but not as to his Judicial Office as to Confirm Leases and the like By the Canon Law he that is the Archipresbyter is also called Dean scil Presbyterorum vel Ecclesiae Cap. ad haec De Offic. Archidiac Cano. innovamus 60. Distinct And because the Dean of a Church understand it of the Roman Church in locum Archipresbyteri subrogatus est Rotae Decis 451. in novis rursum in Decis 443. The Archipresbyter was so called because he was in some certain matters and causes set or appointed over the Priests or Presbyters and such as were of the Sacerdotal Office specially in the absence of the Bishop Cap. 1. 2. De Offic Archipresb The Dean is such a Dignity that the Canon Law styles him honorabiliorem partem Capituli Cap. post Electionem c. 7. de Concess Praebend c. cum inter ca. 18. ibi Panor gloss de Elect. And in a large sense a Dean may be said to be the chief of any that are of the same state and order Gloss in rubr de Decanis lib. 12. C. ibi Alceat and so the Canons of the Church of Constantinople tanquam Digniores were by Honorius and Theodosius called Decani L. non plures 4. de Sacros Eccles lib. 1. C. tit 5. and the more honourable inter Rotae Auditores is the Dean of the Pope's Chappel propter Ministerium quod vocatur Mithrae Lud. Gomes in proaem ad Reg. Cancell de Prothonotariis The truth is the Canon Law in express terms says that Deconatus or a Deanary est Nomen speciale Dignitatis Cap. cum illis vero § illis de Praebend in 6. that is when it refers to praeeminency in any Church Cathedral or Collegiate Gemin Cons 131. nu 5. ver expressit de Deconatu For as to Deans Rural it is otherwise Cap. licet Canon de Elect. in 6. the Dignity qua talis belonging properly to the other viz. Decano Capituli who is Caput principale ipsius yet under the notion or appellation of a Chapter the Dean thereof is not comprehended unless he be specially mentioned or nominated Rebuff in Tract nominat q. 8. nu 33. Barbos in 3 Decret c. post Electionem de Concess Praebend nu 3. 8. Chapter Capitulum so termed by the Canonists not properly but metaphoricaily quasi a Little head or a kind of Head not only to rule and govern the Diocess in the Vacation of the Bishoprick but also when the See is full to assist the Bishop as a Council by way of Advice in matters pertaining to the Diocess Vid. Panor in cap. Capitulum extra de Rescript The Chapter consisting of a Dean Canons and Prebends is Clericorum Congregatio sub uno Decano in Ecclesia Cathedrali or it signifies Congregationem Clericorum in Ecclesia Cathedrali Conventuali Regulari vel Collegiata Of these Chapters some are Ancient some New the New are those which were founded or translated by King Henry the Eighth in the places of Abbots and Covents or Priors and Covents Or those which are annexed unto new Bishopricks founded by H. 8. as were Bristol Chester and Oxford This word Capitulum or Chapter hath in addition to the Premisses other significations in Lindwoods Provincials where he speaks de Capitulis Ruralibus of Chapters Rural Lindw tit de Constit cap. quia incontinentiae gloss verb. Capitulis Ruralibus and there acquaints us with no less than six significations of this word Sometimes says he it is taken for the place in quo fiunt Communes tractatus Collegiatorum Sometimes it is taken for the place In quo fiunt Disciplinae delinquentium Cap. Reprehensibilis in fi Extr. de Appell Sometimes it is taken pro Decretali vel abia certa distinctione Sacrae Scripturae Cap. cum supr Extr. de Sepult Sometimes it is taken pro Capitulis Ruralibus as aforesaid that is when in Lecis minus insignibus viz. in Rure Constitutis known by the name of Conventus in Otho's Constitutions Cap. Sacramenta ad finem ver Conventib Sometimes it is taken for a Collection of persons adinvicem de his quae eis incumbunt in Locis ad hoc assignatis tractantium and being taken in this sense it may be understood sometimes for persons Congregated in a Metropolitan or Cathedral Church and sometimes for persons congregated in a Church Conventual Regular or Collegiate and each of these last may in a large sense be said to be a Collegiate Church according to the description thereof viz. That Ecclesia Collegiata est Collectio hominum simul viventium but to speak properly that is Capitulum which is respectis Ecclesiae Cathedralis That Conventus which is respectu Ecclesiae Regularis and that Collegium which is respectu Ecclesiae Inferioris ubi est Collectio viventium in Communi And sometimes Capitulum is taken for a Collection of many persons not living in Common sed ob tracatus Communes inter se habendos ad aliquem locum Constuentium according to which a convening together of many Rectors Vicars and other Ecclesiastical persons ob tractatus communes inter se habendos etiam dicitur Capitulum Panormitan understands it pro Collectione seu pro Collegio ipsorum Canonicorum but withal says it hath divers significations all which he comprizes in this one Verse Distinguit minuit Locat Collectio fertur Distinguit when one Subject is distinguished from another in any Tract or Treatise Minuit when it stands diminutively Capitulum quasi parvum Caput as aforesaid understand it secundum modum Locat when it is taken for the Place it self where the Canons are met or conven'd Collectio and so it is taken pro ipso Collegio as aforesaid Panorm de Rescript Extr. c. Capitum Whereof there are three inseparable signs as one Common Seal one Common Stock or Treasure and one Common Head or Rector 9. By the Canon Law the words Capitulum Conventus Coetus and Concilium are as it were Synonymous but the terms Capitulum and Conventus are frequently used Promiscuously But to speak properly according to that Law Conventus is said to be Congregatio Ecclesiae Regularis and Capitulum or a Chapter is said to be Congregatio Ecclesiae Secularis The word Chapter taken as here in a proper canon-Canon-sense is a name Collective having a Plural signification yet in reference to different things may be accommodated as well to the Singular as the Plural 10. A Chapter Ecclesiae Cathedralis consists of persons Ecclesiastical Canons and Prebendaries whereof the Dean is chief all subordinate to the Bishop to whom they are as Assistants in matters relating to the Church for the better ordering and disposing the things thereof and for Confirmation of such Leases of the Temporalties and Offices relating to the Bishoprick as the Bishop from time to time shall happen to make It seems that at the Common Law by the Gift or Grant of Lands to a Dean and Chapter being a Corporation Aggregate the Inheritance or
may take competent time to examine the sufficiency and fitness of a Clerk so may he give convenient time to persons interessed to take knowledge of the Avoidance even in case of Death and where notice is to be taken not given to present their Clerks to it And perhaps if he do receive the Clerk of him that comes first yet he may quit himself of Disturbance because he doth nothing therein but as Ordinary in Law But if two or more Present so that the Title is become Litigious then and in such case he cannot receive the Clerk of any of his own pleasure except the Title be certain but hath his way of safety by Jure Patronatus and when he hath used the Jure Patronatus and that finds for one party yet he may still receive a contrary Clerk if he will for who can lett him but that must be at his own peril and that is at a double peril 1. That the Title be the better 2. That the Patron whose Clerk he hath received will plead and defend that Title for otherwise he cannot do it But though after Inquest in Jure Patronatus the Ordinary may accept the contrary Clerk yet it is against Justice and the intent of the Law For since it is a Provision meerly for the good and safety of the Ordinary and he pretends Doubt and therefore puts the Patron to this enquiry to his charge and delay to satisfie and secure him he ought to judge and receive the Clerk according to that Verdict And that is the true meaning of the Books that say that the Ordinary is to judge of the better Title that is not to prejudge of his own Will but secundum allegata probata upon Verdict of the Right given and found according to the form of Law to give Institution which is his Judgment and the Induction his Execution And though it is but an Inquest of Office and therefore binds not True it is it binds not but with a distinction that is it binds not the Patron in his Quare Impedit but is Final even to the true Patron that he cannot impute disturbance to the Ordinary following that Verdict and therefore it ought to bind him to follow it For to these purposes it is a full Verdict never to be tried again And if but one Present if the Ordinary make doubt of his Title as in many cases he justly may being a stranger to it he may require satisfaction by Jure Patronatus 17. If it be demanded whether the Ordinary can cite a man out of his Diocess the Common Law answers it in the Negative And so it was held by Jones and Whitlock Justices in Brown's Case where they held That at the Common Law a Bishop cannot cite a man out of his Diocess and there Whitlock held that the Ordinary hath not any power of Jurisdiction out of his Diocess but to absolve a person Excommunicated If one in N. commit Adultery in another Diocess during the time of his Residence he may be cited in the Diocess where he committed the offence although he dwell out of the Diocess by Coke Warburton and Winch And in the time of his Visitation he hath Jus ad Synodalia according to the Custome more or less as in Gloucestershire where the Impropriation of Dereburt pays annually 7s 9d pro Synodalibus Procurationibus for this Synodal is not in this sense here taken as in the Statute of 25 H. 8. cap. 19. for Synodals Provincial which seem to signifie the Canons or Constitutions of a Provincial Synod nor for the Synod it self which the word Synodale doth sometimes signifie but it is here in the same sense as the word Synodies in the Statute of 34 H. 8. cap. 16. for a Synodal is no other than a Cense or Tribute in mony paid to the Bishop or Archdeacon by the Inferiour Clergy 18. Every Spiritual person is visitable by the Ordinary So is a Dean de mero jure for he is Spiritual The Ordinary hath also power of Correction of a Parson And every Hospital be it Lay or Spiritual is Visitable By the ancient Law of the Realm the King hath power to Visit reform and correct all Abuses and Enormities in the Church Nor are the Kings Donatives visitable by the Ordinary but properly by the Lord Chancellour And the King may grant a Special Commission to that purpose But as to Hospitals if they be Spiritual the Ordinary shall visit them if they be Lay-Hospitals the Patron In the Statute of 1 El. cap. 2. there is a Proviso That all and singular Archbishops and Bishops and every of their Chancellors Commissaries Archdeacons and other Ordinaries having any peculiar Ecclesiastical Jurisdiction shall have full power and authority by virtue of this Act as well to enquire in their Visitations Synods and elsewhere within their Jurisdiction or any other time or place to take occasions and informations of all and every the things above-mentioned done committed or perpetrated within the Limits of their Jurisdiction or Authority and to punish the same by Admonition Excommunication Sequestration or Deprivation and other Censures and Process in like manner as heretofore hath been used by the Queens Ecclesiastical Laws The Ancient custome was for the Visitor to visit in his own person visitare Ecclesiatim per cunctas Dioceses parochiasque suas 10. q. 1. c. Episcopum E. Concil Toletan 4. ca. 35. This Visitation is a special and peculiar duty belonging to every Bishop as derived from the Apostles who themselves were Visitors and for that end and purpose did pertransire Ecclesias Vrbes The Bishop hath his Triennials per Archidiaconi Visitatio potest fieri singulis annis Extr. de Offic. Archid. c. Mandamus We find also that Episcopus debet Visitare singulis annis Parochiam nisi dimittat propter gravamen Ecclesiarum tunc mittat Archidiaconum c. Ab. Sic. super 2. 1. de Offic. Archid. c. ut Archidiaconus 10. q. 1. c. Decrevimus c. Episcopum 19. Every Bishop hath his Cathedral and Council and the Council and Bishop there decide matters of Controversie the Prebends have their names from the affording of help to the Bishop If any Clerk after he hath sworn Canonical Obedience should happen to commit Episcopicide he is guilty of Petty-Treason and shall suffer as such Whereas heretofore the County of Gloucester was a part of the Diocess of Worcester out of which it was taken by King H. 8. when first made a Bishoprick the Diocess of Worcester was in the time of King Ed 6. laid to the See of Gloucester Dr. Heylin 's Hist Eccl. p. 101. Next unto the Two Archbishops the Bishop of London of all the other Bishops hath the Preheminence Episcopus Londinensis says an Ancient Record speciali quadam Dignitate caeteris anteponendus quia Ecclesiae Cantuariensis Decanus est Provincialis The Bishop of Duresme who is
