of Scotland whence they had their Consecration and to which they swore Canonical Obedience The Archbishop of York styles himself Primate and Metropolitan of England as the Archbishop of Canterbury Primate and Metropolitan of All England About two hundred years since viz. An. 1466. when George Nevil was Archbishop of York the Bishops of Scotland withdrew themselves from their obedience to him and had Archbishops of their own The Archbishop of York hath precedency before all Dukes not being of the Blood Royal as also before all the Great Officers of State except the Lord Chancellour Of this Province of York are the Bishopricks of Duresme Chester Carlisle and the Isle of Man who write themselves Eboracenses or Eborum The Diocess belonging to this See of York contains the two Counties of York and Notingham and in them 581 Parishes whereof 336 are Impropriations 3. It hath been question'd whether there be any difference between Archbishop and Metropolitan the DD. herein seem to be divided some conceiving that there is some difference between them others affirming that they are both one the Canon Law seems in a sense to favour each of these Opinions saying in one place that the Archbishop as President hath the charge and oversight of the Metropolitans and other Bishops 21. Dist Cleros In another place That Archbishop and Metropolitan are but one and the same in deed and in truth although they differ in Name Wilhel in Clem. ult de Privileg verb. Archiepiscopo vers fin Metropolitanus Archiepiscopus idem sunt Sed Metropolitanus nomen trahit à numero Ecclesiarum viz. à metro mensura polis Civitas Otho glo in verb. Archiepiscopus De Offic. Archiepisc He is called Archiepiscopus quasi Princeps Episcoporum in respect of the other Bishops whereof he is chief and Metropolitanus in respect of the number of the Cities or Cathedral Churches where the Bishopricks are Lindw ubi supr gl ib. ver Metropolitanum For the word Civitas doth signifie with us as it doth in other Kingdoms such a Town
them offend in any of the Premisses the persons deputing them if they be Bishops shall upon Admonition of their Superiour discharge the persons exceeding the Number so limited as aforesaid But if they were deputed by Inferiour Ordinaries such Ordinaries shall be suspended from the execution of their Office until they have dismiss'd the supernumerary Apparitors by them so deputed and the parties themselves so deputed shall for ever be removed from the Office of Apparitors And in case being so dismiss'd and removed they do not desist from the execution of their said Offices they are by the first said Canon to be proceeded against and punished by Ecclesiastical Censures as persons contumacious to the Jurisdiction And finally if upon experience the number of the said Apparitors be too great in any one Diocess in the judgment of the Archbishop of Canterbury for the time being in that case he is by the said Canon impower'd to abridge them to such a number as to himself shall seem meet and expedient An Apparitor came to the Church of a Parson and said to him He is to pay Tenths to such a one at such a place four miles distant from the Church to whom the Parson did not pay them and thereupon the Bishop Certified That he refused to pay them according to the Statute of 26 H. 8. It was Resolved The Demand was not according to that Statute and the Summons to pay them not according to the Statute for the Demand ought to have been by one who hath authority to receive them which the Summoner had not And they held the Demand not good although the Bishop certified it was duly made And in the Case between the Queen and Blanch it was Resolved That the Certificate of the Bishop that the Incumbent refused to pay his Tenths is not Peremptory but Traversable and that the Demand of the Tenths must be at the house of the Incumbent and the Refusal there More 's Rep. 1225. In a Action upon the Case against the Defendant the Case was this A Summoner in the Ecclesiastical Court having a Citation against the Plaintiff Returned That he had Summoned the Plaintiff whereas in truth he never Summoned him for which the Plaintiff was Excommunicated to his great dammage It was adjudged that the Action did lie 13. By the Premisses it is manifest that the Canon is very strict and exact both in abridging the Number and redressing the Abuses incident to the Office of Apparitors which Canon in most Circumstances seems to run very parallel with that in the Provincial Constitutions Lindw Provin Constit de Censibus Procur cap. cum Apparitorum the light whereof did probably influence it into that Form wherein we now find it For by that Decree of the said Provincial Constitunions it is Ordained That a Bishop shall have unum Apparitorem Equitantem duntaxat where the Gloss well observes that by this non prohibetur Episcopo quin plures habeat pedites And every Archdeacon one in every Deanary non Equitantem sed peditem where the Bishop might also appoint Apparitors as also in Rural Deanaries Gloss ibid. verb. Duntaxat And in case more than these were Deputed or they found to offend in their Office the Penalty was as above-said Deputantes sint suspensi donec c. Deputatos ab Officio Apparitorum perpetuo suspendimus ipso facto Constit ibid. 14. Action upon the Case For that the Defendant being an Apparitor under the Bishop of Exeter maliciously and without colour or cause of suspicion of Incontinency of his own proper malice procured the Plaintiff Ex Officio upon pretence of Fame of Incontinency with one Edith whereas there was no such Fame not just cause of Suspicion to be cited to the Consistory Court of Exeter and there to be at great charges and vexation until he was cleared by Sentence which was to his great discredit and cause of great Expences and Losses for which c. upon Not guilty pleaded and found for the Plaintiff it was moved by Ashley Serjeant in Arrest of Judgment That in this Case an Action lies not For he did nothing but as an Informer and by virtue of his Office But all the Court absente Richardson held That the Action well lies For it is alledged That he falso malitiose caused him to be Cited upon pretence of Fame where there was no offence committed And avers That there was not any such Fame so as he did it maliciously and of his own head and caused him to be unjustly vexed which was to raise gain to himself whereupon they conceived That he being found guilty for it the Action well lies And therefore Rule was given to enter Judgment for the Plaintiff unless other cause was shewn And upon a second motion Richardson Ch. Justice being present Judgment was given for the Plaintiff The Consistory of the Bishop may in some Cases enjoyn Penance Where Penance is enjoyned there may be Commutation but there may not be Commutation for Penance where none is enjoyned Commutation for Penance agrees with the Customes used in the Ecclesiastical Law justified in the Common Law in the Statute of Circumspecte agatis in the time of Ed. 1. and Articuli Cleri in the time of Ed. 2. Vid. Mich. 21. Jac. B. R. Dr. Barker 's Case in Camera Stellata Roll's Rep. 15. Commissary Commissarius is a Title of Ecclesiastical Jurisdiction adapted to such one as doth exercise the same in such remote places of the Diocess and at such distance from the Bishops chief Consistory as that his Chancellor cannot without too great a prejudice conveniently call the Subjects to the same The duty of such Commissary or Officialis Fâ—ranei is to officiate the Bishops Jurisdiction in the remoter parts of the Diocess or in such Parishes as are the Bishop's peculiar and exempt from the Archdeacon's Jurisdiction The Authority of the Commissaries of Bishops is only in some certain place of the Diocess and some certain causes of the Jurisdiction limited unto them by the Bishops for which reason the Law calls them Officiales Foraneos quasi Officiales astricti cuidam foro Dioeceseos tantum Gloss in Clem. de Rescript And by the Canons and Constitutions Ecclesiastical no person may be a Commissary or Official under the Age of 26 years being at least a Master of Arts or Bachelor of Law Yet in the Argument of Buries Case for a Divorce the 5 Rep. 98. there was cited 35 Eliz. B. R. rot 605. That if a Lay-man be made a Commissary by the Bishop it is good until it be undone by Sentence although that the Canon says That he ought to be a Doctor or a Bachelor of Divinity But 21 H. 8. hath limited That a Doctor of the Civil Law may be a Commissary 16. Where a Commissary citing many persons of several Parishes to appear at his Visitation-Court Excommunicated them for not Appearing a Prohibition was granted because the Ordinary hath not
