so down with such a mischief the faster the better Aâ—isloph in Equil 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 then there was no cause of opposition on his part none nor cause of haste that I know But to give my friend some little satisfaction such as I may and I hope he will not prove like him in the Comedy not perswaded though perswaded 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Aristoph in Plut. I conceive better of him then so thus much I must ingenuously acknowledg That in the Canon Law and Provinciall Constitutions from the letter of some few Texts and Glosses such a sense seeming at the least as he asserts doth result namely that Procurations are not otherwise to be required but upon the duty of Visitation performed Extr. l. â—tit 30. As for example Procurationes quae ratione visitationis debentur Episcopis c. absque manifestâ causâ nullatenus exigantur nisi quando personabiliter officium visitationis impendunt And again Archidiaconis districtius inhibemus ne aliquo modo Procurationes recipiant sine causâ rationabili nisi illo die quo personaliter visitant Provinâ— Const de ossicio Archid Such passages the Reader of our Laws will now and then meet withall And from hence doubtless it is and from axioms not well understood as that of Cessante causa cessat effectus L. adigere § Quamvis de jure Patron c. Cum cessante â—xtr de appellat and such like that the apprehensions and conceipts of many diving no deeper into the sense and meaning of the Law then the superficies or bare letter Gribald de Rat. Stud. l. 1. c 5. nor framing to themselves any doubt which they ought to do before they can peremptorily decide are invaded and whirled away with error And such I take this to be That no Procuration can warrantably and with good conscience be demanded without the act of Visitation first performed by or in the person of him that makes such claim But if more could not be said then this that the Living of an Archdeacon consists of Procurations for which he is accountable in respect of yearly payments to the King and this is said already and seems not to satisfie I suppose there were reason enough to plead a Custome for the payment of them in the Bishops triennial year sine visitatione on his part otherwise it would fall out that the omission of an act which he is forbidden to doe would destroy an Office which the equity of the Law will not permit to be Let the Case be paralleld A Mortuary is not properly and originally said to be due to an Ecclesiasticall Incumbent Parson or Vicar from any but those only of his own Parish to whom he ministreth spiritual instruction and hath right to their Tythes C. Statuâ—um v. ut insra de consuetud in Gloss But see Sir H. Spelman his judicious conjecture upon this point of Mortuaries in his Treatise de sepâ—ltura p. 35. Lyndewoods Glosse upon the Provinciall Constitutions discovering the ground and reason of that payment to be this namely That when through ignorance and sometimes through negligence and unjust detention of Tythes and Oblations the Parishioner was found tardy and faulty c. Ideo statuit Archiepiscopus quod compensatione sic subtractorum secundum melius animal defuncti Ecclesiae damno debuit applicari But all this notwithstanding we know the prevalency of Custome to be such that in some places of this Kingdome they are paid to the Incumbents of other Parishes that perform no ministeriall duties at all to the deceased party nor living nor dying 21 H. 8. c. 6. And the Statute doth nothing at all controll the course but makes the usage of payment only to be the Law thereof Thus then if the parallel come any thing near the point if it prove but argumentum a simili that known and common axiom of Bartolus may be pertinent enough which is this L. illud ad l. Aquil. ubi militat eadem ratio idem jus statui debet and that other Rationis identitas non patitur decisionem similium casuum esse diversam But yet the mound is not made fast enough cavill will find or make way through Le ts look back again and examine the places above quoted against this payment where we shall find the constitutions set down in terms of qualification Procurationes quae c. sine manifesta causâ And what needs all this if there were not yet another right besides the reason of Visitation that inforceth this payment But concerning this particular having written something in the foregoing Treatise I resolve in this place to say no more Thus much only I will intimate to my friend because he shall wait no longer for my opinion in this point Let the places by him urged out of the Common Law and Provincial Constitutions C. 1. distinct 11. and Glosses carry with him as much strength as those Laws may be imagined to be capable of to prove and uphold his assertion yet as the Canonists say of the Civil Law that where it opposeth the Canon it is not to be regarded that must give place to this as they say So if any Canon or Constitution whatsoever is with us of such force though I will yield them their due to the full to annihilate and overthrow National Laws or Customes Eutâ—op l. 8. p. 119. That any Popes Decree or Rescript should be like those Edicta Praetoria as the Laws of the Medes and Persians Dan. 6.12 perpetual unalterable and irrefragable that he should say and all should hearken and obey Diodor. Sicul. l. 1. as it was said of Isis Queen of Aegypt Quae ego legibus statui nullus poterit solvere I profess it comes not within the compass of my Creed nor have I faith to believe it Thus much I have learned which I also believe 25 H. 8. c. 19. 