answers the Election of a Bishop 2. Admission to which Confirmation answers 3. Institution which is as the Consecration and Induction as the Restitution of the Temporalties The Spiritual Marriage between the Church and the Bishop initurper Electionem Contrabitur per Confirmationem Consummatur per Consecrationem and the Restitution of the Temporalties is as the bringing home of the Wise CHAP. VII Of Deans and Chapters 1. What a Dean is why so called what Dean and Chapter signifies and what Deans Rural arc 2. The Division of Deans according to the Civil and Canon Laws a Question in Law touching the Deanary of St. Martins 3. Two ways of Creating Deans and in what other senses the word or style of Dean is applicable 4. Four sorts of Deans according to the Law of the Land 5. The Patronage of Deanaries is in the Crown 6. The Dean and Chapter of a Cathedral is a Corporation Spiritual 7. A Deanary consists of two parts The difference between a Dean Prebend and Parson and that Deanaries and Archdeacomies are Ecclesiastical Dignities 8. Chapter what the several Acceptations of that word 9. The difference between Capitulum and Conventus in the Canon Law 10. The description of a Chapter as to their Constitution and Government 11. Whether one Bishop may have two Chapters 12. Whether the Lease of a Parsonage in one Diocess annexed to a Prebend in another made by that Prebend be good without the Confirmation of that Bishop in whose Diocess the Parsonage is 1. DEAN 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 decem is an Ecclesiastical Magistrate so called because anciently he presided or had power over Ten Canons or Prebends at the least Sed dicuntur Decani Rurales eo quod Decem Clericis five Parochiis praesint Secund. Papiam Lindw de Constit verb. Decan Rurales gloss Dean Rural because he usually had charge over Ten Country Parishes Anciently also called Archipresbyter because other Presbyters were under his charge Here in England he is commonly called a Dean who is next under the Bishop and Chief of the Chapter ordinarily in a Cathedral Church the rest of that Ecclesiastical Society or Corporation being called Capitulum the Chapter Dean and Chapter is a Body Corporate Spiritual consisting of many able persons in Law viz. the Dean who is Chief and his Prebends and they together make the Corporation And as this Corporation may joyntly purchase Lands and Tenements to the use of their Church and Successors so likewise every of them severally may purchase to the use of himself and his Heirs After the death of a Prebend the Dean and Chapter shall have the Profits And after the death of a Dean of a Free Chappel belonging to the King the King shall have the Profits of the Deanary for it is at the pleasure whether he will Collate a new Dean to it It is likewise held that a Deanary is a Spiritual Promotion and not a Temporal by all the Judges And if the Nomination and Patronage of a Deanary be at the appointment of the King his Heirs and Successors and he appoint a Dean yet it is a Spiritual Promotion The King makes the Corporations of Dean and Chapter The Chapter of the Bishop consists of a Dean as the Chief and of the Prebendaries or the like which are commonly called the Chapter As to the Bishop and Chapter which are but one Body their possessions are divided so as the Bishop hath a part for himself and the Chapter the residue And their Possessions also for the most part are divided the Dean having one part alone in right of his Deanary and each particular Prebendary a certain part in right of their Prebends the residue the Dean and Chapter have alike and each of them is to this purpose incorporate by himself In the Cathedral Churches of St. David and of Landaff there never hath been any Dean but the Bishop in either is Head of the Chapter and in the Bishops absence in the Chapter at St. Davids and at Landaff the Archdeacon There are also some Deans in England without any Jurisdiction only for Honour so styled as the Dean of the Chappel Royal and Dean of the Chappel of St. George at Windsor And some Deans there are without any Chapter yet enjoying certain Jurisdictions as the Dean of Croydon the Dean of Battel the Dean of Bockin c. In the Case of the Dean and Chapter of Norwich it is said That in Christian Policy it was thought necessary for that the Church could not be without Sects and Heresies that every Bishop should be assisted with a Council viz. a Dean and Chapter 1 To Consult with them in deciding of difficult Controversies of Religion to which purpose every Bishop habet Cathedram 2 To Consent to every Grant the Bishop shall make to bind his Successors for the Law did not judge it reasonable to repose such confidence in him alone At first all the Possessions were to the Bishop afterwards a certain portion was assigned to the Chapter therefore the Chapter was before they had any Possessions and of Common right the Bishop is Patron of all the Prebends because their Possessions were derived from him So that so long as the Bishoprick continues the Dean and Chapter being his Council remains This word Dean is diversly used by Lindwood who speaking of Dean-Rurals describes them to be certain persons that have certain Jurisdiction Ecclesiastical over other Ministers and Parishes near adjoyning assigned unto them by the Bishop and Archdeacon being placed and displaced by them Such are the Dean of Croydon in Surrey the Dean of Battel in Kent the Dean of Burian in Cornwal c. These Deans Rural are Decani Temporales Constituted to some Ministerial Function under the Bishop or Archbishop They are certain Ecclesiastical persons having certain Offices commonly belonging to the Bishop and Archdeacon and therefore to either of them belongs the receiving or removing of them and their Office is temporal not perpetual as is the Office of the Deans of Cathedral and Collegiate Churches and other Churches quibus perpetuo intitulantur 2. The Civil and Canon Laws do chiefly take notice but of three sorts of Deans the one he who is impower'd and set over Ten Souldiers Another he who is called Dean Rural as aforesaid The third is a Dean of a Cathedral or Collegiate Church as abovesaid There is also the Deanary of St. Martin le Grand Lond. concerning which Lindwood puts the question Whether it be such an Ecclesiastical Benefice as in effect may incur such penalties as may possibly happen to other persons Beneficed And after deep enquiries into the Laws Presidents and Antiquities Forreign and Domestick with very delectable variety of great Learning hinc inde argumentatively and pro con impartially at last doth conclude it in the Affirmative Lindwood Constit tit de Cohab. Cleric Mul. c. ut Clericalis
Law Provisional touching the Building of new Chappels 18. Whether a Seat in the Church and Priority in that Seat claimed by Prescription be Triable at the Common Law by Action upon the Case 19. A Case in Law touching a Tax made in a Parish for the making of new Bells for the Church 20. Whether a Tax for Repairs of the Church may be made by the Church wardens alone without the Major part of the Inhabitants 21. Church-Seats in the generality are in the Ordinaries power to dispose 22. Divers other Cases at the Common Law pertinent to the subject of the Premisses 23. In what respects an Inhabitant in one Parish having Land in another may or may not be Taxed as to the Church of that Parish where the Land lies 24. The difference in Law between a Parsons grant to a man his own Tithes and his grant to him the Tithes of another man as to the validity of the Grant 25. Disposal of Seats in the Body of a Church belongs of Common right to the Ordinary of the Diocess 26. In what respect a man inhabiting in one Parish shall be charged towards the Reparation of the Church of another where he hath Land and in what respects not so 27. Rates for Reparation of Churches are cognizable only in the Ecclesiastical Court and no Prohibition notwithstanding any inequality in the Rate 28. Repairers of a Chappel of Ease not discharged thereby of Reparations of the Mother-Church 29. Land in a Parish not to be Rated for the Ornaments of a Church That Rate to be according to the personal Estate 30. In what case a Prohibition lies to a Suit for Reparations of a Church not so as to a Rate made by the Major part of the Parishioners for the Ornaments of the Church 31. The Bounds of a Parish not Triable in the Ecclesiastical Court though the difference be between two Spiritual persons 32. Prohibition where a Vicar sued the Parson Impropriate for Dammages for cutting down the Trees growing in the Church-yard 33. Prescription of Repairing a Chappel of Eâ—se no discharge from repairing the Mother-Church 34. The charge of Repairing a Church refers to Land of providing Ornaments of the Church to the personal Estate and how to be apportioned between Landlord and Tenant 35. Action of Trespas lies for the Heir of such whose Coat-Armor or Monument in Church or Church-yard is by any defaced or demolished be it by the Parson the Ordinary or by any other 36. A Case in Law touching a disturbance of sitting in certain Seats in a Chancel of a Church 37. Certain Cases in Law touching striking in a Church and Church-yard and drawing a Weapon in the same 38. The difference taken between having a Seat in the Isle of a Church and a Seat in the Body of the Curch 39. A Prohibition denied on a Prescription of not Repairing a Mother-Church in regard such Prescription is meerly Spiritual 40. The Ecclesiastical Court not to intermeddle with the Precincts of Parish-Churches 41. Towards Church-Reparations all Lands within the Parish as well of Foreigners as Parishioners are ratably liable 42. Controversies touching Seats in Churches determinable in the Spiritual not Temporal Courts In what Cases the Common Law hath took cognizance thereof 1. CHURCH Ecclesia 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 from the old word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 h. e. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or rather 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 h. e. evocare being an Assembly of men gathered out of all Mankind or evocatus per Evangelium or from the Hebrew Cahal h. e. Congregatio the true visible Church being a Congregation of Faithful men in which the pure Word of God is preached and the Sacraments duly ministred according to Christ's Institution in all things necessary to the same This in a Theological sense but the word Church in a Legal sense as here chiefly intended differs from the former as far as Dead Walls do from Living Saints there being no more here designed to be touch'd at than what refers rather to the Place than to the Persons Churches are of three sorts Cathedral Collegiate Parochial The Bishop is the Incumbent of the first Priors and Abbots were and Heads of Colledges are Incumbents of the second and Parsons of the third commonly called a Rectory being either a Parsonage or a Vicarage And that either 1 Ratione dotationis 2 Fundationis 3 Fundi 2. The Emperour Justinian Decreed That the Lands of the Church should not be sold alienated or exchanged unless it were to the Prince's house or to or with another like Religious place and that in equal goodness and quantity or that it were for the Redemption of Captives But by the Statute of primo Jac. the Possessions of the Church are protected from alienation or diminution in all respects and so as that they shall remain and continue according to the true intent of their Foundation to their Successors for ever to the uses and purposes therein limited 3. By the Common Law the Church and Church-yard are it seems the Soyl and Freehold of the Parson but the use of the Body of the Church and the Repairs and Maintenance thereof is common to all the Parishioners albeit the disposal of the Pewes in the Body of the Church or an Isle or Chappel joyning to the Body and the disposing of the charges of the Repairs thereof belong to the Ordinary insomuch that no man can challenge a Seat in the Body of the Church without shewing some special reason for the same All which appears in the Case of Boothby against Baily where Boothby being Executor of Gilbert brought a Prohibition against Baily and his Surmize was That whereas Sir Bernard Whetston was seized of the Mannor of Woodford-Hall and that he and those whose Estate he hath in the same had used time out of mind to have a peculiar Pew in the Body of the Church and that the Defendant by Suit in the Ecclesiastical Court sought to dispossess them of the same And by the Opinion of the whole Court this was no sufficient ground of a Prohibition for though the Church and Church-yard be in Law the Soyl and Freehold of the Parson yet the use of the Body of the Church and the repair and maintenance thereof is common to all the Parishioners And for avoiding of confusion the distribution and disposing of Seats and charges of Repair belong to the Ordinary and therefore no man can challenge a peculiar Seat without a special reason But if it had been Prescribed That Sir Bernard Whetstone c. had used time out of mind at their own costs to maintain that Pew and had therefore had the sole use thereof the Prescription might have stood and been warrant for a Prohibition though the Pew were in the Body of the Church And so it is in the like case of an Isle or Chappel adjoyning to the Body of the Church upon the same difference whether it hath been maintained by the whole Parish or
remove the Tithe which circumstance of Time and the convenience thereof is triable by a Jury and if the Parson exceed the Time the Parishioner may have his Action against him as a Trespasser ab initio And some conceive that the Parishioner is not bound to give the Parson Notice when he doth set forth his Tithe By the Civil Law the Parishioner ought to give the Parson Notice when the Tithes are set forth but it hath been Adjudged that the Common Law doth not so oblige a man But a severance of Nine parts from the Tenth part there must be for such Severance is so necessary and in a kind so essential to Tithes that they are not due nor is it Tithe within the Statute of 2 Ed. 6. until such Severance be made Yet the Parson may Grant his Tithes growing upon the Land before Severance which ought to be made by the Owner of the Land for though the property of Tithes set out by the Owner of the Land belongs to the Parson yet it is otherwise if they be set out by a Stranger And in case the Land be not in any Parish then the King shall have the Tithe thereof by his Prerogative and by the Custome of England But where Lands in themselves Tithable are not manured or ploughed specially in prejudice to the Parson in such case he may notwithstanding Sue the Occupier thereof in the Spiritual Court for the Tithes of that Land But if the Parishioner duly sets forth and severs the Tithe in convenient time and after Dammage happen to him by the Parsons not taking the same away in like convenient time in that case the Parishioner may have his Action on the Case against the Parson 7. The Common Law of this Realm takes notice of Tithes by the word Dismes Decimae of the French Decimes signifying Tithe or the Tenth part of all the Annual Fruits either of the Earth or of Beasts or Mans labour and industry due unto God and consequently to him that is of the Lords Lot and hath his share by his special appointment It signifieth also the Tenths of all Spiritual Livings yearly given to the Prince called a perpetual Disme which anciently were paid to the Pope until Pope Vrban gave them to K. Richard the Second to aid him against Charles the French King and such others as upheld Clement the Seventh against him as aforesaid It signifieth likewise a Tribute levied of the Temporalty But here it is to be understood as Quota pars omnium bonorum licite quaesitorum Deo Divina Institutione debita which though according to the Canon Law is a Tenth of Annual and lawful Encrease commanded to be paid to the Sons of Levi for their maintenance in consideration of their Ministry yet at the Common Law it is an Ecclesiastical Inheritance collateral to the Estate of the Land and of its own nature due only to Ecclesiastical persons by the Ecclesiastical Laws The Practice whereof never met with any considerable interruption in any Age until Charles Martel's Sacrilegious Infeudations of Tithes about the year 650. which usher'd in such a President into the Christian World as could never to this day grow obsolete and out of use Notwithstanding from the beginning it was not so nor did any Lay-persons pretend to Tithes originally nor legally till the Statutes of Dissolutions of Abbies made them capable thereof whereby the Tithes appropriated to such Houses of Religion as were dissolved became a Lay-Fee and Suable by the Laity in the Kings Ecclesiastical Courts 8. Where in the Books of the Common Law it is Reported That before the Council of Lateran every man might give his Tithes to what Church he pleased and might have bestowed them upon what person he thought