looked on Tithes in general as due to the Church as appears by very many of their Ancient Charters but they thought they did very well when they appropriated them to Monasteries of their own Erection or others as they thought fit But this Humour took so much among the Norman Nobility and served so many Purposes of Honour and Devotion as they thought besides Reason of State that the parochial Clergy were reduced to so poor a Condition that Alexander IV. complained of it as the Bane of Religion and Destruction of the Church and as a Poison which had spread over the whole Nation And it must be very scandalous indeed when the Pope complained of it For the Monks that were able generally got their Appropriations confirmed in the Court of Rome 2. There was a Competency to be settled on the parochial Clergy by the Bishops Consent which was required in order to the confirming an Appropriation as may be seen in Multitudes of them in the Monasticon besides those which are preserved in the Churches Registers Sometimes the Endowment is expressed and at other times it is reserved in the Bishop's power to do it as he sees Cause But the Bishops were either so remiss in those Times or the Monks so powerful at Rome that the poor Vicars fared so hardly that in the time of H. 2. Alexander III. sent a Reprimand to the Bishops for favouring the Monks too much and the Clergy too little and therefore requires the Bishops to take care that the Vicar had a competent Subsistence so as to be able to bear the Burden of his Place and to keep Hospitality This was directed to the Bishop of Worcester for it seems so long since the poor Vicars here were hardly provided for And yet I have seen several Forms of Appropriations made by the Bishops here after the Conquest wherein there is a twofold Salvo one for the Bishop's Right and another for a sufficient Maintenance for the Curate although the Church were appropriated ad communem usum Monachorum as of Wolstan Roger and of William in the time of Hen. II. when Alexander III. lived and of Walter de Grey Sylvester c. But it seems where a competent Subsistence had been decreed the Monks took the first Opportunity to lessen it which occasioned another Decretal in the Canon Law wherein any such thing is forbidden without the Bishop's Consent In other Places they pleaded Custom for it thence came another Decree of the Lateran Council to void all such Customs by whomsoever introduced where there was not a competent Subsistence for him that served the Cure The Monks were still refractary in this matter and because the Bishops had Power to refuse any person presented by the Monks unless they did consent to such a reasonable Allowance as the Bishop thought fit therefore they grew sullen and would not present in which Case another Decretal was made to give the Bishop Power to present And after all Clement V. De Iure Patron c. 1. reinforced the former Decretals and injoyned the Diocesans in the strictest manner not to admit any person presented to a Cure where the Church was appropriated unless sufficient Allowance were made by the Bishop's Consent and Approbation and all Custom and Privileges to the contrary are declared to be void But how far doth this hold among us now since the Appropriations are become Lay-Fees and the Bishop's Power is not mentioned in the Statute of Dissolution To this I shall give a clear Answer but I doubt not satisfactory to all Parties concerned For as Necessity and Power so some Mens Interest and Reason live very near one another 1. The Statute of Dissolution leaves all matters of Right as to persons interested just as they were before For by the Surrender the King was to have the Monasteries and Tithes in as large and ample a manner as the Abbots then had them in Right of their Houses and in the same State and Condition as they then were or of Right ought to have been And so res transit cum suo onere But this is not all For there is an Express Salvo for all Rights Claims Interests c. of all Persons and Bodies Politick So that if by the Law of England there was such an Antecedent Right in the Vicar to his Allowance and in the Bishop to assign it it is not taken away by this Statute nor any other 2. By the Law of England the Bishop had a Right to provide a competent Maintenance for supplying the Cure upon an Appropriation We are told by an unquestionable Authority in point of Law that 9 Car. 1. this Point was brought before the Kings Bench in the Case of Thornburgh and Hitchcot The Vicar complained that the Church was appropriated and that he wanted a competent Maintenance a Prohibition was prayed but denied upon this Reason That the Vicar had Reason for his Suit and that the Ordinary might compel the Impropriator to make it greater because in all Appropriations that Power was reserved to the Ordinary And so in the Year-Books it is allowed That the Ordinary may increase or diminish the Vicar's Portion 40 E. 3. Cas. 15. f. 28. By our Provincial Constitutions the Bishop is to take care that the Vicar have a competent Allowance which at that time was set at Five Marks but Lyndwood observes that as the Price of things rose so the Allowance was increased and in Stipendiaries it was then advanced to Eight or Ten Marks which according to Sir H. Spelman's Computation comes to above Sixty Pounds per Annum But some have told us That by some old Statutes even beneficed Persons were not by Law to have above Six Marks per Annum for this was the Sum allowed to Parish Priests which is so gross a Mistake in any that pretend to Law or Antiquity that it is to be wondred how they could fall into it The Truth of the Case was this the parochial Chaplains or Priests were complained of 36 E. 3. n. 23. that they could not be gotten to attend after the Plague but at excessive Rates upon this a Provincial Constitution was made extant in the Parliament Rolls wherein they are obliged to demand no more than Six Marks But who were these Parish-Priests Not such as had the legal Endowments but those who depended on the Good-Will of the Parson or People and were hired to officiate in Chapels of Ease or to perform Offices for the Dead which were so frequent at that time And these were called Annual Chaplains or Masse Chaplains and were distinguished from Domestick Chaplains who officiated in great Mens Houses in their private Oratories and from Beneficed Persons as appears by many Constitutions But whatever was understood by the Act of Parliament then it was repealed 21 Iac. 1. 28. 3. The Law of England as to a competent Subsistence for the Vicars or
