I do allow the Printing of this Book entituled An Abridgment of the Ecclesiastical Laws FRA NORTH Imprimatur hic Liber cui Titulus AN ABRIDGMENT OF THE. ECCLESIASTICAL LAWS Guil. Sill R. P. D. HENR Episc Lond à Sacris Dom. Repertorium Canonicum OR An Abridgment OF THE ECCLESIASTICAL LAWS OF THIS REALM Consistent with the TEMPORAL WHEREIN The most Material Points relating to such Persons and Things as come within the Cognizance thereof are succinctly Treated Principio Comperto facile est adjicere Reliquum Cooptare Tho. Cana. in Proaem Decret nu 3. T. 1. By JOHN GODOLPHIN LL. D. LONDON Printed by S. Roycroft for Christopher Wilkinson at the Black Boy against St. Dunstan's Church in Fleetstreet 1678. THE Introduction THE Question which King Henry the Eighth did once put to both the Universities of this Realm viz. An aliquid Authoritatis in hoc Regno Angliae Pontifici Romano de jure competat plusquam alii cuicunque Episcopo Extero being Resolved in the Negative and that Resolution ratified in the Convocation An. 1534. an Act of Parliament passed about two years after for the extinguishing of that Papal Authority in this Realm This succceded so well in consequence of what the Convocation An. 1530. had before acknowledged him viz. The Supream Head on Earth of the Church of England that that Supremacy was likewise after confirmed by Act of Parliament to him his Heirs and Successors This is that Supremacy here tenderly touch'd at in the first Chapter of the ensuing Abridgment and without which all that follows would be but insignificant and disfigured Cyphers When King Henry the Eighth was thus both Parliamentarily and Synodically invested herewith although it was with all the Priviledges and Preheminences incident thereto yet no more accrued to the Crown thereby than was legally inherent in it before yet in regard of the Usurpations that in divers Kings Reigns had successively invaded the Rights of the Crown in that most splendent Jewel thereof another Convocation in An. 1532. to give the King as it were Livery and Seisin of the said Supremacy promised him in verbo Sacerdotii That they would not from thenceforth Assemble in any Convocation or Synod without his Majesty's Writ nor make any Canons or Constitutions without his License and consent nor execute the same until they were Ratified under the Great Seal of England All which was done without the least diminution of any Archiepiscopal or Episcopal Power or Priviledges in the free exercise of that Ecclesiastical Jurisdiction which they anciently enjoyed The whole of this Design being only to eject the Roman Pontifex and annul his Usurpation in a matter of that weighty Consequence to which the Crown was so undoubtedly Entituled And this only in a way consonant to that Allegiance which every Subject without distinction owes to his lawful Sovereign in all matters as well Ecclesiastical as Civil within his Majesty's Realms and Dominions whereby the Clergy as well as Laity being all Subjects alike might be reduced not only to their Primitive Obedience unto but also to their Dependance on their own Sovereign in preference to any Forein Potentate whatever That the Supream Civil Power is also Supream Governour over all Persons and in all Causes Ecclesiastical is a Rule says the Learned Bishop Taylor of such great necessity for the conduct of Conscience as that it is the measure of determining all Questions concerning the Sanction of Obedience to all Ecclesiastical Laws the duty of Bishops and Priests to their Princes the necessity of their paying Tribute and discharging the burthens and relieving the necessities of the Republick It was never known says the same Author in the Primitive Church that ever any Ecclesiastical Law did oblige the Catholick Church unless the Secular Prince did establish it The Nicene Canons became Laws by the Rescript of the Emperour Constantine says Sozomen When the Council of Constantinople was finished the Fathers wrote to the Emperour Theodosius and petitioned Vt Edicto Pietatis tuae confirmetur Synodi sententia The confirmation of the Canon and Decrees of the great Council at Ephesus by the Emperour is to be seen at the end of the Acts of the Synod And Marcian the Emperour wrote to Palladius his Prefect a Letâ—er in which he testifies that he made the Decrees of the Council of Chalcedon to become Laws Ea quae de Christiana fide à Sacerdotibus qui Chalcedone â—convenerunt per nostra Praecepta Statuta sunt c. Thus also the Fathers of the Fifth General Synod petitioned Justinian to confirm and establish their Canons into a Law The same Prince also Published a Novel in which he commands Vim Legum obtinere Ecclesiasticos Canones à quatuor Synodis Nicena Constantinopolitana prima Ephesina prima Chalcedonensi expositos confirmatos Vid. Concil Tolet. All which confirms it for a Truth That even in the Primitive Church the Supremacy in matters Ecclesiastical was in the Supream Secular Prince Touching Archbishops our Malmesbury confesses that in the Ancienter times of the Britains it was unknown where the Archbishoprick was At the Council of Arles An. 314. Silvester the Pope is but plain Bishop as appears by the Nomenclature of those that were at that Council The High Title of Archbishop was for a long time in use in the Eastern Church before it came into the West For whereas our Beda tells us That Augustine was Ordained Archbishop of the English Nation by Etherius Archbishop of Arles aforesaid he therein follows the mode of speaking current in his own times for Gregory the then Pope in his several Letters written to them affords neither of them that Title no not when he bestows the Pall upon Augustine and gives him the precedency and priority in respect of York and all other Bishops of Britain Yet the incomparable B. Vsher affirms that they did not quite deny Archbishops among the Old Britains for he proves they had such but that all Memorials were lost where the Archiepiscopal or Patriarchal Seat resided For although London hath been for many Ages the Chiefest of Britain and was no less than 1300 years since reputed Vetus Oppidum and Augusta yet a Modern Writer of great Learning and Authority would have York as the more Ancient Metropolis of the Diocess of the Britains and that not only because it was a Roman Colony which London was not as Onuphrius contrary to so great and plain Authority of Tacitus doth affirm but also for that the Emperours Palace and Praetorium likewise Tribunal or chief Seat of Judgment was there whence by the Old Historian Spartianus it was called Civitas by way of excellency It must be acknowledg'd that the very Original of things are to us much clouded in obscurity and uncertainty yet he that duly consults Antiquity will find That what Radulphus de Diceto writes touching the Original of Episcopacy and Archiepiscopacy in Britain seems to have
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
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
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
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
Corporate as hath a Bishop and a Cathedral Church Yet Crompton in his Jurisdictions in his Computation of our Cities doth omit Ely though it hath a Bishop and a Cathedral Church Thus Westminster is called a City and accordingly there is mention made of a Bishop of Westminster in a Statute made during the Reign of King Henry 8. But by Letters Patents dated 21. May 2 Eliz. in pursuance of an Act of Parliament of 1 Eliz. not printed the Revenues of that late Monastery were vested in the Dean and Chapter of the Collegiate Church of Westminster which hath caused Errors in the Pleadings of some Cases by styling it the Cathedral for Collegiate Church of Westminster Cassanaeus who wrote as well De Gloria Mundi in general as of the Customes of Burgundy in particular saith That France hath within its Territories 104 Cities and gives this Reason Because there are so many Seats of Archbishops and Bishops Yet Sir Edw. Coke observes Cambridge to be a City by ancient Record although it does not evidently appear that it ever was an Episcopal See And in the Stat. of 11 H. 7. c. 4. it is there called the Town of Cambridge 4. In England and Wales there were Anciently three Provinces and over them Three Archbishops whose Archbishopricks were founded above 1500 years since For soon after the Conversion of King Luâ—ius who began his Reign over the Britains An. 170. being prevailed with to embrace the Christian Faith by the perswasions of Elvanus who had been brought up at Glastenbury and of Medwanus both Britains and therein confirmed by the Divines which Eleutherius who became Pope An 177. sent into Britain for that end and purpose The said King being by them baptized the False Religion of the Druids with their Idols was soon abolished Heathen Temples purged and then consecrated to the service and worship of the True God and in the place of twenty eight â—lamâ—ns were Bishops consecrated the Three Archbishops whereof were founded in the Three chief Cities of the then Three Provinces erected by the Romans where Arch-Flamins had formerly been maintain'd viz. at London the Metropolis of Britannia Prima at York the Metropolis of Maxima Caesariensis and at Caerlegion in Wales which is said to be Caerleon upon Vske formerly called Isca in Monmouthshire the Metropolis or chief City of Britannia Secunda or under Vrbs Legionum Cambria Gildas antiquissimus inter eos qui fide digni sunt Britannicarum rerum scriptor tradit Britannos ab ortu Evangelii Christianam suscepisse fidem Ant. Brit. ubi supr Ac primum Paulum ipsum cum aliis Gentibus tum nominatim Britannis Evangelium nunciasse post priorem suam Romae incarcerationem Theodoret. l. 9. de Curand Graecor affect Origenes qui proximis fuit post Apostolos seculis testatur Britanniam in Christianam consentire Religionem Orig. Hom. 4. in Ezech. Lucius Rex Britanniae An. 179. Baptizatus Ab Eleutherio Pontiâ—ice Romano reformationem Angliae petiit Episcop 29. ordinavit Ant. Brit. fo 4 5 7. Before the coming of the Saxons into England the Christian Britains had three Archbishops viz. of London York and Caerleon in Wales The Archiepiscopal See of London was by the Saxons placed at Canterbury for St. Austins sake where he was buried That of Caerleon being translated to St. Davids and after subjected to the See of Canterbury 5. From this time to Dioclesians Perfecution which though the Tenth and last yet the first which the Britains felt Christianity flourished in this Island which â—y that Persecution was almost extirpated out of the Land till Constantine the Great wore the Imperial Crown in whose time it revived till the beginning of the next Century when it was infected with the Pelagian Heresie till the condemnation thereof in the Council of Carthage and Mela and happily suppressed by Germanus Bishop of Auxerre and by Lupus Bishop of Troys in Campeigne who at the request of the English Catholicks were sent by the French Bishops into England as at the same time and for the same end Palladius was by Pope Celestine into Scotland And now the Christian Religion flourished again till the time of the usurping Tyrant Vortiger who after he had slain Vodinus Archbishop of London was himself burnt in a Castle besieged by Aurelius Ambrose having first surrendred Kent Suffolk and Norfolk to the Infidel Heâ—gist who with his Saxons almost desolated the Land insomuch that Theanus Bishop of London and Theodiceus Bishop of York were forced to flie into Cornwal and Wales until St. Augustines coming hither where he then found only one Archbishop and seven Bishops being with forty others as Assistants to him sent hither by Pope Gregory to Convert the Nation whom Ethelbert King of Kent kindly received and seated him as aforesaid in a Mansion in Canterbury the Metropolis of his Kingdom and assigned him a place to erect a Bishops See who afterwards fixed his Seat at Canterbury whichever since hath continued the Metropolis of this Kingdom And thus St. Austin upon his Entrance into England by the favour and bounty of the said King Ethelbert having fixed his Seat at Canterbury the Archbishops thereof have by a continual Series or Succession continued as Metropolitans of all England 6. And whereas there were as aforesaid anciently Three Archbishopricks in Three distinct Provinces within this Kingdom whereof that of Caerleon upon Vske in Wales was one and whereof Dubritius in the year 466 was Archbishop who having his Seat at Landaff became for his integrity Archbishop of all Wales and was upon Resignation in his old Age succeeded in the Archbishoprick by his Disciple David Uncle toking Arthurn by whose consent he removed the See to Menevia of which place he still retaineth the name of Episcopus Menevensis and the Town it self thereupon called Twy Devi or Saint Davids as taking its denomination from his Name yet it afterwards so unhappily happened that Sampson a succeeding Archbishop upon a great Plague raging in Wales went to Dola in Little Britain and thither carried the Pall with him whereby St. Davids for ever after lost the dignity of an Archbishop And in the time of H. 1. both that See and the rest in Wales became subject to the Archbishop of Canterbury as at this day 7. In the time of King Lucius London had an Archbishop to whose Jurisdiction at that time the greatest part of England was subject This Archbishop was that Theanus forementioned who was the chief Founder and Builder of St. Peters Church in Cornhill London which was the Cathedral of his Diocess till King Ethelbert built St. Pauls Church In this See continued the Dignity of an Archbishop above 180 years but by reason of the Saxon Persecution stood void till that Ten years after the coming of St. Austin Melitus was consecrated Bishop of that See and so it continued ever after as a Bishoprick