best there it is also asserted for reason That before that Council there were no Parishes nor Parish-Priests that could claim them But by a Canon made in that Council every man is since compellable to pay his Tithes to the Parson or Vicar of that Parish where the Tithes arise Here may arise a question Whether there were not Parishes long before any Council at Lateran For admitting that the Second Lateran Council was held in the year 1120 as S. Tho. Ridley computes it or that the general Council of Lateran was held in the year 1179 as Sir Simon Degge calculates it yet there seems of be a division into Parishes some Centuries of years before either of these For it is said That Cities and Countries were divided into several Parishes by an Ordinance of Pope Dionysius about the year 266 and from him derived into this and other Realms Also that Ecclesiastical persons first in this Kingdom made Divisions of Parishes as appears by our own Chronicles and that the first Practice thereof came from Honorius the 4th Archbishop of Canterbury after Augustine who died in the year 693 And such as have followed the course of Antiquity in this matter conceive that the original of Parishes had its President from the practice of some Ancient Roman Bishops it being as some would have it recorded in the Pontifical of Damasus but in Anastasius's Bibliothecar it is found That when Peter had appointed and ordained Priests c. and Cletus had reduced them to a certain number Pope Euarist assigned to each of them his Parish and as to the time when those Parishes were assign'd by Euarist it must be about the beginning of the second Century which was many Centuries before the C. of Lateran as also was the practice thereof here in England by Honorius as aforesaid the truth whereof is approved by Cambden But Cavendum c. saith Marsil in his Book De Red. Eccl. c. 12. heed must be taken as to the word Parish for it is equivocal having various acceptations as sometimes when nothing is named but a Parish the whole Diocess is understood which notion of the word often occurs in the Councils in which sense Barbatia spake a wide word for the Pope in his Tract de praest Card. when he said that in respect of his Holiness the whole world was but one Parish Sometimes a Parish is taken for such a part of the Diocess as was assign'd to some Priest arbitrarily sent and maintained by the Bishop to whom such a Parish paid all their dues and he to his Clergy about which time this custome was introduced that all Church-dues should be at the Bishops disposal to be divided into four portions whereof he should haveâ— part for himself another for his Clergy a 3d for the Poor and Strangers and the 4th to be reserved to the Parishioners for the repairing of Churches the collection of which dues was committed to the care of the Chorepise from which Quadripartite division probably came that custome whereby the Bishop of every Diocess might before the C. of Lateran make distribution of the Tithes within his Diocess where he thought convenient
inhaerentes quenquam in Ecclesia per pecuniam ordinari auctoritate Apostolica prohibemus ibid. And at another Council Conven'd at Westminster in the year 1175. under the Reign of King H. 2. it was Ordain'd that all Simoniacal Patrons should be deprived of their Right of Presentation for ever Nulli liceat Ecclesiam nomine dotalitii ad aliquem transferre vel pro Praesentatione alicujus personae pecuniam vel aliquod emolumentum pacto interveniente recipere Quod si quis fecerit in jure vel convictus vel Confessus fuerit ipsum tam Regia quam nostra freti auctoritate Patrocinio ejusdem Ecclesiae in perpetuum privari Statuimus Can. 8. vid. Chron. Gervas de Temp. H. 2. It is Reported of the Emperour Henry Son of Conradus that in his youth he accepted of a Silver Pipe from a certain Clerk on this Promise and Agreement That when he should be made Emperour he should bestow a Bishoprick on the said Clerk the which he after did accordingly when he became Emperour but not long after the Emperour being surpriz'd with Sickness and his Disease increasing he lay sensless and speechless for three days and so rapt as it were out of the Body that he lay as one dead the Bishops appointed a Three days Fast for the Emperours Recovery which having obtain'd he doth immediately by a Decree of the Council degrade the Bishop whom he had Simoniacally so made for a Silver Pipe for it was confessed by all that heard hereof That he was among the Devils during the space of all those Three daies wherein he lay as dead those Devils all that while darting fiery Flames through a Pipe into his mouth whereby his whole body became but as one Firebrand in comparison whereof our Material Fire here on Earth was but as congeled Ice to it c. As you like this so you may have more out of the same Infallible Author viz. Jo. Bromton in Chronico suo At a Council Assembled at Mantua by the Emperour Henry the Fourth in the year 1066. by the Third Canon of that Council it was Ordain'd That whosoever was admitted to a Church Office willingly and wittingly by a Simoniack person should be removed from his Order And by the Sixth Canon of the same Council it was likewise Ordain'd That no Ecclesiastical Office or Benefice should be sold for Money but freely given Also by the Seventh Canon of the Council at Rome consisting of 180 Bishops in the year 1180. under Pope Alexander the Third it was Ordain'd That no Reward be taken for admitting men to Spiritual Offices and that no money be taken for Blessing them that are Married or for Administration of any other Sacrament For at this time Marriage was counted a Sacrament of the Roman Church He that Simoniacally enters on an Ecclesiastical Living aim'd at something worth money he cannot be supposed to intend principally the Ministery of Souls who comes to that Office instructed only with a bag of Money In Ireland there is a Custome of receiving Oblations at the Baptism of Infants but if the Priest shall refuse to Baptize the Infant till he be secured of his Money he is a direct Simoniack for then he sells the Sacrament at a price certain It is Recorded in History of Henricus Auceps that when he fought against the Hungarians he made a Vow to God That if he would give him Victory he would purge his Countrey of Simony Epiphanius The precedent Evils of Sacriledge and Simony are no further punished than as they are reduced into act and practice but Heresie which in the method of the subsequent Abridgment next follows and as within the Ecclesiastical Cognizance is more speculative having its Seat more in the Head than in the Hand and consequently of the more pernicious quality in regard of its poysonous venom in these more noble parts the Head and Heart nor is it only the poyson of the Soul fatal in whom it is but it is also the plague and Leprosie of the Soul dangerously infectious to others in whom but very lately it was not This Heresie may be defin'd to be a Publish'd Opinion repugnant to the Principles of our Christian Faith obstinately maintain'd and persisted in by such as profess the Name of Christ and so Hereticks are distinguish'd from Atheists and Infidels properly so called albeit in a sense they have somewhat of both the other in them He seems to give it an adequate definition that made one for it by the true interpretation of the Greek word Haeresis Graece Electio Latine est sententia humano sensu Electa Scripturae Sacrae contraria palam docta pertinaciter defensa And he seems to give the Heretick an apt comparison who made one for him by the Mole which is a Beast blind with a black but smooth outside lurking in holes working under ground and spoyling the best Land In the black List or Catalogue of Hereticks which you meet with in its proper Chapter of the ensuing Abridgment you will not find all those Heresies mentioned by Epiphanius contr Haeres lib. 2. being purposely omitted for brevities sake because they were like abortive Births and continued not long to disturb the Peace of the Church Heresies of old as of late days have ever crept into the Church under a double pretence the one of zeal to the Glory of God the other of a detestation of Sin the Devil would cease to be the Old Serpent if after so many thousand years experience he were now to learn how to wheedle and deceive the Nations It is observable that whenever and wheresoever the Light of the Gospel hath appear'd in any more than ordinary lustre and purity there immediately the Devil hath exerted the utmost of his power and policy to obscure that Light by cauâ—ing Clouds of Error to gather in that Element where the Gospel so increased in purity and splendor and whenever he desists from this practice let him no more be styled The Prince of Darkness whence if Simon Magus were as some say the Father of Hereticks you may guess who their Grandfather is for according to the infernal genealogy the Father of Lies must needs be the Grandfather of Heresies In this ensuing Abridgment therefore you have one Chapter of Blasphemy and Heresie as being also within the sphear of Ecclesiastical Cognizance they are plac'd together in regard of that affinity they have each to other for many of them are Cosin-Germans but one degree of a Lie removed or rather are Brethren in Iniquity for they have both the same Father Ye are of your Father the Devil c. he abode not in the Truth says our Saviour of the Jews that believed not many of whom Blasphemously said of him That he had a Devil and was mad Others of them were foretold of by St. Peter That they privily should bring in damnable Heresies even denying the Lord that bought them c. wresting the Scriptures unto their
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
complaint thereof made to the Pope the Answer was That any man might be Cited to the Arches out of any Diocess in England Also That the Archbishop may hold his Consistory in any Diocess within his Jurisdiction and Province That the Archbishop hath concurrent Jurisdiction in the Diocess of every Bishop as well as the Archdeacon and That the Archbishop of Canterbury prescribes to hold Plea of all persons in England But as to his power of having a Consistory in the Diocess of every Bishop this was in this Case denied but only where he was the Popes Legate whereof there were Three sorts 1. Legates à Latere and these were Cardinals which were sent à Latere from the Pope 2. A Legate born and these were the Archbishops of Canterbury York and Mentz c. 3. A Legate given and these have Authority by special Commission from the Pope Likewise in the Case of Jones against Boyer C. B it was also said by Dr. Martyn That the Archbishop hath Ordinary Jurisdiction in all the Diocesses of his Province and that this is the cause that he may Visit 13. The Archbishop of Canterbury Anciently had Primacy as well over all Ireland as England from whom the Irish Bishops received their Consecration for Ireland had no other Archbishop until the year 1152. For which reason it was declared in the time of the Two first Norman Kings That Canterbury was the Metropolitan Church of England Scotland and Ireland and the Isles adjacent the Archbishop of Canterbury was therefore sometimes styled a Patriarch and Orbis Britannici Pontifex insomuch that Matters recorded in Ecclesiastical Affairs did run thus viz. Anno Pontificatus Nostri primo secundo c. He was also Legatus Natus that is he had a perpetual Legantine power annext to his Archbishoprick nigh a thousand years since And at General Councils he had the Precedency of all other Archbishops abroad and at home he had some special Marks of Royalty as to be the Patron of a Bishoprick as he was of Rochester to coyn Mony to make Knights and to have the Wardships of all those who held Lands of him Jure Hominii although they held in Capite other â—ands of the King as was formerly hinted He is said to be Inthroned when he is invested in the Archbishoprick And by the Stat. of 25 H 8. he hath power to grant Licenses and Dispensations in all Cases heretofore sued for in the Court of Rome not repugnant to the Law of God or the Kings Prerogative As also to allow a Clerk to hold a Benefice in Commendam or in Trust to allow a Clerk rightly qualified to hold Two Benefices with Cure of Souls to allow a Beneficed Clerk for some certain causes to be non-Resident for some time and to Dispense in several other Cases prohibited by the Letters of the Canon Law Likewise the Archbishop of Canterbury Consecrates other Bishops confirms the Election of Bishops within his Province calls Provincial Synods according to the Kings Writ to him ever directed is chief Moderator in the Synods and Convocations he Viâ—its the whole Province appoints a Guardian of the Spiritualties during the vacancy of any Bishoprick within his Province whereby all the Episcopal Ecclesiastical Rights of that Diocess for that time belong to him all Ecclesiastical Jurisdictions as Visitations Institutions c. He may retain and qualifie Eight Chaplains which is more by Two than any Duke is allowed by Statute to do and hath power to hold divers Courts of Judicature for the decision of Controversies pertaining to Ecclesiastical Cognizance CHAP. III. Of Bishops and Ordinaries 1. Bishop Why so called Not above One to be in one Diocess 2. Why called Ordinary and what the Pallium Episcopale is 3. Bishopricks originally Donative Kings of England the Founders thereof 4. The manner of Election of Bishops their Confirmation and Consecration 5. Their Seals of Office in what cases they may use their own Seals 6. What follows upon Election to make them Bishops compleat the grant of their Temporalties 7. The Conge d'eslire and what follows thereupon 8. Bishopricks were Donative till the time of King John 9. What the Interest and Authority is in his several capacities 10. Episcopal Authority derived from the Crown 11. The Vse and Office of Suffragan Bishops 12. Whether a Bishop may give Institution out of his own proper Diocess and under other Seal than his own Seal of Office 13. Several things incident to a Bishop qua talis 14. Ordinary what properly he is and why so called 15. In what cases the Ordinaries Jurisdiction is not meerly Local 16. The Ordinaries power de jure Patronatûs 17. Whether the Ordinary may cite a man out of his own Diocess Also his Right ad Synodalia 18. The Ordinaries power of Visitation 19. The Dignity and true Precedency of the Bishops in England 20. Temporal Jurisdiction anciently exercised by Bishops in this Realm the Statute of 17 Car. 1. against it Repealed and they Restored to it by the Stat. of 13 Car. 2. as formerly 21. The Act made in the Reign of Ed. 6. concerning the Election of Bishops the Endeavours thereby to take away Episcopal Jurisdiction the Nomination of all Bishops was Anciently Sole in the King 22. The Bishops of London are Deans of the Episcopal Colledge 23. A Case at Common Law touching a Lease made by one Bishop during the life of another of the same Diocess in Ireland 1. BISHOP Episcopus from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 supra and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 intendere an Overseer or Superintendent so called from that watchfulness care charge and faithfulness which by his Place and Dignity he hath and oweth to the Church A word which all Antiquity hath appropriated to signifie the Chief in Superintendency over the whole Church within his Diocess wherein are divers inferiour Pastors This Oversight or Care the Hebrews call Pekudah Of this Office or Ecclesiastical Dignity there can be but one at a time in one and the same Diocess whence it is that Cornelius Bishop of Rome as Eusebius relates upbraided Novatius for his ignorance in that point when he could not but know there were no less than 46 Presbyters in that Church Oecumenius and St. Chrysostome affirming also as many at Philippi For in this restrained sense as the word Bishop is now taken it cannot be imagined that there should be more than one in one City or Diocess at the same time consonant whereunto the Synod of Nice prohibited Two or more Bishops to have their Seats at once in the same City This Novatius aforesaid was a Priest of Rome 254 years after Christ he abhorred Second Marriages and was condemned as an Heretick in a Synod at Rome the same year Every Bishop many Centuries after Christ was universal Incumbent of his Diocess received all the Profits which were but Offerings of Devotion out of which he paid the Salaries of such as Officiated under himâ—