power to cite any to that Court but the Church-Wardens and Sides-men and those he may Impannel and give Articles to them for to enquire as the Justices of Assize Vid. N. B. 41. 17. The Dean of the Deanary of Wolverhampton annexed to the Deanary of Windsor being a Peculiar and having Ordinary Jurisdiction makes a Commissary by his Deed which is Confirmed by the Chapter The Dean dies The question was if that was good to bind his Successor By Doderidge That such a Jurisdiction is Judicial and that Grant is but a Commission and Authority all times remaining in the Ordinary True it is That Ecclesiastical Jurisdiction in Judicial Acts may be executed by a Substitute but in Law they are the Acts of them who Substitute the other Vid. 11 H. 4. 64. a. 7 E. 4. 14. 20 H. 6. 1. That a Commissary may Excommunicate and prove a Testament But that shall be made in the name of the Ordinary 20 E. 3. And a Grant of that by the Bishop is not good but during his life and shall not bind the Succâ—ssor For the Law hath appointed that he shall exercise that Jurisdiction Sede vacante c. The Grant being void cannot be made good by the Confirmation of the Chapter Coke Chief Justice If that should be a good grant to bind the Successor then the Successor cannot remove him And yet the Successor shall answer for the Acts and Offences of the Commissary which would be too hard 18. In Walker's Action upon the Case against Sir John Lambe For disturbance of the Plaintiff in exercising of the Officialty of the Archdeaconry of Leicester granted by the Archdeacon of Leicester and of the Office of Commissary of the Bishop of Lincoln Upon Not guilty pleaded a special Verdict was found That there were Ancient offices granted by c. and Offices of Judicature always granted to one person for life until 1609 and in 30 Eliz. so granted to Dr. Chippindale and after in 1609 granted to him and one Ed. Clerk for their Two lives no Surrender being actually made by Dr. Chippendale Afterwards 1614 both Offices were granted the one by the Archdeacon the other by the Bishop to Sir Jo. Lambe and to the said Ed. Clerk and these Grants confirmed by the Dean and Chapter That in An. 1622. Dr. Chippendale died and afterwards the Archdeacon who granted that Office and the Bishop who granted the Office of Commissary died and the Bishop of Lincolne who now is and the now Archdeacon by several Patents granted these Offices to the Plaintiff who was at the time of the Grant of the Patent a Lay-person and Bachelor of the Civil Law only And they find the Stat. of 37 H. 8. c. 17. That Lay-persons married or unmarried being Doctors of the Civil Law may be Commissaries Officials Scribes or Registers and that the Plaintiff exercised these Offices and the Defendant disturbed him Upon this the matter being argued at the Bar was reduced only to these Two Questions 1 Whether the Patent to the Plaintiff being a Lay-person and not a Doctor of the Law were good or restrained by the Statute of 37 H. 8. And as to that point all the Court conceived The Grant was good for the Statute doth not restrain any such Grant And it is but an affirmance of the Common Law where it was doubted if a Lay or Married person might have such Offices and to avoid such Doubts this Statute was made which explains That such Grants are good enough and it is but an Affirmative Statute and there is no restriction therein And although Doctors of the Law though Lay-persons or Married shall have such Offices yet this is not any restriction That none others shall have them but Doctors of the Law and the Statute mentions as well Registers and Scribes as Commissaries and that a Doctor of the Law shall have them yet in Common experience such persons as are meerly Lay and not Doctors have enjoyed such Offices And for this very point was a Case in this Court Hill 35 Eliz. Rot. 181. between Pratt and Stock where upon Demurrer this Statute was pleaded against the Plaintiff to whom a Commissaryship was granted being but a Bachelor of Law and he having granted Administration the Grant was adjudged good and the Book of Entries 484 489. was allowed good wherefore they Resolved the Grant was well enough And it was also Resolved That where an Officer for life accepts of another Grant of the same Office to him and to another it is not any Surrender of the first Grant The Second point was Whether the office of the Officialty of the Archdeaconry and the office of the Commissary of the Bishop be grantable by the Statutes of 1 Eliz. and 13 Eliz. because it was pretended they were not parcel of the Possessions of the Bishoprick or Archdeaconry so as they could have any profits by them and then the Statute doth not restrain the Grants of them But all the Court Resolved They were within the words and intent of the Statutes for they be Hereditaments and are pertaining unto them And that a Grant of these Offices to Two where they were only grantable to One for life and being granted in Reversion it is a void Grant by the Statutes against the Successors For the Statutes restrain all Grants of any thing to be avoidable against the Successor besides Grants of necessity and Leases for Three lives or 21 years where the ancient Rent is reserved And all other Grants as well of Offices as of other things not warranted by the Statutes are made void as against the Successors Vid. Coke 10. fo 60. the Bishop of Salisbury's Case Coke 5. fo 14. and a Case betwixt Vaughan and Crompton 14 Jac. at the Assizes before the Justices of the Assize for the Office of the Registership in Suffolk and between Johns and Powell for the Registers place of Hereford where it was Adjudged That such Offices granted in Reversion were void whereupon Rule was given That Judgment should be enter'd for the Plaintiff unless other cause were shewn And afterward being moved again Judgment was given for the Plaintiff 19. Noy Attorney Reports the foresaid Case of Dr. Sutton in this manner viz. That he was deprived of the office of Official of Gloucester by the Commissioners 3 Jac. appointed to examine the defects of Chancellors and that he was not read in the Canon or Civil Law He said That time out of mind c. the Bishops have used in their Diocesses to bestow the Chancellorship and that A. the Bishop of c. had made him Chancellor by Deed and that was Confirmed by the Dean and Chapter by which he had a Frank-tenement in that Office c. And Mr. Glanvile moved for a Prohibition but it was denied by the Court for it is lawful for the Commissioners to deprive for Insufficiency that being within their Commission But in a Suit in the Ecclesiastical Court for the Profits of that