17. is to that purpose 11. In former times many Bishops had their Suffragans who were also Consecrated as other Bishops were These in the absence of the Bishops upon Embassies or in multiplicity of business did supply their places in matter of Orders but not in Jurisdiction These were chiefly for the ease of the Bishops in the multiplicity of their Affairs ordained in the Primitive times called Chorepiscopi Suffragan or Subsidiary Bishops or Bishops Suffragans and were Titular Bishops Consecrated by the Archbishop of the Province and to execute such Power and Authority and receive such profits as were limited in their Commissions by the Bishops or Diocosans whose Suffragans they were What Towns or Places to be the Sees of Bishops Suffragans and how many to a Diocess and in what Diocesses appears by an Act of Parliament made in the Reign of King H. 8. Such Suffragan Bishops are made in case the Archbishop or some other Bishop desire the same In which case the Bishop presents Two able persons for any place allowed by the said Act of Parliament whereof his Majesty doth chuse one but at present there are no Suffragan Bishops in England They were no other than the Chorepiscopi of the Primitive Times Subsidiary Bishops ordained for easing the Diocesan of some part of his burthen as aforesaid by means whereof they were enabled to perform such Offices belonging to that Sacred Function not limited to time and place by the ancient Canons by which a Bishop was restrained in some certain Acts of Jurisdiction to his proper Diocess Of these there were twenty six in the Realm of England distinguished by the Names of such Principal Towns as were appointed for their Title and Denomination The Names and Number whereof together with the Jurisdiction and preheminences proportioned to them the Reader may peruse in the Act of Parliament made An. 26 H. 8. 12. According to the Temporal Laws of this Land if a Bishop grant Letters of Institution under any other Seal than his Seal of Office and albeit it be out of his Diocess yet it is good For in Cort's Case against the Bishop of St. Davids and others where the Plaintiff offered in evidence Letters of Institution which appeared to be sealed with the Seal of the Bishop of London because the Bishop of St. Davids had not his Seal of Office there and which Letters were made also out of the Diocess It was held That they were good enough albeit they were sealed with another Seal and made out of the Diocess for that the Seal is not material it being an Act made of the Institution And the writing and sealing is but a Testimonial thereof which may be under any Seal or in any place But of that point they would advise 13. A Bishop if he celebrate Divine Service in any Church of his Diocess may require the Offerings of that day He may sequester if the King present not and 12 H. 8. 8. by Pollard he must see the Cure served if the person fail at his own Costs He may commit Administration where Executors being called refuse to prove the Will He hath power of distribution and disposing of Seats and charges of Repairs of the Churches within his Diocess He may award his Jure Patronatus where a Church is Litigious between an Usurper and the other but if he will chuse the Clerk of either at his peril he ought at his peril to receive him that hath Right by the Statute He may License Physicians Chirurgions Schoolmasters and Midwives He may Collate by Lapse He may take competent time to examine the sufficiency and fitness of a Clerk He may give convenient time to persons interested to take notice of Avoidances He is discharged against the true Patron and quit of Disturbance to whom it cannot be imputed if he receive that Clerk that is in pursuance of a Verdict after Inquest in a Jure Patronatus He may have Six Chaplains and every Archbishop may have Eight Chaplains He may unite and consolidate small Parishes and assist the Civil Magistrate in execution of some Statutes concerning Ecclesiastical Affairs And by the Statute of 1 Eliz. cap. 2. any Bishop may at his pleasure joyn and associate himself to the Justices of Oyer and Terminer or to the Justices of Assize at the open and general Sessions to be holden at any place within his Diocess in Causes of the Church And the Statute made 17 Car. 1. c. 27. for the disinabling of persons in Holy Orders to exercise Temporal Jurisdiction or Authority is Repealed by the Statute of 13 Car. 2. cap. 2. whereby they are now enabled to exercise such Temporal Jurisdiction as formerly and is commonly styled the Ordinary of that Diocess where he doth exercise his Episcopal Authority and Jurisdiction In Parliament Bishops as Barons may be present and Vote at the Trial and Arraignment of a Peer only before Sentence of death or loss of Member be pronounced that they may have no hand in blood in any kind they have by Canon Law the Priviledge and Injunction to absent themselves and by Common Law to make Proxies to vote for them 14. ORDINARY according to the acceptation of the Common Law with us is usually taken for him that hath Ordinary Jurisdiction in Causes Ecclesiastical immediate to the King He is in Common understanding the Bishop of the Diocess who is the Supervisor and for the most part Visitor of all his Churches within his Diocess and hath Ordinary Jurisdiction in all the Causes aforesaid for the doing of Justice within his Diocess in jure proprio non per deputationem and therefore it is his care to see that the Church be provided of an able Curate Habet enim Curam Curarum and may execute the Laws of the Church by Ecclesiastical Censures and to him alone are made all Presentations to Churches vacant within his Diocess Ordinarius habet locum principaliter in Episcopo aliis Superioribus qui soli sunt Vniversales in suis Jurisdictionibus sed sunt sub eo alii Ordinarii hi videlicet quibus Competit Jurisdictio Ordinaria de jure privilegio vel consuetudine Lindw cap. Exterior tit de Constitutionib 15. The Jurisdiction of the Ordinary or Bishop as to the Examination of the Clerk or as to the Admission or Institution of him into a Benefice is not Local but it follows the person of the Ordinary or Bishop wheresoever he is And therefore if a Clerk be presented to the Bishop of Norwich to a Church which is void within the Diocess of Norwich who is then in London or if it be to a Bishop of Ireland who is then in England and in London the Ordinary may examine the Clerk or give him Admission or Institution in London And so it was adjudged 16. The Ordinary is not obliged upon a Vacancy to receive the Clerk of him that comes first for as he
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
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
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
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.
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
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
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
in Pembrokeshire the Chaunter is next to the Bishop there being no Dean Chauntry Cantaria Aedes sacra ideo instituta dotata praediis ut Missa ibidem cantaretur pro anima Fundatoris Propinquorum ejus These were commonly Little Chappels or particular Altars in some Cathedral or Parochial Church endowed with Lands or other Revenues for the maintenance of one or more Priests to officiate as aforesaid whereof mention is made in certain Statutes of this Realm though not to such Superstitious uses as aforesaid A man might make a Chauntry by License of the King without the Ordinary for the Ordinary had nothing to do there with 9 H. 6. 16. It might be Founded in a Cathedral Church also in any other Church 9 H. 6. 17. Roll. Abr. ver Chauntry lit A. Q. 387. Of these Chauntries there were it seems 47 belonging to St. Pauls Church in London The Superstitious main use and intâ—nt of these Chauntries originally was for Prayers for Souls departed under a supposition of Purgatory and of being released thence by Masses Satisfactory and as in Adam's Case fo 112. mentioned by Sir Hen. Hobart Chief Justice in the Case of Pitts against James That Prayer for such Souls was the general matter of all Obits Anniversaries and the like which were but several Forms of Prayers for Souls And as in the said Case of Pitts if a man give Land to a Parish-Priest to pray or say Mass for his Soul this is within the Law that is within the Statutes of 37 H. 8. c. 4. and 1 Ed. 6. c. 14. as it is held 16 Eliz. Dyer 337. for to this purpose he is a Souls-Priest not a Parochial By which Statutes all Chauntries and all their Lands and Hereditaments are given to the Crown and all Lands Rents and Profits given to the finding of a Priest for the Superstitious ends aforesaid to continue for ever are vested in the actual possession of the King and of his Heirs and Successors for ever who shall also have by the said Statute of 1 Ed. 6. all the Common Goods of such Chauntries and the Debts thereof shall be paid to the Kings Treasurer and shall also have all Lands and all such Sums of money and part of the issues of Lands given for the maintenance or for the finding of any Anniversaries Obits Lights Lamps c. Only the said Act doth not extend to such Lands as whereof the Governours of such Colledges as were mentioned therein or Chauntries were seized to their own uses nor to any Lands or Rents given by the King for the term of his life only nor to any Copyhold-Lands and all Rents and yearly profits due to any Patron Donor and Founder of any of the said Chauntries c. and the Right of others except the Governours of Houses are by the said Act saved to them All Chanteries Colledges Free-Chappels and Hospitals were by Parliament given to King H. 8. for the carrying on the War against France and Scotland Towards the Charges of which Wars the King obtained a Grant in Parliament of the same with the Lands thereto belonging to be united to the Crown But dying before he took the benefit thereof he left that to such of his Ministers who had the managing of Affairs in his Son's Minority Heyl. Hist Eccles pag. 12. In the Reign of King Ed. 6. one of the great Affairs was the retrieving of a Statute made in the 27th year of King H. 8. by which all Chanteries Colledges Free-Chappels and Hospitals were permitted to the disposing of the King for term of his life but the King dying before he had taken many of them into his possession it was set on foot again in the time of King Ed. 6. and by Parliament during his Reign it was Enacted That all such Colledges Free-Chappels and Chanteries as were in being within Five years of the present Session which were not in the Actual possession of the said late King c. other than such as by the Kings Commissions should be altered transported and changed together with all Mannors Lands Tenements Rents Tithes Pensions Portions and other Hereditaments to the same belonging after the Feast of Easter then next coming should be adjudged and deemed and also be in the Actual and Real possession and Seisin of the King his Heirs and Successors for ever And although the Hospitals being at that time 110 were not included in this Grant as they had been in that to the King deceased c. yet there were 90 Colledges within the compass of that Grant those in the Universities not being reckoned in that Number and no sewer than 2374 Free-Chappels and Chanteries the Lands whereof were thus conferr'd upon the King by Name but not intended to be kept together for his benefit only In which respect it was very strongly insisted on by Archbishop Cranmer That the dissolving of these Colledges Free-Chappels and Chanteries should be deferred until the King should be of Age to the intent that they might serve the better to furnish and maintain his Royal Estate than that so great a Treasure should be consumed in his Non-age as it after was These Chanteries consisted of Salaries allowed to one or more Priests to say daily Mass for the Souls of their deceased Founders and their Friâ—rds which not subsisting on themselves were generally incorporated and united to some Parochial Collegiate or Cathedral Church No fewer than 47 in Number being as aforesaid found and Founded in St. Pauls Free Chappels though Ordained for the same intent were independent of themselves of stronger Constitution and richer Endowment than the Chanteries severally were All which Foundations having in them an admixture of Supersâ—â—tion as presupposing Purgatory and Prayers to be made for the deliverance of the Soul from thence were therefore now suppressed upon that account Heyl. Hist Eccles in temp Ed. 6. pag. 50 51. 