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
for the avoiding of Leases made by a Parson by his Absence from his Living by the space of eighty daies in one year and also shews that one Stallowe who was Parson of Sharrington to whom these Tithes did belong and in whose Right the Defendant claimed them was Absent from his Parsonage by the space of eighty daies in one year and shews in what year and so by this his interest determined and Agreement with the Plaintiff by this made void but they found further as the Plaintiff made it to appear That Stallowe the Parson of Sharrington was not Absent in manner as it was alledged for that they found that he did dwell in another Town adjoyning but that he came constantly to his Parish-Church and there read Divine Service and so went away again They did also find hat he had a Parsonage-house in Sharrington fit for his habitation and whether this were an Absence within the Statute as to avoid his Lease they left that to the Judgment of the Court Yelverton Justice This is a good Non-Residency within the Statute of 21 H. 8. cap. 13. but not an Absence to avoid a Lease made within the Statute of 13 Eliz. cap. 20. It cannot be said here in this Case that he was Absent for he came four daies in every week and in his Parish-Church did read Divine Service Williams Justice upon the Statute of 13 and 14 Eliz the Parson ought not to be Absent from his Church eighty daies together in one year à Rectoria sua but this is not so here for he came to his Church and read Divine Service there every Sunday Wednesday Friday and Saturday and therefore clearly this cannot be such an Absence within the scope and intention of these Statutes as thereby to avoid his Lease Yelverton Justice he ought to be Absent eighty daies together per spatium de Octogin diebus ultra and this to be altogether at one time and so the same ought to have been laid expresly the which is not so done here for that it appears here that he was at his Parsonage-house and did read Prayers every Sunday Wednesday Friday and Saturday and so the whole Court were clear of Opinion that this Absence here as the same appeared to be was not such an Absence by the space of eighty daies in one year to avoid his Lease within the said Statute and so the Defendants Plea in Barr not good and therefore by the Rule of the Court Judgment was entered for the Plaintiff 17. An Information was Exhibited against Two Parsons by J. S. upon the Statute of 21 H. 8. cap. 13. against one of them for Non-Residency and against the other for taking of a Farm the one of them pleaded Sickness and that by the Advice of his Physicians he removed into better Air for Recovery of his health and this is justifiable by the whole Court vid. more for this Coke 6. par fo 21. in Butler and Goodall's Case The other pleaded That he took the Farm for the maintenance of his House and Family And this also is justifiable by the Opinion of the whole Court Crooke moved the Court for the Defendants That the Plaintiff was a Common Informer and that he did prefer this Information against them only for their vexation and so to draw them to compound with him as formerly he hath so done by others for which they prosecuted an Indictment in the Countrey upon the Statute of 18 Eliz. cap. 5. made to punish Common Informers for their Abuses The whole Court did advise them to prosecute this Indictment against him Crooke moved for the Defendants That in regard the Informer is a man of no means that the Court would order him to put in sufficient Sureties to answer Costs if the matter went against him and that then the Defendants would presently answer the Information Williams Justice nullam habemus talem legem this is not to be done but the Rule of the Court was That the Defendants should not answer the Information until the Informer appeared in person 18. In an Action of Covenant the Plaintiff in his Declaration sets forth that the Defendant was Parson of D. and did Covenant That the Plaintiff should have his Tithes of certain Lands for thirteen years and that afterwards he Resigned and another Parson Inducted by which means he was ousted of his Tithes and for this cause the Action brought The Defendant pleads in Barr the Statutes of 13 Eliz. cap. 20. and 14 Eliz. cap. 11. for Non-Residency upon which Plea the Plaintiff demurr'd in Law It was urged for the Plaintiff That the Plea in Barr was not good because it is not averred that the Defendant had been Absent from his Parsonage by the space of Eighty daies in a year for otherwise the Covenant is not void by the Statutes For the Defendant it was alledged That the pleading of the Statute of 13 Eliz. is idle but by the Statute of 14 Eliz. this Covenant is made void for by the Statute all Covenants shall be all one with Leases made by such Parsons And in this case if this had been a Lease this had been clearly void by Surrender of the Parson and so in case of a Covenant Doderidge and Houghton Justices The Statutes of 13 and 14 Eliz. do not meddle with Assurances at the Common Law nor intended to make any Leases void which were void at the Common Law and therefore this Covenant here is not made void by the Statute unless he be Absent Eighty daies from his Parsonage Coke Chief Justice agreed with them herein They all agreed in this Case for the Plaintiff and that by the Preamble of 14 Eliz. it is shewed the intent of the Statute to be to make Covenants void within the Provision of 13 Eliz. by Absence for Eighty daies And Judgment in this Case was given for the Plaintiff CHAP. XXIX Of Abbots and Abbies also of Chauntries and of the Court of Augmentations 1. Abbot what why so called the several kinds thereof and how many anciently in England 2. A famous Abbot anciently in Ireland The manner of their Election prescribed by the Emperour Justinian Anciently the Peers of France were frequently Abbots 3. The ancient Law of King Knute concerning Abbots 4. The Abbot with the Monks making a Covent were a Corporation 5. Abbots were either Elective or Presentative they were Lords of Parliament How many Abbies in England and which the most Ancient Founded by King Ethelbert 6. Chaunter and Chauntries what and whence so called their use and end 47 belonging anciently to St. Pauls in London when and by what Laws their Revenues were vested in the Crown 7. Before King John's time Abbots and Priors were Presentative afterwards Elective 8. Six Differences taken and Resolved in a Case at Law touching Chauntries 9. Certain Cases in Law touching Lands whether under pretence of Chauntries given by the Statute to the King or not 10. What the Court of Augmentations was the end
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
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
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.