c. may have an Action of Trespass 36. In an Action upon the Case D. shewed he was seized of a Messuage and Land in P. to the same belonging and in the Parish of P. time whereof c. and yet is a Chappel in the North part of the Chancel called the Parsons Chancel and the Plaintiff and all those c. have used to sustain and repair the said Chancel and have used for him and his Family to sit in Seats of the said Chancel and to Bury there the persons dying in the said Messuage and that none other during all the said time c. without their License have used to sit there or to be buried there and that the Defendants Praemissorum non ignari malitiose impediverunt him to enter and sit in the said Seats The Defendant said That the Earl of N. was seized of the Honour of F. and the said Chappel was parcel of the said Honour and that the Defendants being Servants of the said Earl and resident within the said Honour did divers times in the time of Divine Service sit in the Seats of the said Chancel by the command of the said Earl upon which it was Demurred Exceptions were taken to the Declaration because he prescribes to have a Liberty appertaining to his House and doth not shew it is an Ancient House And 2 That the Allegation of the disturbance was ill being general without alleding a special Disturbance and how he was disturbed Resolved That when it is supposed he is seized in Fee of a Capital Messuage and time c. it is there included that it is an ancient Messuage and so might have such a priviledge And for the second it is sufficient to alledge a general Disturbance as is usual in the Case of a Fair or Market 37. D. was Indicted upon the Statute of 5 E. 6. for striking in Paul's Church-yard he pleaded that he was by the Queens Letters Patents created Garter King of Arms and demanded Judgment because he was not so named It was the opinion of the Court that because it was a parcel of his Dignity and not of his Office only and because the Patent is Creamus coronamus nomen imponimus de Garter Rex heraldorum that therefore in all Suits brought against him he ought to be named by this name and thereupon he was discharged of the Indictment And in Penhallo's Case who was Indicted upon the same Statute for drawing of Dagger in the Church of B. against J. S. and doth not say with intent to strike him for which cause the Judgment was quashed Likewise in Child's Case who was Indicted for striking in the Church-yard and it was apud generalem Sessionem Pacis tent apud Blandford and it was not said in Comitatu praedicto for which reason the party was discharged though the County was in the Margin 38. In Pym's Case before-mentioned Corven did Libel in the Ecclesiastical Court against Pym for a Seat in a Church in Devonshire And Pym by Serjeant Hutton moved for a Prohibition upon this Reason That himself is seized of a House in the said Parish and that he and all whose Estate he hath in the House have had a Seat in an Isle of the Church And it was Resolved by the Court That if a Lord of a Mannor or other person who hath his House and Land in the Parish time out of mind and had a Seat in an Isle of the same Church so that the Isle is proper to his Family and have maintained it at their charges That if the Bishop would dispossess him he shall have a Prohibition But for a Seat in the Body of a Church if a question ariseth it is to be decided by the Ordinary because the Freehold is to the Parson and is common to all the Inhabitants And it is to be presumed That the Ordinary who hath cure of Souls will take order in such cases according to right and conveniency and with this agrees 8 H. 7. 12. And the Chief Justice Damc Wick her Case 9 H. 4. 14. which was The Lady brought a Bill in B. R. against a Parson Quare tunicam unam vocatam A Coat Armor and Pennons with her Husband Sir Hugh Wick his Arms and a Sword in a Chappel where he was buried and the Parson claimed them as Oblations And it was there held That if one were to sit in the Chancel and hath there a place his Carpet Livery and Cushion the Parson cannot claim them as Oblations for that they were hanged there is honour of the decased The same reason of a Coat-Armour c. And the Cbief Justice said The Lady might have a good Action during her life in the case aforesaid because she caused the things to be set up there and after her death the Heir shall have his Action they being in the nature of Heir-Looms which belong to the Heir And with this agrees the Laws of other Nations Bartho Cassanae fo 13. Con. 29. Actio datur si aliquis Arma in aliquo loco posita deleat aut abrasit c. And in 21 Ed. 3. 48. in the Bishop of Carlisle's Case Note That in Easter-Term it was Resolved in the Star-Chamber in the case between Hussey and Katherine Leyton That if a man have a House in any Parish and that he and all those whose Estate he hath have used to have a certain Pew in the Church that if the Ordinary will displace him he shall have a Prohibition but where there is no such prescription the Ordinary will dispose of common and vulgar Seats 39. In the County of Dorset there was a Mother-Church and also a Chappel of Ease within the same Parish they of the Mother-Church did rate and tax them of the Chappel of Ease towards reparations of the Mother-Church for the which upon their refusal to pay the same being sued in the Ecclesiastical Court they prayed a Prohibition and for cause alledged That they themselves have used time out of mind c. to repair the Chappel at their own proper cost without having any Contribution at all from them of the Mother-Church and that they have been exempted from all charges and reparations of the Mother-Church and yet for their refusal to pay this Tax they were libelled against in the Ecclesiastical Court and a Sentence there passed against them they therefore prayed a Prohibition By the opinion of the whole Court a Prohibition lieth not in this case in regard that this Prescription is meerly Spiritual and therefore a Prohibition denied per Curiam 40. One was presented ex Officio in the Ecclesiastical Court for the not frequenting of his Parish-Church he there pleads That this was not his Parish-Church but that he had used to frequent another Parish Church and to resort unto that And because they in the Ecclesiastical Court would not receive his plea the Court was moved for a Prohibition for that by the Law in the
time of King H. 3. Ed. 3. and Ed. 4. they in the Ecclesiastical Court have not any power to intermeddle with the Precinct of Parish-Churches neither are they there to Judge what shall be said to be a mans Parish-Church And so was the Opinion of the whole Court and therefore by the Rule of the Court a Prohibition was granted 41. Touching the Reparations of a Church and who were liable thereunto this being a question coming in debate before the Judges It was Resolved by the whole Court That for and towards the Reparation of a Church the Land of all as well of Foreigners there not inhabiting as of all others is liable thereunto and this is so by the general custome of the place and this is to be raised by a Rate imposed according to the value of the Land and that in the nature of a Fifteen and this is not meerly in the Realty Williams and Yelverton Justices and Flemming Chief Justice Not the Land but the person of him who occupieth the Land is to be charged Yelverton Justice A man is chargeable for Reparations of a Church by reason of the Land and for the Ornaments in the Church by reason of his coming to Church Williams Justice and Flemming Chief Justice If the person have Land