's there said that all these new things as Saffron Hemp Woad Tobacco c. are to be reckoned among small Tithes unless there be some material Circumstance to the contrary But who is to be Judge of that And what Proportion changes small Tithes into greater But what if the Endowment be so expressed that only Tithes of Corn and Hay be reserved to the Parson Then Rolls thinks all the rest falls to the Vicar by Construction of Law By the Word Altarage it was resolved in the Exchequer upon a solemn Hearing 21 Eliz. and after confirmed in the Case of Wood and Greenwood not meer Oblations are to be understood but whatever Custom hath comprehended under it And I find in the Settlement of the Altarage of Cockerington by Rob. Grosthead Bishop of Lincoln not only Oblations and Obventions but the Tithes of Wooll and Lamb were comprehended under it II. The next Discharge of Tithes is by the Privileges of particular Orders allowed by our Law For it is to be observed that no Bulls of Popes make a legal Discharge but in such Cases where the Law allows them and my Lord Coke thinks it cannot be insisted upon without danger of a Praemunire For when the Cistertians had procured new Bulls to inlarge their Privileges as to their Lands in the Hands of Farmers a Law was passed against it 2 H. 4. c. 4. which was grounded on a Petition in Parliament shewing the Novelty and Mischief of it It was affirmed by our great Lawyers that the Pope's Act in dissolving the Body of the Templars which was done 5 E. 2. had no Effect here till the 17 E. 2. when the Parliament gave their Lands to the Hospitallers And that the Pope could not by his Bull dissolve a Vicarage after they were made perpetual by the Statute so that our own Law is to govern in this matter But what Orders had Exemption from Tithes by our Law At first most of the Orders of Monks had it for Lands in their own Hands This by Hadrian IV. was restrained to the Cistertians Templars and Hospitallers which is owned in the Canon Law by a Decretal of Alexander III. who declares it not to be intended for Lands let out to farm Innocent III. restrains it to such Lands as they were then in possession of but my Lord Coke makes the Grant to be from Innocent III. in the Council of Lateran 17 John but he adds That it extends only to the Lands which they had before which was all that was done then But he saith That this Privilege was allowed by the general Consent of the Realm however that were it is certain that the Lateran Council made no Restriction to the three Orders But what shall we say to the Praemonstratenses of whom he saith That they were discharged by a Bull of Innocent III. This Point was disputed in the Case of Dickenson and Greenhow It was not denied that they had obtained such a Bull but it was denied that it was ever received here On the other side it was said that their Bulls were confirmed which doth not appear nor that any Judgment was given in the Case There is a Bull extant in the Collection of Innocent's Epistles to exempt the Praemonstratenses from the Tithes of Lands in their own Hands but this was granted in the first year of Innocent III. sometime before the Lateran Council and they might enjoy the same Privileges with the Cistertians if it could be proved that they were as generally received which hath not yet been done As to the Cistertians themselves there are considerable Limitations of their Privileges 1. They must relate to Lands in their Possession before the Lateran Council A. D. 1215. 17 of King Iohn And in matters against common Right the Proof in Reason ought to be on those who pretend to particular Privilege But it 's certain the Cistertian Order hath had many Lands in England since that time and it were no hard matter to find them out But suppose they were actually discharged at the Dissolution and the Proprietaries were to enjoy them in the State they found them is not this a sufficient Discharge Yes if it be a legal Discharge for the Statute only puts them into the same legal Capacity they were in before but if they were Lands given since the Lateran Council they were not in a Capacity to be discharged by Law for it was not otherwise received 2. This Privilege doth not exclude ancient Compositions as to their Demesn Lands For these Privileges did not go down so easily but where there were Rectors able to contest it they brought even the Cistertians to Compositions And the Pope himself appointed Commissioners here to compound the matter As between the Monastery of Pipewel and Hugh Patesbul Rector of Eltyndon which ended in a Composition of six Marks per Annum for the Tithes of their Demesns And another between the Vicar of Dunchurch and the same Monastery and between the Rector of Wynswick for the Tithes of Ten Yard-Lands in Colds-Abbey All which I have perused in the Register of that Monastery MS. 3. The Privilege doth not hold where the Monasteries were under Value and came to the King by the Statute 27 H. 8. unless they were continued and came within the Statute of Dissolution 31 H. 8. And it ought to be proved that they continued separate for if their Lands were given to the greater Monasteries they did not retain the Privilege upon Dissolution But there is a much harder point concerning the Hospitallers who had the Lands of the Templers after 17 E. 2. Their Lands were not given to the King by the Statute of Dissolution 31 H. 8. but 32 H. 8. c. 24. and the Clause of Exemption was left out of the Grant Upon which a great Question hath risen Whether their Lands are exempt or not And Judgment was given against them in the Case of Cornwallis or Quarles and Spurling But in the Case of Whiston and Weston it was argued That the King had the same Privileges which the Hospitallers had But it was replied That other Lands given to the King after that Act had not those Privileges as Chanteries c. It was said that it was because they were not regular Ecclesiastical Bodies Which was a strange Answer considering what sort of Ecclesiastical Bodies the Hospitallers made when only the Grand Master and two Chaplains are bound to be Ecclesiasticks and in Foreign Judicatures they were denied to be any part of the Clergy being only an Order of Knights under some particular Regulations But suppose them capable of Appropriations of Tithes yet when the Body is dissolved the Appropriation falls of it self unless continued by Act of Parliament as those of the Templars were to them and those of the Monasteries by 31 H. 8. but where there is no Clause to continue the Appropriation it must be
Right because the Fee-simple abideth in him and his Chapter and so may a Dean and Master of an Hospital And these are called Bodies Politick by Littleton That the Exercise of the Bishop's Power may be restrained by ancient Compositions as is seen in the two Ancient Ecclesiastical Bodies of St. Paul's and Litchfield Concerning which it is to be observed That where the Compositions are extant both Parties are equally bound to observe their parts Thus by the Remisness and Absence of the Bishops of Litchfield from their See by going to Chester and then to Coventry the Deans had great Power lodged in them as to Ecclesiastical Jurisdiction there After long Contests the matter came to a Composition A. D. 1428. by which the Bishops were to visit them but once in Seven Years and the Chapter had Jurisdiction over their own Peculiars So in the Church of Sarum the Dean hath very large Jurisdiction even out of the Bishop's Diocess which makes it probable to have been very ancient but upon contest it was settled by Composition between the Bishop Dean and Chapter A. D. 1391. But where there are no Compositions it depends upon Custom which limits the Exercise although it cannot deprive the Bishop of his Diocesan-Right 4. The Delegate Jurisdiction which was committed to the several Officers of the Bishops Courts and the Manner of their Proceedings is founded upon immemorial Custom In the Saxon times I find no Delegation of Ecclesiastical Jurisdiction for the Bishops sate in person in the County-Courts and there heard Ecclesiastical Causes as appears by the Charter of H. 1. when he pretended to restore the Saxon Laws c. 7. But William I. had settled the Consistory-Court by as good a Law