1 Jac. cap. 3. vid. 17 Ed. 3. cap. 40. 2. The Congé d'Eslire being granted to the Dean and Chapter they proceed accordingly to Election which in the sense here intended as appropriated to this Subject is that Regular Choice which is made of an Ecclesiastical person to succeed in the office and dignity of Bishop in and of that Diocess whose See at the time of such Election is vacant This Election referring to an Episcopacy or the choice of a new Bishop in a vacant See is done by a Dean and Chapter but there are also other Elections Ecclesiastical relating to a Regular choice of other persons to other Offices and Dignities in the Church subordinate to the former but here it is specially meant of such an Election or choice of a new Bishop as is precedent to Confirmation Consecration and Investure or Instalment being made as aforesaid by the Dean and Chapter of a Cathedral Church by vertue of the Kings License and Letters Missive according to his Majesties nomination and pleasure contained in such Letters Missive in pursuance of such License to Elect under the Great Seal of England which Election being made accordingly the Dean and Chapter are to return a Certificate thereof under their Common Seal unto his Majesty This Election alone and of it self be it to an Archbishoprick or Bishoprick if the person Elected were before the Parson or Vicar of any Church Presentative or Dean of any Cathedral or held any other Episcopal Dignity doth not ipso facto make void in Law such former Benefice or Dignity or Deanry because he is not compleat and absolute Bishop meerly by such Election but only Bishop Elect And an Election only of such one to a Bishoprick who had before a Benefice with Cure or any other Ecclesiastical Dignity or promotion doth not make a Cession thereof And it hath been adjudged that a Commendam retinere made to such a person of such a Parsonage Deanry or other dignity Ecclesiastical which the said Parson had before his Election to the Bishoprick is yet good to him notwithstanding such Election and so remains good to him until his Consecration 3. Confirmation hath various senses according to the different Acceptation of the word but here it is mainly intended for that which in order to an Investure of a Bishop is done by the Archbishop or Metropolitan of that Province in which a Bishoprick is void and unto which a new Bishop is to be Invested with such usual Benedictions and Ceremonies as are requisite to the same Note That before an Archbishop or other Bishop is Confirmed Consecrated or Invested he must take the Oath of Fealty unto the Kings Majesty only after which the King under his Great Seal doth signifie his Election to one Archbishop and two other Bishops otherwise unto four Bishops within his Majesties Dominions thereby requiring them to Confirm his Election and to Consecrate and Invest the person Elected After which Confirmation and Consecration he is compleat Bishop to all intents and purposes as well to Temporalties as Spiritualties And now he hath plenam potestatem tam Jurisdictionis quam Ordinis and may therefore after his Consecration certifie an Excommengment and upon his Confirmation the power of the Guardian of the Spiritualties doth cease and a Writ for Admission of a Clerk to a Benefice awarded Episcopo Electo Confirmato hath been held to be good Likewise the King may by his Letters Patents after such Confirmation and before Consecration grant unto such Bishop his Temporalties which Grant from his Majesty is held to be potius de gratia quam de jure but if the Bishop of one Diocess be translated to a Bishoprick in another there needs no new Confirmation of him In the Canon de Confirmatione Episcoporum of Othobon's Constitutions it is Ordained in haec verba viz. Vt cujus Electionis Episcopalis Confirmatio postulatur inter caetera super quibus Inquisitio Examinatio praecedere debet Secundum Canonum Instituta illud exactissime inquiratur utrum plura Beneficia cum animarum cura qui Electus est antequam eligeretur habuerit Et si habuisse inveniatur an cum eo super hoc fuerit dispensatum Et an Dispensatio si quam exhibuerit vera sit ad omnia beneficia quae obtinuit extendatur Et si in aliquo Praemissorum is ad quem Confirmatio spectat Electam deficere sua discussione compererit eidem nullatenus munus Confirmationis impendat 4. There is also Confirmation of another kind and far remote in sense from the former not of any Ecclesiastical consideration nor of any Affinity with the other otherwise than Nominal and that is the ratifying or confirming of an Office or an estate in a Place or Office to one who hath or formerly had the possession thereof by a good Title but voidable though not actually and at present void To explain this A Bishop grants his Chancellorship by Patent to one for term of his Natural life this Grant is good to the Patentee and not in it self void yet upon the Bishops death it is voidable unless it be corroborated and ratified by the Confirmation of the Dean and Chapter This is not the Confirmation here intended but the Confirmation of the Election of a new Bishop in order to his Consecration and Investure which though heretofore was by the Bishop of Rome when he claimed a Spiritual Jurisdiction in this Realm yet now since the Stat. of 25 H. 8. c. 20. the same is at his Majesties Command performed by the Archbishop or Metropolitan of the Province wherein such Bishoprick is void and two other Bishops otherwise by four such Bishops within his Majesties Dominions as to whom under his Broad Seal he shall signifie such Election commanding them to Confirm the same as also to Consecrate and Invest the person whose Election to the Bishoprick is so Confirmed as aforesaid 5. The Confirmation of the Election of Bishops to vacant Sees according to the Canon Law and as practised in such Kingdoms beyond Sea where the Pope doth claim and exercise a Spiritual Jurisdiction is as to the mode and solemnity thereof quite another thing to what the practice is with us in this Realm 6. In France though the Nomination of a Bishop to succeed in a vacant See belongs to the French King yet if he doth not Nominate within Six or Nine months next after the death of the former Bishop Jus devolutum est ad Papam if a Bishoprick be there void be it quomodocunque whether by Cession or otherwise the Law speaks indefinitely in that case the King shall Nominate in France who shall be the new Bishop but then he must Nominate within Six or Nine months which being Elapsed and no Nomination he cannot afterwards Nominate Nam jus sit ad Papam devâ—lutum nec poterit purgare moram For the Law in that Case and in that Kingdom is that
may not of the same Church exact one Procuration from the Rector another from the Vicar if he hath the Procuration in Victualibus of the Rector he ought to receive nothing of the Vicar nec è contra for one Procuration of one Church for one day is held sufficient dict c. Foelicis de Censib Nor do the Canons allow above one Procuration in case there be more Churches than one Visited in one and the same day the Reason whereof in Law because the Visitation is the Principal the Procuration is but the Accessory and the Visitation only of one day ought not to have the Procurations of more nor ought the Accessory to exceed the Principal Lindw ibid. de Censib c. quamvis gl ib. ver Canones Nor ought there to be paid above one Procuration for the Mother-Church and the Chappel thereto belonging when they are Visited Can. ibid. ver una Ecclesia Yet there are Canonists of very good Authority as Andraeas and others who holding the contrary do positively assert That every Chappel dependent if Peopled and of ability shall pay its own proper Procuration at times of the Ordinary Visitation for that the Bishop is to have a respect to every individual Member of his Diocess It is therefore distinguished and confessed that this is true when the Chappel dependent hath a Curate proper of its one and distinct from or other than the Curate of the Mother-Church But otherwise when the Rector of the Superiour Church is Curate of both only doth exercise the Cure in the said Chappel by a Vicar not Perpetual but Temporal and removeable ad Libitum Gl. in d. ver una Ecclesia Lindwood on this occasion puts the Question Whether in case the Church be of one Diocess and the Chappel thereto annexed or united or dependent thereon of another whether in that case there shall at the Visitation be but one Procuration paid for both He resolves it thus viz. That if the Ordinary of the place where the said Chappel stands hath formerly had there his Visitation and Procuration ratione Visitationis ejusdem then and in that case the power of Visiting the same nor by consequence the Procuration due ratione Visitationis is not taken away from that Ordinary by such union or dependency Gloss ibid. in ver Ecclesia 7. By the aforesaid Council of Lateran all Visitors were limited to a certain number of Visitation-Attendants according to their several qualities as Archbishops to the number of forty or fifty men with their Horses the Bishop to twenty or thirty Cardinals to twenty five though they could not digest such an undervaluation Archdeacons to five or seven Deans that is Archipresbyteri Rurales as the Gloss expounds it to Two only Gl. in ver Decani Extr. eod c. cum Apostolus Extr. Com. de Censib c. vas Electionis And the truth is the Archdeacon according to the Canon may not have in his Ordinary Visitation above the number of seven persons if he exceed that number there is not any Procuration due for the Supernumeraries Lind. de Cens Procurat c. 1. ver excedant glo ibid. gl in ver Visitationis gl ib. in ver Debitam 8. The word Synodale seems to have Three significations as 1 it seems to signifie Conventus or a Meeting in the same sense with Synodus as being taken for the Meeting or Synod it self and so used by Gregory 3. in his Epistle to the Bishops of the Provinces of Baiory and Almany Catholica Sanctorum Patrum Authoritas jubet ut bis in anno pro salute populi Christiani seu exhortatione adoptionis filiorum SYNODALIA debent celebrari c. This Epistle you have cited by Cardinal Baronius in the Eighth Tome of his Annals about the year 738. 2 It seems to signifie the Acts done at a Synod as well as the Synod it self and in this sense you have it in the Tripartite History where mention is made of a Synod of Bishops assembled at Antioch out of divers Provinces who sent the Emperour Jovinian a Copy of the Nicene Creed Hunc Libellum meaning the said Creed in collectione Synodalium Sabini conscriptum invenimus In which place Synodalia seems to import the Acts of that Synod collected by that Sabinus 3 It signifies a Cense or Tribute in money paid to the Bishop or to some other for his use by the Inferiour Clergy The forementioned Author of the Historical Discourse of Procurations c. acquaints us That in the second part of the Appendix to the third General Council of Lateran there is an Epistle of Pope Alex. 3. to certain Archdeacons and Deans reproving them for extorting of moneys from the Clergy sub diversis nominibus in a fraudulent kind of way Et hujusmodi exactionem saith that Epistle ut eam Liberius videamini exigere quandoque Consuetudinem Episcopalem quandoque SYNODALIA quandoque Denarios Paschales appellantes And in this sense is the word Synodale here used and taken which the Archdeacon claims not so much Jure Communi Ecclesiastico as by Composition with or Prescription from the Bishop 9. This Synodal or Synodical duty was anciently known by two other Names which now are grown obsolete the one Cathedraticum probably from the original Cause thereof being ob honorem Cathedrae Episcopalis the other Synodaticum from the time of payment both used promiscuously The former of these viz. the Cathedraticum was a Cense of two shillings paid by the Inferiour Clergy to the Bishop as appears by the Acts of certain Councils of Bracar and Toledo as also by the Constitutions and Rescripts of Popes Ilud te volumus modis omnibus custodire ne qui Episcoporum Siciliae de Parochiis ad se pertinentibus nomine CATHEDRATICI amplius quam Duos Solidos praesumant accipere 10. q. 3. c. illud c. placuit ibi c. So Honorius 3. expresseth Two shillings nomine Cathedratici Extr. de Offic. Jud. Ordin c. conquerent gl ibid. in ver Duos solidos which is a Pension paid to the Bishop à qualibet Ecclesia secundum Loci consuetudinem as Panormitan upon that Text Abb. c. conquerent de Offic. Jud. Ord. The reason of this payment was according to Hostiensis in argumentum subjectionis ob honorem Cathedrae Hostiens in Sum. de Censib ex quibus ver Cathedraticum autem And the Council of Bracar Placuit ut nullus Episcoporum per suas Dioeceses ambulans praeter honorem Cathedrae suae id est Duos Solidos aliud aliquid per Ecclesias tollat cited in the Decree 10. q. 3. c. placuit Note that the Cistersians by virtue of their Order were priviledged from being present at the Synodical Meetings assembled by the Bishop within his Diocess and from the payments of those Synodals Gloss in ver Episcopus c. Episcopus non debet Dist 18. Extr. de Majoris Obed. c. 9. Quod supr gl ib. in ver Diocoesana This Cathedratick-payment began when
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