there he is chargeable for both whether he come to Church or not for that he may come to Church if he please 42. In a Prohibition the Case was this The Defendant did Libel before the Bishop of London in the Consistory Court for a Seat in the Church Sentence there passed against the Defendant whereupon he Appealed to the Arches The Court was moved for a Prohibition in regard the Title to the Seat or Pew was grounded upon a Prescription The Court answered c. As for the Title we are not here to meddle with it this being for a Seat in the Church Haughton Justice This Disposition of Pews in the Church belongs of right to the order and discretion of the Ordinary and to this purpose is the case of 8 H. 7. fo 12 and Sir William Hall's case against Ellis Doderidge Justice I moved this case in the Court of C. B. and it was for a Seat in the Church An Action there brought for Disturbance and I there cited Hall's case and 9 E. 4. fo 14. The Case of the Grave-Stone and Coat-Armor for the taking of which an Action of Trespass lies at the Common Law and therefore by the same reason an Action of Trespass should lie for such a Disturbance in a Seat of a Church but there the Judges did all of them say That they would not meddle with the deciding of such Controversies for Seats in the Church but would leave the same to them to whom more properly it belonged Croke Justice Hall's case was this where a man did build an entire Isle in the Church and was at continual charge to repair it if he be disturbed in the use of this he shall for this Disturbance have his remedy at the Common Law and so it hath been adjudged But the Judges all said We are not here to meddle with Seats in the Church Doderidge Justice This Appeal here is like unto a Writ of Error at the Common Law but it doth differ in this By the Appeal the first Judgment or Sentence is suspended but after a Writ of Error brought the first Judgment still remains until it be reversed Coke Chief Justice It was Pym's Case in the Common Bench and 8 H. 7. fo 12. that the Ecclesiastical Court hath Jurisdiction and power to dispose of Pews and Seats in the Church But if there be an Isle built by a Gentleman or by a Nobleman and he hath used to Bury there and there hath his Ensigns of Honour as a Grave-stone Coat-Armor or the like which belongs not unto the Parson if he take them the Heir may well have an Action of Trespass Otherwise it is where the same is repaired at the Common charge of the Parish there they have the disposing of them Ellis and Hall's Case remembred a Kentish Case there the Seat was repaired by him and was belonging to his Capital Messuage by Prescription and so triable at the Common Law And so where the Case is Special that the party doth wholly and solely repair the same in such a case if a Suit be there concerning such a Seat a Prohibition well lieth but not otherwise But if a Nobleman comes to dwell in the Countrey he is now within the sole order and dispose of the Ordinary for his Pew and Seat in the Church and upon the former difference was Pym's case adjudged in the C. B. in this principal Case a Prohibition was denied by the whole Court CHAP. XIII Of Churchwardens Questmen and Sidemen 1. What such are in construction of Law how the choice of them is to be made and wherein the Office doth consist 2. What Actions at Law may lie for or against them 3. Whether Actions lie for the New Churchwardens in Trespas done in time of their Predecessors 4. Certain things appertaining to the Church within the charge and office of Churchwardens to provide and preserve 5. Cases in Law touching the Election of Churchwardens 6. What Sidemen or Questmen are and their duty 7. Action at Law against Churchwardens touching Distress taken by them for money for relief of the Poor 8. A Churchwarden refusing to take the Oath of Enquiry on the 39 Articles Action thereon 9. What remedy in case the Archdeacon refuses to Swear the Church-wardens Elect. 10. The Injunctions of King Ed. 6. touching all Marriages Baptisms and Burials to be Registred in the presence of the Churchwardens 11. Whether the Release of one Churchwarden shall be a Bar to his Companion in an Ecclesiastical Suit commenced by them both 12. Prohibition where Churchwardens have pretended a Custome to chuse the Parish-Clerk 13. The like upon a Presentment by Churchwardens against one in matter more proper for a Leet than the Ecclesiastical Court to take cognizance of 14. The prevalency of Custome against a Canon in choice of a Churchwarden in reference to a Vicar and the Parishioners 15. If question be whether Lands next adjoyning unto a Church-yard shall be charged with the repairs of the Fences thereof and Custome pleaded for it in what Court cognizable 16. In Action of Account by Parishioners against Churchwardens by whom a Release of Câ—sts is pleaded but disallowed in the Ecclesiastical Court whether Prohibition lies in that case 17. Whether Churchwardens are a Corporation qualified for Lands as well as Goods to the use of the Church 18. The Churchwardens disposal of Goods belonging to the Church without the assent of the Sidemen or Vestry void 19. Churchwardens not Ecclesiastical Officers but Temporal employed in Ecclesiastical Affairs Before whom are they to Account 20. Whether Churchwardens may have Action for Trespass done to the Church in their Predecessors time 21. Whether the Parishioners by force of a
Mannor with the Advowson appendant the Church void grants the Mannor with the Advowson 20. Of Advowsons there are three Original Writs at the Common Law 21. The Advowson of a Vicarage whether it belongs to the Patron or the Parson 22. Whether an Advowson may properly be said to be a Demesn several matters of Law in reference to Advowsons Appendant and in Gross in respect of the King and Common persons 23 Whether a Donative in the Kings Gift may be the Cure of Soul 24. Whether by the Grant of a Vicarage the Advowson of the Vicarage shall pass The grant of a next Avoydance during an Avoydance is void 1. ADvowson is a kind of Reversionary right of Presentation to an Ecclesiastical Benefice in a man and his Heirs for ever It is the same which the Canon Law understands by Jus Patronatus or the Right which a man and his Heirs have to present their Clerk to the Ordinary for a Parsonage or other Spiritual Benefice when it becomes void and he in whom such Right resides is called the Patron Jus Patronatus est Potestas Praesentandi aliquem Instituendum ad Beneficium Ecclesiae Simplex vacans Hostiens de jure Patronat Jus Patronatus est jus Honorificum Onerosum Vtile It is a Right to present to the Bishop or Ordinary a fit person by him to be Admitted and Instituted into a Spiritual Benefice when it becomes void The unlawful Possessor is the Usurper against whom only lieth three Writs one of the Right as the Writ of Right of Advowson and the other two of the Possession As a Quare Impedit and Darrein Presentment And the Incumbent as to his Right for his Rectory hath the Writ of Juris Vtrum And Advowson is not Haereditas corporata as a Messuage Land or Pasture c. But it is Haereditas Incorporata as Wayes Common Piscaries Courts c. which are and may be Appendant to Inheritances Corporate Advowson is a kind of Bastard-French word sometimes called Advocatio Ecclesiae either because the Patron thereof claiming his Jâ—s Patronatus therein Advocat se in his own Right unto the same eamque esse sui quasi Clientis Loco or rather because the Patron in his own right Advocat alium to the Church being vacant and presents him unto it Loco alterius veluti Defuncti Thence called sometimes Patron sometimes Advocati for they who originally obtained a Right to present to any Church were either the Founders or Builders or Benefactors of the same Decretal c. 4. 