7. Before King John's time the King and other Founders and Patrons of Priories and Abbies were wont to present Priors and Abbots But by King John there was a Free Election granted unto Priors 8. In Adams and Lambert's Case touching Chanteries these differences were taken 1 If one give 20 l. per annum for the Finding of a Priest and limit to the Priest 10 l. per annum all is given to the King for the residue shall be intended for the finding of Necessaries otherwise it is if a Condition be annexed to the Gift to give 10 l. per annum to a Priest there the King shall have but 10 l. 2 Land of 20 l. per annum is given to find a Priest with 10 l. per ann thereof and that the other 10 l. shall be to the Poor the King shall have but 10 l. But if it be for finding a Priest and maintenance of Poor men without limiting how much the Priest shall have the King shall have the Land for otherwise he shall have nothing 3. If Land of 20 l. is given
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
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 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
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
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
Chancery the Sheriff came to the house but could not apprehend the parties B. finding the house empty entered peaceably S. made an Affidavit in B. R. that he was ousted by the Sheriff by force and B. put in possession the Court of B. R. thereupon granted a Writ of Restitution he having an Appeal depending of the Deprivation In this Case these points were resolved 1 That the Writ De vi Laica removenda is not returnable unless the Sheriff find the Force 2 That the Kings Bench cannot award Restitution upon an Affidavit but there ought to be a Return of the Writ of Vi Laica c. in the Chancery and upon Affidavit made there that the Sheriff by virtue of the Writ hath removed one and put another in possession Restitution is awardable 3 Resolved that upon a Deprivation by the High Commissioners no Appeal lieth because the Commission is grounded upon the Prerogative of the King in the Ecclesiastical Goverment and therefore the Commissioners being immediate from the King and possessing his person no Appeal lieth 4 Resolved That 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 In the principal Case it was adjudged that until the Deprivation was repealed it stood good and so B. had good Title to the Church A Lease was made of a Rectory a Parson was presented to it and upon a supposition that he was held out by Force had a Vi Laica removenda upon which the Sheriff returned Non inveni vim Laicam nec potentiam armatam notwithstanding which Return upon Affidavit that he was kept out with Force a Writ of Restitution was awarded out of the Kings Bench. Yet in Zakars Case Coke Chief Justice said we are to judge upon a Record and not upon Affidavits in which Case he being deprived for Simony Richardson Serjeant moved the Court to have him restored again because as he urged it he was unlawfully removed The reason being that in a Vi Laica removenda whereby he was removed which Writ by F. N. B. and the Register comes to remove omnem vim Laicam he shews that the Sheriff did dispossess him and put another in the which he ought not to do and as Coke Chief Justice then said that in so doing he had done against the Law if he removes one and puts another in and Richardson Serjeant there cited Robinsons Case Hill 38. Eliz. where upon an Affidavit made that the Sheriff in a Vi Laica removenda had removed one and put another in there this was debated whether upon this shewed to the Court the first man removed should be restored again or not and there resolved by the whole Court the second man to be displaced again and the first to be restored and Coke said if a Justice of Peace remove a Force he cannot put another into possession 26. There is a Writ in the Register Quod Clerici non Eligantur in officium Ballivi c. For all Ecclesiastical persons in office are allowed certain priviledges by the Common Law in respect of their Function they are exempt from all personal charges which might any way hinder them in their calling as to be Chosen to the Office of Bayliff Beadle Reeve or the like in respect of their Lands to which end the said Writ is provided which doth recite that by the Common Law they ought not to be chosen to such offices aforesaid and commands that in case any Distress be taken or Amercement levied on any of them on that account that it shall be restored So the Stat. of Marleb cap. 10. That persons of Holy Church and persons Religious shall not be commpell'd to come to the Sheriffs Tourne or Leet and so also it is by the Common Law In Favour also of Holy Church the Law did anciently allow them Two other priviledges viz. Clergy and Abjuration In the Ninth year of the Reign of King James a question was moved whether after the Conviction of an Heretick before the Ordinary the Writ de Haeretico comburendo did at that day lie or not as to the Resolution of which question the Judges were then divided in opinion as appears in the Fortieth Chapter precedent § 7. what was then controverted is now decided by an Act of Parliament made in the 29 th year of his Majesties Reign wherehy it is enacted that the Writ commonly called Breve de Haeretico comburendo with all process and proceedings thereupon in order to the executing such Writ or following or depending thereupon and all punishment by death shall be from thenceforth utterly taken away and abolished 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 FINIS The Kings Supremacy Vld. Heyl. Cypr. Angl. p. 1. In his Cases of Conscience lib. 3. ch 3. fol. 544. Lib. 3. cap. 4. fol. 600. nu 4. Archbishops and Bishops a Spelm. in Archaeologo b Bed Eccl. Hist lib. cap. 1. 27. c D. Usserius in primord pag. 97. d Ammian Marc. lib. 14. e Philip. Berterius Pithanon Diatrib 1. c. 3. fin f Onuphr in Imperio Romana g Spartian in Severo vid. Burt. Com. in Anton. pag. 83 c. h Hist Angl. Script Antiq. Radulph Abbre Chron. Col. 435 436. i Beda l. 2. c. 3. k Bed lib. 2. cap. 9. It is Reported That Fridona a Saxon was the first English Archbishop and of the See of Canterbury in the Seventh Century about the year 656. Fuller Church-Hist Cent. 7. p. 84. nu 85. l Anonym qui de Archiepisc Ebor. scripsit An. 1460. m Harris descrip Britan. l. 1. c. 7. n Euseb Eccl Hist l. 10. c. 5. Pag. 9. See the Admir'd Selden ad Eutichii Origines pa. 122. Burt. Com on Antonin fo 81. o Herod Hist lib. 3. p C. de Reivindicat q Seld. Anaect Angl. Brit. ib. 1. cap. 7. r Ossilegium or the gleaning up of his Bones s Dio. Cassius Hist Rom. l. 76. Guardians of the Spiritualties Congé d'Eslire Election c. Radulph de Diceco Abbre Chronic. de Reg. Steph. R. Idem de Reg. R. 1. Chron. Gervas de Temp. R. 1. Hist Counc Trent lib. 8. Dict. Lib. 8. Deans and Chapters Archdeacons Procurations Diocesan Chancellors Courts Ecclesiastical Churches and Chappels pag. 169. a Claris Seld. illust in Polyol magni Poetae Angl. Cant. 8. b Guil. Stephanides Descript Lond. c Spartian Hist d Rad. de Diceto Abbr. Chron. e Hist Ri. Prioris Hagulstad de Gest R. Steph. f L. 5. Inae R. g Chron. Gâ—rvas de Temp. H. 2. h Chron. Jo. Brampton de LI. Edm. Reg. i Idem de Legib. Kâ—nuti Reg. Churchwardens Consolidation Dilapidations 1 Chro. 24. Suarez de Virt. Stâ—tu Religionis lib. 1. c. 28. nu 18. Patrons and Patronage Parsons and Parsonage Vicars Vicarages and Benefices Advowsons Appropriations Vid. G. Thorne in his chronicle De Reb. gestis Abbatum S. Augustin Cant. Commendams Lapse Collation and
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
of a Bishop may not be without the consent of the Dean yet this we find upon Record nigh as Ancient as the former That where at present there was no Dean there the Election of the Bishop hath been by the Canons alone Canonici Saresbirienses Decanum non habentes ad praesens à Rege prius impetrata Licentia Fratrem suum Concanonicum Herebertum Cantuariensem Archidiaconum Assensu Communi solemniter in Episcopum Elegerunt Electionem factam in Publico recitavit Walterus Praecentor Electioni factae praebuit Rex Assensum quam Hubertus Cantuariensis Archiepiscopus Auctoritate propria Confirmavit c. Consonant to which method is the Act of Parliament made in the 25. of H. 8. whereby it is Enacted That on the vacancy of every Bishoprick his Majesty should issue out his Writ of Congé d'Eslire to the Dean and Chapter of the Church so vacant enabling them to proceed to Election of another Bishop which Election being returned by the said Dean and Chapter and ratified by the Royal Assent his Majesty should issue out his Writ to the Metropolitan to proceed to the Confirmation of the party Elected and taking to himself two other Bishops at least to proceed to Consecration in case he had not before been Consecrated Bishop of some other Church The place of Consecration of Bishops was anciently at Canterbury as the Mother-Church not only of that Province but of all England For when in the time of R. 1. An. 1192. a Bishop of Worcester Elect was to be Consecrated and Westminster the place design'd for that solemnity according to the Popes Command it was opposed by the Prior and Covent of Christ-Church in Canterbury and at a time when the Archbishop thereof whose presence could not but have strengthned that opposition was absent yet the said Prior insisting on the Priviledges and Customes of the Church of Canterbury opposed the said place of Consecration as appears by his Letter to the Bishop of Ely the Popes Legate and other Bishops of that Province in haec verba Reverendis in Christo Dominis Fratribus W. Dei gratia Heliensi Episcopo Apostolicae sedis Legato Domini Regis Cancellario caeterisque Episcopis Cantuariensis Ecclesiae Suffraganeis O. Prior Conventus Ecclesiae Christi Cantuariae salutem ab Auctore salutis Noverit Sanctitas vestra Nos ad sedem Apostolicam appellasse ne Wigorniensis Electus alias quam in Ecclesia Cantuariensi sicut moris est Consecretur ne quis vestrum qui indemnitati Ecclesiae Cantuariensis vinculo Professionis providere tenemini alias quam in eadem Ecclesi◠ejus Consecationi interesse praesumat And at a Synod held at Westminster under P. Honorius 2. in the Reign of H. 1. An. 1126. it was Ordained That at the Consecration of Bishops nothing should by way of Offerings be exacted or by force required Statuimus Apostolica Authoritate Decernimus ut in Consecrationibus Episcoporum c. nil omnino per violentiam nisi sponte oblatum fuerit penitus exigatur Simeon Dunelm Hist de Gest Reg. Angl. The like you have Decreed at another Synod held also at Westminster under P. Innocent 2. in King Stephens Reign An. 1138. Apostolica authoritate Sancimus ut in Consecrationibus Episcoporum ne quicquam ab Episcopo vel Ministris ejus exigatur Hist Richard Prioris Hagustald de Gest Reg. Steph. In the year 1123. which was