the probable derivation of that word and what it signifies 2. The manner and form of Publication of Banns according to the Provincial Constitutions 3. By whom Licences for Dispensation of Banns may be granted according to the Canons Also to whom and under what Conditions or Cautions 4. Requisites or Preparatories in Law unto such Licences 5. A Case at Common Law with the Resolutions of the Court relating to Banns with the power of the Ecclesiastical Jurisdiction therein 1. BANNS bannus vel bannum if Ban in the Brittish Language signifies clamor as Mr. Blount gives it in his Nomo-Lexicon then we need seek no further for its Derivation Bannos Q. an non declinata voce à Graece 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 omne 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 innotescat Mutatur enim facile 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 For though the Word be frequently mentioned by the Feudists and thence applied to other uses as to that which we here in this Kingdom call a Proclamation whereby any thing is by Authority publickly Commanded Permitted or Forbidden Vincen. de Franch Decis 521 360. yet in the Sence here meant and intended it is not so properly a Proclamation as a Publication or a publick Notice-giving And therefore by the word Banns as we use it is intended that publishing of Matrimonial Contracts in the Church tempore Divnorum before Solemnization of Marriage to the end That if any have ought material to object against the intended Marriage signified by such Publication either in respect of Pre-contract or otherwise they may seasonably make their Exception against it consonant to the very Letter of the Canon Law where Banna sunt proclamationes Sponsi Spansae in Ecclesiis fieri solitae c. 27. extr de Spons c. ult Qui Matrim pos c. ult de clandest Despon vid. Gothof ad Nov. Leon. 89. in med ibi Hottoman is very confident that there is both bannns and bannum and that they signifie Two distinct things and neither of them to our purpose for according to his exposition the one should signifie an Edict what day their Vassals or Slaves furnish'd with Horse and shall encounter one another the other a Sanction or Decree that is a Mulct or Fine imposed on him that does not obey the Edict Hottom in verb. Bannus De verbis Feudalibus 2. In the Provincial Constitutions Banna are publick Proclamations or Denuntiations Lind. Provin Constit de cland Despon c. 1. glos verb. Bannorum Others describe them to be Edicta publice proposita Petr. de Anchor in cap. cum in tua Ext. de Sponsal By the said Provincial Constitutions the Banns ought to be Solemn Publications that is they ought to be thrice published in the Parochial Churches where the contracting Parties and their Parents dwell on 3 Sabbath days or 3 Festival daies allowing some interval of time between each at the time of Divine Service when most of the Parishioners are assembled together by the Parsons of the said Parishes respectively or others in holy Orders at such times and seasons wherein Solemnization of Marriage is not Canonically prohibited glos verb. Bannorum ubi supra Yet where three Festivals immediately succeed each other such Publication in them made holds good in Law Prov. Const de Spons glos in verb. a se distantibus As also shall the Marriage it self when once solemnized albeit such Publication of Banns as aforesaid did not precede the same gl in v. Solen Edit de cland Despon ubi supra 3. But by the Ecclesiastical Canons now in force it is Ordained That no Licence for the Solemnization of Marriage shall be granted without thrice open Publication of the Banns according to the Book of Common Prayer by any Person exercising any Ecclesiastical Jurisdiction or claiming any Priviledges in the right of their Churches but shall be granted only by such as have Episcopal Authority or the Commissary for Faculties Vicars General of the Archbishops and Bishops sede plena or sede vacante the Gardian of the Spiritualties or Ordinaries exercising of right Episcopal Jurisdiction in their several Jurisdictions respectively and unto such Persons only as be of good State and Quality and that upon good caution and security which shall contain these four Conditions 1 That therein is not any Impediment or Precontract Consanguinity Affinity or other lawful Cause to hinder the said Marriage 2 That there is not any Suit depending in any Court before any Ecclesiastical Judge touching any Contract or Marriage of either of the said Parties with any other 3 That they have the consent of their Parents or Guardians 4 That they shall celebrate the said Marriage publickly in the Parish-Church or Chappel where one of them dwells and that between the hours of 8 and 12 in the Forenoon Pasch 8. Car. B. R. case Matingley vers Martyn It was resolved that if any Marry without the Proclamation of Banns or Licence to dispence therewith they are citable for the same in the Ecclesiastical Court and no Prohibition lies in the case Jones Rep. 4. Before any such Licence as aforesaid can be granted it must appear to the Judge by the Oaths of two sufficient witnesses that the Consent of the Parents or Guardians is thereunto obtained and one of the Parties must personally swear that he beleives there is no Lett or Impediment of Precontract Kindred or Alliance or of any other lawful Cause whatsoever nor any Suit commenced in any Ecclesiastical Court to hinder the said Marriage according to the Tenor of the said Licence But in case the Parties be in Widowhood then the Clause relating to the Parents Consent may be omitted the penalty for offending in the Premisses is six months suspension ab executione Officii in any Commissary for Faculties Vicars General or other the said Ordinaries together with a vacating of every such Licence or Dispensation and subjecting the Parties marrying to the punishments appointed for clandestine Marriages The Syntagmatist tels us that there is a Canon extant made by John Metropolitan of Muscovy who is held as a Prophet in Russia to this day that Matrimonium non nisi publice in Ecclesiis contrahatur Petrus Gregor Tholos 5 In the case of Matingly against Martyn it was resolved 1 That the Cognuzance of all fornications Adulteries and suspected living in Adultery doth appertain to the Ecclesiastical Court 2 That if any marry without proclamation of the Banns without a Licence to dispence therewith they are citable in the Ecclesiastical Court for the same and no Prohibition lies in that case as aforesaid 3 That if any Licences to marry without Banns be granted by the Ordinary of the Diocess or by Commissaries or Officials in their Jurisdictions or by the Archbishop in his Province before the Stat. of 25. H. 8. The Cognuzance of the sufficiency of such Licence of the form of the Dispensation and of the Conditions and Provisoes of such Licence and
the Parties is Lawful Et homo potest esse habilis inhabilis diversis temporibus and Judgment affirmed in Error A. Was indicted upon the Statute of Primo Jacobi for having two Husbands It was found that A. was Lawfully Married to N. and before the Judge of the Audience she sued a Divorce against P. propter saevitiam whereupon it was decreed that propter saevitiam of her Husband she should be separated à Mensa Thoro and it was express'd in the Sentence that she should not Marry any other during the Life of P. she afterwards P. Living and she knowing thereof took to Husband J. S. The Question was whether that were Felony within the Statute It was said in this Case that this being a Divorce Causa Saevitiae was but a separation à Mensa Thoro and not a Dissolution à vinculo Matrimonii and therefore that the Marriage continued between them The Court doubted whether the Proviso in the said Statute did extend to every manner of Divorce but inclined to be of Opinion that she was not within the Proviso for if this should be suffered many would be Divorced upon such pretences wherefore the Court advised the Woman to procure a Pardon to avoid the danger of the Statute Debt against Husband and Wife as Executrix of her former Husband the Defendants plead by Atturney that they were Divorced before the Writ brought It was adjudged that the Writ should abate for it shall be presumed the Divorce continueth if the contrary be not shewed In another Case being for Debt upon an Obligation where the Defendant said that at the time of the making of the Obligation she was Wife to J. S. who is yet in vita and so Non est factum The Plaintiff said that after the making of the Bond there was a Suit in the Ecclesiastical Court between the said J. S. and the Defendant for that the said J. S. had another Wife alive at the time of the Marriage betwixt them so as the Defendants Marriage was adjudged void It was the opinion of the Court that this Divorce was but Declarative for it was void ab initio and so the Defendant sole always and adjudged for the Plaintiff The Wife Libelled against the Husband in the Ecclesiastical Court for Alimony because he beat her so as she could not live with him a Prohibition was prayed but denied by the Court and it was held in this Case that the Wife might have the Peace against her Husband for unreasonable correction By the Statute of 1 Jac. cap. 11. it is Felony to Marry a second Husband or Wife the former Husband or Wife living out of the generality of which Law the Lord Coke makes five exceptions 1. It extends not says he to any person whose Husband or Wife is continually remaining beyond the Seas by the space of seven years together and notice is not material in respect of the commorancy beyond Sea 2. It extends not when the Husband or Wife shall absent him or her self the one from the other by the space of seven years in any parts within his Majesties Dominions the one of them not knowing the other to be Living within that time here notice is material in respect the Commorance is within the Realm 3. It extends not to any person that at the time of such Marriage is Divorced by any Sentence had in the Ecclesiastical Court. 4. Nor to any person where the former marriage is by Sentence in the Ecclesiastical Court declared to be void and of no effect 5. Nor to any person for or by reason of any former marriage made within the age of Consent If the Man be above fourteen and the Wife under twelve or if the Wife be above twelve and the man under fourteen yet may the Husband or Wife so above the Age of Consent disagree to the Espousals as well as the party that is under the age of Consent for the advantage of disagreement must be Reciprocal And so it was resolved by the Judges and Civilians Trin. 42 Eliz. B. R. in a Writ of Error between Babington and Warner So as if either Party be within Age of Consent it is no former Marriage within the Act aforesaid It is commonly as well as formerly said that there are two kinds of Divorces the one that dissolveth the Marriage a vinculo Matrimonii as for Precontract Consanguinity c. The other a Mensa Thoro as for Adultery because that Divorce by reason of Adultery cannot dissolve the Marriage a vinculo Matrimonii for that the offence is after the just and lawful Marriage And the said Stat. of 1 Jac. cap. 11. doth in respect of the generality of the words priviledge the Offender in case of second Marriage where the former Husband or Wife is living from being a Felon as well in the case of Divorce a mensa thoro as where it is a vinculo matrimonii and yet in the Case of the Divorce a mensa thoro the second Marriage is void living the former Wife or Husband And if there be a Divorce a vinculo matrimonii and the adverse party appeal which is a continuance of the former Marriage and suspends the Sentence yet after such a Divorce the party Marrying is no Felon within the said Statute c. although the Marriage be not Lawful 13. Alimony although it properly signifies nourishment or maintenance when strictly taken yet now in the common legal and practicable sense it signifies that proportion of the Husbands Estate which the Wife sues in the Ecclesiastical Court to have allowed her for her present subsistence and livelyhood according to Law upon any such separation from her Husband as is not caused by her own Elopement or Adultery By this Elopement is here understood meant and intended that voluntary departure of a Wife from her Husband to live with an Adulterer and with whom she does live in breach of the Matrimonial vow whereby she incurrs the forfeiture of her Dower unless her Husband upon her free and voluntary submission shall think fit by way of reconciliation to receive her again and readmit her into the former conjugal relation In which sense a Woman thus deserting and forsaking her Husband is said to Elope whereby the Law will not compel him in this case to allow her Alimony on which word Mr. Blount in his Nomo-â—exicon makes mention of an ancient record wherein the same thing is called rationabile estoverium This Alimony the Wiâ—e that Elopes or departs from her Husband with an Adulterer though she departed with her Husbands consent yet loses together with her Dower or Joynture as appears by that remarkable Case of Sir John de Camois before recited And the Husband from whom his Wife departs and lives with an Adulterer shall not be compelled to allow her any Alimony 14. Notwithstanding the premisses regularly the Husband is obliged to allow the Wife Alimony pendente lite arg