24. de jure Patronat Plow 495. Dy. 48. Co. 1. 102. 4. 37. 6. 39. Litt. 119 120. Patronum faciunt Dos Aedificatio Fundus And although Advowsons are now as other Temporal Inheritances grantable by Deed and so in that respect cognizable at the Common Law yet inasmuch as they are the same which the Canon Law calls Jus Patronatus it cannot be denied but that they are within the Ecclesiastical Jurisdiction and therefore although the Patron may have his Action against the Ordinary in a Temporal Court by a Quare Impedit for rejecting his Clerk yet the Ordinary may Decree a Process de Jure Patronatus in the case to enquire by a Mixt Jury of Ecclesiastical and Lay-men touching the said Advowson or Right of Patronage according to the Laws and Customes of the Church 2. There is an usual difference taken between Advocatio medietatis Ecclesiae and Medietas Advocationis Ecclesiae The former is where two Patrons be and every of them having Right to Present a several Incumbent to the Bishop to be Admitted into one and the same Church for divers may be several Parsons and have Cure of Souls in one Parish and such Advowson is alike in every of these Patrons but every of their Presentments is to the moity of the same Church and therefore it is called Advocatio Medietatis Ecclesiae or as the case may be Advocatio Tertiae partis Ecclesiae and the like The latter viz. Medietas Advocationis Ecclesiae is after partition between Parceners for although the Advowson be entire amongst them yet any of them being disturbed to present at his Turn shall have the Writ of Medietate or of Tertia or of Quarta parte Advocationis Ecclesiae as the Case is And this difference is taken and observed only in the Writ of Right which is altogether grounded upon the Right of Patronage But in the Quare Impedit which is only to recover Dammages no such diversity is considered but the Writ is general Praesentare ad Ecclesiam Doderidge of Advowsons Lect. 4. Of Advowsons there are two sorts The one that in Gross which is Sole or Principal not adhering or belonging to any Mannor or to any part or parcel thereof as of the Right thereof The other Appendant or Dependant or depending on a Mannor as appertaining or belonging thereto which is by Kitchin termed an Incident that may be separated from the Subject Again Sometimes the word Advowé or Avowé is also used for him who hath a Right in his own Name to present to a Benefice or other Ecclesiastical Living where you have also Advowe paramount or the highest Patron an Appellation peculiar to the King So that this Advocatus is he to whom such jus advocationis alicujus Ecclesiae belongeth as that he may Present to the Church in his own but not in anothers Name And Fitzherbert useth it in the same signification 3. Consonant to the practice at this day touching Advowsons was the Emperour's Novell Decreed about 1100 years since towards the end of the Fifth Century to this purpose That if any man shall erect an Oratory and his desire be to Present a Clerk thereunto by himself or his Heirs if they furnish the Clerk with a Competency and Nominate to the Bishop such as are worthy they may be Ordained But if those who are intimated by them be rejected by the Canons as unworthy of the Ministry then let it be the care of the most Reverend Diocesan of the place to Present such as in his discretion he shall conceive better of And Panormitan clearly interprets the Emperour's mind herein and gives us the very meaning and original of the Patron 's Right in this point of Advowsons he says That this is Jus honorificum onerosum utile belonging to any in the Church for that with the Diocesans consent he hath Founded Built and Endowed a Church he hath given a piece of Ground C. nobis c. de jur Patronat and erected a Church thereon 16. q. 7. c. Monasterium and Endowed it C. Piae mentis ibid. and was therefore qualified with the Right of Patronage And indeed the Diocesans consent herein is so requisite that by the Canon Law it seems scarce feazable for a man to be a Patron without it Si quis Ecclesiam cum assensu Dioecesani construxit ex eo Jus Patronatus acquirit Clement c. Nobis de Jur. Patron And when a
in strictness of Law by the words cum pertinentiis yet it shall be intended in respect of the Ancient and continued possession that there was a lawful Grant of the King to H. B. c. and all shall be presumed to be done which might make the Ancient Appropriation good And the Reason thereof there given is for that if the Appropriation had been drawn in question in the Life-time of any of the Parties to it they might have shewed the truth of the matter But after so many Successions of Ages in which the Church was esteemed to be rightfully Appropriated the Appropriation shall not now be drawn in question For the same reason a Procedendo was refused to be granted in Chancery in the Case of the Lord St. John of Bletso and the Dean and Chapter of Gloucester the Court then giving for Reason because the Defendant and those from whom he claimed time out of mind had had the possession of a Parsonage as Impropriate saving for some short time and because it shall be a dangerous President for Owners of Impropriations to maintain the Appropriations to be Perfect in all points and circumstances requisite to an Absolute Appropriation the Appropriations being made of Ancient time The like Resolution was given by the Court in Hunston and Cockett's Case viz. That whether an Appropriation be good or not cannot now be called into question but shall be intended to be good and to all requisite Circumstances 7. An Appropriation cannot in any case be made by the Patron himself only yet where the King is Patron it may be made by him Sole And although upon every Appropriation there ought to be an Endowment of a Vicar yet a Vicarage it self Endowed may as hath been held by the whole Court be Appropriated but not to the Parson and as in the Book 21 H. 6. is such a Vicarage as may afterwards be dissolved And if a Lease be made of a Parsonage Impropriate by one who hath not any thing therein during the life of the Incumbent it will be void nor can an Appropriation be made to a Church which is Full of an Incumbent but by Special words It hath also been held That a Vicarage Perpetual could not be dissolved after the Statute of 4 H. 4. and that the Pope had not any power to make any Ordinance against that Statute by which he hath not any Right to meddle with Advowsons Benefices c. and that by his Bulls he cannot dispence with the Law though they tend in ordine ad Spiritualia 8. Touching Appropriations there were Three considerable Points in Law Resolved by the Justices in Grendon's Case 1 That none is capable of Appropriation but a Body Corporate or Politick Spiritual which hath a Succession For that the effect of an Appropriation as to the first Institution thereof was to make the Body Politick perpetual Incumbent and to have the Rectory and that he hath the Cure of all the Souls of the Parishioners and therefore he must be a Spiritual person 2 That the King Ordinary and Patron ought to be assenting unto every Appropriation and that the Authority which the Pope had usurped in this Realm was by Parliament An. 25 H. 8 acknowledged to be in the King and the King being Supream Ordinary might of his own Authority and Jurisdiction make an Appropriation without the Assent of the Bishop 3 That an Appropriation may be made by Apt words when the Church is Full as to say That the Parson who is a Spiritual person after that the Church shall be void shall be Parson and may retain the Glebe and the Fruits of the Church to his proper use and that the same shall be a good Appropriation when the Church shall be void by death or otherwise 9. It is brought by way of Report to us That it was the Opinion of the Master of the Rolls in the great Case of Consultation which was argued in the Exchequer Chamber the 18 H. 6. 