as any was made at that time distinct from the County-Court and required all Ecclesiastical Causes to be there heard and his Son H. 1. did but make a shew of restoring the Saxon Laws and the former Law came to be generally received and so Mr. Selden yields that it grew to be a general Law which shews that it obtained the Force of a Law by Consent as well as by Authority The Consistory-Courts being thus settled and Numbers of Causes there depending and the Bishops being then by H. 2. in the Constitutions of Clarendon strictly tied to Attendance upon the Supreme Courts of Judicature with other Barons there came a Necessity of taking in other Persons with a delegated Power to hear Causes and to do such other Acts of Jurisdiction as the Bishops should appoint For it was still allowed that Iure communi the Jurisdiction was in the Bishop but Iure speciali in auxilium Episcopi it might be delegated to others And so it hath been here received and not only here but it hath been the general Practice of Christendom As to the manner of Proceeding in the Ecclesiastical Courts it is the same in all Parts and built on the same Grounds with those of our Courts of Equity and Admiralty which are as different from those of the Common Law 5. The settling Parochial Rights or the Bounds of Parishes depends upon an ancient and immemorial Custom For they were not limited by any Act of Parliament nor set forth by special Commissioners but as the Circumstances of Times and Places and Persons did happen to make them greater or lesser In some places Parishes seem to interfere when some place in the middle of another Parish belongs to one that is distant but that hath generally happened by an Unity of Possession when the Lord of a Manor was at the Charge to erect a new Church and make a distinct Parish of his own Demesns some of which lay in the Compass of another Parish But now care is taken by Annual Perambulations to preserve those Bounds of Parishes which have been long settled by Custom But the Bounds of Parishes is not allowed to belong to the Ecclesiastical Jurisdiction II. The next Foundation of Law is a General Practice and Allowance i.e. when things of themselves do not oblige by the Authority of those that made them yet being generally received and allowed they thereby become Law to us This we have in an Act of Parliament 25 H. 8. c. 21. wherein it is said That the People of England are only bound to such Laws as are properly their own being in Subjection to no Foreign Legislative Power But were not many things here received for Laws which were Enacted by a Foreign Authority as the Papal and Legatine Constitutions True say they but it is not by Virtue of their Authority but by the free Consent of the People in the Use and Allowance of them And so they are not observed as the Laws of any Foreign Prince Potentate or Prelate but as the customed and ancient Laws of this Realm originally established as Laws of the same by the said Sufferance Consent and Custom and no otherwise So that here we have a full and express Declaration by Parliament That such Canons as have been received and allowed by ancient Custom make a part of our Laws and continue to oblige provided that they be not repugnant to the King's Prerogative nor to the Laws Statutes and Customs of the Realm as it is expressed in another Act of the same Parliament 25 H. 8. c. 19. The Ecclesiastical Laws saith my Lord Coke are such as are not against the Laws of the Realm viz. the Common Law and the Statutes and Customs of the Realm And according to such Laws the Ordinary and other Ecclesiastical Iudges do proceed in Causes within their Conusance So that by the Acknowledgement of this great Oracle of the Common Law there are Laws Ecclesiastical in force among us and Causes to be judged by those Laws and Officers appointed by the Law to proceed according to them The Ecclesiastical Laws and Ordinances are owned by the Statute 27 H. 8. c. 20. 32 H. 8. c. 7. 35 H. 8. c. 19. after the Commission appointed for the Review of them 1 E. 6. c. 2. The Ecclesiastical Courts are appointed to be kept by the King's Authority and Process to be issued out in his Name in all Suits and Causes of Instance between Party and Party where the Causes are particularly mentioned which belong to those Courts and no Alteration is made in them as to their powers but only that the Process should be in the King's Name But some persons in our Age who love to be always starting Difficulties to humour such as bear ill Will to our Constitution have 〈…〉 although this Act was 〈…〉 M. 2. yet that Repeal 〈…〉 â—ac 25. n. 48. therefore 〈…〉 Stat. 1 E. 6. is 〈◊〉 But the plain and short Answer is this That there was no need of any Debate about the Repeal of the Statute of E. 6. after the first of Q. Eliz. because then the Statute 25 H. 8. c. 20. was expresly revived wherein the Bishops were impowered to act as before they might have done according to the Laws and
any other part of the Law of the Land In another place That the Ancient Canon Law received in this Kingdom is the Law of the Kingdom in such Cases In a third That a lawful Canon is the Law of the Kingdom as well as an Act of Parliament III. I now come to the third thing viz. The Power of making Canons by Act of Parliament This is founded on the Statute 25 H. 8. c. 19. The Words are That no Canons Constitutions and Ordinances Provincial or Synodal shall be made promulged and executed without the King 's Royal Assent or Licence Canons so made and authorized by the King's Letters Patents according to the Form of the Statute are said by Lord Chief Justice Vaughan to be Canons warranted by Act of Parliament And such he affirms the Canons of A. D. 1603. to be But some have objected That these are only Negative Words and are not an Introduction of a new Law but a Declaration of what the Law was before But my Lord Coke with far greater Judgment limits that Expression That what was then passed was declaratory of the Common Law to that Clause That no Canons should be in Force which were repugnant to the Laws of the Realm But as to the making of new Canons he only saith That their Iurisdiction and Power is much limited because they must have licence to make them and the King 's Royal Assent to allow them before they be put in Execution But he never imagined the Sense of the Statute to be That no Canons could be made but in Parliament or that the King had not a Power to confirm new Canons made by the Convocation As to the Law as it stood before we must distinguish these two things 1. Convocations called by the King 's Writ to the Bishops and the body of the Clergy could never assemble without it But the Writ for the Convocation to sit with the Parliament not together in Place but at the same time is contained in the Writ to the Bishop and begins with the Clause Praemunientes And it is most probable that it began on the same Ground that the Attendance of Burgesses did viz. That when they were brought into the Payment of Subsidies they ought to give their Consent For I find that in the time of H. 3. A. R. 39. the Inferiour Clergy complained That they were taxed without their Consent 2. Convocations called by the King 's Writ to the Archbishops and in this Province the Archbishop sends his Mandate to the Bishop of London who is to summon all the Bishops c. to appear at a certain Time and Place and to act as they receive Authority from