in the Reign of H. 1. at the Council of Three hundred Bishops conven'd at Rome P. Calixtus 2. being President it was Decreed That no Bishop should be Consecrated unless he were first Canonically Elected Nullus in Episcopum nisi Canonice Electum Consecret quod etsi praesumptum fuerit Consecratus Consecrator absque recuperationis spe deponatur dict Sim. Dunelm Hist As that Canon was not in being so the matter thereby ordained in all probability was far from being observed when Plegmundus Archbishop of Canterbury whom P. Formosus honoured with the Pall Consecrated no less than Seven Bishops in one day in the two and twentieth year of King Alured Chron. Johan Bromton Abbatis Jornalensis When a Bishop is Consecrated then may he Consecrate viz. Churches c. and may Ordain Deacons c. But it was long since provided by the Council of Lateran under P. Alexander That the Bishop should not confer Holy Orders on any that were not then or speedily to be provided with an Ecclesiastical Living Episcopus si aliquem sine certo Titulo de quo Necessaria vitae percipiat in Diaconum vel Presbyterum Ordinaverit tam diu ei necessaria subministret donec ei in aliqua Ecclesia Convenientia stipendia militiae clericalis assignet nisi talis forte qui Ordinatur extiterit qui de sua vel paterna haereditate subsidium vitae possit habere Can. 9. And as touching the Bishops Consecrating of Churches it being vulgarly supposed that there is a considerable piece of Superstition therein it cannot but be seasonable here to enquire whether so or no or whether the Consecration of Churches be not truly Primitive according to the Judgment of the Learned Dr. Heylin To which purpose you have here his very words viz. The place of Publick Worship is called generally according to the style of the Ancient Fathers by the name of the Church For Consecrating or setting apart whereof to Religious uses I find says he so great Authority in the Primitive times as will sufficiently free it from the guilt of Popery Witness the Testimony which Pope Pius gives of his Sister Eutorepia in an Epistle to Justus Viennensis An. 158. or thereabouts for setting apart her own House for the use and service of the Church Witness the Testimony which Metaphrastes gives of Felix the First touching his Consecrating of the House of Cicilia about the year 272. And that which Damasus gives unto Marcellinus who succeeded Felix for Consecrating the House of Lucinia for Religions uses Witness the famous Consecration of the Temple of the Holy Martyrs in Jerusalem Founded by Constantine the Great at which almost all the Bishops in the Eastern parts were summoned and called together by the Emperours Writ and finally not to descend to the following Times witness the 89th Sermon of St. Ambrose entituled De Dedicatione Basilicae Preached at the Dedication of a Church built by Vitalianus and Maianus and the Invitation of Paulinus another Bishop of that Age made by Sulpitius Severus his especial Friend Ad Basilicam quae prorexerat in Nomine Domini consummabitur Dedicandum to be present at the Dedication of a Church of his Foundation Heyl. Cyprian Angl. p. 12. The Decree of Faith made by the Council of Trent was attended with no less than Eight Anathematisms the first whereof was against him that shall say that there is no visible Priesthood in the New Testament nor any power to Consecrate c. For in the beginning of that Decree it is affirmed That there is a visible and
if not of the highest Antiquity Some will have it in Ancient times to have been the Temple of Diana but the Ingenious Commentator on Antoninus's Itinerary though he will admit that Diana was indeed worshipped here in the Roman times and had Temples here also yet he will not agree it other than a Tradition to assert That St. Pauls Church was formerly a Temple of Diana and is free to conjecture that Mr. Selden did but sport his Wit and was not in good earnest when he imagined that London might be called first Lhan Dien that is the Temple of Diana The same may be said concerning the Temple of Apollo on the Ruines of which the report is St. Peters in Westminster was founded The Antiquary will also have it That at York was Bellona's Temple and Minerva's Temple at Bath and that from her the Town was called Caer Palladour that is the City of Palladian waters They that will have the Church of Rome to be Caput Ecclesiarum do ascribe it to Pope Boniface that he obtain'd it of the Emperour Focas because the Church of Constantinople writ her self Primam omnium Ecclesiarum This was so Decreed in the year 608. by a Council of 62 Bishops sub Anathemata At a Synod held at Westminster under Pope Innocent 2. in the Third year of King Stephen An. D. 1138. it was Decreed That no Church should be built without Leave first obtained from the Bishop of the Diocess Apostolica authoritate prohibemus ne quis absque Licentia Episcopi sui Ecclesiam vel Oratorium constituat By the Fifth Law of Ina King of the West Saxons the Church is made a Sanctuary Si quis sit mortis Reus ad Ecclesiam fugiat vitam habeat emendet sicut rectum consulet At a Synod held at Westminster in the Reign of H. 2. An. 1175. it was ordained then no Judgments touching Blood or Corporal punishment should be given in a Church or Churchyard by the Sixth Canon made at that Synod Seculares Causas in quibus de sanguinis effusione vel de poena Corporali agitur in Ecclesiis vel in Coemiteriis agitari sub interminatione anathematis prohibemus By the Fifth Canon made at a Synod held in London during the Reign of Edmond Father of Edwin and Edgar who succeeded Aethelstan at which Synod were present Odo and Wulstan Archbishops provision was for the Repairing of Churches viz. Vt omnis Episcopus reficiat Dei domos in suo proprio Regem ammoneat ut omnes Ecclesiae Dei sint bene paratae The like you have in the 92 Law of King Kanute Ad refectionem Ecclesiae debet omnis populus secundum Legem subvenire At a General Council held at Rhemes under Pope Calixtus An. 1119. during the Reign of H. 1. it was Ordained That whoever invaded the possessions of the Church should be Anathematiz'd Vniversas Ecclesiarum possessiones quae Liberalitate Regum vel Largitione Principum concessae sunt inconcussas in perpetuum inviolatas esse decernimus Quod si quis eas abstulerit aut invaserit Anathemate perpetuo feriatur And by the Sixth Law of Ina aforesaid if any man fought in the Church he should forfeit Six pounds si quis in Ecclesia pugnet 120 solid emendet And although it be now looked upon as Exaction for a Parson to demand his Funeral dues of Burial where the deceased is carried out of his Parish to be buried in another so it was long since Ordained by the Laws of King Kanute leg 16. Si Corpus aliquod à sua Parochia deferatur in aliam pecunia tamen Sepulturae ejus jure in eam Ecclesiam pertinebit Among other Officers relating to the Church those of Churchwardens Questmen and Sidemen are not to be omitted for although they may be some of the Lower Form yet they are of necessary use and such as without whose care many disorders in the Church may pass unpunished as well as the Concerns thereof much prejudiced for which end and reason the Law will have them to be a Corporation qualifies them to Sue subjects them to Suits and understands them in the nature of Ecclesiastical Trustees as Guardians of the Moveable Possessions of the Church Therefore the Canons have determined as to the qualification of the persons Eligible the manner of their Choice by whom and the time when their Oath Office Duration and Account when and before whom it shall be made and how they shall be finally discharged By reason of the great desolation and ruine of many Churches and Parishes in the late Unnatural War in this Kingdom and otherwise it hath been judged necessary to pass an Act of Parliament for the Uniting of certain Churches in Cities and Towns Corporate Notwithstanding which the Parishes to remain distinct as to all Rates Taxes Parochial Rights Charges and Duties and all other Priviledges Liberties and Respects whatsoever wherein it is also Enacted That the Patrons of such Churches and Chappels so united shall Present by Turns only to that Church which shall remain and be Presentative from time to time c. Provided That Parishes having 100 l. maintenance per An. may not be Vnited Also the Incumbents of such united Parishes must be Graduates in some Vniversity And the Owners of Impropriations may bestow and annex Maintenance to the Churches where they lie and settle it in Trust for the benefit of the said Parsonage or Vicarage without any License of Mortmain It is there also further Enacted That if the settled Maintenance of such Parsonage Vicarage Churches and Chappels so united c. shall not amount to the full sum of 100 l. per An. clear and above all charges and reprizes that then it shall be lawful for the Parson Vicar and Incumbent of the same and his Successors to take receive and purchase to him and his Successors Lands Tenements Rents Tithes and other Hereditaments without any License of Mortmain any Law or Statute to the contrary notwithstanding The Churches and Parishes in London which by that Act since the Dreadful Fire are United are these viz. The Parishes of Alhallowes Breadstreet and St. John Evangelist are united into one Parish and the Church of the former to be the Parish-Church of the Parishes so united The Parishes of St. Albans Woodstreet and St. Olaves Silverstreet are united into one Parish and the Church of the former to be the Parish Church of the said Parishes so united The Parishes of St. Austins and St. Faiths are united into one Parish and the Church of the former to be the Parish Church of the said Parishes so united The like order to be observed in all the rest of the Parish Churches that are by that Act united Touching Dilapidations of Ecclesiastical Edifices and Possessions it may well be presumed That the most of that kind that ever was in the Christian World was in the time of Dioclesian's
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
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
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
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
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
exempted out of the Bishop of London's Jurisdiction The Judge of this Court of Arches is styled the Dean of the Arches or the Official of the Arches-Court unto whose Deanary or Officialty to the Archbishop of Canterbury in all matters and causes Spiritual is annexed the Peculiar Jurisdiction of the thirteen Parishes as aforesaid Having also all Ordinary Jurisdiction in Spiritual causes of the first Instance with power of Appeal as the superiour Ecclesiastical Consistory through the whole Province of Canterbury yet the Lord Coke says his power to call any person for any Cause out of any part of his Province within the Diocess of any other Bishop except it be upon Appeal is restrained by the Stat. of 23 H. 8. c. 9. Yet his Jurisdiction is Ordinary and extends it self through the whole Province of Canterbury insomuch that upon any Appeal made to him from any Diocess within the said Province he may forthwith without further examination at that time of the Cause issue forth his Citation to be served on the Appealee with his Inhibition to the Judge à quo In Mich. 6 Jac. C. B. there was a Case between Porter and Rochester The Case was this Lewis and Rochester who dwelt in Essex in the Diocess of London were sued for subtraction of Tithes growing in B. in the said County of Essex by Porter in the Court of Arches of the Archbishop of Canterbury in London where the Archbishop hath a peculiar Jurisdiction of thirteen Parishes called a Deanary exempt from the Authority of the Bishop of London whereof the Parish of S. Mary de Arcubus is the chief And a great Question was moved Whether in the said Court of Arches holden in London he might cite any dwelling in Essex for subtraction of Tithes growing in Essex or whether he be prohibited by the Statute of 23 H 8. c. 9 Which after debate at Bar by Council and also by Dr. Ferrard Dr. James and others in open Court and lastly by all the Justices of the Common Pleas A Prohibition was granted to the high Court of Arches And in this case divers points were resolved by the Court 1 That all Acts of Parliament are parcel of the Laws of England and therefore shall be expounded by the Judges of the Laws of England and not by the