1 Eliz. c. 1. that such and only such Canons and Constitutions as have been allowed by general consent and custome within the Realm and are not contrariant or repugnant to the Laws Statutes and Customes of the Realm Coke de jure Regis Ecclesiasticâ— p. 32. nor tend to the damage or hurt of the Kings Prerogative Royal are in force within this Realm as the Kings Ecclesiastical Lawes of the same and none other Now that such Canon or Constitution Papal or Provincial that necessarily ties the receiving of Procurations to the Act duty of Visitation only is repugnant first to a Custome grounded and prescribed from a Record of good antiquity and observed in divers Dioecesses of this Kingdome And secondly to an Act of Parliament almost as ancient that warrants such a receit without mention of any Visitation is evident as by that which in the precedent Tractate hath been briefly intimated so also by that which here follows wherein both Record and Act are more fully delivered The Record is this Archidiaconatus Glouc. Valet clarè in Proxis Cenag Pentecostal ibid.
fuerat faciendum A man in the Law is not held to be faulty for omitting to doe what by his superiour he is not permitted to doe Nither is it of weight as I conceive that some urge That forasmuch as all Archdeaconries or the most part of them have their corps to wit some spirituall dignity or promotion appendant to them the Archdeacon that hath such Corps ought to live upon it in the years when he visits not and out of the profits arising thence poor and jejune perhaps to sustain and defray the whole charge of the Archdeaconry It is true that many yea most Archdeaconries have their Corps annexed to them but none that I know sine sarcina none but hath its peculiar payments and charge of Tenths Subsidies or Pensions or all together appendant even to the full as much or rather more then any other Ecclesiasticall Living of that nature And to charge them with more then their own burden which is found of times heavy enough would be ahard imposition to speak the least But especially if it should so happen that the Archdeacon had no other means as such there have been as well in this Kingdome which I could name as in forein parts Duaren l. 2. c. 4. de sacris Eccles ministeriis benesiciis as Duarenus doth remember then were it indeed intolerable and the rather in two respects especially First in respect of his Order for therein considered he is a person of speciall and remarkable Quality Seconly in respect of the Office that he sustains Ab. sic super secunda prim de offic Archipâ—e b. c. ut Archipresbyter which is Dignitas principalis post Episcopum in Ecclesia and upon which there is at least in former times there was so much dignity appendant in regard of the amplitude of power and jurisdiction that he had under the Bishop that Philip a fifth Son of Lewis the Gross King of France Paâ—lus Aemilius Tilius disdained not to take upon him the Office of an Archdeacon in Paris as Stories tell us And for such a one to want correspondent accommodations is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ext. de Office Archid. C ut Archidiaconâ—â— c. Ad baeâ— Onuphr Pantan Intâ—rpr vocum Ecclesiast in sine Chronâ—ci â—ui ad Platin. de vitis Ponus p. 61. a most unseemly absurd thing He is called Oculus Episcopi Diaconus circumlustrator perscrutator Vicartus post Episcopum ad quem in omnibus in Clero omnis cura pertinet with such like Titles of eminency Now should he be deprived of his just rights it would come to pass that his care would be so much to provide necessaries for himself at home that he should find little leasure circumlustrare to look into the field of the Church and to take care for others abroad But I know with whom I have to doe they are Scholars whose readiness to apprehend a reason and ingenuity to acknowledge a right I trust will prove such as that I shall not need to beat more ground for reasons which yet were there cause I could easily add to give them satisfaction in this point namely of the Reasonableness of the Archdeacons receipts of Procurations in the L. Bishops Triennials I descend therefore to the other property of a prevailing Custome namely Sufficiency of Continuance whereof in a word It hath been Vltra hominum memoriam and so equivalent to an Imperiall Priviledge or Constitution F. de aqua quotid costiva l. 3. §. Ductus aquae for it is an hundred years since the Certificate upon the Commission of Melius inquirendum concerning Ecclesiasticall Livings was returned into the Exchequer at what time it was certified what particular payments were yearly then made to the Archdeacons of the severall Diocesses in this Kingdome out of Ecclesiasticall Livings and thereupon their receipts became accordingly valued in the Kings Books and so stand unto this day And lest the Church by means of the suppression of Monasteries and other Religious Houses from whence Procurations and such like dues before that time had been usually paid to Ecclesiasticall Governors should receive detriment and be impeached in its former accustomed receipts rights when all the Lands and Possessions of those Religious Houses were setled in the Crown came into the Kings hand by Act of Parliament there was afterwards another Act of Parliament in the 34 of H. 8. by which a strict provision was made for the due payment of all such Ecclesiasticall rights as namely Pensions Portions