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
to their Brethren and answer to the Accusations brought against them But suppose they will not and others of the Brethren say they ought not and so fall into Heats and Disputes among themselves about it and make new Parties and Divisions Is not this an admirable Way of preserving Peace and Order and Discipline in a Church And I am as certain this is not the Way of Christ's appointing as I am that God is the God of Order and not of Confusion and that when Christ left the Legacy of Peace to his Church he left a Power in some to see his Will performed But these things can never be objected against us for all are Members of the same Body and are governed by certain and known Rules and if any be guilty of open Violation of it the Way is open to accuse and prosecute them and if they be found guilty the Censures of the Church will render them uncapable of doing it in such a Station or at least to bring them to Confession of their Fault and Promise of future Amendment And now I leave any one to judge whether the Parochial Clergy are not under greater and better Discipline than the Teachers of the separate Congregations II. But the great Complaint of such Men is That we want Parochial and Congregational Discipline so that Faults should be examined and punished where they have been committed but instead of that all Matters are drawn into the Ecclesiastical Court and there Causes are managed so as looks rather like a Design to punish Men in their Purses than for their Faults and the Delays are so great that the Court it self seems to be designed for Penance and grows very uneasie even to those who are the Members of our Church And some think that the proceeding against Men upon Articles of Enquiry not so agreeable to the Rights and Liberties of Mankind In answer to this I shall consider 1. The Proceedings upon Enquiry at Visitations 2. The Method of Proceeding in the Ecclesiastical Courts 3. The Inconveniencies of parochial Discipline 1. As to Enquiries at Visitations They were grounded upon one of the main Pillars of our Law viz. an ancient immemorial Custom founded upon good Reason In the first Canons that ever were made in this Church under Theodore Archbishop of Canterbury the second is That every Bishop is to look after the Government of his own Diocess and not to invade anothers And that in so doing they went about their Diocesses in order to an Enquiry and Correction of Miscarriages is evident from the Council under Cuthbert Archbishop of Canterbury Can. 3. 25. the first Council at Calechyth Can. 3. the Constitutions of Odo Archbishop of Canterbury Can. 3. and the Canon of Edgar Can. 3. But in these Saxon times the Visitations were annual which were found inconvenient and therefore in the Norman times the Archdeacons were taken into a part of the Jurisdiction under the Bishop and visited those years the Bishop did not But we meet with no Archdeacons with any kind of Jurisdiction in the Saxon times we read indeed sometimes of the Name of Archdeacons but they had nothing to do in the Diocess but only attended the Bishop at Ordinations and other publick Services in the Cathedral Lanfranc was the first who made an Archdeacon with Jurisdiction in his See And Thomas first Archbishop of York after the Conquest was the first who divided his Diocess into Archdeaconries and so did Remigius Bishop of Lincoln his large Diocess into Seven Archdeaconries saith H. of Huntingdon And so it was with the rest of which there were two Occasions 1. The laying aside the Corepiscopi in the Western Parts as assuming too much to themselves 2. The publick Services which the Bishops were more strictly tied to as the King's Barons in the Norman times Which was the Reason not only of taking in Archdeacons but likewise of Archpresbyters or Rural-Deans who had some Inspection into the several Deanaries and assisted the Bishop in such things as they were appointed to do and then came in the other Ecclesiastical Officers as Vicars General Chancellors Commissaries c. for we read not of them here at all in the Saxon times but about the time of Hen. II. the Bishops took them for their Assistance in Dispatch of Causes when the King required their strict Attendance on the publick Affairs in the Supreme Court of Parliament 2. As to the Method of Proceeding in the Ecclesiastical Courts it is no other than hath been continued here without Interruption till of late years ever since the Conquest For the Consistory-Court and the Rules of Proceeding there were established by a Law in the time of William the First As far as I can find by King Edward's Laws c. 4. the Bishops did then proceed by the Ecclesiastical Laws although they then sat in the County-Court but this caused so much Confusion that William by a general Consent and a Charter directed to all the People of England doth separate the Ecclesiastical from the Temporal Courts which was enrolled as good Law 2 R. 2. upon occasion of