hath the same Court with the Bishop so that the Legal Acts of the Court are the Bishop's Acts by whose Authority he sits there so that no Appeal lies from the Bishop's Officer to himself but to the Superiour and although a Commissary be allow'd to have the Power of the Ordinary in Testamentary Causes which were not originally of Spiritual Iurisdiction as it is said in Henslow's Case with which Lindwood agrees yet in Acts of Spiritual and Voluntary Iurisdiction the Case is otherwise For the Bishop by Appointing a Chancellor doth not devest himself of his own Ordinary Power but he may delegate some parts of it by Commission to others which goes no farther than is expressed in it For it is a very great Mistake in any to think that such who act by a Delegated Power can have any more Power than is given to them where a Special Commission is required for the Exercise of it For by the General Commission no other Authority passes but that of hearing Causes but all Acts of voluntary Jurisdiction require a Special Commission which the Bishop may restrain as he sees Cause For as Lyndwood saith Nothing passes virtute Officii but the Hearing of Causes so that other Acts depend upon the Bishop's particular Grant for that purpose And the Law no-where determins the bounds of a Chancellor's Power as to such Acts nor can it be supposed so to do since it is but a delegated Power and it is in the Right of him that Deputes to Circumscribe and Limit it Neither can Use or Custom inlarge such a Power which depends upon another's Will. And however by modern Practise the Patents for such Places have passed for the Life of the Person to whom they were first granted yet it was not so by the ancient Ecclesiastical Law of England For Lyndwood affirms That a Grant of Jurisdiction ceases by the Death of him who gave it Per Mortem deputantis cessat Potestas Officialium or else it could never pass into the Dean and Chapter sede vacante or to the Guardian of the Spiritualties And he gives a good Reason for it Nè invitus habeat Officialem sibi fortassis odiosum It 's true that by the Statute 37 H. 8. c. 17. meer Doctors of Law are made capable of Exercising all manner of Ecclesiastical Iurisdiction But it doth not assign the Extent of their Jurisdiction but leaves it to the Bishops themselves from whom their Authority is derived And the Law still distinguishes between Potestas Ordinaria and Delegata for the former supposes a Person to act in his own Right and not by Deputation which I suppose no Chancellors or Officials will pretend to But how far now a Commission to exercise Jurisdiction doth hold when the Person who gave it is dead is not my present business to enquire but in Sutton's Case it seems to be taken for granted by the Counsel that a Chancellor's Patent confirmed by Dean and Chapter doth give a Man a Freehold for Life if he be capable of doing his Duty otherwise he may be deprived for Insufficiency as Doctor Sutton was But Noy saith That the Court was in doubt how far the Act of the Predecessor could bind the Successor as to the Profits And in the Prebend of Hatcherlies Case Dodderidge declared That Ecclesiastical Iurisdiction in Iudicial Acts may be executed by Substitute but a Grant of it is not good but during the Bishop's Life and shall not bind the Successor And Coke thought it a very hard thing That the Successor should not remove him but be bound to answer for the Acts and Offences of a Commissary which he never put-in But these things belong not to our present business any farther than to shew that however in some Cases the Bishops may substitute others yet as to Resignations of Benefices for all that I can find the Law only takes notice of the Bishop himself Lyndwood observes that there is a difference to be made between the Resignation of a Simple Benefice i. e. where there is no Cure of Souls and of such a one that hath such a Cure going along with it In the former Case he saith That a Resignation may be to the prejudice of the Party without the Bishop's Consent but in the latter where it may be to the prejudice of Others as well as of himself it hath no force without the Bishop's Ratification In hoc Casu necessaria est Ratihabitio Episcopi So that no Resignation of a Cure of Souls can be of any Validity without the Bishop's Acceptance In the Case of Smith against Foanes it was resolved and agreed by all upon Evidence at Bar That a Resignation to a Proctor does not make the Church void until it be accepted by the Bishop and acknowledged before him 2. But suppose the Resignation be made into the hands of the Bishop is he bound to Accept it By what Law For what Reason Must he not enquire into the Reason and Inducements of the Resignation whether it be Corrupt or not No Bishop can be bound to accept a Corrupt Resignation and whether it be so or not he is bound to enquire and if