for the visitation of the Ecclesiastical State and Persons and for-Reformation Order and Correction of the same and of all manner of Errors Heresies Schisms Abuses Offences Contempts and Enormities shall for ever by Authority of this Parliament be united and annexed to the Imperial Crown of this Realm This Act by a former Clause thereof doth Repeal the Statute of 1 and 2 Ph. Ma. c. 8. whereby the Acts of 26 H. 8. c. 1. and 35 H. 8. c. 3. were repealed so that the Act of Repeal being repealed the said Acts of H. 8. were implicitely revived whereby it is declared and enacted That the King his Heirs and Successors should be taken and accepted the only Supream Head in Earth of the Church of England and should have and enjoy annexed to the Imperial Crown of this Realm as well the Title and style thereof as all Honours Dignities Prebeminencies Jurisdictions c. to the said dignity of Supream Head belonging c. By which Style Title and Dignity the King hath all Ecclesiastical Jurisdiction whatever And by which Statute the Crown was but remitted and restored to its Ancient Jurisdiction which had been formerly usurped by the Bishop of Rome And this is that Supremacy which is here meant and intended 3. The said Statute of 1 Eliz. c. 1. doth not only repeal the said Stat. of 1 and 2 P. M. c. 8. but it is also a reviver of divers Acts asserting several branches of the Kings Supremacy and re-establishing the same it doth likewise not only abolish all Forreign Authority but also annex the Ecclesiastical Jurisdiction to the Crown of this Realm with power to assign Commissioners for the exercise of Ecclesiastical Jurisdiction And then further Enacts to this effect viz. That all Ecclesiastical persons of what degree soever and all and every Temporal Judge Justice Mayor or other Lay or Temporal Officer or Minister and every other person having Fees or wages from the Crown within this Realm or the Dominions thereof shall upon his Corporal Oath testifie and declare in his Conscience That the Kings Majesty is the only Supream Governour of this Realm and of all other his Majesties Dominions and Countries as well in all Spiritual or Ecclesiastical things or causes as Temporal And that no Forreign Prince Person Prelate State or Potentate hath or ought to have any Jurisdiction power superiority preheminence or authority Ecclesiastical or Spiritual within this Realm And therefore doth utterly renounce and forsake all Forreign Jurisdictions powers superiorities and authorities and doth promise that from henceforth be shall bear Faith and true Allegiance to the Kings Majesty his Heirs and lawful Successors and to his power shall assist and defend all Jurisdictions priviledges preheminencies and authorities granted or belonging to the Kings Majesty his Heirs and Successors or united or annexed to the Imperial Crown of this Realm The practices of the Romanists in the 4th year of Queen Elizabeth and the danger thereby threatning both the Queen and State occasioned her to call a Parliament 12. Jan. An. 156 2 3 which passed an Act For assurance of the Queens Royal power over all Estates and Subjects within her Dominions By which Statute was enacted The Oath of Supremacy as also what persons were obliged to take it and who should have power to administer the same And this was both the original and the cause of that Oath By the said Statute of 1 El. c. 1. appears also what the penalty is for refusing to take the said Oath as also the penalty of maintaining a Forreign Authority as likewise what other persons than the fore-mentioned shall be obliged to take the said Oath which was afterwards again further ratified and established by the Statute of 5 Eliz. c. 1. 4. The King within his own Territories and Dominions is according to Bracton Dei Vicarius tam in Spiritualibus quam Temporalibus And in the Ecclesiastical Laws of Edward the Confessor the King is styled Vicarius summi Regis Reges regunt Ecclesiam Dei in immediate subordination to God Yea the Pope himself Eleutherius An. 169. styled King Lueius Dei Vicarius in Regno suo 5. The Supremacy which heretofore the Pope did usurp in this Kingdom was in the Crown originally to which it is now legally reverted The Kings Supremacy in and over all Persons and Causes Ecclesiastical within his own Dominions is essentially inherent in him so that all such Authority as the Pope here once usurped claiming as Supream Head did originally and legally belong to the Crown and is now re-united to it by several Statutes as aforesaid On this Supremacy of the King as Supream Head Sr. Edward Coke grounds the power of granting a Commission of Review after a Definitive Sentence in the Delegates for one Reason that he gives is because after a Definitive Sentence the Pope as Supream Head by the Canon Law used to grant a Commission Ad Revidendum And such Authority as the Pope had claiming as Supream Head doth of right belong to the Crown Quia sicut Fontes communicant aquas fluminibus cumulative non privitive sic Rex subditis suis Jurisdictionem communicat in Causis Ecclesiasticis vigore Statuti in hujusmodi Casu editi cumulative non privitive By the Second Canon of the Ecclesiastical Constitutions of the Church of England it is ordained That whoever shall affirm that the Kings Majesty hath not the same Authority in Causes Ecclesiastical that the godly Kings had among the Jews and Christian Emperors in the Primitive Church or impeach in any part his Regal Supremacy in the said Cases restored to the Crown and by the Laws of this Realm therein established shall be Excommunicated ipso facto and not be restored but only by the Archbishop after his repentance and publick revocation of those his wicked Errors 7. The King being next under God Supream Governour of the Church of England may Qua talis redress as he shall see cause in all matters of Spiritual and Ecclesiastical Jurisdiction for the conservation of the Peace and Tranquillity of his Realms The Pope as appears by the Stat. of 25 H. 8. c. 21. claimed full power to dispense with all human Laws of all Realms in all Causes which he called Spiritual Now the King as Supream hath the same power in himself within his own Realms legally which the Pope claimed and exercised by Usurpation Eadem praesumitur mens Regis quae est Juris The Kings immediate personal ordinary inherent power which he executes or may execute Authoritate Regia suprema Ecclesiastica as King and Supream Governour of the Church of England is one of these Flowers qui faciunt Coronam Nor is the Kings immediate power restrained by such Statutes as authorize inferiour persons The Lord Chief Justice Hobart asserts That although the Stat. of 25 H. 8. 21. doth say That all Dispensations c. shall be granted in manner and
the Convocations of the same Clergy are and always have been and ought to be assembled only by the Kings Writ The Convocation is under the power and Authority of the King 21 E. 3. 45. b. 12. After the Reign of King H. 8. this Supremacy in the Crown was signally exercised by King Ed. 6. styling himself Supream Head under Christ of the Church of England and Ireland in the Preface of his Injunctions given as well to all the Clergy as Laity of this Realm the Close whereof is as followeth viz. All which singular Injunctions the Kings Majesty ministreth unto his Clergy and their Successors and to all his loving Subjects straitly charging and commanding them to observe and keep the same upon pain of Deprivation Sequestration of Fruits or Benefices Suspension Excommunication and such other Coercion as to Ordinaries or others having Ecclesiastical Jurisdiction whom his Majesty hath appointed for the due execution of the same shall be seen convenient Charging and commanding them to see these Injunctions observed and kept of all persons being under their Jurisdiction as they will answer to his Majesty for the contrary And his Majesties pleasure is That every Justice of Peace being required shall assist the Ordinaries and every of them for the due execution of the said Injunctions 14. The Three first Articles to be enquired of at the Visitations within the Province of Canterbury in the second year of the Reign of the said King Edward the Sixth were as followeth viz. 1. Whether Parsons Vicars and Curates and every of them have purely and sincerely without colour or dissimulation four times in the year at the least preached against the Usurped power pretended Authority and Jurisdiction of the Bishop of Rome 2. Whether they have preached and declared likewise four times in the year at least that the Kings Majesties power authority and preheminence within his Realms and Dominions is the highest power under God 3. Whether any person hath by writing cyphring preaching or teaching deed or act obstinately holden and stand with to extol set-forth maintain or defend the authority jurisdiction or power of the Bishop of Rome or of his See heretofore claimed and usurped or by any pretence obstinately or maliciously invented any thing for the extolling of the same or any part thereof Likewise by the Articles of Religion agreed on by the Convocation held in London and published An. 1553. by the Authority of King Ed. 6. it is declared That the King of England is Supream Head in Earth next under Christ of the Church of England c. and that the Bishop of Rome hath no Jurisdiction in this Realm The like you have in the Articles of Religion agreed on by the Archbishops and Bishops of both Provinces and the whole Clergy in the Convocation held in London An. 1562. and published by the Authority of Queen Elizabeth That the Queens Majesty hath the chief Power in this Realm of England and other her Dominions unto whom the chief Government of all Estates of this Realm whether they be Ecclesiastical or Civil in all Causes doth appertain and is not nor ought to be subject to any Forreign Jurisdiction Which Articles being the Articles of the Church of England were afterwards ratified and confirmed by his Majesty King CHARLES I. of ever Blessed Memory by his Royal Declaration thereunto prefixed in which Declaration you have as followeth viz. That we are Supream Governour of the Church of England and that if any difference rise about the External Policy concerning the Injunctions Canons or other Constitutions whatsoever thereto belonging the Clergy in their Convocation is to order and settle them having first obtained leave under our Broad Seal so to do and We approving their said Ordinances and Constitutions provided that none bâ— made contrary to the Laws and Customes of the Land Likewise in the first of the aforesaid Injunctions of King Ed. 6. as also in the first of the Injunctions given by Q. Elizabeth concerning both the Clergy and Laity of this Realm published Ann. 1559. being the first year of her Reign it is enjoyned That all Deans Archdeacons Parsons Vicars and all other Ecclesiastical persons shall faithfully keep and observe c. all and singular Laws and Statutes made for the restoring to the Crown the ancient Jurisdiction over the State Ecclesiastical and abolishing of all Forreign power repugnant to the same c. By the Statute of 25 H. 8. c. 19. Appeals to Rome are prohibited and it is Ordained that in default of Justice in any of the Courts of the Archbishops of this Realm it shall be lawful to appeal to the King in his Court of Chancery and thereupon a Commission shall be granted c. And by a Proviso towards the end of that Statute an Appeal is given to the King in Chancery upon Sentences in places exempt in the same manner as was before used to the See of Rome And as by the said Statute there may be an Appeal to the King in Chancery when the Suit is in the Archbishops Court or some Peculiar exempt so in some Cases the Appeal may be to the King generally as he is Supream Head of all Ecclesiastical Jurisdiction within the Realm for by the Statutes made in the time of King Hen. 8. the Crown was only remitted and restored to its Ancient Jurisdiction which had been usurped by the Bishop of Rome 33 Ed. 3. Fitz. Aid del Roy 103. Reges sacro oleo uncti Spiritualis Jurisdictionis sunt capaces Rex est Mixta persona cum Sacerdote Et causa Spiritualis Committi potest Principi Laico Cassan in Catal. glo mund p. 5. Consid 24. The King of England c. is Persona Sacra mixta cum Sacerdote and at his Coronation by a solemn Consecration and Unction becomes a Spiritual person Sacred and Ecclesiastical and then hath tam Vestem Dalmaticam as an emblem of his Royal Priesthood quam Coronam Regni in respect of his Regal power in Temporals and is Supream Governour in all Causes and over all Persons as well Ecclesiastical as Civil The King is Supream Ordinary by the Ancient Common Law of England before the Statute of 24 H. 8. cap. 12. for a Resignation might be made to him he might make a Grant of a Church to a man to hold to his own proper use he might not only exempt any Ecclesiastical person out of the Jurisdiction of the Ordinary but also give him Episcopal Jurisdiction he might Present to Free Chappels in default of the Dean by Lapse and that as Ordinary and in respect of his Supream Ecclesiastical Jurisdiction he might dispense with one not lawfully born to be a Priest albeit the Ecclesiastical Laws allowed within this Realm do prohibite it but the reason is for that it is not Malum in se but Malum prohibitum In a word All that the Pope was wont to do in such cases within this Realm as
Secular who within that Province whereof he is Archbishop hath next and immediately under the King Supream power Authority and Jurisdiction in all causes and things Ecclesiastical Of such there are only Two in England one of the Province of Canterbury styled Metropolitanus Primas Totius Angliae the other of York styled Primas Metropolitanus Angliae Under the two Archbishops are twenty six Bishopricks whereof twenty two in the Province of Canterbury and four in the Province of York so that besides the two Archbishops there are twenty four Bishops The Christian Religion in England took root first in the See of Canterbury St. Austin who first preached the Gospel to the one was the first Archbishop of the other Canterbury once the Royal City of the Kings of Kent was by King Ethelbert on his Conversion bestowed on St. Augustine the Archbishop and his Successors for ever and so the Chair thereof became originally fixed in that City of Canterbury Cantuarienses Archiepiscopi Dorovernenses antiquitus dicti sunt quia totius Anglicanae Ecclesiae Primates Metropolitani fuerunt The Archbishop whereof being styled Primate and Metropolitan of all England is the first Peer of the Realm and hath Precedency not only before all the Clergy of the Kingdom of England but also next and immediately after the Blood Royal before all the Nobility of the Realm Sr. Edward Cokâ— says more and lets us to understand That in Ancient time they had great Precedency even before the Brother of the King as appears by the Parliament Roll of 18 E. 1. and many others which continued until it was altered by Ordinance in Parliament in the Reign of H. 6. as appears by a Roll of Parliament of that Kings Reign entred in the Back of the Parliament Roll. The Precedency in Parliament and other Places of Council at this day is That the two Archbishops have the Precedency of all the Lords Temporal and every other Bishop in respect of his Barony hath place of all the Barons of the Realm and under the estate of the Viscount and other Superiour Dignities And at this day in all Acts Ordinances and Judgments c. of Parliament it is said The Lords Spiritual and Temporal The Bishops among themselves have this Precedency 1. The Bishop of London 2. The Bishop of Duresme 3. The Bishop of Winchester The Archbishop of Canterbury as he hath the Precedency of all the Nobility so also of all the great Officers of State He writes himself Divina Providentia whereas other Bishops only use Divina Permissione The Coronation of the Kings of England belongs to the Archbishop of Canterbury and it hath been formerly resolved that wheresoever the Court was the King and Queen were Speciales Domestici Parochiani Domini Archiepiscopi He had also heretofore this Priviledge of special remark That such as held â—ands of him were liable for Wardship to him and to compound with him for the same albeit they held other Lands in chief of our Sovereign Lord the King All the Bishopricks in England except Duresme Carlisle Chester and the Isle of Man which are of the Province of York are within the Province of Canterbury The Archbishop whereof hath also a peculiar Jurisdiction in thirteen Parishes within the City of London and in other Diocesses c. Having also an Ancient Priviledge That wherever any Mannors or Advowsons do belong to his See they forthwith become exempt from the Ordinary and are reputed Peculiars and of his Diocess of Canterbury If you consider Canterbury as the Seat of the Metropolitan it hath under it twenty one Suffragan Bishops whereof seventeen in England and four in Wales But if you consider it as the Seat of a Diocesan so it comprehends only some part of Kent viz. 257 Parishes the residue being in the Diocess of Rochester together with some other Parishes dispersedly scituate in several Diocesses it being as aforesaid an Ancient Priviledge of this See that the places where the Archbishop hath any Mannors or Advowsons are thereby exempted from the Ordinary and are become Peculiars of the Diocess of Canterbury properly belonging to the Jurisdiction of the Archbishop of Canterbury whose Provincial Dean is the Bishop of London whose Chancellour is the Bishop of Winchester whose Vice-Chancellour anciently was the Bishop of Lincoln whose Precentor the Bishop of Salisbury whose Chaplain the Bishop of Worcester and the Bishop of Rochester when time was carried the Cross before him Lind. Const de Poenis gl ibid. c. 1. ver tanquam 2. The Metropolitan See of York had its Original at the first reception of the Gospel in England when King Lucius established Sampson the first Archbishop thereof Not long after the Conversion of the Saxons Paulinus by Pope Gregory's appointment was made Archbishop thereof An. 622. This Province of York anciently claimed and had a Metropolitan Jurisdiction over all the Bishops of Scotland whence they had their Consecration and to which they swore Canonical Obedience The Archbishop of York styles himself Primate and Metropolitan of England as the Archbishop of Canterbury Primate and Metropolitan of All England About two hundred years since viz. An. 1466. when George Nevil was Archbishop of York the Bishops of Scotland withdrew themselves from their obedience to him and had Archbishops of their own The Archbishop of York hath precedency before all Dukes not being of the Blood Royal as also before all the Great Officers of State except the Lord Chancellour Of this Province of York are the Bishopricks of Duresme Chester Carlisle and the Isle of Man who write themselves Eboracenses or Eborum The Diocess belonging to this See of York contains the two Counties of York and Notingham and in them 581 Parishes whereof 336 are Impropriations 3. It hath been question'd whether there be any difference between Archbishop and Metropolitan the DD. herein seem to be divided some conceiving that there is some difference between them others affirming that they are both one the Canon Law seems in a sense to favour each of these Opinions saying in one place that the Archbishop as President hath the charge and oversight of the Metropolitans and other Bishops 21. Dist Cleros In another place That Archbishop and Metropolitan are but one and the same in deed and in truth although they differ in Name Wilhel in Clem. ult de Privileg verb. Archiepiscopo vers fin Metropolitanus Archiepiscopus idem sunt Sed Metropolitanus nomen trahit à numero Ecclesiarum viz. à metro mensura polis Civitas Otho glo in verb. Archiepiscopus De Offic. Archiepisc He is called Archiepiscopus quasi Princeps Episcoporum in respect of the other Bishops whereof he is chief and Metropolitanus in respect of the number of the Cities or Cathedral Churches where the Bishopricks are Lindw ubi supr gl ib. ver Metropolitanum For the word Civitas doth signifie with us as it doth in other Kingdoms such a Town