the King The not distinguishing these two Writs hath caused so much Confusion in some Mens Minds about the Rights of the Convocation For they imagine that the Convocation as it treats of Ecclesiastical Matters sits by Virtue of the first Writ which is in the Bishops Summons to Parliament but that related to them as one of the three Estates of the Realm whose Consent was then required to their own Subsidies which were distinctly granted but confirmed by the other Estates But the other Writ was directed to the Archbishop by which the Bishops and Inferiour Clergy were strictly required to appear and then to understand the King's further Pleasure as appears by the most ancient Writs for a Convocation Which shews that the Convocation properly so called is an Occasional Assembly for such purposes as the King shall direct them when they meet And this was the true Foundation upon which the Statute 25 H. 8. was built For it cannot be denied that in Fact there had been Convocations for Ecclesiastical Purposes called without the Kings Writ by Virtue of the Archbishop's Legatine Power which was permitted to be exercised here although it were an Usurpation upon the King 's Right So even in the time of H. 8. although there were a Convocation summoned by the King 's Writ to the Archbishop of Canterbury yet Cardinal Wolsley by Virtue of his Legatine Power superiour to that of the Archbishop removed the Convocation to another place and presided in it Which was as great an Affront to the King 's as well as the Archbishop's Authority as could well be imagined But this was then patiently born Wherefore the Statute is to be understood of Legal and not of Legatine Convocations But when H. 8. was sufficiently provoked by the Court of Rome he resolved to resume the ancient and legal Rights of the Crown how soever disused by modern Usurpations And among these he claimed this of summoning the Convocation and directing the Proceedings therein The Difference of these Writs will best appear by the Instance of the Convocation A. D. 1640. In the Year 1639. about the first of February the Parliament Writ was issued out to the Bishops for calling their Clergy to Parliament and this is only ad consentiendum iis quae tunc ibidem de communi Concilio Regni nostri contigerint ordinari The other Writ for the Convocation to the Archbishops was issued out the twentieth of February and had this Clause ad tractandum consentiendum concludendum super praemissis aliis quae sibi clarius exponentur ex parte meâ The Parliament at that time being dissolved it 's certain the Convocation sitting by Virtue of the Writ to the Bishops must fall with it But a great Question arose Whether the Convocation sitting by the Writ to the Archbishops was dissolved or not And the greatest Judges and Lawyers of that time were of Opinion it was not But those were not times to venture upon such Points when people were disposed to find Fault as they did to purpose when the next Parliament met who made use of the Sitting of this Convocation and the Canons then pass'd as one of the popular Themes to declaim upon against the Bishops and to inflame the Nation against the whole Order The greatest Objection in Point of Law was That the Commission had a Respect to the Convocation sitting in Parliament-time which began 13 April 1640. and the Commission bore Date April 15. the Parliament was dissolved May 5. and the 12th of May a new Commission was granted which made void that of the fifteenth of April and so what was done by Virtue of that must be done out of Parliament and so not in Convocation according to 25 H. 8. 19. although these Canons were confirmed by the King's Authority the thirtieth of Iune the same Year After the King's Restoration an Act of Parliament passed for Restoring the Bishops Ordinary Jurisdiction wherein a Clause is added That this Act did not confirm those Canons of 1640. but left the Ecclesiastical Laws as they stood 1639. which Act being passed by the King's Assent it voids the former Confirmation of them and so leaves them without Force But the Alteration of our Law by the Act 25 H. 8. c. 19. lay not in this that
the Convocation by the King 's Writ to the Archbishop could not sit but in Parliament-time although that in all respects be the most proper time for there is not a Word tending that way in the Statute but Provincial Councils having been frequently held here without any Writ from the King and therein treating of Matters prejudicial to the Crown by Virtue of a Legatine Power there was great Reason for the King to resume the ancient Right of the Crown For so William I. declared it in Eadmerus That nothing should be done in Provincial Councils without his Authority But afterwards we find Hubert Archbishop of Canterbury holding a Provincial Council against the King's Prohibition and several Writs were sent to them to prohibit their meddling in Matters of State in Prejudice to the Crown 18 H. 3. under Penalty of the Bishops forfeiting their Baronies and to the like purpose 35 E. 1. 15 E. 2. 6 E. 3. which seems to be a tacit Permission of these Provincial Councils provided they did nothing prejudicial to the Crown And from such Councils came our Provincial Constitutions which Lyndwood hath digested according to the Method of the Canon-Law and hath therein shewed what part of the Canon-Law hath any Force here not by Virtue of any Papal or Legatine Power but by the General Consent of the Nation by which they have been received among us But my business is not now with Canons so received but with Canons made according to the Statute 25 H. 8. 19. for it is ridiculous to imagine those are only negative Words for then they exclude the King's Power of calling a Convocation as well as confirming the Acts of it For to what purpose is the King 's Writ to call them together if being assembled they can do nothing But I have already mentioned my Lord Chief Justice Vaughan's Opinion That the Canons made A. D. 1603. are warranted by 25 H. 8. c. 19. It was urged by the Council in the Case of Grove and Eliot 22 Carol. 2. That no Canons can alter the Law which are not confirmed by Act of Parliament But it was said on the other side That these Canons had been always allowed having been confirmed by the King One of the Judges said That the King and Convocation cannot make Canons to bind the Laity but only the Clergy But Vaughan said That those Canons are of Force although never confirmed by Act of Parliament as no Canons are and yet saith he they are the Laws which bind and govern in Ecclesiastick Affairs The Convocation with the Licence and Assent of the King under the Great Seal may make Canons for Regulation of the Church and that as well concerning Laicks as Ecclesiasticks and so is Lyndwood There can be no question in Lyndwood's time but Ecclesiastical Constitutions were thought to bind all that were concerned in them and the Ecclesiastical Laws which continue in Force by Custom and Consent bind all the only Question then is about making new Canons and the Power to make them is by Virtue of an Act of Parliament to which the Nation consented and so there need no Representatives of the people in Convocation And no such thing can be inferred from Moor 755. for the Judges declared the Deprivation of the Clergy for not conforming to the Canons to be legal but they say nothing of others But in the Case of Bird and Smith f. 783. the