he be not satisfied by what Law can he be required to do that which he cannot do with a good Conscience If the Law hath trusted him with accepting a Resignation it hath likewise trusted him with Judging whether it be fit to be accepted or not In Gayton's Case it is plain That the Bishop may refuse a Resignation before a Publick Notary when there was a Condition annexed to it which the Law doth not annex For in this Case the Condition was That if such or such a Person were not presented within six Months the Resignation should be null which Coke then said made it void because Resignations ought to be free and this is a Judicial Act to which a Condition cannot be annexed no more than an Ordinary may admit upon Condition But it may be objected that in Case of Donatives the Resignation must be into the Patrons hands as in Gays and Fairchild's Case why then may not a Resignation be good to a Patron in other Benefices since those are as really Benefices as the other The difference is that there is no Presentation to the Bishop in Donatives For it is agreed by the Judges in that Case That if there were a Presentation once made to the Bishop it ceases to be a Donative and becomes always Presentable So that the Case of Donatives is very different for we say that wherever the Bishop hath a Right to admit it is his Right to accept of a Resignation But in this Case the Bishop is supposed to have nothing to do in the Admission or Institution of the Person If it be asked how the Bishops came to lose their Right of receiving the Presentation to these Benefices I answer that they seem to me to have come one of these two
we shall soon find what Clamours will be made against them as overthrowing the Fundamental Rights and Liberties of the People Is there not the same Reason in this Case Is there not greater because these Benefices are not Freeholds which are held of the Patrons but they have only a Right to Present Fit persons to them But it may be that the Defenders of these Bonds will deny Benefices to be Freeholds by the Law of England It is easy to guess what some Men would have them to be by these Bonds I am sure far enough from Freeholds But such private Transactions cannot alter the Nature of things and we are now enquiring What Benefices are by the Law of England It is disputed at Common Law In whom the Freehold of the Glebeland of a Benefice is during the Voidance And it is agreed that it is neither in the Patron nor Ordinary because it was given to the Incumbents and their Successors And therefore they tell us it is then in Abeyance which is a pretty way of expressing That the Law takes care that it shall come to the next Incumbent notwithstanding the Discontinuance by Death of his Predecessor and I think it had been as well said that it was in the Law although not in any Person But it is not disputed but that as soon as another Incumbent is in Possession the Freehold is in Him for those are Littleton's words Sect. 647. And my Lord Coke saith That the Incumbent cannot be look'd on as a meer Tenant for Life because he may have such Writs which none can have but a Tenant in Fee-simple or Fee-tail and he may receive homage which Tenant for Life cannot do And for this he goes as far back as the time of E. 1. But long before that in Glanvil's time which was of H. 2. it is said That he that is possessed of a Benefice by Institution from the Bishop and judged fit by Him shall enjoy it for his Life although the Right of Advowson be disputed Which is several times affirmed by my Lord Coke upon good Reason In one place he saith That at the Common Law if a Church be once full the Incumbent could not be removed excepting Just Cause of Deprivation and Plenarty generally was a good Plea in a Quare Impedit or Assise of Darein Presentment and the Reason of this was to the Intent the Incumbent might apply himself to his Spiritual Charge 2. The Law intended that the Bishop that had Cure of Souls within his Diocese would admit and institute an able Man for the Discharge of his Duty and his own and that the Bishop would do right to every Patron in his Diocese In another place he saith That by the order of Common Law if one had presented unto a Church whereto he had no Right and the Bishop had admitted and instituted his Clerk this Incumbent could not be removed for divers Reasons 1. For that he came into the Church by a Iudicial Act of the Bishop 2. That by the Common Law in every Town and Parish there ought to be Persona idonea and when the Bishop had admitted him able which implied that he was idonea Persona then the Law had his final Intention viz. that the Church should be sufficiently provided for 3. That the Incumbent having Curam animarum might the more effectually and peaceably intend so great Charge the Common Law provided that after Institution he should not be subject to any Action