exempted out of the Bishop of London's Jurisdiction The Judge of this Court of Arches is styled the Dean of the Arches or the Official of the Arches-Court unto whose Deanary or Officialty to the Archbishop of Canterbury in all matters and causes Spiritual is annexed the Peculiar Jurisdiction of the thirteen Parishes as aforesaid Having also all Ordinary Jurisdiction in Spiritual causes of the first Instance with power of Appeal as the superiour Ecclesiastical Consistory through the whole Province of Canterbury yet the Lord Coke says his power to call any person for any Cause out of any part of his Province within the Diocess of any other Bishop except it be upon Appeal is restrained by the Stat. of 23 H. 8. c. 9. Yet his Jurisdiction is Ordinary and extends it self through the whole Province of Canterbury insomuch that upon any Appeal made to him from any Diocess within the said Province he may forthwith without further examination at that time of the Cause issue forth his Citation to be served on the Appealee with his Inhibition to the Judge à quo In Mich. 6 Jac. C. B. there was a Case between Porter and Rochester The Case was this Lewis and Rochester who dwelt in Essex in the Diocess of London were sued for subtraction of Tithes growing in B. in the said County of Essex by Porter in the Court of Arches of the Archbishop of Canterbury in London where the Archbishop hath a peculiar Jurisdiction of thirteen Parishes called a Deanary exempt from the Authority of the Bishop of London whereof the Parish of S. Mary de Arcubus is the chief And a great Question was moved Whether in the said Court of Arches holden in London he might cite any dwelling in Essex for subtraction of Tithes growing in Essex or whether he be prohibited by the Statute of 23 H 8. c. 9 Which after debate at Bar by Council and also by Dr. Ferrard Dr. James and others in open Court and lastly by all the Justices of the Common Pleas A Prohibition was granted to the high Court of Arches And in this case divers points were resolved by the Court 1 That all Acts of Parliament are parcel of the Laws of England and therefore shall be expounded by the Judges of the Laws of England and not by the Civilians and Canonists although the Acts concern Ecclesiastical Jurisdiction 2 Resolved by Coke Chief Justice Warburton Daniel and Foster Justices That the Archbishop of Canterbury is restrained by the 23 H. 8. cap. 9. to cite any one out of his own Diocess For Diaecesis dicitur distinctio c. quae divisa vel diversa est ab Ecclesia alterius Episcopatus Commissa gubernatio unius c. And is derived a Di Duo Electio quia separat duas Jurisdictiones And because the Archbishop of Canterbury hath a peculiar Jurisdiction in London for this cause it is fitly said in the Title Preamble and body of the Act that when the Archbishop sitting in his Exempt peculiar in London cites one dwelling in Essex he cites him out of the Bishop of London's Diocess Therefore out of the Diocess And in the clause of the penalty of 10 l. it is said Out of the Diocess c. where the party dwelleth which agrees with the signification of Diocess before 2. The body of the Act is No person shall be henceforth cited before any Ordinary c. out of the Diocess or peculiar Jurisdiction where the person shall be dwelling and if so then à Fortiori the Court of Arches which sits in a Peculiar may not cite others out of another Diocess And the words out of the Diocess are meant of the Diocess or Jurisdiction of the Ordinary where he dwelleth And from the Preamble of the Act the Lord Coke observes and inferrs That the intention of the Act was to reduce the Archbishop to his proper Diocess unless in these five Cases viz. 1 For any Spiritual offence or cause committed or omitted contrary to Right and Duty by the Bishop c. which word omitted proves there ought to be a default in the Ordinary 2 Except it be in Case of Appeal and other lawful cause where the party shall find himself grieved by the Ordinary after the matter there first begun Therefore it ought to be first begun before the Ordinary 3 In case the Bishop or Ordinary c. dare not or will not Convent the party to be sued before him 4 In case the Bishop or Judge of the place within whose Jurisdiction or before whom the Suit by this Act should be begun and prosecuted be party directly or indirectly to the matter or cause of the same Suit 5 In case any Bishop or other inferiour Judge under him c. make Request to the Archbishop Bishop or other inferiour Ordinary or Judge and that to be done in Cases only where the Law Civil or Common doth affirm c. The Lord Coke takes notice also of Two Provisoes in that Act which do likewise explain it viz. That it shall be lawful for every Archbishop to cite any person inhabiting in any Bishops Diocess in his Province for matter of Heresie By which says he it appears That for all causes not excepted he is prohibited by the Act. 2 There is a Saving for the Archbishop calling any person out of the Diocess where he shall be dwelling to the probat of any Testament Which Proviso should be vain if notwithstanding that Act he should have concurrent Jurisdiction with every Ordinary throughout his whole Province Wherefore it was concluded That the Archbishop out of his Diocess unless in the Cases excepted is prohibited by the 23 H. 8. c 9. to cite any man out of any other Diocess which Act is but a Law declaratory of the Ancient Canons and a true Exposition thereof as appears by the Canon Cap. Romana in Sext. de Appellat c. de Competenti in Sext. And as the Lord Coke observes the Act is so expounded by all the Clergy of England at a Convocation at London An. 1 Jac. 1603. Can. 94. who gives us further to understand in this Case between Porter and Rochester That the Archbishop of this Realm before that Act had power Legantine from the Pope By which they had Authority not only over all but concurrent Authority with every Ordinary c. not as Archbishop of Canterbury c. but by his Power and Authority Legantine Et tria sunt genera Legatorum 1 Quidam de Latere Dom. Papae mittuntur c. 2 Dativi qui simpliciter in Legatione mittuntur c. 3 Nati seu Nativi qui suarum Ecclesiarum praetextu Legatione funguntur sunt Quatuor viz. Archiepiscopus Cantuariensis Eboracensis Remanensis Pisanis Which Authority Legantine is now taken away and utterly abolished 4. It is supposed that the Judge of this Court was originally styled the Dean of the Arches by reason of his substitution to the Archbishop's Official when
Constance there being a Contest about Precedency between the English and French Embassadours the English have these words viz. Domus Regalis Angliae Sanctam Helenam cum suo filio Constantino Magno Imperatore nato in urbe Regia Eboracensi educere comperta est The Royal House of England it is known for certain brought forth Helena with her Son Constantine the Great Emperour Born in the Royal City Eboracum Likewise the English at Basil opposing the Precedency of Castile say thus viz. Constantium illum Magnum qui Primus Imperator Christianus so are their words Licentiam dedit per universum Orbem Ecclesias constituere immensa ad hoc Conferens bona Peternae natum in Eboracensi Civitate That Constantine who being the first Christian Emperour gave leave to build Churches throughout the World was Born at Peterne in the City of York By this they mean Bederne a Colledge of Vicars there sometime serving the Quire which as also Christchurch called in Ancient Charters Ecclesia Sanctae Trinitatis in Curia Regis is verily thought to have been part of the Imperial Palace in old time which seems the more probable by what Herodian writes viz. That Severus the Emperour and his eldest Son Antoninus sate at York about Private and Common affairs and gave their Judgment in ordinary Causes as in that of Coecilia about recovery of Right of Possession The Rescript or Law of which matter is to this day preserved in the Code whereon the Learned Cuiacius of Great Britain hath made very remarkable Observations This was that Septimius Severus Emperour of Rome and Master of the World who in this Isle breathed his last and who when he saw there was nothing to be expected but Death called for the Vrn wherein he had appointed his Ashes after the Ossilegium should be put and viewing it very exactly Thou shalt hold said he the Man whom the World could not contain No wonder then that this City of so great Renown and Antiquity was adorned with an Archiepiscopal Seat above a Thousand years since as aforesaid yet it never had those high Priviledges or Pterogatives which were and are peculiar to the Archiepiscopal See of Canterbury whereof the Power next under the Crown of convening Councils and Synods is not the least Gervasius in his Chronicle de Tempore H. 2. tells us That RICHARDUS CANTUARIENSIS Archiepiscopus totius ANGLIAE Primas Apostolicae Sedis Legatus Convocato Clero ANGLIAE celebravit Concilium in Ecclesia Beati PETRI ad WESTMONASTERIUM 15. kal. Junii Dominica ante Ascentionem Domini An. 1175. In hoc Concilio ad dextram Primatis sedit Episcopus LONDONIENSIS quia inter Episcopos CANTUARIENSIS Ecclesiae Suffraganeos DECONATVS praeminet dignitate Ad sinistram sedit Episcopus WINTONIENSIS quia CANTORIS officio praecellit The Church when Disdiocesan'd by Death Translation or otherwise or quasi viduata whilst the Bishop is employed about Transmarine Negotiations in the Service of the King or Kingdom the Law takes care to provide it a Guardian quoad Jurisdictionem Spiritualem during such vacancy of the See or remote absence of the Bishop to whom Presentations may be made and by whom Institutions Admissions c. may be given and this is that Ecclesiastical Officer whether he be the Archbishop or his Vicar General or Deans and Chapters in whomsoever the Office resides him we commonly call the Guardian of the Spiritualties The Power and Jurisdiction of this Office in the Church is very Ancient and was in use before the time of King Edward the First it doth cease and determine so soon as a new Bishop is Consecrated to that See that was vacant or otherwise Translated who needs no new Consecration This Ecclesiastical Office is in being immediately upon the vacancy of an Archiepiscopal See as well as when a Bishoprick happens to be vacant Beside the Presentations Admissions Institutions c. aforesaid that this Officer is legally qualified for he may also by force of the Act of Parliament made in the Five and twentieth year of King Henry the Eighth grant Licenses Dispensations Faculties c. which together with such Instruments Rescripts and other Writings as may be granted by virtue of the said Statute may be had made done and granted under the Name and Seal of the Guardian of the Spiritualties And in case he shall refuse to give the same an effectual dispatch where by Law it may and ought to be granted in every such case the Lord Chancellor of England or Lord Keeper of the Great Seal upon Petition and Complaint thereof to him made may issue his Majesties Writ directed to such Guardian of the Spiritualties requiring him by virtue of the said Writ under a certain penalty therein limited by the said Lord Chancellor or Lord Keeper to grant the same in due form of Law otherwise and no just and reasonable cause shewed for such refusal the said penalty may be incurr'd to his Majesty and a Commission under the Great Seal issued to two such Prelates or Spiritual persons as shall be nominated by his Majesty impowring them by virtue of the said Act to grant such Licenses c. as were so refused to be granted by the Guardian c. as aforesaid The first thing in order to the Election of a Bishop in the Vacancy of any Episcopal See is and ever hath been since the time of King John the Royal Congé d'Eslire which being obtain'd the Dean and Chapter proceeds to Election It cannot legally be doubted but that the consent of the Dean is not only requisite but also necessary to the Election of a Bishop as appears by an Ancient Contest above five hundred years since between the Dean and Canons of London touching the Election of Anselme Soon after King Stephen came to the Crown he conven'd a Council at Westminster vocati sunt ad Concilium says an Historian WILLIELMVS DECANVS LVNDONIAE siuml Canonici Cum autem haberetur Tractatus de Concilio Lundoniensis Ecclesiae tunc vacantis nec in aliquem possent unanimiter convenire recesserunt à Decano Canoni corum multi citra conscientiam ejus ANSELMUM Abbatem in Episcopum Eligentes Canonici vero quos Decanus habebat secum in Mensa diebus singulis Appellaverunt nec Regis occurrerunt offensam Canonici quidem alii quia quod fecerant tam Regi quam toto Concilio videbatur iniquum Regis indignationem plurimam meruerunt quorum aliqui bonis suis spoliati sunt The Pope afterwards having on this occasion a solemn Conference with his Cardinals Albericus Hostiensis Episcopus quod sequitur pronunciavit in Publicum Quoniam Electio Canonicorum Lundoniensium citra conscientiam Assensum Decani facta fuit cujus est Officium in Eligendo Pastore suo de jure primam vocem habere Nos eam auctoritate beati Petri devocamus in irritum So that according to this Ancient President the Election
complaint thereof made to the Pope the Answer was That any man might be Cited to the Arches out of any Diocess in England Also That the Archbishop may hold his Consistory in any Diocess within his Jurisdiction and Province That the Archbishop hath concurrent Jurisdiction in the Diocess of every Bishop as well as the Archdeacon and That the Archbishop of Canterbury prescribes to hold Plea of all persons in England But as to his power of having a Consistory in the Diocess of every Bishop this was in this Case denied but only where he was the Popes Legate whereof there were Three sorts 1. Legates à Latere and these were Cardinals which were sent à Latere from the Pope 2. A Legate born and these were the Archbishops of Canterbury York and Mentz c. 3. A Legate given and these have Authority by special Commission from the Pope Likewise in the Case of Jones against Boyer C. B it was also said by Dr. Martyn That the Archbishop hath Ordinary Jurisdiction in all the Diocesses of his Province and that this is the cause that he may Visit 13. The Archbishop of Canterbury Anciently had Primacy as well over all Ireland as England from whom the Irish Bishops received their Consecration for Ireland had no other Archbishop until the year 1152. For which reason it was declared in the time of the Two first Norman Kings That Canterbury was the Metropolitan Church of England Scotland and Ireland and the Isles adjacent the Archbishop of Canterbury was therefore sometimes styled a Patriarch and Orbis Britannici Pontifex insomuch that Matters recorded in Ecclesiastical Affairs did run thus viz. Anno Pontificatus Nostri primo secundo c. He was also Legatus Natus that is he had a perpetual Legantine power annext to his Archbishoprick nigh a thousand years since And at General Councils he had the Precedency of all other Archbishops abroad and at home he had some special Marks of Royalty as to be the Patron of a Bishoprick as he was of Rochester to coyn Mony to make Knights and to have the Wardships of all those who held Lands of him Jure Hominii although they held in Capite other â—ands of the King as was formerly hinted He is said to be Inthroned when he is invested in the Archbishoprick And by the Stat. of 25 H 8. he hath power to grant Licenses and Dispensations in all Cases heretofore sued for in the Court of Rome not repugnant to the Law of God or the Kings Prerogative As also to allow a Clerk to hold a Benefice in Commendam or in Trust to allow a Clerk rightly qualified to hold Two Benefices with Cure of Souls to allow a Beneficed Clerk for some certain causes to be non-Resident for some time and to Dispense in several other Cases prohibited by the Letters of the Canon Law Likewise the Archbishop of Canterbury Consecrates other Bishops confirms the Election of Bishops within his Province calls Provincial Synods according to the Kings Writ to him ever directed is chief Moderator in the Synods and Convocations he Viâ—its the whole Province appoints a Guardian of the Spiritualties during the vacancy of any Bishoprick within his Province whereby all the Episcopal Ecclesiastical Rights of that Diocess for that time belong to him all Ecclesiastical Jurisdictions as Visitations Institutions c. He may retain and qualifie Eight Chaplains which is more by Two than any Duke is allowed by Statute to do and hath power to hold divers Courts of Judicature for the decision of Controversies pertaining to Ecclesiastical Cognizance CHAP. III. Of Bishops and Ordinaries 1. Bishop Why so called Not above One to be in one Diocess 2. Why called Ordinary and what the Pallium Episcopale is 3. Bishopricks originally Donative Kings of England the Founders thereof 4. The manner of Election of Bishops their Confirmation and Consecration 5. Their Seals of Office in what cases they may use their own Seals 6. What follows upon Election to make them Bishops compleat the grant of their Temporalties 7. The Conge d'eslire and what follows thereupon 8. Bishopricks were Donative till the time of King John 9. What the Interest and Authority is in his several capacities 10. Episcopal Authority derived from the Crown 11. The Vse and Office of Suffragan Bishops 12. Whether a Bishop may give Institution out of his own proper Diocess and under other Seal than his own Seal of Office 13. Several things incident to a Bishop qua talis 14. Ordinary what properly he is and why so called 15. In what cases the Ordinaries Jurisdiction is not meerly Local 16. The Ordinaries power de jure Patronatûs 17. Whether the Ordinary may cite a man out of his own Diocess Also his Right ad Synodalia 18. The Ordinaries power of Visitation 19. The Dignity and true Precedency of the Bishops in England 20. Temporal Jurisdiction anciently exercised by Bishops in this Realm the Statute of 17 Car. 1. against it Repealed and they Restored to it by the Stat. of 13 Car. 2. as formerly 21. The Act made in the Reign of Ed. 6. concerning the Election of Bishops the Endeavours thereby to take away Episcopal Jurisdiction the Nomination of all Bishops was Anciently Sole in the King 22. The Bishops of London are Deans of the Episcopal Colledge 23. A Case at Common Law touching a Lease made by one Bishop during the life of another of the same Diocess in Ireland 1. BISHOP Episcopus from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 supra and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 intendere an Overseer or Superintendent so called from that watchfulness care charge and faithfulness which by his Place and Dignity he hath and oweth to the Church A word which all Antiquity hath appropriated to signifie the Chief in Superintendency over the whole Church within his Diocess wherein are divers inferiour Pastors This Oversight or Care the Hebrews call Pekudah Of this Office or Ecclesiastical Dignity there can be but one at a time in one and the same Diocess whence it is that Cornelius Bishop of Rome as Eusebius relates upbraided Novatius for his ignorance in that point when he could not but know there were no less than 46 Presbyters in that Church Oecumenius and St. Chrysostome affirming also as many at Philippi For in this restrained sense as the word Bishop is now taken it cannot be imagined that there should be more than one in one City or Diocess at the same time consonant whereunto the Synod of Nice prohibited Two or more Bishops to have their Seats at once in the same City This Novatius aforesaid was a Priest of Rome 254 years after Christ he abhorred Second Marriages and was condemned as an Heretick in a Synod at Rome the same year Every Bishop many Centuries after Christ was universal Incumbent of his Diocess received all the Profits which were but Offerings of Devotion out of which he paid the Salaries of such as Officiated under himâ—
c. according to the request of the Procurers of the same or signifie into Chancery by a day certain for what cause he refused to grant the same where if upon such Certificate it shall appear that the cause of such Refusal was reasonable just and good that then it shall be admitted and allowed otherwise there may issue thence by virtue of the said Statute a Writ of Injunction commanding the said Guardian of the Spiritualties so refusing as aforesaid to make sufficient grant of such License Dispensation c. by a certain day and if after the receipt of such Writ the Guardian of the Spiritualties shall yet refuse to grant the same and shew no just or reasonable cause for so doing that then and in such case the said Guardian of the Spiritualties shall incur such penalty to his Majesty as shall be limited and expressed in the said Writ of Injunction And moreover in such case a Commission under the Great Seal may issue to Two Spiritual Prelates or persons to be nominated by his Majesty Authorizing them to grant such Licenses Faculties and Dispensations as were so refused to be granted by the Guardian of the Spiritualties as aforesaid And what in this case is here enjoyn'd to the Guardian of the Spiritualties during the vacancy of the Archbishoprick is likewise expresly by the said Statute to the Archbishop himself in time of Plenarty or Non-vacancy of the See 4. Of the Metropolitan the Dean and Chapter is of Common right the Guardian of the Spiritualties Of Inferiour Bishopricks in times of Vacation the Dean and Chapter of the See is of Common right the Guardian of the Spiritualties and not the Metropolitan Yet 5 E. 2. Quare impedit 165. Admit that during the vacancy of the Bishoprick of Durham the Archbishop of York is Guardian of the Spiritualties And 23 E. 1. Rot. Claus Memb. 4. the Prior of Christ-Church in Canterbury was Guardian of the Spiritualties in time of vacation of the Archbishoprick Of which Archbishoprick the Dean and Chapter is Guardian of the Spiritualties in the time of vacancy Also of the Archbishoprick of York the Dean and Chapter is Guardian of the Spiritualties in the vacancy thereof and not the Archbishop of Canterbury for that it is a distinct Province not subordinate to c. contra 31 H. 6. 10. Admit for there a Parson of the Province of York had aid of the Metropolitan Guardian of the Spiritualties of the Archbishoprick of York in time of vacancy of that Archbishoprick In the Case of Grange against Denny it was said by Coke That of common Right by the Common Law the Dean and Chapter Sede vacante of the Bishop is Guardian of the Spiritualties as appears by Pasch 17 E. 3. fo 23. but that now the Archbishops have used to have this by way of Composition And in the same Case it was said by Doderidge That every Archbishop hath a Diocess and a Province and of his Diocess he is a Bishop and of his Province he is Archbishop and within his Province he is to be Visitor of all the Churches within his Province and Sede vacante of any Bishop within his Province he himself is Guardian of the Spiritualties of all the Bishopricks within his Province but Sede vacante of his own Diocess the Dean and Chapter of this is Guardian of the Spiritualties and that no mention is made in the Books of the Common Law of any such Composition aforesaid but that the Guardian of the Spiritualties is to be according to the difference before put between a Province and a Diocess 5. The Learned Serjeant Roll in his Abridgment doth acquaint us out of the Ancient Books That a Guardian of the Spiritualties may Admit and Institute a Clerk presented to him That the King did present to the Guardian of the Spiritualties of the Archbishoprick of Dublin Sede vacante for a Church in Ireland That the Guardian of the Spiritualties may try Bastardy That Letters were directed to all the Bishops and in the Vacancy to the Guardian of the Spiritualties to make Prayers for the King in his Journey in France And that the Prior of Christ-Church in Canterbury Guardian of the Spiritualties during the Vacancy of that Archbishoprick had a Felon delivered to him But in the time of the Vacancy of the Bishop the Archbishop is Guardian of the Spiritualties and not the Dean and Chapter CHAP. V. Of Congé d'Eslire Election and Confirmation 1. What Congé d'Eslire signifies the Original thereof 2. To whom it is directed and the manner of Proceedings thereupon and of Election 3. Confirmation of Bishops the form or manner thereof 4. Confirmation in a Temporal not Spiritual sense what 5. The Confirmation of Bishops Elect beyond Sea far different from this in England 6. The Law and Practice in France touching the making of Bishops 1. COngé d'Eslire in French Leave to Chuse is the Kings permission to a Dean and Chapter to chuse a Bishop in the time of Vacancy And time was when this Venia Eligendi was also the permission Royal to an Abby or Priory of his own Foundation to chuse their Abbot or Prior But we now understand it under no other signification than as his Majesties leave vouchsafed to a Dean and Chapter to elect a certain person to succeed as Bishop of that Diocess whose Episcopal See is vacant For the better interpretation of this Congé d'Eslire the Modern Pens refer themselves to Mr. Guin in the Preface to his Readings where he saith The the King of England as Sovereign Patron of all Archbishopricks Bishopricks and other Ecclesiastical Benefices had of Ancient time free Appointment of all Ecclesiastical Dignities whensoever they hapned to be void Investing them first Per Baculum Annulum and afterwards by his Letters Patents And that in process of time he made the Election over to others under certain Forms and Conditions viz. That they should at every Vacation before they chuse desire of the King Congé d'Eslire that is Leave or License to proceed to Election and then after the Election to crave the Royal Assent c. He affirmeth also by good proof out of the Books of the Common Law that King John was the first that granted this and that afterwards it was confirmed by Westminster 1. cap. 1. which Statute was made An. 3. Ed. 1. And again by the Statute Articuli Cleri cap. 2. which was Ordained An. 25. Ed. 3. Stat. 3. it is generally agreed That the Kings of this Realm were originally the Founders of all Archbishopricks and Bishopricks within this Kingdom being at first Donative per traditionem Baculi Pastoralis Annuli But afterwards King John by his Chapter 15 Jan. in the seventh year of his Reign De Communi consensu Baronum granted that they should ever after be eligible And from that time came in the Congé d'Eslire Vid. Co. 5. par 14. in Candry's Case vid. Stat.