Civilians and Canonists although the Acts concern Ecclesiastical Jurisdiction 2 Resolved by Coke Chief Justice Warburton Daniel and Foster Justices That the Archbishop of Canterbury is restrained by the 23 H. 8. cap. 9. to cite any one out of his own Diocess For Diaecesis dicitur distinctio c. quae divisa vel diversa est ab Ecclesia alterius Episcopatus Commissa gubernatio unius c. And is derived a Di Duo Electio quia separat duas Jurisdictiones And because the Archbishop of Canterbury hath a peculiar Jurisdiction in London for this cause it is fitly said in the Title Preamble and body of the Act that when the Archbishop sitting in his Exempt peculiar in London cites one dwelling in Essex he cites him out of the Bishop of London's Diocess Therefore out of the Diocess And in the clause of the penalty of 10 l. it is said Out of the Diocess c. where the party dwelleth which agrees with the signification of Diocess before 2. The body of the Act is No person shall be henceforth cited before any Ordinary c. out of the Diocess or peculiar Jurisdiction where the person shall be dwelling and if so then à Fortiori the Court of Arches which sits in a Peculiar may not cite others out of another Diocess And the words out of the Diocess are meant of the Diocess or Jurisdiction of the Ordinary where he dwelleth And from the Preamble of the Act the Lord Coke observes and inferrs That the intention of the Act was to reduce the Archbishop to his proper Diocess unless in these five Cases viz. 1 For any Spiritual offence or cause committed or omitted contrary to Right and Duty by the Bishop c. which word omitted proves there ought to be a default in the Ordinary 2 Except it be in Case of Appeal and other lawful cause where the party shall find himself grieved by the Ordinary after the matter there first begun Therefore it ought to be first begun before the Ordinary 3 In case the Bishop or Ordinary c. dare not or will not Convent the party to be sued before him 4 In case the Bishop or Judge of the place within whose Jurisdiction or before whom the Suit by this Act should be begun and prosecuted be party directly or indirectly to the matter or cause of the same Suit 5 In case any Bishop or other inferiour Judge under him c. make Request to the Archbishop Bishop or other inferiour Ordinary or Judge and that to be done in Cases only where the Law Civil or Common doth affirm c. The Lord Coke takes notice also of Two Provisoes in that Act which do likewise explain it viz. That it shall be lawful for every Archbishop to cite any person inhabiting in any Bishops Diocess in his Province for matter of Heresie By which says he it appears That for all causes not excepted he is prohibited by the Act. 2 There is a Saving for the Archbishop calling any person out of the Diocess where he shall be dwelling to the probat of any Testament Which Proviso should be vain if notwithstanding that Act he should have concurrent Jurisdiction with every Ordinary throughout his whole Province Wherefore it was concluded That the Archbishop out of his Diocess unless in the Cases excepted is prohibited by the 23 H. 8. c 9. to cite any man out of any other Diocess which Act is but a Law declaratory of the Ancient Canons and a true Exposition thereof as appears by the Canon Cap. Romana in Sext. de Appellat c. de Competenti in Sext. And as the Lord Coke observes the Act is so expounded by all the Clergy of England at a Convocation at London An. 1 Jac. 1603. Can. 94. who gives us further to understand in this Case between Porter and Rochester That the Archbishop of this Realm before that Act had power Legantine from the Pope By which they had Authority not only over all but concurrent Authority with every Ordinary c. not as Archbishop of Canterbury c. but by his Power and Authority Legantine Et tria sunt genera Legatorum 1 Quidam de Latere Dom. Papae mittuntur c. 2 Dativi qui simpliciter in Legatione mittuntur c. 3 Nati seu Nativi qui suarum Ecclesiarum praetextu Legatione funguntur sunt Quatuor viz. Archiepiscopus Cantuariensis Eboracensis Remanensis Pisanis Which Authority Legantine is now taken away and utterly abolished 4. It is supposed that the Judge of this Court was originally styled the Dean of the Arches by reason of his substitution to the Archbishop's Official when
1 Eliz. And it is not within the Statute and although it be within the Commission yet they have not Jurisdiction The words of the Statute are That such Jurisdictions and Priviledges c. as by any Ecclesiastical power have heretofore been or lawfully may be exercised for the Visitation of Ecclesiastical State and Persons and for reformation of the same and for all manner of Errors Heresies Schisms Abuses Offences Contempts and Enormities c. These words extend only to men who stir up Dissentions in the Church as Schisimaticks and new-sangled Men who offend in that kind Henden Serjeant The Suit is there for reformation of Manners and before the new amendment of the Commissions Prohibitions were granted if they meddled with Adultery or in Case of Defamations but now by express words they have power of these matters And that matter is punishable by the Commissioners for two Causes 1 There is within the Act of Parliament by the words annexed all Jurisdictions Ecclesiastical c. 2 It gives power to the Commissioners to exercise that And that is meerly Ecclesiastical being only pro reformatione morum c. The King by his Prerogative having Ecclesiastical Jurisdiction may grant Commissions to determine such things 5 Rep. Ecclesiastical Cases fol. 8. And Richardson said The Statute de Articulis Cleri gave cognizance to the Ordinary for laying violent hands on a Clerk But you affirm That all is given to the Commissioners and thereby they should take all power from the Ordinary But by the Court the Commissioners cannot meddle for a stroke in Church-Land nor pro subtractione Decimarum And yet they have express Authority by their Commission for by that course all the Ordinaries in England should be to no purpose And so upon much debate a Prohibition was granted On an Arrest on Christmas-day it was said by Richardson Chief Justice That upon Arresting a man upon Christmas-day going to Church in the Church-yard He who made the Arrest may be censured in the Star-Chamber for such an Offence Quod Nota. It was also said by Richardson that if a man submit himself out of the Diocess to any Suit he can never have a Prohibition because the Suit was not according to the Statute 23 H. 8. commenced within the proper Diocâ—ss as it was Adjudged Quod Nota It the Ecclesiastical Court proceed in a matter that is meer Spiritual and pertinent to their Court according to the Civil Law although their proceedings are against the Rules of the Common Law yet a Prohibition does not lie As if they refuse a single Witness to prove a Will for the cognizance of that belongs to them And Agreed also That if a man makes a Will but appoints no Executor that that is no Will but void But if the Ordinary commits the Administration with that annexed the Legatary to whom any Legacy is devised by such Will may sue the Administrator for their Legacies in the Ecclesiastical Court Note P. 4. Jac. B. R. Peep's Case a Prohibition was denied where they in the Ecclesiastical Court refused a single Witness in proof of payment of a Legacy After Prohibition if the Temporal Judge shall upon sight of the Libel conceive that the Spiritual Court ought to determine the cause he is to award a Consultation And by the Staâ— of 50 E. 3. c. 4. the Ecclesiastical Judge may proceed by vertue of the Consultation once granted notwithstanding any other Prohibition afterwards if the matter in the Libel be not enlarged or changed B. Administrator of A. makes C. his Executor and dies C. is sued in the Ecclesiastical Court to make an Account of the goods of A. the first Intestate And C. now moves for a Prohibition and had it for an Executor shall not be compel'd to an Account But an Administrator shall be compel'd to Account before the Ordinary Resolved by the Court That a Prohibition shall not be awarded to the Admiral or Ecclesiastical Courts after Sentence Also that a Plea was there pleaded and refused which was Triable at Common Law Note A Prohibition was awarded upon the Statute of 23 H. 8. because the party was sued out of the Diocâ—ss And now a Consultation was prayed because the Interiour Court had remitted that Cause to the Arches and their Jurisdiction also yet a Consultation was denied A Suit was in the Ecclesiastical Court and Sentence passed for one with Costs and nine months after the Costs are Assest and Taxed and then comes a Pardon of 21 Jac. which relates before the taxing of the Costs But afterwards the Sentence and that Pardon was pleaded and allowed in discharge of the Costs Then W. who had recovered sues an Appeal and P. brought a Prohibition and well and no Consultation shall be awarded because by the Court that Pardon relating before the Taxation of Cost had discharged them As 5. Rep. 51. Hall's Case B. and Two others sue upon three several Libels in the Ecclesiastical Court and they joyn in a Prohibition And by the Court that is not good But they ought to have had three several Prohibitions and therefore a Consultation was granted Mich. 26 27 Eliz. C. B. If A. Libels against B. for Three things by one Libel B. may have One or Three Prohibitions Note Dyor 171. 13. By the Statute of 25 H. 8. cap. 19. Appeals to Rome being prohibited it is Ordained That for default of Justice in any of the Courts of the Archbishops of this Realm c. it shall be lawful to Appeal to the King in his High Court of Chancery and thereupon a Commission shall be granted c. And by a Proviso towards the end of that Statute an Appeal is granted to the King in Chancery on Sentences in places exempt in such manner as was used before to the See of Rome So that this Court grounded on the said Commission is properly as well as vulgarly called The Court of Delegates for that the Judges thereof are Delegated to fit by virtue of the Kings said Commission under his Great Seal upon an Appeal to him in Chancery and that specially in Three Causes 1 When a Sentence is given in any Ecclesiastical Cause by the Archbishop or his Official 2 When any Sentence is given in any Ecclesiastical Cause in places exempt 3 When a Sentence is given in the high Court of Admiralty in Suits or Actions Civil and Maritime according to the Civil Law That this Court of Delegates may Excommunicate was Resolved by all the Judges in the Archbishop of Canterbury's Case They may also commit or grant Letters of Administration This Court of Delegates is the highest Court for Civil Affairs that concern the Church for the Jurisdiction whereof it was provided 25 H. 8. That it shall be lawful for any Subject of England in case of defect of Justice in the Courts of the Archbishop of Canterbury to Appeal to the King's Majesty in his Court of Chancery and
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