to be removed at the Suit of any common Person without all Respect of Age Coverture Imprisonment or Non-sane-memory and without regard of Title either by Descent or Purchase or of any Estate Are these things consistent with Bonds of Resignation But it may be said That here is no Deprivation supposed but a voluntary Resignation and what hurt is there if it be a Man 's own Act I answer that we are not only to consider the Act of the Person but the Interest and general Concernment of the Church in it For in all matters of such a Publick nature we are not to regard so much the Consent of the Party as the Nature and Consequence of the Act it self If it be an illegal thing and tend to subvert the Rights of the Church it cannot make it legal to say that it was his own Act. Now as to this kind of Resignation we are to consider these two things 1. That if the Resignation be not into the hands of the Bishop it is an illegal Act and void of it self 2. That if it be into the Bishop's hands he hath the Power in Law to Accept it or not 1. That the Resignation must be into the hands of the Bishop For a Resignation into the hands of the Patron is by the Canon Law declared to be null and void of it self So Innocent IV. ad c. 6. de rerum per. And this is grounded on the Text of the Canon Law C. 17. Q. 2. c. Gonsaldus and on the Appendix to the Lateran Council under Alex. III. De Renunt tit 15. c. pen. where it is declared to be an unworthy thing and contrary to the Canons to Resign into the hands of Patrons And Alex. III. forbids it absolutely under an Anathema De Renunt c. 4. which is confirmed by Innocent III. c. 8. in the Decretals But we are to consider especially how far this part of the Canon Law was here receiv'd and we can have no better a Judge in this Case than Lyndwood who saith positively that Renuntiatio facta in manus Laici etiam sponte non tenet i. e. a Resignation made into the hands of a Lay-Patron if it be never so free doth not hold and therefore he saith it must be made into the hands of Him who hath the Ordinary Iurisdiction and therefore hath power to Admit He observes two things very material as to the point of Resignation 1. That a Voluntary Resignation though not to the Ordinary deprives the Party of the Possession so as he cannot recover although he be not wholly devested of the Property or Right to the thing Quia sine Consensu Superioris non tenet Resignatio and this is founded on that Fundamental Reason That the Care of the Diocese belongs to him who hath the Ordinary Jurisdiction who was the Bishop but as Lyndwood observes by Custom and Composition this is put into other hands as in Places of Exempt Jurisdiction And so where the Power of granting Institution is lodged by the Bishop's Consent and a Prescription upon it there is a Power likewise of Receiving a Resignation but not in any who have only a Delegated Power from the Bishop For there is a Difference in Law and Reason between an Ordinary Power depending on an ancient Prescription and Composition as it is in several places in the Deans and Chapters within certain Precincts and an Ordinary Power in a Substitute as a Chancellor or Vicar-General For although such an Officer
what Bargains they think fit who mind not the Men but the Advantage they are to get by them And there is a just Presumption that those are not very Deserving who are ready to drive such Bargains for themselves and such Men are not to be valued as Cattle in a Market by the Money they will yield 2. That Lawyers would not encourage their Clients in indirect methods of obtaining Presentations For here lies a great part of our present Mischief the Clergymen who want Benefices They say We are Ignorant of the Law but we go to those whose business it is to understand it and they tell us they have Cases and Precedents in their Books for such Bonds and they have been many times adjudged in the Courts of Law to be good and therefore why are we to blame if we submit to them But here lies the great Mistake the Point is really a Point of Conscience as to the Oath but the Question put to them can be only a Point of Law who are to give Judgment upon the Statute and according to the Rules of Judgment allowed in their Courts But I cannot but observe that there is no Precedent offer'd before 8 Iac. 1. and in the 15th was a contrary Judgment In the Beginning of Charles I. the former Judgment was affirmed and from hence it hath come to be such a prevailing Opinion I confess that I am not satisfied how far such Precedents or one or two Judicial Sentences make a thing to pass for Law nor whether the Authority of such a Sentence or the Reason is to give the Force of Law to it I observe that my Lord Coke when he speaks of the Laws of England he reckons up Common-Law Statute-Law Customs reasonable c. but he never mentions the Judgment of the Courts as any