a Suit of the Dean and Chapter of Lincoln and therefore the Charter of Remigius Bishop of Lincoln is more mentioned than others but the same was to all the Bishops and Counties of England as appears by other Copies of it Thus the Consistory-Court was first established as a distinct Court from the County-Court which it was not in the Saxon times for then the Bishop sate with the Civil Magistrate in the same Court and Ecclesiastical Causes were first heard and decided there It seems the People wer very unwilling to go to a new Place and therefore the Law is inforced with severe Penalties for Contempt And those who object against the Reasonableness of the Method of Proceeding in those Courts must reflect upon some of the wisest Nations in the World who have gone upon the same Grounds in all that have received the Civil Law and upon some of the greatest Courts at this time in the Kingdom as the Chancery and Admiralty which go by the same Fundamental Rules As to any Objections which arise from the personal Faults of those who are imployed in them that reaches I am afraid to all Courts and it ought to be the Work and Business of those who look after them to do what in them lies to reform them that others Faults may not be laid at their Doors 3. But for those who would have a Parochial or Congregational Discipline set up as much better and more effectual I shall desire them to consider that since Matters of Discipline are such as that in them the Reputation and Interest of Persons is very much concerned they ought not to be left to Arbitrary Proceedings of any Persons but they ought to be managed by the certain and common Rules of Justice since every Man hath a Right to defend himself when he is accused And unless there be known and
and the more Ancient the more Suspicious But the Lord Chancellor and three Chief Judges declared That by the Common Law of England every Bishop in his Diocess and the Archbishops in Convocation may make Canons to bind within the Limits of their Jurisdiction 3. The subordinate Jurisdiction which was lodged in the Bodies of the Clergy resident in Cathedral Churches and of Archdeacons in the several Diocesses I cannot find either of these to have had any Jurisdiction here before the Conquest neither were there any Courts of Justice out of the several Counties before for all Causes were transacted in the County-Courts and Sheriffs Turns and Appeals lay from them to the Supreme Judicature of the King and the Lords But this doth not hinder but these Courts may be founded on the Law of England And so the original Jurisdiction which of Right belonged to the Bishop might by degrees and a gradual Consent come to be committed as to some parts to the Bodies of Cathedral Churches and to the Archdeacons who are saith my Lord Coke Sixty in England We are told in a late Case of Woodward and Fox That there are Archdeaconries in England by Prescription which have no Dependency on the Bishop but are totally exempt And for this Godolphin is cited who refers to the Gloss on the Legatine Constitutions f. 27. where we read of some Archdeacons having a customary and limited Iurisdiction separate from the Bishop for which a Prescription lies But this is only for some special Iurisdiction as the Archdeacon of Richmond for Institutions which came first by Grant from the Bishops but that not being to be produced they insist upon Custom and Prescription as the Deans and Chapters do where the Ancient Compositions are lost But none who understand the Ancient Constitution of this Church can suppose either of them to have been Original since the Right to the Jurisdiction of the Diocess was in the Bishop before there were here either Archdeacons or Chapters with Jurisdiction In the Case of Chiverton and Trudgeon it was declared That an Archdeacon might have a peculiar Jurisdiction as to Administration c. as the Dean of St. Paul's had at S. Pancras and so the Archdeacon of Cornwall as to Wills In the case of Gastril and Iones the Chief Justice declared That the Archdeacon is the Bishop's Officer and his Authority subordinate to the Bishops and granted by them but if special Custom be pleaded that must be well proved to which Dodderidge agreed But we must distinguish between Archdeaconries by Prescription for which I can find no Foundation being all derived by Grant from the Bishop and Archdeacons having some kind of Iurisdiction by Prescription which others have not which cannot be denied All the Power which the Archdeacons have by virtue of their Office is per modum scrutationis simplicis as Lyndwood speaks tanquam Vicarius Episcopi Whatever Power they have beyond this is not Iure communi but Iure speciali and depends either upon Grant or Custom which the Gloss on the Legatine Constitutions calls a limited Iurisdiction The Archdeacon's Court is declared by the Judges in Woodward ' s Case to have been time out of Mind settled as a distinct Court from which there lies an Appeal to the Bishop's Court by the