Quean or words to that effect or importing the same Sense in this Case a Prohibition was granted 1 Because no Action lies for that Word Quean 2 For the uncertainty thereof 6. The Defendant said to one Anthony Elcock who was a Suiter to the Plaintiff and with whom there was near an Agreement of Marriage I know Davies Daughter well she did dwel in Cheapside and a Grocer did get her with child and the Plaintff declared that by reason of these Words Elcock refused to take her to Wife Adjudged that the Action would lie at the Common Law and the Suit was not to be in the Spiritual Court for Defamation but at the Common Law for that she is prejudiced in that which should be her Temporal advancement and the ground of the Action is Temporal The truth of the Case was this an Action upon the Case for a Slander was brought by Anne Davies against John Gardiner That whereas there was a Communication of a Marriage to be had between the Plaintiff and one Anthony Elcock the Defendant to the intent to hinder the said Marriage said and published that there was a Grocer in London that did get her with Child and that she had the Child by the said Grocer whereby she lost her Marriage To which the Defendant pleaded Not guilty and was found guilty at the Assizes at Aylesbury to the dammages of Two hundred Marks and now it was alledged in Arrest of Judgment that this matter appeareth to be meerly Spiritual and therefore not determinable at Common Law but to be prosecuted in the Spiritual Court. But per Curiam the Action lies here for a Woman not Married cannot by intendment have so great advancement as by her Marriage whereby she is sure of maintenance for her life or during her Marriage and Dower and other benefits which the Temporal Laws give by reason of her Marriage and therefore by this Slander she is greatly prejudiced in that which is to be her Temporal advancement for which it is reason to give her remedy by way of Action at Common Law As if a Woman keep a Victualling house to which divers of great credit repair whereby she hath her livelyhood and one will say to her Guests that as they respect their Credits they take care how they use such a House for there the Woman is known to be a Bawd whereby the Guests avoid the House to the loss of her Husband shall not she in this Case have an Action at Common Law for such a Slander It is clear that she shall So if one saâ—th that a Woman is a Common Strumpet and that it is a Slander to them to come to her House whereby she loseth the advantage that she was wont to have by her Guests she shall have her Action for this at Common Law So here upon these collateral circumstances whereby it may appear that she hath more prejudice than can be by calling of one Harlot and the like And judgment was given for the Plaintiff 7. Touching Defamation for which Suit is in the Ecclesiastical Court. Resolved the matter must be meer Spiritual and determinable only there for if it concern any matter which is determinable at the Common Law the Ecclesiastical Judge hath not the cognizance thereof 8. Action was for these words Pierce hath taken a false Oath in the Court of Consistory of Exeter It was objected that for matters in the Spiritual Court an Action will not lye And the Stat. of 5 Eliz. of Perjury doth not extend to those Courts but it was resolved that the Action did lye for these words and that the Statute doth extend to such and the like Courts as the Court of Star-chamber c. And the words that he hath taken a false Oath shall be intended actively and shall amount to these words He is forsworn In this Case it was said by Prideoux that these words are Actionable although the Perjury be supposed to be committed in the Spiritual Court for he shall be Excommunicated if he will not appear and he shall do penance in a white sheet which is as great a disgrace as to be set upon the Pillory And it was ruled in an Action upon the Case betwixt Dorrington and Dorrington upon these words Thou art a Bastard that an Action lieth and yet Bastardy is a Spiritual matter and there determinable so for these words Thou art a Pirate an Action lieth and yet Piracy is not punishable by the Common Law but in the Court of Admiralty And these words He hath taken a false Oath do amount to these words He is forsworn Wray conceived that the words are not Actionable for there is a Proviso in the Statute of Eliz. cap. 9. that the said Act shall not extend to any Ecclesiastical Court but that every such Offender shall be and may be punished by such usual and ordinary Laws as heretofore have been and are yet used and frequent in the said Ecclesiastical Court Gaudy upon these words an Action doth not lye for they are not pregnant of any Perjury in the Plaintiff for he may be meer passive in it for if one of the Masters of the Chancery Minister an Oath to any person or any Commissioners c. and the Plaintiff sweareth falsly a Man may say that the Master of the Chancery or the Commissioners have taken a false Oath and yet he is not guilty of falsity And afterwards Mutata Opinione Wray that the Proviso in the said Statute is to this intent such an offence may be enquirable and examined in the Ecclesiastical Court in such manner as was before but the same doth not take away or restrain the Authority of the Common Law but that such an Offence may be here examined c. And as to the latter exception upon these words he hath taken a false Oath it shall be intended Actively and not Passively And if so the Defendant ought to have so pleaded it And afterwards Judgement was given for the Plaintiff 9. Pollard and his Wife brought an Action against Armshaw for these words viz. Thou art a Whore for I. S. Goldsmith hath the use of thy Body and the Cart is too good for thee Per Curiam the Action will not lie for the Common Law cannot define who is a Whore but where if one keep a Victualling House it be said she keeps a house of Bawdry an Action will lie 10. Action upon the Case for words of Defamation Whereas the Plaintiff was a Person of good Fame and always free from Adultery and Fornication c. And after the death of Brian her late Husband was in Communication with one Cowley for a Marriage betwixt them That the Defendant to deprive her of her Fame and to hinder her from the said Marrige spake of the Plaintiff these words viz. she is a Whore and her Children innuendo her Children which she had by the said Brian late her Husband are Frambishes Bastards innuendo one Nicholas Frambish
party a Sentence there given and Costs pro expensis litis the Husband did release these Costs which they would not there allow of upon a suggestion here that the Husband was divorced causa Adulterii a Prohibition was prayed and for which it was urged that the Release by the Husband was good the Suit being there for Defamation Sentence there given the Wife divorced à Mensa Thoro which doth not dissolve Vinculum Matrimonii but that this notwithstanding they may come together again when they will and such a Divorce is no Barr of Dower Doderidge They are only to restore the Party to her good Name in Case of Defamation The point here only is the Husband and Wife are divorced Causa Adulterii the Wife sues in the Ecclesiastical Court for Defamation and there recovers and Costs are given the which the Husband did release whether this Release thus made by the Husband shall barr the Wife of her Costs And if they will not allow of this Release there whether a Prohibition shall be granted or not The Whole Court clear of opinion that no Prohibition in this Case is to be granted And so by the whole Court the Prohibition was denied CHAP. XXXVIII Of Sacriledge 1. Whence the word Sacriledge is derived what it imports and the several kinds thereof 2. It is taken properly and strictly or improperly in sensu largo and is of a mixt Cognizance 3. The several ways whereby Sacriledge may be committed 4. Who are intended by Persons Sacred against whom Sacriledge may be committed the division thereof 5. Bartol's Definition of Sacriledge several severe punishments thereof Recorded by Historians 6. The several punishments inflicted on Sacrilegious persons according to the Civil and Canon Law The Civil Law more severe therein than the Canon how punish'd anciently in this Realm according to the Ecclesiastical Constitutions thereof 7. The dreadful Curse anciently and solemnly pronounced in Parliament against Sacrilegious persons 8. A remarkable Judgement that happened to a Bishop of Bangor for Sacriledge 1. SACRILEDGE from Sacro Lego or à Sacris Legendis that is suffurandis for that word Lego sometimes signifies furari or rapere Isidor lib. 1. Origin lit s Sacrilegus qui sacra legit h. e. furatur In the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 importing as much as to say 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is praedari vel violari Sacra for Sacriledge is the violation or usurpation of some thing that is Sacred Gloss in cap. omnes Ecclesiae 17 q. 4. and may be committed three several ways As 1. either in respect of the Person as when a man doth wound or strike an Ecclesiastical Person in Holy Orders or 2. in respect of the Place as when one violates the Priviledges or immunities of the Church or Church-yard or 3. in respect of the Thing as when a thing Sacred or Consecrated or deputed or dedicated to some Sacred use is usurped upon and taken away and this holds true whether auferatur Sacrum de Loco sacro vel non sacro vel non sacrum de sacro Lindw de Offic. Archipres c. 1. glos in verb. Sacrilegium 2. Sacriledge is taken either strictly and properly as when a thing sacred is stolen out of a sacred place so it is held according to the Law generally but either will amount to Sacriledge according to the Canons or in a large sense and improperly and so it extends to other Crimes l. si quis c. de Epis cle c. de sacrileg per totum As infringing the Church's Liberties invading Ecclesiastical goods and the like whereof more hereafter Lindw de immun Eccl. c. 2. glos in ver Sacrilegi The Emperors held their Constitutions so sacred that they called the violation thereof Sacriledge l. un c. de Crimi Sacril This Crime is of a mixt cognizance partly Ecclesiastical partly Secular whereof each Jurisdiction may jure proprio take cognizance c. cum sit generale De foro compet So that this Crime of Sacriledge is not meerly Ecclesiastical because the cognizance â—â—â—reof in some Cases may appertain to the Secular Judge at least quoad poenam si quis in hoc c. de Epis Cler. And Hostiensis himself doth confess as much quoad poenam Corporalem otherwise it is as to the censures of the Church contra talem fulminadas 3. There are many ways whereby Sacriledge may be committed as by invading the rights and goods of the Church by unjust and illegal vexing and molesting the Church by wasting and destroying the Church by violating Ecclesiasticks by a Clerks consulting with Soothsayers and Diviners by violating Church-priviledges and Immunities by striking a Clerk Lindw de immun Eccl. c. seculi glo in verb. ausu Sacrilego Church-burners Church-breakers Church-robbers by stealing the Church-bible the Calice or other thing out of the Church by violating the Church-porch or breaking the Doors thereof by striking in the Church or apprehending and taking any one there by obstructing the Jurisdiction of the Church or hindering any of that free access which he ought to have to the Church by usurping the Guardianship or custody of a Church that is void and under that pretence posess themselves of the Goods and Revenues thereof by usurping and occupying the Oblations and Offerings of the Church but to explicate this Crime of Sacriledge to its full latitude it is requisite in order thereto to distinguish aright of things Sacred which are violated thereby for as Habits are distinguish'd ex objectis so Vices by the matters about which they are conversant now the matter of Sacriledge is ever something Sacred and therefore Sacriledges are distinguish'd according to the diversity of Sacred things whence Aquinas inferr's that as there are Three kinds of things Sacred viz. Persons Places and some other Things So there is a Threefold kind of Sacriledge viz. against Persons against Places and against other Things consecrated and dedicated to Divine Worship Which distinction the Canonists do generally hold in each Member thereof As Sacriledge 1. Against Ecclesiastical Persons cap. sicut c. quisquis 17. q. 4. in c. si quis deinceps usque ad cap. si quis suadente ead Caus q. 2. Sacriledge against sacred places cap. Miror c. Frater 3. Against the Goods and Revenues of the Church cap. Sacrilegium cap. Omnes Ecclesiae cap. Attendendum It being expresly said that Qui pecunias vel res Ecclesiae abstulerit Sacrilegium facit in cap. qui rapit There is no Sacriledge but may be reduced to one of these three heads although under them there may be divers other kinds of Sacriledges more particularly subdistinguish'd 4. By Persons Sacred is here understood such as in a peculiar manner are set apart and dedicated to Divine publick Worship according to Sacred Ordination and the principal kind of Sacriledge commissable against such is the laying of violent hands on them which is a violation of their Immunities or Priviledges cap. si quis
the dispersing of the Christian Flock doth not undeservedly pass under the name or notion of one of the Rejected Councils To this Assembly resorted 90 Bishops under pretence of Dedicating the Church of Antioch built by Constantine when in truth their principal design was to eject Athanasius out of his Chair and to subvert that Systeme of Faith which was set down in the Nicene Council This Council of Antioch is to be distinguish'd from Five others which Bellarmine reckons Longus also doth name this and mentions other Councils of Antioch But this Council is referr'd to the time of Constantinus and Julius the First Athanasius being restored from Banishment by Constantine the Son of Constantine the Great the Arrians declare it to be unlawful because the same Authority which did eject must restore This matter therefore being referr'd to Pope Julius he Summons the Synod to appear at Rome But the Eusebians chief of the Hereticks that they might avoid this did without much difficulty seduce Constantius to be at the Consecration of the Magnificent Temple built by Constantine the Great at Antioch where were met about 90 Bishops as aforesaid 30 whereof being Arrians the favour and Authority of the Emperour against the double Suffrages of the Orthodox procured the condemning of Restored Athanasius It is said of this Council That they did set forth a Form of Belief so intermixed with Truth and Error that he which is heedful lest he be deceived in his greatest warlness can scarcely be safe for by the omission of what might establish the Truth they weaken that which they undertake to maintain To this Council probably may be referr'd Two other Councils which some report to have been held also at Antioch about the year 348. the former whereof was occasioned by the favour which Julius Bishop of Rome shewed to Athanasius Bishop of Alexandria and other Bishops In the other the Arrians did set forth a new Sum of their Faith which being sent to the Bishops of Italy was refused by them adhering to that of the Nicene Council At Sardis in Illyricum in the year 351. by the Command of Constantius and his Brother Constans a great National Council was Assembled consisting of 376 Bishops whereof Three hundred were from the West and Seventy six from the East from Thirty five Provinces in all The Three hundred Western Bishops confirmed the Nicene Creed to this end That Athanasius who was Banished Rome for the space of Three years should be restored to his Place at Alexandria but the other Seventy six Arrians meeting at Philippolis confirmed Arrianism under the Title of the Council of Sardis In this Council by reason of the Arrian Faction and from thence forward were added different Affections to different Opinions In this Council which is commonly called an Appendix to the First Nicene Council were ratified 21 Canons under Pope Julius At Sirmium in Illyria in the year 356. by Command of the Emperour Constantius a Council was held where were present besides Eastern Three hundred Western Bishops and upwards for the hearing and deciding the Cause of Photius who complained to the Emperour that he was unjustly condemned at the Synod of Sardis although he had preached that Christ was meer man and inferiour to his Mother This Council at Sirmium so groaned under the Arrian Tyranny of Constantius that the Supremacy and Presidentship of Pope Liberius dared not to appear Photius Bishop of Sirmium having renewed the Heresies of Sabellius and Samosatenus Of this Council saith Longus there is nothing extant besides Three Forms of Belief which are found in Binius In this Synod there was a hot Dispute between Basilius Bishop of Ancyra an Arrian Heretick and the said Photius a Sabellian Heretick At Millain in the year 355. at the