21. a. That an Advowson could not be Appropriate without a Succession although that the Incumbent purchased the Advowson by License to hold to his Own use Where it was further said That if a Prior were seized of an Advowson to him and his Heirs and he purchase License of Appropriation and that he and his Successors might hold the Advowson to their own use yet the Advowson shall descend to his Heirs But in such case if he would have the Appropriation to be good it were best to alien the Advowson and after to re-purchase it to him and his Successors and then the Appropriation will be good All Appropriations have been usually to Corporations or persons Spiritual and not to Bodies Politick consisting of meer Lay-men or Lay-Corporations And in Alden and Tothil's Case it was in question Whether the King since the Statute of 25 H. 8. might by his Letters Patents Appropriate a Church Parochial which was before Presentative unto a Lay-Corporation all the Members of the Corporation being meer Lay-men which Case was not then Resolved 10. As a Church Parochial might be Appropriated so a Church which is Appropriated to a Spiritual Corporation may become disappropriate if the Corporation be-dissolved Also if the Advowson of a Church were by License granted to a Prior and his Successors and afterwards the same Church were Appropriated to him and his Successors so as thereby they became perpetual Parsons Imparsonees In that Case if the Wife of a Grantor were endowed of the Advowson and Presented a Clerk who was Admitted Instituted and Inducted the Appropriation would be defeated for ever for the whole Estate of the Parson Imparsonee is thereby avoided And so it was Adjudged 2 E. 3. 8. sed Quaere For in the Case of Lancaster and Lucas it was held by the Court That in such Case the Church was Disappropriated but during the life of the Wife and after her death it should remain as Appropriated 11. Sir H. Hobart Chief Justice in the Case of Colt and Glover against the Bishop of Coventry and Lichfield says That the proper and operative word that doth Appropriate is to make the Patron and his Successors Perpetual Parsons and in the Case of Wright against Gilbert Gerrard and Richard Hildersham That the Instrument of Appropriation runs in these words That they and their Successors not their Assigns shall be Parsons or by Periphrasis hold the Church in proper use and the words of Appropriating are that they may hold Ecclesiam Rectoriam in proprios usus as in Grindon's Case and says further that Appropriations cannot endure longer than the Bodies whereunto they were first Appropriate because it carries not only the Glebe and Tithes but doth also give the Spiritual Function makes the Parsons of the Church and supplies Institution and Induction 12. A Prior was seized of the Advowson of a Parsonage the Church being void the Bishop gave him License to hold
traditur in Commendam quasi comeditur devoratur and such a Benefice may properly be given in perpetuam Commendam Summa summar tit Commenda art 1 2. And by the Rule of the Canon Law he that comes in per Commendam is not Praelatus sed Procurator tantum est nisi Custos seu Administrator jus in Ecclesia non habet 6. Decretal c. Nemo Constit Othobon de Commendis fo 65. And therewith agrees 27 H. 8. 15. where it is said That the Cardinal of York had the Abbey of St. Albans in Commondam and yet was not the Abbot In this Case of a Commendam in Davis Rep. the Original or invention of a Commendam is ascribed to Pope Leo 4. An. Dom. 848. aut eo circiter as appears lib. Decretal caus 23. q. 2. where it is said Vnde Leo 4. scribit Qui plures Ecclesias retinet unam quidem Titulatam alteram vero sub Commendatione tenere debet For by the Ancient Canons and Councils a man could have but one Benefice and yet it is by experience found convenient that sometimes viz. in case of Necessity or Vtility of the Church a man may have the Charge and Fruits of more Benefices than one therefore was that Distinction invented and allowed that although a man shall have but one Benefice in Titulo yet he may have other Benefices in Commenda viz. That another Benefice may be commended and committed to his Custody and Cure until it be provided with an able Incumbent But afterwards there being great Abuses found in the granting of these Commendams by the Ordinaries for omnium rerum quarum est usus potest esse abusus virtute solum excepta says Aristotle another Canon was made in the Council of Lions An. Dom. 1274. for reformation thereof as appears lib. 6. Decretal de Elect. Elect. potesta c. Nemo Nemo deinceps Parochialem Ecclesiam alicui non Constituto in legitima aetate vel Sacerdotio Commendare praesumat nec tali nisi unam evidenti Necessitate vel Vtilitate Ecclesiae suadente Hujusmodi autem Commendam rite factam declaramus ultra Semestre temporis spatium non durare c. But the Gloss there saith That Ista Constitutio non comprehendit Romanum Pontificem ideo Romanus Pontifex potest Perpetuo Commendare So that the Pope notwithstanding that Canon had power to give Benefices in perpetuam Commendam And indeed after the said Council of Lions as the Pope had reserved to himself the sole power of giving Benefices in perpetuam Commendam so he reduced that power into act and used and practised the same in all Realms of Christendom Specially the Popes that were resident at Avignon in France in the times of King H. 2. Ed. 1. Ed. 2. Ed. 3. were very liberal not only in granting these Provisions contrary to our Statutes made in the times of King Ed. 1. Ed. 3. but in giving all sorts of Ecclesiastical Benefices in Commendam perpetuam And as at first it was done for the support of the Dignity of Cardinals as Pope Clement 6. professed in his Epistle to Ed. 3. Hist Walsingham fo 150. b. yet afterwards these Favours were purchased by other Ecclesiastical persons of all degrees in all Nations specially in England and Ireland And whereas the Canon Law says That a man hath a Cononical Title by virtue of a Commendam that must be understood de Commenda perpetua and not de Commenda Temporali for the Commenda Temporalis is but a kind of Sequestration and may be granted by every Ordinary pro tempore Semestri and therefore such a Commendatary non est Praelatus nec Maritus Ecclesiae nec facit Fructus suos sed est Administrator tantum Custos Ecclesiae And such a Commenda non est titulus nec facit titulum sed est quoddam depositum until the Church be provided with a sufficient Incumbent and therefore such a Commenda is commonly granted when the Patron doth not Present an able person or when the Church is Litigious But the Commenda perpetua which continues during the life of the Commendatary cannot be granted by any inferiour Ordinary but only by the Pope in such Countries where he hath Jurisdiction or by the King or his Delegates in this Realm or such whose power therein is derived from him or confirmed by him And this Commenda est titulus Canonicus nam militat eadem ratio in perpetuis Commendis quae in aliis Titulis Lib. 6. de Electionib c. Nemo And so it hath been often adjudged in Rota as Gomez affirms in Regul de Trien Possess where he argues this point Pro Con at large and where he saith