consent of Five others of the said Commissioners his Companions and namely which Deprived him It was not sound that the Commissioners were the Natural born Subjects of the Queen as the Statute Enacts that they should be And it was moved That the Deprivation was void 1 Because that whereas the Commission is to them or any Three of them of which the said Bishop to be one amongst others it ought to have been the Sentence of them all according to the Authority given to them which is equal and not of one with the assent of the other 2 Because it is not found that the Commissioners are the Natural born Subjects of the Queen as by the words of the Statute they should be 3. Because the punishment which the Statute provides for those of the Ministry which deprave this Book is to lose the profits of all their Spiritual promotions but for a year and to be Imprisoned by the space of Six months and not to be Deprived till the Second offence after that he had been once committed and therefore to deprive him for the First offence was wrongful and contrary to the Statute But the whole Court for the Form of the Deprivation it is that which is used in the Ecclesiastical Courts which alwaies names the chief in Commission that are present at the beginning of the Sentence and for the other they mention them only as here but of their assent and consent to it and in such cases we ought to give credit to their Form and therefore it is not to be compared to an Authority given at Common Law by Commission And it is to be intended that the Commissioners were the Natural born Subjects of the Queen unless the contrary appear But here at the beginning it is found That the Queen Secundum tenorem effectum Actus praedict had granted her Commission to them in causis Ecclesiasticis and therefore it appeareth sufficiently that they were such as the Statute wills them to be And for the Deprivation they all agreed that it was good being done by Authority of the Commission for the Statute is to be understood where they prosecute upon the Statute by way of Indictment and not to restrain the Ecclesiastical Jurisdiction being also but in the Affirmative And further by the Act and their Commission they may proceed according to their discretion to punish the Offence proved or confessed before them and so are the words of their Commission warranted by the Clause of the Act. And further the Ecclesiastical Jurisdiction is saved in the Act. And all the Bishops and Popish Priests were deprived by virtue of a Commission warranted by this Clause in the Act. Vid. Hill 33 Eliz. Rot. 315. 10. Before many Noble-men Archbishops and Bishops and the Justices and Barons of the Exchequer 1 agreed That the Deprivation of Minsters for Non-conformity to the last Canons was lawful by the High Commissioners For by the Common Law the King hath such a power in Causes Ecclesiastical and it is not a thing de novo given by the First of Eliz. For that is Declaratory only c. and the King may delegate it to Commissioners And the King without a Parliament may make Constitutions for the Government of the Clergy and that such a Deprivation ex officio without Libel is good 2. That the Statute of 5 H. 5. c. 4. is to be intended when they proceed upon Libel and not when ex officio Read the Statute 3. When their Petition is Subscribed by a great number with intimation That if the King denies their Suit that many thousands of his Subjects shall be discontented That this is an Offence Finable at discretion and is near to Treason by raising Sedition by Discontent c. Vid. More 's Rep. Trin. 2 Jac. in the Star-Chamber 11. By the Statute of 13 Eliz. cap. 12. it is Enacted That every person c. to be Admitted to a Benefice with Cure except that within Two months after his Induction he publickly Read the said Articles in the same Church whereof he shall have Cure in the time of Common Prayer there with declaration of his unfeigned assent thereto c. shall be upon every such default ipso facto immediately deprived Then follows afterwards a Proviso relating to this clause viz. Provided alwaies That no Title to conferr or Present by Lapse shall accrue upon any Deprivation ipso facto but after Six months after Notice of such Deprivation given by the Ordinary to the Patron Thus the Patron immediately upon such Deprivation may Present if he please and his Clerk ought to be Admitted and Instituted but if he doth not no Lapse incurrs until after Six months after Notice of the Deprivation given to the Patron by the Ordinary who it seems is to supply the Cure until the Patron Present In the last Case of the Lord Dyer 23 El. it was Resolved That where a man having a Living with Cure under value accepted another under value also having no Qualification or Dispensation and was Admitted Instituted and Inducted into the Second but never Subscribed the Articles before the Ordinary as the Statute of 13 of El. requires Upon Question whether the First Living vacavit per mortem of him or not the Court Resolved That the First Living became vacant by his death and not by accepting the Second because he was never Incumbent of the Second for not Subscribing the Articles before the Ordinary whereby his Admission Institution and Induction into the Second Living became void as if they had never been This differs from the Case of not Reading the Articles within Two months after Induction For the not Subscribing the Articles makes that he never was Incumbent of the Second Living and consequently no cause of losing the First but the not Reading the Articles within Two months after Induction doth cause a deprivation of that whereof he was Incumbent For as an Incumbent that without qualification or dispensation doth take a Second Living doth thereby lose the First so the same Incumbent for not Reading the Articles within Two months after his Induction into the Second may lose the Second and thereby lose both viz. the First by taking a Second without qualification or dispensation and the Second for not Reading the Articles as aforesaid whereof he was Compleat Incumbent by Admission Institution and Induction of the Second Living full Two months before he lost it for not Reading the Articles 12. Parker being Parson of a Church was deprived by the High Commissioners for Drunkenness and moved for a Prohibition but it was not granted and he was directed to have Action for the Tithe and upon that the validity of the Sentence shall be drawn in question If a man be Admitted Instituted and Inducted to a Church and afterwards is deprived for that he was Instituted contrary to the course of the Ecclesiastical Law such Sentence of deprivation is void at the Common Law for that it is
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
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
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
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
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
for the visitation of the Ecclesiastical State and Persons and for-Reformation Order and Correction of the same and of all manner of Errors Heresies Schisms Abuses Offences Contempts and Enormities shall for ever by Authority of this Parliament be united and annexed to the Imperial Crown of this Realm This Act by a former Clause thereof doth Repeal the Statute of 1 and 2 Ph. Ma. c. 8. whereby the Acts of 26 H. 8. c. 1. and 35 H. 8. c. 3. were repealed so that the Act of Repeal being repealed the said Acts of H. 8. were implicitely revived whereby it is declared and enacted That the King his Heirs and Successors should be taken and accepted the only Supream Head in Earth of the Church of England and should have and enjoy annexed to the Imperial Crown of this Realm as well the Title and style thereof as all Honours Dignities Prebeminencies Jurisdictions c. to the said dignity of Supream Head belonging c. By which Style Title and Dignity the King hath all Ecclesiastical Jurisdiction whatever And by which Statute the Crown was but remitted and restored to its Ancient Jurisdiction which had been formerly usurped by the Bishop of Rome And this is that Supremacy which is here meant and intended 3. The said Statute of 1 Eliz. c. 1. doth not only repeal the said Stat. of 1 and 2 P. M. c. 8. but it is also a reviver of divers Acts asserting several branches of the Kings Supremacy and re-establishing the same it doth likewise not only abolish all Forreign Authority but also annex the Ecclesiastical Jurisdiction to the Crown of this Realm with power to assign Commissioners for the exercise of Ecclesiastical Jurisdiction And then further Enacts to this effect viz. That all Ecclesiastical persons of what degree soever and all and every Temporal Judge Justice Mayor or other Lay or Temporal Officer or Minister and every other person having Fees or wages from the Crown within this Realm or the Dominions thereof shall upon his Corporal Oath testifie and declare in his Conscience That the Kings Majesty is the only Supream Governour of this Realm and of all other his Majesties Dominions and Countries as well in all Spiritual or Ecclesiastical things or causes as Temporal And that no Forreign Prince Person Prelate State or Potentate hath or ought to have any Jurisdiction power superiority preheminence or authority Ecclesiastical or Spiritual within this Realm And therefore doth utterly renounce and forsake all Forreign Jurisdictions powers superiorities and authorities and doth promise that from henceforth be shall bear Faith and true Allegiance to the Kings Majesty his Heirs and lawful Successors and to his power shall assist and defend all Jurisdictions priviledges preheminencies and authorities granted or belonging to the Kings Majesty his Heirs and Successors or united or annexed to the Imperial Crown of this Realm The practices of the Romanists in the 4th year of Queen Elizabeth and the danger thereby threatning both the Queen and State occasioned her to call a Parliament 12. Jan. An. 156 2 3 which passed an Act For assurance of the Queens Royal power over all Estates and Subjects within her Dominions By which Statute was enacted The Oath of Supremacy as also what persons were obliged to take it and who should have power to administer the same And this was both the original and the cause of that Oath By the said Statute of 1 El. c. 1. appears also what the penalty is for refusing to take the said Oath as also the penalty of maintaining a Forreign Authority as likewise what other persons than the fore-mentioned shall be obliged to take the said Oath which was afterwards again further ratified and established by the Statute of 5 Eliz. c. 1. 