certain day in the Vestry to Elect Churchwardens They elect A. and present him to the Archdeacon who refuses A. and forbids him to exercise the Office of a Churchwarden because the Parson pretended that by the new Canon the Election of a Churchwarden belonged to him to dispose c. and exercise the Office of Churchwarden And A. is sued ex Officio in the High Commission-Court amongst other things touching that A. prays a Prohibition because the Canon does not take away the Custome Also it would be very mischievous if the Parson should Elect whom he please to be Churchwarden And the Parson and Churchwardens being a Corporation then they may dispose of the Goods and Lands of the Parish as they please Coke Chief Justice said That a Convocation hath power to make Constitutions for Ecclesiastical Things or Persons 20 H. 6. 14. 21 E. 4. 46. But they ought to be according to the Law and Custome of the Realm And they cannot make Churchwardens that were Eligible to be Donative without Act of Parliament and the Canon is to be intended where the Parson had nomination of a Churchwarden before the making of the Canon And now Rule was given for a Prohibition if cause be not shewn to the contrary c. ex motione Serjeant Foster 6. As touching Sidemen otherwise called Questmen they are only such as are annually chosen according to the custome of every Parish to assist the Churchwardens in the enquiry and presenting such Offenders to the Ordinary as upon such Presentments are prosecuted and punishable in the Ecclesiastical Court 7. In an Action of Trespass against the Churchwardens where by the Statute of 43 Eliz. cap. 2. if for a Distress taken by them for money for the relief of the Poor Trespass be brought against them and Verdict pass for them the Defendants shall recover treble Dammages with their Costs And that to be assest c. by the same Jury or by Writ of enquiry of Dammages it was Resolved 1 That the Costs shall not be trebled but only the Dammages 2 That the treble Dammages are well assest by the Jury although that it be not done by the Court. Because the words are by the same Jury to be assest and not Dammages to be trebled by them 8. Upon an Habeas Corpus the Case was return'd to be That H. being Churchwarden refused to take the Oath of Enquiry of the 39 Articles touching Ecclesiastical matters And the warrant of the Commitment of the High Commissioners was to retain him and until we shall give order for his delivery By the Court c. Vntil we that is All we 12 Ed. 4. 3. a. 1 H. 7. 7. a. that is not good for if then any of them dies or be removed The party shall never be delivered by that means But it ought to be Until he shall be lawfully delivered But notwithstanding the Churchwarden was not out upon Bail because now also he refused to take that Oath But with a So far forth as the Articles do agree with the Law of God and the Land Note that such subscription or consent to the Articles 13 Eliz by a Parson is not good As it was Adjudged in 33 34 Eliz. B. R. Clark against Smithfield But afterwards the Church-warden was delivered by the High Commissioners 9. If the Parishioners have time out of mind used to chuse two Churchwardens yearly and to present them to the Archdeacon to be Sworn and he have used to Swear them and upon such election and presentation to him to be Sworn he shall refuse to Swear them a Writ may issue out of the King's Bench directed to the Archdeacon commanding him to Swear them Mich. 15 Jac. B. R. such Writ was granted for the Churchwardens of Sutton Valence in Kent for although there was a Canon made primo Jac. to the contrary yet that cannot take away the custome Tr. 15 Car. B. R. The like Writ was granted for the Churchwardens of the Parishes of Ethelborough and St. Thomas Apostles in London after divers motions and upon hearing of the Council on both sides Pasch 4 Car. B. R. Rot. 420. between Draper and Stone The like Writ was granted for the Churchwardens of Holberton in Devon If one be chosen Churchwarden and the Official of the Bishop refuse to Administer his Oath to him he shall have a Special Writ directed to the Official commanding him to give him his Oath Trin. 17 Jac. B. R. Bishop's Case Roll Rep. Note That an Attorney cannot be a Churchwarden if he be chosen and refuse and be sued for such a Refusal in the Ecclesiastical Court he may have a Prohibition Pasch 14 Car. 1. B. R. in Wilson's Case Trin. 15 Car. 1. B. R. Barker's Case Roll's Cases 2. par fo 272. 10. By the Injunctions of King Ed. 6. An. 1547. to all the Clergy as well as Laity of this Realm it is required That the Parson Vicar or Curate and Parishioners of every Parish within this Realm shall in their Churches and Chappels keep one Book or Register wherein they shall write the day and year of every Wedding Christning and Burial made within their Parish c. and therein shall write every persons Name that shall be so Wedded Christned or Buried And for the safe keeping the said Book the Parish shall be bound to provide of their common charges one sure Coffer with two Locks and Keys whereof the one to remain with the Parson Vicar or Curate and the other with the Wardens of every Parish-Church or Chappel wherein the said Book shall be laid up Which Book they shall every Sunday take forth and in the presence of the said Wardens or one of them write or record in the same all the Weddings Christnings and Burials made the whole week before and that done to lay up the Book in the said Coffer as before And for every time that the same shall be omitted the party that shall be in the fault thereof shall forfeit to the said Church three shillings four pence to be employed to the Poor mens Box of that Parish 11. A man taxed by the Parish for Reparation of the Church was sued for the Tax by the Churchwardens in the Ecclesiastical Court Depending this Suit one of the Churchwardens released to the Defendant all Actions Suits and Demands the other Church-warden proceeded in the prosecution of the Suit and upon this the Defendant procured a Prohibition upon which matter shewed therein was a Demurr joyned Davenport moved for a Consultation The Question was where two Churchwardens sue in the Ecclesiastical Court for a Tax and one of them Release whether that Release shall barr his Companion or not It seem'd to him that this Release shall not be any barr to his Companion or impediment to sue for he said That Churchwardens are not parties interessed in the Goods of the Church but are a special Corporation for the benefit of the Church for which he cited
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
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
Custome is not otherwise the Parishioner ought to make the Grass into Hay for the Parsons Tithe Yet when the Tithes of Grass are severed from the Nine parts the Parson de jure may make it into Hay upon the Land where it grew and that de jure as well as the Parishioner himself and so Adjudged in the Parson of Columbton's Case in Devon and the Prohibition denied accordingly where the Parson had alledged a Custome of doing so but the Court held that to be needless Hill 14. Jac. B. R. Newbery and Reynold's Case per Curiam And in this case it was held That the Parson may go over the Parishioners ground in the Path-way to make the said Grass into Hay for that is incident to the Tithes A man is not bound to make into Hay the Tithes of the Grass which he cuts but he may set forth the Tithes thereof when it is in Grass-Cocks for he may then sever the Tithes of Grass from the Nine parts Pasch 17 Jac. B. Hide Ellis Hob. Case 328. Contr. Hill 14 Jac. B. R. Barham Goose P. 15. Jac. B. R. per Cur. and Prohibition denied Tr. 15 Jac. B. R. Poppinger Johnson per Cur. and Prohibition denied Pasch 13 Jac. B. R. per Cur. and Prohibition denied P. 2. Jac. B. R. Hob. 328. Hall Simonds Adjudged Likewise a man is not bound to sever the Tithe of Grass before it be put into Grass-Cocks and hath set forth the Tenth part for he may put it into Grass-Cocks out of the Swath and then set forth the Tenth part Ibid. Suit was for Tithe-Hay in the Ecclesiastical Court by the Parson it was Surmized That they had time out of mind paid to the Vicar 4 d. for the Tithe-Hay The Court awarded a Consultation for that the Modus Decimandi doth not come in question but this he may plead in the Ecclesiastical Court And in Gomersall and Bishops Case for Tithe-Hay the Court held That if there be variance between the Surmize and the Declaration all is ill In another Case in a Prohibition it was Surmized That time out of mind the Owners of the Land had found Straw for the Body of the Church in discharge of all Tithes of Hay It was the Opinion of the Court That it was no good Surmize for that the Parson had no benefit of it and a Consultation was awarded Heath Furse and Broom Tithe shall be paid thereof unless the party set forth a Prescription or Special Custome That time out of mind there hath been paid Milk Calves c. for the Cattel that have been kept upon the same Lands in which case they shall not pay Tithes Hemp pays a Predial Tithe Co. Magn. Char. 649. Herbage of ground whereon Corn was sowed the same year and whereof Tithe hath been paid the same year is not Tithable If Herbage he sold it is at the Parsons Election whether he will Sue the Owner of the Cattel that feed thereon or of the Ground for the Tithe thereof if Custome be not against it And as for Herbage growing at Lands-ends adjoyning to the Arable pays no Tithe where Tithe was paid for Arable Where an innkeeper hath paid Tithe-Hay of certain Lands and the rest of the year after puts into the same the Horses of his Guests no Tithes shall be paid for the Herbage of such Horses for it is but the After-pasture of the same Land whereof he had paid Tithes before Trin. 16 Jac. B. R. Richardson Cable per Curiam Prohibition granted Honey is Tithed by the Tenth measure thereof A Prohibition was prayed for Suing for divers kinds of Tithes inter alia for Honey upon a Surmize that it was not payable that Bees are Volatilia It was thereupon demurred but the Opinion of the Court was That Tithes are to be paid for Honey for so is the Book Fitz. N. B. and therewith agreeth Lindwood wherefore the Court awarded that there should be a Consultation Hops pays a Predial Tithe and regularly are accounted inter minutas Decimas yet in some Cases they may be Great Tithes in places where they are much set or planted Mich. 8. Jac. B. A man may set forth the Tenth part of his Hops for Tithes before they be dried Hill 14 Jac. B. R. in Barham and Goos's Case put by Serjeant Hitcham and agreed by Mountacute Hop-poles or Wood cut and employed for them are not Tithable where Tithe Hops are paid And so it hath been Resolved That if Wood be cut and employed for Hop-poles where the Parson or Vicar hath Tithe-Hops they shall not have Tithes of the Hop-poles So if a man hath a great Family and much Wood be felled and spent in House-keeping Tithes shall not be paid of such Wood. Mich. 15 Jac. C. B. by Hobart Chief Justice White Bickerstaff's Case Houses of habitation or Dwelling-houses are not properly Tithable no Tithe payable for the same nor out of the Rent reserved for them being Lett yet by a Custome Tithes may be paid for Rent reserved upon Domise of Houses of habitation although it be otherwise do jure for it might commence on good Consideration Co. 11. Dr. Grant 16. vid. Mich. 12 Jac. B. Hobart 16. Leyfield's Case Prohibition granted Otherwise of New Houses whereof there can be no Custome Ibid. But regularly Houses are not at all Tithable nor were Tithes anciently paid for Houses in London the Profits of the Churches whereof consist only in Oblations Obventions and Offerings Co. ibid. But by a Decree made An. 1535. and confirmed by Act of Parliament Stat. 37 H. 8. cap. 12. there is 2 s. 9 d. made payable to the Parson for every Pound of House-Rent for the Tithes of the Houses in London Hob. 11. But if a Modus Decimandi be alledged to pay 12 d. in every Pound of Rent for every House in such a Parish in London it is a good Modus Decimandi The aforesaid 2 s. 9 d. is to be raised and made up according to the usage and Custome of the City Stat. 27 H. 8. 20. 32 H. 8. 7. And no Tithes are payable for Houses in any City save London where a Prescription to be discharged of Tithes of a House by paying 12 d. of every Pound Rent in lieu thereof is as aforesaid a good Prescription Co. 11. 16. But Tithes regularly are not payable for Houses of Habitation nor of any Rent reserved upon any Demiss of them for Tithes are to be paid of things which grow and renew every year by the Act of God And for the Houses in London Tithes anciently were not paid as aforesaid yet the Parson of St. Clements without Temple-Bar Libelled against a Parishioner for Tithes of certain Stables 〈…〉 set forth in his Libel That of 〈…〉 â—â—scription time out of mind the 〈…〉 had used to have a Modus Decimandi after the Rate 〈…〉 Tenth-part of the yearly Rent or value of the same 〈◊〉 was the Opinion of