instance of the Arrians a Council consisting of Three hundred of the Occidental Bishops at the command of Constantius was Assembled who after that the Emperour Constans was slain by Magnentius had the whole Sovereignty both of the East and West in his hands This Council was conven'd partly for ratification of the Sentence pronounced against Athanasius at Tyrus and partly for subversion of the Nicene Faith but prevailed in neither In this Council the Emperour himself was President Liberius being Pope I saith the Emperour in this Council am an Accuser of Athanasius The Western Catholick Bishops there present for there were few Eastern promised to consent to the Arrians if they would first subscribe to the Nicene Creed But Valence and Vrsacius the chief Leaders of that Faction withstood them Then followed the degrading of the Bishops and the corrupt Ecclesiastical determination This was effected especially that they might allure Liberius Bishop of Rome either by Gifts or Threats to their way who is reported thus Heroically to have Answered the Emperour who had judg'd him to be Banished to Thrace and offered him the charge of his Journey viz. Thou hast robbed the Churches of the Earth and now offerest to me Condemned an Indigent an Alms Go first and become a Christian thy self At Ariminum in Italy about the year 363. was held a National Council consisting of more than Four hundred Western Bishops under the Emperour Constantius in the 22 d year of his Reign at the motion of the Arrians to whose Opinions the said Emperour was flexible enough but the major part of the said Bishops rejecting the motions made in favour of the Arrian Error touching the Son of God adhered closely to the Nicene Faith This Ariminum is it seems Famous for Two Councils the one Orthodox and lawfully called which is that aforementioned The other Heretical and Tyrannical craftily called by the Arrians under the notion of the Council held at Ariminum that this False one might extinguish the True one whereof the greater part determined the Nicene Creed punctually to be observed and the Sons equality with the Father in Essence to be asserted The Decrees of the Synod at Sirmium to be rejected and Vrsacius and Valence with the Arrians their Followers to be Excommunicated At Seleucia in Isauria which lies between Lycania and Cilcia whence Paul and Barnabas sailed to Cyprus Act. 13. 4. was a Council of 160 Oriental Bishops held the same year wherein the said National Council of Ariminum was held viz. An. 363. The business of this Council procured as the former by the Arrians was much prevented by a Contest arising touching precedency of Debates as whether the matter of Faith or the Lives of such as were to be accused should first fall under Examination At this time there being Convened at Ariminum 600 Bishops according to Bellarmine out of the Chron. of Jerome of which the Eastern Heterodox being overpowr'd both in Number and Arguments by the Orthodox the Emperour Constantius removes them unto Seleucia in Isauria aforesaid Here the Acatians altogether reject Consubstantiality the Semi-Arrians admit it in their sense In this diffention
the Semi-Arrians prevail and determine That the Form of Faith composed at the Dedication at Antioch should be retained and subscribed unto but they ejected the dissenting Acatians or Arrians from their places At Constantinople where the Acatians remained after the Council at Seleucia were Assembled by them about 50 Bishops out of Bythinia and other adjacent parts In this Synod they confirmed the Sum of Faith read in the Council of Ariminum At Antioch in the 25 th year of Constantius his Reign another Council was Convened with design or ordering matters so that for the time to come no man should call the Son of God Consubstantial with the Father nor yet of a different substance from the Father but neither in this Council could the Arrians perfect their intended purpose of inventing a new Sum of Faith At Laodicea not that Laodicea nigh Antioch in Syria but at Laodicea the Metropolis of Phyrgia and one of the Seven Churches of Asia to which John in his Banishment wrote from Patmos At this Laedicea a Synod was assembled about the year 368. wherein nothing was determined concerning matters of Faith only the Worshipping of Angels was damned as an horrible Idolatry and a forsaking of Christ also the Books of the Canonical Scriptures were particularly set forth wherein no mention was made of the Books of the Machabees of Ecclesiasticus or other Apocryphal Books In Illyricum about the year 370 under the Emperours Valentinian and Valens not yet infected with the Arrian Heresie was held a Council wherein the Nicene Faith had confirmation and allowance At Lampsacum nigh the Hellespont under the Emperour Valens was a Synod of Macedonian Hereticks who ratified the Council of Seleucia and damned that of Constantinople by the Acatians At Rome under the Emperour Valentinian in the West Damasus Bishop of Rome Convened a Council wherein was confirmed the Nicene Faith At Constantinople in the year 383 under Theodosius the Emperour was a General Council held consisting of 150 Bishops whereof 36 were infected with the Macedonian Heresie which blasphemously held the Holy Ghost to be a Creature a Minister and Servant not Consubstantial with the Father and the Son From this Council the said Hereticks having withdrawn themselves they which remained in Council damned the Heresie of Macedonius and confirmed the Nicene Faith with ampliation of that part of the Symbol which concerned the Holy Ghost in this manner viz. I believe in the Holy Spirit our Lord Giver of life who proceedeth from the Father and with the Father and the Son is to be worshipped and glorified This Council was held under Gratian and Theodosius the Great and Damasus They condemned and discharged Macedonius Bishop of Constantinople for his perfidious opposing the Deity of the Holy Ghost together with Maximus Cynicus by reason of his Doctrine against Discipline The Emperour null'd all Confessions except that of those who acknowledged Christ Coessential with the Father which our present Liturgy retains under the name of the Nicene Creed It is thought that Gregory Nazianzen compiled it according to the sense of the Synod At Constantinople under Theodosius another Council was held whence a Synodick Letter was sent to the Bishops then Conven'd at Rome declaring the troubles they sustained by Hereticks and as to matters of Discipline recommended unto them the Canons of the Council of Nice At Constantinople in the Fifth year of Theodosius his Reign a great National Council was again Conven'd wherein the Hereticks were divided among themselves touching what Credit they should give in matters of Faith to the Fathers that preceded their time whereupon that good Emperour rent in pieces the Sums of the Arrian Eunomian and Macedonian Faith and Ordained the Homousian Faith only to take place At Carthage the Second Council was assembled under Theodosius nigh the time of the foresaid General Council held at Constantinople wherein the Nicene Faith was confirmed abstinence from Matrimonial Society with Infidels and Hereticks recommended to Ecclesiastical persons At Nice there was another Council An. 181. under Constantine which wholly restored the Images and Statues of Irene together with the Reliques formerly broken in pieces by Leo Isaurus his Grandfather and Constantine Copronymus his Great Grandfather the business being chiefly promoted by Gregory the Second and the Third together with Adrian the First and Tarasius Patriarch of Constantinople There met at this Council which is one of the Greek or Eastern Oecumenical Councils 350 Bishops who with the said Tarasius President of the said Council by 22 Canons condemned Image-breakers for Hereticks Bellarmine and Baronius imagine that this Synod was condemned by the Fathers at the Council of Franckfort under Charles the Great which yet is denied by Binnius Surius and others according to Longus pag. 632. At Carthage a Third Council was Assembled in the year 399 at which Augustine Bishop of Hippo was present wherein it was inter alia Ordained That the Bishop of Rome should be called the Bishop of the First Seat but not the High Priest or the Prince of Priests Likewise That nothing except the holy Canonical Scriptures should be read in Churches under the notion of Holy Books At Carthage a Fourth National Council was held under the Reign of Honorius about the year 401. consisting of 214 Bishops at which Augustine Bishop of Hippo was also present and wherein were nigh as many Canons made as were Bishops assembled wherein among other things it was Ordained That a Bishop should admit no man to a Spiritual Office without Advice of the Clergy nor pronounce any Sentence without such Advice That Refusers to pay unto the Church the Oblations of persons Deceased should be Excommunicated Whereby it appears That Oblationes Defunctorum were not Soul-Masses said for the Dead but Charity by way of Testamental Legacies At Cyprus under the Reigns of Arcadius and Honorius was Assembled a Council by Epiphanius And at Alexandria by Theophilus under pretence of damning the Books of Origen Also at Constantinople by the malice of Eudoxia the Wife of Arcadius the Emperour to depose John Chrysostome Bishop of Constantinople At Carthage about the year 419. a Fifth Council was held wherein the Opinions of Pelagius and Coelestius were damned as Heretical and whereby it was Declared That the Adoration of Reliques was at this time the Custome of Ethnicks and Appointed That Supplication should be made to the Emperours That such Reliques as were found in Images Groves and Trees or elsewhere should be abolished At Toledo in Spain under the Reigns of Arcadius and Honorius was a Council assembled for Confirmation of the Nicene Council and refutation of some Errors At Melevitum in Numidia was Assembled under the Reign of Arcadius a Council whereof St. Augustine was President which was Assembled chiefly to finish the work begun at the Fifth Council of Carthage in
into the Church albeit Divine Service be not then celebrating unless it be to hear the word preached which being ended he is immediately to depart or stand at the Church-door in the time of Divine Service and hearing the same albeit he go not within the Church it self or thrust himself into the company of others when it is in his power to avoid it or lastly when he continues too long secure under such Sentence of Excommunication without repentance whereby the Law concludes him so manacled by his obstinacy as no Spiritual Physick can have any operation upon him And although regularly the Return of such a one is to be expected usque ad annum yet in this Kingdom quoad incovationem Brachii Secularis it is sufficient if Forty daies be expired after his Excommunication Ibid. c. 1. authoritate glos in verb. Contemnentes And whereas we often in the Law meet with certain Cases of Offences incurring the Sentence of Excommunication ipso facto that is as aforesaid nullo hominis ministerio interveniente Requiritur tamen even in that case Sententia Declaratoria C. cum secund Leges de Haeret. li. 6. Lindw de Foro Comp. c. 1. glos in verb. ipso facto 8. It is therefore not impertinent here to insert what principally those Offences are on the Guilty whereof the Law doth inflict this Excommunication ipso facto Lindwood tells us that there are found among the Canons and Constitutions Provincial these Cases following wherein Excommunication ipso facto is incurr'd viz. 1 A wilful and malicious impeding the execution of the Canon against Incontinency specially in Ecclesiasticks as to Concubines 2 A clandestine and surreptitious Proceeding at Law even to the Writ of Banishment against an innocent person and ignorant of the Proceedings 3 Bigamy 4 False Accusing of any Innocent Clergy-man before a Temporal Judge whereby he happens to suffer under the Secular Power 5 A laying Snares to entrap any in holy Orders whereby afterwards to charge them falsly before the Secular Powers with Crimes whereof they were not guilty 6 A violation of lawful Sequestrations made by the Bishops their Vicars general or principal Officials 7 The exercise of Ecclesiastical Jurisdiction by any Clerk married or by any Lay-person in matters only and properly pertaining to the Cognizance of the Church 8 Disobedience to the Gregorian Constitution forbidding the holding of Two Benefices Incompatible cum Cura animarum without a Dispensation 9 A procuring to be Presented to a Benefice that is already full of an Incumbent by virtue of the Writs of Quare non admisit or Quare impedit or the like 10 Abettors and Advisors of any to fraudulent Conveyances or Deeds of Gift in fraudem Ecclesiae Regis Creditorum aut haeredum 11 All such as hinder any of what quality soever that are legally Testable from making their last Wills and Testaments or afterwards do unjustly obstruct the due execution of the same 12 All such as hinder the devotion of the people in making their Offerings and paying their Tithes converting them to their own use 13 All such as deny the gathering of the Tithes of any Fruit or molest and hinder the Collectors thereof 14 All Lay-persons who usurp upon such Oblations and Offerings as are due and appertain only to Ecclesiastical persons without their assent and the assent of the Bishop 15 Sacrilegious persons and all such as invade the just Rights Liberties or Revenues of the Church or otherwise unjustly possess themselves de bonis Ecclesiasticis 16 All Bayliffs and other Officers that unjustly enter upon the Goods of the Church or unduly exact from the same or commit Waste upon any the Revenues of a Church vacant 17 All Oppugners of Episcopal Authority or that resist and oppose the exercise of Ecclesiastical Jurisdiction and all such as disswade others from their due Obedience thereunto 18 All such as being imprisoned for their Contempt to some Ecclesiastical Sentence are thence set at liberty contrary to the Liberties and Customes of the Church of England being Excommunicate persons when they were first apprehended 19 All such as violently usurp upon the propriety of such Trees and Fruits as grow in the Church-yards rooting them up or felling them down or mowing down the Grass thereof contrary to the will and without the consent of the Rector or Vicar of any Church or Chappel or their Tenants 20 All such as should non ritè solemnize Prohibited Marriages that is such as have any Canonical Impediment 21 All such as contrary to the true Catholick sense shall assert any thing or lay down positions or make propositions sauouring of Heresie publickly in the Schools 22 All such as in their Preaching or otherwise shall violate the Canon that enjoyns a due examination and approbation of persons before they are admitted to Preach the Word of God 23 All such as touching the Sacraments assert any thing beside or contrary to the determination of the Church or call such things into doubt publickly as are defined and stated by the Church 24 All such as in the Universities do after a premonition to the contrary hold any Opinions or assert any Doctrines Propositions or Conclusions touching the Catholick Faith or good manners of an ill tendency contrary to the determination of the Church 25 All such Clerks as without Ecclesiastical Authority shall of themselves or by any Lay-power intrude themselves into the possession of any Parochial Church or other Ecclesiastical Living having Curam animarum These Cases and some others now not of use in this Realm are enumerated by Lindwood Lindw de Sententia Excom c. ult gloss in verb. Candelis accensis But there are very many other Cases in the Canon Law that fall under this Excommunication ipso facto by which in the Law is ever understood the Major Excommunicatio and was wont to be published and denounced in the Church Four solemn daies in every year when the Congregation was likeliest to be most full and that in Majorem terrorem 9. The Causes of Excommunication ipso facto according to the Constitutions and Canons Ecclesiastical of the Church of England now in force are such as these viz. 1 Impugners of the Kings Supremacy 2 Affirmers of the Church of England as now established to be not a true and Apostolical Church 3 Impugners of the Publick Worship of God establish'd in the Church 4 Impugners of the Articles of Religion establish'd in the Church of England 5 Impugners of the Rites and Ceremonies established in the Church of England 6 Impugners of the Government of the Church by Archbishops Bishops c. 7 Impugners of the Form of making and Consecrating Archbishops Bishops c. in the Church of England 8 Authors of Schisms in the Church 9 Maintainers of Schismaticks Conventicles and Constitutions made in Conventicles Likewise by the said Canons the Ecclesiastical Censure of Excommunication is incurr'd by all such Ministers as Revolt from the Articles unto which they subscribed at their