4. The King within his own Territories and Dominions is according to Bracton Dei Vicarius tam in Spiritualibus quam Temporalibus And in the Ecclesiastical Laws of Edward the Confessor the King is styled Vicarius summi Regis Reges regunt Ecclesiam Dei in immediate subordination to God Yea the Pope himself Eleutherius An. 169. styled King Lueius Dei Vicarius in Regno suo 5. The Supremacy which heretofore the Pope did usurp in this Kingdom was in the Crown originally to which it is now legally reverted The Kings Supremacy in and over all Persons and Causes Ecclesiastical within his own Dominions is essentially inherent in him so that all such Authority as the Pope here once usurped claiming as Supream Head did originally and legally belong to the Crown and is now re-united to it by several Statutes as aforesaid On this Supremacy of the King as Supream Head Sr. Edward Coke grounds the power of granting a Commission of Review after a Definitive Sentence in the Delegates for one Reason that he gives is because after a Definitive Sentence the Pope as Supream Head by the Canon Law used to grant a Commission Ad Revidendum And such Authority as the Pope had claiming as Supream Head doth of right belong to the Crown Quia sicut Fontes communicant aquas fluminibus cumulative non privitive sic Rex subditis suis Jurisdictionem communicat in Causis Ecclesiasticis vigore Statuti in hujusmodi Casu editi cumulative non privitive By the Second Canon of the Ecclesiastical Constitutions of the Church of England it is ordained That whoever shall affirm that the Kings Majesty hath not the same Authority in Causes Ecclesiastical that the godly Kings had among the Jews and Christian Emperors in the Primitive Church or impeach in any part his Regal Supremacy in the said Cases restored to the Crown and by the Laws of this Realm therein established shall be Excommunicated ipso facto and not be restored but only by the Archbishop after his repentance and publick revocation of those his wicked Errors 7. The King being next under God Supream Governour of the Church of England may Qua talis redress as he shall see cause in all matters of Spiritual and Ecclesiastical Jurisdiction for the conservation of the Peace and Tranquillity of his Realms The Pope as appears by the Stat. of 25 H. 8. c. 21. claimed full power to dispense with all human Laws of all Realms in all Causes which he called Spiritual Now the King as Supream hath the same power in himself within his own Realms legally which the Pope claimed and exercised by Usurpation Eadem praesumitur mens Regis quae est Juris The Kings immediate personal ordinary inherent power which he executes or may execute Authoritate Regia suprema Ecclesiastica as King and Supream Governour of the Church of England is one of these Flowers qui faciunt Coronam Nor is the Kings immediate power restrained by such Statutes as authorize inferiour persons The Lord Chief Justice Hobart asserts That although the Stat. of 25 H. 8. 21. doth say That all Dispensations c. shall be granted in manner and
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
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
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
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
in question hath been of a Mixt nature in reference to Jurisdictions 29. Certain Reasons for denial of Prohibitions to the Ecclesiastical Court in some Cases where they might lie 30. Bounds of Parishes in reference to the Tithes thereof whether Tryable by the Law of the Land or by the Law of the Church 31. Where the Question is more touching the Right of Tithes than the Bounds of the Parish the Ecclesiastical Court hath had the cognizance 32. The Ecclesiastical Court hath cognizance of Administrators Accounts and no Prohibition lies 33. Modus Decimandi sued for by a Parson in the Eccllesiastical Court no Prohibition Nor if he there sues for the Tithe of things not Titheable 34. In what cases a Custome as also a Rent may be sued for in the Ecclesiastical Court 35. If Question be touching the Grant of a Registers Office in a Bishop's Court or touching the Tenth after severance from the Nine parts In what Court whether Temporal or Ecclesiastical it shall be tryed 36. A Woman exercising the Profession of a Midwife without License is therefore sued in the Ecclesiastical Court whether a Prohibition lies in that case 37. The Bounds of a Parish also whether such a Church be Parochial or only a Chappel of Ease In what Court this is to be tryed 38. A Prohibition granted upon the disallowance of an Executors Plea of having Assets only to pay Debts in opposition to a Legacy sued for in the Ecclesiastical Court 39. A Prohibition awarded upon a Suit in the Ecclesiastical Court for an account of the Profits of a Benefice Otherwise in case the Profits were taken during the time of a Sequestration 40. A Prohibition granted to a Party to stay proceedings in his own Suit and commenced by himself 41. Pensions are sueable only in the Ecclesiastical Court 42. The right of Tithes coming in question between the Parson and the Vicar is a Suit properly belonging to the Ecclesiastical Court 43. Whether and how far and in what manner the Ecclesiastical Court may take cognizance of a Modus Decimandi at large debated 44. When and how the Canon Law was introduced into this Realm 1. BEfore the time of King William the Conqueror all matters as well Spiritual as Temporal were determined in the Hundred-Courts where was wont to sit one Bishop and one Temporal Judge called Aldermanus the one for matters of Spiritual the other of Temporal cognizance But that was altered by King William and it seems by Parliament for it was by the assent of the Bishops Abbots and all the chief persons of the Realm for he Ordained That the Bishop or Archdeacon should not hold Plea of the Episcopal Laws quae ad Regimen animarum pertinent in the Hundred but by themselves and there administer Justice not according to the Law of the Hundred but according to the Episcopal Laws and Canons as appears by King William's Charter Irrot. 2. R. 2. pro Decano Capitulo Eccles Lincolne Jan. Angl. 76 77. The Principal Courts Ecclesiastical whereof some are now out of use were and are the Convocation Court the High Commission Court the high Court of Arches the Prerogative Court of Canterbury the Court of Delegates the Court of Audience the Court of Peculiars the Court of Faculties besides the Bishops Consistories the Archdeacons Courts and the like anciently called Halimots or holy Courts And the Saxon Kings long before William the Conqueror made several Laws for the Government of the Church Among others St. Edward begins his Laws with this Protestation that it is his Princely charge Vt Populum Domini super omnia Sanctam Ecclesiam regat gubernet And King Edgar in his Oration to his English Clergy Ego saith he Constantini vos Petri gladium habetis jungamus dextras gladium gladio Copulemus ut ejiciantur extra castra Leprosi purgetur Sanctuarium Domini But upon the Conquest made by the Normans the Pope took the opportunity to usurp upon the Liberties of the Crown of England for the Conqueror came in with the Popes Banner and under it won the Battel Whereupon the Pope sent two Legates into England with whom the Conqueror called a Synod deposed Stigand Archbishop of Canterbury because he had not purchased his Pall in the Court of Rome and displaced many Bishops and Abbots to make room for his Normans Among the rest the King having earnestly moved Wolstan Bishop of Worcester being then very aged to give up his Staff was Answered by him That he would give up his Staff only to him of whom he first received the same And so the old Bishop went to St. Edward's Tomb and there offered up his Staff and Ring with these words viz. Of Thee O holy Edward I received my Staff and my Ring and to thee I do now surrender the same again Which proves that before the Norman Conquest the Kings of England invested their Bishops per Annulum Baculum By this admission of the Pope's Legates was the first step or entry made into his usurped Jurisdiction in England yet no Decrees passed or were put in execution touching matters Ecclesiastical without the King 's Royal Assent nor would he submit himself in point of Fealty to the Pope as appears by his Epistle to Gregory the Seventh Vid. Da. Rep. Case of Praemunire fo 89. yet in his next Successors time in the time of William Rufus the Pope by Anselme Archbishop of Canterbury attempted to draw Appeals to Rome but prevailed not Upon this occasion it was that the King told Anselme That none of his Bishops ought to be subject to the Pope but that the Pope himself ought to be subject to the Emperour and that the King of England had the same absolute Liberties in his Dominions as the Emperour had in the Empire Yet in the time of the next King H. 1. the Pope usurped the Patronage and Donation of Bishopricks and all other Benefices Ecclesiastical at which time Anselme told the King That the Patronage and Investure of Bishopricks was not his Right because Pope Urban had lately made a Decree That no Lay-person should give any Ecclesiastical Benefice And after this in a Synod held at London An. 1107. a Decree was made Cui annuit Rex Henricus says Matth. Paris that from thenceforth Nunquam per donationem Baculi Pastoralis vel Annuli quisquam de Episcopatu vel Abbathia per Regem vel quamlibet Laicam manum investiretur in Anglia Hereupon the Pope granted That the Archbishop of Canterbury for the time being should be for ever Legatus Natus And Anselme for the honour of his See obtained That the Archbishop of Canterbury should in all general Councils sit at the Pope's foot tanquam alterius Orbis Papa Yet after Anselme's death this same King gave the Archbishoprick of Canterbury to Rodolph Bishop of London says Matth. Paris Et illum per Annulum Pastoralem Baculum investivit as before he had invested William Gifford in