Chancellor and three Chief Judges declared That the Canons made in Convocation by the King's Authority without Parliament do bind in Ecclesiastical Matters as an Act of Parliament And therefore I proceed to shew II. In what manner we are obliged to the Observation of these Canons concerning which I shall premise two Things 1. That I meddle not with such Canons as are altered by Laws for all grant that unless it be in Moral Duties their Force may be taken away by the Laws of the Land 2. There are some Canons where the general Disuse in Matters of no great Consequence to the Good of the Church or the Rights of other Persons may abate the Force of the Obligation especially when the Disuse hath been connived at and not brought into Articles of Visitation as Can. 74. about Gowns with standing Collars and Cloaks with Sleeves But the general Reason continues in Force viz. That there should be a decent and comely Habit for the Clergy whereby they should be known and distinguished by the People and for this the ancient Custom of the Church is alledged But here a very material Question arises How far Custom is allowed to interpret and alter the Force of Canons made by a lawful Authority For where a Custom prevails against a standing Rule it amounts to this Whether Practice against Law is to have more Force than the Law And how can there be a reasonable Custom against a Law built upon reasonable Grounds But on the other side if Custom hath no power in this case then all the ancient Canons of the Church do still bind in Conscience and so we must not kneel at our Prayers on Sundays nor between Easter and Whitsontide which were thought to be made upon good Reason at first and so many other Canons which have long grown into a Disuse So that if we do strictly oblige persons to observe all Ecclesiastical Canons made by lawful Authority we run Men into endless Scruples and Perplexities and Gerson himself grants That many Canons of General Councils have lost their Force by Disuse and that the Observation of them now would be useless and impossible But on the other side if meer Disuse were sufficient what would become of any Canons and Constitutions where Persons are refractary and Disobedient This is a Case which deserves to be stated and cleared And we are to distinguish three sorts of Customs 1. Customs generally obtaining upon altering the Reason of ancient Canons 2. Customs allowed upon the general Inconveniency of modern Canons 3. Customs taken up without any Rules or Canons for them 1. As to general Customs against ancient Canons where the Reason is altered I see no Ground for any to set up those Canons as still in Force among us For this must create Confusion and Disorder which those Canons were designed to prevent and the Laws of the Land do certainly supersede ancient Canons wherein the necessary Duties of Religion are not immediately concerned For we must have a care of setting up ancient Canons against the Authority of our Laws which cannot be consistent with our National Obligation nor with the Oath of Supremacy 2. As to Customs relating to Modern Canons if it hath any Force as to altering the Obligation 1. It must be general not taken up by particular dissaffected Persons to our Constitution for the Custom of such Men only shews their wilful Disobedience and Contempt of Authority and all Casuists are agreed That Contempt of lawful Authority is a wilful Sin Which supposes a wilful Neglect upon
will be the diligent Labours and the exemplary Lives of the Clergy in it But if Men will not regard their own or the Churches Interest in this matter if they will break their Rules in such a manner as to dishonour God and the Church and themselves by it then you are to consider the next thing I was to speak to which is II. What Authority is given to us for the punishing Offenders in our Diocesses by the Ecclesiastical Law of this Realm For this we are to consider That our Authority herein is not derived from any modern Canons or Constitutions of this Church altho' due Regard ought to be shewed to them but from the ancient Common Law Ecclesiastical in this Realm which still continues in force For as there is a Common Law with respect to Civil Rights which depends not on the Feudal Constitutions altho' in many things it be the same with them but upon ancient Practice and general Consent of the People from Age to Age. So I say there is a Common Law Ecclesiastical which altho' in many things it may be the same with the Canon Law which is read in the Books yet it hath not its force from any Papal or Legatine Constitutions but from the Acceptance and Practice of it in our Church I could easily shew if the time would permit that Papal and Legatine Constitutions were not received here altho' directed hither that some Provincial Constitutions never obtained the Force of Ecclesiastical Laws but my business is to shew what did obtain and continue still to have the Force of such Ecclesiastical Laws among us By the Statute of 25 H. 8. c. 19. it is declared That such Canons Constitutions Ordinances and Synodals Provincial being already made which be not contrariant nor repugnant to the Laws Statutes and Customs of this Realm nor to the Damage or Hurt to the King's Prerogative Royal shall now still be used and executed as they were afore the making of this Act c. It 's true a Review was appointed but such Difficulties were found in it as to the shaking the Foundations of the Ecclesiastical Law here that nothing was ever legally established in it and therefore this Law is still in force In the Statute 25 H. 8. c. 21. it is said That this Realm Recognizing no Superiour under God but the King hath been and is free from Subjection to any Man's Laws but only to such as have been Devised Made and Observed within this Realm for the Wealth of the same or to such other as by the Sufferance of the King and his Progenitors the People of this Realm have taken at their free Liberty by their own Consent to be used amongst them and have bound themselves by long Use and Custom to Observance of the same not as to the Observance of the Laws of any Foreign Prince Potentate or Prelate but as to the Customs and ancient Laws of this Realm originally established as Laws of the same by the said Sufferance Consent Custom and none otherwise All that I have now to do is to shew what Authority the Bishops had over the Clergy by the Ancient Ecclesiastical Law of this Realm and what Censuâ—es they were liable to for some particular Offences I. By the Ecclesiastical Law the Bishop is Iudge of the Fitness of any Clerk presented to a Benefice This is confessed by the Lord Coke in these Words And the Examination of the Ability and Sufficiency of the Person presented belongs to the Bishop who is the Ecclesiastical Iudge and in the Examination he is a Iudge and not a Minister and may and ought to refuse the Person presented if he be not Persona idonea But this is plain to have been the Ancient Ecclesiastical Law of this Realm by the Articul Cleri in Edw. II. time De Idoneitate Personae praesentatae ad Beneficium Ecclesiasticum pertinet Examinatio ad Iudicem Ecclesiasticum ita est hactenus usitatum fiat in futurum By the Provincial Constitutions at Oxford in the time of Hen. III. the Bishop is required to admit the Clerk who is presented without Opposition within two Months dum tamen idoneus sit if he thinks him fit So much time is allowed propter Examinationem saith Lyndwood even when there is no Dispute about Right of Patronage The main thing he is to be examined upon is his Ability to discharge his Pastoral Duty as Coke calls it or as Lyndwood saith whether he be commendandus Scientia Moribus As to the former the Bishop may judge himself but as to the latter he must take the Testimonials of others and I heartily wish the Clergy would be more careful in giving them by looking on it as a Matter of Conscience and not meerly of Civility for otherwise it will be impossible to avoid the pestering the Church with scandalous and ignorant Wretches If the Bishop refuses to admit within the time which by the Modern Canons is limited to Twenty eight Days after the Presentation delivered he is liable to a Duplex Querela in the Ecclesiastical Courts and a Quare impedit at Common Law and then he must certifie the Reasons of his Refusal In Specot's Case it is said That in 15 Hen. 7. 