Part of our Law they being no more but a Declaratory Sentence of the Majority of the Judges when it may be the other differ upon better Reasons and when such Reasons come to be thought better by one more at another time then the contrary must pass for Law on the same grounds How often do we hear that the Judges were divided in their Opinions in point of Law How often that the greater number went one way but Law and Reason on the other Suppose a Lord Chief Justice of great Skill and Knowledge in the Law to be unequally yoked with others of far less Judgment how is it possible to prevent that Judgment shall not be given on the wrong side if the three happen to be of an Opinion against him or one be absent and two be against one In a late great Cause viz. of Commendam although three Judges concurred in Opinion and the General Practise was allowed to be of that side yet because one Judge differ'd from the rest his Authority was produced against the Sentence of the Court and for what Cause can this be but the Supposition that it is not the Sentence but the Reason which makes the Law My Lord Chief Justice Hales in a MS. Discourse of the History and Analysis of the Laws of England Chap. 4. makes three Constituents of the Common Law of England 1. The Common Usage and Custom 2. The Authority of Parliament 3. The Iudicial Decisions of Courts of Iustice but how Consonant to one another in the Series and Succession of Time This is spoken with great Judgment For no doubt a mighty Regard ought to be shewed to a Concurrent Sense of so many Persons of Ability in the Law in the different Times wherein such Matters have been before them and this is the highest Authority for expounding the Law but it cannot amount to the Making of a Law For as the same Excellent Person adds It is true the Decisions of Courts of Iustice although by the strength of the Law of this Kingdom they do bind as a Law between the Parties to it in that particular Case in Question till Reversed by Error or Attaint yet they do not make a Law for that only the King by the Assent of Parliament can do All that I aim at is not in the least to take off from the Authority and Reverence due to Judicial Decisions built upon a General Agreement from time to time or upon Evident Reason in point of Law but only that things should not be so positively asserted to be Law which are built only on a few Modern Precedents without any convincing Evidence Which I take to be the present Case 3. That the Clergy would mind their own Honour and Interest and that of the Church and Religion so much as not to Accept of Benefices upon such Ensnaring Terms as those of Bonds of Resignation If what I have said on this Argument be true I am sure they have all the Reason in the World to Refuse them when they know not what the Consequence of them may be and they do know what kind of Oath they are to take And no Man can honestly take an Oath that is not satisfied that such Bonds are no Simoniacal Contract in the Sense of that Law by which he is required to take the Oath Now the Oath is not imposed by the Courts of Common Law in pursuance of the Statute for then it were to be understood according to the Sense and Meaning of it but that very Statute leaves the Ecclesiastical Laws as they were by which Simony is of a larger Extent than it is understood at Common Law and by those Laws this Oath is required Therefore my Request is to all such Clergymen as are in danger of having such put upon them that they would study the Case and satisfy their Minds before they venture upon taking an Oath which may afterwards rob them of that Peace and Tranquillity of Mind which every Good man will Esteem above any Benefice in the World FINIS Page 73. lin 13. for Gays read Gayr Ibid. Marg. for Mar. read Moor. A Catalogue of Books published by the Right Reverend Father in God Edward Lord Bishop of Worcester and sold by Henry Mortlock at the Phoenix in St. Paul's Church-Yard A Rational account of the Grounds of Protestant Religion being a Vindication of the Lord Archbishop of Canterbury's Relation of a Conference c. from the pretended Answer of T. C. wherein the true Grounds of Faith are cleared and the false discovered the Church of England vindicated from the imputation of Schism and the most important particular Controversies between us and those of the Church of Rome throughly examined the second Edition Folio Sermons preached upon several Occasions with a Discourse annexed concerning the true Reasons of the Sufferings of Christ wherein Crellius his Answer to Grotius is considered Folio Origines Britannicae or the Antiquities of the British Churches with a Preface concerning some pretended Antiquities relating to Britain in vindication of the Bishop of St. Asaph Folio Irenicum A Weapon Salve for the Churches Wounds Quarto Origines Sacrae or a Rational Account of