Advowson lieth for him who hath an Estate in an Advowson in Fee-simmple or Right of an Estate therein to him and his Heirs in Fee-simple Which Writ being Quod clamat tenere de te doth suppose a Tenure and lieth not only for the whole Advowson but also for some part thereof As also because a Praecipe quodreddat lieth for it as hath been Adjudged As also that a Common Recovery may be suffered of an Advowson as hath been likewise Adjudged As also because an Advowson as other Temporal Inheritances may be forfeited by Attainder of Treason or Felony or lost by Usurpation six months Plenarty Recusancy Outlawry Negligence or Lacks of Presentment Translation or Cesser and given away in Mortmain As also for that the Wife shall be endowed thereof and have the third Presentment and the Husband shall be Tenant thereof by the Courtesie also it is successively devisable among Coparceners that the priority of Presentment shall be in the eldest Sister likewise it may pass by way of Exchange for other Temporal Inheritance and albeit during the vacancy of the Church it be not in it self valuable yet otherwise it is as to an Incumbent and by Grat of all Lands and Tenements an Advowson doth pass if not by Livery yet by Deed is transferable as other Temporal Inheritances and pass with the Mannors whereunto they are appendant by Prescription unless there were before a severance by Grant Deed Partition or other Legal Act which Prescription is so requisite to Appendancy as without which it cannot well be at all 8. An Advowson in Gross is understood as under a more beneficial qualification than that which is Appendant and that which is Appendant may by severance become an Advowson in Gross And therefore in the Case where a man being seized of a Mannor whereto an Advowson was Appendant and by Deed granting one Acre belonging to that Mannor unà cum Advocatione Ecclesiae did further by the same Deed give and grant the said Advowson the Question was whether the Advowson did pass as Appendant to the Acre or as an Advowson in Gross And the better Opinion was That by that Grant the Advowson was severed from the Mannor and was become in Gross for that the Deed shall be taken most beneficial for the Grantee to have the Advowson in Gross and not as Appendant to the Acre But in that case it was Agreed If the whole Mannor had been granted then the Advowson had passed as Appendant and not in Gross Yet an Advowson Appendant to a Mannor descending to divers Coparceners making Partition of such Mannor without mentioning the Advowson remains Appendant notwithstanding such Division and Severance from the Mannor Yea although the Mannor of D. to which an Advowson is Appendant be granted and by the same Deed the Advowson also of the Church of D. So as it is named no otherwise than in Gross yet it shall thereby pass only as Appendant 9. If the King makes a Lease for life of a Mannor to which an Advowson is Appendant without making any mention of the Advowson the Advowson remains in the King as in Gross as was granted by the Justices And it was said by them That in such case by Grant of the Reversion Habendum the Reversion with the Advowson the Advowson passeth not to the Patentee for that the Advowson was severed and became in Gross as to the Fee And in another Case where it was found before Commissioners That A. was seized of a Mannor to which an Advowson was appendant and that he was a Recusant convict whereupon two parts of the Mannor were seized into the Kings hands who leased the Mannor with Appurtenances and all profits and commodities and Hereditaments to the same belonging unto J. S. for 21 years if A c. and afterwards the Church became void In this Case it was held That albeit there was no mention in the seizure of the Advowson yet the Presentment belonged to the King and that the King alone should Present Secondly That there were no words in the Kings Grant to J. S. to carry away the Advowson from the King and that notwithstanding that Grant the Advowson remained still Appendant to the Mannor 10. By words implying meerly matter of profit or things gainful as Cum omnibus commoditatibus Emolumentis proficuis advantagiis and the like an Advowson will not pass because it is contrary to the nature of an Advowson regularly and therefore the Advowson of a Vicarage appendant to a Prebend passed not by a Lease with such words of several parts of the Prebend to which such Advowson was appendant Not will an Advowson appurtenant to a Mannor pass by the Grant of an Acre of Land parcel of that Mannor cum pertinentiis otherwise if the Grant be of the Mannor it self cum pertinentiis Yet in a Case where the King being seized of a Mannor to which an Advowson was appendant granted the Mannor to J. S. for life and then granted the Mannor to J. D. after the death of J. S. Habendum cum Advocatione and then by Parliament the King reciting both the Grants confirmed them by Parliament yet it was Adjudged in that Case That the Advowson did not pass Nor will an Advowson if once Appendant pass without special words of Grant thereof which may not be strained in the construction thereof to an unusual or unreasonable sense for which reason an Appropriation will not pass by the name of an Advowson but as aforesaid an Advowson of a Vicarage may be Appendant to a Prebend All which hath been Resolved in the fore-cited Case And if Tenant in Tail be of a Mannor to which an Advowson is appendant the Church being full and he grants proximam Advocatione and then dies by his death the Grant becomes meerly void as was also Resolved in Walter and Bould's Case In a Quare Impedit The Case was between the Chancellor and Scholars of Oxford and the Bishop of Norwich and others The Plaintiff counted upon the Statute of 3 Jac. That J. S. being Owner of an Advowson 2 Jac. was a Recufant convict and that afterwards the Church became void and so they by the Statute ought to Present One of the Defendants pleaded That the Advowson was appendant to a Mannor and that two parts of the Mannor were seized into the Kings hands by Process out of the Exchequer and that the King by his Letters Patents granted the Two parts to the Defendant with the Appurtenances and granted also all Hereditaments but Advowsons were not mentioned in the Letters Patents and so said the Presentation did belong to the Defendant It was Resolved That the Advowson did not pass by the word Appurtenances without mention of Advowson or words Adeo plena integra in tam amplo modo forma as the Recusant had the Mannor 11. In case a Patron be Outlawed and the Church becoming
of Advowson of a Church he may only say that he was seized as of Fee and not in his Demesn as of Fee whether it be an Advowson in Gross or Appendant which Appendancy is held to be for the most part by Prescription and must relate to such things as are in their own nature of a perpetual continuance for which reason it is That Advowsons cannot be said to be Appendant to Rents Services and the like because such things are extinguishable And although an Advowson be not properly said to be a Demesn yet it may be Appendant to a Demesn as of Lands or things Corporeal and Perpetual and therefore as supposed not to a House of habitation meerly quatenus such yet to the Soyl whereon the House is erected whereby the Law which hath the clearest prospect of Casualties at a distance hath provided that the Advowson shall stand though the House fall but an Advowson Disappendant and in Gross which in man hath alone and not by reason of any other thing but severed from the Lands to which it was Appendant such an Advowson is exempt from divers prejudicial Incidents which the other viz. the Appendant cannot well avoid And where a Subject or Common person hath an Advowson Appendant to a Mannor and there be an Usurpation upon him by a Presentation made by a Stranger whose Clerk is in for Six months though this makes the Advowson of such Common person Disappendant to his Mannor yet it is otherwise in case of the King who may grant the Advowson notwithstanding such Usurpation for a man cannot put the King out of possession either by Presentation or Usurpation as hath been Adjudged Nor doth the King's Presentation by Lapse sever the Advowson from the Mannor or cause it to become disappendant as in Gawdy's Case against the Archbishop of Canterbury and Others was likewise Adjudged in which Case it was also said by Habard Chief Justice That neither doth a