7 8. all the Iudges agreed that the Bishop is Iudge in the Examination and therefore the Law giveth Faith and Credit to his Iudgment But because great Inconveniencies might otherwise happen the general Allegation is not sufficient but he must certifie specially and directly and the general Rule is and it was so resolved by the Judges That all such as are sufficient Causes of Deprivation of an Incumbent are sufficient Causes to refuse a Presentee But by the Canon Law more are allowed In the Constitutions of Othobon the Bishop is required particularly to enquire into the Life and Conversation of him that is presented and afterwards that if a Bishop admits another who is guilty of the same Fault for which he rejected the former his Institution is declared null and void By the Canon Law if a Bishop maliciously refuses to admit a fit Person he is bound to provide another Benefice for him but our Ecclesiastical Law much better puts him upon the Proof of the Cause of his Refusal But if the Bishop doth not examine him the Canonists say it is a Proof sufficient that he did it malitiosé If a Bishop once rejects a Man for Insufficiency he cannot afterwards accept or admit of him as was adjudged in the Bishop of Hereford's Case If a Man brings a Presentation to a Benefice the Bishop is not barely to examine him as to Life and Abilities but he must be satisfied that he is in Orders How can he be satisfied unless the other produce them How can he produce them when it may be they are lost What is to be done in this Case The Canon is express That no Bishop shall institute any to a Benefice
to speak more afterwards But in the Saxon times here were other sorts of Oblations As 1 the Cyrycsceat or First-fruits of Corn payable at S. Martin's day Ina LL. 4. 62. Edmund c. 2. and is often mentioned in Doomsday-book and in Fleta l. 2. c. 47. Malmsb. l. 2. c. 11. and the Oblation of Poultrey at Christmas is mentioned in Doomsday under that Title 2. There was here another kind of Oblation called Plow-Alms which was a Peny for every Plow between Easter and Whitsontide This is mentioned in the Laws of King Ethelred and required to be paid Fifteen days after Easter although it be called Eleemosyna Aratralis In the Endowment of the Vicarage of S. Ives Plow-Alms is mentioned besides the Altarage and Obventions But all these Oblations made a very poor Subsistence for the Parochial Clergy III. And therefore I come to the main Legal Support of the Parochial Clergy which is in Tithes Concerning which I shall proceed in this Method I. To consider the Foundation in Law which they stand upon II. The Rules of Law which are to be observed about them I. As to the Foundation they stand upon in point of Law My Lord Coke not only saith That the Parochial Right of Tithes is established by divers Acts of Parliament but he mentions the Saxon Laws before the Conquest for the Payment of Tithes of Edward and Gathrun Ethelstan Edmund Edgar Canutus and King Edward ' s confirmed by William I. Hobart saith That Tithes are things of common Right and do of Right belong to the Church And since Parishes were erected they are due to the Parson except in spiritual regular Cases or Vicar of the Parish In the Register of Writs a Book of great Authority there is a Writ of Consultation for Tithes wherein they are owned to be of common Right as well as immemorial Custom due to the Rector within the Limits of his Parish Lord Chief Justice Dyer saith That Tithes can never be extinguished because they are of common Right The same is affirmed by Justice Dodderidge in the Case of Fosse and Parker In Pieddle and Napper's Case Tithes are said to be an Ecclesiastical Inheritance collateral to the Estate in Land and of their own Nature due to an Ecclesiastical Person And That all Lands of common Right are to pay Tithes Therefore it is said by Hobart in Slade's Case That no Land can be discharged of Tithes although it may be discharged of the actual Payment In Popham's Reports we read That it is a Maxim in Law that all Persons ought to pay Tithes and all Lands shall be charged with them of common Right So that if the Judgment of some of the greatest Men of the Profession may be taken nothing can be more clear and evident than the Legal Right of Tithes But it falls out unhappily among us that nothing hath been the Occasion of so much Difference and Contention between the Incumbents and their Parishioners than the Point of the Payment of Tithes So that some have wished them changed into some other way of Maintenance but I cannot see any Reason why so ancient so legal so just a Maintenance should be changed into any other which would less answer the End and be liable to as many Difficulties if not far more but every Change of this kind where we cannot be secured of the Event is very dangerous especially when it proceeds from Want of Judgment or Ill-will to the Profession both which are to be suspected in this case If the ill Humours of some People could be changed it would signifie far more to the Quiet of the Clergy than altering their legal Maintenance Therefore the best way is to enquire into the Reasons of this Dissatisfaction that we may find out the proper Methods to remove it and thereby to prevent the troublesom and vexatious Suits about them which make the parochial Clergy so uneasie and their Labour often unsuccessful with the People And there is a twofold Dissatisfaction which lies at the bottom of most of these Contentions about Tithes 1. In Point of Conscience 2. In Point of Law 1. In Point of Conscience There is a sort of People among us who are very obstinate in this Matter and will rather chuse to go to Prison and lie there than pay their Tithes I have often thought whence such a Stiffness should arise in a matter of Legal Right If they had opposed all Determinations of Property by Law they had been more consistent with themselves but to allow the Law to determine the Right as to Nine Parts and not as to the Tenth is not to be reconciled For if the Question be concerning the other parts to whom they do belong may not Men as well dispute the matter of Dominion and Property in them May they not say that the Seed is our own and the Labour and Charges our own why then shall I answer to another for the Profit which arises from my Pains and Expence If it be replied That the Law hath given the Property of the Land to one and the Use to another why may they not pretend this to be an unreasonable Law