5. was the Question Coke Chief Justice This Modus cannot go to this new Mill for an ancient Mill your Modus shall be allowed but not for the Mill newly erected the Custome will not extend to it and therefore by the Rule of the Court for this new Mill a Consultation was granted Mill-stones if one pair thereof be turned into two pair both of them shall pay Tithe and their Priviledge if they had any will be lost Pasch 17 Jac. Johnson's Case Fitzh N. B. I. G. Co. 244. Brownl 1. 31. So that if there be but one pair of Mill-stones in a Mill and a Rate-Tithe be paid for them if afterwards there be another pair of Mill-stones put on now Tithes must be paid in kind Brownl ibid. Milk paying Tithe exempts the payment of Tithe-Cheese made of the same Milk Et è contra Mines or Minerals of Iron Brass Tinn Lead Copper Coles and the like are not Tithable Register 51. F. N. B. 53. 9. Broo. Dismes 18. Mixt Tithes are of the profits of such things as arise partly from the labour and care of men and partly from the Earth whereof the things are and sometimes are called Predial Mediats and come not immediately of the Ground but of things maintained out of the Ground as Cattel Calves Lambs Kids Wool Milk Cheese Chicken Geese Ducks Swans Eggs c. Mixt Tithes are properly such as come of Milk Cheese c. Or ex foetibus animalium quae sunt in pascuis gregatim pascuntur ut in Agnis Vitulis Haedis Caprcolis Pullis c. Coke Magn. Chart. 649. Modus Decimandi is the payment of something in lieu of the just and full Tithe of a thing Tithable legitimated by Composition Custome or Prescription it is when Lands Tenements or Hereditaments have been given to the Parson and his Successors or an Annual certain Sum or other Profit alwaies time out of mind to the Parson and his Successors in full satisfaction of all Tithes in kind in such a place and all Presidents in Prohibitions in discharge of Tithes in case De modo Decimandi run thus viz. That such a Sum had been alwaies paid in plenam Contentationem Satisfactionem Exonerationem omnium singularum Decimarum And although the Sum be not paid yet cannot the Parson sue for Tithes in kind not for the Tithes in kind in the Ecclesiastical Court but for the money in the Temporal Trin 7 Jac. in the Case De modo Decimandi Prohibitions debated before the K. Coke Select Cas 40 46. In Biggs Case it was Resolved where a Prohibition is awarded upon a Suggestion of a Modus Decimandi and a Consultation awarded for not proving the Suggestion within Six months there a new Prohibition shall not be awarded upon an Appeal in the same Suit More 1234. This Modus Decimandi refers only to the Reality viz. the Tithes and not to the Personalty viz. the Offerings Nor can it begin at this day but is and must be by Prescription and is intended to have a lawful commencement upon some Agreement at first made for valuable Consideration with the Parson or Vicar And if the Modus Decimandi be to pay a Sum of money for the Tithe of a piece of Ground which is after turned to Houses and Gardens the Modus continue Yea it doth so actually discharge and extinguish Tithes that they are thereby turned into a Lay-Fee as well as the Nine parts Touching this Modus Decimandi there are some things that seem doubtful and unresolved in the Law as if the Modus be of Land given to the Parson in satisfaction of Tithes and the Land after happen to the evict Q. if the Tithes in kind do not in such case revive Or if Lands be once discharged of Tithes by a Modus Decimandi Q. whether the Tithes shall revive again upon failure of the Modus But if Land be granted to the Parson in satisfaction of Tithes if the Parson alien the same without the consent of the Patron and Ordinary his Successor shall have Juris Vtrum If a man Prescribe to pay a Modus Decimandi for the Tithe of certain Lands if the Land be afterwards lett to Farm and the Farmer pay the Tithe in kind yet it shall not destroy the Prescription as to the Lessor If a Lessee pay Tithes in kind yet that shall not destroy a Modus in the Lessor But if the Modus Decimandi be of a thing for which no Tithe is due de Communi jure it is not good nor can it stand to rise and fall according to the Rent by Prescription as of Houses in London That the Trial of Modus Decimandi as the Common Lawyers affirm belongs to the Temporal not the Spiritual Courts and for the grounds of Prohibitions in such case If the Ecclesiastical Court allow not of any such thing as a Modus Decimandi it is because the Canonists do hold Tithes to be due Jure Divino and consequently not extinguishable in the whole nor diminishable in part by any Custome or Prescription in opposition to the Law of God The Temporal Courts will admit them also to be Jure Divino but do allow if so only Secundum quid viz. quoad sustentationem Cleri but not quoad Decimam aut aliquam aliam certam partem and therefore do admit of a Modus as to the quantum where there is a sufficient maintenance for the Clergy besides which is not only allowed but also confirmed by Act of Parliament So that if the Lord of a Mannor grants parcel of his Mannor to a Parson in Fee to be quit and discharged of Tithes and makes an Indenture and the Parson with the assent of the Ordinary without the Patron grants to him that he shall be discharged of Tithes of his Mannor for that parcel of Land if afterwards the said Lord of a Mannor or his Assigns be sued in the Ecclesiastical Court for Tithes of his Mannor he or his Assigns shall have a Prohibition upon that Deed and therefore if the Lord of the Mannor hath alwaies holden his Mannor discharged of Tithes and the Parson had time out of mind Lands in the same Parish of the Gift of the Lord of which the Parson is seised at this day in Fee in respect of which the Parson nor any of his Predecessors ever had received any Tithes of this Mannor If the Parson now sueth for Tithes of this Mannor the Owner of the Mannor shall shew that Special matter that the Parson and his Successors time out of mind have holden those Lands of the Gift of one who was Lord and the same is good Evidence to prove the Surmize in the Prohibition And in another Case of a Modus Decimandi it was holden by the Court That if a Modus Decimandi be for Hay in Black-Acre and the party soweth the same with Corn seven years together the same doth not destroy the Modus
Parson of one Parish having part of his Glebe in another may Prescribe in non Decimando for the same So that a Prescription even de non Decimando as for Ecclesiastical persons their Farmers and Tenants may be good In Nash and Molin's Case it was agreed by the Court That a Spiritual man may Prescribe in Non Decimando Cro. par 1. And as for any other person a Prescription de modo Decimandi that is to pay Money or other things in lieu of Tithes in kind is good and if he can prove it Time out of mind this will discharge him Thus a Prescription to pay 4 d. or any other Sum for all his Tithe whatever or for all his Tithe-Hay or for all his Tithe-Corn in such a Farm or in such a Close or for all his Fruit in such an Orchard is good But a Prescription of paying no Tithe-Corn because he pays Tithe-Hay or of paying no Tithe of his Cattel because he pays Tithe-Corn is no good Prescription Or of not paying of Tithes in one place because he pays in another or of not paying Tithe-Lamb because he pays Tithe-Wool vel è contra or of not paying Tithe for other Cattel because he pays 12 d. for a Cow these and the like are no good Prescriptions Yet a Prescription to pay a less part than a Tenth may be good and binding Also a Prescription to pay a peny called Hearth-peny in satisfaction of Tithe for all Combustible Wood may be good Likewise a Prescription by the Lord of a Mannor to pay six pound in satisfaction of all the Tithe-Corn within the Mannor and to have the Tenth Sheaf or Cock in recompence of his payment is good But if the Prescription be to be discharged of Tithe-Hay of such a ground or Tithe-Corn of such a ground and the Owner change the nature of the Ground as Pasture into Tillage or Tillage into Pasture the Prescription is gone Yet a Prescription is not destroyed by an Alteration of payment as if instead of the money to be paid another sum or Tithes in kind have been paid for 20 years past But a Prescription to have Tithes of Houses according to the Rent is not good for no Tithes are to be paid for Houses in any City save in London only Regularly Prescription referrs to one in private as Custome does to many in publick and where a Prescription de modo Decimandi is denied there a Prohibition will lie to try it at the Common Law otherwise if the Prescription or Custome be agreed If a Prescription by a Parishioner be to pay the Tenth part of Corn as a Modus Decimandi for the Hay also that grows on the Headlands it is not good but such Prescription for the Corn and After-Rakings is good with an averment That they are sparsae minus voluntarie If there be a Prescription of a Modus Decimandi for an Orchard or Garden and it afterwards ceases to be such the Modus shall cease also and Tithe shall be paid in kind but if it afterwards be restored to a Garden or Orchard by being replenished with Herbs or Fruit-Trees it shall pay the Modus as formerly If the Modus be to pay two shillings and the Shoulder of three Deer for a Park the Modus remains though the Park be disparked it is otherwise in case the Modus be only to pay Venison Or if the Prescription be to pay a certain Sum of money for all the Tithes of a Park the Modus shall continue though the Park be afterwards disparked A Prescription of a Modus Decimandi generally for a Park is not good if it be Disparked but it shall be particularly for all Acres contained in the Park Prescription being a Temporal thing is Triable only in the Temporal Courts and therefore in the Case of Two Parsons of Two several Parishes where one of them claimed Tithe within the Parish of the other and said That all his Predecessors Parsons of such a Church viz. of D. had used to have the Tithe of such Lands within the Parish of S. and pleaded the same in the Spiritual Court The Court was of Opinion That in this Case a Prohibition did lie for he claims only a portion of Tithes and that by Prescription and not meerly as Parson or by reason of the Parsonage but by a Collateral cause scil Prescription which is a Temporal cause and thing And in another Case it hath been Adjudged That if a Prescription be laid to pay a Modus Decimandi to 100 Acres or to several things if there be a failure of one Acre or of one thing it is a failure of the whole Prescription But where it hath been Prescribed to pay in one part of the Land the Third part of the Tenth and in another part the Moity of the Tenth for all manner of Tithes it hath been held a good Prescription These Prescriptions de modo Decimandi are equally incident as well to Lay-persons as to persons Spiritual or Ecclesiastical but as to Prescriptions de non Decimando none but Spiritual persons are capable of being discharged of Tithes in that kind as was Resolved in the Bishop of Winchester's Case Yet a whole Countrey or County may Prescribe de non Decimando though this or that particular meer Lay-man cannot nor indeed can the other unless there be sufficient Maintenance for the Clergy besides The Prescriptions de modo Decimandi are confirm'd by Act of Parliament and if any Lay-man will Prescribe de non Decimando to be absolutely discharged from the payment of Tithes without paying any thing else in lieu thereof he must Found it in some Religious or Ecclesiastical person and derive his Title to it by Act of Parliament and it is not sufficient to say That they who Prescribe de non Decimando are Churchwardens who have Land belonging to their Church for they are neither Religious nor Spiritual persons But they who are such indeed may so Prescribe not only for themselves but also for their Tenants and Farmers as was formerly said So also may the Kings Patentees of those Abbey-Lands that came to the Crown by the Statute of 31 H. 8. Prescribe de non Decimando by force of the said Statute if so be it may be proved That they have beyond the Memory of man so enjoyed the Lands discharged from the payment of Tithes But for a Parishioner to Prescribe to Non-payment of Tithes because he hath Time out of mind repaired the Church is no good Prescription otherwise in case he had repaired the Chancel and in consideration thereof had been quit of Tithes the Reason is because the Parson not being obliged to repair the Church hath no recompence And in Sherwood and Winchcombs Case it was Resolved That a man cannot Prescribe to have Tithes as parcel of a Mannor for that they are Spiritual but 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