wrongful Collation of the Bishops make any Disappendancy nor any binding Plenarty against the true Patron but that he may not only bring his Quare Impedit when he please but also Present upon him seven years after Also whereas it was said before That an Advowson cannot be Appendant to things Extinguishable as to Rents Services and the like so it seems at the Common Law an Advowson in Possession cannot be Appendant to a Reversion expectant upon an Estate for life for the Case was The King seized of a Mannor with an Advowson Appendant granted the Mannor to J. S. for life and then granted the Mannor to J. D. after the death of J. S. Habendum una cum Advocatione and then by Parliament the King reciting both the Grants confirmed them by Parliament yet the Advowson passed not Finally whereas also it hath been Adjudged as aforesaid that the King cannot be put out of possession either by Presentation or Usurpation this seems to refer only as to the Kings Advowson and not as to his present Presentation for the Opinion of Sir H. Hobart Chief Justice is That although the King may be dispossessed of his present Presentation he cannot be so of his Advowson and therefore he may still grant it notwithstanding the Usurpation as was Judged in a Writ of Error upon a Judgment given to the contrary between the King and Campion for the Vicarage of Newton Valence 23. A Donative in the Kings Gift may be with Cure of Souls as the Church of the Tower of London is a Donative in the Kings Gift with Cure as in the Case of Fletcher and Mackaller where Information was brought upon the Stat. 31 Eliz. of Simony for procuring him to be promoted to the Church of the Tower for money and per Curiam it well lies 24. The Queen hath the Advowson of the Vicarage of H. and grants the Vicarage to J. S. It was the Opinion of all the Justices that the Advowson passeth not for that the Vicarage is another thing than the Advowson of the Vicarage The Queen seized of a Mannor to which an Advowson was appendant granted the Mannor cum Advocatione Ecclesiae the Church being then void It was Adjudged the Avoidance did not pass but the Queen should Present pro hac vice And in the Queen and Hussie's Case it was Resolved That a double Presentation would not put the Queen out of possession if she hath Right And in Stephens and Clarks Case it was Resolved That the Grant of the next Avoidance to one during the Avoidance is void in Law CHAP. XX. Of Appropriations 1. The great Antiquity of Appropriations a Conjecture of their Original whether Charles Martell was the occasion thereof they were prohibited in England anciently by the Pope whether they can be otherwise than by the King or some Authority derived from him 2. How the End and use of Appropriations is changed at this day from what it was in the Original Institution thereof 3. Appropriators why called Proprietarii The care of R. 2. in making Provision for thé Vicar in case of Appropriations Requisites of Law to make an Appropriation 4. A further discovery of the Original use and ends of Appropriations and under what qualifications 5. Whether Appropriations were anciently grantable to Nunneries 6. Appropriations not now to be questioned as to their Original 7. A Vicarage endowed may be Appropriated but not to a Parson 8. Three considerable Points of Law resolved by the Justices touching Appropriations 9. Whether an Advowson may be Appropriated without a Succession Appropriations usually were to Corporations or Persons Spiritual 10. How a Church Appropriate may be disappropriated 11. In Appropriations the Patron and his Successors are perpetual Parsons 12. Whether an Appropriation of a Parsonage without endowment of the Vicarage be good Also whether an Appropriation may be made without the Kings License 1. IT is a question at this day undecided Whether Princes or Popes were the first Authors of Appropriations the practice whereof by each of them is of great Antiquity but whether in imitation of Charles Martell's Sacrilegious President the first by whom Tithes were ever violated in the Christian World is but a Supposition rather than any Assertion among Historians It was long since Traditionally Recorded in History that about the year 650. when the said Charles Martell Father of Pipin after King of France in defence of his Country against the Hunnes Gothes and Vandals had slain no less than 34500 of those Infidel Sarazens in one Battel he did not restore to such of the Clergy of France their Tithes as from whom under a fair pretence of supporting the charges of the War thereby he had upon a Promise of Restitution thereof so soon as the War should cease obtained the same but instead thereof gratified such of the Nobility as had assisted him in the War by the grant thereof to them and their Heirs for ever But whether this Sacriledge if it be true had
such a malign influence upon succeeding Princes in After-ages and other Kingdoms and also upon the Popes as some Historiographers do more than conjecture is not so evident as that which is reported by Ingulphus Abbot of Crowland touching Eight Churches to have been Appropriated to that Abbey by several Saxon Kings and though by their Charters yet whether by such exclusively to all Ecclesiastical Authority is not so certain as that William the Conqueror without asking leave of the Pope Appropriated three Parish-Churches to the Abbey of Battaile which he built in memory of his Conquest and his youngest Son H. 1. nigh twenty in one day to the Cathedral of Sarum by his Letters Patents together with the Tithes of those Parishes which his elder Brother William Sirnamed Rufus had depopulated and disecclesiated in New-Forrest in Hantshire Notwithstanding which the Pope who understood his Supremacy in matters Ecclesiastical better than to part with it upon any Presidents of Temporal Usurpations doth frequently in his Decretals without any contradiction rather assume than arrogate this Right unto himself as a Prerogative of the Apostolick See and granted to several Religious Orders this Priviledge of taking Ecclesiastical Benefices at Lay-mens hands by the mediation of the Diocesan who at a moderate and indifferent rate as one Moity of the Annual profits of the Benefice was to be a Medium or Expedient between the Religious House and the Incumbent but in process of time partly by the remisness of the Bishops in that point and partly by the Covetousness of the Monks and Friers in those days the Incumbents proportion became at last so inconsiderable that Pope Vrban the Fifth by his Legate Othobon about the year 1260 was forced to inhibit all the Bishops here in England from Appropriating any more Churches to any Monastery or othes Religious Houses save only in such cases where Charity might prevail in derogation of Law and under this Proviso also That the Bishops should assign a competent proprotion of the Parochial Fruits for the Maintenance of the Incumbent according to the annual value thereof in case the new Appropriators did it not within Six months next after such Appropriation but this Constitution not taking the effect expected a convenient Maintenance for the Vicar was otherwise provided for by Two Statutes the one made by R. 2. the other by his Successor H. 4. So that upon the whole it may be rationally inferr'd that these Appropriations originally came partly by the Act of Ecclesiasticks and partly by the Laity But what way soever they came this is and hath been held for Law within this Realm That albeit the Pope takes upon him to be Supream Ordinary yet no Appropriations made by him or by any Authority derived from him were ever allowed or approved of by the Laws of this Realm it being held That no Appropriations within this Realm can be made but by the King or by Authority derived from him and by his License and that all other Appropriations are void in Law An Appropriation may be by the King Sole where he is Patron but it may not be by the Patron Sole Grendon's Case in Plowden 17 E. 3. 39. An Appropriation cannot be without the King's License Ward 's Case Poph. Rep. Nor will the Objection hold against the King to say No man can make an Appropriation of any Church having Cure of Souls the same being a thing meerly Ecclesiastical and to be made by some Ecclesiastical person but he only who hath Ecclesiastical Jurisdiction for such Jurisdiction the King hath and is such a Spiritual person as may of himself Appropriate any Church or Advowson because in him resides the Ecclesiastical Power and Jurisdiction And therefore in a Case of Commendams it was long since held That an Appropriation made by the Pope could not be good without the King's License The like in a Case of Avoidance was vouched in Cawdrie's Case That the Entry into a Church by the Authority of the Pope only was not good and that he could not Appropriate a Church to Appropriatees to hold to their own use And in Gyendon's Case it was Resolved by the Justices That the Ordinary Patron and King ought to be assenting to every Appropriation and that the Authority which the Pope had usurped in this Realm was by Parliament 25 H. 8. acknowledged to be in the King who as Supream Ordinary may Appropriate without the Bishop's Assent 2. It seems therefore without any contradiction most evident That Appropriation or Impropriation at the Original thereof was when the Religious Houses of the Romish Church and the Religious persons as Abbots Priors and the like had the Advowson of any Parsonage to them and their Successors obtaining License of their Holy Father the Pope as also of Kings and of their Ordinaries that they and their Successors should from thenceforth be the Parsons thereof that it should