to separate one from the other since Land was given for the Use and the Original Right of Dominion was from what was necessary for Use therefore the separating Right and Use is an Incroachment on the Natural Rights of Mankind And there seems to be more Colour for this than for any to allow the Laws to determine the Right of Nine Parts to belong to the Lord of the Soil but the Tenth by no means to go that way which the Law of the Land hath long since determined it So that the Lord of the Soil either by Descent or Purchase can claim no Right to it for neither did his Ancestors enjoy it nor those who sold the Land to a Purchaser consider it as his own for then he would have had the Value of it The Tenth Part then is set aside in Valuation of Estates as already disposed of and the Question is Whether the same Law which settled the Right to the other shall determine this likewise Is it not a part of natural Injustice to detain that which by Law belongs to another And is not the Law the Measure of Right in Cases of Difference between Man and Man Why then should not the Law fairly and equally determine this matter to whom the Tenth of the Profits belongs But still they say It is against their Conscience and they cannot do it Is it against their Conscience to do Acts of Natural Justice not to detain that from another which of Right belongs to him But it is in vain to argue with people who do not judge of things by the common light of Reason and Justice but by an unaccountable Light within them which none can judge of but themselves and in matter of Interest Men are the worst Judges in their own Case 2. Therefore
nothing else but the common Custom of the Realm My Lord Chief Justice Hales saith That the common Usage Custom and Practice of the Kingdom is one of the main Constituents of our Law Coke quotes Bracton ' s Authority to prove That Custom obtains among us the Force of a Law where it is received and approved by long Use. And of every Custom he saith there be two Essential Parts Time and Usage Time out of Mind and continual and peaceable Usage without Interruption But in Case of Prescription or Custom he saith That an Interruption of Ten or Twenty Years hinders not the Title but an Interruption in the Right the other is only an actual Suspension for a time It may be asked How Time and Usage come to make Laws since Time hath no Operation in Law saith Grotius Not of it self as Grotius there saith but with the Concurrence of other Circumstances it may Bracton saith longa possessio parit jus possidendi and by a long and peaceable Possession Dominion is transferred without either Title or Delivery which he founds on this good Reason That all Claims of Right ought to have a certain Limitation of Time and length of Time takes away any Proof to the contrary Littleton saith That Time out of Memory of Man is said to give Right because no Proof can be brought beyond it And this he calls Prescription at Common Law as it is distinguished from Prescription by the several Statutes of Limitations But whence is it then that an immemorial Possession gives Right Is it from the meer Silence of the Parties concerned to claim it No Silence gives no Consent where Ignorance or Fear may be the Cause of it And is it a Punishment upon the Neglect of the Party concerned So Bracton saith Time doth it per patientiam negligentiam veri Domini But meer Neglect doth not overthrow Right unless there be an antecedent Law to make that Neglect a Forfeiture Is it from a Presumptive Dereliction But that supposes not bare Continuance of Time but some kind of voluntary Act which implies a sort of Consent which doth not appear in this Case And it is a great Mistake in those who think there is no Presumptive Dereliction where there is not a full Consent for it may be where there is the Consent of a mixt Will i.e. partly voluntary and partly involuntary when the Circumstances are such as the Person rather chuses to leave his Right than submit to the lawful Conditions of enjoying it As if a Man would rather quit his Fee than perform the Service which belongs to it Is it from the common Interest of Mankind that some Bounds be fixed to all Claims of Right Because otherwise that Men will be liable to perpetual Disturbance if the Right be permitted to be claimed beyond any possibility of Proof Or is it lastly that in such Nations where immemorial Custom obtains the Force of a Law it seems agreeable to the Foundations of Law that a long continued Possession should carry Right along with it And this was the Case here in England as not only appears by what Bracton hath said but Glanvil makes a great part of our Law to consist of reasonable Customs of long Continuance And St. Germain affirms Ancient general Customs to be one of the principal Foundations of our Law and that they have the Force of Laws and that the King is bound by his Oath to perform them And it is worth our while to observe what general Customs he doth instance in as the Courts of Equity and Law the Hundred Court the Sheriffs Turn the Court Baron c. which depend not upon Acts of Parliament but the Ancient Custom of England which he calls the Common Law And among these Ancient Customs he reckons up Rights of Descent Escheats the different sorts of Tenures Freeholds and the Laws of Property as they are received among us We are now to enquire how far any of our Ecclesiastical Constitutions can be said to be built upon this Foundation and upon immemorial Custom generally received 1. I place 1. the Distribution of this National Church into two Provinces in each whereof there is an Archbishop with Metropolitical Power which lies chiefly in these things 1. The Right of Consecration of his Suffragans 2. The Right of Visitation of every Diocess in such Way and Manner as Custom hath settled it 3. The Right of receiving Appeals from Inferiour Courts of Judicature in Ecclesiastical Matters 4. The Right of presiding in Provincial Councils of the Suffragans of his Province which by the most Ancient Constitutions of this Church were to be held once a Year so it was decreed in the Council under Theodore A. D. 673. but by the Difficulties of the times they were discontinued and so the Authority of examining things through the Province came by a kind of Devolution to the Archbishop and his Courts 5. The Custody of vacant Sees by the Custom of England falls to the Metropolitan if there hath been no Custom or Composition to the contrary And so it hath been upon solemn Debates resolved in our Courts of Common Law Coke thinks that of common Right it belongs to the Dean and Chapter but by Custom to the Archbishop But Panormitan saith There was no Pretence of common Right for them till the time of Boniface VIII 2. The ordinary Jurisdiction of every Bishop over the Clergy of his own Diocess This is as ancient as Christianity among us For no sooner were Churches planted but there were Bishops set over them who had from the Beginning so much Authority that none of the Clergy could either receive or quit his Benefice without their Consent and Approbation and they were all bound to give an Account of their Behaviour at their Visitations and in case of Contempt or other Misdemeamours they were to proceed against them according to the Canons of the Church I do not say the Diocesses were at first all modelled alike or with the same Bounds which they now have which was unreasonable to suppose considering the gradual Conversion of the Nation For at first there was but one Bishop in every one of the Saxon Kingdoms except Kent where was but one Suffragan to the Metropolitan for some time till the Kingdoms came to be united or the Kings consented to an Increase of several Diocesses and uniting them under one Metropolitan which was a Work of Time But in all the Saxon Councils we find no mention of any Ecclesiastical Jurisdiction but what was in the Bishops themselves Concil Cloveshoo Can. 1 4 5. Concil Cealchyth Can. 1. Egbert Canon c. 45 62. The first who began to seek for Exemptions were the Abbots who were under the Bishop's Jurisdiction who was too near them and therefore they endeavoured to get under the Pope's immediate Jurisdiction by Charters of Exemption which the great Abbies either procured or made