a kind of Collect for the Saint to whose Name the Church is Dedicated and some other Services as the Chaunter shall appoint So that although the Patron might chuse the Ground yet the Prelate was to come and Consecrate it the Patron might bring the Stones but the Bishop laid the Foundation the Workmen might with the Materials make a House but the Bishop by Consecration made it a Church It was but the dead body of a Temple till it received the being of a Church by the influence of the Diocesan Thence it was that the priviledge of a new Church followed not the Building but the Consecration thereof as was well observed by that Devout and Learned King Alured in the fifth Canon of his Ecclesiastical Laws where he saith That if a man pursued by his Enemy flie to the Temple no man shall thence take him away for the space of seven days which Law was yet made under a Caution That this freedom shall not be granted to any Church but such as shall be Consecrated by the Bishop 5. Consecration relating to the person office and dignity of a Bishop as in the former part of this Chapter was by the Imperial Law so necessary to the making him a Bishop compleat as that without it his Election and Confirmation would not have entituled him to any Church that should be new erected within his Diocess whereunto he being Consecrated had a right and Title as is evident not only by the Emperours Novel but also more peculiarly acknowledged by the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or the setting up of the Cross behind the Altar when he made the Consecration Thus the Eucholgue for the Greek Church The like also is observed in the Latin where the Ceremonies are more tedious and elaborate By the setting up of the said 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Right of the new Church was conveyed to the Patriarch or Bishop as by an especial Title and that not only by the Euchologue in the Greek but also by the Emperour 's Novel in the Latin Church Concerning which Right and the Conveyance thereof by the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Observable to this purpose is that Synodical Sentence given by Germanus Patriarch of Constantinople against John Archbishop of Lepanto touching certain Episcopal Monasteries whereon he had illegally fixed his Cross under pretence of a Right to the same 6. This Consecration specially as it refers to Bishops is Character indelebilis insomuch that although it should so happen that for some just cause he should be deposed or removed from the See or suspended ab Officio Beneficio both from his Spiritual Jurisdiction as to the exercise and execution thereof as also from the Temporalties and profits of the Bishoprick yet he still retains the Title of a Bishop for that it is supposed the Order it self cannot absolutely be taken from him King H. 1. banished Thurstan Archbishop of York for five years for receiving Consecration from the Pope Speed 440. b. 458. b. 7. It appears by good Chronology that the first that ever Consecrated Churches was Euginus who was a Greek and Priest of Rome and was the first that ever styled himself Pope An. 154. who wrote de Trinitate Vnitate Dei. He was the first that Decreed that Churches should be Consecrated with the consent of the Metropolitan or Bishop and that there should be one God-father and one Godmother at Baptism 8. In a Case of Translation the Bishop need not to be Consecrated de Novo as in case of Creation Anciently and according to the Canon Law and where the Pope's Spiritual power and authority was in force Bishops were not so much by Election as by Postulation and then the saying was Electus Postulando Postulatus obligando and in that case the Elected was a Bishop presently without either Confirmation or Consecration only by the Assent of the Superiour Before Consecration the Bishop hath not actual possession although he hath a Freehold in Law after Consecration But in case of Translation there is not any new Election nor may the Dean and Chapter pray a Congé d'Estire but they signifie to the King how their Bishoprick is void ideo humilime Postulamus Humbricensem Episcopum fore Episcopum nostrum and that is called Postulation and then if the King grant it he is the Bishop Trin. 21 Jac. B. R. Sir Jo. Vaughan's Case vers Ascough Roll. Rep. Postulatio est alicujus personae ad dignitatem vel Societatem Fraternam Canonica facta vocatio vel est personae quae eligi non potest ad eligendum petitio Cap. innotuit § habito de Elect. The Bishop of St. P. was chosen Bishop of Trevers and had the assent of the Pope and when he came there he found another in possession whereupon he would have returned to his former Bishoprick but could not because it was void before by the consent of the Superiour And in the Case of Evans and Ascough it was said That a Bishop hath been Summoned to Parliament before by Confirmation but as Jones there said That was after his Possessions or Temporalties were restored to him And Caltheep there said That in the Case of Translation of a Bishop there are five things to be performed 1. The Chapters Intimation of the death of their Bishop praying Congé d'Estire 2. Congé al eux d'Estire 3. A Certificate of the Election 4. The Assent of the Bishop and the King 5. The Writ to the Archbishop to Confirm and Install him because in such case of Translation he shall not be Consecrated de Novo as aforesaid But Consecration is necessary to the making of him a Bishop who was none before and is the fourth Act in order to a Bishop according to the enumeration of these steps and degrees thereunto which in the said case of Evans and Ascough is mentioned by Whitlock where he faith That in the making of a Bishop when a Bishoprick is void the course is 1. To obtain a Congé d'Estire 2. The Kings Letters Missive whom they shall abuse 3. Vpon the Election three Instruments thereof one whereof to the party Elected another to the Archbishop a third to the King certifying him of the Election and then there is an act of Assent to the Election which cannot be without his Assent 4. The Kings Writ to the Archbishop to Consecrate and Install the person Elected 5. Then the Archbishop issues forth a general Citation and therein doth prefix a certain day for the Confirmation which is done accordingly and then be is Consecrated Then the new Bishop swears Fealty to the King which being done the King orders him his Temporalties so that there are three principal Acts required to the making of a Bishop The Election is as the Sollicitation the Confirmation is the Contract the Consecration is the Consummation of the Marriage Answerable whereunto said Doderidge in the Case aforesaid are the Acts of making a Parson As 1. Presentation whereto
The Case of Tithes is parallel to the Case of Proxies and agrees therewith in all points For as Instruction was the cause of the payment of Tithes So Visitation which is ever accompanied with Instruction Littl. ca. de Frankalmoigne 30. b. was the cause of the Proxies And as Tithes are now due and payable to Lay-persons which have purchased Impropriate Rectories although they do not give any Instruction So Proxies are due and payable to Ordinaries out of the Impropriations and Religious houses dissolved although their Visitation ceases And as none can prescribe de non decimando as is commonly held in the Common Law So the Canon Law hath a Rule Quod nulla est adversus Procurationem praescriptio Inst Jur. Canon lib. 2. cap. de Censibus Also Proxies which resemble Tithes in other points may be well compared to them in this point viz That they shall not be subject to extinguishment by unity of possession CHAP. X. Of Diocesan Chancellors Commissaries Officials and Consistories 1. A Description of the Office of such Chancellors and how they differ from the Bishops Commissaries 2. The Antiquity and necessary use of such Chancellors 3. What the Canons Ecclesiastical require touching their Office 4. Whether a Divine that is not a Civilian may be a Chancellour 5. Where and before whom the Bishops Consistories are held 6. What is meant or intended by the word Consistory 7. The great Antiquity of the Bishops Consistories 8. That Antiquity further confirmed and proved 9. The difference between Consistorium and Tribunal 10. Incidents to the Chancellors Office as he is Oculus Episcopi 11. A short digression touching Administrators 12. The Laws and Canons touching Summoners 13. The Constitutions Provincial what provision there touching this Office of Summoners 14. A Judgment at Common Law in Action on the Case against an Apparitor or Summoner for Citing a man wrongfully into the Ecclesiastical Court 15. What a Commissary is how to be qualified with the Precincts of his Jurisdiction 16. Whether a Commissary may Cite persons of several Parishes to appear at his Visitation-Court 17. A Case at Common Law touching a Commissary made by a Dean 18. Whether a meer Lay-person may be a Commissary or Official Other points in Law touching that Office and the Grant thereof 19. Sufficiency or Insufficiency or other defects in Chancellors Commissaries c. properly cognizable not in the Temporal but Ecclesiastical Courts 20. The Office of Chancellorship as to the Right of it is held to be of Temporal but as to the Exercise thereof of Ecclesiastical cognizance 21. Whether the Offices of Chancellor Register c. in Ecclesiastical Courts be within the Statute of 5 Ed. 6. 1. THe Chancellor of a Diocess is a Church-Lawyer or the Bishops-Lawyer or that person who is Commissionated to be aiding and assisting to the Bishop in his Jurisdiction not confined to any one place of the Diocess nor limited as the Bishops Commissaries are only to some certain causes of the Jurisdiction but every where throughout the whole Diocess supplying the Bishops absence in all matters and causes Ecclesiastical within his Diocess By the Statute of 37 H. 8. c. 17. a Doctor of the Civil Law lawfully deputed may exercise all Ecclesiastical Jurisdiction and the Censures thereof By this Chancellor the Bishop within his Diocess keeps his Court according to the Ecclesiastical Laws in all matters pertaining to his Jurisdiction or otherwise relating more immediately to the Church or Government of the Clergy As Bishops in their Episcopal audience have had in all Ages the cognizance of all matters Ecclesiastical as well Civil as Criminal within the Jurisdiction of their Diocess so they have ever had to that end their Chancellors whom the Law calls Ecclesiecdici or Episcoporum Ecdici persons experienced in the Civil and Canon Laws to assist them in matters of Judgment and those whom we now call the Bishops Chancellours are the very self same persons in Office that anciently did exercise Ecclesiastical Jurisdiction under Bishops and were called Ecclesiecdici Papias per Gothofred in L. omnem C. de Episc Cler. in § praeterea ibid. Dr. Ridl View par 2. cap. 2. sect 3. Who forasmuch as they have with them the Bishops Authority every where within the Diocess for matters of Jurisdiction and in that the Bishops and They make but one Consistory are called the Bishop's Vicars General both in respect of their Authority which extendeth throughout the whole Diocess as also to distinguish them from the Commissaries of Bishops whose Authority as it is restrained only to some certain place of the Diocess so also to some certain causes of the Jurisdiction limited unto them by the Bishops for which reason the Law calls them Officiales Foraneos quasi Officiales astricti cuidam foro Dioeceseos tantum Dr. Ridl ibid. 2. Dr. Ridley in his View of the Civil and Ecclesiastical Law says that Chancellors of Diocesses are nigh of as great Antiquity as Bishops themselves and are such necessary Officers to Bishops that every Bishop must of necessity have a Chancellor and that if any Bishop should seem to be so compleat within himself as not to need a Chancellor yet the Archbishop of the Province in case of refusal may put a Chancellor on him in that the Law presumes the Government of a whole Diocess a matter of more weight than can be well sustained by one person alone and that although the Nomination of the Chancellour is in the Bishop yet his Authority is derived from the Law Hostiens Sum. de Offic. Vicar nu 2. For which reason the Law understands him as an Ordinary as well as the Bishop Hostiens ibid. It is most probable that the multiplicity and variety of Ecclesiastical Causes introduced the use and Office of Chancellors originally for after that Princes had granted to Ecclesiastical persons their Causes and their Consistories and Circumstances varying these Causes into a more numerous multiplication than were capable of being defined by like former Presidents necessity call'd for new Decisions and they for such Judges as were experienced in such Laws as were adapted to matters of an Ecclesiastical Cognizance which would have been too prejudicial an Avocation of Bishops from the exercise of their more Divine Function had not the office of the Chancellor in determining such matters been an expedient to prevent the said prejudice or inconvenience 3. By the Constitutions and Canons Ecclesiastical it is Ordered That upon the days of the Visitation every Chancellor Archdeacon Commissary and Official as also at the ordinary time when Church-wardens are Sworn shall deliver them such Books of Articles as whereon to ground their Presentments Also that they shall not suffer any to be cited into Ecclesiastical Courts by any General process of Quorum Nomina nor the same person to be cited into several Ecclesiastical Courts for one and the same Crime for which end the Chancellour and Archdeacon are within one month next after the
them offend in any of the Premisses the persons deputing them if they be Bishops shall upon Admonition of their Superiour discharge the persons exceeding the Number so limited as aforesaid But if they were deputed by Inferiour Ordinaries such Ordinaries shall be suspended from the execution of their Office until they have dismiss'd the supernumerary Apparitors by them so deputed and the parties themselves so deputed shall for ever be removed from the Office of Apparitors And in case being so dismiss'd and removed they do not desist from the execution of their said Offices they are by the first said Canon to be proceeded against and punished by Ecclesiastical Censures as persons contumacious to the Jurisdiction And finally if upon experience the number of the said Apparitors be too great in any one Diocess in the judgment of the Archbishop of Canterbury for the time being in that case he is by the said Canon impower'd to abridge them to such a number as to himself shall seem meet and expedient An Apparitor came to the Church of a Parson and said to him He is to pay Tenths to such a one at such a place four miles distant from the Church to whom the Parson did not pay them and thereupon the Bishop Certified That he refused to pay them according to the Statute of 26 H. 8. It was Resolved The Demand was not according to that Statute and the Summons to pay them not according to the Statute for the Demand ought to have been by one who hath authority to receive them which the Summoner had not And they held the Demand not good although the Bishop certified it was duly made And in the Case between the Queen and Blanch it was Resolved That the Certificate of the Bishop that the Incumbent refused to pay his Tenths is not Peremptory but Traversable and that the Demand of the Tenths must be at the house of the Incumbent and the Refusal there More 's Rep. 1225. In a Action upon the Case against the Defendant the Case was this A Summoner in the Ecclesiastical Court having a Citation against the Plaintiff Returned That he had Summoned the Plaintiff whereas in truth he never Summoned him for which the Plaintiff was Excommunicated to his great dammage It was adjudged that the Action did lie 13. By the Premisses it is manifest that the Canon is very strict and exact both in abridging the Number and redressing the Abuses incident to the Office of Apparitors which Canon in most Circumstances seems to run very parallel with that in the Provincial Constitutions Lindw Provin Constit de Censibus Procur cap. cum Apparitorum the light whereof did probably influence it into that Form wherein we now find it For by that Decree of the said Provincial Constitunions it is Ordained That a Bishop shall have unum Apparitorem Equitantem duntaxat where the Gloss well observes that by this non prohibetur Episcopo quin plures habeat pedites And every Archdeacon one in every Deanary non Equitantem sed peditem where the Bishop might also appoint Apparitors as also in Rural Deanaries Gloss ibid. verb. Duntaxat And in case more than these were Deputed or they found to offend in their Office the Penalty was as above-said Deputantes sint suspensi donec c. Deputatos ab Officio Apparitorum perpetuo suspendimus ipso facto Constit ibid. 14. Action upon the Case For that the Defendant being an Apparitor under the Bishop of Exeter maliciously and without colour or cause of suspicion of Incontinency of his own proper malice procured the Plaintiff Ex Officio upon pretence of Fame of Incontinency with one Edith whereas there was no such Fame not just cause of Suspicion to be cited to the Consistory Court of Exeter and there to be at great charges and vexation until he was cleared by Sentence which was to his great discredit and cause of great Expences and Losses for which c. upon Not guilty pleaded and found for the Plaintiff it was moved by Ashley Serjeant in Arrest of Judgment That in this Case an Action lies not For he did nothing but as an Informer and by virtue of his Office But all the Court absente Richardson held That the Action well lies For it is alledged That he falso malitiose caused him to be Cited upon pretence of Fame where there was no offence committed And avers That there was not any such Fame so as he did it maliciously and of his own head and caused him to be unjustly vexed which was to raise gain to himself whereupon they conceived That he being found guilty for it the Action well lies And therefore Rule was given to enter Judgment for the Plaintiff unless other cause was shewn And upon a second motion Richardson Ch. Justice being present Judgment was given for the Plaintiff The Consistory of the Bishop may in some Cases enjoyn Penance Where Penance is enjoyned there may be Commutation but there may not be Commutation for Penance where none is enjoyned Commutation for Penance agrees with the Customes used in the Ecclesiastical Law justified in the Common Law in the Statute of Circumspecte agatis in the time of Ed. 1. and Articuli Cleri in the time of Ed. 2. Vid. Mich. 21. Jac. B. R. Dr. Barker 's Case in Camera Stellata Roll's Rep. 15. Commissary Commissarius is a Title of Ecclesiastical Jurisdiction adapted to such one as doth exercise the same in such remote places of the Diocess and at such distance from the Bishops chief Consistory as that his Chancellor cannot without too great a prejudice conveniently call the Subjects to the same The duty of such Commissary or Officialis Fâ—ranei is to officiate the Bishops Jurisdiction in the remoter parts of the Diocess or in such Parishes as are the Bishop's peculiar and exempt from the Archdeacon's Jurisdiction The Authority of the Commissaries of Bishops is only in some certain place of the Diocess and some certain causes of the Jurisdiction limited unto them by the Bishops for which reason the Law calls them Officiales Foraneos quasi Officiales astricti cuidam foro Dioeceseos tantum Gloss in Clem. de Rescript And by the Canons and Constitutions Ecclesiastical no person may be a Commissary or Official under the Age of 26 years being at least a Master of Arts or Bachelor of Law Yet in the Argument of Buries Case for a Divorce the 5 Rep. 98. there was cited 35 Eliz. B. R. rot 605. That if a Lay-man be made a Commissary by the Bishop it is good until it be undone by Sentence although that the Canon says That he ought to be a Doctor or a Bachelor of Divinity But 21 H. 8. hath limited That a Doctor of the Civil Law may be a Commissary 16. Where a Commissary citing many persons of several Parishes to appear at his Visitation-Court Excommunicated them for not Appearing a Prohibition was granted because the Ordinary hath not