thenceforth be a Vicarage and that a Vicar should serve the Cure So that at the beginning of this Spiritual Monopoly of Appropriations they were made only to such Spiritual persons as were qualified to Administer the Sacramental Ordinances and perform Divine Service Afterwards the Grant thereof was gradually enlarged and extended to Deans and Chapters though Bodies Politick and as such not capable of performing such Divine Services yea and which was most Ridiculous as well as Impious to Nunus which were Prioresses to some Nunnerics but not Female-Preachers as in these daies All which was under a Pretence of maintaining Hospitality and to supply all defects hereby occasioned there must be the Invention of a Vicar as the Appropriators Deputy to serve them and the Cure for which he had and hath the Tithe of Mint and Cummin and such other small ossals of Tithes as might be spared out of the weightier Granaries thereof without breach of the Laws of Hospitality thereby Sacrilegiously robbing the Church to enrich themselves Thus the poor Vicar shall have something like a certain portion of the Benefice whilst the Abbot and the Covent and their Lay-Successors shall be the Parsons and receive the main Profits and so live by the Altar without waiting on it and be Re-baptized by the Law with the name of Parsons Imparsonces This was that Anciently which we now call Appropriation which cannot be made to begin in the Parson's Life-time without his Assent and is so called because they hold the Profits ad proprium suum usum but if such Advowsons happen to be recovered by Ancient Title then and in such case the Appropriation of the Parsonage is annulled 3. So that from the Premisses it is evident That this Appropriation or Impropriation is an Annexation of an Ecclesiastical Benefice which originally was as it were in nullius Patrimonio to the proper and peculiar use and benefit of some Religious House Bishoprick Dean and Chapter Colledge c. Quod Divini juris est id nullius est in bonis Instit de
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
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
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
of Sacriledge doth distinguish between Excommunication latam and ferendam for if it be Sacriledge committed against an Ecclesiastical Person then according to the Canon Law and as heretofore practised in this Realm the penalty was Excommunicatio lata but when it is in respect of some things pertaining to the Church in that case the Punishment was Excommunicatio ferenda Lindw de immun Eccl. c. 1. glo in ver omnibus poenis And sometimes a pecuniary punishment was inflicted for Sacriledge 17. q. 4. c. quisquis c. si quis contumax The Ecclesiastical Law doth not punish Sacriledge with that austerity and severity as the Civil Law doth l. Sacrilegio ff ad Leg. Jul. peculat whereby the punishment sometimes is Damnatio ad bestias sometimes the Sacrilegious person is burnt alive sometimes hung on Fonk sometimes condemned to the Mines sometimes banished and sometimes sentenced to death in the ordinary way of Execution He that is guilty of Sacriledge against an Ecclesiastical person is by the Canon Law excommunicatus ipso facto 17. q. 4. c. si quis suadente But if it be in rebus Ecclesiae he is by that Law Excommunicandus de Foro compet c. conquestus If it be committed in the Church and that by firing or breaking it open in that Case the Sacrilegious person is ipso jure excommunicated de sent Excom c. conquesti If it be without burning or breaking it open as when a thing being left in the Church is taken away in that Case he ought to be excommunicated De furtib c. fin And this says Lindwood may stand as a rule in Law that wherever you find that regularly the Sacrilegious person is not ipso jure excommunicated majori Excommunicatione it hath these several Fallentias that is it doth not hold in case of Burning violating spoiling and wasting of the Church nor in burning or breaking open the Church door nor in Sacriledge against an Ecclesiastical person nor in case of striking or violently apprehending any man in the Church nor in any forcible or violent taking away any thing out of the Church nor in any that were excommunicated before for the like Offence nor in such as pull down or demolish the Body of the Church or any part thereof and the like Lindw de immu Eccl. c. ut invadentib glo in ver Excomunicati All which is likewiseexpresly set down in John de Athon's Gloss on Cardinal Othobon's Constitutions de abstrahentib Confug ad Eccles c. ad tutelam glo in ver Obsevari and seems to have an adequate affinity with what Solomon who as in other things so specially in matters of the Temple had the best experience says It is a suare to the man who devoureth that which is Holy Pro. 20. 25. 7. The dreadful Curse denounced against Sacrilegious persons appears in that remarkable passage in Parliament above Four hundred years since where the Priviledges of the Clergy and Franchises of the Church were with the Liberties of the People granted confirmed and settled by the King in full Parliament Anno 1253. in such a solemn manner as no History can parallel The King stood up with his Hand upon his Breast all the Lords Spiritual and Temporal stood with burning Tapers in their Hands the Archbishop pronounceth as followeth viz. By the Authority of God Omnipotent of the Son and of the Holy Ghost c. We Excommunicate Anathematize and sequester from our Holy Mother the Church all those who henceforth knowingly and maliciously deprive and spoil Churches of their right and all those that shall by any art or wit rashly violate diminish or alter secretly or openly in Deed Word or Counsel those Ecclesiastical Liberties c. Granted by our Lord the King to the Archbishops Bishops Prelates c. For everlasting memory whereof we have hereunto put our Seal After which all throwing down their Tapers extinguish'd and smoaking they all said So let all that shall go against this Curse be extinct and stink in Hell And Ethelwolphus the second sole Monarch among the Saxon on Kings having by advice of his Nobles granted for ever to God and the Church both the Tithe of all Goods and the tenth part of all the Lands of England free from all secular Service Taxes or Impositions whatsover concludes the said Grant or Charter of Donation in these words viz. Qui augere voluerit nostram Donationem augeat Omnipotens Deus dies ejus prosperos si quis vero mutare vel minuere praesumpserit noscat se ad Tribunal Christi rationem redditurum 8. Dr. Heylyn in his Ecclesia Restaurata relates a remarkable passage touching a sad Judgment that in the time of Queen Mary befell Buckly Bishop of Bangor An. 1541. for the Sacrilegious havock he made of the Lands and Patrimony of that Church who not content to alienate the Lands and weaken the Estate thereof resolved to rob it also of its Bells for fear perhaps of having any knell rung out at the Churches Funeral and not content to sell the Bells which were five in number he would needs satisfie himself with seeing them conveyed on Shipboard and had scarce given himself that satisfaction but was immediately struck blind and so continued from that time to the day of his death CHAP. XXXIX Of Simony 1. The Definition and description of Simony the penalties thereof 2. The difference between Simoniacus and Simoniace Promotus the latitude of that word Simony 3. How the anuual value of the Benefice is computable upon the Forfeiture by reason of Simony 4. Whether a Clerk Simoniacally presented but not privy to the Simony be disabled for that turn to be presented by the King to the same Church 5. The diversifications of Simoniacal Contracts or the various ways of committing Simony 6. An Obligation to present one upon condition of resignation may not be Simony 7. To promise one a Sum of Money to bestow his endeavour to procure one to be presented to a Benefice is a Simoniacal Contract 8. Several ways of contracting obliging and agreeing which will amount to Simony 9. A Clerk may oblige to his Patron to pay a Sum yearly and yet no Simony 10. The Plea of Simony is a good Barr to the Parsons demand of Tithes 11. Whether the Fathers free Covenant with his Son in Law upon the Marriage of his Daughter to present him to such a Living when it falls be Simony 12. Whether a SimoniacalVsurper shall prejudice the rightful Patron by giving the King the presentation 13. Whether an Incumbent that is in by Simony may after a General Pardon be removed 14. The grand Case of Calvert and Kitching at the Common Law touching Simony 15. To convey a corrupt gift by an innocent hand will not excuse it from being Simony 16. The Kings Case against the Archbishop of Canterbury Sir John Hall and Richard Clark touching Simony 17. The Proof of Simony in a Parson is good to harr him of Tithes 18. A Patrons Presentation upon