may be discerned Whether the Pope may be Simoniacal Q. Whether it be Simony to give money for the Sacrament upon a Death-Bed Whether it be Simony in the Ordinaries or their Officials to take money for Letters of Ordination under Seal Whether it be Simony in Ecclesiasticks to take money for Sermons or Theological Doctrines Whether it be Simony to resign a Benefice reserving a Pension out of it Whether it be Simony to resign or bestow a benefices upon Trust or Confidence With diverse other such Questions in the Canon Law relating to this Subject the Solutions whereof are not of any moment to us who are out of the Pope's Diocess CHAP. XL. Of Blasphemy and Heresie 1. What Blasphemy is and whence so called 2. The several punishments inflicted on Blasphemers 3. How may ways Blasphemy may be 4. What Heresie is a Conjectural derivation of that word Heresie it is Threefold 5. What shall he accounted Heresie what the Lollards of old were and why so called 6. In whom the Jurisdiction of Heresie properly resides 7. A Heretick convicted and so persisting whether according to Law combustable The reason of that severe Law Heresie is Lepra animae 8. An Alphabetical black Catalogue of Hereticks their Errors Heresies and Blasphemies and the times wherein they pester'd the World 9. A Catalogue of Jewish Hereticks but not in any Alphabetical manner as the former 1. BLASPHEMIA 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quod laedat famam 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is as it were 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to hurt anothers same or reputation Suidas interpreteth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 one who injureth God with contumelious words which is when men detract from God the honour due unto him or attribute any evil to him Blasphemare est tacite vel expresse verbo vel scripto contra deum aliquid contumeliosum dicere Navar. cap. 12. nu 81. Blasphemia est injuriosa in deum locutio vel contumelia in deum verbo irrogata Less lib. 2. de Blasph This is cognizable in the Ecclesiastical Jurisdiction and by the 109. Canon of the Ecclesiastical Constitutions of the Church of England is among other notorious Crimes to be certified into Ecclesiastical Courts by way of presentment in order to punishment according to Law 2. This Crime of Blasphemy was so odious to the Emperor Justinian that he ordained that the Blasphemer should undergo ultimum supplicium be punished by death for he made it capital Auth. ut non Luxur Coll. 7. By the Ecclesiastical Laws of Keneth King of Scots An. 840. It is provided that he that Blasphemeth shall have his Tongue cut out Blasphemy is speaking Treason against the Heavenly Majesty the belching out of exercrable words against God whereby the Deity is reproached Baldus says that Blasphemy is a kind of Heresie Bald. in L. Qui accusationem C. Qui Accus non posse for which a Lay-man is Anathematized by the Church of God and a Clerk deposed from all Ecclesiastical Orders Can. si quis per capillum 22. q. 1. The Canon Law seems not severe enough in the punishment of this Crime probably for that they of the Roman Church do hold that there is a Blasphemy against Saints and Blasphemia Dei vel sanctorum hath but one and the same punishment with them and that is a solemn and publick penance if the Blasphemy were publickly committed Extra de Maledict c. statuimus And that the World may know how they abominate this sin of Blasphemy they put the Question and demand whether any Priest inferiour to a Bishop can absolve a man from this sin for answer they distinguish and say that if the Blasphemy be publick and notorious it cannot be absolved but by a Bishop but if it were only private and occult non in platea nec in camera multis audientibus then every Priest may absolve it Ant. de pae re si Episcopus lib. 6. Steph. de Gaeta Repet in c. ad Limina 30. q. 1. nu 139. Aquinas reckons it among the Mortal sins 3. Lindwood in his Provincials says that that is Blasphemy quae dicitur irreligiosa reprehensio detractio vel vituperatio but says he to speak properly and strictly Blasphemare est Deo injuriam irrogare which may be done three several ways 1 Aliquid attribuendo quod deo non convenit 2. Ab ea removendo quod deo convenit 3. Creaturae attribuendo illud quod est proprium deo Lindw de Offic. Archipr c. 1. verb. Blasphemia In the Primitive times this sin was punished by a delivering the Offender over unto Satan which was an Ecclesiastical censure by the Greater Excommunication whereby the Offender became unto others as an Heathen and a Publican Mat. 18. 17. and whereby he is dissiranchised of all the Priviledges of the Church 4. Touching Heresie there are various conceptions as to the derivation of that word some are of opinion that the word comes from Error and rectus and that from thence comes Haereticus that is Errans à Recto sive Rectitudine Fidei Catholicae l. 2. in sin C. de Haeretic Others will have the word Heresis to be from heriscor that is divido and thence Heresie to be Divisio ab unitate Fidei Azo Sum. C. eod tit Others will have it to be from haereo Error thence Haeresis quasi adhaesio Erroris and Haereticus quasi adhaerens Errori for Error of it self doth not make an Heretick but adhering to an Error doth Lindw de Haeret. c. 1. And others there are who do conceive that the word Haeresis dicitur ab Electione because an Heretick doth chuse to himself that Opinion which he thinks is best for himself And he that inclines to this Opinion seems to be least in an Error for Haeresis is from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Optio vel electio secta ab 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Eligo Heresie is an Opinion repugnant to the orthodox Doctrine of the Christian Faith obstinately maintain'd and persisted in by such as profess the Name of Christ that Heresie which is commonly called Haeresis univorsa or Heresie in sensu largo is threefold and doth consist either in a mans heart or in his mouth or in his works Under the first of these are comprized all such as are Christians only by Name but not so in truth and in deed under the second are comprehended all vain Swearers Covenant-breakers and indevout approachers to God in his Worship under the third are contained all Hypocrites whose counterfeit devotion without any sincerity in the heart consists only in the simulation of an external work all these are by Lindwood understood in a large sense as Hereticks Lindw de Offic. Archipr c. 1 glos in ver Haeresis But these are not the Hereticks here meant or intended nor indeed are they Hereticks in any proper sense whereby we commonly understand such as Hereticks who maintain and persist in any Opinion contrary to the True Orthodox
Catholick Faith or any of the Articles thereof grounded on the word of God 5. By a Proviso in the Act of 1 Eliz. c. 1. no matter or cause shall be adjudged Heresie but such only as hath been so adjudged by the Authority of the Canonical Scriptures and by the first four General Councils or by any other General Council wherein the same was declared Heresie by the express and plain words of the Canonical Scripture or such as shall hereafter be determined to be Heresie by Parliament with the assent of the Clergy in their Convocation as appears by the said Statute the occasion of the making whereof was as suppos'd by reason of an Indictment against certain persons called Lollards upon the Statute of 2 H. 4. c. 15. Whose Opinions were 1. That it was not meritorious to go in Pilgrimage to St. Thomas nor to St. Mary of Walsingham Nor 2 To adore the Image of a Crucifix or of Saints Nor 3 To confess sins to a Priest but to God onley c. 6. Sir Ed. Coke in the third part of his Institutes cap. 5. doth assert that both by the Books at Common Law and by History it doth appear that an Heretick may be convicted before the Archbishop and other Bishops and other the Clergy at a General Synod or Convocation Bract. Lib. 3. fo 123 124. in Concil Oxon. Newburgh l. 2. c. 13. 6 H. 3. Stow. Hol. 203. 2 H. 4. Rot. Parl. nu 29. Sautries Case F. N. B. 269. 2. 1 El. c. 1. And the Bishop of every Diocess may convict any for Heresie and so might have done before the Statute of 2 H. 4. c. 15. For the Diocesan hath Jurisdiction of Heresie and so it was practised in all Q. Elizabeths Reign and accordingly it was resolved by all the Justices in the the Case of Legate the Heretick And that upon a conviction before the Ordinary of Heresie the Writ de Haeretico comburendo did lye Without the aid of the Act of 2 H. 4. c. 15. it seems the Diocesan could Imprison no person accused of Heresie but was to proceed against him by the censures of the Church And now says the Lord Coke in the forecited place In as much as not only the said Act of 2 H. 4. but also that of the 25 H. 8. c. 14. are repealed the Diocesan cannot Imprison any person accused of Heresie but must proceed against him as he might have done before these Statutes by the censures of the Church as it appears by the said Act of 2 H. 4. c. 15. according to Sir Ed. Coke in that place aforesaid where he also saith that no person at this day can be indicted or impeached of Heresie before any Temporal Judge or other that hath Temporal Jurisdiction But every Archbishop of this Realm may cite any person dwelling in any Bishops Diocess within his Province for causes of Hersie if the Bishop or other immediate Ordinary thereunto consent or if that the same Bishop or other immediate Ordinary or Judge do not his duty in punishing the same 7. Again Sir Ed. Coke in the forementioned place affirms that it appears by Bracton Britton Fleta Stanford and all the Books of the Common Law that he who is duly convicted of Heresie shall be burnt to death Mir. c. 4. de Majesty Bract. ubi sup Britt c. 9. Fleta l. 1. c. 35. Reg. F. N. B. 269. But the Ecclesiastical Judge cannot as he says at this day commit the person that is convict of Heresie to the Sheriff albeit he be present to be burnt but must have the Kings Writ De Haeretieo Comburendo according to the Common Law F. N. B. 269. Rot. Par. 2 H. 4. nu 29. Sautries Case Bre. de haeret Combur per Reg. Concil in Parliam The reason Sir Ed. Coke gives wherefore Heresie is so extremely and fearfully punish'd is for that Gravius est aeternam quam Temporalem Laedere Majestatem And Haeresis est lepra animae The party duly convicted of Heresie may recall and abjure his Opinion and thereby save his life but a relapse is fatal And if the Heretick will not says he after conviction abjure he may by force of the said Writ be burnt without abjuration 2 H. 4 Rot. Parl. N. 24. A Writ was issued by the advice of the Lords Temporal in Parliament to the Sheriffs of London and subscribed per ipsum regem concilium in Parliamento by which the Sheriffs were commanded to burn William Sautre who had been before condemned for a relapsed Heretick by the Archbishop of Canterbury Apostolicae sedis Legatum and other Suffragans and all the Clergy of that Province in Concilio suo Provinciali Congregat juris ordine Note 1 Eliz. cap. 1. Proviso that such as have Jurisdiction by Letters Patents shall not have power to Judge Heresie but in such Cases as have been before adjudged c. or such as shall hereafter be ordered judged and determined to be Heresie by the High Court of Parliament of this Realm with the assent of the Clergy in their Convocation as aforesaid Before a man shall be adjudged an Heretick he ought to be convicted by the Provincial Synod for the Common Law doth not take notice what is heresie If an Heretick convict shall after abjuration relapse into the same or any other Heresie and thereof be convict again the Writ De Hoeretico Comburendo may be directed to the Sheriff after the party is delivered by the Clergy unto the secular power And by the Statute of 2 H. 4. c. 15. Every Bishop in his own Diocess might as aforesaid convict a man of Heresie and upon another conviction after abjuration might by the Sheriff proceed unto comburation But that Statute is repealed by the Statute of 25 H. 8. c. 14. vid. co lib. 12. in a Case of Heresie Note 2 Ma. tit Heresie Brook per omnes Justiciarios Baker Hare The Archbishop in his Province in the Convocation may and doth use to convict Heresie by the Common Law and then to put them convicted into Lay-hands and then by the Writ De Haeretico Comburendo they were burnt but because it was troublesome to call a Convocation It was ordained by the Statute 2 H. 4. cap. 15. That every Bishop in his Diocess might convict Hereticks And if the Sheriff was present he might deliver such to be burnt without the Writ aforesaid but if the Sheriff were absent or he were to be burnt in another County then the said Writ ought to be had who are Hereticks vid. 11. H. 7. Book of Entries fo 319. vid. Doctor and Stu. lib. 2. cap. 29. Cosin 48. 2. 1 2. P. M cap. 6. Also 3 F. N. B. fo 269. And the Writ in the Register proves this directly 4 Bracton l. 3. cap. 9. fo 123 124. And it is also true that every Ordinary may convent any Heretick or Schismatick before him pro salute animae and may degrade him