Office supposing the Grant of that by the Predecessor does not bind the Successor as it was in Dr. Barker's Case there a Prohibition shall be awarded because the profits are Temporal But we in the first Case cannot try the Sufficiency Vid. 8 E. 3. 70. 9 E. 3. 11. So it is if the Ordinary deprive the Master of a Lay-Hospital for there he is not a Visitor nor is it Visitable by him But otherwise of a Spiritual Hospital 20. The Bishop of Landaff granted the office of his Chancellorship to Dr. Trevor and one Griffin to be exercised by them either joyntly or severally Dr. Trevor for 350 l. released all his Right in the said Office to Griffin so that G. was the sole Officer and then after died After this the Bishop grants the said Chancellorship to R. being a Practicioner in the Civil Law for his life Dr. Trevor surmising that himself was the sole Officer by Survivorship made Dr. Lloyd his Substitute to execute the said office for him and for that that he was disturbed by R. the said Dr. Trevor being Substitute to the Judge of the Arches granted an Inhibition to inhibite the said R. from executing the said Office The Libel contained That one R. hindered and disturbed Dr. Lloyd so that he could not execute the said Office Against these proceedings in the Arches a Prohibition was prayed and day given to Dr. Trevor to shew cause why it should not be granted They urged that the Office was Spiritual for which reason the discussing of the Right thereof appertaineth to the Ecclesiastical Courts But all the Judges agreed That though the Office was Spiritual as to the Exercising thereof yet as to the Right thereof it was Temporal and shall be tryed at the Common Law for the party hath a Freehold therein Vid. 4 5 P. M Dyer 152. 9. Hunt's Case for the Registers Office in the Admiralty and an Assize brought for that And so the Chief Justice said was Adjudged for the Registers Office to the Bishop of Norwich in B. R. between Skinner and Mingey which ought to be tryed at the Common Law And so Blackleech's Case as Warburton said in this Court for the office of Chancellor to the Bishop of Gloucester which was all one with the principal Case And they said That the office of Chancellor is within the Statute of Ed. 6. for buying of Offices c. And so in the manner of Tithing the Prescription is Temporal for which cause it shall be tryed at Common Law And Prohibition was granted according to the first Rule So that if a Bishop grant the office of Chancellorship to A. and B. and after A. release to B. and after B. die and after the Bishop grant it to R. against whom A. sues in the Ecclesiastical Court supposing his Release to be void a Prohibition will lie for that the office is Temporal as to the Right of it though the office be Exercised about Spiritual matters But if a Chancellor be sued in the Ecclesiastical Court to be deprived for Insufficiency as not having knowledge of the Canon Law no Prohibition lies for that they are there the proper Judges of his ability and not the Judges of the Common Law 21. In Dr. Trevor's Case who was Chancellor of a Bishop in Wales it was Resolved That the Offices of Chancellor and Register c. in Ecclesiastical Courts are within the Statute of 5 Ed. 6. cap. 16. which Act being made for avoiding Corruption of Officers c. and advancement of Worthy persons shall be expounded most beneficially to suppress Corruption And because it allows Ecclesiastical Courts to proceed in Blasphemy Heresie Schism c. Loyalty of Matrimonies Probat of Wills c. And that from these proceedings depends not only the Salvation of Souls but also the Legitimation of Issues c. and other things of great consequence It is more reason that such Officers shall be within the Statute than Officers which concern Temporal matters The Temporal Judge committing the Convict only to the Gaoler but the Spiritual Judge by Excommunication Diabolo And there is a Proviso in the Statute for them And it was Resolved That such Offices were within the Purview of the said Statute CHAP. XI Of Courts Ecclesiastical and their Jurisdiction 1. The Antiquity of the Ecclesiastical Laws of England and what the Chief Ecclesiastical Courts are in general anciently called Halimots The Original of the Popes Vsurpation in England 2. The Court of Convocation and Constitutions of Claringdon 3. The High Court of Arches why so called the highest Consistory the Jurisdiction thereof 4. The Judge of this Court whence called Dean of the Arches 5. The great Antiquity of this Court the Number of Advocates and Proctors thereof Anciently limited their decent Order in Court 6. The Prerogative Court of Canterbury 7. The Court of Audience to whom it belonged where kept and what matters it took cognizance of 8. The Court of Faculties why so called what things properly belong to this Court As Dispensations Licenses c. with the Original thereof in England 9 What the nature of a Dispensation is and who qualified to grant it 10. A Dean made Bishop the King may dispence with him to hold the Deanary with the Bishoprick by way of Commendam 11. Whether a Prohibition lies to the Ecclesiastical Courts in case they do not allow of Proof by one Witness 12. Divers Cases at the Common Law relating to Prohibitions to the Ecclesiastical Courts 13. The Court of Delegates 14. The High Commission Court what the Power thereof was 15. The Court of Review or Ad Revidendum 16. The Court of Peculiars 17. In what Cases the Ecclesiastical Court shall have Jurisdiction of matters Subsequent having Jurisdiction of the Original Suit 18. In what Case the party having allowed of the Jurisdiction comes too late to have a Prohibition 19. The difference between a Suit Ad instantiam partis and that ex Officio Judicis in reference to a General Pardon 20. Whether a Cleâ—k may strike his Servant or another in that case the Clerk and be blameless 21. What manner of Avoidance shall be tried at the Common Law and what in the Ecclesiastical Court 22. In what Case a special Prohibition was awarded in a Suit of Tithes after a Definitive Sentence 23. A Prohibition to the Ecclesiastical Court in a Suit grounded on a Custome against Law 24. Prohibition awarded to the Ecclesiastical Court upon refusal there to give a Copy of the Libel 25. Where the Ecclesiastical Court hath cognizance of the Principal they have also of the Accessory though the Accessory of matters Temporal 26. A Prohibition denied upon a Suggestion That the Ecclesiastical Court would not admit of proof by one Witness 27. In what case the Ecclesiastical Court shall have the Cognizance albeit the bounds of a Village in a Parish come in question 28. How the Practice hath been touching Prohibitions where the Subject matter
s. 6 d. to the Scribe for Registring the same or else the said Scribe to be at his liberty to refuse the said 2 s. 6 d. and to have for writing every ten Lines of the same Testament whereof every Line to contain ten inches one penny If the Executor desire that the Testament in paper may be transcribed in parchment he must agree with the party for the Transcribing but the Ordinary c. can take nothing for that nor for the Examination of the Transcript with the Original but only 2 s. 6 d. for the whole duty belonging to him Where the Goods of the deceased do not exceed five pound the Ordinary c. shall take nothing and the Scribe to have only for writing of the Probat six pence so the said Testament be exhibited in writing with Wax thereunto affixed ready to be sealed Where the Goods of the deceased do amount to above the value of five pound and do not exceed the sum of forty pound there shall be taken for the whole but 3 s. 6 d. whereof to the Ordinary c. 2 s. 6 d. and 12 d. to the Scribe for Registring the same Where by Custome less hath been taken in any of the Cases aforesaid there less is to be taken And where any person requires a Copy or Copies of the Testament so proved or Inventory so made the Ordinary c. shall take for the Search and making of the Copy of the Testament or Inventory if the Goods exceed not five pound six pence and if the Goods exceed five pound and exceed not forty pounds twelve pence And if the Goods exceed forty pounds then two shillings six pence or to take for every Ten lines thereof of the proportion before rehearsed a penny And when the party dies Intestate the Ordinary may dispose somewhat in pious uses notwithstanding the Act of 31 Ed. 3. but with these Cautions 1 That it be after the Administration granted and Inventory made so as the state of the Intestate may be known and thereby the sum may appear to be competent 2 The Administrator must be called to it 3 The use must be publick and godly 4 It must be expressed in particular And 5 There must be a Decree made of it and entred of Record 7. The Court of Audience Curia Audientiae Cantuariensis The Lord Coke touching the Jurisdiction of Courts taking notice of this of the Audience among other of the Ecclesiastical Courts says That this Court is kept by the Archbishop in his Palace and meddleth not with any matter between party and party of any contentious Jurisdiction but dealeth with matters pro forma and Confirmations of Bishops Elections Consecrations and the like and with matters of voluntary Jurisdiction as the granting of the Guardianship of the Spiritualties Sede vacante of Bishops Admissions and Institutions to Benefices dispensing with Banns of Matrimony and such like This Court did belong to the Archbishop of Canterbury and was in point of Authority equal with but in point of Dignity and Antiquity inferiour to the Court of Arches It seems that Anciently the Archbishop of Canterbury did hear divers Causes of Ecclesiastical cognizance Extra-judicially and at home in his own Palace wherein before he would come to any final determination his usage was to commit the discussion thereof to certain persons learned in the Laws Civil and Canon who thereupon were styled his Auditors whence in process of time it center'd in one particular person styled Causarum Negotiorumque Audientiae Cantuariensis Auditor seu Officialis And from hence the Original of this Court is properly derived With this office of the Auditor the Chancery of the Archbishop is said to have been heretofore commonly joyned not controverting any matters of contentious Jurisdiction in any decisions of Causes between Plaintiff and Defendant but such only as were Voluntariae Jurisdictionis ex Officio touching such things only as are fore-specified and such like By the Provincial Constitutions it is Ordained That for the ease of the People they may at times convenient to be assigned by the Bishop have access to their Diocesan Et quod Praelati persâ—â— liter Audiant quaerelas in his Cathedral or next Parochial Church vel in aliqua Maneriorum suorum Capella si talis fuerit Lindw de Offic. Jud. Ord. cap. Statuimus in gloss verb. in Publico It seems not altogether improbable but that from the practice hereof this Court of Audience anciently had its Original as aforesaid And although it be not now in use as heretofore yet considering the Subject-matter it only took cognizance of it was a good Expedient to prevent many Suits at Law in Foro Contentioso 8. Faculty or Court of Faculties in the sense here meant and intended must not be understood according to its original and genuine signification but as a term of Art according to a limited construction restrained under that peculiar notion and particular understanding which the Law hath of it in reference to a branch of the Ecclesiastical Jurisdiction And so it is understood and commonly used for that Priviledge or especial Power which is legally granted to a man by License favour indulgence and dispensation to have or do that which otherwise by the Canon Law he could not as to eat Flesh upon days prohibited to Marry without Banns first published to hold Two or more Ecclesiastical Benefices incompatible the Son to succeed the Father in his Benefice and such like A Faculty granted to one who is not Incumbent to take a void Benefice is void But a Faculty to one who is Incumbent of a Benefice to retain the same is good It is called Faculties in the Statute of 28 H. 8. cap. 16. Sir Ed. Coke makes mention of the Court of Faculties although it holds no Plea of Controversie It belongs to the Archbishop of Canterbury and his chief Officer thereof is called Magister ad Facultates whose power is to grant Dispensations to the ends and purposes aforesaid and so may every Diocesan as to that of Marriage and eating of Flesh on days prohibited Faculty according to Sir Ed. Coke in the place fore-cited signifies a Dispensation so that Facultates in this sense Dispensationes Indulta are Synonyma Who likewise there says that this Authority was raised and given to the Archbishop of Canterbury by the Statute of 25 H. 8. c. 21. whereby Authority is given to the said Archbishop and his Successors to grant Dispensations Faculties c. by himself or his sufficient and substantial Commissary or Deputy for any such matters commonly called the Master of the Faculties and of all such matters as whereof heretofore such Dispensations Faculties c. then had been accustomed to be had at the See of Rome or by Authority thereof For by the Stat. of 28 H. 8. c. 16. it appears the Bishop of Rome did grant Faculties and Dispensations to the Kings Subjects as Pluralities Unions Trialities Appropriations Commendams Exemptions
And the Judgment of Parliament expressed in the Preamble of that Statute of Faculties is very remarkable to this purpose where it is recited that the Bishop of Rome had deceived and abused the Subjects of the Crown of England pretendig and perswading them That he had full power to Dispence with all human Laws Vses and Customes of all Realms in all Causes which be called Spiritual which matter hath been usurped and practised by him and his Predecessors for many years to the great derogation of the Imperial Crown of England For whereas the said Realm of England recognizing no Superiour under God but the King hath been and yet is free from subjection to any mans Laws but only to such as have been devised made and Ordained within this Realm for the weal of the same or to such other as by sufferance of the King and his Progenitors the People of this Realm have taken at their free liberty and by their own consent to be used among them and have bound themselves by long use and custome to the observance of the same not as to the observance of the Laws of any Foreign Prince Potentate or Prelate but as to the accustomed and ancient Laws of this Realm originally established as Laws of the same by the said sufferance consent and custome and not otherwise it standeth with natural equity and good reason that all such human Laws made within this Realm or induced into this Realm by the said Sufferance Consent and Custome should be Dispenced with abrogated amplified or diminished by the King and his Parliament or by such persons as the King and Parliament should authorize c. Vid. 21 H. 7. 4. a. where it is said That certain Priests were deprived of their Benefices by Act of Parliament in the time of R. 2. whereby it hath been concluded that the King of England and not the Pope before the making of the said Statute of Faculties might de jure Dispence with the Ecclesiastical Law in that and other cases For although many of our Ecclesiastical Laws were first devised in the Court of Rome yet they being established and confirmed in this Realm by acceptance and usage are now become English Laws and shall no more be reputed Roman Canons or Constitutions As Rebuffus speaking De Regula Cancellariae Romanae de verisimili notitia Haec Regula says he ubique in Regno Franciae est recepta est Lex Regni effecta observatur tanquam Lex Regni non tanquam Papae Regula Papa eam revocare non potest The Kings of England from time to time in every Age before the time of H. 8. have used to grant Dispensations in Causes Ecclesiastical For whereas the Law of the Church is That every Spiritual person is Visitable by the Ordinary King William the Conqueror by his Charter Dispenced with the exempted the Abbey of Battell from the Visitation and Jurisdiction of the Ordinary in these express words Sitque dicta Ecclesia libera quieta in perpetuum ab omni subjectione Episcoporum quarumlibet personarum dominatione sicut Ecclesia Christi Cantuariensis c. whereby he Dispences with the Law of the Church in that Case Vid. libr. De vera differentia Regiae potestatis Ecclesiasticae Edit 1534. where that whole Charter is recited at large The like Charter was granted to the Abbey of Abingdon by King Kenulphus 1 H. 7. 23 25. and Cawdry's Case Co. par 5. fo 10. a. So likewise every Appropriation doth comprize in it a Dispensation to the Parson Imparsonee to have and retain the Benefice in perpetuity as appears in Grendon's Case Plow Com. 503. In which Act the King by the Common Law shall be always Actor not only as Supream Patron but also as Supream Ordinary as is also observed in Grendon's Case For the King alone without the Pope may make Appropriations 7 E. 3. Fitz. Quare Impedit 19. And in the Case of Malum prohibitum and Malum in se in 11 H. 7. 12. a. it is held That the King may dispence with a Priest to hold Two Benefices and with a Bastard that he may be a Priest notwithstanding the Ecclesiastical Laws which are to the contrary And as he may dispence with those Laws so he may pardon all Offences contrary to these Laws and his Pardon is a barr to all Suits pro salute Animae or reformatione morum and all Suits ex Officio in the Ecclesiastical Court Hall's Case Coke 5. par fo 51. In all Faculties or Dispensations for the holding of Two Benefices granted at the Court of Rome there was always a particular Derogation or Non obstante the right of Patronage of Lay-Patrons and of the right of the King by name express where the Patronage belonged to him otherwise the Faculty was void For by the Canon Law the Lay-Patrons ought to be called to give their Consents in all Cases of that nature And if such a particular Non obstante were not added in the Faculty then there was inserted another Clause viz. Dummodo Patronorum expressus accedat Consensus also by another Clause Authority was always given to the Official or Archdeacon or other Ecclesiastical Minister to put him to whom the Faculty is granted into possession of the Benefice cum acciderit And because by the Canon Law the Patron 's consent was ever requisite in a Commenda for that reason in every Faculty or License granted by the Pope to make a Permutation Union or Appropriation of Churches these words were ever added viz. Vocatis quorum interest which chiefly intends the Patron And which Union and Approbation shall not according to the Common Law be made without the Patron 's assent Vid. 11 H. 7. 8. 6 H. 7. 13. 46 Ass p. 50. Ed. 3. 26. 40 Ed. 3. 26. Grendon's Case Plow Com. 498. a. A Faculty or Dispensation is of such force that if a Clerk be presented to a Benefice with Cure and be Admitted Instituted and Inducted into the same so that the Church is full of him if afterwards he be presented to another Benefice Incompatible or elected to a Bishoprick and before he is Instituted to the second Benefice or be created Bishop he obtain a Faculty or Dispensation to retain the first Benefice Perpetuae Commendae titulo that is for his life that Faculty or Dispensation shall be of such effect that the former Benefice shall not be void by acceptance of the Second or by promotion to the Bishoprick but he shall remain full and perfect Incumbent of the first Benefice during his life In the time of H. 6. when Henry Beaufort Great Uncle to the King being Bishop of Winchester was made a Cardinal and after that purchased from the Pope a Bull Declaratory that notwithstanding he were made Cardinal yet his Bishoprick of Winchester should not be void but that he might retain the same as before yet it was held That the See of Winchester was void by assuming the Cardinalship which