Statute 24 H. 8. c. 12. And so the Archdeacon's Jurisdiction is founded on an immemorial Custom in Subordination to the Bishops As to Deans and Chapters I observe these things 1. That although Ecclesiastical Bodies in Cathedrals were very ancient yet we read not of any Jurisdiction peculiar to themselves during the Saxon times My Lord. Coke saith There were Chapters as the Bishop's Council before they had distinct possessions And by their Books he saith it appears that the Bishops parted with some of their Possessions to them and so they became Patrons of the Prebends of the Church Such were London York and Litchfield 2. That several of our Chapters were founded and endowed by the Bishops since the Conquest Such was that of Salusbury by Osmund out of his own Estate as appears by his Charter and the Confirmation of H. 2. So was that of Lincoln by Remigius who removed the See from Dorchester thither and placed there a Dean Treasurer Praecentor and Seven Archdeacons as Henry of Huntingdon saith who lived near the time And in following times those of Exeter and Wells were settled as Dean and Chapter for they were Ecclesiastical Bodies before but not under that Denomination 3. That some had the legal Rights of Dean and Chapters as to Election of Bishops and Confirmation of Leases c. but were a Monastick Body consisting of Prior and Convent Such were Canterbury Winchester Worcester after the Expulsion of the Secular Canons for the Monks not only enjoyed their Lands but were willing enough to continue the Name of Dean among them As at Canterbury after Dunstan's time Agelmothas is called Dean in Worcester Wolstan is called Dean when he was Prior and Winsius upon the first Change is said to be placed loco Decani by Florence of Worcester At Norwich Herbert the Bishop founded the Prior and Convent out of his own Possessions in the time of William II. and they became the Chapter of the Bishop by their Foundation Now as to these it is resolved in the Dean and Chapter of Norwich's Case That when the King transferred them from a Prior and Convent the Legal Rights remained the same And in Hayward and Fulcher's Case the Judges declared That an Ecclesiastical Body may surrender their Lands but they cannot dissolve their Corporation but they still remain a Chapter to the Bishop And it was not only then delivered but since insisted upon in a famous Case That it was the Resolution of the Iudges That a Surrender cannot be made by a Dean and Chapter without Consent of the Bishop because he hath an Interest in them 4. That H. 8. endowed some as Chapters to new erected Bishopricks as Chester Bristol Oxford c. 31 H. 8 9. 34 H. 8. 17. and united others as Bath and Wells and Coventry and Litchfield 33 H. 8. 30. 34 H. 8. 15. 5. That where the Custom hath so obtained there may be a Legal-Chapter without a Dean as in the Diocesses of S. David's and Landaff where there is no other Head of the Chapter but the Bishop but they must act as a distinct Body in Elections and Confirmations of Grants by the Bishops 6. That by the Ancient Custom of England there are sole Ecclesiastical Corporations as well as aggregate A sole Ecclesiastical Corporation is where a single Person represents a whole Succession and under that Capacity is impowered to Receive and to Convey an Estate to his Successors As Bishops Deans Archdeacons Parsons c. But Parsons and Vicars are seized only in Right of the Church but as to a Bishop he may have a Writ of
Knowledge and Admonition of their Duty For Contempt is Nolle subjici cui oportet subjici and a lesser Fault commited with it is a greater Sin than a greater Fault in it self committed without it i.e. by meer carelesness and inadvertency But where there is an open and customary Neglect there is a Presumption of Contempt unless some great and evident Reason be produced for it I do not say the bare Neglect doth imply Contempt in it self but where there is admonition and a continuance after it there is a down-right and positive Contempt But where the Disuse is general not out of Contempt but upon other Reasons and there is no Admonition by Superiours but a tacit Connivence there is a Presumtion of a Consent towards the laying aside the strict Obligation of the Canons relating to it 2. It must be reasonable i.e. on such Grounds as may abate the Force of the Obligation For there is a Difference between a Custom obtaining the Force of a Law and a Custom abating the Force of a Canon In the former case the Custom must be grounded on more evident Reason than is necessary for the latter Wherein the Casuists allow a Permission of Superiours joyned with reasonable Circumstances to be sufficient But how can acts of Disobedience make a reasonable Custom Cajetan saith They are to blame who began it but not those who follow it when the Custom is general And Suarez saith It is the common Opinion The Canonists say If a Custom be against a Rule the Reason must be plain if only besides the Rule and be not repugnant to the End