Customs of the Realm By which no less Men of the Law than Coke Popham and other Judges did think the Stile of the Court and Manner of their Proceedings was comprehended And the Ancient Episcopal Iurisdiction is declared to be according to Law by the Stat. 1 El. c. 1. and all Foreign Iurisdiction is abolished and the Ecclesiastical Iurisdiction annexed to the Crown of this Realm which is owned by every Bishop when he takes the Oath of Supremacy How then can it be imagined that he should do any more to the Prejudice of the Crown by the Process being in the Bishop's Name than the Lord of a Manor doth when he keeps his Courts in his own Name To suppose that it is owning a Foreign Iurisdiction is ridiculous for the Bishops of England never pretended to act as Ordinaries by Virtue of a Jurisdiction from the Pope but by Virtue of their Original Authority which they had by the Laws of the Realm as to their exterior Jurisdictions And the Authority they then acted by from the Pope was in Cases extraordinary when they were delegated by particular Commission And if there had been any real Derogation from the King's Prerogative in the Process being in the Bishop's Name can any Man of Sense imagine that it would have been permitted in such jealous times as to Supremacy as the latter end of H. 8. and the whole Reign of Q. Elizabeth were wherein the Bishops wanted not Enemies but their Malice would have been too apparent if they had insisted on such Objections But to proceed in shewing that the Ecclesiastical Laws have been owned by Acts of Parliament since the Reformation 2 E. 6. c. 13. n. 13. The Ecclesiastical Iudges are required to proceed according to the King 's Ecclesiastical Laws And to the same purpose 1 El. c. 2. n. 23. Accordingly my Lord Coke frequently owns the Ecclesiastical Laws and Iurisdiction so they be bounded by the Laws of the Realm of which there can be no Question For deciding of Controversies and for distribution of Iustice saith he there be within this Realm two distinct Iurisdictions the one Ecclesiastical limited to certain spiritual and particular Cases the other secular and general for that it is guided by the common and general Law of the Realm And to the same purpose my Lord Chief Justice Hales in several places in a MS. Discourse of the History and Analysis of the Common Law ch 1 and 2. But here the great Difficulty lies in finding out what these Canons and Constitutions are which have been so received and allowed by our Laws For it is certain that several Canons made by Popes were not received here as in the Statute of Merton about Legitimation of Children born before Marriage Stat. Mert. c. 9. where the Lords declared they would not alter the old Laws for a new Canon For Alexander III. in the time of Hen. II. had made a Canon to that purpose but as Glanvil saith it was contra jus consuetudinem Regni The Canon to take away the Benefit of the Clergy from Bigami was debated in Parliament how far it should be received and the Sense there declared which was complained of 51 E. 3. and taken away 1 E. 6. c. 12. The Canon against Investiture of Bishops by a Lay-hand was never here received for although H. 1. after a long Contest gave it up yet it was resumed by his Successors The Canons for Exemption of the Clergy were never fully received here Some Lawyers say it was never observed I suppose they mean according to the Canons but that they had legal Privileges here although not a total Exemption cannot be denied by any one versed in our Laws from the Saxon times The Pope's Canon for the Clergy not being taxed without his consent was never received as appears by the Contests about it in the time of E. 1. and their Submission afterwards The Pope's Canons about Appeals Provisors Dispensations c. were never received by such a general Consent as to make them Laws they were sometimes practised by Connivence and the Kings when it served their purposes let them alone but as often as there was occasion they were contested and denied and Statutes made against the Execution of them Some Canons I find disputed whether they were received by the Law of England or not As the Canon against Clergy mens Sons succeeding their Fathers in their Benefices immediately without a Papal Dispensation is not only a part of the Canon Law but enter'd in our Provincial Constitutions But in the Case of Stoke against Sykes it was held by Dodderidge and Iones two learned Judges That this Canon was not received here And Dodderidge instanced in two other Canons not received as against a Man's marrying a Woman he had committed Adultery with and a Lay-man's not revoking his first Presentation And Sir Iohn Davis mentioned reckoning the Months for Presentation by Weeks and not by the Calendar But both these are disputable Points For some say as to the former That none but the King can revoke a Presentation But the Canonists think a private Patron may vary with the Bishop's Consent And as to the way of computing the Months it hath been differently resolved but in Catesbie's Case it was determined to be Calendar-Months for many Reasons But in the ancient Resolution in the time of E. II. the Tempus semestre was reckoned from Notice to the Patron and not from the Death of the Incumbent Rolls saith By our Law it is from the time the Patron might have notice with regard to the distance of the Place where the Incumbent died Which leaves the matter uncertain But the Register reckons from the Vacancy In many other Cases the foreign Canons were not received for they allow but Four Months to a Lay-Patron but our Law Six Months they deny any Sale of a Right of Advowson but our Law allows it and a Separation of it from the Inheritance which the Canon Law allows not and so in other particulars but these are sufficient to my purpose It is observable that after the Council of Lions where the Pope was present Peckham Archbishop of Canterbury called a Provincial Council wherein he mentions the difference of our Customs from all others and a Temperament to be made suitable to them And our Judges in the great Case of Evans and Ayscough declared That no Canons bind here but such as are recieved by the Realm And Dodderidge said That our Ecclesiastical Law doth not consist of the Pope's Decretals but is an Extract out of the Ancient Canons General and National But the Judges agreed That when they are received they become part of our Law Lord Chief Justice Vaughan saith That if Canon Law be made a part of the Law of the Land then it is as much the Law of the Land and as well and by the same Authority as