and used in part by several Nations he compiled them into Volumes and called them Jus Canonicum and Ordained that they should be read and expounded in publick Schools and Universities as the Imperial Law was read and expounded and commanded that they should be observed and obeyed by all Christians on pain of Excommunication and often endeavoured to put them in execution by Coercive power and assumed to himself the power of interpreting abrogating and dispensing with those Laws in all the Realms of Christendom at his pleasure so that the Canonists ascribe to him this prerogative Papa in omnibus jure positivis in quibusdam ad jus divinum pertinentibus dispensare potest quia dicitur omnia Jura habere in Scrinio pectoris sui quantum ad interpretationem dispensationem Lib. 6. de Const cap. licet About the time of An. 25. Ed. 1. Simon a Monk of Walden began to read the Canon Law in the University of Cambridge vid. Stow and Walsingham in that year Also the Manusc libr. 6. Decretal in New-Colledge Library at Oxford hath this Inscription in the Front Anno Domini 1298. which was in the year 26 Ed. 1. 19. Novembr in Ecclesia Fratrum Praedicator Oxon. fuit facta publicatio lib. 6. Decretal whereby it appears when it was that the Canon Law was introduced into England But the Jurisdiction which the Pope by colour thereof claimed in England was a meer Usurpation to which the Kings of England from time to time made opposition even to the time of King H. 8. And therefore the Ecclesiastical Law which Ordained That when a man is created a Bishop all his Inferiour Benefices shall be void is often said in the Bishop of St. David's Case in 11 H. 4. to be the Ancient Law of England And 29 Ed. 3. 44. a. in the Case of the Prebend of Oxgate it is said That though the Constitution which ousts Pluralities began in the Court of Rome yet a Church was adjudged void in the Kings Bench for that cause or reason whereby it appears That after the said Constitution was received and allowed in England it became the Law of England Yet all the Ecclesiastical Laws of England were not derived from the Court of Rome for long before the Canon Law was authorized and published in England which was before the Norman Conquest the Ancient Kings of England viz. Edgaâ— Aethelstan Alfred Edward the Confessor and others have with the Advice of their Clergy within the Realm made divers Ordinances for the government of the Church of England and after the Conquest divers Provincial Synods have been held and many Constitutions have been made in both Realms of England and Ireland All which are part of our Ecclesiastical Laws at this day Vid. Le Charter de William le Conqueror Dat. An. Dom. 1066. irrot 2 R. 2. among the Charters in Archiv Turris Lond. pro Decano Capitulo Lincoln Willielmus Dei gratia Rex Anglorum c. Sciatis c. Quod Episcopales Leges quae non bene nec secundum Sanctorum Canonum praecepta usque ad mea tempora in Regno Angliae fuerunt Communi Concilio Episcoporum meorum caeterorum Episcoporum omnium Principum Regni mei emendandas judicavi c. See also Girald Cambrens lib. 2. cap. 34. in the time of King H. 2. a Synod of the Clergy of Ireland was held at the Castle wherein it was Ordained Quod omnia divina juxta quod Anglicana observat Ecclesia in omnibus partibus Hyberniae amodo tractentur Dignum enim justissimum est ut sicut Dominum Regem ex Anglia divinitus sortita est Hybernia sic etiam exinde vivendi formam accipiant meliorem But the distinction of Ecclesiastical or Spiritual Causes from Civil and Temporal Causes in point of Jurisdiction was not known or heard of in the Christian World for the space of 300 years after Christ For the causes of Testaments of Matrimony of Bastardy and Adultery and the rest which are called Ecclesiastical or Spiritual Causes were meerly Civil and determined by the Rules of the Civil Law and subject only to the Jurisdiction of the Civil Magistrate But after the Emperours had received the Christian Faith out of a zeal they had to honour the learned and godly Bishops of that time they singled out certain special Causes wherein they granted Jurisdiction unto the Bishops viz. in Causes of Tithes because they were paid to men of the Church in Causes of Matrimony because Marriages were for the most part solemnized in the Church in Causes Testamentary because Testaments were many times made in extremis when Church-men were present giving Spiritual comfort to the Testator and therefore were thought the fittest persons to take the Probats of such Testaments Howbeit these Bishops did not then proceed in these Causes according to the Canons and Decrees of the Church for the Canon Law was not then known but according to the Rules of the Imperial Law as the Civil Magistrate did proceed in other Causes so that the Primitive Jurisdiction in all these Causes was in the Supream Civil Magistate and though it be now derived from him yet it still remaineth in him as in the Fountain CHAP. XII Of Churches Chappels and Church-yards 1. Ecclesia what that word imports the several kinds thereof 2. Possessions of the Church protected by the Statute-Laws from Alienation the care of the Emperour Justinian in that point 3. To whom the Soyl and Freehold of the Church and Church-yard belong to whom the use of the Body of the Church to whom the disposal of the Pewes or Seats and charges of Repairs 4. The Common Law touching the Reparation of Churches and the disposal of the Seats therein 5. The same Law touching Isles Pictures Coats of Arms and Burials in Churches also of Assaults in Churches and Church-yard 6. The penalty of quarreling chiding brawling striking or drawing a Weapon in the Church or Church-yard 7. Where Prescription to a Seat in a Church is alledged the Common Law claims the cognizance thereof 8. The Immunities anciently of Church-Sanctuary as also of Abjuration now abrogated and taken away by Statute 9. The defacing of Tombs Sepulchres or Monuments in Churches punishable at the Common Law also of Right to Pewes and Seats in the Church 10. The Cognizance of Church-Reparations belongs to the Ecclesiastical Court 11. A Prohibition upon a surmize of a custome or usage for Contribution to repair a Church 12. Church-wardens are a Corporation for the Benefit not for the Prejudice of the Church 13. Inheritance cannot be charged with a Tax for Repairs of the Church nor may a perpetual charge be imposed upon Land for the same 14. When the use of Church-Books for Christnings first began 15. Chappel the several kinds thereof The Canonists Conceits touching the derivation of that word 16. Where two Parochial Churches are united the charge of Reparations shall be several as before 17. The Emperour Justinian's
surmized they had a Custome to place a Clerk there by the Election of the Vestry the Parson sued them in the Ecclesiastical Court to have his Clerk placed there according to a late Canon made It was the Opinion of the Court that it was a good Custome and that the Canon could not take it away wherefore a Prohibition was granted 16. A Bishop Archdeacon Parson are Spiritual Corporations at the Common Law for the Parson and this is meant also of the others hath two Capacities The one to take to him and his Heirs the other to him and his Successors and in that respect he is seized jure Ecclesiae If J. S. be Parson of D. and Land be granted to J. S. Parson and his Successors and to J. S. Clerk and his Heirs in this case he is Tenant in Common with himself 17. Note That it was agreed in Bushie's Case That if a Parsonage be Impropriate and the Vicarage be endowed and difference be between the Parson and the Vicar concerning the Endowment that shall be tried by the Ordinary for the Persons and the Cause are both Spiritual And there the Vicar sues the Parson for Tithes and suggests the manner of Tithing and prays a Prohibition and it was granted and after upon solemn Argument Consultation was granted insomuch that the manner of Tithing did not come in question but the Endowment of the Vicarage only for that is the elder Brother as the Lord Coke said This was cited to be Adjudged by Coke Also there is much difference between Prebends and Parsons for it was Adjudged in Watkinson and Man's Case That a Lease made by a Prebend is good by the Statute of 32 H. 8. for he is not excepted but only Parsons and Vicars and so it was said it had been Adjudged in Doctor Dale's Case 18. It will not be denied but that the Clergy of England have had in all Ages certain Priviledges which the Laity never pretended to To which purpose there have been Laws Enacted and Cases Ruled by persons learned in the Laws In An. 22 H. 8. cap. 5. it is Enacted That the decayed Bridges in every County where it cannot be known who in right ought to repair the same shall be repaired by the Inhabitants of the said County Town Corporate or Riding where the Bridge is by the Assessment of the Justices of Peace who may appoint Collectors to levy the same by Distress Now the Question is Whether the Parsons and the Vicars may be charged by the general word of the Inhabitants and Distress taken on their Spiritual Livings In order to a Resolution of this Question it must be premised That it is most evident that the Clergy are by the Common Law of this Kingdom a divided Estate both for their Persons and Spiritual promotions from the Laity of this Land 1 For their Persons Fitz. N. B. fo 175. That Clerks shall not be chosen Bayliffs or Beadles for the Lands in their possessions although the Land before it came to the hands of the Clerk was charged therewith by tenure 2 A Clerk arraigned before a Temporal Judge for Felony may plead the Jurisdiction of the Court The Clergy-men by reason of their Resiance are not bound to the Leet nor to follow Hugh and Cry 3 That their Spiritual Livings are also discharged from the general charge of this Realms Laity appears by the Register fo 260. F. N. B. fo 227. That Spiritual persons shall not be charged to pay Toll Pontage or Murage but may discharge themselves by Writ Also the Sheriff who by the Law is the King 's general Officer to serve Processes in every County may not intermeddle with the Clergy in respect of their Spiritual promotions but return Quod Clericus est Beneficiatus in Episcoparu non habet Laicum foedum in baliva mea and then the Process must be to the Bishop as appears 34 H. 6. 21 H. 6. This Priviledge is confirmed to them by Magna Charta and divers Grants and Statutes viz. Articulis Cleri 9 Ed. 2. cap. 9. Likewise no Distress shall be taken in the Ancient Donations of the Church The like Grant is made unto them by King Ed. 1. 24. Protestation 2. That the Sheriff or Minister of the King shall not meddle with the Goods Chattels or Carriages of the Clergy and in Purveyors 12. An. 14 Ed. 3. there is a Statute that Purveyors shall not meddle with the Clergy c. Ed. 1. cap. 1. 1 R. 2. cap. 2. 1 H. 4. cap. 3. Statute Spiritualties 2. Priviledges Grants Immunities of the Clergy are confirmed So that it appears both by the Common Law and the Statutes that the Clergy are not to be burthened in the general charges with the Laity of this Realm neither to be troubled or incumbred unless they be especially named and expresly charged by some Statute And divers Statutes heretofore expressing themselves with the like general words have never been expounded to extend to the Clergy as by the usage of them appears by the Statute of Winton An. 13 Eliz. 1. Again the people dwelling in a Hundred where any Robbery is committed shall either bring forth the Felon or agree with him that is robbed yet hath it never been taken that Parsons and Vicars should be Contributors thereunto yet the words Gentes demorantes viz. the People dwelling are as general words as Inhabitants In the same Statute there are the like general words Watching c. yet the Clergy thereby are never charged Also the Statute made for the High-ways An. 2 3. P. M. chargeth every Housholder yet this general Housholder hath never been taken by usage to charge the Clergy viz. the Parson or Vicar Fitz. in his Nat. Bre. fol. 131. saith that a Clerk being bound in a Statute-Merchant shall not be taken by his Body And the Writ founded upon the Statute-Staple 27 Ed. 3. cap. 9. hath this special Proviso Si Laicus Sit capias Also the Statute whereupon this Writ is founded is general and no Exception made at the Clergy And 33 H. 8. cap. 2. there is a Statute that chargeth all Resiants within any Countyâ— where there is no Goal to be Taxed by the Justices for the Building of one yet have the Clergy never been charged by reason of these general words Resiants c. 1 Ed. 1. 18 Ed. 3. 4. 1 R. 2. 1. For these Reasons it is supposed that the general words in the aforesaid Question will receive in Law the like Exposition as the other said recited Statutes have done And the Parsons and Vicars shall not thereby be charged the rather for that the Statute sets down the Inhabitants of the County where the certain persons that should do it cannot be known which is to be intended such Inhabitants as are chargeable to Pontage which Spiritual persons are not but excepted as aforesaid CHAP. XVIII Of Vicars Vicarages and Benefices 1. The Vicar and Vicarage described according to Law 2. What
with the Parson for his Tithes for one year and it may be without Deed by Brownlowe That a Prohibition shall be awarded and that there are divers Presidents in this Court But otherwise if it be for more years it is not good without Deed And in Skinner's Case it was Ruled by the Court upon a Surmize to have a Prohibition That if it be proved before one of the Judges within the Six months although that it be not Recorded till after the Six months yet it is well enough and good also although that the Proof be in the Vacation Pasch 43 Eliz. B. R. Pottenger against Johnson 62. A Parson preferrs his Bill for Tithes of Hasle Holly Willow Whitethorn c. a Prohibition was moved because they were of 21 years growth and more And by the common Custome in Hampshire they were used for Timber to build and repair their Ploughs and cited Pasch 14 Jac. C. B. Rot. 1918. Cufflye's Case against the Parson for Holly Willows and Maple and a Prohibition was awarded And Hubbard said That in Cumberland Beech was used for Timber and the use of the Countrey for scarcity of other Trees will alter the Case The Parson Libels for Tithes of Hay c. The Parson said that the Custome of the Parish hath been That he that hath Corn within the Parish ought to reap the Corn and also the Tithes of the Parson and to make them into Cocks and to preserve them until the Parson shall carry them away And a Prohibition was granted for although that the Parishioners ought de jure to reap the Corn as it was agreed Trin. 28 Eliz. B. R. yet he is not bound to guard the Tithes of the Parson c. But if the Parson does not carry them away in convenient time an Action on the Case lies against him Pasch 20 Jac. B. R. Rot. 286. there such an Action was brought by Wiseman against the Rector of Landen in Essex for not accepting c. of the Tithes of Cheese 63. B. brought an Action upon the Case That P. sued for Tithes and recovered because there was nisi Testis singularis to prove the payment when in truth he had paid it before Two but now one was dead and by the Court Resolved That an Action doth not lie because the Cause was meerly Spiritual And for that it differs from 8 E. 4. 13. for there the Composition was a Temporal Contract although it was for Tithes 64. G. moves for a Prohibition and Surmizes that the Parishioners had Compounded with the Parson for the Tithes but yet the due Tithes were severed and exposed and the Parson takes and carries them away the Parishioner meets him and takes them from him And upon that the Parson sues in the Ecclesiastical Court And a Prohibition was awarded 65. W. Sues P. in the Ecclesiastical Court for not setting out the Tithes of two Acres P. prays a Prohibition because he had set out the Tithes of one Acre in specie and that a party unknown had taken them and for the other he suggests a Modus Decimandi for 2 s. 6 d. And upon that Issue is joyned and the Witnesses said That for a long time as they heard say the Occupiers of that Farm whereof that Acre c. had used to pay annually to the Parson three shillings for all Tithes and agreed by the Court 1 As to the first Quod Prohibitio stet for after the Tithes are severed if a Stranger takes them away the Parson hath his Remedy against him at Common Law and shall not sue the Parishioner in the Spiritual Court. 2 It was agreed That a Proof by hearsay was good enough to maintain the Surmize within the Statute of 2 Ed. 6. But as to the other Acre Popham held That the Modus Decimandi is not well proved but Fenner and Yelverton the contrary For by that appears the Parson is not to have Tithes in specie and for that had not any cause to Sue for them in the Spiritual Court 66. W. Sues P. in the Ecclesiastical Court for Tithes of a Dove-house P. upon suggestion had a Prohibition but he did not prove his Suggestion within the Sixth month W. takes issue upon the Suggâ—stion and it is found against him and yet he prays Costs by the Statute of 2 Ed. 6. for failure of Proof within the Six months But by the Court adjudged that he shall not have it for-â—he hath surceased his time to take advantage of that and he can never have a Consultation Frgo He shall not have double Costs Read the words of the Statute 67. Parson preferrs his Bill for Tithes of Corn and alledges that time out of mind c. in that Parish they have used to allot the Tâ—nth-Shock wherâ—upon the Parishioner suggests That the Parishioners and all those who have Estates c. have used only to set out the Tenth-sheaf for Tithes and had a Prohibition The Parson prays a Consultation but it was denied And Resolved by the Court That the Parson might Sue for a Modus Decimandi in the Ecclesiastical Court 2 R. 3. 3. a. But if the Parishioner deniâ—s that they ought to surcease and a Prohibition lies and that shall be tried at Common Law 68. A. Libels in the Ecclesiastical Court for the Tithes of Pilchards taken in the Sea And now the party had a Prohibition upon a Surmize that the Custome there is That the Fisher-Boat hath one Moity of the Fish and the Fishermen the other moity And that the Owner hath used to pay the Tenth of his Moity in discharge of all c. And it was held by the Court to be a good Surmize for by the Common Law he cannot have the Tithes of Fishes taken in the Sea because it is not within any Parish and then when the Parson by the Custome ought to have the Tithes of them he ought to take them according to the Custome And that the Tenth of the Moity may be a good discharge of the whole And the parties went to issue upon the Custome in Cornwal 69. By the Court Popham being absent it is clear That an Agreement betwixt the Parson and one of the Parishioners that he shall have his own Tithes for years it is good enough without Deed but otherwise if it had been for life And it is a better way to plâ—ad that as an Agreement and not as a Lease 70. A Prohibition for a Suit in the Ecclesiastical Court for Tithes of Rent in London It was held by the Court That by 33 H. 8. cap. 12. the Suit ought to be before the Major of London by complaint in Writing and not by word of mouth only in nature of a Monstrans de droit declaring all the Title And if the Suit be in the Ecclesiastical Court for Tithes in London that Court may grant a Prohibition and yet that Court hath
the different conditions of the persons of whom they were begotten As when they were begotten by persons of a single and unmarried Estate and of such as were kept as Concubines the Civil Law called them Filii Naturales if begotten of single Women not design'd for Concubines for satisfaction of present Lust then they were called Spurii if begotten of such as the Law styles Scorta or common Harlots by publick profession than they were called Manzeres if begotten of Married Women then they were called Nothi if begotten between Ascendents and Descendents or between Collaterals contrary to the Divine prohibition then they are called Incestuosi 6. Bastardy so stains the Blood that the Bastard can challenge neither Honour nor Arms and so disables him that he cannot pretend to any succession to inheritance The Temporal and the Ecclesiastical Laws with us do not differ as to matter of Bastardy but something as to the prosecution thereof The Ecclesiastical Law brings it two ways to Judgment Incidently and Principally the Common Law makes two sorts thereof General and Special Incidently at the Ecclesiastical Law when it is pleaded in Bar to a claim of something in right of Nativity Principally when by reason of some slanderous and reproachful speeches it is brought before the Court as the principal matter in Judgment to be alledged and proved that thereupon Sentence may be pronounced accordingly by the Ecclesiastical Judge Ad Curiam enim Regiam non pertinet agnoscere de Bastardia General Bastardy at Common Law is so called because it is in gross objected in Barr against a Man to disappoint him in the Principal matter of his Suit Which because it is of Ecclesiastical Cognizance is sent by the Kings Writ to the Ordinary to enquire whether the Party charged with Bastardy were born in or out of Lawful Matrimony And as the Ordinary finds the truth of the matter upon due examination so he pronounceth accordingly in his Consistory whereof he returns Certificate to the Temporal Courts Special Bastardy at the Common Law seems to be only that where the Matrimony is confest but the Priority or Posteriority of the Nativity of him whose Birth is in question is controverted General Bastardy ought to be Tryed by the Bishop and not by the Country But Bastardy in this sense cannot be tryed by the Ordinary otherwise than by vertue of the Kings Writ on some Suit depending in the Temporal Court When Issue is joyn'd on Bastardy before it be awarded to the Ordinary to Try it Proclamation thereof is made in the same Court and after Issue it is certified into Chancery where Proclamation is made once a Month for three Months and then the Lord Chancellour certifies it to the Court where the Plea is depending and after it is Proclaimed again in the same Court that all such whom the said Plea concerns may appear and make their Allegations before the Ordinary whose Certificate of Bastardy is nothing to the purpose unless it come in by Process at the Suit of the Parties And this Bastardy ought to be certified under the Seal of the Ordinary for it is not sufficient to certifie it under the Seal of the Commissary And although the Defendant be certified a Bastard by the Ordinary yet the Certificate shall lose its force if