Corrodies Indemnities Synodies and Proxies that were payable to and in the possession of any Ecclesiasticall person Ten years before the Dissolution no preceding visitation or other causall act or motive inducing thereunto more then that such due had accustomably been paid out of the said Religious Houses And thus have I runne through and given answer briefly to the third and last enquiry wherein I have endeavoured to prove First that there is Custome for the receipt of Procurations without visitation And secondly the same from the grounds of Reason and Continuance as to that point to be warrantable good And to make the matter clear I have thought good to subjoyn as most pertinent and satisfactory such in my opinion to the present business the subsequent Case of Proxies which devested and stript from its ancient Norman dresse and clad in plain English presents it self to the Readers view as followeth viz. Trin. 2 Jacobi in the Exchequer The Case of Proxies Between the KING and Sir Ambrose Forth Dr. of the Civil Law and one of the Masters of the Chancery The Case was this THe Bishop of Meth before the dissolution of Monasteries had a Proxie of 15 s. 4 d. payable yearly out of the Commandery of Kells in the County of Meth parcell of the possessions of the Hospital of St. John of Hierusalem in Ireland and another Proxie of 20 s. payable yearly out of the Impropriate Rectory of Trevet in the same County parcel of the possessions of the Abby of Thomas-Court in the County of Dublin In the 33 year of Hen. 8. the said Hospitall of St. John of Jerusalem and the said Abbey of Thomas-Court were surpessed and dissolved and the possessions of both the said Houses were vested in the actuall and real possession of the Crown by Act of Parliament But in the same Act there is an express Saving of Proxies to all Bishops and their successors After that the Bishop of Meth and his Clergie for that Bishoprick hath no Dean and Chapter did by Deed enrolled dated 16. Martu 36 Hen. 8. grant the Proxies aforesaid inter alia to K. Henry the eighth his Heirs and Successors the said King being at the time of the Grant and after in actuall possession of the said Commandery and Rectory out of which the said Proxies were payable Afterwards Q. Eliz. by her Letters Patents dated 1 Novembris in the 33 year of her reign did demise
26 H. 8. Extract è Record Primitiarum per annum ultra lx s. solut pro feud Raphael Rawlins Collect. dict proum Cenag cum Pentecostal 64 l. 10 s. x 2 inde 6 l. 9 s. Here is plainly set down the true worth and full value of the Archdeaconry of Gl. in Procurations Synodals and Pentecostals to wit 64 l. 10 s. And for prevention of future cavil as if the present opposition had been so many years agoe foreseen it is expressed per annum too for that 's the matter of grievance so much yearly worth And what would we more to make the matter plain He doth in my opinion little other then Nodum in scirpo quaerere and consequently beat the aire that useth means to evade a payment so apparently clear and evident Add to all this continual perception and collection of these duties by Archdeacons even from the time of the valuation of them in Anno 26 H. 8. unto this present and tenths as before I have said paid out of them yearly to the Crown for all that time I suppose there is none alive that can contradict it et quod non disprobatur praesumitur such Books and Acquittances as I have seen and I have seen some that are ancient all testifying the same Besides I never heard of any that stood out a suit against this payment that upon a judiciall hearing or trial ever prevailed in the principal cause and point of right but was alwayes overthrown in the litigation and comepelled to pay charges And as for the Act of Parliament Thus much I find conducing to my purpose in Anno 34 Hen. 8. c. 16. IF any person or persons being Farmer or Occupier of any Manors Rastal Abridgment Pensions Lands Tenements Parsonages Benefices or other Hereditaments of any of the said late Monasteries or Ecclesiasticall houses or places or belonging to them or any of them by the Kings Highness gift grant sale exchange or otherwise out of which premisses any such Pensions Portions Corrodies Indemnities Synodies or Proxies or any other profits have been heretofore lawfully going out answered or paid to any of the Archbishops Bishops Archdeacons and other Ecclesiasticall persons above-said doe at any time after the first day of April next comming wilfully deny the payment thereof at the dayes of payment heretofore accustomed of any of the said Pensions Portions Corrodies Indemnities Synodies Proxies or any other profits whereof the said Archbishops Bishops Archdeacons or other Ecclesiastical persons were in possession at or within ten years next before the time of the Dissolution of any such Monastery or other Ecclesiastical houses or places that then it shall be lawfull for the same Archbishops Bishops Archdeacons or other Ecclesiasticall persons aforesaid being so denied to be satisfied and paid thereof and having right to the same thing in demand to make such process as well against every such person and persons as shall so deny payment of the same Pensions Portions Corodies Proxies Indemnities Synodies or any other profits which of right ought to be paid as is aforesaid as against the Church or Churches charged with the same as heretofore they have lawfully done and as by and according to the Laws and Statutes of this Realm they may