may consult the Authors in the Margent The Parson of Henley brought an Action of Debt for 600 l. upon the Statute of E. 6. for not setting forth Tithes of Wood and shews that the Defendant had cut down 200 Loads of Wood to the value of 200 l. and saith that the Tenth part of that did amount to 200 l and so he brought his Action for 600 l. upon the Statute And the Plaintiff was Non-suit for one fault in his Declaration for whereas he declares the price of the Wood to be 200 l. it was mistaken for it should have been 2000 l. for he demanded more for the Tenth part than the Principal is by his own shewing If a man buy Wood Tithable and burn it in his own House he shall not pay Tithes thereof as hath been Resolved And no Tithes shall be paid for Wood cut and employed for the enclosures in the Husbandry Also if a man cut Wood and burn it to make Brick for repairing of his Dwelling-house for himself and his Family within the Parish no Tithes shall be paid for that Wood in regard the Parson hath benefit by the labour of the Family otherwise it is in case the Bricks were only to enlarge his house within the Parish and more than needful for his Family as for his pleasure or delight If a man sell Wood to me and I burn it in my house the Vendor shall stand charged for the Tithes thereof and not the Vendee for no Tithes are due for Wood burnt in the Parishioners house as hath been Resolved Pasch 14 Jac. in B. Parson Ellis Drakes Case and Prohibition granted accordingly Although it was said That by the Civil or rather Canon Law the Parson hath his Election to Sue either of them which is contrary to the Common Law In the Lord Clanrickard's Case against Dame Denton the Plaintiff surmized to the Court That all the Vill. of Kent which is a Precinct containig above forty Parishes time out of mind c. have been discharged of the payment of Tithes of Wood under the age of 20 years and the Defendant had sued him in the Ecclesiastical Court and hereupon had a Prohibition And the Defendant Traversed the Custome which a Jury was taken at the Bar to try and for inducement of the Custome Lindwood was produced in Cap. de Decimis where it is said That before that time Tithes were not paid for Wood which is contrary to the Old and New Testament and that Assertion is made by Stratford Archbishop of Canterbury for that this was a Provincial Constitution that at that time viz. 17. E. 3. Tithes of Sylva caedua shall be paid By which Constitution the Comminalty finding themselves grieved exhibited a Bill in Parliament the same year 17 E. 3. reciting the Ancient Usage of not paying such Tithes and the last Constitution to the contrary and prayed a Prohibition to the contrary To which Bill answer was made in this manner viz. Be it done in this case as it hath been done before this time And the next year another Petition was made in Parl. for the same cause to which it was answered also That where Tithes of Wood have not been used to be paid by Custome that a Prohibition shall be granted And these Acts of Parliament the Plaintiffs Counsel produced out of the Parliament-Rolls Crook Justice gave the Rule viz. Quod de grossis aâ—boribus Decimae non dabuntur sed de Sylva Caedua Decimae dabuntur Vid. Dr. Stu. 164. a. 169. b. Anscombe said The Doctor and Student mistook the maker of that Constitution of Stratford Archbishop In a Prohibition for Tithes of Wood it was suggested That in the Parish there is a Custome that all the Parsons of the said Church time out of mind Habuerunt gavisi fuerunt such Lands parcel of the Manner of F. in recompence of all Tithe Wood within the Parish It was the Opinion of the Justices that it was a good Prescription for it may be that at the beginning all the Land was parcel of the Mannor and then the allowance of the Profits of this Land was alotted in discharge of the Tithes of all the Woods within the Parish In Prohibition to stay a Suit in the Ecclesiastical Court for Tithes Wood it was shewed that the Custome of the Parish is That the Owners of any House and Land in the Parish who pay Tithe to the Parson ought not to pay Tithe for Wood spent for Fuel in their Houses It being found for the Defendant the Issue being upon the Custome It was said That notwithstanding there were any such Custome yet Tithe ought not to be paid for Wood spent for Fuel nor for Fencing-stuff but per Legem terrae he ought to be discharged thereof Resolved It is not de jure per Legem terrae that any one is discharged of them for it is usual in Parishioners to alledge a Custome but not to alledge that per Legem terrae he is discharged And in this case the Plaintiff in the Prohibition having alledged a Custome and it being found against him a Cousultation was awarded A Composition was betwixt an Abbot and a Parson that in recompence of the Tithes of all the Woods within the Mannor whereof the Abbot Owner That he should have to him and his Successor 20 Loads of Wood every year in 20 Acres of the said Mannor to burn and spend in his House The Parsonage was Appropriate to the Abbey and after the Abbey was dissolved the King granted the Parsonage to one and the 20 Acres to another It was Resolved That by the Unity the Estovers were not extinct for it they be Tithes they are not extinct by this Unity of possession for that Tithes run with the Lands and Tithes de jure Divino Canonica Institutione do appertain to the Clergy Wool of Sheep is Tithable proportionably to the time they are in the Parish as thus viz. The Parson shall have Eight pound of Wool in Eighty of Forty Sheep in the Parish a whole year Four pound of Wool in Forty if they were there but half the year Two pound of Wool in Twenty if they were there but Three months and but the Tithe or Tenth of the Twelfth part of the Wool if the lay and fed but One month in the Parish The Wool of Sheep shorn and dying before Easter next following such shearing is not Tithable unless the Parson or Vicar can alledge a special Prescription for it Therefore Q. where by Prescription such Tithe is claimed It is said also That a Custome to pay a Halfpeny for the Wool de ovibus venditis after shearing and before Michaelmass is good and that the Sheep discharged shall be Weathers as well as Ewes Also Wool-locks and Flocks of Wool after the Wool made are likewise Tithable if there be more than ordinary left otherwise not And if a Prescription be alledged to be discharged of Locks of Wool it
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
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
and enjoyn him penance according to Ecclesiastical Law but upon such conviction the party shall not he burnt Note says the Lord Coke in the same place that the makers of the Act of 1 Eliz. were in doubt what shall be deemed Heresie or Schism c. and therefore the Statute of 10 Eliz. provides that nothing shall be deemed Heresie but what had been so determined by one of the four General Councils the word of God or Parliament vid. Fox in Ed. 6. and Britton 5 Ed. 1. lib. 1. cap. 17. and with this agrees the Statute 2 H. 5. cap. 7. 23 H. 7. 9. 25 H. 8. c. 14. The proceedings in the commencement and end was altered by the Statute of 25 H. 8. Then came the Statute 1 Ed. 6. cap. 12. and that repealed 5 R. 2. 2 H. 5. and 26 H. 8. and the 2 H. 4. and by general words all Statutes concerning matter of Religion then the 1 2. P. M. cap. 6. Revived the 2. H. 4. by which the 25. H. 8. lost it's force the Act 1 and 2 P and M. cap. 8. expresly repealed 21 H. 8. 23. H. 8. 24. H. 8. 27. H. 8. but the 25. H. 8. cap. 14. was not repealed being repealed before by the 1. Ed. 6. yet in the end of that long Act there is a general clause sufficient of it self to repeal the Act 25. H. cap. 14. without more Then the 1. Eliz. cap. 1. repeals the 1 and 2 P. and M. except some Branches and in the same Act it is enacted that all other Statutes repealed by the said Act of Repeal 1 and 2 P. and M. and not in this Act specially revived shall remain repealed But the 25. H. 8. cap. 14. was not particularly revived and therefore remains repealed And after the said Statute 1. Eliz. repeals the Act 1 and 2 P. and M. of reviving of three Acts for punishment of Heresies so that now at Common Law according to the Lord Coke none can be burnt for Heresie but by Conviction at a Convocation After this viz. Hill 9. Jac. the Atturney and Sollicitor consulted with him whether at this day upon Conviction of an Heretick before the Ordinary the Writ de Haeretico Comburendo lieth and it seemed to him to be clear that it did not for the Reason and Authorities that he had reported Trin. 9. Jac. before But after they consulting also with Fleming Chief Justice Tanfield Chief Baron and Williams and Crook Justices And they upon the report of Dr. Cosins and some Presidents in Queen Elizabeths time certified the King that the said Writ lieth 8. Since the Devil in his Serpentine Policy first negotiated the Fall of Man there have ever been such as have gone forth like the lying Spirit in Ahabs false Prophets whereby many as he was are deceived to their own Ruine these are the Divels Emissaries Active in sowing Tares among the Wheat whom we commonly call Hereticks a Black Catalogue whereof in an Alphabetical Method here follows Acatiani and Semi-Arriani they held that the Son was a Creature made by the Father and that Christ was like to the Father in Will but not in Substance This Heresie began by Acatius not the Eutychian Bishop and Successor to Eusebius in Cesaria and was condemned in the Council of Seleucia Acephali so called because they had neither Bishop nor Priest for their Head and were Branches of the Eutychian Heresie They rejected the Council of chalcedon and denied the two Natures of Christ They despised all Congregations and the Sacraments Adamiani so called from their going naked in their Assemblies in imitation of Adam in his Innocency to which Estate they said Christ had restored Mankind They condemned Marriage and had Women in common with whom they lay promiscuously after the Light put out They held that we ought not to pray to God because he knows our wants without Prayer And called their Assemblies that Paradice which God had promised to the Blessed They had their Conventicles in subterrancan places called Hypacausta because that under the place of their Meetings a Furance of Fire was kindled to warm the same where they unclothed themselves when they entered into it and stood naked both Men and Women in imitation of Adam and Eve before the Fall This Heresie was first broach'd by one Prodicus a Gnostick There was also the Heresie of Adamites promiscuous in their Lusts begun or rather revived by a Picard of Gallo-Belgia in the year 1341. AEtius a Syrian of Antioch and Priest of that Church successor to Arius to whose Errors he added and was degraded and went into Cicilia where he published them and was banished by the Emperour and recalled by Julian in hatred to the Christians He held besides Arrianism that God was comprehensible and that Christ was unlike the Father in all things and spake uncouth things of the Trinity and was justly called an Atheist He was condemned in the Seleucian Council in the year 359. and confuted by Epiphanius Agnoetae they held that the Divine Nature of Christ was ignorant of some things as of the day of Judgement and denied perfection of knowledge to the Son of God in his Divine Nature Almaricani from Almaricus of Carnotum in France who uttered Blasphemous opinions concerning God that he was the Essence of all Creatures and the Soul of Heaven and that all Creatures should be converted into the Substance of God again These Hereticks approved of all Uncleaness under the Veil of Chastity Alogi they rejected the Gospel and the Revelation of St. John saying that they were written by Cerinthus and denied Christ to be the Word as also his Divinity Angelici These Hereticks were Angel-Worshippers Epiphanius who speaks of them better knew their Name than the original of their Sect. Anomaei a Branch of the Stock of the Arians the principal Authors were Acatius Eunomius and AEtius This was in the fourth Century Sozom. l. 4. c. 22. Anthropomorphitae these Hereticks were the Disciples of the Andeani an 370. and revived their Heresie so called of Audaeus a Syrian who lived in the end of Arius his time They Blasphemously held that God had a body like unto Man That Darkness Fire and Water were Eternal They refused the congregation of the Orthodox Church admitted greivous Sinners to the Communion without Repentance Antidicomarianitae these supposed that after the Nativity of our Lord the Virgin Mary accompanied with her Husband Joseph and did bear Children to him August de haeres of which opinion was Helvidius It is said that the opinion of the Fathers of the Church was that as no man did lie in the Sepulchre wherein Christ was buried before him So in the Womb wherein he was conceived no man was conceived after him and that the Fathers by the words in the Apostolick Symbol understood that he was born of Mary a perpetual Virgin And that by the Brethren of our Lord in the