the Plaintiff be afterwards Nonsuit for then the Certificate is not of Record In the Case of Elborough against Allen it was said by Crook that for calling one Bastard generally there is not any sufficient Ground of Action at the Common Law but if there be any special Loss thereby it shall be a good ground of Action at the Comon Law as if a Man be upon Marriage or in treaty for the sale of Land whereby his Title is disparaged Doderidge Justice said That the word Bastard is generally of another Jurisdiction and belongs to the Ecclesiastical Court to determine what shall be Bastardy and their Judgement is given for the damage which the party had in his birth and for that their Entry is quia laesis est natalitiis And in this Case the Chief Justice said that generally to say J. S. is a Bastard J. S. hath not cause of Action given him thereby but if there be a Temporal cause averr'd the Common Law may proceed therein for though Originally Bastardy be of the Ecclesiastical Jurisdiction not Triable at the Common Law and therefore as in its general nature it is of the Spiritual Jurisdiction so being by its generality no ground of Action at the Common Law yet if one be to sue for a Childs part or sue for the Administration of his Fathers Goods and this be set forth in the Declaration it will maintain an Action at Common Law Doderidge Justice said That to say generally that one called him Bastard is not ground of Action if he doth not shew some special Loss thereby as when a Woman brings her Action and says that she was in Treaty of Marriage and that the Defendant called her Whore this will not maintain an Action unless she say withall that by reason of these words she lost her preferment but Chamberlain Justice said to call a Woman Whore is at this day a sufficient cause of Action for her for that it is punishable by the Statute he also further said that if a Man Libel in the Ecclesiastical Court that he hath Lands by descent and that J. S. call'd him Bastard they may not proceed there or if they do a Prohibition lies He further said that for calling a Man Bastard generally without special Loss alledged Action shall be maintained and Cited a Case in 6 Eliz. Dyer Where a Man recovered red great Dammages for that the Defendant had said that his Father was a Bastard And cited also one Nelson and Stokes Case in 5 Jac. where the Plaintiff did not alledge any special cause of Action and yet recovered 7. By the Civil Law such as were born in the beginning of the eleventh Month next after the decease of their Mothers Husband were to be accounted legitimate but such as were born in the end thereof were to be accounted Bastards Auth. Col. 4. yet the Gloss there relates a matter of Fact contrary to this Law and gives us an instance of a Widow in Paris who was delivered of a Child the fourteenth Month after her Husbands death yet the good repute of this Womans continency prevailed so much against the Letter of the Law that the Court Judg'd the causes of Child-birth to be sometimes extraordinary the Woman to be chast and the Child Legitimate Hoc tamen in exemplum trahi facile non oportet as the Gloss there concludes 8. By the Common Law if a Child be born but an hour after the solemnization of Marriage it shall be the Husbands though it were begotten by another Man who was not the Mothers Husband and may be the Heir of him who Married the Mother but a Day
account 10 Months and 40 Weeks or all one but by accident an Infant may be born after the 40 Weeks or before Si partus nascatur post mortem Patru qui dicitur Posthumus per tantum tempus quod non sit verisimile quod possit esse defuncti filius hoc probato talis dici poterit Bastardus 13. It is agreed on all hands that Bawardy is an Ecclesiastica Cause and of Ecclesiastical Cognizance and therefore if Bastardy be pleaded in disability of a plaintiff the saâ—◠〈◊〉 be tried by the Certificate of the Bishop whether it be in Real Action relating to Inheritance or Personal relating to 〈◊〉 otherwise where Action on the Case will lie But if it be pleaded that the Plaintiff was born at such a place before the Marriage solemnized and so he is a Bastard This the Common Law cals a Special Bastardy and shall be tried by Jury at the Common Law where the Birth is alledged So in the Duke of Suffolk's Case of Partition where Special Bastardy was pleaded and Issue thereupon taken the Trial was awarded to be by a Jury of London And where in an Action upon the Case brought for calling one Bastard the Defendant justified that he was a Bastard it was awarded that it should be tried by the Countrey and not by the Ordinary Which seems somthing Paradoxical that if Bastardy be pleaded in Disability of a Plaintiff then it shall be tried by the Bishops Certificate but if it be pleaded that the Plaintiff was born in such a place before the Marriage then by a Jury The former whereof is said to be a general Bastardy the other a special Bastardy whereas in truth they both seem to differ only in this that the former seems to be a general relating to the Plaintiffs condition in respect of his Disability the other seems to be a special relating to the circumstances of Place and Time of his Nativity but both referring to his Bastardy 14. If a man that is ordered by two Justices of the Peace to keep a Bastard-Child he being according to the said Order the reputed Father shall appeal from the said Order to the next Quarter Sessions according to the Stat. of 18. Eliz. and being there discharged and the said Order repealed shall yet afterwards at another Quarter-Sessions of the Peace upon re-examination of the matter be ordered according to the first Order in that case it hath been held by the Court that the second Sessions had no power to alter the Discharge made by the former Sessions v And in another Case it hath been resolved that before the Statute of 3. Car. c. 4. the Justices at the Sessions had no Authority to intermeddle in the Case of Bastardy till the two next Justices according to the Stat. of 18. Eliz. had made an order therein As also that by the Stat. 3. Car. the Justices of their several Limits are to make an Order in Case of Bastardy 15. C. commenced an Action in the Spiritual Court against W. for saying that he had a Bastard W. the Defendant alledged in the said Court that the Plaintiff was adjudged the reputed Father of a Bastard by two Justices of the Peace according to the Statute whereupon he spake the words The Spiritual Court accepted of his Confession but would not allow of his Justification whereupon he prayed a prohibition and it was granted It is not denied but that if the Spiritual Court try a thing that is of Temporal Cognizance a Prohibition may lie although all the Cause were originally Spiritual as was resolved in Kenns Case in which Case it was likewise resolved that where the Cause is Spiritual there the Spiritual Court hath Jurisdiction and in the Case between Banting and Lepingwell it was resolved that the Judges of the Common Law ought that is the word in the Report to give Faith Credit to the Proceedings of the Spiritual Court albeit it be against the Reason of their Law 16. If a man having a wife take another wife and hath Issue by her living the former wife such Issue is a Bastard for the second Marriage is void If a man marry one within the Degrees prohibited the Issue between them is not by the Common Law a Bastard until there be a Divorce for by that Law the Marriage is not till then void So it is although the Brother Marry the Sister If a Man hath Issue by A. and after Marries her yet the Issue is a Bastard at the Common Law An Ideot may consent to Marriage by the Common Law though he were an Ideot from his birth and his Issue by that Law is Legitimate If the Husband be castrated so that it is apparent that he cannot by any possibility beget any Issue and his Wife have Issue divers years after it shall be a Bastard although it be begotten under Marriage for that it is apparent that it could not be Legitimate 17. By the Law of the Land a Man cannot be a Bastard who is born after the Espousals unless there be some special matter in the case If a Woman be big with Child by A. and after A. Marry her and the Issue is born within the Espousals in this Case by the Common Law the Issue is a Mulier and not a Bastard So if a Woman be big with Child by one Man and after-wards another Marries her and after the Issue is born such Issue is a Mulier for that he is born under Espousals and cannot be held the Issue of him by whom she was with Child because that cannot be certainly known and so it is although the Issue were born within three days after Marriage 18. If a Woman Covert hath Issue in Avoutrie yet if the Husband be able to get a Child and be infra quatuor maria the Issue is no Bastard If a Woman Elope and live in Avoutrie with another Man during which Issue is born in Avoutrie yet it is a Mulier by the Common Law But then the Husband must be infra quatuor maria so as that by intendment he might come to his Wife otherwise the Issue is a Bastard But if a Woman hath Issue her Husband being beyond sea for 7 years together before the Issue was born such Issue is a Bastard at the Common Law If a Feme Covert hath Issue her Husband being beyond Sea for 6 years before the Issue is born it is a Bastard at the Common Law If a Woman hath Issue her Husband being within 14 years of age the Issue is a Bastard at the common Law quaere 19. If A. hath Issue by B. and after they intermarry yet the Issue is a Bastard by the Common Law but it is a Mulier by the Civil Law If the Parents be Divorced causa Consanguinitatis they being ignorant thereof at their Marriage the Issues they
was a common Pimp and notorious which he would justifie After Verdict for the Plaintiff Littleton the King's Sollicitor moved in Arrest of Judgment that these words are not Actionable for it is a meer Spiritual Slander as Whore or Heretick and punishable in the Spiritual Court and not at the Common Law and he said that divers times Suits have been in the Spiritual Court for such words and Prohibitions prayed and never granted vid. 27. H. 8. 14. But to say that he keeps a Bawdy house is presentable in the Leet and punishable at the Common Law Ward è Contra because it is spoken of one of an honourable profession viz. a Souldier and trenches on his reputation to be taxed with such a base Offence and he said that such offences have been divers times punished in London by corporal punishment but it was answered that was by Custom and there the calling one Where is Actionable Jones Justice held that the Action lay not and all the Justices agreed that the exposition and averment that Pimp is known to be a Name for a common Bawd is good Croke and Berkley agreed that the words are very slanderous and more than if he had call'd him Adulterer or Whoremonger c. aud may be indicted and punished for it corporally as tending to the breach of the Peace and rule was given that Judgement should be entred c. But was afterwards stayed 17. Suit being in the Ecclesiastical Court for calling a mans Wife Welch Jade and Welch Rogue Sentence being there in the Arches the Defendant appealed to the Court of Audience and in the Appeal mentioned the former words and in the libel was interlined and a Welch Thief and hereupon a Prohibition was prayed and granted unless cause were shewn by such a day to the contrary For it was held clearly that for the word Welch Thief Action lies at the Common Law and they ought not to sue in the Spiritual Court And for the other words it was conceived upon the first Motion they ought not to sue in the Spiritual Court for they be words only of Heat and no Slander But it was afterwards moved and shewn that the said words A Welch Thief were not in the first Libel nor in the Appeal at the time of the Appeal but were interlined by a false Hand without the privity of the Plaintiff in the Ecclesiastical Court and that upon Examination in that Court it was found to be falsly inserted and ordered to be expunged And that the words Welch Jade were shewn in the Libel to be expounded and so known to be a Welch Whore which being a Spiritual Cause and examinable there it was therefore prayed that no Prohibition should be granted and if it were granted that a Consultation should be awarded And of this Opinion was all the Court that the words and a Welch Thief being unduly interlined and by Authority of the Ecclesiastical Court expunged and in that Court Jade is known and so expounded for a Whore our Law gives Credence to them therein and especially being after two Sentences in the Spiritual Court This Court will not meddle therewith Wherefore Consultation was granted if any Prohibition was issued forth quia improvide And Rule given that if a Prohibition was not passed that none should be granted 18. It was moved for a Prohibition by Harris Serjeant to the Court of Audience because that the Plaintiff was sued there for saying to one Thou art a common Whore and a base Quean and Harris said that a Prohibition had been granted in this Court for saying to one that she was a pimperly Quean And it was the Case of Man against Hucksler And Finch said though the words are not Actionable in our Law yet they are punishable in the Spiritual Court For the word Quean in their Law implies as much as Whore But Hobart said that this word Quean is not a word of any certain Sense and is to all intents and purposes an Individuum Vagum and so incertain 19. In an Action upon the Case that whereas he is Parson of D. and a Preacher the Defendant Slandered him in haec verba Parrett is a lewd Adulterer and hath had two Children by the Wife of I. S. I will cause him to be deprived for it By the Court the Action doth not lie For the Slander is to be punished in the Ecclesiastical Court And so awarded Quod Quer. nil cap. per. bill 20. D. had sued T. in the Ecclesiastical Court for this viz. That whereas she was of good fame and kept a Victualling House in good Order that the said T. had published that D. kept an house of Bawdry T. now brought a Prohibition and by the Court well for D. might have an Action for that at the Common Law especially where she kept a Victualling house as her Trade Note 27. H. 8. 14. And by the Justices that the keeping of a Brothel-house is enquirable at the Leet and so a temporal Offence And so was the opinion of the Court Tr. 7. Car. B. R. Mrs. Holland's Case 21. W. sued L in the Ecclesiastical Court for a Defamation and had Sentence L. appeals and depending the Appeal comes a Pardon which relates to the Offence and pardons it then L. deferrs his Appeal and for that W. had costs taxed him And now L. prayed a Prohibition because he deferr'd his Appeal because of the Pardon which had taken away the Offence And by the Court in that Case after the pardon the inferiour Court cannot tax Costs but it was urged that the superiour Courts might tax Costs upon the desertion of the Appeal which is an Offence after the Pardon But it was answered on the other side that it was in vain to prosecute the Appeal when the Offence it self is pardoned The words were Thou art a Pander to Sr. Hen. Vaughan And there was much debate if they were actionable at Common Law yet it was agreed that a Suit may be brought for them in the Spiritual Court as for calling one Whore Bawd or Drunkard But otherwise by Jones if he had said That he was Drunk for then a Prohibition lies And it was ruled in 6. Jac. B. R. in the Case of Cradock against Thomas a Prohibition was granted in a Suit for calling one Whoreson And in Weeks Case a Prohibition in a Suit for calling one Knave 22. E. and M. being reputed Church-wardens but they never took any Oath as the Office requires present a Feme Covert upon a common report for Adultery c. And the Husband and Wife libel against them in the Ecclesiastical Court for that Defamation And when Sentence was ready to be given for them the Church-wardens appeal to the Arches where the presentment was proved but by one Witness they sentenced the Baron and Feme But now Ward Serjeant moved for a Prohibition but it was denied by the Court for they were Plaintiffs first And also it is a Cause which this
Court had not any Cognizance of 23. Note upon evidence to the Jury Resolved by the Court that an Action upon the Case for words lies against an Infant of Seventeen years of age For malitia supplet aetatem And it is said at the Common Law that if a Man Libel in the Ecclesiastical Court against one for saying certain words of him which he will maintain in an Action upon the Case at Common Law a Prohibition lies 24. If a Man Libels in the Ecclesiastical Court against one for saying that he is a Witch or the Son of a Witch although no Action lies for that at the Common Law yet no Prohibition shall be granted for peradventure he may have some Spiritual prejudice thereby if he should be the Son of a Witch as that he cannot be a Priest or the like for it seems all the force of the words consists in the last words they being spoken in the disjunctive If a Parson of a Church call A. B. Drunkard upon which A. B. answers thou lyest if the Parson sue A. B. in the Ecclesiastical Court for giving him the lye a Prohibition lies for that the Cause for which he gave him the lye is not Spiritual but depending on a Temporal thing precedent But if a Man call a Minister Knave he may be sued for that in the Ecclesiastical Court and no Prohibition lies If one Man says of another that he will not hear Sermons made by those who have been made Ministers by Bishops he may be sued for that in the Ecclesiastical Court and no Prohibition shall be granted If a Man says of another that he keeps a Bawdy house and is sued for it in the Ecclesiastical Court although he might have an Action at Common Law yet the Ecclesiastical Law hath a concurrent Jurisdiction in this and the words are mixt for which reason no Prohibition lies And if one says of another that he is a Pander he may be sued in the Ecclesiastical Court for that the signification of that word is well known and sounds to a Spiritual Defamation Or if a Man says to another Thou art a Cuckoldly Knave and for that he and his Wife sue him in the Ecclesiastical Court for a Defamation no Prohibition lies for that these words amount to a Spiritual Defamation viz. that his Wife was incontinent in this Case a Prohibition was denied Husband and Wife were Divorced for Adultery à mensa thoro mutua cohabitatione and as one of the Counsel said de omnibus Matrimonialibus obsequiis but the Counsel of the other party denied that and after the Wife sued in the Ecclesiastical Court a Stranger for Defamation and Sentence there given for her and penance enjoyn'd to the party Defendant and costs of Suit assessed for the Plaintiff and afterwards the Defendant appeals and after the Husband of the Wife releases all Actions and that Suit and all appertaining thereunto and the Defendant pleaded that Release and they remitted back the Suit to the inferiour Court again and now Coventry Recorder of London prayed a Prohibition for that notwithstanding the Divorce they continued Husband and Wife and therefore the Release of the Husband should barr the Wife from having Execution of the Sentence and of the Costs 44 El. In this Court between Steevens Administrator of one Steevens and Totte the Case was That after a Divorce for Adultery of the Husband à Mensa Thoro the Woman sued in the Ecclesiastical Court for a Legacy devised to her by the Testator and the Defendant pleaded a Release thereof from the Husband and thereupon a Prohibition was granted and he shew'd that president in Court but the President did not comprehend the Divorce But Doderidge said he well remembred when that Case was argued and the parlance then was about the Divorce Wentworth it seems that no Prohibition shall be granted Hill 7. Jac. in this Court A Suit was commenced in the Ecclesiastical Court by two Church-wardens and the Defendant there pleaded the Release of one of them and thereupon a Prohibition was here granted and after a consultation was granted for that they shall try that having cognizance of the Principal and in this Case the Release is after the appeal and therefore it may not be pleaded upon the appeal for the Judges in the appeal have no power but to examine the former Sentence and not any collateral matter Coventrie I agree the Case of the Church-wardens for that the Release of one is not any Barr in Law for 38. Elâ—z it was here resolved between Methon and Winns that a gift by the Church-wardens without the Assent of the Sidemen or Vestry is void but it is otherwise here for here the Release of the Husband is sufficient to discharge the Execution of that Sentence the which is all that we demand 10. lâ— 3. such Divorce is not any Barr of Dower The Court seemed to incline that no Prohibition should be granted for that the Wife in such Case may be sued alone without the Husband by the Ecclesiastical Law and this is matter meerly Spiritual viz. Defamation and therefore we have nothing to do therewith and the Release of the Husband shall not discharge the Suit of the Wife which is only to restore her to her Credit and Reputation which was impeached by the other and the Costs of Suit is not for any Dammage but meerly for the Charge of the Suit and therefore the Suit being not discharged the Costs shall remain also and this Case is not like the fore-cited Case of Stephens for the thing for which that Suit was was originally a Legacy due to Husband and Wife and therefore there the Release of the Husband was a good discharge but here was no duty in the Husband originally Ergo c. Curia advisare vult In Palmer and Thorps Case it was resolved that Defamation in the Ecclesiastical Court ought to have three Incidents 1 That the matter be meerly Spiritual and determinable in the Ecclesiastical Court as for calling one Heretick Schismatick Advowterer Fornicator 2 It ought to concern matter meerly Spiritual only for if it concern any thing determinable at common Law the Ecclesiastical Judge shall not have Cognizance of it See for this 22. E. 4. 20 the Abbot of St. Albons Case 3 Though the thing be meerly Spiritual yet he which is defamed cannot sue there for amends or dammages but the Suit there ought to be for punishment of the offender Pro salute animae For this see Articulis cleri Circumspecte agatis and Fitz. 51 52 53. but yet the Plainshall recover Costs there and there if the Defendant to redeem his Penance agree to pay a certain sum the Party may sue for this there and no Prohibition lies in that Case In a Case of Prohibition between M. and M. in the Ecclesiastical Court the Case was a Suit was there for Defamation by the Wife of the