That the Faculty of a perpetual Commendam is amplissima dispositio habet ubertatem verborum viz. Licentiam Facultatem fructus omnes percipiendi in proprios usus Convertendi c. Quae verba important Collationem Titulum non Simplex Depositum CHAP. XXII Of Lapse 1. What a Lapse is the gradations and Original thereof 2. The difference between the Canon and Common Law as to the time of Lapse and when the Six months shall begin 3. The King is Patron Paramount of all tbe Churches in England 4. In what Cases the Patron is to take notice of the Avoidance at his peril or not and how the Six months is to be computed by the days 5. A Lapse is not an Interest but a Trust or Administration and may not be transferr'd or granted over 6. How or from what time the Six months shall be computed before the Lapse incurr 7. Whether a Bishop may Collate by Lapse after Six months upon failure of the Clerks shewing his Letters of Orders or his Letters Missive or Testimonial 8. In what case Tempus occurrit Regi in point of Lapse 9. In what cases the King having Title of Lapse may lose his Presentment 1. LApsus or Lapse is a slip or departure of a Right of Presenting to a void Benefice from the Original Patron neglecting to Present within Six months next after the Avoidance to the Ordinary Whence it is commonly said That that Benefice is in Lapse or Lapsed whereunto he that ought to Present hath omitted or slipped his opportunity This Lapse may happen and be the Patron being ignorant of the Avoidance as well as if he were acquainted therewith or privy thereto except only upon the Resignation of the former Incumbent or the Deprivation upon any cause comprehended in the Statute of 13 Eliz cap. 12. In which cases the Bishop ought to give notice thereof unto the Patron In this matter of Lapse there are Three gradations ab Inferiore ad Superiorem after the neglect of the true Original Patron upon whose default 1 the Bishop of the Diocess within whose precincts the vacant Benefice lies shall Collate unless the King be Patron 2 If the Bishop Presents not within the next Six months then the Metropolitan shall Present And
that Court The High Commissioners would put him to his Oath for hearing Mass And a Prohibition was granted for by that he is to lose One hundred pounds by the Staute and a Prohibition was now granted by the Court 23. If a Stranger having no Title present per tort to a Church being void Simoniacally and Six months pass yet the true Patron may after present for the Statute hath made such Presentation Institution and Induction void and so he is no Incumbent nor is the Church full Likewise if a Man be Presented Instituted and Inducted by Simony to a Church although it be void as to the King and as to the Parishioners yet it is not void as to an usurper for he that hath no right shall not present thereunto 24. To avoid the detestable Sin of Simony because buying and selling of Benefices is execrable before God it is therefore ordained by the Injunctions of King Ed. 6. An. 1547. That all such persons as buy any Benefices or come to them by fraud or deceit shall be deprived of such Benefices and be made unable at any time after to receive any other Spiritual promotion And such as do fell them or by any colour do bestow them for their own gain or profit shall lose the right and title of Patronage and Presentment for that time and the gift thereof for that vacation shall appertain to the Kings Majesty 25. The Oath of Simony is as followeth viz. I. A. B. do swear that I have made no Simoniacal Payment Contract or Promise directly or indirectly by my self or by any other to my knowledge or with my consent to any person or persons whatsoever for or concerning the procuring or obtaining of the Rectory or Vicarage of A. in the Diocess of London Nor will at any time hereafter perform or satisfie any such kind of payment contract or promise made by any other without my knowledge or consent So help me God c. 26. P Parson of R. in the County of W. sued for Tithes in the Ecclesiastical Court before the Ordinary and the Defendant here pleads that the same Parson was presented upon a Simoniacal Contract and for that his Presentation Admission and Institution was void by the Stat. of 31 Eliz. the Simony was for that it was agreed between the said Parson and another that was Brother to the Bishop of L. and C. who was Patron of the same Church that if he should procure three several Grants of three several next Avoidances to them severally granted to surrender their said several Grants and procure the said Bishop to present him when the Church became void it being then full of an old Parson being mortally sick that he would make to him a Lease of parcel of the Tithes of his Rectory and the Brother of the said Bishop procured the said Grantees to surrender their several Grants accordingly the Church being then full And also after when the Church became void he procured the said Bishop to present him according to the first Contract and then the said P. made a Lease to him of the Tenths and after sued others of his Neighbours in the Ecclesiastical Court for Tithes who pleaded the said Simoniacal Contract and here Nicholas Serjeant suggested that the Judges Ecclesiastical would not allow of this Plea there but the Court would not give credit to this suggestion but said that if the Ecclesiastical Court make exposition of the Statute of 31 H. 8. against the intent of it that then they would grant a Prohibition or if they should deny to allow of this Plea and for that advised him that his Client might offer this Plea another time to them and if they denied to grant that they would grant a Prohibition 27. The Patron of a Benefice may be sued in the Ecclesiastical Court for presenting his Clerk who is also inducted by Simony for the Statute of Simony takes not off the Ecclesiastical Jurisdiction from punishing the party pro salute animae And where the Parson is party or privy to the Simony he shall be perpertually disabled Also if money or other reward be given for the Presentation be it with or without the agreement or knowledge of the Incumbent yet it shall always disable him from enjoying that Church In Wilsons Case against Bradshaw it was said by Doderidge Justice that Simony is a contract either with the Patron to present or with the Ordinary to institute and if it be not one of these it is not Simony by the Common Law Simoniacus is he which makes such a contract or promise and he is disabled to take any other Benefice and shall be deprived of the Church in which he is But Simoniace promotus is he whose friend without his privity or knowledge gives money to the Patron or Ordinary for his Presentation or Institution and he shall be deprived of the Benefice to which he is corruptly promoted but not incapable of any other nor of that if he shall have it duely again and every corrupt contract for aright to present is Simony 28. In a Prohibition the Case A. seised of the Advowson of the Church of B. the Church being void C. before the general pardon 39. Eliz. contracted with him for the Avoidance who for 100 l. granted it to him and he by colour of this Grant presented his Brother to the avoidance This was held to be Simony in the Grantee the Incumbent although he was not privy to the Simony at the first and Simony was there defined to be Voluntas sive desiderium emendi vel ven dendi spiritualia vel spiritualibus adhaerentia vel anxa Or thus viz The Church being void B. contracted with the Patron for 180 l. to have the Presentation and thereupon presented W. his Brother who knew nothing of the Simoniacal contract till after his Induction notwithstanding he was deprived in the Ecclesiastical Court because he was Simoniace promotus and it was held in this Case that if an usurper present by Simony the Clerk is punishable in the Ecclesiastical Court for the Simony although the Patron doth recover the Advowson and the Presentation 29. In the Case between the King and the Bishop of Norwich and Saker and Cole It was said by Coke Chief Justice that if a Church be void and a stranger without the privity of the after-Incumbent procures the Patron to present him upon a Simoniacal contract although that the Alter-Incumbent be not privy to the contract yet he comes in by Simony and so it is where the Incumbent makes Simoniacal contract with the Friend or Wife of the Patron and the Patron knows not thereof and the Incumbent be presented by the means of him with whom the Contract was made it is Simony within the Statute of 31 Eliz. and the King shall present 30. A man who was presented by Simony Libelled in the Ecclesiastical Court for Tithes The Question was whether the Simony