Men which belong to the Blessed Hill They abstained from things that have life and some of them from Marriage One Dosithens a Samaritan is supposed to be the first Founder of the Samaritam Heresies and the first among them that rejected the Prophets as not having spoken by the Holy Ghost There were four sects of Samaritan Hereticks according to Epiphanius each of them holding their different Heresies in some respects and having in other respects certain Heretical Tenents common to them all By all which premisses it is most evident that the Prince of Darkness and the Father of Lyes hath had in all Ages Nations and Churches his Emissaries to infect them with Heretical and Blasphemous Erros but the Gates or Power of Hell to this day never could nor to Eternity ever shall prevail against the Truth CHAP. XLI Of Councils Synods and Convocations 1. The several kinds of Councils and Synods 2. What Canons in force in the Realm of Primo Ed. 6. Also how the Canons entituled Reformatio Legum Ecclesiasticarum became abortive 3. That part of the Canon Law is part of the Law of England 4. Convocation in England what how and by what Authority and for what ends conven'd also of what Members it doth consist with the Authority thereof 5. Convocations and Provincial Synods of very great Antiquity in England have been ever call'd by the Kings Writ their Priviledges 6. The Canons and Ecclesiastical Constitutions may not be repugnant either to the Kings Prerogative or to the Laws Statutes or Customes of this Realm 7. Lindwood's Method of Provincial Synods in this Realm and under what Archbishops 8. The four several kinds of Councils and Synods in general 9. A compendious Catalogue thereof when and where held by and under whom conven'd with the principal matters therein treated and determined 1. OF Councils or Synods there are four kinds viz. 1 Oecumenical as being called out divers Nations 2 National as out of divers Provinces both these kinds of Councils or Synods were ever assembled by Imperial Regal or Papal Authority 3 Provincial as out of divers Dioceses conven'd by Metropolitans or Patriarchs 4 Diocesan as out of one Diocese onely assembled by the Bishop thereof The frequent celebration of Synods the Council of Basil calls praecipuam agri Domini culturam Touching Synods vid. Duar. de Sacr. Eccl. minist et benefic 2. In the Reign of King Hen. 8. the Bishops and Clergy in the Convocation an 1532. oblig'd themselves neither to make nor execute any Canons or Constitutions Ecclesiastical but as they were thereto enabled by the Kings Authority it was by them desired by him assented unto and confirm'd in Parliament that all such Canons and Constitutions Synodal and Provincial as were before in use and neither repugnant to the word of God the Kings prerogative Royal or the known Laws of the Land should remain in force until a Review thereof were made by 30 persons of the Kings appointment which Review not having been made from that time to the first year of King Edward 6. All the said old Canons and Constitutions so restrained and qualified did then still remain in force as before they were For this consult the Act of Parliament of 25 H. 8. c. 1. And in the Third year of the said King Edward 6. there passed an Act in Parliament For enabling the King to nominate Eight Bishops and as many Temporal Lords and Sixteen Members of the Lower House of Parliament for Reviewing of such Canons and Constitutions as remained in force by virtue of the Statute made in the 25th year of King H. 8. and fitting them for the use of the Church in all times succeeding According to which Act the King directed a Commission to Archbishop Cranmer and the rest of the Persons whom he thought fit to nominate to that employment and afterwards appointed a Sub-Committee of Eight persons to prepare the Work and make it ready for the rest that it might be dispatch'd with the more expedition which said Eight persons were the Archbishop of Canterbury Dr. Goodrick Bishop of Ely Dr. Cox the Kings Almoner Peter Martyr Dr. in Divinity William May and Rowland Taylor Drs. of Laws John Lucas and Richard Goodrick Esquires by whom the Work was undertaken and digested fashioned according to the method of the Roman Decretals and called by the name of Reformatio Legum Ecclesiasticarum c But not being Commissionated hereunto till the Eleventh of November in the year 1551. they either wanted time to Communicate to the chief Commissioners by whom it was to be presented to the King or found the King encumber'd with more weighty Affairs than to attend the perusal thereof And so the King dying before he had given life unto it by his Royal Assent and Signiture the design miscarried and never since thought fit to be resumed in the following Times by any of those who have had the Government of the Church or were concerned in the honour and safety thereof 3. It is asserted by good Authority That if the Canon Law be made part of the Law of this Realm then it is as much the Law of the Land and as well and by the same Authority as any other part of the Law of the Land Likewise in the Case of Shute against Higden touching Voidance of a Former Benefice by being Admitted and Instituted into a Second and that by the Ancient Canon Law received in this Kingdom This says the same Authority is the Law of the Kingdom in such cases And in the Case of Hill against Good the same Author doth further assert That a Lawful Canon is the Law of the Kingdom as well as an Act of Parliament And whatever is the Law of the Kingdom is as much the Law as any thing else is so for what is Law doth not suscipere magis minus Which Premisses though they may seem yet are not inconsistent with what Sr. Ed. Coke says viz. That the Laws of England are not derived from any Forein Law either Canon Civil or other but a special Law appropriated to this Kingdom That it may be said of its Law as of its situation Et penitus toto divisos Orbo Britannos 4 Convocation is the highest Ecclesiastical Court or Assembly called and convened in time of Parliament by the Kings Writ directed to the Archbishops consisting of all the Clergy of both Provinces either Personally or Representatively present in the Upper House of the Archbishops and Bishops and the Lower House of the other Clergy or their Proctors chosen and appointed to appear for Cathedral or other Collegiate Churches and for the Common Clergy of every Diocess with a Prolocutor of each House and President of the Convocation for the Province of Canterbury to consult of matters Ecclesiastical and thereon to Treat Agree Consent and Conclude as occasion requires on certain Constitutions and Canons Ecclesiastical to be ratified and confirmed by the Royal Assent They were Anciently called
Church-gemote Int. Leges H. 1. c. 8. The Convocation is under the power and Authority of the King 21 Ed. 4. 45. b. Assembled only by the Kings Writ 13 Ed. 3. Rot. Parl. M. 1. vid. Stat. 25 H. 8. c. 19. The King having directed his Writ therein assigning the time and place to each of the Archbishops to the effect aforesaid the Archbishop of Canterbury doth thereupon direct his Letters to the Bishop of London as his Dean Lindw Provin Sec. 1. de Poenis ver Tanquam in Gloss First Citing himself peremptorily then willing him to Cite in like manner all the Bishops Deans Archdeacons Cathedral and Collegiate Churches and generally all the Clergy of his Province to the Place at the day in the said Writ prefixed withal directing that one Proctor for every Cathedral or Collegiate Church and two for the other Clergy of each Diocess may suffice In pursuance whereof the Bishop of London directs his Letters accordingly willing them to certifie the Archbishop the Names of all such as shall be so Monished by them in a Schedule annexed to their Letters Certificatory whereupon the Cathedral and Collegiate Churches and the other Churches having Elected their Proctors it is certified to the Bishop who makes due Returns thereof which method is likewise observed in the other Province of York It is said That these Proctors anciently had Place and Vote in the Lower House of Parliament a good expedient for the maintenance and preservation of the Liberties of the Church The Prolocutor of the Lower House of Convocation is immediately at the first Assembly by the motion of the Bishops chosen by that Lower House and presented to the Bishops as their Prolocutor by whom they intend to deliver their Resolutions to the higher House and to have their own House specially ordered and governed His Office is to cause the Clerk to call the Names of the Members of that House as oft as he shall see cause likewise to see all things propounded to be read by him to gather the Suffrages or Votes and the like Trin. 8 Jac. It was Resolved by the two Chief Justices and divers other Justices at a Committee before the Lords of Parliament concerning the Authority of a Convocation 1 That a Convocation cannot Assemble without the Assent of the King 2 That after their Assembling they cannot conferr to constitute any Canons without License del Roy. 3 When upon Conference they conclude any Canons yet they cannot execute any of them without the Royal Assent 4 They cannot execute any after Royal Assent but with these Limitations viz. 1 That they be not against the Kings Prerogative 2 Nor against Statute Law 3 Nor against the Common Law 4 Nor against the Customes of the Realm All which appears by 25 H. 8. c. 19. 19. Ed. 3. Title Quare non Admisit 7. 10. H. 7. 17. Merton cap. 9. By 2 H. 6. 13. a Convocation may make Constitutions to bind the Spiritualty because they all in person or by Representation are present but not the Temporalty Q. And 21 Ed. 4. 47. the Convocation is Spiritual and so are all their Constitutions Vid. The Records in Turri 18 H. 8. 8 Ed. 1. 25 Ed. 1. 11 Ed. 2. 