and only Six in the other In the First of these Marriage was prohibited the time of Lent and three weeks before the Feast of St. John the Baptist and during the time between Advent and Epiphany At Sidon in the Twentieth year of the Emperour Anastasius a National Council of 80 Bishops was Assembled by the procurement of Xenaeas Bishop of Hierapolis for undoing the Council of Chalcedon which as far as in them lay they did accordingly At Aurelia that is Orleance in France in the 22 d year of Anastasius and under the Reign of Clodoveus King of France were convened 32 Bishops on purpose to settle some Order in Ecclesiastical Discipline which by reason of the irruption of Barbarous people into the Countrey of France had been brought into great disorder At Gerunda and Caesaraugusta in Spain were Two Councils under Theodoricus King of Gothes then Reigning in Spain In the former of these were only Seven Bishops convened who made some Constitutions chiefly about Baptism In the latter were Eleven Bishops and they in opposition to Supersitition and the Manichaean Hereticks prohibited Fasting on the Lords day At Rome in the Sixth Century by the Mandate of Theodoricus King of Gothes Reigning in Italy a Council was Assembled by Hormisda Bishop of Rome wherein the Error of Eutyches is damned de novo and Ambassadours sent to the Emperour Anastasius and to the Bishop of Constantinople to divert them from that Error At Constantinople in the same Century under the Emperour Justinus was another Council convened wherein many great Accusations were exhibited against Severus Bishop of Antioch who was then condemned of Heresie and afterwards Banished by the Emperour At Toledo in the same Century was a Second Council assembled partly for renewing Ancient Constitutions and partly for making New in order to Ecclesiastical Discipline By the first Canon of this Second Council of Toledo Marriage was tolerated to such of the Clergy as on their initiation to that Function protested that they had not the gift of Continency At Constantinople in the year 532. under Justinian was another Council consisting of One hundred Sixty five Bishops Menes being President or rather his Successor Eutychius Patriarch of Constantinople but Pope Vigilius who came to Constantinople to Summon the Emperour yet would not himself be present at the Council lest a seeming yielding to Eutychius might be prejudicial to his Supremacy The Emperour endeavoured to reconcile the Eutychians and the Orthodox for the Publick Tranquillity and therefore would have revoked the Articles concerning the condemning of Theodorus of Mopsuesta and of Theodoret against Cyrillus that was Anathematized But the Western Churches with Pope Vigilius constantly opposed it and confirming not only the Decrees Anathematizing those Hereticks with their Heresies of former Councils but also of Chalcedon The Errors of Origen also expunged which either denied the Divinity of Christ or the Resurrection of the Body or affirmed the Restitution of Reprohates and Devils Consult concering this Council Zonar in vit Justinian If this be that Council which some report to have been at Constantinople under the Emperour Justinian in the year 551. there appears above Twenty years difference in computation of Time This Council is said to have been occasioned chiefly for pacifying the Controversie between Eustochius Bishop of Jerusalem and Theodorus Ascidas Bishop of Caesarea Cappadocia touching Origens Books and Tenets as also for the determination of other Contentious Disputations In this Council a Question was moved Whether men that were dead might lawfully be Cursed and Excommunicated To which it was Answered That as Jâ—sias not only punished Idolatrous Priests while they were alive but also opened the Graves of them that were dead to dishonour them after their death who had dishonoured God in their life time Even so the Memorials of men might be accursed after their death who had disturbed the Church of Christ in their life At Orleans under Childebertus King of France were frequent Meetings and Assemblies of Bishops the 2 3 4 5 Councils whereby many Constitutions were made prohibiting Marriage to Priests and in the Fourth Canon of the Second Council Simony was damned At Overnie in France under Theodobertus King of France the Bishops who were present at the Councils of Orleans did assemble and Ordained That no man should presume to the Office of a Bishop by Favour but by Merit At Tours under Aribertus King of France a Council was held wherein Provision was made against such Poor as wandered out of their Parishes In this Council several Constitutions also were made relating to Bishops and the other Clergy in reference to Marriage At Paris a Council was held wherein order was taken concerning the Admission of Bishops to their Offices and that not to be by favour but with the consent of the Clergy and People At Toledo Assembled a Council of 62 Bishops where Recaredus King of Spain and the whole Nation of the West-Gothes in Spain renounced the Arrian heresie At Constantinople under the Reign of Maruitius a Council was held for trying the Cause of Gregorius Bishop of Antioch accused of Incest but declared to be Innocent and his Accuser scourged with Rods and Banished At Matiscon about the time of Pelagius the Second a Council was held wherein Command was given That none of the Clergy should Cite another having a Spiritual Office before a Secular Judge And that she who is the Wife of a man that becomes a Bishop or a Presbyter should after such Dignity become his Sister and he be changed into a Brother At Matiscon another Council was Convened under Gunthranns King of France in the 24 th year of his Reign wherein it was Ordained That Children should be Baptized at Easter and Whitsontide and that Secular men should reverence the Clergy At Rome in the year 595 and in the Thirteenth year of the Reign of the Emperour Mauritius was a Council assembled of 24 Bishops and 34 Presbyters wherein the first Four General Councils were confirmed and that for Ordination of men in Spiritual no Reward should be given or taken Before the Conclusion of this Sixth Century and precedent to the Councils last mentioned there were some other Councils of less moment such as Concilium Gradense Braccarense Lataranense Lugdunense Pictaviense Metense which being for the most part employed chiefly in damning Old Heresies and in contentious Disputations are here omitted At Rome in the year 607. under Phocas the Emperour a Council of 72 Bishops 30 Presbyters and 3 Deacons was Assembled In this Council the priviledge of Supremacy given by Phocas to the Roman Church was published And in the Eighth that is the last year of Phocas Boniface the Fourth assembled another Council at Rome wherein he gave power to the Monks to Preach Administer Sacraments hear Confessions to Bind and Loose and associate them in equal Authority with the
He may have a Writ out of Chancery to Absolve him 14 H. 4. fol. 14. And with this agrees 7 Ed. 4. 14. 2 When he is Excommunicated against the Law of this Realm so that he cannot have a Writ de Cautione admittenda then he ought Parere mandatis Ecclesiae in forma Juris i. e. Ecclesiastici where in truth it 's Excommunicatio contra Jus formam Juris i. e. Communis Juris But if he shew his Cause to the Bishop and request him to assoil him either because he was Excommunicate after the Offence pardoned or that the Cause did not appear in Ecclesiastical Cognizance and he refuse he may have as the Lord Coke sayes an Action sur le Case against the Ordinary and with this agrees Dr. Stu. lib. 2. cap. 32. fo 119. 3 If the party be Excommunicated for none of the Causes mentioned in the Act of 5 Eliz. cap. 23. then he may plead this in the Kings Bench and so avoid the Penalties in the Act. Note It was Resolved by the Court c. That where one is Cited before the Dean of the Arches in cause of Defamation for calling the Plaintiff Whore out of the Diocess of London against the Statute of 23 H. 8. and the Plaintiff hath Sentence and the Defendant is Excommunicated and so continues Forty daies and upon Certificate into Chancery a Writ of Excommunicato Capiendo is granted and the Defendant taken and Imprisoned thereby That he shall not have a Prohibition upon the Statute of 23 H. 8. for no Writ in the Register extends to it but there is a Writ there called De Cautione admittenda de parendo Mandatis Ecclesiae when the Defendant is taken by the Kings Writ De Excommunicato Capiendo and to assoil and deliver the Defendant 25. Where the Court of B. R. was moved for the Bailing of one who was taken by force of a Capias de Excommunicato Capiendo upon the Statute of 5 Eliz. cap. 23. and came to the Barr by a Habeas Corpus Williams Justice He that is taken by force of a Capis de Excommunicato Capiendo is not Bailable upon the Statute of 5 Eliz. cap. 23. which Statute doth only dispense with the Forfeiture of the Ten pounds and such a person is not Bailable and as to the other matter the same remains as it was before at the Common Law and the Statute of 5 Eliz. dispenseth only with the penalty of Ten pounds Yelverton Justice of a contrary Opinion and that in this case he is Bailable Flemming Chief Justice This is a Case which doth deserve very good consideration and that therefore he would consider well of it and also of the Statute of 5 Eliz. before he would deliver his Opinion Williams Justice clearly he is not Bailable in this Case Afterwards at another time it was moved again unto the Court to have him Bailed Yelverton Justice That he is Bailable and so was it Resolved in one Keyser's Case where he was taken by a Writ De Excommunicato Capiendo brought hither by a Habeas Corpus and upon Cause shewed he was Bailed by the Court de die in diem but neither the Sheriff nor any Justice of Peace in the Countrey can Bail such a one but this Court here may well Bail as in the Case before de die in diem It was further alledged here in this That in the Ecclesiastical Court they would not there discharge such a one being taken and Imprisoned by force of such a Writ De Excommunicato Capiendo without a great Sum of Money there given and a Bond entered into for the same otherwise no discharge there Yelverton Justice and the whole Court The Bishop ought not to 〈◊〉 such a Bond for the performance of their submission The Rule of the Court here in this was That upon their submission they shall be Absolved without any such Bond entred into Flemming Chief Justice They shall Absolve them and if they perform not according to their promise and undertaking they 〈…〉 again by the Writ De Corpore Excommunicato Capiendo but the Bishop is to take no Bond of them for their Absolution to perform their Submission the taking of such Bond by them being against the Law And as to the Bailment all the Judges except Williams Justice did agree that he was Bailable and so by the Order and Rule of the Court he was Bailed vid. Bulstr Rep. par 1. fo 122. Pasch 9 Jac. in Case of Hall vers King CHAP. XLIII Of the Statutes of Articuli Cleri and Circumspecte agatis 1. Several Statute-Laws relating to Ecclesiastical persons and things enacted under the Title of Articuli Cleri in the Ninth year of King Ed. 2. 2. Some other Statute-Laws touching Ecclesiastical matters made the Fourteenth year of King Ed. 3. 3. The Ratification and Confirmation of the 39 Articles of Religion The Subscription required of the Clergy 4. Certain Cases wherein a Prohibition doth not lie to the Ecclesiastical Courts according to the Statute of Circumspecte agatis made the Thirteenth of King Ed. 1. And in what case a Consultation shall be granted 1. THese are certain Statutes made in the time of King Ed. 1. and Ed. 2. touching Persons and Causes Spiritual and Ecclesiastical By the latter of these it is Enacted 1 That upon demand of Tithes Oblations c. under that Name a Prohibition shall not lie unless the demand be of money upon the Sale thereof 2 That upon debate of Tithes amounting to a Fourth part of the whole and arising from the Right of Patronage as also upon demand of a Pecuniary penance a Prohibition may lie Not so in case of demand of money voluntarily accorded unto by way of Redemption of Corporal penance enjoyned 3 That upon demand of money Compounded for in lieu of Corporal penance enjoyned for the Excommunication for laying violent hands on a Clerk a Prohibition shall not lie 4 That notwithstanding any Prohibition the Ecclesiastical Jurisdiction may take cognizance and correct in Cases of Defamation and the money paid for redeeming the Corporal penance thereon enjoyned may receive notwithstanding a Prohibition be shewed 5 That no Prohibition shall lie where Tithe is demanded of a Mill newly erected 6 That in cases of a Mixt cognizance as in the Case aforesaid of laying violent hands on a Clerk whereby the Kings Peace is broken and such like the Temporal Court may discuss the same matter notwithstanding Judgment given by the Spiritual Court in the case 7 That the Kings Letters may not issue to Ordinaries for the discharge of persons Excommunicate save only in such Cases as wherein the Kings Liberty is prejudiced by such Excommunication 8 That Clerks in the Kings Service if they offend shall be correct by their Ordinaries but Clerks during such time as they are in his Service shall not be oblig'd to Residence at their Benefices 9 That Distresses shall not be taken in the Ancient
Provisions Appeals to Rome holding Plea of Spiritual things thence arising Excommunications by his Bulls and the like were no other than Usurpations and Encroachments on the Dignity and Prerogative Royal. 14. In the Reign of King H. 8. An. 1539. the Abbots of Colchester Reading and Glastenbury were condemned and executed under colour so the Author expresses it of denying the Kings Supremacy and their rich Abbies seized on as Confiscations to the use of the King But when the Act of Supremacy came to be debated in the time of Queen Elizabeth it seemed a thing strange in Nature and Polity That a Woman should be declared to be the Supream Head on Earth of the Church of England but the Reformed party not so much contending about Words and Phrases as aiming to oust the Pope of all Authority within these Dominions fixed the Supream power over all Persons and Estates of what rank soever in the Crown Imperial not by the Name of Supream Head but tantamount of the Supream Governess In Queen Mary 's time there was an Act of Parliament made declaring That the Regal power was in the Queens Majesty as fully as it had been in any of her Predecessors In the body whereof it is expressed and declared That the Law of the Realm is and ever hath been and ought to be understood That the Kingly or Regal Office of the Realm and alâ— Dignities Prerogatives Royal Power Preheminences Priviledges Authorities and Jurisdictions thereunto annexed united or belonging being invested either in Male or Female are be and ought to be as fully wholly absolutely and entirely deemed adjudged accepted invested and taken in the one as in the other So that whatsoever Statute or Law doth limit or appoint that the King of this Realm may or shall have execute and do any thing as King c. the same the Queen being Supream Governess Possessor and Inheritor to the Imperial Crown of this Realm may by the same power have and execute to alâ— intents constructions and purposes without doubt ambiguity question or scruple any Custome use or any other thing to the contrary notwithstanding By the tenor of which Act made in Queen Mary 's Reign is granted to Queen Elizabeth as much Authority in all the Church-Concernments as had been eâ—ercised and enjoyed by King H. 8. and King Ed. 6. according to any Act or Acts of Parliament in their several times Which Acts of Parliament as our learned Lawyers on these occasions have declared were not to be considered as Introductory of a new power which was not in the Crown before but only Declaratory of an old which naturally belonged to all Christian Princes and amongst others to the Kings and Queens of the Realm of England And whereas some Seditious persons had dispersed a rumour that by the Act for recognizing the Queens Supremacy there was something further ascribed unto the Queen her Heirs and Successors viz. a power of administring Divine Service in the Church which neither by any equity or true sense of the words could from thence be gathered she thereupon makes a Declaration to all her Subjects That nothing was or could be meant or intended by the said Act than was acknowledged to be due to King H. 8. and King Ed. 6. And further declared That she neither doth nor will challenge any other Authority by the same than was challenged and lately used by the said Two Kings and was of Ancient time due unto the Imperial Crown of this Realm that is under God to have the Sovereignty and Rule over all persons born within her Realms and Dominions of what estate either Ecclesiastical or Temporal soever they be so as no other Forreign Power shall or ought to have any Superiority over them Which Declaration published in the Queens Injunctions An. 1559. not giving that general satisfaction to that groundless Cavil as was expected and intended the Bishops and Clergy in their Convocation of the year 1562. by the Queens Authority and Consent declared more plainly viz. That they gave not to their Princess by vertue of the said Act or otherwise either the ministring of Gods Word or Sacraments but that only Prerogative which they saw to have been given always to all godly Princes in holy Scripture by God himself that is to say that they should Rule all Estates and Degrees committed to their charge by God whether they be Ecclesiastical or Temporal and restrain with the Civil Sword the stubborn and evil doers And lastly to conclude this tender point There is in the said Act for the better exercising and enjoying of the Jurisdiction thus recognized to the Crown an Oath as aforesaid for the acknowledgment and defence of this Supremacy not only in the Queen but also her Heirs and Successors Likewise a power given to the Queen her Heirs and Successors by Letters Patents under the Great Seal of England To Assign and Authorize c. as she and they shall think fit such Persons being natural born Subjects to exercise use and occupy under her and them all manner of Jurisdictions Priviledges and Preheminencies in any wise touching or concerning any Spiritual or Ecclesiastical Jurisdiction within the Realms of England and Ireland or any other her Highness Dominions or Countries and to visit reform repress order correct and amend all such Errors Heresies Schisms Abuses Offences Contempts and Enormities whatsoever which by any manner of Spiritual or Ecclesiastical Power Authority or Jurisdiction or can or may lawfully be reformed ordered redressed corrected restrained or amended to the pleasure of Almighty God c. This was the Foundation of the High-Commission Court and from hence issued that Commission by which the Queens Ministers proceeded in their Visitation in the First year of her Majesties Reign CHAP. II. Of Archbishops 1. A Description of that Dignity here in England the Antiquity Precedency Priviledges and Style of the Archbishop of Canterbury with the Precincts of that See 2. The Antiquity Precedency and Style of the Archbishop of York with the Precincts of that See 3. What difference between Archbishop and Metropolitan and why called Metropolitan 4. Three Archbishops in England and Wales Anciently 5. The vicissitudes of the Christian Religion Anciently in this Island of Great Britain 6. How the Third Archbishop came to be lost 7. The great Antiquity of an Archbishop in London 8. The Original of the Style Primate and Metropolitan 9. What the difference Anciently between the Two Archbishopricks of Canterbury and York certain Priviledges of the latter 10. Whether an Archbishop may call Cases to his own cognizance nolente Ordinario 11. In what Case the Clerk is to be Instituted by the Archbishop where the Inferiour Ordinary hath right to Collate Also his power of Dispensations 12. A Case at Common Law relating to the Archbish Jurisdiction 13. Certain special Priviledges of the Archbishop of Canterbury 1. ARCHBISHOP ab Archos Princeps Episcopus Superintendens is that Spiritual person