should be tried in the Ecclesiastical Court or by the Common Law the point was not resolved Note there Simony is defined to be studiosa voluntas emendi vel vendendi Spiritualia vel Spiritualibus annexa and it is either Mentalis vel Conventualis of both which the Ecclesiastical Law may Judge but the Temporal Court only of Conventual Simony 31. In Sir William Boyers Case for a Prohibition to the High Commission Court for their examining there upon Oath in Case of Simony it was said by Coke Chief Justice that Simony is worse than Felony it is an enormous offence if money be paid for to present one to a Benefice although it be not paid to the Patron neither had he any knowledge of it yet the Incumbent for this shall be avoided and the Patron also shall lose his presentation pro hac vice The Statute of 31 Eliz. cap. 6. is so strongly penn'd against the Incumbent that if the Patron be privy unto it he shall also be punished an Action of Debt was brought in the C. B. the Defendant in Barr pleaded that the same was entered for payment of money for Simony yet the Bond was held good and we are not to take any notice of Simony this being punishable in the Ecclesiastical Court and if they there meddle only pro salute Animae they are not then to be prohibited Otherwise it is when they will there examine the person upon an Article tending to the Title of the Patronage there in such case a Prohibition lies 32. In case of the King against Zakar and others It is said that if one be presented by Simony and the same person afterwards obtain a presentation from the King this is not good for he is now a disabled person to take this Benefice he hath a leprosie upon him by the Statute of 31 Eliz. cap. 6. Like unto that of Gehazi And Coke Chief Justice there declar'd that notwithstanding the King saith that the said Incumbent shall still continue yet the King shall have the next presentation 33. The Lord Winsor seized of an Advowson granted the next avoidance thereof to Doctor G. the Church void R. F. the Father of H. F. dealt with Doctor G. to permit the Lord Winsor to present H. F. who know not of the agreement who was Presented Instituted and Inducted accordingly Resolved that this was Simony and that the King was to present by the Statute of 31 Eliz. The King presented J. S. who was Instituted and Inducted R. F. the Father sued J. S. before the High Commissioners for Misdemeanors and procured him to be deprived and Ten days after procured a Grant of the next avoidance to J. N. and after the deprivation within Ten days procured the said J. N. to present the said H. F. c. Resolved that the said presentation of the said H. F. was meerly void and that he was a Person disabled by the express words of the Statute to accept of that Benefice 34. For a Prohibition upon a Suit for Tithes supposing the Parson had come in by Simony and thereby the Church void and the Tithes not belonging to him it was resolved by the Court a Prohibition did not lie for that Simony might more aptly be tried in the Ecclesiastical Court 35. The Incumbent of a Church being sick the Father contracts with the Patron in the presence of his Son for the next avoidance for the Son and agreed to give him One hundred pounds The Grant is made the Incumbent died the Son is Presented Instituted and Inducted being sued for Simony in the Ecclesiastical Court he prays a Prohibition and alledges the General Pardon 39 Eliz. which is after the Institution and Induction wherein Simony is not excepted In this Case it was resolved 1. That although the Pardon discharges the punishment of Simony yet he may be examined of it by the Ordinary and deprived for it But it was 2 Resolved in this Case there was no Simony for the Father might buy the next avoidance and present his Son and it is not Simony in any to buy an Advowson therefore the Prohibition was granted 36. In Debt upon an Obligation to perform Covenants That T. B. Son of W. B. should marry A. the Defendants Daughter In consideration of which marriage the Defendant amongst other Covenants Covenanted that he would procure the said T. B. to be Presented Instituted and Inducted into such a Benefice upon the next avoidance of the Church and the breach was assigned for non performance of the said Covenant in procuring him to be Admitted Instituted and Inducted It was demurred to by the Defendant because the Covenant is against Law being a Simoniacal Agreement and a Bond for performance thereof is not good Resolved it it had appeared to have been that in consideration of the Marriage of his Son he would procure him to be Admitted and Instituted into such a Benefice that had been a Simoniacal Contract and had avoided the Obligation but here this Covenant is not in consideration of the former Covenant nor depending thereon but it is a meer distinct Covenant of it self and independent upon the former and without a special averring or shewing that it was a Simoniacal Contract it shall not be intende but it may be a Covenant upon a good consideration And it was adjudged for the Plaintiff 37. In the forsaid Case of the King against Zakar alias Secker and others it was said by Coke Chief Justice that it is put for a Rule in Green's Case that if one presents Simaniace to a Church of the Kings and the King afterwards presents jure Simaniace this is a void Presentment because he hath mistaken his Title but he ought to present jure Patronatus not ratione Simoniace Presentatus And as to the disability of a Simoniacal person by the State of 31 Eliz. cap. 6. Four things are to be observed upon this Statute 1. The Presentation to be void 2. The King to have this Presentment 3. A Fine to be imposed by way of Forfeiture 4 The party presented to be utterly disabled For where there is matter of Simony if there be Fraud in the Incumbent or if Money be given for the Presentation though it be unknown to the Incumbent to this let the Patron look the Incumbent shall be removed In this Case the whole Court agreed clearly in this that the person party presented by Simony the presentation is meerly void and that the so presented is utterly disabled for ever by the Statute of 31 Eliz. c. 6. to take the same Benefice to which he is presented by Simony and that he is incapable to have another presentation to the same Benefice 38. The words Present or Collate in the Stat. of 31 Eliz. c. 6. are not intended says the Lord Coke onely where the person presenting or collating hath right to present or collate but also where any person or persons Bodies politick or corporate do usurp and