15 Ed. 2. Prohibitio Regis ne Clerus in Congregatione sua c. attemptet contra jus seu Coronam c. By which it appears that they can do nothing against the Law of the Land or the Kings Prerogative 5. The word Convocation and the word Synod are rather words of two Languages than things of two significations for although they have different derivations the former from the Latin the other from the Greek yet in effect they both center in the same thing Convocation à Convocando because they are called together by the Kings Writ It is of very great Antiquity according to Sir Edward Coke who mentions out of Mr. Bede and other Authors and ancient Records such as were nigh a thousand years since and more expresly of one great Synod held by Austins Assembling the Britain Bishops in Council An. 686. And affirms That the Clergy was never Assembled or called together at a Convocation but by the Kings Writ And in the year 727. there was a Convocation of the Clergy called Magna Servorum Dei frequentia It was by the assistance and authority of Ethelbert the first Christian King of Kent that Austin called the aforesaid Assembly of the British Bishops and Doctors that had retained the Doctrine of the Gospel to be held in the borders of the Victians and West-Saxons about Southampton as supposed to which resorted as Mr. Bede says Seven Bishops and many other Learned Divines but this Synod or Convocation suddenly brake up without any thing done or resolved This Assembly was conven'd for determining the time for the Celebration of Easter touching which the Controversie continuing no less than 90 years after was at last concluded at another Convocation purposely called at Whitby by the Authority of Oswy King of Northumberland and whereof the Reverend Cedda newly Consecrated Bishop was Prolocutor and King Oswy himself present at the Assembly Likewise about the year 1172. at Cassils in Ireland a Convocation was held by Authority of King H. 2. soon after he had Conquered that Island which Convocation was for the Reformation of the Irish Church where amongst many other Constitutions it was Decreed That all the Church-Lands and all their Possessions should be altogether free from the Exaction of Secular men and that from thenceforth all Divine things should be handled in every part of Ireland in such sort as the Church of England handleth them Likewise about the year 1175. at London a Synod or Convocation was held at which King H. 2. was present where among other Canons and Constitutions it was both by Authority of the King and Synod decreed That every Patron taking a Reward for any Presentation should for ever lose the Patronage thereof Which together with other Canons then made for the better government of the Church of England were Published by Richard Archbishop of Canterbury with the Kings Assent Likewise a Provincial Synod was held at Oxford by Stephen Langton Archbishop of Canterbury under King H. 3. about the year 1222. for Reformation of the Clergy with many others in subordination to the Laws of the Land One special Priviledge of the Convocation appears by 8 H. 6. cap. 1. All the Clergy from henceforth to be called to the Convocation by the Kings Writ and their Servants and Familiars shall for ever hereafter fully use and enjoy such liberty and Immunity in coming tarrying and returning as the Great men and Commonalty of the Realm of England called or to be called to the Kings Parliament have used or ought to have or enjoy 8 H. 6. In Parliamento Statutum est ut Praelati atque Clerici câ—rumque Famulatus cum ad Synodos accesserint iisdem Privilegiis ac
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
s. 6 d. to the Scribe for Registring the same or else the said Scribe to be at his liberty to refuse the said 2 s. 6 d. and to have for writing every ten Lines of the same Testament whereof every Line to contain ten inches one penny If the Executor desire that the Testament in paper may be transcribed in parchment he must agree with the party for the Transcribing but the Ordinary c. can take nothing for that nor for the Examination of the Transcript with the Original but only 2 s. 6 d. for the whole duty belonging to him Where the Goods of the deceased do not exceed five pound the Ordinary c. shall take nothing and the Scribe to have only for writing of the Probat six pence so the said Testament be exhibited in writing with Wax thereunto affixed ready to be sealed Where the Goods of the deceased do amount to above the value of five pound and do not exceed the sum of forty pound there shall be taken for the whole but 3 s. 6 d. whereof to the Ordinary c. 2 s. 6 d. and 12 d. to the Scribe for Registring the same Where by Custome less hath been taken in any of the Cases aforesaid there less is to be taken And where any person requires a Copy or Copies of the Testament so proved or Inventory so made the Ordinary c. shall take for the Search and making of the Copy of the Testament or Inventory if the Goods exceed not five pound six pence and if the Goods exceed five pound and exceed not forty pounds twelve pence And if the Goods exceed forty pounds then two shillings six pence or to take for every Ten lines thereof of the proportion before rehearsed a penny And when the party dies Intestate the Ordinary may dispose somewhat in pious uses notwithstanding the Act of 31 Ed. 3. but with these Cautions 1 That it be after the Administration granted and Inventory made so as the state of the Intestate may be known and thereby the sum may appear to be competent 2 The Administrator must be called to it 3 The use must be publick and godly 4 It must be expressed in particular And 5 There must be a Decree made of it and entred of Record 7. The Court of Audience Curia Audientiae Cantuariensis The Lord Coke touching the Jurisdiction of Courts taking notice of this of the Audience among other of the Ecclesiastical Courts says That this Court is kept by the Archbishop in his Palace and meddleth not with any matter between party and party of any contentious Jurisdiction but dealeth with matters pro forma and Confirmations of Bishops Elections Consecrations and the like and with matters of voluntary Jurisdiction as the granting of the Guardianship of the Spiritualties Sede vacante of Bishops Admissions and Institutions to Benefices dispensing with Banns of Matrimony and such like This Court did belong to the Archbishop of Canterbury and was in point of Authority equal with but in point of Dignity and Antiquity inferiour to the Court of Arches It seems that Anciently the Archbishop of Canterbury did hear divers Causes of Ecclesiastical cognizance Extra-judicially and at home in his own Palace wherein before he would come to any final determination his usage was to commit the discussion thereof to certain persons learned in the Laws Civil and Canon who thereupon were styled his Auditors whence in process of time it center'd in one particular person styled Causarum Negotiorumque Audientiae Cantuariensis Auditor seu Officialis And from hence the Original of this Court is properly derived With this office of the Auditor the Chancery of the Archbishop is said to have been heretofore commonly joyned not controverting any matters of contentious Jurisdiction in any decisions of Causes between Plaintiff and Defendant but such only as were Voluntariae Jurisdictionis ex Officio touching such things only as are fore-specified and such like By the Provincial Constitutions it is Ordained That for the ease of the People they may at times convenient to be assigned by the Bishop have access to their Diocesan Et quod Praelati persâ—â— liter Audiant quaerelas in his Cathedral or next Parochial Church vel in aliqua Maneriorum suorum Capella si talis fuerit Lindw de Offic. Jud. Ord. cap. Statuimus in gloss verb. in Publico It seems not altogether improbable but that from the practice hereof this Court of Audience anciently had its Original as aforesaid And although it be not now in use as heretofore yet considering the Subject-matter it only took cognizance of it was a good Expedient to prevent many Suits at Law in Foro Contentioso 8. Faculty or Court of Faculties in the sense here meant and intended must not be understood according to its original and genuine signification but as a term of Art according to a limited construction restrained under that peculiar notion and particular understanding which the Law hath of it in reference to a branch of the Ecclesiastical Jurisdiction And so it is understood and commonly used for that Priviledge or especial Power which is legally granted to a man by License favour indulgence and dispensation to have or do that which otherwise by the Canon Law he could not as to eat Flesh upon days prohibited to Marry without Banns first published to hold Two or more Ecclesiastical Benefices incompatible the Son to succeed the Father in his Benefice and such like A Faculty granted to one who is not Incumbent to take a void Benefice is void But a Faculty to one who is Incumbent of a Benefice to retain the same is good It is called Faculties in the Statute of 28 H. 8. cap. 16. Sir Ed. Coke makes mention of the Court of Faculties although it holds no Plea of Controversie It belongs to the Archbishop of Canterbury and his chief Officer thereof is called Magister ad Facultates whose power is to grant Dispensations to the ends and purposes aforesaid and so may every Diocesan as to that of Marriage and eating of Flesh on days prohibited Faculty according to Sir Ed. Coke in the place fore-cited signifies a Dispensation so that Facultates in this sense Dispensationes Indulta are Synonyma Who likewise there says that this Authority was raised and given to the Archbishop of Canterbury by the Statute of 25 H. 8. c. 21. whereby Authority is given to the said Archbishop and his Successors to grant Dispensations Faculties c. by himself or his sufficient and substantial Commissary or Deputy for any such matters commonly called the Master of the Faculties and of all such matters as whereof heretofore such Dispensations Faculties c. then had been accustomed to be had at the See of Rome or by Authority thereof For by the Stat. of 28 H. 8. c. 16. it appears the Bishop of Rome did grant Faculties and Dispensations to the Kings Subjects as Pluralities Unions Trialities Appropriations Commendams Exemptions