the Bishoprick of Winchester contra novi Concilii statuta as the same Author reporteth And this because succeeding Popes had broken Pope Vrban's promise Touching the not sending of Legates into England unless the King should require it And in the time of the next succeeding King Stephen the Pope gained Appeals to the Court of Rome For in a Synod at London Conven'd by Hen. Bishop of Winchester the Pope's Legate it was Decreed That Appeals should be made from Provincial Councils to the Pope Before which time Appellationes in usu non erant saith a Monk of that time donec Henricus Winton Episcopus malo suo dum Legatus esset crudeliter intrusit Thus did the Pope usurp Three main points of Jurisdiction upon Three several Kings after the Conquest for of King William Rufus he could win nothing viz. upon the Conquerour the sending of Legates or Commissioners to hear and determine Ecclesiastical Causes Upon Hen. 1. the Donation and Investures of Bishopricks and other Benefices and upon King Stephen the Appeals to the Court of Rome And in the time of King H. 2. the Pope claimed exemption of Clerks from the Secular Power 2. The high Court of Convocation is called the Convocation of the Clergy and is the highest Court Ecclesiastical where the whole Clergy of both Provinces are either present in Person or by their Representatives They commonly meet and sit in Parliament-time consisting of Two parts viz. the Upper-house where the Archbishops and Bishops do sit and the Lower-house where the Inferiour Clergy do sit This Court hath the Legislative power of making Ecclesiastical Laws is commonly called a National Synod Conven'd by the King 's Writ directed to the Archbishop of each Province for summoning all Bishops Deans Archdeacons Cathedrals and Collegiate Churches assigning them the time and place in the said Writ But one Proctor sent for each Cathedral and Collegiate Church and two for the Body of the inferiour Clergy of each Diocess may suffice The higher House of Convocation or the House of Lords Spiritual for the Province of Canterbury consists of 22 Bishops whereof the Archbishop is President the Lower-house or House of Commons Spiritual consisting of all the Deans Archdeacons one Proctor for every Chapter and two for the Clergy of each Diocess in all 166 persons viz. 22 Deans 24 Prebendaries 54 Archdeacons and 44 Clerks representing the Diocesan Clergy Both Houses debate and transact only such matters as his Majesty by Commission alloweth concerning Religion and the Church All the Members of both Houses of Convocation have the same priviledges for themselves and Menial Servants as the Members of Parliament have The Archbishop of York at the same time and in the like manner holds a Convocation of all his Province at York constantly corresponding debating and concluding the same matters with the Provincial Synod of Canterbury The Antiquity of this Court of Convocation is very great for according to Beda St. Augustine An. 686. assembled in Council the Britain Bishops and held a great Synod The Clergy was never assembled or called together at a Convocation by other Authority than by the King 's Writ Vid. Parl. 18 E. 3. nu 1. Inter Leges Inae An. Dom. 727. A Convocation of the Clergy called Magna servorum Dei frequentia The Jurisdiction of the Convocation is only touching matters meerly Spiritual and Ecclesiastical wherein they proceed juxta Legem Divinam Canones Sanctae Ecclesiae The Lord Coke cites some Ancient Records to prove that the Court of Convocation did not meddle with any thing concerning the Kings Temporal Laws of the Land and thence inferrs That the Statute of 25 H. 8. cap. 19. whereby it is provided That no Canons Constitution or Ordinance should be made or put in execution within this Realm by Authority of the Convocation of the Clergy which were contrariant or repugnant to the King's Prerogative Royal or the Customes Laws and Statutes of this Realm is but declaratory of the old Common Law And by the said Act the Court of Convocation as to the making of new Canons is to have the King's License as also his Royal Assent for the putting the same in execution But towards the end of that Act there is an express Proviso that such Canons as were made before that Act which be not contrariant nor repugnant to the King's Prerogative the Laws Statutes or Customes of the Realm should be still used and executed as they were before the making of that Act. And if any Cause shall depend in contention in any Ecclesiastical Court which shall or may touch the King his Heirs or Successors the party grieved shall or may appeal to the Upper-house of Convocation within fifteen days after Sentence given Remarkable are the Constitutions of Claringdon in the time of King H. 2. occasioned by the Popes claiming Exemption of Clerks from the Secular power so contended for by Thomas Becket then Archbishop of Canterbury against the King as occasioned a convening a Common Council as well of the Bishops as of the Nobility at Claringdon in the time of H. 2. wherein they revived and re-established the Ancient Laws and Customes of the Kingdom for the Government of the Clergy and ordering of Causes Ecclesiastical The principal Heads or Articles whereof were these viz. 1 That no Bishop or Clerk should depart the Realm without the King's License and that such as obtained License should give Sureties That they should not procure any dammage to the King or Realm during their absence in Foreign parts 2 That all Bishopricks and Abbies being void should remain in the Kings hands as his own Demesns until he had chosen and appointed a Prelate thereunto and that every such Prelate should do his Homage to the King before he be admitted to the place 3 That Appeals should be made in Causes Ecclesiastical in this manner viz. From the Archdeacon to the Ordinary from the Ordinary to the Metropolitan from him to the King and no farther 4 That Peter-Pence should be paid no more to the Pope but to the King 5 That if any Clerk should commit Felony he should be hanged if Treason he should be drawn and quartered 6 That it should be adjudged High Treason to bring in Bulls of Excommunication whereby the Realm should be cursed 7 That no Decree should be brought from the Pope to be executed in England upon pain of Imprisonment and Confiscation of Goods 3. Arches or alma Curia de Arcubus so called of Bow-Church in London by reason of the Steeple or Clochier thereof raised at the top with Stone-pillars in fashion like a Bow-bent Arch-wise in which Church this Court was ever wont to be held being the chief and most Ancient Court and Consistory of the Jurisdiction of the Archbishop of Canterbury which Parish of Bow together with twelve others in London whereof Bow is the chief are within the Peculiar Jurisdiction of the said Archbishop in Spiritual Causes and
of Alimony was commanded to be put out of their Commission And upon that Richardson said to Hitcham move this again when the Court is full for we may advise of this Et adjournat c. One Broke was committed by the High Commissioners to the Fleet because he refused Alimony to his Wife and that being returned upon an Habeas Corpus he was delivered Broke's Case More 's Rep. 18. The Wife complains against her Husband in the Ecclesisiastical Court Causa saevitiae for that he gave her a Box on the Ear and spit on her Face and whirl'd her about and called her damned Whore Which was not by Libel but by Verbal accusation after reduced to writing The Husband denies it and the Court ordered the Husband to give to his Wife 4 l. every Week pro expensis litis and Alimony Barkley and Henden moved for a prohibition The Suit is originally Causa saevitiae and as a Case wherein they Assess Alimony And now for a ground of a prohibition it was said that the Husband chastised his Wife for a reasonable cause as by the Law of the Land he might which they denied and said that they had Jurisdiction in these matters de saevitia c. And afterwards that the Wife departed and that they were reconciled again And then that reconciliation took away that Saevitiâ— before as reconciliation after Elopement Richardson it was said here that the Suit was without Libel but that is no ground of a prohibition for she proceeded upon that matter reduced in Articles and we cannot grant a Prohibition if they proceed in their Form For we are not Judges of their Form But if they will deny a Copy of the Libel a Prohibition lies by the Statute You say that an Husband may give reasonable chastisement to his Wife and we have nothing to do with it But only that the Husband may be bound to his good behaviour by the Common Law And the Sentence in Causa saevitiae is a mensa thoro and we cannot examine what is Cruelty and what not And certainly the matter alledged is Cruelty for spitting in the Face is punishable in the Star-Chamber But if the Husband had pleaded a Justification and set forth a Provocation to him by his Wife to give her reasonable castigation then there would be some colour of a Prohibition Henden we have made such an Allegation and it is absolutely refused Hutton perhaps he is in Contempt and then they will not admit any Plea as if one be Out-lawed at Common Law he cannot bring an Action But they advised the Plaintiff to tender a Justification and if they refused it then to move for a Prohibition 19. B. was ordered by the High Commission-Court to give Alimony to his Wife and was bound in an obligation of 300 l. to one of the Doctors there to give her Alimony and to use her as his Wife And now he is sued there again and it is alledged against him that he had committed Adultery with divers Women and that he had not given Alimony to his Wife and thereupon B. was put to his Oath who answered that as to the point of Alimony he was not bound to answer for that he was bound in an obligation to perform it and also that he was sued to discover upon his Oath the forfeiture of the Obligation and for that the Defendant would make no other answer he was committed to Prison and being brought hither by Habeas Corpus the Court was prayed that he might be released for the reason aforesaid Coke Gawens Case which was ruled here in Wrays time was the same Case in effect and it was ruled that the Ecclesiastical Court may not examine him upon his Oath in such Case and per Curiam B. was Bailed till the next Term for that that was the last day of the Term. Coke for that there is an obligation taken in this Case I will grant a Prohibition for taking an Obligation for that if it be moved and it was not well done to take the obligation to one of the Doctors but we use to take the obligation in the Kings Name Mich. 5. E. 4. B. R. Rot. 143. The Statute of 2 H. 4 gives authority to Bishops to Fine and Imprison for Heresie And where one Reser had given a Legacy to Bishop Stephens for which he sued the Executor who being for not payment thereof Excommunicated said that he was not Excommunicated before God although he were before Men for his Corn grew very well for which words he was after Imprisoned but he was bailed here per Curiam upon an Habeas corpus for that it was not Heresie because that Court hath Authority to examine such things which are given by the Statute of 10. H. 7. One said that the Tenth part of Tythes was not due Jure Divino for which words he was Imprisoned whereupon the Habeas Corpus was brought and that depended till 14. H. 7. at which time it was adjudged that it was not Heresie and that the Court had Jurisdiction to examine that it being given by Statute And it seems to me that the High Commission Court had not power to Fine or Imprison for Alimony Hill 12. Jac. upon an Habeas Corpus by one Codd the return was that he was Imprisoned by the High Commission by that Warrant viz. We command you to take him and Imprison him for manifest Contempt to the Court for that he being ordered to receive his Wife and to enter into an obligation to use her as his Wife he refuses so to do Coke he shall be Bail'd for that he could not be imprisoned by them for Alimony nor take obligation to perform their order Sentence was given in the Ecclesiastical Court that the Wife should be separated from her Husband propter saevitiam of the Husband and Alimony allowed her there the Husband prayed a Prohibition setting forth he desired a Cohabitation and proffered Caution thereby to use her fitly The Court denied it because the Court of the Ordinary is the proper Court for allowance of Alimony A Libel was before the High Commissioners which supposed divers cruelties used by the Husband against the Wife for which she was enforced to depart from him who would not allow her maintenance and therefore she sued before them for Alimony But because it is a Suit properly suable before the Ordinary wherein if there be wrong the party may have an appeal and although it be one of the Articles within their Commission to determine of yet because it is not any of the clauses within the Stat. of 1 E. 6. for which causes the Commission is ordained the Court awarded a Prohibition CHAP. XXXVII Of Defamation 1. What Defamation is how many ways it may be and where Cognizable 2. Two ways of prosecution at the Civil Law in Causes of Defamation 3. Prohibition for suing in the Ecclesiastical Court upon the words Drunkard and Drunken Fellow 4. Several differences in
reference to the Cognizance of the Temporal and Spiritual Courts in point of Slander 5. Whether Action lies for calling one Quean 6. Prohibition for suing in the Ecclesiastical Court for words tending to the obstruction of a Marriage 7. Matters determinable at Common Law not Cognizable in the Ecclesiastical Courts 8. Whether these words Thou hast taken a false Oath be Actionable and in what Court 9. Whether Action lies at Common Law for saying Thou art a Whore c. 10. Words of Slander to the â—inderance of Marriage are Actionable at the Common Law 11. Defamatory words Thou art a Bawd and keepest a Bawdy house whether and where Actionable 12. To say A. is a Cuckold and that B. had layen with the Wife of A. is a Defamation suable in the Spiritual Court 13. The Difference as to Cognizance between the words Thou art a Bawd and I will prove thee a Bawd and the words Thou keepest a House of Bawdry 14. To say Thou art a Drunkard or a Drunken Fellow whether such words are suable in the Ecclesiastical Court 15. The words he is a Cuckoldly knave are suable not in the Temporal but in the Ecclesiastical Court 16. Whether the calling of Pimp Common Pimp be Actionable and in what Court 17. Welch Jâ—de expounded to be Welch whore and cognizable in the Ecclesiastical Court 18. Whether the words Quean or Base Quean be Actionable in the Ecclesiastical Court 19. Action in that Court for Scandalizing a Parson 20. Whether Action lies in the Ecclesiastical Court for saying of one that kept a Victualling house that she kept a House of Bawdry 21. Whether the words Thou art a Pander be Actionable at the Common Law 22. Church-wardens presentment of a Feme Covert upon a Common Report for Adultery and Action of Defamation brought in the Ecclesiastical Court thereon 23. Whether Action upon the Case for words lies against an Infant of Seventeen years of age 24. Several other Cases at the Common Law pertinent to this Subject of Defamation what of them cognizable in the Ecclesiastical Court and wherein the Prohibition lies or not 1. DEFAMATION properly so called is the utterance of Reproachful Speeches with intent of raising an ill Fame of the Party so reproached Defamare est in mala Fama ponere Bart. l. turpia ff de Legat. 3. This extends it self to Writing as by defamatory Libels as also to Deeds as by Reproachful Postures Signs and Gestures Lindw c. authoritate verb. quacunque in gloss de Sent. Excommunicat And as for the most part it proceeds of malice implying matters either of Crime or Defect so it generally aims at some prejudice or dammage to the Party defamed Whatever Cognizance the Temporal Laws of this Realm do take of Defamations by vertue of Prohibitions and Actions upon the Case yet it will not be denied but that the Cognizance of Defamations where they are duly prosecuted doth properly belong to the Spiritual Law specially where the matter of the Defamation is only Ecclesiastical 2. In all causes of Defamation the Party defamed had his Election by the Civil Law whether he would prosecute the Defamer ad Vindictam publicam or ad privatum interesse the former whereof was made choice of where the Defamed aimed more at the Defamers shame than his own Interest and chose rather to reduce him to a Recantation than augment his Cash by his own Credit 's diminution l. in constitutionib § ult ff L. Cornel. The other viz. ad privatum interesse was chosen by such Defamed ones as valued their Credit at a certain Rate and chose rather a Pecuniary Compensation than an unprofitable Recantation aiming more at their own private satisfaction than at the Defamers publick Disgrace l. stipulationum § plane ff de verbor obligat l. si quis ab alio ff de re judic But both of these the Defamed could not have for having determined his Election he was therewith to rest satisfied only having obtained a Sentence against the Defamer for his Recantation or publick Disgrace by prosecuting him ad publicam vindictam he might possibly have in Lieu thereof a pecuniary Recompence by way of Commutation The Prosecution ad publicam vindictam was left to the determination of the Ecclesiastical Jurisdiction the other to the Cognizance of the Secular Much in conformity to what the Laws of this Realm in Cases of Defamation seem to say viz. where the Prosecution is meerly for the Punishment of Sin and Money not demanded there the Spiritual Court shall have the Cognizance But where Money is demanded in satisfaction of the Wrong there the Temporal specially if the Defamer undertake to justifie the matter or the words express or imply a Crime belonging to the Cognizance of the Common Law These Actions of Defamation are of a higher Nature than they seem primo intuitu to be a mans good Name being Equilibrious with his Life and therefore the Law calls them Actiones praejudiciales that is such as draw lesser Causes to them but themselves are drawn of none 3. One Libelled against another in the Ecclesiastical Court for saying That he was a Drunkad or a Drunken Fellow and an addle Drunken Fellow and by the opinion of the whole Court a Prohibition was granted and for such words a Prohibition was granted in C. B. in the Case of Martin Calthorp 4. One moved at the Barr for a Prohibition to the Ecclesiastical Court on a Suit there depending for calling one Bawd Jones Justice conceived that these Differences ought to be observed where a Man calls a Woman Whore or such like Slander for which Suit lies in the Ecclesiastical Court against the Party if the matter appear in that Case Suit lies for Slander there and no Prohibition lies è contra if a man be called Thief Traytor or the like whereon no Suit lies for the Principal in the Ecclesiastical Court but at the Common Law if one be sued for such Slander in the Ecclesiastical Court a Prohibition lies If a man call one Bawd for which Suit lies at the Spiritual Court and also at the Common Law there if the Suit be for Slander in the Ecclesiastical Court in that case no Prohibition lies for the Party hath Election to sue in which Court she please So if a Woman be Slandered in her Reputation whereby she is hindered in her Marriage she may sue either at the Common Law or in the Spiritual Court for Slander And lastly if a man speak any words for which no Suit lies at Common Law nor are such as concern any thing whereof the Ecclesiastical Court takes Cognizance it seems that in such Case if Suit be in the Spiritual Court for Slander as for Convitia a Prohibition lies as for calling one Knave Drunkard or the like Quaere of that the Chief Justice agreed to that the others said nothing therein 5. A Suit was commenced in the Ecclesiastical Court where the Lilbel was that he called the Plaintiff