and Design the Reasonableness when it becomes general is presumed But if the Superiours take notice of it and condemn it it loses the Force of Custom unless a new Reason or higher authority appear for it 3. But what is to be said for Customs taken up without Rules or Canons of what Force are they in Point of Conscience 1. It is certain that no late Customs brought in by such as have no Authority to oblige can bind others to follow them For this were to lay open a Gap to the introducing foolish and superstitious Customs into the Church which would make Distinctions without cause and make way for Differences and Animosities which all wise and good Men will avoid as much as may be It is a Rule among the Casuists That voluntary Customs although introduced with a good Mind can never oblige others to observe them And Suarez yields that a bare frequent Repetition of Acts cannot bind others although it hath been of long continuance 2. If the Customs be such as are derived from the primitive times and continue in practice there is no Reason to oppose but rather to comply with them or if they tend to promote a Delight in God's Service As for instance 1. Worshipping towards the East was a very ancient Custom in the Christian Church I grant that very insufficient Reasons are given for it which Origen would not have Men to be too busie in inquiring into but to be content that it was a generally received Practice even in his time and so doth Clemens Alexandrinus before him who thinks it relates to Christ as the Sun of Righteousness Tertullian and S. Basil own the Custom and give no Reason But of all Customs that of Contention and Singularity where there is no plain Reason against them doth the least become the Church of God 2. The Use of Organical Musick in the Publick Service If it tends to compose and settle and raise the Spirits of Men in the Acts of Worship I see no Reason can be brought against it If it be said to be only a natural Delight that Reason will hold against David who appointed it by God's own Commandment They who call it Levitical Service can never prove it to be any of the Typical Ceremonies unless they can shew what was represented by it I come now to the Measure of the Obligation of the Canons in Force And therein a great Regard is to be had to the Intention of that Authority which enjoyns them and that is to be gathered from three Things 1. The Matter 2. The Words and Sense of the Church 3. The Penalty 1. As to the Matter If it be in it self weighty and tends to promote that which is good and pious and for the Honour of God and Service of Religion it cannot be denied but these Canons do oblige in Conscience Bellarmin distinguishes between Laws of the Church which he saith are very few and pious Admonitions and good Orders which are not intended to oblige Men to sin but only in case of Contempt and Scandal And as to the Feasts and Fasts of the Church which belong to the Laws he saith They have mitissimam Obligationem so any one would think who considers how many are exempted and for what Reasons Gerson saith That no human Constitutions bind as to moral Sin unless it be founded on the Law of God as he confesses the Church's Authority is as to circumstances and then he thinks it obliges in Conscience The Substance of his Opinion which hath been much disputed and controverted by Modern Casuists lies in these things 1. That where Ecclesiastical Constitutions do inforce any part of the Law of God although it be not expresly contained therein they do immediately bind the Consciences of Men. 2. That where they tend to the good of the Church and the Preservation of Decency and Order they do so far oblige that the contempt of Authority therein is a Sin against the Law of God 3. That where the Injunctions of Authority are for no other End but to be obeyed he doth not think that there is any strict Obligation in point of Conscience And so far Cajetan agrees with him And although the other Casuists seem to be very angry with him yet when they require a publick Good and the Order of the Church to be the Reason of Ecclesiastical Laws they do in effect agree with him Now as to the Matter of our Canons which respect the Clergy there are two especially which bind them strictly 1. The Canon about Sobriety of Conversation Can. 75. Yes some may say as far as the Law of God obliges i.e. to Temperance and Sobriety but the Canon forbids resorting to Taverns or Alebouses or playing at Dice Cards or Tables doth this Canon oblige in Conscience in this manner If it were a new thing that were forbidden there were some Plea against the Severity of it but frequenting Publick Houses is forbidden by the Apostolical Canons which are of great Antiquity by the Council of Laodicea and in Trullo and many others since And by the Apostolical Canons any Presbyter playing at Dice and continuing so to do after Admonition is to be deprived The Illiberitan Council makes it Excommunication to play at Dice Not meerly for the Images