now lawfully doe for the true payment and recovery thereof And if the party Defendant be lawfully convict in any such suit cause or matter according to the Ecclesiasticall Lawes then the party Plaintiffe shall have and recover against the party Defendant the thing in demand and the value thereof in dammages with his costs for his Suit c. By this Act it is plain that all such payments as issued out of Parsonages Benefices or other Hereditaments of the said late Monasteries to any Archbishop Bishop Archdeacon c. at or within ten years next before the time of the Dissolution should be still continued and duly paid as before Now the Procurations or Proxies were yearly due The Record hath its ground from an Act of Parliament of 26 H. 8. The suppression of Abbies follows in 31 ejusdem Regis and paid within lesse then six years before the Dissolution appeareth plainly by the preceding Record Therefore yet to be paid according to the fore-recited Act. But perhaps it will be objected Why was there a Provision made by Act of Parliament for payment of these duties out of Parsonages c. belonging unto Monasteries and not out of others in like manner in the then possession of spirituall Incumbents I answer It seems to me that this Proviso was made by the clemency of the King and the indulgency of the Parliament to secure the rights of the Church to the true owners thereof that haply might be passed away and in hazard to be utterly lost by the Kings Grant to Lay-persons And this to be the ground and reason of that Provision is clearly demonstrated in the latter part of the same Act of 34. Hen. 8. where there is a course prescribed how such persons in such Cases should have remedy and in what Court they should commence suit for the recovery of their subtracted rights viz. in the Court of Augmentation of the Revenue of the Kings Crown and not elsewhere These be the words of the Act whereunto I referre the Reader Now there needed no such Act or caution as before is mentioned no such Proviso to secure the Visitors duties from the invasion of spiritual Incumbents of whose Promotions or Benefices the King made no sale nor medled withal but left them entire reserving to himself upon the return of the Certificate of their true value only an yearly Tenth but with an exact deduction first of all such summe or summes of money Procurations or whatever else he then found them yearly charged withall which being so allowed to the spirituall Incumbent I conceive that those that the Lawes and Statutes of this Realm have qualified and made capable of such receits and such are Archbishops Bishops Archdeacons c. may lawfully at their respective accustomed times according to the fore-recited Act require and so ought to receive them till authority shall alter the course But to this point I hope there is enough said already To draw now towards a conclusion These Reasons that I have here urged together with those formerly mentioned make me to think that Procurations are not payable as my friend thinks Ratione lummodo visitationis no but sometimes Custome hath its place as all Canonists that I have read upon the point doe unanimously acknowledge yea those or suck like reasons moved a very learned Civilian Dr. Cosens sometime Dean of the Arches writing of the quality of rights Ecclesiastical and how they became due amongst other things saith D Cosen Polit. Ecclesiae Angl. â—ab 8. Pensiones indemnitatis Procurationes ratione visitationis PLERUNQ praestandae He doth not say as my friend saith that they are only so due but Plerunque so Now what Plerunque signifies is a little to be enquired after That it comes near to the signification which corresponds to his fancy no Grammarian I am sure will allow Plerunque is never found to carry the sense that solummodò doth but that it yieldeth the same sense and signification that interdum doth Civilians well know Vlpian l. Falsus ff de Furtâ—s and I acknowledge And in so doing I render him but small advantage and my self as little prejudice I hold my assertion still There is jus consuetudinarium a right of Custome by which Procurations are sometimes and ought as I suppose so to be And the sole reason of that payment dependeth not upon the Act of Visitation only alwaies as my friend would have it I have done with this business God grant that what it aims at it may effect Peace peace I say either by submitting to Truth or convincing by Truth Amen Amen 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 LEt the Reader be pleased to take notice as fit to be known that the aforegoing Discourse and Appendix were written in the time of Dr. Robinson late Archdeacon of Gloucester deceased and not altered in this Impression from what they then were examined and prepared in Order to the Presse except the mistakes in Printing of which the most material I have here noted others of mispointing and misaccenting with some other literal escapes I pray the courteous Reader to make use of his Pen to amend or his Patience to forbear what 's amiss Page 7. line 4. read came Pa. 9. l. 11. r. us Pa. 10. l. 21. r. Lions Pa. 19. l. 3. 1. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pa. 23. l. 16. r. Praelatus Pa. 24. l. 16. r payment Pa. 26. l. 8. r. subsistit Pa. 26. l. 15. r. praescripta Pa. 31. l. 13. r. is l. 24. r. imputari Pa. 85. l. 21. r. Parochial and so elsewhere Pa. 90. l. 6. r. rise Pa. 126. l 6. r. Nathaniel Pa 128. l. 15. r. this Pa. 132. l. 24 r. personaliter Pa. 136. l. 6. r. Canon